Direct_Access_SOW-Solicitation_.pdf

Solicitation #GS-09-P-16-KS-C-7003

Title: Direct access electricity, California, 2016-2017

Period of Performance: 8/1/2016 – 8/31/2017

Solicitation Issue Date: June 16, 2016 Solicitation Closing Date: July 7, 2016 9AM PDT

CONTACT INFORMATION:

U.S. General Services Administration

Cynthia Chen (9PQ3S) Contracting Officer 50 United Nations Plaza RM#4545 San Francisco, CA 94102-3434

TABLE OF CONTENTS

1 DESCRIPTION OF SERVICES

2 DEFINITIONS

3 PERIOD OF PERFORMANCE

4 PRICE SCHEDULE

5 ACCOUNT NUMBERS

6 COMPLIANCE WITH REGULATORY REQUIREMENTS

7 TAX EXEMPTION

8 UDC COORDINATION

9 INSPECTION AND ACCEPTANCE

10 INVOICE REQUIREMENTS AND PAYMENT

11 THE ROLE OF GOVERNMENT PERSONNEL AND RESPONSIBILITY FOR CONTRACT

ADMINISTRATION

11.1 CONTRACTING OFFICER (CO)

11.2 CONTRACTING OFFICER'S REPRESENTATIVE (COR)

12 NOTICES AND CORRESPONDENCE

13 CONFIDENTIALITY

14 TERMINATION

15 52.241 UTILITY SERVICES PROVISIONS AND CLAUSES

15.1 52.241-1 ELECTRIC SERVICE TERRITORY COMPLIANCE REPRESENTATION (MAY 1999)[TAILORED]

15.2 52.241-2 ORDER OF PRECEDENCE-UTILITIES (FEB 1995)[TAILORED]

15.3 52.241-3 SCOPE AND DURATION OF CONTRACT (FEB 1995)[TAILORED]

15.4 52.241-4 CHANGE IN CLASS OF SERVICE (FEB 1995)[TAILORED]

15.5 52.241-5 CONTRACTOR'S FACILITIES (FEB 1995)[TAILORED]

15.6 52.241-6 SERVICE PROVISIONS (FEB 1995)[TAILORED]

16 FAR CLAUSE 52.212-4 CONTRACT TERMS AND CONDITIONS—COMMERCIAL ITEMS (MAY

20015)

17 FAR CLAUSE 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT

STATUTES OR EXECUTIVE ORDERS—COMMERCIAL ITEMS (MAR 2016)

18 552.212-71 CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF

COMMERCIAL ITEMS (OCT 2014)

19 INSTRUCTION TO OFFERORS

19.1 STEP 1: QUESTIONS, PROPOSED SUPPLEMENTAL TERMS AND CONDITIONS

19.2 STEP 2: EXECUTABLE PROPOSAL

19.3 NEGOTIATIONS (IF APPLICABLE)

20 BASIS OF AWARD

1 DESCRIPTION OF SERVICES

The Contractor shall provide direct access electricity for General Services Administration (GSA, or Government) accounts listed in Attachment A (Accounts), within the PG&E, Southern California Edison, and SDG&E (the UDCs ("utility distribution companies")) service areas. The Contractor shall perform all necessary and required electricity purchasing/supply, metering, billing and scheduling coordination services for GSA without additional charge. Scheduling Coordination services shall include, but are not limited to, meter data management, daily load forecasting, scheduling, and settlement obligations in accordance with the applicable ISO tariff rules and requirements. Title to electricity provided passes to GSA at the meter, and GSA will pay for the number of kWh received at the meter as measured by the meter. Line losses are the responsibility of the Contractor; GSA may not be surcharged for line losses. See “Price Schedule” herein.

