Attachment F - Agreement (terms considitions) (Revised) - Amendment 0002.doc

OTHER TRANSACTION

AGREEMENT (Terms & Conditions)

FOR PROTOTYPE

Between ABC, INC. (Performer)

Performer Address City, State Zip And

U.S. ArMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND (uSAMRDC) Through

THE U.S. ARMY MEDICAL RESEARCH ACQUISITION ACTIVITY (USAMRAA)

808 Schreider Street Fort Detrick, MD 21702-5000 Effective Date: ____________

Agreement No.: TBD Total Amount of the Agreement: TBD Government Dollars: TBD Non-Government Dollars: TBD Funds obligated:

Authority: 10 U.S.C § 4022 Line of Accounting and Appropriation: TBD (A Standard Form 26 will be provided at time of award, see Section G) NOTE: The SF26 is used for the purpose of obligation of government funds. Although the form is prescribed in the FAR, any references to the FAR on the SF26 are not applicable to this agreement.

This Agreement is entered into between the United States of America, hereinafter called the Government, represented by USAMRDC/USAMRAA, and (INERT Company Name) pursuant to and under the United States Federal law.

FOR (Insert Company Name)

FOR THE GOVERNMENT

(Signature)

(Signature)

Name, title

Name, Agreements Officer

TABLE OF CONTENTS

ARTICLES

ARTICLE 1 SCOPE OF THE AGREEMENT

ARTICLE 2 TERM AND TERMINATION

ARTICLE 3 PROGRAM MANAGEMENT

ARTICLE 4 AGREEMENT ADMINISTRATION

ARTICLE 5 DISPUTES

ARTICLE 6 PAYMENT

ARTICLE 7 BACKGROUND INTELLECTUAL PROPERTY

ARTICLE 8 OT INVENTIONS

ARTICLE 9 DATA RIGHTS

ARTICLE 10 REGULATORY RIGHTS

ARTICLE 11 PERSONNEL

ARTICLE 12 SCIENTIFIC PUBLICATIONS AND PRESS RELEASES

ARTICLE 13 GENERAL PROVISIONS

ATTACHMENTS

ATTACHMENT 1: Statement of Work (including deliverables) ATTACHMENT 2: Performer Background Intellectual Property, Technical Data, and Other Terms ATTACHMENT 3: Government Background Intellectual Property and Technical Data

ARTICLE 1. SCOPE OF THE AGREEMENT

A. Background This Agreement is an “Other Transaction for Prototype” pursuant to 10 U.S.C. § 4022. For the avoidance of doubt, this Agreement is not a procurement contract, grant, or cooperative agreement. The Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS) do not apply to this Agreement except for any provision expressly referenced herein. This Agreement is not intended to be, nor will it be construed as, forming, by implication or otherwise, a partnership, a corporation, or other business organization. This Agreement is not subject to the Bayh-Dole Act, 35 U.S.C. §§ 200-212.

The Parties agree that the ultimate purpose of this Agreement is to develop an FDA approved/cleared USFP system (including transducer(s) and viewing platform) that is handheld, reliable, easily transportable, has minimal power requirements, and has no network connectivity (i.e. ability to function without connectivity to any network and cloud domain), with all required accessories.

B. Definitions Agreement:

The body of this Agreement and Attachments 1-3, which are expressly incorporated in and made a part of the Agreement.

Data:

Recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, software, mask works and trade secrets. The term does not include financial, administrative, cost, pricing or management information and does not include OT inventions described in Article 8.

Foreign Firm or Institution:

A firm or institution organized or existing under the laws of a country other than the United States, its territories, or possessions. The term includes, for purposes of this Agreement, any agency or instrumentality of a foreign government; and firms, institutions or business organizations which are owned or substantially controlled by foreign governments, firms, institutions, or individuals.

Government:

The United States of America, as represented by USAMRDC and USAMRAA.

Invention: Any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code.

Know-How:

All information including, but not limited to discoveries, formulas, materials, inventions, processes, ideas, approaches, concepts, techniques, methods, software, programs, documentation, procedures, firmware, hardware, technical data, specifications, devices, apparatus and machines.

Made:

Relates to any invention, or the conception or first actual reduction to practice of such invention.

Milestone Payments: Payments made to the Performer according to a schedule that is based on predetermined measures of technical progress or other defined milestones.

Party:

Includes the Government (represented by USAMRDC/USMRAA), or the Performer, or both.

Parties:

The United States of America, as represented by USAMRDC/USAMRAA, and Performer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

Performer: The legal entity executing this Agreement with the Government.

Practical Application: 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 capable of being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.

Program: Research and development being conducted by the Performer, as set forth in Article 1, paragraph D.

Personal Property: Any tangible personal property other than property actually consumed during the execution of work under this agreement. For purposes of this article, "property" does not include the deliverable prototype of this agreement).

OT Invention: Any invention conceived or first actually reduced to practice in the performance of work under this Agreement.

