RFQ 75N95023Q00313.pdf

Solicitation No. 75N95023Q00313

Title: Ti2-E microscope with TIRF adapter, software, and component parts

i. This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6 as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a separate written solicitation will not be issued.

ii. This acquisition is for a commercial item or service and is conducted under the authority of the Federal Acquisition Regulation (FAR) Part 13—Simplified Acquisition Procedures; and FAR Part 12—Acquisition of Commercial Items and is not expected to exceed the simplified acquisition threshold. A fixed-price type of purchase order is contemplated for this requirement.

iii. The solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2023-04, dated 06-02-2023.

iv. The North American Industry Classification System (NAICS) code for this procurement is 334516 - Analytical Laboratory Instrument Manufacturing. This requirement shall be solicited using full and open competitive procedures.

v. Description:

The Government requires the following brand name or equal items:

1. Ti2-E microscope with TIRF adapter, software, and component parts. Please refer to

Attachment 1 – Purchase Description for the brand name or equal line items and quantities.

vi. Please refer to Attachment 1 – Purchase Description for details and information describing the brand name or equal salient characteristics and requirements.

vii. Delivery shall be between 12-14 weeks after receipt of order. Upon receipt vendor will assist with setup and initial testing of the system, and initial training on the use of Elements Software and the TIRF imaging interface.

Delivery shall be made to the following:

Building 35 Room 3B205 35 Convent Dr Bethesda, MD 20892

viii. The provision at FAR Clause 52.212-1 Instructions to Offerors—Commercial Items is applicable to this solicitation.

ix. The provision at FAR Clause 52.212-2, Evaluation-Commercial Products and Commercial Services (NOV 2021) is applicable and incorporated by reference into this solicitation.

A tradeoff process shall be used for this acquisition because it has been determined to be in the best interest of the Government to consider award to other than the lowest priced Offeror or other than the highest technically rated offeror. All evaluation factors other than cost or price, when combined, are more important than cost or price. For this acquisition, the following considerations will be part of the trade-off process: Technical Evaluation Factors including Past Performance, and Price.

The evaluation will be based on the demonstrated capabilities of the prospective Offerors in relation to the needs of the project as set forth in the solicitation. The merits of each quote will be evaluated carefully.

The Government may request clarifying information from the Contractor, as it relates to its quote. If an award will be made without conducting discussions, Contractors may be given the opportunity to clarify certain aspects of their quote (e.g., the relevance of the contract, the Contractor's past performance information, and adverse past performance information to which the Contractor has not previously had an opportunity to respond) or to resolve minor or clerical errors. Discussions will not be held with any Offeror determined to be technically unacceptable.

The Government reserves the right to make a single award, multiple awards, or no award at all as a result of the solicitation. In addition, the solicitation may be amended or canceled as necessary to meet the Government’s requirements.

TECHNICAL EVALUATION CRITERIA

The evaluation factors are used by the technical evaluation committee when reviewing the technical quotes. The factors below are listed in order of its relative importance for evaluation purposes.

a. Technical Capability and Functionality - NIDA shall evaluate the offeror’s technical approach for overall capability and functionality in relation to the General Requirement, Salient Characteristics, Quantity and Deliverables as described in the Purchase Description.

b. Contract Management and Customer Support – NIDA shall evaluate the offeror’s ability to provide a high level of customer service, particularly in the area of initial responsiveness and resolution of device and service problems. Specifically, the Government will evaluate the Offeror’s capability based on its description of any applicable warranty and customer support process.

c. Speed of Delivery, Installation and Set-up – NIDA shall evaluate the offeror’s technical approach for completeness, feasibility, soundness and practicality of the proposed approach and work plan for accomplishing the requirements of the Purchase Description.

PAST PERFORMANCE

Offerors will be evaluated based on information obtained from references provided by the offeror, other relevant past performance information obtained from other sources known to the Government, and any information supplied by the offeror concerning problems encountered on the identified contracts and corrective action taken. Furthermore, the Government will assess the relative risks associated with each offeror. Performance risks are those associated with an offeror's likelihood of success in performing the acquisition requirements as indicated by that offeror's record of past performance. The assessment of performance risk is not intended to be the product of a mechanical or mathematical analysis of an offeror's performance on a list of contracts but rather the product of subjective judgment by the Government after it considers all available and relevant information.

