05b. Amd 0001 - FR24RDI20000000127 - Attachment 2 - Combined Synopsis - Solicitation 07.25.2024.pdf

COMBINED SYNOPSIS AND SOLICITATION

Amendment 0001

July 25, 2024

This is a combined synopsis/solicitation for commercial products or commercial services prepared in accordance with the format in subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; quotes are being requested and a separate written solicitation will not be issued.

The solicitation number is FR24RDI20000000127 and being issued as full and open competition.

This notice and the incorporated provisions and clauses are those in affect through the Federal Acquisition Circular FAC 2024-05. Clauses and Provisions are available in full text at www.acquisition.gov. All responsible sources may submit a quote.

North American Industry Classification System (NAICS) Code:

333120, Construction Machinery Manufacturing

Eligible business size: All

Competition: Full and Open Competition

Product and Service Code (PSC): 2230, Right-of-Way Construction and Maintenance Equipment, Railroad

FAR Provisions/Clauses: 52.212-1, 52.212-2, 52.212-3, 52.212-4, 52.212-5 apply to this procurement. For full text and wording visit www.acquisition.gov.

The Government contemplates an award of a single Firm Fixed Price (FFP) purchase order/contract resulting from this solicitation.

Description of requirements for the items to be acquired:

Description:

The U.S. Department of Transportation (DOT), Federal Railroad Administration (FRA) anticipates awarding a Firm Fixed Price type contract for a Railroad Track Tamping Machine (Tamper) to support construction and maintenance of tracks at DOT’s Transportation Technology Center (TTC)

TTC is located approximately 20 miles northeast of Pueblo, Colorado, at 55500 DOT Rd, Pueblo, CO 81001 and has approximately 50 miles of test rail track, including: (1) a short High Tonnage Loop used primarily to test track components under heavy axle load freight cars; (2) a 13.5-mile long Railroad Test Track used for high-speed testing up to 165 mph; (3) a shorter Transit Test Track equipped with third rail electrification and a maximum speed of 90 mph; and

(4) various other test tracks used to evaluate vehicle performance over a range of extreme track conditions. These tracks are described in Figure 1, below.

https://www.acquisition.gov/far/part-12#FAR_Subpart_12_6 http://www.acquisition.gov/

Figure 1: Primary TTC Test Tracks

Technical Requirements:

• New, self-propelled Tamper suitable for track construction and maintenance for all FRA track classes (1-9).

• Single tie tamping of tangents, curves (up to 12 degrees), and switches on ballasted track systems.

• Compatible with wood, composite, and concrete crossties with commercially available fastening systems.

• Equipped to accept and perform tamping solutions provided by an independent survey system.

Commissioning and Training:

• The Offeror shall provide appropriate staff and materials to conduct machine set-up, commissioning, operational and technical training for a period of two (2) weeks immediately following delivery.

Manufacturer’s Warranty

• At a minimum, a 6-month warranty covering all manufacturing and workmanship defects shall be provided in the purchase price of the Tamper on CLIN 00001.

• The Offeror shall provide optional warranty terms covering 1-, 2-, and 3-year terms.

• All warrantees shall begin only after written FRA acceptance following delivery, commissioning and training.

Spare Parts:

The Offeror shall provide a priced, itemized list of recommended consumables and spare parts, including a description of each piece.

Optional Equipment:

The Offeror may propose optional equipment that may add value to FRA’s mission. Any proposed options shall be itemized individually and shall include a description of the item’s functional purpose.

Alternative Tamping Machines:

The Offeror may propose alternative tamper machine models for FRA ‘s consideration. The Offeror shall submit a separate quotation package for each proposed alternative.

Date(s) and place(s) of delivery, inspection/acceptance, and FOB point:

FOB Destination Transportation Technology Center (TTC) 55500 DOT Rd.

