Part II_III_Addendum 52_212-4_Solicitation Clauses_SPC-HWX II_Draft_09-26-2024.pdf

Part II and III

Page X of X

RFP NO. 70Z02325R93250001

CONTINUATION OF SF-1449 AND CONTRACT CLAUSES

Addendum to FAR 52.212-4

The clause FAR 52.212-4, Contract Terms and Conditions-Commercial Products and Commercial Services (Nov 2023) incorporated by reference is amended as to supplement with the following terms and conditions:

(1) APPLICABLE U.S. CODES

This acquisition is being conducted under the following additional U.S. Codes (USC), regarding the requirement to build boats for the Government within the United States. The USCs are in descending order of precedence:

1) 14 USC 665 – Restriction on Construction of Vessels in Foreign Shipyards

2) 10 USC 7309 – Construction of Vessels in Foreign Shipyards: Prohibition

(2) REQUIRED DELIVERY SCHEDULE

The contractor shall deliver Phase 1: Design, Phase 2: Development, the first boat, and any ancillary items ordered no later than five hundred fifty (550) calendar days from the date of award.

If subsequent boats are ordered after the delivery of the first boat, delivery of the first boat on the new delivery order shall be within two hundred seventy (270) calendar days from the date of issuance of the delivery order.

If multiple quantities are ordered on a delivery order, all boats shall be delivered at approximately equal calendar intervals at a maximum rate of three (3) boats per year.

Alternative delivery schedules may be established through bi-lateral agreement.

(3) ORDERING PROCEDURES

The Contracting Officer located at the USCG Headquarters (CG-912) shall have the overall responsibility for the administration of the Indefinite-Delivery/Indefinite-Quantity (IDIQ) Contract.

The CG-912 Contracting Officer shall be the only individual authorized to take actions on behalf of the Government to amend, modify or deviate from the IDIQ Contract terms, conditions, requirements, specifications, details, and delivery schedules. The Contracting Officer is responsible for the overall administration and final closeout of the IDIQ Contract and delivery orders, and when necessary, will provide scope oversight; serve as liaison between the Contractor and Government;

issuing delivery orders; ensure compliance with the IDIQ Contract requirements; and issue needed modifications against the IDIQ Contract.

Procedures for orders/modifications requiring a proposal in accordance with Statement of Work (SOW) 080: The Contractor will be notified of the work to be performed in writing. The Contractor shall respond within the time established by the Government for response (will vary on an Order-by- Order basis but is typically within seventy-two (72) hours) with a formal proposal that identifies the number of composite labor hours, travel costs required, materials, and sub-contractor costs.

Supporting data to the price proposal shall include a basis of estimate to include a breakdown of

RFP NO. 70Z02324R93250001 Part II and III labor and materials as applicable, broken down by task. Any amount proposed for subcontracts shall be supported by a separate, similar price breakdown and upon the Government’s request confirmation that the subcontracts were competed and a summary of the competition. The Government will not reimburse proposal preparation costs.

The Contractor will be directed to commence work via an order or modification sent from the Contracting Officer. The Contractor shall provide notice of acceptance of the order or modification by signing the Standard Form (SF-30 or SF-1449) and returning it to the Contracting Officer, or by starting work when the Contracting Officer issues a unilateral task order via Optional Form 347.

(4) INTELLECTUAL PROPERTY

The Government will require deliverables of drawings and other technical data under this contract.

Each Contractor shall mark data subject to limited rights with the Limited Rights Notice found in Section 16 of this addendum.

(5) INSPECTION/ACCEPTANCE

The following supplements FAR 52.212-4 (a): The Contractor shall inspect and test each boat to verify that all requirements and performance specifications conform to the contract prior to delivery and acceptance. The Contractor shall fill out a DD-250 “Material Inspection and Receiving Report” and provide to the Contracting Officer’s Representative (COR) at boat delivery. If discrepancies are discovered at delivery, they will be handled in accordance with 52.212-4 (a). Only the Contracting Officer can make the decision and sign the DD-250 if the boat is not fully conforming to the requirements of the contract. The Contracting Officer or designated representative will provide the Contractor with a list of all discrepancies discovered during a delivery or inspection. The Government reserves the right to conduct factory inspections.