Sub-awardee: The legal entity to which a Sub-award is made and which is accountable to the Performer for the use of funds provided. The term includes the recipient of financial assistance when provided by any legal agreement, even if the agreement is called a contract, but does not include a supplier of goods and services when the goods and services provided are not an integral part of the research project or program.

Subject data: means technical data generated, directly or indirectly, related to the work performed under this agreement).

Technical data: means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

Technology:

Discoveries, innovations, Know-How and inventions, whether patentable or not, including computer software, recognized under U.S. law as intellectual creations to which rights of ownership accrue, including, but not limited to, patents, trade secrets, mask works and copyrights developed under this Agreement.

Unlimited Rights: Rights to use, duplicate, release, or disclose, Data in whole or in part, in any manner and for any purposes whatsoever, and to have or permit others to do so.

C. Scope

1. The principal purpose of this Agreement is to engage in a research and development program for the development of an Ultrasound Field Portable (USFP) system. The USFP system will be an FDA approved/cleared device that is handheld, easily transportable (including transducer(s), viewing platform, and accessories), reliable, has minimal power requirements, and has no network connectivity (i.e. ability to function and perform software updates without connectivity to any network and cloud domain), with all required accessories. The handheld portable USFP system shall meet field environmental and operational testing conditions and provide imaging quality sufficient for diagnosis in the Focused Assessment with Sonography in Trauma (FAST), Extended FAST (e-FAST) and Musculoskeletal (MSK) exams. The USFP system shall enable diagnostic ultrasound imaging and measurement of anatomical structures and fluids of adult patients.

2. In consideration for the Government providing funding under this Agreement, the Performer will complete the prototype project as described in the Performer’s Statement of Work dated INSERT DATE, incorporated with changes herein and attached hereto as Attachment 1. The Performer will submit or otherwise provide all documentation required by Attachment 2.

3. This Agreement is a combination fixed-price and cost reimbursable OT. For Objectives 1 - 3, the Performer shall be paid a fixed amount. The monthly payments provided under this Agreement for objectives 1 - 3 are not intended to compensate the Performer on a cost basis for performance under this Agreement. For Objective 4 (OPTIONAL), the Performer shall be paid for costs incurred based upon documented progress towards completion of the Objective and its tasks.

D. Goals/Objectives

1. The goal of this Agreement is to obtain a final USFP system that is handheld, easily transportable (including transducer(s) and viewing platform), reliable, has minimal power requirements, and has no network connectivity (i.e. ability to function and perform software updates without connectivity to any network and cloud domain), with all required accessories. The handheld portable USFP system shall meet field environmental and operational testing conditions and provide imaging quality sufficient for diagnosis in the Focused Assessment with Sonography in Trauma (FAST), Extended FAST (eFAST) and Musculoskeletal Injury (MSKI) exams. The USFP shall enable diagnostic ultrasound imaging and measurement of anatomical structures and fluids of adult patients. The Statement of Work, Attachment 1, describes the scope of activities that will be undertaken by the Performer to achieve the objective.

ARTICLE 2. TERM AND TERMINATION

A. Term of this Agreement. This Agreement commences upon the date of the last signature above and extends through the date of last delivery identified in the Milestone Schedule, which may be updated from time to time, unless terminated pursuant to this Article 2; however, this Agreement may be extended upon mutual agreement of the Parties. B. Termination for Convenience. Subject to a reasonable determination that this Agreement will not produce beneficial results commensurate with the expenditure of resources, the Government may terminate this Agreement by providing at least ninety (90) calendar days’ prior written notice to the Performer, provided that such written notice is preceded by consultation between the Parties. The Performer may terminate this Agreement upon providing written notice to the Government in the event that the primary subcontractor performing activities under the Statement of Work is no longer capable or willing to provide such services for Performer, and Performer is unable to find a suitable replacement. In the event of a termination of the Agreement, it is agreed that disposition of Data developed under this Agreement will be in accordance with the provisions set forth in Article 8, Data Rights. The Government and Performer will negotiate in good faith a reasonable and timely adjustment of all outstanding issues between the Parties as a result of termination, consistent with the terms of this Agreement. In the event of termination, nothing in this Agreement precludes the Performer from performing developmental work with other parties, using Performer’s own funds or other sources of funding to complete any terminated activities.

C. Termination for Cause. Except for a failure by the Government to pay the Performer, which shall be governed by the following sentence, if the Government materially fails to comply with the provisions of this Agreement, the Performer, after issuance of a cure notice and failure of the Government to provide a plan to cure the defect within ten (10) calendar days or the time allowed by the Performer after the Government’s receipt of the cure notice, whichever is longer, may suspend performance of this Agreement. If the Government fails to pay Performer in accordance with the terms set forth in this Agreement, such failure shall be deemed to be a material breach of this Agreement, and the Performer may suspend performance of this Agreement if the Government fails to make payment within 90 days of satisfactory completion of a milestone. In addition, the Performer may terminate this Agreement if the Government fails to make payment within 180 days of satisfactory completion of a milestone.