Pueblo, CO 81001

The following solicitation provisions apply to this acquisition:

Federal Acquisition Regulations

FAR 52.201-1, ACQUISITION 360: VOLUNTARY SURVEY (SEP 2023)

(a)All actual and potential offerors are encouraged to provide feedback on the preaward and debriefing processes, as applicable. Feedback may be provided to agencies up to 45 days after award. The feedback is anonymous, unless the participant self-identifies in the survey.

Actual and potential offerors can participate in the survey by selecting the following link: https://www.acquisition.gov/360.

(b)The Contracting Officer will not review the information provided until after contract award and will not consider it in the award decision. The survey is voluntary and does not convey any protections, rights, or grounds for protest. It creates a way for actual and potential offerors to provide the Government constructive feedback about the pre-award and debriefing processes, as applicable, used for a specific acquisition.

(End of provision)

FAR 52.204-7, System for Award Management (OCT 2018)

FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Service or Equipment (NOV 2021) https://www.acquisition.gov/360

FAR 52.204-29, Federal Acquisition Supply Chain Security Act Orders – Representation and Disclosures (DEC 2023)

(a) Definitions. As used in this provision, Covered article, FASCSA order, Intelligence community, National security system, Reasonable inquiry, Sensitive compartmented information, Sensitive compartmented information system, and Source have the meaning provided in the clause 52.204-30, Federal Acquisition Supply Chain Security Act Orders— Prohibition.

(b) Prohibition. Contractors are prohibited from providing or using as part of the performance of the contract any covered article, or any products or services produced or provided by a source, if the prohibition is set out in an applicable Federal Acquisition Supply Chain Security Act (FASCSA) order, as described in paragraph (b)(1) of FAR 52.204-30, Federal Acquisition Supply Chain Security Act Orders—Prohibition.

(c) Procedures.

(1) The Offeror shall search for the phrase “FASCSA order” in the System for Award Management (SAM)( https://www.sam.gov) for any covered article, or any products or services produced or provided by a source, if there is an applicable FASCSA order described in paragraph (b)(1) of FAR 52.204-30, Federal Acquisition Supply Chain Security Act Orders—Prohibition.

(2) The Offeror shall review the solicitation for any FASCSA orders that are not in SAM, but are effective and do apply to the solicitation and resultant contract (see FAR 4.2303(c)(2)).

(3) FASCSA orders issued after the date of solicitation do not apply unless added by an amendment to the solicitation.

(d) Representation. By submission of this offer, the offeror represents that it has conducted a reasonable inquiry, and that the offeror does not propose to provide or use in response to this solicitation any covered article, or any products or services produced or provided by a source, if the covered article or the source is prohibited by an applicable FASCSA order in effect on the date the solicitation was issued, except as waived by the solicitation, or as disclosed in paragraph (e).

(e) Disclosures. The purpose for this disclosure is so the Government may decide whether to issue a waiver. For any covered article, or any products or services produced or provided by a source, if the covered article or the source is subject to an applicable FASCSA order, and the Offeror is unable to represent compliance, then the Offeror shall provide the following information as part of the offer:

(1) Name of the product or service provided to the Government;

(2) Name of the covered article or source subject to a FASCSA order;

https://www.acquisition.gov/far/52.204-30#FAR_52_204_30 https://www.acquisition.gov/far/52.204-30#FAR_52_204_30 https://www.sam.gov/ https://www.acquisition.gov/far/52.204-30#FAR_52_204_30 https://www.acquisition.gov/far/4.2303#FAR_4_2303

(3) If applicable, name of the vendor, including the Commercial and Government Entity code and unique entity identifier (if known), that supplied the covered article or the product or service to the Offeror;

(4) Brand;

(5) Model number (original equipment manufacturer number, manufacturer part number, or wholesaler number);

(6) Item description;

(7) Reason why the applicable covered article or the product or service is being provided or used;

(f) Executive agency review of disclosures. The contracting officer will review disclosures provided in paragraph (e) to determine if any waiver may be sought. A contracting officer may choose not to pursue a waiver for covered articles or sources otherwise subject to a FASCSA order and may instead make an award to an offeror that does not require a waiver.

