HSCEMS-17-R-00008_RFP.pdf

HSCEMS-17-R-00008

Request for Proposal: Body Armor for SRT

DEPARTMENT OF HOMELAND SECURITY (DHS)

IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)

OFFICE OF TRAINING AND TACTICAL PROGRAMS (OTTP)

SPECIAL RESPONSE TEAM (SRT) BODY ARMOR REQUIREMENT

REQUEST FOR PROPOSAL

This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in FAR 12.6, as supplemented with additional information included in this notice. This requirement is a total small business set aside as set forth in FAR 19.5. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued. Items being requested are attached to this solicitation HSCEMS-17-R-00008 along with a Statement of Work (SOW).

Attachments included in this solicitation:

Attachment A (Statement of Work) Attachment B (Price Schedule) Attachment C (Past Performance Questionnaire) Attachment D (SF 1449)

Questions about this solicitation should be sent electronically to the Contract Specialist at Rachel.Ali@ice.dhs.gov. All questions shall be submitted no later than July 14 2017 by 4:00PM EST. All questions and answers will be published as addendums to this solicitation.

SCOPE OF WORK:

The DHS ICE OTTP is issuing a combined synopsis/solicitation for a Requirements Contract prepared in accordance with the format in FAR 12.6, as supplemented with additional information included in this notice. The North American Industry Classification System (NAICS) Code for this requirement is 315990, Apparel Accessories and Other Apparel Manufacturing, with a Small Business size standard of 500 Employees. This document incorporates provisions and clauses that are in effect through the Federal Acquisition Circular

(FAC) 2005-95.

This is a Request for Proposal (RFP) for Special Response Team (SRT) Armor, Helmets, Plates and Chemical Masks and is being set aside for Small Business. Please see the attached Statement of Work (SOW) and list of items to submit quote. The Government intends to award a Firm-Fixed-Price (FFP) Requirements Contract, in accordance with FAR 16.503, to one vendor.

CONTRACT TERM:

The Period of Performance (POP) for this contract is twelve (12) months from the effective date of the agreement with four (4) 12-month optional periods. All optional periods shall be subject to the continuing need of the Government.

The estimated POP is below (this will be dependent upon the award date):

mailto:Rachel.Ali@ice.dhs.gov

Period of Performance

Base Period (1 year) Award – 12 Months

Option 1 12 Months

Option 2 12 Months

Option 3 12 Months

Option 4 12 Months

PRICING TERMS:

Attachment B (Price Schedule) will be incorporated upon award of the agreement.

Government funds are obligated only to the extent that a duly issued order creates such obligation. In order to provide maximum flexibility for market conditions and other price-influencing factors which may vary from time to time, offerors will be required to submit unit prices for each of the anticipated 5-years of the contract. Each order under the contract shall be FFP. The order cannot be based on prices that exceed the applicable Contract Line Item Number (CLIN) price for that applicable period.

Accounting and Appropriation Data - Accounting and appropriation data for obligations under the agreement will be set forth on individual delivery orders (DOs).

Price reductions - In addition to the circumstances outlined above, there may be instances when ordering offices will find it advantageous to request a price reduction. The potential volume of orders under the agreement, regardless of the size of the individual order, may offer the ordering office the opportunity to secure greater discounts.

INSTRUCTIONS TO OFFERORS:

Proposal Due Date: All Proposals are due at the location specified below by July 31 2017 no later than 11:00 a.m. Eastern Standard Time (EST). HAND DELIVERIES ARE NOT

PERMITTED.

Proposal Submission: Each proposal must be submitted in (1) electronic format and emailed to Rachel.Ali@ice.dhs.gov and James.Abyad@ice.dhs.gov; Subject Line must read: ICE Body Armor SRT and Company Name

Proposal File Packaging. Electronic copies must be submitted to the Government via e-mail. All electronic files must be submitted as Adobe PDF files except for the Pricing which must be in

Microsoft Excel 2007 or 2010 (.xlsx) and the Past Performance Questionnaire which must be submitted in Microsoft Word 2007 or 2010 version.

