FA5685-09-R-0001 MACC SF1442.doc

Section B - Supplies or Services and Prices

Lump Sum

MACC -- Base Year

FFP

MACC is a multiple award, competitive Indefinite Delivery/Indefinite Quantity

(IDIQ) construction acquisition including three work elements: Design-Build, Partial Design, and Full Design. Projects are based on a general statement of work further defined with each individual Task Order (TO). Work will consist of multiple disciplines in general construction categories for the military base facilities of USAF and support units in Turkey. Award of the seed project constitutes the minimum for the first contract awarded. A minimum of $2,500.00 is guaranteed over the life of the contract. The aggregate maximum amount of this program including basic and all option years shall not exceed $30,000,000.00

FOB: Destination

NSN: Z199-07-111-1111

SIGNAL CODE: A

MAX

NET AMT

Lump Sum

FFP

MACC is a multiple award, competitive Indefinite Delivery/Indefinite Quantity

(IDIQ) construction acquisition including three work elements: Design-Build, Partial Design, and Full Design. Projects are based on a general statement of work further defined with each individual Task Order (TO). Work will consist of multiple disciplines in general construction categories for the military base facilities of USAF and support units in Turkey. Award of the seed project constitutes the minimum for the first contract awarded. A minimum of $2,500.00 is guaranteed over the life of the contract. The aggregate maximum amount of this program including basic and all option years shall not exceed $30,000,000.00

FOB: Destination

MAX

Lump Sum

FFP

MACC is a multiple award, competitive Indefinite Delivery/Indefinite Quantity

(IDIQ) construction acquisition including three work elements: Design-Build, Partial Design, and Full Design. Projects are based on a general statement of work further defined with each individual Task Order (TO). Work will consist of multiple disciplines in general construction categories for the military base facilities of USAF and support units in Turkey. Award of the seed project constitutes the minimum for the first contract awarded. A minimum of $2,500.00 is guaranteed over the life of the contract. The aggregate maximum amount of this program including basic and all option years shall not exceed $30,000,000.00

FOB: Destination

MAX

Lump Sum

FFP

MACC is a multiple award, competitive Indefinite Delivery/Indefinite Quantity

(IDIQ) construction acquisition including three work elements: Design-Build, Partial Design, and Full Design. Projects are based on a general statement of work further defined with each individual Task Order (TO). Work will consist of multiple disciplines in general construction categories for the military base facilities of USAF and support units in Turkey. Award of the seed project constitutes the minimum for the first contract awarded. A minimum of $2,500.00 is guaranteed over the life of the contract. The aggregate maximum amount of this program including basic and all option years shall not exceed $30,000,000.00

FOB: Destination

MAX

Lump Sum

FFP

MACC is a multiple award, competitive Indefinite Delivery/Indefinite Quantity

(IDIQ) construction acquisition including three work elements: Design-Build, Partial Design, and Full Design. Projects are based on a general statement of work further defined with each individual Task Order (TO). Work will consist of multiple disciplines in general construction categories for the military base facilities of USAF and support units in Turkey. Award of the seed project constitutes the minimum for the first contract awarded. A minimum of $2,500.00 is guaranteed over the life of the contract. The aggregate maximum amount of this program including basic and all option years shall not exceed $30,000,000.00

FOB: Destination

MAX

CLIN MINIMUM/MAXIMUM

The guaranteed minimum order amount to be ordered for this contract is $2,500.00. This minimum amount shall only be applied to the basic year. All remaining options years, if exercised, have a minimum order amount of $0.00. The maximum aggregate amount may be reached any time before the exercise of the final option period and shall not exceed $30,000,000.00

NOTE TO FOREIGN VENDORS

NOTE: Authorization to Foreign Vendors

The contract warrants that it has been duly authorized to operate and do business in the country or countries in which this contract is to be performed, and that it has obtained, at no cost to the United States Government, all necessary licenses and permits required in connections with this contract, and that it will fully comply with all laws, decrees, labor standards and regulations of this country or countries during the performance of this contract.

Section C - Descriptions and Specifications

PROJECT DESCRIPTION

C-1. PROJECT DESCRIPTION/SPECIFICATIONS/STATEMENTS of WORK or NEED This contract is for a broad range of maintenance, repair, minor construction, and design projects to include building, residential, and commercial work for real property at Incirlik Air Base and all Geographically Separated Units.

