HTP-APP_RFP_Attach 9_Supplement to GPs.pdf

RFP 843396

Attachment 9

Supplement to the General Provisions

The following clauses are henceforth incorporated into the contract and supersede any similar or conflicting clause contained in the General Provisions for Fixed Price Commercial Items – Supplies Services, Form A-409.32-CI:

• Contracts for Materials, Supplies, Articles and Equipment exceeding $15K (cl. 303 – Apr 2017)

• Bankruptcy (cl. 318 – Nov 2008)

• Default – Fixed Price Supply and Service (cl. 365c – Dec 1985)

• Title and Risk of Loss (cl. 378d – Nov 2008)

• Warranty (cl. 383 – Jan 2010)

• Contract Administration (cl 384 – Feb 2015)

• Compliance with Internet Protocol Version 6 (Ipv6) in Acquiring Information Technology (cl. 3750 – Mar

2024)

• Contractor Publication and Release of Information (cl. 3701 – May 2007)

The following Department of Energy Acquisition Regulation (DEAR), Federal Acquisition Regulation (FAR), and Code of Federal Regulation (CFR) clauses are being incorporated by reference into the “Clauses Incorporated by

Reference (cl. 3001-FP – June 2017)” clause contained in the General Provisions for Fixed Price Commercial Items –

Supplies Services, Form A-409.32-CI and these clauses supersede any similar or conflicting clause contained in the

General Provisions:

• FAR 52.227-23 Rights to Proposal Data (Technical) (Jun 1987)

• FAR 52.227-14 Rights in Data (May 2014)

• FAR 52.227-16 Additional Data Requirements (Jun 1987)

• DEAR 970.5227-1 Rights in Data – Facilities (Dec 2000)

• DEAR 952.209-72 Organizational Conflicts of Interest (Aug 2009)

• FAR 52.242-15 Stop-Work Order (Aug 1989)

• DEAR 952.235-71 Research Misconduct (Jul 2005)

• FAR 52.203-6 Restriction on Subcontractor Sales to the Government (Jun 2020)

• DEAR 970.5227-4 Authorization and Consent (Aug 2002)

• DEAR 970. 5227-5 Notice and Assistance Regarding Patent and Copyright Infringement (Dec 2000)

• FAR 52.246-7 Inspection of Research and Development-Fixed-Price (Aug 1996)

• DEAR 952.227-13 Patent Rights - Acquisition by the Government (Sep 1997)

• DEAR 952.227-84 Notice of Right to Request Patent Waiver (Feb 1998)

• 37 CFR 401.14 Standard Patent Rights Clause (Mar 2023)

Contracts for Materials, Supplies, Articles and Equipment exceeding $15K (cl. 303 – Apr 2017)

If this contract is for the manufacture or furnishing of materials, supplies, articles, or equipment in an amount which exceeds or may exceed $15,000 and is otherwise subject to the Walsh-Healey Public Contracts Act, as amended (41 U.S. Code 35-45), there are hereby incorporated by reference all representations and stipulations required by said Act and regulations issued thereunder by the Secretary of Labor, such representations and stipulations being subject to all applicable rulings and interpretations of the Secretary of Labor which are now or may hereafter be in effect.

https://www.acquisition.gov/far/52.227-23 https://www.acquisition.gov/far/52.227-14 https://www.acquisition.gov/far/52.227-16 https://www.acquisition.gov/dears/970.5227-1-rights-data-facilities.

https://www.acquisition.gov/dears/952.209-72-organizational-conflicts-interest.

https://www.acquisition.gov/far/52.242-15 https://www.acquisition.gov/dears/952.235-71-research-misconduct.

https://www.acquisition.gov/far/52.203-6 https://www.acquisition.gov/dears/970.5227-4-authorization-and-consent.

https://www.acquisition.gov/dears/970.5227-5-notice-and-assistance-regarding-patent-and-copyright-infringement.

https://www.acquisition.gov/far/52.246-7 https://www.acquisition.gov/dears/952.227-13-patent-rights-acquisition-government.

https://www.acquisition.gov/dears/952.227-84-notice-right-request-patent-waiver.

https://www.law.cornell.edu/cfr/text/37/401.14

Bankruptcy (cl. 318 – Nov 2008) If the Contractor enters into any proceeding related to bankruptcy, it shall give written notice to the Battelle Contracts Representative via certified mail within five days of initiation of the proceeding. The notification shall include the date on which the proceeding was filed, the identity and location of the court, and a listing of the Battelle purchase orders, contracts, or agreements affected.

