1 day Carnival Concession 2008 updated.doc

MEMORANDUM FOR ALL INTERESTED OFFERORS

FROM: 700 Contracting Squadron/LGCB

Rhine Ordnance Barracks

Am Opelkreisel, Geb. 164

67663 Kaiserslautern

SUBJECT: Solicitation No. RAMS-F-M3-08Q0003

1. We are requesting a written proposal for the opportunity to operate a carnival concession at the Freedom Fest, Ramstein Air Base.

2. The proposed contract terms and special provisions are attached. A minimum fee of €2,500 per day as remuneration is required. The award will be made to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the NAFI. Technical capability and past performance are considered to be of equal importance. Remuneration is the least important factor for consideration. The following factors will be used to determine the best value to the NAFI.

a. Technical Capability

b. Past Performance

c. Remuneration

3. Please complete the solicitation and forward it no later than 12 Jun 08, 16.00 hrs CET to:

700 Contracting Squadron/LGCB

Mark For: Solicitation No. RAMS-F-M3-08Q0003

Bldg. 164, Rhine Ordnance Barracks

67663 Kaiserslautern

//signed//

ROMEO REYES, TSgt

Contracting Officer

29 May 08

Attachment:

Solicitation No. RAMS-F-M3-08Q0003

CARNIVAL CONCESSIONAIRE CONTRACT

CONTRACTUAL CONTENTS : This contract consists of the following documents:

a. Signature Page…………………………….Page 1

b. Schedule (Articles I-IV)…………………..Pages 2 thru 4

c. Special Provisions………………………...Pages 5 thru 6

d. Statement of Work………………………..Pages 7 thru 12

e. General Provisions … …….Pages 13 thru 23

f. Attachment 1, Floor Plan.. ……………….1 Page

FOR THE NAFI:

FOR THE CONCESSIONAIRE:

Signature of Contracting Officer

Signature of person authorized to sign contract

Tax No.

Type or print name

Type or print name and title

700 CONS/LGCB

Bldg. 164, Rhine Ordnance Barracks

67663 Kaiserslautern

Tel. 0631-536-8013

Address and phone number Date

Address and phone number Date

SCHEDULE

Place of Performance: Freedom Fest Area , 66877 Ramstein Air Base

LINE ITEM

PERFORMANCE PERIOD MINIMUM REMUNERATION PROPOSED

Basic Period

€2,500 per day € _________ per day

4 July 2008

Option Period

4 July 2009

Option Period

4 July 2010

A site visit has been scheduled for 06 Jun 2008 at 1400 hours, for prospective contractors to inspect the area where services are to be performed and to satisfy themselves as to the general and local conditions that may effect the cost of performance of the contract, to the extent such information is reasonably obtainable. Prospective contractors that are interested in attending the scheduled site visit must advise the contract administrator two working days prior to the scheduled visit if they plan to attend, Tel. 06371-47-5991, NAF Purchasing Office/435 SVS/SVFLC. In no event will a failure to inspect the site constitute grounds for a claim after award of the contract.

NOTE TO OFFERORS – YOUR OFFER MUST BE FILLED IN ON THIS SCHEDULE.

ARTICLE I: That:

1. This Concessionaire contract by and between 435th Services Squadron hereinafter referred to as the NAFI, and _____________, hereinafter referred to as the Concessionaire, is for the Concessionaire to operate a 1-Day Carnival to individuals eligible for tax-relief support at assigned space at the ____, Ramstein Air Base for a period of one (1) day, beginning 4 July 2008 and ending 4 July 2008. The hours of operations of this concession will be: 1400 – 0100 hours. The NAFI will furnish for use of the Concessionaire the described items as listed in the statement of work.

2. The Concessionaire will pay the remuneration as listed in the schedule of this contract. Payment of fees due the NAFI shall be made in the currency listed on the schedule eight (8) calendar days prior to the start of the carnival.

ARTICLE II. The Concessionaire shall:

1. Provide products or services of a quality satisfactory to the NAFI manager or their duly authorized representative.

2. Before beginning performance under this agreement but not later than 10 calendar days prior to the carnical, submit a listing of items, with corresponding selling prices, to the Contracting Officer for approval or disapproval action. The final approved listing is considered part of this agreement.

3. Place the price list in a conspicuous spot for patrons to see.

4. At Concessionaire's expense, obtain and maintain all permits, give all necessary notices; pay all license fees; and comply with all municipal, perfectural, and national laws, rules, ordinances, and regulations, and any publication published by the military relating to public health or applicable to the business carried on under this agreement. Assume complete and sole liability for all national, state, and local taxes applicable to the property, income, and transactions of the concession.

5. Comply with all applicable laws pertaining to wages, worker's compensation, equal opportunity, and so forth, as implemented by Air Force directives and required by law.

