RFQ for FLRA2021.pdf

Date: April 08, 2021

Export-Import Bank of the US

811 Vermont Ave., NW

Washington, D.C. 20571

SUBJECT: Request for Quote (RFQ) – Response in FLRA Legal Support

The Export-Import Bank of the US anticipates awarding a sole source, firm fixed price (FFP), Purchase Order to perform Legal Services – Advocacy of EXIM’s Interests under Federal

Service Labor-Management Relations Statute except for those items specified as Government furnished property and services to Morgan, Lewis & Bockius LLP.

Questions related to this RFQ are due at 1 PM Eastern Standard Time, April 13, 2021. Please send questions regarding the RFQ via e-mail to Ingrid Gibson-Smith at

Ingrid.gibsonsmith@exim.gov . No phone calls will be accepted.

The due date for Quotes is 2 PM Eastern Standard Time, April 20, 2021. Contractors shall send

Quotes via e-mail to Ingrid Gibson-Smith at Ingrid.gibsonsmith@exim.gov.

Sincerely, Ingrid Gibson-Smith

Contracting Officer mailto:Ingrid.gibsonsmith@exim.gov mailto:Ingrid.gibsonsmith@exim.gov

Statement of Requirements

Introduction:

The EXIM Bank Office of General Counsel (OGC) requires the assistance of an expert in

Federal Employee Union Organization and the Federal Service Labor-Management Relations

Statute and practice, pertaining to the organizing and certification of certain Bargaining Unit

(BU) positions, and Management’s implementation of decisions by the FLRA. EXIM previously retained Morgan, Lewis & Bockius LLP to address two different Petitions filed by the Union representing Bargaining Unit (BU) members employed by EXIM, to wit: 1) to determine whether certain employees in certain EXIM Regional offices qualify as “non-professional” for the purpose of determining whether they can/should seek to join the Bank’s existing BU of “non-professional” employees at the Bank’s headquarters building; and 2) to determine whether 41 positions/series of employees at EXIM are “non-professional” and thus qualified for inclusion in the BU. After protracted litigation, the FLRA ruled that certain positions were nonprofessional and eligible for inclusion into the BU.

Following the above activity by the FLRA, EXIM continues to require legal expertise from a law firm familiar with the issues involved in the two Petitions already litigated, the implementation of relief or other administrative action by EXIM following the FLRA’s decisions, and more generally, the formation of unions within government agencies. EXIM legal staff does not possess this unique skill set of legal expertise to immediately address the remaining issues flowing from the FLRA decisions implementation. Consequently, EXIM seeks to make a sole source award of this requirement to Morgan, Lewis & Bockius LLP.

Scope

• Legal services. The contractor shall provide professional legal services to include but not limited to draft, file and defend an Answer to the Motion to Reconsider, and litigation support in FLRA and related matters.

Objective

To obtain highly qualified legal counsel with extensive experience in working with Federal employee union organization, the Federal Labor Relations Statute, related regulations, and interpreting Federal Labor Relations Authority decisions and relevant Federal court case law, particularly with respect to qualifications of position in certain units and participation in

FLRA activities.

Description of Requirements:

CLIN 0001: FLRA Election Results Response

Morgan, Lewis & Bockius LLP (“Contractor” or “Outside Counsel”) will monitor and analyze election results, as well as prepare for and participate in an expected hearing following the election, and deliver a briefing to EXIM regarding the FLRA elections decision implementation.

The election is scheduled for early May 2021.

CLIN 0001 shall be compensated on a Firm-Fixed Price (“FFP”) basis for this non-severable service.

CLIN 0002: Labor-Management Relations legal support services

In addition to the services described in CLIN0001, Morgan, Lewis & Bockius LLP is to provide all professional services, labor, supervision, equipment, materials, supplies, postage, research, and document services, and incur other incidental expenses as necessary, including travel, to undertake the services described herein. The Contractor’s services shall be non-personal in nature. The Contractor shall assist in similar Labor Relations matters as they arise by assigning a senior attorney(s) to:

1. Advise EXIM in subsequent labor-management negotiations, to include implementation of FLRA decisions resulting from the two petitions previously litigated,

2. Renegotiate the existing Collective Bargaining Agreement, and

3. Represent EXIM in any future negotiations, hearings, or litigation that may arise as a result of the elections or other issues in contention between the Union and EXIM.

Services under CLIN 0002 may be ordered several times during the contract period. Services under CLIN 0002 will be compensated on an hourly basis.

