GSA IL OH Fall 2020 Electricity Solicitation 47PA0420R0070.pdf

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

OFFEROR TO COMPLETE BLOCKS 12, 17, 23, 24, & 30

1. REQUISITION NUMBER PAGE 1 OF

2. CONTRACT NO. 3. AWARD/EFFECTIVE

DATE

4. ORDER NUMBER 5. SOLICITATION NUMBER 6. SOLICITATION ISSUE

DATE

7. FOR SOLICITATION

INFORMATION CALL:

47PA0420R0070

a. NAME b. TELEPHONE NUMBER (No collect calls) Matthew Harbeson (202) 394-8535

09/08/2020

OFFER DUE DATE/

LOCAL TIME

09/22/2020

3:00 PM (EDT)

8. ISSUED BY CODE 9. THIS ACQUISITION IS UNRESTRICTED OR SET ASIDE: % FOR:

GSA, Energy Division SMALL BUSINESS

WOMEN-OWNED SMALL BUSINESS

(WOSB) ELIGIBLE UNDER THE WOMEN-OWNED

1800 F Street, NW, Room 5118

Washington, DC 20405 USA

HUBZONE SMALL

BUSINESS

SERVICE-DISABLED

VETERAN-OWNED

SMALL BUSINESS

SMALL BUSINESS PROGRAM

EDWOSB

8 (A)

NAICS:

221122

SIZE STANDARD:

1000 employees

10. DELIVERY FOR FOB DESTINA-

TION UNLESS BLOCK IS

MARKED

SEE SCHEDULE

11. DISCOUNT TERMS

13a. THIS CONTRACT IS A

RATED ORDER UNDER

DPAS (15 CFR 700)

13b. RATING

14. METHOD OF SOLICITATION

RFQ IFB RFP

15. DELIVER TO CODE 16. ADMINISTERED BY CODE

GSA Energy Division 1800 F Street, NW, Room 5118 Washington, DC 20405 USA

17a. CONTRACTOR/

OFFEROR

CODE FACILITY

CODE

18a. PAYMENT WILL BE MADE BY CODE

Individual Agencies

TELEPHONE NO.

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN

18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK

OFFER BELOW IS CHECKED

SEE ADDENDUM

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

See Submission Requirements - Pricing Section C.1 kWh (see Exhibit 1 for Quantity)

(Use Reverse and/or Attach Additional Sheets as Necessary)

25. ACCOUNTING AND APPROPRIATION DATA 26. TOTAL AWARD AMOUNT (For Govt. Use Only)

27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4. FAR 52.212-3 AND 52.212-5 ARE ATTACHED. ADDENDA

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4. FAR 52.212-5 IS ATTACHED. ADDENDA

ARE ARE NOT ATTACHED

ARE ARE NOT ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN 1

COPIES TO ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND

DELIVER ALL ITEMS SET FORTH OR OTHERWISE IDENTIFIED ABOVE AND ON ANY

ADDITIONAL SHEETS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED

29. AWARD OF CONTRACT: REF. OFFER

DATED . . YOUR OFFER ON SOLICITATION

(BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE

SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS:

30a. SIGNATURE OF OFFEROR/CONTRACTOR 31a. UNITED STATES OF AMERICA (SIGNATURE OF CONTRACTING OFFICER)

30b. NAME AND TITLE OF SIGNER (Type or print) 30c. DATE SIGNED 31b. NAME OF CONTRACTING OFFICER (Type or print) 31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION PREVIOUS EDITION IS NOT USABLE

STANDARD FORM 1449 (REV.