C-2. GENERAL INFORMATION

The following documents are to be used in the execution of work under this contract:

(A) General Specifications

(1) All General Specifications used in this contract have been listed.

(2) The purpose of the General Specification listed is to provide the contractor with a reference point used to generate individual Statements of Work (SOW) or Statements of Need (SON). It is the contractor responsibility to ensure each of these specifications are followed when applicable.

(3) The contractor shall immediately bring to the attention of the Contracting Officer any ambiguities, confusion, or conflicting information between one or more specifications and/or drawings, and/or SOW/SON.

(B) Project Unique Specifications

(1) Specifications unique to each project shall be provided with each RFP and subsequent Task Order.

(2) The purpose of project unique specifications is to provide the contractor with more detailed guidance for the work to be accomplished. It is the contractor’s responsibility to ensure all work completed is done so in accordance with all contract specifications and drawings.

(3) The contractor shall immediately bring to the attention of the Contracting Officer any ambiguities, confusion, or conflicting information between one or more specifications and/or drawings, and/or SOW.

(C) Statements of Work (SOW) or Statements of Need (SON)

(1) A SOW/SON unique to each project shall be provided with each RFP and subsequent Task Order.

(2) The purpose of the SOW/SON is to provide the contractor with outline of the work to be performed. It is the contractor’s responsibility to ensure all work completed is done so in accordance with all contract specifications and drawings.

(3) The contractor shall immediately bring to the attention of the Contracting Officer any ambiguities, confusion, or conflicting information between one or more specifications and/or drawings, and/or SOW/SON.

Section E - Inspection and Acceptance

INSPECTION AND ACCEPTANCE TERMS

Supplies/services will be inspected/accepted at:

Section F - Deliveries or Performance

DELIVERY INFORMATION

31-JUL-2010

NEVZAT COSKUNTUNCEL

39CES/CECEP BLDG 444 UNIT 7065

APO AE 09824

676-8021

FOB: Destination F2G3C2

31-JUL-2011

F2G3C2

31-JUL-2012

F2G3C2

31-JUL-2013

F2G3C2

31-JUL-2014

F2G3C2

CLAUSES INCORPORATED BY REFERENCE

Section H - Special Contract Requirements

SPECIAL CONTRACT INFORMATION

H-1. GENERAL TERMS

This is a firm-fixed price, Indefinite Delivery/Indefinite Quantity (IDIQ), Multiple Award Construction Contract (MACC). Multiple awards shall be made pursuant to FAR 16.504 (c). The contract includes a wide variety of specific elements of construction and design work. During the contract period, construction and/or design requirements will be identified by the Base Civil Engineer (BCE) office. For future task orders, the Contracting Officer shall issue RFP’s to each of the MACC contractors. Award of each task order shall be based on the previously established evaluation factors for that individual project. The contractor shall furnish all materials, equipment, and personnel necessary to design, manage, and accomplish each task order. The Government will issue an Administrative Notice to Proceed upon award. Once all necessary approvals and coordination has been made, a Construction Notice to Proceed shall be issued.

H-2. MINIMUM CONTRACT VALUE

(a) Guaranteed Minimum: The guaranteed minimum of work to be ordered under the total life of the contract is $2,500.00 for each contract awardee. NOTE: This award minimum will be met with the issuance of the firm task order.

(b) The total amount of the contract shall not exceed estimated $30,000,000.00 for the life of the contract (basic period plus four option periods). Each contractor must be prepared to perform up to the total estimated amount.

(c) If the Government’s requirements for services set forth in the solicitation do not result in orders in the amount described as “maximum,” the event shall not constitute the basis for an equitable adjustment under this contract.

