FR24RDI20000000127 - Combined Synopsis - Solicitation 07.15.2024.pdf

COMBINED SYNOPSIS AND SOLICITATION

July 15, 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 All interested Offerors shall provide a 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.

(End of addendum provision)

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)

FAR 52.217-7, Option for Increased Quantity-Separately Priced Line Item (Mar 1989) http://www.acquisition.gov/TAR

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

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

Transportation Acquisition Regulations

TAR 1252.201-70 Contracting Officer’s Representative (NOV 2022)

(a) The Contracting Officer may designate Government personnel to act as the Contracting Officer's Representative (COR) to perform functions under the contract such as review and/or inspection and acceptance of supplies, services, including construction, and other functions of a technical nature. The Contracting Officer will provide a written notice of such designation to the Contractor within five working days after contract award or for construction, not less than five working days prior to giving the contractor the notice to proceed. The designation letter will set forth the authorities and limitations of the COR under the contract.

(b) The Contracting Officer cannot authorize the COR or any other representative to sign documents (i.e., contracts, contract modifications, etc.) that require the signature of the Contracting Officer.

(End of clause)

TAR 1252.232-70 Electronic Submission of Payment Requests (NOV 2022)

(a) Definitions. As used in this clause -

(1) Contract financing payment has the meaning given in FAR 32.001.

(2) Payment request means a bill, voucher, invoice, or request for contract financing payment or invoice payment with associated supporting documentation. The payment request must comply with the requirements identified in FAR 32.905(b), “Content of Invoices,” this clause, and the applicable Payment clause included in this contract.

(3) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods and formats identified in paragraph (c) of this clause. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests.

(4) Invoice payment has the meaning given in FAR 32.001.

(b) Electronic payment requests. Except as provided in paragraph (e) of this clause, the contractor shall submit payment requests in electronic form. Purchases paid with a Governmentwide commercial purchase card are an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required.

(c) Processing system. The Department of Transportation utilizes the DELPHI system for processing invoices. The DELPHI module for submitting invoices is called iSupplier. Access to DELPHI is granted with electronic authentication of credentials (name & valid email address) utilizing the GSA credentialing platform login.gov. Vendors submitting invoices are required to submit invoices via iSupplier (DELPHI) and authenticated via www.login.gov.

(d) Invoice requirements. To receive payment and in accordance with the Prompt Payment Act, all invoices submitted as attachments in iSupplier (DELPHI) shall contain the following:

(1) Invoice number and invoice date.

(2) Period of performance covered by invoice.

(3) Contract number and title.

(4) Task/Delivery Order number and title (if applicable).

(5) Amount billed (by CLIN), current and cumulative.

(6) Total ($) of billing.

(7) Cumulative total billed for all contract work to date.

(8) Name, title, phone number, and mailing address of person to be contacted in the event of a defective invoice.

(9) Travel. If the contract includes allowances for travel, all invoices which include charges pertaining to travel expenses will catalog a breakdown of reimbursable expenses with the appropriate receipts to substantiate the travel expenses.

(e) Payment system registration. All persons accessing the iSupplier (DELPHI) will be required to have their own unique user ID and password and be credentialed through login.gov.

(1) Electronic authentication. See www.login.gov for instructions.

(2) To create a www.login.gov account, the user will need a valid email address and a working phone number. The user will create a password and then www.login.gov will reply with an email confirming the email address.

(3) iSupplier (DELPHI) registration instructions: new users should navigate to: http://einvoice.esc.gov to establish an account. Users are required to log in to iSupplier (DELPHI) every 45 days to keep it active.

(4) Training on DELPHI. To facilitate use of DELPHI, comprehensive user information is available at http://einvoice.esc.gov.

(5) Account Management. Vendors are responsible to contact their assigned COR when their firm's points of contacts will no longer be submitting invoices, so they can be removed from the system.

(f) Waivers. For contractors/vendors who are unable to utilize DOT's DELPHI system, waivers may be considered by DOT on a case-by-case basis. Vendors should contact their Contracting Officer's Representative (COR) for procedures.

(g) Exceptions and alternate payment procedures. If, based on one of the circumstances set forth in 1232.7002(a) or (b), and the contracting officer directs that payment requests be made by mail, the contractor shall submit payment requests by mail through the United States Postal Service to the designated agency office. If alternate payment procedures are authorized, the Contractor shall include a copy of the Contracting Officer's written authorization with each payment request. If DELPHI is succeeded by later technology, the Contracting Officer will supply the Contractor with the latest applicable electronic invoicing instructions.

