draft RFP - Interactive Data Exchange Application

INSTRUCTIONS TO OFFERORS AND

CONDITIONS OF PROPOSALS/AWARDS

(MERCHANDISE, SUPPLIES, EQUIPMENT AND/OR SERVICES)

AAFES Form 4450-002, Solicitation/Proposal/Award Page 1 of 4

ISSUING OFFICE

ARMY & AIR FORCE EXCHANGE SERVICE

ATTN: IT-Z

3911 S. WALTON WALKER BLVD.

DALLAS, TX 75236-1598

CONTRACTING OFFICER

Bruce E. Gibson

TELEPHONE NUMBER

(214) 312-4783

ITEM/SERVICE

Interactive Data Exchange Application (IDEA)

SOLICITATION FOR PROPOSALS

DATE ISSUED:

SOLICITATION NUMBER

EXCH-ITZ-10-018-11-005

Proposals are solicited for merchandise, supplies, equipment or services described in this solicitation. Written proposals must be received at the issuing office by PM local time DD MMM YYYY

PROPOSAL (To be completed by Offeror)

The offeror agrees, if awarded all or part of the items and/or services solicited, to furnish them according to the price(s) fee(s), terms and conditions contained in the solicitation and proposal. This proposal will be valid for 120 calendar days after the date for receipt of proposals established above.

OFFEROR REPRESENTS (Check Appropriate Box)

a. That it is is not a manufacturer or producer of; is is not a regular dealer in; the items provided (Commodity Contracts only)

OR

b. That it is is not engaged in furnishing of services of the type called for herein. (Services contracts only)

c. That it operates as an Individual Partnership Corporation, incorporated in the State (Country, if outside US) of .

d. That it is is not a small business.

e. * That it is is not a minority business. (See definition on page 3)

f. * That it is is not a woman-owned business. (See definition on page 3)

g. That an owner or officer of the firm or the firm or a related firm has has not been convicted of a felony related to a business transaction.

h. That an owner or officer of the firm or the firm or a related firm has has not been suspended or debarred.

i. That the information provided is full, accurate and complete. For breach of this warranty, AAFES may terminate for default any contract resulting from this solicitation and al other AAFES contracts.

* Check the appropriate block for all contracts to be performed in the United States, its possessions and Puerto Rico.

FULL NAME AND BUSINESS ADDRESS OR OFFEROR

(STREET, CITY, STATE & ZIP CODE OR COUNTRY)

TELEPHONE NUMBER/FAX NUMBER/ EMAIL ADDRESS

SIGNATURE OR PERSON AUTHORIZED TO

SIGN PROPOSAL

DATE

TIN:

DUNS:

TYPED OR PRINTED NAME AND TITLE

AAFES Form 4450-002, Solicitation/Proposal/Award Page 2 of 4

CONTRACT AWARDED FOR FOLLOWING:

CONTRACT NO.

AMOUNT: ESTIMATED

DATE OF AWARD

ACTUAL

SIGNATURE

(TYPED NAME)

CONTRACTING OFFICER

ARMY & AIR FORCE EXCHANGE SERVICE

1. SOLICITATION/CONTRACT CONTENTS: This solicitation and any resulting contract will consist of the AAFES Form 4450-002, “Solicitation/Proposal/Award (Merchandise, Supplies, Equipment and/or Services)”, page 1 thru 4 and the following listed Schedule and Exhibits.

Schedule, 5 pages.

Exhibit A, IT General Provisions, 18 pages.

Exhibit B, Supplemental Provisions, 11 pages.

Exhibit C, Invoicing and Payment, 4 pages.

Exhibit D, Statement of Work, 27 pages.

Exhibit E, Proposal Submittal Requirements, 49 pages.

Exhibit F, Insurance Requirements, 1 page.

AAFES Form 4450-002, Solicitation/Proposal/Award Page 3 of 4

2. DEFINITIONS:

a. The term “minority business” means a business concern (1) which is at least 51 percent owned by minority group members; or, in the case of any publicly owned business, at least 51 percent of the stock is owned by one or more minority group members, and (2) whose management and daily business operations are controlled by one or more such minority group members. For purposes of this definition, minority group members include Black Americans, Hispanic Americans, Asian-Pacific Americans, Asian-Indian Americans and Native Americans (such as American Indians, Eskimos, Aleuts and Native Hawaiians).

b. The term “women-owned business” means a business that is at least 51 percent owned by a woman or women who also control and operate it. “Control” in this context means exercising the power to make policy decisions.

“Operate” in this context means being actively involved in the day-to-day management.

3. PROPOSAL PREPARATION:

a. You are encouraged to contact the contracting officer if you have a question concerning this solicitation, information about the solicitation furnished any prospective offeror will be furnished all prospective offerors.

b. Furnish all information required by the solicitation on the forms provided. Failure to do so may result in a proposal being consider nonresponsive and excluded from consideration for award.

c. Erasures or changes must be initialed by the person signing the proposal.

d. The person signing the proposal must have authority to obligate the firm contractually.

e. Unless otherwise authorized by the solicitation, alteration to the terms and conditions contained in the solicitation may render offeror’s proposal nonresponsive.