H-3. BASIS OF MACC AWARD

The Government intends to award multiple contracts based on the best value to the Government. Using the established evaluation factors in Sections L and M of the solicitation, the overall best value contractors will be selected. In accordance with FAR 15.101-1 and AFFARS 5315.101-1, Performance Price Trade-off (PPT) will be utilized in this acquisition. Technical Capability, Past Performance, and Price will be evaluated. For the award of the basic contracts, past performance is considered equal to price. Given the known pool of local contractors and the work previously performed, the Government is very confident that multiple vendors will submit proposals that are technically acceptable, have substantially confident past performance, and offer a fair and reasonable price. Upon receipt of all proposals, all unrealistically high and low priced proposals shall be removed prior to further evaluation. The following steps outline the source selection process:

(a) Step 1: The Government’s technical evaluation team shall evaluate the technical proposals by assigning a rating of Acceptable or Unacceptable. The Government shall evaluate all proposals for technical acceptability in accordance with the contract solicitation and seed project requirements. Proposals determined to be unacceptable will be excluded from competition. Only those proposals considered technically acceptable or reasonably susceptible of being made acceptable shall receive further consideration for award. Once a proposal is deemed acceptable, all technical proposals are considered equal.

(b) Step 2: The Government shall evaluate the price reasonableness of all technically acceptable proposals. Each shall be ranked by total proposed price. If required and in the best interests of the Government, the pricing for each seed project may be evaluated separately.

(c) Step 3: The Government shall evaluate the two (2) to four (4) lowest priced offeror’s past performance. If past performance is Substantially Confident, the evaluation process shall be considered complete. If not, evaluation of the next lowest priced offeror’s past performance will be accomplished. This will continue until a Substantially Confident past performance is achieved. If no Substantially Confident past performances are available, the Government shall continue with the award process by selecting offerors with a past performance rating of Satisfactory Confidence.

H-4. AWARDING FUTURE TASK ORDERS

All contractors will have a fair opportunity to be considered for each task order in excess of $2,500.00 issued under the two-step lump sum method. The Contract Administrator or Contracting Officer will furnish the work requirement to all awardees of this contract at a prearranged site visit. All contractors will be invited to attend the site visit. Thereafter, each contractor shall submit a proposal, in English, in accordance with timelines set forth in the RFP for evaluation by the Government. Upon evaluation of the proposals, the Government has the right to seek clarifications, hold discussions, or award the task order without discussions. The Government will consider the following during the selection process:

(a) Task Order Element Type

1. Element 1 – Design/Bid/Build

a. Generalized SOW with project specifications shall be provided

b. If available, as-built drawings will be provided. No other design will be provided by the Government

c. At a minimum, proposals submitted shall include a price and a 10% concept design based off of the information provided. Further information outlining proposal requirements shall be provided in each RFP issued

2. Element 2 – Design/Bid/Build or Bid/Build

a. A general or detailed SOW shall be provided

b. Government will provide a minimum 35% , maximum 100% design to each contractor

c. Additional as-built, if available, shall also be provided

d. At a minimum, proposals submitted shall include a price based off of the information provided. Further information outlining proposal requirements shall be made available in each RFP issued

3. Element 3 – Design Only

a. A general SOW or Statement of Need shall be provided.

b. Necessary review meetings (35%, 65%, etc.) will be outlined in the RFP

c. At a minimum, proposals submitted shall include a price based off of the information provided. Further information outlining proposal requirements shall be made available in each RFP issued

(b) Task Order Evaluation Criteria

Subsequent task orders may be awarded based on best value, either Performance Price Trade-off (PPT) or Lowest Price/Technical Acceptability (LPTA). If the Government decides to issue the task order as a best value using PPT or LPTA, award factors shall vary depending on the unique requirements of each task order. One or more of the following criteria in addition to Cost may be considered:

(1) Past performance - Task order past performance or prior past performance on other contracts

(2) Quality of deliverables

(3) Ability to meet schedule requirements

(4) Relevant experience/key personnel

(5) Cost control

(6) Potential impact on other orders placed with the contractor

(7) Current workload

(8) Design

(9) The contractor’s technical understanding of the work.

(10) The most efficient and effective plan to accomplish the work.

(11) Rationale for proposed materials, type and quantities.

(12) Sustainable design features

(13) Price/Cost NOTE: Contractors will be allowed to choose not to bid on individual task orders as to allow for, and encourage, contractors to make prudent business decisions based upon their current workload.

CLAUSES INCORPORATED BY FULL TEXT

252.229-7001 TAX RELIEF (JUN 1997)

(a) Prices set forth in this contract are exclusive of all taxes and duties from which the United States Government is exempt by virtue of tax agreements between the United States Government and the Contractor's government. The following taxes or duties have been excluded from the contract price:

(b) The Contractor's invoice shall list separately the gross price, amount of tax deducted, and net price charged.