Contractor agrees to sell, and GSA agrees to purchase, full requirements of the listed accounts if these accounts remain within the GSA inventory. If any building is removed from the GSA inventory during the term of this Contract, accounts associated with such building will be removed from this Contract concurrently with the date the building is removed from the GSA inventory, at no additional cost to GSA, so long as GSA provides notice to the Contractor at least 30 days in advance of removal date (i.e., GSA will pay for electricity at the Contract rate until the building changes hands, and nothing else). If GSA fails to give such notice, Contractor may submit a claim for any additional costs that can be demonstrated to derive directly from failure to provide such notice;

such claims shall, however, consider any increases in consumption for other covered accounts that might compensate in whole or in part. GSA does not know of any buildings covered by this Contract that will be removed from the inventory during the period of this Contract. If the Contractor elects to use bandwidth then the bandwidth provisions herein shall govern removal of any building.

New accounts resulting in a net increase of consumption will only be added by mutual negotiation and agreement. New accounts resulting from reorganization of existing accounts (e.g., setting up a new account for a meter that was previously included under another account) that do not impact consumption will not result in any change in price.

GSA reserves the right to produce electricity for on-site consumption, through photovoltaic projects, co-gen projects, or by other means; to participate in net metering programs; and to implement conservation projects. Existing systems are reflected in existing data.

The Parties acknowledge and agree that this contract is a “forward contract” and that Contractor and GSA are “forward contract merchants” for purposes of the U.S.

Bankruptcy Code, as amended. Further, Contractor is not providing advice regarding the value or advisability of trading in “commodity interests” as defined in the Commodity

Exchange Act, 7 U.S.C. §§ 1-25, et seq., as amended (the “CEA”), including futures Contracts and commodity options or any other activity which would cause Contractor or any of its Affiliates to be considered a commodity trading advisor under the CEA.

2 DEFINITIONS

All terms used in Exhibit A or elsewhere herein are meant as defined (1) in applicable rules of the applicable UDC; (2) in applicable decisions of the California Public Utilities Commission; or (3) published tariffs or documents of the California ISO, in that order of precedence.

3 PERIOD OF PERFORMANCE

Service shall commence for each account on the first meter read date in August 2016, and terminate at the end of each billing cycle during August 2016 (a one year period).

The Contractor is responsible for submission of Direct Access Service Requests (DASRs) and any other documents required by UDCs immediately after notification of award, to assure accounts will be switched timely.

One or more extensions of up to one year in the aggregate may, at the sole discretion of GSA, be added to the contract by bilateral modification. GSA may elect to use such extensions due to market conditions, procurement workload, or other factors. The Contractor must offer pricing to GSA reflecting market prices with the same markups for overhead and profit, as a percentage, as were applied to pricing in the original Offer.

One or more such extensions are to be regarded by the parties as within the scope of competition of this contract.

4 PRICE SCHEDULE

Price is defined in Exhibit A. Price numbers on the GSA Form 300 uses quantity estimates internally needed by GSA for accounting purposes. Exhibit A takes precedence over the GSA Form 300.

The Contractor’s price shall include energy costs, line loss costs, scheduling coordination costs, taxes, all overhead and profit, and any other costs of service delivery to the meter except the following which shall be passed through at cost:

1. Ancillary services and any other California ISO costs

2. Capacity/Resource Adequacy costs

3. Basis costs between NP15 or SP15 as applicable, and the applicable load aggregation point for each facility

4. Renewable portfolio standard (RPS) costs

5. FERC order 745 costs

For RPS, only the premium amount (i.e. cost margin between qualifying renewable energy and other energy costs for the same month) may be passed-through.

The Contractor shall make all reasonable efforts to manage costs efficiently for pass-through charges. No overhead or profit may be applied to pass-through charges; GSA will only pay the Contractor’s actual costs of obtaining such products or services. The Contractor must maintain records documenting cost of pass-through charges, and make such records available to GSA on demand. These records must be maintained for 6 years and 3 months following termination or completion of this contract.

Ceiling: should the pass-through costs for any account exceed 2 cents per kWh in the aggregate for any account in any one month notify the GSA COR immediately.

The Contractor may pool pass-through costs into a cost pool with other similar customers if:

1. The Contractor allocates costs to GSA the same as to other customers in the pool;

2. The Contractor maintains adequate records of costs and allocation of costs in any such pool such that GSA can reasonable audit costs and allocation of costs.