EXIM OGC will designate a senior attorney to serve as the Contracting Officer’s Representative

(COR) as well as a senior attorney to serve as a Subject Matter Expert (SME). The Contractor will submit requests for information or documentation to the COR and to the SME, as the need arises so as to enable the Contractor to undertake a thorough and meaningful analysis of the facts and circumstances pertaining to the matters involved.

Applicable Conditions

The Contractor and its attorney(s) assigned to perform the requirements must not possess any conflict of interest that would prevent it (or the individual attorneys, as the case may be) from undertaking effective advocacy of EXIM’s interests or providing fulsome legal advice to EXIM.

The Contractor and its attorney(s) and support staff must respect the privacy interests of EXIM officers and employees, must handle all material provided to it containing Personally Identifiable

Information (PII) in accordance with the Privacy Act, 5 USC 522a, and shall not knowingly or willfully release to any person or entity any PII, EXIM internal business documentation, or any documentation developed in support of EXIM’s interests or otherwise while advising EXIM. All documents provided to the Contractor by EXIM shall be returned to EXIM upon the conclusion of its performance under the resulting contract. EXIM anticipates that the primary site for performance of services shall be the offices of the Contractor; however, the Contractor may be required to meet with EXIM personnel at EXIM facilities, or represent EXIM’s interests at the

FLRA, or at other locations within the Washington, DC, area, should the need arise.

Costs and Period of Performance

This requirement shall be the subject of a stand-alone contract issued under FAR Part 12 and 13.

The primary effort of the contractor shall be performed under the FFP CLIN 0001. Ancillary services may be compensated on an hourly basis under CLIN 0002. The contract performance period shall be one year from date of contract award.

Capability or Performance

Capability - Outside counsel must have extensive experience working with Federal Employee

Union Organizations, the Federal Service Labor-Management Relations Statute and related regulations, and interpreting Federal Labor Relations Authority decisions and relevant Federal court case law, particularly with respect to qualifications of positions in certain BUs, and participation in FLRA activities. The Contractor must have immediately accessible knowledge of the facts and legal support underlying EXIM’s needs described above. The Contractor must not have a conflict of interest in representing EXIM’s interests, unless EXIM has been notified of, and expressly waived, such conflict of interest, or conflict of interest risk mitigating measures have been implemented to EXIM’s satisfaction.

Performance Standard - Outside counsel must work closely with EXIM subject matter experts within OGC. Work must be performed in a timely fashion. All deadlines established by administrative tribunals must be met.

Delivery or Performance-Period Requirements

The Contractor must begin work immediately upon contract award in order to be prepared to respond to the elections scheduled for 3 May 2021. The Contractor must proceed with alacrity without compromising efficacy.

Management Information Requirements

EXIM OGC will work closely with the Contractor as it undertakes performance of the requirements. Regularly scheduled conference calls with status updates will be conducted with the Contractor. Meetings with Contractor’s assigned attorneys may be conducted periodically at

Contractor’s or EXIM offices, or through virtual means. EXIM will carefully review and vet the

Contractor’s work product.

Inherently Governmental Functions

In accordance with FAR Subpart 7.5, the professional legal services to be rendered under this

Purchase Order contract are considered as Other Functions. The law firm will not be permitted to independently make decisions that bind EXIM to pay resources or that bind EXIM to a particular course of action. The law firm will adhere to contract terms and conditions and be governed by the legal constraints/obligations/duties of the Attorney-Client privilege it forms with

EXIM. EXIM will retain control over all major decisions or potential litigation strategies.

Management Information Requirements

The law firm will submit monthly status reports to EXIM. The law firm will apprise EXIM of all substantial developments arising during its representation.

Logistics Considerations

The Contractor will primarily be performing its services at its offices in the local Washington, DC, metropolitan area. Meetings with the Contractor’s assigned attorneys may be conducted periodically at Contractor’s or EXIM offices. The Contractor will be responsible for its transportation to and from EXIM HQ for such meetings, as well as to and from the location of the administrative forum(s) in which petitions, or charges against the Agency are litigated or in which the elections are held. The Contractor may be required to attend meetings or negotiations at offices designated by the Authority or at which the Collective Bargaining Agreement renegotiations, elections or other activities may take place. The Contractor may need to engage in discussions with EXIM staff as it undertakes performance of the requirements. EXIM staff will be made available during reasonable business hours to assist the Contractor.

Government-Furnished Property

N/A

Government-Furnished Information

See above discussion of EXIM provided materials/information/files under Government-

Furnished Property.

EXIM OGC shall provide the Contractor with a copy of and access to all relevant documentation pertaining to the petitions, the Collective Bargaining Agreement, employee position descriptions and assignments, and other documentation that may be needed for the Contractor to undertake a robust, effective advocacy of EXIM’s interests or as may be needed to fully respond to EXIM’s other legal service requests. EXIM staff shall be available to discuss relevant issues and to vet the Contractor’s conclusions.