6. Comply with all memoranda, bulletins, and letters of instruction issued by or in behalf of the NAFI manager or their duly authorized representative. Ensure compliance with the “No Smoking” requirements established by the NAFI by employees and customers in the Concessionaire operated areas.

7. Keep the concession area clean, orderly, attractive, secure and in a safe and sanitary condition to the satisfaction of the NAFI manager or duly authorized representative. All service personnel, facilities and equipment used in the preparation, production, processing, handling, storage or delivery of food and drink products shall meet the sanitary standards prescribed by the NAFI, and bacteriological requirements established by current directives. The Concessionaire’s personnel and facility are subject to inspection by Medical and Safety teams without advance notice.

8. Employ only persons who meet the health standards prescribed by law or regulations, which pertain to the jobs for which they are hired.

9. Furnish a sufficient number of trained employees for the efficient performance of this Concessionaire contract. Concession personnel must meet the health and security standards prescribed by applicable regulations, and must obtain installation passes and permits and security clearances as applicable. Concession personnel must give prompt and courteous treatment to authorized customers. Concession personnel must be neatly dressed and meticulous in their personal grooming at all times. Concessionaire ensures that all clothing worn by employees are clean and in good condition at all times. A nameplate must be worn by each employee.

10. Remove from employment in the concession, on the request of the Contracting Officer, any servant, agent, or employee of the Concessionaire if, in the opinion of the Contracting Officer or duly authorized representative, the conduct of such person, while in and about the premises covered by this contract interferes with proper services or discipline.

11. Agree to hold harmless the United States, the NAFI and any other instrumentality thereof for any loss of non-Government property and merchandise which may result from participation in this concession. This includes but is not limited to such damage, destruction or loss as may result from fire, storm, flood, any other force of nature, theft, human act or negligence on the part of the United States, the NAFI or any other instrumentality thereof. As such the Concessionaire is encouraged to obtain insurance for all non-Government property and merchandise used by the Concessionaire in the operation of the concession.

12. Not leave cash on the premises during non-operational hours.

13. Be responsible for paying all operating expenses not expressly undertaken by the NAFI.

ARTICLE III.

Concessionaire shall not:

1. Represent or permit itself to be represented to the public as an agent or employee of the NAFI by the use of the name of the NAFI on letters, bills, signs, or by any other means. The Concessionaire, its servants, agents, and employees, are in no sense agents of the United States, the NAFI, the commander of the installation within which the concession exists, or of any other entity having to do with the operations of the NAFI.

2. Sell or remove any property that is owned by the NAFI or any other part of the Federal Government and is used in the operation of the concession.

3. Engage in or permit gambling or possession or use of any gambling device on the concession premises or elsewhere on the installation.

4. Sell, deal in, or otherwise possess or transfer, on the concession premises, any form of narcotics, drugs or any form of intoxicating liquors except as authorized by this contract.

5. Loan money to or borrow money from customers or others, which includes Federal Government (including NAFI) employees and military personnel.

6. Sell merchandise or services for anything other than US or Euro currency, unless authorized in writing by the Contracting Officer.

7. Sell merchandise or services on credit.

8. Give or offer to any officer or employee of the NAFI, or any other part of the Federal Government, any gift, privilege, special benefit, discount, or anything else of material or personal nature whereby the individual or employee would appear to receive preferential treatment.

ARTICLE IV:

That:

1. Air Force Auditor General personnel, or any person designated by the installation commander, shall have the right to inspect or audit the accounts and methods of internal control established by Concessionaire, and to make such inspection or audits as may be considered necessary to ensure strict compliance by Concessionaire with all provisions of this contract and with applicable Air Force regulations.

2. This contract, unless sooner terminated as herein provided, may be extended for additional periods, each of which may not exceed two (2) days by mutual agreement of the parties in writing, subject to approval in the same manner as this instrument. In no event will the period of performance exceed three (3) days.

3. This contract is automatically terminated in the event the NAFI is dissolved.

4. Any monies due and payable to the NAFI from the Concessionaire on the date of this contract must be paid in full or will remain due and payable until final settlement.

SPECIAL PROVISIONS

(CONCESSIONAIRE CONTRACT)

1. Additional Definitions. The terms Concessionaire and Contractor are used synonymously and mean the individual, partnership, corporation, or other entity which is a party to this contract and who is responsible for all actions and applicable regulations and performance thereunder.

2. Termination: Notwithstanding the clause titled "Termination for Convenience" of the General Provisions relative to termination of this Concessionaire contract, it is mutually agreed that this Concessionaire contract may be terminated in whole or in part by either party immediately on written notice to the other party in the event of breach of this Concessionaire contract by the other party. This clause takes precedence over all other “termination” clauses contained within this contract save the clause titled "Termination for Convenience" of the General Provisions. Should such a situation arise wherein a breach of contract has not yet occurred but appears likely to occur, the clause titled "Termination for Cause" of the General Provisions shall control.

