Amendment1_CombinedSynopsis-Solicitation_RFP-AttchC(Clauses)_MSA051.doc

HSCG23-09-R-MSA051

ATTACHMENT (C)

I.

FEDERAL ACQUISITION REGULATION (48 CFR CHAPTER 1) CLAUSES

52.252-1 SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (FEB 1998) – This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The Offeror is cautioned that the listed provisions may include blocks that must be completed by the Offeror and submitted with its offer. In lieu of submitting the full text of those provisions, the Offeror may identify the provision by paragraph identifier and provide the appropriate information with its offer. Also, the full text of a clause may be accessed electronically at these addresses:

http://www.acqnet.gov/far http://www.dhs.gov/xopnbiz/regulations/index.shtm

52.252-2: CLAUSES INCORPORATED BY REFERENCE (FEB 1998) – This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at these addresses:

http://www.acqnet.gov/far http://www.dhs.gov/xopnbiz/regulations/index.shtm

Provisions & Clauses Included by Reference:

NUMBER

TITLE/DATE

52.203-3 Gratuities (Apr 1984)

52.203-5 Covenant against Contingent Fees (Apr 1984)

52.203-7 Anti-Kickback Procedures (Jul 1995)

52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions (Sep 2005)

52.203-12 Limitation on Payments to Influence Certain Federal Transactions (Sep 2005)

52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Sep 2006)

52.212-1 Instructions to Offerors – Commercial 52.212-3 Offeror Representations and Certifications—Commercial Items (Feb 2009 52.212-4 Contract Terms and Conditions – Commercial Items (Feb 2007) 52.225-13 Restrictions on certain foreign purchases (june 2008) 52.232-11 Extras (Apr 1984)

52.232-18 Availability of Funds (Apr 1984) 52.232-24 Assignment of Claims (Jan 1986)

52.233-3 Protest after Award (Aug 1996)

52.233-4 Applicable Law for Breach of Contract Claim (Oct 2004) 52.247-34 F.o.b. Destination (Nov 1991)

Provisions & Clauses in Full Text:

52.209-5 Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters (Dec 2001) – (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 o are not o presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;

(B) Have o have not o, 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;

(C) Are o are not o 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;

(D) Have o, have not o, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 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 o has not o, 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 subsidiary, 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 non-responsible.

(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.

52.212-2 Evaluation—Commercial Items (JAN 1999) – (a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers: (1) Simulator Technical Capabilities; (2) Relevant Past Performance; and (3) Price.

EVALUATION FACTORS:

The Government will evaluate the proposals against the following three factors:

1. SIMULATOR OPERATIONAL CAPABILITIES AND PHYSICAL CHARACTERISTICS:

• Offeror’s proposal in clear detail shall demonstrate the ability to meet the minimum requirements (“Threshold”) and/or exceed the requirements (“Objectives”) listed in the specification.

• Offerors shall provide information to demonstrate the capability to produce and deliver simulators at the rate and quantity stated in the price scenario worksheet.

Note: Items followed by the word "Threshold" are minimum requirements or performance that the proposed product must have. Items followed by the word "Objective" represent desirable increases in operational capabilities. These “Objective” requirements or any portion thereof, as well as any other items or increased performance capabilities the Offeror considers desirable or to add value, may be offered.

2. RELEVANT PAST PERFORMANCE:

• The Government’s intent is to determine whether the Offeror consistently delivered quality products in a timely manner in the past. This factor will be evaluated on the basis of relevant past performance for the Offerors during the last three years on contracts for the same design, or same family of designs to the simulator proposed, and the total dollar value must exceed $100,000. The information presented in the Offerors’ proposals, together with information from any other sources available to the Government (e.g., Government-controlled Contractor performance databases and references including contractual, technical, and end-user representatives) may provide input for the evaluation of this factor.

• Offeror’s proposals shall contain information on a maximum of three references over the past three years that are relevant to this requirement.

• The Offeror shall submit the Past Performance Questionnaire (see Attachment D) to three references (either Government or commercial customers) for completion. The references (not the Offeror) shall return the completed questionnaire to the email address shown on the Questionnaire no later than five business days after the closing date of this solicitation. Any completed questionnaire returned directly by the Offeror to the Government shall not be accepted.

• The Offeror is solely responsible to ensure that the Questionnaire is completed and returned by the respective references to the email address on or before the deadline.

See Attachment D for Questionnaire and instructions.

• A lack of any relevant past performance information will be treated by the Government as a “Neutral” under this factor.

3. PRICE:

• Offeror’s proposal shall be submitted on a Firm-fixed Price basis. Offerors shall provide pricing in accordance with the attached price scenario worksheet (see Attachment B). The price scenario worksheet shall be used to evaluate the total evaluated price. The worksheet will not be part of the award.