Default – Fixed Price Supply and Service (cl. 365c – Dec 1985) A. Battelle may, subject to the provisions of Paragraph C of this clause, by written notice of default to the Contractor, terminate the whole or any part of this contract in any one of the following circumstances:

1. If the Contractor fails to perform the work called for by this contract within the time(s) specified herein or any extension thereof; or

2. If the Contractor fails to perform any of the other provisions of this contract, or so fails to prosecute the work as to endanger performance of this contract; or

3. If the Contractor ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature); or

4. If any proceeding for bankruptcy or insolvency is brought by or against the Contractor under bankruptcy or insolvency laws.

B. In the event Battelle terminates this contract in whole or in part as provided in Paragraph A of this clause, Battelle may procure, upon such terms and in such manner as it may deem appropriate, work similar to the work so terminated and the Contractor shall be liable for any excess costs for such similar work: provided, that the

Contractor shall continue the performance of this contract to the extent not terminated under the provisions of this clause.

C. Except with respect to defaults of subcontractors, the Contractor shall not be terminated for default if the failure to perform the contract arises out of causes beyond the control and without the fault or negligence of the

Contractor. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the

Government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both the Contractor and subcontractor and without the fault or negligence of either of them, the Contractor shall not be terminated for default for failure to perform unless the supplies or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Contractor to meet the required delivery schedule or other performance requirement.

D. If this contract is terminated as provided in Paragraph A of this clause, Battelle, in addition to any other rights provided in this clause, may require the Contractor to transfer title and deliver, in the manner and to the extent directed by Battelle, any of the completed or partially completed work not theretofore delivered to, and accepted by, Battelle and any other property, including contract rights, specifically produced or specifically acquired for the performance of such part of this contract as has been terminated; and the Contractor shall, upon the direction of

Battelle, protect and preserve property in the possession of the Contractor in which Battelle has an interest.

Battelle shall pay to the Contractor the contract price, if separately stated, for completed work accepted by

Battelle and the amount agreed upon by the Contractor and Battelle for 1) completed work for which no separate price is stated, 2) partially completed work, 3) other property described above which is accepted by Battelle, and 4) the protection and preservation of property. Failure to agree shall be a dispute within the meaning of the clause entitled “Disputes.” Battelle may withhold from amounts otherwise due the Contractor for such completed supplies or manufacturing materials such sum as Battelle determines to be necessary to protect Battelle against loss because of outstanding liens or claims of former lien holders.

E. If, after notice of termination of this contract under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, or that the default was excusable under the provisions of Paragraph C of this clause, the rights and obligations of the parties shall, if the contract contains a clause providing for termination for convenience of the Government, be the same as if the notice of termination had been issued pursuant to such clause. If, after notice of termination of this contract under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provisions of this clause, and if this contract does not contain a clause providing for termination for convenience of the Government, the contract shall be equitably adjusted to compensate for such termination and the contract modified accordingly.

Failure to agree to any such adjustment shall be a dispute within the meaning of the clause of this contract entitled

“Disputes.”

F. The rights and remedies of Battelle provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

G. As used in Paragraph C of this clause, the terms “subcontractor” and “subcontractors” mean subcontractor(s) at any tier.

Title and Risk of Loss (cl. 378d – Nov 2008)

Unless the contract specifically provides otherwise, title to the items purchased under this Contract shall pass directly to the Government upon the following, and the risk of loss or damage to the items provided under this contract shall remain with the Contractor until, and shall pass to Battelle upon:

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

B. Delivery of the supplies to Battelle at the destination specified in the contract, if transportation is f.o.b.

destination. However, (1) if the Contract provides for formal acceptance of any items by Battelle, then title to such items shall pass directly to the Government upon such formal acceptance; and (2) the title and risk of loss or damage to items that are non- conforming shall remain with the Contractor until acceptance of the items by

Battelle as conforming.

Warranty (cl. 383 – Jan 2010)

The Contractor warrants that the supplies delivered under this contract shall be new, unless otherwise specified in the contract schedule, free from defects in material and workmanship, of the most suitable grade of their respective kinds for the purpose, and comply with all requirements set forth in this Contract until 365 days after acceptance by Battelle. If a defect is discovered in any item covered in this Contract, the Contractor shall correct, at its expense, such defects as are reported within the Contractor’s applicable warranty period for the items.