3. Actions To Be Taken Upon Termination (Including Expiration). Concessionaire will promptly settle its account with the NAFI, including payment in full of all amounts due, yield up the facilities and all NAFI furnished property, clean and leave premises in as good order and condition as when received (exceptions are damages due to acts of God or the US Government, and ordinary wear and tear); surrender all installation passes, decals, and so forth, and complete satisfactory settlement of all customer complaints and claims. Termination of the Concessionaire contract does not release the Concessionaire from the obligation to satisfactorily settle customer complaints and claims. The Concessionaire will promptly remove all Concessionaire owned fixtures and supplies. On failure to remove the Concessionaire’s property, the Contracting Officer may cause Concessionaire’s property to be removed and stored in a warehouse at the Concessionaire’s expense. If the Concessionaire is indebted to the NAFI, the Concessionaire authorizes and empowers the Contracting Officer to take possession of the Concessionaire’s property and dispose of same by public sale without notice, and out of the proceeds of sale, satisfy all costs and indebtedness to NAFI,. Failure to fully comply with the provisions of this clause will cause the NAFI to withhold final payment until such time as the provisions have been satisfied.

4. Indebtedness:

a. The Concessionaire will pay promptly and in accordance with the terms all indebtedness incurred in connection with the performance of this Concessionaire contract.

b. The NAFI may charge the Concessionaire for a dishonored check received from the Concessionaire, except when the bank acknowledges the return to be the result of bank error or the return is the result of a NAFI error. The amount charged by the NAFI will not exceed the administrative amount normally charged NAFI customers for dishonored checks.

5. RESERVED.

6. Claims by Concessionaire. No claim by the Concessionaire relating to this Concessionaire contract may be considered by the Contracting Officer unless such claim is submitted in writing to the Contracting Officer not later than 90 days after the effective date of termination or expiration of this Concessionaire contract. This clause does not extend the period for filing claims where specifically limited by another clause.

7. Nonwaiver of Defaults. Any failure by the NAFI to enforce or require strict performance of any terms or conditions of this Concessionaire contract will not constitute a waiver, and will not affect or impair such terms and conditions in any way or effect the right of the NAFI at any time to avail itself of such remedies as it may have for breach or breaches of such terms and conditions.

8. Trade Fixtures and Supplies. The Concessionaire will furnish, at its expense, all trade fixtures and supplies required for performance of this Concessionaire contract.

9. RESERVED.

10. Customer Complaints, Claims, and Refunds. The Concessionaire agrees to adhere to the NAFI policy of customer satisfaction guaranteed and shall be responsible for refunds (to include cash refunds) to customers due to customer dissatisfaction with an item or due to overcharges. All customer complaints, claims, and refunds shall be resolved and made at Concessionaire’s expense. Any disagreement that cannot be resolved between Concessionaire and the customer shall be referred to the Contracting Officer, whose decision shall be final and not subject to the Disputes clause. If the Concessionaire fails to process complaints or claims and make refunds in a timely manner, the NAFI may settle customer complaints or claims and make such refunds, and charge the settlement cost to Concessionaire’s account.

11. RESERVED.

12. RESERVED.

13. Utilities. The NAFI will furnish sufficient quantities of space and water to satisfy the normal needs of Concessionaire for drinking, sanitation, and the operation of suitable support equipment.

14. Premises. The assignment of space is revocable and is not construed as the creation of tenancy. Concessionaire is liable for any damage to or loss of the premises and NAFI furnished property or injury to persons resulting from acts or omissions of Concessionaire, its employees, or agents, whether or not covered by insurance. Sublet of any of the premises assigned or assignment to another concession is not authorized. Use of the premises and NAFI furnished property for any purpose other than those specifically set forth herein is prohibited. Concessionaire will not make any alterations in the facilities provided without prior authorization from the NAFI manager. Concessionaire will comply with installation fire and safety regulations, and applicable health and sanitation regulations. Concessionaire will post or display on the premises any sign furnished by the NAFI.

15. Taxes: Concessionaire assumes complete and sole liability for all Federal, State, host country, and local taxes applicable to the property, income, and transactions of the Concessionaire, and where required by applicable laws and regulations, will collect and remit to the State applicable sales taxes. Sales taxes, which have been collected, are excluded from the computation of gross receipts in the determination of the fee payable to NAFI. The amount of taxes excluded will not exceed the actual sum payable to the State. Where required by State law or regulation, the Concessionaire will obtain and conspicuously display the State sales tax permit. The Concessionaire warrants that the amount payable to the NAFI has not been reduced by the amount of any tax or duty from which the Concessionaire is exempt. If any such tax or duty has been included the pricing or consideration through error or otherwise, the contract pricing or consideration shall correspondingly reduced or adjusted. If for any reason after the contract date, the Concessionaire is relieved in whole or in part from the payment or the burden of any tax or duty included in the contract pricing or other consideration, the contract pricing and other consideration shall correspondingly reduced or adjusted.