(End of clause)

TAR 1252.239-74 Safeguarding DOT Sensitive Data and Cyber Incident Reporting. (NOV 2022)

(a) Definitions. As used in this clause-

Adequate security means protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information against the probability of occurrence.

Compromise means disclosure of information to unauthorized persons, or a violation of the security policy of a system, whereby without authorization information is disclosed, modified, destroyed, lost, or copied to unauthorized media-whether intentionally or unintentionally.

Contractor attributional/proprietary information means information that identifies the Contractor(s), whether directly or indirectly, by the grouping of information that can be traced back to the Contractor(s) (e.g., program description, facility locations), personally identifiable information, trade secrets, commercial or financial information, or other commercially sensitive information not customarily shared outside of a company.

Covered contractor information system means an unclassified information system owned or operated by or for a Contractor and that processes, stores, or transmits DOT sensitive data.

DOT sensitive data means unclassified information that requires safeguarding, or dissemination controls pursuant to and consistent with law, regulation, and Government-wide policies, and is-

(1) Marked or otherwise identified in the contract, task order, or delivery order and provided to the Contractor by or on behalf of DOT in support of the performance of the contract; or

(2) Collected, developed, received, transmitted, used, or stored by or on behalf of the Contractor in support of the performance of the contract.

Cyber incident means actions taken using computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein.

Federal record as defined in 44 U.S.C. 3301, includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them. The term Federal record-

(1) Includes all DOT records;

(2) Does not include personal materials;

(3) Applies to records created, received, or maintained by Contractors pursuant to a DOT contract; and

(4) May include deliverables and documentation associated with deliverables.

Forensic analysis means the practice of gathering, retaining, and analyzing computer-related data for investigative purposes in a manner that maintains the integrity of the data.

Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information.

Malicious software means computer software or firmware intended to perform an unauthorized process that will have adverse impact on the confidentiality, integrity, or availability of an information system. This definition includes a virus, worm, Trojan horse, or other code-based entity that infects a host, as well as spyware and some forms of adware.

Media means physical devices or writing surfaces including, but not limited to, magnetic tapes, optical disks, magnetic disks, large-scale integration memory chips, and printouts onto which DOT sensitive data is recorded, stored, or printed within a covered contractor information system.

Operationally critical support means supplies or services designated by the Government as critical for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation.

Spillage security incident means an incident that results in the transfer of classified or unclassified information onto an information system not accredited (i.e., authorized) for the appropriate security level.

Technical information means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information, regardless of whether the clause is incorporated in this solicitation or contract. Examples of technical information include research and engineering data, engineering drawings, and associated lists, specifications, standards, process sheets, manuals, technical reports, technical orders, catalog-item identifications, data sets, studies and analyses and related information, and computer software executable code and source code.

(b) Adequate security. The Contractor shall provide adequate security on all covered contractor information systems. To provide adequate security, the Contractor shall implement, at a minimum, the following information security protections:

(1) For covered Contractor information systems that are part of an information technology (IT) service or system operated on behalf of the Government, the following security requirements apply:

(i) Cloud computing services shall be subject to the security requirements specified in the clause 1252.239-76, Cloud Computing Services, of this contract.

(ii) Any other such IT service or system (i.e., other than cloud computing) shall be subject to the security requirements specified elsewhere in this contract.

(2) For covered Contractor information systems that are not part of an IT service or system operated on behalf of the Government and therefore are not subject to the security requirement specified at paragraph (b)(1) of this clause, the following security requirements apply:

(i) Except as provided in paragraph (b)(2)(iv) of this clause, the contractor information system shall be subject to the security requirements in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, Revision 2, "Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations" (available via the internet at https://csrc.nist.gov/publications/detail/sp/800-171/rev-2/final) in effect at the time the solicitation is issued or as authorized by the Contracting Officer.

(ii) The Contractor shall implement NIST SP 800-171, Rev. 2, no later than 30 days after the award of this contract. The Contractor shall notify Contract Officer of any security requirements specified by NIST SP 800-171; Rev. 2 not implemented within 30 days of time of contract award.

(iii) If the Vendor proposes to vary from any security requirements specified by NIST SP 800-171, Rev. 2 in effect at the time the solicitation is issued or as authorized by the Contracting Officer, the Vendor shall submit to the Contracting Officer, for consideration by the DOT Chief Information Officer (CIO), a written explanation of-

(A) Why a particular security requirement is not applicable; or

(B) How the Contractor will use an alternative, but equally effective, security measure to satisfy the requirements of NIST SP 800-171, Rev. 2.

