Attachment_J-8_Sample_Bailment_Agreement.doc

RFP HSTS02-R-11-CT2042

Attachment J.8

BAILMENT AGREEMENT

FOR

CREDENTIAL AUTHENTICATION TECHNOLOGY - BOARDING PASS SCANNING SYSTEMS (CAT-BPSS)

BETWEEN THE

DEPARTMENT OF HOMELAND SECURITY, TRANSPORATATION SECURITY ADMINISTRATION (TSA)

AND

ARTICLE I-PARTIES

This bailment agreement (“Agreement”) entered into this ___ day of ____ 2011, by and between __________________, hereinafter called “Bailor,” and the United States of America, represented by the Department of Homeland Security, Transportation Security Administration, hereinafter called “TSA” or “Bailee,” . This Agreement is not intended to be, nor shall it be construed as creation of a partnership, corporation, or other business entity between the parties.

ARTICLE II· FURNISHED PROPERTY

The Bailor hereby delivers to Bailee upon the terms and conditions hereinafter set forth the following equipment and user manuals, as applicable, hereinafter called the “Bailed Property”:

Three (3) each Credential Authentication Technology – Boarding Pass Scanning Systems.

Bailor retains title to the Bailed Property. Bailee shall not sell, mortgage, encumber, or otherwise subject the Bailed Property to any legal process without Bailor’s consent.

Bailor grants to Bailee a non-sublicensable, non-exclusive, limited license to use the Bailed Property, including any software and documentation provided in conjunction with the Bailed Property, during the Term of the Agreement. This license includes the right to make archival and backup copies of the software in support of Bailee’s use of the Bailed Property.

ARTICLE III· PURPOSE, SCOPE AND BACKGROUND

Background.

TSA is charged with the mission of protecting the Nation's transportation systems to ensure freedom of movement for people and commerce. The mission of TSA’s Office of Security Technology (OST) is to develop and implement the best security technology solutions available to further TSA’s overall mission.

OST counters threats to security with technologies and procedures that screen passengers for unknown and threatening materials. OST is sponsoring the testing of Credential Authentication Technology – Boarding Pass Scanning Systems. Bailor is providing three (3) systems for Qualification Test & Evaluation (QT&E) to be conducted at the TSA Systems Integration Facility located at One West Post Office Road, Reagan National Airport, Washington, DC 20528-6032.

Scope of Work

The Bailed Property will be used for laboratory testing of system capabilities as part of an evaluation for the CAT-BPSS solicitation #____________________.

The Bailed Property shall be returned in its original condition, ordinary wear and tear excepted. Unless otherwise provided herein, Bailee may modify the Bailed Property, provided that it is restored substantially to its original condition, prior to its return to Bailor. Bailee shall, to the extent reasonably required, be responsible for normal maintenance of the bailed property, exclusive of replacement parts and calibration.

ARTICLE IV· DURATION OF AGREEMENT

The terms of this Bailment Agreement shall be effective upon execution hereof. It shall continue in full force and effect until completion of testing but not less than ten days (10) and not greater than one hundred and twenty (120) days.

Neither Party shall be liable for delays or defaults due to causes beyond its control and without its fault or negligence.

ARTICLE V. TERMINATION

This agreement may be terminated by mutual agreement of the parties. Termination must be provided in writing and provided to the signatories of this document.

ARTICLE VI· RESPONSIBILITIES AND APPLICABLE DOCUMENTS

Responsibilities and location of testing

Bailor shall provide 3 Credential Authentication Technology – Boarding Pass Scanning Systems, as stated under Article II, at no charge to the government for one-hundred and twenty (120) calendar days for evaluation purposes. The equipment will be used for testing in the laboratory. The Bailor shall support, operate, and maintain the device during the test period at the request of the Government. This Bailment Agreement covers only the loan of the Bailed Property for one-hundred and twenty calendar (120) days.

Installation and Removal

Bailor shall prepare and ship the Bailed Property at no cost to Bailee to the destination listed above. Bailor’s travel, if applicable, in support of this Agreement shall be performed at no cost to Bailee. The specific location within the facility will be provided by Bailee. Bailor shall, as reasonably necessary to complete testing, fully collaborate and cooperate with Bailee’s support personnel (i.e., personnel employed by TSA contractors). Even though Bailee expects the system to be in place during the entire period of the pilot, Bailor shall remove the system within five working days if directed by the CO to do so, even if the test is not completed.

The Bailor shall fully cooperate with the Bailee's support personnel, to include personnel employed by TSA contractors, throughout all phases of installation, testing and removal.

Sustainment, Maintenance, and Technical Advice and Assistance

Bailor shall not be required to provide sustainment, maintenance and technical advice and assistance for the units under this Agreement. Bailor may provide sustainment, maintenance and technical advice and assistance to Bailee on a Time and Material basis at rates/cost mutually agreed upon by the Parties.

ARTICLE VII· LIMITATIONS ON LIABILITY

Bailee, not Bailor, will control the use and/or operation of the Bailed Property. Bailor shall have no responsibility for operation of the Bailed Property.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO EACH OTHER OR TO ANY THIRD PARTY FOR ANY DAMAGES FOR PERSONAL INJURY, PROPERTY DAMAGE OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO THE USE, POSSESSION OR OPERATION OF THE BAILED PROPERTY LOANED HEREUNDER, WHETHER ALLEGED TO BE DUE IN WHOLE OR PART TO SUCH PARTY’S NEGLIGENCE OR FAULT. THE EXPRESS OBLIGATION STATED UNDER ARTICLE IX BAILED PROPERTY “AS IS” BELOW IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF BAILOR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, POSSESSION OR PERFORMANCE OF BAILED PROPERTY.

