S01- 12FPC124Q0012 RFQ Kansas Title Services.pdf

United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS)

Request for quotes (RFQ 12FPC124Q0012)

Acquisition procedures at FAR Part 13.5 and 12 are being utilized on this solicitation

Blanket Purchase Agreement (BPA) for Title Search and

Closing Services for NRCS’s Easement Program Kansas

FOR SOLICITATION INFORMATION: Matthew Harvey matthew.harvey@usda.gov Phone: 515-323-2291 Sharla Goforth sharla.goforth@usda.gov Phone: 405-571-3383

QUESTIONS DUE: May 8, 2024

1:00 PM CST

OFFER DUE DATE/LOCAL TIME: May 15, 2024

1:00 PM CST

mailto:matthew.harvey@usda.gov mailto:sharla.goforth@usda.gov

A Solicitation/Contract Form

A.1 SF 1449 – to be provided upon award

A. 2 Department/Agency

A.2.1 United States Department of Agriculture (USDA)

Natural Resources Conservation Service (NRCS)

A.3 Contracting Office

A.3.1 Farm Production and Conservation - Business Center

Acquisition and Procurement Division Section 1 - Operations Branch

A.4 Contracting Officer/Contract Specialist

A.4.1 Contracting Officer: Sharla Goforth, email: sharla.goforth@usda.gov Phone: 405-571-3383

Contract Specialist: Matthew Harvey, email: matthew.harvey @usda.gov Phone: 515-323-2291

A.4.2 Any USDA FPAC BC Contracting Officer can act on this contract should the need arise.

A.4.3 A Contracting Officer is the only individual who can legally commit or obligate the Government for the expenditure of public funds. Only the contracting officer has authority to: (1) increase or decrease the award amount; (2) direct or negotiate any changes; (3) modify or extend the period of performance; (4) change the schedule of completion; (5) authorize payment under this order;

(6) otherwise modify any terms or conditions of this Contract.

A.5 Program Office

A.5.1 Natural Resources Conservation Agency Kansas State Office

A.5.2 Point of Contact: To Be Provided Upon Award

A.5.3 The program office point of contact will act as the liaison to coordinate activities between the

Contractor and Contracting Officer, as required, in the performance of the work under this contract. They have the authority to provide technical clarification of the contract requirements but does not have the authority to modify any contract provisions, including, without limitation, changing the scope of work, the cost/price thereof, or the performance delivery schedule(s) therefore. Technical clarification will be issued in writing within 5 (five) calendar days after verbal issuance.

mailto:sandra.driver@usda.gov

A.6 Individuals authorized to purchase under this BPA

A.6.1 BPA Calls may be placed against this BPA by any properly warranted Contracting Officer or

Authorized Government Purchase Card Holder for the USDA. Each individual BPA Call will have a unique title services requirement to be specified on the call.

End of Section

B SF 1449 Services/Supplies and Prices/Costs

B.1 Contract Type

B.1.1 Blanket Purchase Agreement (BPA)

B.1.1.1 USDA may issue multiple BPAs.

B.1.1.2 BPA Calls will be established as Firm Fixed Price Awards based on pricing established in the BPA(s).

B.1.1.3 The Government is obligated only to the extent of authorized orders/calls issued under this BPA, and the vendor is not guaranteed any orders/calls under this BPA

B.1.1.4 The vendor shall furnish title and closing services, described herein, when requested by the Contracting Officer (or the authorized representative for the Contracting Officer) between a five (5) year period commencing on the date of the BPA award. Upon the expiration date the agreement is considered completed and new orders/call shall not be placed

B.2 Pricing

B.2.1 Dates listed below are approximate. Exact dates will be provided when awarded. 05/16/2024 is the earliest date the contract would start; however, it may start later than that date.