4. SUBMISSION: Proposals and modifications, if any, must be sent in a sealed envelope addressed to the issuing office with the offeror’s name (for identification only) and the solicitation number on the front. Telegraphic proposals will NOT be considered unless authorized in the solicitation; however, proposals may be modified by telegraphic notice, or fax, provided it is received before the time and date set for receipt of proposals.

5. LATE PROPOSAL: AAFES reserves the right to consider proposals or modifications received late, but before award is made, should such action be to AAFES’ advantage.

6. WITHDRAWAL: Proposals may be withdrawn by written notice or telegram received at any time prior to award.

7. NO PROPOSAL: If you do not submit a proposal DO NOT return the solicitation or proposal packages unless instructed to do elsewhere in the solicitation. However, please send us a letter or postcard telling us if you are interested in receiving future solicitations for this type of items or service.

8. ELIGIBILITY OF PROPOSED CONTRACTOR(S):

a. Proposals for merchandise, supplies or equipment will not be considered for award unless submitted by manufacturers or producers of, prime sources, or regular dealers in, the items required.

b. Proposals will not be considered if submitted by brokers, active duty military personnel or U.S. Government employees. This prohibition includes immediate family members of these personnel residing in the same household, unless approved before award of contract.

AAFES Form 4450-002, Solicitation/Proposal/Award Page 4 of 4

c. The offeror must have adequate resources to perform the resulting contract and, upon request, furnish proof of same to the contracting officer. The contracting officer may request a financial statement, a cost breakdown, a projected operating statement, or other data from the offeror. Failure to furnish the data requested within the time specified may cause a firm to be determined nonresponsible.

9. DISCOUNTS: (Not applicable to procurements of edible meat or food products or concession services.) Prompt payment discounts will be included in the evaluation of proposals provided the period of the offered discount is 20 days or more. Even if not evaluated for award, all discount terms will become a part of any resulting contract.

10. ACCEPTANCE AND AWARD:

a. AAFES reserves the right to reject any or all proposals, to waive or correct informalities and minor irregularities in proposals received, and to conduct further negotiations with any or all offerors.

b. Unless otherwise stated in the solicitation (and in the absence of any express limitation made by the offeror), AAFES may accept all or any part of a proposal, without further negotiation. Proposals should therefore contain the offeror’s most favorable terms. Any further negotiations undertaken will not constitute a rejection or counteroffer on the part of AAFES.

c. When quantities for merchandise, supplies or equipment stated in the solicitation are estimated, AAFES reserves the right to accept other than the lowest proposal, and to make multiple awards unless otherwise provided in the Schedule.

d. AAFES plans to award a contract to the responsive, responsible offeror whose proposal is best for AAFES, price/fee and other factors set out in the solicitation considered. AAFES reserves the right to accept other than the lowest proposal, and to make multiple awards unless otherwise provided in the Schedule.

e. Contracting Officer will award the contract by completing the “ACCEPTANCE AND AWARD” block on page

2, obtaining any approvals required by AAFES directives, signing the contract and mailing or otherwise furnishing the successful offeror a copy of the completed contract within the time allowed for acceptance of the offer.

11. INCONSISTENCIES: In the event of an inconsistency between the provisions of this solicitation, the inconsistency will be resolved by giving precedence in the following order: (a) the Schedule; (b) Instructions to Offerors and Conditions of Proposals/Awards; (c) General Provisions; (d) Other provisions of the contract whether incorporated by reference or otherwise; (e) the Specifications; and (f) the Drawings.

12. CERTIFICATE OF INDEPENDENT PROPOSAL DETERMINATION: Offeror certifies that this proposal or any change thereto is made without consultation, communication, or agreement, for the purpose of restricting competition or manipulating awards, and this proposal has not been disclosed and will not be disclosed prior to award.

13. PROPRIETARY INFORMATION: AAFES will not be bound by any language in any offer purporting to limit AAFES’ right to use or disclose any offer or any part of an offer because of proprietary information in it, unless the contracting officer specifically agrees in writing to such limitations.

14. TAXPAYER IDENTIFYING NUMBER (TIN): The 9-digit TIN is an identifier required of all individuals and businesses that file tax returns in the United States. For individuals eligible for a social security number (SSN), the SSN assigned by the Social Security Administration serves as the TIN. For resident or non-resident aliens ineligible for a SSN, the individual tax payer identification number (ITIN) assigned by the IRS serves as the TIN. The Employer Identification Number (EIN) assigned by the IRS serves as the TIN for businesses and entities other than individuals.

Failure to provide the TIN may result in a proposal being found nonresponsive and not further considered for award.

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***SCHEDULE***

Solicitation EXCH‐ITZ‐10‐018‐11‐005

Interactive Data Exchange Application (IDEA) Schedule Page 1 of 5

1. PURPOSE.

The Exchange is issuing this Request for Proposal (RFP) to multiple sources to establish a contract for an Interactive Data Exchange Application solution in which will manage and maintain the Exchange item induction process and provide a stream lined method to be used for all new item inductions. The Product Information Management (PIM) software solution is to include software, software maintenance and support, training, discovery, design and implementation services. The specific Exchange requirements information is located at Exhibit D, Statement of Work, to this RFP. The resulting contract will be Firm Fixed Price.

