Terms_and_Conditions_07012013.doc

TERMS AND CONDITIONS

HSCG38-13-R-200004

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

ADDENDUM TO 52.212-4 CONTRACT TERMS AND CONDITIONS – COMMERCIAL ITEMS (JUN 2013)

Statement of Requirement This acquisition is for the procurement and sustainment of replacement Traffic Alert and Collision Avoidance Systems (TCAS I) for the 101 U.S. Coast Guard (USCG) H-65 aircraft. The requirement includes procurement of replacement TCAS, miscellaneous parts and repair. The contractor will provide service life through at least 2036 in accordance with the attached Statement of Work (SOW) at the firm-fixed prices set forth in the schedule.

The following clauses and provisions are included:

52.212-1 Instructions to Offerors - Commercial Items

Feb 2012

(a) Offers shall submit pricing and delivery lead times in the attached spreadsheet titled “HSCG38-13-R-200004 Proposal Sheet”.

(c) Prices must remain effective for 90 days after solicitation close.

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 is most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

Only offers meeting the listed technical capability criteria are eligible for award.

Evaluation Criteria Only offerors successfully meeting these technical evaluation factors listed below will be considered for possible award and evaluated in the following areas. The criterion in this section is Best Value. The Government will evaluate proposals based on the following criteria in descending order of importance:

VOLUME I: Technical Proposal

1. Technical Capability:

Technical capability is considered the most important factor and will be evaluated on the ability of the offeror to provide traceability of new parts. Offerors must be able to provide necessary certification including traceability to the manufacturer, with manufacturer's Certificate of Conformance (COC) and its own COC to ensure parts are suitable for use on United States Coast Guard (USCG) aircraft. Prospective vendors who are not the manufacturer or an authorized distributor must provide traceability for the offered product back to the manufacturer or authorized distributor. This is a minimum requirement for consideration and there are no exceptions. The criteria in this section are pass/fail criteria.

Note: The technical evaluation section should be written so that logistics and engineering oriented personnel can make a thorough evaluation and arrive at a sound determination as to whether the proposal meets the requirements of this solicitation. To this end, the technical capability shall be specific, detailed, and complete as to clearly and fully demonstrate that the prospective contractor has a thorough understanding of the technical requirements contained in this solicitation.

1. CERTIFICATIONS / PROCEDURES:

a. Certification:

The contractor shall provide verification that they possess a FAA or DOD certification as required in SOW paragraph 5.1.2.

b. OEM Procedures:

The contractor shall provide verification that they have access to OEM specifications and procedures as required in the SOW.

2.

TCAS I PERFORMANCE:

a.

TCAS I and Subcomponents Description:

The minimum performance requirements are delineated in the SOW. The offeror shall provide a full description of the TCAS I and subcomponents offered to meet the performance specification as required in the SOW paragraph 4.0. Each area of the performance specification must be addressed.

The system description should include at least the following information:

1. Weight. The offeror shall specify the weight of each proposed sensor in the proposal.

2. Size and Shape. With the proposal, the offeror shall provide sufficient data to validate compatibility of the proposed sensor with the aircraft. Each component shall be listed separately.

3. Components. The offeror shall identify in the proposal the interfaces, dimensions, envelope configuration, weight, power requirements, and cooling requirements for each component.

4. Mechanical Characteristics. The supplier shall provide the following mechanical characteristics data for each proposed component. As much of this data as possible should be provided with the proposal.

Installation Drawings.

Mass

Center of Gravity position.

Cooling constraints (clearances, air inlet & outlet position, etc.).

Mountings details

Connectors.

Critical frequency and mode shape

Any other relevant data.

5. Electrical Power:

Susceptibility to transients and any power conditioning requirements

Power requirement (normal and back-up supply)

Power consumption and dissipation

Grounding and Bonding details

Any other relevant data

6. Interface Requirements

Electrical and data interfaces

External Interface

Discrete input from the aircraft b.

Interface Control Document:

The offeror shall provide the interface control document as described in SOW paragraph 4.3.1.

c.

Quality, Benefits, and Deficiencies:

The offeror shall provide an overall summary of the quality, benefits, and any deficiencies of the proposed system in relation to the requirements of this solicitation. The reliability of the proposed system and compatibility with the H-65 shall be specifically addressed.

1. Compliance Matrix:

The offeror shall provide a compliance matrix to demonstrate compliance with the SOW.

2. Risk:

Assess the risk factors associated with the offeror’s proposal

3. LOGISTICAL SUPPORT:

a.

Warranty:

The offeror shall submit a description of their proposed warranty, if any.

b.