Line Item/Service Year 1 2024-2025

Year 2 2025-2026

Year 3 2026-2027

Year 4 2027-2028

Year 5 2028-2029

1. Preliminary Title Search Commitment

2. Title Commitment Update

3. Closing Service Fee

4. **Recording Fees (per page)

5. ALTA Closing Protection Letter

*Offerors must submit current title insurance rates with their Quotes. Title insurance premium costs will be included in each BPA Call Order issued for title commitments rather than being handled as a reimbursable expense. Any necessary changes to title insurance rates during contract period of performance will be handled by modification.

**NRCS understands that the exact fee is not known at contract/task order award. NRCS is requesting a sliding scale for this service to be performed with actual cost being provided by the contractor 15 business calendar days prior to actual recording. Recording fees should be itemized for billing and payment purposes.

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 deliver conservation solutions, so agricultural producers can protect natural resources and feed a growing world. For more information regarding the agency and its programs visit http://www.nrcs.usda.gov/.

C.1.2 The Agricultural Conservation Easement Program Wetland Reserve Easement component (ACEP-WRE), the Wetlands Reserve Program (WRP), Emergency Watershed Protection Program - Floodplain Easements (EWPP-FPE), and the Healthy Forest Reserve Program (HFRP) each provide authorization for the United States to acquire conservation easements from willing landowners for the purpose of restoring and protecting wetlands, floodplains, or forest lands respectively. NRCS is the agency within the USDA that is responsible for administration of these programs.

C.1.3 Kansas NRCS wish to establish a Blanket Purchase Agreement (BPA) for this service and will issue BPA calls as needed. The BPA will be for 5 years.

C.2 Blanket Purchase Agreement (BPA) and BPA Call Instructions

C.2.1 Description of Agreement

C.2.1.1 The vendor shall furnish the services described herein, if and when requested by the contracting officer (or the authorized representative of the contracting officer) during the period of performance.

C.2.2 Extent of Obligation

C.2.2.1 The Government is obligated only to the extent of authorized order/calls actually made under this BPA and the vendor is not guaranteed any orders/calls under this BPA.

C.2.5 Delivery Tickets

C.2.5.1 Unless otherwise agreed to, all deliveries under this agreement shall be accompanied by delivery tickets or sales slips that shall contain the following minimum information:

(i) Name of supplier.

(ii) This BPA number.

(iii) Date of order/call.

(iv) Order/call number.

(v) Itemized list of supplies or services furnished.

(vi) Quantity, unit price, and extension of each item, less applicable discounts.

(vii) Date of delivery or shipment.

C.2.6 Invoicing

C.2.6.1 Invoicing is discussed under Section G of this document. Invoices will be required for each call order.

C.2.6.2 If the purchase card is used for ordering and payment, the invoice must be sent to the

Authorized ordering official, which should be an authorized purchase cardholder and a copy sent to kristina.baker@usda.gov .

C.2.7 Ordering Instructions

C.2.7.1 Orders to be performed under this BPA may be placed by an authorized USDA purchase cardholder or the issuance of a BPA call in IAS. Payment may be made via the purchase card or electronic funds transfer. When using IAS, CO’s must select “BPA Call” as a document type and the BPA award number when creating a call.

C.2.8 Delivery of Title Commitment and Closing Services

C.2.8.1 Specific delivery instructions will be provided with each BPA call.

C.3 Scope

C.3.1 The contractor must coordinate, facilitate, and perform the following services:

1. Provide the title commitment (or title search and/or update of abstracts), including copies of all instruments that created rights, interests, or encumbrances, for the easement boundary and ingress-egress descriptions.

2. Work with NRCS and the landowners to clear exceptions on title to the property and resolve vesting interests.

3. Update the title commitment, based upon the final legal description of the easement area, including copies of all instruments that created rights, interests, or encumbrances on the property, not included on the original title commitment, for the easement boundary and ingress-egress descriptions and prepare the Draft Warranty Easement Deed (“WED”) and Draft HUD/Settlement Statement.

4. Hold funds in escrow, provide closing protection coverage, and provide payment to proper recipient and comply with Internal Revenue Service (IRS) tax reporting Form 1099.