(End of provision)

FAR 52.212-1, Instructions to Offerors–Commercial Products and Commercial Services

(SEPT 2023)

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

PRODUCTS AND COMMERCIAL SERVICES (SEPT 2023)

Paragraph (c) is revised to 90 calendar days.

Paragraph (h) is deleted in its entirety. Multiple awards will not be made.

Instruction to Offerors:

1. Submission of quotes.

a. The Offeror must be registered in the System for Award Management (SAM) at http://www.sam.gov.

b. To obtain clarifications and/or additional information concerning requirements or specifications, submit an email to mandy.fenter@dot.gov. All inquiries will be responded to as necessary in amendment format which will be posted on http://www.sam.gov

c. The deadline for submission of questions, clarifications and/or additional information concerning this solicitation is July 23, 2024, at 3:00 p.m. (EST). No questions will be answered after this date/time unless determined to be in the best mailto:mandy.fenter@dot.gov http://www.sam.gov/ interest of the Government determined by the Contracting Officer. Telephone inquiries will not be accepted or returned.

d. Offerors must submit quotes electronically via email by the date and time specified. All quotes shall be sent to the Contracting Officer, Mandy Fenter at email: mandy.fenter@dot.gov. Telephone responses shall not be accepted.

Quotes must be received no later than August 16, 2024, at 3:00 p.m. Eastern Standard Time (EST).

2. Solicitation Instructions and Quotation Information.

The following instructions are for the preparation and submission of quotations. The purpose of this section is to establish requirements for the format and content of the quotation so that quotations contain all essential information and can be evaluated equitably. Offerors are instructed to read the entire solicitation document, including all attachments, prior to submitting questions and/or preparing your offer. Omission of any information from the quote submission requirements may result in rejection of the offer.

a. Offerors are expected to follow the detailed solicitation instructions fully and carefully. The Government will rely on the information provided by the Offeror to evaluate quotations. It is therefore imperative that the Offeror carefully follow the instructions set forth below and submit their quotation in the format and with the content specified below, providing all requested information.

b. Quotes that fail to provide information in the format requested may be found unacceptable and may be rejected without further consideration if the Contracting Officer determines that a significant revision or addendum to the Offeror’s quote would be required to permit further evaluation, and especially if the incompleteness of the quotation or errant formatting of the quote appears to be due from a lack of diligence or competence of the Offeror.

c. The instructions provided have been specifically tailored to the evaluation procedures to be applied to this solicitation. They are designed to ensure the submission of information essential to the understanding and comprehensive validation and evaluation of quotation. The Offerors are responsible for the accuracy and completeness of its quotation.

d. Quotations are expected to conform to all solicitation requirements, and the instructions contained in this Section. The Government will evaluate quotations based on the information provided in the solicitation. The Government will not assume that an Offeror possesses any capability unless set forth in the quotation.

e. These instructions are not evaluation factors. Evaluation factors are set out in

FAR 52.212-2 of this solicitation. However, failure to provide the requested information may make an Offeror ineligible for award or adversely affect the Government's evaluation of an Offeror's quotation.

mailto:mandy.fenter@dot.gov

3. Volumes, Page Limitations, Content and Submission Requirements.

All submissions shall be submitted electronically via email on or before the closing date stated above.

A submission of a quotation shall be considered the Offeror’s official quotation and will be considered binding.

A. Quotation Content, Format and Page Limitations:

Naming Convention

Title Format Page Limitations

Volume 1 Cover Letter PDF 2 Volume 2 Technical Description PDF

Tab A: Tamper Technical Description

PDF 5

Tab B: Description of Consumables and Spare Parts

PDF None

Tab C: Optional Warranties

PDF 2

Tab D: Optional Equipment Add- Ons/Accessories

PDF 3

Volume 3 Price Quote PDF None

B. PDF Format

• Paper size should be 8.5” x 11.”

• Single-sided pages

• Single-spaced lines, including text in figures.