Rework, Modifications, Product Improvements & Support:

The offeror shall provide a description of their repair, modifications, product improvement, and miscellaneous support plan as it pertains to this requirement. The supplier shall explain how the supplier will provide or will establish a permanent presence in the United States, staffed with qualified, English speaking technical support personnel. The supplier shall explain how they will take responsibility for and manage Diminishing Manufacturing Sources and Material Shortages (DMSMS). The supplier shall specify the date when their DMSMS support will be terminated.

c.

Acceptance Test Procedure:

The offeror shall provide Acceptance Test Procedures as required in SOW paragraph 6.3.

2. Experience:

The offeror shall demonstrate either similar or directly related work experience of similar scope, magnitude and complexity to the requirements of this solicitation. Documentation supporting experience within the last five (5) years that demonstrates specific and relevant experience to this requirement will be considered. The offeror should address the following: qualifications, quantities of platforms supported during integrations, number of systems fielded, history, organization, work experience, and any other information the offeror considers relevant to this section. Include a description of all awards and recognitions received for performing similar efforts.

3. Delivery Schedule:

The offer must include delivery information on the spreadsheet titled “HSCG38-13-R-200004 Proposal Sheet” in the column labeled “ARO”. Offerors that can exceed the government’s required lead time will be rated higher than offerors that can meet the government’s required lead time.

4. Past Performance:

In accordance with FAR 15.304(c)(3)(i), past performance will be evaluated and the elements listed below are considered subfactors of the complete past performance evaluation. Relevance is determined by efforts that more closely match the size and complexity to the work being acquired under this solicitation. In order to adequately evaluate an offeror’s past performance, offeror’s shall provide completed Past Performance Information Sheets titled “HSCG38-13-R-200004 – Past Performance Information Sheet” for three (3) contracts (references) completed within the preceding three (3) year period. Contracts (references) listed may include those with the Federal Government, State and Local Governments or their agencies, and Commercial Customers. If an offeror has no relevant past performance history, offeror must affirmatively state that is possesses no relevant past performance history.

The Government will evaluate the offeror’s demonstrated record of contract compliance in supplying products and services that meet user’s needs. This evaluation will include the Quality of Work, Appropriateness of Personnel, Subcontractor Management, Business Relations, Timeliness of Performance, Customer Satisfaction and Cost/Budget Control.

The regency and relevancy of the information, the source of the information, context of the data and general trends in the contractor’s performance will be considered. For purposes of this evaluation, regency is defined as active or completed efforts performed within the past three (3) years. The Government will make an independent determination of relevancy of the data provided or obtained. A relevancy determination will be made for each of the three (3) submitted contracts. The Government is not bound by the offeror’s opinion of relevancy.

The Government may also use information available from past contracts/purchase orders with the USCG, delivery information found in the USCG’s AMMIS system, and any information found using sources such as Federal Government sources, Past Performance Retrieval System (PPIRS)/Contractor Performance Assessment Reporting System (CPARS). The Government reserves the right to limit or expand the number of references it decides to contact and to contact references other than those provided by the offeror.

(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.

VOLUME II: Price Proposal

The contractor shall provide pricing as requested in the attached spreadsheet titled “HSCG38-13-R-200004 Price Proposal Spread Sheet”. Any quantity price discounts and discounts for prompt payment should be included in this section. Total price evaluation will be for the Base and all Four Option periods.

NOTE: Failure to propose pricing for the base year and all respective option years on individual line items may result in a proposal being excluded from further consideration.

(a) 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).

(b) 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.

(End of Provision) 52.212-3 Offeror Representations and Certifications-Commercial Items DEC 2012

X Alternate I of 52.212-3.

APR 2011

An offeror shall complete only paragraph (b) of this provision if the offeror has completed the annual representations and certifications electronically at http://orca.bpn.gov. If an offeror has not completed the annual representations and certifications electronically at the ORCA website, the offeror shall complete only paragraphs (c) through (m) of this provision.

(End of Provision)

52.212-5 Contract Terms and Conditions Required to Implement Jan 2013 Statutes or Executive Orders-Commercial Items.

(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) 52.222-50, Combating Trafficking in Persons (Feb 2009) (22 U.S.C. 7104(g)).

(2) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).

(3) 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).

(4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Aug. 2012) (Pub. L. 109-282) (31 U.S.C. 6101 note).

(6) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (DEC 2010) (31 U.S.C. 6101 note).

(7) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matter (FEB 2012)(41 U.S.C. 2313).