The Offeror should provide past performance information. Past performance information shall cover a minimum of one (1) year in relevant services and deliveries of comparable systems. The Offeror should provide at least one reference for any project identified under the experience factor that has a performance period within the past three (3) years. For each reference, the offeror should provide the following: (1) Organization or contracting partner's name; (2) Point of contact's (POCs) name and contact information (i.e., current phone numbers and valid email addresses); and (3) a description that precisely explains the general scope and specific requirements of the contract.

PRICE EVALUATION

Offerors price quote will be evaluated for reasonableness. For a price to be reasonable, it must represent a price to the government that a prudent person would pay when consideration is given to prices in the market. Normally, price reasonableness is established through adequate price competition, but may also be determined through cost and price analysis techniques. Price evaluation will not be conducted on any Offeror determined to be technically unacceptable.

x. The provision at FAR Clause 52.212-3, Offeror Representations and Certifications Commercial Items, applies to this acquisition.

xi. The provision at FAR Clause 52.212-4, Contract Terms and Conditions—Commercial Items, applies to this acquisition. See Attachment 2.

xii. The provision of FAR Clause 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Commercial Items, applies to this acquisition. See Attachment 2.

xiii. There are no additional contract requirement(s) or terms and conditions applicable to this acquisition.

xiv. The Defense Priorities and Allocations System (DPAS) are not applicable to this requirement.

xv. Responses to this solicitation must include sufficient information to establish the interested parties’ bona-fide capabilities of providing the product or service. Responses to this solicitation must include clear and convincing evidence of the Offeror’s capability of fulfilling the requirement as it relates to the government requirements stated in this solicitation.

Basic cost and price information in the Offeror’s proposal must contain sufficient information to allow the Government to perform a basic analysis of the reasonableness of the Offeror to supply the required goods/services. Any other information or factors that may be considered in the award decision may include such factors as: past performance; special features required for effective service coverage; trade-in considerations; warranty considerations;

maintenance and service coverage availability; serial, product or catalog number(s); product description; delivery terms, and prompt payment discount terms.

The Contractor shall submit its quote electronically.

Offerors MUST verify the valid certifications registrations and Representation and Certifications from the System of Award Management (SAM) applications at www.SAM.gov, which may be indicated on the Offeror’s cover sheet.

In addition the vendor Unique Entity Identifier (UEI) and the certification of business size must be included in the response. All Offerors must have an active registration in the System for Award Management (SAM) www.sam.gov.

All responses must be received no later than August 10, 2023, 3:00 PM EST. Late responses may not be accepted. All responses must reference solicitation number 75N95023Q00313. Responses must be submitted electronically to Llakim.dubroff@nih.gov.

For information regarding this solicitation, please contact Llakim Dubroff by email at Llakim.dubroff@nih.gov or by phone at (301) 443-6677.

xvi. DATE QUESTIONS DUE: Questions and requests for clarification must be submitted electronically to the Contract Specialist, Llakim Dubroff, at Llakim.dubroff@nih.gov on or before 11:00 AM EST, August 7, 2023. Fax responses will NOT be accepted.

http://www.sam.gov/ http://www.sam.gov/ mailto:Llakim.dubroff@nih.gov mailto:Llakim.dubroff@nih.gov mailto:Llakim.dubroff@nih.gov

Version 11-30-2016-1 FAR Part 11—Describing Agency Needs

TEMPLATE PURCHASE DESCRIPTION

INSTRUCTIONS: This template should be used when purchase equipment, products, supplies, software, software license agreements, warranty agreements, and maintenance service agreements. Remove the instructions from the purchase description before submitting with the purchase request.

PURCHASE DESCRIPTION

1. Statement of Need and Purpose:

A Nikon Ti2 microscope with TIRF adapter,TIRF objective,Nikon Elements Control Software,LED light source, XY Stage and a Fusion BT camera are required to replace a system that was damaged in a recent flood. The acquisiton of this system in necessary in order fo rthe CBBU to perform IRM and simultaneous fluorescence measurement on microtubules and MAPs.

2. Background Information and Objective:

The Cell Biology and Biophysics unit (CBBU) performs measurements of microtubules and microtubule associated proteins and their kinetics and dynamics at the single molecule level. To discern the molecular level events, we need to be able to image the microtubules in a label free manner while observing the interacting proteins with fluorescent tags. This necessitates the use of a hybrid TIRF/IRM microscope.