Contract Administration

The Export Import Bank Acquisition Services Office will administer the contract. An EXIM subject matter expert will assist the COR in responding to the Contractor’s queries and advisories. The COR, to the maximum extent practicable, will serve as the day to day technical/administrative monitor of the contract.

PROVISIONS/CLAUSES

The following are included by Reference:

FAR 52.212-1, Instructions to Offerors-Commercial Items (Oct 2018)

FAR 52.212-2, Evaluation -- Commercial Items (Oct 2014)

FAR 52.212-4, Contract Terms and Conditions - Commercial Items (Oct 2018)

FAR 52.217-5 Evaluation of Options (July 1990)

FAR 52.225-25 Prohibition on Contracting with Entities Engaging in Certain Activities or

Transactions Relating to Iran—Representation and Certifications (Jun 2019)

FAR 52.232-39 Unenforceability of Unauthorized Obligations (Jun 2013)

FAR 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Dec 2013)

The following are included by Full Text:

FAR 52.212-5 - Contract Terms and Conditions Required to Implement Statutes or Executive

Orders -- Commercial Items (May 2019)

(a) 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:

(1) 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)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and

Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(3) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov

2015)

(4) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(5) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws

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

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the contracting officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

[Contracting Officer check as appropriate.]

_X__ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

___ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41

U.S.C. 3509).

___ (3) 52.203-15, Whistleblower Protections under the American Recovery and

Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub L. 111-5) (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009).

__X_ (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract

Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).

___ (5) [Reserved]

___ (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-

117, section 743 of Div. C).

___ (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery

Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

__X_ (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with

Contractors Debarred, Suspended, or Proposed for Debarment (Oct 2015) (31 U.S.C.

6101 note).

___ (9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility

Matters (Oct 2018) (41 U.S.C. 2313).

___ (10) [Reserved]

___ (11) (i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011)

(15 U.S.C. 657a).

___ (ii) Alternate I (Nov 2011) of 52.219-3.

___ (12) (i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small

Business Concerns (Oct 2014) (if the offeror elects to waive the preference, it shall so indicate in its offer)(15 U.S.C. 657a).

___ (ii) Alternate I (Jan 2011) of 52.219-4.

___ (13) [Reserved]

___ (14) (i) 52.219-6, Notice of Total Small Business Aside (Nov 2011) (15 U.S.C. 644).

___ (ii) Alternate I (Nov 2011).

___ (iii) Alternate II (Nov 2011).

___ (15) (i) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003) (15 U.S.C.

644).

___ (ii) Alternate I (Oct 1995) of 52.219-7.

___ (iii) Alternate II (Mar 2004) of 52.219-7.

_X__ (16) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C.

637(d)(2) and (3)).

___ (17) (i) 52.219-9, Small Business Subcontracting Plan (Aug 2018) (15 U.S.C. 637

(d)(4)).

___ (ii) Alternate I (Nov 2016) of 52.219-9.

___ (iii) Alternate II (Nov 2016) of 52.219-9.

___ (iv) Alternate III (Nov 2016) of 52.219-9.

___ (v) Alternate IV (Aug 2018) of 52.219-9.

___ (18) 52.219-13, Notice of Set-Aside of Orders (Nov 2011) (15 U.S.C. 644(r)).

_X__ (19) 52.219-14, Limitations on Subcontracting (Jan 2017) (15 U.S.C. 637(a)(14)).

___ (20) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C.

637(d)(4)(F)(i)).

___ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-

Aside (Nov 2011) (15 U.S.C. 657f).

___ (22) 52.219-28, Post Award Small Business Program Rerepresentation (Jul 2013) (15

U.S.C. 632(a)(2)).

___ (23) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically

Disadvantaged Women-Owned Small Business Concerns (Dec 2015) (15 U.S.C.

637(m)).

___ (24) 52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned

Small Business Concerns Eligible Under the Women-Owned Small Business Program

(Dec 2015) (15 U.S.C. 637(m)).

_X__ (25) 52.222-3, Convict Labor (June 2003) (E.O. 11755).

_X__ (26) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (Jan

2018) (E.O. 13126).

_X__ (27) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

_X__ (28) (i) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246).

___ (ii) Alternate I (Feb 1999) of 52.222-26.

_X__ (29) (i) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212).

___ (ii) Alternate I (July 2014) of 52.222-35.

_X__ (30) (i) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29

U.S.C. 793).

