RFQ. No. 75N95024Q00433.pdf

RFQ No. 75N95024Q00433

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COMBINED SYNOPSIS / SOLICITATION-COMPETITIVE

Title: High-throughput Cell Analysis System and Automated Incubator

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

2. The solicitation number is 75N95024Q00433 and the solicitation is issued as request for quotation (RFQ).

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.

The NeuroTherapeutics Development Unit (NTDU) Translational Neuroscience (TNC) National Institute of Neurological Disorders and Stroke (NINDS) requires the purchase of a high throughput cell analysis system with equivalent capabilities to the Agilent xCELLigence RTCA HT system to facilitate the screening and evaluation of toxicities to neurons and other cells following exposure to chemotoxic agents, toxic proteins and viral infections.

The mission of the Translational Neuroscience Center, TNC/ Neurotherapeutic Development Unit (NTDU), is to identify, characterize and develop new therapeutic agents to treat neuro degeneration and infectious diseases in the human brain. Currently NTDU utilizes many modalities to develop new therapeutic agents, many of the models involve cell toxicity and different assays to determine the toxic activity of chemicals, proteins and viral infections. A novel approach is to incorporate the real time cell analysis provided by the xCELLigence RTCA HT system to facilitate compound screening in 384 well plate format. High-throughput real-time cell analysis is ideal for screening viral mediated cytopathic effects (CPE), neutralizing antibodies, antibody-dependent cytotoxicity (ADCC), and compound mediated cytotoxicity. The system will be used to quantitate the cell types following exposure to toxic chemicals, proteins, patient serum/plasma or cerebrospinal fluid or viral infections. The NTDU require the acquisition of an equivalent system to the xCELLigence RTCA HT system, consisting of an xCELLigence RTCA SP analyzer and Biospag-SN automated incubator with associated peripherals and software compatible with pre-existing instruments to develop new therapeutic agents, to treat neuro degeneration and infectious diseases in the human brain.

This is a Brand Name or Equal requirement for an xCELLigence RTCA SP System with automated incubator and associated peripherals.

3. The solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2024-06, dated July 30, 2024.

4. NAICS Code: The North American Industry Classification System (NAICS) code is 334516 -

Analytical Laboratory Instrument Manufacturing. The small business size standard is 1,000 employees. This is an unrestricted solicitation being solicited under full and open competition.

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5. Line Items: Through this procurement NIDA anticipates a single award, firm fixed price purchase order for an equivalent system (brand name or equal) to an xCELLigence RTCA SP System with automated incubator and associated peripherals as described in Attachment 1 – Purchase Description.

It is anticipated delivery shall be within 30-60 days of receipt of the order.

6. Project Requirement: A detailed description of the requirement and the salient characteristics is attached to this combined synopsis/solicitation, as Attachment #1 - Purchase Description.

As part of the Technical Quote, the Offeror shall include the following:

a. Technical Capability and Functionality – The Offeror shall describe the overall capability and functionality in relation to the General Requirement, Salient Characteristics, Quantity and Deliverables as described in the Purchase Description.

b. Speed of Delivery, Installation and Set-up – The Offeror shall describe its approach for completeness, feasibility, soundness and practicality of the proposed approach and work plan for delivery and installation of the device.

7. The dates for delivery and designated place and point of contract for delivery is identified in

Attachment #1 - Purchase Description.

8. The provisions at FAR clause 52.212-1, Instructions to Offerors – Commercial Items and FAR Clause 52.212-2, Evaluation of Commercial Products and Commercial Services (NOV 2021), apply to this acquisition.

9. The award resulting from this solicitation will be made to the responsible Offeror whose Quote is most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate quotations: Technical Criteria, Price, and Past Performance.

A tradeoff process shall be used for this acquisition. All evaluation factors and significant sub-factors are listed below in terms of their relative importance. Technical Factors and Past Performance when combined, are significantly more important than price.

Evaluations will be based on the demonstrated capabilities of the prospective Offeror in relation to the needs of the project. The merits of each Quote will be evaluated carefully.

Each Quote must document the feasibility of successful implementation of the requirements of this solicitation. The Offeror must submit information sufficient to evaluate its Quote based on the detailed factors listed below.

Technical Evaluation Criteria

1. 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

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Deliverables as described in the Purchase Description.

2. 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 statement of work.

3. Past Performance

The Offeror shall provide past performance information. Past performance information shall cover a minimum of 1 year in relevant services and deliveries of comparable systems. The Offeror shall provide at least one reference for any project identified under the experience factor that has a performance period within the past three years. For each reference, the offeror shall provide: (1) Organization/contracting partner's name; (2) Point of contact's (POC) name and contact information: Current phone numbers. Valid email addresses; (3) Description that precisely explains: General scope of the contract.