If the Performer materially fails to comply with the provisions of this Agreement, the Agreements Officer, after issuance of a cure notice and failure of the Performer to cure the defect within ten (10) calendar days or the time allowed by the Agreements Officer after Performer’s receipt of the cure notice, whichever is longer, may take one or more of the following actions as appropriate:

(i) temporarily withhold payments pending correction of the deficiency,

(ii) disallow all or part of the cost of the activity or action not in compliance,

(iii) wholly or partly suspend or terminate this Agreement,

(iv) withhold further funding, or

(v) take any other legally available remedies.

D. Survival. Expiration or termination of this Agreement shall terminate all outstanding obligations and liabilities between the Parties arising from this Agreement except those described in Article 7, Article 8, Article 9, and Article 10.

ARTICLE 3. PROGRAM MANAGEMENT

A. Program Governance. The Performer is responsible for the overall management of the project development program and related program decisions. The Government and the Performer are bound to each other by a duty of good faith in achieving the prototype objectives. As such, the Government will have continuous involvement with the Performer. The Performer shall provide access to program results in accordance with Attachment 1.

B. Program Management. The Performer and the Government will each designate an individual responsible for facilitating the communications, reporting, and meetings between the Parties. For the Performer the individual will serve as the Performer Project Manager, and for the Government the individual will be the Agreement’s Officer Representative (AOR).

C.

Routine Program Updates. The Performer will provide routine program updates to the AOR, in writing, at intervals set forth in Attachment 1.

D. Program Reviews. The Performer and the Government will hold quarterly program review meetings in accordance with the Statement of Work.

E. Regulatory Process Review and Participations. The Performer will lead regulatory activities with the FDA. If applicable, the Performer shall notify the FDA of any changes made during the development process and shall copy the Government on all correspondence with the FDA. The Performer will manage all regulatory communications, documentation, and submissions with health authorities in accordance with Attachment 1.

F. Reviews Resulting in Modifications. As a result of meetings, reviews, or at any time during the term of the Agreement, research progress or results may indicate that a change in the Statement of Work and or the Milestone Schedule would be beneficial to the program objectives. Recommendations for modifications, including the rationale to support any changes to the Statement of Work or Milestone Schedule, must be submitted in writing to the AO in accordance with Article 4. No communications, whether oral or in writing, that purport to change this Agreement are valid unless a modification is issued by the AO to the Statement of Work or Milestone Schedule. The Government is not obligated to pay for additional or revised future milestones until the Milestone Schedule is formally revised by the AO and made part of this Agreement.

ARTICLE 4. AGREEMENT ADMINISTRATION

This Agreement will be administered by USAMRAA. Unless otherwise provided in this Agreement, approvals permitted or required to be made by the Government may be made only by the USAMRAA AO. Administrative and contractual matters under this Agreement shall be referred to the following representatives of the parties:

A. Government Points of Contact.

Agreements Officer (AO):

TBD

USAMRDC-USAMRAA

808 Schreider Street Fort Detrick, MD 21702

Insert phone number: TBD Insert email address: TBD Agreement Specialist (AS):

TBD

USAMRDC-USAMRAA

808 Schreider Street Fort Detrick, MD 21702

Insert Phone Number: TBD

Insert Email Address: TBD

Agreements Officer’s Representative:

TBD

USAMRDC-USAMMDA

1430 Veterans Drive

Fort Detrick, MD 21702

Insert phone number: TBD Insert email address: TBD B. Performer Points of Contact and System for Award Management (SAM).

1.Insert Name, title, address, phone number and email address of POC

Insert Name, title, address, phone number, and email address of alternate POC

Performer Program Manager:

Insert Name, title, address, phone number, and email address

2. System for Award Management (Oct 2018)

(a) Definitions. As used in this provision—

"Electronic Funds Transfer (EFT) indicator means a four-character suffix to the unique entity identifier. The suffix is assigned at the discretion of the commercial, nonprofit, or Government entity to establish additional System for Award Management records for identifying alternative EFT accounts (see subpart 32.11) for the same entity.

Registered in the System for Award Management (SAM) means that–

(1) The Performer has entered all mandatory information, including the unique entity identifier and the EFT indicator, if applicable, the Commercial and Government Entity (CAGE) code, as well as data required by the Federal Funding Accountability and Transparency Act of 2006 (see subpart 4.14) into SAM

(2) The Performer has completed the Core, Assertions, and Representations and Certifications, and Points of Contact sections of the registration in SAM;

(3) The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number (TIN) with the Internal Revenue Service (IRS). The offeror will be required to provide consent for TIN validation to the Government as a part of the SAM registration process; and

(4) The Government has marked the record "Active".

Unique entity identifier means a number or other identifier used to identify a specific commercial, nonprofit, or Government entity. See www.sam.gov for the designated entity for establishing unique entity identifiers.