5. Obtain signatures on warranty easement deeds provided by NRCS.

6. Obtain signatures on subordination agreements and limited lien waivers, affidavits, and any other necessary documents.

7. Record documents in the local land records office (e.g., the applicable county registrar or recorder's office, county or town clerk records office).

8. Provide a final title insurance policy using American Land Title Association (ALTA)

U.S. Policy 09-28-1991 (Revised 12/3/2012)

9. Provide other services, as necessary, to finalize the easement transaction.

The contractor will provide the above-listed items to the designated NRCS contact identified on the order for services.

mailto:kristina.baker@usda.gov

C.4 Standards and Responsibilities

C.4.1 The acquisition of the program easement and any access easement is governed by the following requirements:

a. Regulations of the Attorney General Governing the Review and Approval of Title for Federal Land Acquisitions (2016)

b. NRCS regulations and policies governing the NRCS program under which the easement is being acquired.

C.4.2 The contractor will perform the same services that are customarily provided in a commercial transaction, including chain of title, determination of ownership and interest share of surface and subsurface rights, securing and providing all underlying documents, obtaining and recording deeds, and any necessary curative instruments to ensure merchantable, insurable title to the easement are in the name of the United States of America. The contractor is responsible for having up-to-date knowledge of the requirements of the State's laws on title searches, closing real estate transactions, and title clearance. The title insurance company and its issuing agents must comply with the State's laws, including title insurance reserve requirements. The contractor must be licensed to do title insurance business in the State of Kansas. The title insurance company must be approved by the State's insurance commissioner.

C.4.3 The contractor and any subcontractors must obtain a valid Unique Entity ID (UEI) number and must maintain active registration in System for Award Management (SAM) for the duration of any contracts or agreements to provide closing services to the NRCS

C.4.4 The contractor must provide evidence of liability insurance coverage or indemnification in an amount equal to the amount of Federal funds for each easement satisfactory to NRCS, acting on behalf of the Commodity Credit Corporation, providing for reimbursement to NRCS for any loss of Federal funds caused by errors, omissions, fraud, dishonesty, negligence, or failure by the attorneys, agents, or closing agent employees to comply with NRCS's written closing instructions. The ALTA closing protection letter, revised 4/2/2014, is satisfactory to meet this condition of responsibility. Evidence of liability insurance must be provided prior to award.

C.5 Description of Services – Title Commitment (or Title Search and/or Update of Abstracts)

C.5.1 The contractor must obtain the following:

1. Copies of all instruments that created rights, interests, or encumbrances on the proposed easement property.

2. Preliminary title commitment, which must cover the entire easement area and the access for ingress and egress to the easement area, must commit to issuing the final title policy to the "United States of America" on the ALTA U.S. Policy Form 9- 28-91 (Revised 12/3/2012).

3. Title search services and title commitment must be provided within 45 business days of receiving the request from NRCS.

4. The invoice submitted to the Invoice Processing Platform (IPP) for services rendered at www.ipp.gov.

C.5.2 The title commitment/binder must be provided from a closing agent operating with a licensed title insurance company authorized by law and by the State insurance commissioner to issue title insurances policies in the State in which the land lies. The amount of the owner's coverage should be listed as the easement purchase price. The title search/update of abstract must be for a sufficient period of time for the title company to insure the title without objectionable exceptions and must identify all owners of record, outstanding mortgages, liens, judgments or pending suits, outstanding tax claims, easements or rights-of-way of any type, including oil, gas, and mineral interests that have been severed, any water right interests, and any other exceptions that may cloud the title of the easement to be purchased. The search must show ownership interest of the surface and subsurface rights including oil, gas, coal, sand, gravel, and other minerals associated with the property. The title commitment must include a legible copy of all underlying documents of any type, whether oil, gas, or mineral interests have been severed, mortgages, bankruptcies, and any other exceptions that may cloud the title of the easement to be purchased.

