NAF Common Clauses - Approved Clauses.pdf

Approved Common Clauses for NAF Procurement Table of Contents

1. 1001 LEGAL STATUS

2. 1002 DEFINITIONS

3. 1003.1 CLAIMS

4. 1003.2 CLAIMS – EXCHANGES

5. 1004 REPRESENTATIONS

6. 1005 ADVERTISEMENTS

7. 1006 EXAMINATION OF RECORDS

8. 1007 HOLD HARMLESS

9. 1008 INSURANCE

10. 1009 PROCUREMENT INTEGRITY

11. 1010 ASSIGNMENT OF CLAIMS

12. 1010.1 ASSIGNMENT OF CLAIMS

13. 1010.2 ASSIGNMENT OF CLAIMS

14. 1012.1 CHANGES

15. 1012.2 CHANGES AND CHANGED CONDITIONS

16. 1013 SOCIAL RESPONSIBILITY AND LABOR STANDARDS – NONRESALE

17. 1014 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES

18. 1015.1 DISCOUNTS FOR PROMPT PAYMENT – EQUIPMENT AND SUPPLIES

19. 1015.2 PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS

20. 1015.3 DISCOUNTS FOR PROMPT PAYMENT - CONSTRUCTION

CONTRACTS

21. 1017 COMMERCIAL WARRANTY

22. 1018.1 TAXES

23. 1018.2 TAXES FOR RESALE MERCHANDISE

24. 1019.1 INVOICE, PAYMENT AND DISCOUNT FOR EARLY PAYMENT

25. 1020 ELECTRONIC FUND TRANSFER PAYMENTS / ELECTRONIC

SUBMISSIONS

26. 1021 NONWAIVER OF DEFAULTS

27. 1022 CONTRACTOR TRAVEL

28. 1023 SUSTAINABILITY

29. 1024 LAW GOVERING CONTRACTS

30. 1025 ASSIGNMENT OF CLAIMS

31. 1026 ACCIDENT PREVENTION, FIRE PROTECTION AND SANITATION

32. 1034 ESTABLISHING A MINIMUM WAGE FOR CONTRACTORS

LEGAL STATUS (NAFI 1001 – 18 Aug 2014)

The Nonappropriated Fund Instrumentality (NAFI), which is party to this contract, is an integral part of the Department of Defense and is an instrumentality of the United States Government. No appropriated funds of the United States shall become due or be paid the Contractor by reason of this contract.

(End of Clause)

DEFINITIONS (NAFI 1002 – 4 Nov 2013) [For use in invitations for bids and requests for proposals.]

As used throughout this contract, the following terms and abbreviations have the meanings set forth below:

a. Contract. An agreement that creates a legal obligation. The elements of a contract are a mutual agreement; between competent parties; for a legal purpose; involving the exchange of legal consideration; and that creates a mutuality of obligation to perform between the parties.

The term contract, as used herein, includes without limitation, formal bilateral contracts, purchase orders, consignment sales agreements, amendments and modifications thereto, as well as other agreements entered into by an authorized Contracting Officer acting within his or her authority.

b. Contracting Officer. An individual delegated the authority to legally bind the NAFI by entering into, modifying, administering, and terminating contracts.

c. Contractor. Any legal entity that is awarded a contract. The Contractor is the party responsible for and agrees to furnish supplies and/or services at specified prices/rates and/or to pay the NAFI mutually agreed to commissions and/or fees in conjunction with providing services to NAFI customers under this contract. Contractor may include, but is not limited to the following terms "vendor," "seller," "supplier," “manufacturer,” “distributor,” “concessionaire” and/or "licensee."

d. Contracting Officer’s Representative (COR). An individual authorized in writing by a Contracting Officer to monitor Contractor performance and/or help administer a contract.

Definition applies to Contracting Officer’s Technical Representative (COTR) and Alternate COR

(ACOR).

e. Day. A day means, unless otherwise provided, a 24 hour period of time denoted as midnight to midnight of a calendar day, unless the last day of a specified number of days within which the contractor must file a claim or notice with the contracting officer falls on Saturday, Sunday or a federal holiday, in which case the last day shall be the next business day denoted as Monday through Friday.

f. Nonappropriated Fund Instrumentality (NAFI). A DoD organizational and fiscal entity supported in whole or in part by Nonappropriated Funds. A NAFI, as an instrumentality of the

U.S. Government, enjoys the same immunities and privileges as the U.S. Government in the absence of specific Federal statute. It is not incorporated under the law of any State, but has the legal status of an instrumentality of the United States. References to United States, the Government, and other related references will generally be implied to mean the NAFI throughout this contract.