(c) When items manufactured to United States Government specifications are being acquired, the Contractor shall identify the materials or components intended to be imported in order to ensure that relief from import duties is obtained. If the Contractor intends to use imported products from inventories on hand, the price of which includes a factor for import duties, the Contractor shall ensure the United States Government's exemption from these taxes. The Contractor may obtain a refund of the import duties from its government or request the duty-free import of an amount of supplies or components corresponding to that used from inventory for this contract.

VAT-EXEMPT PURCHASE

I certify that this purchase (delivery of goods or service) is made for the purpose of common defense and in accordance with the Tax Relief Agreement between Turkey and The United States of America, which was ratified by Law Number 6426 of June 1954. This purchase is exempt from Value Added Tax according to the Council of Ministers of the Republic of Turkey decision number 92/2958 or 22 April 1992, published in the Official Gazette dated 21 May 1992, number 21234.

KDV’DEN MUAF SATINALMA

Isbu satinalmanin (mal teslimi veya hizmet); Turkiye ile Amerika Birlesid Devletleri arasinda imzalanmis bulunan ve 30 Haziran 1954 tarihli ve 6426 sayili kanunla onaylanmis Vergi Muafiyetleri Anlasmasina uygun olarak ve ortak savunma amaciyla yapildigini onaylariz. Isbu satinalma: 21 May 1992 tarih ve 21234 sayili Resmi Gazetede yayinlanmis olan 22 Nisan 1992 tarih ve 1992/2958 sayili Bakanlar Kurulu Kararina gore katma deger vergisinden mustesnadir.

NOTE TO TURKISH VENDORS:

It is recommended contractors attach their VAT exempt form when submitting their invoices to Defense Finance Accounting System (DFAS) in Wide Area WorkFlow (WWAF) and/or handcarry to 39 CONS for certification. For the Turkish Government to accept it, a duly appointed Contracting Officer must first certify the VAT exempt form.

(End of clause)

Section I - Contract Clauses

CLAUSES INCORPORATED BY REFERENCE

CLAUSES INCORPORATED BY FULL TEXT

52.211-10 COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK (APR 1984)

The Contractor shall be required to (a) commence work under this contract within 10 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than THE DATE SPECIFIED PER TASK ORDER. The time stated for completion shall include final cleanup of the premises.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.211-11 LIQUIDATED DAMAGES--SUPPLIES, SERVICES, OR RESEARCH AND DEVELOPMENT (SEP 2000)

(a) If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, the Contractor shall, in place of actual damages, pay to the Government liquidated damages of TO BE DETERMINED PER TASK ORDER, IF NECESSARY per calendar day of delay.

(b) If the Government terminates this contract in whole or in part under the Default--Fixed-Price Supply and Service clause, the Contractor is liable for liquidated damages accruing until the Government reasonably obtains delivery or performance of similar supplies or services. These liquidated damages are in addition to excess costs of repurchase under the Termination clause.

(c) The Contractor will not be charged with liquidated damages when the delay in delivery or performance is beyond the control and without the fault or negligence of the Contractor as defined in the Default--Fixed-Price Supply and Service clause in this contract.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.211-12 LIQUIDATED DAMAGES--CONSTRUCTION (SEP 2000)

(a) If the Contractor fails to complete the work within the time specified in the contract, the Contractor shall pay liquidated damages to the Government in the amount of TO BE DETERMINED PER TASK ORDER, IF NECESSARY for each calendar day of delay until the work is completed or accepted.

(b) If the Government terminates the Contractor's right to proceed, liquidated damages will continue to accrue until the work is completed. These liquidated damages are in addition to excess costs of repurchase under the Termination clause.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.215-6 PLACE OF PERFORMANCE (OCT 1997)

(a) The offeror or respondent, in the performance of any contract resulting from this solicitation, ( ) intends, ( ) does not intend (check applicable block) to use one or more plants or facilities located at a different address from the address of the offeror or respondent as indicated in this proposal or response to request for information.