2/2012)

Prescribed by GSA - FAR (48 CFR) 53.212

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

32a. QUANTITY IN COLUMN 21 HAS BEEN

RECEIVED INSPECTED ACCEPTED, AND CONFORMS TO THE CONTRACT, EXCEPT AS NOTED:

32b. SIGNATURE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32c. DATE 32d. PRINTED NAME AND TITLE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32e. MAILING ADDRESS OF AUTHORIZED GOVERNMENT REPRESENTATIVE 32f. TELPHONE NUMBER OF AUTHORZED GOVERNMENT REPRESENTATIVE

32g. E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

33. SHIP NUMBER 34. VOUCHER NUMBER 35. AMOUNT VERIFIED

CORRECT FOR

36. PAYMENT

COMPLETE PARTIAL FINAL

37. CHECK NUMBER

PARTIAL FINAL

38. S/R ACCOUNT NO. 39. S/R VOUCHER NUMBER 40. PAID BY

41a. I CERTIFY THIS ACCOUNT IS CORRECT AND PROPER FOR PAYMENT 42a. RECEIVED BY (Print)

41b. SIGNATURE AND TITLE OF CERTIFYING OFFICER 41c. DATE

42b. RECEIVED AT (Location)

42c. DATE REC'D (YY/MM/DD) 42d. TOTAL CONTAINERS

STANDARD FORM 1449 (REV. 2/2012) BACK

Table of Contents

SECTION A: SCOPE OF WORK

A.1 GENERAL

A.2 DELIVERY POINT

A.3 NOMINATING AND BALANCING RESPONSIBILITIES

A.4 CREDIT FOR DEFAULT SUPPLY SERVICE

A.5 RISK OF LOSS

A.6 PROTECTION OF CONTRACT INFORMATION

A.7 PAYMENT AND BILLING

A.8 RESERVED

A.9 RESERVED

A.10 ADDING AND DELETING FACILITIES TO THIS CONTRACT

A.11 RESERVED

A.12 Renewable Power for Facilities in this Contract

A.13 LOAD CHANGES DURING THE TERM OF THE CONTRACT

A.14 ELECTRICITY REGULATORY CHANGES

A.15 CONTRACT ADMINISTRATION

A.16 AUCTION PROCESS FOR PRICING USING EnelX A.17 EnelX FEE

A.18 DAMAGES FOR MISSING CONTRACT START DATE

SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

B.1 CLAUSES INCORPORATED BY REFERENCE

B.2 CLAUSES IN FULL TEXT

SECTION C: SUBMISSION REQUIREMENTS:

C.1 EVIDENCE OF TECHNICAL ACCEPTABILITY

C.2 PRICE PROPOSAL

C.3 SUBMISSION OF PROPOSALS

SECTION D: EVALUATION FACTORS FOR AWARD:

D.1 EVALUATION

D.2 BASIS FOR AWARD

D.3 POST AWARD REQUIREMENT FOR SMALL BUSINESS SUBCONTRACTING PLAN

D.4 POST AWARD REQUIREMENT FOR SERVICE START DATE REPORTING

SECTION E: REPRESENTATIONS AND CERTIFICATION

ATTACHMENT 1: CONTRACTOR INFORMATION

ATTACHMENT 2: PRICE COMPONENT CONFIRMATION TABLE

ATTACHMENT 3 VERIFICATION FROM RENEWABLE ENERGY SUPPLIER

ATTACHMENT 4 RENEWABLE POWER/RENEWABLE ENERGY CERTIFICATE NOTIFICATION

NOTE: ALL QUESTIONS MUST BE SUBMITTED IN WRITING AND CAN BE SENT VIA:

ELECTRONIC MAIL AT matthew.harbeson@gsa.gov

SECTION A: SCOPE OF WORK

A.1 GENERAL

The General Services Administration (GSA or Government) is requesting proposals for the supply of all electricity supply commodity components up to the Delivery Point as specified in Attachment 2 of this solicitation for Federal facilities located in various Local Distribution Utility (LDU) service territories within the States of Illinois and

Ohio. Pricing is to the Delivery Point and shall include all cost components referenced in Attachment 2 of this solicitation. The price shall also include transmission and distribution line losses to the end-use meter. The

Contractor shall supply the full requirements of such electricity for a term of up to thirty-six (36) full monthly billing cycles for accounts included in this contract. The Government has placed its requirements into five (5) pricing groups. The service start date for all accounts shall begin with the first meter read date on or after

November 1, 2020 or as noted in Exhibit 1.