(End of Clause)

CLAIMS (NAFI 1003.1 – 26 Mar 2014)

a. The contract is not subject to the Contract Disputes Act of 1978 (41 U.S.C. 7101-7109). All disputes arising under or relating to this contract shall be resolved under this clause.

b. "Claims," as used in this clause, means the inability of a contractor and the contracting officer to reach a mutual agreement related to contractual issues in controversy resulting in the filing of a written demand or assertion seeking payment of money, adjustment or interpretation of contract, or other relief, and issuance of a contracting officer’s final decision. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under this clause. The submission may be converted to a claim under this clause, by complying with the submission requirements of this clause. if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

c.

(1) A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the NAFI against the Contractor shall be subject to a written decision by the Contracting Officer.

(2) For Contractor claims exceeding $150,000, the Contractor shall submit with the claim a certification that contains the following statement: “Subject to the False Claim Act, 31 USC 3729, I certify the claim is made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the NAFI is liable; and that I am duly authorized to certify on behalf of the Contractor.”

d. For contract claims of $150,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor-certified claims over $150,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made.

e. The Contracting Officer's decision shall be final unless the contractor appeals as provided in paragraph (f) of this clause.

f. The Contracting Officer's final decision on claims may be appealed by submitting a written appeal to the Appellate authority with a copy to the Contracting Officer, within 90 days of receipt of the Contracting Officer's final decision. Decisions of the Appellate authority are final and are not subject to further appeal.

g. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

(End of Clause)

CLAIMS - EXCHANGES (NAFI 1003.2 – 26 Mar 2014)

a. This contract is subject to the Contracts Disputes Act of 1978, as amended (41 U.S.C.

7101-7109), hereinafter called “The Act.”

b. Except as provided in the Act, all claims arising under or relating to this contract shall be resolved under this clause.

c. “Claim” as used in this clause, means the inability of a contractor and the contracting officer to reach a mutual agreement related to contractual issues in controversy resulting in the filing of a written demand or assertion, by one of the contracting parties seeking, as a matter of right, payment of money in a certain sum, adjustment or interpretation of contract terms, or other relief, arising under or relating to this contract. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by Paragraphs e. and f. below. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under this clause. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

d. A claim by the contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the NAFI against the Contractor shall be made by a written decision by the Contracting Officer.

e. For Contractor claims exceeding $100,000, the Contractor shall submit with the claim a signed certification that, subject to the False Claim Act, 31 USC 3729:

(1) The claim is made in good faith;

(2) Supporting data are accurate and complete to the best of the Contractor’s knowledge and belief; and

(3) The amount requested accurately reflects the contract adjustment for which the Contractor believes the NAFI is liable.

f. The claim must be executed and certified by an individual with authority to bind the Contractor.

(1) For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor-certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made.

(2) The Contracting Officer shall mail, or otherwise furnish, a written decision in response to a Contractor claim within the time periods specified by law. Such decision will be final and conclusive unless:

(a) Within 90 calendar days from the date of the Contractor’s receipt of the final decision, the Contractor appeals the decision to the Armed Services Board of Contract Appeals (ASBCA).

(b) Within 12 months from the date of the Contractor’s receipt of the final decision, the Contractor brings an action in the United States Court of Federal Claims.

g. The NAFI shall pay interest on the amount found due and unpaid from (1) the date the Contracting Officer receives the claim (properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.

h. Pending final resolution on any request for relief, claim, appeal, or action arising under or relating to this contract, the Contractor will proceed diligently with the performance of this contract and will comply with the Contracting Officer’s decision.

(End of Clause)

REPRESENTATIONS (NAFI 1004 – 4 Nov 2013)

a. This written contract, including identified attachments, enclosures and documents incorporated by reference, is the entire agreement between the parties. The NAFI will not be bound by any oral or written representation not included or incorporated in the written contract or a written modification thereto. The NAFI will not be bound by any terms on Contractor forms or letters unless such terms are specifically agreed to and incorporated in the contract and signed by the Contracting Officer. Except as otherwise specifically provided in this contract, all additions, changes or deletions to this contract must be prepared in writing as a modification and signed either unilaterally by the Contracting Officer or bilaterally by both parties in accordance with applicable regulations.

b. The Contractor shall not represent itself to be an agent or representative of the NAFI or any other agency or instrumentality of the United States.

ADVERTISEMENTS (NAFI 1005 – May 2013) [Use when applicable.]

The Contractor shall not represent in any manner, expressly or by implication, that items or services purchased or sold under this contract are approved or endorsed by any element of the U.S. Government, including the NAFI. All Contractor advertisements that refer to the NAFI or a NAFI activity will contain a statement that the advertisement was neither paid for nor sponsored, in whole or in part, by the U.S. Government or the NAFI.