STATEMENT OF WORK FOR 1-DAY CARNIVAL

1.0.

GENERAL.

1.1.

PLACE OF PERFORMANCE. The NAFI will provide the place of performance within the Ramstein Military Community. See attached floor plan for size and location of the carnival area and parking for trailers and personal cars.

1.2.

CONTRACTOR PROVIDED MATERIAL/EQUIPMENT. The contractor shall provide the following material/equipment at his expense:

1.2.1.

Carnival amusements/rides: children pony ride and a minimum of 1 other children ride are required; total number of rides shall not exceed 3;

1.2.2.

1 candy stand and a minimum of 1 souvenir stands; total number of stands shall not exceed 3;

1.2.3.

Trash receptacles: A minimum of one trash receptacle for each stand, each booth and each ride;

1.2.4.

Electrical accessories required to operate the carnival;

1.2.5.

Fire extinguishers for each ride, stand, and for all other electrical equipment such as generators;

1.3.

GOVERNMENT PROVIDED UTILITIES. The NAFI will furnish sufficient quantities of space and water to satisfy the needs of the contractor for drinking and sanitation, and the operation of suitable equipment therefore. The NAFI will furnish sufficient electricity to the contractor for the operation of the maximum number of rides/booth/stands listed in 1.2.1 – 1.2.2.

1.4.

INSPECTION DOCUMENT. The contractor shall present a copy of the Germany TUV inspection document not later than one calendar day after the inspection of the rides but before the performance period to the Contracting Officer's designee.

1.5.

PERMITS AND LICENSES. The contractor is responsible for obtaining any permits and licenses required at his own expense.

1.6.

INSURANCE. The contractor must have liability insurance of at least €5,000,000.00 and furnish proof of such to the Contracting Officer or Contracting Officer's designee within five (5) calendar days after award of contract.

1.7.

AIR FORCE DIRECTIVES. The contractor shall comply with all Air Force health, safety and fire directives pertinent to public events within a military community, which will be available upon request from the Contracting Officer's designee. The Contracting Officer's designee will inform the contractor about Air Force health, safety and fire directives during the site visit.

1.8.

SAFETY RULES. The contractor shall ensure that safety rules are posted at each ride in the German and English languages. All rides, each stand, generators and all electrical equipment shall have fire extinguishers. Generators shall be fenced in. Electrical lines and cords shall be covered by rubber padding or another safety device, which prevents tripping and other safety hazards. Each ride shall have the current insurance proof and TÜV inspection books available starting the day of set-up. Upon request those documents shall be available for safety inspection. All rides not approved by the safety personnel due to documents not being available will remain closed until such documents are available and the ride has been inspected by the safety representative.

1.9.

The contractor shall be able to read and speak the English language or shall provide an authorized representative who is able to read and speak English. The contractor or his representative shall be available during the complete set-up as a point of contact for the NAFI.

1.10.

PAYMENT. The contractor shall pay 100% of the remuneration not later than eight (8) calendar days prior to the first set-up day (between 0800 - 1600 hours). The contractor shall submit a list of rides and booth with the payment. All payments shall be made in cash or certified bank check and hand carried to: 435 SVS/SVFRO, Central Cashier, Bldg. 2118, 66877 Ramstein-Flugplatz.

2.0.

SITE VISIT. The contactor shall contact the Contracting Officer's designee not later than five (5) calendar days after contract award to determine a date for the site visit.

2.1.

PARKING. The contractor shall ensure that all carnival personnel limit parking of personal vehicles, trucks, trailers according to the floor plan. Boundaries for parking will be furnished by the NAFI one calendar day prior to the first set-up day.

2.2.

SET-UP OF CARNIVAL. Set-up of carnival can begin two (2) calendar days prior to the first performance day.

2.3.

TEAR-DOWN OF CARNIVAL. Tear-down of the carnival shall be completed within two (2) calendar days after the period of performance.

2.4. FIREWORKS. During the fireworks (provided by the NAFI) the contractor shall stop all rides and amusements (to include music). Duration of the fireworks is between 30-40 minutes on the 4th of July around 22.30 hours.

2.5.

ADVERTISEMENT. All advertisements will be done by the NAFI at the NAFI's expense.

2.6.

BASE ENTRY. The contractor and his authorized representative will be provided a base entry pass for the duration of the carnival, set-up and tear down. Therefore he shall contact the contracting officer representative, not later than five working days prior to the first set-up day. The contractor shall provide a list of names, passport numbers, license plate numbers and a German report of good conduct (not older than 90 days) for each personnel who need to enter the base to work the carnival. This information shall be provided prior to the first set-up day. No political asylum passport or refugee passport shall be accepted for base entry.

