S01 12FPC122R0002.pdf

12FPC122R0002

(i) This is a request for quotes per FAR 13.

(ii) This solicitation number 12FPC122R0002 is issued as a Request for Proposal (RFP), and the acquisition procedures at FAR Part 13 is being utilized. This is a Firm-Fixed Priced requirement with a period of performance of one year. The Government plans to make award without negotiations. The period of performance is from 15 March 2022 to 30 June

(iii) This is a 100% SMALL BUSINESS SET ASIDE and the applicable NAICS code is

115112, Natural Resources/Conservation Forest Tree Plant. A size standard is the largest that a concern can be and still qualify as a small business for Federal Government programs. Size standards are the average annual receipts of a firm. How to calculate average annual receipts of a firm can be found in 13 CFR § 121.104. For more information on these size standards, please visit http://www.sba.gov/size.

(iv) PROJECT/DESCRIPTION: The vendor shall provide all supervision, labor, tools, equipment, transportation, supplies, and materials necessary to perform the work. All activities shall be in accordance with U.S. Department of Labor, Occupational Safety and

Health Administration (OSHA) regulations.

Contracting Office: US Department of Agriculture (USDA), Farm Production and

Conservation (FPAC), Acquisitions Division, Operations Branch.

Responses are due by 08:00 a.m. EST, 1 March 2022.

Quotes must be submitted email to Howard.Stover@usda.gov.

Contracting Officer: Kristina Baker, Kristina.Baker@usda,gov (816)926-1435

Contact Howard Stover, Contracting Specialist via email at Howard.Stover@usda.gov for information regarding this request for quotes. No questions concerning this request will be responded to after 2:00 pm EST, 8 March 2022.

Award will be made on Lowest Price Technically Acceptable http://www.sba.gov/size http://www.sba.gov/size http://www.sba.gov/size http://www.sba.gov/size http://www.sba.gov/size

C Statement of Work

C.1 Background

C.1.1 The United States Department of Agriculture (USDA), Natural Resources Conservation

Service (NRCS) is committed to “helping people help the land”. Their mission is to provide

America’s farmers and ranchers with financial and technical assistance to voluntarily put conservation on the ground, not only helping the environment but agricultural operations, too. For more information regarding the agency and its programs visit http://www.nrcs.usda.gov/.

C.1.2 The United States of America, acting through the United States Department of Agriculture’s

Natural Resources Conservation Service (NRCS), Illinois has a requirement for a professional to plant trees and shrubs on 167 acres in White and Gallatin Counties according to the requirements below.

C.1.3 The prime window of opportunity for planting the required trees is typically March 1 through

June 30th. The period of performance will be from date of award through July 31, 2022 to allow the vendor time to obtain the necessary items to complete this requirement.

C.1.4 USDA is willing to conduct a site visit in the spring. If potential vendors feel a site visit is necessary in order to provide quote, please reach out to Julie Simpson, Contracting Officer a julie.simpson@usda.gov who will determine if a site visit can be done.

C.2 Scope of Work

C.2.1 Mobilization and Demobilization

C.2.1.1 The work consists of the mobilization and demobilization of the contractor's forces and equipment necessary for performing the work required under the contract. It does not include mobilization and demobilization for specific items of work for which payment is provided elsewhere in the contract. Mobilization will not be considered as work in fulfilling the contract requirements for commencement of work.

C.2.1.2 Equipment and Material

C.2.1.2.1 Mobilization shall include all activities and associated costs for transportation of contractor's personnel, equipment, and operating supplies to the site. Demobilization shall include all activities and costs for transportation of personnel, equipment, and supplies not required or included in the contract from the site.

C.2.1.2.2 This work includes mobilization and demobilization required by the contract at the time of award. If additional mobilization and demobilization activities and costs are required during the performance of the contract as a result of changed, deleted, or added items of work for which the http://www.nrcs.usda.gov/ contractor is entitled to an adjustment in contract price, compensation for such costs will be included in the price adjustment for the item or items of work changed or added. 5

C.2.1.2.3 The contractor shall assume responsibility for protection of existing roads, overhead and/or buried utilities and fences that may be affected by the work.

C.2.2 Tree Planting

C.2.2.1 This work shall consist of site preparation, furnishing, transporting, temporary storage and planting tree seedlings of the species, method and quality specified and at the locations shown on the drawings provided in this solicitation.