• Spot pricing, quantity discounts and specials throughout the period of performance of this requirement are highly encouraged and should be identified in the price scenario worksheet. All Offerors shall hold their proposals and prices firm for at least 90 days from the date specified for the receipt of proposals.

• The total evaluated price will include price completeness and accuracy, price reasonableness. An evaluation of the Offerors’ price proposals will be made to determine if they are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the technical proposal. Reasonableness determinations will be made by comparing proposed prices with other Offeror’s received, established commercial prices and/or by comparing proposed prices with the Government estimate.

BASIS FOR AWARD: The basis for award will be best value, which will be based on consideration of the following factors: (1) the simulator technical capabilities; (2) Relevant Past Performance; and (3) Price.

All non-price factors when combined are more important than Price.

Please note that as the technical proposals become closer in quality, price increases in relative importance.

The Government may elect to pay a premium price to select an Offeror whose non-price evaluation factors are superior.

TECHNICAL EVALUATION: The technical evaluation will be attained through a determination and analysis of strengths, weaknesses, significant weaknesses, deficiencies and risks of each proposal. Technical risks will be included in the final evaluation of each factor and will not be evaluated as a separate factor. In the assessment of technical risk, the Government evaluators will consider all available information.

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

(c) A written notice of award or acceptance of an offer mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items (JAN 2009) –

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).

(2) 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Pub. L. 108-77, 108-78)

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

( (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 253g and 10 U.S.C. 2402)

( (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Dec 2008) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note))

__ (3) 52.219-3, Notice of Total HUBZone Set-Aside (Jan 1999) (15 U.S.C. 657a)

( (4) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (July 2005) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a)

__ (5) [Reserved]

( (6) (i) 52.219-6, Notice of Total Small Business Set-Aside (June 2003) (15 U.S.C. 644)

__ (ii) Alternate I (Oct 1995) of 52.219-6

__ (iii) Alternate II (Mar 2004) of 52.219-6

__ (7) (i) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003)

(15 U.S.C. 644)

__ (ii) Alternate I (Oct 1995) of 52.219-7

__ (iii) Alternate II (Mar 2004) of 52.219-7

( (8) 52.219-8, Utilization of Small Business Concerns (May 2004) (15 U.S.C. 637(d) (2) and (3))

( (9) (i) 52.219-9, Small Business Subcontracting Plan (Apr 2008) (15 U.S.C. 637(d) (4))

__ (ii) Alternate I (Oct 2001) of 52.219-9

__ (iii) Alternate II (Oct 2001) of 52.219-9

__ (10) 52.219-14, Limitations on Subcontracting (Dec 1996) (15 U.S.C. 637(a) (14))

( (11) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C. 637(d) (4) (F) (i))

__ (12) (i) 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns (Oct 2008) (10 U.S.C. 2323) (if the offeror elects to waive the adjustment, it shall so indicate in its offer)

__ (ii) Alternate I (June 2003) of 52.219-23

( (13) 52.219-25, Small Disadvantaged Business Participation Program— Disadvantaged Status and Reporting (Apr 2008) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323)

__ (14) 52.219-26, Small Disadvantaged Business Participation Program— Incentive Subcontracting (Oct 2000) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323)

__ (15) 52.219-27, Notice of Total Service-Disabled Veteran-Owned Small Business Set- Aside (May 2004) (15 U.S.C. 657 f)

( (16) 52.219-28, Post Award Small Business Program Re-representation (June 2007) (15 U.S.C. 632(a) (2))

( (17) 52.222-3, Convict Labor (June 2003) (E.O. 11755)

( (18) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (Feb 2008) (E.O. 13126)

( (19) 52.222-21, Prohibition of Segregated Facilities (Feb 1999)

( (20) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246)

( (21) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Sept 2006) (38 U.S.C. 4212)

( (22) 52.222-36, Affirmative Action for Workers with Disabilities (Jun 1998) (29 U.S.C. 793)

( (23) 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Sept 2006) (38 U.S.C. 4212)

( (24) 52.222-39, Notification of Employee Rights Concerning Payment of Union Dues or Fees (Dec 2004) (E.O. 13201)

( (25)(i) 52.222-50, Combating Trafficking in Persons (Aug 2007) (Applies to all contracts)

__ (ii) Alternate I (Aug 2007) of 52.222-50 __ (26) 52.222-54, Employment Eligibility Verification (Jan 2009). (Executive Order 12989) (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

__ (27) (i) 52.223-9, Estimate of Percentage of Recovered Material Content for

EPA-

Designated Items (May 2008) (42 U.S.C. 6962(c) (3) (A) (ii))

__ (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i) (2) (C)) ( (28) 52.223-15, Energy Efficiency in Energy-Consuming Products (Dec 2007) (42 U.S.C. 8259b)

( (29) (i) 52.223-16, IEEE 1680 Standard for the Environmental Assessment of Personal Computer Products (Dec 2007) (E.O. 13423)

__ (ii) Alternate I (Dec 2007) of 52.223-16

( (30) 52.225-1, Buy American Act—Supplies (June 2003) (41 U.S.C. 10a-10d)

__ (31)(i) 52.225-3, Buy American Act—Free Trade Agreements—Israeli Trade Act (Aug 2007) (41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, Pub. L 108- 77, 108-78, 108-286, 109-53 and 109-169).