(b) (1) A Performer is required to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.

(2) The Performer shall enter, in the block with its name and address on the cover page of its offer, the annotation "Unique Entity Identifier" followed by the unique entity identifier that identifies the Offeror's name and address exactly as stated in the offer. The Performer also shall enter its EFT indicator, if applicable. The unique entity identifier will be used by the Agreement Officer to verify that the Offeror is registered in the SAM.

(c) If the Performer does not have a unique entity identifier, it should contact the entity designated at www.sam.gov for establishment of the unique entity identifier directly to obtain one. The Offeror should be prepared to provide the following information:

(1) Company legal business name.

(2) Tradestyle, doing business, or other name by which your entity is commonly recognized.

(3) Company physical street address, city, state, and Zip Code.t

(4) Company mailing address, city, state and Zip Code (if separate from physical).

(5) Company telephone number.

(6) Date the company was started.

(7) Number of employees at your location.

(8) Chief executive officer/key manager.

(9) Line of business (industry).

(10) Company headquarters name and address (reporting relationship within your entity).

(d) Processing time should be taken into consideration when registering. Performers who are not registered in SAM should consider applying for registration immediately upon receipt of this solicitation. See https://ww.sam.gov for information on registration.

C. Modifications. The only method by which this Agreement may be modified is by a formal, written modification signed by the AO and, if necessary, an authorized officer of the Performer.

1. Bilateral Modifications. The Performer or the Government may propose modifications to this Agreement. A modification that materially changes the obligations of either Party must be in writing and signed by the AO and an authorized officer of the Performer. Performer requests for modification shall detail the technical, chronological, and financial impact of the proposed change on the Statement of Work.

2. Unilateral Modifications. The AO may unilaterally issue minor or administrative modifications, which do not materially change the obligations of the Performer, such as changes in the paying office or appropriation data, or changes to Government personnel identified in the Agreement. Unilateral modifications will be signed only by the AO.

D. Options.

1. The Government intends to make multiple awards, from this RPP to qualified performers for completion of Objectives 1, 2 and 3. After completion of Objective 3, only one (1) awardee will be selected for completion of Objective 4 (optional objective to be exercised for the one Performer who advances). That is, following the completion of Objective 3 (field and operation testing), the Government will down select to a single performer for completion of Objective 4 for the continued development of the USFP system for RMF assessments and evaluations. The down select criteria can be found in Attachment H – Down Select Evaluation Criteria of the RPP.

2.

This Agreement contains priced and cost reimbursable options as detailed in the Statement of Work (Attachment 1), in which the Government evaluated at time of Agreement award.

3.

The Government has the unilateral right to exercise options of this Agreement any time during the period of performance; provided that the Government gives the Performer a preliminary written notice of its intent to extend at least 60 days before the agreement expires. The preliminary notice does not commit the Government to an extension.

4.

The total duration of this Agreement, including the exercise of any options under this article, shall not exceed 36 months.

E. Sub-awardee Approval. Modifications to sub-awardees and/or new sub-awardees under this Agreement that could reasonably impact the technical approach proposed and accepted by the Government require prior AO approval. Sub-awardees proposed and agreed to during negotiations will be treated as having AO approval.

Note: Sections F, G, and H are only applicable to cost reimbursable Objective 4.

F. Financial Records and Audit Access. The costs incurred under this Agreement shall be those costs that are reasonable and prudent. Actual costs, including those direct costs associated with the Agreement as well as any indirect costs are reimbursable to the extent they have a significant relationship to providing the goods or service under the Agreement. The AO or authorized representative shall have direct access to sufficient financial records to ensure full accountability for all government funding or statutorily required cost share under the Agreement for a period of three (3) years after final payment, unless notified otherwise by the AO. The AO or authorized representative, shall have the right to examine or audit the Performer or Sub-awardee records during the period of the agreement and for three (3) years after final payment, unless otherwise notified by the AO. These records are also subject to examination or audit by Government auditors. Such audit, examination, or access shall be performed during business hours on business days upon prior written notice and shall be subject to the security requirements of the audited Party. OPTIONAL: The Performer shall provide a statement to the AO when a business unit meets the conditions for use of an Independent Public Accountant (other than pursuant to the Single Audit Act) for any needed audits. The statement shall include the business unit's name, address, expected value of its award, and state the business unit is not currently performing on a procurement contract subject to the Cost Principles (48 CFR Part 31) and/or Cost Accounting Standards (48 CFR Part 99) and refuses to accept Government access to its records.

G. Accounting System. The Performer shall have and maintain established accounting systems, which comply with Generally Accepted Accounting Principles and shall ensure that appropriate arrangements have been made for receiving, distributing, and accounting for Federal funds. An adequate accounting system is normally accomplished through a job order cost accounting system, whereby the books and records segregate direct costs by agreement, and includes an established allocation method for the equitable allocation of indirect costs among agreements H. Final Indirect Cost Rates.

