00_Draft_Phase_II_MC_Addend_1_-_FAR_52.212-4.docx

52.212-4 -- Contract Terms and Conditions -- Commercial Items (Oct 2018)

(a) Inspection/Acceptance. Pursuant to FAR Subpart 12.402(b), FAR clauses 52.246-04 Inspection of Services-Fixed-Price and 52.246-11 Higher-Level Contract Quality Requirement shall govern and apply to this contract and are incorporated herein by reference and in full-text separately. The Government, to include Air Force, NRO, and DCMA representatives, reserves the right to perform in-process inspection or testing of any launch services tendered for acceptance prior to launch. The Government, to include Air Force, NRO, and DCMA representatives, reserves the right to perform Quality Management System inspections.

(1) Acceptance for CLIN X001, CLIN X002, CLIN X003, and CLIN X004 shall be concurrent and in accordance with Attachment 4, Acceptance Criteria. This shall be documented via a Contractor submitted Receiving Report in Wide Area Work Flow (WAWF) within 60 days of delivery. Government Acceptance shall be documented upon subsequent acceptance of the Receiving Report by the Contracting Officer or authorized Contracting Officer Representative (COR) in WAWF in accordance with DFARS 252.232-7003 Electronic Submission of Payment Requests and Receiving Reports and DFARS 252.246-7000 Material Inspection and Receiving Report.

(2) Acceptance for Data & Reports shall be as specified in the attached Contract Data Requirements Lists (CDRL), DD Form 1423 (See Exhibit A, B and C).

(3) For services other than launch services, the Government must exercise its postacceptance rights:

(i) Within a reasonable time after the defect was discovered or should have been discovered; anD

(ii) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C.3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. FAR clause 52.243-1 Changes - Fixed-Price, Alternate I, is hereby incorporated by reference and in full-text separately. FAR clause 52.243-7 Notification of Changes is incorporated herein by reference and in full-text separately.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71,Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence. This subpart (f) shall not apply to postponements and delays subject to paragraph (w).

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include --

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer— System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt Payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless otherwise specified, title to items furnished in conjunction with services under this contract shall remain with the Contractor. The Government shall not take title to launch vehicles under contracts for launch services.

(o) Warranty. Unless otherwise specified, the Contractor makes no warranty, express or implied, with respect to the services delivered or performed hereunder. To the extent any supplies are delivered under this contract, the Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in the contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) Reserved

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(w) LAUNCH SCHEDULE DETERMINATION AND ADJUSTMENTS – ADDENDUM (NOV 18)

(1) Definitions: For purposes of this clause, the following definitions apply:

(i) “Launch Schedule” means a set of dates that include a Launch Period, Launch Slot, and Launch Date for a particular Launch Service.

(ii) “Launch Period” means a period of 90 calendar days during which the Launch is scheduled to occur.

(iii) “Launch Slot” means a 30 calendar day window, with associated launch pad location assignment, given to a mission and integrated LV configuration for when the Launch is scheduled to occur. This is assigned in conjunction with the Current Launch Schedule Review Board (CLSRB).

(iv) “Launch Date” means the calendar date within the Launch Slot during which the Launch is scheduled to occur.

(v) “Launch Opportunity” means an adequate time period during which the Contractor, in its reasonable judgment, may provide a Launch Service to the Government, taking into account all relevant conditions, including but not limited to: commitments to other customers, maintenance of appropriate clearance times between flights, hardware and range availability, and requirements of the Government for range support.

(vi) “Grace Period” is defined as the number of days the Contractor/Government may delay the launch date, without incurring liquidated damages/postponement fees. The amount of grace available for any period is the smaller of the number of days in the Grace Period column in Table 1 or 2 compared to the remaining available Grace Days from the previous period.

For example, if the Government used 40 Grace Days during the period L-12 through L-6 months, there would be 50 Grace Days available during the period L-6 through L-3 months. If no further days are used in the period L-6 through L-3 months, there would be 30 Grace Days available during the period L-3 months through L-11 days, with 20 Grace Days having expired.