(iv) The Office of the DOT CIO will evaluate Vendor requests to vary from NIST SP 800-171, Rev. 2 requirements and inform the Vendor in writing of its decision before contract award. The Government will incorporate accepted variance(s) from NIST SP 800-171, Rev. 2 into any resulting contract.

(v) The Contractor need not implement any security requirement adjudicated by an authorized representative of the DOT CIO to be nonapplicable, or have an alternative, but equally effective, security measure that may be implemented in its place.

(vi) If the DOT CIO has previously adjudicated the contractor's requests indicating that a requirement is not applicable or that an alternative security measure is equally javascript:void(0) effective, a copy of that approval shall be provided to the Contracting Officer when the Contractor requests its recognition under this contract

(3) If the Contractor intends to use an external cloud service provider to store, process, or transmit any DOT sensitive data in performance of this contract, the Contractor shall require and ensure that the cloud service provider meets security requirements equivalent to those established by the Government for the Federal Risk and Authorization Management Program (FedRAMP) Moderate baseline (https://www.fedramp.gov/resources/documents/) and that the cloud service provider complies with requirements in paragraphs (c) through (h) of this clause for cyber incident reporting, malicious software, media preservation and protection, access to additional information and equipment necessary for forensic analysis, and cyber incident damage assessment.

(4) The Contractor will apply other information systems security measures when the Contractor reasonably determines that information systems security measures, in addition to those identified in paragraphs (b)(1) and (b)(2) of this clause, may be required to provide adequate security in a dynamic environment or to accommodate special circumstances (e.g., medical devices) and any individual, isolated, or temporary deficiencies based on an assessed risk or vulnerability. These measures may be addressed in a system security plan, as required by, clause 1252.239-70, Security Requirements for Unclassified Information Technology Resources.

(c) Cyber incident reporting requirement. (1) When the Contractor discovers a cyber incident that affects a covered contractor information system or the DOT sensitive data residing therein, or that affects the contractor's ability to perform the requirements of the contract that are designated as operationally critical support and identified in the contract, the Contractor shall-

(i) Conduct a review for evidence of compromise of DOT sensitive data, including, but not limited to, identifying compromised computers, servers, specific data, and user accounts. This review shall also include analyzing covered contractor information system(s) that were part of the cyber incident, as well as other information systems on the Contractor's network(s), that may have been accessed because of the incident in order to identify compromised DOT sensitive data or whether the incident affects the Contractor's ability to provide operationally critical support; and

(ii) Rapidly report cyber incidents to DOT Security Operations Center (SOC) 24x7x365 at phone number: 571-209-3080 (Toll Free: 1-866-580-1852).

(d) Cyber incident report. The cyber incident report shall be treated as information created by or for DOT and shall include, at a minimum, the required elements in paragraph (c)(1)(i).

(e) Spillage. Upon notification by the Government of a spillage, or upon the Contractor's discovery of a spillage, the Contractor shall cooperate with the Contracting Officer to address the spillage in compliance with DOT policy.

(f) Malicious software. When the Contractor or subcontractors discover and isolate malicious software in connection with a reported cyber incident, the Contractor shall submit the malicious software to DOT in accordance with instructions provided by the Contracting Officer. Do not send the malicious software to the Contracting Officer.

(g) Media preservation and protection. When a Contractor discovers a cyber incident has occurred, the Contractor shall preserve and protect images of all known affected information systems identified in paragraph (c)(1)(i) of this clause and all relevant monitoring/packet capture data for at least 90 days from the submission of the cyber incident report to allow DOT to request the media or decline interest.

(h) Access to additional information or equipment necessary for forensic analysis.

Upon request by DOT, the Contractor shall provide DOT with access to additional information or equipment that is necessary to conduct a forensic analysis.

(i) Cyber incident damage assessment activities. If DOT elects to conduct a damage assessment, the Contracting Officer will request that the Contractor provide all the damage assessment information gathered in accordance with paragraph (c) of this clause.

(j) DOT safeguarding and use of Contractor attributional/proprietary information.

The Government shall protect against the unauthorized use or release of information obtained from the Contractor (or derived from information obtained from the Contractor) under this clause that includes Contractor attributional/proprietary information, including such information submitted in accordance with paragraph (c).