2. PERIOD OF CONTRACT.

a. The contract will be for a period of five (5) years, plus (4) four, (1) one year options to extend unless sooner terminated according to contract provisions. The effective date will be the date shown on the Acceptance and Award section of AAFES Form 4450-002.

b. The Exchange may elect to extend this contract beyond the initial contract period identified above. However, no representation that this contract will be extended beyond its original period is binding on EXCHANGE unless in writing signed by the contractor and Contracting Officer.

3. PRICE PROPOSALS.

a. Offeror must submit a price for all items according to Exhibit E, Proposal Submittal Requirements, Attachment E, Project Cost Worksheet.

b. Indicate prompt payment discount, volume discounts and any other discounts and/or allowances on Exhibit E, Project Cost Worksheet. Prompt payment discounts and/or Net 45 payment will be included in the evaluation of proposals. Even if not evaluated for award, all discount terms offered will become a part of any resulting contract.

c. If prices to others are subsequently reduced after contract award, the contractor must notify the contracting officer in writing. The prices set forth in the contract will then be reduced and the contract amended to maintain at least the same percentage below market prices as established at the time of submission of the contractors initial proposal.

d. Software/Maintenance/Support - Software and associated maintenance and support will be paid once the software has been implemented in the production environment and satisfactorily meets mutually agreed upon deliverables (i.e. functionality works and solution is stable).

e. Professional Services - Implementation services will be paid on a Firm Fixed Price (FFP) basis and only on a milestone completion basis, meaning that the Exchange will pay only when the contractor has satisfactorily completed mutually agreed upon payment milestones, as shall be defined in the Statement of Work as part of the contract awarded as the result of this RFP.

f. Additional Users and Modules - The Exchange will require “price protection” for a minimum of three (3) years from the effective date of the software license for additional Exchange users and modules that are listed in the proposal but are not initially purchased.

Schedule Page 2 of 5

4. EXCHANGE DELIVERY ORDERS. All acquisition of software licenses or related services/support under this contract shall be initiated by means of an Exchange delivery order which will include an attached Statement of Work, if applicable, clearly describing the services to be provided. The contractor will furnish the services in accordance with the delivery order requirements and subsequent attachments. The Exchange is obligated to purchase only those software products and related services actually ordered, received, and accepted.

5. INVOICING. The contractor will submit invoices per Exhibit C, Invoicing and Payment.

6. INSURANCE. Contractor will maintain in full force and effect during the period of the Contract at least the insurance coverage set out in Exhibit F, Insurance Requirements.

Contractor will be liable for damage, loss, or injury to property or persons resulting from acts or omissions of Contactor, his employees, or agents, whether or not covered by required insurance.

7. EXCHANGES’ ORACLE ADVANCED PROCUREMENT APPLICATION (OAPA).

Unless another clause within this contract states otherwise, most non-retail Exchange orders and agreements will be issued, received and processed through the OAPA. All Exchange suppliers are able to use this application at no charge. Access to this application requires a standard personal computer, an internet connection, and an invitation to register for iSupplier.

Since we have instituted OAPA, we need our suppliers to use this system to make the process work to its capability. Our non-retail product and service suppliers will use this application to receive purchase orders, agreements, respond to the Exchange Contracting Officer Requests for Information (RFI), Requests for Quotation (RFQ), Auctions and to communicate with the Exchange Contracting Officers. Suppliers will use the iSupplier module to submit change requests and to input advanced shipping notices (ASNs) so that the Exchange personnel can monitor the progress of these orders. You may contact the PZ Help Desk for more information at CPSupport@AAFES.com or speak to your Exchange Contracting Officer.

8. EVALUATION CRITERIA .

The Exchange will make an award to the responsible offeror whose offer conforms to the RFP and is most advantageous to the Exchange. Proposals will be evaluated on technical/business qualifications and price. The technical/business qualification factors will rank as the highest factors in this purchasing action and are more important than price, although price will also be important in the evaluation process. Within technical/business qualification, there are four subfactors. These are (1) functional & business requirements, (2) delivery of proposed solution,

(3) implementation methodology and (4) system integration ability. These subfactors are listed in order of importance. Generally, as proposals become more equal in their technical merit, the evaluated cost or price becomes more important. Technical/business qualification factors are detailed at Exhibit E, Proposal Submittal Requirements, of this RFP. Failure to respond to all of the evaluation criteria may result in offeror’s proposal being considered non-responsive and not further considered.

Schedule Page 3 of 5

9. GUIDELINES.

Offerors are highly discouraged from submitting proposals with exceptions to Exhibit A, IT General Provisions. Such proposals may be considered non-responsive with no obligation for the Exchange to evaluate.

This RFP is a request to purchase or otherwise acquire the rights to use software and professional services required to implement/train new users on the software.

In the event that the offeror utilizes another software firm or implementation firm to help deliver their proposed solution, it is understood that any subcontractor used in connection with the contract is the agent of the contractor and not the agent of the Exchange. The Exchange’s consent to or approval of any subcontract or subcontractor proposed by an offeror shall not create or purport to create any obligation of the Exchange to any subcontractor, or any form of contractual relationship or relationship of privity between the Exchange and the subcontractor. The successful offeror shall itself be solely responsible for the performance of all work set forth in any contract resulting from this RFP, and for compliance with the price and other terms provided in the contract. The successful offeror shall cause the appropriate provisions of its proposal and the contract to be inserted in all subcontracts.

