AMS Master Solicitation April 2009.pdf

Effective Date: April 2009

AGRICULTURAL MARKETING SERVICE

MASTER SOLICITATION

FOR COMMODITY PROCUREMENTS

For Distribution to Eligible Outlets

Table of Contents

I. INSTRUCTIONS TO BIDDERS

II. SUBMISSION OF BIDS

III. CONTRACT AWARD………………

IV. ORDER OF PRECEDENCE AND INCORPORATED TEXT

V. CONTRACT COMPLIANCE

VI. SHIPMENT AND DELIVERY

A. Change in Place or Manner of Shipment or Delivery

B. Notice to Deliver

C. Early Delivery

VII. LIABILITY FOR LOSSES DUE TO DETERIORATION, SPOILAGE, OR RECALL ...7

A. Loss Due to Deterioration or Spoilage

B. Loss Due to Product Recalled for Health or Safety Risk

VIII. INVOICES AND PAYMENT

IX. CLAUSES INCORPORATED BY REFERENCE

X. PROVISIONS INCORPORATED BY REFERENCE

XI. INQUIRIES

EXHIBIT 1 Sample Format for Submitting Offers through DEBES

EXHIBIT 2 Domestic Origin Certification

EXHIBIT 3 Browser Requirements

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This solicitation, called the Master Solicitation, is used by the U.S. Department of Agriculture (USDA), Agricultural Marketing Service (AMS) to procure commodities for the National School Lunch Program and other Federal Food and Nutrition Programs. The Master Solicitation will provide general guidance to potential bidders and/or offerors.

I. INSTRUCTIONS TO BIDDERS

A. USDA will periodically issue Solicitations/Invitations for Bid (IFB) under this Master Solicitation for various commodities under domestic food nutrition assistance programs.

Specifications and program requirements will be further defined in the appropriate commodity supplement to this Master Solicitation and are incorporated herein and made a part hereof for specific requirements.

B. Awards will be made following the principles in the Federal Acquisition Regulation (FAR), and the Agriculture Acquisition Regulations (AGAR). The Solicitations/IFBs will specify the commodity, the bid date, the delivery period, the destinations, estimated quantities, the closing time for receipt of bids, and any provisions, terms, and conditions applicable to the proposed procurement which are in addition to or different from those contained in the Master Solicitation. Bidders are cautioned to carefully read this Master Solicitation, the applicable IFB, and the applicable Specification. The full texts of the applicable FAR provisions and clauses incorporated into the contract can be found at http://www.acquisition.gov/comp/far/index.html.

C. Bid prices will be either F.O.B. (or F.A.S vessel) at the destinations listed in the applicable IFB or on a shipping point basis. If F.O.B. destination, bids will be invited on a purchase unit basis or multiples thereof, except that from time to time the IFB will indicate two or more destinations in a line item which will require a split delivery (drop) at each destination.

Delivery by either trucks or railcars is at the option of the Contractor except for those destinations which specify the method of delivery. If F.O.B. origin, delivery of the commodity will be made, either F.O.B. railroad cars or trucks or in-store USDA’s option, at the shipping points named in the Solicitation/IFB. To submit bids, a company must be on the Qualified Vendors List. Contact the Contracting Officer for requirements, or visit “Commodity Purchasing” at http://www.ams.usda.gov .

D. Annual Representations and Certifications

1. Central Contractor Registration (CCR) and Online Representations and Certifications (ORCA) Application.

Contractor must be registered with the Central Contractor Registration (CCR) as prescribed in FAR 4.1104 and the Online Representations and Certifications Application (ORCA). Bidder must certify with each bid that its company is registered with both the CCR and ORCA. The CCR can be accessed at http://www.ccr.gov and the ORCA at http://orca.bpn.gov.

2. The 8(a) Program

For the purposes of contracts made under the 8(a) program, FAR subpart 19.8, reference to “Contractor,” in all USDA contract documents, means the 8(a) firm. In accordance with the Interagency Agreement as authorized under FAR 19.800(c), the Small Business Administration

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(SBA) has delegated responsibility to USDA for the administration of contracts awarded to 8(a) firms with complete authority to take any action on behalf of the Government under the terms and conditions of the contract. All 8(a) contractors must be on the Qualified Vendors List.

E. Domestic Products

All products used in fulfilling contracts awarded must be of 100 percent domestic origin, meaning that it was produced and processed from products, including maltodextrin (products) which were produced, raised, and processed only in the United States, its territories or possessions, the Commonwealth of Puerto Rico, or the Trust Territories of the Pacific Islands (hereinafter referred to as “the United States”). If the Contractor processes or handles products originating from sources other than the United States, the Contractor must have an acceptable identification and segregation plan for those products to ensure they are not used in commodities purchased under the Master Solicitation. This plan must be made available to an AMS representative and the Contracting Officer or agent thereof upon request. The Contractor must ensure that the Contractor and any subcontractor(s) maintain records such as invoices, or production and inventory records evidencing product origin, and make such records available for review by the Government in accordance with FAR 52.214-26.

Contractor agrees to include this domestic origin certification clause in all subcontracts for products used in fulfilling contracts awarded under this Master Solicitation. The burden of proof of compliance is on the Contractor.