To the maximum extent practicable, the Contractor shall identify and mark attributional/proprietary information. In making an authorized release of such information, the Government will implement appropriate procedures to minimize the Contractor attributional/proprietary information that is included in such authorized release consistent with applicable law.

(k) Use and release of Contractor attributional/proprietary information not created by or for DOT. Information that is obtained from the Contractor (or derived from information obtained from the Contractor) under this clause that is not created by or for DOT is authorized to be released outside of DOT-

(1) To entities with missions that may be affected by such information;

(2) To entities that may be called upon to assist in the diagnosis, detection, or mitigation of cyber incidents;

(3) To Government entities that conduct counterintelligence or law enforcement investigations;

(4) To a support services contractor ("recipient") that is directly supporting Government activities under a contract that includes the clause at 1252.239-73, Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information; or

(5) With Contractor's consent; or

(6) As otherwise required by law.

(l) Use and release of Contractor attributional/proprietary information created by or for DOT. Information that is obtained from the Contractor (or derived from information obtained from the Contractor) under this clause that is created by or for DOT (including the information submitted pursuant to paragraph (c) of this clause) is authorized to be used and released outside of DOT for purposes and activities authorized by paragraph (j) of this clause, and for any other lawful Government purpose or activity, subject to all applicable statutory, regulatory, and policy based restrictions on the Government's use and release of such information.

(m) The Contractor shall conduct activities under this clause in accordance with applicable laws and regulations on the interception, monitoring, access, use, and disclosure of electronic communications and data.

(n) Other safeguarding or reporting requirements. The safeguarding and cyber incident reporting required by this clause in no way abrogates the Contractor's responsibility for other safeguarding or cyber incident reporting pertaining to its unclassified information systems as required by other applicable clauses of this contract, or because of other applicable Government statutory or regulatory requirements.

(o) Subcontract flow down requirements. The Contractor shall-

(1) Include this clause, including this paragraph (o), in subcontracts, or similar contractual instruments, for operationally critical support, or for which subcontract performance will involve DOT sensitive data, including subcontracts for commercial products and commercial services, without alteration, except to identify the parties.

The Contractor shall determine if the information required for subcontractor performance retains its identity as DOT sensitive data and will require protection under this clause, and, if necessary, consult with the Contracting Officer; and

(2) Require subcontractors to-

(i) Notify the prime Contractor (or next higher-tier subcontractor) when submitting a request to vary from a NIST SP 800-171, Rev. 2 security requirement to the Contracting Officer, in accordance with paragraph (b)(2)(iii) of this clause; and

(ii) Provide the incident report number, automatically assigned by DOT, to the prime Contractor (or next higher-tier subcontractor) as soon as practicable, when reporting a cyber incident to DOT as required in paragraph (c) of this clause.

(End of clause)

TAR 1252.239-91 Records Management. (NOV 2022)

(a) Definition.

Federal record, as defined in 44 U.S.C. 3301, means all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them. The term Federal record:

(1) Includes all DOT records.

(2) Does not include personal materials.

(3) Applies to records created, received, or maintained by Contractors pursuant to a DOT contract.

(4) May include deliverables and documentation associated with deliverables.

(b) Requirements. (1) Compliance. Contractor shall comply with all applicable records management laws and regulations, as well as National Archives and Records Administration (NARA) records policies, including but not limited to 44 U.S.C.

chapters 21, 29, 31, and 33, NARA regulations at 36 CFR chapter XII, subchapter B, and those policies associated with the safeguarding of records covered by Privacy Act of 1974 (5 U.S.C. 552a). These policies include the preservation of all records, regardless of form or characteristics, mode of transmission, or state of completion.

(2) Applicability. In accordance with 36 CFR 1222.32, all data created for Government use and delivered to, or falling under, the legal control of the Government, are Federal records subject to the provisions of 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, and the Privacy Act of 1974 (5 U.S.C. 552a), as amended. Such Federal records shall be managed and scheduled for disposition only as permitted by the Federal Records Act, other relevant statutes or regulations, and DOT Order 1351.28, Departmental Records Management Policy.

(3) Records maintenance. While DOT records are in the Contractor's custody, the Contractor is responsible for preventing the alienation or unauthorized destruction of DOT records, including all forms of mutilation. Records may not be removed from the legal custody of DOT or destroyed except in accordance with the provisions of the agency records schedules and with the written concurrence of the DOT or Component Records Officer, as appropriate. Willful and unlawful destruction, damage or alienation of Federal records is subject to the fines and penalties imposed by 18 U.S.C. 2701.