3.0.

CARNIVAL AMUSEMENTS/RIDES.

3.0.1. The contractor shall set-up, operate and tear down the carnival rides and stands. The contractor shall not operate the fest tent or other type of food and beverages, except for candy stands. The NAFI will operate a fest tent and provide types of food and beverages for resale.

3.0.2. After the ride list is received by the contracting officer, it will be forwarded to the safety office for approval. If the safety office disapproves a ride the contractor shall replace it with another ride. The ride list shall include the price charged per ride.

3.0.3. The contractor shall charge no more than the standard charge for similar type of rides/amusements offered to the general public in other carnival operations conducted during the same time period. All prices shall be posted in Dollar ($) and Euro (€). Dollars and Euro shall be accepted.

3.2.

TRASH REMOVAL. Each trash receptacles shall be emptied prior to each performance day and as needed during the day to prevent overflow. The contractor is responsible for keeping the areas made available to him clean, orderly and sanitary. All trash shall be swept and picked up at least hourly. The contractor shall empty the trash receptacles into the dumpsters made available by the NAFI.

4.0. DEPOSIT. The contractor shall pay a deposit in the amount of €500.00 for the carnival area together with the remuneration (paragraph 1.10) not later than eight (8) calendar days prior to the first set-up day (between 0800 - 1600 hours). The deposit will be returned after the final tear down, removal and clean up of the carnival area. The NAFI will keep the entire deposit if the contractor has not removed all rides, booth, stands, tents as well as all other contractor equipment or has not cleaned up or removed trash and trash bags from the carnival area within the time required stated in this statement of work.

EVALUATION:

The Government will award a concessionaire contract from this solicitation to the responsible offeror whose offer conforming to the solicitation will be the most advantageous to the Government, technical capability, past performance, remuneration and other factors considered. This is a best value procurement; subjective judgment is implicit in the award decision. Technical capability and past performance are considered to be of equal importance. Remuneration is the least important factor for consideration. The following factors will be used to determine the best value to the Government.

1. Technical capability

2. Past Performance

3. Remuneration: Minimum is €2,500.00 per day for the basic year and all option years.

(1) Technical Evaluation. Technical evaluation shall be on an acceptable/unacceptable basis.

Factor 1: Understanding of, and ability to, accomplish the Statement of Work (SOW) requirements.

a. Explain in detail, how each of the requirements in the SOW will be satisfied.

This standard has been met when the offeror demonstrates a thorough understanding of the SOW requirements.

Factor 2: Certification. Provide evidence of business registration and a bank certification stating the offeror has the financial capabilities (minimum of €10,000.00) for the operation of the concession.

This standard has been met when the offeror submits a copy of their business registration providing that they are authorized and an officially registered business and a statement from the offeror’s bank certifying the offeror has the necessary financial capabilities for the operation of the concession.

Factor 3: Experience. Provide documentation describing its experience as a business or corporation in performing as a concessionaire.

This standard has been met when the offeror submits proof of at least thirty six (36) months experience within the last five (5) years as a Carnival Concessionaire or in the local carnival service industry.

Factor 4: Schedule. Complete all fill-ins on page 1 on the signature page section “For the Concessionaire” and page 2 in the schedule of the solicitation.

This standard has been met if the offeror completed all fill-ins on page 1, signature page and schedule, page 2 of the solicitation.

Factor 5: Security. Provide a copy of the current passport or identity card and a current copy of their “CCR Validation” from CCR database found at www.ccr.gov.

This standard has been met if the offeror submits a copy of his/her passport or identity card and a copy of the CCR Validation.

(2) Past Performance.

The purpose of the past performance evaluation is to assess the confidence in the offeror’s ability to successfully accomplish the proposed effort based on the offeror’s demonstrated present and past work record. The Government requests that offerors submit relevant past and present contracts, to include performance as a subcontractor, within the previous five (5) years from the date established deadline for receipt of proposals. Past performance shall be evaluated for and quality of services rendered. “Relevant” is defined as services of similar size, scope and complexity of those described in this solicitation. In addition, for each contractor the Government may attempt to contact other customers known to the Government, consumer protection organization, and any other sources that may have useful and/or relevant information.

Past Performance Rating:

Exeptional/High Confidence: Based on the offeror’s performance record, essentially no doubt exists that the offeror will successfully perform the required effort.

Very Good/Significant Confidence: Based on the offeror’s performance record, little doubt exists that the offeror will successfully perform the required effort.

Satisfactory/Confidence: Based on the offeror’s performance record, some doubt exists that the offeror will successfully perform the required effort.

Neutral/Unknown Confidence No performance record identifiable.

