Final_RFP_Section_H.docx

HSHQDC-15-R-00050

SECTION H

SECTION H—SPECIAL CONTRACT REQUIREMENTS

Section Table of Contents

H.1 Federal Acquisition Regulation Clauses/Provisions:

H.2 Contractor Identification:

a. In all situations where contractor personnel status is not obvious, all contractor personnel are required to identify themselves to avoid creating an impression to the public, agency officials, or Congress that such contractor personnel are Government officials. This can occur during meeting attendance, through written (letter or email) correspondence or verbal discussions (in person or telephonic), when making presentations, or in other situations where their contractor status is not obvious to third parties. This list is not exhaustive. Therefore, the Contractor employee(s) shall:

1. Not by word or deed give the impression or appearance of being a Government employee;

2. Wear appropriate badges visible above the waist that identify them as contractor employees when in Government spaces, at a Government-sponsored event, or an event outside normal work spaces in support of the contract/order;

3. Clearly identify themselves as contractor employees in telephone conversations and in all formal and informal written and electronic correspondence. Identification shall include the name of the company for whom they work;

4. Identify themselves by name, their company name, if they are a subcontractor the name of the prime contractor their company is supporting, as well as the Government office they are supporting when participating in meetings, conferences, and other interactions in which all parties are not in daily contact with the individual contractor employee; and

5. Be able to provide, when asked, the full number of the contract/order under which they are performing, and the name of the Contracting Officer’s Representative.

b. Contractor-occupied facilities (on Department of Homeland Security or other Government installations) such as offices, separate rooms or cubicles must be clearly identified with Contractor supplied signs, name plates, or other identification, showing that these are work areas for Contractor or subcontractor personnel.

c. If wearing a badge is a risk to safety and/or security, then an alternative means of identification maybe utilized if endorsed by the Contracting Officer’s Representative and approved by the Contracting Officer.

d. The Contracting Officer will make final determination of compliance with regulations with regard to proper identification of Contractor employees.

H.3 Contractor Access to U.S. Army Installations:

1. The Contractor shall obtain base identification for all contractor personnel who make frequent visits to or perform work on the U.S. Army facilities cited in the contract. Contractor personnel are required to wear or prominently display installation identification badges or contractor-furnished, contractor identification badges while visiting or performing work on the installation.

2. Privately owned vehicles to be operated on the military reservation must be registered at the command security office within forty-eight hours after arrival at the installation. Evidence of compliance with the following automotive liability coverage must be provided upon application for vehicle registration.

3. The Contractor shall submit a written request on company letterhead to the Contracting Officer’s Representative listing the following: contract number, location of work site, start and stop dates, and names of employees and subcontractor employees needing access to the base. The letter will also specify the individual(s) authorized to sign for a request for base identification credentials or vehicle passes. The Contracting Officer’s Representative will endorse the request and forward it to the issuing base pass and registration office or Security Forces for processing. When reporting to the registration office, the authorized contractor individual(s) should provide a valid driver’s license, current vehicle registration, valid vehicle insurance certificate, to obtain a vehicle pass.

4. During performance of the contract, the contractor shall be responsible for obtaining required identification for newly assigned personnel and for prompt return of credentials and vehicle passes for any employee who no longer requires access to the work site.

5. When work under this contract requires unescorted entry to controlled or restricted areas, the contractor shall comply with applicable DHS and Department of Defense/U.S. Army regulations/guidance.

6. Upon completion or termination of the contract or expiration of the identification passes, the prime contractor shall ensure that all base identification passes issued to employees and subcontractor employees are returned to the issuing office.

7. Failure to comply with these requirements may result in withholding of final payment.

H.4 Common Access Cards (CAC) for Contractor Personnel:

a. For installation(s)/location(s) cited in the contract, contractors shall ensure Common Access Cards (CACs) are obtained by all contract or subcontract personnel who meet one or both of the following criteria:

1. Require logical access to Department of Homeland Security computer networks and systems in either:

i. The unclassified environment; or

ii. The classified environment where authorized by governing security directives.