The Exchange reserves the right to reconsider any proposal submitted at any stage of the procurement. It also reserves the right to meet with select offerors at any time to gather additional information. Furthermore, the Exchange reserves the right to delete or add functionality (i.e., modules and components) until the final contract signing.

All third-party solutions proposed as part of this package are subject to the same guidelines of this RFP. If the Exchange is not satisfied with the qualifications, cost, or experience of any third-party solution, it reserves the right to request that the offeror proposes different third party products or services.

Pricing must be submitted on a Firm Fixed Price (FFP) basis. For professional services, the Exchange compensates the vendor on the basis of major deliverables to be identified in the development of the statement of work.

This RFP, its general provisions, and the terms and conditions identified therein shall be incorporated in any contract awarded resulting from this RFP.

The Exchange reserves the right to cancel, in part or in its entirety, this RFP. If the Exchange cancels or revises this RFP, all offerors will be notified in writing by the Exchange.

The Exchange reserves the right to revise the RFP prior to the date that proposals are due. All sources solicited will be notified of revisions to the RFP. The Exchange reserves the right to extend the date by which the proposals are due.

This RFP does not commit the Exchange to award a contract, to defray any offeror’s costs incurred in the preparation of a proposal pursuant to this RFP, or to procure or contract for work. All proposals submitted in response to this RFP become the property of the Exchange and public records, and as such, may be subject to public review.

10. KEY PERSONNEL.

The Exchange requires assurances as to the consistency and quality of contractor staffing for its project. Key points of the Exchange’s key personnel provision include:

Schedule Page 4 of 5

The Exchange shall have the ability to interview and approve key personnel proposed by the contractor.

The Exchange shall have the right to determine key personnel no longer acceptable for performance of the Contract.

Contractor shall not remove key personnel from the project without prior concurrence of the Exchange.

Contractor shall replace any departed key personnel with a temporary replacement within forty-eight (48) hours.

Contractor shall provide a no-charge ramp-up period for any replacement key personnel. This ramp-up period shall be equal to eighty (80) hours for a replacement project manager and forty (40) hours for all other key personnel positions.

11. SUBMISSION OF PROPOSALS.

The Exchange requires both hard copies and a CD ROM copy of all required solicitation response documents with the Exchange form 4450-002 signed documents. Offeror shall provide separate, sealed, identified envelope/box per the instructions below. Do not submit proposal in three-ring binders; proposal are to be submitted with identifiable tabs and attached with bull clips.

a. Sealed Envelope #1: Provide two (2) copies and one CD Rom (with pricing) of each document as indentified below in one (1) sealed envelope.

Exchange Form 4450-002, Solicitation / Proposal / Award Attachment E, Project Cost Worksheet, Exhibit E, Proposal Submittal Requirements

b. Sealed Envelope #2: Provide five (5) hard copies and (1) one CD ROM (without pricing) of each document as indicated by the checked box below in one (1) sealed envelope.

Exhibit E, Proposal Submittal Requirements (except for Attachment E, Project Cost Worksheet, which is to be submitted in sealed envelope #1)

c. Each package shall identify the RFP number and due date/time for proposal receipt.

12. INQUIRIES . In an effort to maintain fairness in the process, inquiries concerning this procurement, including questions related to technical issues are to be directed to the issuing contracting officer through the following individual:

Contact: Tracy Whisenhunt Title: Contract Specialist Email: whisenhuntt@aafes.com

Schedule Page 5 of 5

All questions concerning the RFP must reference the RFP page number and section heading.

All questions must be received in writing by no later than the date indicated in RFP Schedule. Questions and answers affecting the content of this RFP will be sent to all sources solicited. Any officer, agent, or employee of the Exchange will NOT accept verbal questions about this RFP.

Offerors shall not contact any other Exchange associate other than specified personnel identified in this RFP, for meetings, conferences, or technical discussions related to the RFP.

Unauthorized contact of any personnel may be cause for rejection of the oferror’s RFP response.

13. ESTIMATED PROCUREMENT SCHEDULE . The estimated procurement schedule is listed below and is included for planning purposes only. The Exchange reserves the right to change the procurement schedule. If changes are made, representatives from each offeror or offeror who has been elevated to the current stage will be notified by the Exchange.