__ (ii) Alternate I (Jan 2004) of 52.225-3

__ (iii) Alternate II (Jan 2004) of 52.225-3

__ (32) 52.225-5, Trade Agreements (Nov 2007) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note)

( (33) 52.225-13, Restrictions on Certain Foreign Purchases (June 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury)

__ (34) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42 U.S.C. 5150).

__ (35) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov 2007) (42 U.S.C. 5150)

_(_ (36) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).

__ (37) 52.232-30, Installment Payments for Commercial Items (Oct 1995) (41 U.S.C. 255(f), 10 U.S.C. 2307(f))

_(_ (38) 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration (Oct 2003) (31 U.S.C. 3332)

__ (39) 52.232-34, Payment by Electronic Funds Transfer—Other than Central Contractor Registration (May 1999) (31 U.S.C. 3332)

__ (40) 52.232-36, Payment by Third Party (May 1999) (31 U.S.C. 3332)

__ (41) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a)

__ (42)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

__ (ii) Alternate I (Apr 2003) of 52.247-64

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

__ (1) 52.222-41, Service Contract Act of 1965 (Nov 2007) (41 U.S.C. 351, et seq.)

__ (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

__ (3) 52.222-43, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts) (Nov 2006) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

__ (4) 52.222-44, Fair Labor Standards Act and Service Contract Act—Price Adjustment (Feb 2002) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).

__ (5) 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment— Requirements (Nov 2007) (41 U.S.C. 351, et seq.)

__ (6) 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services—Requirements (Nov 2007) (41 U.S.C. 351, et seq.).

__ (7) 52.237-11, Accepting and Dispensing of $1 Coin (Sept 2008) (31 U.S.C.

5112(p) (1))

(d) Comptroller General Examination of Record. The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records—Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in paragraphs (e)(1)(i) through (xi) of this paragraph in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

(i) 52.203-13, Contractor Code of Business Ethics and Conduct

(Dec 2008) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note))

(ii) 52.219-8, Utilization of Small Business Concerns (May 2004)

(15 U.S.C. 637(d) (2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $550,000 ($1,000,000 for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities

(iii) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246).

(iv) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Sept 2006)

(38 U.S.C. 4212).

(v) 52.222-36, Affirmative Action for Workers with Disabilities (June 1998)

(29 U.S.C. 793)

(vi) 52.222-39, Notification of Employee Rights Concerning Payment of

Union Dues or Fees (Dec 2004) (E.O. 13201)

(vii) 52.222-41, Service Contract Act of 1965 (Nov 2007) (41 U.S.C. 351,

(viii) 52.222-50, Combating Trafficking in Persons (Aug 2007) (22 U.S.C.

7104(g)) Flow down required in accordance with paragraph (f) of FAR clause 52.222-50

(ix) 52.222-51, Exemption from Application of the Service Contract Act to

Contracts for Maintenance, Calibration, or Repair of Certain Equipment-

Requirements (Nov 2007) (41 U.S.C. 351, et seq.)

(x) 52.222-53, Exemption from Application of the Service Contract Act to

Contracts for Certain Services-Requirements (Nov 2007) (41 U.S.C. 351,

(xi) 52.222-54, Employment Eligibility Verification (Jan 2009)

(xii) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial

Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-

(2) While not required, the contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

52.216-1 Types of Contract (Apr 1984) (Firm Fixed Price Services contract) – The Government contemplates award of a Firm-fixed price supply IDIQ contract resulting from this solicitation.

52.216-18: ORDERING (OCT 1995) - (a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from “date of contract award” through “twelve months”.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control. (c) If mailed, a delivery order or task order is considered “issued” when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

52.216-19: ORDER LIMITATIONS (OCT 1995) - (a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than 24 units, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor— (1) Any order for a single item in excess of 100 units; (2) Any order for a combination of items in excess of 100 units; or (3) A series of orders from the same ordering office within 30 days that together call for quantities exceeding the limitation in paragraph (b) (1) or (2) of this section. (c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) of this section. (d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 7 days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

52.216-22: Indefinite Quantity (Oct 1995) – (a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract. (b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.” (c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations. (d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after twelve months from date of award.