(vii) “Grace Day” is one day in duration within the Grace Period.

(viii) “Initial Launch Capability” (ILC) is the first day of the Launch Period.

(ix) “Postponement Period” is the number of days of delay starting from the day after the original established 90-day Launch Period. The Postponement Period for both the Customer and Contractor shall include the applicable Grace Period plus any Excusable Delay plus an additional 24 months.

(x) “Postponement Fees” or “Liquidated Damages” are pre-determined dollar amounts paid by the Party causing a delay (i.e. not subject to Grace Days or Excusable Delays).

(2) Mission Assignment: Missions shall be assigned by the Government on an annual basis IAW the Phase 2 Ordering Procedure.

(3) Launch Scheduling: The Parties’ actions for each phase of the launch scheduling process are defined below:

(i) Launch Period Assignment: A launch period and launch site will be assigned upon mission assignment.

(ii) Launch Slot Determination: The Contractor shall provide a Launch Slot Recommendation (LSR) (CDRL A022) to the PCO no later than 405 calendar days (approximately 13 and a half (13.5) months) prior to the beginning of the Launch Period identifying the following:

(A) A Launch Slot within the previously assigned Launch Period

(B) A decision date for Government concurrence. If not specified, need date is fifteen (15) calendar days after Government receipt of the LSR.

By the decision date specified in the CDRL A022 submission, the PCO or Contracting Officer’s Representative (COR) will provide written concurrence with either the LSR or mutually agreed LSR updates, or will recommend a Launch Slot for the Contractor’s concurrence.

(iii) Launch Date Determination: The Contractor shall provide a Launch Date Recommendation (LDR) (CDRL A022) to the PCO no later than 225 calendar days (approximately 7.5 months) prior to the beginning of the Launch Slot identifying the following:

(A) Specific Launch Date within the previously authorized Launch Slot

(B) Assigned launch site

(C) Deadline for Government-provided payload/spacecraft ready for Launch Vehicle Mate

(D) A decision date for Government concurrence. If not specified, need date is fifteen (15) calendar days after Government receipt of the LDR.

By the decision date specified in the CDRL A022 submission, the PCO or COR will provide written concurrence with either the LDR or mutually agreed LDR updates, or will recommend a Launch Date for the Contractor’s concurrence.

(4) Launch Schedule Adjustment: In the event either Party identifies a need to further revise the Launch Schedule established in accordance with (IAW) paragraph (3) above (i.e., the assigned Launch Period, Launch Slot, and/or Launch Date) for a launch mission, the process and terms set forth below shall apply:

(i) Government/Contractor will give written notice of any desired change in the Launch Schedule as soon as possible. In the case of a request for postponement of the Launch Slot, or Launch Period, or Launch Date by the Government/Contractor, the Government/ Contractor will propose a new Launch Slot, or Launch Period, or Launch Date (as appropriate). Within two weeks of receipt of the written request of a Launch schedule Adjustment, the Contractor/Government will inform the Government/Contractor whether a Launch Opportunity exists as requested or will propose an alternatively available Launch Slot, Launch Period, or Launch Date (as appropriate). The Government/ Contractor will work to provide written agreement within thirty (30) days following receipt of the Contractor’s/Government’s proposition, and will work together to deconflict and resolve any possible Range conflicts. If mutual agreement on the revised Launch Slot, or Launch Period, or Launch Date (as appropriate) cannot be reached due to launch vehicle or payload readiness, resolution between the parties shall be handled IAW FAR 52.212-04(d) Disputes.

(ii) The Postponement Periods for both the Government and the Contractor shall include the applicable Grace Period plus any excusable delay (e.g. a “No Fault” delay as described in section (4)(ix) plus an additional twenty-four (24) months. Postponements during this period shall be subject to the Postponement Fees pursuant to sections (4)(v) through (4)(vii) and will be paid by the party responsible for the delay. Submission of a request to postpone a launch is not an admission of responsibility for the postponement. Responsibility for a postponement will be based upon a determination of the underlying Tables 1 and 2 and the predominant day-to-day cause requiring delay. The Contractor is prohibited from delaying launch in order to perform Secondary Objectives without Government approval. Circumstances precluding the use of Secondary Objectives will not be considered in the final “go/no-go” decision by the Government Mission Director.