1. Final annual indirect cost rates and the appropriate bases shall be established for the period covered by the indirect cost rate proposal.

2. The Performer shall submit an adequate final indirect cost rate proposal to the AO or cognizant Federal agency official and auditor within the 6-month period following the expiration of each of its fiscal years. Reasonable extensions, for exceptional circumstances only, may be requested in writing by the Performer and granted in writing by the AO. The Performer shall support its proposal with adequate supporting data.

3. The proposed rates shall be based on the Performer’s actual cost experience for that period. The appropriate Government representative and the Performer shall establish the final indirect cost rates as promptly as practical after receipt of the Performer’s proposal.

4. Final indirect cost rates shall be used for Agreement closeout, unless the AO determines quick-closeout procedures can be used.

I. Title and Disposition of Acquired Property. The Performer must obtain approval from the AO prior to purchasing property using Government funds. Property listed below is considered as having received AO approval for purchase.

1.Title to Property. Except as provided in this paragraph, title to property shall vest in the Performer upon acquisition. For those items of real property or nonexpendable personal property having a unit acquisition cost of $5,000 or more, which will be acquired with Government funds, the Government reserves the right to transfer the title to the Federal Government or to a third Party named by the Government. If a Performer includes the use of real property or equipment that is purchased with non-federal funds or that is donated by a third party to meet a portion of any required cost sharing or matching, the Government will have a financial interest in the property equal to the Federal participation in the project and such property shall be subject to this Article.

2. Disposition of Property. At the completion of the Research Project Award, items of property with an acquisition value greater than $5,000 shall be disposed of in the following manner:

a. Purchased by the Performer at an agreed-upon price, the price to represent fair market value, with the proceeds of the sale being returned to the Government. For Agreements with Cost Share, the Performer may elect to retain title, without further obligation to the Government, by compensating the Government for that percentage of the current fair market value of the real property or equipment that is attributable to the Federal participation in the project; or,

b. Transferred to a Government research facility with title and ownership being transferred to the Government or to an eligible third party. For Agreements with Cost Share, the Performer shall be entitled to compensation for its attributable percentage of the current fair market value of the real property or equipment, plus any reasonable shipping; or

c. Any other Government- approved disposition procedures. The Government shall provide disposition procedures within 120 days of being requested by the Performer to provide disposition. The Government is liable for storage costs of any property in storage awaiting disposition after this 120-day period.

J. Comptroller General Access to Records: The Comptroller General of the United States, in the discretion of the Comptroller General, shall have access to and the right to examine records of any Party to the Agreement, or any entity that participates in the performance of this Agreement, that directly pertain to, and involve transactions relating to, the Agreement.

(1) Excepted from the Comptroller General access requirement is any Party to this Agreement, or any entity that participates in the performance of the Agreement, or any subordinate element of such party or entity, that, in the year prior to the date of the Agreement, has not entered into any other contract, grant, cooperative agreement, or “other transaction” agreement that provides for audit access to its records by a government entity.

(2)(A) The right provided to the Comptroller General is limited as provided in subparagraph (B) in the case of a Party to the Agreement, any entity that participates in the performance of the Agreement, or a subordinate element of that Party or entity, if the only cooperative agreements or "other transactions" that the party, entity, or subordinate element entered into with government entities in the year prior to the date of this Agreement are cooperative agreements or transactions that were entered into under 10 U.S.C. § 4022.

(B) The only records of a Party, other entity, or subordinate element referred to in subparagraph (A) that the Comptroller General may examine in the exercise of the right referred to in that subparagraph are records of the same type as the records that the government has had the right to examine under the audit access clauses of the previous agreements or transactions referred to in such subparagraph that were entered into by that particular Party, entity, or subordinate element.

(3) This clause shall not be construed to require any Party or entity, or any subordinate element of such Party or entity that participates in the performance of the Agreement, to create or maintain any record that is not otherwise maintained in the ordinary course of business or pursuant to a provision of law.

(4) The Comptroller General shall have access to the records described in this clause until three years after the date the final payment is made by the United States under this Agreement.

(5) The recipient of the agreement shall flow down this provision to any entity that participates in the performance of the Agreement.

K. Flow down. The Performer shall include Articles 7,8,9,10,11,12, and 13, suitably modified, to identify all parties, in all sub-tier awards or other forms of lower tier agreements, regardless of tier. The Government will be a third party in interest for purposes of this Article in any agreement where flow-down of rights and obligations is required.

ARTICLE 5. DISPUTES

A. Dispute Resolution Process. The Parties recognize that disputes relating to their rights and obligations hereunder may arise from time to time during the term of this Agreement. It is the objective of the Parties to establish procedures to facilitate the resolution of disputes arising under this Agreement in an expeditious manner by mutual cooperation. To accomplish this objective, the Parties agree to follow the procedures set forth in this Article if and when a dispute arises under this Agreement.