EXAMINATION OF RECORDS (NAFI 1006 – 26 Mar 2014) [For use in all solicitations and contracts.]

a. The Contractor agrees that the Contracting Officer or a duly authorized representative(s) shall have the right to examine and audit the books and records of the Contractor directly pertaining to the contract during the period of the contract and until expiration of three (3) years after the final payment under the contract

b. The Contractor shall include this clause in all subcontracts.

HOLD HARMLESS (NAFI 1007 – 28 Apr 2014)

The Contractor agrees to indemnify and hold harmless the NAFI and any other agency or instrumentality of the United States, and their officers, agents, and employees, from any loss, expense, damage, injury, claim, suit or judgment (including administrative actions taken against the NAFI by other federal, state or local agencies) arising from the contractor's (employee's, agent's or subcontractor's) acts or omissions or the items/services provided pursuant to the contract (including any patent, copyright, or trademark infringement claimed by a third party in connection with the items/services provided by the contractor). Nothing contained herein, however, shall relieve or be construed as relieving the NAFI or any other agency or instrumentality of the United States from any liability resulting from its negligence

INSURANCE (NAFI 1008 – 21 Oct 2013) [For overseas contracts, coordinate clause language with the NAFI headquarters procurement office.]

a. The Contractor shall, at its own expense, provide and maintain during the entire performance period of this contract at least the insurance coverage as stated in this contract. In no event shall the coverage be less than the minimum requirements established by applicable state and local regulations and laws for the risk associated with the services to be provided by the contract. The Contractor shall be fully responsible to the NAFI for errors and omissions of its associates' and subcontractors' under this contract.

b. The Contractor shall furnish to the Contracting Officer a current certificate of insurance prior to the commencement of performance under the contract. The “INSURED” block of the Certificate of Insurance must list both the Contractor’s name / (or Contractor’s d.b.a. name) and the contract number. The Certificates of Insurance shall evidence that all lines of insurance coverage required by the contract are in effect, and that not less than thirty (30) days prior written notice shall be provided to the Contracting Officer in the event of modification, cancellation, or non-renewal of any portion of the insurance coverage(s). All certificates of insurance must list the NAFI as the certificate holder, name the NAFI and the United States as additional insureds, and carry an endorsement waiving the Contractor’s rights to subrogation against the NAFI and the United States.

PROCUREMENT INTEGRITY (NAFI 1009 – 4 NOV 2013)

By submission of an offer or performance of this contract, the offeror or Contractor certifies with respect to this NAFI contract action:

a. That no discussion, offer, or promise of future employment or business opportunity has nor will be made to NAFI civilian or military personnel who personally and substantially participated in the contract action.

(1) That no offer, promise, or gift of any gratuity, entertainment, money, or other thing of value has nor will be made to any NAFI civilian or military personnel or any other employee of the U.S. Government or member of their family or household.

(2) That no information proprietary to other offerors or other contracting information (offeror list, prices offered, technical evaluations, rankings, etc.) is sought or obtained until it is available to the public under NAFI procedures.

(3) That no person or selling agency has been employed or retained to secure this contract for a commission, percentage, brokerage, or contingent fee except bona fide employees or bona fide established commercial selling agencies retained by the Contractor for the purpose of securing business.

b. The Contractor certifies that no gratuities (entertainment, gifts, money, kickbacks, or other things of value) were nor will be solicited or accepted by the Contractor or Contractor representative, nor from any Subcontractor or Subcontractor representative, for the purpose of obtaining or rewarding favorable treatment in connection with this contract or any subcontract under it.

c. The Contractor will report in writing to the Contracting Officer any possible violation of this clause when there are reasonable grounds to believe a violation may have occurred. The Contractor will cooperate fully with any federal agency investigation of a possible violation of this clause.

d. For breach of any of these certifications, the NAFI may terminate this contract for default, and/or deduct from amounts due under this or other contracts, or charge the Contractor for the total value of any contingent fee, gratuity, kickback or other loss to the NAFI arising out of the breach.

ASSIGNMENT OF CLAIMS (NAFI 1010 – 5 Sep 2013) [For use in ALL NAF contracts.]

a. No claims for monies due or to become due shall be assigned by the Contractor unless:

(1) approved in writing by the Contracting Officer;

(2) made in accordance with the laws and regulations of the United States of America;

and

(3) permitted by the laws and regulations of the Contractor's country.

b. In no event shall copies of this contract or of any plans, specifications, or other similar documents relating to work under this contract, if marked "Top Secret," or "Confidential," be furnished to any assignee of any claim arising under this contract or to any other person not entitled to receive same. However, a copy of any part, or all, of this contract so marked may be furnished, or any information contained therein may be disclosed, to such assignee upon the prior written authorization of the Contracting Officer.

c. Any assignment under this contract shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing.