The Contractor may optionally provide bandwidth of +/- 10% for the aggregate load of each UDC. If the Contractor elects to use bandwidth:

1. The Contractor must provide bandwidth calculations within 15 calendar days of contract award and indicate that the Contractor will use bandwidth. Such calculations must be reasonably based on interval meter data from each UDC as provided by the Government or obtained from the UDC.

2. If aggregate energy consumption for a given UDC is more then 10% over the estimated consumption level, then the Contractor may adjust pricing for that month to:

a. Multiply the number of kWh in excess of 110% of the estimated usage for all accounts within the given UDC by the locational marginal price for the applicable ISO zone, and add that to the price (must be itemized on the invoice). Or:

b. Multiply the number of kWh by which estimated usage for all accounts within the given UDC is below 90% of estimated usage by the locational marginal price for the applicable ISO zone, and add that to the price (must be itemized on the invoice).

3. Price adjustment for bandwidth may be negative or positive. If bandwidth is used it must be used consistently, not selectively.

In the event the UDC determines that there was a metering error for any given period of time, adjustments may be made which may result in either refund by the Contractor to GSA or additional payment by GSA to the Contractor. Payment of claims in future years is subject to the availability of funds, but GSA will make all reasonable efforts to budget and obtain funds to pay for claims determined valid by the Contracting Officer.

5 ACCOUNT NUMBERS

The Contractor shall provide account numbers, which must be clearly identified on invoices, within one week of Contract award. Account numbers may not be changed during the term of performance without GSA’s approval.

6 COMPLIANCE WITH REGULATORY REQUIREMENTS

The Contractor is responsible for compliance with all FERC, CPUC, California ISO (CAISO) and other applicable regulatory and tariff requirements.

If a regulatory agency imposes new fees, taxes or surcharges the legal incidence of which fall directly on the Contractor, pricing will be subject to a negotiated adjustment to reflect such new fees, taxes or surcharges. Any such pricing adjustment will be for no more than the direct cost impact of such fees, taxes or surcharges; no markup will be permitted. Regulatory changes having an indirect impact on the Contractor or on market conditions will not be grounds for any change in pricing.

The Contractor is expected to have expertise with the California power market, and has a duty to make all reasonable efforts to mitigate the impact of regulatory or grid management changes, to include obtaining firm transmission rights, congestion revenue rights, or other available hedging instruments as prudent to reduce applicable congestion or other transmission-related charges.

7 TAX EXEMPTION

Purchases by the federal government are exempt from state and local taxation. GSA’s tax exemption number is 84-11084814. All invoices issued pursuant to this Contract shall reflect GSA’s tax exempt status. The cost of taxes the legal incidence of which falls on the contractor must be included in the Contractor’s pricing as with any other overhead cost.

8 UDC COORDINATION

The Contractor is responsible for all necessary coordination with the UDC, to include establishment or deletion of service, establishing EDI or other electronic data transfer, and installation of or changes in metering equipment.

9 INSPECTION AND ACCEPTANCE

The Government or the Government’s agents (which may include contracted consultants) may inspect service and billing in any appropriate manner, including but not limited to:

1. Verification that physical meter reads correlate with invoices;

2. Comparing data obtained from the UDC with Contractor furnished data;

3. Review of the Contractor’s records that relate to accounts covered by this Contract.

The Contractor shall provide records requested within 15 working days of a written request by GSA. Reviews may include verification of accuracy and reasonableness of pass-through costs, invoicing accuracy or any other requirement to assure contract compliance.

Payment of invoices does not waive GSA’s rights to demand correction if errors are found at a future date.

If the Government contracts for inspection or audit services the firm performing inspection or audit services will be required to agree to non-disclosure of information related to the Contractor’s records.

10 INVOICE REQUIREMENTS AND PAYMENT

Payment will be made only on receipt of an invoice meeting the requirements described herein. Invoices must reflect actual consumption and cost data and meet all applicable CPUC requirements for dual billing. Notwithstanding the foregoing, if the UDC or California ISO as applicable provides estimated data to Contractor, Contractor may use the estimated data for the invoice. Use of estimated data must be clearly indicated on the invoice. Contractor shall reflect any adjustments to the invoice amount on the monthly invoice immediately following the receipt of actual cost data from the ISO.