2. Perform work, which requires the use of a CAC for installation entry control or physical access to facilities and buildings.

b. Contractors and personnel shall use the following procedures to obtain CACs:

1. Contractors shall provide a listing of personnel who require a CAC to the DHS/S&T Contracting Officer’s Representative. The Government will provide the Contractor with instructions on how to obtain the CAC.

c. While visiting or performing work on installation(s)/location(s), Contractor personnel shall wear or prominently display the CAC as required by the governing local policy.

d. During the performance period of the contract, the Contractor shall:

1. Within 7 working days of any changes to the listing of contract personnel authorized a CAC, provide an updated listing to the Contracting Officer’s Representative who will provide the updated listing to the authorizing Government official;

2. Return CACs in accordance with local policy/directives within 7 working days of a change in status for Contractor personnel who no longer require logical or physical access;

3. Return CACs in accordance with local policy/directives within 7 working days following a CAC’s expiration date; and

4. Report lost or stolen CACs in accordance with local policy/directives.

e. Within 7 working days following completion/termination of the contract, the Contractor shall return all CACs issued to their personnel to the issuing office or the location specified by local policy/directives.

f. Failure to comply with these requirements may result in withholding of final payment.

H.5 Control of Government Personnel Work Product:

The Contractor’s procedures for protecting against unauthorized disclosure of information shall not require Department of Homeland Security or other Federal Government employees or members of the Armed Forces to relinquish control of their work products, whether classified or not, to the Contractor.

H.6 Government-Contractor Relations:

a. The Government and the Contractor understand and agree that the services to be delivered under this contract by the contractor to the Government are non-personal services and the parties recognize and agree that no employer-employee relationship exists or will exist under the contract between the Government and the Contractor's personnel. It is, therefore, in the best interest of the Government to afford both parties a full understanding of their respective obligations.

b. Contractor personnel under this contract shall not:

1. Be placed in a position where they are under the supervision, direction, or evaluation of a Government employee.

2. Be placed in a position of command, supervision, administration or control over Government personnel, or over personnel of other Contractors under other DHS and/or Federal Government contracts, or become a part of the Government organization.

3. Be used in administration or supervision of Government procurement activities.

c. Employee relationship.

1. The services to be performed under this contract do not require the Contractor or his/her personnel to exercise personal judgment and discretion on behalf of the Government. Rather, the Contractor’s personnel will act and exercise personal judgment and discretion on behalf of the Contractor.

2. Rules, regulations, directives, and requirements that are issued by the U.S. Department of Homeland Security under its responsibility for good order, administration, and security are applicable to all personnel who enter the Government installation or who travel on Government transportation. This is not to be construed or interpreted to establish any degree of Government control that is inconsistent with a non-personal services contract.

d. Inapplicability of employee benefits. This contract does not create an employer-employee relationship. Accordingly, entitlements and benefits to such relationships do not apply.

1. Payments by the Government under this contract are not subject to Federal income tax withholdings.

2. Payments by the Government under this contract are not subject to Federal Insurance Contributions Act.

3. The Contractor is not entitled to unemployment compensation benefits under the Social Security Act, as amended, by virtue of performance under this contract.

4. The Contractor is not entitled to workman’s compensation benefits by virtue of this contract.

5. The entire consideration and benefits to the Contractor for performance of this contract is contained in the provisions for payment under this contract.

e. Notice. It is the Contractor’s, as well as the Government’s responsibility to monitor contract activities and notify the Contracting Officer if the Contractor believes that the intent of this clause has been or may be violated.

1. The Contractor should notify the Contracting Officer in writing promptly, within 10 calendar days from the date of any incident that the Contractor considers to constitute a violation of this clause. The notice should include the date, nature, and circumstance of the conduct, the name, function, and activity of each Government employee or Contractor official or employee involved or knowledgeable about such conduct, identify any documents or substance of any oral communication involved in the conduct, and estimate in time by which the Government must respond to this notice to minimize cost, delay, or disruption of performance.

2. The Contracting Officer will promptly, within 10 calendar days after receipt of notice, respond to the notice in writing. In responding, the Contracting Officer will either:

i. Confirm that the conduct is in violation and when necessary direct the mode of further performance,

ii. Countermand any communication regarded as a violation,

iii. Deny that the conduct constitutes a violation and when necessary direct the mode of further performance; or

iv. In the event the notice is inadequate to make a decision, advise the Contractor what additional information is required, and establish the date by which it should be furnished by the Contractor and the date thereafter by which the Government will respond.