1. Whenever disputes, disagreements, or misunderstandings arise, the Parties shall attempt to resolve the issue(s) involved by discussion and mutual agreement as soon as practicable. In no event shall a dispute, disagreement or misunderstanding which arose more than three (3) months prior to the written notification made under subparagraph A.2 of this article be subject for relief under this article unless the Ombudsman in the interest of justice, waives this requirement.

2. Failing resolution by mutual agreement, the aggrieved Party shall document the dispute, disagreement, or misunderstanding by notifying the other Party (through their respective AO or the Performer representative as the case may be) in writing documenting the relevant facts, identifying unresolved issues, specifying the clarification or remedy sought, and documenting the rationale as to why the clarification/remedy is appropriate. Within ten (10) working days after providing notice to the other Party, the aggrieved Party may, in writing, request a decision by the Ombudsman. The other Party shall submit a written position on the matter(s) in dispute within thirty (30) calendar days after being notified that a decision has been requested. The Ombudsman will conduct a review of the matter(s) in dispute and render a decision in writing within thirty (30) calendar days of receipt of such position. Any such decision is final and binding, unless a Party shall, within thirty (30) calendar days request further review as provided by this article.

3. If requested within thirty (30) calendar days of the Ombudsman’s decision, further review will be conducted by the Senior Contracting Official (SCO). In the event of a decision, or in absence of a decision within sixty (60) calendar days of referral to the SCO, either Party may pursue any right or remedy provided by law. Alternatively, the parties may agree to explore and establish an Alternate Disputes Resolution procedure to resolve this dispute.

4. Limitation of Damages. Claims for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of Government funding disbursed as of the time the dispute arises. In no event shall the Government be liable for claims for consequential, punitive, special and incidental damages, claims for lost profits, or other indirect charges.

ARTICLE 6. FINANCIAL MATTERS

A. Obligation.

1. The Government’s liability to make payments to the Performer is limited to only those funds obligated under the Agreement or by modification to the Agreement. The Government may obligate funds to the Agreement incrementally by modification.

a. The Government and Performer estimate that the Statement of Work described in Attachment 1 can only be accomplished with total funding of $XXXX. The Government's share for performance of the work under this Agreement is $XXXX . The Performer's share for performance of work under this Agreement is $XXXX. The Performer’s cost share portion is funded with 100% Cash Contributions, no In-Kind contributions are proposed. If no Cost Share applies, remove this language and tailor to your requirement. For example, for Cost plus fixed fee or Cost Plus percentage of cost, state the amount of cost and the amount of fee or fee percentage.

b. The total amount of Government funding presently available for performance under this agreement is %XXX. This Agreement is incrementally/fully funded. Milestone XYZ are fully funded. Milestone XYZ is incrementally funded in the amount of $XXXX, including an estimated cost of $XYZ and a fixed fee of $XYZ or including an estimated cost of $XYZ and fee percentage dollars of $XYZ. It is anticipated that additional funds for Milestone XYZ will be provided on or about XYZ.

2. Funding Notification Requirements (for Cost Type Agreements).

a. The Performer shall notify the Agreements Officer in writing whenever it has reason to believe that the costs it expects to incur in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the amount then allotted to the Agreement by the Government plus the Performer’s corresponding share (if applicable).

b. When and to the extent that the amount allotted by the Government to the Agreement is increased, any costs the Performer incurs before the increase that are in excess of the amount previously allotted by the Government to the Agreement plus the Performer’s corresponding share, shall be allowable to the same extent as if incurred afterward, unless the AO issues a termination or other notice and directs that the increase is solely to cover termination or other specified expenses.

B. Payments.

1.The Parties agree that cost reimbursable (include any number of cost type arrangements, including Cost Plus a Percentage of Cost – please note if there is Performer Cost Share, the Agreement must be Cost Reimbursable, fee is not permissible on cost sharing arrangements) payments will be made towards accomplishment of the milestones. These payments reflect the Performers progress towards the accomplishment of the research goals of this Agreement.

2. The Performer shall document the accomplishments of each milestone by submitting or otherwise providing the Milestone Report required by Attachment 2. After written verification of the accomplishment towards the milestone by the AOR, the Performer will submit their invoice through Wide Area Work Flow (WAWF), as detailed in paragraph B.7. of this Article. Payments shall be made in the amounts set forth in the Milestone Schedule, provided the AOR has verified the accomplishment of the milestones. It is recognized that the accounting of current expenditures reported in the “Status Report” submitted in accordance with Attachment 2 is not necessarily intended or required to match the milestone value; and milestones may be revised by modification during the course of the program to reflect current and revised projected expenditures.

3. Payment approval for the final milestone will be made after reconciliation of Government funding with actual Performer contributions.

4. Limitation of Funds: In no case shall the Government’s financial liability exceed the amount obligated under this Agreement.