All quantities required to be supplied to facilities included in this contract shall be considered firm requirements

(“firm” means electric supply that will not be interrupted except as permitted under this contract) for delivery by the Contractor to the Delivery Point. The Contractor shall be liable for all costs assessed to facilities arising out of or relating to the non-delivery of firm requirements. The electricity provided under this contract shall conform to the tariff of the interstate/intrastate transmitting utility and the LDU at the Delivery Point for the accounts specified in Exhibit 1. The Government has organized its requirements for this solicitation in Exhibit 1 as described below.

Exhibit 1 consists of an Excel spreadsheet that specify the accounts included in this contract and provides aggregate estimated totals. For each account, the following information is provided if available:

(a) LDU rate schedule;

(b) LDU account number;

(c) Agency/account holder;

(d) General Service Location;

(e) LDU;

(f) Monthly consumption (kWh);

(g) Registered monthly on-peak demand (KW) per LDU tariff definition;

(h) Registered monthly maximum demand (KW) per LDU tariff definition;

(i) Monthly on-peak KWH per LDU tariff definition;

(j) Monthly interm KWH per LDU tariff definition;

(k) Monthly off-peak KWH per LDU tariff definition;

(l) Monthly billing days;

(m) Monthly load factor;

(n) Range of meter read dates throughout the year;

(o) Weather hourly interval data is provided for the account (information on separate spread sheets).

A.2 DELIVERY POINT

The Delivery Point for such electricity shall be the meter(s) of the specific facilities identified in Exhibit 1 of this contract. The facility shall take title to the electricity at the Delivery point.

A.3 NOMINATING AND BALANCING RESPONSIBILITIES

It is the Contractor’s responsibility to conduct all required nominations on behalf of the facilities specified in

Exhibit 1. The Contractor shall be fully familiar with the imbalance, transmission grid loss and line loss policies of both the LDU and the interstate/intrastate transmission companies. The Contractor shall be liable for all costs arising out of or relating to these items.

mailto:brian.dwyer@gsa.gov

A.4 CREDIT FOR DEFAULT SUPPLY SERVICE

If at any time, unless as a result of an Excusable Delay (see FAR 52.212-4(f)), an account covered by this contract is forced to accept default supply service from the LDU serving in its capacity as the utility supplier of last resort solely as a result of action/inaction by the Contractor, the Contractor shall be responsible for payment of any additional costs incurred.

A.5 RISK OF LOSS

Risk of loss of electricity supplied under this contract shall remain with the Contractor prior to the Delivery Point and shall pass to the Government at and after the Delivery Point specified for each facility.

A.6 PROTECTION OF CONTRACT INFORMATION

The Government will take the necessary and usual steps to maintain the confidentiality of information submitted by offerors prior to award of the contract. The Contractor is advised that the Government will make all contract prices publicly available for the full contract period.

A.7 PAYMENT AND BILLING

The Contractor expressly agrees and acknowledges that each Government facility to which supplies or services are provided pursuant to this contract will be separately responsible for and liable to pay for any such supplies or services. For the avoidance of doubt, GSA will be the responsible party for purposes of making payments for the accounts only where GSA is listed as the Agency on Exhibit 1.

The Contractor will submit a monthly invoice to the Government facility for supplies and services rendered the previous month. The invoice should include the amount of kWhs measured at each meter and must be consistent with the rules of the Illinois Commerce Commission (ICC) and/or the Public Utility Commission of Ohio (PUCO) regarding issuance and format of bills. The Contractor shall use the LDU's meters, meter readings, and billing cycles for the computation of bills. The Contractor must establish a unique supplier account number for each end-use Government account and provide the corresponding LDU account number on each monthly bill.