• 1-inch margins for the body of the document

• ½ inch margins for headers and footers

• Standard, consecutive page numbering; in “page x of y pages” format of the page footer.

C. Font

• 11-point or larger (Times New Roman) text for the quotation and all attachments

• 10-point or larger (Times New Roman) text for all tables and figures in the body of the quotation

D. Submission Requirements

• The Offeror must have an active registration in the System for Award Management (SAM) at http://www.sam.gov.

• By submitting a quotation, the Offeror agrees to comply with all terms and conditions set forth in this solicitation.

• Offeror’s must email an electronic copy of each Volume to the Contracting Officer no later than the specified dates and times specified.

• DOT-FRA will not provide any technical assistance or reimburse quote submission costs.

4. Required Components of Each Volume and Section.

Volume 1: Cover Letter – Content (Note: No cost/pricing information shall appear in this volume) An authorized official who can obligate the Contractor shall sign a Cover Letter submitted on the Contractor's letterhead demonstrating the Contractor's intent to be bound to the BPA terms and conditions. The cover letter shall include the following information:

1. The Solicitation Number.

2. UEI number.

3. Taxpayer Identification Number (TIN).

4. The name, complete address, telephone number, and email address of the authorized official with the authority to enter into an agreement with the DOT, FRA. Provide the name and contact information for more than one representative in the event of unforeseen events.

5. If applicable, acknowledgement of all Solicitation amendments issued, by clearly acknowledging each amendment in the cover letter and submitting a fully executed copy of each of the Standard Form (SF) 30 Amendments.

6. Include a statement specifying the extent of agreement with all terms, conditions, and provisions included in the RFQ.

7. Identify any exceptions or deviations to clauses, provisions, attachments, etc.

which have been incorporated into this RFQ.

Volume 2: Technical Description – Content

Tab A: Technical description of the Tamper Shall include a written technical description of product offered. Offerors shall describe how their offering meets the FRA’s technical requirements as specified in the specifications document.

Tab B: Description of the Consumables and Spare Parts Shall include a list of consumable and spare parts.

Tab C: Optional warranties for the Tamper Tab C shall include description of available optional warranties for 1-year, 2-year, and 3-year.

Tab D: Optional Equipment Add-Ons/Accessories Tab D may include a description of available equipment add-ons/accessories.

Volume 3: Price

• Price Quote

Volume 3 shall include the Offeror’s price breakdown.

The Government intends to offer customary progress payments, please refer to FAR 52.232-13, Notice of Progress Payments. Interested Offeror’s shall identify any exceptions to the anticipated progress payment terms and conditions in accordance with FAR 52.232-16, Progress Payment.

All interested Offerors shall provide a price quote for the following contract line-item number(s) and items, quantities, and units of measure (including potential options):

CLIN Description Quantity Unit

Of Measure

Unit Price Extended Total

00001 Tamper (Including delivery, commissioning, training and a 6-month Warranty)

1 Each $ $

00002 Optional Extended Warranty

(1-year beyond acceptance) Shall be in accordance with

FAR 52.217-7.

1 Each $ $

Optional Extended Warranty

(2-year beyond acceptance) Shall be in accordance with

FAR 52.217-7.

1 Each $ $

Optional Extended Warranty

(3-year beyond acceptance) Shall be in accordance with

FAR 52.217-7.

1 Each $ $

00003 Consumables and Spare Parts

Shall be in accordance with

FAR 52.217-7.

00004 Optional Equipment Add- Ons/Accessories

Shall be in accordance with

FAR 52.217-7.