(6) CONTRACT TYPE

This will be an IDIQ Contract with firm-fixed price delivery orders.

(7) COMPETITON IN SUBCONTRACTING

The Contractor shall select subcontractors (including suppliers), on a competitive basis to the maximum practical extent, consistent with the objectives and requirements of the contract.

(8) TIME AND MATERIAL COST (ENGINEERING/NON-ENGINEERING

CHANGES/TRAVEL)/INTERIM CONTRACTOR LOGISTICS SUPPORT (ICLS)

i. Materials

a) Materials are to be charged at actual cost and as agreed to by the Contracting Officer. Materials shall be best commercial quality available except where a precise specification is indicated, in which case the specification shall apply.

Allowable Material Cost: Material cost is the actual cost paid by the Contractor for raw materials, parts, subassemblies, components, and manufacturing supplies. Material cost may include such collateral items as inbound transportation and in-transit insurance. The cost of supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control; subcontracts for supplies and incidental services for which there is not a labor category specified in the contract are allowable material cost. Material cost includes other direct costs (e.g., travel, computer usage charges, etc.) and applicable indirect costs.

The estimate material cost specified in the schedule is a not to exceed amount, which shall be applied to orders to cover material cost for engineering and non-engineering change orders. The material cost, not to exceed amount, may be negotiated at the time of order/modification by the Contracting Officer.

ii. Labor: The composite labor rates, non-engineering and engineering, offered shall be the sole labor hour rates used to price the prime contractor's direct labor hours for contract changes or new orders. The composite labor rates shall include wages, overhead, general and administrative expenses, and profit for each category of labor. The Contractor shall not receive any compensation in addition to these rates for the prime contractor's direct labor associated with such changes under this contract.

a) The composite labor hour rates will be applied to non-engineering and engineering composite labor hours only. Both non-engineering and engineering composite labor hours do not include the hours expended on support functions. This exclusion of support function hours applies whether such support functions are normally charged directly or indirectly by the Contractor's accounting system. These support functions are to be priced into the composite labor rate quoted and shall not be separately compensated.

(1) Non-engineering labor hours are those labor categories whose jobs primarily involve touch labor. The work products typically consist of: 1) completed industrial processes such as installation and removal of hull, mechanical, and electrical components; 2) simple and repetitive physical tasks. Examples include Engineering Technicians (e.g., mechanical and electronic), Metalworkers, Electricians, HAZMAT Handlers, Pipefitters, Machinists, Welders, Painters, Riggers, and helpers/apprentices for skilled trades.

Typical education may include high school diploma and some post-secondary formal technical training (which may include some college), some high school with or without a diploma, and minimal technical training, primarily received on-the-job.

(2) Engineering labor hours are those labor categories whose jobs primarily include supervisory and engineering labor such as: Program Managers, Project Managers, Engineers, Logisticians, Analysts, and Estimators. Their work products primarily involve: 1) resource management decisions that guide the overall course of the project by delivering the right balance of cost, performance, and schedule; 2) organizing, evaluating, and synthesizing multidisciplinary sources of information into written deliverables, such as plans, procedures, drawings, and reports, that are detailed instructions for specialized and skilled tradespersons. Personnel in the engineering labor category are those who direct and supervise the assignment and output of other workers, often through intermediaries. Typical education levels are a bachelor's or master's degree.

b) The Contractor is required to have and/or furnish all tools and equipment incidental to each bench trade. Supplies such as wiping rags, hacksaw blades, sandpaper, welding wire, helium, etc.

are to be furnished by the Contractor.

(9) METHOD OF PAYMENT AND INVOICING INSTRUCTIONS

Supplemental Invoice Submission Instructions:

The Contracting Officer is [To be inserted at award] who can be contacted at [To be inserted at award] or at e-mail: [To be inserted at award].