It shall be the Contractor’s responsibility to know and understand the specific details and requirements for monthly billing, reporting, and coordination with the LDU. Payment shall be in accordance with FAR 32.9 (Prompt

Payment). If payment is to be made by electronic funds transfer, the provisions of FAR 32.11 (ELECTRONIC

FUNDS TRANSFER), including the clause at 52.232-33 shall apply.

A.8 RESERVED

A.9 RESERVED

A.10 ADDING AND DELETING FACILITIES TO THIS CONTRACT

It is possible that additional accounts not included in Exhibit 1 may be added to the resultant contract(s). In that event, the Government will provide the Contractor with the facility’s estimated electric requirement (if available) and the two parties shall enter into good faith negotiations to determine a price. A bilateral modification will be executed adding the line item on the Standard Form 30, Amendment of Solicitation/Modification of Award.

If the Government removes any facilities listed in Exhibit 1, the Government shall provide the Contractor with a written notice 45 business days before any such removal. The Government may unilaterally remove any facilities in its discretion. If accounts are removed, the methodology provided in Section B.1 (b), FAR Clause 52.212-4(l) shall be used to calculate the early termination charges, if any. The provisions of this paragraph shall not apply to accounts with early end dates noted in Exhibit 1 at the time of contract award.

A.11 RESERVED

A.12 Renewable Power for Facilities in this Contract Renewable energy certificates" (RECs) are unique certificates that represent all of the environmental attributes or benefits of a specific quantity of renewable generation. RECs are created when a renewable energy facility generates electricity. The terms Renewable Energy Credits, Tradable Renewable Certificates, renewable power or

Green Tags, are equivalent terms.

The Contractor shall deliver wind or solar RECs equal to twenty percent (20%) of the total usage required for all pricing groups as specified in Section C.2 and Exhibit 1. The REC content requirements are in addition to any renewable power required to comply with the State of Illinois and/or State of Ohio’s Renewable Portfolio Standards

(RPS) requirements, if any, during the term of any resultant contract(s). The renewable power that the Contractor provides must come from renewable resources that have been placed in service within 10 years prior to the start of the Government’s fiscal year for each year of the contract. For the contract’s first year, resources will need to have been placed in service on or after October 1, 2010.

Annual Renewable Report

The Contractor shall provide an annual report verified by an independent third-party auditor. The annual reporting period shall be October 1 through September 30. The annual report shall contain the following elements:

(a) Verification of the product content for the annual reporting period that:

(1) Indicates the source of new renewable power, zip code of the source and the EGRID sub region for the new source; and

(2) Indicates the source of non-new renewable power, zip code of the source and the EGRID sub region for the source.

(b) Verification that:

(1) The Contractor has not sold the renewable power more than once (as either a renewable power product or as a REC product), and in the case of a reseller that purchases a wholesale product for retail sale, reasonable measures are taken to ensure that suppliers also do not sell renewable power more than once;

(2) All environmental attributes, including any attendant emission credits which are specifically owned by or to which the renewable power generator is otherwise entitled convey to the purchaser

(i.e. Government);

(3) The Contractor has not sold any emission allowances/credits, or other environmental attributes which are specifically owned by or to which the renewable power generator is otherwise entitled to convey associated with renewable power; and

(4) The renewable power that is used to fulfill the requirements of this solicitation is also not being used to meet any federal, state, or local renewable energy requirement, renewable energy procurement, renewable portfolio standard, or other renewable energy mandate.

The Annual Report shall be submitted to both the CO and COR at the addresses specified in Section A.15 no later

October 31 each year and shall contain Attachments three (3) and four (4). The independent third-party auditor shall be submitted in the Contractor’s proposal and approved by the Government at the time of contract award.

Renewable Power Vintage: To qualify as an eligible REC under this contract, the renewable power must be generated during the Government’s applicable fiscal year calendar which is October 1 through September 30 for each year of the contract and the six (6) months immediately preceding that time period and the three (3) months immediately following that time period (e.g. April 1, 2020 through December 31, 2021).