Proposal Formatting. The submission must be clearly indexed. Each proposal section must be clearly identified. All pages must be appropriately numbered and identified by the complete company name, date, and solicitation number in the header and/or footer. Page size must be no greater than 8½" x 11." The top, bottom, left and right margins must be a minimum of one inch each. Font size must be no smaller than 12-point. Arial, Calibri or New Times Roman fonts are required. Characters must be set at no less than normal spacing and 100% scale. Tables and illustrations may use a reduced font size, or a “Narrow” font, not less than 8-point, and may be landscape. Line spacing must be set at no less than single space. Each paragraph must be separated by at least one blank line. Page numbers, company logos, and headers and footers may be within the page margins ONLY, and are not bound by the 12-point font requirement.

Footnotes to text must not be used.

Proposal Page Limitations. Page limitations for each volume are identified in the Proposal Contents section below. If the Offeror includes submits annexes, documentation, attachments not specifically required by this solicitation, such will count against the page limitations.

Proposals that exceed the page limits will be considered non-compliant and will be eliminated from further consideration.

Proposal Sample Submittals. Proposal samples must be postmarked by the due date of this Request for Proposal. All submissions are to be sent via certified mail at no cost to the Government. The Government shall not incur any cost for shipping or packaging of proposal sample submittals.

Proposal Samples must be sent to:

DHS ICE OTTP

Attn: Ballistics Handlers

6760 Upton Avenue

BLDG 234

Fort Benning, GA 31905

(Phone number to be given upon award.)

(f) Proposal Content.

Volume I: Price

Volume II: Technical

Volume III: Past Performance

VOLUME I: PRICE (No Limit)

Volume I must include the Offeror’s response to the written Solicitation, along with any other administrative data associated with the proposal submission. Offerors are required to fill out and submit Attachment B- Price Schedule as a part of Volume I. The contract will be awarded to the Lowest Priced Technically Acceptable (LPTA) offeror. Volume I does not have a page limit but should be completed in line with Attachment B and shall include pricing for the Base and all Option Periods.

VOLUME II: TECHNICAL (4 pages per each item)

Offerors are required to submit a written technical approach in response to the requirements stated in the Statement of Work. The technical approach will be evaluated by assessing the technical capability to perform stated requirements as well as the following:

TECHNICAL PROPOSAL & SAMPLE:

- Offerors must submit a sample of the Complete Body Armor Kit (CBAK) for evaluation by the Technical Evaluation Team (TET). All samples are due at the same time as the written portion of the proposal and must be postmarked by the due date.

- Offerors must submit a sample of any item, to be considered equal if not listed as brand name specified in the SOW. All samples are due at the same time as the written portion of the proposal and must be postmarked by the due date.

- Offerors must submit a written portion of the technical proposal to include a list of each item to be submitted for the quote along with the technical specifications as provided by the manufacturer of each item.

- Offerors must submit a technical approach for handling a variety of orders under this task order in the written portion of their technical proposal

Technical will be evaluated technically acceptable or technically unacceptable.

VOLUME III: PAST PERFORMANCE (6 pages per reference)

Minimum of three (3) Past Performance Questionnaires (Attachment C) are required to be submitted by the Offeror’s reference(s). In the case of an Offeror without a record of relevant past performance or for whom information on past performance is not available, the Offeror will not be evaluated favorably or unfavorably on past performance and will receive a rating of neutral. See Attachment C.

BASIS OF AWARD:

The Government intends to award a single Firm-Fixed-Price (FFP) Requirements contract to the responsible offeror(s) whose proposal meets the Government’s requirements and represents the best value to the Government. Award will be made on the basis of the lowest evaluated price meeting or exceeding the acceptability standards for non-cost factors. In order to meet or exceed the Government’s requirements, an offeror must be determined technically acceptable with a satisfactory past performance and reasonable prices. Partial awards shall not be considered.

As such, offeror(s) shall propose pricing for all equipment listed on Attachment B (Price Schedule).

The following evaluation factors will be used in this selection process:

• Technical

• Past Performance

• Price

Technical: The offeror must be able to provide ALL the equipment listed in Attachment B (Price Schedule) as required in the agreement.

Past Performance: The offeror shall be determined to have an acceptable past performance. No past performance does not negatively affect the offeror.

Price: The price must be fair and reasonable.

Determination of Responsibility:

A determination of responsibility will be made on the apparent successful offeror prior to award in accordance with FAR 9.104. If the prospective contractor is found non-responsible, that offeror will be rejected and will receive no further consideration for award.