The Contracting Officer Representative (COR) is [To be inserted at award] who can be contacted at [To be inserted at award] or at email: [To be inserted at award]

The Contract Specialist is [To be inserted at award] who can be contacted at [To be inserted at award] or at e-mail: [To be inserted at award]

The Contractor’s Point of Contact is [To be inserted at award] who can be contacted at [To be inserted at award] or at email: [To be inserted at award]

a) Each invoice shall contain the following information:

(1) Contract and Delivery Order Number

(2) If applicable, annotate on the invoice indicating that the contractor represents a Small

Business for accelerated payment purposes

(3) Unique Entity Identifier (UEI) Number

(4) Information regarding payment

(5) The Contract Line-Item Number (CLIN) being billed against

b) Each invoice must be submitted to the Invoicing Processing Platform (IPP)

Electronic Submission of Payment Requests

Definitions. As used in these instructions -

(1) “Payment request” means a bill, voucher, invoice, or request for contract financing payment with associated supporting documentation. The payment request must:

comply with the requirements identified in FAR 32.905(b), “Content of Invoices” and the applicable Payment clause included in this contract. In addition, discount offerings and small business status if available shall be stated. If travel was allowable and approved, components in accordance with FAR 31.205-46 shall be provided.

(2) Except as provided in paragraph (3) of this clause, the Contractor shall submit payment requests electronically using the Invoice Processing Platform (IPP).

Information regarding IPP, including IPP Customer Support contact information, is available at www.ipp.gov or any successor site.

(3) The Contractor may submit payment requests using a method other than IPP only when the Contracting Officer authorizes alternate procedures in writing in accordance with Coast Guard procedures.

(4) If alternate payment procedures are authorized, the Contractor shall include a copy of the Contracting Officer's written authorization with each payment request.

http://www.ipp.gov/

c) In accordance with the Prompt Payment Act, for the purposes of determining a payment due date and the date on which interest will begin to accrue if a payment is late, a proper invoice shall be deemed to have been received:

(1) On the later of:

(i) For invoices that are mailed or transmitted via facsimile, the date a proper invoice is actually received by the designated billing office and annotates the invoice with date of receipt at the time of receipt.

(ii) For invoices electronically transmitted by the Contractor via web based submission, the date a transmission is received by the designated billing office, and receipt confirmation is provided to the designated recipient; or

(iii) The seventh day after the date on which the property is actually delivered or performance of the services is actually completed; unless

(a) The agency has actually accepted the property or services before the seventh day in which case the acceptance date shall substitute for the seventh day after the delivery date; or

(b) A longer acceptance period is specified in the contract, in which case the date of actual acceptance or the date on which such longer acceptance period ends shall substitute for the seventh day after the delivery date;

(2) On the date placed on the invoice by the Contractor, when the agency fails to annotate the invoice with date of receipt of the invoice at the time of receipt (such invoice must be a proper invoice); or

(3) On the date of delivery, when the contract specifies that the delivery ticket may serve as an invoice.

(4) Web-based submission by the Contractor and receipt confirmation does not reflect Government review or acceptance of the invoice.

(5) Payment inquiries and status may be obtained - at the following website:

https://www.fincen.uscg.mil/secure/payment.htm

d) The last invoice submitted for this award shall be clearly labeled, “FINAL INVOICE.”

e) All invoices must clearly delineate which CLINs are being invoiced for.

f) Failure to follow any of these instructions shall result in the invoice being rejected.

Contract Financing Clause – Commercial Financing Interim Payment

(1) The Special Purpose Craft – Heavy Weather Second Generation (SPC-HWX II) contract allows for specified commercial financing to the contractor. The following milestone payment chart for the SPC-HWX II Contract Line Item Numbers (CLIN) X001 and X003 applies. The deliverable item is an individual SPC-HWX II boat identified by a hull number. The Contracting Officer or Contracting Officer’s Representative (COR) approves milestones. A milestone is complete when the evidence/basis for payment is approved by the Contracting Officer or COR.

The evidence/basis for payment is the objective measure for completing the milestone, such as a visual observation by the Contracting Officer’s Representative (COR), or a signed DD-250 acknowledging preliminary acceptance of a SPC-HWX II. Once a milestone has been met, the https://www.fincen.uscg.mil/secure/payment.htm contractor may request an interim payment if the contract financing requirements have been satisfied.

(i) Computation of the financing payment amounts.

CLIN X001 – Design and Development (Only for the first boat production)

Milestone Percentage of

CLIN

Evidence of Payment

1 Production Readiness Review (PRR) that identifies

LLTM (SOW 068-

3.5.4) or final PRR.

50% Receipt of accurate and comprehensive PRR minutes.