Marginal/Little Confidence: based on the offeror’s performance record, substantial doubt exists that the offeror will successfully perform the required effort. Changes to the offeror’s existing process may be necessary in order to achieve contract requirements.

Unsatisfactory/No Confidence: Based on the offeror’s performance record, extreme doubt exists that the offeror will successfully perform the required effort.

(3) Remuneration. For award purposes the offeror will be evaluated on the proposed remuneration in the schedule. The offeror must include the proposed remuneration for the basic year and each option year. Failure to include proposed remuneration will exclude the offer from further consideration for award. Any offer may also be rejected if it does not meet the minimum remuneration of €2,500.00 per day on the schedule. The Contracting Officer may require an offeror to provide additional information to establish the reasonableness of any price proposed.

The Government will evaluate offers by adding the total proposed remuneration for all options.

GENERAL PROVISIONS

l. DEFINITIONS (JAN 2005) ‑ As used throughout this contract, the following terms and abbreviations have the meanings set forth below:

a. The term "contract" means this agreement or order and any modifications hereto.

b. The abbreviation "NAFI" means Nonappropriated Fund Instrumentality of the United States Government.

c. The term "Contracting Officer" means the person executing or responsible for administering this contract on behalf of the NAFI, which is a party hereto, or their successor or successors.

d. The term "Contractor" means the party responsible for providing supplies and/or services at a certain price or rate to the NAFI under this contract.

e. The abbreviation “FAR” means Federal Acquisition Regulation.

2. DISPUTES (NOV 2005)

a. Except as otherwise provided in this contract, any dispute or claim concerning this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall state his decision in writing and mail or otherwise furnish a copy of it to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Armed Services Board of Contract Appeals, and the decision of the Board shall be final and conclusive; provided that if no such appeal is filed, the decision of the Contracting Officer shall be final and conclusive. The Contractor shall be afforded an opportunity to be heard and to offer evidence in support of any appeal under this clause. Pending final decision on such a dispute, however, the Contractor shall proceed diligently with the performance of the contract and in accordance with the decision of the Contracting Officer unless directed to do otherwise by the Contracting Officer.

b. A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. Contractors shall provide the certification specified below when submitting any claim. Any person duly authorized to bind the Contractor with respect to the claim may execute the certification.

“I certify that the claim is made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify on behalf of the Contractor.”

c. This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph "a" above, provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

3. LAW GOVERNING CONTRACTS (JAN 2005) ‑ In any dispute arising out of this contract, the decision of which requires consideration of law questions, the rights and obligations of the parties shall be interpreted and determined in accordance with the substantive laws of the United States of America.

4. LEGAL STATUS (JAN 2005) ‑ The NAFI is an integral part of the Department of Defense and is an instrumentality of the United States Government. Therefore, NAFI contracts are United States Government contracts; however, they do not obligate appropriated funds of the United States.

5. EXAMINATION OF RECORDS (JAN 2005) - This clause is applicable under contracts that are entered into by means of negotiation and where price and costing data are required to support a determination of price reasonableness. This clause does not apply to commercial items or when the Contracting Officer determines that prices agreed upon are based on adequate price competition. The Contractor agrees that the Contracting Officer or his duly authorized representative shall have the right to examine and audit the books and records of the Contractor directly pertaining to the contract during the period of the contract and until the expiration of three years after the final payment.

6. ASSIGNMENT (JAN 2005) ‑ The Contractor or its assignee’s rights to be paid amounts due as a result of performance of this contract, may be assigned. No assignment by the Contractor, assigning its rights or delegating its obligations under this contract will be effective and binding on the NAFI until the written terms of the assignment have been approved in writing by the Contracting Officer.

7. GRATUITIES (JAN 2005)

a. The NAFI may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this contract if it is found, after notice and hearing, by the Secretary of the Air Force or their duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent, or representative of the Contractor, to any officer or employees of the Government or the NAFI with a view toward securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such contract.

b. In the event this contract is terminated as provided in paragraph "a" hereof, the NAFI shall be entitled (i) to pursue the same remedies against the Contractor as it could pursue in the event of a breach of contract by the Contractor, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the Secretary of the Air Force or their duly authorized representative) which shall be not less than three nor more than ten times the cost incurred by the Contractor in providing any such gratuities to any such officer or employee.

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

8. TERMINATION FOR CONVENIENCE (JAN 2005) ‑ The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the best interest of the NAFI. If this contract is for supplies and is so terminated, the Contractor shall be compensated in accordance with FAR, Sub Parts 49.1 and 49.2 in effect on this contract's date. To the extent that this contract is for services and is so terminated, the NAFI shall be liable only for payment in accordance with the payment provisions of this contract for services rendered prior to the effective date of termination, providing there are no Contractor claims covering nonrecurring costs for capital investment. If there are any such Contractor claims, they shall be settled in accordance with FAR, Sub Parts 49.1 and 49.2.