C.2.2.2 Materials

C.2.2.2.1 Unless otherwise specified, all plant materials used shall be true to name, size and quality in conformity with the following standards:

C.2.2.2.1.1 AMERICAN STANDARD FOR NURSERY STOCK. Copyright 1973 (current edition

2004). ANSI Z60.1 - 2004 (Published by the American Association of Nurserymen, Inc., 230

Southern Building, Washington, DC 20005)

C.2.2.2.1.2 Verification of Sources of Supply - The contractor shall verify, prior to bidding, all sources of supply to ensure that all of the items on the plant materials list, of size, species, variety, and quality noted and specified, can be supplied.

C.2.2.2.1.3 General Requirements - A minimum of 2% of the plants of each type representative of the planting group in a Tract will be properly identified by species name and size on legible weatherproof labels securely attached to the plants.

C.2.2.2.1.3.1 All plants shall be nursery grown from a seed source collected within a 300-mile radius of the job site and from an appropriate bottomland or upland source, as the case shall be, for the given species selected.

C.2.2.2.1.3.2 All plants shall have normal, well-developed branches and vigorous root systems characteristic of the species. They shall be sound, healthy, vigorous, free from defects, disfiguring knots, abrasions of the bark, sun scaled injuries, plant diseases, insect eggs, borers, and all other forms of infections. They shall be carefully dug such that the major portion of the root system, including the fibrous roots, remains intact. The soil shall be carefully removed from the roots, avoiding unnecessary loss or breakage of fibrous roots. Any roots that are broken or which must be cut shall be cleanly cut. The roots of all plants shall be protected at all times to prevent injury or drying caused by heat, sun, wind, and freezing temperatures.

C.2.2.2.1.3.3 All plants shall be dormant when collected. 6

C.2.2.2.1.3.4 Plants which have been held in storage shall be rejected if they show signs of growth during storage.

C.2.2.2.1.4 Inspection of Plant Material - The Contractor shall notify the Contracting Officer’s

Technical Representative of the source of plant materials at least one (1) week prior to delivery. The

COR will have the option, at their discretion, to inspect the plants for acceptance at the place of growth. Inspection at the place of growth will not impede the right to reject plants at the planting site.

C.2.2.2.1.4.1 The Contractor shall notify the COR when the plant materials arrive upon the job site.

Plant materials shall be inspected, and a determination shall be documented as to their condition relative to their suitability for planting prior to the commencement of work.

C.2.2.2.1.4.2 Final acceptance of all plant materials shall be given only after the materials are planted and after all requirements are met.

C.2.2.2.1.4.3 Unacceptable plant material shall be immediately removed at contractor’s expense from the jobsite.

C.2.2.2.1.5 Delivery and Storage - All plants shall be packed in such a manner as to insure adequate protection against climatic, seasonal or other injuries during transit. Special care shall be taken for prompt delivery and careful handling in loading and unloading. Plants should be kept moist during transportation, storage, and during the planting operation. Seedlings should be planted within five (5) days of arriving at the site. If the tree seedlings are not planted within five (5) days after they have arrived from the designated nursery, the Contractor shall place them in cold storage at 35 to 45 degrees Fahrenheit. The Contractor shall be responsible for protecting the seedlings from injury or theft during the contract period.

C.2.2.2.1.5.1 No plant shall be pruned prior to delivery. Root stock may be pruned at the planting site, to a length no less than 8 inches, to accommodate the proper placement and position of roots in the planting trench.

C.2.2.2.1.5.2 Each shipment of plants to the site shall be accompanied by a delivery slip indicating source of supply, exact quantities, sizes, and species delivered. A copy of all delivery slips shall be delivered to the COR.

C.2.2.2.1.6 Measurement for Size - All planting stock shall be bare root seedlings, nursery grown for a minimum of one year. The minimum height of seedling stock shall be 12 inches, measured from the root collar to the tip of the branches. The minimum seedling diameter shall be 7/32 inch, measured at

1 inch above the root collar. The minimum length of roots shall be 8 inches, measured from the root collar to the tip of the roots. All seedlings shall have at least 5 primary roots 1/10-inch diameter or larger. 7 Roots longer than 8 inches may be pruned to 8 inches during the same day in which they will be planted, to accommodate proper placement in the planting trenches.

C.2.2.3 Site Preparation - Site preparation will be required to be performed on the entire acreage of the tree planting area prior to tree planting. The only approved method of site preparation shall be rotary mowing. The existing vegetation shall be mowed to a height no greater than 8 inches above the ground. Disking or strip mowing is not authorized.