Estimated Procurement Schedule

04/20/12 Release draft RFP

05/04/12 Draft RFP response deadline

04/14/12 Release finalized RFP

06/11/12 RFP response deadline

09/04/12 Contract awarded / discovery begins

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EXHIBIT A

IT GENERAL PROVISIONS

MAY 11 2011

Solicitation EXCH-ITZ-10-018-11-005

Exhibit A – IT General Provisions Page 1 of 18

1. Legal Status (AUG 08)

2. Authority to Bind (NOV 95)

3. Oral Representations (JAN 94)

4. Contractor Forms (JAN 94)

5. Examination of Records (AUG 08)

6. Procurement Integrity (NOV 95)

7. Advertisements (AUG 08)

8. Indemnify and Hold Harmless (DEC 04)

9. Assignment (DEC 07)

10. Taxes (MAY 89)

11. Trademarks (OCT 96)

12. Mailing Lists (AUG 92)

13. Environmental Protection (MAR 94)

14. Prices (MAY 04)

15. Warranty (MAY 04)

16. Item Substitution and Variation in Quantity (OCT 96)

17. Acceptance (MAY 04)

18. Modifications and Additions (MAY 04)

19. Contractor Liability (MAY 04)

20. Accuracy of Data (MAR 94)

21. Latent Defects (MAY 04)

22. Contractor Personnel and Representatives (AUG 08)

23. Surveillance (JAN 94)

24. Non-Waiver of Defaults (SEP 91)

25. Withholding (SEP 94)

26. Defaults (OCT 96)

27. Termination by Notice (MAY 04)

28. Disputes (DEC 07)

29. Equal Employment Opportunity (OCT 98)

30. Affirmative Action for Disabled Veterans and

Veterans of the Vietnam Era (DEC 04)

31. Affirmative Action For Individuals with Disabilities

(DEC 09)

32. Convict Labor (SEP 89)

33. Drug-free Workplace (AUG 92)

34. Restrictions on Purchases of Foreign Goods (MAY

04)

35. Permits, Licenses and Applicable Laws

(DEC 04)

36. Payment by Electronic Funds Transfer (OCT 98)

37. Use of Contract by Other Federal Entities (DEC 09)

38. Trial Evaluations (DEC 04)

39. Date Compliant (DEC 07)

40. Governing Terms (DEC 04)

41. Non-Exclusive Agreement (DEC 04)

42. Confidentiality/Non-Disclosure (DEC 04)

43. Choice of Law and Forum (DEC 07)

44. Privacy Act (DEC 07)

45. Payment Card Industry (PCI) Compliance (OCT 10)

46. Performance (AUG 09)

47. Combating Trafficking in Persons (AUG 09)

48. Personal Identity Verification of Contractor Personnel

(MAY 11)

49. Data Rights (MAY 10)

50. UNSPSC Item Category Identifiers (AUG 09)

51. Green Clause (AUG 09)

IT GENERAL PROVISIONS EXHIBIT A

Solicitation EXCH-ITZ-10-018-11-005

Exhibit A – IT General Provisions Page 2 of 18

1. LEGAL STATUS (AUG 08).

The Army and Air Force Exchange Service (hereinafter and as known in commerce, the “Exchange”), including its activities, offices, and individual exchanges, is an integral part of the Departments of the Army and Air Force and an instrumentality of the United States Government. Exchange contracts are United States contracts;

however, they do not obligate appropriated funds of the United States except for a judgment or compromise settlement in suits brought under the provisions of the Contract Disputes Act of 1978, as amended, in which event the Exchange will reimburse the U.S. Government. Exchange procurement policy is established by applicable directives and instructions promulgated by the Department of Defense. The Federal Acquisition Regulation (FAR) does not apply to the Exchange.

2. AUTHORITY TO BIND (NOV 95).

a. “Contracting Officer” means a person authorized by the Commander, Army and Air Force Exchange Service to execute and administer contracts, purchase orders, or other agreements on behalf of the Exchange.

Only contracting officers may waive or change contract terms; impose additional contract requirements; issue cure, show-cause and termination notices; issue claims against contractors, and issue final decisions on contractor claims.

b. The contracting officer may authorize other Exchange and government officials to perform actions of an administrative nature, such as conducting inspections and audits; placing orders against existing contracts;

forwarding requests for contract changes to the contracting officer; collecting contract payments, and processing routine documents. These officials are not contracting officers, as defined in a. above.

c. The Exchange has no obligation to recognize or accept waivers or changes to this contract that result from the actions of officials other than the contracting officer. The contracting officer may deny claims based on such actions. Contractors' should refer questions concerning the authority of other Exchange or government officials to the contracting officer.

3. ORAL REPRESENTATIONS (JAN 94).

This contract represents the entire agreement of the parties. Any changes or amendments there to may not be recognized by the Exchange unless committed to writing and incorporated by reference into the contract by the contracting officer.

4. CONTRACTOR FORMS (JAN 94).

Exchange purchasing regulations require that Exchange forms and procedures be used exclusively for all contracts, purchase orders and other agreements. Except as authorized elsewhere in this contract, or as authorized in writing by the contracting officer and incorporated in the contract, the Exchange will not accept or be bound by any contractor forms or letters.

5. EXAMINATION OF RECORDS (AUG 08).

a. This clause applies if the amount of the contract exceeds $10,000 and the contract was entered into by means of negotiation. The contractor agrees that the contracting officer or his duly authorized representative will have the right to examine and audit the books and records of the contractor directly pertaining to the contract during the period of the contract and until the expiration of three years after the final payment under the contract. The contractor agrees to include this clause in all subcontracts that exceed $10,000.

b. “General Accountability Office” may be substituted for “contracting officer or his duly authorized representative” when the prospective contractor does not accept the standard wording of the examination clause.

c. Contracts awarded to foreign contractors may exclude the examination clause when its use is precluded by the laws of the country involved, subject to the approval of the servicing Exchange General Counsel (Exchange HQ and Exchange Europe). Contract files will be in such circumstances be documented to show the basis for exclusion of the clause.

