S01-RFQ 12FPC124Q0044 Area Wide Market REQ-1129421-prp1.pdf

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

Agricultural Conservation Easement Program Wetland Reserve Easement (ACEP-WRE)

Areawide Market Analysis

12FPC124Q0044

FOR SOLICITATION INFORMATION: Quotes must be sent to:

Pedro.arritola-azquez@usda.gov.

Priscilla.Perry@usda.gov.

OFFER DUE DATE/LOCAL TIME: August 15, 2024 3:00 PM Eastern Time

NAICS – 531320

mailto:Pedro.arritola-azquez@usda.gov mailto:Priscilla.Perry@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 (FPAC) Business Center Acquisition Division Central Section - Operations Branch

A.4 Contracting Officer/Specialist

A.4.1 Contracting Officer

Pedro Arritola-Vazquez, email: Pedro.arritola-vazquez@usda.gov Phone: 720-544-2886

A.4.2 Contracting Specialist

Priscilla Perry, email: priscilla.perry@usda.gov Phone: 202-401-0632

A.4.3 Any USDA FPAC BC Contracting Officer can act on this contract should the need arise.

A.4.4 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 contract; (6) otherwise modify any terms or conditions of this Contract.

A.5 Program Office

A.5.1 USDA Office mentioned below:

USDA/NRCS Minnesota State Office

375 Jackson Building Suite 600 Saint Paul, MN 55101 Joel Curran, email: joel.curran@usda.gov, 651-602-7867

Program office point of contact noted above 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.

End of Section mailto:Pedro.arritola-vazquez@usda.gov mailto:joel.curran@usda.gov

B - SF 1449 Services/Supplies and Prices/Costs

B.1 Contract Type

B.1.1 Firm Fixed Priced

B.1.2 Fixed Price

B.2 Pricing

B.2 Pricing Schedule

Line Item Description QTY Unit Unit Price Amount 0001 Base Period- AWMA 1 EA

1001 Option Period 1- Annual Recertification

1 EA

1002 Option Period 1 - AWMA Amendment

1 EA

2001 Option Period 2 - Annual Recertification

1 EA

2002 Option Period 2 - AWMA Amendment

1 EA

3001 Option Period 3 - Annual Recertification

1 EA

3002 Option Period 3 - AWMA Amendment

1 EA

4001 Option Period 4 - Annual Recertification

1 EA

4002 Option Period 4 - AWMA Amendment

1 EA

Total Award Amount:

C Statements of Work

C.1 Background Information

C.1.1 The United States of America, acting through the United States Department of Agriculture’s Natural Resources Conservation Service (NRCS), purchases conservation easements to assist the landowners in restoring, protecting, and enhancing wetlands. These lands may be placed under a conservation easement through the Agricultural Conservation Easement Program -Wetland Reserve Easement Component (ACEP-WRE).

C.1.2 The purpose of ACEP-WRE is to protect, restore, and enhance the functions and values of wetland ecosystems and lands enrolled are farmed or converted wetlands, former or degraded wetlands, agricultural lands that altered by flooding or soil saturation and water table elevation as a result of offsite or subsurface hydrologic changes, riparian areas, or land currently or previously enrolled in the conservation reserve program (CRP). Previously restored lands and adjacent lands are also included in the areas enrolled in ACEP-WRE.

C.1.3 NRCS plans to obtain an Areawide Market Analysis (AWMA) for and initial fiscal year (FY) and subsequent annual recertifications or AWMA amendments for each following FY not to exceed 4 additional years. The FY begins October 1st and ends September 30th.

C.1.4 All Areawide Market Analyses (AWMA) completed for ACEP-WRE must comply with instructions provided by NRCS.

C.1.4.1 a. Proposed market areas are determined by the NRCS State Conservationist and identified in exhibit 1.

C.1.4.2 b. Proposed land use types are determined by the NRCS State Conservationist and identified in exhibit 2.

C.1.5 NRCS National Appraiser resolves questions that arise from these specifications. The NRCS National Appraiser(s) can be reached at NRCS.NationalAppraisers@usda.gov.

C.1.6 Delivery of AWMA products will be approved by the NRCS State Conservationist and designated Easement Programs Division (EPD) staff. The National Appraiser will review and provide final approval of the AWMA products. Corrections and additions may be required for the final approval. A copy of all deliverable products and recommendations should be sent to NRCS.NationalAppraisers@usda.gov.