C.2.2.4 Planting

C.2.2.4.1 Planting Procedures

C.2.2.4.1.1 Seedlings shall be planted upright with no more than a 20% lean. Soil shall be packed firmly around seedling roots to eliminate air pockets. Furrows shall be sufficiently pressed to ensure that seedlings will not be windthrown or scoured out during flood flows. The Contractor shall ensure that planting furrows are deep and wide enough to fully extend roots. Tree seedlings shall be planted so that the root collar is placed 1/2 inch deeper than the depth at which it was grown in the nursery.

Trees shall be planted with conventional forestry planting equipment such as the dibble bar, planting spade, or mechanical tree setter.

C.2.2.4.1.2 Seedlings shall be planted on the geographic contour. The Contractor shall plant the species type and number identified in the planting groups contained in this specification, at the locations identified for the appropriate planting group on the maps provided in this solicitation. To attain a random species mix within the planting group, the Contractor shall ensure that at least two species are planted per row and that no two rows of the same species are planted adjacent to one another.

C.2.2.4.2 Inspection Requirements

C.2.2.4.2.1 Inspection of seedling quality by the government or its agents will be performed under this contract prior to or at the beginning of the planting of the seedlings. The government or its agents shall be given at least 48 hours’ notice of the anticipated arrival of seedlings and planting crew to each site to facilitate the completion of this inspection requirement.

C.2.2.4.2.2 Inspection by the government of the tree planting adherence to contract specifications will be performed under this contract by measuring sampling plots. A sampling plot is defined as a 1/20-acre sample taken for every 10 acres of planted area. An area will be considered adequately planted when a minimum of 80% of the trees in each sample plot meets contract-planting specifications. In the event, a sample plot fails to meet the contract requirements, the Contractor will be required to re-work the 10 acre area prior to reinspection. The re-inspection sample plot will not be the original sample plot. 8

C.2.2.5 Measurement and Payment

C.2.2.5.1 Method 1 - The acreage figure for each tract or planting group is an estimate that was made on an aerial photograph. Payment will be made to the nearest 0.1 acre shown in the bid schedule. The estimated acreage will not be re-measured or adjusted further. Contractor is responsible for providing and planting the number of trees necessary to achieving the specified spacing. Such payment will constitute full compensation for furnishing, transporting, planting trees complete and in place. For items of work for which specific unit prices are established in the contract, each area treated as specified will be measured to the nearest 0.1 acre. Payment for treatment will be made at the contract unit price for the designated treatment which will constitute full compensation for completion of the work. The payment for planting trees and shrubs shall be paid for at the contract unit price as shown in the bid schedule. Such payment shall constitute full compensation for all labor, tools, equipment, materials, and other necessary and incidental to completion of work.

C.2.2.5.2 Method 2 - For items of work for which specific lump sum prices are established in the contract, the quantity of work will not be measured for payment. Payment for this item will be made at the contract lump sum price for the item and will constitute full compensation for completion of the work.

C.2.2.5.3 Method 3 - For items of work for which lump sum prices are established in the contract, payment will be made as the work proceeds, after presentation of invoices by the Contractor showing related costs. If the total of such payments is less than the lump sum contract price for this item, the unpaid balance will be included in the final contract payment. Payment of the lump sum contract price will constitute full compensation for completion of the work.

C.2.2.5.4 All Methods - The following provisions apply to all methods of measurement and payment.

Compensation for any item of work described in the contract but listed in the bid schedule will be included in the payment for the item of work to which it is made subsidiary. Such items and the items to which they are made subsidiary are identified in below.

C.2.2.6 Items of Work and Details - Items of work to be performed in conformance with this specification and details are:

C.2.2.6.1 Bid Item 2 – Planting Trees, Miler-Farace 60 acres, Lindley Bottoms 120 acres &

Wernz/Biddle 80 CLARK COUNTY ILLINOIS

C.2.2.6.1.1 This item shall consist of site preparation, furnishing, storing, transporting, and planting bare root tree seedlings in the areas shown on the attached drawings.

C.2.2.6.1.2 Site preparation is required.

C.2.2.6.1.3 Staging and storage of materials shall be in the areas designated. 9

C.2.2.6.1.4 The species and number of seedlings per acre to be planted in each area shall be as shown in the following Plant Materials List. All seedlings shall be bare root.

C.2.2.6.1.5 Tree seedlings in all areas shall be planted at a rate of 435 seedlings per acre. Seedlings shall be planted on a 10 foot by 10-foot grid spacing.