Domestic verification requirements must be included in the Contractor’s technical proposal, if applicable. Otherwise, the attached form (EXHIBIT 2) must be completed for each contract awarded and, prior to performance in this program, must be presented to an AMS representative, the Contracting Officer, or agent thereof upon request.

F. Food Defense Requirements

Potential Contractor(s) and subcontractor(s) must have a food defense plan that provides for the security of a plant’s production processes and includes the storage and transportation of pre-production raw materials and other ingredients and post-production finished product. The plan shall address the following areas, as applicable: (1) food defense plan management; (2) outside and inside security of the production and storage facilities; (3) slaughter and processing, including all raw material sources; (4) shipping and receiving; (5) storage; (6) water and ice supply; (7) mail handling; (8) personnel security; and (9) transportation, shipping, and receiving (includes the sealing of any transport conveyance for truck lot and less-than-truck lot quantities of finished product).

Prior to a contract award, the documented and operational food defense plan will be audited by the USDA, AMS. The food defense audit is based on the Food Safety and Inspection Service (FSIS) Security Guidelines for Food Processors at the following website:

http://www.fsis.usda.gov/OA/topics/SecurityGuide.pdf and guidelines for the transportation and distribution of meat, poultry, and egg products located at the following website:

http://www.fsis.usda.gov/oa/topics/transportguide.pdf. All nonconformances listed in the audit report must be addressed in writing within 14 days to the AMS Auditor and the Contracting Officer. The potential contractors will have an opportunity to correct identified nonconformances and improve their food defense plan.

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Potential contractors may request waivers when pre-award audits could not be scheduled in time to meet the time required for bid offering. The potential contractors will receive written notification from the Contracting Officer of their eligibility to bid.

Follow-up audits may be conducted as determined by the Contracting Officer.

Eligible suppliers who receive contracts must have their documented food defense plan and supporting documentation readily available for review by the Contracting Officer or AMS agents. Records may be maintained on hard copy or electronic media. However, records maintained as electronic media will be made available in printed form immediately upon request by AMS or its agents.

G. Loading and Sealing of Vehicles

Loading must be in accordance with good commercial practices and the sealing must be done at origin under the supervision of a USDA,AMS certification agent. Therefore, all delivery units— truck lot and less-than-truck lot (LTL) quantities—must be secured at all times prior to unloading with tamper resistant, serially numbered, high security seals. Suppliers of commodities, products and/or services shall be responsible for placing seal(s) on all doors of each transportation conveyance upon completion of loading or servicing. Seals shall be serially numbered, barrier-type and meet the American Society for Testing and Materials (ASTM) standards (F-1157-04).

Seals shall be 1/8th inch diameter cable, high security bolt, or equivalent. The contractor must maintain a record of each seal number used per truck lot and LTL delivery unit. Additionally, the contractor must ensure that the applicable seal identification number is on each bill of lading, shipment manifest, certificate, or delivery documents for each delivery destination.

When LTL delivery units are transported on the same trailer and destined for multiple recipients, the trailer must be sealed after each delivery. The seal number must be recorded on the appropriate delivery documents and correspond with the applied seal at the time of arrival at the next destination. It will be the responsibility of the contractor to provide a sufficient number of seals to the carrier service and to ensure that the trailer is sealed after each delivery destination.

Failure to seal the trailer after each stop may result in rejection of the shipment by the recipient agency at the next scheduled stop and rejection of any subsequent deliveries on the trailer.

1. Railcar. Each railcar must be sealed. The contractor is responsible for arranging for railcar deliveries of more than one delivery unit so that each delivery unit contained in the same railcar can be completely separated and sealed.

2. Truck or Piggyback. Truck or piggyback shipments must be sealed at origin.

A delivery unit shipped by truck or piggyback which includes split deliveries to multiple destinations will requires sealing after each drop in accordance with I.G. of this Master Solicitation.

II. SUBMISSION OF BIDS

Bids must be submitted via the Internet by accessing the Domestic Electronic Bid Entry System (DEBES). (See EXHIBIT 3 for browser requirements.) Bidders may request vendor DEBES identifications and passwords by contacting the Contracting Office. Bids submitted by any means other than DEBES will be considered nonresponsive.

Access the DEBES website at: https://pcsd.usda.gov:3077/mdbc1000.exe?.

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Once connected to DEBES, follow the online procedures. Click on the “Help” button for detailed instructions on using the system, or contact the Contracting Officer for assistance.

AMS will not be responsible for any failure attributed to the transmission of the bid data prior to being accepted and stored on our web server including, but not limited to the following:

1. Any failure of the bidder’s computer hardware or software.

2. Availability of the bidder’s Internet service provider.

3. Delay in transmission due to the speed of the bidder’s modem.

4. Delay in transmission due to excessive volume of Internet traffic.

Bidders are advised to allow sufficient time to input bids on the date of bid opening due to high volume of internet traffic.

Bids, modifications, or withdrawals of bids must be received in DEBES by the time prescribed in the applicable Invitation. Whether a bid, modification, or withdrawal is received within the time limitation will be determined by the latest time recorded in DEBES.

All sections of the bid form must be completed, including prices and constraints. Complete the certifications using the following as a guide. (See EXHIBIT 1 of this Master Solicitation for an example of a bid.)