Contractor further warrants that services provided shall reflect the highest standards of professional knowledge and judgment, shall be free from defects in workmanship, and shall be in compliance with all requirements of this

Contract until 365 days from the completion of the services. Contractor shall correct any nonconformity with this warranty at its expense, as direct by Battelle, by promptly re-performing the nonconforming services or (2) paying

Battelle a portion of the Contract price as Battelle determines is equitable under the circumstances.

If Contractor fails to perform its obligations promptly under this clause, Battelle may perform, or have performed, such obligations, and Contractor shall pay Battelle all charges occasioned thereby.

The rights and remedies provided by such warranties shall be in addition to and shall not limit any rights afforded to Battelle by any other provision of this Contract.

Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud, or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms of this Contract.

Contract Administration (cl 384 – Feb 2015)

A. The Contractor’s progress and compliance with the technical requirements of this contract may be monitored for Battelle by a Technical Oversight Representative. The name of the Technical Oversight Representative, if one is designated, will be furnished the Contractor by the Battelle Contracts Representative.

B. The Battelle Technical Oversight Representative is authorized to receive information, conduct inspections of work in process and witness Contractor tests. He/she has no authority to (1) change or waive any provision of this contract, including but not limited to statements of work, drawings, specifications and standards, whether attached or incorporated by reference; (2) provide interpretations of any provision or requirement of this contract;

(3) direct, advise, or recommend any particular course of conduct on the part of the Contractor; or (4) create any legally binding commitment on behalf of Battelle.

C. The Contractor is solely responsible for strict compliance with all requirements of this contract. No notice, communication or representation in any form or from any person other than a Battelle Contracts Representative shall be effective to relieve the Contractor of such obligation or to stop Battelle from enforcing the contract exactly according to its written terms.

Compliance with Internet Protocol Version 6 (Ipv6) in Acquiring Information Technology (cl. 3750 – Mar 2024)

This clause applies when information technology (e.g., Ethernet cards, network switches, routers, printers, related software, and commercial services for connectivity) will be delivered as a part of this contract.

A. This contract involves the acquisition of Information Technology (IT) that uses Internet Protocol (IP) technology.

The contractor agrees that—

1. all deliverables that involve IT that uses IP (products, services, software, etc.) will comply with Ipv6 standards and interoperate with both Ipv6 and Ipv4 systems and products

2. it has Ipv6 technical support for development and implementation and fielded product management available

3. all hardware and system acquisitions that are Internet Protocol (IP)-aware or perform IP functions, and all software developed or acquired that incorporates direct IP-addressing or functionality, must be capable of operating in an Ipv6-only mode.

B. If the contractor plans to offer a deliverable that involves IT that is not initially compliant, the contractor agrees to—

1. obtain the Battelle Contracts Representative’s approval before starting work on the deliverable.

2. provide a migration path and firm commitment to upgrade to Ipv6 for all application and product features.

3. have Ipv6 technical support for development and implementation and fielded product management available.

C. Should the contractor find that the statement of work or specifications of this contract do not conform to the

Ipv6 standard, it must notify the Battelle Contracts Representative of such nonconformance and act in accordance with instructions of the Battelle Contracts Representative.

Contractor Publication and Release of Information (cl. 3701 – May 2007)

Contractor agrees to allow Battelle to review a copy of any Contractor manuscript that will be submitted for publication or any scientific or technical information generated under this Contract. This review will be facilitated by the Contractor submitting the manuscript to the Battelle Contracts Representative no less than thirty (30) days prior to Contractor’s manuscript submission for publication or release of scientific or technical information outside of Contractor’s control. Battelle shall review Contractor’s manuscript or scientific and technical information consistent with Battelle’s information release policies then in effect and may submit any of Contractor’s scientific and technical information to the U.S. Department of Energy’s (DOE) Office of Scientific and Technical Information

(OSTI) as required by Battelle’s contract for the management and operation of the Pacific Northwest National

Laboratory or any DOE Order made applicable to Battelle thereunder. Battelle’s review and submission of

Contractor’s manuscripts or scientific and technical information does not absolve Contractor’s duties to comply with any information or data review, reporting, or disclosure requirements made applicable to Contractor under this Contract.

Contractor agrees to amend any manuscript or scientific and technical information release to remove any information that Battelle identifies which is necessary to protect—(1) Battelle’s or the U.S. Government’s rights in patentable subject matter conceived or first reduced to practice by Battelle; or (2) proprietary information provided to Contractor under this Contract.