C.5.3 Title search services must be provided to the designated NRCS contact identified on each order for services request within 45 business days of receiving the request from NRCS.

The contractor will be provided with the name, address, and telephone number of the landowner, a copy of the current ownership documentation as provided by the landowner to NRCS, a location map of the proposed easement area, and the proposed access route for ingress and egress. The contractor is responsible for determining the ownership of all tracts lying within the proposed easement area as depicted in the location map.

C.5.4 Not every title commitment (search) obtained by NRCS will result in an order for the closing services outlined in section B. NRCS might not ultimately purchase an easement on the properties for which it obtains a title commitment (search). NRCS may elect not to make an offer to the landowner based on eligibility review. NRCS may withdraw an offer to landowners if NRCS lacks funding, landowners are unable to provide clear title or sufficient legal access, or for other reasons as determined by NRCS. The agreement to purchase the conservation easement may also expire or the landowners may elect to cancel the agreement with NRCS.

C.5.5 If NRCS intends to proceed with the acquisition of an easement and orders closing services identified in section B, NRCS may require the contractor to execute a separate acknowledgement for individual transactions, affirming that it will comply with all the requirements identified on the "Closing Agent Requirements," included in the "Closing Instruction Letter", for that transaction. If the contractor hires a subcontractor to complete the closing services outlined in section B, the contractor may be required to provide NRCS an executed acknowledgement of the "Closing Agent Requirements" from the subcontractor.

http://www.ipp.gov/

C.6 Description of Services – Closing Services

C.6.1 After receiving the surveyed legal description from NRCS, the contractor must provide an updated preliminary title commitment, which must cover both the easement area and access for ingress and egress, a draft Warranty Easement Deed (“WED”), draft Settlement Statement (“HUD”), and Closing Protection Letter. The updated title commitment and draft closing documents must be provided to the designated NRCS contact within 14 business days of receiving the request from NRCS. In the event of acreage changes, after the completion of the survey, the title commitment must be updated to provide adequate owner’s coverage.

C.6.2 Upon receipt of the draft closing documents, NRCS will forward the preliminary title commitment and other related closing documentation to the USDA Office of the General Counsel (OGC) regional attorney for a preliminary title opinion (PTO). If any outstanding issues remain, NRCS will work with OGC to determine which exceptions are acceptable and which exceptions must be cured.

C.6.3 The preliminary title commitment must not contain an exception related to the terms and conditions of the Warranty Easement Deed to be recorded at closing. However, if such exception is required by the title company, the proposed language for such exception must be approved prior to closing by OGC.

C.6.4 NRCS will provide the NRCS closing instructions and the applicable instructions from the OGC

PTO identifying the requirements that must be met before the easement can be closed. The contractor must communicate with NRCS and the landowner regarding proper procedures for the landowner to clear exceptions and the contractor must obtain the execution of documents such as releases, subordinations, full or partial satisfaction for mortgages, lien waivers, affidavits of materialmen’s liens, child support, and other types of releases of encumbrances on the property.

C.6.5 The contractor must establish an escrow account in an FDIC-insured account for the payment of the easement associated with the closing and include the escrow account information in their System for Award Management (SAM) registration. The contractor will be responsible for Form 1099 reporting of the easement payment to the IRS. NRCS will prepare documentation needed to authorize payment to the escrow account when notified of the closing date. In certain cases, as stated in the NRCS closing instructions, the contractor may be required to withhold a portion of the payment for property taxes or assessments that are not yet determined or payable in an escrow account and process payments when due.

The contractor will not close any transaction or record deeds or other instruments prior to receiving the NRCS closing instructions letter and OGC PTO requirements. The contractor is required to close within 30 calendar days from receipt of the closing order request.