H.7 Organizational Conflicts of Interest and Confidentiality:

a. Purpose. The purpose of this clause is to ensure that the Contractor (1) is not biased because of its financial, contractual, organizational, or other interests which relate to the work under this contract, and (2) does not obtain any unfair competitive advantage over other parties by virtue of its performance of this Contract.

b. Scope. The restrictions described herein shall apply to performance or participation by the contractor and any of its affiliates or their successors in interest (hereinafter collectively referred to as "Contractor") in the activities covered by this clause as a prime contractor, subcontractor, cosponsor, joint venturer, consultant, or in any similar capacity.

For the purpose of this clause, affiliation occurs when a business concern is controlled by or has the power to control another or when a third party has the power to control both.

c. Use of Contractor’s Work Product.

1. (i) The Contractor shall be ineligible to participate in any capacity in Department of Homeland Security and component contracts, subcontracts, or proposals therefore (solicited and unsolicited) which stem directly from the Contractor's work under this Contract for a period of two years after the completion of this Contract. Furthermore, unless so directed in writing by the Contracting Officer, the Contractor shall not perform any systems engineering or development work under this Contract on any of its products or services or the products or services of another firm if the Contractor is or has been substantially involved in their development or marketing. Nothing in this subparagraph shall preclude the Contractor from competing for a follow-on competition of this Contract.

(ii) If, under this Contract, the Contractor prepares a complete or essentially complete statement of work or specifications to be used in competitive acquisitions, the contractor shall be ineligible to perform or participate in any capacity in any contractual effort which is based on such statement of work or specifications. The Contractor shall not incorporate its products or services in such statement of work or specifications unless so directed in writing by the Contracting Officer, in which case the restriction in this subparagraph shall not apply.

(iii) Nothing in this paragraph shall preclude the contractor from offering or selling its standard and commercial items to the Government.

2. Access to and use of information. (i)If the Contractor, in the performance of this contract, obtains access to information, such as Department plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (5 U.S.C. § 552a), or data which has not been released or otherwise made available to the public, the Contractor agrees that without prior written approval of the Contracting Officer it shall not:

A. Use such information for any private purpose unless the information has been released or otherwise made available to the public;

B. Compete for work for the Department based on such information for a period of six (6) months after either the completion of this contract or until such information is released or otherwise made available to the public, whichever is first;

C. Submit an unsolicited proposal to the Government which is based on such information until one year after such information is released or otherwise made available to the public; and

D. Release such information unless such information has previously been released or otherwise made available to the public by the Department.

(ii) In addition, the Contractor agrees that to the extent that it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (5 U.S.C. § 552a), or other confidential or privileged technical, business, or financial information of third parties under this contract, it shall treat such information in accordance with any restrictions imposed on such information.

1. Disclosure after award. The Contractor agrees that, if changes, including additions, to the facts disclosed by it prior to award of this Contract, occur during the performance of this contract, it shall make an immediate and full disclosure of such changes in writing to the Contracting Officer.

2. In addition, the Contractor shall provide the Contracting Officer any disclosure of interests of itself or its affiliates that create a real or potential organizational conflicts related to the performance of individual task orders.

3. The disclosure may include a description of any action which the Contractor has taken or proposes to take to avoid, neutralize, or mitigate any resulting conflict of interest. The Department may, however, terminate the contract or individual task order for convenience if it deems such termination to be in the best interest of the Government.

4. In the event that the Contractor was aware of facts required to be disclosed or the existence of an actual or potential organizational conflict of interest and did not disclose such facts or such conflict of interest to the Contracting Officer, DHS may terminate this contract for default.

d. Remedies. For breach of any of the above restrictions or for nondisclosure or misrepresentation of any facts required to be disclosed concerning this contract, including the existence of an actual or potential organizational conflict of interest at the time of or after award, the Government may terminate the contract for default, disqualify the Contractor for subsequent related contractual efforts, and pursue such other remedies as may be permitted by law or this Contract.

e. Waiver. Request for waiver under this clause shall be directed in writing to the Contracting Officer and shall include a full description of the requested waiver and the reasons in support thereof. If it is determined to be in the best interests of the Government, the Contracting Officer may grant such a waiver in writing.

f. Subcontracts.