___ (ii) Alternate I (July 2014) of 52.222-36.

_X__ (31) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212).

___ (32) 52.222-40, Notification of Employee Rights Under the National Labor Relations

Act (Dec 2010) (E.O. 13496).

_X__ (33) (i) 52.222-50, Combating Trafficking in Persons (JAN 2019)

(22 U.S.C. chapter 78 and E.O. 13627).

___ (ii) Alternate I (Mar 2015) of 52.222-50, (22 U.S.C. chapter 78 and E.O. 13627).

___ (34) 52.222-54, Employment Eligibility Verification (Oct 2015). (E. O. 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

___ (35) (i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-

Designated Items (May 2008) (42 U.S.C. 6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

___ (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

___ (36) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential

Hydrofluorocarbons (Jun 2016) (E.O.13693).

___ (37) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration

Equipment and Air Conditioners (Jun 2016) (E.O. 13693).

___ (38) (i) 52.223-13, Acquisition of EPEAT® -Registered Imaging Equipment (Jun

2014) (E.O.s 13423 and 13514

___ (ii) Alternate I (Oct 2015) of 52.223-13.

___ (39) (i) 52.223-14, Acquisition of EPEAT® -Registered Television (Jun 2014)

(E.O.s 13423 and 13514).

___ (ii) Alternate I (Jun 2014) of 52.223-14.

___ (40) 52.223-15, Energy Efficiency in Energy-Consuming Products (Dec 2007) (42

U.S.C. 8259b).

___ (41) (i) 52.223-16, Acquisition of EPEAT® -Registered Personal Computer Products

(Oct 2015) (E.O.s 13423 and 13514).

___ (ii) Alternate I (Jun 2014) of 52.223-16.

_X__ (42) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging while

Driving (Aug 2011) (E.O. 13513).

___ (43) 52.223-20, Aerosols (Jun 2016) (E.O. 13693).

___ (44) 52.223-21, Foams (Jun 2016) (E.O. 13696).

___ (45) (i) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a).

___ (ii) Alternate I (Jan 2017) of 52.224-3.

___ (46) 52.225-1, Buy American--Supplies (May 2014) (41 U.S.C. chapter 83).

___ (47) (i) 52.225-3, Buy American--Free Trade Agreements--Israeli Trade Act (May

2014) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43).

___ (ii) Alternate I (May 2014) of 52.225-3.

___ (iii) Alternate II (May 2014) of 52.225-3.

___ (iv) Alternate III (May 2014) of 52.225-3.

___ (48) 52.225-5, Trade Agreements (Aug 2018) (19 U.S.C. 2501, et seq., 19 U.S.C.

3301 note).

___ (49) 52.225-13, Restrictions on Certain Foreign Purchases (June 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the

Department of the Treasury).

___ (50) 52.225-26, Contractors Performing Private Security Functions Outside the

United States (Oct 2016) (Section 862, as amended, of the National Defense

Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

___ (51) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42

U.S.C. 5150).

___ (52) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area

(Nov 2007) (42 U.S.C. 5150).

___ (53) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002)

(41 U.S.C. 4505), 10 U.S.C. 2307(f)).

___ (54) 52.232-30, Installment Payments for Commercial Items (Jan 2017) (41 U.S.C.

4505, 10 U.S.C. 2307(f)).

_X__ (55) 52.232-33, Payment by Electronic Funds Transfer--System for Award

Management (Oct 2018) (31 U.S.C. 3332).

___ (56) 52.232-34, Payment by Electronic Funds Transfer—Other Than System for

Award Management (Jul 2013) (31 U.S.C. 3332).

___ (57) 52.232-36, Payment by Third Party (May 2014) (31 U.S.C. 3332).

___ (58) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a).

___ (59) 52.242-5, Payments to Small Business Subcontractors (Jan 2017) (15 U.S.C.

637(d)(13)).

___ (60) (i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels

(Feb 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631).

___ (ii) Alternate I (Apr 2003) of 52.247-64.

___ (iii) Alternate II (Feb 2006) of 52.247-64.

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or executive orders applicable to acquisitions of commercial items:

[Contracting Officer check as appropriate.]

___ (1) 52.222-17, Nondisplacement of Qualified Workers (May 2014) (E.O. 13495)

___ (2) 52.222-41, Service Contract Labor Standards (Aug 2018) (41 U.S.C. chapter 67.).

___ (3) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 2014) (29

U.S.C. 206 and 41 U.S.C. chapter 67).