(10) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Jan 2011) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

(14) 52.219-8, Utilization of Small Business Concerns (Jan 2011) (15 U.S.C. 637(d)(2) and (3)).

(15)(i) 52.219-9, Small Business Subcontracting Plan (Jan 2011) (15 U.S.C. 637(d)(4)).

(18) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C. 637(d)(4)(F)(i)).

(23) 52.219-28, Post Award Small Business Program Rerepresentation (Apr 2012) (15 U.S.C. 632(a)(2)).

(26) 52.222-3, Convict Labor (June 2003) (E.O. 11755).

(27) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (Mar 2012) (E.O. 13126).

(28) 52.222-21, Prohibition of Segregated Facilities (Feb 1999).

(29) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246).

(30) 52.222-35, Equal Opportunity for Veterans (Sep 2010) (38 U.S.C. 4212).

(31) 52.222-36, Affirmative Action for Workers with Disabilities (Oct 2010) (29 U.S.C. 793).

(32) 52.222-37, Employment Reports on Veterans (Sep 2010) (38 U.S.C. 4212).

(33) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496).

(34) 52.222-54, Employment Eligibility Verification (July 2012). (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.)

(38) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (Aug 2011) (E.O. 13513).

(41) 52.225-5, Trade Agreements (Nov 2012) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

(42) 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).

(47) 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration (Oct 2003) (31 U.S.C. 3332).

(51)(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).

Contract Clauses

52.252-2 Clauses Incorporated by Reference

FEB 1998

This solicitation 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 the clause may be accessed electronically at Internet address http://acquisition.gov/far/index.html.

52.212-4 Contract Terms and Conditions - Commercial Items

Jun 2013 52.227-14 Rights in Data - General

Dec 2007 Alternate II

(g)(3) Notwithstanding paragraph (g)(1) of this clause, the contract may identify and specify the delivery of limited rights data, or the Contracting Officer may require by written request the delivery of limited rights data that has been withheld or would otherwise be entitled to be withheld. If delivery of that data is required, the Contractor shall affix the following “Limited Rights Notice” to the data and the Government will treat the data, subject to the provisions of paragraphs (e) and (f) of this clause, in accordance with the notice:

The contractor shall provide technical change orders (specifications, drawings, etc.) developed to implement the modification. Underlying supporting data is not required except that the contractor must provide data required by the government in order to validate system performance and airworthiness.

Limited Rights Notice (Dec 2007)

(a) These data are submitted with limited rights under Government Contract No. HSCG38-13-R-200004. These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in 27.404-2(c)(1) or if none, so state.] The Coast Guard may disclose data outside the government for the following purposes:

(i) Use (except for manufacture) by support service Contractors.

(ii) Evaluation by nongovernment evaluators.

(iii) Use (except for manufacture) by other Contractors participating in the Government’s program of which the specific contract is a part.

(iv) Emergency repair or overhaul work.

b) This notice shall be marked on any reproduction of these data, in whole or in part.

(End of notice)

Alternate IV

52.242-13 Bankruptcy

Jul 1995

52.246-15 Certificate of Conformance

Apr 1984

FULL TEXT CLAUSES

52.209-4 First Article Approval -- Government Testing Sep 1989

(a) The Contractor shall deliver _2 _unit(s) for each Lot/Item(s) 0001, 0002, & 0003 within _180_ calendar days from the date of this contract to the Government to Commanding Officer, U. S. Coast Guard Aviation Logistics Center, 1664 Weeksville Rd. Bldg. 63, Elizabeth City, N.C. 27909 for first article tests. The shipping documentation shall contain this contract number and the Lot/Item identification. The characteristics that the first article must meet and the testing requirements are specified elsewhere in this contract.

(b) Within __60__ calendar days after the Government receives the first article, the Contracting Officer shall notify the Contractor, in writing, of the conditional approval, approval, or disapproval of the first article. The notice of conditional approval or approval shall not relieve the Contractor from complying with all requirements of the specifications and all other terms and conditions of this contract. A notice of conditional approval shall state any further action required of the Contractor. A notice of disapproval shall cite reasons for the disapproval.

(c) If the first article is disapproved, the Contractor, upon Government request, shall submit an additional first article for testing. After each request, the Contractor shall make any necessary changes, modifications, or repairs to the first article or select another first article for testing. All costs related to these tests are to be borne by the Contractor, including any and all costs for additional tests following a disapproval. The Contractor shall furnish any additional first article to the Government under the terms and conditions and within the time specified by the Government. The Government shall act on this first article within the time limit specified in paragraph (b) of this clause. The Government reserves the right to require an equitable adjustment of the contract price for any extension of the delivery schedule or for any additional costs to the Government related to these tests.