9. CANCELLATION BY MUTUAL AGREEMENT (JAN 2005) - Should the situation warrant, the parties upon mutual agreement and no costs, may cancel this contract.

10. TERMINATION FOR CAUSE (JAN 2005)

a. (1) The NAFI may, subject to paragraphs (c) and (d) below, by written notice of cause to the Contractor, terminate this contract in whole or in part if the Contractor fails to-

(i) Deliver the supplies or perform the service within the time specified within this contract or any Extension;

(ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) below);or

(iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below).

(2) The NAFI's right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of notice from the Contracting Officer specifying the failure.

b. If the NAFI terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will remain liable to the NAFI for any excess costs for those supplies or services. However the Contractor must continue the work not terminated.

c. The Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the public enemy, (2) act of the NAFI in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and; (9) unusually severe weather. Defaults by subcontractors at any tier for any reason do not constitute causes beyond the control and without the fault or negligence of the Contractor.

d. If this contract is terminated for cause, the NAFI may require the Contractor to transfer title and deliver to the NAFI as directed by the Contracting Officer, any

(1) completed supplies, and

(2) partially completed supplies and materials, parts, tool dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as manufacturing materials in the clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract. Upon direction of the Contracting Officer, the Contractor shall also protect and preserve property in its possession in which the NAFI has an interest.

e. The NAFI shall pay the contract price for completed supplies delivered and accepted. The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes Clause. The NAFI may withhold from these amounts any sum the Contracting Officer determines to be necessary to protect the NAFI against loss because of outstanding liens or claims of former lien holders.

f. If, after termination, it is determined that the cause by the Contractor was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for convenience of the NAFI.

g. The rights and remedies of the NAFI in this clause are in addition to any other rights and remedies provided by law or under this contract.

11. INSPECTION AND ACCEPTANCE (JAN 2005) ‑ Inspection and acceptance will be at destination, unless otherwise provided in this contract. Not withstanding the requirements for any NAFI inspection and test contained in specifications applicable to this contract, except where specialized inspections or tests are specified for performance solely by the NAFI, the Contractor, shall perform or have performed the inspections and tests required to substantiate that the supplies provided under the contract conform to the drawings, specifications, and contract requirements listed herein, including if applicable the technical requirements for the manufacturers' part numbers specified herein. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. Acceptance of the supplies or services or a written notice of rejections must be accomplished on or before the fifth working day following delivery of the supplies or services, unless otherwise specified in this contract.

12. VARIATION IN QUANTITY (JAN 2005) ‑ No variation in quantity of any item called for by this contract will be accepted unless authorized by the Contracting Officer.

13. PARTIAL DELIVERIES (JAN 2005) - Partial deliveries are not permitted unless authorized by the terms of the contract or approved by the Contracting Officer.

14. PAYMENTS (JAN 2005) - Partial payments will be made when deliveries are authorized or as approved by the Contracting Officer. Payments and penalties for late payments are subject to the requirements established by the Prompt Payment Act, as amended, and as implemented for NAFI's. If the NAFI makes payment but such payment fails to include a prompt payment penalty due to the Contractor within 10 days from when the contract payment is made, penalty amounts will not be paid unless the Contractor makes a written request within forty days after the date of payment.

15. HOLD AND SAVE HARMLESS (JAN 2005) ‑ The Contractor shall indemnify, hold and save harmless, and defend the NAFI, its outlets and customers from any liability, claimed or established for violation or infringement of any patent, copyright, or trademark right asserted by any third party with respect to goods hereby ordered or any part thereof. Contractor further agrees to hold the NAFI harmless from all claims or judgments for damages resulting from the use of products or services listed in this contract, except for such claims or damages caused by, or resulting from negligence of NAFI customers, employees, agents, or representatives. Also, Contractor shall at all times hold and save harmless the NAFI, its agents, representatives, and employees from any and all suits, claims, charges, and expenses which arise out of acts or omissions of Contractor, its agents, representatives, or employees.

16. MODIFICATIONS (JAN 2005) ‑ No agreement or understanding to modify this contract will be binding upon the NAFI unless made in writing and signed by a Contracting Officer from the office that issued the contract or its successor.

17. TAXES (JAN 2005)

a. Except as may be otherwise provided in this contract, the contract price includes all taxes, duties or other public charges in effect and applicable to this contract on the contract date, except any tax, duty, or other public charge, which by law, regulation or governmental agreement, is not applicable to expenditures made by the NAFI or on its behalf; or any tax, duty, or other public charge from which the Contractor, or any subcontractor hereunder, is exempt by law, regulation or otherwise. If any such tax, duty, or other public charge has been included in the contract price, through error or otherwise, the contract price shall be correspondingly reduced.

b. If for any reason, after the contract date of execution, the Contractor or subcontractor is relieved in whole or in part from the payment or the burden of any tax, duty, or other public charge included in the contract price, the contract price shall be correspondingly reduced; or if the Contractor or subcontractor is required to pay in whole or in part any tax, duty, of other public charge which was not applicable at the contract date of execution the contract price shall be correspondingly increased.