C.2.2.6.1.6 The following will be furnished to the Contracting Officers Technical Representative

(COTR) or the Government Inspector by the Contractor:

C.2.2.6.1.6.1 Copies of invoices of each shipment of seedlings.

C.2.2.6.1.6.2 Certification that all seedlings conform to the standards of the AMERICAN

STANDARD FOR NURSERY STOCK. Copyright 1973 (current edition 2004). ANSI Z60.1 - 2004

(Published by the American Association of Nurserymen, Inc., 230 Southern Building, Washington, DC 20005)

C.2.2.6.1.6.3 Certification that the equipment to be used is of the proper type, sizes, capacity, and condition to do the work.

C.2.2.6.1.6.4 An inspection certificate for each shipment of seedlings cross referenced with the invoice for each shipment.

C.2.2.6.1.6.5 Documentation of seed source for seedlings.

C.2.2.6.1.7 Areas shown on the maps or marked in the field as food plots, open water areas, power lines or existing woodland shall not be planted.

C.2.2.6.1.8 Caution should be taken to preserve steel posts placed by survey benchmarks as shown on the drawings. Replacement of benchmark marker posts shall be at the contractor’s expense.

C.2.2.6.1.9 Measurement and Payment shall be by Method 1 discussed above.

C.2.2.7 Tree Species – A minimum of 5 species is required, in equal numbers per species. Care should be taken to plant appropriate species at the topographic elevation that each species would be found in a natural setting. Bald Cypress, Taxodium distichum North Pecan, Carya Illinoensis

Overcup Oak, Quercus lyrata Pin Oak, Quercus palustrus Willow Oak, Quercus phellos Swamp

Chestnut Oak, Quercus michauxii Burr Oak, Quercus macrocarpa Sycamore, Platanus occidentalis

C.2.3 Tree-Shrub Site Preparation 10

C.2.3.1 Definition – Treatment of sites to enhance the success of natural or artificial regeneration of desired trees and/or shrubs.

C.2.3.2 Purpose - This practice is used to accomplish one or more of the following purposes:

C.2.3.2.1 Manage soil conditions, naturally available water, and seasonally high water to favor tree and shrub establishment, survival, and growth.

C.2.3.2.2 Modify the habitat of weeds, pests, and diseases to reduce pressure on naturally or artificially regenerated trees and shrubs.

C.2.3.2.3 Facilitate the establishment, survival, and growth of tree and shrub species.

C.2.3.3 Conditions Where Practice Applies - On all lands suited to growing woody plants where current site conditions are not suitable for the natural or artificial establishment of desired trees and shrubs.

C.2.3.4 Criteria

C.2.3.4.1 General Criteria

C.2.3.4.1.1 Use mechanical, chemical, or prescribed burning methods either alone or in combination to alter woody residue, vegetation, ground cover, soil, or microsite conditions to prepare the site for planting, seeding, or natural regeneration of desired tree and shrub species.

C.2.3.4.1.2 Expose mineral soil as needed to achieve the desired distribution of plants to be established by seed for tree and shrub species that require mineral soil for germination and establishment.

C.2.3.4.1.3 Determine method(s), intensity, and timing of site preparation activities depending on topography, and on soil and site conditions. Schedule silviculture and site preparation activities so they are completed at the optimal time prior to the commencement of planting or seeding activities, or to the initiation of natural regeneration.

C.2.3.4.1.4 Leave woody residue in place to provide soil protection and wildlife habitat, retain soil moisture and organic matter, and protect the soil surface from temperature extremes—except where it will pose a fire hazard, increase the risk of pest damage, or interfere with management activities.

C.2.3.4.1.5 Use NRCS CPS Prescribed Burning (Code 338) when using fire to prepare a site.

C.2.3.4.1.6 On soils prone to compaction or rut formation, use low ground-pressure equipment or nonmechanized site preparation methods. When preparing compacted cropland or pasture sites for tree planting, chisel, rip, and/or subsoil to mitigate compacted soil layers, as needed. Use criteria in

NRCS CPS Deep Tillage (Code 324). 11

C.2.3.4.1.7 Retain desirable surface and canopy cover to protect soil and site conditions.

Alternatively use NRCS CPS Cover Crop (Code 340) or Critical Area Planting (Code 342) and/or other measures as needed to control erosion, runoff, and displacement from typical rainfall events.

C.2.3.4.1.8 Do not use wheeled and tracked equipment on slopes where operability causes safety concerns or adverse impacts on soil conditions. Perform ground-disturbing site preparation activities on the contour where feasible. Restrict the use of wheeled and tracked equipment to periods when the soil is either frozen or unsaturated. Use designated trails or establish a trail system as appropriate and feasible. Use NRCS CPS Forest Trails and Landings (Code 655).