Prior to closing the easement, the contractor must ensure that the following have occurred:

1. No new encumbrances have been recorded against the subject property since the date of the most recent title commitment/binder, no adverse change in title has occurred, and there are no intervening matters affecting title that might result in a new title exception to the policy. If any new encumbrances have been recorded against the subject property or other adverse changes in title have occurred since the date of the most recent title commitment/binder, notify the NRCS technical representative immediately and do not proceed until further instructions are received. The contractor may be required to provide a pro forma title policy or marked up title commitment, or an updated title commitment, to confirm all title requirements will be met at or prior to closing.

2. The contractor is prepared to issue the policy of title insurance referred below.

3. All exceptions required to be removed, released, subordinated, waived, or otherwise handled as set forth in the NRCS closing instructions have been completed and the applicable clearance documents recorded, and all other requirements met.

4. Compliance with any listed title commitment/binder requirements.

5. Review the Warranty Easement Deed according to the NRCS closing instructions and ensure the proper names and marital status are correct.

6. The contractor must provide a copy of the proposed HUD-1 settlement statement to

NRCS for review.

C.6.6 The contractor must schedule the execution of the Warranty Easement Deed with the landowner at a mutually agreed upon location and time. The contractor must obtain properly executed and acknowledged deed from the landowners conveying the conservation easement, including the associated ingress and egress to the easement area. The contractor must ensure that the deed contains all required signatures, release of dower rights, and that all signatures are in proper form and have been acknowledged, that the acknowledgement certificates are in proper form and have been completed correctly, and that the deed contains all of the necessary exhibits. The contractor must also obtain NRCS signatures on the Warranty Easement Deed.

C.6.7 When the signed documents are returned, the contractor must record the deeds and other instruments as necessary, and ensure the following have occurred:

1. The contractor must ensure that no new encumbrances have been placed on the property prior to recording the Warranty Easement Deed.

2. The contractor must record the Warranty Easement Deed, exhibits, and any necessary title curative documents within 5 business days of receipt of the executed documents from NRCS.

3. All taxes, homeowners’ assessments, etc. are paid to the date the Warranty Easement

Deed is recorded.

4. The contractor must issue a policy of title insurance on ALTA U.S. Policy Form 9/28/91

(Revised 12/3/12), with the “United States of America” named as the insured party in the full amount of the easement compensation amount identified on the Warranty Easement Deed as of the time and date of the recording of the Warranty Easement Deed. Said policy of title insurance must be free and clear of any and all encumbrances to the title except those shown as acceptable in the NRCS closing instructions and insure the United States’ interest in the easement area and the right of ingress-egress thereto. The final policy should reflect the execution and recording information pertaining to the insured easement, such as:

“30-Year or Perpetual Easement granted by to United States of America, by Warranty Easement Deed dated and recorded in Deed Record pages in the Office of the Recorder of County,__________.”

5. Complete IRS tax reporting Form 1099 for the full easement compensation amount, as identified in the warranty easement deed, issued to the appropriate parties.

C.6.8 The contractor must return the following package to the designated NRCS contact identified on the order for services within 5 business days of receipt of recorded documents from the local land records office:

1. The invoice submitted to the Invoice Processing Platform (IPP) covering the agreed-upon costs incurred for services provided at www.ipp.gov. The contractor will be paid a flat fee for services rendered, including all travel expenses, copy costs, telephone charges, and the like. The contractor must provide documentation for reimbursable expenses, such as title insurance fees and recording costs.

2. Policy of title insurance (original), ALTA U.S. Policy Form 9-28-91 (Revised 12/3/2012).

3. Recorder’s certified copy of the ACEP-WRE Warranty Easement Deed and a recording receipt.

4. Recorder’s certified copies of any curative documents, including subordination agreements.

5. Original executed settlement statements.

6. Record of disbursement of funds to the landowners.

7. Completed IRS Form 1099 issued to the landowners.

C.6.9 Upon receipt of the final documents, NRCS will request a final title opinion (FTO) from the OGC. If the FTO identifies issues that were not resolved by the contractor in accordance with the NRCS closing instructions and OGC PTO requirements, NRCS will notify the contractor of required remedies. If necessary, corrections were originally identified in the NRCS closing agent requirements form or NRCS closing instructions, such corrections must be done at no additional cost to NRCS and returned to the NRCS technical representative within 14 days of notification of such issue. Upon receipt of an OGC FTO indicating that all NRCS closing instruction and OGC PTO requirements have been met, NRCS will process the contractor’s payment for closing services.