1. Offer is made subject to the Master Solicitation; the Specification(s); Invitation No. _____; and FAR/AGAR.

2. Furnish the name, complete mailing address, and telephone number of office or person to receive shipping and delivery instructions. NOTE: FURNISH ADDRESS WITH

FIRST BID; THEREAFTER, ENTER “SAME” IF INFORMATION HAS NOT CHANGED.

ONLY ENTER UPDATED INFORMATION AS NECESSARY.

3. Timely Performance Certification. All products required under any existing USDA contract(s) or subcontract(s) with a not-later-than delivery date prior to this bid opening have been delivered. Choose one:

(a) Have

(b) Have not

(c) Have not, but has notified the Contracting Officer

(d) No existing contracts

4. Offeror (HAS) registered in the Central Contractor Registration (CCR). Furnish the expiration date of registration.

5. Offeror (HAS) registered with the Online Representations and Certifications Application. Furnish the expiration date of registration.

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6. Offeror requests HUBZone small business price evaluation preference (YES) (NO). Applies only to firms certified in the Small Business Administration’s Historically Underutilized Business Zone program (FAR subpart 19.13).

7. Furnish name, title, fax number, phone number and email address of person submitting this bid (must be an officer of the company or a person authorized to execute contracts on behalf of the bidder).

III. CONTRACT AWARD

Firm fixed price contracts will be awarded to the responsible bidder(s) whose offer conforms to the IFB, Master Solicitation and Commodity Specification, and whose bid(s) are most advantageous to the Government in terms of, but not limited to, price (including any transportation costs) and quantity requirements. Award(s) will be made on the least price combination of quantity being awarded. Award(s) documents will be faxed on the date specified in the IFB. A notice of award will be issued in the form of a Food Purchase Report or other public notice posted at the Department’s Office of Public Affairs, News Division, after award, on the day of acceptance. After award information is posted, inquiries may be made to the Contracting Officer.

Award(s), as specified above, will result in a binding contract without further action by either party. Information on awards is also available electronically through the commodity procurement website at http://www.ams.usda.gov after award.

IV. ORDER OF PRECEDENCE AND INCORPORATED TEXT

The contract will incorporate this Master Solicitation including: the applicable IFB; the Specification; the Contractor’s bid; and the award document. If the contract documents are inconsistent or contradictory, the following order of precedence will prevail: IFB, Master Solicitation, and Commodity Specification(s).

V. CONTRACT COMPLIANCE

The Contractor must assure compliance with all requirements of this Master Solicitation and the Commodity Specification prior to submission of product to USDA for acceptance. Examination and certification by USDA is solely for the benefit of USDA and will not relieve the Contractor of its obligation and responsibility to deliver a product which complies with all requirements of this Master Solicitation and the Commodity Specification. USDA approval of any part of the production process, including but not limited to equipment, will not relieve the Contractor of the responsibility for performing in accordance with the contract.

VI. SHIPMENT AND DELIVERY

Shipment and delivery must be made in accordance with this Master Solicitation; the Commodity Specification; the applicable IFB; and the Notice to Deliver issued to the contractor by the Kansas City Commodity Office (KCCO) following award. The Contractor must closely follow delivery notification instructions contained in the Notice to Deliver. Such notification of delivery is vital, particularly in cases of minimal transit time.

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When notified of shipments, consignees may request upgrading of delivery services or delivery to an alternate warehouse; for example, delivery within the consignee’s premises or to a specific room within a building. Such delivery terms are beyond USDA contractual requirements. Any negotiations to upgrade services are between the Contractor and consignee and any additional charges for special delivery terms are between consignee and Contractor. Any charges invoiced to USDA for additional delivery services will be denied.

When making deliveries to more than one destination from the same railcar, the quantities required at each stop off must be placed in separate compartments under seal. Each railcar compartment must be stacked in a manner that will preclude containers shifting while in transit.

A. Change in Place or Manner of Shipment or Delivery

1. F.O.B. at Origin

If the commodity price is on the basis of delivery F.O.B. cars or trucks at origin and the Contractor requests a change in the shipping point named in the contract and such request is approved by USDA, any additional cost of transportation and related services shall be deducted from payments otherwise due the Contractor and any savings shall accrue to USDA. For F.O.B.

Origin prices, the government will add the cost of transportation to the offer price in evaluation and award.

2. F.O.B at Destination or F.A.S Vessel

If the commodity price is on the basis of delivery F.O.B. cars or trucks at destination or F.A.S.

vessel at designated ports and if USDA orders delivery of the commodity in a manner or to destinations other than those stated in the contract, any additional cost of transportation and related services shall be for the account of USDA and any savings will accrue to USDA.

When a place of delivery is changed by USDA, the contract price shall be adjusted for any resulting increase or decrease in the cost of performance in accordance with best available information as determined by USDA. No adjustment shall be made for changes in transportation costs when commodities are identically priced for delivery regionally or nationally and the place of delivery is changed within the area to which the identical price applies. In all other cases, price adjustments due to changes in transportation costs shall be determined by the USDA prior to shipment. If USDA orders delivery to a destination other than the original destination named in the contract, transportation costs adjustments will be made by the Kansas City Commodity Office.