C.2.3.4.1.9 Mitigate site preparation activities near wetlands, water bodies, and in or near riparian areas to reduce negative water quality impacts.

C.2.3.4.1.10 Fence out livestock to prevent damage to site preparation areas and woody plants.

C.2.3.4.1.11 Follow State’s best management practices for water quality. See Foresty Best

Management Practices for Illinois in REFERENCES.

C.2.3.4.2 Additional Criteria for Reducing Habitat for Harmful Pest and Diseases of Woody Plants

C.2.3.4.2.1 Remove vegetation infected with transmittable disease (e.g., mistletoe and certain root rots). Consult a professional forester to aid in identifying sanitation measures.

C.2.3.4.2.2 Treat slash and woody debris so that it does not create habitat for, or harbor, harmful levels of pests. Refer to criteria in NRCS CPS Woody Residue Treatment (Code 384).

C.2.3.4.2.3 Clean equipment and gear before and after site preparation activities where risk of spread and potential impact from invasive species or harmful pathogens is likely.

C.2.3.4.3 Additional Criteria for Ponding, Flooding and Seasonally High Water

C.2.3.4.3.1 On sites where a seasonal excess of surface water restricts the establishment or regeneration of desired and adapted trees or shrubs, use temporary water management techniques as allowable by regulation, laws, and policy as needed.

C.2.3.4.3.2 Where temporary water management is used, limit the depth, spacing, and number of channels to the minimum amount needed to remove excess surface water for tree/shrub establishment or regeneration. 12

C.2.3.4.3.3 Temporary water management channels must empty into areas where runoff will be diffused and filtered by vegetation and soils before reaching a natural water body.

C.2.3.4.3.4 Apply water management activities, including spoil placement, in compliance with the

Clean Water Act, Food Security Act, and NRCS Wetland Compliance.

C.2.3.5 Consideration

C.2.3.5.1 To reduce problems associated with insects in logging debris and the reestablishment of undesirable species, consider doing site preparation within one year after logging, followed promptly by planting or natural regeneration.

C.2.3.5.2 To reduce negative impacts on wildlife species and their habitat, consider the timing of site preparation to minimize actions that disturb seasonal wildlife activities.

C.2.3.5.3 Particulates, smoke, dust, and other air pollutants generated by site preparation may have negative effects on air quality. Consider proximity to populated areas, roads, and visually sensitive areas when planning method and timing of site preparation activities.

C.2.3.5.4 Where site preparation requires treatment of competing vegetation, consider alternatives to chemical treatments such as thermal applications, mulching, or solarization. Use other emerging technologies when applicable.

C.2.3.5.5 Where plow pans or compacted soils exist, but may or may not warrant deep tillage mitigations, consider planting tillage radishes and other deep rooted cover crops in advance of tree planting and other site preparation activities to promote healthy plan root systems.

C.2.3.5.6 When preparing sites located in cropland fields, consider the effect carry-over herbicide residue will have on planted tree species.

C.2.3.5.7 For complex sites, consult a professional forester for assistance.

C.2.3.6 Plans and Specifications

C.2.3.6.1 Prepare plans and specifications for site preparation in accordance with this standard.

Clearly describe the requirements for applying the practice to achieve its intended purpose. As a minimum, include the following in the implementation requirements document or other acceptable planning documentation:

C.2.3.6.1.1 Maps, drawings, and narratives, showing areas to be treated, and showing details of the layout of site preparation activities relative to streams, wetlands, or water bodies, underground or overhead utilities, existing access or other infrastructure, etc., as applicable.

C.2.3.6.1.2 Description of existing land use and vegetative cover. 13

C.2.3.6.1.3 Description of site preparation methods to be used and application dates.

C.2.3.6.1.4 Description of mitigations for compaction, erosion, soil organic matter removal, and any other anticipated site impacts.

C.2.3.6.1.5 State whether site preparation is for natural or artificial regeneration. If artificial, provide the planned date for tree planting, timed appropriately relative to site preparation.

C.2.3.6.1.6 Details on undesirable plant species to be treated and control methods to be used.

C.2.3.6.1.7 Description of contingency plans in case of flooding or other disturbances that impact implementation schedules or mitigations.

C.2.3.6.1.8 References to other conservation practice specifications, if applicable.