On each invoice or voucher submitted for payment under this contract to which any assignment applies and for which direct payment thereof is to be made to as assignee, the Contractor shall identify the assignee by name and complete address and shall acknowledge the validity of the assignment and the right of the named assignee to receive payment in the amount invoiced or vouchered.

ASSIGNMENT OF CLAIMS (NAFI 1010.1 – 4 Nov 2013) [For use in ALL NAF contracts.]

The contractor shall not assign any right or delegate any obligations under this contract without the prior written permission of the Contracting Officer.

(End of Clause)

ASSIGNMENT OF CLAIMS (NAFI 1010.2 – 4 Nov 2013) [For use in ALL NAF contracts.]

a. No claims for monies due or to become due shall be assigned by the Contractor unless (i) approved in writing by the Contracting Officer; (ii) made in accordance with the laws and regulations of the United States of America; and (iii) permitted by the laws and regulations of the Contractor's country.

b. Any assignment under this contract shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing.

On each invoice or voucher submitted for payment under this contract to which any assignment applies and for which direct payment thereof is to be made to as assignee, the Contractor shall identify the assignee by name and complete address and shall acknowledge the validity of the assignment and the right of the named assignee to receive payment in the amount invoiced or vouchered.

CHANGES (NAFI 1012.1 – 4 Nov 2013) [For use in solicitations and fixed-price contracts for supplies.]

a. The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this Contract in any one or more of the following:

(1) If the requirement is for supplies and/or services: drawings, designs, or specifications; method of shipment or packing; description of services to be performed;

time of performance (i.e., hours of the day, days of the week, etc.); place of delivery or place of performance of services.

(2) If the requirement is for concession services (including public private ventures):

specifications (including drawings and designs); method or manner of performance of work; NAFI-furnished facilities, equipment, materials, services, or site; and/or directing acceleration in the performance of work.

(3) If the requirement is for transportation services: specifications; work or services;

place of origin; place of delivery; tonnage to be shipped; and/or amount of NAFI-furnished property.

b. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this Contract, whether or not changed by the order, the Contracting Officer will make an equitable adjustment in the Contract price, the delivery schedule, or both, and modify the Contract.

c. The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order; however, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the Contract.

d. If the Contractor’s proposal includes the cost of property made obsolete or excess by the change, the Contracting Officer shall have the right to prescribe the manner of the disposition of the property.

e. If the requirement is for architect-engineer or other professional services, no services for which an additional cost or fee will be charged by the Contractor shall be furnished without the prior written authorization of the Contracting Officer.

f. If the requirement is for concession services (including public private ventures), the Contractor shall notify the Contracting Officer in writing within seven (7) days of the occurrence of any event that the Contractor considers a change to the Contract that has not been authorized in writing signed by the Contracting Officer. The Contractor will be deemed to have waived any right to an adjustment if timely notice is not provided to the Contracting Officer as required herein. For purposes of this clause, "event" shall include, but not be limited to, an order or direction by a NAFI or other Government official, a contested contract interpretation, interference with or interruption of the contract work, or any other event that increases the cost or time to perform the contract as compared to the cost or time that would be required if the Contractor performed the Contract in accordance with its terms.

g. Failure to agree to any adjustment shall be a “claim” under either the “Claims” or “Disputes Resolution” clause of this Contract; however, nothing in this clause shall excuse the Contractor from proceeding with the Contract as changed.

CHANGES AND CHANGED CONDITIONS (NAFI 1012.2 – 4 Nov 2013) [Use this clause applies only to contracts for construction, when the contract amount is not expected to exceed the simplified acquisition threshold.]

a. The Contracting Officer may, in writing, order changes in the drawings and specifications within the general scope of the Contract.

b. The Contractor shall promptly notify the Contracting Officer, in writing, of subsurface or latent physical conditions differing materially from those indicated in this Contract or unknown unusual physical conditions at the site before proceeding with the work.

c. If changes under paragraph “a.” or conditions under paragraph “b.” increase or decrease the cost of, or time required for performing the work, the Contracting Officer may be requested to make an equitable adjustment (see paragraph “d.”) upon submittal of a “proposal for adjustment” (hereafter referred to as proposal) by the Contractor before final payment under the Contract.

d. The Contracting Officer may not make an equitable adjustment under paragraph “a.” unless—

(1) The Contractor has submitted and the Contracting Officer has received the required written notice; or

(2) The Contracting Officer waives the requirement for the written notice.

e. If the requirement is for architect-engineer or other professional services, no services for which an additional cost or fee will be charged by the Contractor shall be furnished without the prior written authorization of the Contracting Officer.

f. Failure to agree to any adjustment shall be a “claim” under either the “Claims” or “Disputes Resolution” clause of this Contract; however, nothing in this clause shall excuse the Contractor from proceeding with the Contract as changed.