B. Notice to Deliver

The Kansas City Commodity Office shall issue a Notice(s) to Deliver at least 7 days prior to the first day of each period scheduled in the contract for the delivery of a specified quantity of the commodity. Any modification of such period must be made by agreement with the applicable Contracting Office. Such period or any modification thereof is hereinafter called "the contract delivery period." The date on which the Notice to Deliver is issued shall be shown thereon. The Contractor shall deliver in accordance with instructions in the Notice(s) to Deliver, except that

(1) if a Notice to Deliver is issued less than 7 days prior to the first day of the contract delivery period, such delivery period and each subsequent consecutive delivery period under the contract directly affected by the delay shall be extended by the number of days such Notice is issued late;

and (2) in any event, the Contractor shall be allowed the number of business days contained in the period specified in the contract for delivery of the contract quantity, beginning 7 days after

- 7 -the Notice to Deliver is issued. Notwithstanding the foregoing, the Contractor shall not be entitled to any extension of the contract delivery period under this clause unless it furnishes evidence satisfactory to the Contracting Officer that it was prepared to deliver during the contract delivery period.

The commodity shall be delivered by the Contractor in the manner (F.A.S. vessel, F.O.B. cars, etc.) and at the point(s) of delivery, as required by the contract, pursuant to delivery instructions issued by the Kansas City Commodity Office. Delivery shall not be made before receipt of delivery instructions, or before the time the commodity has been inspected and found to meet specifications.

Immediately on delivery, the Contractor shall, in accordance with instructions on the Notice to Deliver, notify USDA, or consignee, or both, of the delivery.

C. Early Delivery

The Contractor may deliver early upon the approval of the KCCO. Approval may be obtained by telephoning (816) 926-6124. Approval is contingent on the recipient’s concurrence to accept early delivery and upon AMS personnel being available to perform any necessary checkloading and final acceptance duties.

VII. LIABILITY FOR LOSSES DUE TO DETERIORATION, SPOILAGE, OR RECALL

A. Loss Due to Deterioration or Spoilage

The Contractor shall reimburse USDA for all losses due to deterioration or spoilage sustained by USDA for which the Contractor is responsible, but only if such losses are discovered within a reasonable time, as determined by USDA, after delivery. The Contractor agrees to reimburse USDA for such losses within 10 days after date of billing by USDA. That part of the commodity as to which USDA makes a claim based on deterioration or spoilage shall be held by USDA subject to disposition instructions of the Contractor (unless the nature of the deterioration or spoilage is such as to require condemnation and destruction as determined by USDA or its authorized representative) but need not be held by USDA in excess of 30 days after USDA sends notice of such claim to the Contractor. In lieu of reimbursing USDA, the Contractor may replace the deteriorated or spoiled commodity with an equal quantity of commodity which conforms to all contract requirements and specifications, if such replacement is agreed to by USDA.

B. Loss Due to Product Recalled for Health or Safety Risk

In the event the commodity or commodity product is recalled due to a health or safety risk, the Contractor is responsible for all costs associated with removal and replacement of recalled commodities or products, and reimbursement of State and local costs incurred as a result of the recall, as outlined in the Food and Nutrition Service’s (FNS) Commodity Hold and Recall Process. A copy of this report can be obtained at: http://www.fns.usda.gov/fdd/foodsafety/hold-recallpros.pdf. These costs include, at a minimum, storage, transportation, processing, and distribution of the commodities or products.

VIII. INVOICES AND PAYMENT

Invoices requesting payment must be submitted separately by the Contractor to the Fiscal Division, Kansas City Commodity Office. Invoices for payment must be made on the invoice

- 8 -portion of the Notice to Deliver or on a commercial-type invoice and be supported by the original (official) inspection and checkloading certificates, if applicable, and either a copy of commercial bill of lading or other commercial receipt signed by recipient agent evidencing delivery. Invoices for reimbursement of transportation and protective service charges, if any, must be supported by the original or a copy of carrier's receipted freight bill or invoice. If shipment is by contract carrier, the Contractor's invoice must also be supported by a copy of the contract between the Contractor and the truck or rail line showing the schedule of rates, or a copy of the truck or rail line's published rates.

For F.O.B at origin purchases, invoices for payment of freight charges, billed by the transportation companies, must be submitted to the Traffic Management Division, Kansas City Commodity Office. Invoices must contain the applicable Notice to Deliver number to be considered a proper invoice.

Only whole pounds should be shown on the invoice. When the total quantity to be invoiced includes a fraction of a pound, the fraction should be omitted if less than one-half pound and raised to the next full pound if one-half pound or more. The Contractor may include more than one shipment on any invoice.

Submission of an invoice when all contract terms and conditions have not been satisfied may subject the Contractor to civil and criminal penalties as provided in Titles 15, 18, and 31 of the United States Code. The USDA will make payment to the Contractor of any amounts due with respect to each shipment/delivery invoiced.

Payment is due after receipt by the Kansas City Finance Office (KCFO), of a properly prepared invoice with the required supporting documentation within the time indicated below. A properly prepared invoice package must include the following supporting documents:

1. USDA Form KC-269 (Notice to Deliver) or commercial invoice form;

2. Origin USDA Inspection Certificate issued at time of checkloading, if applicable;

and

3. A copy of the Bill of Lading or other commercial receipt signed by recipient agent evidencing delivery date and quantity of product delivered, or destination USDA Inspection Certificate evidencing delivery of product.