5. Limitation of Payments: Failure of either Party to provide its contribution may result in termination of this Agreement, in accordance with the Article 2 of this Agreement. If either the Government or the Performer is unable to provide all of its respective contribution, the other Party may reduce its funding by a proportionate amount. Government contributions will be provided as detailed in the Milestone Schedule. Upon completion or termination of the Agreement, if the Performer's actual incurred costs are less than the estimated costs set forth in the Milestone Schedule, the Government shall be responsible to pay only an amount proportionate to its share of the estimated costs. The Performer shall promptly return any difference between the Government's percentage share of the actual costs incurred and the amount previously paid by the Government. Should the actual costs incurred exceed the estimated costs as set forth in the Milestone Schedule, the Government is liable for a proportionate share of the actual costs incurred up to the full Government share indicated in paragraph A.1.a. above, provided sufficient funds have been obligated to this Agreement.

6. Payments will be made by the Defense Finance and Accounting Services office, as indicated below, within thirty (30) calendar days of an acceptable invoice in WAWF. WAWF is a secure web-based system for electronic invoicing, receipt and acceptance. The WAWF application enables electronic form submission of invoices, government inspection, and acceptance documents in order to support DoD’s goal of moving to a paperless acquisition process. Authorized DoD users are notified of pending actions by e-mail and are presented with a collection of documents required to process the contracting or financial action. It uses Public Key Infrastructure (PKI) to electronically bind the digital signature to provide non-reputable proof that the user electronically signed the document with the contents. Benefits include online access and full spectrum view of document status, minimized re-keying and improving data accuracy, eliminating unmatched disbursements and making all documentation required for payment easily accessible.

7. Electronic Submission of Payment Requests and Receiving Reports

a. The Performer shall submit payment requests and receiving reports in electronic form using Wide Area WorkFlow (WAWF). The Performer shall prepare and furnish to the Government a receiving report at the time of each delivery of supplies or services under this contract or task or delivery order.

b. Submit payment requests and receiving reports to WAWF in one of the following electronic formats:

(1) Electronic Data Interchange.

(2) Secure File Transfer Protocol.

(3) Direct input through the WAWF website.

d. Information regarding WAWF is available at https://wawf.eb.mil/.

e. In addition to the requirements of this clause, the Performer shall meet the requirements of the appropriate payment clauses in this Agreement when submitting payment requests.

f. Wide Area Workflow Payment Instructions

(1) Definitions. As used in this clause—

“Department of Defense Activity Address Code (DoDAAC)” is a six position code that uniquely identifies a unit, activity, or organization.

“Document type” means the type of payment request or receiving report available for creation in Wide Area WorkFlow (WAWF).

“Local processing office (LPO)” is the office responsible for payment certification when payment certification is done external to the entitlement system.

“Payment request” and “receiving report” are defined in the clause at 252.232-7003 , Electronic Submission of Payment Requests and Receiving Reports.

(2) Electronic invoicing. The WAWF system provides the method to electronically process vendor payment requests and receiving reports, as authorized above.

(3) WAWF access. To access WAWF, the Performer shall—

(i) Have a designated electronic business point of contact in the System for Award Management at https://www.sam.gov; and

(ii) Be registered to use WAWF at https://wawf.eb.mil/ following the step-by-step procedures for self-registration available at this web site.

(4) WAWF training. The Performer should follow the training instructions of the WAWF Web-Based Training Course and use the Practice Training Site before submitting payment requests through WAWF. Both can be accessed by selecting the “Web Based Training” link on the WAWF home page at https://wawf.eb.mil/

(5) WAWF methods of document submission. Document submissions may be via web entry, Electronic Data Interchange, or File Transfer Protocol.

(6) WAWF payment instructions. The Performer shall use the following information when submitting payment requests and receiving reports in WAWF for this contract or task or delivery order:

(i) Document type. The Performer shall submit payment requests using the following document type(s):

(A) For cost-type line items, including labor-hour or time-and-materials, submit a cost voucher.

(B) For fixed price line items—

· That require shipment of a deliverable, submit the invoice and receiving report specified by the Contracting Officer.

(Agreement Officer: Insert applicable invoice and receiving report document type(s) for fixed price line items that require shipment of a deliverable.)

· For services that do not require shipment of a deliverable, submit either the Invoice 2in1, which meets the requirements for the invoice and receiving report, or the applicable invoice and receiving report, as specified by the Contracting Officer.

(Agreement Officer: Insert either “Invoice 2in1” or the applicable invoice and receiving report document type(s) for fixed price line items for services.)

· For customary progress payments based on costs incurred, submit a progress payment request.

· For performance-based payments, submit a performance-based payment request.

· For commercial item financing, submit a commercial item financing request.

[Note: The Performer r may use a WAWF “combo” document type to create some combinations of invoice and receiving report in one step.]

(ii) Document routing. The Performer shall use the information in the Routing Data Table below only to fill in applicable fields in WAWF when creating payment requests and receiving reports in the system.