(d) If the Contractor fails to deliver any first article on time, or the Contracting Officer disapproves any first article, the Contractor shall be deemed to have failed to make delivery within the meaning of the Default clause of this contract.

(e) Unless otherwise provided in the contract, the Contractor --

(1) May deliver the approved first article as a part of the contract quantity, provided it meets all contract requirements for acceptance and was not consumed or destroyed in testing; and

(2) Shall remove and dispose of any first article from the Government test facility at the Contractor’s expense.

(f) If the Government does not act within the time specified in paragraph (b) or (c) of this clause, the Contracting Officer shall, upon timely written request from the Contractor, equitably adjust under the Changes clause of this contract the delivery or performance dates and/or the contract price, and any other contractual term affected by the delay.

(g) The Contractor is responsible for providing operating and maintenance instructions, spare parts support, and repair of the first article during any first article test.

(h) Before first article approval, the acquisition of materials or components for, or the commencement of production of, the balance of the contract quantity is at the sole risk of the Contractor. Before first article approval, the costs thereof shall not be allocable to this contract for

(1) progress payments, or

(2) termination settlements if the contract is terminated for the convenience of the Government.

(i) The Government may waive the requirement for first article approval test where supplies identical or similar to those called for in the schedule have been previously furnished by the Offeror/Contractor and have been accepted by the Government. The Offeror/Contractor may request a waiver.

(End of Clause)

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 one-year from date of contract award for the basic period and for options, effective date of option exercise through one-year from effective date of option exercise.

(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.

(End of Clause)

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 one (1), 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 the total estimated contract line item quantity;

(2) Any order for a combination of items in excess of 50% of estimated contract quantities; or

(3) A series of orders from the same ordering office within 30 Calendar days that together call for quantities exceeding the limitation in subparagraph (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 15 Calendar 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.

(End of Clause)

52.216-21 Requirements.

(Oct 1995)

(a) This is a requirements contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government’s requirements do not result in orders in the quantities described as “estimated” or “maximum” in the Schedule, that fact shall not constitute the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations in the Order Limitations clause or elsewhere in this contract, the Contractor shall furnish to the Government all supplies or services specified in the Schedule and called for by orders issued in accordance with the Ordering clause. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(c) Except as this contract otherwise provides, the Government shall order from the Contractor all the supplies or services specified in the Schedule that are required to be purchased by the Government activity or activities specified in the Schedule.

(d) The Government is not required to purchase from the Contractor requirements in excess of any limit on total orders under this contract.

(e) If the Government urgently requires delivery of any quantity of an item before the earliest date that delivery may be specified under this contract, and if the Contractor will not accept an order providing for the accelerated delivery, the Government may acquire the urgently required goods or services from another source.

(f) 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 __09/13/2019_____ [insert date].

(End of clause)

52.217-9 Option to Extend the Term of the Contract

Mar 2000

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 Calendar days prior to contract expiration; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed five (5) years.

(End of Clause) 52.232-19 Availability of Funds for the Next Fiscal Year

Apr 1984

Funds are not presently available for performance under this contract beyond 30 September 2013. The Government’s obligation for performance of this contract beyond that date is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise for performance under this contract beyond 30 September 2013, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer.

(End of Clause) 52.211-14 Notice of Priority Rating for National Defense, Apr 2008

Emergency Preparedness, and Energy Program Use.

Any contract awarded as a result of this solicitation will be [ ] DX rated order; [X] DO rated order certified for national defense, emergency preparedness, and energy program use under the Defense Priorities and Allocations System (DPAS) (15 CFR 700), and the Contractor will be required to follow all of the requirements of this regulation. [Contracting Officer check appropriate box.]

(End of Provision) 52.233-2 Service of Protest

Sept 2006

(a) Protests, as defined in section 33.101 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:

USCG ALC SRR Division

ATTN: Tabitha L. Callon

1664 Weeksville Road

Hangar 75

Elizabeth City, NC 27909

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

(End of Provision)

FULL TEXT PROVISIONS

52.209-7 Information Regarding Responsibility Matters (Feb 2012)

(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 Central Contractor Registration database via https://www.acquisition.gov (see 52.204-7).

(End of provision)

HOMELAND SECURITY ACQUISITION REGULATION (HSAR) CLAUSE

HSAR 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 domestic corporation pursuant to the criteria of (HSAR) 48 CFR 3009.104-70 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 domestic corporation pursuant to the criteria of (HSAR) 48 CFR 3009.104-70 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.

(End of provision)