2 Establishment of Developmental Configuration Baseline

(SOW 068-3.4)

30% Coast Guard acceptance of

CDRL 041-002

3 Acceptance of SPC- HWX II delivered under CLIN

X003AA

20% DD250 Signed for the first

SPC-HWX II

CLIN X003AA – Boat Production

Milestone Percentage of

CLIN

Evidence of Payment

1 Hull Structure Complete

20%

Cut aluminum onsite (photo).

Hull rolled, frames, stiffeners, and bulkheads below main deck installed (photo).

2 Metal Work Complete

20% All structural metal work complete in hull and superstructure. (photo)

Photo of engines and reduction gears (2 each) in crates on shop floor, with serial numbers shown and copy of the bill of lading.

3 Builders Trials 20% Boat in the water, propulsion system installation certified, all outfit on site or installed (photo).

4 Acceptance Testing 40% DD250 Signed.

CLIN X003AB – Long Lead Time Materials (LLTMs)

Milestone Percentage of

CLIN

Evidence of Payment

1 LLTM Arrived at Contractor Facility

* Contractor can submit up to 3 invoices for LLTM, grouping LLTM on invoices as it is received.

50% Photos of LLTMs in crates on shop floor, with serial numbers shown and copy of the bill of lading.

2 Acceptance Testing 50% DD250 Signed.

(ii) Specific conditions of contractor entitlement to those financing payments. Delivery payments shall be made only for completed supplies and services accepted by the United States Coast Guard (USCG) in accordance with the terms of the contract. This contract provides commercial interim payments based upon the above occurrences. The contractor’s facility must be accessible for visual observation by the COR, upon notification from the contractor of a completed milestone, within ten (10) days.

(iii) Liquidation of those financing payments by delivery payments. Liquidation of contract financing payments shall be on a line-item basis and shall be liquidated against that line item.

(iv) The Contracting Officer will specify in the solicitation the type of security the Government will accept. If the Government is willing to accept more than one form of security, the contractor shall be required to specify the form of security it will provide. There are four acceptable forms of adequate security identified in FAR 32.202-4, below:

a. The offeror's financial condition may be determined to be adequate security, provided the offeror agrees to provide additional security should that financial condition become inadequate as security.

b. Paramount lien.

c. Other assets as security.

d. Other forms of security.

If the contractor desires to use its financial condition to establish adequate security, the contractor shall provide financial statements to show the contractor's financial condition. Assessment of the contractor's financial condition shall consider both net worth and liquidity.

(v) Security. The Government will review adequate security for Government financing at the contractor’s request. If the contractor’s financial condition isn’t determined to be acceptable or is no longer acceptable as adequate security during the course of this contract, the contractor shall, at no additional cost to the Government, provide additional adequate security, or the Government may no longer provide contract financing. If the contractor’s financial condition is determined to be not acceptable or no longer acceptable, the contractor will not be able to reprice or adjust the price for the SPC-HWX II CLIN.

(vi) If the contractor’s financial condition is accepted as adequate security for inclusion of financing terms in the contract, the contractor shall provide annual financial statements to the Government and immediately notify the Government if there is a change in the company’s financial condition. The value of the security must be at least equal to the maximum unliquidated amount of contract financing payments to be made to the contractor. The value of security may be adjusted periodically during contract performance, as long as it is always equal to or greater than the amount of unliquidated financing. The maximum amount the contractor will receive in finance payments is between 50-80 percent of the price of any SPC-HWX II’s included on a delivery order. The maximum amount of security the contractor will need to establish is limited to no more than $6 million.

(vii) Frequency, form, and any additional content. Due to anticipated quantity of CLINS, the contractor cannot invoice for interim payments more than once per month.

(2) The Contracting Officer shall insert the security that the contractor will provide for financing at time of contract award.

(End of clause)

(10) FAR 52.232-29 TERMS FOR FINANCING OF PURCHASES OF COMMERCIAL

PRODUCTS AND COMMERCIAL SERVICES (NOV 2021)

(a) Contractor entitlement to financing payments. The Contractor may request, and the Government shall pay, a contract financing payment as specified elsewhere in this contract when: the payment requested is properly due in accordance with this contract; the supplies deliverable or services due under the contract will be delivered or performed in accordance with the contract; and there has been no impairment or diminution of the Government’s security under this contract.

