New Solicitation - WC TPA Services Sections B-D.docx

Contract # 89303919CEM000015 DOE-HANFORD Workers' Compensation Third Party Administrator Section D Documents, Exhibits, Attachments

SECTION B

CONTINUATION OF 1449 - STATEMENT OF WORK

B.1 INTRODUCTION

The purpose of the Workers' Compensation Program at the DOE-Hanford Site is to provide Worker’s Compensation coverage and benefits to specified Contractor employees in accordance with the Washington Industrial Insurance Act, as codified in the Revised Code of Washington (RCW), Title 51, and all other applicable laws and regulations. The U.S. Department of Energy Hanford (DOE-Hanford) is a self-insured employer for the purposes of Washington State Industrial Insurance. The program is administered on behalf of DOE-Hanford through a contract with a third-party administrator that processes all claims for which DOE-Hanford is the responsible insurer. This is a firm fixed price contract for Worker’s Compensation claims administrative services with a fixed hourly rate element for the document support to the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

The Contractor will provide claims processing services for covered site Contractors in accordance with this Statement of Work (SOW), RCW 51, and all other applicable laws and regulations, including Washington Administrative Code (WAC), Title 296, and the Washington State Department of Labor and Industries (L&I) Claims Adjudication Guidelines, as amended or revised.

The Contractor shall furnish all personnel, facilities, equipment, materials, supplies, supervision, transportation, training, electronic claims tracking system and records system, option for injured worker portal, and submit documents, and interactive and other items necessary to accomplish the work under this contract.

B.2 PERFORMANCE REQUIREMENTS

All actions necessary to accomplish the requirements of this contract are part of the fixed price contract for services. Payments made on behalf of DOE are outside of the fixed-price and are authorized for payment using the U.S. Treasury’s Automated Standard Application for Payment (ASAP) regular account.

The Contractor will utilize the ASAP regular account that provides next-day payment services to contracts approved for advance funding for the administration of Worker’s Compensation claims. Examples include claim specific expenses (such as payments for time loss, independent medical examinations, permanent partial disability awards, vocational rehabilitation consultation, etc.), other legal expenses as approved, pension payments, and all other amounts appropriately assessed by L&I, such as supplemental pension assessments and administrative assessments unless otherwise provided in the Memorandum of Understanding (MOU). The Contractor will not be required to provide funds to cover these payments. If, in the Contractor's judgment, the total amount of payments that will be disbursed from the account within the next 30 days will exceed the total funds available, the Contractor shall notify the Contracting Officer (CO) in writing. In no case will the Contractor issue checks in excess of the funds available.

Contractor will be responsible for the following:

1. Contract Line Item Number (CLIN) 0001: Transition Requirements/Plan – The Contractor shall complete transition within 60 days from the Notice to Proceed. The awarded Contractor shall finalize necessary arrangements and be prepared to assume performance of claims administration as detailed in this SOW upon completion of the transition period. Prior to the end of the transition period, the Contractor shall submit a declaration to DOE-Hanford indicating readiness to assume responsibility for the execution of the Contract. During the transition period, the predecessor Contractor will be responsible for all contract requirements including delivery of Worker’s Compensation claims administrative services.

2. CLIN X002: Claims Processing –

*Option years exercised in accordance with FAR 52.217-9 at the sole discretion of the government.

For claims processing, the Contractor shall perform the following tasks:

a. Claims Management Services The Contractor shall:

i. Perform the role of designated custodian of the master claims log as required by L&I, and distribute required forms to entities as directed by the Contracting Officer;

ii. Open and establish a claim file upon notice of an industrial injury or occupational disease, and provide notification to the cognizant DOE-Hanford Site Contractor within one business day;

iii. Use the claimant’s assigned DOE-Hanford Site Contractor unique business identifier code at the time of injury.

iv. Perform verbal Three-Point Contact by the assigned adjuster in accordance with applicable laws, but no later than within two business days of receipt of claim. Three-Point contact is with the Employee, Employer, and Medical Provider. Evidence of Three-Point Contact must be documented in the claim file;

v. Provide an information packet to claimant within two business days of receipt of claim, including:

· Notice of claim receipt letter;

· DOE-Hanford Worker’s Compensation Self-Insurance Card – specific information regarding claim number, employer, date of injury, claims adjuster, and the DOE-Hanford Workers’ Compensation Representative;

· Privacy Act Notice (DOE-Hanford specific);

· L&I’s A Guide to Workers’ Compensation Benefits;

· Information regarding the DOE-Hanford Workers’ Compensation website and Customer Feedback Tool;

vi. Regularly review all diaries for active claims and contact claimants within one business day of completion. All required contacts must be documented in the claim file. Diary reviews will be conducted as follows:

· Claims: a minimum of every 30 days;

· Claims with active time loss: a minimum of every 14 days;

vii. Maintain claim files in accordance with RCW 51, and all other applicable laws and regulations, including WAC 296, the L&I Claims Adjudication Guidelines, and DOE-Hanford records disposition schedules. All Worker’s Compensation claim files are property of DOE- Hanford and shall be maintained in a Privacy Act System of Records. Disposition of all records will be at the direction and discretion of DOE-Hanford;

viii. Ensure that all benefit payments are accompanied with an explanation of benefits to the injured worker or payee;

ix. Provide electronic banking/direct deposit as requested for claimants and service providers;

x. Provide one-week advance notice to the Contracting Officer and Program Manager prior to submitting a recommendation of denial to L&I;

xi. Provide immediate (within 24 hours) notice to DOE CO, Program Manager and DOE counsel of any notice of proposed or requested penalties by L&I.

xii. Ensure claimant travel is conducted in accordance with L&I and Federal Travel Regulations (FTR). Companion travel will be authorized in accordance with L&I travel regulations and applicable L&I guidance. Any exceptions to L&I and/or FTR must be approved in advance by the Contracting Officer

xiii. Review all claims and identify, at the earliest possible opportunity, fraudulent conduct by claimants, providers, or others. The Contractor shall be responsible for investigating any indication of fraudulent conduct. The Contractor shall notify the Contracting Officer of all possible fraud;

xiv. Provide cost containment programs, such as medical preferred provider organization, and a prescription drug cost containment network;

xv. Provide legal management and support including reviewing claim files and initiating or defending litigation, pursuant to the Contractor Legal Requirements (D.3) and the submitted Legal Management Plan (D.4); and

xvi. Provide support to a subsequent entity through transition as the outgoing Contractor. Continue to administer all claims and payments until the Contracting Officer advises in writing that all claims have been transferred to and assumed by a subsequent entity.

b. Program Management Requirements

i. Communication: The Contractor shall:

· Have strong written, verbal, interpersonal and responsive communication skills while providing a high level of respectful customer service; and

· Provide accurate, factual, and timely communication to, and coordination among the claimant, the attending physician, the covered DOE-Hanford Site Contractor Employer, the DOE-Hanford Occupational Medical Services Provider or Pacific Northwest National Laboratory Occupational Medical Services Provider, and any other entity involved in the management of a claim. Such information shall include information regarding the claimant’s work restrictions, disability status, and other information relating to the claimant’s ability to perform DOE-Hanford Site work.

ii. Customer Service: The Contractor shall:

· Meet with (in person, or online) claimants and appropriately authorized representatives as requested regarding claim specific information;

· Ensure claimant privacy is maintained in sharing any protected personal or personal health information;

· Ensure business hours are sufficient to provide services outlined in this SOW and are clearly communicated to the public and included on the DOE-Hanford Workers’ Compensation website;

· Provide a toll-free telephone line for claimants and other stakeholders. The telephone shall be answered by Contractor’s personnel during stated business hours;

· Ensure voice mail is available during non-business hours. The Contractor must respond to voice mail messages within 24 hours of receipt, or the next business day. Evidence of contact within 24 hours of receipt or the next business day must be documented in the claim file; and

· DOE-Hanford Workers’ Compensation Contractor Website will be maintained by the Contractor as approved by the Contracting Officer. The website should include regular communication to the public about significant milestones. Contact information for the Contractor, including phone number and email address links. Changes to the website content shall be approved in advance by the Contracting Officer.

· Update and maintain the content for the DOE-Hanford Workers’ Compensation website and Customer Feedback Tool. This tool must comply with the DOE Website SECB and Cyber Security. The purpose is to provide information to the workforce and obtain customer feedback.

iii.

· Comments received through the Customer Feedback Tool shall be categorized by the Contractor within two business days of receipt. Comment categories are:

· High Impact- Comments which, if substantiated, could lead to significant program outcomes, such as:

· Positive or negative change to claim adjudication timeline;

· Inappropriate claim allowance/denial recommendation;

· Incorrect benefit calculations;

· Claim suppression; or

· Breach of contract.

· Low Impact- Comments which, if substantiated, are not likely to lead to significant program outcomes;

· The Contractor shall respond to substantiated comments within ten business days of receipt;

· A summary of substantiated comments received, comment responses, the number and nature of any unsubstantiated comments, the status of any changes or improvements made in response to comments, and any trend analysis related to comments received shall be provided to the Contracting Officer on a monthly basis; and

· Individual comments, responses, and any backup documentation shall be made available to the Contracting Officer upon request.

iv. Integration with Other DOE-Hanford Contractors: The Contractor shall:

· Meet with (in person, or online) with DOE-Hanford Site Contractor Workers’ Compensation Representatives (WCRs) at a minimum monthly basis;

· Meet with (in person, or online) DOE-Hanford at a minimum of every other week regarding programmatic and claim specific information; and

· Meet with (in person, or online) the DOE-Hanford Workers’ Compensation Forum at a minimum monthly basis or as appropriate to encourage communication associated with services and support, resolve issues and concerns, and effectively anticipate emerging issues. The DOE-Hanford Workers’ Compensation Forum will include DOE-Hanford program manager, WCRs, DOE-Hanford Site Union Representatives, DOE-Hanford Workforce Engagement Center Representatives, and other stakeholders. Note the following:

· Meetings are not intended to discuss claim specific information;

· The Contractor will follow up with claimants separately, if requested, to discuss claim specific information; and

· Meeting notes and subsequent actions will be maintained by the Contractor.

c. Financial Management Requirements The Contractor shall:

i. Establish and utilize a dedicated bank account for all DOE-Hanford related business;

ii. Provide quarterly Banking Reconciliations to DOE-Hanford Finance;

iii. Provide Funds Request ASAP drawdown detail and backup documentation twice a month;

iv. Provide backup documentation for completion of semi-annual Check assessment;

v. Calculate/review the recommended reserve amount representing the total amount required to resolve all liabilities on a semi-annual basis, and provide notification of substantial reserve amount changes to DOE-Hanford Finance;

vi. Review, authorize, and issue payment as required in accordance with RCW 51, and all other applicable laws and regulations for claim specific expenses, other legal expenses as approved, pension payments, and all other amounts appropriately assessed by L&I, such as supplemental pension assessments and administrative assessments unless otherwise provided in the Memorandum of Understanding (MOU);

vii. Maintain a list of pensioners and perform variance analysis of quarterly pension payments. Verify that the pension invoice amount provided by L&I is consistent with the pension list, resolve any discrepancies, and submit payment recommendation with supporting documentation to DOE-Hanford Finance on a quarterly basis:

· Upon DOE approval, Contractor will make payment to L&I.

· Upon payment, Contractor will send formal correspondence to DOE-Hanford Finance containing evidence of payment;

viii. Obtain all information necessary to complete the Quarterly Report for Self-Insured Business form from the DOE-Hanford Site Contractors covered under the MOU; and

ix. Verify that the amount provided by L&I on the Quarterly Report for Self-Insured Business form matches the amount invoiced for pensions and resolve any discrepancies. Complete the Quarterly Report for Self-Insured Business form, and submit form and supporting documentation to DOE-Hanford Finance for approval:

· Upon approval, Contractor will make payment to L&I.

· Upon payment, Contractor will send formal correspondence to DOE-Hanford Finance containing evidence of payment.

d. Resolving Issues and Process Improvement The Contractor shall:

i. Document and implement a Quality Assurance Program (QAP) to be approved by the CO. Upon approval, the QAP will be incorporated in Attachment D.5. At a minimum, the QAP shall:

· Establish an organizational structure, functional responsibilities, levels of authority, and interfaces for those managing, performing, and assessing the work;

· Establish process(es) for resolution of problems and/or non-compliance, including any potential conflicts of interest that arise with regard to the handling of any claim(s);

· Establish internal policies and procedures for the claims administration process as related to the DOE-Hanford Workers’ Compensation Program, and review and update as needed; and

· Identify the causes of problems and include prevention of recurrence and process improvements as a part of corrective action planning;

ii. Review the QAP as appropriate, at least annually, and submit results to the Contracting Officer for information. Any changes to the QAP shall be submitted to the Contracting Officer for approval. Changes shall be approved before implementation by the Contractor unless otherwise directed by the Contracting Officer;

iii. Provide response to queries and trend analysis from the Contractor’s electronic claims system as requested by the Contracting Officer;

iv. Prepare appropriate responses to audits and inquiries of all regulatory agencies, reviews, or investigations, and other Contracting Officer requests; and

v. Notify and provide advice to the Contracting Officer on proposed or enacted changes in Worker’s Compensation statutory or regulatory requirements that may affect the DOE-Hanford Workers’ Compensation Program or the administration of claims, pensions, supplemental pensions, administrative assessment rates, etc.

3. CLIN X003: Records Requests for Energy Employees Occupational Illness Compensation Program Act (EEOICPA)- The Contractor shall provide all required labor and materials necessary to compile and forward an electronic copy of individual Worker’s Compensation records case files which have been requested by DOE-Hanford, in accordance with EEOICPA.

*Option years exercised in accordance with FAR 52.217-9 at the sole discretion of the government.

Records processing for EEOICPA information requests are as follows:

a. DOE-Hanford will periodically forward a list of EEOICPA claimants to the Contractor via electronic transfer site. The Contractor shall search all files and databases for records pertaining to the listed claimants and notify DOE-Hanford within five business days if the records exist.

b. The Contractor will compile copies of all individual case files. If information is withheld, the Contractor shall indicate the reason for withholding in its transmittal of records.

c. The Contractor shall forward the case files to DOE-Hanford in PDF format within 30 days from the date of the original request. The Contractor shall provide documentation that a search was conducted for each individual using established criterion along with a written description of the relevant record systems searched and the search criteria used (e.g., name, social security number, etc.).

d. If DOE-Hanford requests documentation in relationship to a notification by the Department of Labor that an EEOICPA claimant is in a terminal state, the Contractor shall upon receipt of the written notification, provide the requested documents within one business day, unless some extraordinary circumstances preclude that turnaround period.

B.3 OTHER CONTRACT REQUIREMENTS

1. Key Personnel

· The personnel listed below or elsewhere in this contract are considered essential to the work being performed under this contract and must be employed by the Contractor. Before removing, replacing, or diverting any of the listed or specified personnel, the Contractor must: (1) Notify the Contracting Officer within 30 days or as soon as practicable; (2) submit justification (including proposed personnel) in sufficient detail to permit evaluation of the impact on this Contract; and (3) obtain the Contracting Officer's written approval.

· The list of personnel may, with the consent of the contracting parties, be amended from time to time during the course of the contract to add or delete personnel.

· Unless approved in writing by the Contracting Officers, no Key Personnel position will remain unfilled by a permanent replacement for more than 30 days. Whenever, for any reason, one or more of the employees listed below is unavailable for assignment for work under the contract, the Contractor shall, with the approval of the Contracting Officer, replace such employee with an employee of substantially equal abilities and qualifications as compared to the incumbent employee, giving serious consideration to the benefits derived from utilizing the talents and capabilities of a diverse workforce. This clause may be amended from time to time during the course of the contract to either add or delete personnel, as appropriate.

· Key personnel for services are as follows and will be inserted in the below table from successful Offeror upon award, United States Citizenship Required

Name

Title

Principal Manager

Washington State Certified Claim Program Manager

Other Key personnel as Proposed

· The Contractor shall immediately notify the Contracting Officer if the Contractor deems that immediate removal or suspension of any member of Key Personnel is necessary to fulfill its obligation to maintain satisfactory standards of employee competency, conduct, and integrity. The Contractor may remove or suspend such person at once, although the Contractor must notify the Contracting Officer prior to or concurrently with such action.

2. Position Qualifications

The Contractor shall provide personnel for the performance of this contract that satisfy the key requirements below, except as the Contracting Officer may otherwise authorize.

The requirements for key personnel are as follows:

· Principal Manager: The Principal Manager, who has overall management, operating, and contracting authority for the Contractor, shall have a minimum of five years of recent management and supervisory experience in a similar position wherein responsibilities entailed managerial/supervisory oversight of the type of work scope described in the SOW. United States Citizen

· Washington State Certified Claim Program Manager: The Washington State Certified Claim Program Manager shall have a minimum of five years of recent management and supervisory experience in a similar position wherein responsibilities entailed oversight of the type of work scope described in the SOW; proficiency in both oral and written communication with a wide variety of personalities and stakeholders to deliver trainings, resolve disputes and write clear, concise, and effective emails, correspondence, training materials, procedural documents and reports; and ability to resolve high visibility/high pressure scenarios in a diplomatic and professional manner. United States Citizen

3. Fines, Penalties and Erroneous Payments

· In the event the Contractor is notified that DOE-Hanford will be assessed with a fine or penalty by the State of Washington pursuant to the Revised Code of Washington (RCW) Title 51, or any other entity the Contractor will notify DOE-Hanford within 24 hours of receiving that notice. DOE-Hanford determines that the penalty was assessed because of action or inaction on the part of the Contractor that was neither required by the contract nor by Contracting Officer direction, the Contractor shall be liable to DOE-Hanford for the penalty amount.

· The Contractor shall be responsible and held liable for erroneous payments and overpayment caused by the Contractor. The Contractor will also be responsible and held liable if it causes DOE-Hanford to make erroneous payments or overpayments.

· The Contractor shall off-set the amount of fines, penalties and erroneous payments against any amounts due. If there are no outstanding invoices, the Contractor shall reimburse DOE- Hanford for the amount of the penalty. DOE-Hanford will not reimburse the Contractor for fines or penalties imposed against the Contractor.

B.4 BILLING INSTRUCTIONS

Contractor shall use Standard Form 1034, Public Voucher for Purchases and Services Other than Personal, when requesting payment for work performed under the contract.

Contractor shall submit vouchers electronically through the Oak Ridge Financial Service Center's (ORFSC) Vendor Inquiry Payment Electronic Reporting System (VIPERS). VIPERS allows vendors to submit vouchers, attach supporting documentation and check the payment status of any voucher submitted to the DOE. To obtain access to and use VIPERS, please visit the web page at https://vipers.doe.gov. Detailed instructions on how to enroll and use the system are provided on the web page. The submission of vouchers electronically will reduce correspondence and will facilitate prompt payment to the Contractor. Do not submit a paper copy of the voucher.

Contractor shall submit a Performance Requirements Summary (PRS) with each certified invoice as detailed in Attachment D.1.

Solicitation # 89303923REM00008 DOE-Hanford Workers' Compensation Third Party Administrator Section B Continuation of 1449 - Statement of Work

Performance based payments will be provided for CLIN X002 at one twelfth of the awarded firm fixed price per item. The final performance-based payment of each item is subject to settlement for contract closeout as applicable.

NOTE: “Day” means, unless otherwise specified, a calendar day

SECTION C

CONTRACT CLAUSES

52.212-4 Contract Terms and Conditions -- Commercial Items. (December 2022)

52.212-4 Contract Terms and Conditions -- Commercial Items. Alternate I (Nov 2021)

Addendum to 52.212-4:

52.204-13 System for Award Management Maintenance. (Oct 2018)

52.204-19 Incorporation by Reference of Representations and Certifications. (Dec 2014)

52.204-21 Basic Safeguarding of Covered Contractor Information Systems. (Nov 2021)

a) Definitions. As used in this clause— Covered Contractor information system means an information system that is owned or operated by a Contractor that processes, stores, or transmits Federal contract information.

Federal contract information means information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public websites) or simple transactional information, such as necessary to process payments.

Information means any communication or representation of knowledge such as facts, data, or opinions, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual (Committee on National Security Systems Instruction (CNSSI) 4009).

Information system means a discrete set of information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of information ( 44 U.S.C. 3502).

Safeguarding means measures or controls that are prescribed to protect information systems.

(b) Safeguarding requirements and procedures.

(1) The Contractor shall apply the following basic safeguarding requirements and procedures to protect covered Contractor information systems. Requirements and procedures for basic safeguarding of covered Contractor information systems shall include, at a minimum, the following security controls:

(i) Limit information system access to authorized users, processes acting on behalf of authorized users, or devices (including other information systems).

(ii) Limit information system access to the types of transactions and functions that authorized users are permitted to execute.

(iii) Verify and control/limit connections to and use of external information systems.

(iv) Control information posted or processed on publicly accessible information systems.

(v) Identify information system users, processes acting on behalf of users, or devices.

(vi) Authenticate (or verify) the identities of those users, processes, or devices, as a prerequisite to allowing access to organizational information systems.

(vii) Sanitize or destroy information system media containing Federal Contract Information before disposal or release for reuse.

(viii) Limit physical access to organizational information systems, equipment, and the respective operating environments to authorized individuals.

(ix) Escort visitors and monitor visitor activity; maintain audit logs of physical access; and control and manage physical access devices.

(x) Monitor, control, and protect organizational communications (i.e., information transmitted or received by organizational information systems) at the external boundaries and key internal boundaries of the information systems.

(xi) Implement subnetworks for publicly accessible system components that are physically or logically separated from internal networks.

(xii) Identify, report, and correct information and information system flaws in a timely manner.

(xiii) Provide protection from malicious code at appropriate locations within organizational information systems.

(xiv) Update malicious code protection mechanisms when new releases are available.

(xv) Perform periodic scans of the information system and real-time scans of files from external sources as files are downloaded, opened, or executed.

(2) Other requirements. This clause does not relieve the Contractor of any other specific safeguarding requirements specified by Federal agencies and departments relating to covered Contractor information systems generally or other Federal safeguarding requirements for controlled unclassified information (CUI) as established by Executive Order 13556.

(c) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (c), in subcontracts under this contract (including subcontracts for the acquisition of commercial products or commercial services, other than commercially available off-the-shelf items), in which the Subcontractor may have Federal contract information residing in or transiting through its information system.

(End of clause)

52.209-9 Updates of Publicly Available Information Regarding Responsibility Matters. (Oct 2018)

52.209-10 Prohibition on Contracting with Inverted Domestic Corporations. (Nov 2015)

52.216-31 Time-and-Materials/Labor-Hour Proposal Requirements—Commercial Item Acquisition. (Nov 2021) 52.217-8 Option to Extend Services. (Nov 1999)

The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer may exercise the option by written notice to the Contractor within ten (10) days.

(End of clause) 52.217-9 Option to Extend the Term of the Contract. (Mar 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within thirty (30) days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least thirty (30) days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed five years.

(End of clause)

52.225-13 Restrictions on Certain Foreign Purchases. (Feb 2021)

52.229-3 Federal, State, and Local Taxes. (Feb 2013)

52.232-18 Availability of Funds. (Apr 1984)

52.232-32 Performance-Based Payments. (Apr 2012)

a) Amount of payments and limitations on payments. Subject to such other limitations and conditions as are specified in this contract and this clause, the amount of payments and limitations on payments shall be specified in the contract’s description of the basis for payment.

(b) Contractor request for performance-based payment. The Contractor may submit requests for payment of performance-based payments not more frequently than monthly, in a form and manner acceptable to the Contracting Officer. Unless otherwise authorized by the Contracting Officer, all performance-based payments in any period for which payment is being requested shall be included in a single request, appropriately itemized, and totaled. The Contractor’s request shall contain the information and certification detailed in paragraphs (l) and (m) of this clause.

(c) Approval and payment of requests.

(1) The Contractor shall not be entitled to payment of a request for performance-based payment prior to successful accomplishment of the event or performance criterion for which payment is requested. The Contracting Officer shall determine whether the event or performance criterion for which payment is requested has been successfully accomplished in accordance with the terms of the contract. The Contracting Officer may, at any time, require the Contractor to substantiate the successful performance of any event or performance criterion which has been or is represented as being payable.

(2) A payment under this performance-based payment clause is a contract financing payment under the Prompt Payment clause of this contract and not subject to the interest penalty provisions of the Prompt Payment Act. The designated payment office will pay approved requests on the _________ [Contracting Officer insert day as prescribed by agency head; if not prescribed, insert "30th"] day after receipt of the request for performance-based payment by the designated payment office. However, the designated payment office is not required to provide payment if the Contracting Officer requires substantiation as provided in paragraph (c)(1) of this clause or inquiries into the status of an event or performance criterion, or into any of the conditions listed in paragraph (e) of this clause, or into the Contractor certification. The payment period will not begin until the Contracting Officer approves the request.

(3) The approval by the Contracting Officer of a request for performance-based payment does not constitute an acceptance by the Government and does not excuse the Contractor from performance of obligations under this contract.

(d) Liquidation of performance-based payments.

(1) Performance-based finance amounts paid prior to payment for delivery of an item shall be liquidated by deducting a percentage or a designated dollar amount from the delivery payment. If the performance-based finance payments are on a delivery item basis, the liquidation amount for each such line item shall be the percent of that delivery item price that was previously paid under performance-based finance payments or the designated dollar amount. If the performance-based finance payments are on a whole contract basis, liquidation shall be by either predesignated liquidation amounts or a liquidation percentage.

(2) If at any time the amount of payments under this contract exceeds any limitation in this contract, the Contractor shall repay to the Government the excess. Unless otherwise determined by the Contracting Officer, such excess shall be credited as a reduction in the unliquidated performance-based payment balance(s), after adjustment of invoice payments and balances for any retroactive price adjustments.

(e) Reduction or suspension of performance-based payments. The Contracting Officer may reduce or suspend performance-based payments, liquidate performance-based payments by deduction from any payment under the contract, or take a combination of these actions after finding upon substantial evidence any of the following conditions:

(1) The Contractor failed to comply with any material requirement of this contract (which includes paragraphs (h) and (i) of this clause).

(2) Performance of this contract is endangered by the Contractor’s-

(i) Failure to make progress; or

(ii) Unsatisfactory financial condition.

(3) The Contractor is delinquent in payment of any Subcontractor or supplier under this contract in the ordinary course of business.

(f) Title.

(1) Title to the property described in this paragraph (f) shall vest in the Government. Vestiture shall be immediately upon the date of the first performance-based payment under this contract, for property acquired or produced before that date. Otherwise, vestiture shall occur when the property is or should have been allocable or properly chargeable to this contract.

(2) "Property," as used in this clause, includes all of the following described items acquired or produced by the Contractor that are or should be allocable or properly chargeable to this contract under sound and generally accepted accounting principles and practices:

(i) Parts, materials, inventories, and work in process;

(ii) Special tooling and special test equipment to which the Government is to acquire title;

(iii) Nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment and other similar manufacturing aids, title to which would not be obtained as special tooling under paragraph (f)(2)(ii) of this clause; and

(iv) Drawings and technical data, to the extent the Contractor or Subcontractors are required to deliver them to the Government by other clauses of this contract.

(3) Although title to property is in the Government under this clause, other applicable clauses of this contract (e.g., the termination clauses) shall determine the handling and disposition of the property.

(4) The Contractor may sell any scrap resulting from production under this contract, without requesting the Contracting Officer’s approval, provided that any significant reduction in the value of the property to which the Government has title under this clause is reported in writing to the Contracting Officer.

(5) In order to acquire for its own use or dispose of property to which title is vested in the Government under this clause, the Contractor shall obtain the Contracting Officer’s advance approval of the action and the terms. If approved, the basis for payment (the events or performance criteria) to which the property is related shall be deemed to be not in compliance with the terms of the contract and not payable (if the property is part of or needed for performance), and the Contractor shall refund the related performance-based payments in accordance with paragraph (d) of this clause.

(6) When the Contractor completes all of the obligations under this contract, including liquidation of all performance-based payments, title shall vest in the Contractor for all property (or the proceeds thereof) not-

(i) Delivered to, and accepted by, the Government under this contract; or

(ii) Incorporated in supplies delivered to, and accepted by, the Government under this contract and to which title is vested in the Government under this clause.

(7) The terms of this contract concerning liability for Government-furnished property shall not apply to property to which the Government acquired title solely under this clause.

(g) Risk of loss. Before delivery to and acceptance by the Government, the Contractor shall bear the risk of loss for property, the title to which vests in the Government under this clause, except to the extent the Government expressly assumes the risk. If any property is lost (see 45.101), the basis of payment (the events or performance criteria) to which the property is related shall be deemed to be not in compliance with the terms of the contract and not payable (if the property is part of or needed for performance), and the Contractor shall refund the related performance-based payments in accordance with paragraph (d) of this clause.

(h) Records and controls. The Contractor shall maintain records and controls adequate for administration of this clause. The Contractor shall have no entitlement to performance-based payments during any time the Contractor’s records or controls are determined by the Contracting Officer to be inadequate for administration of this clause.

(i) Reports and Government access. The Contractor shall promptly furnish reports, certificates, financial statements, and other pertinent information requested by the Contracting Officer for the administration of this clause and to determine that an event or other criterion prompting a financing payment has been successfully accomplished. The Contractor shall give the Government reasonable opportunity to examine and verify the Contractor’s records and to examine and verify the Contractor’s performance of this contract for administration of this clause.

(j) Special terms regarding default. If this contract is terminated under the Default clause, (1) the Contractor shall, on demand, repay to the Government the amount of unliquidated performance-based payments, and (2) title shall vest in the Contractor, on full liquidation of all performance-based payments, for all property for which the Government elects not to require delivery under the Default clause of this contract. The Government shall be liable for no payment except as provided by the Default clause.

(k) Reservation of rights.

(1) No payment or vesting of title under this clause shall-

(i) Excuse the Contractor from performance of obligations under this contract; or

(ii) Constitute a waiver of any of the rights or remedies of the parties under the contract.

(2) The Government’s rights and remedies under this clause-

(i) Shall not be exclusive, but rather shall be in addition to any other rights and remedies provided by law or this contract; and

(ii) Shall not be affected by delayed, partial, or omitted exercise of any right, remedy, power, or privilege, nor shall such exercise or any single exercise preclude or impair any further exercise under this clause or the exercise of any other right, power, or privilege of the Government.

(l) Content of Contractor’s request for performance-based payment. The Contractor’s request for performance-based payment shall contain the following:

(1) The name and address of the Contractor;

(2) The date of the request for performance-based payment;

(3) The contract number and/or other identifier of the contract or order under which the request is made;

(4) Such information and documentation as is required by the contract’s description of the basis for payment; and

(5) A certification by a Contractor official authorized to bind the Contractor, as specified in paragraph (m) of this clause.

(m) Content of Contractor's certification. As required in paragraph (l)(5) of this clause, the Contractor shall make the following certification in each request for performance-based payment:

I certify to the best of my knowledge and belief that-

(1) This request for performance-based payment is true and correct; this request (and attachments) has been prepared from the books and records of the Contractor, in accordance with the contract and the instructions of the Contracting Officer;

(2) (Except as reported in writing on __________), all payments to Subcontractors and suppliers under this contract have been paid, or will be paid, currently, when due in the ordinary course of business;

(3) There are no encumbrances (except as reported in writing on _________) against the property acquired or produced for, and allocated or properly chargeable to, the contract which would affect or impair the Government's title;

(4) There has been no materially adverse change in the financial condition of the Contractor since the submission by the Contractor to the Government of the most recent written information dated _____________; and

(5) After the making of this requested performance-based payment, the amount of all payments for each deliverable item for which performance-based payments have been requested will not exceed any limitation in the contract, and the amount of all payments under the contract will not exceed any limitation in the contract.

52.232-40 Providing Accelerated Payments to Small Business Subcontractors. (Mar 2023) 52.233-4 Applicable Law for Breach of Contract Claim. (Oct 2004) 52.237-3 Continuity of Services. (Jan 1991) 52.242-13 Bankruptcy. (Jul 1995) 52.252-2 Clauses Incorporated by Reference. (Feb 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this address:

https://www.acquisition.gov (End of Clause) DEAR 952.203-70 Whistleblower Protection for Contractor Employees. (DEC 2000)

(a) The Contractor shall comply with the requirements of "DOE Contractor Employee Protection Program" at 10 CFR part 708 for work performed on behalf of DOE directly related to activities at DOE-owned or-leased sites.

(b) The Contractor shall insert or have inserted the substance of this clause, including this paragraph (b), in subcontracts at all tiers, for subcontracts involving work performed on behalf of DOE directly related to activities at DOE-owned or leased sites.

(End of Clause)

DEAR 970.5204-3 Access to and Ownership of Records (OCT 2014)

(a) Government-owned records. Except as provided in paragraph (b) of this clause, all records acquired or generated by the Contractor in its performance of this contract, including records series described within the contract as Privacy Act systems of records, shall be the property of the Government and shall be maintained in accordance with 36 CFR, Chapter XII, Subchapter B, “Records Management.” The Contractor shall ensure records classified as Privacy Act system of records are maintained in accordance with FAR 52.224.2 “Privacy Act.”

(b) Contractor-owned records. The following records are considered the property of the Contractor and are not within the scope of paragraph (a) of this clause. [The contracting officer shall identify which of the following categories of records will be included in the clause, excluding records operated and maintained in DOE Privacy Act system of records].

(1) Employment-related records (such as worker's Compensation files; employee relations records, records on salary and employee benefits; drug testing records, labor negotiation records; records on ethics, employee concerns; records generated during the course of responding to allegations of research misconduct; records generated during other employee related investigations conducted under an expectation of confidentiality; employee assistance program records; and personnel and medical/health-related records and similar files), and non-employee patient medical/health-related records, excluding records operated and maintained by the Contractor in Privacy Act system of records. Employee-related systems of record may include, but are not limited to: Employee Relations Records (DOE-3), Personnel Records of Former Contractor Employees (DOE-5), Payroll and Leave Records (DOE-13), Report of Compensation (DOE-14), Personnel Medical Records (DOE-33), Employee Assistance Program (EAP) Records (DOE-34) and Personnel Radiation Exposure Records (DOE-35).

(2) Confidential Contractor financial information, internal corporate governance records and correspondence between the Contractor and other segments of the Contractor located away from the DOE facility (i.e., the Contractor's corporate headquarters);

(3) Records relating to any procurement action by the Contractor, except for records that under 48 CFR 970.5232-3 are described as the property of the Government; and

(4) Legal records, including legal opinions, litigation files, and documents covered by the attorney-client and attorney work product privileges; and

(5) The following categories of records maintained pursuant to the technology transfer clause of this contract:

(i) Executed license agreements, including exhibits or appendices containing information on royalties, royalty rates, other financial information, or commercialization plans, and all related documents, notes and correspondence.

(ii) The Contractor's protected Cooperative Research and Development Agreement (CRADA) information and appendices to a CRADA that contain licensing terms and conditions, or royalty or royalty rate information.

(iii) Patent, copyright, mask work, and trademark application files and related Contractor invention disclosures, documents and correspondence, where the Contractor has elected rights or has permission to assert rights and has not relinquished such rights or turned such rights over to the Government.

(c) Contract completion or termination. Upon contract completion or termination, the Contractor shall ensure final disposition of all Government-owned records to a Federal Record Center, the National Archives and Records Administration, to a successor Contractor, its designee, or other destinations, as directed by the Contracting Officer. Upon the request of the Government, the Contractor shall provide either the original Contractor-owned records or copies of the records identified in paragraph (b) of this clause, to DOE or its designees, including successor Contractors. Upon delivery, title to such records shall vest in DOE or its designees, and such records shall be protected in accordance with applicable federal laws (including the Privacy Act) as appropriate. If the Contractor chooses to provide its original Contractor-owned records to the Government or its designee, the Contractor shall retain future rights to access and copy such records as needed.

(d) Inspection, copying, and audit of records. All records acquired or generated by the Contractor under this contract in the possession of the Contractor, including those described at paragraph (b) of this clause, shall be subject to inspection, copying, and audit by the Government or its designees at all reasonable times, and the Contractor shall afford the Government or its designees reasonable facilities for such inspection, copying, and audit; provided, however, that upon request by the Contracting Officer, the Contractor shall deliver such records to a location specified by the Contracting Officer for inspection, copying, and audit. The Government or its designees shall use such records in accordance with applicable federal laws (including the Privacy Act), as appropriate.

(e) Applicability. This clause applies to all records created, received and maintained by the Contractor without regard to the date or origination of such records including all records acquired from a predecessor Contractor.

(f) Records maintenance and retention. Contractor shall create, maintain, safeguard, and disposition records in accordance with 36 CFR Chapter XII, Subchapter B, “Records…