ICE reserves the right to award the Requirements Contract based on the initial offers and may not require discussions or negotiations with the successful Offeror. Therefore, it is critical that the offeror be fully responsive to this solicitation and its provisions. Additionally, ICE reserves the right to conduct discussions and negotiations.

Factor 1 – Technical:

The Government will evaluate the Offeror’s proposal(s) to determine that it substantiates the Offerors abilities to provide the required products. The offeror is required to submit a sample of the following:

- Complete Body Armor Kit (CBAK)

- Sample of any item, to be considered equal if not listed as brand name specified in the SOW

- List of each item to be submitted for the quote along with the technical specifications as provided by the manufacturer of each item

Each sample item will be rated as either technically acceptable or unacceptable based upon the specifications listed in Section 2 of the SOW. If the item is not brand name and the TET determines that the item fails to meet the salient physical, functional, or performance characteristic specified in this solicitation to the brand name product of the corresponding item then that item and proposal may be deemed technically unacceptable.

Factor 2 – Past Performance:

The Government will evaluate the Offeror’s past performance information of a similar size and scope, as proven by the successful management of current and previous agreements or contracts of a similar size and scope.

Factor 3 – Price:

The price proposal will be evaluated for accuracy, completeness, and reasonableness but will not be assigned an adjectival rating. For award purposes, the Government will evaluate the prices for the base period as well as all options by calculating the total price of all items as listed in Attachment B. This Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

The government will review the pricing tables for completeness and accuracy. The offeror’s proposal will be checked for mathematical correctness to ensure all prices are summarized correctly. A determination will be made regarding whether the price appears unbalanced for the separately priced equipment identified on the pricing schedule.

PACKING AND PACKAGING:

The Contractor shall provide adequate commercial packaging (complete with barcodes on the outside of boxes and on the serial panels) and marking for shipping. The contractor shall provide the delivery of all equipment ordered for receipt in undamaged condition. Containers and closures shall comply with Interstate Commerce Commission regulations, Uniform Freight Classification Rules, or regulations of other carriers as applicable to the mode of transportation.

Upon shipment, the Contractor shall also provide to the Contracting Officer’s Representative (COR) the following information on the item/s that has/have been shipped:

(Agency)

(Description of Contents) (Contract No.)

(Contractor’s Name and Address)

The Contractor shall be solely responsible for the preservation, marking, packaging, and packing of all materials and supplies. Packaging and shipping shall be factored into the price of the items. Packing and shipping shall be at no additional cost to the Government.

LABELING OF SHIPMENTS:

The Contractor shall stamp or mark the supplies delivered, or otherwise furnish notice with the supplies of the existence of the warranty. The purpose of the markings or notice is to inform the Government personnel who store, stock or use the supplies that the supplies are under warranty.

Markings may be brief but should include:

a) A brief statement that a warranty exists;

b) The substance of the warranty;

c) Its duration; and

d) Who to notify if the supplies are found to be defective

Unless otherwise specified, all shipments shall be labeled to the attention of the person identified in the contract as being the COR. Otherwise delivery shall be made to the person named by the COR as the Government representative at the site named in the delivery order.

INSPECTION AND ACCEPTANCE:

ICE reserves the right to test the product/item as it sees fit from every individual order to ensure that the product is in conformance with the manufacturer’s description and performance claims.

WARRANTY:

The contractor shall warrant the operation of Ballistic Panels provided for a period of at least five

(5) years and all other materials two (2) years from the delivery date. During the period of warranty the Government will ship defective item(s) back to the contractor’s facility, at no charge, for repair or replacement. The contractor shall repair, replace, and return any failed device/item within (15) calendar days after receipt. The contractor shall be responsible for all shipping charges to expeditiously return the repaired or replaced item to the Government.

INVOICING AND PAYMENT:

The terms and conditions included in this contract apply to all purchases made pursuant to it.

Invoicing instructions will be included at time of award and on each individual Delivery Order (DO). In the event of an inconsistency between the provisions of the contract and the Contractor’s invoice, the provisions of the contract will take precedence.

AUTHORIZED USERS AND POINTS OF CONTACT:

The resulting contract is an ICE Agreement and is open for ordering by ICE only.

Contracting Office:

Contracting Officer (CO): Contract Specialist (CS):

TBD TBD

Contracting Officer’s Representative (COR): Alternate COR:

TBD TBD

Roles and Responsibilities:

The following describes the roles and responsibilities of the Contracting Officer (CO), Requiring Activity Delivery Order Contracting Officer (DO CO), and the Contracting Officer’s Representative (COR).