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If the items delivered are: Payment must be made as close as possible to but not later than:

Meat or meat food products. As defined in section 2(a)(3) of the Packers and Stockyard Act of 1921 (7 U.S.C. 182(3)), and as further defined in Public Law 98-181, including any edible fresh or frozen poultry meat, and perishable poultry meat food product, fresh eggs, and any perishable egg product.

7th day after product delivery

Fresh or frozen fish. As defined in section 204(3) of the Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)).

7th day after product delivery.

Perishable agricultural commodities. As defined in section 1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C 499a(4)).

10th day after product delivery, unless another day is specified in the contract.

For the purpose of payment, the date of delivery of each shipment of product will be the date of receipt by KCFO of a properly prepared invoice package.

The properly prepared invoice package must be mailed or delivered to the KCFO at the following address:

Director, Kansas City Finance Office U.S. Department of Agriculture ATTN: Fiscal Operations Division Payment Certification Branch STOP 8578 Kansas City, Missouri 64141-6205 Telephone: (816) 926-6205

When applicable, the Contractor will note on their invoice, “Invoice subject to adjustment in transportation costs.”

USDA payments must be made directly to a financial banking institution. To receive payments electronically, Form SF-1199A, Direct Deposit Sign-up Form, can be obtained from KCCO, Commodity Financial Operations Division, ICB; Telephone (816) 926-2550, or access the form via the internet at: https://pcsd.usda.gov:3076/finance/.

IX. CLAUSES INCORPORATED BY REFERENCE

This Master Solicitation incorporates one or more solicitation clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a solicitation provision may be accessed electronically at this address: http://www.acqnet.gov/far.

48 CFR FAR

Clause Reference

Number Description Date

(Month/Year) 52.202-1 Definition Jul. 2004 52.203-3 Gratuities Apr. 1984

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Number Description Date

(Month/Year) 52.203-5 Covenant Against Contingent Fees Apr. 1984 52.203-6 Restriction on Subcontractor Sales to the Government Sep. 2006 52.203-7 Anti-Kickback Procedures Jul. 1995 52.203-8 Cancellation, Rescission, and Recover of Funds for

Illegal or Improper Activity Jan.1997

52.203-10 Price or Fee Adjustment for Illegal or Improper Activity

Jan. 1997

52.203-12 Limitation on Payments to Influence Certain Federal Transactions

Sep. 2007

52.204-7 Central Contractor Registration Apr. 2008 52.209-6 Protecting the Government’s Interest When

Subcontracting with contractors Debarred, Suspended, or Proposed for Debarment.

Sep. 2006

52.211-5 Material Requirements Aug. 2000 52.211-16 Variation in Quantity Apr. 1984 52.211-17 Delivery of Excess Quantities Sep. 1989 52.219-3 Notice of Total HUBZone Set-Aside (Applicable only for contracts involving Set-Asides) Jan. 1999

52.219-6 Notice of Total Small Business Set-Aside (Applicable only for contracts involving Set-Asides)

Jun. 2003

52.219-7 Notice of Partial Small Business Set-Aside (Applicable only for contracts involving Set-Asides)

Jun. 2003

52.219-8 Utilization of Small Business Concerns (Applicable if contract amount exceeds $100,000)

May 2004

52.219-9 Small Business Subcontracting Plan (Applicable if contract amount exceeds $550,000)

Apr. 2008

52.219-9 Small Business Subcontracting Plan – Alternate 1 Oct. 2001 52.219-14 Limitations on Subcontracting (Applicable only for contracts involving Set-Asides if contract amount exceeds $100,000)

Dec. 1996

52.219-16 Liquidated Damages – Subcontracting Plan (Applicable only when Clause 52.219-16 applies)

Jan. 1999

52.222-3 Convict Labor Jun. 2003 52.222-4 Contract Work Hours and Safety Standards Act –

Overtime Compensation July 2005

52.222-21 Prohibition of Segregated Facilities Feb. 1999 52.222-26 Equal Opportunity Mar. 2007 52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of Vietnam Era, and Other Eligible Veterans Sep. 2006

52.222-36 Affirmative Action for Workers with Disabilities Jun. 1998 52.222-37 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans

Sep. 2006

52.223-6 Drug-Free Workplace May 2001 52.223-14 Toxic Chemical Release Reporting (Applicable if contract amount exceeds $100,000) Aug. 2003

52.225-13 Restrictions on Certain Foreign Purchases Jun. 2008

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Number Description Date

(Month/Year) 52.229-3 Federal, State, and Local Taxes Apr. 2003 52.232-1 Payments Apr. 1984 52.232-8 Discounts for Prompt Payment Feb. 2002 52.232-11 Extras Apr. 1984 52.232-17 Interest Oct. 2008 52.232-18 Availability of Funds Apr. 1984 52.232-23 Assignment of Claims Jan. 1986 52.232-25 Prompt Payment Oct. 2008 52.232-33 Payment by Electronic Funds Transfer – Central

