Atch_3_Clauses_and_Provisions.pdf

Attachment 3, Applicable Clauses and Provisions

FA5613-18-R-0006

Amendment 02- 13 June 2018

CLAUSES INCORPORATED BY REFERENCE

52.203-3 Gratuities APR 1984

52.203-11 Certification And Disclosure Regarding Payments To Influence

Certain Federal Transactions

SEP 2007

52.203-12 Limitation On Payments To Influence Certain Federal

Transactions

OCT 2010

52.203-17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights

APR 2014

52.204-4 Printed or Copied Double-Sided on Postconsumer

Fiber Content Paper

MAY 2011

52.204-9 Personal Identity Verification of Contractor Personnel JAN 2011

52.223-10 Waste Reduction Program MAY 2011

52.225-25

52.229-6

Prohibition on Contracting with Entities Engaging in Certain

Activities or Transactions Relating to Iran – Representation and

Certifications

Taxes--Foreign Fixed-Price Contracts

OCT 2015

FEB 2013

52.232-18 Availability of Funds APR 1984

52.232-39 Unenforceability of Unauthorized Obligations JUN 2013

52.232-40 Providing Accelerated Payments to Small Business DEC 2013

52.233-3 Protest After Award AUG 1996

52.237-1 Site Visit APR 1984

52.237-2 Protection Of Government Buildings, Equipment, And

Vegetation

APR 1984

52.242-13 Bankruptcy JUL 1995

252.201-7000 Contracting Officer's Representative DEC 1991

252.203-7000 Requirements Relating to Compensation of Former DoD

Officials

SEP 2011

252.203-7002 Requirement to Inform Employees of

Whistleblower Rights

SEP 2013

252.203-7005 Representation Relating to Compensation of Former DoD

Officials

NOV 2011

252.204-0001 Line Item Specific: Single Funding SEP 2009

252.204-7003 Control Of Government Personnel Work Product APR 1992

252.204-7012 Safeguarding Covered Defense Information and Cyber Incident

Reporting

OCT 2016

252.209-7004 Subcontracting with Firms that are Owned or Controlled by the

Government of a Country that is a State Sponsor of Terrorism

OCT 2015

252.211-7003 Item Unique Identification and Valuation MAR 2016

252.222-7002 Compliance With Local Labor Laws (Overseas) JUN 1997

252.223-7006 Prohibition On Storage And Disposal Of Toxic And Hazardous

Materials

SEP 2014

252.225-7012 Preference For Certain Domestic Commodities DEC 2017

252.225-7041 Correspondence in English JUN 1997

252.225-7042 Authorization to Perform APR 2003

252.225-7048 Export - Controlled Items JUN 2013

252.229-7000 Invoices Exclusive of Taxes or Duties JUN 1997

252.232 Electronic Submission of Payment Requests and Receiving

Reports

JUN 2012

252.232-7008 Assignment of Claims (Overseas) JUN 1997

252.232-7010 Levies on Contract Payments DEC 2006

252.233-7001 Choice of Law (Overseas) JUN 1997

252.237-7010 Prohibition on Interrogation of Detainees by Contractor

Personnel

JUN 2013

252.243-7001 Pricing Of Contract Modifications DEC 1991

252.243-7002 Requests for Equitable Adjustment DEC 2012

252.247-7023 Transportation of Supplies by Sea APR 2014

5352.223-9001 Health and Safety on Government Installations NOV 2012

CLAUSES INCORPORATED BY FULL TEXT

52.209-7 INFORMATION REGARDING RESPONSIBILITY MATTERS (JUL 2013)

(a) Definitions. As used in this provision—

“Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals

Proceedings). This includes administrative proceeding at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

(1) The total value of all current, active contracts and grants, including all priced options; and

(2) The total value of all current, active orders including all priced options under indefinite- delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award schedules).

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

(b) The offeror [_] has [_] does not have current active Federal contracts and grants with total value greater than $10,000,000.

(c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity

Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:

(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:

(i) In a criminal proceeding, a conviction.

(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

(iii) In an administrative proceeding, a finding of fault and liability that results in—

(A) The payment of a monetary fine or penalty of $5,000 or more; or

(B) The payment of a reimbursement, restitution, or damages in excess of $100,000.

(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.

(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.

(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in the System for Award

Management database via https://www.acquisition.gov (see 52.204-7).

(End of provision)

52.209-11 REPRESENTATION BY CORPORATIONS REGARDING DELINQUENT TAX

LIABILITY OR A FELONY CONVICTION UNDER ANY FEDERAL LAW (FEB 2016)

(a) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing

Appropriations Act, 2015 (Pub. L 113-235), and similar provisions, if contained in subsequent appropriations acts, the Government will not enter into a contract with any corporation that—

(1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or http://www.acquisition.gov/

(2) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government.