C.1.7 The client is NRCS and the AWMA and other value reports will be USPAP compliant.

C.1.7.1 These specifications apply to the new AWMA and any subsequent recertifications, AWMA amendments, or reports.

C.1.7.2 Deliverables include: written and digital products, meeting participation, and attendance in at least one training session.

mailto:NRCS.NationalAppraisers@usda.gov mailto:NRCS.NationalAppraisers@usda.gov.

C.2 Qualifications of Vendor

C.2.1 The vendor must be a State-certified general real property appraiser or obtain a temporary practice permit equal to State-certified general real property appraiser in compliance with title XI of the

Financial Institution’s Reform, Recovery and Enforcement Act of 1989 (FIRREA) in the State or States where the AWMA is conducted.

C.2.2 The vendor must be in good standing with the licensing authority where the credential was issued, and not the recipient of disciplinary action within the past 5 years from the licensing authority.

C.2.3 The vendor must have demonstrated competency in compliance with USPAP in conducting market analyses of rural and agricultural properties of the requested type.

C.3 Purpose of the Area Wide Market Analysis

C.3.1 The purpose of the AWMA is to provide the fair market value (FMV) of the land for the land use types typically enrolled in ACEP-WRE in the market areas identified by NRCS.

C.3.1.2 FMVs must be provided for each market area outlined by NRCS and land use on a per-acre basis.

C.4 Information Provided by NRCS to the Vendor

C.4.1 Electronic copy of a map showing the market areas to be analyzed. The map may include potentially eligible ACEP-WRE areas based upon technical criteria (such as soil drainage class, soil types, or other factors that demonstrate eligibility).

C.4.1.2 GIS shapefile showing:

C.4.1.2.1 Regions or counties with similar land uses and

C.4.1.2.2 Boundaries of each market area to be analyzed.

C.4.1.2.3 List and definition of each land use to be valued in each market area. The definition will describe the types of eligible land typically enrolled in ACEP-WRE. The definitions must be as descriptive as possible to adequately define the land uses to be analyzed.

C.5 Training, Coordination, and Communications

C.5.1 NRCS Easement Programs Division (EPD) will provide vendor training for the Statement of Work via remote participation platform such as a webinar.

(Please see More Information at https://www.nrcs.usda.gov/wps/portal/nrcs/main/ national/programs/easements/acep/).

C.5.2 EPD will coordinate vendor meetings with the NRCS State office as needed.

C.5.3 EPD will provide Farm Bill update trainings as needed.

http://www.nrcs.usda.gov/wps/portal/nrcs/main/%20national/programs/easements/acep/) http://www.nrcs.usda.gov/wps/portal/nrcs/main/%20national/programs/easements/acep/)

C.5.4 The state-level NRCS contact and NRCS.NationalAppraisers@usda.gov should be copied on all communications with the contracting officer.

C.6 Meeting with NRCS

C.6.1 If market area and land uses are not representative of the market areas found the vendor shall notify NRCS and the contracting officer in writing that modification to the assignment is necessary. The Vendor will meet with NRCS to discuss Vendor’s recommendations.

C.6.2 NRCS will coordinate a meeting with the Vendor to:

C.6.2.1 Discuss the AWMA process

C.6.2.2 Discuss the vendor’s market research, market area, and land use recommendations when the vendor does not find sufficient sales data for the market area and land use.

C.6.2.3 The expansion of the sales market area.

C.6.2.4 The vendor should discuss any market conditions, levee restrictions, encumbrances, or access issues that are not typical for the market that may restrict their market analysis.

C.6.2.5 After completion of market research and the development of the draft AWMA report, the vendor will meet with NRCS to discuss their findings and report. The meeting should be scheduled within 14 days of the vendor providing NRCS with the draft AWMA report.

C.6.2.6 After review of the subsequent years’ market, vendor and NRCS will discuss the findings and determine if a certification or amendment is required.

C.6.2.7 Even after initial acceptance of the AWMA or market review by NRCS, the vendor will be available to discuss any corrections that the National Appraiser requires for final acceptance of the report.