___ (4) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards --

Price Adjustment (Multiple Year and Option Contracts) (Aug 2018) (29 U.S.C.206 and

41 U.S.C. chapter 67).

___ (5) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards --

Price Adjustment (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

___ (6) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment--

Requirements (May 2014) (41 U.S.C. chapter 67).

___ (7) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services--Requirements (May 2014) (41 U.S.C. chapter 67).

___ (8) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015) (E.O.

13658).

___ (9) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O.

13706).

___ (10) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations. (May

2014) (42 U.S.C. 1792).

(d) Comptroller General Examination of Record The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Records -- Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the

Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e)

(1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c) and (d) of this clause, the Contractor is not required to flow down any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause—

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Jan 2019) (41

U.S.C. 3509).

(ii) 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)).

(iii) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and

Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(iv) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C.

637(d)(2) and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.

(v) 52.222-17, Nondisplacement of Qualified Workers (May 2014) (E.O. 13495).

Flow down required in accordance with paragraph (1) of FAR clause 52.222-17.

(vi) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

(vii) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246).

(viii) 52.222-35, Equal Opportunity for Veterans (Oct 2019) (38 U.S.C. 4212).

(ix) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29

U.S.C. 793).

(x) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212).

(xi) 52.222-40, Notification of Employee Rights Under the National Labor

Relations Act (Dec 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.

(xii) 52.222-41, Service Contract Labor Standards (Aug 2018), (41 U.S.C. chapter

67).

(xiii) (A) 52.222-50, Combating Trafficking in Persons (Jan 2019) (22 U.S.C.

chapter 78 and E.O. 13627).

(B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 E.O.

13627).

(xiv) 52.222-51, Exemption from Application of the Service Contract Labor

Standards to Contracts for Maintenance, Calibration, or Repair of Certain

Equipment--Requirements (May 2014) (41 U.S.C. chapter 67.)

(xv) 52.222-53, Exemption from Application of the Service Contract Labor

Standards to Contracts for Certain Services--Requirements (May 2014) (41

U.S.C. chapter 67)

(xvi) 52.222-54, Employment Eligibility Verification (Oct 2015) (E. O. 12989).

(xvii) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).

(xviii) 52.222-62, Paid sick Leave Under Executive Order 13706 (JAN 2017)

(E.O. 13706).

(xix) (A) 52.224-3, Privacy Training (Jan 2017) (5 U.S.C. 552a).

(B) Alternate I (Jan 2017) of 52.224-3.

(xx) 52.225-26, Contractors Performing Private Security Functions Outside the

United States (Oct 2016) (Section 862, as amended, of the National Defense

Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

(xxi) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations.

(May 2014) (42 U.S.C. 1792). Flow down required in accordance with paragraph

(e) of FAR clause 52.226-6.

(xxii) 52.247-64, Preference for Privately-Owned U.S. Flag Commercial Vessels

(Feb 2006) (46 U.S.C. Appx 1241(b) and 10 U.S.C. 2631). Flow down required in accordance with paragraph (d) of FAR clause 52.247-64.

(2) While not required, the Contractor may include in its subcontracts for commercial items a minimal number of additional clauses necessary to satisfy its contractual obligations.

(End of Clause)

FAR 52.217-8, Option to Extend Services (Nov 1999) –

The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The

Contracting Officer may exercise the option by written notice to the Contractor within 30 days.

(End of Clause)

FAR 52.217-9, Option to Extend the Term of the Contract (Mar 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least _60__ days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 30 months.

(End of Clause)

52.252-1 Solicitation Provisions Incorporated by Reference (Feb 1998).

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

http://www.arnet.gov/far/.

(End of provision)

FAR 52.252-2, Clauses Incorporated by Reference (February 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

https://www.acquisition.gov/far/html/52_248_253.html#wp1120047 http://www.arnet.gov/far/ https://www.acquisition.gov/far/html/52_248_253.html#wp1120047

SPECIAL REQUIREMENTS

Special Requirements are incorporated in the resulting contract.

Period of Performance:

The period of performance will begin on or about May 01, 2021 and run through April 30, 2022.

A six month extention under 52.217-8 may be ordered in addition to this Period of Performance.

Place of Performance:

Off-Site

Hours of Work:

In the event Contractor performs any of its services in the facilities of EXIM within the US, the following will apply:

EXIM Hours of Operation are:

Monday – Friday

8:00am – 5:00pm, excluding Federal Holidays

Supervision of Employees:

The Contractor's employees shall remain under the Contractor's direct supervision at all times.

The Contractor's employees and supervision shall remain the responsibility of the Contractor.