C.7 Payment

C.7.1 There will be three payments issued:

1. Payment will occur upon receipt and approval of all deliverables identified above in section C.5. (preliminary title commitment).

http://www.ipp.gov/

2. Payment for recording costs and policy premiums will occur upon receipt and NRCS approval of all deliverables identified in above section C.6.

3. Payment of the contractor’s closing fee will occur upon final review and approval by NRCS or OGC of all deliverables identified in above section C.6., including satisfactory completion of any required remedies or corrections.

C.8 Conflict of Interest

C.8.1 The contractor must not close an NRCS easement purchase for their spouse, children, partners, or business associates, and must not have a financial interest in the real estate covered by the proposed easement.

C.9 Authority

C.9.1 Only the FPAC contracting officers may place orders under this BPA. Any modifications or questions may be directed to the originating contracting officer identified on the signed contract.

C.10 Non-Disclosure

C.10.1 Work performance required by this statement of work will involve access to potentially sensitive information about governmental and landowner issues. All contractor personnel must comply with the terms of AGAR 452.224-70, “Confidentiality of Information,” as well as provisions of the Privacy Act of 1974, 5 U.S.C. Section 552a. Additionally, the contractor’s employees must comply with the NRCS guidelines and requirements regarding the disclosure of personal information protected under section 1244 of the Food Security Act of 1985, as amended (16 U.S.C. Section 3844), and information protected under section 1619 of the Food, Conservation, and Energy Act of 2008 (Public Law 110-246), 7 U.S.C. Section 8791.

C.11.1 Civil Rights and Program Delivery

C.11.1 By signing this agreement, the contractor assures the Department of Agriculture that the program or activities provided for under this agreement will be conducted in compliance with all applicable Federal civil rights laws, rules, regulations, and policies.

C.12 Meetings and Communications

C.12.1 If necessary, meetings will be required on a weekly or monthly basis to encourage completion of the requirement.

D Reserved

E Inspection and Acceptance

E.1 Acceptance will be done under each BPA call or order and will be done upon receipt of the Appraisals.

E.1.1 Acceptance will be determined by the Technical Point of Contact.

E.1.2 Acceptance will be based on if the requirements under Section C are met.

E.1.3 The Technical Point of Contact or Contracting Officer reserves the right to review all work products required under the contract for acceptability as needed. The Government shall notify the Contractor whenever revisions to reports/deliverables are required in order for deliverables to be deemed acceptable.

F Performance

F.1 Period of Performance

F.1.1 Period of Performance will be provided when awarded. The BPA will be for five (5) years.

G Invoicing

G.1 Farm Production and Conservation (FPAC) Clauses

G.1.1 FPAC 4I-52.232-70 ELECTRONIC INVOICING AND PAYMENT REQUIREMENTS

– INVOICE PROCESSING PLATFORM (IPP)

(a) Invoices must be submitted electronically through the U.S. Department of the Treasury’s Invoice Processing Platform System (IPP). The Contractor must use the IPP website (https://www.ipp.gov) for submitting invoices. Invoices submitted by means other than IPP will not be accepted unless the Contracting Officer authorizes alternate procedures in writing.

(b) Under this contract, the following document(s) are required to be submitted as attachment(s) to the IPP invoice:

One (1) invoice should be submitted for each BPA call or order and after all work under the call or order are completed.

Invoices shall have supporting documents attached within in IPP. The supporting documents should include a breakdown of the total amount. Travel costs must be broken down by the individual traveler and documentation supporting the costs being invoiced must be attached and clearly indicate the traveler it is associated with. The remaining non-travel amount must be broken down into the individual labor category and rate identified in this contract and the quantity of hours expended. No other amounts shall be listed on an invoice.