(b) If the offeror or respondent checks “intends” in paragraph (a) of this provision, it shall insert in the following spaces the required information:

Place of Performance(Street Address, City, State, County, Zip Code)

Name and Address of Owner and Operator of the Plant or Facility if Other Than Offeror or Respondent

(End of provision)

CLAUSES INCORPORATED BY FULL TEXT

52.215-19 NOTIFICATION OF OWNERSHIP CHANGES (OCT 1997)

(a) The Contractor shall make the following notifications in writing:

(1) When the Contractor becomes aware that a change in its ownership has occurred, or is certain to occur, that could result in changes in the valuation of its capitalized assets in the accounting records, the Contractor shall notify the Administrative Contracting Officer (ACO) within 30 days.

(2) The Contractor shall also notify the ACO within 30 days whenever changes to asset valuations or any other cost changes have occurred or are certain to occur as a result of a change in ownership.

(b) The Contractor shall--

(1) Maintain current, accurate, and complete inventory records of assets and their costs;

(2) Provide the ACO or designated representative ready access to the records upon request;

(3) Ensure that all individual and grouped assets, their capitalized values, accumulated depreciation or amortization, and remaining useful lives are identified accurately before and after each of the Contractor's ownership changes; and

(4) Retain and continue to maintain depreciation and amortization schedules based on the asset records maintained before each Contractor ownership change.

The Contractor shall include the substance of this clause in all subcontracts under this contract that meet the applicability requirement of FAR 15.408(k).

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.216-18 Ordering. (OCT 1995)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from DATE OF AWARD through THE FINAL DATE OF THE LAST OPTION YEAR EXERCISED.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

(c) If mailed, a delivery order or task order is considered "issued" when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

(End of clause)

52.216-19 Order Limitations. (OCT 1995)

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than $2,500.00, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor:

(1) Any order for a single item in excess of $3,000,000.00

(2) Any order for a combination of items in excess of $10,000,000.00; or

(3) A series of orders from the same ordering office within 5 business days that together call for quantities exceeding the limitation in subparagraph (1) or (2) above.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) above.

(d) Notwithstanding paragraphs (b) and (c) above, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 3 business days after issuance, with written notice stating the Contractor's intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.217-8 OPTION TO EXTEND SERVICES (NOV 1999)

The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within 30 days.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 days provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 5 Years and 6 months.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.223-11 OZONE-DEPLETING SUBSTANCES (MAY 2001)

(a) Definition. Ozone-depleting substance, as used in this clause, means any substance the Environmental Protection Agency designates in 40 CFR part 82 as--

(1) Class I, including, but not limited to, chlorofluorocarbons, halons, carbon tetrachloride, and methyl chloroform; or

(2) Class II, including, but not limited to, hydrochlorofluorocarbons.

(b) The Contractor shall label products which contain or are manufactured with ozone-depleting substances in the manner and to the extent required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR Part 82, Subpart E, as follows:

“WARNING: Contains (or manufactured with, if applicable), a substance(s) which harm(s) public health and environment by destroying ozone in the upper atmosphere.”----------------------------

The Contractor shall insert the name of the substance(s).

(End of clause4)

CLAUSES INCORPORATED BY FULL TEXT

52.232-16 PROGRESS PAYMENTS (APR 2003)

The Government will make progress payments to the Contractor when requested as work progresses, but not more frequently than monthly, in amounts of $2,500 or more approved by the Contracting Officer, under the following conditions:

(a) Computation of amounts. (1) Unless the Contractor requests a smaller amount, the Government will compute each progress payment as 80 percent of the Contractor's total costs incurred under this contract whether or not actually paid, plus financing payments to subcontractors (see paragraph (j) of this clause), less the sum of all previous progress payments made by the Government under this contract. The Contracting Officer will consider cost of money that would be allowable under FAR 31.205-10 as an incurred cost for progress payment purposes.

(2) The amount of financing and other payments for supplies and services purchased directly for the contract are limited to the amounts that have been paid by cash, check, or other forms of payment, or that are determined due and will be paid to subcontractors--

(i) In accordance with the terms and conditions of a subcontract or invoice; and

(ii) Ordinarily within 30 days of the submission of the Contractor's payment request to the Government.

(3) The Government will exclude accrued costs of Contractor contributions under employee pension plans until actually paid unless--

(i) The Contractor's practice is to make contributions to the retirement fund quarterly or more frequently; and

(ii) The contribution does not remain unpaid 30 days after the end of the applicable quarter or shorter payment period (any contribution remaining unpaid shall be excluded from the Contractor's total costs for progress payments until paid).