Contractor Registration Oct. 2003

52.233-1 Disputes Jul. 2002 52.233-3 Protest after Award Aug. 1996 52.233-4 Applicable Law for Breach of Contract Claim Oct. 2004 52.242-13 Bankruptcy Jul. 1995 52.242-17 Government Delay of Work Apr. 1984 52.243-1 Changes – Fixed Price Aug. 1987 52.244-6 Subcontracts for Commercial Items Feb. 2009 52.246-2 Inspection of Supplies – Fixed-Price Aug. 1996 52.246-15 Certificate of Conformance Apr. 1984 52.246-16 Responsibility for Supplies Apr. 1984 52.247-15 Contractor Responsibility for Loading and Unloading Apr. 1984 52.247-16 Contractor Responsibility for Returning Undelivered

Freight Apr. 1984

52.247-34 F.O.B. Destination Nov. 1991 52.247-36 F.A.S. Vessel, Port of Shipment Apr. 1984 52.247-48 F.O.B. Destination – Evidence of Shipment Feb. 1999 52.247-58 Loading, Blocking, and Bracing of Freight Car shipments Apr. 1984

52.249-1 Termination for Convenience of the Government (Fixed-Price)(Short Form) (Applicable if contract amount is $100,000 or less)

Apr. 1984

52.249-2 Termination for Convenience of the Government (Fixed-Price) (Applicable if contract amount exceeds $100,000)

May 2004

52.249-8 Default (Fixed-Price Supply and Service) Apr. 1984 52.252-2 Clauses Incorporated by Reference Feb. 1998 52.253-1 Computer Generated Forms Jan. 1991

A. AMS Clauses

1. Checkloading

a. The Contractor shall not load the commodity for shipment or transfer the commodity in store unless, at the time of such loading or transferring, the commodity is checkloaded by USDA or by a person of the inspection or grading service designated by USDA.

The Contractor is responsible for giving notice in sufficient time for a USDA agent to be present. The cost of checkloading shall be for the account of the Contractor. Checkloading

- 12 -refers to identifying the commodity which was previously inspected and found to meet contract requirements, examining the commodity at the time of loading or transferring for condition of containers and for compliance with labeling and container marking requirements, and determining the number of containers per car, truck, or lot.

b. Checkloading by persons licensed or authorized by USDA shall not relieve the Contractor of the obligation to effect a delivery of the commodity meeting contract requirements or constitute a waiver of any of USDA's rights under the contract. The certificates issued as a result of such official checkloading shall be only prima facie evidence of the number and condition of containers.

c. The Contractor shall be liable for all shortages which occur before delivery, except that if shipment is by common carrier, the Contractor shall not be liable for a shortage reported at destination unless it can be established, notwithstanding the checkloading certificate, that there was an actual shortage at the time of loading for shipment.

d. This paragraph (d) is not applicable to purchases delivered F.O.B. origin. If the shipment is by truck and USDA specifically requests "Exclusive Use of Vehicle," USDA will reimburse the Contractor for any additional transportation costs due to shipment under "Exclusive Use of Vehicle." The sealing of trucks as part of the checkloading procedure shall not be construed as such a request. In the absence of such a request by USDA, any additional cost of transportation and related services due to shipment under "Exclusive Use of Vehicle" shall be for the Contractor's account. The Contractor shall be responsible for making such arrangements as may be necessary to prevent the application of "Exclusive Use of Vehicle" charges when such charges result in higher transportation costs. The arrangements to be made by the Contractor may include an instruction to the checkloader not to seal the truck when the sealing will result in "Exclusive Use of Vehicle" charges. If, notwithstanding such arrangements, the checkloader seals the truck, the Contractor shall have the responsibility for removing the seals.

2. Obliteration of Markings

The Contractor agrees to take necessary action to prevent the appearance in commercial or other channels of any labels, bags, cans, can lids, cases, or any other type of packaging, either filled or unfilled (hereinafter referred to as "containers and container materials"), bearing markings required under the contract, including those held by the Contractor or others, e.g., overruns.

The following actions with respect to all inner and outer containers and container materials will constitute compliance with the intent of this clause: (a) complete obliteration of all markings required under the contract with a permanent opaque paint, or removal of labels which bear such markings, and overlaying or replacing markings so obliterated or removed with commercial labeling; (b) placing a transparent pressure-sensitive sticker on all containers and container materials bearing USDA markings, which shall state in lettering of a prominent size "SALVAGE BY (insert firm's name)" directly on the "NOT TO BE SOLD OR EXCHANGED" legend wherever it appears on the containers and container materials; (c) drawing one or more x's completely through the markings and with a permanent stamp conspicuously placing thereon the following legend: "This container has not been used and shall not be used for shipment of Government commodities."; or (d) any other actions, approved by the Contracting Officer, which accomplish the intent of the foregoing. The appearance in commercial or other channels of containers and container materials bearing markings required under the contract may cause USDA expense in determining whether commodities have been diverted from authorized use and in answering inquiries.

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B. FAR Clauses

1. Qualification Requirements. (52.209-1)

(a) Definition. “Qualification requirement,” as used in this clause, means a Government requirement for testing or other quality assurance demonstration that must be completed before award.