Contracting Officer (CO):

The CO has the overall responsibility for the administration of the Requirements Contract. The CO maintains oversight, conducts quality reviews, establishes ordering guidelines, provides support to the program office, resolves issues with Components and industry, and issues modifications as needed.

The CO is the only individual authorized to take make changes to the terms and conditions of the contact on behalf of the government.

Delivery Order Contracting Officer (DO CO):

The DO CO is responsible for preparing the delivery order in accordance with the ordering procedures set forth in the contract. If it becomes necessary to modify delivery order obligations, this will be accomplished at the DO CO level; however, any changes to the contract terms or conditions will be made at the base contract CO level and issued via modification.

Contracting Officer’s Representative (COR):

The COR is responsible for monitoring the contractor’s performance, monitoring the percentage of the contract ceiling expended, and ensuring that the reporting of orders is accurate and timely.

Additional responsibilities include assisting the CO in the execution of oversight responsibilities.

Delivery Order Contracting Officer’s Representative (DO COR)

The DO COR is responsible for the day-to-day coordination of the individual delivery order(s) issued under the agreement and will represent the DO CO in the administration of technical details within the scope of the delivery order. The DO COR is also responsible for the final inspection and acceptance of delivery order deliverables and reports, and any other responsibilities as may be specified in the delivery order. The DO COR is not authorized to make any representations or commitments of any kind on behalf of the CO or the Government.

Ordering – By Designated Ordering Official:

The Government will order any supplies and/or services to be furnished under this agreement by issuing delivery orders on Optional Form 347, or an agency prescribed form.

CLIN STRUCTURE:

Offerors shall submit their price proposals in accordance with Attachment B. The CLIN Structure will include all items in Attachment B for the Base and all Option Periods in the resulting Requirements Contract:

FAR CLAUSES, PROVISIONS, HSAR CLAUSES, AND TERMS AND CONDITIONS:

Orders issued against this contract are subject to the clauses included in the agreement and the additional HSAR clauses listed below that are incorporated by reference in this contract.

The following FAR/HSAR clauses and provisions are hereby incorporated by reference with the same force and effect as if it was given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at these addresses:

http://www.acquisition.gov/far http://farsite.hill.af.mil

The following FAR clauses and provisions are incorporated by reference:

52.202-1-- Definitions (NOV 2013)

52.203-3-- Gratuities (APR 1984)

52.203-5-- Covenant Against Contingent Fees (MAY 2014)

52.203-7-- Anti-Kickback Procedures (MAY 2014)

52.203-8 -- Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity (MAY 2014)

52.203-10 -- Price or Fee Adjustment for Illegal or Improper Activity (MAY 2014)

52.203-12 -- Limitation on Payments to Influence Certain Federal Transactions (OCT 2010) http://www.acquisition.gov/far http://farsite.hill.af.mil/

52.203-17-- Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights (APR 2014)

52.203-18-- Prohibition on Contracting with Entities that Require Certain Internal Confidentiality Agreements or Statements-Representation (JAN 2017)

52.203-19-- Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017)

52.204-4 -- Printed or Copied Double-Sided on Postconsumer Fiber Content Paper (MAY 2011)

52.204-7-- System for Award Management (OCT 2016)

52.204-13-- System for Award Management Maintenance (OCT 2016)

52.204-16--Commercial and Government Entity Code Reporting (JUL 2016)

52.204-18--Commercial and Government Entity Code Maintenance (JUL 2016)

52.204-19 Incorporation by Reference of Representations and Certifications (DEC 2014)

52.211-6-- Brand Name or Equal (AUG 1999)

52.212-1-- Instructions to Offerors—Commercial Items (JAN 2017)

52.212-2-- Evaluation—Commercial Items (OCT 2014)

52.212-4-- Contract Terms and Conditions Commercial Items (JAN 2017)

52.247-34-- F.O.B. Destination (NOV 1991)

52.229-3-- Federal, State, and Local Taxes (FEB 2013)

52.211-5-- Material Requirements (AUG 2000)

52.219-6-- Notice of Total Small Business Set-Aside (NOV 2011)

52.219-14-- Limitations on Subcontracting (JAN 2017)

52.223-18 – Encouraging Contractor Policies to Ban Text Messaging While Driving (AUG 2011)