Definition of Renewable Energy

For the purposes of this contract and this Section A.12, renewable energy and biomass shall have the definitions as specified by the Energy Policy Act of 2005, currently codified at 42 U.S.C. § 15852(b).

A.13 LOAD CHANGES DURING THE TERM OF THE CONTRACT

As indicated in Section A.1, this contract is for the full requirements of each account at the Delivery Point. The full requirements are expressed as estimates on Exhibit 1 of the solicitation. The Government does not estimate that its aggregate load will change in a significant manner throughout the term of this contract unless noted on Exhibit 1.

The Government considers an annual change in the aggregate kWh consumption of each pricing group in excess of twenty percent (20%) each contract year to be significant. The historical volumes are given in Exhibit 1 and these volumes will be used in determining annual changes. In the event of a significant change in contract load, the

Government agrees, if requested by the Contractor, to negotiate in good faith with the Contractor to equitably adjust the contract price to account for the incremental costs, if any, associated with such load change beyond the twenty percent (20%) measurement threshold. Any proposed adjustments to contract pricing must compare the contract price with the market price at the time of usage deviation to arrive at an adjustment to contract pricing. The

Government will notify the Contractor of any significant anticipated load changes as soon as it becomes aware of such anticipated changes.

A.14 ELECTRICITY REGULATORY CHANGES

(a) The contract price includes all applicable Federal, State, and local regulations including ISO/RTO charges expected to be in effect and applicable to this contract at the time of contract award.

(b) After-Imposed Charges Due to a Change of Federal, State, or Local Regulation, means any new or modified Federal, State, and/or local regulation including ISO/RTO charges on the transactions covered by this contract that result in new or increased charges that the Contractor is required to pay or bear as the result of legislative, judicial, regulatory or administrative action taking effect after the contract award date.

(b)(1) The contract price shall be increased by the amount of any after-imposed charges due to a change of Federal, State, or local regulation, provided the Contractor warrants in writing that no amount for such newly imposed Federal, State, and local regulation or rate increase was included in the contract price, as a contingency reserve or otherwise, and that the Contractor provides sufficient documentation to support the increase.

(c) After-Relieved Charges Due to a Change of Federal, State, or Local Regulation, means any Federal, State, and/or local regulation including ISO/RTO charges on the transactions covered by this contract that the Contractor is no longer required to pay or bear, or for which the Contractor obtains a refund or reduction, as the result of legislative, judicial, regulatory or administrative action taking effect after the contract award date.

(c)(1) The contract price shall be decreased by the amount of any after-relieved charges due to a change of Federal, State, or local regulation.

(d) Any increases or decreases in the contract price shall be accomplished by a bilateral contract modification. In the event that the Government and the Contractor cannot agree to an acceptable contract adjustment, the

Government will unilaterally adjust the contract price via modification subject to the Disputes provisions of FAR

52.212-4(d) incorporated in the contract.

(e)The ceiling price for after-imposed regulatory costs is limited to 50% of the contract price.

(e)(1) The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price and the

Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the

Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth has been increased, any costs incurred by the

Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the costs had been incurred after the increase in the ceiling price.

A.15 CONTRACT ADMINISTRATION

After award, this contract shall be administered by the General Services Administration’s Energy Division

(PMAA). The Contracting Officer (CO) for the administration of this contract is:

Matthew Harbeson

U.S. General Services Administration

1800 F Street, NW, Room 5118

Washington, DC 20405

(202) 394-8535 matthew.harbeson@gsa.gov

A.16 AUCTION PROCESS FOR PRICING USING EnelX

The Government shall use an internet based transaction platform provided by EnelX North America, Inc. (EnelX), the Government’s third-party contractor, to obtain pricing for this procurement. The Contractor shall submit pricing to GSA using the EnelX platform in accordance with the instructions in Section C and the EnelX website.