(b) The Offeror represents that—

(1) It is [ ] is not [ ] a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and

(2) It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under a

Federal law within the preceding 24 months.

each item quantity within allowable variations, if any. If the Contractor delivers and the Government receives quantities of any item in excess of the quantity called for (after considering any allowable variation in quantity), such excess quantities will be treated as being delivered for the convenience of the Contractor. The

Government may retain such excess quantities up to $250 in value without compensating the Contractor therefor, and the Contractor waives all right, title, or interests therein. Quantities in excess of $250 will, at the option of the Government, either be returned at the Contractor’s expense or retained and paid for by the

Government at the contract unit price.

(End of Clause)

52.211-18 -- Variation in Estimated Quantity.

As prescribed in 11.703(c), insert the following clause in solicitations and contracts when a fixed-price construction contract is contemplated that authorizes a variation in the estimated quantity of unit-priced items:

Variation in Estimated Quantity (Apr 1984)

If the quantity of a unit-priced item in this contract is an estimated quantity and the actual quantity of the unit-priced item varies more than 15 percent above or below the estimated quantity, an equitable adjustment in the contract price shall be made upon demand of either party. The equitable adjustment shall be based upon any increase or decrease in costs due solely to the variation above 115 percent or below 85 percent of the estimated quantity. If the quantity variation is such as to cause an increase in the time necessary for completion, the Contractor may request, in writing, an extension of time, to be received by the Contracting

Officer within 10 days from the beginning of the delay, or within such further period as may be granted by the Contracting Officer before the date of final settlement of the contract. Upon the receipt of a written request for an extension, the Contracting Officer shall ascertain the facts and make an adjustment for extending the completion date as, in the judgment of the Contracting Officer, is justified.

(End of Clause) http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/11.htm#P267_45716

ADDENDUM TO FAR 52.212-1, INSTRUCTIONS TO OFFERORS – COMMERCIAL ITEMS

(JAN 2017)

This addendum replaces the below referenced paragraphs of the provision 52.212-1 Instructions to Offerors –Commercial Items (Jan 2017) as follows:

(a) This is not a small business set-aside. The North American Industry Classification System (NAICS) code for this acquisition is 561790.

(b) Submission of offers. Submit signed and dated offers to the office specified in this solicitation at or before the exact time specified in this solicitation. Offers may be submitted on letterhead stationery, or as otherwise specified in the solicitation. As a minimum, offers must show –

(b)(1) The solicitation number FA5613-18-R-0006;

(b)(2) The time specified in the solicitation for receipt of offers;

(i) Complete proposals must be received not later than 1600 hrs Central European Summer

Time (CEST) on 2 July 2018. Offerors may verify receipt of any mailed or delivered proposal with the contracting point of contacts listed.

(ii) Delivery Methods: FAX proposals WILL NOT be accepted. Volumes may be delivered via one of the following methods:

(A) Via Email to: marion.neal@us.af.mil and jasmine.karingithi@us.af.mil

(B) Via hand-delivery* to: 700 CONS/PKA, Bldg 2767, POC: Mr. Ray Neal, Kapaun Air

Station, D-67661 Kaiserslautern

* If hard copies are submitted, the offeror shall additionally submit all volumes in electronic format, using re-writable CDs/DVDs. 2 copies of the electronic proposal shall be delivered concurrently with the hard copy. If files are compressed, the necessary decompression utility must be included. The electronic copies of the proposal shall be submitted in a format readable by Microsoft (MS) Word, MS Excel, MS-PowerPoint, as applicable. Offerors are cautioned that the hard copy form of the offeror’s proposal shall take precedence if any inconsistencies or discrepancies exist between the offeror’s hard copy proposal and the documents submitted on electronic media.

(iii) The contracting officer has determined there is a high probability of adequate price competition in this acquisition. Upon examination of the initial offers, the contracting officer will review this determination and if, in the contracting officer’s opinion, adequate price competition exists, no additional cost information will be requested and certification under FAR 15.406-2 will not be required. However, if at any time during this competition the contracting officer determines that adequate price competition no longer exists; offerors may be required to submit information to the extent necessary for the contracting officer to determine the reasonableness and affordability of the price.

mailto:marion.neal@us.af.mil mailto:jasmine.karingithi@us.af.mil

(iv) Access to Base Facilities: 700 CONS is located on an Air Force installation and all access to the installation is controlled by the Air Force. An escort may be required as access will not be granted based solely on the need to submit a proposal. Furthermore, the Air Force is conducting random exercises which may require the closure of the main entrance gate and the utilization of an alternate base entry. Any delay based on access will not be accepted as a reason for late receipt of the proposal by the Government.