Meetings:

Status Meetings and Project Reviews shall be held regularly as required to ensure effective program management and efficient and effective resolution of problems throughout the life of the contract. The Contractor’s manager shall meet on a periodic basis with the EXIM Bank to discuss the project’s progress, planned activities, issues, and other items as requested by the Contractor or the EXIM Bank. The frequency of these meetings will be determined as mutually agreed between the Contractor and the Government.

Non-Conforming Products or Services:

Non-conforming products or services will be rejected. Unless otherwise specified in individual task orders, the Contractor shall correct deficiencies within 10 work days of the rejection notice.

Purchase Order Closeout:

The contractor shall submit a final invoice within forty-five (45) calendar days after the end of

Performance Period. After the final invoice has been paid the contractor shall furnish a completed and signed Release of Claims to the Contracting Officer. This release of claims is due within fifteen (15) calendar days of final payment.

Restrictions Against Disclosure

(a) The Contractor agrees, in the performance of this contract, to keep all information contained in source documents or other media furnished by the Government in the strictest confidence. The Contractor also agrees not to publish or otherwise divulge such information in whole or in part in any manner or form, or to authorize or permit others to do so, taking such reasonable measures as are necessary to restrict access to such information while in the

Contractor's possession, to those employees needing such information to perform the work provided herein, i.e., on a "need to know" basis. The Contractor agrees to immediately notify in writing, the Contracting Officer, named herein, in the event that the Contractor determines or has reason to suspect a breach of this requirement.

(b) The Contractor agrees not to disclose any information concerning the work under this contract to any persons or individual unless prior written approval is obtained from the

Contracting Officer. The Contractor agrees to insert the substance of this clause in any consultant agreement or subcontract hereunder.

General: EXIM Bank Compliance with Homeland Security Presidential Directive (HSPD)

12:

Portions of the following Directive apply to performance of services by a Vendor within EXIM or Government facilities, while other portions addressing access to Government information apply to the Vendor’s effort under the resulting contract regardless as to location of performance of work under the resulting contract. The Vendor is responsible for compliance with the

Directive, as applicable:

(a) Homeland Security Presidential Directive (HSPD) 12, established requirements leading to the adoption of common procedures for registration, enrollment, and credentialing (badging) of federal employees, contractors and others, who require frequent access to federal facilities and or information systems. 1 The technical standard for the credential is called Federal Information

Processing Standards Publication (FIPS) 201-1, Personal Identity Verification (PIV) of federal employees and contractors. FIPS 201 includes a description of the minimum requirements to be completed before credential (badge) issuance. 2

(b) Executive Order (EO) 10450, Security Requirements for Government employees, serves as an important guideline and acknowledges there may be instances where discretion could be used when applying some of the requirements to certain individuals who require temporarily access to a federal facility. 3 The concern is addressed in further detail in the Government Service Agency

(GSA) Federal Identity Management Handbook (FIMH), wherein guidance is provided in terms of the methodology employed in dealing with temporary employees, contractors, and visitors. 4

This EO further states that the minimum level background investigation required for all federal employees and contractors is the National Agency Checks with Inquiries (NACI). 5 The EXIM

Bank assumes the responsibility of the Office of Personnel Management (OPM) cost of the investigations for those contractors in service with the EXIM Bank.

(c) The guidelines outlined below in this EXIM Bank document contains all the requirements to complete the process for contractors; however, they should be viewed as the absolute minimum requirements, subject to and dependent upon, a review of the risk and other factors prior to granting any identification badge or favorable adjudication on any background investigation results. Ultimately, the process becomes an agency risk based exercise wherein several areas are analyzed. Among them are: A review of the individual’s criminal history, the position designation (which helps determine the level of background investigation required for their job), the individual’s personal suitability for the duty position as determined through the adjudication of their background investigation results and the access requirements to the EXIM Bank’s facility and or information system.

Step 1: The Contracting Officers Representative (COR) sends an e-mail to the Office of

Security (OSY) exim.security@exim.gov, Office of Chief Risk Officer, containing a Building and System Access Request Form (BSARF), announcing the pending arrival of a new

Contractor. The BSARF should be filled out completely with the name, start date, contract number, contract expiration date, e-mail address of the new Contractor, and company should be in the email. OSY will then email the contractor all the necessary forms (OF 306, Declaration for Federal Employment, SF 85, Questionnaire for Non-Sensitive Positions, and Credit Release

Form) are required for employment at EXIM. The forms are required to initiate a FBI Name

Check and a formal background investigation, if one is required. All the forms need to be returned to OSY within five (5) business days upon receipt of email from OSY.

• Note 1: The Contractor shall not work on site or charge time to the contract without the confirmation of the completion of the name check or the submission of a waiver by the

COR. If a waiver is granted, the contractor will be escorted in the Government facilities by a Federal Employee and will have limited and or supervised access to systems resources.