(iii) If the Contractor requests a postponement of the Launch Date and the Government agrees to the postponement, the Parties agree that, in lieu of Termination for Cause and in place of actual damages, and as fixed, agreed, and liquidated damages, the price of the launch service shall be reduced, dependent upon when receipt of the notification is received, for each calendar day of delay in excess of the Grace period by the amount as show in Table 1. In this event, the Government shall have the right of approval of the revised Launch Date prior to its implementation. The Government shall also have the right of approval of the reallocation of launch vehicles if milestone payments have already been made towards a designated launch vehicle. Finally, the Government shall have the right of approval prior to any revision in its position (i.e., the order in the Contractor’s launch manifest queue sequence, if it results in the postponement of the Government Launch Date).

(iv) If the Contractor fails to request a postponement and the major program milestone event designated as the launch is delayed (i.e., the launch service is not completed by the contractual Launch date), for reasons other than those excusable delays described in paragraph (4)(ix), then the Contractor shall pay the Government for each day of delay IAW Table 1. The Government reserves the right to terminate this contract in whole or in part under FAR 52.212-04(m), Termination for Cause, of this contract, and in that event, the Contractor shall be liable for fixed, agreed, and liquidated damages accruing until the time the Government may reasonably obtain delivery or performance of similar supplies or services, up to the maximum specified in section (4)(vii). The liquidated damages shall be in addition to any other costs under FAR 52.212-04(m), Termination for Cause.

(v) Each postponement request by the Contractor that is not the result of paragraph (4)(ix) herein is subject to the liquidated damages shown in Table 1.

(vi) If the Government requests a postponement of the Launch date, the Parties agree that, in place of actual damages, and as fixed, agreed, and liquidated damages, the price of the launch service shall be increased, dependent upon when receipt of the notification by the PCO is received, for each calendar day of delay in excess of the Grace Period by the amount as shown in Table 2. Each postponement request by the Government that is not the result of paragraph (4)(ix) is subject to the Postponement Fees shown in Table 2.

(vii) The maximum amount paid for delays per mission (in excess of the Grace Period) by the Contractor/Government is $5.5M. The maximum amount applies only to the Liquidated Damages/Postponement Fees shown in Tables 1 and 2.

(viii) In the event that the Government/Contractor postpones the Launch Date, the payment schedule shall be suspended for the length of the delay and then resumed with all remaining payments shifted by the amount (length) of the delay. For Government delays only, the Contractor may elect to receive payments as major program milestone events are completed in lieu of the payment of Postponement Fees or the PCO may approve the addition of a new milestone payment event at the time of postponement, provided funding is available and obligated to the contract.

(ix) The Government/Contractor will not be charged with Postponement Fees/Liquidated Damages when the delay in delivery or performance arises solely out of causes beyond the control of the Government/Contractor and not due to the fault or negligence of the Government/Contractor. Such causes include, but are not limited to the occurrences defined in FAR 52.212-04(f) Excusable Delays, and any contracting actions resulting from a Stop Work Order under FAR 52.242-15.

(x) Once a specific Launch Date and time have been established, they may be changed by the cumulative amount of the Grace Period established above by the Government or the Contractor without consideration to the other party if the mission requirements can be met. The cumulative total of Grace Periods exercised by the Government per mission shall not exceed 730 days. The cumulative total of Grace Periods exercised by the Contractor per mission shall not exceed 90 days.

(xi) The amount of Postponement Fees shall be added to/subtracted from (as applicable) the next milestone payment made pursuant to the applicable contract, Attachment 9, Payment Plan. In addition, the delivery schedule shall be adjust to reflect the revised Launch Date.

(xii) In the event of an anomaly on any launch vehicle provided by the Contractor that involves hardware or software directly applicable to this launch service mission, the Government reserves the right to delay the launch service, until the next available Launch Opportunity, without accruing damages or providing an equitable adjustment to the Contractor until acceptable resolution of the anomaly.