(b)(3) Offerors shall provide the name, title, telephone number of those individuals authorized to make decisions on behalf of the company and can negotiate with the government.

Government Contracting Point of Contact

(i) Point of Contact (POC): The Contracting Officer (CO) is the sole POC for this acquisition.

Address any questions you have only to the CO. Written questions concerning the solicitation may be sent to Mr. Ray Neal, marion.neal@us.af.mil and SSgt Jasmine Karingithi, Contract Specialist, jasmine.karingithi@us.af.mil

(ii) All questions regarding this solicitation must be submitted not later than 1600 hrs (CEST) on 15 June 2018.

(b)(4) Technical Capability: Submit one (1) copy of a technical proposal. The offeror shall provide supporting documentation of the following in their technical proposal.

(i) Past Experience: The offeror shall submit evidence of at least one year of contract performance (or the past experience of a joint venture partner or key subcontractor, or instances where the offeror performed as a key personnel or a key subcontractor) within the past five (5) years from the issuance date of the solicitation. The past experience shall be where the offeror is/was responsible for performing Cleaning of Hoods and Ducts in Dining Facilities or similar services. Similar work is defined as routine services providing management, tools, supplies, equipment, and labor necessary to perform hood and duct cleanings in dining facilities.

(ii) Certificates/Required Documents. Copy Craftsman Card (Handwerkskarte) as proof that the offeror (or a joint venture partner or key subcontractor being intended to perform the solicited service) is a registered handicraft business in accordance with the Crafts and Trades Regulation

Code (Handwerksordnung), Annex A for an accredited craft involving the type of work to be performed under this contract.

(iii) Certificate “ueber die Anerkennung als Fachbetrieb gemaess § 19 I WHG” supporting that the company is certified IAW 19 I WHG, Wasserhaushaltsgesetz Water Resources Act.

(b)(6) Price: All proposed prices shall be submitted in EURO. Offers not submitted in EURO will not be considered for award. The offeror shall fill out Exhibit A-E with their price per hood and duct system.

Each Exhibit line item number (ELIN), with exception of the first ELIN on each Exhibit, identifies one hood and duct system. All ELINs from tabs 1 through 5 shall be filled in with proposed prices; with the exception of the first ELIN (001) “unscheduled cleanings”. ELIN 001 will be priced specific to the hood and duct system requiring unscheduled cleaning during the performance of the contract. No amount should be entered for ELIN 001 on any of the Exhibits.

The total amounts from all Exhibits A through E shall be input into the Request for Proposal, Attachment

1, Pricing Schedule, as follows-

Exhibit A, Tab 1 - FY19 Basic Year Total = CLIN 0001 of the Pricing Schedule

Exhibit B, Tab 2 – FY20 Option Year 1 Total = CLIN 1001 of the Pricing Schedule

Exhibit C, Tab 3 – FY21 Option Year 2 Total = CLIN 2001 of the Pricing Schedule

Exhibit D, Tab 4 – FY22 Option Year 3 Total = CLIN 3001 of the Pricing Schedule

Exhibit E, Tab 5 – FY23 Option Year 4 Total = CLIN 4001 of the Pricing Schedule

On Attachment 1, Pricing Schedule, the offeror shall calculate the total for the base period and the total for each option period by adding the Estimated Amount of each CLIN in the period with the pre-filled amount of the Unscheduled Cleanings CLIN for each period.

The offeror shall calculate the Grand Total by adding the total price of the base period and all option periods.

(b)(10) Past Performance: Offerors shall provide up to five (5), recent (within the past five years from the issuance date of the solicitation) and relevant (similar in scope) contracts by completing sections A and B of the Past Performance Questionnaire (PPQ), Attachment 4. Use one PPQ for each referenced contract. Offerors shall send the PPQs to their References for completion not later than 10 days prior to the due date of offers. Offerors shall ensure that the references submit the PPQs directly to the following POCs not later than the closing date of offers, 2

July 2018 not later than 1600hrs (4:00 pm) (CEST): Mr. Ray Neal, e-mail marion.neal@us.af.mil and SSgt Jasmine Karingithi, e-mail jasmine.karingithi@us.af.mil. Offeror shall provide with their proposal a list of the references the PPQs were provided to.

Past performance references of a joint venture partner or key subcontractor being intended to perform the solicited service, or instances where the offeror performed as a key personnel or a key subcontractor will be accepted. If a joint venture partner or subcontractor is used, the offeror shall identify the percentage of work to be accomplished by the joint venture partner or subcontractor.