(b) One or more qualification requirements apply to the supplies or services covered by this contract. For those supplies or services requiring qualification, whether the covered product or service is an end item under this contract or simply a component of an end item, the product, manufacturer, or source must have demonstrated that it meets the standards prescribed for qualification before award of this contract. The product, manufacturer, or source must be qualified at the time of award whether or not the name of the product, manufacturer, or source is actually included on a qualified products list, qualified manufacturers list, or qualified bidders list. Offerors should contact the agency activity designated below to obtain all requirements that they or their products or services, or their subcontractors or their products or services, must satisfy to become qualified and to arrange for an opportunity to demonstrate their abilities to meet the standards specified for qualification.

Contracting Officer USDA/AMS/Poultry Programs 1400 Independence Avenue, SW Commodity Procurement Branch STOP 0260 Washington, DC 20250

(c) If an offeror, manufacturer, source, product or service covered by a qualification requirement has already met the standards specified, the relevant information noted below should be provided.

Offeror’s Name _____________________________________

Manufacturer’s Name________________________________

Source’s Name _____________________________________

Item Name ________________________________________

Service Identification ________________________________

Test Number _______________________________________ (to the extent known)

(d) Even though a product or service subject to a qualification requirement is not itself an end item under this contract, the product, manufacturer, or source must nevertheless be qualified at the time of award of this contract. This is necessary whether the Contractor or a subcontractor will ultimately provide the product or service in question. If, after award, the Contracting Officer discovers that an applicable qualification requirement was not in fact met at the time of award, the Contracting Officer may either terminate this contract for default or allow performance to continue if adequate consideration is offered and the action is determined to be otherwise in the Government’s best interests.

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(e) If an offeror, manufacturer, source, product or service has met the qualification requirement but is not yet on a qualified products list, qualified manufacturers list, or qualified bidders list, the offeror must submit evidence of qualification prior to award of this contract. Unless determined to be in the Government’s interest, award of this contract shall not be delayed to permit an offeror to submit evidence of qualification.

(f) Any change in location or ownership of the plant where a previously qualified product or service was manufactured or performed requires reevaluation of the qualification.

Similarly, any change in location or ownership of a previously qualified manufacturer or source requires reevaluation of the qualification. The reevaluation must be accomplished before the date of award.

2. Liquidated Damages—Supplies, Services, or Research and Development. (52.211-11)

(a) If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, the Contractor shall, in place of actual damages, pay to the Government liquidated damages of $0.0025 per pound per calendar day of delay, not to exceed 45 days of delay.

(b) If the Government terminates this contract in whole or in part under the Default—Fixed-Price Supply and Service clause, the Contractor is liable for liquidated damages accruing until the Government reasonably obtains delivery or performance of similar supplies or services. These liquidated damages are in addition to excess costs of repurchase under the Termination clause.

(c) The Contractor will not be charged with liquidated damages when the delay in delivery or performance is beyond the control and without the fault or negligence of the Contractor as defined in the Default—Fixed-Price Supply and Service clause in this contract.

3. Notification of Employee Rights Concerning Payment of Union Dues or Fees. (52.222-39)

(a) Definition. As used in this clause—

“United States” means the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.

(b) Except as provided in paragraph (e) of this clause, during the term of this contract, the Contractor shall post a notice, in the form of a poster, informing employees of their rights concerning union membership and payment of union dues and fees, in conspicuous places in and about all its plants and offices, including all places where notices to employees are customarily posted. The notice shall include the following information (except that the information pertaining to National Labor Relations Board shall not be included in notices posted in the plants or offices of carriers subject to the Railway Labor Act, as amended (45 U.S.C. 151-188)).

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Notice to Employees

Under Federal law, employees cannot be required to join a union or maintain membership in a union in order to retain their jobs.

Under certain conditions, the law permits a union and an employer to enter into a union-security agreement requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to collective bargaining, contract administration, and grievance adjustment. If you do not want to pay that portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment. If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to an appropriate reduction in future payments.

For further information concerning your rights, you may wish to contact the National Labor Relations Board (NLRB) either at one of its Regional offices or at the following address or toll free number:

National Labor Relations Board Division of Information 1099 14th Street, N.W.

Washington, DC 20570 1-866-667-6572

1-866-316-6572 (TTY)

To locate the nearest NLRB office, see NLRB's website at http://www.nlrb.gov.

(c) The Contractor shall comply with all provisions of Executive Order 13201 of February 17, 2001, and related implementing regulations at 29 CFR Part 470, and orders of the Secretary of Labor.

(d) In the event that the Contractor does not comply with any of the requirements set forth in paragraphs (b), (c), or (g), the Secretary may direct that this contract be cancelled, terminated, or suspended in whole or in part, and declare the Contractor ineligible for further Government contracts in accordance with procedures at 29 CFR Part 470, Subpart B— Compliance Evaluations, Complaint Investigations and Enforcement Procedures. Such other sanctions or remedies may be imposed as are provided by 29 CFR Part 470, which implements Executive Order 13201, or as are otherwise provided by law.