(5) The Contractor recognizes the Government has the right to preempt a commercial customer’s launch under the Commercial Space Launch Act, 51 U.S.C. 50910. In the event the Government preempts the commercial customer’s launch, the Contractor shall proceed with processing of the Government’s launch upon receipt of written notice of the preemption.

Table 1: Contractor Liquidated Damages and Grace Periods

Table 2: Government Postponement Fees and Grace Periods

(x) INSTALLMENT PAYMENTS FOR COMMERCIAL ITEMS (JAN 2017) – ADDENDUM (NOV 18)

(1) Contractor entitlement to financing payments: The Contractor may request, and the Government shall pay, a contract financing installment payment as specified in the contract when: the payment requested is properly due in accordance with (IAW) this contract; the supplies deliverable or services due under the contract will be delivered or performed IAW this contract; and there has been no impairment or diminution of the Government’s security under this contract.

(2) Computation of amounts: Installment payment financing shall be paid to the Contractor as set per the applicable schedules in Attachment 9, Payment Plans (hereby known as the “payment schedule”), of this contract, upon acceptable completion of milestone events as described therein. The Government shall have access to all applicable information and/or facilities in order to verify completion of each milestone event.

(i) Amount of each installment payment: The amount of each installment payment for each milestone event is stated in the applicable payment schedule.

(ii) Date of each installment payment: The notional date of each installment payment for each milestone event is stated in the applicable payment schedule; however, payment shall only paid once the Government provides that the milestone event has been acceptably completed.

(iii) Limitation on payment: Prior to the liquidation of each launch service, payment for the sum of all installment payments shall not exceed 90 percent of the price of that specific launch service CLIN. Prior to the liquidation of the annual Launch Service Support (LSS) service, payment of the sum of all LSS installment payments shall not exceed 92 percent of the price of that annual LSS CLIN.

(3) Contractor request for installment payment: The Contractor may submit requests for payment of installment payments (Notice of Completion), not more frequently that monthly, only after receiving notification of acceptable completion of each milestone event. Request for payment shall occur in a form and manner acceptable to the PCO as described below in paragraph (9) of this clause. Unless otherwise authorized by the PCO, all installment payments in any month for which payment is being requested shall be included in a single request.

(4) Dates for payment: An installment payment under this clause is a contract financing payment under the Prompt Payment clause of this contract, and except as provided in paragraph (5) of this clause, approved request shall be paid within 14 days of submittal of a proper request for payment.

(5) Liquidation of installment payments: Installment payments shall be liquidated by deducting from the delivery payment of each item the total unliquidated amount of installment payments made for that separately price unit of that contract line item. The liquidation amounts for each unit of each line item shall be clearly delineated in each request for delivery payment submitted by the Contractor.

(6) Security for installment payment financing: Pursuant to FAR 32.202-4, Security for Government Financing and 10 U.S.C. 2307(f) and 41 U.S.C. 4505, the Government is required to obtain adequate security for Government financing. Adequate security for payments made under this contract shall be required in the form of a preferred creditor’s lien. The Contractor shall grant the Government a preferred creditor’s lien (i.e., a first lien paramount to all other liens) against all work in process sufficient to recompense the Government for all monies advanced under this contract should the Contractor’s performance prove to be materially unsatisfactory.

IAW FAR 32.202-4(b)(3), the Contractor shall certify that the assets subject to the lien are free from any prior encumbrances. Prior liens may result from such things as capital equipment loans, installment purchases, working capital loans, various lines of credit, and revolving credit arrangements.

In the event the Contractor fails to provide adequate security as required in this contract, no financing payment shall be made under this contract. Upon receipt of adequate security, financing payments shall be made, including all previous payments to which the Contractor is entitled, IAW the terms of the contract. If at any time the PCO determines that the security provided by the Contractor is insufficient, the Contractor shall promptly provide such additional security as the PCO determines necessary. In the event the Contractor fails to provide such additional security, the PCO may collect or liquidate such security that has been provided, and suspend further payments to the Contractor; the Contractor shall repay to the Government the amount of unliquidated financing payments as the PCO at his sole discretion deems repayable.