All prices submitted to the EnelX transaction platform shall be in accordance with the provisions of the solicitation.

It shall be the responsibility of the Offeror to understand both the rules and the mechanics of the EnelX transaction platform.

A.17 EnelX FEE

The Contractor hereby agrees to pay a fee in the amount of $0.00070 per kWh for all usage billed under this contract. The Contractor shall pay the fee directly to EnelX in accordance with the agreement, if any, executed between the Contractor and EnelX. The Contractor expressly recognizes and understands that the Government is not responsible for paying the fee to EnelX. To the extent a dispute occurs between the Contractor and EnelX regarding the fee, any such dispute shall be handled in accordance with the agreement executed between the

Contractor and EnelX.

A.18 DAMAGES FOR MISSING CONTRACT START DATE

In the event that the start date for electric supply is missed due solely to the fault of the Contractor and an account(s) is required to remain with the LDU at regulated rates, then the Contractor shall be liable for the difference, if any, between the contract rate and the rates billed by the LDU. Subject to the approval of the

Contracting Officer, the Contractor will issue an equivalent credit to the Government on a future invoice. This credit must be issued within sixty (60) days of the date the Contractor begins serving the account.

mailto:matthew.harbeson@gsa.gov

SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

B.1 CLAUSES INCORPORATED BY REFERENCE

The FAR Can Be Accessed At The Following Internet Address: http://www.acquisition.gov

52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or

Equipment.

As prescribed in 4.2105(a), insert the following provision:

Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2020)

The Offeror shall not complete the representation at paragraph (d)(1) of this provision if the Offeror has represented that it “does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument” in the provision at

52.204-26, Covered Telecommunications Equipment or Services—Representation, or in paragraph (v) of the provision at

52.212-3, Offeror Representations and Certifications-Commercial Items.

(a) Definitions. As used in this provision—

Backhaul, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or

(b) Prohibition. (1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year

2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Nothing in the prohibition shall be construed to—

(i)Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(ii)Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub.

L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract. Nothing in the prohibition shall be construed to—

(i)Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(ii)Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(c) Procedures. The Offeror shall review the list of excluded parties in the System for Award Management (SAM)

(https://www.sam.gov) for entities excluded from receiving federal awards for “covered telecommunications equipment or services”.

http://www.acquisition.gov/ https://www.acquisition.gov/content/42105-solicitation-provisions-and-contract-clause#id1989H0G40RF https://www.acquisition.gov/content/52204-26-covered-telecommunications-equipment-or-services-representation#id19CAC0P0ESS https://www.acquisition.gov/content/52212-3-offeror-representations-and-certifications-commercial-items#i1060550 https://www.acquisition.gov/content/52204-25-prohibition-contracting-certain-telecommunications-and-video-surveillance-services-or-equipment#id1989I600I4C https://www.sam.gov/

(d) Representation. The Offeror represents that— (1)It □ will, □ will not provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) of this section if the Offeror responds

“will” in paragraph (d)(1) of this section; and

(2)After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents that— It □ does, □ does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) of this section if the Offeror responds “does” in paragraph (d)(2) of this section.

(e) Disclosures. (1) Disclosure for the representation in paragraph (d)(1) of this provision. If the Offeror has responded “will” in the representation in paragraph (d)(1) of this provision, the Offeror shall provide the following information as part of the offer:

(i)For covered equipment—

(A)The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the original equipment manufacturer (OEM) or a distributor, if known);

(B)A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable);

and (C)Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.

(ii)For covered services—

(A)If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B)If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.

(2) Disclosure for the representation in paragraph (d)(2) of this provision. If the Offeror has responded “does” in the representation in paragraph (d)(2) of this provision, the Offeror shall provide the following information as part of the offer:

(i)For covered equipment—

(A)The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known);

(B)A description of all covered telecommunications equipment offered (include brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable);

and (C)Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.