Firm Fixed Price (FFP) Routing Data Table *

Field Name in WAWF

Data to be entered in WAWF

Pay Official DoDAAC

DFAS Office Issue By DoDAAC

HT9425

Admin DoDAAC

Inspect By DoDAAC

N/A Ship To Code

HT0986

Ship From Code

Mark For Code

Service Approver (DoDAAC) N/A Service Acceptor (DoDAAC)

HT0986

Accept at Other DoDAAC

LPO DoDAAC

DCAA Auditor DoDAAC

Other DoDAAC(s)

Cost Plus Fixed Fee (CPFF) Routing Data Table *

Field Name in WAWF

Data to be entered in WAWF

Pay Official DoDAAC

DFAS Office Issue By DoDAAC

Admin DoDAAC

Inspect By DoDAAC

Ship To Code

Ship From Code

Mark For Code

Service Approver (DoDAAC)

HT0986

Service Acceptor (DoDAAC)

N/A Accept at Other DoDAAC

LPO DoDAAC

DCAA Auditor DoDAAC

TBD

Other DoDAAC(s)

(*Agreement Officer: Insert applicable DoDAAC information. If multiple ship to/acceptance locations apply, insert “See Schedule” or “Not applicable.”)

(**Agreement Officer: If the contract provides for progress payments or performance-based payments, insert the DoDAAC for the contract administration office assigned those functions.

(iii) Payment request. The Performer shall ensure a payment request includes documentation appropriate to the type of payment request in accordance with the payment clause, contract financing clause, or allowable costs and payment.

(5) Receiving report. The Performer shall ensure a receiving report meets the requirements of the Agreement.

(g) WAWF point of contact.

(1) The Performer may obtain clarification regarding invoicing in WAWF from the following contracting activity’s WAWF point of contact.

(Agreement Officer: Insert applicable information or “Not applicable.”)

(2) Contact the WAWF helpdesk at 866-618-5988, if assistance is needed.

g. The following guidance is provided for invoicing processed under this Agreement through WAWF:

· The AOR identified in Article 4, "Agreement Administration" shall continue to formally inspect and accept the deliverables/ milestones. To the maximum extent practicable, the AOR shall review the deliverable(s)/milestone report(s) and either: 1) provide a written notice of rejection to the Performer which includes feedback regarding deficiencies requiring correction, or 2) written notice of acceptance to the AOR and AO.

· Acceptance within the WAWF system shall be performed by the AOR upon receipt of a confirmation email, or other form of transmittal, from the AOR.

· The Performer shall send an email notice to the AOR and upload the AOR approval as an attachment upon submission of an invoice in WAWF (this can be done from within WAWF).

· Payments shall be made by DFAS-(INSERT APPROPRIATE DFAS OFFICE NAME AND DODAAC).

· The Performer agrees, when entering invoices into WAWF to utilize the contracting line item number (CLIN) and accounting classification reference number (ACRN) associated with each milestone as delineated at Attachment 2. The description of the CLIN shall include reference to the associated milestone number along with other necessary descriptive information. The Performer agrees that the Government may reject invoices not submitted in accordance with this provision.

Note for DFAS: The Agreement shall be entered into the DFAS system by CLIN (One CLIN for EACH objective) as delineated at Section B of the SF 26. The Agreement is to be paid out by CLIN. Payments shall be made using the CLIN association as delineated at Section B of the SF 26.

8. Payment Instructions for Multiple Accounting Classification Citations.

These instructions are provided for the Agreement Payment Office (DFAS) only, and are not Performer instructions.

Applies to all CLINS:

Line item specific proration. If there is more than one ACRN within a deliverable line or deliverable subline item, the funds will be allocated in the same proportion as the amount of funding currently unliquidated for each ACRN on the deliverable line or deliverable subline item for which payment is requested.

9. The Government shall accept or reject the work as promptly as practicable after submission or completion, unless otherwise specified in this Agreement. Government failure to inspect and accept or reject the work shall not relieve the Performer from responsibility, nor impose liability on the Government, for nonconforming work. Work is nonconforming when it is defective in material or workmanship or is otherwise not in conformity with contract requirements.

10. The Government has the right to reject nonconforming work. If the Performer fails or is unable to correct or to replace nonconforming work within the delivery schedule (or such later time as the AO may authorize), the AO may accept the work and make an equitable price reduction. Failure to agree on a price reduction shall be a dispute.

C. Purchasing Rights (work with legal to tailor for your requirement). For a 10-year period, starting from the completion of the prototype project, you agree that you shall not offer, sell or otherwise provide the USFP System to any entity at a price lower than that offered to the USG for sales in the same or similar circumstances (e.g., product, fiscal year, volume, lead-time, other non-price business terms and conditions). In the event that you provide such USFP systems in the same or similar circumstances at a lower unit price than that price sold to the USG, you shall immediately notify the Agreements Officer in writing of the lower price. For prior purchases within the preceding 12-month period, you shall reimburse the USG the difference between the lower price provided to the other customer(s) and the price provided to the USG or USG supporting entity, multiplied by the volume/quantity provided.