(7) Special terms regarding termination for cause: If this contract, or an assigned mission, is terminated for cause, the Contractor shall, on demand, repay to the Government the amount of unliquidated installment payments. The Government shall be liable for no payment except as provided by the Termination for Cause paragraph of the clause at 52.212-04(m) of this addendum.

(8) Reservation of rights:

(i) No payment, vesting of title under this clause, or other action taken by the Government under this clause shall –

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

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

(ii) The Government’s rights and remedies under this clause –

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

(B) 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.

(9) Content of Contractor’s request for installment payment: The Contractor’s request for installment payment shall contain the following:

(i) The name and address of the Contractor;

(ii) The date of the request for installment payment;

(iii) The contract number and/or other identifier (CLIN) of the contract under which the request is made; and

(iv) An itemized and totaled statement of the item(s), installment payment amount, and milestone event for which payment is being requested, for the specified CLIN.

(10) This clause implements FAR 52.232-30, Installment Payments for Commercial Items, and Attachment 9, Payment Plans, of this contract.

(y) SECONDARY OBJECTIVES – ADDENDUM (NOV 18)

(1) Definitions: For purposes of this clause, the following definition applies:

(i) SECONDARY OBJECTIVES: Secondary objectives includes any Contractor proposed use of the excess performance margin of the launch vehicle, beyond the primary mission's requirements, such as: recovery of launch vehicle hardware (not booster related), potential commercial rideshare payloads, or any other commercial uses of the launch vehicle capability to include continued second stage use after payload deployment.

(2) The Government shall own all performance capability of the launch vehicle, to include any excess performance margin of the launch vehicle beyond the primary mission's requirements. The contractor shall not use any excess performance margin of the launch vehicle for any secondary objectives unless approved by the Government. The Government may, in its sole discretion, approve the release of some amount of such excess performance margin for contractor performance of secondary objectives.

(3) In order to obtain and maintain approval for secondary objectives, the Contractor shall achieve all of the following for each applicable mission:

(i) Government approval of CDRL A030;

(ii) A "Low" Government Flight Worthiness Risk rating as defined by the Technical Issue Resolution Process (TIRP) LRG OI-1 (and the NRO Mission Assurance Team process for NRO missions, OSL OI-008A ) NLT L-12 months; and

(iii) A "Low" Government Programmatic Risk rating as defined by the Air Force Pamphlet (AFPAM) 63-128 (and the NRO Risk, Issue, and Opportunity Management instruction, NI 130-1-4, Addendum 1, for NRO missions) NLT L-12 months.

(iv) Once obtained, the Contractor shall maintain a "Low" Government Flight Worthiness Risk rating and a "Low" Government Programmatic Risk rating throughout the specific mission performance.

(4) For each applicable mission, the Government may disapprove release of excess performance margin for contractor performance of secondary objectives at any time, and for any reason, with no consideration to the contractor. Additionally, if any such approval is granted, the Government reserves the right to withdraw any such approval at any time, and for any reason outlined in paragraph 3a-d above, with no consideration to the contractor. The Government shall not be liable in any manner for disapproving, or for withdrawing approval for contractor use of the excess performance margin of the launch vehicle. The Government shall not be liable in any manner should the Contractor terminate or fail to accomplish its secondary objectives.

(z) LAUNCH SCHEDULE ACCELERATION -- ADDENDUM

(1) For a given annual ordering period, the Government may designate any launch service order as a priority mission subject to all the terms of this Launch Schedule Acceleration clause.

(i) The Government may designate up to two launch service orders as priority missions for launch schedule acceleration per annual ordering period.

(2) No later than 24 months prior to a launch service order’s contracted launch date (as defined by 52.212-4(aa) IMPLEMENTATION OF DFARS 252.216-7006 “ORDERING (MAY 2011)), the Procuring Contracting Officer (PCO) may unilaterally modify the contract and designate that launch service order as a priority mission.

