Contract_Clauses_and_Provisions_FAR_Part_12_Solicitation_-_Aug_2013_Version.pdf

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

August 2013 Version

Notice to Offerors

A. All proposals are due Tuesday January 6, 2014 at 1:00pm, All proposals shall be made via hard copy to:

U.S. Department of Homeland Security Federal Protective Service Office of Procurement Operations 701 Market Street – Suite 3200 Philadelphia, PA 19106 Attn: John DeSimone

B. All questions regarding this solicitation are due by Wednesday December 18, 2013 at 4:00pm EST, on Submit all questions in writing to John DeSimone via email John.DeSimone@hq.dhs.gov.

C. This acquisition is set-aside for a Services Disabled Veteran Owned Small Business.

D. For copy of the post exhibit, please submit a completed non-disclosure form (11000-6) Attachment 11 and submit the form to John DeSimone via email John.DeSimone@hq.dhs.gov.

This form is under Attachment 11 of this solicitation.

-Prospective Offerors- In support of the referenced Request for Proposal, the Department of Homeland Security (DHS), Federal Protective Service (FPS) is conducting a PRE-PROPOSAL CONFERENCE which will be held as follows: on Tuesday 12/17/2013 -10:00am EST

Prospective contractors should congregate in the lobby and will be escorted to the meeting room.

The meeting will begin promptly at 10:00 am and is expected to continue for approximately one

(1) hour.

Location-Mellon Independence Center, 701 Market Street, Suite 3200 Philadelphia, PA 19106. There are 2 side entrances to our building, one on 7th and one on 8th-both with blue awnings that display the “Ross” store sign. Once you enter from either entrance, walk directly to the center of the building by the atrium. You will see the entrance to the office spaces there (do not be alarmed that you will not see Federal Protective Service displayed on the Marquis). Enter and go to the guard desk.

mailto:John.DeSimone@hq.dhs.gov

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

Security-Employees will need to go through security once you get into the building.

Photo ID will be required to gain access into the building. Please plan to arrive at the building at least thirty minutes before the conference to allow for the security process.

Purpose- The purpose of the pre-proposal conferences is to provide a briefing on the contracting concept, the scope of the work and the exhibits, so that offerors can ascertain the general conditions that could materially affect the proposal price. We consider attendance at these conferences vital to the preparation of a competitive and cost effective proposal and to understand the total result desired by the Government. Therefore, attendance at the pre-proposal conference is strongly recommended for all Contractors. Note that this is a service disabled veteran owned small business set-aside and only interested parties should attend.

Contractors are required to notify John DeSimone via email at John.DeSimone@hq.dhs.gov, telephone (215) 521-3050, with the names of the individuals who will attend the conference. Notification must be sent prior by 1:00pm on Friday December 13, 2013. If you can not physically attend the pre-proposal conference a conference call in phone number will be provided, please email John.DeSimone@hq.dhs.gov for the conference call in number.

The following information is provided for informational purposes only:

1. Questions will only be considered from interested parties (i.e. Service Disabled Veteran Owned Small Businesses under NAICS 561612)

2. Before asking any questions, please read the solicitation completely and carefully.

3. The seniority list for the current Contracts is attached (attachment 10).

4. An excel version of Attachment 6- Price Element Breakdown is attached. It is required to include a breakdown of the pricing by specific building. The Government does not guarantee that the formulas within the spreadsheet are correct. If contractors choose to use the spreadsheet, they should check all calculations for accuracy.

5. A version of the Onsite Supervisory Post Exhibit is attached (attachment 8).

6. With regard to questions concerning the CBAs, the Government will not interpret provisions of these documents for potential offerors. Where applicable, requests for wage adjustments

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370)) pursuant to FAR 52.222-43 will be considered where requested and substantiated subsequent to the yearly anniversary date of the contract.

7. With regard to questions concerning the training of incumbent PSOs, while the incumbent PSOs meet the training requirements of the current contract, there are some additional and/or changed requirements under the solicited effort. Some of these differences include, but are not limited to, the following:

●Current contracts do not require body armor or OC Spray

In addition, PSOs will have to qualify with their individually assigned weapon semi-annually.

The current contract requires annual qualification. All contract PSO personnel must meet the requirements of the solicitation before they can work under the new awarded contract.

8. With regard to questions concerning medical standards, note that the instant solicitation’s requirements differ from the requirements in the current Contracts. All contract PSO personnel must meet all the requirements of the solicitation before they can work under the new awarded contract.