Exhibit A – IT General Provisions Page 3 of 18

6. PROCUREMENT INTEGRITY (NOV 95).

a. By submission of an offer or performance of this contract, the offeror or contractor certifies with respect to this Exchange purchase action:

(1) that no discussion, offer or promise of future employment or business opportunity has nor will be made to the Exchange civilian or military personnel who personally and substantially participated in the purchase action;

(2) that no offer, promise or gift of any gratuity, entertainment, money, or other thing of value has nor will be made to any Exchange civilian or military personnel or any other employee of the United States Government or member of their family or household;

(3) that no information proprietary to other offerors or other purchasing information (offeror list, prices offered, technical evaluations or rankings, etc.) is sought or obtained until it is available to the public under the Exchange procedures.

(4) that no person or selling agency has been employed or retained to secure this contract for a commission, percentage, brokerage or contingent fee except bona fide employees or bona fide established commercial selling agencies retained by the contractor for the purpose of securing business.

b. Contractor certifies that no gratuities (entertainment, gifts, money, kickbacks or other thing of value) were nor will be solicited or accepted by the contractor, or any contractor representative, from any subcontractor or subcontractor representative, for the purpose of obtaining or rewarding favorable treatment in connection with this contract or any subcontract under it.

c. Contractor will report in writing to the Director, Loss Prevention Division, any possible violation of this clause when there are reasonable grounds to believe a violation may have occurred. The contractor will cooperate fully with any federal agency investigation of a possible violation of this clause.

d. For breach of any of these certifications, the Exchange may terminate this contract for default, and/or deduct from amounts due under this or other contracts, or charge contractor for, the total value of any contingent fee, gratuity or kickback or other loss to the Exchange arising out of the breach.

7. ADVERTISEMENTS (AUG 08).

Contractor will not represent in any manner, expressly or by implication, that products purchased under this contract are approved or endorsed by any element of the United States, including the Exchange. All contractor advertisements that refer to the Exchange or military exchanges will contain a statement that the advertisement was neither paid for nor sponsored, in whole, or in part, by the Exchange, the military exchange system, or the United States Government.

8. INDEMNIFY AND HOLD HARMLESS (DEC 04).

a. The contractor will indemnify, hold harmless the Exchange and all other agencies and instrumentalities of the United States, their agents, representatives, employees and customers from any and all judgments promulgated by a court of competent jurisdiction, and all charges and expenses incident thereto which arise out of the alleged or established violation or infringement of any patent, copyright or trademark rights asserted by any third party with regard to any product (to include hardware, software and firmware) or services provided by contractor. Contractor shall not be liable under this clause if the judgment is rendered pursuant to a settlement entered into on behalf of the Exchange by the United States Attorney or the Department of Justice, for reasons other than of any infringement of patent, copyright or trademark rights.

b. The Contractor shall have no obligation whatsoever for any claim, demand, suit, or action with respect to any modifications to Contractor’s product by or on behalf of the Exchange or any claim, demand, suit or action arising out of the unauthorized combination, operation or use of the product by the Exchange.

c. In the event that an injunction or order is issued by a court of competent jurisdiction against the Exchange’s use of any product provided by contractor under this contract, or if in contractor’s opinion the product provided under this contract is likely to become the subject of a claim or infringement of a copyright, trade secret or other proprietary right of a third party, Contractor shall have one of the following options to:

Exhibit A – IT General Provisions Page 4 of 18

(1) at its expense procure, for the Exchange’s benefit, the right to continue using the product;

(2) replace or modify the product at its expense so that it becomes noninfringing, unless such modification or replacement would adversely affect the specifications for the product or its use by the Exchange, or

(3) terminate the license for the affected product by 30 days written notice to the Exchange through the contracting officer.

d. If contractor selects option c(3), the Exchange shall be entitled to a refund for any license fees which the Exchange has already Paid, prorated on a 12-month basis, beginning the day the product was first licensed to or accepted by the Exchange, and the Exchange shall have no further obligation to pay fees for the terminated portion of the contract.

e. Contractor’s obligations under this clause are conditioned on the Exchange having provided written notice of any infringement claim to contractor, which notice in any event shall be given no later than the 30th business day after actual written notice of such claim has been received by the Exchange contracting officer. Contractor shall notify the contracting officer no later than the 30th business day after contractor receives written notice of any claim that could affect the Exchange’s right to use the product.

f. Contractor expressly agrees and acknowledges that, because the Exchange is a nonappropriated fund instrumentality of the United States and is sovereign immune to the same extent as the federal government, the Exchange is:

(1) not subject to suit in state court;

(2) is without authority to grant contractor the right to defend an infringement claim brought against the Exchange, and

(3) is defended by the United States Attorney for the district in which such claim is brought, or the Department of Justice if suit is brought in the United States Court of Federal Claims. The Exchange shall, to the extent permitted by the united States Attorney, the Department of Justice, and applicable federal laws and regulations, cooperate fully with Contractor in the defense of the claim and provide contractor reasonable access to the Exchange personnel and records.

g. This clause contains the Exchange’s exclusive remedy and Contractor’s entire liability for infringement.

The rights and obligations of the parties shall survive the expiration or other termination of this contract with respect to acts or events occurring or alleged to have occurred prior to termination of this contract, and is expressly made for the benefit of, and shall be enforceable by any or all of the indemnified persons.

9. ASSIGNMENT (DEC 07).

The Assignment of Claims Acts, 31 U.S.C. 3727 and 41 U.S.C. 15, are not applicable to amounts due under Exchange contracts. Contractor may not assign its rights or delegate its obligations under this contract, and the Exchange will neither consent to, nor recognize, any purported assignment. Contractor may request permission from the contracting officer to have contract payments forwarded to a third party.

10. TAXES (MAY 89).

Contractor assumes complete and sole liability for all federal, state and local taxes applicable to the property, income and transactions of the contractor. The prices charged the Exchange under this contract will be deemed to include all applicable taxes. The prices charged will not include any amount for taxes which are not applicable:

a. by reason of the Exchange's legal status as an instrumentality of the United States Government.

b. by reason of the Exchange's immunity from direct state or local taxation; or

c. by reason of federal state or local tax exemptions for sales to the Federal Government; or

d. otherwise, such as items purchased for export. It will be the sole responsibility of contractor to demonstrate, to the reasonable satisfaction of the contracting officer, the applicability and amount of any taxes which are included in the prices charged the Exchange. The contracting officer, upon request, will furnish additional documentation to support tax exemptions if required by an appropriate tax authority.

Exhibit A – IT General Provisions Page 5 of 18

11. TRADEMARKS (OCT 96).

The Exchange is the holder of numerous trademarks including, but not limited to, Exchange, PX and BX.

All Exchange trademarks are designated by the symbol, are legally registered and are the exclusive property of the Exchange.

12. MAILING LISTS (AUG 92).

Under no condition will contractor sell or otherwise disseminate name and address information on the Exchange customers to other persons or firms. Contractor agrees to restrict its use of such information to the performance of this contract.

13. ENVIRONMENTAL PROTECTION (MAR 94).

a. This clause shall apply to any contract in excess of $100,000, and indefinite quantity contracts estimated to exceed $100,000 in one year; however, it shall not apply to use of facilities located outside the United States or to contracts otherwise exempt in accordance with 40 CFR Part 15.

b. Unless this contract is exempt, by acceptance of this contract, contractor (and, where appropriate, subcontractor) stipulates:

(1) that any facility to be utilized in the performance of any nonexempt contract or subcontract is not listed on the EPA List of Violating Facilities as of the date of contract award;

(2) its agreement to comply with all requirements of Section 114 of the Air Act and Section 308 of the Water Act relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in sections 114 and 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder;

(3) that as a condition of award of contract, contractor shall promptly notify the contracting officer of the receipt of any communication from the Director, Office of Federal Activities, U.S. Environmental Protection Agency, or delegatee, indicating that a facility to be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities;

(4) its agreement to include the criteria and requirements in subparagraphs (1) through (4) in every nonexempt subcontract, and to take such actions the Government may direct as a means of enforcing such provisions.

14. PRICES (MAY 04):

The prices for products provided by Contractor in this Contract are hereby warranted by the Contractor to be comparable to, or more favorable to the Exchange than, the comparable prices and terms and conditions that have been offered by Contractor to any of its customers. If contractor offers to industry or government at large, price decreases on the products and services included in this contract, which become effective during the term of the contract, the price decreases will be passed on to the Exchange to any portion of contract performance not completed at time of implementation of the price decreases by contractor to the extent the decreased prices would be lower than the prices in this contract. Contractor will offer price decreases and technology upgrades by letter addressed to the contracting officer. If an offer is acceptable to the Exchange and does not require further negotiation, contractor agrees that the offer may be accepted by issuance of a unilateral contract amendment by the contracting officer, referencing contractor’s letter.

15. WARRANTY (MAY 04).

a. Contractor warrants for the specified warranty period from the date of final acceptance that products furnished under this contract will be free from defects in material and workmanship, that they will perform in accordance with Contractor’s published specifications, drawings or samples, and that Contractor will make all necessary adjustments, repairs and replacements to maintain all systems and components in such condition during the term of the warranty. The Contractor warrants that it has full ownership of equipment sold to the Exchange and that it has the right to license the software provided the Exchange. The Contractor will have no responsibility with respect to defects in the products occurring in whole or in substantial part by reason of

Exhibit A – IT General Provisions Page 6 of 18

(i) modifications of or enhancements to the product not supplied by Contractor

(ii) Exchange’ negligence or misuse of the product,

(iii) Exchange failure to follow corrective routines or operating instructions provided by Contractor or

(iv) any other causes external to the product not arising by reason of the fault or negligence of Contractor. If the Contractor is unable to restore the product to the condition warranted within a reasonable amount of time, the Exchange will be entitled to a refund of the purchase price paid upon prompt return of the product to Contractor. Warranty will survive acceptance by the Exchange of the products. The Contractor shall always be responsive to the warranty requirements of the Exchange. The Contractor shall, without additional charges, keep the products in good operating condition and shall bear all costs related thereto including, but not limited to: travel, labor, and documentation.

b. Contractor further represents and warrants that Contractor will use viral detection routines and any other commercially reasonable efforts to insure that the product is delivered to the Exchange free of any virus or other harmful programming code that may erase, replicate, transmit or activate itself without control of a person operating the system on which the product(s) resides.

c. In the event there is evidence reasonably tracing a virus contamination to the product provided under this contract, the Exchange will notify the Contractor. The Contractor will be liable for all costs incurred by the Exchange in removing the virus and correcting damaged products to include labor, repair costs and product replacement(s).

16. ITEM SUBSTITUTION AND VARIATION IN QUANTITY (OCT 96).

No substitution or variation in the quantity of any item called for by this contract will be accepted unless authorized by the contracting officer. If authorized, substitution will be accomplished by the contractor, by providing either a newly manufactured product, or by providing a product which is "other than new." If a newly manufactured product is offered, it is understood that generally the Exchange will accept such substitute product so long as the product is no greater in price, equal to or greater in function, and has no impact on compatibility over the product it is replacing. If it is "other than new," the product shall be warranted as new, and the previously stated provisions shall also apply.

17. ACCEPTANCE (MAY 04).

Hardware, software and/or services furnished under terms of this contract are subject to inspection and acceptance testing in accordance with procedures provided in this contract. Acceptance will occur after product successfully completes acceptance testing provided for in this agreement and the product has performed in accordance with the published specifications for the time period provided for in this agreement.

For any maintenance, support, or other service product for which acceptance testing is not required, the acceptance date will be the first day of the applicable maintenance, support, or service period, as specified in this agreement. In no event shall use of any product by the Exchange during acceptance testing constitute acceptance of any product by the Exchange.

18. MODIFICATIONS AND ADDITIONS (MAY 04).

a. Except as otherwise specifically provided in this contract, all changes, modifications, additions or deletions to this contract must be prepared in writing as formal amendments signed by both parties and approved in accordance with provisions of applicable regulations.

b. UNILATERAL AMENDMENTS: The contracting officer may make unilateral amendments to the contract to incorporate administrative changes, provided such changes are within the general scope of the contract and the changes have no cost impact on the contractor. The contracting officer may make unilateral amendments to the contract cost prices and/or other changes when such amendments incorporate contractor’s written requests for revision.

Exhibit A – IT General Provisions Page 7 of 18

19. CONTRACTOR LIABILITY (MAY 04).

In addition to the liabilities specifically provided for in other clauses, contractor will be liable as follows in the event contractor fails to fully and timely perform in accordance with all contract provisions:

a. Incidental damages, including expenses reasonably incurred in inspection, receipt, packing, rejection or screening of goods in lieu of rejection, care and custody of goods rightfully rejected, transportation, and any other reasonable expense incident to contractor's failure to fully and timely perform in accordance with all contract provisions.

b. Contractor will not be liable for consequential damages except in the case of illicit or disabling codes up to the total contract value.

c. Contractor will not be liable for incidental damages if the failure to perform arises out of causes beyond the control and without the fault or negligence of the contractor and any subcontractors and suppliers. Such causes may include acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In such case, contractor must provide prompt written notice to the contracting officer; the contracting officer, may accept late, partial or substituted performance, or may terminate the contract in whole or in part effective immediately upon receipt of written notice by contractor.

20. ACCURACY OF DATA (MAR 94).

Contracts awarded by the Exchange are based, in part, upon the information submitted by the offeror in their proposal. If errors are discovered after the contract award in data submitted by the offeror (i.e., shipping weights and dimensions, shipping points, etc.), the Exchange reserves the right to charge-back to the contractor excess costs incurred because of its reliance on the faulty data.

21. LATENT DEFECTS (MAY 04).

Contractor has no time limit warranty on latent defects.

a. Any item determined to have a latent defect(s) may be returned to the contractor for prompt replacement, or at the contractor's option, for refund of the original purchase price.

b. Contractor will be liable for costs and losses incurred by the Exchange in connection with the defective item.

c. In case of refund, the contractor will be liable to the Exchange for the additional costs of reprocurement (if any).

d. In no event, will the liability of contractor for costs and losses (under paragraph b. above), and for reprocurement (under paragraph c. above) exceed an amount equal to the total contract value. For example, if the total contract value was $100,000, the costs, losses and reprocurement costs may not exceed $100,000.

e. The provisions in this clause do not affect the rights or obligations of either party, as they may be provided for in other portions of this contract or otherwise under applicable law.

22. CONTRACTOR PERSONNEL AND REPRESENTATIVES (AUG 08).

a. The contractor will discontinue using any individual in Exchange facilities upon contracting officer's written notice that the individual is not acceptable for performance under this contract. Contractor will not use any such person to perform other Exchange contracts without the prior written consent of the contracting officer.

b. The contractor will not employ any individual to work in Exchange facilities whom an Exchange contracting officer has determined unacceptable under any other Exchange contract without the prior written consent of the contracting officer.

c. Contractor personnel will abide by applicable regulations and directives and conduct themselves so as not to reflect discredit on the Exchange.

d. Contractor will not represent himself/herself to be an agent or representative of the Exchange, another instrumentality, or an agency of the United States.

Exhibit A – IT General Provisions Page 8 of 18

23. SURVEILLANCE (JAN 94).

a. The Exchange may perform electronic or other types of…