52.217-5 -- Evaluation of Options (JUL 1990)

52.225-25-- Prohibition on Contracting with Entities Engaging in Certain Activities or Transactions Relating to Iran—Representation and Certification (OCT 2015)

52.232-1-- Payments (APR 1984)

52.232-17 – Interest (MAY 2014)

52.232-23 -- Assignment of Claims (MAY 2014)

52.232-39-- Unenforceability of Unauthorized Obligations (JUN 2013)

52.232-40-- Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)

52.233-1 – Disputes (MAY 2014)

52.242-13-- Bankruptcy (JUL 1995)

52.243-1-- Changes -- Fixed-Price (AUG 1987)

52.244-6-- Subcontracts for Commercial Items (JAN 2017)

52.247-30-- F.o.b. -- Origin, Contractors Facility (FEB 2006)

52.253-1-- Computer Generated Forms (JAN 1991)

The following FAR clauses and provisions are incorporated in full text:

52.209-7 – Information Regarding Responsibility Matters (JUL 2013)

(a) Definitions. As used in this provision—

“Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceeding at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

(1) The total value of all current, active contracts and grants, including all priced options;

and

(2) The total value of all current, active orders including all priced options under indefinite-delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award Schedules).

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager;

head of a division or business segment; and similar positions).

(b) The offeror [_] has [_] does not have current active Federal contracts and grants with total value greater than $10,000,000.

(c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:

(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:

(i) In a criminal proceeding, a conviction.

(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

(iii) In an administrative proceeding, a finding of fault and liability that results in—

(A) The payment of a monetary fine or penalty of $5,000 or more; or

(B) The payment of a reimbursement, restitution, or damages in excess of $100,000.

(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.

(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.

(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in the System for Award Management database via https://www.acquisition.gov (see 52.204-7).

(End of provision) https://www.acquisition.gov/

52.209-5 -- Certification Regarding Responsibility Matters (OCT 2015)

(a)

(1) The Offeror certifies, to the best of its knowledge and belief, that --

(i) The Offeror and/or any of its Principals --

(A) Are [_] are not [X_] presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;

(B) Have [_] have not [X], within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) contract or subcontract; violation of Federal or State antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property (if offeror checks “have”, the offeror shall also see 52.209-7, if included in this solicitation); and

(C) Are [_] are not [X] presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in paragraph (a)(1)(i)(B) of this provision; and

(D) Have [_], have not [X], within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied.

(1) Federal taxes are considered delinquent if both of the following criteria apply:

(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.

(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.

(2) Examples.

(i) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(iii) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.

(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).

(ii) The Offeror has [_] has not [X], within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.

(2) “Principal,” for the purposes of this certification, means an officer; director; owner; partner;

or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

This Certification Concerns a Matter Within the Jurisdiction of an Agency of the United States and the Making of a False, Fictitious, or Fraudulent Certification May Render the Maker Subject to Prosecution Under Section 1001, Title 18, United States Code.

(b) The Offeror shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily result in withholding of an award under this solicitation. However, the certification will be considered in connection with a determination of the Offeror’s responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Offeror nonresponsible.

(d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

(e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default.

(End of Provision)

52.212-3 -- Offeror Representations and Certifications -- Commercial Items (JAN 2017)

The offeror shall complete only paragraphs (b) of this provision if the Offeror has completed the annual representations and certification electronically via the System for Award Management (SAM) Web site located at http://www.sam.gov/portal. If the Offeror has not completed the annual representations and certifications electronically, the Offeror shall complete only paragraphs (c) through (u) of this provision.

(a) Definitions. As used in this provision--

“Administrative merits determination” means certain notices or findings of labor law violations issued by an enforcement agency following an investigation. An administrative merits determination may be final or be subject to appeal or further review. To determine whether a particular notice or finding is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“Arbitral award or decision” means an arbitrator or arbitral panel determination that a labor law violation occurred, or that enjoined or restrained a violation of labor law. It includes an award or decision that is not final or is subject to being confirmed, modified, or vacated by a court, and includes an award or decision resulting from private or confidential proceedings. To determine whether a particular award or decision is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“Civil judgment” means--

(1) In paragraph (h) of this provision: A judgment or finding of a civil offense by any court of competent jurisdiction.