“Similar in scope” means the work must have been, at a minimum, cleaning of hoods and ducts systems in dining facilities.

In the evaluation of Present and Past Performance, the Government will consider the information received through the questionnaires, as well as information obtained from other sources. Offerors will have the opportunity to address any negative performance information received that the offeror has not already had the opportunity to address. The Government may also seek past performance information from other sources, such as but not limited to, the Past Performance Information

Retrieval System (PPIRS).

(c) Period for acceptance of offers. The offeror agrees to hold the prices in its offer firm for 120 calendar days from the date specified for receipt of offers.

(f) Late submissions, modifications, revisions, and withdrawals of offers.

(2)(i)(A) – Deleted.

(h) Multiple awards Deleted.

(End of addendum)

52.212-2 EVALUATION--COMMERCIAL ITEMS (OCT 2014)

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose proposal conforms to the solicitation’s requirements (to include all stated terms, conditions, representations & certifications, technical requirements, and all other information required by the RFP) and; is judged based on the evaluation factors and subfactors, to represent the lowest price technically acceptable (LPTA) proposal with acceptable past performance. All technical factors/subfactors are weighted equally and are evaluated on an acceptable/unacceptable basis using the ratings as described below. The Government will select the proposal and award to the contractor with the lowest evaluated price from among those meeting the acceptability standards for non-price factors. Technical tradeoffs will not be made and no credit will be given for exceeding the minimum acceptable rating. While the Government will strive for maximum objectivity, the evaluation process, by its nature, is subjective;

and therefore, professional judgment is implicit throughout the entire process.

Award without Discussions: The Government intends to make award without discussions. Therefore, each initial offer should contain the offeror’s best terms from a price and technical standpoint. If, during the evaluation period, it is determined to be in the best interest of the Government to hold discussions, offeror responses to Evaluation Notices (ENs) and the Final Proposal Revision (FPR) will be considered in making the award decision. If the offeror’s proposal has been evaluated as acceptable at the time discussions are closed, any changes or exceptions in the Final Proposal Revision are subject to evaluation and may introduce risk that the offeror’s proposal could be determined unacceptable and ineligible for award. Additionally, failure to comply with the terms and conditions of the solicitation may result in the offeror being ineligible for award. Offerors must clearly identify any exception to the solicitation terms and conditions and must provide complete supporting rationale. The Government reserves the right to determine any such exceptions unacceptable.

The following factors shall be used to evaluate offers:

(i) FACTOR 1 – Price

(ii) FACTOR 2 – Technical:

Subfactor 1: Past experience for cleaning of hoods and ducts systems in dining facilities

Subfactor 2: Certificates/Required Documents

Subfactor 3: Certificate “ueber die Anerkennung als Fachbetrieb gemaess § 19 I WHG

(iii) FACTOR 3 – Past Performance.

(A) FACTOR 1 – Price. Offerors will be evaluated on the GRAND TOTAL price resulting from the estimated total amounts of all CLINs 0001 through 4002, for the basic period and all option periods. The GRAND TOTAL price for evaluation is inclusive of the prefilled CLINs 0002, 1002, 2002, 3002 and 4002 for Unscheduled Hoods and Duct Cleanings. Only EURO currency offers will be accepted and offers shall be rounded to the nearest whole EURO. Prices will be evaluated for fair and reasonableness of the total evaluated price IAW FAR 13.106-3(a).

• Arithmetic Discrepancies. For the purpose of initial evaluation of offers, the following will be utilized in resolving arithmetic discrepancies found on the face of the bidding schedule as submitted by the offeror.

• Obviously misplaced decimal points will be corrected;

• Discrepancy between unit price and extended price, the unit price will govern;

• Apparent errors in extension of unit prices will be corrected;

• Apparent errors in extended prices per CLIN will be corrected.

(B) FACTOR 2 – Technical. Offerors will be evaluated on written documentation provided in accordance with paragraph (b)(4) of the Addendum to FAR 52.212-1, Instructions to Offerors

– Commercial Items, and listed as subfactors 1 through 3 above. Technical acceptability is based on successfully meeting this requirement. Each outlined subfactor will be rated

“Acceptable” or “Unacceptable” as follows:

TECHNICAL CRITERIA RATINGS

RATING DEFINITION

Acceptable Proposal meets the requirements of the solicitation.

Unacceptable Proposal does not meet the requirements of the solicitation.

Offerors must receive “Acceptable” rating for each subfactor to receive an overall “Acceptable” rating in the technical evaluation. In the event one or more subfactors receive an “Unacceptable” rating, the proposal will receive an overall “Unacceptable” rating in the technical evaluation.