(e) The requirement to post the employee notice in paragraph (b) does not apply to—

(1) Contractors and subcontractors that employ fewer than 15 persons;

(2) Contractor establishments or construction work sites where no union has been formally recognized by the Contractor or certified as the exclusive bargaining representative of the Contractor’s employees;

(3) Contractor establishments or construction work sites located in a jurisdiction named in the definition of the United States in which the law of that jurisdiction forbids enforcement of union-security agreements;

(4) Contractor facilities where upon the written request of the Contractor, the Department of Labor Deputy Assistant Secretary for Labor-Management Programs has waived the posting requirements with respect to any of the Contractor’s facilities if the Deputy Assistant Secretary finds that the Contractor has demonstrated that—

(i) The facility is in all respects separate and distinct from activities of the Contractor related to the performance of a contract; and

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(ii) Such a waiver will not interfere with or impede the effectuation of the Executive order; or

(5) Work outside the United States that does not involve the recruitment or employment of workers within the United States.

(f) The Department of Labor publishes the official employee notice in two variations; one for contractors covered by the Railway Labor Act and a second for all other contractors. The Contractor shall—

(1) Obtain the required employee notice poster from the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5605, Washington, DC 20210, or from any field office of the Department’s Office of Labor-Management Standards or Office of Federal Contract Compliance Programs;

(2) Download a copy of the poster from the Office of Labor-Management Standards website at http://www.olms.dol.gov; or

(3) Reproduce and use exact duplicate copies of the Department of Labor’s official poster.

(g) The Contractor shall include the substance of this clause in every subcontract or purchase order that exceeds the simplified acquisition threshold, entered into in connection with this contract, unless exempted by the Department of Labor Deputy Assistant Secretary for Labor-Management Programs on account of special circumstances in the national interest under authority of 29 CFR 470.3(c). For indefinite quantity subcontracts, the Contractor shall include the substance of this clause if the value of orders in any calendar year of the subcontract is expected to exceed the simplified acquisition threshold. Pursuant to 29 CFR Part 470, Subpart B—Compliance Evaluations, Complaint Investigations and Enforcement Procedures, the Secretary of Labor may direct the Contractor to take such action in the enforcement of these regulations, including the imposition of sanctions for noncompliance with respect to any such subcontract or purchase order. If the Contractor becomes involved in litigation with a subcontractor or vendor, or is threatened with such involvement, as a result of such direction, the Contractor may request the United States, through the Secretary of Labor, to enter into such litigation to protect the interests of the United States.

4. Alterations in Contract. (52.252-4)

Portions of this contract are altered as follows:

X. PROVISIONS INCORPORATED BY REFERENCE

This Master Solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. The offeror is cautioned that the listed provisions may include blocks that must be completed by the offeror and submitted with its offer. In lieu of submitting the full text of those provisions, the offeror may identify the provision by paragraph identifier and provide the appropriate information with its offer. The full text of a solicitation provision may be accessed electronically at: http://www.acqnet.gov/far.

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48 CFR FAR Provision Reference Number

Description Date (Month/Year)

52.203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions

Sep. 2007

52.204-4 Recycled Paper Printed or Copies Double-Sided on Recycled Paper

Aug. 2000

52.214-3 Amendments to Invitation for Bids Dec. 1989 52.214-4 False Statements in Bid Apr. 1984 52.214-5 Submission of Bids Mar. 1997 52.214-6 Explanation to Prospective Bidders Apr. 1984 52.214-7 Late Submissions, Modifications, and

Withdrawals of Bids Nov. 1999

52.214-10 Contract Award–Sealed Bidding Jul. 1990 52.214-15 Period for Acceptance of Bids Apr. 1984 52.214-20 Bid Samples Apr. 2002 52.214-21 Descriptive Literature, Alternate 1 Apr. 2002 52.214-22 Evaluation of Bids for Multiple Awards Mar. 1990 52.214-31 Facsimile Bids Dec. 1989 52.232-15 Progress Payments Not Included Apr. 1984 52.252-1 Solicitation Provisions Incorporated by

Reference Feb. 1998

A. FAR Provisions

1. Annual Representations and Certifications. (52.204-8)

(a)(1) The North American Industry Classification System (NAICS) code for this acquisition is 311615 (poultry products) and 311999 (egg products)

(2) The small business size standard is 500 employees or less.

(3) The small business size standard for a concern which submits an offer in its own name, other than on a construction or service contract, but which proposes to furnish a product which it did not itself manufacture, is 500 employees.

(c) The small business size standard for a concern which submits an offer in its own name, other than on a construction or service contract, but which proposes to furnish a product which it did not itself manufacture, is 500 employees).

2. Type of Contract. (52.216-1)

The Government contemplates award of a fixed-price supply contract resulting from this solicitation.

3. Service of Protest. (52.233-2)

(a) Protests, as defined in section 33.101 of the Federal Acquisition Regulation, that are filed directly with an agency, and copies of any protests that are filed with the General Accounting Office (GAO), shall be served on the Contracting Officer (addressed as follows) by obtaining written and dated acknowledgment of receipt from USDA/AMS/Poultry Programs,

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1400 Independence Ave, SW, Commodity Procurement Branch STOP 0260, Washington, DC 20250.

(b) The copy of any protest shall be received in the office designated above within one day of filing a protest with the GAO.

4. F.O.B. Destination—Evidence of Shipment. (52.247-48)

(a) If this contract is awarded on a free on board (F.O.B.) destination basis, the Contractor—

(1) Shall not submit an invoice for payment until the supplies covered by the…