52.233-2 Service of Protest (Sept 2006) – (a) Protests, as defined in section 31.101 of the Federal Acquisition Regulation, that are filed directly with an agency, and copies of any protests that are filed with the Government Accountability Office (GAO), shall be served on the Contracting Officer (addressed as follows) by obtaining written and dated acknowledgment of receipt from Walt.J.O’Brien@uscg.mil (Contracting Officer) or Todd.W.Blose@uscg.mil (Contract Specialist).

(b) The copy of any protest shall be received in the office designated above within one day of filing a protest with the GAO.

II.

HOMELAND SECURITY ACQUISITION REGULATION (48 CFR CHAPTER 30 CLAUSES)

Clauses Incorporated by Reference:

NUMBER

TITLE/DATE

3052.222-70

STRIKES OR PICKETING AFFECTING TIMELY COMPLETION

OF THE CONTRACT WORK (DEC 2003)

3052.242-72 Contracting Officer’s Technical Representative (Dec 2003)

Provisions & Clauses in Full Text:

3052.209-70 Prohibition on contracts with corporate expatriates (Jun 2006) – (a) Prohibitions. Section 835 of the Homeland Security Act, 6 U.S.C. 395, prohibits the Department of Homeland Security from entering into any contract with a foreign incorporated entity which is treated as an inverted domestic corporation as defined in this clause, or with any subsidiary of such an entity. The Secretary shall waive the prohibition with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security.

(b) Definitions. As used in this clause: Expanded Affiliated Group means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting ‘more than 50 percent' for ‘at least 80 percent' each place it appears.

Foreign Incorporated Entity means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, 6 U.S.C. 395, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.

Inverted Domestic Corporation A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions) —

(1) The entity completes the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;

(2) After the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—

(i) In the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or

(ii) In the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and

(3) The expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.

Person, domestic, and foreign have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.

(c) Special rules. The following definitions and special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic corporation.

(1) Certain Stock Disregarded. For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these shall not be taken into account in determining ownership:

(i) Stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or

(ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of Section 835 of the Homeland

Security Act, 6 U.S.C. 395(b)(1).

(2) Plan Deemed In Certain Cases. If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan.

(3) Certain Transfers Disregarded. The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.

(d) Special Rule for Related Partnerships. For purposes of applying section 835(b) of the Homeland Security Act, 6 U.S.C. 395(b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as a partnership.

(e) Treatment of Certain Rights.

(1) Certain rights shall be treated as stocks to the extent necessary to reflect the present value of all equitable interests incident to the transaction, as follows:

(i) warrants;

(ii) options;

(iii) contracts to acquire stock;

(iv) convertible debt instruments; and

(v) others similar interests.

(2) Rights labeled as stocks shall not be treated as stocks whenever it is deemed appropriate to do so to reflect the present value of the transaction or to disregard transactions whose recognition would defeat the purpose of Section 835.

(f) Disclosure. The offeror under this solicitation represents that [Check one]:

__ it is not a foreign incorporated entity that should be treated as an inverted domestic corporation pursuant to the criteria of (HSAR) 48 CFR 3009.104-70 through 3009.104-73;

__ it is a foreign incorporated entity that should be treated as an inverted through 3009.104-73, but it has submitted a request for waiver pursuant to 3009.104-74, which has not been denied; or

__ it is a foreign incorporated entity that should be treated as an inverted through 3009.104-73, but it plans to submit a request for waiver pursuant to 3009.104-74.

(g) A copy of the approved waiver, if a waiver has already been granted, or the waiver request, if a waiver has been applied for, shall be attached to the bid or proposal.

Organizational CONFLICTS OF INTEREST FOR CONTRACTS AWARDED BY THE U.S. COAST GUARD OFFICE OF CONTRACT OPERATIONS

(a) The contractor warrants that to the best of its knowledge and belief, and except as otherwise disclosed, he or she does not have any organizational conflict of interest, which is defined as a situation in which the nature of work under a government contract and a contractor's organizational, financial, contractual or other interests are such that:

(I) Award of the contract may result in an unfair competitive advantage; or

(2) The contractor’s objectivity in performing the contract work is or might be otherwise impaired.

(b) The contractor agrees that if after award he or she discovers an actual or apparent organizational conflict of interest with respect to this contract, he or she shall make an immediate and full disclosure in writing to the Contracting officer which shall include a description of the action which the contractor has taken or intends to take to eliminate or neutralize the conflict. The government may, however, terminate the contract for convenience of the government if it would be in the best interest of the government.

(c) In the event the contractor was aware of an organizational conflict of interest before the award of this contract and intentionally did not disclose the conflict to the contracting officer, the government may terminate the contract for default.

(d) The provisions of this clause shall be included in all subcontracts and consulting agreement wherein the work to be performed is similar to the service provided to the Government by the prime contractor. The contractor shall include in such subcontracts and consulting agreements any necessary provisions to eliminate or neutralize organizational conflicts of interest.