ARTICLE VIII·USE OF' BAILED PROPERTY

Bailee shall use the Bailed Property solely for evaluation as specified under this

Agreement, unless otherwise authorized by the Bailor by an executed bilateral modification to this Agreement.

ARTICLE IX.BAILED PROPERTY "AS IS"

Bailor shall supply the Bailed Property "as is" without any warranty either expressed or implied.

ARIICLE X –CHANGES AND/OR MODIFICATIONS

Changes and/or modifications to this Agreement shall be in writing and signed by the authorized representatives of the parties to this Agreement. No oral statement by any person shall be interpreted as modifying or otherwise affecting the terms of the

Agreement. The Contracting Officer and the Contracting Officer’s Technical Representative are the only individuals authorized to discuss the details of this agreement on behalf of the Bailee. The Contracting Officer is the only individual authorized to enter into, or modify, this agreement on behalf of the Transportation Security Administration.

ARTICLE XI·PROTECTION OF INFORMATION.

The parties agree that they shall take appropriate measures to protect proprietary, privileged, Sensitive Security Information (SSI), or otherwise confidential information (which information is marked or otherwise identified as proprietary, privileged, or confidential) that may come into their possession as a result of this Agreement.

A. Dissemination of Contractor Information

The Bailor shall not publish, permit to be published, or distribute for public consumption any information, oral or written, concerning the results or conclusions made pursuant to the performance of this Agreement, without the prior written consent of the Contracting

Officer. This statement includes seminars, professional society meeting/conferences and meetings with foreign dignitaries both government and from the private sector. Two copies of any material proposed to be published or distributed shall be submitted to the

Contracting Officer. The following schedule is established as a guideline when requesting consent (calendar days):

· Written information - 15 days

· Oral information -15 days

· Congressional information -10 days

Any proposals for prospective work, exclusive of this Agreement, for which the Bailor may employ information generated in the performance of this Agreement, the Bailor is required only to notify the Contracting Officer of its intent to submit a proposal. Such notification shall include a brief description of the requirement for which the Bailor is proposing and indicate the Government or business activity to which the proposal is being submitted.

B. Release of Information

Work performed under this Agreement may involve access to information, including specifications, cost estimates and other sensitive data. Consequently, the Bailor

(including individual employees, contractors, suppliers and agents thereof) shall not release or communicate, except as required by law or regulations, such information, including any news release, public announcement, or advertising material concerned with this Agreement, whether orally or in writing, to any person except:

a) TSA personnel and TSA Contractors with a "need to know" who have signed a nondisclosure form;

b) Employees of the Bailor with a "need to know", who have signed a non· disclosure form, or

c) Such other person as may be designated in writing by the Contracting Officer and who have signed a non-disclosure form.

Further, no documents, reports, information, etc. related to work under this Agreement, may be released to the public or provided to any party other than the TSA without review and written approval of the TSA.

ARTICLE XII· FUNDING AND PAYMENT

No funds are required to be obligated under the terms of this Agreement. Each party shall bear the cost of its own performance under the Agreement.

ARTICLE XIII·DISPUTES

Disputes will be resolved by informal discussion between the parties. In the event the parties are unable to resolve any disagreement through good faith negotiations, the dispute will be resolved by the TSA Contracting Officer. The decision is final unless an appeal is submitted to the TSA Assistant Secretary, or his/her designee, whose decision is not subject to further administrative review, and to the extent permitted by law, is final and binding. Appellant has five (5) business days to submit an appeal to the TSA Assistant Secretary.

ARTICLE XIV·SAFETY

The Bailor shall notify the Contracting Officer of any applicable safety certifications that the system does not meet, and provide sufficient data and information to facilitate consideration of a formal OST waiver of the requirement for the purposes of conducting the test.

ARTICLE XV-POINTS OF CONTACT

FOR BAILEE:

Lance Nyman Contracting Officer

Transportation Security Administration

FOR BAILOR: _______________________

ARTICLE XVI·CONSTRUCTION OF THE AGREEMENT

This Agreement is an "other transaction" as authorized by 49 U.S.C. §106 (I) and 114 (m), Homeland Security Act of 2002, and Pub.L.107-296, § 102, and is not a procurement contract, grant or cooperative agreement. Nothing in this Agreement shall be construed as incorporating by reference or implication any provision of Federal acquisition regulation.

Each party acknowledges that all parties hereto participated equally in the negotiation and drafting of this Agreement and any amendments thereto, and that, accordingly, this

Agreement shall not be construed more stringently against one party than against the other. Moreover, each party acknowledges that there are no exceptions taken or reserved and that this Agreement represents the complete meeting of the minds of the parties not withstanding any contemporaneous writing, correspondence, or conversation to the contrary.

ARTICLE XVIl- SURVIVAL OF PROVISIONS

The following provisions of this Agreement shall survive termination of this Agreement:

Articles entitled "Nature of Agreement", "Protection of information", "Disputes", and

"Survival of Provisions."

ARTICLE XVIII- APPLICABLE LAW

This matter shall be governed by applicable federal law.

IN WITNESS WHEREOF, the Parties have entered into this Agreement by their duly authorized officers this _____ day of _____________, 2011.

[NAME]

[TITLE]

Date:_______________________

DEPARTMENT OF HOMELAND SECURITY

TRANSPORTATION SECURITY ADMINISTRATION

Lance Nyman Contracting Officer Date: _________________