Step 2: The information contained on the required forms will be used to query the Personnel

Investigations Processing System (PIPS) to determine or verify the new Contractor background investigation status. If a current investigation exists, the COR will receive a Notification of

Background Investigation or Clearance e-mail pertaining to the new Contractor.

• Note: The FBI Name Check will be dispatched if no record of previous investigation exists, or if the investigation on record has expired. The FBI Name Check takes an average of four business days to process. Once the name check results have been favorably adjudicated, the COR will be notified by receiving an FBI Name Check Results e-mail. The COR will notify the Contractor’s coordinator of the result.

Step 3: (This step can be completed by the Contractor before his/her start date at the bank)

If the new hire Contractor was determined to require a new background investigation, OAS personnel will send he/she an e-mail containing an Electronic Questionnaires for Investigations

Processing System (e-Qip) link that will enable them to complete all the required documentation associated with their identified level of background investigation requirement. As previously referenced, in most cases, this will be a NACI level investigation. Under normal circumstances, the Contractor will be provided five (5) working days in order to complete the on-line mailto:exim.security@exim.gov background investigation procedure and is instructed to bring back, the completed and signed e-

Qip Signature Sheets and any other documentation that may have been sent in their e-mail as an attachment.

Step 4: Upon arrival to OSY, the Contractor shall hand deliver all the signed e-Qip Signature

Sheets, and attachments pertaining to their level of background investigation. The Contractor will be “Identity-Proofed” \6 by OSY personnel using the two approved forms of identification referenced in the foot note below. Provided there are no issues, the Contractor is then provided a

Badge Authorization Memo. This will complete the process of obtaining the new badge and will enable OSY to send the background investigation packet to the Office of Personnel Management

(OPM) for investigation. The fingerprints are taken electronically and are sent to the FBI for a more detailed search for a criminal history.

Step 5: As a result of the fingerprints being sent to the FBI for a criminal history check, OSY personnel will review PIPS and check to see if any further details arise. Any derogatory information may impact the Contractor’s access to EXIM Bank facilities or information systems until and if the issue(s) are favorably adjudicated.

Step 6: The average time of completion of a NACI level investigation is 3-4 months. Once the investigation returns from OPM it will be adjudicated by OSY personnel and suitability determination made and granted by the Personnel Security Representative (PSR). Once a favorable determination has been made the COR will be sent a Notification of Background

Investigation or Clearance e-mail pertaining to the Contractor involved. In the event there are issue(s) which require the Contractor to provide additional information, OSY personnel will make contact directly and only with the Contractor involved and the issues will be further address in greater detail to the extent required in order to enable the Personnel Security

Representative (PSR) to make either a favorable or non-favorable adjudication on the level of investigation.

Step 7: The Contractor shall immediately notify the CO, COR and OSY when an employee no longer requires access to Export-Import Bank facilities or computer systems due to transfer, completion of a project, retirement or termination of employment. The Contractor’s badge must also be turned in OAS prior to departure.

Security:

The Vendor shall be responsible for properly protecting all information used, gathered, or developed as a result of this contract. The Vendor shall implement procedures that ensure appropriate administrative, technical, and physical safeguards are established for the security and confidentiality of government information, data, and/or equipment. The Vendor’s procedures shall be consistent with Government, OMB Circular A-130, Management of Federal Information

Resources, the Computer Security Act of 1987, the Federal Information Security Management

Act of 2002 (FISMA), and the Privacy Act. In addition, during all activities and operations on government premises, the Vendor shall comply with the policies, rules, procedures and regulations governing the conduct of personnel or protection of government facilities and data as expressed by EXIM Bank, written or oral.

(a) Sensitive Information Storage and Disclosure

Sensitive-but-Unclassified (SBU) information, data, and/or equipment will be disclosed only to authorized personnel on a Need-To-Know basis. The holder shall ensure that appropriate administrative, technical, and physical safeguards are established to ensure the security and confidentiality of this information, data, and/or equipment is properly protected. When no longer required, this information, data, and/or equipment will be returned to Government control;

destroyed; or held until otherwise directed. Destruction of items shall be accomplished by tearing into small parts; burning; shredding or any other method that precludes the reconstruction of the material, consistent with GSA guidelines.

(b) Protection of Information

All information about the EXIM Bank networks and/or the security posture of any EXIM Bank information asset gathered or created under this contract will be considered SBU information. It is anticipated that this information will be gathered, created and stored within the primary

Government work location. If the Vendor personnel must remove any information from the primary work area they should protect it to the same extent they would their proprietary data and/or company trade secrets. If the Vendor must remove any materials from the primary work location prior approval must be obtained from the COR.