3. Generic Name of Product:

TIRF/IRM Imaging System

4. Purchase Description:

Ti2-E microscope with TIRF adapter, software, and component parts

RFQ 75N95023Q00313

1. Ti2-E Microscope

Qty. Product no. Description

1 MEA54000 Ti2-E Inverted Motorized Microscope Stand, Motorized Light Distribution;

Eye 100/Left 100/Right 100/Left 80/ Eye Prisms, Sideport FOV 22mm C- Mount or 25mm F-Mount, Manual Switching Intermediate Magnification Lens with Status Detection 1.0-1.5x (1.5x exchangeable to 2.0x), Manual In/Out and Manual Focus Bertrand Lens with Status Detection, Built-In Hub for Motorized Accessory Connection, Includes 2 ISO C-Mount Sideport Adapters, Main Cable, Cable Clips and Toolkit

1 MEF55037 Ti2-E Controller, Provides Power for Motorized Stand and Motorized Components, USB and LAN Connection, Two Connectors Accommodating Four I/O Channels Each

1 MXA22149 S-TI2-EXT External Trigger Cable 2 97050 USB 2.0 A-B 15ft Cable 1 79035 Power Cord 120V, Lead Free, UL Listed, Length 7.5 Feet 1 MEB55855 Ti2-T-BC Binocular Body Base Unit with Side Photo Port 1 MEB52520 TC-T-ER Ergo Binocular Tube 2 MAK10110 CFI 10X Eyepiece F.N. 22mm Diopter Adjustment-NC 1 MEP59394 Ti2-ND-P Perfect Focus System 4, 340nm-800nm, Six Place DIC

Motorized Nosepiece with Motorized Reflector, Measure Unit, 45mm IR Block Filter for Diascopic Illumination, Pinch Guard and Drip Hose

1 MEE59925 Ti2-D-PD Diascopic Illumination Pillar, Tilt-Back Design with LockingMechanism, Centerable Condenser carrier, Filter Holder for Two Fixed45mm Filters

1 MEE55705 Ti2-D-LHLED Transmitted Light LED Lamphouse, Built-In Fly Eye Lens forWide, Evem Illumination, 45mm Neutral Density ND32 Filter for Brightfield Observation

1 MBN21816 Filter 45mm, ND16A Multi-Coated Neutral Density 1 MBN11200 Filter 45mm, GIF Green Interference (546/60nm) 1 MEV50010 Ti2-D-SF Diacopic Illumination Slider, Two Fixed 45mm Filter Positions and Two Sliders for Four 45mm Filters 1 MEL51920 Ti2-C-TC-E Motorized Condenser Turret, Seven Position, Aperture

Diaphragm, ND32 Filter In Holder, Light Blocking Module, Labels 1 MEL56200 T-C-LWD Lens Unit for System Condenser Turret, N.A. 0.52, Working

Distance 30mm 1 MEH51510 TC-C-ML-N1D LWD Dry DIC Condenser Module 1 MEH51520 TC-C-ML-N2D LWD Dry DIC Condenser Module 1 MEN51980 Ti-A Analyzer Cube for Transmitted DIC 1 MEN51944 Ti2-C-DICP-I Intelligent DIC Polarizer 2 MEV51030 Ti2-F-FLT-E Motorized Epi Fluorescence Turret, Six Position, Compatible with 25mm and 32mm Fluor Cubes

1 MEE54740 TI2-LA-FL-2 Epi-Fluorescence Module for D-LEDI Epi-Fluorescense LED Illumination System on Ti2 Microscope. Allows for 25mm FOV.

1 MXA22205 C-FIBA Adapter for Fiber Light. Connects New Epi-FL Attachment Module with D-LEDI Epi-Fluorescence LED Illumination System Connection to Fiber Type Light Source with 5mm Diameter Fiber; Intensilight.

1 MED54555 Ti2-FP Fixing Plate 1 MXA22152 Ti2-D-LSK Laser Safety kit (Required for Laser Safety Compliance) 1 MXA22158 S-Ti2I-LU Interlock Cable between Ti2-E, Ti2-A and LU-4A 1 77023046 Interlock Junction Box 1 91170 50/50 Mirror for L-APP Iluuminator (25.5 x36 x2mm) 1 MEE58017 TI-LA-Exchangeable Mirror (100% Reflect) 1 MEE54840 TI2-LA-BM-E Motorized Main Branch 1 MEE54880 TI2-LA-BS Sub Branch 1 MXA22144 TI2-LT-2X 2X Tube Lens 1 999-41 Service Installation of 2X Tube Lens

2. Computer and Software

Qty. Product no. Description

1 77023034 NI-BB PLUS with analog controller triggered device hub for directhardware triggering of optomechanical devices. Includes NationalInstruments PCIe 6323 NIDAQ card and trigger cable set.