(3) If a designated priority mission’s Initial Launch Capability (ILC) date is accelerated, the PCO will notify the Contractor in writing of the new launch date no later than 24 months prior to the contracted ILC date.

(i) Under the terms of this clause, the PCO will unilaterally assign an accelerated launch date of up to contracted ILC date minus 12 months.

(ii) The Government reserves the right to rescind the accelerated launch schedule date no later than 12 months prior to the contracted ILC date.

(iii) If the Government rescinds the launch date acceleration and does not accelerate it per the terms of this Launch Schedule Acceleration clause, the original contracted ILC date on the order will remain the valid requirement of the launch service order.

(4) If the Government designates a launch service order as a priority mission, the firm fixed price launch service selected from paragraph (6)(iv) of 52.212-4(aa) IMPLEMENTATION OF DFARS 252.216-7006 “ORDERING (MAY 2011) shall be subject to a firm fixed price adjustment according to the table below (as defined in Attachment 8). The Government will provide no additional equitable adjustments to this contract in relation to execution of this priority mission order.

Table 1: Accelerated Launch Date Adjustment Prices

L-1 day to L-3 months

L-3 mo + 1 day to L-6 months

L-6 mo + 1 day to L-9 months

L-9 mo + 1 day to L-12 months

Figure 1: Launch Acceleration Examples

(5) For each designated priority mission, the Government may only accelerate the contracted launch date once per this Launch Schedule Acceleration clause. Any launch date changes made by either party after the PCO invokes an acceleration will be subject to the terms of the 52.212-4(w) LAUNCH SCHEDULE DETERMINATION AND ADJUSTMENTS clause.

(6) For the designated priority mission, the Contractor shall:

(i) Perform all required actions in accordance with Attachment 1, Performance Work Statement, accelerated as necessary to meet the accelerated launch date.

(ii) Submit Notices of Completion on a monthly basis, as required, for milestones completed per the applicable Payment Plan (Attachments 9A or 9B).

(aa) IMPLEMENTATION OF DFARS 252.216-7006 “ORDERING (MAY 2011)” – ADDENDUM (NOV 18)

(1) This clause implements the ordering procedures of DFARS 252.216-7006, “ORDERING (MAY 2011),” for the CLIN YYX1 and YYX2 series. For the purposes of this Contract, mass-to-orbit payload class is defined in the EELV Systems Performance Requirements Document (SPRD), Revision B.

(2) Definitions: For the purposes of this contract, the following definitions apply:

(i) EELV Payload: The EELV Primary Payload and EELV Auxiliary Payload (when manifested) delivered to space by the EELV Launch Vehicle with associated adapters and interfaces.

(ii) EELV Primary Payload: The space vehicle(s) with associated adapters and interfaces that establish the EELV mission requirements.

(iii) EELV Auxiliary Payload: The space vehicle(s) with associated adapters and interfaces that utilize launch capability not required by the EELV Primary Payload.

(iv) EELV Launch Vehicle: A particular instantiation of an EELV Launch Vehicle Segment.

(v) EELV Launch Vehicle Segment: A family of flight configurations that each include structural elements, propulsion, guidance and control, electrical power, tracking, telemetry and control, ordnance, flight termination, software, payload fairing, and payload separation initiation.

(vi) Mission Assignment. An EELV payload paired with a launch vehicle via the mission assignment process.

(vii) Mission Order: The act of obligating funds via contract modification for the EELV Phase 2 Launch Service Provider to begin performance of an assigned mission.

(3) CLIN YYX1 and YYX2 series of this Contract is bound by DFARS 252.216-7006, "ORDERING (MAY 2011)".

(i) In accordance with DFARS 252.216-7006, "ORDERING (MAY 2011)," the ordering period is five (5) years, to begin in Government Fiscal Year (GFY)20 through the end of GFY24 with three (3) one-year option periods beginning in GFY25 through the end of GFY27.