9. With regard to questions concerning the incumbent PSO training records, vendors are on notice that the incumbent contractor maintains all such records, and it is the successor contractor’s responsibility to obtain these records from the incumbent.

10. With regard to questions concerning potential site visits, site visits will not be provided to potential offerors.

11. With regard to questions concerning GSA Schedules, the following applies: This RFP is not for a GSA Schedule acquisition conducted in accordance with FAR 8.4; therefore, offerors are not required to have a GSA Contract and the Industrial Funding Fee (IFF) does not apply.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

12. With regard to questions concerning weapon storage, there are areas designated for weapon storage at most or all of the sites under this effort. Space for the contractor personnel will be at the discretion of the individual agencies as well as use of computers, fax machines, etc.

13. Please include your representations and certification as well as the SF 1449 and signed amendments with your price proposal. Continuation pages for the Past Project forms do not count against the page limitations.

14. Please note that all supervisory personnel shall be trained, uniformed, equipped and armed per the contract requirements.

15. Proposal Page Limitation- Excluding the cover page and past performance forms and questionnaires, the technical proposal (covering all non price factors) is limited to 15 pages.

Pages in excess of this limitation will not be evaluated.

16. Statement of Work, includes a general statement that the Government will consider no less than a minimum of 90 days and no more than 180 days maximum for start-up, from contract award to start date. The firm requirement for this particular procurement is a contract transition in 90 days from contract award to performance start date.

17. Notice to offerors that for building (DC0370) 750 17th Street only, the offerors shall provide in its Attachment 8 “Field Level Supervision Exhibit” a 24hr/7day supervisor.

Notice to offerors this does not establish a minimum level of supervision for this effort.

Offerors shall complete Attachment 8 clearly delineating and establishing the minimum level of field/onsite supervision for all the locations under this effort.

18. Notice to offerors that all supervisors working under this effort shall in addition to their uniform wear a single breasted blue colored blazer. Also, all PSOs working at (DC0370) 750 17th Street shall in addition to their uniform wear a single breasted blue colored blazer.

19. Note: Offerors shall provide the blazers and the cost. The offeror shall include a cost for the blazers under Attachment 6 “Price Element Breakdown” under the entry named “Blazers.”

20. Contractor shall have a SECRET Facility Clearance that is equal to level for work on this contract as specified in Section 5.4.1.2 of the SOW prior to submission of proposal or quote.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

TABLE OF CONTENTS

Standard Form 1449

Pricing Schedule

Contract Clauses

Contract Documents, Exhibits and Attachments

• Statement of Work (Attachment 1)

• Exhibits (Attachment 2)

• Past Project Form (Attachment 3)

• Past Performance Questionnaire (Attachment 4)

• Department of Labor Wage Determination(s) (Attachment 5)

• Price Element Breakdown (Attachment 6)

• Instructions for the Price Element Breakdown Template (Attachment 6A)

• Award Approval Request (Attachment 7)

• Field Level Supervision Exhibit (Attachment 8)

• Proposal Submission Checklist (Attachment 9)

• PSO Seniority List (Attachment 10)

• Non-disclosure form (11000-6) (Attachment 11)

Solicitation Provisions

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

CONTRACT CLAUSES

52.212-4 -- Contract Terms and Conditions -- Commercial Items.

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

Contract Terms and Conditions -- Commercial Items (Sep 2013)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C.3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its http://farsite.hill.af.mil/reghtml/regs/far2afmcfars/fardfars/far/12.htm#P120_20316

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370)) sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include --

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer— System for Award Management, or

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.

3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt Payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected contract line item or subline item, if applicable; and

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section 611 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law.

If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 3701, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986;

41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) System for Award Management (SAM).

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)

(i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day’s written notification of its intention to:

(A) Change the name in the SAM database;

(B) Comply with the requirements of Subpart 42.12 of the FAR;

(C) Agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor’s SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of payment” paragraph of the EFT clause of this contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through https://www.acquisition.gov.

https://www.acquisition.gov/

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(End of Clause)

Addendum to FAR 52.212-4 Contract Terms and Conditions—Commercial Items (Alt. I) (FEB 2012).

FAR 52.212-4, Paragraph (d) Disputes: Notwithstanding the claim period stated in FAR 52.233-1, Disputes, and pursuant to FAR 33.206, Initiation of a Claim, the contractor agrees to submit any claim related to this contract [or “order”] within 12 months after accrual of the claim.