Terms of service on invoices must correlate with UDC cycle dates.

Invoices must contain the following information:

1. PDN number (provided by GSA);

2. UDC account number and service agreement number (if applicable);

3. Contractor’s account number;

4. Building name, address, or other descriptive information to identify the location;

5. Billing cycle dates (start date and end date);

6. Total kwh consumption;

7. Itemization of cost factors as applied to that billing cycle.

8. Contractor’s name and remittance address (name and address must match that on the awarded contract, which is derived from the SAM registration).

Invoices shall be submitted monthly, or at the frequency of the UDCs billing cycle, by email to an email address to be indicated.

Prompt invoicing is important for GSA to be able to manage its utility budget. Best efforts must be made to submit invoices within 30 days of receipt of data from the UDC.

A persistent pattern of slow invoicing, not explainable by problems with data receipt from the UDC, may lower the Contractor’s performance assessment.

Adjustments to prior service periods must be clearly itemized, and must indicate the period covered and basis of the adjustment.

The Contractor must maintain a current and accurate SAM registration, to include correct banking information for EFT payment.

Provisions of this section supplement, but do not replace, provisions of the Payments clause incorporated herein.

11 THE ROLE OF GOVERNMENT PERSONNEL AND RESPONSIBILITY

FOR CONTRACT ADMINISTRATION

11.1 CONTRACTING OFFICER (CO)

The Contracting Officer (CO) has the overall responsibility for the administration of this Contract. He alone, without delegation, is authorized to take actions on behalf of the Government to:

1. Amend, modify or deviate from the Contract terms, conditions, requirements, specifications, details and/or delivery schedules.

2. Make final decisions on disputed deductions from Contract payments for nonperformance or unsatisfactory performance.

3. Terminate the Contract for convenience or default.

4. Resolving and issuing final decisions on actions taken under the “Disputes” clause of the Contract.

5. Process assignment of claims (assignment of Contract payments to another organization).

6. Process novation agreements

However, the Contracting Officer may delegate certain other responsibilities to his authorized representatives.

The Contracting Officer will initially be:

Cynthia Chen Acquisition Management Division 50 United Nations Plaza, 4th Floor San Francisco, CA 94102 415.522.3371

This appointment may subsequently be changed by a letter signed by the new Contracting Officer.

11.2 CONTRACTING OFFICER'S REPRESENTATIVE (COR)

The Contracting Officer’s Representative (COR) will initially be:

Mark Levi GSA PBS Energy and Sustainability Branch PO Box 578 Charles Town, WV 25414 304.728.2324 C: 415.516.8639

This appointment may subsequently be changed by a letter signed by the Contracting Officer.

The responsibilities of the COR include, but are not limited to:

1. Determining the adequacy of performance by the Contractor in accordance with the terms and condition of this Contract.

2. Acting as the Government’s representative in charge of program requirements.

3. Ensuring compliance with Contract requirements.

4. Advising the Contractor of any proposed deductions for nonperformance or unsatisfactory performance.

5. Advising the Contracting Officer of any factors which may cause delay or change in performance of the work.

6. Assisting the Contracting Officer with the administration of the contract.

These and other responsibilities shall be delegated in writing upon award of the Contract, with a copy of such delegation to the Contractor

12 NOTICES AND CORRESPONDENCE

Correspondence, notices and documents required by this Contract shall be submitted by the Contractor to the Contracting Officer’s Representative.

The Contractor shall furnish to the COR contact information, to include mailing address, telephone number, fax number and email address, of an account representative who can receive official notices and correspondence from GSA, and who can formally represent the Contractor.

13 CONFIDENTIALITY

The awarded Contract, to include prices and pricing methodology will be treated as a public document. Offers that do not result in award will be protected as confidential to the extent permitted by law. GSA may provide reference information regarding performance and integrity of the Contractor on request.

14 TERMINATION

If the Contract is terminated in accordance with the Termination for the Convenience of the Government clause, or the Termination for Cause clause, the Contractor shall make best efforts to economically liquidate positions held by the Contractor on behalf of GSA.