18. PROOF OF SHIPMENT (JAN 2005) ‑ (Applicable to shipments outside the United States through the Surface Deployment and Distribution Command (SDDC) and Parcel Post shipments to overseas destinations.)

a. Notwithstanding any clause of this contract to the contrary, payment will be made for items not yet received, upon receipt of an invoice accompanied by an appropriate proof of shipment. If shipment is made by insured parcel post, the contractor must furnish a copy of the Insured Mail Receipt issued by the US Postal Service. Otherwise, a stamped copy of a Certificate of Mailing issued by the US Postal Service must be furnished. If shipment is made by a common carrier (rail, air or motor freight), the Contractor must furnish a signed copy of the shipping document on which items are receipted for by the common carrier. A signed receipt by a NAFI representative at the delivery point (CCP or POE) is also acceptable evidence of proof of shipment.

b. Forwarding a proof of shipment and an invoice for payment by the Contractor shall be construed as a certification by the contractor that the items shipped conform to the specifications.

c. Notwithstanding any provisions of this clause or any payment made pursuant to the terms of this clause prior to receipt of the items contracted for, the NAFI retains the right to inspect upon receipt and the right to reject nonconforming items. The liability of the Contractor with respect to items for which payments have been made will, after inspection by the NAFI or after the expiration of a reasonable time following delivery to the NAFI within which inspection may be made, whichever occurs first, be limited to (i) exceptions taken at the time of inspection, and (ii) latent defects, fraud, or such gross mistakes as amount to fraud.

19. COMMERCIAL WARRANTY (JAN 2005) ‑ The Contractor agrees that the supplies or services furnished under this contract shall be covered by the most favorable commercial warranties the Contractor gives to any customer for such supplies or services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the NAFI by any other clause of this contract. The printed terms and conditions of such warranty will be provided to the NAFI with the delivery of any supplies covered.

20. ADVERTISEMENTS (JAN 2005) ‑ Contractor agrees that none of its nor its agent's advertisements, to include publications, merchandise, promotions, coupons, sweepstakes, contest, sales brochures, etc, shall state, infer or imply that the Contractor's products or services are approved, promoted, or endorsed by the NAFI. Any advertisement, including cents‑off coupons, which refers to a NAFI will contain a statement that the advertisement is neither paid for, nor sponsored in whole or in part by, the particular activity.

21. DISCOUNTS FOR PROMPT PAYMENT (JAN 2005)

a. Discounts for prompt payment will not be considered in the evaluation of offers. However, any offered discount will form a part of the award, and will be taken if payment is made within the discount period indicated in the offer by the offeror. As an alternative to offering a prompt payment discount in conjunction with the offer, offerors awarded contracts may include prompt payment discounts on individual invoices.

b. In connection with any discount offered for prompt payment, time shall be computed from the date of the invoice. If the Contractor has not placed a date on the invoice, the due date shall be calculated from the date the designated billing office receives a proper invoice, provided the agency annotates such invoice with the date of receipt at the time of receipt. For the purpose of computing the discount earned, payment shall be considered to have been made on the date that appears on the payment check or, for an electronic funds transfer, the specified payment date. When the discount date falls on a Saturday, Sunday, or legal holiday when Federal Government offices are closed and Government business is not expected to be conducted, payment may be made on the following business day.

22. INVOICES (JAN 2005):

a. An invoice is a written request for payment under the contract for supplies delivered or for services rendered. In order to be proper, an invoice should include (and in order to support the payment of interest penalties, must include) the following:

(i) Invoice date;

(ii) Name of Contractor;

(iii) Contract number (including order number, if any), contract line item number, contract description of supplies or services, quantity, contract unit of measure and unit price, and extended total;

(iv) Shipment number and date of shipment (Bill of Lading number and weight of shipment will be shown for shipments on Government Bills of Lading);

(v) Name and address to which payment is to be sent (which must be the same as that in the contract or on a proper notice of assignment);

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

(vii) Any other information or documentation required by other provisions of the contract (such as evidence of shipment). Invoices shall be prepared and submitted in duplicate (one copy shall be marked “Original") unless otherwise specified.

b. For purposes of determining if interest begins to accrue under the PROMPT PAYMENT ACT (PUBLIC LAW 97‑177):

(i) A proper invoice will be deemed to have been received when it is received by the office designated in the contract for receipt of invoices and acceptance of the supplies delivered or services rendered has occurred.

(ii) Payment shall be considered made on the date on which a check for such payment is dated.

(iii) Payment terms…