(4) The Contractor shall not include the following in total costs for progress payment purposes in paragraph (a)(1) of this clause:

(i) Costs that are not reasonable, allocable to this contract, and consistent with sound and generally accepted accounting principles and practices.

(ii) Costs incurred by subcontractors or suppliers.

(iii) Costs ordinarily capitalized and subject to depreciation or amortization except for the properly depreciated or amortized portion of such costs.

(iv) Payments made or amounts payable to subcontractors or suppliers, except for --

(A) Completed work, including partial deliveries, to which the Contractor has acquired title; and

(B) Work under cost-reimbursement or time-and-material subcontracts to which the Contractor has acquired title.

(5) The amount of unliquidated progress payments may exceed neither (i) the progress payments made against incomplete work (including allowable unliquidated progress payments to subcontractors) nor

(ii) the value, for progress payment purposes, of the incomplete work. Incomplete work shall be considered to be the supplies and services required by this contract, for which delivery and invoicing by the Contractor and acceptance by the Government are incomplete.

(6) The total amount of progress payments shall not exceed 80 percent of the total contract price.

(7) If a progress payment or the unliquidated progress payments exceed the amounts permitted by subparagraphs (a)(4) or (a)(5) of this clause, the Contractor shall repay the amount of such excess to the Government on demand.

(8) Notwithstanding any other terms of the contract, the Contractor agrees not to request progress payments in dollar amounts of less than $2,500. The Contracting Officer may make exceptions.

(b) Liquidation. Except as provided in the Termination for Convenience of the Government clause, all progress payments shall be liquidated by deducting from any payment under this contract, other than advance or progress payments, the unliquidated progress payments, or 80 percent of the amount invoiced, whichever is less. The Contractor shall repay to the Government any amounts required by a retroactive price reduction, after computing liquidations and payments on past invoices at the reduced prices and adjusting the unliquidated progress payments accordingly. The Government reserves the right to unilaterally change from the ordinary liquidation rate to an alternate rate when deemed appropriate for proper contract financing.

(c) Reduction or suspension. The Contracting Officer may reduce or suspend progress payments, increase the rate of liquidation, or take a combination of these actions, after finding on substantial evidence any of the following conditions:

(1) The Contractor failed to comply with any material requirement of this contract (which includes paragraphs (f) and (g) of this clause).

(2) Performance of this contract is endangered by the Contractor's --

(i) Failure to make progress or

(ii) Unsatisfactory financial condition.

(3) Inventory allocated to this contract substantially exceeds reasonable requirements.

(4) The Contractor is delinquent in payment of the costs of performing this contract in the ordinary course of business.

(5) The unliquidated progress payments exceed the fair value of the work accomplished on the undelivered portion of this contract.

(6) The Contractor is realizing less profit than that reflected in the establishment of any alternate liquidation rate in paragraph (b) of this clause, and that rate is less than the progress payment rate stated in subparagraph (a)(1) of this clause.

(d) Title.

(1) Title to the property described in this paragraph (d) shall vest in the Government. Vestiture shall be immediately upon the date of this contract, for property acquired or produced before that date. Otherwise, vestiture shall occur when the property is or should have been allocable or properly chargeable to this contract.

(2) "Property," as used in this clause, includes all of the below-described items acquired or produced by the Contractor that are or should be allocable or properly chargeable to this contract under sound and generally accepted accounting principles and practices.

(i) Parts, materials, inventories, and work in process;

(ii) Special tooling and special test equipment to which the Government is to acquire title under any other clause of this contract;

(iii) Nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, and other similar manufacturing aids, title to which would not be obtained as special tooling under paragraph (d) (2)(ii) of this clause; and

(iv) Drawings and technical data, to the extent the Contractor or subcontractors are required to deliver them to the Government by other clauses of this contract.

(3) Although title to property is in the Government under this clause, other applicable clauses of this contract; e.g., the termination or special tooling clauses, shall determine the handling and disposition of the property.

(4) The Contractor may sell any scrap resulting from production under this contract without requesting the Contracting Officer's approval, but the proceeds shall be credited against the costs of performance.