Liquidation of positions must be through competitive, arms-length methods unless otherwise explicitly approved by GSA. This provision supplements, but does not replace or change, the Termination for the Government’s Convenience clause incorporated herein.

15 52.241 UTILITY SERVICES PROVISIONS AND CLAUSES

15.1 52.241-1 ELECTRIC SERVICE TERRITORY COMPLIANCE

REPRESENTATION (MAY 1999)[TAILORED]

(a) Section 8093 of Public Law 100-202 generally requires purchases of electricity by any department, agency, or instrumentality of the United States to be consistent with State law governing the provision of electric utility service, including State utility commission rulings and electric utility franchises or service territories established pursuant to State statute, State regulation, or State-approved territorial agreements.

(b) By signing this offer, the offeror represents that this offer to sell electricity is consistent with Section 8093 of Public Law 100-202.

(c) Upon request of the Contracting Officer, the offeror shall submit supporting legal and factual rationale for this representation.

(d) The Contractor must be registered as an Electric Service Provider with the California Public Utilities Commission, for each UDC.

15.2 52.241-2 ORDER OF PRECEDENCE-UTILITIES (FEB 1995)[TAILORED]

In the event of any inconsistency between the terms of this Contract and any rate schedule, rider, or exhibit incorporated in this Contract by reference or otherwise, or any of the Contractor's rules and regulations, the terms of this Contract shall control. In the event of any inconsistency between the terms of this Contract and any rate schedule, rider, or exhibit incorporated in this Contract by reference or otherwise, and any rules or tariffs of the California ISO, FERC or CPUC-approved rules or tariffs of the applicable

UDC, the terms of such rules or tariffs shall control. However in such an event the Contractor must immediately notify GSA of the conflict following discovery.

15.3 52.241-3 SCOPE AND DURATION OF CONTRACT (FEB 1995)[TAILORED]

(a) For the period beginning with the meter read for each account during March 2012, through the end of each cycle during March 2013, the Contractor agrees to furnish and the Government agrees to purchase Energy and Direct Access Services in accordance with the applicable tariff(s), laws, rules, and regulations as approved by any applicable governing regulatory body and as set forth in this Contract.

(b) It is expressly understood that neither the Contractor nor the Government is under any obligation to continue any service under the terms and conditions of this Contract beyond the expiration date.

(c) The Contractor shall provide the Government with one complete set of prices which are in effect as of the date of this Contract and for the term of this Contract.

(d) The Contractor shall be paid at the applicable price under the Contract for the actual quantity of electricity consumed as measured by each UDC meter for the accounts.

15.4 52.241-4 CHANGE IN CLASS OF SERVICE (FEB 1995)[TAILORED]

(a) In the event an UDC changes the tariff classification for a site, the price may be renegotiated for accounts impacted by the classification change to reflect the direct cost impact to the contractor of the change (without markup).

15.5 52.241-5 CONTRACTOR'S FACILITIES (FEB 1995)[TAILORED]

(a) The Contractor, at its expense, unless otherwise provided for in this Contract, shall furnish, install, operate, and maintain all facilities required to furnish service hereunder, and measure such service at the point of delivery through the UDC meters, or to make use of facilities controlled by the California ISO or the applicable UDC in accordance with applicable rules and tariffs. Title to all facilities provided by the Contractor shall remain with the Contractor and the Contractor shall be responsible for loss or damage to such facilities, except that the Government shall be responsible to the extent that loss or damage has been caused by the Government's negligent acts or omissions.

(b) Notwithstanding any terms expressed in this clause, the Contractor shall obtain approval from the Contracting Officer prior to any equipment installation, construction, or removal. The Government hereby grants to the Contractor, free of any rental or similar charge, but subject to the limitations specified in this Contract, a revocable permit or license to enter the service location for any proper purpose under this Contract. This permit or license includes use of the site or sites agreed upon by the parties hereto for the installation, operation, maintenance, and repair of the facilities of the Contractor required to be located upon Government premises. All applicable taxes and other charges in connection therewith, together with all liability of the Contractor in construction, operation, maintenance and repair of such facilities, shall be the sole obligation of the Contractor.