(2) In paragraph (s) of this provision: Any judgment or order entered by any Federal or State court in which the court determined that a labor law violation occurred, or enjoined or restrained a violation of labor law. It includes a judgment or order that is not final or is subject to appeal.

To determine whether a particular judgment or order is covered by this definition, it is necessary to consult section II.B. in the DOL Guidance.

“DOL Guidance” means the Department of Labor (DOL) Guidance entitled: “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces’ “. The DOL Guidance, dated August 25, 2016, can be obtained from www.dol.gov/fairpayandsafeworkplaces.

“Economically disadvantaged women-owned small business (EDWOSB) concern” means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States and who are economically disadvantaged in accordance with 13 CFR part 127. It automatically qualifies as a women-owned small business eligible under the WOSB Program.

“Enforcement agency” means any agency granted authority to enforce the Federal labor laws. It includes the enforcement components of DOL (Wage and Hour Division, Office of Federal Contract Compliance Programs, and Occupational Safety and Health Administration), the Equal Employment Opportunity Commission, the Occupational Safety and Health Review Commission, and the National Labor Relations Board. It also means a State agency designated to administer an OSHA-approved State Plan, but only to the extent that the State agency is acting in its capacity as administrator of such plan. It does not include other Federal agencies which, in their capacity as contracting agencies, conduct investigations of potential labor law violations.

The enforcement agencies associated with each labor law under E.O. 13673 are--

(1) Department of Labor Wage and Hour Division (WHD) for--

(i) The Fair Labor Standards Act;

(ii) The Migrant and Seasonal Agricultural Worker Protection Act;

(iii) 40 U.S.C. chapter 31, subchapter IV, formerly known as the Davis-Bacon Act;

(v) 41 U.S.C. chapter 67, formerly known as the Service Contract Act;

(vi) The Family and Medical Leave Act; and

(vii) E.O. 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors);

(2) Department of Labor Occupational Safety and Health Administration (OSHA) for--

(i) The Occupational Safety and Health Act of 1970; and

(ii) OSHA-approved State Plans;

(4) Department of Labor Office of Federal Contract Compliance Programs (OFCCP) for--

(i) Section 503 of the Rehabilitation Act of 1973;

(ii) The Vietnam Era Veterans' Readjustment Assistance Act of 1972 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974; and

(iii) E.O. 11246 of September 24, 1965 (Equal Employment Opportunity);

(5) National Labor Relations Board (NLRB) for the National Labor Relations Act; and

(6) Equal Employment Opportunity Commission (EEOC) for--

(i) Title VII of the Civil Rights Act of 1964;

(ii) The Americans with Disabilities Act of 1990;

(iii) The Age Discrimination in Employment Act of 1967; and

(iv) Section 6(d) of the Fair Labor Standards Act (Equal Pay Act).

“Forced or indentured child labor” means all work or service—

(1) Exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or

(2) Performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.

“Highest-level owner” means the entity that owns or controls an immediate owner of the offeror, or that owns or controls one or more entities that control an immediate owner of the offeror. No entity owns or exercises control of the highest level owner.

“Immediate owner” means an entity, other than the offeror, that has direct control of the offeror.

Indicators of control include, but are not limited to, one or more of the following: Ownership or interlocking management, identity of interests among family members, shared facilities and equipment, and the common use of employees.

“Inverted domestic corporation,” means a foreign incorporated entity that meets the definition of an inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c).

“Labor compliance agreement” means an agreement entered into between a contractor or subcontractor and an enforcement agency to address appropriate remedial measures, compliance assistance, steps to resolve issues to increase compliance with the labor laws, or other related matters.

“Labor laws” means the following labor laws and E.O.s:

(1) The Fair Labor Standards Act.

(2) The Occupational Safety and Health Act (OSHA) of 1970.

(3) The Migrant and Seasonal Agricultural Worker Protection Act.

(4) The National Labor Relations Act.

(5) 40 U.S.C. chapter 31, subchapter IV, formerly known as the Davis-Bacon Act.

(6) 41 U.S.C. chapter 67, formerly known as the Service Contract Act.

(7) E.O. 11246 of September 24, 1965 (Equal Employment Opportunity).

(8) Section 503 of the Rehabilitation Act of 1973.

(9) The Vietnam Era Veterans' Readjustment Assistance Act of 1972 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974.

(10) The Family and Medical Leave Act.

(11) Title VII of the Civil Rights Act of 1964.

(12) The Americans with Disabilities Act of 1990.