(5) To acquire for its own use or dispose of property to which title is vested in the Government under this clause, the Contractor must obtain the Contracting Officer's advance approval of the action and the terms. The Contractor shall (i) exclude the allocable costs of the property from the costs of contract performance, and (ii) repay to the Government any amount of unliquidated progress payments allocable to the property. Repayment may be by cash or credit memorandum.

(6) When the Contractor completes all of the obligations under this contract, including liquidation of all progress payments, title shall vest in the Contractor for all property (or the proceeds thereof) not--

(i) Delivered to, and accepted by, the Government under this contract; or

(ii) Incorporated in supplies delivered to, and accepted by, the Government under this contract and to which title is vested in the Government under this clause.

(7) The terms of this contract concerning liability for Government-furnished property shall not apply to property to which the Government acquired title solely under this clause.

(e) Risk of loss. Before delivery to and acceptance by the Government, the Contractor shall bear the risk of loss for property, the title to which vests in the Government under this clause, except to the extent the Government expressly assumes the risk. The Contractor shall repay the Government an amount equal to the unliquidated progress payments that are based on costs allocable to property that is damaged, lost, stolen, or destroyed.

(f) Control of costs and property. The Contractor shall maintain an accounting system and controls adequate for the proper administration of this clause.

(g) Reports and access to records. The Contractor shall promptly furnish reports, certificates, financial statements, and other pertinent information reasonably requested by the Contracting Officer for the administration of this clause. Also, the Contractor shall give the Government reasonable opportunity to examine and verify the Contractor's books, records, and accounts.

(h) Special terms regarding default. If this contract is terminated under the Default clause, (i) the Contractor shall, on demand, repay to the Government the amount of unliquidated progress payments and (ii) title shall vest in the Contractor, on full liquidation of progress payments, for all property for which the Government elects not to require delivery under the Default clause. The Government shall be liable for no payment except as provided by the Default clause.

(i) Reservations of rights.

(1) No payment or vesting of title under this clause shall --

(i) Excuse the Contractor from performance of obligations under this contract or

(ii) Constitute a waiver of any of the rights or remedies of the parties under the contract.

(2) The Government's rights and remedies under this clause

(i) Shall not be exclusive but rather shall be in addition to any other rights and remedies provided by law or this contract and

(ii) Shall not be affected by delayed, partial, or omitted exercise of any right, remedy, power, or privilege, nor shall such exercise or any single exercise preclude or impair any further exercise under this clause or the exercise of any other right, power, or privilege of the Government.

(j) Financing payments to subcontractors. The financing payments to subcontractors mentioned in paragraphs (a)(1) and (a)(2) of this clause shall be all financing payments to subcontractors or divisions, if the following conditions are met:

(1) The amounts included are limited to--

(i) The unliquidated remainder of financing payments made; plus

(ii) Any unpaid subcontractor requests for financing payments.

(2) The subcontract or interdivisional order is expected to involve a minimum of approximately 6 months between the beginning of work and the first delivery; or, if the subcontractor is a small business concern, 4 months.

(3) If the financing payments are in the form of progress payments, the terms of the subcontract or interdivisional order concerning progress payments--

(i) Are substantially similar to the terms of this clause for any subcontractor that is a large business concern, or this clause with its Alternate I for any subcontractor that is a small business concern;

(ii) Are at least as favorable to the Government as the terms of this clause;

(iii) Are not more favorable to the subcontractor or division than the terms of this clause are to the Contractor;

(iv) Are in conformance with the requirements of FAR 32.504(e); and

(v) Subordinate all subcontractor rights concerning property to which the Government has title under the subcontract to the Government's right to require delivery of the property to the Government if--

(A) The Contractor defaults; or

(B) The subcontractor becomes bankrupt or insolvent.

(4) If the financing payments are in the form of performance-based payments, the terms of the subcontract or interdivisional order concerning payments--

(i) Are substantially similar to the Performance-Based Payments clause at FAR 52.232-32 and meet the criteria for, and definition of, performance-based payments in FAR Part 32;

(ii) Are in conformance with the requirements of FAR 32.504(f); and

(iii) Subordinate all subcontractor rights concerning property to which the Government has title under the subcontract to the Government's right to require delivery of the property to the Government if--

(A) The Contractor defaults; or

(B) The subcontractor becomes bankrupt or insolvent.

(5) If the financing payments are in the form of commercial item financing payments, the terms of the subcontract or interdivisional order concerning payments--

(i) Are constructed in accordance with FAR 32.206(c) and included in a subcontract for a commercial item purchase that meets the definition and standards for acquisition of commercial items in FAR Parts 2 and 12;

(ii) Are in conformance with the requirements of FAR 32.504(g); and

(iii) Subordinate all subcontractor rights concerning property to which the Government has title under the subcontract to the Government's right to require delivery of the property to the Government if--

(A) The Contractor defaults; or

(B) The subcontractor becomes bankrupt or insolvent.

(6) If financing is in the form of progress payments, the progress payment rate in the subcontract is the customary rate used by the contracting agency, depending on whether the subcontractor is or is not a small business concern.

(7) Concerning any proceeds received by the Government for property to which title has vested in the Government under the subcontract terms, the parties agree that the proceeds shall be applied to reducing any unliquidated financing payments by the Government to the Contractor under this contract.

(8) If no unliquidated financing payments to the Contractor remain, but there are unliquidated financing payments that the Contractor has made to any subcontractor, the Contractor shall be subrogated to all the rights the Government obtained through the terms required by this clause to be in any subcontract, as if all such rights had been assigned and transferred to the Contractor.

(9) To facilitate small business participation in subcontracting under this contract, the Contractor shall provide financing payments to small business concerns, in conformity with the standards for customary contract financing payments stated in Subpart 32.113. The Contractor shall not consider the need for such financing payments as a handicap or adverse factor in the award of subcontracts.

(k) Limitations on undefinitized contract actions. Notwithstanding any other progress payment provisions in this contract, progress payments may not exceed 80 percent of costs incurred on work accomplished under undefinitized contract actions. A "contract action" is any action resulting in a contract, as defined in Subpart 2.1, including contract modifications for additional supplies or services, but not including contract modifications that are within the scope and under the terms of the contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes. This limitation shall apply to the costs incurred, as computed in accordance with paragraph (a) of this clause, and shall remain in effect until the contract action is definitized. Costs incurred which are subject to this limitation shall be segregated on Contractor progress payment requests and invoices from those costs eligible for higher progress payment rates. For purposes of progress payment liquidation, as described in paragraph (b) of this clause, progress payments for undefinitized contract actions shall be liquidated at 80 percent of the amount invoiced for work performed under the undefinitized contract action as long as the contract action remains undefinitized. The amount of unliquidated progress payments for undefinitized contract actions shall not exceed 80 percent of the maximum liability of the Government under the undefinitized contract action or such lower limit specified elsewhere in the contract. Separate limits may be specified for separate actions.

(l) Due date. The designated payment office will make progress payments on the 30th day after the designated billing office receives a proper progress payment request. In the event that the Government requires an audit or other review of a specific progress payment request to ensure compliance with the terms and conditions of the contract, the designated payment office is not compelled to make payment by the specified due date. Progress payments are considered contract financing and are not subject to the interest penalty provisions of the Prompt Payment Act.

(m) Progress payments under indefinite--delivery contracts. The Contractor shall account for and submit progress payment requests under individual orders as if the order constituted a separate contract, unless otherwise specified in this contract.

(End of clause)

52.236-22 DESIGN WITHIN FUNDING LIMITATIONS (APR 1984)

(a) The Contractor shall accomplish the design services required under this contract so as to permit the award of a contract, using standard Federal Acquisition Regulation procedures for the construction of the facilities designed at a price that does not exceed the estimated construction contract price as set forth in paragraph (c) below. When bids or proposals for the construction contract are received that exceed the estimated price, the contractor shall perform such redesign and other services as are necessary to permit contract award within the funding limitation. These additional services shall be performed at no increase in the price of this contract. However, the Contractor shall not be required to perform such additional services at no cost to the Government if the unfavorable bids or proposals are the result of conditions beyond its reasonable control.

(b) The Contractor will promptly advise the Contracting Officer if it finds that the project being designed will exceed or is likely to exceed the funding limitations and it is unable to design a usable facility within these limitations. Upon receipt of such information, the Contracting Officer will review the Contractor's revised estimate of construction cost.