SOCIAL RESPONSIBILITY AND LABOR STANDARDS – NONRESALE (NAFI 1013 –

12 MAY 2014)

By performance of this contract, the Contractor and any subcontractors shall comply with the Social Responsibility requirements addressed herein:

a. Combating Trafficking in Persons (CTIP). Applicable to all contracts, regardless of location performed.

(1) Definitions. The meanings of the terms coercion, commercial sex act, debt bondage, forced labor, involuntary servitude, severe forms of trafficking in persons, and sex trafficking are as is defined in the Trafficking Victims Protection Act of 2000, Public Law 106-386, October 28, 2000 <http://www.state.gov/documents/organization/10492.pdf >.

(2) Policy. DoD NAFIs have adopted the U.S. Government’s zero tolerance policy regarding trafficking in persons. During the contract period of performance, Contractor and contractor employees shall not:

(a) Engage in severe forms of trafficking;

(b) Procure commercial sex; or

(c) Use forced labor.

(3) Contractor Requirements. Contractor shall:

(a) Notify its employees of: Zero tolerance policy described in this clause; and actions that will be taken against employees for violations of this policy. (Such actions may include, but are not limited to, removal from the contract, reduction in benefits, or termination of employment); and

(b) Take appropriate action against employees or subcontractors that violate policy in paragraph a.(2) of this clause, up to and including termination.

(4) Notification. Contractor shall inform the Contracting Officer immediately of:

(a) Any information it receives from any source (including host country law enforcement) alleging a Contractor employee, subcontractor, or subcontractor employee has engaged in conduct that violates this policy; and

(b) Any actions taken against Contractor employees, subcontractors, or subcontractor employees pursuant to this clause.

(5) Remedies. In addition to other remedies available to the NAFI, Contractor's failure to comply with the requirements of this clause may result in:

(a) Requiring the Contractor to remove a Contractor employee or employees from performance under the contract;

(b) Requiring the Contractor to terminate a subcontract;

(c) Suspension of contract or fee payments;

(d) Termination of the contract for default or cause, in accordance with the termination clause of this contract; and/or

(e) Suspension or debarment.

(6) Mitigating Factors. The Contracting Officer may consider whether Contractor had a Trafficking in Persons awareness program at the time of any violation as a mitigating factor when determining remedies.

(7) Additional information about Trafficking in Persons and examples of awareness programs can be found on the U.S. Department of State, Office to Monitor and Combat Trafficking in Persons (OMCTP) website < http://www.state.gov/j/tip/index.htm >.

b. Labor; Work Hours, Compensation and Benefits; Discipline; Freedom of Association;

Discrimination; and Workspaces. Applicable to all contracts, regardless of location performed.

(1) Contractor Requirements.

(a) Labor. Contractor shall not employ any person under the age of 14 years, unless local and national laws stipulates a higher age for work or mandatory schooling, in which case the higher age will apply. Contractor shall not use force or other compulsory labor in performance of this contract, nor require employees to lodge "deposits" or identity papers upon commencing employment with the Contractor or subcontractor.

(b) Working Hours, Compensation and Benefits. Contractor shall comply with applicable local and national laws on maximum daily/weekly working hours.

Contractor shall ensure that wages paid for a standard workweek are consistent with local national laws.

(c) Safe and Healthy Workplace. Contractors shall provide employees with a safe and healthy workplace in compliance with all local and national laws.

(d) Discipline. Contractor shall not engage in or support the use of corporal punishment, mental or physical coercion, verbal abuse, or withholding passports or travel documents.

(e) Freedom of Association & Right to Collective Bargaining. Contractor shall respect the right of all employees to form and join trade unions of their choice, consistent with prevailing local and national laws and to bargain collectively without any activity that impedes or suppresses freedom of association.

Contractors shall ensure that representatives of such employees are not subject to discrimination and that such representatives have access to their members in the workplace.

(f) Discrimination. Contractors shall comply consistently with local and national laws with regard to discrimination in hiring, compensation, access to training, promotion, termination, or retirement based on race, caste, national origin, religion, disability, gender, sexual orientation, maternity status, union membership, or political affiliation.

c. U.S. Labor Statutes.

(1) Applicable to all contracts, performed within the United States. Where a statute specifies where within the U.S. it applies, the definition in the statute supersedes definitions in this clause.

(2) Definitions.

(a) “United States” in general means the 50 States, the District of Columbia, Outlying Areas, and Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act (43 U.S.C. 1331, et seq.), but does not include any other place subject to U.S. jurisdiction or any U.S. base or possession in a foreign country (29 CFR 4.112).

(b) “Outlying Areas” means: (1) Commonwealths of Puerto Rico and The Northern Mariana Islands; (2) Territories: American Samoa, Guam, and U.S.

Virgin Islands; and (3) Minor outlying islands (Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll and Wake Atoll).

(3) The Contractor shall:

(a) Comply with all applicable statutes to include, but not limited to the Fair Labor standards Act (FLSA), Service Contract Act (SCA) and Davis Bacon Act

(DBA).

(b) Provide subcontractor names and performance addressees within 24 hours, if requested by the Contracting Officer.

(c) Have an effective program for monitoring compliance with applicable statutes and as applicable ensure U.S. Department of Labor (DoL) Wage and Hour Division posters in workers’ language are posted at U.S. work sites.

(d) Ensure compliance with all applicable hours, wages, labor relations (including collective bargaining), workmen’s compensation, working conditions and other matters pertaining to labor standards of the country, or political matters pertaining to labor standards of the country, or political subdivision thereof, where Contract is performed.

d. To ensure full compliance with requirements of this clause, the NAFI (or third party designated by the NAFI) has the right to conduct announced or unannounced inspections of any site utilized by the Contractor to perform this Contract.

e. Subcontracts. Contractor shall include this clause in all subcontracts.

RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (NAFI 1014 – 17 Nov 2014) [For use in solicitations and contracts unless an exception applies. (Please note that exceptions are rare and may need to be approved on a case by case basis.)]

a. Except as authorized by the Office of Foreign Assets Control (OFAC) in the Department of the Treasury, the Contractor shall not acquire, for use in the performance of this contract, any supplies or services if any proclamation, Executive order, or statute administered by OFAC, or if OFAC's implementing regulations at 31 CFR Chapter V, would prohibit such a transaction by a person subject to the jurisdiction of the United States.

b. Lists of countries, entities and individuals subject to economic sanctions are included in OFAC's List of Specially Designated Nationals and Blocked Persons at http://www.treasury.gov/resourcecenter/ sanctions. More information about these restrictions, as well as updates, is available in the OFAC's regulations at 31 CFR Chapter V and/or on OFAC's website at http://www.treas.gov/offices/enforcement/ofac.

c. The Contractor shall insert this clause in all subcontracts.

http://www.treasury.gov/resourcecenter/ http://www.treas.gov/offices/enforcement/ofac

DISCOUNTS FOR PROMPT PAYMENT – EQUIPMENT AND SUPPLIES (NAFI 1015.1

– April 28, 2014) [For use with equipment and supply contracts.]

a. Discounts for prompt payment will not be considered in the evaluation of offers; however, any offered discount will form a part of the contract, and will be taken if payment is made within the discount period indicated in the contract. If a discount is offered, Offeror shall include prompt payment discounts on individual invoices.

b. In connection with any discount offered for prompt payment, time shall be computed upon receipt of a proper invoice by the designated billing office. Refer to the Invoice clause for the definition of a proper invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date that appears on the payment check or, for an electronic funds transfer, the specified payment date. When the discount date falls on a Saturday, Sunday, or legal holiday when Federal Government offices are closed and NAFI/Government financial management activities are not expected to be conducted, payment may be made on the following business day.

PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (NAFI 1015.2 – April 28, 2014) [For use with construction contracts.]

a. Notwithstanding any other payment clause in this contract, the NAFI will make invoice payments and contract financing payments under the terms and conditions specified in this clause. Payment shall be considered as being made on the day a check is dated or the date of an electronic funds transfer. All days referred to in this clause are calendar days, unless otherwise specified. (However, see paragraph (a)(3) concerning payments due on Saturdays, Sundays, and legal holidays).

(1) Invoice Payments. – Types of invoice payments. For purposes of this clause, there are several types of invoice payments, which may occur under this contract, as follows:

(a) Progress payments, if provided for elsewhere in this contract and not more frequently than monthly, based on Contracting Officer approval of the estimated amount and value of work or services performed, including payments for reaching milestones in any project:

(i) The due date for making such payments shall be 14 days after receipt of the payment request by the designated billing office. If the designated billing office fails to annotate the payment request with the actual date of receipt at the time of receipt, the payment due date shall be the 14th day after the date the Contractor's payment request, provided a proper payment request is received and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

(ii) The due date for payment of any amounts retained by the Contracting Officer in accordance with the clause entitled, Payments Under Fixed- Price Construction Contracts, shall be as specified in the contract or, if not specified, 30 days after approval for release to the Contractor by the Contracting Officer.

(b) Final payments based on completion and acceptance of all work and presentation of release of all claims against the NAFI arising by virtue of the contract, and payments for partial deliveries that have been accepted by the NAFI (e.g., each separate building, public work, or other division of the contract for which the price is stated separately in the contract):

(i) The due date for making such payments shall be either the 30th day after receipt by the designated billing office of a proper invoice from the Contractor, or the 30th day after NAFI acceptance of the work or services completed by the Contractor, whichever is later. If the designated billing office fails to annotate the invoice with the date of actual receipt, the invoice payment due date shall be deemed to be the 30th day after the date the Contractor's invoice, provided a proper invoice is received and there is no disagreement over quantity, quality, or Contractor compliance with contract requirements.

(ii) On a final invoice where the payment amount is subject to contract settlement actions (e.g., release of claims), acceptance shall be deemed to have occurred on the effective date of the contract settlement.

(2) Contractor’s invoice. The contractor shall prepare and submit invoices to the designated billing office specified in the contract. A proper invoice must include the items listed in subdivisions a.(2)(a) through a.(2)(i) of this clause. If the invoice does not comply with these requirements, it shall be returned within 7 days after the date the designated billing office received the invoice, with a statement of the reasons why it is not a proper invoice. Untimely notification will be taken into account in computing any interest penalty owed the contractor in the manner described in subparagraph a.(4) of this clause.

(a) Name and address of the Contractor.

(b) Invoice date and identification number. (The contractor is encouraged to date invoices as close as possible to the date of mailing or transmission and to assign an identification number to each invoice).

(c) Contract number or other authorization for work or services performed (including order number and contract line item number).

(d) Description of work or services performed.

(e) Delivery and payment terms (e.g., prompt payment discount terms).

(f) Name and address of Contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

(g) Name (where practicable), title, phone number, and mailing address of person to be notified in event of a defective invoice.

(h) For payments described in subdivision (a)(1)(i) of this clause, substantiation of the amounts requested and certification in accordance with the requirements of the clause entitled Payments Under Fixed-Price Construction Contracts.

(i) Any other information or documentation required by the contract.

(3) Interest penalty. An interest penalty shall be paid automatically by the designated payment office, without request from the Contractor, if payment is not made by the due date and the conditions listed in subdivisions (a)(3)(i) through (a)(3)(iii) of this clause are met, if applicable. However, when the due date falls on a Saturday, Sunday, or legal holiday when Federal Government offices are closed and NAFI business is not expected to be conducted, payment may be made on the following business day without incurring a late payment interest penalty.

(a) The designated billing office received a proper invoice.

(b) A receiving report or other NAFI documentation authorizing payment was processed and there was no disagreement over quantity, quality, Contractor compliance with any contract term or condition, or requested progress payment amount.

(c) In the case of a final invoice for any balance of funds due the Contractor for work or services performed, the amount was not subject to further contract settlement actions between the NAFI and the Contractor.

(4) Computing penalty amount. The interest penalty shall be at the rate established by the Secretary of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611, however other provisions of the Act are not applicable to NAFIs - see NAFI 1003 Claims Clause) that is in effect on the day after the due date, except where the interest penalty is prescribed by other governmental authority (e.g., tariffs). This rate is referred to as the "Renegotiation Board Interest Rate," and it is published in the Federal Register semiannually on or about January 1 and July 1. The interest penalty shall accrue daily on the invoice principle payment amount approved by the NAFI until the payment date of such approved principal amount; and will be compounded in 30-day increments inclusive from the first day after the due date through the payment date. That is, interest accrued at the end of any 30-day period will be added to the approved invoice principle payment amount and be subject to interest penalties if not paid in the succeeding 30-day period. If the designated billing office failed to notify the Contractor of a defective invoice within the periods prescribed in subparagraph a.(2) of this clause, the due date on the corrected invoice will be adjusted by subtracting from such date the number of days taken beyond the prescribed notification of defects period. Any interest penalty owed the Contractor will be based on this adjusted due date. Adjustments will be made by the designated payment office for errors in calculating interest penalties.

(a) For the sole purpose of computing an interest penalty that might be due the Contractor for payments described in subdivision (a)(1)(ii) of this clause, NAFI acceptance or approval shall be deemed to have occurred constructively on the 7th day after the Contractor has completed the work or services in accordance with the terms and conditions of the contract. In the event that actual acceptance or approval occurs within the constructive acceptance or approval period, the determination of an interest penalty shall be based on the actual date of acceptance or approval. Constructive acceptance or constructive approval requirements do not apply if there is a disagreement over quantity, quality, or Contractor compliance with a contract provision. These requirements also do not compel NAFI officials to accept work or services, approve Contractor estimates, perform contract administration functions, or make payment prior to fulfilling their responsibilities.

(b) The following periods of time will not be included in the determination of an interest penalty:

(i) The period taken to notify the Contractor of defects in invoices submitted to the NAFI, but this may not exceed 7 days.

(ii) The period between the defects notice and resubmission of the corrected invoice by the Contractor.

(iii) For incorrect electronic funds transfer (EFT) information, in accordance with the EFT clause of this contract.

(c) Interest penalties will not continue to accrue after the filing of a claim for such penalties under the Claims clause, or for more than 1 year. Interest penalties of less than $1.00 need not be paid.

(d) Interest penalties are not required on payment delays due to disagreement between the NAFI and the Contractor over the payment amount or other issues involving contract compliance, or on amounts temporarily withheld or retained in accordance with the terms of the contract. Claims involving disputes, and any interest that may be payable, will be resolved in accordance with the Claims

(5) Prompt payment discounts. An interest penalty shall also be paid automatically by the designated payment office, without request from the Contractor, if a discount for prompt payment is taken improperly. The interest penalty will be calculated on the amount of discount taken for the period beginning with the first day after the end of the discount period through the date when the Contractor is paid.

(6) Additional interest penalty.

(a) A penalty amount, calculated in accordance with subdivision (a)(6)(iii) of this clause, shall be paid in addition to the interest penalty amount if the Contractor―

(i) Is owed an interest penalty of $1 or more;

(ii) Is not paid the interest penalty within 10 days after the date the invoice amount is paid; and

(iii) Makes a written demand to the designated payment office for additional penalty payment, in accordance with subdivision (a)(6)(ii) of this clause, postmarked no later than 40 days after the date the invoice amount is paid.

(b)

(i) Contractors shall support written demands for additional penalty payments with the following data. No additional data shall be required. Contractors shall―

1. Specifically assert that late payment interest is due under a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required;

2. Attach a copy of the invoice on which the unpaid late payment interest was due; and

3. State that payment of the principal has been received, including the date of receipt.

(ii) Demands must be postmarked on or before the 40th day after payment was made, except that--

1. If the postmark is illegible or nonexistent, the demand must have been received and annotated with the date of receipt by the designated payment office on or before the 40th day after payment was made; or

2. If the postmark is illegible or nonexistent and the designated payment office fails to make the required annotation, the demand's validity will be determined by the date the Contractor has placed on the demand; provided such date is no later than the 40th day after payment was made.

(c)

(i) The additional penalty shall be equal to 100 percent of any original late payment interest penalty except―

1. The additional penalty shall not exceed $5,000;

2. The additional penalty shall never be less than $25; and

3. No additional penalty is owed if the amount of the underlying interest penalty is less than $1.

(ii) If the interest penalty ceases to accrue in accordance with the limits stated in subdivision a.(4)(c) of this clause, the amount of the additional penalty shall be calculated on the amount of interest penalty that would have accrued in the absence of these limits, subject to the overall limits on the additional penalty specified in subdivision a)(6)(c)(i) of this clause.

(iii) For determining the maximum and minimum additional penalties, the test shall be the interest penalty due on each separate payment made for each separate contract. The maximum and minimum additional penalty shall not be based upon individual invoices unless the invoices are paid separately. Where payments are consolidated for disbursing purposes, the maximum and minimum additional penalty determination shall be made separately for each contract therein.

(iv) The additional penalty does not apply to payments regulated by other Government regulations (e.g., payments under utility contracts subject to tariffs and regulation).

b. Contract financing payments—

(1) Due dates for recurring financing payments. If this contract provides for contract financing, requests for payment shall be submitted to the designated billing office as specified in this contract or as directed by the Contracting Officer. Contract financing payments shall be made on the [insert day as prescribed by Agency head; if not prescribed, insert 30th day] day after receipt of a proper contract-financing request by the designated billing office. In the event that an audit or other review of a specific financing request is required to ensure compliance with the terms and conditions of the contract, the designated payment office is not compelled to make payment by the due date specified.

(2) Due dates for other contract financing. For advance payments, loans, or other arrangements that do not involve recurring submissions of contract financing requests, payment shall be made in accordance with the corresponding contract terms or as directed by the Contracting Officer.

(3) Interest penalty not applicable. Contract financing payments shall not be assessed an interest penalty for payment delays.

c. Subcontract clause requirements. The Contractor shall include in each subcontract for property or services (including a material supplier) for the purpose of performing this contract the following:

(1) Prompt payment for subcontractors. A payment clause that obligates the Contractor to pay the subcontractor for satisfactory performance under its subcontract not later than 7 days from receipt of payment out of such amounts as are paid to the Contractor under this contract.

(2) Interest for subcontractors. An interest penalty clause that obligates the Contractor to pay to the subcontractor an interest penalty for each payment not made in accordance with the payment clause―

(a) For the period beginning on the day after the required payment date and ending on the date on which payment of the amount due is made; and

(b) Computed at the rate of interest established by the Secretary of the Treasury, and published in the Federal Register, for interest payments under section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) (otherwise CDA does not apply to this contract) in effect at the time the Contractor accrues the obligation to pay an interest penalty.

(3) Subcontractor clause flowdown. A clause requiring each subcontractor to include a payment clause and an interest penalty clause conforming to the standards…