*Note that Alternate I version of Clause FAR 52.212-4 is applicable to the line items for Temporary Additional Services (TAS) CLINs: 0005, 0006, 0007, 0008, 1005, 1006,1007, 1008, 2005, 2006, 2007, 2008, 3005, 3006, 3007, 3008, 4005, 4006, 4007, 4008, 5005, 5006, 5007, 5008.

Alternate I (Aug 2012) When a time-and-materials or labor-hour contract is contemplated, substitute the following paragraphs (a), (e), (i), (l), and (m) for those in the basic clause.

(a) Inspection/Acceptance.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier.

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements.

Except as otherwise specified in paragraph (a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.]

(5)

(i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may—

(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or

(B) Terminate this contract for cause.

(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to--

(i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor’s managerial personnel; or

(ii) The conduct of one or more of the Contractor’s employees selected or retained by the Contractor after any of the Contractor’s managerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified.

(7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract.

(8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract.

(9) Unless otherwise specified in the contract, the Contractor’s obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.

(e) Definitions.

(1) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. As used in this clause—

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are—

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(iii) Materials means—

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.);

(D) The following subcontracts for services which are specifically excluded from the hourly rate: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

(E) Indirect costs specifically provided for in this clause.

(iv) Subcontract means any contract, as defined in FAR Subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contract or a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(i) Payments.

(1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:

(i) Hourly rate.

(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed. Fractional parts of an hour shall be payable on a prorated basis.

(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by individuals that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer.

(C) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Contracting Officer or the authorized representative.

(D) When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370)) subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation specified in the contract.

(E) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis.

(1) If no overtime rates are provided in the Schedule and the Contracting Officer approves overtime work in advance, overtime rates shall be negotiated.

(2) Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract.

(3) If the Schedule provided rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.

(ii) Materials.

(A) If the Contractor furnishes materials that meet the definition of a commercial item at FAR 2.101, the price to be paid for such materials shall not exceed the Contractor’s established catalog or market price, adjusted to reflect the--

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor—

(1) Has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or

(2) Makes these payments within 30 days of the submission of the Contractor’s payment request to the Government and such payment is in accordance with the terms and conditions of the agreement or invoice.

(C) To the extent able, the Contractor shall—

(1) Obtain materials at the most advantageous prices available with due regard to securing prompt delivery of satisfactory materials; and

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(2) Give credit to the Government for cash and trade discounts, rebates, scrap, commissions, and other amounts that are identifiable to the contract.

(D) Other Costs. Unless listed below, other direct and indirect costs will not be reimbursed.

(1) Other direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: [Insert each element of other direct costs (e.g., travel, computer usage charges, etc.

Insert “None” if no reimbursement for other direct costs will be provided.

If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert ‘None’.”]

(2) Indirect Costs (Material handling, Subcontract Administration, etc.).

The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: [Insert a fixed amount for the indirect costs and payment schedule.

Insert “$0” if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’.”]

(2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performance of this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

(4) Access to records. At any time before final payment under this contract, the Contracting Officer (or authorized representative) will have access to the following (access shall be limited to the listing below unless otherwise agreed to by the Contractor and the Contracting Officer):

(i) Records that verify that the employees whose time has been included in any invoice met the qualifications for the labor categories specified in the contract.

(ii) For labor hours (including any subcontractor hours reimbursed at the hourly rate in the schedule), when timecards are required as substantiation for payment—

(A) The original timecards (paper-based or electronic);

(B) The Contractor’s timekeeping procedures;

(C) Contractor records that show the distribution of labor between jobs or contracts; and

(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices.

(iii) For material and subcontract costs that are reimbursed on the basis of actual cost—

(A) Any invoices or subcontract agreements substantiating material costs;

and

(B) Any documents supporting payment of those invoices.

(5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. The Contractor shall promptly pay any such reduction within 30 days unless the parties agree otherwise. The

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

Government within 30 days will pay any such increases, unless the parties agree otherwise. The Contractor’s payment will be made by check. If the Contractor becomes aware of a duplicate invoice payment or that the Government has otherwise overpaid on an invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected contract line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6)

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury, as provided in section 611 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, and then at the rate applicable for each six month period as established by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final Decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt in a timely manner;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see FAR 32.60702).

RFP (HSHQEC-13-R-00014), PSO Services for (1) 600 17th Street, NW, Washington, DC, (DC0048), (2) 1724 F Street Washington, DC, (DC0078), (3) 726 Jackson Place Washington, DC, (DC0122), (4) 750 17th Street, NW, Washington, DC (DC0370))

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the…