Requiresappropriate hardware drivers and triggered device control modules forNIS-Elements.

1 77019779 Advanced Biosystems Z8 Workstation # Minimum specification based on HPZ8 featuring dual Xeon 3.8GHz CPUs, 128GB RAM, NVIDIA RTX A4000 GPU,512GB SSD OS drive, 1TB SSD data drive, 8TB data storage, 2x 10GBEthernet ports, 10x USB 3.1 ports Type A, DVD-RW, premium keyboard andoptical mouse. Windows 10 64-bit Professional. HP 3/3/3 warranty.

1 77012929 BenQ PD3205U DesignVue 31.5" 16:9 4K HDR FreeSync IPS Monitor 1 77019692 PC Accessory Kit, includes Surge Protector, USB to Serial Adapter, A-

Male to A-Female USB2.0 Extension Cable, 5 Port PCI Express USB 2.0Adapter Card.

1 MQS31000 NIS-Elements Advanced Research Package for 6D Image Acquisition and Analysis Includes Camera and Nikon Motorized Microscope Drivers (except Nikon RFA) Optional Modules Include: 6D Acquisition, Jobs, Image Database, 2D/3D Deconvolution, EDF, 2D Object Tracking,3D Measurement, Ratio & FRET, Object Classifier, General Analysis, STORM and SIM

4 MQS31410 NIS-Elements: Advanced Research Software Upgrade Agreement (AR-

SUA)

1 MQS43130 NIS-ELEMENTS JOBS ACQUISITION MODULE FOR CUSTOM

ROUTINES. AVAILABLE FORC AND AR ONLY. MQS42560 6D

IMAGING REQUIRED.

1 MQS41100 NIS-Elements: Hardware Module: Motorized Stage Control - device control for ASI, Ludl, Prior, and Maerzhauser stages.

1 MQS41220 NIS-Elements: Hardware Module: Wavelength control - device control for Sutter, Prior and Unibliz illumination devices including shutters and filter wheels.

1 MQS41320 NIS-Elements: Hardware Module: Motorized Focus Control - device control for external motorized focus control. Includes Prior, Maerzhauser, Nikon RFA, and PI Piezo Z drive (note that piezo is via RS232 only).

1 MQS42560 NIS-Elements: Module: 6D Imaging - Acquisition Module for 6 Dimensional Imaging, Includes Time, Channel or Wavelength and Focus, Multipoint or Multi Stage Position. Note that Device Drivers are Required, and only Available in AR Included in C and HC packages.

1 MQS42780 Device Control for Externally Triggering a Device Through a Camera *MQS41320 is a Required Module for Triggered Piezo Z *MQS41930 is a Required Module for Triggered DG4/5 Available for C, HC, AR & BR only

1 MQS42930 NIS-ELEMENTS ILLUMINATION SEQUENCE FOR FLEXIBLE

TRIGGERED LASER/LEDEXPERIMENT SETUP. AVAILABLE FOR C,

HC AND AR ONLY.

3. Objective

1 MRD01995 CFI SR HP Apo TIRF 100x objective for STORM/SIM NA 1.49 OIL, WD 0.12mm,F.O.V. 22mm

4. TIRF Components

Qty. Product no. Description

1 97327 C-TIRF Ultra High Signal-to-Noise 405/488/561/638nm Quad TIRF Filter Set, Quad 405/488/561/638nm Laser Cleanup, HC TIRF 405/488/561/638nm Quad Dichroic Mirror in Metal Cube, HC Quad Barrier Filter and three Supplementary BP 525/50nm, 600/50nm and 700/75nm HC Laser Block Barrier Filters 25mm for Emission Filter Wheel. (6 filters total)

1 MEE59220 TI2-LA-TIRF-E Motorized TIRF Module for L-APP System 1 MXA22147 S-TI2-DCL Daisy Cable Long, Connects Filter Turrets and Manual L-

Apps Main Branches to Hub for Intelligent Mirror Position 1 MEE59178 TI2-LU-LSC Laser Safety Cover 1 MEE54405 Ti2-P-FWB-E Motorized Barrier Filter Wheel for Sideport, 7 Positions for either 25mm or 32mm Filters, C-Mount Included (50ms to adjacent positions)

5. Epi Light Source

1 77060137 SOLA v-nIR Light Engine Gen III. 380-760nm unfiltered light output,control via USB or control pod (optional). Active output powerstabilization. Includes 3mm core LLG 2m with PVC outer sleeve, USBcable, power supply, and power cord. 24 month warranty.