C.7 Quality of Work

C.7.1 The AWMA report:

C.7.1.1 Must be clear, accurate, and complete and must meet NRCS’s intent to determine the FMV of land typically enrolled in ACEP-WRE. The market analysis must be conducted and reported in compliance with USPAP.

C.7.1.2 The vendor must select comparable properties that represent the land use types that are typically enrolled in ACEP-WRE.

C.7.1.3 The vendor must administer adjustments for property differences and conduct a current analysis of the competitive market.

C.7.1.4 At NRCS’s discretion a contract reviewer may review the AWMA report.

C.7.2 Subsequent FY reports

C.7.2.1 Recertification

C.7.2.1.2 The vendor will continue to monitor the market areas collecting data since the previous AWMA or Recertification or Update report.

C.7.2.1.3 Provide a letter to NRCS on or before July 15 stating if the AWMA or Updated report values have not changed by more than 10%.

C.7.2.1.4 If the vendor finds there are no changes greater than 10% then they certify the existing FY FMVs are still valid and are recommended for use for the next FY.

C.7.2.1.5 Sales data collected will be provided with the letter in an excel spreadsheet.

C.7.2.1.6 If the vendor finds one or more land uses in the market areas have changed by more than 10% NRCS will determine if a AWMA amendment, providing current values for those land uses, will be required.

C.7.2.1.7 If the AWMA amendment is required, it is due within 45 days from notice by NRCS.

C.8 Selection of Comparable Properties

C.8.1 Choose sufficient comparable sales from the entire market area being analyzed that include land uses typically enrolled in ACEP-WRE that would be eligible land types.

C.8.2 Property rights are fee simple surface rights or equivalent.

C.8.3 Do not include sales far above or far below the average, as any divergence likely has valid reasons.

C.8.4 Use comparable sales that are reasonably current, based on sales activity in the market area being analyzed. For the initial AWMA use sales no older than 24 months unless the market activity is limited, and a longer time period is required. Concurrence by the contracting officer and national appraiser is required before using sales older than 24 months. Subsequent years data will be added to these and may be used in determining needed market changes.

C.8.5 Use similar property types as much as possible.

C.8.6 Ensure comparable sales are in fact arm’s length transactions.

C.8.7 Provide sufficient data on the comparable sales to support the conclusions of value.

C.8.8 If the analysis of the comparable properties indicates the land use category is too broad or too narrow, contact the contracting officer and provide suggestions for changes to the land use category.

C.8.8.1 Example: Land Use – Cropland – Low-lying cropland and prime cropland indicate a wide range in value; suggest that the land use category of “Cropland” be changed to two categories – “Low-Lying Cropland” and “Prime Cropland.”

C.8.9 If sufficient sales are not available for a market region or land use to provide a supported, typical market value, the vendor will not establish a value and will recommend changes. These changes can include combining similar regions or land uses to provide for the sales needed to arrive at a supported, typical market value. The national appraiser should be consulted.

C.8.10 If in the process of collecting and identifying comparable properties, sales of properties encumbered by wetlands or similar conservation easements are found, provide the sales data on the encumbered properties in a separate section of the analysis.

C.9 Conduct a Current Analysis of the Competitive Market

C.9.1 Initial AWMA

C.9.1.1 Sold Properties.

C.9.1.2 Sold properties represent actual comparable sales.

C.9.1.2.1 Sales data should be within the last 24 months.

C.9.1.2.2 Active Listings.

C.9.1.2.3 Active listings are properties currently for sale.

C.9.1.2.4 These listings matter only to the extent that they indicate the competition for buyers and current market activity.

C.9.1.2.5 They are not indicative of market value. Sellers can ask any price they want for their property; it does not mean the prices are realistic. The vendor may use these to support values higher or lower than the value the sold properties indicates.

C.10 Subsequent Fiscal Year Analysis

C.10.1 Sold Properties.

C.10.1.1 Vendor will continue to monitor the markets since the date of the prior

AWMA or Recertification.

C.10.1.2 Sold properties will represent actual comparable sales.

C.10.1.3 Sales data will be from the end of the prior sales data.

C.10.1.4 Sales data will be added to the sales data spreadsheet.

C.10.1.5 All sales are available to the vendor to determine the status of the Market.