1. The Contractor shall include a clause, substantially similar to this clause, including this paragraph (f) in subcontracts expected to exceed the simplified acquisition threshold determined in accordance with FAR Part 13 and involving the performance of advisory and assistance services as that term is defined at FAR 37.201. The terms “contract,” “Contractor,” and “Contracting Officer,” shall be appropriately modified to preserve the Government’s rights.

2. Prior to the award under this contract of any such subcontracts for advisory and assistance services, in fulfilling its obligations under this contract, the Contractor shall obtain from the proposed subcontractor or consultant the disclosure of facts relevant to the performance of the proposed subcontract and shall determine in writing whether the interests disclosed present an actual or significant potential for an organizational conflict of interest. Where an actual or significant potential organizational conflict of interest is identified, the Contractor shall take actions to avoid, neutralize, or mitigate the organizational conflict to satisfaction of the Contractor. If the conflict cannot be avoided or neutralized, the Contractor must obtain the approval of the DHS Contracting officer prior to entering into the subcontract.

H.8 Contractor Testimony:

All requests for the testimony of the Contractor or its employees, and any intention to testify as an expert witness relating to: (a) any work required by, and/or performed under, this contract; or (b) any information provided by any party to assist the Contractor in the performance of this contract, shall be immediately reported to the Contracting Officer. Neither the Contractor nor its employees shall testify on a matter related to work performed or information provided under this contract, either voluntarily or pursuant to a request, in any judicial or administrative proceeding unless approved, in advance, by the Contracting Officer or required by a judge in a final court order.

H.9 Anti-Lobbying:

Except for normal and recognized executive-legislative relationships, the Contractor shall not use any contract funds for (i) publicity or propaganda purposes; (ii) the preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio, television or video presentation designed to support or defeat legislation pending before the Congress or any State legislature, except in presentation to the Congress or any State legislature itself; or (iii) payment of salary or expenses of the Contractor, or any agent acting for the Contractor, related to any activity designed to influence legislation or appropriations pending before the Congress or any State legislature.

H.10 Contractor Suitability and Clearance:

a. All Contractor employees and all Contractor subcontractors having unescorted access to DHS facilities, access to DHS IT systems, or access to Sensitive Information will be required to submit to an appropriate suitability screening as described in DHS Management Directives and other applicable DHS security policies and procedures, as may be amended from time to time.

b. All Contractor employees and all subcontractors who have obtained a favorable Entry On Duty (EOD) determination by DHS will be allowed to have unescorted access to DHS facilities, access to DHS IT systems, and access to Sensitive Information at a level appropriate to the level of their EOD subsequent to receiving appropriate training and executing all required documentation. All Contractor employees and all Contractor subcontractors will also require a minimum Interim SECRET clearance before having unescorted access to DHS facilities (e.g., NBACC Laboratory).

c. All Contractor employees and all subcontractors who have submitted complete suitability documentation packages and are waiting for an EOD decision may begin work on the contract upon completion of a certification, signed by the Laboratory Director (or delegate), providing assurance that:

1. The employee/subcontractor has successfully undergone a pre-employment background check and drug screening, conducted by their employer, with no negative findings, and

2. The employee/subcontractor will not have unescorted access to the NBACC Laboratory or other DHS facilities, access to DHS IT systems, or access to Sensitive Information and the employee/subcontractor will only charge time to the contract for performance of work beneficial to the NBACC mission that does not require unescorted access to the NBACC Laboratory or other DHS facilities, access to DHS IT systems, or access to Sensitive Information.