(ii) In order to support launch service needs throughout the ordering period, the Government will order launch services from the Contractor on an annual GFY basis, if requirements exist and if funds are appropriated.

(iii) All orders for performance pursuant to this clause will be issued by the Procuring Contracting Officer (PCO) as unilateral contract modifications as specified in paragraph (6) "Ordering Process" below.

(4) Launch services bound by this clause are only those launch services funded by the EELV Program Element 35953F or launch service needs funded by other agencies (e.g., National Reconnaissance Office (NRO), Missile Defense Agency, United States Navy, etc.) and allocated to the EELV Program.

(5) Mission Assignment Process: The Government shall use the mission assignment process below to determine which EELV Payloads for a given GFY will be assigned to the Contractor.

(i) Step 1: Contractor’s Launch Vehicle Readiness Determination. For each EELV payload, the Government will reference the Launch System Maturity Assessment Process (LSMAP) technical maturity and schedule confidence assessments to confirm the Contractor’s launch system(s) will be ready to meet an EELV payload’s required launch date. The outcome will be one of the following:

(A) Outcome 1: If the Government determines both Contractors are likely to meet the payload required launch date, then that payload will remain on the list of payloads to be assigned to a launch service.

(B) Outcome 2: If the Government determines one Contractor is unlikely to meet the payload launch date due to an LSMAP score of low technical maturity and/or low schedule confidence, that payload will be assigned to the Contractor that can meet the payload launch date. The requirements table (Table 1 below) will be adjusted to account for the removal of an assignment from one Contractor and given to the other Contractor if there are not enough other payloads to assign to the one Contractor to meet its annual launch service requirement.

(C) Outcome 3: If the Government determines both Contractors cannot meet the payload launch date due to LSMAP scores of low technical maturity and/or low schedule confidence, the Government will not be held to the terms of this contract when assigning the applicable launch service. Therefore, the Government may procure the launch service through another contracting mechanism.

(ii) Step 2: Mission Assignment per Government Discretion:

(A) The Government, with inputs from the respective Space and Missile Systems Center and NRO (if applicable) certification official, will consider Assured Access to Space (AATS) policy, National Security needs, operational considerations, respective assessments for mission compatibility and integration risks, performance on the Phase 2 contract, total launch service cost, and other costs to the government in assigning the missions. After these considerations, the Government will assign each EELV payload to Contractor A or Contractor B according to Table 1 Launch Service Distributions where Contractor A is the “Requirements 1” provider and Contractor B is the “Requirements 2” provider.

(iii) Step 3: Mission Assignment Notification: The Government will issue these mission assignments via PCO letter and update the Assigned Launch Services in Table 1 of this clause via contract modification, if necessary.

(6) Ordering Process. Upon each mission’s funds authorization and appropriation, the Government will:

(i) Identify the launch service need(s) each GFY based on launch services applicable to paragraph (4).

(ii) Identify the annual number of launch services to be assigned to the Contractor per Table 1, Launch Service Distribution. The assigned launch services depicted in Table 1 are a running total for the entire Contract ordering period. For example, if GFY1 has five (5) launch services, as outlined by paragraph (4) of this clause, then the Government would assign three (3) missions to Contractor A and two (2) missions to Contractor B. Then, GFY2 will begin with the sixth (6th) mission sequence in Table 1. The total number of launch service orders over the ordering period will depend on actual EELV program launch service requirements, authorizations, and appropriations.

Table 1: Launch Service Distribution

(iii) Determine which EELV Payload for a given GFY will be assigned to the Contractor per the mission assignment process as specified in paragraph (5).

(A) All payloads specified under paragraph (4) and ordered under this contract will be subject to the mission assignment process as specified in paragraph (5).

(iv) Determine the launch vehicle configuration price using the Configuration Pricing Tables in Attachment 8 to this Contract.

(v) Assign a launch date (referred as the “contracted launch date”) to each launch service CLIN (YYX1 and YYX2 series).

(vi) The PCO will make a unilateral contract modification adding the assigned missions to the applicable contract as specified in paragraph (3).

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