1 MQS41920 Controls Shutter and Illumination Intensity from EXFO and SOLA (RS232slow Control) Light Sources Note: Control for Sutter Lambda XL, but MQS41220 also needed

1 96370 C-FLL Large Field of View DAPI Filter Set, High-Signal-Noise, Semrock Brightline®, Excitation: 356/30nm (341-371nm), Emission:

447/60nm (417- 477nm), Dichroic Mirror: 409nm

1 96372 C-FLL Large Field of View GFP/FITC/Cy2 Filter Set, High-Signal- Noise, Semrock Brightline®, Excitation: 466/40nm (446-486nm), Emission: 525/50nm (500-550nm), Dichroic Mirror: 495nm

1 96374 C-FLL Large Field of View DSRed/TRITC/Cy3 Filter Set, High-Signal- Noise, Semrock Brightline®, Excitation: 554/23nm (542.5-565.5nm), Emission: 609/54nm (582-636nm), Dichroic Mirror: 573nm

6. XY Stage

1 77011833 3-Axis Stage controller for user w/Closed Loop DC Servo Motor stages and Z-Axis drive. Control electronics included ASI's provenantibacklash algorithm to increase bidirectional accuracy.

1 77020103 40TPI pitch lead screw flat top stage for Nikon Ti2 Microscope 1 77020104 2.5nm resolution linear encoders for flat top stage

7. Fusion BT

Qty. Product no. Description

1 77054116 High Speed interface kit Firebird CoXpress board and cables for ORCAFusion. Includes CoXpress board with full height bracket and two CANARECoXpress cables; one red and one black.

5. Salient characteristics

The Contractor shall provide the NINDS the following:

• A Ti2-E microsocpe imaging system

• An XY Stage with 40 TPI lead screw and bidirectional backlash correction for precise positioning.

• An objective lens with an NA of 1.49

• A camera capable of reaching 26 fps at full framerate

• A combined EPI/TIRF adapter unit for Ti2 microscope

• A white light LED light source capable of manual or remote control

• A CPU capable of streaming full camera chip at least 30 fps

• An installation of Elements control software for hardware interfacing

• All required cables for proper connection

6. Quantity: (1) IRM/TIRF imaging system with light source, stage, TIRF arm, hardware and software interface components, NIS Elements software and a Fusion BT camera

7. Delivery Date: Delivery shall be between 12-14 weeks after receipt of order. Upon receipt vendor will assist with setup and initial testing of the system, and initial training on the use of Elements Software and the TIRF imaging interface.

8. Deliver Address:

POC: Jeffrey Spector Building 35 Room 3B205 35 Convent Dr Bethesda, MD 20892 Jeff.spector@nih.gov 301-443-8574

9. Period of Performance: The vendor shall provide a 1-year warranty on all parts electrical and mechanical. In the event of a failure during the warranty period vendor shall provide a factory certified and trained technician to perform repair at no cost to the government. This includes travel, parts and labor during the warranty period.

10. Option (s): None mailto:Jeff.spector@nih.gov

CONTRACT TERMS AND CONDITIONS – COMMERCIAL PRODUCTS AND

COMMERCIAL SERVICES

Update per FAC 2023-01 Last updated: 12/2022

FAR 52.212-4 Contract Terms and Conditions – Commercial Products and Commercial Services (DEC 2022).

As prescribed in 12.301(b)(3), insert the following clause:

(a) Inspection/Acceptance. 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. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C.3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71,Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

Attachment 2 - 52.212-4RFQ 75N95023Q00313

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include --

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer— System for Award Management, or

52.232-34, Payment by Electronic Funds Transfer—Other Than System for Award Management), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C.

3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt Payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest. (i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law.

If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 4701 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) Reserved

(u) Unauthorized Obligations. (1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of Clause)

Alternate I (Nov 2021) When a time-and-materials or labor-hour contract is contemplated, substitute the following paragraphs (a), (e), (i), (l), and (m) for those in the basic clause.

(a) Inspection/Acceptance. (1) The Government has the right to inspect and test all materials furnished and services performed under this contract, to the extent practicable at all places and times, including the period of performance, and in any event before acceptance. The Government may also inspect the plant or plants of the Contractor or any subcontractor engaged in contract performance. The Government will perform inspections and tests in a manner that will not unduly delay the work.

(2) If the Government performs inspection or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish and shall require subcontractors to furnish all reasonable facilities and assistance for the safe and convenient performance of these duties.

(3) Unless otherwise specified in the contract, the Government will accept or reject services and materials at the place of delivery as promptly as practicable after delivery, and they will be presumed accepted 60 days after the date of delivery, unless accepted earlier.

(4) At any time during contract performance, but not later than 6 months (or such other time as may be specified in the contract) after acceptance of the services or materials last delivered under this contract, the Government may require the Contractor to replace or correct services or materials that at time of delivery failed to meet contract requirements.

Except as otherwise specified in paragraph (a)(6) of this clause, the cost of replacement or correction shall be determined under paragraph (i) of this clause, but the “hourly rate” for labor hours incurred in the replacement or correction shall be reduced to exclude that portion of the rate attributable to profit. Unless otherwise specified below, the portion of the “hourly rate” attributable to profit shall be 10 percent. The Contractor shall not tender for acceptance materials and services required to be replaced or corrected without disclosing the former requirement for replacement or correction, and, when required, shall disclose the corrective action taken. [Insert portion of labor rate attributable to profit.]

(5) (i) If the Contractor fails to proceed with reasonable promptness to perform required replacement or correction, and if the replacement or correction can be performed within the ceiling price (or the ceiling price as increased by the Government), the Government may—

(A) By contract or otherwise, perform the replacement or correction, charge to the Contractor any increased cost, or deduct such increased cost from any amounts paid or due under this contract; or

(B) Terminate this contract for cause.

(ii) Failure to agree to the amount of increased cost to be charged to the Contractor shall be a dispute under the Disputes clause of the contract.

(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government may at any time require the Contractor to remedy by correction or replacement, without cost to the Government, any failure by the Contractor to comply with the requirements of this contract, if the failure is due to--

(i) Fraud, lack of good faith, or willful misconduct on the part of the Contractor’s managerial personnel; or

(ii) The conduct of one or more of the Contractor’s employees selected or retained by the Contractor after any of the Contractor’s managerial personnel has reasonable grounds to believe that the employee is habitually careless or unqualified.

(7) This clause applies in the same manner and to the same extent to corrected or replacement materials or services as to materials and services originally delivered under this contract.

(8) The Contractor has no obligation or liability under this contract to correct or replace materials and services that at time of delivery do not meet contract requirements, except as provided in this clause or as may be otherwise specified in the contract.

(9) Unless otherwise specified in the contract, the Contractor’s obligation to correct or replace Government-furnished property shall be governed by the clause pertaining to Government property.

(e) Definitions. (1) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

As used in this clause—

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are—

(A) Performed by the contractor;

(B) Performed by the subcontractors; or

(C) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(iii) Materials means—

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.);

(D) The following subcontracts for services which are specifically excluded from the hourly rate: [Insert any subcontracts for services to be excluded from the hourly rates prescribed in the schedule.]; and

(E) Indirect costs specifically provided for in this clause.

(iv) Subcontract means any contract, as defined in FAR Subpart 2.1, entered into with a subcontractor to furnish supplies or services for performance of the prime contractor a subcontract including transfers between divisions, subsidiaries, or affiliates of a contractor or subcontractor. It includes, but is not limited to, purchase orders, and changes and modifications to purchase orders.

(i) Payments.

(1) Work performed. The Government will pay the Contractor as follows upon the submission of commercial invoices approved by the Contracting Officer:

(i) Hourly rate.

(A) The amounts shall be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed. Fractional parts of an hour shall be payable on a prorated basis.

(B) The rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by individuals that do not meet the qualifications specified in the contract, unless specifically authorized by the Contracting Officer.