The Contractor will provide a monthly written notice to the DHS COR, prior to the Contractor’s submission of each monthly invoice, which identifies the number, identity, and function of those individuals who have signed assurance certifications. The signed assurance certifications will be available for inspection by the Contracting Officer and the COR upon request.

d. With regard to agreements entered into with the Department of Energy (DOE) National Laboratories, whereby the DOE National Laboratory is performing DHS sponsored work for NBACC, suitability requirements shall not apply to these agreements when negotiated between the Contractor and a DOE National Laboratory and written under the terms and conditions of the DOE prime contract (in accordance with the Homeland Security Act of 2002, Section 309 and DHS/DOE MOA dated March 3, 2003, section IV).

e. Contractor Suitability and Clearance requirements outlined in this section are applicable to all Contractor employees and all the Contractor’s subcontractors initiating work after the effective date of the modification.

f. Sensitive Information. “Sensitive Information” means any information, the loss, misuse, disclosure, or unauthorized access to or modification of which could adversely affect the national or homeland security interest, or the conduct of Federal programs, or the privacy to which individuals are entitled under Section 552a of Title 5, United States Code (the Privacy Act), but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense, homeland security, or foreign policy. This definition includes the following categories of information:

1. Protected Critical Infrastructure Information (PCII) as set out in the Critical Infrastructure Information Act of 2002 (Title II, Subtitle B, of the Homeland Security Act, Public Law 107-296, 196 Stat. 2135), as amended, the implementing regulations thereto (Title 6, Code of Federal Regulations, Part 29) as amended, the applicable PCII Procedures Manual, as amended, and any supplementary guidance officially communicated by an authorized official of the Department of Homeland Security (including the PCII Program Manager or his/her designee);

2. Sensitive Security Information (SSI), as defined in Title 49, Code of Federal Regulations, Part 1520, as amended, “Policies and Procedures of Safeguarding and Control of S SI,” as amended, and any supplementary guidance officially communicated by an authorized official of the Department of Homeland Security (including the Assistant Secretary for the Transportation Security Administration or his/her designee);

3. Information designated as “For Official Use Only,”, “Sensitive But Unclassified” or “Controlled But Unclassified” which is unclassified information of a sensitive nature and the unauthorized disclosure of which could adversely impact a person’s privacy or welfare, the conduct of Federal programs, or other programs or operations essential to the national or homeland security interest;

4. Any information that is designated “sensitive” or subject to other controls, safeguards or protections in accordance with subsequently adopted homeland security information handling procedures;

5. If provided by the government to the contractor, is marked in such a way to place a reasonable person on notice of its sensitive nature; and

6. Is designated “sensitive” in accordance with subsequently adopted homeland security information handling requirements.

g. Suitability. Suitability is a determination based on an individual's character or conduct that may have an impact on the integrity or efficiency of their employment. Determinations made under this category are distinct from determinations of eligibility for assignment to, or retention in, sensitive national security positions.

h. Suitability Screening. The process used to make a determination of an individual’s Suitability will be in accordance with DHS Management Directives, 5 CFR 731, Section 202, and applicable DHS security policies and procedures, as such policies and procedures may be amended from time to time.

H.11 Contractor Employees:

The NBACC Contractor shall not employ, or continue employment, of persons for work on the Contract if such employee is identified to the NBACC Contractor by the Contracting Officer or the Administrative Contracting Officer, if one is assigned, as a potential threat to the health, safety, security, general well-being, or operational mission of the NBACC Facility, the installation, or its population.

H.12 Information Technology Security Training and Oversight:

a. All Contractor employees using Department automated systems or processing Department sensitive data will be required to receive Security Awareness Training. This training will be provided by the appropriate component agency of DHS.

b. Contractors who are involved with management, use or operation of any IT systems that handle sensitive information within or under the supervision of the Department shall receive periodic training (at least annually) in security awareness and accepted security practices and system rules of behavior. Department Contractors, with significant security responsibilities, shall be commensurate with the individual’s duties and responsibilities and is intended to promote a consistent understanding of the principles and concepts of telecommunications and IT systems security.

c. All personnel who access Department information systems will be continually evaluated while performing these duties. Supervisors should be aware of any unusual or inappropriate behavior by personnel accessing systems. Any unauthorized access, sharing of passwords or other questionable security procedures should be reported to the local Security Office of Information System Security Officer (ISSO).

H.13 Patents—Reporting of Subject Inventions:

The Contractor shall furnish the Contracting Officer the following:

a. Interim reports every twelve (12) months (or such longer period as may be specified by the Contracting Officer) from the date of the contract, listing subject inventions during that period and stating that all subject inventions have been disclosed or that there are no such inventions.

b. A final report, within three (3) months after completion of the contracted work, listing all subject inventions or stating that there were no such inventions.

c. Upon request, the filing date, serial number and title, a copy of the patent application and patent number, and issue data for any subject invention for which the Contractor has retained title.

d. Upon request, the Contractor shall furnish the Government an irrevocable power to inspect and make copies of the patent application file.