(c) Authorized representatives of the Contractor will be allowed access to the facilities on Government premises at reasonable times to perform the obligations of the Contractor regarding such facilities. It is expressly understood that the Government may limit or restrict the right of access herein granted in any manner considered necessary (e.g., national security, public safety).

(d) Unless otherwise specified in this Contract, the Contractor shall, at its expense, remove such facilities and restore Government premises to their original condition as near as practicable within a reasonable time after the Government terminates this Contract. In the event such termination of this Contract is due to the fault of the Contractor, such facilities may be retained in place at the option of the Government for a reasonable time while the Government attempts to obtain service elsewhere comparable to that provided for hereunder.

15.6 52.241-6 SERVICE PROVISIONS (FEB 1995)[TAILORED]

(a) Measurement of service.

All Energy furnished by the Contractor shall be measured by the UDC meters, which are owned by the UDCs. Contractor shall read UDC meters as required for billing and scheduling coordination services. When more than a single meter is installed at a service location, the readings thereof may be billed conjunctively, if appropriate. In the event any meter fails to register (or registers incorrectly) the service furnished, the Contractor will adjust billing to GSA as soon as such adjustment is calculated and adjusted by the UDC. If any of the meters are owned by GSA, Contractor shall perform all meter maintenance and repair services for the meters in accordance with all applicable CPUC and ANSI standards.

(b) Continuity of service and consumption. The Contractor shall use reasonable diligence to provide a regular and uninterrupted supply of service at each service location, but shall not be liable for damages, breach of Contract or otherwise, to the Government for failure, suspension, diminution, or other variations of service occasioned by or in consequence of any cause beyond the control of the Contractor, including but not limited to acts of God or of the public enemy, fires, floods, earthquakes, or other catastrophe, strikes, or failure or breakdown of transmission or other facilities.

16 FAR Clause 52.212-4 Contract Terms and Conditions—Commercial Items (MAY 20015)

52.212-4 Contract Terms and Conditions—Commercial Items.

As prescribed in 12.301(b)(3), insert the following clause:

Contract Terms and Conditions—Commercial Items (May 2015)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights—

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

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

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

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

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

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

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

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

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

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

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

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

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

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

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

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

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

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.

3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

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

(i) Payment.—

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

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

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

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

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

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

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

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

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

(D) Contractor point of contact.

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

(6) Interest.

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

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

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

33.211 if—

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

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

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

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

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

(A) The date fixed under this contract.

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

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

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

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

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

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

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

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

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

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

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work.

Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

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

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

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

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

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

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

(1) The schedule of supplies/services.

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

(3) The clause at 52.212-5.

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

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) System for Award Management (SAM).

(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete.

Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)(i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in FAR Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day’s written notification of its intention to (A) change the name in the SAM database;

(B) comply with the requirements of Subpart 42.12; and (C) agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor’s SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of payment” paragraph of the EFT clause of this contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through https://www.acquisition.gov.

(u) Unauthorized Obligations

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

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

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

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

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

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

(End of clause)

Alternate I (May 2014). When a time-and-materials or labor-hour contract is contemplated, substitute the following paragraphs (a), (e), (i), (l), and (m) for those in the basic clause.

(a) Inspection/Acceptance. (1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier.

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements. Except as otherwise specified in paragraph (a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent.

The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.]

(5)(i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may—

(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or

(B) Terminate this contract for cause.

(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract.

(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to—

(i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor's managerial personnel; or

(ii) The conduct of one or more of the Contractor’s employees selected or retained by the Contractor after any of the Contractor’s managerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified.

(7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract.

(8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract.

(9) Unless otherwise specified in the contract, the Contractor's obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.

(e) Definitions. (1) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. As used in this clause—

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are—

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(iii) Materials means—

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.);

(D) The following subcontracts for services which are specifically excluded from the hourly rate: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

(E) Indirect costs specifically provided for in this clause.

(iv) Subcontract means any contract, as defined in FAR Subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(i) Payments. (1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:

(i) Hourly rate.

(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed. Fractional parts of an hour shall be payable on a prorated basis.

(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract.