Attachment_to_PSC_Contract.pdf

SECTION B

PRICES

B.1 PRICES

The contractor shall be paid at the following hourly labor rate: $TBD

B.2 LABOR-HOUR CONTRACTS

This is a labor-hour contract with an established hourly rate. OPIC shall be invoiced bi-weekly for only the actual hours worked. The Contractor shall never exceed the not-to-exceed dollar amounts established under this contract. Further, the Contractor shall notify the Contracting Officer when the costs the Contractor expects to incur under this contract, when added to all costs previously incurred, will exceed 75% of the estimated cost specified in the contract.

SECTION C

PERFORMANCE WORK STATEMENT

C.1 INTRODUCTION

OPIC is the U.S. Government's development finance institution. It mobilizes private capital to help solve critical developmental challenges and in doing so, advances U.S. foreign policy. OPIC works with the U.S.

private sector, it helps U.S. businesses gain footholds in emerging markets catalyzing revenues, jobs and growth opportunities both at home and abroad. OPIC achieves its mission by providing investors with financing, guaranties, political risk insurance, and support for private equity investment funds.

OPIC intends to procure personal service contractors to support its efforts under Power Africa in a number of functional areas of OPIC, including:

• the Global Energy Group (GEG),

• the Structured Finance and Insurance Department (SFI);

• the Portfolio Management Department (PMD),

• the Office of Investment Policy (OIP), and

• Legal Affairs (LA).

A. GEG and SFI require multiple professionals to structure complex international project financing in the energy sector. The work of the teams involves providing medium to long term funding through direct loans and loan guaranties for the respective projects in emerging markets. Project team members evaluate loan applications, perform detailed financial and legal due diligence, structure viable financings on a project finance basis, seek internal credit approvals and negotiate comprehensive structures for the long term success of the project.

B. PMD requires a specialist responsible for disbursements, monitoring and reporting on approved OPIC finance projects throughout the life of the project; monitoring and reporting on the Non-Honoring of the Sovereign Guarantee product for the Insurance Program; and monitoring reports on compliance issues. PM Specialists work to maximize return on distressed assets through financial restructuring and advocacy.

C. OIP requires an environmental and social impact specialist, who will conduct complex environmental and social assessments for energy projects under consideration for OPIC support in the area of debt finance, insurance, or equity finance. The specialist will also monitor previously approved projects for environmental and social compliance.

D. Legal Affairs requires a project finance attorney to provide legal support to finance teams in evaluating, negotiating, documenting, executing and monitoring new and existing financing and insurance transactions within the power sector of sub-Saharan Africa.

C.2 MAJOR DUTIES AND RESPONSIBILITIES

Duties for each of the above areas are provided as follows:

A. GEG and SFI:

GEG and SFI require multiple specialists at various levels of experience (and will be evaluated accordingly) to perform the following duties primarily focused on energy-related projects in Africa.

• Leading or participating on project teams in conducting in-depth analyses on new loan proposals in the energy sector in Africa to determine their financial, technical, economic, legal, market and political feasibility.

• Performing in-depth analyses of: the nature of the proposed projects; the viability of fuel supply or renewable resource; the suitability of the proposed technology, key risks related to the project’s contractual obligations requiring an evaluation of power purchase agreements, engineering, procurement, and construction contracts, interconnection agreements, et al.; the financial conditions of sponsors, equipment manufacturers, key contractors, and other project parties; country-related legal, macroeconomic and microeconomic risks; and other related factors.

• Building, auditing and testing financial models and performing sensitivity analyses as a basis for determining the robustness of the project and defining key covenants.

• Preparing loan papers for presentation to approval committees using strong writing capability.

• Negotiating with project sponsors, management, project contractors, and host country governments on

OPIC loan terms, OPIC policy requirements, collateral security and completion support.

• Managing resources for transactions by hiring, guiding, and monitoring outside consultants who will analyze and advise on project-related areas, including technical/engineering issues, the model, legal matters, the market, and insurance.

• Providing expert advice to other team members based upon deep knowledge of specific sub-sectors within the energy space.

B. PMD:

PMD requires one specialist to perform the following duties:

• Manage all phases of the project finance credit management process, from time of disbursement to repayment. Specific responsibilities include, but are not limited to: effective management of the credit relationships from project finance to project management; performs in-depth analysis of : the ongoing nature of the business venture, the financial statements provided by the project and the project sponsors, country related macroeconomic and microeconomic risks, risks related to project contractual obligations; creating/updating complex financial models for all projects, re-negotiating and documenting terms and conditions of existing finance agreements and other project documents;

monitoring financial covenants and project completion requirements, early detection of potentially adverse risk rated credits, developing and implementing credit actions designed to minimize OPIC’s loss in adversely risk-rated credits, recommending risk ratings, and determining whether opportunities for new financing exist for OPIC within existing portfolio.

• Manage relationships with senior project managers, OPIC and project-appointed consultants, sponsors, guarantors, other creditors, and other parties.

• Conduct evaluations of OPIC’s collateral in projects by ascertaining the nature of the collateral, its location, availability, current value, and sufficiency to cover OPIC’s financial risk.

• Conduct periodic site visits to examine the interim developing of projects and assess conformity with written documentation received during the period. Site visits encompass inquiries into all aspects of the operations in order to consider, review, and analyze the various potential impacts on the creditworthiness of projects and the companies.

• May assist the production departments in providing expansion financing to an existing client.

• Recommend new financing as necessary for “Criticized” assets to maximize OPIC’s opportunity for full collection of amounts owed.

• Perform duties that encompass management for an issue/area (region or sector). Assists in the development of policies and procedures related to project oversight and monitoring.

C. OIP

OIP requires a program expert in Energy Production, including thermal, geothermal, solar, wind and engine-driven power production; energy transmission; emissions control technology, including energy efficiency improvements, fuel specifications and pollution control technology. The expert will be required to complete environmental and social analyses of OPIC-assisted Projects, including:

• Identifying, collecting and providing in-depth analysis of relevant data concerning the potential impact of proposed projects on the environment of the host country and globally. Relevant data can include international and U.S. guidelines, standards, legal and regulatory restrictions relating to environmental protection, public health and safety, and other country-specific environmental information. Assessing the adequacy of plans to manage environmental and social performance throughout the life of projects, including those involving financial intermediaries. Identifying suggested improvements to the approaches to management of environmental and social risks that can lead to improved financial, social and environmental performance.

• Reviewing projects to assure social impacts are appropriately assessed and mitigated including review of community grievance procedures, resettlement action plans when necessary, treatment of indigenous populations, negotiations for land acquisition, and impacts on cultural heritage sites. Coordinating review with social impact experts as necessary.

• Providing guidance to prospective clients regarding the appropriate content, procedures and format for conducting and presenting Environmental and Social Impact Assessments, Initial Environmental and Social Audits, Environmental and Social Management Plans, and Environmental Remediation Plans, Annual Environmental Reports, Occupational health and Safety Plans and Third-Party Audits.

• Based on the Environmental and Social Assessments and discussions with clients on a technical level, prepares environmental and social clearances and other assessments, reviews or studies as required.

Makes recommendations to OPIC regarding project eligibility and conditionality on environmental and social grounds and specifies environmental and social conditions of default to be included in OPIC finance, insurance, and investment funds agreements.

• Identifies projects requiring additional technical studies as required and prepares the terms of reference for such assessment, using relevant World Bank or other appropriate guidelines. Reviews technical studies prepared by investors or their parties to determine compliance with OPIC’s policies.

• Monitors the actual environmental, health, safety and social impacts of previously approved OPIC projects through analysis of investor and third party monitoring reports and through site visits.

Conducts desk and on-site monitoring investigations of environmentally and socially sensitive projects on a regular basis. Compares actual environmental and social impact with original projections and prepares analytical reports outlining findings. Prepares reports identifying issues of non-compliance with OPIC contract conditions and makes recommendations for appropriate corrective action.

• Identifies projects as “environmentally sensitive” thereby warranting host government notification and prepares notification letters and background materials. Based on host country response to environmental notification, recommends appropriate action to OPIC.

• Responsible for keeping informed and up-to-date concerning changes in World Bank, IFC and other lending agencies’ environmental and social guidelines and standards, as well as major substantive developments in U.S. environmental legislation and regulation, with particular attention to the areas of expertise outlined above.

D. Legal Affairs

The Department of Legal Affairs requires one attorney who shall support OPIC management and project finance teams in providing legal support to energy projects in Africa, including the following:

• Negotiating with project sponsors and borrowers, project contractors, and host country governments on OPIC loan terms, OPIC policy requirements collateral security and completion support;

• Reviewing and revising internal documents seeking approval of each financing of a project;

• Conducting legal review of all aspects of the projects and project financing, including security and project documentation;

• Hiring and managing outside U.S. and local legal counsel;

• Drafting and negotiating of loan documentation;

• Coordinating loan disbursements;

• Managing post-closing and monitoring activities, including amendments, waivers and consents; and Providing advice on key legal issues related to the projects and project financing.

C.3 SUPERVISION RECEIVED

The supervisor provides direction on assigned projects.

C.4 GOVERNMENT FURNISHED PROPERTY/EQUIPMENT

The Government will provide all necessary equipment, supplies and materials to include workstations, computer, telephone and other materials and equipment to fulfill the requirements of this contract.

C.5 OTHER REQUIREMENTS

The contractor must have U.S. Citizenship and have the ability to obtain a Secret security clearance.

SECTION D

PACKAGING AND LABELING

[RESERVED]

SECTION E

INSPECTION AND ACCEPTANCE

[RESERVED]

SECTION F

PERFORMANCE

F.1 TERM OF PERFORMANCE

The term of the contract will be for one year with options to extend for no more than three years for a total contract period not to exceed four years. Option exercise will be based on the office needs and funds availability.

F.2 PAYMENT OF SERVICES

No payment shall be made for days on which work is not performed under the contract.

F.3 FEDERAL HOLIDAYS AND OTHER DAYS CLOSED

Federal Holidays and Other Days Closed: PSCs will receive pay at their regular hourly rate for observed Federal holidays. PSCs will be paid for those days that OPIC is closed or shut down due to inclement weather or other conditions

F.4 OVERTIME PAY FOR WORK BEYOND AN 8 HOUR DAY/40 HOUR WEEK

The Contractor will be treated similarly to regular employees of the same or similar status in regard to overtime pay but does not qualify under the law authorizing compensatory time off.

SECTION G

CONTRACT ADMINISTRATION DATA

G.1 FAR 52.232-3 – PAYMENT UNDER PERSONAL SERVICE CONTRACTS (APR 1984)

The Government shall pay the Contractor for the services performed by the Contractor, as set forth in the Schedule of this contract, at the rates prescribed, upon the submission by the Contractor of proper invoices or time statements to the office or officer designated and at the time provided for in this contract. The Government shall also pay the Contractor—

(a) A per diem rate in lieu of subsistence for each day the Contractor is in a travel status away from home or regular place of employment in accordance with Federal Travel Regulations (41 CFR 101-7) as authorized in appropriate Travel Orders; and

(b) Any other transportation expenses if provided for in the Schedule.

G.2 CONTRACT ADMINISTRATION DATA

Notwithstanding the Contractor's responsibility for total management responsibility during the performance of the contract, the administration of the contract will require maximum coordination between the Government and the Contractor during performance of the contract.

G.3 CONTRACTING OFFICER

The Contracting Officer (CO) will perform all contract administration. The CO is the only person with the authority to act as an agent of the U.S. Government under this contract and is the only person authorized to make or approve any changes in any of the requirements of this contract.

Notwithstanding any provisions contained elsewhere in this contract, the said authority remains solely in the Contracting Officer. In the event the Contractor makes any changes at the direction of any person other than the CO, the change will be considered to have been made without authority and no adjustment will be made in the contract price to cover any increase in costs incurred as a result thereof. Only the CO has the authority to: (1) direct or negotiate any changes in the PWS; (2) modify or extend the period of performance; (3) change the delivery schedule, (4) authorize reimbursement to the Contractor for any costs incurred during the performance of this contract; or (5) otherwise change any terms and conditions of this contract.

Emily McLaughlin is the Contracting Officer (CO) for this task order. Communications pertaining to contract administration matters shall be addressed to the CO. No changes in or deviation from the scope of the work shall be effected without a Supplemental Agreement (contract modification) executed by the CO authorizing such changes.

The Contracting Officer’s contact information is:

Emily McLaughlin U.S. Overseas Private Investment Corporation 1100 New York Ave, NW Washington, DC 20527 Phone: 202-336-8549 E-mail: emily.mclaughlin@opic.gov mailto:emily.mclaughlin@opic.gov

G.4 GOVERNMENT PROJECT OFFICER

TBD is designated as Government Project Officer and shall have supervisory responsibility over the Contractor. No representation of the Government Project Officer shall serve as a basis for an alteration in the general scope of this contract nor in the terms and conditions unless confirmed in writing by the Contracting Officer. The contract must be modified in writing by the Contracting Officer in the event of a change in the contract. The Contractor must communicate with the Contracting Officer on all matters pertaining to the contract terms. Proceeding with work without proper contractual coverage could result in non-payment for that work.

G.5 INVOICES

Contractor shall submit invoices to the Government Project Officer for hours worked on a bi-weekly basis. See “Section G.7 – BENEFITS” for supplements to the Contractor's hourly rate (base pay). These supplements will be included on each invoice, as appropriate.

G.6 FAR 52.249-12 – TERMINATION (PERSONAL SERVICES) (APR 1984)

The Government may terminate this contract at any time upon at least fifteen (15) days written notice by the Contracting Officer to the Contractor. The Contractor, with the written consent of the Contracting Officer, may terminate this contract upon at least fifteen (15) days written notice to the Contracting Officer.

G.7 BENEFITS

A full list of the Contractor's benefits, including supplements to the Contractor's hourly rate, bonus and pay raises, are set forth in Section J, Attachment 1.

G.8 COST OF LIVING ADJUSTMENTS

The Contractor shall receive cost of living adjustments in pay at the time and the percentage applicable to regular Federal employees. No cost of living adjustment shall be paid if none is received by regular Federal employees.

G.9 CONTRACT FUNDING

This contract is funded in the amount of $TBD under funding line obligation 0001. Funding is expected to last TBD. The anticipated total amount for the base period of performance is $TBD.

G.10 LIMITATION OF GOVERNMENT LIABILITY

(a) The current amount of funds obligated on this contract - $TBD - represents the Government’s limit of liability to the contractor. The Contractor agrees to perform up to the point at which the total amount payable by the Government, including reimbursement in the event of termination of this contract for the Government’s convenience, approximates the total amount currently allotted to the contract. The Contractor is not authorized to continue work on this contract beyond that point. The Government will not be obligated in any event to reimburse the Contractor in excess of the amount allotted to the contract regardless of anything to the contrary in the clause entitled “Termination for Convenience of the Government.” As used in this clause, the total amount payable by the Government in the event of termination of this task order for convenience includes costs, profit, and estimated termination settlement costs for this task order.

(b) The Contractor will notify the Contracting Officer in writing at least 45 days prior to the date when, in the Contractor’s best judgment, the work will reach the point at which the total amount payable by the Government, including any cost for termination for convenience, will approximate 85 percent of the total amount then allotted to the task order. The notification will state the estimated date when that point will be reached.

SECTION H

SECURITY REQUIREMENTS

H.1 CONFIDENTIALITY AGREEMENT

The Contractor is subject to the following provision relating to the protection and nondisclosure of proprietary and other confidential business material.

A. Confidential information, as used in this clause, means: (1) Information or data of a personal nature, proprietary about an individual or (2) information or data submitted by or pertaining to an institution or organization, provided that such information in (1) and (2) does not include information which is, or which becomes, public or information which becomes known to the Contractor on a non-confidential basis from a third party source.

B. If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

C. Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.

D. Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.

Notwithstanding the above, information which is required to be disclosed by law or legal process shall not be included as confidential information.

H.2 FEDERAL LAWS

The Contractor is subject to all laws, rules and regulations governing the behavior of regular Federal employees, including, without limitation, the Anti-Deficiency Act and the laws and regulations governing the ethical conduct of employees of the Federal Government. However, the Contractor does not qualify as an employee for purposes of programs administered by the Federal Office of Personnel Management (for example, health and life insurance, retirement, etc). All laws and amendments to laws enacted after the date of this contract, which are applicable to the Contractor, shall be incorporated herein by law without need to amend the contract. Nothing in this clause shall give the Contractor rights which the Contractor is not otherwise entitled to under law.

H.3 WARRANTY AGAINST DUAL COMPENSATION

The Contractor agrees that no part of the total contract amount provided herein shall be paid directly or indirectly to any officer or employee of the Overseas Private Investment Corporation as wages, compensation or gifts for acting in any capacity in connection with any work contemplated or performed under or in connection with this contract.

H.4 SECURITY CLEARANCE

The selected candidate must be able to obtain a Secret security clearance.

H.5 SECURITY REQUIREMENTS

CONTRACTOR PERSONNEL SECURITY REQUIREMENTS

**SPECIAL NOTICE** Contractor Orientation takes place on Mondays only. It is the CORs responsibility to coordinate with the OPIC Administrative & Security staff and work with the Contractor to ensure that all contractor personnel are sent through orientation.

A. Clearance Requirements for Contractor Personnel:

1. Authority: Because Contractor personnel may have access under this contract to sensitive agency data and computer equipment subject to strict security controls, and/or may have access to a Federal facility/building, the clearance procedures set forth in this section are necessary and shall be used to determine the suitability of such individuals for such purposes, under the following authorities: the Federal Information Security Management Act, Title III of Pub. L. No. 107-347, which requires agencies to develop security plans for the operation of Federal computer systems that contain systems that contain sensitive information, and NIST Publication SP 800-4 (1992) (Computer Security Considerations in Federal Procurements); the Privacy Act, 5 U.S.C. 552a, which requires agencies to establish procedures and safeguards to protect agency systems of records pertaining to individual; and Office of Personnel Management (OPM) regulations, relating to background investigations of contractor personnel, 5 C.F.R. Part 736. Contractor badging occurs every Wednesday.

Contractor employees may begin work on any day of the week, as directed by the COR, but will not have access to information technology (e.g., username and password) until processed through the Security Office.

2. Applicability: The procedures in this section shall apply to all individuals fulfilling any of the requirements set forth in this contract.

B. Procedures:

The COR shall provide each such individual with a copy of the procedures set in this section before or at the time that such individual applies for clearance.

1. Fingerprinting and Forms submission: Each individual employed or otherwise retained by the

Contractor to perform work under this contract shall be fingerprinted at the OPIC's Security Office, and shall also submit to the Contracting Officer's Representative (“COR”) one completed Optional Form (“OF”) 306 (“Declaration for Federal Employment,” answer Questions 1,7-12, 15, and 16a only). The Contractor shall be responsible for all costs associated with completing the forms required by the OPIC's Security Office. Completed forms shall be submitted to the COR, without alteration or changes to said forms, at least 10 working days before the individual may begin work or be given access to any agency records, data, or information in connection with this contract.

2. Additional Forms: In addition to the above forms, individuals employed or retained by the

Contractor to fulfill contract positions or duties for 180 days or more, and any individual designated to fulfill certain sensitive contract positions or duties as determined by the OPIC’s Security Officer, shall be required to submit to the COR, one SF85 or SF85P (and any additional investigative forms) based on a risk determination by the OPIC Security Officer that shall take into account the sensitivity level of the contract position or duties assigned to the individual, the individual’s access, if any, to nonpublic or confidential information, and any other relevant considerations. The individual must submit these additional forms to the COR at least 5 working days before such individual is scheduled to start work or to obtain access to agency records, data, or information under the contract.

3. Background investigations: The OPIC Security Office shall screen all forms for any adverse or derogatory information, as denoted, for example, by a “yes” to questions 8-12, by additional information in Block 15 on the OF306, or by information on any additional forms that may be required, as discussed above. If the individual has any adverse or derogatory information, the OPIC shall conduct a background investigation before s/he is permitted to begin work or be given access to agency records, data, or information under this contract.

The background investigation may be conducted in cooperation with or with the assistance of other relevant government agencies or entities, including, but not limited to, OPM, including referral to appropriate law enforcement authorities in the event of material falsification or other evidence of unlawful conduct. To the extent agency records pertaining to these background investigations are subject to the Privacy Act, such records shall be maintained and used in accordance with the applicable Privacy Act system notice(s) pertaining to the agency’s personnel background investigations. (Note: Neither the maintenance of such records in the above-described system(s), nor the fact that this contract requires individuals to complete certain forms or submit to background investigations that may also apply to OPIC employees, shall be deemed to render such an individual a Government or OPIC employee in any manner).

If, as a result of a background investigation, significant adverse or derogatory information is found that may result in an unsuitability determination, the OPIC Security Officer shall notify the COR and the relevant individual. The individual will be notified in writing (Statement of Reasons) of the derogatory information and shall have 30 days to respond or dispute the results of the investigation. If the OPIC Security Officer, after receiving the individual’s response, still determines that the individual is unsuitable to fulfill the contract position or duties in question, the individual will be notified in writing of that final determination and disqualification.

4. Suitability Determinations: The Government shall have and exercise full and complete control over these suitability determinations. The Government may, as it deems appropriate, authorize and grant temporary access and/or interim clearance to employees of the Contractor. However, the granting of temporary access and/or interim clearance to any such individual shall not be considered as assurance that a fully favorable suitability determination will follow as a result or condition thereof, and the granting of either temporary access and/or interim clearance shall in no way prevent, preclude or bar the withdrawal or termination of any such access or clearance by the Government. Failure of an individual to follow the required procedures by this contract may result in suspension/termination of such individual’s OPIC clearance/access.

5. A minimum of ten business days prior to the arrival of the contracted staff to the work site the contractor shall provide the following information to the Overseas Private Investment Corporation for each staff member:

• Full legal name

• Current address

• Gender

• Social security number

• Date of birth

• Place of Birth

• Country of Citizenship

• Height

• Weight

• Eye Color

• Race

6. In accordance with Executive Order 12989, as amended on June 9, 2008, and Federal

Acquisition Circular 05-29, it is the contractor’s responsibility to verify their employee’s legal any, that a breach occurs. Special attention should be paid to OMB Memorandum 06-19 (July 12, 2006), particularly the extremely urgent reporting time frames included therein for certain breaches, as well as to any other subsequent laws, regulations, or policy governing data breaches that may arise during the performance of the contract. The Information System Security Plan required elsewhere in this document shall include policies and procedures necessary to ensure the timely detection of and reporting to the OPIC of data breaches, as well as safeguards to prevent and mitigate the risk of, as well as to remedy, such breaches, if any.

C. Use of OPIC computer equipment by contractors is limited to what is necessary to accomplish the work identified under the contract. All contractors or his/her employees or subcontractors are subject to Internet access monitoring and auditing, and discoveries of inappropriate internet access or activity not directly related to the contract, will be reported to the COR and CO, and the contractor shall be held in default of the contract. Contractors or his/her employees or subcontractors found accessing inappropriate web sites while using an OPIC computer, may be grounds for initiating disbarment procedures.

H.6 IDENTIFICATION BUILDING PASS

The Contractor will be given an OPIC identification/building pass and the necessary keys at the time of entry on duty. The Contractor shall return the pass keys when this contract is completed or otherwise terminated.

SECTION I

CONTRACT CLAUSES

I.1 FAR 52.202-1 – DEFINITIONS (NOV 2013)

When a solicitation provision or contract clause uses a word or term that is defined in the Federal Acquisition Regulation (FAR), the word or term has the same meaning as the definition in FAR 2.101 in effect at the time the solicitation was issued, unless—

(a) The solicitation, or amended solicitation, provides a different definition;

(b) The contracting parties agree to a different definition;

(c) The part, subpart, or section of the FAR where the provision or clause is prescribed provides a different meaning; or

(d) The word or term is defined in FAR Part 31, for use in the cost principles and procedures.

I.2 FAR 52.203-3 – GRATUITIES (APR 1984)

(a) The right of the Contractor to proceed may be terminated by written notice if, after notice and hearing, the agency head or a designee determines that the Contractor, its agent, or another representative—

(1) Offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the Government; and

(2) Intended, by the gratuity, to obtain a contract or favorable treatment under a contract.

(b) The facts supporting this determination may be reviewed by any court having lawful jurisdiction.

(c) If this contract is terminated under paragraph (a) of this clause, the Government is entitled—

(1) To pursue the same remedies as in a breach of the contract; and

(2) In addition to any other damages provided by law, to exemplary damages of not less than 3 nor more than 10 times the cost incurred by the Contractor in giving gratuities to the person concerned, as determined by the agency head or a designee. (This paragraph (c)(2) is applicable only if this contract uses money appropriated to the Department of Defense.)

(d) The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

I.3 FAR 52.203-5 – COVENANT AGAINST CONTINGENT FEES (MAY 2014)

(a) The Contractor warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Government shall have the right to annul this contract without liability or, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

(b) “Bona fide agency,” as used in this clause, means an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds itself out as being able to obtain any Government contract or contracts through improper influence.

“Bona fide employee,” as used in this clause, means a person, employed by a contractor and subject to the contractor’s supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds out as being able to obtain any Government contract or contracts through improper influence.

“Contingent fee,” as used in this clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Government contract.

“Improper influence,” as used in this clause, means any influence that induces or tends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter.

I.4 FAR 52.203-7 – ANTI-KICKBACK PROCEDURES (MAY 2014)

(a) Definitions.

https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%202_1.html#wp1145508 https://www.acquisition.gov/sites/default/files/current/far/html/FARTOCP31.html#wp253693

“Kickback,” as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided to any prime Contractor, prime Contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contractor in connection with a subcontract relating to a prime contract.

“Person,” as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

“Prime contract,” as used in this clause, means a contract or contractual action entered into by the United States for the purpose of obtaining supplies, materials, equipment, or services of any kind.

“Prime Contractor” as used in this clause, means a person who has entered into a prime contract with the United States.

“Prime Contractor employee,” as used in this clause, means any officer, partner, employee, or agent of a prime Contractor.

“Subcontract,” as used in this clause, means a contract or contractual action entered into by a prime Contractor or subcontractor for the purpose of obtaining supplies, materials, equipment, or services of any kind under a prime contract.

“Subcontractor,” as used in this clause, (1) means any person, other than the prime Contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract, and (2) includes any person who offers to furnish or furnishes general supplies to the prime Contractor or a higher tier subcontractor.

“Subcontractor employee,” as used in this clause, means any officer, partner, employee, or agent of a subcontractor.

(b) 41 U.S.C. chapter 87, Kickbacks, prohibits any person from—

(1) Providing or attempting to provide or offering to provide any kickback;

(2) Soliciting, accepting, or attempting to accept any kickback; or

(3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime Contractor to the United States or in the contract price charged by a subcontractor to a prime Contractor or higher tier subcontractor.

(c)(1) The Contractor shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (b) of this clause in its own operations and direct business relationships.

(2) When the Contractor has reasonable grounds to believe that a violation described in paragraph (b) of this clause may have occurred, the Contractor shall promptly report in writing the possible violation.

Such reports shall be made to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Attorney General.

(3) The Contractor shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (b) of this clause.

(4) The Contracting Officer may (i) offset the amount of the kickback against any monies owed by the United States under the prime contract and/or (ii) direct that the Prime Contractor withhold from sums owed a subcontractor under the prime contract the amount of the kickback. The Contracting Officer may order that monies withheld under subdivision (c)(4)(ii) of this clause be paid over to the Government unless the Government has already offset those monies under subdivision (c)(4)(i) of this clause. In either case, the Prime Contractor shall notify the Contracting Officer when the monies are withheld.

(5) The Contractor agrees to incorporate the substance of this clause, including paragraph (c)(5) but excepting paragraph (c)(1), in all subcontracts under this contract which exceed $150,000.

I.5 FAR 52.203-10 – PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER

ACTIVITY (MAY 2014)

(a) The Government, at its election, may reduce the price of a fixed-price type contract and the total cost and fee under a cost-type contract by the amount of profit or fee determined as set forth in paragraph (b) of http://uscode.house.gov/ this clause if the head of the contracting activity or designee determines that there was a violation of 41 U.S.C. 2102 or 2103, as implemented in section 3.104 of the Federal Acquisition Regulation.

(b) The price or fee reduction referred to in paragraph (a) of this clause shall be—

(1) For cost-plus-fixed-fee contracts, the amount of the fee specified in the contract at the time of award;

(2) For cost-plus-incentive-fee contracts, the target fee specified in the contract at the time of award, notwithstanding any minimum fee or “fee floor” specified in the contract;

(3) For cost-plus-award-fee contracts—

(i) The base fee established in the contract at the time of contract award;

(ii) If no base fee is specified in the contract, 30 percent of the amount of each award fee otherwise payable to the Contractor for each award fee evaluation period or at each award fee determination point.

(4) For fixed-price-incentive contracts, the Government may—

(i) Reduce the contract target price and contract target profit both by an amount equal to the initial target profit specified in the contract at the time of contract award; or

(ii) If an immediate adjustment to the contract target price and contract target profit would have a significant adverse impact on the incentive price revision relationship under the contract, or adversely affect the contract financing provisions, the Contracting Officer may defer such adjustment until establishment of the total final price of the contract. The total final price established in accordance with the incentive price revision provisions of the contract shall be reduced by an amount equal to the initial target profit specified in the contract at the time of contract award and such reduced price shall be the total final contract price.

(5) For firm-fixed-price contracts, by 10 percent of the initial contract price or a profit amount determined by the Contracting Officer from records or documents in existence prior to the date of the contract award.

(c) The Government may, at its election, reduce a prime contractor’s price or fee in accordance with the procedures of paragraph (b) of this clause for violations of the statute by its subcontractors by an amount not to exceed the amount of profit or fee reflected in the subcontract at the time the subcontract was first definitively priced.

(d) In addition to the remedies in paragraphs (a) and (c) of this clause, the Government may terminate this contract for default. The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract.

I.6 FAR 52.204-13 – SYSTEM FOR AWARD MANAGEMENT MAINTENANCE (JUL 2013)

(a) Definitions. As used in this clause— “Data Universal Numbering System (DUNS) number” means the 9-digit number assigned by Dun and

Bradstreet, Inc. (D&B) to identify unique business entities, which is used as the identification number for Federal contractors.

“Data Universal Numbering System+4 (DUNS+4) number” means the DUNS number assigned by D&B plus a 4-character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4-character suffix may be assigned at the discretion of the business concern to establish additional SAM records for identifying alternative Electronic Funds Transfer (EFT) accounts (see the FAR at subpart 32.11) for the same concern.

“Registered in the System for Award Management (SAM) database” means that—

(1) The Contractor has entered all mandatory information, including the DUNS number or the

DUNS+4 number, the Contractor and Government Entity (CAGE) code, as well as data required by the Federal Funding Accountability and Transparency Act of 2006 (see subpart 4.14), into the SAM database;

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

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

(4) The Government has marked the record “Active”.

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“System for Award Management (SAM)” means the primary Government repository for prospective Federal awardee and Federal awardee information and the centralized Government system for certain contracting, grants, and other assistance-related processes. It includes—

(1) Data collected from prospective Federal awardees required for the conduct of business with the Government;

(2) Prospective contractor-submitted annual representations and certifications in accordance with FAR subpart 4.12; and

(3) Identification of those parties excluded from receiving Federal contracts, certain subcontracts, and certain types of Federal financial and non-financial assistance and benefits.

(b) The Contractor is responsible for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis, from the date of initial registration or subsequent updates, its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(c) (1)

(i) If a Contractor has legally changed its business name, doing business as name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to—

(A) Change the name in the SAM database;

(B) Comply with the requirements of subpart 42.12 of the FAR; and

(C) Agree in writing to the timeline and procedures specified by the responsible Contracting

Officer. The Contractor shall provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (c)(1)(i) of this clause, or fails to perform the agreement at paragraph (c)(1)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

(2) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM. Information provided to the Contractor’s SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the EFT clause of this contract.

(3) The Contractor shall ensure that the DUNS number is maintained with Dun & Bradstreet throughout the life of the contract. The Contractor shall communicate any change to the DUNS number to the Contracting Officer within 30 days after the change, so an appropriate modification can be issued to update the data on the contract. A change in the DUNS number does not necessarily require a novation be accomplished. Dun & Bradstreet may be contacted

(i) Via the internet at http://fedgov.dnb.com/webform or if the contractor does not have internet access, it may call Dun and Bradstreet at 1-866-705-5711 if located within the United States; or

(ii) If located outside the United States, by contacting the local Dun and Bradstreet office.

(d) Contractors may obtain additional information on registration and annual confirmation requirements at https://www.acquisition.gov.

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I.7 FAR 52.204-14 – SERVICE CONTRACT REPORTING REQUIREMENTS (JAN 2014)

“First-tier subcontract” means a subcontract awarded directly by the Contractor for the purpose of acquiring supplies or services (including construction) for performance of a prime contract. It does not include the Contractor’s supplier agreements with vendors, such as long-term arrangements for materials or supplies that benefit multiple contracts and/or the costs of which are normally applied to a Contractor’s general and administrative expenses or indirect costs.

(b) The Contractor shall report, in accordance with paragraphs (c) and (d) of this clause, annually by October 31, for services performed under this contract during the preceding Government fiscal year (October 1-September 30).

(c) The Contractor shall report the following information:

(1) Contract number and, as applicable, order number.

(2) The total dollar amount invoiced for services performed during the previous Government fiscal year under the contract.

(3) The number of Contractor direct labor hours expended on the services performed during the previous Government fiscal year.

(4) Data reported by subcontractors under paragraph (f) of this clause.

(d) The information required in paragraph (c) of this clause shall be submitted via the internet atwww.sam.gov. (See SAM User Guide). If the Contractor fails to submit the report in a timely manner, the contracting officer will exercise appropriate contractual remedies. In addition, the Contracting Officer will make the Contractor’s failure to comply with the reporting requirements a part of the Contractor’s performance information under FAR subpart 42.15.

(e) Agencies will review…