(b) Special terms regarding termination for cause. If this contract is terminated for cause, the Contractor shall, on demand, repay to the Government the amount of unliquidated contract financing payments. The Government shall be liable for no payment except as provided by the Termination for Cause paragraph of the clause at Federal Acquisition Regulation (FAR) 52.212- 4, Contract Terms and Conditions—Commercial Products and Commercial Services.

(c) Security for Government financing. In the event the Contractor fails to provide adequate security, as required in this contract, no financing payment shall be made under this contract.

Upon receipt of adequate security, financing payments shall be made, including all previous payments to which the Contractor is entitled, in accordance with the terms of the provisions for contract financing. If at any time the Contracting Officer determines that the security provided by the Contractor is insufficient, the Contractor shall promptly provide such additional security as the Contracting Officer determines necessary. In the event the Contractor fails to provide such additional security, the Contracting Officer may collect or liquidate such security that has been provided and suspend further payments to the Contractor; and the Contractor shall repay to the Government the amount of unliquidated financing payments as the Contracting Officer at his sole discretion deems repayable.

(d) Reservation of rights.

(1) No payment or other action by the Government 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.

(e) Content of Contractor's request for financing payment. The Contractor’s request for financing payment shall contain the following:

(1) The name and address of the Contractor;

(2) The date of the request for financing payment;

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

(4) An appropriately itemized and totaled statement of the financing payments requested and such other information as is necessary for computation of the payment, prepared in accordance with the direction of the Contracting Officer.

(f) Limitation on frequency of financing payments. Contractor financing payments shall be provided no more frequently than monthly.

(g) Dates for payment. A payment under this clause is a contract financing payment and not subject to the interest penalty provisions of the Prompt Payment Act. The designated payment office will pay approved payment requests within 30 days of submittal of a proper request for payment.

(h) Conflict between terms of offeror and clause. In the event of any conflict between the terms proposed by the offeror in response to an invitation to propose financing terms (FAR 52.232-31) and the terms in this clause, the terms of this clause shall govern.

(11) FAR 52.204-1 APPROVAL OF CONTRACT (DEC 1989)

This contract is subject to the written approval of the Contracting Officer and shall not be binding until so approved.

(End of clause)

(12) FAR 52.216-18 ORDERING (AUG 2020)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from date of contract award through seven years.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

(c) A delivery order or task order is considered "issued" when—

(1) If sent by mail (includes transmittal by U.S. mail or private delivery service), the Government deposits the order in the mail;

(2) If sent by fax, the Government transmits the order to the Contractor's fax number; or

(3) If sent electronically, the Government either—

(i) Posts a copy of the delivery order or task order to a Government document access system, and notice is sent to the Contractor; or

(ii) Distributes the delivery order or task order via email to the Contractor's email address.

(d) Orders may be issued by methods other than those enumerated in this clause only if authorized in the contract.

(13) FAR 52.216-19 ORDER LIMITATIONS (OCT 1995)

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than “one (1) Boat”, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor—

(1) Any order for a single item in excess of three (3) SPC HWX-II with training, and any ancillary items;

(2) Any order for a combination of items in excess of three (3) SPC HWX-II with training, and any ancillary items; or

(3) A series of orders from the same ordering office within 365 days that together call for quantities exceeding the limitation in paragraph (b)(1) or (2) of this section.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph (b) of this section.

(d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 7 days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

(End of clause)

(14) FAR 52.216-22 INDEFINITE QUANTITY (OCT 1995)

(a) This is an indefinite-quantity contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies and services specified in the Schedule are estimates only and are not purchased by this contract.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the supplies or services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of supplies or services designated in the Schedule as the “minimum.”

(c) Except for any limitations on quantities in the Order Limitations clause or in the Schedule, there is no limit on the number of orders that may be issued. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after one year from expiration of the contract.

(15) FAR 52.217-9 OPTION TO EXTEND THE TERM OF THE CONTRACT (MAR 2000)

https://www.acquisition.gov/far/current/html/52_216.html#wp1115057 Gibney, Joel M SCPO USCG DHS (USA) Max Boats

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 60 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 84 months.

(End of clause)

(16) FAR 52.227-14 RIGHTS IN DATA-GENERAL (MAY 2014), ALTERNATE II,

ALTERNATE IV, ALTERNATE V (DEC 2007)

(a) Definitions. As used in this clause-

Computer database or "database means" a collection of recorded information in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software.