(ii)For covered services—

(A)If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B)If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.

(End of provision)

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or

As prescribed in 4.2105(b), insert the following clause:

Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug

2020)

(a) Definitions. As used in this clause—

Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless

(e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

Covered foreign country means The People’s Republic of China.

Covered telecommunications equipment or services means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by

Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology

Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the

Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of

Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

Critical technology means–

(1) Defense articles or defense services included on the United States Munitions List set forth in the International

Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;

(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export

Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled-

(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(ii) For reasons relating to regional stability or surreptitious listening;

(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);

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(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or

(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of

2018 (50 U.S.C. 4817).

Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another's network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

Reasonable inquiry means an inquiry designed to uncover any information in the entity's possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Prohibition. (1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal

Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L.

115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.

(c) Exceptions. This clause does not prohibit contractors from providing—

(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(d) Reporting requirement. (1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause to the Contracting Officer, unless elsewhere in this contract are established procedures for reporting the information; in the case of the Department of Defense, the

Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause https://www.acquisition.gov/content/42104-waivers#id1989GI040ZO https://dibnet.dod.mil/ https://dibnet.dod.mil/

(i) Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and

Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.

(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

(End of clause)

552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items.

As prescribed in 512.301 Solicitation provisions and contract clauses for the acquisition of commercial items.(a)(1), insert the following clause:

CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF COMMERCIAL ITEMS (MAY 2019)

(a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial items or components. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The clauses in paragraph (b) of this section are incorporated by reference:

(b) Clauses.

552.203-71 Restriction on Advertising

552.211-73 Marking

552.215-70 Examination of Records by GSA

End of Clause

(a) FAR 52.212-1 Instructions to Offerors-Commercial Items (OCT 2018)

[Reference FAR 12.301(b)(1)]

Addendum to FAR 52.212-1

The offeror agrees to hold the prices offered in response to this solicitation until 1:30 p.m. EDT on the date specified in Section C.3 of this solicitation.

(b) GSAM 552.212-4 Contract Terms and Conditions-Commercial Items (FAR DEVIATION) (FEB 2018)

[Reference GSAM 512.301(e)]

INVOICE.

(g)(2) The due date for making invoice payments by the designated payment office is the later of the following two events:

(i) The 20 th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment date https://www.acquisition.gov/content/512301-solicitation-provisions-and-contract-clauses-acquisition-commercial-items#FWTTCYTU https://www.acquisition.gov/sites/default/files/current/gsam/html/Part552_Sub2A.html#wp1928743 https://www.acquisition.gov/sites/default/files/current/gsam/html/Part552_Sub2A.html#wp1925078 https://www.acquisition.gov/sites/default/files/current/gsam/html/Part552_Sub2A.html#wp1929021 shall be the 20 th day after the date of the Contractor’s invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality or Contractor compliance with contract requirements.

(ii) The 20 th day after Government acceptance of supplies delivered or services performed by the Contractor.

(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, Unauthorized Obligations, and Commercial Supplier Agreements - Unenforceable Clauses paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements - Unenforceable Clauses provision.

(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.

(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 commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or 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 language, provision, or 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 commercial supplier agreement. If the commercial supplier 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 language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the

Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(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 commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or 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 language, provision, or 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 commercial supplier agreement. If the commercial supplier 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 language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

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(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the

Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(w) Commercial supplier agreements–unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

(i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S.

Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument

(including all contracts, task orders, and delivery orders under FAR Part 12).

(ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a

Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S.

territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

(iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes).

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the

U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice

Act).

(vi) Updating terms.

(A) After award, the contractor may unilaterally revise commercial supplier agreement terms if they are not material. A material change is defined as:

(1) Terms that change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the

Government shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew https://acquisition.gov/gsam/current/html/Part502.html#wp1859928 automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user’s compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

(B) This charge, if disputed by the ordering activity, will be resolved in accordance with subparagraph

(d) (Disputes); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of…