(i) Subfactor 1: Past Experience. The submitted past experience will be evaluated on the evidence of at least one year of contract performance (or the past experience references of a joint venture partner that will perform major or critical aspects of the requirement, or relevant past experience of key personnel will be accepted) during the previous 3 years, where the offeror is/was responsible for performing the cleaning of hoods and ducts services in dining facilties in accordance with the National Fire Protection Association (NFPA) 96 Standards and paragraph 19 I WHG (Wasserhaushaltsgesetz - Water Resources Act).

(ii) Subfactor 2: Certificates/Required Documents. Offeror must provide a copy of

Craftsman Card (Handwerkskarte) as proof that the offeror (or a joint venture partner or key subcontractor being intended to perform the solicited service) is a registered handicraft business in accordance with the Crafts and Trades Regulation Code (Handwerksordnung), Annex A for an accredited craft involving the type of work to be performed under this contract.

Acceptance is dependent on the evidence of past experience. Offerors who fail to submit a craftsman card are not eligible for award, regardless of price, technical and past performance evaluation.

(iii) Subfactor 3: Certificate “ueber die Anerkennung als Fachbetrieb gemaess § 19 I WHG”

Offeror must provide a copy of Certificate “ueber die Anerkennung als Fachbetrieb gemaess § 19 I

WHG” supporting that the company is certified IAW 19 I WHG, Wasserhaushaltsgesetz Water

Resources Act. Offerors who fail to submit all required certificates/documents are not eligible for award.

NOTE: Offerors who fail to submit all required certificates/documents are not eligible for award.

(C) FACTOR 3 – Past Performance. Past Performance will be evaluated based on subjective assessment of how well the offeror performed on recent (within the past five years from the issuance date of the solicitation) and relevant (similar in scope) work, as outlined in Addendum to

FAR Provision 52.212-1, paragraph (b)(10). Past performance references of a joint venture partner that will perform major or critical aspects of the requirement, or relevant past performance of key personnel will be accepted. For the purpose of assessing acceptable performance, ratings S

(Satisfactory), G (Good) and E (Exceptional) assigned on the PPQs will be considered

“Acceptable”. M (Marginal) and U (Unsatisfactory) will be considered “Unacceptable”. The rating is based upon offeror-provided references, received PPQs, or information obtained by the

Government from any other sources of past performance information.

NOTE: In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available or so sparse that no meaningful past performance rating can be reasonably assigned, the offeror may not be evaluated favorably or unfavorably on past performance (see FAR 15.305(a)(2)(iv)). Therefore, the offeror shall be determined to have unknown (or “neutral”) past performance. In the context of acceptability/unacceptability, a neutral rating shall be considered “acceptable.”

Offeror must receive “Acceptable” rating to receive an award, as follows:

PAST PERFORMANCE

RATING DEFINITION

Acceptable Based on the offeror’s performance record, the Government has a reasonable expectation that the offeror will successfully perform the required effort, or the offeror’s performance record is unknown (see note below).

Unacceptable Based on the offeror’s performance record, the Government does not have a reasonable expectation that the offeror will be able to successfully perform the required effort.

(b) Options. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s). For the evaluation of the option price pursuant to FAR

Clause 52.217-8, Option to Extend Services, 50% of the prices proposed for the last option period will be included in the Total Evaluated Price (TEP).

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

FAR 52.212-3 OFFEROR REPRESENTATIONS AND CERTIFICATIONS -- COMMERCIAL

ITEMS (JAN 2017) (ALT I)

The offeror shall complete only paragraphs (b) of this provision if the Offeror has completed the annual representations and certification electronically via the System for Award Management (SAM) Web site located at http://www.sam.gov/portal. If the Offeror has not completed the annual representations and certifications electronically, the Offeror shall complete only paragraphs (c) through (u) of this provision.

(a) Definitions. As used in this provision--

“Administrative merits determination” means certain notices or findings of labor law violations issued by an enforcement agency following an investigation. An administrative merits determination may be final or be subject to appeal or further review. To determine whether a particular notice or finding is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“Arbitral award or decision” means an arbitrator or arbitral panel determination that a labor law violation occurred, or that enjoined or restrained a violation of labor law. It includes an award or decision that is not final or is subject to being confirmed, modified, or vacated by a court, and includes an award or decision resulting from private or confidential proceedings. To determine whether a particular award or decision is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“Civil judgment” means--

(1) In paragraph (h) of this provision: A judgment or finding of a civil offense by any court of competent jurisdiction.