Invoices and supporting documentation shall be attached within the Invoice Processing

Platform (IPP) and shall not be submitted directly to the Contracting Officer.

(End of clause)

G.2 Payment

G.2.1 USDA pays for services in arrears (after service is completed). No payments will be made prior to the completion of service.

G.2.2 Payment will be made after receipt of invoice or acceptance of service whichever is later.

Payment will be made via Electronic Funds Transfer or Government Purchase Card.

https://www.ipp.gov/

H Special Contract Requirements

H.1 Special Requirements

H.1.1 Limitation of Authority The government assigned Project or Program Manager, Task POC, or COR are responsible for monitoring the Contractor’s performance. Any proposed modifications to the task order, such as changes to the scope of work, or to the terms and conditions of the task order must be authorized by the Contracting Officer.

H.1.2 Conflict of Interest

If for any reason the agency or the Contractor determines that the Contractor faces a potential, perceived, or real conflict of interest, the agency shall notify the Contractor or the Contractor shall notify the agency, and the Contractor shall cease all work on, reassign the task, or proceed at the discretion of the agency. At the agency's option, the Contractor may provide an acceptable replacement.

I Task Order Provisions and Clauses

I.1 Agriculture Acquisition Regulation (AGAR) Provisions

I.1.1 AGAR 452.204-70 – Inquires (Feb 1988)

Inquiries and all correspondence concerning this solicitation should be submitted in writing to the Contracting Officer. Offerors should contact only the Contracting Officer issuing the solicitation about any aspect of this requirement prior to contract award.

(End of Clause)

I.1.2 AGAR 452.211-72 – Statement of Work/Specifications (Feb 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the objectives set forth in the Performance Work Statement/Specifications referenced in Section C.

I.1.3 AGAR 452.211-73 Attachments to Statement of Work/Specifications (Feb 1988)

The attachments to the Statement of Work/Specifications listed in Section J are hereby made part of this solicitation and any resultant contract.

I.1.4 AGAR 452.211-74 – Period of Performance (Feb 1988)

The period of performance for this award shall be from date of award and continue for five (5) years.

I.1.5 AGAR 452.224-70 – Confidentiality of Information (Feb 1988)

(a) Confidential information, as used in this clause, means --

(1) information or data of a personal nature, proprietary about an individual, or

(2) information or data submitted by or pertaining to an organization.

(b) In addition to the types of confidential information described in (a)(1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.

(c) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the "Disputes" clause.

(d) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

(e) Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.

(f) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor's intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45-day period, the contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the "Disputes" clause.

(g) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure,

(h) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.

I.1.6 AGAR 452.246-70 – Inspection Acceptance (Feb 1988)

(i) The Contracting Officer or Contracting Officer’s duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.

(j) Inspection and acceptance will be performed after each service requirement is completed.

(End of provision)

I.3 Federal Acquisition Regulation (FAR) Provisions

I.3.1 52.212-4 - Contract Terms and Conditions—Commercial Products and Commercial Services

(NOV 2023)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

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

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

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

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

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at 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.

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(g) Invoice.

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

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

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

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

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

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

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

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

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer-System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer- Other Than System for Award Management), or applicable agency procedures.

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

(2) Invoices will be handled in accordance with the Prompt Payment Act ( 31 U.S.C.3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

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

(i) Payment.-

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

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

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

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

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

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

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

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

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

(D) Contractor point of contact.

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

(6) Interest.

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(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.

https://www.acquisition.gov/far/part-32#FAR_32_608_2

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

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

40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

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

(1) The schedule of supplies/services.

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

(3) The clause at 52.212-5.

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

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End 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.

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

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

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

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

(End of clause)

I.3.2 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders Commercial Products and Commercial Services (DEC 2023)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement…