Recovery F09SOL00029 #0833105 NZP.pdf

SOLICITATION, OFFER,

AND AWARD

2. TYPE OF SOLICITATION

6. PROJECT NO. 4. CONTRACT NO. 5. REQUISITION/PURCHASE REQUEST NO.

PAGE OF PAGES

7. ISSUED BY CODE 8. ADDRESS OFFER TO

SOLICITATION

(Construction, Alteration, or Repair)

1. SOLICITATION NO. 3. DATE ISSUED

IMPORTANT -- The "offer" section on the reverse must be fully completed by offeror.

9.

INFORMATION

a. NAME b. TELEPHONE NO. (Include area code) (NO COLLECT CALLS)

NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder."

CALL:

FOR

SEALED BID (IFB)

NEGOTIATED (RFP)

SMITHSONIAN INSTITUTION

P.O. BOX 37012

MRC 1200

Washington DC 20013-7012

OCON

Melissa Howard 202-633-7268

OFEO #0833105

x 04/17/2009

F09SOL00029

10. THE GOVERNMENT REQUIRES PERFORMANCE OF THE WORK DESCRIBED IN THESE DOCUMENTS (Title, identifying no., date)

This procurement is a Total Small Business Set-Aside for a group of Smithsonian

Institution Small Business ID/IQ contractors.

The successful contractor shall provide all supervision, labor, material and equipment for Replacement of Five (5) Medium Voltage Interrupter Selector Switches and Seven (7) Transformers in Six (6) Buildings located at the Smithsonian

Institution's National Zoological Park, Washington, DC, in accordance with Project

No. 0833105 Drawings and Specifications dated February 20, 2009, incorporated herein by reference, issued by the Smithsonian's Office of Facilities Engineering &

Operations. The North American Industry Classification System (NAICS) Code is

236220 and the annual size standard is $33.5 million. The Smithsonian Institution intends to award a firm fixed price construction contract from this solicitation to the offeror whose price is most advantageous. The estimated value of this project is between $500,000 to $2,000,000. Davis Bacon Wage Determinations in effect for

Washington, DC, are applicable.

This brief description should in no way be construed as a limitation of the contractor's obligation to comply with the contract requirements.

11. The Contractor shall begin performance

12a. THE CONTRACTOR MUST FURNISH ANY REQUIRED PERFORMANCE AND PAYMENT BONDS?

award, notice to proceed. The performance period is mandatory negotiable. (See ________________________________________________.)

13. ADDITIONAL SOLICITATION REQUIREMENTS:

a. Sealed offers in original and is not required.is, b. An offer guarantee

c. All offers are subject to the (1) work requirements, and (2) other provisions and clauses incorporated in the solicitation in full text or by reference.

(date). If this is a sealed bid solicitation, offers will be publicly opened at that time. Sealed envelopes containing offers shall be marked to show the offeror's name and address, the solicitation number, and the date and time offers are due.

d. Offers providing less than

12b. CALENDAR DAYSYES NO

(If "YES", indicate within how many calendar days after award in Item 12b.)

10 120 calendar days and complete it within ________________ ________________ calendar days after receiving

Specs., Pg. 6, Sec. 3

05/18/2009

NSN 7540-01-155-3212

x x x x copies to perform the work required are due at the place specified in Item 8 by _____________ ___________________ (hour) local time calendar days for Government acceptance after the date offers are due will not be considered and will be rejected. _________________

STANDARD FORM 1442 (Rev. 4-85)

Prescribed by GSA

FAR(48 CFR) 53.236-1(d)

17. The offeror agrees to perform the work required at the prices specified below in strict accordance with the terms of this solicitation, if this offer is accepted by the Government in writing within ____________________ calendar days after the date offers are due. (Insert any number equal to or greater than the minimum requirement stated in item 13d. Failure to insert any number means the offeror accepts the minimum in item 13d.)

14. NAME AND ADDRESS OF OFFEROR (Include ZIP Code) 15. TELEPHONE NO. (Include area code)

16. REMITTANCE ADDRESS (Include only if different than item 14.)

CODE FACILITY CODE

AMOUNTS

18. The offeror agrees to furnish any required performance and payment bonds.

19. ACKNOWLEDGEMENT OF AMENDMENTS

OFFER (Must be fully completed by offeror)

(The offeror acknowledges receipt of amendments to the solicitation -- give number and date of each)

AMENDMENT NO.

DATE.

20a. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER (Type or print) 20b. SIGNATURE 20c. OFFER DATE

AWARD (To be completed by Government)

21. ITEMS ACCEPTED:

22. AMOUNT 23. ACCOUNTING AND APPROPRIATION DATA

24. SUBMIT INVOICES TO ADDRESS SHOWN IN

(4 copies unless otherwise specified)

ITEM 25. OTHER THAN FULL AND OPEN COMPETITION PURSUANT TO

26. ADMINISTERED BY CODE 27. PAYMENT WILL BE MADE BY

CONTRACTING OFFICER WILL COMPLETE ITEM 28 OR 29 AS APPLICABLE

(Contractor is required to sign this document and return (Contractor is not required to sign this document.)

Your offer on this solicitation is hereby accepted as to the items listed. This award consummates the contract, which consists of (a) the Government solicitation and your offer, and (b) this contract award.

No further contractual document is necessary.

30a. NAME AND TITLE OF CONTRACTOR OR PERSON AUTHORIZED TO SIGN (Type or print) 31a. NAME OF CONTRACTING OFFICER (Type or print)

30b. SIGNATURE 30c. DATE 31b. UNITED STATES OF AMERICA 31c. DATE

BY

2PAGE OF

Robert Fraga

28. NEGOTIATED AGREEMENT 29. AWARD

Contractor agrees to furnish and deliver all items or perform all work requirements identified on this form and any continuation sheets for the consideration stated in this contract. The rights and obligations of the parties to this contract shall be governed by (a) this contract award, (b) the solicitation, and (c) the clauses, representations, copies to issuing office.)

10 U.S.C. 2304(c) 41 U.S.C. 253(c)

STANDARD FORM 1442 (REV. 4-85) BACK

Smithsonian Institution Solicitation No.

F09SOL00029 – Replace Medium Voltage Switchgear and Transformers @ NZP (0833105)

Page | 3

Section B - Supplies or Services/Prices/Costs

Section C -Description/Specifications/Statement of Work

Section D - Packaging and Marking

Section E - Inspection and Acceptance E. SI-0057 Inspection E.1. 52.246-12 - Inspection of Construction., As prescribed in 46.312, is included by reference E.2. SI-0058 Acceptance

Section F - Deliveries and/or Performance F.1. SI-0080 Period of Performance F.2. SI-0083 Delivery Point

Section G - Contract Administration Data G. SI-0059 Contract Management G.2. SI-0060 Contracting Officer G.3. SI-0061 Contracting Officer's Technical Representative (COTR) (Apr 1988) G.4. SI-0062 Authorities G.5. SI-0063 Key Personnel and/or subcontractors G.6. SI-0065 Progress Payments G.7. SI-0066 Invoices

Section H - Special Contract Requirements H. Bonds & Insurance-Construction H.2. SI-0001 Order of Precedence H.3. SI-0010 Use of Smithsonian Name (Jun 2000) H.4. SI-0067 Responsibility of the Contractor H.5. SI-0068 Restriction Against Disclosure H.6. SI-0069 Contractor's Authorized Representative H.7. SI-0070 Dissemination of Information H.8. SI-0071 Responsibility for Smithsonian Property H.9. SI-0072 Nonpayment for Additional Work H.10. SI-0073 Indemnification H.11. SI-0074 Specific Insurance Requirements H.13. SI-0064 Incorporation of Contractor's Proposal

Section I - Contract Clauses I.8. 52.216-24 Limitation of Government Liability. (APR 1984) I.11. 52.225-9 Buy American Act—Construction Materials. As prescribed in 25.1102(a), insert the following clause:

(End of Clause) I.12. 52.225-11 Buy American Act—Construction Materials under Trade Agreements I.39. SI-0003 Definitions (Apr 1988) I.40. SI-0005 Interest on Payments I.41. SI-0006 Disputes I.42. SI-0008 Contracting Officer's Technical Representative (Apr 1988) I.43. SI-0009 Information, Services and Rights of the Smithsonian (Apr 1988) I.44. SI-0011 Notice of Deviation in Clauses (Jun 2000) I.45. SI-0012 Specialist (Jun 2000) I.46. SI-0013 Subcontractors (Jun 2000) I.47. SI-0014 Bid Guarantee and Bonds (Jun 2000) I.48. SI-0015 Contractor's Liability Insurance (Jun 2000) I.49. SI-0016 Contractor's Property Insurance (Jun 2000) I.50. SI-0017 Insurance (Jun 2000) I.51. SI-0018 Calculation of Equitable Adjustment for Differing Site Conditions (Jun 2000)

Page | 4

I.52. SI-0019 Asbestos-Containing Materials (Jun 2000) I.53. SI-0021 Execution, Correlation and Intent (Jun 2000) I.54. SI-0022 Ownership and Use of Documents (Jun 2000) I.55. SI-0023 Shop Drawings, Coordination Drawings and Schedules (Jun 2000) I.56. SI-0024 Project Schedules (Jun 2000) I.57. SI-0025 Commencement, Prosecution, and Completion of Work (Jun 2000) I.58. SI-0026 Supervision and Construction Procedures (Jun 2000) I.59. SI-0027 Superintendent (Jun 2000) I.60. SI-0028 Coordination of the Work (Jun 2000) I.61. SI-0029 Construction Procedures (Jun 2000) I.62. SI-0030 Availability and Use of Utility Services (Jun 2000) I.63. SI-0031 Use of Site (Jun 2000) I.64. SI-0032 Protection of Existing Vegetation, Structures, Equipment, Utilities and Improvements (Jun 2000) I.65. SI-0033 Smithsonian Institution's Right to Clean Up (Jun 2000) I.66. SI-0034 Conditions Affecting the Work (Jun 2000) I.67 SI-0035 Work by the Smithsonian Institution or by Separate Contractors (Jun 2000) I.68. SI-0036 Smithsonian Institution's Right to Stop or to Suspend the Work (Jun 2000) SI-0037 Smithsonian Institution's Right to Carry Out the Work (Jun 2000) SI-0038 Smithsonian Institution Inspection and Acceptance (Jun 2000) SI-0039 Final Inspection and Tests (Jun 2000) SI-0040 Warranty Definitions SI-0041 Additional Warranties and Guarantees (Jun 2000) SI-0042 Subcontractor Eligibility (Jun 2000) SI-0043 Taxes (Jun 2000) SI-0044 Equitable Adjustments (Jun 2000) SI-0045 Pricing of Adjustments (Jun 2000) SI-0046 Right to Audit and Preservation of Records (Jun 2000) SI-0047 Payments and Completion (Jun 2000) SI-0048 Delays and Extensions of Time (Jun 2000) SI-0049 Non-Compliance with Contract Requirements (Jun 2000) SI-0050 Termination for Convenience of the Smithsonian Institution (Jun 2000) SI-0051 Uncovering of Work (Jun 2000) SI-0052 Correction of Work (Jun 2000) SI-0075 Termination-Erroneous Representation Concerning Crimes, Debarments, Suspensions and Defaults (Apr 1984) SI-0076 Brand Name or Equal SI-0077 Furnishing Information and Records SI-0079 Certification of Requests for Adjustment or Relief Exceeding $100,000 552.211-71 Standard References (Sep 1999) 552.236-76 Measurements (Apr 1984) 552.236-80 Heat (Apr 1984)

Section J -List of Documents, Exhibits and Other Attachments J. SI-0089 List of Attachments

Section K – Representations, Certifications and Other Statements of Respondents

Section L - Instructions, Conditions, and Notices to Offerors 52.233-2 Service of Protest. (SEP 2006)

Section M - Evaluation Factors for Award M. SI-0090 Evaluation Factors

Page | 5

Part I – The Schedule

Section A – Solicitation/Contract Form

A. (Pages 1 and 2)

Section B - Supplies or Services/Prices/Costs

B. The successful offeror shall provide all supervision, labor, material and equipment to perform the services required by the contract awarded from this solicitation for the Replacement of Five (5) Medium Voltage Interrupter Selector Switches and Seven (7) Transformers, in Six (6) Buildings located at the Smithsonian Institution's National Zoological Park, Washington, DC, in accordance with Project No. 0833105 Drawings and Specifications dated February 20, 2009, incorporated herein by reference, issued by the Smithsonian's Office of Facilities Engineering & Operations.

B.1. Offerors shall provide pricing for each item listed:

B.1.1. Replace Medium Voltage Switchgear and Transformers at NZP, Project Number 0833105

(Express price in words and figures)

B.2. All work shall be performed in strict accordance with the plans and specification as shown or as may be changed by modification issued by the Contracting Officer. No deviations are permitted unless a change notice is issued and approved by the Smithsonian Institution.

Section C -Description/Specifications/Statement of Work

(See CD - Drawings and Specs. - provided with this solicitation)

C. The successful offeror shall provide all necessary supervision, labor, material and equipment to complete the requirements contained in the plans and specifications issued by the Office of Facilities Engineering and Operations (OFEO) for project number 0833105 - Replace Medium Voltage Switchgear and Transformers at the Smithsonian Institution’s National Zoological Park, Washington, DC.

Section D - Packaging and Marking

D – Reserved

Section E - Inspection and Acceptance

E. SI-0057 Inspection

(a) Upon proper notice and during normal working hours, the Smithsonian Institution reserves the right to perform any inspections and tests as deemed necessary to assure that the Contractor is performing in accordance with the terms and specifications as set forth herein.

(b) Inspection may be at the Contractor's place of business or at any location where work is being performed in conjunction with this contract.

(c) Inspection by the Smithsonian Institution shall not relieve the Contractor of responsibility for any or all quality control aspects during the life of the contract. This shall include quality control for items covered by this contract that may be subcontracted.

Page | 6

E.1. 52.246-12 - Inspection of Construction., As prescribed in 46.312, is included by reference.

E.2. SI-0058 Acceptance

(a) The supplies and services rendered under this contract will be accepted and approved by the Contracting Officer or a designated representative thereto. Such approval will indicate acceptability to the Smithsonian Institution of performance in accordance with the terms and conditions of this contract, and will be subject to applicable warranties. The Smithsonian Institution reserves the right to reject work not conforming to prescribed contract requirements.

(b) Neither the Smithsonian Institution's reviews, approval, or acceptance of services and/or supplies, nor payment for any of the services or supplies required under this contract shall be construed to operate as a waiver of action arising out of the performance of this contract. Furthermore, the Contractor shall be and remain liable to the Smithsonian Institution in accordance with applicable law for all damages to the Smithsonian Institution caused by the Contractor's negligent performance of any of the supplies or services furnished under this contract.

(c) Acceptance by the Smithsonian Institution does not relieve the Contractor of responsibility for correction of errors or omissions that may arise after such acceptance if the errors and omissions are clearly a fault in Contractor performance.

Section F - Deliveries and/or Performance

F.1. SI-0080 Period of Performance

(a) The contract shall become effective upon the signed execution of the contract by both parties and a notice to proceed (NTP) issued by the Contracting Officer.

F.1.1. The period of performance is one hundred twenty (120) calendar days, to include all project close-out activities.

F.2. SI-0083 Delivery Point

F.2.1. Delivery(ies) shall be made to the NZP, 3000 Block of Connecticut Avenue, NW, Washington, DC, 20008.

Section G - Contract Administration Data

G. SI-0059 Contract Management

G.1. Notwithstanding the Contractor's responsibility for total management during the performance of this contract, the administration of the contract will require maximum coordination between the Smithsonian and the Contractor.

The following individuals will be the Smithsonian points of contact during the performance of the contract.

G.2. SI-0060 Contracting Officer

G.2.1. All contract administration will be effected by the Contracting Officer. Communications pertaining to contractual administrative matters will be addressed to the Contracting Officer. No changes in or deviation from the scope of work shall be effected without a written modification to the contract executed by the Contracting Officer authorizing such changes.

G.3. SI-0061 Contracting Officer's Technical Representative (COTR) (Apr 1988)

G..3.1. The Director, Office of Facilities Engineering and Operations (OFEO) or and authorized representative, shall act on behalf of the Contracting Officer in the administration of an awarded contract with regard to the following:

http://www.arnet.gov/far/current/html/Subpart%2046_3.html#wp1069873�

Page | 7

1. Resolution of issues that may arise between the Contractor and the Smithsonian Institution in connection with such matters as acceptability of workmanship and other technical requirements;

2. Evaluation on an overall basis of the acceptability of workmanship and Contractor's compliance with technical requirements; and

3. The approval and acceptance of work performed under this contract.

G.3.2. This delegation does not authorize the modification of any of the contract's provisions, terms or conditions. All authorities not herein delegated are reserved to the Contracting Officer.

G.3.3. The Contractor shall make available such records, reports and facilities as may be required to carry out this assignment.

G.4. SI-0062 Authorities

G.4.1. The Contractor is advised that only the Contracting Officer can change or modify the terms of this contract or take any other action which obligates the Smithsonian and then such action must be set forth in a formal modification to the Contract. The authority of the COTR is strictly limited to the specific duties set forth in her letter of appointment, a copy of which will be furnished the Contractor. Contractors who rely on direction from persons other than the Contracting Officer (or a COTR acting within the strict limits of his/her responsibilities as set forth in his/her letter of appointment) do so at their own risk and expense, as such actions do not bind the Smithsonian contractually. All questions concerning the authority of a Smithsonian employee to direct the Contractor contractually should be referred to the Contracting Officer.

G.5. SI-0063 Key Personnel and/or subcontractors

G.5.1. The Contractor shall include the key personnel/company and/or subcontractors to be assigned under this contract:

NAME/COMPANY LABOR/ SUBCONTRACT CATEGORY

G.5.2. The persons named above are considered key personnel. The Contractor shall give at least 14 calendar days advance notice if any of these persons are to be removed or diverted from this contract, and shall supply written justification as part of this notice, and shall name the proposed substitute or replacement; but the Contractor will not remove or divert such persons unless authorized by written consent of the Contracting Officer.

G.5.3. General Approval. All Contractor personnel assigned to this contract are subject to Smithsonian review in accordance with the defined labor categories herein. Contractor personnel found unacceptable by the Smithsonian at any time shall be removed from performing under this contract within 14 calendar days after notification. Such notification shall be delivered in writing by the Contracting Officer to the Contractor.

G.6. SI-0065 Progress Payments

G.6.1. The Contractor may submit invoice(s) to the Contracting Officer's Technical Representative, Smithsonian

Institution, not more frequently than monthly for work performed and accepted. Progress payments, when

Page | 8 applicable, shall be based on a percentage of completion less 10% retainage. The Contractor shall submit a separate monthly invoice when requesting payment. The ten percent retainage will be held until the final acceptance of all effort within each Phase.

G.7. SI-0066 Invoices

G.7.1. The Contractor shall submit all invoices in triplicate to the COTR. Invoices shall include the awarded contract number, project number, project description, name address and phone number of a contact to resolve invoice discrepancies and sent to the following:

Smithsonian Institution

Office of the Director, OFEO PO Box 37012, MRC 511 Washington, DC 20013-7012

Note: The Prompt Payment Act, P.L. 97 177, (31 U.S.C. Section 1801, )as Amended, is not applicable to the Smithsonian Institution .However, the Smithsonian Institution shall take all reasonable measures to ensure that payments for invoices properly documented and submitted shall be paid within 30 day from receipt of approved appropriate invoices by the COTR.

Section H - Special Contract Requirements

H. Bonds & Insurance-Construction

H.1. Contractor must submit approved 100% Performance/and Payment Bonds within ten (10) days of contract award.

H.1.1. Certificates of Insurance as described herein must be submitted prior to work commencing on

Smithsonian Institution property.

H.2. SI-0001 Order of Precedence

H.2.1. In the event of an inconsistency between provisions of the Solicitation, the inconsistency shall be resolved by giving precedence in the following order:

1. The Schedule.

2. Solicitation, Instructions, and Conditions.

3. Amendments to the Solicitation.

4. Contract Clauses.

5. Specifications.

6. The Drawings: large scale details, small-scale details, standard size plans, sections and elevation drawings.

7. Other Documents, Exhibits, and Attachments.

8. Other Provisions of the Solicitation, whether incorporated by reference or otherwise inferred by standard practice.

9. The Offeror's Proposal.

H.3. SI-0010 Use of Smithsonian Name (Jun 2000)

Page | 9

H.3.1. It is recognized and acknowledged that Contractor shall have no right to use the name "Smithsonian" or "Smithsonian Institution", or the name of any Smithsonian Museum or part thereof, including the Facilities, in connection with any of its own advertising, marketing or promotion. However, any marketing or promotional programs concerning the Smithsonian or the Project shall be submitted to the Smithsonian for review and approval prior to any implementation thereof. The Smithsonian may withhold any approval required hereunder as it wishes.

H.3.2. The Prime Contractor shall be responsible for compliance by any subcontractor or supplier or lower tier subcontractor or lower tier supplier with this clause. After award of the contract and upon request of the Contracting Officer, the Prime Contractor shall deliver a written statement acknowledging that this clause has been included in contracts with all subcontractors and suppliers.

H.4. SI-0067 Responsibility of the Contractor

H.4.1. The Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by the Contractor under this contract. The Contractor shall without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications and other services.

H.4.2. Neither the Smithsonian's review, approval or acceptance of nor payment for, the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract and the Contractor shall be and remain liable to the Smithsonian caused by the Contractor's performance of any of the services furnished under this contract.

H.4.3. The rights and remedies of the Smithsonian provided for under this contract are in addition to any other rights and remedies provided by law.

H.4.4. If the Contractor is comprised of more than one legal entity, each such entity shall be jointly and severally liable here under.

H.5. SI-0068 Restriction Against Disclosure

H.5.1. The Contractor agrees, in the performance of this contract to keep any information gathered or analyzed in the course of this contract in the strictest confidence, said information being the sole property of the Smithsonian Institution. The Contractor also agrees not to publish, reproduce or otherwise divulge such information in whole or in part, in any manner or form, nor to authorize or permit others to do so. The Contractor shall take such reasonable measures as are necessary to restrict access to such information to perform the work provided herein, i.e., on a "need to know" basis, and shall immediately notify, in writing, the Contracting Officer's Technical Representative named herein, in the event that he determines or has reason to suspect a breach of this requirements.