(2) In paragraph (s) of this provision: Any judgment or order entered by any Federal or State court in which the court determined that a labor law violation occurred, or enjoined or restrained a http://www.sam.gov/portal violation of labor law. It includes a judgment or order that is not final or is subject to appeal. To determine whether a particular judgment or order is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“DOL Guidance” means the Department of Labor (DOL) Guidance entitled: “Guidance for Executive Order

13673, ‘Fair Pay and Safe Workplaces’ “. The DOL Guidance, dated August 25, 2016, can be obtained from www.dol.gov/fairpayandsafeworkplaces.

“Economically disadvantaged women-owned small business (EDWOSB) concern” means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States and who are economically disadvantaged in accordance with 13 CFR part 127. It automatically qualifies as a women-owned small business eligible under the WOSB Program.

“Enforcement agency” means any agency granted authority to enforce the Federal labor laws. It includes the enforcement components of DOL (Wage and Hour Division, Office of Federal Contract Compliance

Programs, and Occupational Safety and Health Administration), the Equal Employment Opportunity

Commission, the Occupational Safety and Health Review Commission, and the National Labor Relations

Board. It also means a State agency designated to administer an OSHA-approved State Plan, but only to the extent that the State agency is acting in its capacity as administrator of such plan. It does not include other

Federal agencies which, in their capacity as contracting agencies, conduct investigations of potential labor law violations. The enforcement agencies associated with each labor law under E.O. 13673 are--

(1) Department of Labor Wage and Hour Division (WHD) for--

(i) The Fair Labor Standards Act;

(ii) The Migrant and Seasonal Agricultural Worker Protection Act;

(iii) 40 U.S.C. chapter 31, subchapter IV, formerly known as the Davis-Bacon Act;

(v) 41 U.S.C. chapter 67, formerly known as the Service Contract Act;

(vi) The Family and Medical Leave Act; and

(vii) E.O. 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors);

(2) Department of Labor Occupational Safety and Health Administration (OSHA) for--

(i) The Occupational Safety and Health Act of 1970; and

(ii) OSHA-approved State Plans;

(4) Department of Labor Office of Federal Contract Compliance Programs (OFCCP) for--

(i) Section 503 of the Rehabilitation Act of 1973;

http://www.dol.gov/fairpayandsafeworkplaces

(ii) The Vietnam Era Veterans' Readjustment Assistance Act of 1972 and the Vietnam Era

Veterans' Readjustment Assistance Act of 1974; and

(iii) E.O. 11246 of September 24, 1965 (Equal Employment Opportunity);

(5) National Labor Relations Board (NLRB) for the National Labor Relations Act; and

(6) Equal Employment Opportunity Commission (EEOC) for--

(i) Title VII of the Civil Rights Act of 1964;

(ii) The Americans with Disabilities Act of 1990;

(iii) The Age Discrimination in Employment Act of 1967; and

(iv) Section 6(d) of the Fair Labor Standards Act (Equal Pay Act).

“Forced or indentured child labor” means all work or service—

(1) Exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or

(2) Performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.

“Highest-level owner” means the entity that owns or controls an immediate owner of the offeror, or that owns or controls one or more entities that control an immediate owner of the offeror. No entity owns or exercises control of the highest level owner.

“Immediate owner” means an entity, other than the offeror, that has direct control of the offeror. Indicators of control include, but are not limited to, one or more of the following: Ownership or interlocking management, identity of interests among family members, shared facilities and equipment, and the common use of employees.

“Inverted domestic corporation,” means a foreign incorporated entity that meets the definition of an inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C.

395(c).

“Labor compliance agreement” means an agreement entered into between a contractor or subcontractor and an enforcement agency to address appropriate remedial measures, compliance assistance, steps to resolve issues to increase compliance with the labor laws, or other related matters.

“Labor laws” means the following labor laws and E.O.s:

(1) The Fair Labor Standards Act.

(2) The Occupational Safety and Health Act (OSHA) of 1970.

(3) The Migrant and Seasonal Agricultural Worker Protection Act.

(4) The National Labor Relations Act.

(5) 40 U.S.C. chapter 31, subchapter IV, formerly known as the Davis-Bacon Act.

(6) 41 U.S.C. chapter 67, formerly known as the Service Contract Act.

(7) E.O. 11246 of September 24, 1965 (Equal Employment Opportunity).

(8) Section 503 of the Rehabilitation Act of 1973.

(9) The Vietnam Era Veterans' Readjustment Assistance Act of 1972 and the Vietnam Era Veterans'

Readjustment Assistance Act of 1974.

(10) The Family and Medical Leave Act.

(11) Title VII of the Civil Rights Act of 1964.

(12) The Americans with Disabilities Act of 1990.

(13) The Age Discrimination in Employment Act of 1967.

(14) E.O. 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors).

(15) Equivalent State laws as defined in the DOL Guidance. (The only equivalent State laws implemented in the FAR are OSHA-approved State Plans, which can be found at www.osha.gov/dcsp/osp/approved_state_plans.html).

“Labor law decision” means an administrative merits determination, arbitral award or decision, or civil judgment, which resulted from a violation of one or more of the laws listed in the definition of “labor laws”.

“Manufactured end product” means any end product in product and service codes (PSCs) 1000-9999, except—

(1) PSC 5510, Lumber and Related Basic Wood Materials;

(2) Product or Service Group (PSG) 87, Agricultural Supplies;

(3) PSG 88, Live Animals;

(4) PSG 89, Subsistence;

(5) PSC 9410, Crude Grades of Plant Materials;

(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;

http://www.osha.gov/dcsp/osp/approved_state_plans.html

(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products;

(8) PSC 9610, Ores;

(9) PSC 9620, Minerals, Natural and Synthetic; and

(10) PSC 9630, Additive Metal Materials.

“Place of manufacture” means the place where an end product is assembled out of components, or otherwise made or processed from raw materials into the finished product that is to be provided to the Government. If a product is disassembled and reassembled, the place of reassembly is not the place of manufacture.

“Predecessor” means an entity that is replaced by a successor and includes any predecessors of the predecessor.

“Restricted business operations” means business operations in Sudan that include power production activities, mineral extraction activities, oil-related activities, or the production of military equipment, as those terms are defined in the Sudan Accountability and Divestment Act of 2007 (Pub. L. 110-174).

Restricted business operations do not include business operations that the person (as that term is defined in

Section 2 of the Sudan Accountability and Divestment Act of 2007) conducting the business can demonstrate—

(1) Are conducted under contract directly and exclusively with the regional government of southern

Sudan;

(2) Are conducted pursuant to specific authorization from the Office of Foreign Assets Control in the Department of the Treasury, or are expressly exempted under Federal law from the requirement to be conducted under such authorization;

(3) Consist of providing goods or services to marginalized populations of Sudan;

(4) Consist of providing goods or services to an internationally recognized peacekeeping force or humanitarian organization;

(5) Consist of providing goods or services that are used only to promote health or education; or

(6) Have been voluntarily suspended.

Sensitive technology—

(1) Means hardware, software, telecommunications equipment, or any other technology that is to be used specifically—

(i) To restrict the free flow of unbiased information in Iran; or

(ii) To disrupt, monitor, or otherwise restrict speech of the people of Iran; and

(2) Does not include information or informational materials the export of which the President does not have the authority to regulate or prohibit pursuant to section 203(b)(3) of the International

Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).

“Service-disabled veteran-owned small business concern”—

(1) Means a small business concern—

(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

(2) Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).

“Small business concern” means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the criteria in 13 CFR Part 121 and size standards in this solicitation.

“Small disadvantaged business concern, consistent with 13 CFR 124.1002,” means a small business concern under the size standard applicable to the acquisition, that--

(1) Is at least 51 percent unconditionally and directly owned (as defined at 13 CFR 124.105) by--

(i) One or more socially disadvantaged (as defined at 13 CFR 124.103) and economically disadvantaged (as defined at 13 CFR 124.104) individuals who are citizens of the United

States; and

(ii) Each individual claiming economic disadvantage has a net worth not exceeding

$750,000 after taking into account the applicable exclusions set forth at 13 CFR

124.104(c)(2); and

(2) The management and daily business operations of which are controlled (as defined at 13.CFR

124.106) by individuals, who meet the criteria in paragraphs (1)(i) and (ii) of this definition.

“Subsidiary” means an entity in which more than 50 percent of the entity is owned—

(1) Directly by a parent corporation; or

(2) Through another subsidiary of a parent corporation.

“Successor” means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term “successor” does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on

State law and specific circumstances.

“Veteran-owned small business concern” means a small business concern—

(1) Not less than 51 percent of which is owned by one or more veterans(as defined at 38 U.S.C.

101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and

(2) The management and daily business operations of which are controlled by one or more veterans.

“Women-owned business concern” means a concern which is at least 51 percent owned by one or more women; or in the case of any publicly owned business, at least 51 percent of the its stock is owned by one or more women; and whose management and daily business operations are controlled by one or more women.

“Women-owned small business concern” means a small business concern --

(1) That is at least 51 percent owned by one or more women or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and

(2) Whose management and daily business operations are controlled by one or more women.

“Women-owned small business (WOSB) concern eligible under the WOSB Program (in accordance with 13

CFR part 127),” means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States.

Note to paragraph (a): By a court order issued on October 24, 2016, the following definitions in this paragraph (a) are enjoined indefinitely as of the date of the order: “Administrative merits determination”, “Arbitral award or decision”, paragraph (2) of “Civil judgment”, “DOL Guidance”, “Enforcement agency”, “Labor compliance agreement”, “Labor laws”, and “Labor law decision”. The enjoined definitions will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction.

(b)

(1) Annual Representations and Certifications. Any changes provided by the offeror in paragraph

(b)(2) of this provision do not automatically change the representations and certifications posted on the SAMwebsite.

(2) The offeror has completed the annual representations and certifications electronically via the

SAM website accessed through https://www.acquisition.gov. After reviewing the SAM database information, the offeror verifies by submission of this offer that the representation and certifications currently posted electronically at FAR 52.212-3, Offeror Representations and Certifications—

Commercial Items, have been entered or updated in the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the

NAICS code referenced for this solicitation), as of the date of this offer and are incorporated in this offer by reference (see FAR 4.1201), except for paragraphs ____________. [Offeror to identify the https://www.acquisition.gov/ applicable paragraphs at (c) through (u) of this provision that the offeror has completed for the purposes of this solicitation only, if any. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer. Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted electronically on SAM.]

(c) Offerors must complete the following representations when the resulting contract is to be performed in the United States or its outlying areas. Check all that apply.

(1) Small business concern. The offeror represents as part of its offer that it [_] is, [_] is not a small business concern.

(2) Veteran-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents as part of its offer that it [_] is, [_] is not a veteran-owned small business concern.

(3) Service-disabled veteran-owned small business concern. [Complete only if the offeror represented itself as a veteran-owned small business concern in paragraph (c)(2) of this provision.]

The offeror represents as part of its offer that it [_] is, [_] is not a service-disabled veteran-owned small business concern.

(4) Small disadvantaged business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it [_] is, [_] is not, a small disadvantaged business concern as defined in 13 CFR 124.1002.

(5) Women-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it [_] is, [_] is not a women-owned small business concern.

Note: Complete paragraphs (c)(8) and (c)(9) only if this solicitation is expected to exceed the simplified acquisition threshold.

(6) WOSB concern eligible under the WOSB Program. [Complete only if the offeror represented itself as a women-owned small business concern in paragraph (c)(5) of this provision.] The offeror represents that—

(i) It [_] is, [_] is not a WOSB concern eligible under the WOSB Program, has provided all the required documents to the WOSB Repository, and no change in circumstances or adverse decisions have been issued that affects its eligibility; and

(ii) It [_] is, [_] is not a joint venture that complies with the requirements of 13 CFR part

127, and the representation in paragraph (c)(6)(i) of this provision is accurate for each

WOSB concern eligible under the WOSB Program participating in the joint venture. [The offeror shall enter the name or names of the WOSB concern eligible under the WOSB

Program and other small businesses that are participating in the joint venture: _________.]

Each WOSB concern eligible under the WOSB Program participating in the joint venture shall submit a separate signed copy of the WOSB representation.

(7) Economically disadvantaged women-owned small business (EDWOSB) concern. [Complete only if the offeror represented itself as a WOSB concern eligible under the WOSB Program in (c)(6) of this provision.] The offeror represents that—

(i) It [_] is, [_] is not an EDWOSB concern, has provided all the required documents to the

WOSB Repository, and no change in circumstances or adverse decisions have been issued that affects its eligibility; and

(ii) It [_] is, [_] is not a joint venture that complies with the requirements of 13 CFR part

127, and the representation in paragraph (c)(7)(i) of this provision is accurate for each

EDWOSB concern participating in the joint venture. [The offeror shall enter the name or names of the EDWOSB concern and other small businesses that are participating in the joint venture: _____________.] Each EDWOSB concern participating in the joint venture shall submit a separate signed copy of the EDWOSB representation.

(8) Women-owned business concern (other than small business concern). [Complete only if the offeror is a women-owned business concern and did not represent itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it [_] is, a women-owned business concern.

(9) Tie bid priority for labor surplus area concerns. If this is an invitation for bid, small business offerors may identify the labor surplus areas in which costs to be incurred on account of manufacturing or production (by offeror or first-tier subcontractors) amount to more than 50 percent of the contract price:

(10) HUBZone small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents, as part of its offer, that--

(i) It [_] is, [_] is not a HUBZone small business concern listed, on the date of this representation, on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration, and no material changes in ownership and control, principal office, or HUBZone employee percentage have occurred since it was certified in accordance with 13 CFR part 126; and

(ii) It [_] is, [_] is not a HUBZone joint venture that complies with the requirements of 13

CFR part 126, and the representation in paragraph (c)(10)(i) of this provision is accurate for each HUBZone small business concern participating in the HUBZone joint venture.