H.14 Trademarks:

a. The Contractor hereby acknowledges that the term National Biodefense Analysis and Countermeasures Center, NBACC, the associated graphic representation, with or without a word component, and any other identity of the Federally Funded Research and Development Center to be operated under this Contract are the intellectual property of the Department of Homeland Security (DHS). It further acknowledges that DHS has registered or intends to file for registration of NBACC related trademark(s) with the U.S. Patent and Trademark Office, using those and any other terms.

b. The Contractor agrees to follow the direction of the Contracting Officer in protecting DHS's interest in the intellectual property discussed in paragraph (a) of this clause, e.g., to use the symbol appropriate to the individual trademark, either the “®” symbol for marks that have been registered with the U.S. Patent and Trademark Office and the “™” symbol in association with marks recognizing DHS's common law interest in marks that are not yet so registered.

c. The Contractor agrees that it shall not seek registration or assert any trademark interest in any product or service first produced under this contract without the prior written approval of the DHS Contracting Officer.

H.15 Patent Rights—Determination of Exceptional Circumstances:

a. As used in this clause—

“Invention” means any invention or discovery that is or may be patentable or otherwise protectable under title 35 of the U.S. Code, or any variety of plant that is or may be protectable under the Plant Variety Protection Act (7 U.S.C. §§ 2321, et seq.)

“Made” means—

1. When used in relation to any invention other than a plant variety, the conception or first actual reduction to practice of the invention; or

2. When used in relation to a plant variety, that the Contractor has at least tentatively determined that the variety has been reproduced with recognized characteristics.

“Nonprofit organization” means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. § 501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. § 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.

“Practical application” means to manufacture, in the case of a composition of product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that is benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

“Subject invention” means any invention of the Contractor made in the performance of work under this Contract.

b. Contractor’s rights.

1. Ownership. The Contractor may retain ownership of each subject invention throughout the world in accordance with the provisions of this clause.

2. License.

i. The Contractor shall retain a nonexclusive royalty-free license throughout the world in each subject invention to which the Government obtains title, unless the Contractor fails to disclose the invention within the times specified in paragraph (c) of this clause or the disclosure of the invention is prohibited by law. The Contractor’s license extends to any domestic subsidiaries and affiliates within the corporate structure of which the Contractor is a part, and includes the right to grant sublicenses to the extent the Contractor was legally obligated to do so at contract award. The license is transferable only with the written approval of the agency, except when transferred to the successor of that part of the Contractor’s business to which the invention pertains.

ii. The Contractor’s license may be revoked or modified by the agency to the extent necessary to achieve expeditious practical application of the subject invention in a particular country in accordance with the procedures in FAR 27.302(i)2() and 27.304(f).

c. Contractor’s obligations.

1. The Contractor shall disclose in writing every subject invention made in the performance of this Contract to the Contracting Officer and the DHS Assistant General Counsel for Intellectual Property (DHS Patent Counsel) within 2 months after the inventor discloses it in writing to Contractor personnel responsible for patent matters. The disclosure shall identify the inventor(s) and this contract under which the subject invention was made. It shall be sufficiently complete in technical detail to convey a clear understanding of the subject invention. The disclosure shall also identify any publication, on sale (i.e., sale or offer for sale), or public use of the subject invention, or whether a manuscript describing the subject invention has been submitted for publication and, if so, whether it has been accepted for publication. In addition, after disclosure to the agency, the Contractor shall promptly notify the Contracting Officer of the acceptance of any manuscript describing the subject invention for publication and any on sale or public use.

2. Subject to paragraph (d)(1) of this clause, the Contractor shall elect in writing whether or not to retain ownership of a subject invention by notifying the Contracting Officer within 2 years of disclosure to the agency. However, in any case where publication, on sale, or public use has initiated the 1-year statutory period during which valid patent protection can be obtained in the United States, the period for election of title may be shortened by the agency to a date that is no more than 60 days prior to the end of the statutory period.