Specific requirements of the contract.

The Offeror 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.

Price Evaluation

The Offeror’s 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.

10. The Offeror is to include a completed copy of the provision at FAR clause 52.212-3, Offeror Representations and Certifications - Commercial Products and Commercial Services, with its offer.

11. The FAR clause at 52.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services, applies to this acquisition. See Attachment 2 – Commercial Contract Terms and Conditions.

12. The FAR clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Products and Commercial Services, applies to

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13. Additional contract requirement(s) or terms and conditions determined by the Contracting

Officer to be necessary for this acquisition are supplemented by:

• Attachment 1 – Purchase Description

• Attachment 2 – Contract Terms and Conditions

• Attachment 3 – Invoice Instructions

14. The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

• FAR 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or

Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

• FAR 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Dec 2023) (Section 1634 of Pub. L. 115-91).

• FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment. (Nov 2021).

• FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (Nov 2021).

• FAR 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

• FAR 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).

• FAR 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Public Laws

108-77 and 108-78 (19 U.S.C. 3805 note)).

• FAR 52.232-39 Unenforceability of Unauthorized Obligations (JUN 2013).

15. This is not a rated order under the Defense Priorities and Allocations System (DPAS). The resultant purchase order will provide that HHS reserves the right to exercise priorities and allocations authority with respect to this contract, to include rating this order in accordance with 45 CFR Part 101, Subpart A—Health Resources Priorities and Allocations System.

16. The response to the combined synopsis/solicitation is due no later than August 30, 2024 at 2:00 P.M. Eastern Standard Time (EST). Offers submitted after the deadline may not be considered. The response should be submitted in a searchable electronic format to the Contracting Officer, Tracy Cain at tracy.cain@nih.gov. Electronic submittals must include the combined synopsis/solicitation 75N95024Q00433 and the Title in the Subject Line.

In addition, the Unique Entity Identification Number (UEI), the Taxpayer Identification Number (TIN), 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.

Technical Quotes shall be submitted in accordance with the General Requirement identified in Section 6 of this combined synopsis/solicitation.

Any Quote, modification, or revision that is received at the designated Government office http://www.sam.gov/

5 | P a g e after the exact date and time specified for receipt of quotations is “late” and may not be considered. Quotes received “late” may not be evaluated or considered for award and may be returned to the Offeror. If an emergency or unanticipated event interrupts normal Government processes so that Quotes cannot be received at the Government office designated for receipt of Quotes by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation closing date, the time specified for receipt of Quotes will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.

The Government reserves the right to award without discussions if the Contracting Officer determines that the initial cost/prices are fair and reasonable and that discussions are not necessary. 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.

17. Questions and requests for clarification should be submitted electronically to the Contracting Officer, Tracy Cain at tracy.cain@nih.gov on or before 2:00 pm August 28, 2024. Any questions or request for clarification must include the combined synopsis/solicitation 75N95024Q00433 and the Title in the Subject Line.

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

PURCHASE DESCRIPTION

1. Statement of Need and Purpose: The NeuroTherapeutics Development Unit (NTDU) Translational Neuroscience (TNC) National Institute of Neurological Disorders and Stroke (NINDS) requires the purchase of a high throughput cell analysis system with equivalent capabilities to the Agilent xCELLigence RTCA HT system to facilitate the screening and evaluation of toxicities to neurons and other cells following exposure to chemotoxic agents, toxic proteins and viral infections.

2. Background Information and Objective: The mission of the Translational

Neuroscience Center (TNC), Neurotherapeutic Development Unit (NTDU), is to identify, characterize and develop new therapeutic agents to treat neuro degeneration and infectious diseases in the human brain. Currently NTDU utilizes many modalities to develop new therapeutic agents, many of the models involve cell toxicity and different assays to determine the toxic activity of chemicals, proteins and viral infections. A novel approach is to incorporate the real time cell analysis provided by the xCELLigence RTCA HT system to facilitate compound screening in 384 well plate format. High-throughput real-time cell analysis is ideal for screening viral mediated cytopathic effects (CPE), neutralizing antibodies, antibody-dependent cytotoxicity (ADCC), and compound mediated cytotoxicity. The system will be used to quantitate the cell types following exposure to toxic chemicals, proteins, patient serum/plasma or cerebrospinal fluid or viral infections. The NTDU require the acquisition of an equivalent system to the xCELLigence RTCA HT system, consisting of an xCELLigence RTCA SP analyzer and Biospag-SN automated incubator with associated peripherals and software compatible with pre-existing instruments (including the Agilent/BioTek Cytation 5 and C10 confocal imagers/plate readers, the Molecular Devices Image Express Micro Confocal imager, the Axion MEA electrophysiology scanner and NanoEntek JuLI Stage imager) to develop new therapeutic agents, to treat neuro degeneration and infectious diseases in the human brain.