Computer software-

(1) Means

(i) Computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and

(ii) Recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, or compiled.

(2) Does not include computer databases or computer software documentation.

Computer software documentation means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

Data means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

Form, fit, and function data means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements.

For computer software it means data identifying source, functional characteristics, and performance requirements but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.

Limited rights means the rights of the Government in limited rights data as set forth in the Limited Rights Notice of paragraph (g)(3) if included in this clause.

Limited rights data means data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications.

Restricted computer software means computer software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software, including minor modifications of the computer software.

Restricted rights, as used in this clause, means the rights of the Government in restricted computer software, as set forth in a Restricted Rights Notice of paragraph (g) if included in this clause, or as otherwise may be provided in a collateral agreement incorporated in and made part of this contract, including minor modifications of such computer software.

Technical data means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation).

This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases (See 41 U.S.C. 116).

Unlimited rights means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

(b) Allocation of rights.

(1) Except as provided in paragraph (c) of this clause, the Government shall have unlimited rights in-

(i) Data first produced in the performance of this contract;

(ii) Form, fit, and function data delivered under this contract;

http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3

(iii) Data delivered under this contract (except for restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under this contract; and

(iv) All other data delivered under this contract unless provided otherwise for limited rights data or restricted computer software in accordance with paragraph (g) of this clause.

(2) The Contractor shall have the right to-

(i) Assert copyright in data first produced in the performance of this contract to the extent provided in paragraph (c)(1) of this clause;

(ii) Use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, unless provided otherwise in paragraph

(d) of this clause;

(iii) Substantiate the use of, add, or correct limited rights, restricted rights, or copyright notices and to take other appropriate action, in accordance with paragraphs (e) and (f) of this clause; and

(iv) Protect from unauthorized disclosure and use those data that are limited rights data or restricted computer software to the extent provided in paragraph (g) of this clause.

(c) Copyright-

(1) Data first produced in the performance of this contract.

(i) Unless provided otherwise in paragraph (d) of this clause, the Contractor may, without prior approval of the Contracting Officer, assert copyright in scientific and technical articles based on or containing data first produced in the performance of this contract and published in academic, technical or professional journals, symposia proceedings, or similar works. The prior, express written permission of the Contracting Officer is required to assert copyright in all other data first produced in the performance of this contract.

(ii) When authorized to assert copyright to the data, the Contractor shall affix the applicable copyright notices of 17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship (including contract number).

(iii) For data other than computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly by or on behalf of the Government. For computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public) by or on behalf of the Government.

(2) Data not first produced in the performance of this contract. The Contractor shall not, without the prior written permission of the Contracting Officer, incorporate in data delivered under this contract any data not first produced in the performance of this contract unless the Contractor-

(i) Identifies the data; and

(ii) Grants to the Government, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause or, if such data are restricted computer software, the Government shall acquire a copyright license as set forth in paragraph (g)(4) of this clause (if included in this contract) or as otherwise provided in a collateral agreement incorporated in or made part of this contract.

(3) Removal of copyright notices. The Government will not remove any authorized copyright notices placed on data pursuant to this paragraph (c), and will include such notices on all reproductions of the data.

(d) Release, publication, and use of data. The Contractor shall have the right to use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, except-

(1) As prohibited by Federal law or regulation (e.g., export control or national security laws or regulations);

(2) As expressly set forth in this contract; or

(3) If the Contractor receives or is given access to data necessary for the performance of this contract that contain restrictive markings, the Contractor shall treat the data in accordance with such markings unless specifically authorized otherwise in writing by the Contracting Officer.

(e) Unauthorized marking of data.

(1) Notwithstanding any other provisions of this contract concerning inspection or acceptance, if any data delivered under this contract are marked with the notices specified in paragraph (g)(3) or (g)

(4) if included in this clause, and use of the notices is not authorized by this clause, or if the data bears any other restrictive or limiting markings not authorized by this contract, the Contracting Officer may at any time either return the data to the Contractor, or cancel or ignore the markings. However, pursuant to 41 U.S.C. 4703, the following procedures shall apply prior to canceling or ignoring the markings.