3. The Contractor shall file either a provisional or a nonprovisional patent application or a Plant Variety Protection Application on an elected subject invention within 1 year after election. However, in any case where a publication, on sale, or public use has initiated the 1-year statutory period during which valid patent protection can be obtained in the United States, the Contractor shall file the application prior to the end of that statutory period. If the Contractor files a provisional application, it shall file a nonprovisional application within 10 months of the filing of the provisional application. The Contractor shall file patent applications in additional countries or international patent offices within either 10 months of the first filed patent application (whether provisional or nonprovisional) or 6 months from the date permission is granted by the Commissioner of Patents to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

4. The Contractor may request extensions of time for disclosure, election, or filing under paragraphs (c)(1), (c)(2), and (c)(3) of this clause.

d. Government's rights—

1. Review and Determination of Rights. The Government shall have a right to review each invention disclosure and to determine, in its sole discretion and in light of concerns relating to homeland or national security, whether the Contractor should be permitted to apply for a patent, subject to or not subject to any conditions, whether DHS should require the Contractor to assign the invention to the Government, or whether neither the Contractor nor the Government should apply for a patent, and the Contractor shall act in accordance with DHS’s determination.

2. Ownership. The Contractor shall assign to the agency, on written request, title to any subject invention—

i. If DHS Patent Counsel informs that DHS has determined to take title to any invention

ii. If the Contractor fails to disclose or elect ownership to the subject invention within the times specified in paragraph (c) of this clause, or elects not to retain ownership; provided, that the agency may request title only within 60 days after learning of the Contractor's failure to disclose or elect within the specified times.

iii. In those countries in which the Contractor fails to file patent applications within the times specified in paragraph (c) of this clause; provided, however, that if the Contractor has filed a patent application in a country after the times specified in paragraph (c) of this clause, but prior to its receipt of the written request of the agency, the Contractor shall continue to retain ownership in that country.

iv. In any country in which the Contractor decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.

3. License.

1. If the Contractor retains ownership of a subject invention, the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on its behalf, the subject invention throughout the world.

2. The agency reserves the right to unilaterally amend this contract to identify specific treaties or international agreements entered into by the Government before or after the effective date of the contract and effectuate those license or other rights that are necessary for the Government to meet its obligations to foreign governments, their nationals, and international organizations under the treaties or international agreements with respect to subject inventions made after the date of the amendment.

4. CRADA licensing. If the Contractor performs services at a Government owned and operated laboratory or at a Government owned and Contractor operated laboratory directed by the Government to fulfill the Government’s obligations under a Cooperative Research and Development Agreement (CRADA) authorized by 15 U.S.C. § 3710a, the Government may require the Contractor to negotiate an agreement with the CRADA collaborating party or parties regarding the allocation of rights to any subject invention the Contractor makes, solely or jointly, under the CRADA. The agreement shall be negotiated prior to the Contractor undertaking the CRADA work or, with permission of the Government, upon identification of a subject invention. In the absence of such an agreement, the Contractor agrees to grant the collaborating party or parties an option for a license in its inventions of the same scope and terms set forth in the CRADA for inventions made by the Government.

e. Contractor action to protect the Government’s interest.

1. The Contractor shall execute or have executed and promptly deliver to the agency all instruments necessary to—

i. Establish or confirm the rights the Government has throughout the world in those subject inventions in which the Contractor elects to retain ownership; and

ii. Assign title to the agency when requested under paragraph (d) of this clause and to enable the Government to obtain patent protection and plant variety protection for that subject invention in any country.

2. The Contractor shall require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in the Contractor's format, each subject invention in order that the Contractor can comply with the disclosure provisions of paragraph (c) of this clause, and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions. The disclosure format should require, as a minimum, the information required by paragraph (c)(1) of this clause. The Contractor shall instruct such employees, through employee agreements or other suitable educational programs, as to the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

3. The Contractor shall notify the Contracting Officer of any decisions not to file a nonprovisional patent application, continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response or filing period required by the relevant patent office.

4. The Contractor shall include, within the specification of any United States nonprovisional patent or plant variety protection application and any patent or plant variety protection certificate issuing thereon covering a subject invention, the following statement, “This invention was made with Government support under (identify the contract) awarded by (identify the agency). The Government has certain rights in the invention.”