3. Generic Name of Product: High-throughput cell analysis system and automated incubator

4. Purchase Description: This is a brand name or equal requirement. The contractor must provide a system with equivalent capabilities to the following:

• The xCELLigence RTCA SP, which analyzes live cells in a 384-well format.

Comes bundled with analyzer, plate station, and control unit with software, cat# 380601070

• Automated incubator with 8-plate capacity, incubation to 45degC, and CO2 /O2 control and monitoring, water pan and humidity monitoring. Incl. BioSpa software and one alignment kit. Rep. BTI no. BIOSPAG, cat# Biospag-SN

• ACCESS FLUIDICS ALIGN, Cat# 1410011

• RTCA-HT BioSpa Integration package, cat# S2812AA

5. Salient characteristics:

• Capable of cell analysis of up to eight 384-well E-plates (a total of 3,072 wells) with non-invasive and label-free real-time impedance technology

• Kinetic measurement of cell health, viability, or response to treatments with high sensitivity, accuracy, and reproducibility, providing a continuous flow of real-time data.

• Automated workflow which allows users to add cells to E-Plates 384 and begin kinetic measurements at physiological conditions. The BioSpa8 Robotic Arm transfers plates from the incubator to the xCELLigence RTCA HT Station to enable. multiple plates to be processed while unattended.

• Critical physiological conditions are controlled and maintained in the incubator to ensure assay success. Temperature and CO2/O2 control, plus humidity monitoring in the incubator facilitate live cell processes, and the cradle of the RTCA HT unit is temperature-controlled, for minimal disruption of the cells. The software continuously records environmental conditions.

• Small footprint saves benchtop space

• Software allows for simple assay setup (scheduling) for both single and multiple users, real-time data visualization, and data analysis.

• Capable of high throughput screening of therapeutic antibodies, drug compounds, and cytotoxicity.

• Typical applications to include Compound-mediated cytotoxicity assay; Viral-mediated cytopathic effect (CPE); Neutralizing antibody screening; Antiviral drug screening;

Immune cell potency assay; Antibody-dependent cell-mediated cytotoxicity (ADCC) assays.

6. Quantity:

1 x xCELLigence RTCA SP which analyzes live cells in a 384-well format. Bundled with analyzer, plate station, and control unit with software, cat# 380601070

1X Automated incubator with 8-plate capacity, incubation to 45degC, and CO2 /O2 control and monitoring, water pan and humidity monitoring. Incl. BioSpa software and one alignment kit. Rep. BTI no. BIOSPAG, cat# Biospag-SN

1X ACCESS FLUIDICS ALIGN, Cat# 1410011

1X RTCA-HT BioSpa Integration package, cat# S2812AA

7. Delivery: Delivery shall occur within 30-60 days after receipt of order.

NIH/NINDS

Building 10, room 7C121 Bethesda, MD 20892 C/o Joseph P. Steiner. Ph.D

8. Period of Performance: 30-60 days after receipt of order, Basic Warranty

9. Option(s): NA

CONTRACT TERMS AND CONDITIONS – COMMERCIAL PRODUCTS AND

COMMERCIAL SERVICES

Update per FAC 2023-06 Last updated: 11/2023

FAR 52.212-4 Contract Terms and Conditions – Commercial Products and Commercial Services (NOV 2023).

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.

https://www.acquisition.gov/far/12.301#FAR_12_301

(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; 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) The Contractor’s timekeeping procedures;

(C) Contractor records that show the distribution of labor between jobs or contracts; and

(D) Employees whose time has been included in any invoice for the purpose of verifying that these employees have worked the hours shown on the invoices.

(iii) For material and subcontract costs that are reimbursed on the basis of actual cost—

(A) Any invoices or subcontract agreements substantiating material costs;

and

(B) Any documents supporting payment of those invoices.

(5) Overpayments/Underpayments. Each payment previously made shall be subject to reduction to the extent of amounts, on preceding invoices, that are found by the Contracting Officer not to have been properly payable and shall also be subject to reduction for overpayments or to increase for underpayments. The Contractor shall promptly pay any such reduction within 30 days unless the parties agree otherwise. The Government within 30 days will pay any such increases, unless the parties agree otherwise. The Contractor’s payment will be made by check. If the Contractor becomes aware of a duplicate invoice payment or that the Government has otherwise overpaid on an 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) (i) All amounts that become payable by the Contractor…