(C) Invoices may be submitted once each month (or at more frequent intervals, if approved by the Contracting Officer) to the Contracting Officer or the authorized representative.

(D) When requested by the Contracting Officer or the authorized representative, the Contractor shall substantiate invoices (including any subcontractor hours reimbursed at the hourly rate in the schedule) by evidence of actual payment, individual daily job timecards, records that verify the employees meet the qualifications for the labor categories specified in the contract, or other substantiation specified in the contract.

(E) Unless the Schedule prescribes otherwise, the hourly rates in the Schedule shall not be varied by virtue of the Contractor having performed work on an overtime basis.

(1) If no overtime rates are provided in the Schedule and the Contracting Officer approves overtime work in advance, overtime rates shall be negotiated.

(2) Failure to agree upon these overtime rates shall be treated as a dispute under the Disputes clause of this contract.

(3) If the Schedule provided rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime is approved by the Contracting Officer.

(ii) Materials.

(A) If the Contractor furnishes materials that meet the definition of a commercial item at FAR 2.101, the price to be paid for such materials shall not exceed the Contractor’s established catalog or market price, adjusted to reflect the--

(1) Quantities being acquired; and

(2) Any modifications necessary because of contract requirements.

(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of this clause, the Government will reimburse the Contractor the actual cost of materials (less any rebates, refunds, or discounts received by the contractor that are identifiable to the contract) provided the Contractor—

(1) Has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or

(2) Makes these payments within 30 days of the submission of the Contractor’s payment request to the Government and such payment is in accordance with the terms and conditions of the agreement or invoice.

(C) To the extent able, the Contractor shall—

(1) Obtain materials at the most advantageous prices available with due regard to securing prompt delivery of satisfactory materials; and

(2) Give credit to the Government for cash and trade discounts, rebates, scrap, commissions, and other amounts that are identifiable to the contract.

(D) Other Costs. Unless listed below, other direct and indirect costs will not be reimbursed.

(1) Other direct Costs. The Government will reimburse the Contractor on the basis of actual cost for the following, provided such costs comply with the requirements in paragraph (i)(1)(ii)(B) of this clause: [Insert each element of other direct costs (e.g., travel, computer usage charges, etc.

Insert “None” if no reimbursement for other direct costs will be provided.

If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the elements of other direct charge(s) for that order or, if no reimbursement for other direct costs will be provided, insert ‘None’.”]

(2) Indirect Costs (Material handling, Subcontract Administration, etc.).

The Government will reimburse the Contractor for indirect costs on a pro-rata basis over the period of contract performance at the following fixed price: [Insert a fixed amount for the indirect costs and payment schedule.

Insert “$0” if no fixed price reimbursement for indirect costs will be provided. (If this is an indefinite delivery contract, the Contracting Officer may insert “Each order must list separately the fixed amount for the indirect costs and payment schedule or, if no reimbursement for indirect costs, insert ‘None’.”]

(2) Total cost. It is estimated that the total cost to the Government for the performance of this contract shall not exceed the ceiling price set forth in the Schedule and the Contractor agrees to use its best efforts to perform the work specified in the Schedule and all obligations under this contract within such ceiling price. If at any time the Contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing this contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will exceed 85 percent of the ceiling price in the Schedule, the Contractor shall notify the Contracting Officer giving a revised estimate of the total price to the Government for performing this contract with supporting reasons and documentation. If at any time during the performance of this contract, the Contractor has reason to believe that the total price to the Government for performing this contract will be substantially greater or less than the then stated ceiling price, the Contractor shall so notify the Contracting Officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during performance of this contract, the Government has reason to believe that the work to be required in performing this contract will be substantially greater or less than the stated ceiling price, the Contracting Officer will so advise the Contractor, giving the then revised estimate of the total amount of effort to be required under the contract.

(3) Ceiling price. The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price in the Schedule, and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the Schedule has been increased, any hours expended and material costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

(4) Access to records. At any time before final payment under this contract, the Contracting Officer (or authorized representative) will have access to the following (access shall be limited to the listing below unless otherwise agreed to by the Contractor and the Contracting Officer):

(i) Records that verify that the employees whose time has been included in any invoice met the qualifications for the labor categories specified in the contract.

(ii) For labor hours (including any subcontractor hours reimbursed at the hourly rate in the schedule), when timecards are required as substantiation for payment—

(A) The original timecards (paper-based or electronic);

(B)…