(c) Security and Privacy

The use of any information that is subject to the Privacy Act will be utilized in full accordance with all rules of conduct as applicable to Privacy Act Information.

(d) Security Classification

The preparation of the deliverables under this contract will be completed at a Sensitive-But-

Unclassified (SBU) level unless otherwise stated, in writing, by the COR.

(e) Facility Access

All Vendor personnel who work at the EXIM Bank must have approval for facility access; the

Vendor must supply the names and other required information of those employees selected to perform the work to the COR.

(f) Confidentiality and non-Disclosure

The Vendor may have to access proprietary information and shall be required to sign non-disclosure and conflict of interest statements. The preliminary and final deliverables and all associated working papers, and other material deemed relevant by the agency that have been generated by the Vendor are the property of the U.S. Government and cannot be reproduced, or retained by the Vendor. When no longer required, this information, data, and/or equipment will be returned to Government control. All documents and information pertaining to network vulnerabilities, security policy, operational procedures or related functions shall be maintained under absolute accountability and relinquished to the COR upon completion of the contract.

Export-Import Bank Building Access Procedures:

(a) Citizenship Requirements. All Contractor staff required to perform work within EXIM facilities shall be U.S. citizens, have lawful permanent resident status, or possess a valid “green card” or equivalent.

(b) Building Access. Contractor maintenance technicians (i.e. subcontractors to the contractor) must contact the COR (or any other individual designated by the COR) in advance to coordinate scheduling of maintenance visits. Contractor maintenance technicians must be escorted upon arrival to and from the work site and must maintain communication with the COR or EXIM designated individuals.

Organizational Conflict of Interest:

Contractor and subcontractor personnel performing work under this contract may receive, have access to or participate in the development of proprietary or source selection information (e.g., cost or pricing information, budget information or analyses, specifications or work statements, etc.) or perform evaluation services which may create a current or subsequent Organizational

Conflict of Interests (OCI) as defined in FAR Subpart 9.5. The Contractor shall notify the

Contracting Officer immediately whenever it becomes aware that such access or participation may result in any actual or potential OCI and shall promptly submit a plan to the Contracting

Officer to avoid or mitigate any such OCI. The Contractor’s mitigation plan will be determined to be acceptable solely at the discretion of the Contracting Officer and in the event the

Contracting Officer unilaterally determines that any such OCI cannot be satisfactorily avoided or mitigated, the Contracting Officer may effect other remedies as he or she deems necessary, including prohibiting the Contractor from participation in subsequent contracted requirements which may be affected by the OCI.

Government Furnished Facilities/Property/ Information:

The contractor is expected to perform primarily at their location. However, in the event the contractor requires access to EXIM computer systems, equipment, or information, the contractor will be provided such access subject to EXIM security requirements.

Access to Bank Staff: The Contractor is expected to communicate with EXIM primarily with the

COR or CO for all communications. Access to other EXIM personnel or contractors will be permitted when reasonably necessary and in coordination with the COR. The Contractor shall provide the COR with a list of contractor personnel who may need access to EXIM personnel.

The Contractor’s project manager shall maintain the list and update as needed. The Contractor’s project manager will provide the COR with current copies of this list.

Hold Harmless and Indemnification Agreement:

The Contractor shall save and hold harmless and indemnify the Government against any and all liability, claims, and costs of whatever kind and nature for injury to or death of any person or persons and for loss or damage to any property occurring in connection with, or in any way under the terms of each task order, resulting in whole or in part from the negligent act(s) or omissions or willful misconduct of the Contractor.

CONTRACT ADMINISTRATION

Post Award Conference:

Within the five days after contract award, the contractor shall provide a draft agenda to EXIM

Bank and hold a telephone discussion with EXIM Bank to schedule orientation meeting, discuss the agenda and decide who will attend the meeting. Within seven days of the award of this contract, the contractor shall meet with EXIM Bank staff virtually or at EXIM Bank’s headquarters in

Washington, D.C. The purpose of this meeting is to ensure a common understanding of the SOW requirements, the expectations of both parties, and ultimate end products required of the SOW.

The contractor shall discuss its overall understanding of the project and review the background information and materials provided by EXIM. Discussions will also include the scope of work, deliverables to be produced, how the efforts will be organized and project conducted; assumptions made/expected and results. A concerted effort shall be made to gain a thorough understanding of

EXIM’s expectations. However, nothing discussed in this or in any subsequent meetings or discussions between EXM and the Contractor related to…