(13) The Age Discrimination in Employment Act of 1967.

(14) E.O. 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors).

(15) Equivalent State laws as defined in the DOL Guidance. (The only equivalent State laws implemented in the FAR are OSHA-approved State Plans, which can be found at www.osha.gov/dcsp/osp/approved_state_plans.html).

“Labor law decision” means an administrative merits determination, arbitral award or decision, or civil judgment, which resulted from a violation of one or more of the laws listed in the definition of “labor laws”.

“Manufactured end product” means any end product in product and service codes (PSCs) 1000- 9999, except—

(1) PSC 5510, Lumber and Related Basic Wood Materials;

(2) Product or Service Group (PSG) 87, Agricultural Supplies;

(3) PSG 88, Live Animals;

(4) PSG 89, Subsistence;

(5) PSC 9410, Crude Grades of Plant Materials;

(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;

(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products;

(8) PSC 9610, Ores;

(9) PSC 9620, Minerals, Natural and Synthetic; and

(10) PSC 9630, Additive Metal Materials.

“Place of manufacture” means the place where an end product is assembled out of components, or otherwise made or processed from raw materials into the finished product that is to be provided to the Government. If a product is disassembled and reassembled, the place of reassembly is not the place of manufacture.

“Predecessor” means an entity that is replaced by a successor and includes any predecessors of the predecessor.

“Restricted business operations” means business operations in Sudan that include power production activities, mineral extraction activities, oil-related activities, or the production of military equipment, as those terms are defined in the Sudan Accountability and Divestment Act of 2007 (Pub. L. 110-174). Restricted business operations do not include business operations that the person (as that term is defined in Section 2 of the Sudan Accountability and Divestment Act of 2007) conducting the business can demonstrate—

(1) Are conducted under contract directly and exclusively with the regional government of southern Sudan;

(2) Are conducted pursuant to specific authorization from the Office of Foreign Assets Control in the Department of the Treasury, or are expressly exempted under Federal law from the requirement to be conducted under such authorization;

(3) Consist of providing goods or services to marginalized populations of Sudan;

(4) Consist of providing goods or services to an internationally recognized peacekeeping force or humanitarian organization;

(5) Consist of providing goods or services that are used only to promote health or education; or

(6) Have been voluntarily suspended.

Sensitive technology—

(1) Means hardware, software, telecommunications equipment, or any other technology that is to be used specifically—

(i) To restrict the free flow of unbiased information in Iran; or

(ii) To disrupt, monitor, or otherwise restrict speech of the people of Iran; and

(2) Does not include information or informational materials the export of which the President does not have the authority to regulate or prohibit pursuant to section 203(b)(3) of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).

“Service-disabled veteran-owned small business concern”—

(1) Means a small business concern—

(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

(2) Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).

“Small business concern” means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the criteria in 13 CFR Part 121 and size standards in this solicitation.

“Small disadvantaged business concern, consistent with 13 CFR 124.1002,” means a small business concern under the size standard applicable to the acquisition, that--

(1) Is at least 51 percent unconditionally and directly owned (as defined at 13 CFR 124.105) by--

(i) One or more socially disadvantaged (as defined at 13 CFR 124.103) and economically disadvantaged (as defined at 13 CFR 124.104) individuals who are citizens of the United States;

and

(ii) Each individual claiming economic disadvantage has a net worth not exceeding $750,000 after taking into account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and

(2) The management and daily business operations of which are controlled (as defined at 13.CFR 124.106) by individuals, who meet the criteria in paragraphs (1)(i) and (ii) of this definition.

“Subsidiary” means an entity in which more than 50 percent of the entity is owned—

(1) Directly by a parent corporation; or

(2) Through another subsidiary of a parent corporation.

“Successor” means an entity that has replaced a predecessor by acquiring the assets and carrying out the affairs of the predecessor under a new name (often through acquisition or merger). The term “successor” does not include new offices/divisions of the same company or a company that only changes its name. The extent of the responsibility of the successor for the liabilities of the predecessor may vary, depending on State law and specific circumstances.

“Veteran-owned small business concern” means a small business concern—

(1) Not less than 51 percent of which is owned by one or more veterans(as defined at 38 U.S.C.

101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and

(2) The management and daily business operations of which are controlled by one or more veterans.