C.2.3.7 Operation and Maintenance

C.2.3.7.1 Operation

C.2.3.7.1.1 Site preparation operations will comply with all local, State, and Federal laws and ordinances, and with State’s forestry best management practices for water quality.

C.2.3.7.1.2 For site preparation using herbicides, the operator will develop a safety plan for individuals exposed to chemicals, including telephone numbers and addresses of emergency treatment centers and the telephone number for the nearest poison control center. The National

Pesticide Information Center (NPIC) telephone number in Corvallis, Oregon, may also be given for nonemergency information: 1-800-858-7384, Monday to Friday, 6:30 a.m. to 4:30 p.m. Pacific Time.

The national Chemical Transportation Emergency Center (CHEMTRAC) telephone number is 1-800-

424-9300.

C.2.3.7.1.2.1 Follow label requirements for mixing/loading setbacks from wells, intermittent streams, and rivers, natural or impounded ponds and lakes, and reservoirs.

C.2.3.7.1.2.2 Post signs, according to label directions and/or Federal, State, Tribal, and local laws, around fields that have been treated. Follow restricted entry intervals.

C.2.3.7.1.2.3 Dispose of herbicides and herbicide containers in accordance with label directions and adhere to Federal, State, Tribal, and local regulations.

C.2.3.7.1.2.4 Read and follow label directions and maintain appropriate material safety data sheets.

C.2.3.7.1.2.5 Calibrate application equipment according to recommendations before each seasonal use and with each major chemical and site change.

C.2.3.7.1.2.6 Replace worn nozzle tips, cracked hoses, and faulty gauges on spray equipment.

C.2.3.7.1.2.7 Herbicide application records shall be kept in accordance with USDA Agricultural

Marketing Service’s Pesticide Recordkeeping Program and State-specific requirements.

C.2.3.7.1.3 Determine the success of the practice by evaluating post-treatment conditions and verifying that they are suitable for the establishment of desired trees and shrubs.

C.2.3.7.2 Maintenance

C.2.3.7.2.1 Following initial application, some regrowth, sprouting, or reoccurrence of undesirable plants may be expected. Spot treatment of individual plants or areas needing retreatment should be completed as needed while woody vegetation is small and can be most successfully treated, during the lifespan of this practice. This includes maintaining erosion control measures as necessary and controlling access by vehicles, wildlife, or livestock, to support successful establishment of this practice.

C.2.3.7.2.2 Control plant species on the Federal and State invasive species and noxious weed list. C.3

Location of Service

C.3.1 See attachments for a map of the location.

End of Section

CONTRACT CLAUSES

52.252-2 Clauses Incorporated by Reference (FEB 1998)

This contract incorporates the following 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): www.acquisition.gov.

52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services. As prescribed in 12.301(b)(3), insert the following clause:

CONTRACT TERMS AND CONDITIONS—COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (NOV

2021)

(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.

http://www.acquisition.gov/ http://www.acquisition.gov/ http://www.acquisition.gov/ http://www.acquisition.gov/ https://www.acquisition.gov/far/12.301#FAR_12_301 https://www.acquisition.gov/far/12.301#FAR_12_301 https://www.acquisition.gov/far/12.301#FAR_12_301 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3

(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 Federal Acquisition Regulation (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.

(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.

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(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 https://www.acquisition.gov/far/52.232-33#FAR_52_232_33 https://www.acquisition.gov/far/52.232-33#FAR_52_232_33 https://www.acquisition.gov/far/52.232-33#FAR_52_232_33 https://www.acquisition.gov/far/52.232-33#FAR_52_232_33 https://www.acquisition.gov/far/52.232-33#FAR_52_232_33 https://www.acquisition.gov/far/52.232-34#FAR_52_232_34 https://www.acquisition.gov/far/52.232-34#FAR_52_232_34 https://www.acquisition.gov/far/52.232-34#FAR_52_232_34 https://www.acquisition.gov/far/52.232-34#FAR_52_232_34 https://www.acquisition.gov/far/52.232-34#FAR_52_232_34 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/far/52.212-5#FAR_52_212_5 https://www.acquisition.gov/far/52.212-5#FAR_52_212_5 https://www.acquisition.gov/far/52.212-5#FAR_52_212_5 https://www.acquisition.gov/far/52.212-5#FAR_52_212_5 https://www.acquisition.gov/far/52.212-5#FAR_52_212_5

(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 as 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.

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(vii) The interest charge made under this clause may be reduced under the procedures prescribed in

FAR 32.608-2 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.

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

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31

U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work

Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

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

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws

Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 52.212-5.

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

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User 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 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3…