FAR 52.212-2, Evaluation – Commercial Products and Commercial Services (NOV 2021)

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

Factor 1: Technical Solution

Subfactor: Technical description of the Tamper

Subfactor: Description of the Consumables and Spare Parts

Subfactor: Optional warranties for the Tamper

Subfactor: Optional Equipment Add-Ons/Accessories

Factor 2: Price

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

(c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

(End of provision)

ADDENDUM TO FAR PROVISION 52.212-2, EVALUATION - COMMERCIAL

PRODUCTS AND COMMERCIAL SERVICES. (NOV 2021)

It is the Government’s intent to award a single firm fixed price purchase order using the procedures in FAR Part 13, to the responsible Offeror whose quote, in conforming to the solicitation, provides the overall best value to the Government considering technical evaluation factors and price. The evaluation will be based on the demonstrated capabilities of, and the overall merit of the solution proposed by the prospective Offeror in relation to the needs of this procurement as set forth in this solicitation. The merits of each quote will be evaluated carefully.

Each quote must demonstrate the feasibility of successful implementation of the requirements of the solicitation.

The Government may reject any quote that is evaluated to be non-compliant with the solicitation requirements.

Should initial quotes not provide the Government with a satisfactory total solution, the Government reserves the right to engage with Offerors to obtain a better understand and to reach a best value determination. The Government reserves the right to engage all, some, or none of the Offerors submitting quotations in response to this solicitation. Evaluations will be based solely on the information included in the quote. Therefore, the Quoter’s initial quote should contain the Quoter’s best terms. After receipt of quotes, the Government will conduct an evaluation. At any time prior to selection, including upon receipt of quotes, the Government may exclude a quote from further consideration for any material failure to follow instructions, including the omission of required information.

Evaluation of quotes shall be in accordance with FAR Part 13, Simplified Acquisition Procedures, and this solicitation. Evaluation techniques may include Confidence Ratings, Comparative Evaluation, or a combination of these techniques.

In the event Comparative Evaluation is used, the Government may compare Offeror’s quotes to each other to select the quote that is best suited and provides the best value, considering the evaluation factors in this solicitation.

In the event Confidence Ratings are used the following ratings will be used:

Confidence Ratings

High Confidence The Government has high confidence that the Offeror understands the requirement, proposes a sound approach, and will be successful in performing the contract.

Some Confidence

The Government has some confidence that the Offeror understands the requirement, proposes an acceptable approach, and will be successful in performing the contract.

Low Confidence

The Government has low confidence that the Offeror understands the requirement, proposes an adequate approach, and will be successful in performing the contract.

Award will be made to the quote that is the most advantageous to the Government.

Once the government determines that an Offeror is the best-suited (e.g., the apparent successful awardees), the government reserves the right to engage with only that Offeror to address any remaining issues, if necessary, and finalize an award to that Offeror. These issues may include technical and price. If the parties cannot successfully address any remaining issues, as determined pertinent at the sole discretion of the government, the government reserves the right to engage other best-suited Offerors based on the original evaluation and address any remaining issues. Once the government has engaged the other best-suited Offerors, no further engagements with the previous Offeror will be entertained. This process will continue until an award is successfully reached. This does not constitute a competitive range in accordance with FAR 15.306(c) as this procurement is being conducted in accordance with FAR Part 13.

Best Value Trade-Offs: The Government reserves the right to make an award to other than the lowest priced Offer if the superior technical solution, or the solution indicating a reduced performance risk, warrants paying a premium. The Government's objective is to obtain the highest technical quality considered necessary to achieve the project objectives, with a fair and reasonable price.

Offerors are cautioned that the Government may not necessarily select the Quoter with lowest priced quote. Technical evaluation factors are more important than price. The Government reserves the right to award to a higher priced Quoter for a more technically superior solution as set forth in the technical evaluation factors. Each Offeror should recognize that its initial price and technical quote may be used as the sole and final basis for award and should quote accordingly. Please provide any pricing discounts.

(End of provision)

FAR 52.212-3, Offerors Representations and Certifications–Commercial Products and Commercial Services (MAY 2024)

FAR 52.252-1, Solicitation Provisions Incorporated by Reference (FEB 1998)

This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its quotation or offer. In lieu of submitting the full text of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its quotation or offer. Also, the full text of a solicitation provision may be accessed electronically at this/these address(es): www.acquisition.gov and www.acquisition.gov/TAR

FAR 52.216-1 Type of Contract (APR 1984)

Government contemplates award of a single firm fixed price purchase order resulting from this solicitation.