C.10.1.6 Active Listings – See I(1)(b)

C.11 Market Area

C.11.1 Initial AWMA

C.11.1.2 The market area to be considered will be specified by NRCS and provided to the vendor.

C.11.1.3 The market area must contain properties that represent the land use types that are typically enrolled in ACEP-WRE.

C.11.1.4 If the market analysis indicates the market areas provided are inconsistent with the data, contact the contracting officer and suggest modifications to the market areas.

C.11.1.5 If insufficient data is available to conclude typical values for the market area or land uses, contact the contracting officer and suggest modifications to the market area or land uses.

The national appraiser may be consulted for guidance in changes to land use or market areas.

C.11.1.6 The higher number of homogenous sales in the dataset is desirable for quantifiable results.

However, a minimum of 10 sales representing each land use in each market area must be analyzed and employed to effectively establish a fair market value.

C.11.1.7 Values for a market area and land uses cannot be determined using data from other market areas. This indicates that changes are needed for the market area or land use. Contact the contracting officer and NRCS by email at NRCS.NationalAppraisers@usda.gov to recommend changes or request assistance in arriving at acceptable changes to the market areas or land uses.

C.12 Subsequent Fiscal Years Analysis

C.12.1 Market areas will not change for the subsequent fiscal years’ analysis.

C.12.2 The vendor will notify the contracting officer if the data indicates that the market areas are no longer valid.

C.13 Other Considerations

C.13.1 Land Use, Land Quality, Soils, and Topography.

C.13.2 The land uses and soil types to be considered must be comparable to land typically enrolled in ACEP-WRE.

C.13.3 These are predominately level, low-lying areas of cropland but may also include areas of pastureland, wet meadows, and woodland.

C.13.4 An optional state-level map of potentially eligible ACEP-WRE areas (based upon soil drainage class, soil types or other factors) is provided.

C.14 Improvements: do not include the value of improvements, such as homes, sheds, fences, barns, etc.

C.14.1 Levee Protection: where significant, separate values must be developed for land behind or in front of protection levees.

C.15 Existing Easements

C.15.1 Do not use sales data from lands under existing easements as comparable sales.

C.15.2 If any are identified, the data should be provided in a separate part of the report.

C.16 Presentation of Analysis

C.16.1 The report must be presented in a neat, easy-to-read format, free of grammatical and clerical mistakes.

C.16.2 The supporting documentation must be presented with sufficient narrative so that the analysis can be reviewed and critiqued.

C.16.3 Provide a description of the social, physical, and economic characteristics of the specified market areas.

C.16.4 Provide a thorough description of each land use category that a representative value is provided.

C.16.5 Describe the land uses included in the land use category. For example, if land use category is “noncrop pasture and pasture like,” describe the typical market area land use categories the vendor used or associated with this land use category.

C.16.6 Describe items that impact to values in the market area for atypical considerations.

These may include, but are not limited to, development pressure from economic or locational influences which would be cause for an immediate change to a more intensive highest and best use; impacts of severed versus intact oil, gas, and/or mineral rights;

impacts of intact versus transferred development rights; impacts of the quality of legal access; or other impacts. Provide these considerations by market area or as a summary in the report as an impact to value.

C.16.7 The report must comply with USPAP.

C.16.8 All market analysis reports submitted to NRCS become the property of the United States and may be used for any legal and proper purpose. Therefore, a condition that limits the distribution of the report is not permitted.

C.16.9 All sales data used to support conclusions of typical value must be provided in a spreadsheet addendum to the report. The minimum information for the sales data will include identifying name or number for the sale, county and market area, sale date, land use, sale price per acre. Also see the Note is section M below.

C.16.10 Additional information may also be provided. The identifying name or number may be generated by the vendor if there is concern of confidentiality agreements with the suppliers of the sales data. A separate confidential file will be provided to the national appraiser for analysis and will be returned upon completion of the analysis. The information in the confidential file must contain identifying information so the national appraiser can effectively evaluate the sales data.

C.16.11 The spreadsheet must also be a separate file which can be used by the national appraiser to analyze the sales data.

C.16.12 The per acre conclusions for each market region and land use are used by NRCS to calculate the fair market value of various size ACEP-WRE projects.

C.16.13 The vendor must determine the range of size in acres, that the values continue to provide a supported fair market value.