H.6. SI-0069 Contractor's Authorized Representative

H.6.1. The following person shall be contacted in the event of award for prompt contract notification and administration concerning specifications, schedules and other necessary contract matters:

(Name) ___________________________________________

(Title) ___________________________________________

(Street Address) ___________________________________

(City, State & Zip) _________________________________

(Telephone & Facsimile No.) ________________________

(E-mail address) ___________________________________

Page | 10

H.7. SI-0070 Dissemination of Information

H.7.1. There shall be no dissemination or publication of information, except between the Contractor and any subcontractors, of information developed under this contract or any task orders awarded under the terms of this contract or contained in reports to be furnished pursuant to this contract without the prior written approval of the Contracting Officer.

H.8. SI-0071 Responsibility for Smithsonian Property

H.8.1. The Contractor assumes full responsibility for and shall indemnify the Smithsonian for any and all loss of damage of whatsoever kind and nature to any and all Smithsonian property, including any equipment, supplies, accessories, or parts furnished, while in his custody and care for storage, repairs, or services to be performed under the terms of this contract, resulting in whole or in part from the negligent acts or omissions of the Contractor, any subcontractor, or any employee, agent, or representative of the Contractor or subcontractor.

H.9. SI-0072 Nonpayment for Additional Work

H.9.1. Any additional services or a change to work specified which may be performed by the Contractor, either at his own volition or at the request of an individual other than a duly appointed Contracting Officer except as may be explicitly authorized in this contract, are not authorized and will not be paid for. Only a duly appointed Contracting Officer is authorized to change the specifications, terms, and conditions in this contract.

H.10. SI-0073 Indemnification

H.10.1. Contractor shall be responsible for all damage and expense to person(s) or property caused by its negligent acts and those of its subcontractors, agents or employees, in connection with the work and services performed under this contract. Contractor shall indemnify, hold harmless and defend the Smithsonian Institution, its museums, bureaus, its Regents, officers, agents, employees and the U.S. Government from and against all claims, and liability (including judgments, settlements, statutory liability under Workers Compensation laws), and expenses (including attorneys fees) for any damages, expenses, acts and/or omissions of the Contractor, its agents, subcontractors or employees, related directly or indirectly to any aspect of this contract or performance of work hereunder, including claims and liability for injury to or death of any third party or of Contractor's, agents, subcontractors or employees.

H.10.2. Contractor shall be liable for all damages, costs and expense incurred by the Smithsonian Institution in the construction of the Project(s) including, but not limited to, damages, costs and expenses resulting from claims brought against the Smithsonian Institution by the construction contractor(s) caused by the failure of Contractor to perform the work and services under this contract with the same degree of standard of care and skill normally expected of and provided by consultants in the performance of the same or similar work and services to be provided under this contract.

H.10.3. Acceptance of the work and services by the Smithsonian shall not waive any of the rights of the Smithsonian or release the Contractor from any liability, responsibility or duty contained herein.

H.11. SI-0074 Specific Insurance Requirements

H.11.1. Contractor shall maintain the insurance policies set forth below, covering the term of the contract, with carriers that are acceptable to the Smithsonian Institution. If policies are on a "claims made" basis, Contractor must continue coverage for at least three (3) years after it completes all activities related to this contract. Contractor shall provide Smithsonian Institution with a Certificate of Insurance evidencing the required coverages, at least fourteen (14) days prior to commencement of performance of this contract. Contractor agrees that it shall notify the Smithsonian Institution, in writing, at least thirty (30) days in advance of any material change to the scope or limits of insurance required by this provision. Contractor shall disclose to Smithsonian the full limits of all insurance policies on the required certificates of insurance, including any umbrella and/or excess liability policies.

H.11.2. Contractor shall name the Smithsonian Institution and the United States of America as ADDITIONAL

Page | 11

INSUREDS to the Commercial General Liability and Automobile Liability policies and shall provide other policies as listed below:

(a) Commercial General Liability: Contractor shall maintain Commercial General Liability or comparable broad form liability coverage including standard (ISO Form) coverage for 1) bodily injury, property damage, products and completed operations and contractual liability; and 2) advertising injury and personal injury pertaining to all activities performed by Contractor as part of this contract. Minimum Per Occurrence Limit: $5,000,000 (five million dollars)

(b) Professional Liability Insurance coverage to include coverage for errors and omissions of the Contractor, its subcontractor(s), agents and employees. Minimum Per Claim Limit: $2,000,000 (two million dollars)

(c) Automobile Liability: Contractor shall maintain Business Automobile liability coverage including standard (ISO Form) coverage for 1) bodily injury, 2) property damage. Minimum Per Occurrence Limit: $2,000,000 (two million dollars)

(d) Worker's Compensation: Contractor shall maintain Worker's Compensation coverage which meets statutory limits of the jurisdiction where the work will be performed.

(e) Subcontractor(s): Contractor shall require its subcontractor(s) that perform work under this contract to carry the same insurance limits Contractor must carry under this contract, and to provide a Certificate of Insurance naming the Smithsonian Institution and United States of America as ADDITIONAL INSUREDS.

(f) Contractor may meet the insurance requirements through separate, combination, or package policies if those policies meet the required limits and scope of coverage. Umbrella and/or excess policy limits may be accepted to meet the required limits and scope of insurance.

(g) The insurance requirements provided herein are the Contractor's minimum requirements and shall not be considered indicative of the ultimate amounts and types of insurance needed by the Contractor. Neither failure to comply nor full compliance with the insurance provisions of this Contract shall limit or relieve the Contractor from the requirement to indemnify the Smithsonian Institution nor from other obligations under this contract.

H.12. Federal Tort Claims Act: Contractor is hereby on notice that the Smithsonian Institution falls within the purview of the Federal Tort Claims Act (28 U.S.C. §2671-2680). As such, the exclusive remedy for claims against Smithsonian for bodily injury, death, and property damage due to negligence of Smithsonian or its employees is the Federal Tort Claims Act; the General Counsel of Smithsonian is authorized to settle all claims against the United States (Smithsonian Institution) for damage to property, personal injury, or death caused by the negligent act or failure to act of a Smithsonian employee in the course of his/her employment cognizable under the Federal Tort Claims Act, as amended; and in some instances, this may be the exclusive remedy.

H.13. SI-0064 Incorporation of Contractor's Proposal

H.13.1. It is understood and agreed that the Contractor shall, in meeting the requirements of the contract, perform the work in accordance with his/her proposal to the Smithsonian Institution for services, dated [insert proposal date]; however, to the extent that any provisions of the articles set forth herein are in conflict or inconsistent with any provisions of said proposal, the provisions of the articles of this contract shall be controlling and shall supersede the provisions of said proposal.

Part II – Contract Clauses

Section I - Contract Clauses

I. 52.211-10 Commencement, Prosecution, and Completion of Work. (APR 1984)

I.1. The Contractor shall be required to (a) commence work under this contract within ten (10) calendar days after the date the Contractor receives the notice to proceed (NTP), prosecute the work diligently, and complete the entire work ready for use not later than 360 days. All contract work, clean-up, as built drawings and contract close out shall be completed in the contract time.

Page | 12

(End of clause)

I.2. 52.232-5 Payments under Fixed-Price Construction Contracts. (SEP 2002)

I.3. 52.236-5 Material and Workmanship. (APR 1984)

I.4. 52.236-7 Permits and Responsibilities. (NOV 1991)

I.5. 52.203-3 Gratuities. (APR 1984)

I.6. 52.203-5 Covenant Against Contingent Fees. (APR 1984)

I.7. 52.203-7 Anti-Kickback Procedures. (JUL 1995)

I.8. 52.216-24 Limitation of Government Liability. (APR 1984)

(a) In performing this contract, the Contractor is not authorized to make expenditures or incur obligations exceeding [ ]dollars.

(b) The maximum amount for which the Government shall be liable if this contract is terminated is [ ]dollars.

I.9. 52.222-16 Approval of Wage Rates. (FEB 1988)

I.10. 52.223-14 Toxic Chemical Release Reporting. (AUG 2003)

I.11. 52.225-9 Buy American Act—Construction Materials. As prescribed in 25.1102(a), insert the following clause:

BUY AMERICAN ACT—CONSTRUCTION MATERIALS (FEB 2009)

(a) Definitions. As used in this clause— “Commercially available off-the-shelf (COTS) item”—

(1) Means any item of supply (including construction material) that is—

(i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 ( 46 U.S.C. App. 1702), such as agricultural products and petroleum products.

“Component” means an article, material, or supply incorporated directly into a construction material.

“Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

“Cost of components” means— http://www.arnet.gov/far/current/html/Subpart%2025_11.html#wp1078063� http://www.arnet.gov/far/current/html/Subpart%202_1.html#wp1145508� http://uscode.house.gov/�

Page | 13

(3) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(4) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.

“Domestic construction material” means—

(1) An unmanufactured construction material mined or produced in the United States;

(2) A construction material manufactured in the United States, if—

(i) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or

(ii) The construction material is a COTS item.

“Foreign construction material” means a construction material other than a domestic construction material.

“United States” means the 50 States, the District of Columbia, and outlying areas.

(b) Domestic preference.

(1) This clause implements the Buy American Act (41 U.S.C. 10a - 10d) by providing a preference for domestic construction material. In accordance with 41 U.S.C. 431, the component test of the Buy American Act is waived for construction material that is a COTS item (See FAR 12.505(a)(2)). The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3) of this clause.

(2) This requirement does not apply to the construction material or components listed by the Government as follows:

_________none_______________________________________ [Contracting Officer to list applicable excepted materials or indicate “none”]

(3) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2) of this clause if the Government determines that—

(i) The cost of domestic construction material would be unreasonable. The cost of a particular domestic construction material subject to the requirements of the Buy American Act is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent;

(ii) The application of the restriction of the Buy American Act to a particular construction material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(c) Request for determination of inapplicability of the Buy American Act.

(1)(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(3) of this clause shall include adequate information for Government evaluation of the request, including—

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Price;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause.

http://uscode.house.gov/� http://www.arnet.gov/far/current/html/Subpart%2012_5.html#wp1077123�

Page | 14

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed price comparison table in the format in paragraph (d) of this clause.

(iii) The price of construction material shall include all delivery costs to the construction site and any applicable duty (whether or not a duty-free certificate may be issued).

(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

(2) If the Government determines after contract award that an exception to the Buy American Act applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(3)(i) of this clause.

(3) Unless the Government determines that an exception to the Buy American Act applies, use of foreign construction material is noncompliant with the Buy American Act.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

FOREIGN AND DOMESTIC CONSTRUCTION MATERIALS PRICE COMPARISON

Construction Material Description

Unit of Measure

Quantity Price (Dollars)*

Item 1:

Foreign construction material

Domestic construction material

Item 2: _______ _______ _______

Foreign construction material

Domestic construction material

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.] [Include other applicable supporting information.] [* Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).]

(End of Clause)

I.12. 52.225-11 Buy American Act—Construction Materials under Trade Agreements.

As prescribed in 25.1102(c), insert the following clause:

BUY AMERICAN ACT—CONSTRUCTION MATERIALS UNDER TRADE AGREEMENTS (MAR 2009)

(a) Definitions. As used in this clause— “Caribbean Basin country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a Caribbean Basin country; or http://www.arnet.gov/far/current/html/Subpart%2025_11.html#wp1078063�

Page | 15

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different construction material distinct from the materials from which it was transformed.

“Commercially available off-the-shelf (COTS) item”—

(1) Means any item of supply (including construction material) that is—

(i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 ( 46 U.S.C. App. 1702), such as agricultural products and petroleum products.

“Component” means an article, material, or supply incorporated directly into a construction material.

“Construction material” means an article, material, or supply brought to the construction site by the Contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

“Cost of components” means—

(1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.

“Designated country” means any of the following countries:

(1) A World Trade Organization Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, or United Kingdom);

(2) A Free Trade Agreement country (Australia, Bahrain, Canada, Chile, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Morocco, Nicaragua, or Singapore);

(3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or

(4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Costa Rica, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago).

“Designated country construction material” means a construction material that is a WTO GPA country construction material, an FTA country construction material, a least developed country construction material, or a Caribbean Basin country construction material.

“Domestic construction material” means—

(1) An unmanufactured construction material mined or produced in the United States;

http://www.arnet.gov/far/current/html/Subpart%202_1.html#wp1145508�

Page | 16

(2) A construction material manufactured in the United States, if—

(i) The cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or

(ii) The construction material is a COTS item.

“Foreign construction material” means a construction material other than a domestic construction material.

“Free Trade Agreement country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement (FTA) country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a FTA country into a new and different construction material distinct from the materials from which it was transformed.

“Least developed country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a least developed country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different construction material distinct from the materials from which it was transformed.

“United States” means the 50 States, the District of Columbia, and outlying areas.

“WTO GPA country construction material” means a construction material that—

(1) Is wholly the growth, product, or manufacture of a WTO GPA country; or

(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different construction material distinct from the materials from which it was transformed.

(b) Construction materials.

(1) This clause implements the Buy American Act (41 U.S.C. 10a-10d) by providing a preference for domestic construction material. In accordance with 41 U.S.C. 431, the component test of the Buy American Act is waived for construction material that is a COTS item (See FAR 12.505(a)(2)). In addition, the Contracting Officer has determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition. Therefore, the Buy American Act restrictions are waived for designated county construction materials.

(2) The Contractor shall use only domestic or designated country construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause.

(3) The requirement in paragraph (b)(2) of this clause does not apply to the construction materials or components listed by the Government as follows:

[Contracting Officer to list applicable excepted materials or indicate “none”]

(4) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Government determines that—

(i) The cost of domestic construction material would be unreasonable. The cost of a particular domestic construction material subject to the restrictions of the Buy American Act is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent;

(ii) The application of the restriction of the Buy American Act to a particular construction material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a…