The following solicitation clauses apply to this acquisition:

Federal Acquisition Regulations

FAR 52.204-19, Incorporation by Reference of Representations and Certification (DEC 2014)

FAR 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021) http://www.acquisition.gov/TAR

FAR 52.217-7, Option for Increased Quantity-Separately Priced Line Item (Mar 1989)

The Government may require the delivery of the numbered line item, identified in the award as an option item, in the quantity and at the price stated in the award. The Contracting Officer may exercise the option by written notice to the Contractor with a 30-day notice.

Delivery of added items shall continue at the same rate that like items are called for under the contract unless the parties otherwise agree.

(End of clause)

FAR 52.222-50, Combating Trafficking in Persons (NOV 2021)

FAR 52.225-1, Buy American -Supplies (OCT 2022)

FAR 52.226-8, Encouraging Contractor Policies to Ban Text Messaging While Driving

(MAY 2024)

FAR 52.232-13 NOTICE OF PROGRESS PAYMENTS (APR 1984)

The need for customary progress payments conforming to the regulations in subpart 32.5 of the Federal Acquisition Regulation (FAR) will not be considered as a handicap or adverse factor in the award of the contract. The Progress Payments clause included in this solicitation will be included in any resulting contract, modified or altered if necessary in accordance with subsection 52.232-16 and its Alternate I of the FAR. Even though the clause is included in the contract, the clause shall be inoperative during any time the contractor’s accounting system and controls are determined by the Government to be inadequate for segregation and accumulation of contract costs.

(End of clause)

FAR 52.232-16 PROGRESS PAYMENTS (NOV 2021)

The Government shall make customary progress payments to the Contractor based on the following milestones:

Milestones Description Total Award % Amount

1 Initial Progress Payment – Materials or Manufacturing started

35% $ To be set at award

2 Progress Payment - Pre-Delivery Inspection and Testing (Factory)

35% $ To be set at award

3 Progress Payment - Delivery to Destination

10% $ To be set at award

4 Final Payment upon written FRA inspection/acceptance following

20% $ To be set at award https://www.acquisition.gov/far/subpart-32.5#FAR_Subpart_32_5 https://www.acquisition.gov/far/subpart-52.2#FAR_52_232_16 set-up, commissioning, and training.

The following conditions apply:

(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 Federal Acquisition Regulation (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.

https://www.acquisition.gov/far/part-31#FAR_31_205_10 https://www.acquisition.gov/far/part-31#FAR_31_205_10

(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 paragraphs (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.

(9) The costs applicable to items delivered, invoiced, and accepted shall not include costs in excess of the contract price of the items.

(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 fair value of the undelivered work is less than the amount of unliquidated progress payments for that work.

(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 paragraph (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;

(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 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 lost (see 45.101).

(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, forms, and access to records.

(1) The Contractor shall promptly furnish reports, certificates, financial statements, and other pertinent information (including estimates to complete) 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.

(2) The Contractor shall furnish estimates to complete that have been developed or updated within six months of the date of the progress payment request. The estimates to complete shall represent the Contractor’s best estimate of total costs to complete all remaining contract work required under the contract. The estimates shall include sufficient detail to permit Government verification.

https://www.acquisition.gov/far/part-45#FAR_45_101

(3) Each Contractor request for progress payment shall:

(i) Be submitted on Standard Form 1443, Contractor’s Request for Progress Payment, or the electronic equivalent as required by agency regulations, in accordance with the form instructions and the contract terms; and

(ii) Include any additional supporting documentation requested by the Contracting Officer.

(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 subcon-tract 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.

https://www.acquisition.gov/far/part-32#FAR_32_504 https://www.acquisition.gov/far/part-52#FAR_52_232_32 https://www.acquisition.gov/far/part-32#FAR_Part_32 https://www.acquisition.gov/far/part-32#FAR_32_504

(5) If the financing payments are in the form of commercial product or commercial service 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 product or commercial service purchase that meets the definition and standards for acquisition of commercial products and commercial services 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 FAR 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 https://www.acquisition.gov/far/part-32#FAR_32_206 https://www.acquisition.gov/far/part-2#FAR_Part_2 https://www.acquisition.gov/far/part-12#FAR_Part_12 https://www.acquisition.gov/far/part-32#FAR_32_504 https://www.acquisition.gov/far/part-32#FAR_32_113 https://www.acquisition.gov/far/part-2#FAR_Subpart_2_1 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 based on the milestone schedule 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)

FAR 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (MAR 2023)

FAR 52.233-4 Applicable Law for Breach of Contract Claim (OCT 2004)

FAR 52.246-18 Warranty of Supplies of a Complex Nature (MAY 2021)

(a) Definitions. As used in this clause-

Acceptance means the act of an authorized representative of the Government by which the Government assumes for itself, or as an agent of another, ownership of existing and identified supplies, or approves specific services rendered, as partial or complete performance of the contract.

Supplies means the end items furnished by the Contractor and related services required under this contract. The word does not include "data."

(b) Contractor’s obligations.

(1) The Contractor warrants that for ________ [Contracting Officer shall state the specific warranty period after delivery, or the specified event whose occurrence will terminate the warranty period; e.g.,the number of miles or hours of use, or combinations of any applicable events or periods of time] all supplies furnished under this contract will be free from defects in material and workmanship and will conform with all requirements of this contract; provided, however, that with respect to Government-furnished property, the Contractor’s warranty shall extend only to its proper installation, unless the Contractor performs some modification or other work on the property, in which case the Contractor’s warranty shall extend to the modification or other work.

(2) Any supplies or parts thereof corrected or furnished in replacement shall be subject to the conditions of this clause to the same extent as supplies initially delivered.

This warranty shall be equal in duration to that set forth in paragraph (b)(1) of this clause and shall run from the date of delivery of the corrected or replaced supplies.

(3) The Contractor shall not be obligated to correct or replace supplies if the facilities, tooling, drawings, or other equipment or supplies necessary to accomplish the correction or replacement have been made unavailable to the Contractor by action of the Government. In the event that correction or replacement has been directed, the Contractor shall promptly notify the Contracting Officer, in writing, of the nonavailability.

(4) The Contractor shall also prepare and furnish to the Government data and reports applicable to any correction required (including revision and updating of all affected data called for under this contract) at no increase in the contract price.

(5) When supplies are returned to the Contractor, the Contractor shall bear the transportation costs from the place of delivery specified in the contract (irrespective of the f.o.b.

point or the point of acceptance) to the Contractor’s plant and return.

(6) All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained in this contract.

(c) Remedies available to the Government.

(1) In the event of a breach of the Contractor’s warranty in paragraph (b)(1) of this clause, the Government may, at no increase in contract price-

(i) Require the Contractor, at the place of delivery specified in the contract (irrespective of the f.o.b. point or the point of acceptance) or at the Contractor’s plant, to repair or replace, at the Contractor’s election, defective or nonconforming supplies; or

(ii) Require the Contractor to furnish at the Contractor’s plant the materials or parts and installation instructions required to successfully accomplish the correction.

(2) If the Contracting Officer does not require correction or replacement of defective or nonconforming supplies or the Contractor is not obligated to correct or replace under paragraph (b)(3) of this clause, the Government shall be entitled to an equitable reduction in the contract price.

(3) The Contracting Officer shall notify the Contractor in writing of any breach of the warranty in paragraph (b) of this clause within _____. [Contracting Officer shall insert specific period of time in which notice shall be given to the Contractor; e.g.,"45days after delivery of the nonconforming supplies."; "45days of the last delivery under this contract."; or "45days after discovery of the defect."] The Contractor shall submit to the Contracting Officer a written recommendation within _______ [Contracting Officer shall insert period of time] as to the corrective action required to remedy the breach.