“Women-owned business concern” means a concern which is at least 51 percent owned by one or more women; or in the case of any publicly owned business, at least 51 percent of the its stock is owned by one or more women; and whose management and daily business operations are controlled by one or more women.

“Women-owned small business concern” means a small business concern --

(1) That is at least 51 percent owned by one or more women or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and

(2) Whose management and daily business operations are controlled by one or more women.

“Women-owned small business (WOSB) concern eligible under the WOSB Program (in accordance with 13 CFR part 127),” means a small business concern that is at least 51 percent directly and unconditionally owned by, and the management and daily business operations of which are controlled by, one or more women who are citizens of the United States.

Note to paragraph (a): By a court order issued on October 24, 2016, the following definitions in this paragraph (a) are enjoined indefinitely as of the date of the order: “Administrative merits determination”, “Arbitral award or decision”, paragraph (2) of “Civil judgment”, “DOL Guidance”, “Enforcement agency”, “Labor compliance agreement”, “Labor laws”, and “Labor law decision”. The enjoined definitions will become effective immediately if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in the Federal Register advising the public of the termination of the injunction.

(b)

(1) Annual Representations and Certifications. Any changes provided by the offeror in paragraph (b)(2) of this provision do not automatically change the representations and certifications posted on the SAM website.

(2) The offeror has completed the annual representations and certifications electronically via the SAM website accessed through https://www.acquisition.gov. After reviewing the SAM database information, the offeror verifies by submission of this offer that the representation and certifications currently posted electronically at FAR 52.212-3, Offeror Representations and Certifications—Commercial Items, have been entered or updated in the last 12 months, are current, accurate, complete, and applicable to this solicitation (including the business size standard applicable to the NAICS code referenced for this solicitation), as of the date of this offer and are incorporated in this offer by reference (see FAR 4.1201), except for paragraphs ____________. [Offeror to identify the applicable paragraphs at (c) through (u) of this provision that the offeror has completed for the purposes of this solicitation only, if any. These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer. Any changes provided by the offeror are applicable to this solicitation only, and do not result in an update to the representations and certifications posted electronically on SAM.]

(c) Offerors must complete the following representations when the resulting contract is to be performed in the United States or its outlying areas. Check all that apply.

(1) Small business concern. The offeror represents as part of its offer that it [_] is, [_] is not a small business concern.

(2) Veteran-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents as part of its offer that it [_] is, [_] is not a veteran-owned small business concern.

(3) Service-disabled veteran-owned small business concern. [Complete only if the offeror represented itself as a veteran-owned small business concern in paragraph (c)(2) of this provision.] The offeror represents as part of its offer that it [_] is, [_] is not a service-disabled veteran-owned small business concern.

(4) Small disadvantaged business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it [_] is, [_] is not, a small disadvantaged business concern as defined in 13 CFR 124.1002.

(5) Women-owned small business concern. [Complete only if the offeror represented itself as a small business concern in paragraph (c)(1) of this provision.] The offeror represents that it [_] is, [_] is not a women-owned small business concern.

Note: Complete paragraphs (c)(8) and (c)(9) only if this solicitation is expected to exceed the simplified acquisition threshold.

(6) WOSB concern eligible under the WOSB Program. [Complete only if the offeror represented itself as a women-owned small business concern in paragraph (c)(5) of this provision.] The offeror represents that—

(i) It [_] is, [_] is not a WOSB concern eligible under the WOSB Program, has provided all the required documents to the WOSB Repository, and no change in circumstances or adverse decisions have been issued that affects its eligibility; and

(ii) It [_] is, [_] is not a joint venture that complies with the requirements of 13 CFR part 127, and the representation in paragraph (c)(6)(i) of this provision is accurate for each WOSB concern eligible under the WOSB Program participating in the joint venture. [The offeror shall enter the name or names of the WOSB concern eligible under the WOSB Program and other small businesses that are participating in the joint venture: _________.] Each WOSB concern eligible under the WOSB Program participating in the joint venture shall submit a separate signed copy of the WOSB representation.

(7) Economically disadvantaged women-owned small business (EDWOSB) concern. [Complete only if the offeror represented itself as a WOSB concern eligible under the WOSB Program in (c)(6) of this provision.] The offeror represents that—

(i) It [_] is, [_] is not an EDWOSB concern, has provided all the required documents to the WOSB Repository, and no change in circumstances or adverse decisions have been issued that affects its eligibility;…