5. The Contractor shall establish and maintain active and effective procedures to ensure that subject inventions are promptly identified and timely disclosed, and shall submit a description of the procedures to the Contracting Officer and DHS Patent Counsel so that the Contracting Officer may evaluate and determine their effectiveness.

f. Reporting on utilization of subject inventions. The Contractor shall submit, on request, periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining utilization of the subject invention that are being made by the Contractor or its licensees or assignees. The reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Contractor, and other data and information as the agency may reasonably specify. The Contractor also shall provide additional reports as may be requested by the agency in connection with any march-in proceeding undertaken by the agency in accordance with paragraph (h) of this clause. The Contractor also shall mark any utilization report as confidential/proprietary to help prevent inadvertent release outside the Government. As required by 35 U.S.C. § 202(c)(5), the agency will not disclose that information to persons outside the Government without the Contractor's permission.

g. Preference for United States industry. Notwithstanding any other provision of this clause, neither the Contractor nor any assignee shall grant to any person the exclusive right to use or sell any subject invention in the United States unless the person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States. However, in individual cases, the requirement for an agreement may be waived by the agency upon a showing by the Contractor or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States, or that under the circumstances domestic manufacture is not commercially feasible.

h. March-in rights. The Contractor acknowledges that, with respect to any subject invention in which it has retained ownership, the agency has the right to require licensing pursuant to 35 U.S.C. § 203 and § 210(c), and in accordance with the procedures in 37 CFR § 401.6 and any supplemental regulations of the agency in effect on the date of contract award.

i. Special provisions for contracts with nonprofit organizations. If the Contractor is a nonprofit organization, it shall—

1. Not assign rights to a subject invention in the United States without the written approval of the agency, except where an assignment is made to an organization that has as one of its primary functions the management of inventions, provided, that the assignee shall be subject to the same provisions as the Contractor;

2. Share royalties collected on a subject invention with the inventor, including Federal employee co-inventors (but through their agency if the agency deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. § 202(e) and 37 CFR § 401.10;

3. After payment of patenting costs, licensing costs, payments to inventors, and other expenses incidental to the administration of subject inventions, the balance of any royalties or income earned and retained by the Contractor during any fiscal year on subject inventions under this or any successor contract containing the same requirement, up to any amount equal to 5 percent of the budget of the facility for that fiscal year, shall be used by the Contractor for the scientific research, development, and education consistent with the research and development mission and objectives of the facility, including activities that increase the licensing potential of other inventions of the facility. If the balance exceeds 5 percent, 75 percent of the excess above 5 percent shall be paid by the Contractor to the Treasury of the United States and the remaining 25 percent shall be used by the Contractor only for the same purposes as described above. To the extent it provides the most effective technology transfer, the licensing of subject inventions shall be administered by Contractor employees on location at the facility.

4. Make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business concerns, and give a preference to a small business concern when licensing a subject invention if the Contractor determines that the small business concern has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business concerns; provided, that the Contractor is also satisfied that the small business concern has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the Contractor.

5. Allow the Secretary of Commerce to review the Contractor’s licensing program and decisions regarding small business applicants, and negotiate changes to its licensing policies, procedures, or practices with the Secretary of Commerce when the Secretary's review discloses that the Contractor could take reasonable steps to more effectively implement the requirements of paragraph (i)(4) of this clause.

j. Communications. Communications involving the administration of this clause shall, for the Contractor, be the individuals identified as points of contact elsewhere in this Contract and, for the Government, shall be DHS Patent Counsel and the Contracting Officer at the addresses identified elsewhere in this Contract.

k. Subcontracts.

1. The Contractor shall include the substance of this clause, including this paragraph (k), in all subcontracts for experimental, developmental, or research work to be performed by a small business concern or nonprofit organization.

2. The Contractor shall include in all other subcontracts for experimental, developmental, or research work the substance of the patent rights clause required by FAR Subpart 27.3.

3. At all tiers, the patent rights clause must be modified to identify the parties as follows: references to the Government are not changed, and the subcontractor has all rights and obligations of the Contractor in the clause.