(i) The Contracting Officer will make written inquiry to the Contractor affording the Contractor 60 days from receipt of the inquiry to provide written justification to substantiate the propriety of the markings;

(ii) If the Contractor fails to respond or fails to provide written justification to substantiate the propriety of the markings within the 60-day period (or a longer time approved in writing by the Contracting Officer for good cause shown), the Government shall have the right to cancel or ignore the markings at any time after said period and the data will no longer be made subject to any disclosure prohibitions.

(iii) If the Contractor provides written justification to substantiate the propriety of the markings within the period set in paragraph (e)(1)(i) of this clause, the Contracting Officer will consider such written justification and determine whether or not the markings are to be cancelled or ignored. If the Contracting Officer determines that the markings are authorized, the Contractor will be so notified in writing. If the Contracting Officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, the Contracting Officer will furnish the Contractor a written determination, which determination will become the final agency decision regarding the appropriateness of the markings unless the Contractor files suit in a court of competent jurisdiction within 90 days of receipt of the Contracting Officer’s decision. The Government will continue to abide by the markings under this paragraph (e)(1)(iii) until final resolution of the matter either by the Contracting Officer’s determination becoming final (in which instance the Government will thereafter have the right to cancel or ignore the markings at any time and the data will no longer be made subject to any disclosure prohibitions), or by final disposition of the matter by court decision if suit is filed.

(2) The time limits in the procedures set forth in paragraph (e)(1) of this clause may be modified in accordance with agency regulations implementing the Freedom of Information Act ( 5 U.S.C. 552) if necessary to respond to a request thereunder.

(3) Except to the extent the Government’s action occurs as the result of final disposition of the matter by a court of competent jurisdiction, the Contractor is not precluded by paragraph (e) of the clause from bringing a claim, in accordance with the Disputes clause of this contract, that may arise as the result of the Government removing or ignoring authorized markings on data delivered under this contract.

(f) Omitted or incorrect markings.

(1) Data delivered to the Government without any restrictive markings shall be deemed to have been furnished with unlimited rights. The Government is not liable for the disclosure, use, or reproduction of such data.

(2) If the unmarked data has not been disclosed without restriction outside the Government, the Contractor may request, within 6 months (or a longer time approved by the Contracting Officer in writing for good cause shown) after delivery of the data, permission to have authorized notices placed on the data at the Contractor’s expense. The Contracting Officer may agree to do so if the Contractor-

(i) Identifies the data to which the omitted notice is to be applied;

(ii) Demonstrates that the omission of the notice was inadvertent;

(iii) Establishes that the proposed notice is authorized; and

(iv) Acknowledges that the Government has no liability for the disclosure, use, or reproduction of any data made prior to the addition of the notice or resulting from the omission of the notice.

(3) If data has been marked with an incorrect notice, the Contracting Officer may-

(i) Permit correction of the notice at the Contractor’s expense if the Contractor identifies the data and demonstrates that the correct notice is authorized; or

(ii) Correct any incorrect notices.

(g) Protection of limited rights data and restricted computer software.

(1) The Contractor may withhold from delivery qualifying limited rights data or restricted computer software that are not data identified in paragraphs (b)(1)(i), (ii), and (iii) of this clause. As a condition to this withholding, the Contractor shall-

(i) Identify the data being withheld; and

(ii) Furnish form, fit, and function data instead.

(2) Limited rights data that are formatted as a computer database for delivery to the Government shall be treated as limited rights data and not restricted computer software.

(3) [Reserved]

(h) Subcontracting. The Contractor shall obtain from its subcontractors all data and rights therein necessary to fulfill the Contractor’s obligations to the Government under this contract. If a subcontractor refuses to accept terms affording the Government those rights, the Contractor shall promptly notify the Contracting Officer of the refusal and shall not proceed with the subcontract award without authorization in writing from the Contracting Officer.

(i) Relationship to patents or other rights. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government.

(End of clause)

Alternate II (Dec 2007). As prescribed in 27.409 (b)(3), insert the following paragraph (g)(3) in the basic clause:

(g)(3) Notwithstanding paragraph (g)(1) of this clause, the contract may identify and specify the delivery of limited rights data, or the Contracting Officer may require by written request the delivery of limited rights data that has been withheld or would otherwise be entitled to be withheld. If delivery of that data is required, the Contractor shall affix the following "Limited Rights Notice" to the data and the Government will treat the data, subject to the provisions of paragraphs (e) and (f) of this clause, in accordance with the notice:

Limited Rights Notice (Dec 2007)

(a) These data are submitted with limited rights under Government Contract No.

_____ (and subcontract ______, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that https://www.acquisition.gov/far/part-27#FAR_27_409 the Government may disclose these data outside the Government for the following purposes, if any;

provided that the Government makes such disclosure subject to prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in 27.404-2(c)(1) or if none, so state.]

(b) This notice shall be marked on any reproduction of these data, in whole or in part.

(End of notice)

Alternate IV (Dec 2007). As prescribed in 27.409 (b)(5), substitute the following paragraph (c)(1) for paragraph (c)(1) of the basic clause:

(c) Copyright-(1) Data first produced in the performance of the contract. Except as otherwise specifically provided in this contract, the Contractor may assert copyright in any data first produced in the performance of this contract. When asserting copyright, the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship (including contract number), to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. For data other than computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all such data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. For computer software, the Contractor grants to the Government and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all such computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public), by or on behalf of the Government.

Alternate V (Dec 2007). As prescribed in 27.409 (b)(6), add the following paragraph (j) to the basic clause:

(j) The Contractor agrees, except as may be otherwise specified in this contract for specific data deliverables listed as not subject to this paragraph, that the Contracting Officer may, up to three years after acceptance of all deliverables under this contract, inspect at the Contractor’s facility any data withheld pursuant to paragraph (g)(1) of this clause, for purposes of verifying the Contractor’s assertion of limited rights or restricted rights status of the data or for evaluating work performance. When the Contractor whose data are to be inspected demonstrates to the Contracting Officer that there would be a possible conflict of interest if a particular representative made the inspection, the Contracting Officer shall designate an alternate inspector.

(17) FAR 52.203-17 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND

REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (NOV

2023) (DHS-USCG DEVIATION 14-01)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the enhancement of whistleblower protections for Contractor employees established at 10 U.S.C. 2409 by section 827 of the NDAA for FY 2013 (Pub. L. 112-239) and FAR 3.908.

https://www.acquisition.gov/far/part-27#FAR_27_404_2 https://www.acquisition.gov/far/part-27#FAR_27_409 https://www.acquisition.gov/far/part-27#FAR_27_409

(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 10 U.S.C. 2409, as described in section 3.908 of the FAR.

(c) The Contractor shall insert the substance of this clause, including this paragraph ( c ), in all subcontracts over the simplified acquisition threshold.

(End of clause)

(18) 52.204-23 PROHIBITION ON CONTRACTING FOR HARDWARE, SOFTWARE,

AND SERVICES DEVELOPED OR PROVIDED BY KASPERSKY LAB COVERED

ENTITIES (DEVIATION 20-05) (JUL 2024)

(a) Definitions. As used in this clause- Kaspersky Lab covered article means any hardware, software, or service that–

(1) Is developed or provided by a Kaspersky Lab covered entity;

(2) Includes any hardware, software, or service developed or provided in whole or in part by a Kaspersky Lab covered entity; or

(3) Contains components using any hardware or software developed in whole or in part by a Kaspersky Lab covered entity.

Kaspersky Lab covered entity means–

(1) Kaspersky Lab;

(2) Any successor entity to Kaspersky Lab, including any change in name, e.g., “Kaspersky”;

(3) Any entity that controls, is controlled by, or is under common control with Kaspersky Lab;

or

(4) Any entity of which Kaspersky Lab has a majority ownership.

(b) Prohibition. Section 1634 of Division A of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits Government use of any Kaspersky Lab covered article. The Contractor is prohibited from—

(1) Providing any Kaspersky Lab covered article that the Government will use on or after October 1, 2018; and

(2) Using any Kaspersky Lab covered article on or after October 1, 2018, in the development of data or deliverables first produced in the performance of the contract.

(c) Reporting requirement.

(1) In the event the Contractor identifies covered article provided to the Government during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report, in writing, via email, to the Contracting Officer, Contracting Officer's Representative, and the Enterprise Security Operations Center (SOC) at NDAA Incidents@hq.dhs.gov, with required information in the body of the email.