C.16.14 The vendor may recommend a separate value for projects outside the supported acre range if there is sufficient data to support the value.

C.16.15 If sufficient data is not available to support values outside the acre range, the vendor must indicate that appraisals are recommended for projects that are outside the acre range.

C.17 Deliverables

C.17.1 Initial AWMA

C.17.2 Draft report due within 60 days of contract completed after the completion of the trains and meetings indicated in E and F.

C.17.3 The final report and supporting documentation are the deliverables for this assignment due within 14 days of (a)(i) meeting.

C.17.4 The final report will be a digital file.

C.17.5 The final report will include an electronic spreadsheet of all the sales data found in the addendum of the report, which will be used by the national appraiser in analyzing the AWMA. This file must be unlocked to allow for various electronic analyses.

C.17.6 Additional supporting documentation determined necessary by the national appraiser or program manager.

C.17.7 Subsequent Fiscal Year Analysis.

C.17.8 Recertification letter due by July 15.

C.17.8.1 If no land use’s FMV has significantly changed. Significantly is defined as Plus, or minus 10%.

C.17.9 Provide final of recertification letter stating the previous fiscal year FMVs have not significantly changed.

C.17.10 Letter must be USPAP compliant incorporating the previous fiscal year report (AWMA or Recertification or Update) in accordance with A(3).

C.17.10.1 Letter will explain the process used to monitor the market and determine the FMVs have not significantly changed.

C.17.10.2 Sales data spreadsheet with the new sales.

C.17.10.3 If one or more land use’s FMV has significantly changed.

C.17.10.3.1 Provide the recertification letter indicating which land uses have changed.

C.17.10.3.2 See meetings required F.

C.17.10.3.3 Letter must be USPAP compliant see 2(a)(i)(2).

C.17.10.3.4 Letter will explain the process used to monitor the market and determine the changes in FMVs.

C.17.10.3.5 Sales data spreadsheet with the new sales.

C.18 NRCS will determine if the AWMA Update will be required.

C.18.1 AWMA Amendment and Recertification within 45 days of the meeting 2(a)(ii)(2).

C.18.2 Provide the amendment with the new FMVs of the land uses that changed Significantly.

C.18.3 Explain the process used to monitor the market and determine which land uses changed significantly and which land uses did not.

C.18.4 Update must be USPAP compliant see 2(a)(i)(2).

C.18.5 Sales data spreadsheet with the new sales.

C.19 Note: Vendor must provide either latitude/longitude coordinates or a GIS shapefile/polygon for the location of the comparable sales. The coordination of the transfer of this information must be between the contractor and National Appraiser only. This information must be emailed to NRCS.NationalAppraisers@usda.gov.

C.20 Conflict of Interest

C.20.1 An independent, qualified professional will not analyze a property for a spouse, child, partner, or business associate or have a financial interest in the property to be covered by the proposed easement.

C.21 Nondisclosure

C.21.1 Work performance required by this statement of work will involve access to potentially sensitive information about governmental and landowner issues.

C.21.2 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 (5U.S.C. Sec. 552a).

C.21.3 Additionally, the contractor’s employees must comply with privacy of personal information relating to NRCS programs in accordance with section 1244 of the Food Security Act of 1985, as amended (16 U.S.C. Sec. 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.22 Civil Rights and Program Delivery

The contractor must ensure that its personnel prohibit discrimination in all aspects of programs and activities related to the contract on the basis of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, or marital or family status.

C.23 Exhibits

C.23.1 Exhibit 1 Market Areas for.

C.23.2 Exhibit 2 Land Use Categories.

D - Packaging and Marking

E - Inspection and acceptance

E.1 Inspection will be completed upon completion of the Area Wide Market Analysis.

E.2 Inspection will be performed by the individual noted below.

E.2.1 Program Office POC:

Joel Curran Email: Joel.Curran@usda.gov Phone: (651) 602-7867 mailto:Joel.Curran@usda.gov

F Performance

F.1 Period of Performance

F.1.1 POP Dates are as follows:

1 year from date of award, dates TBD.

G Contract Administration Data

G.1 Invoicing

G.1.1 Invoices shall be submitted in arrears.

G.1.2 Vendor will be required to set up an account within www.ipp.gov in order to receive payment.

G.1.3 4I-52.232-70 Electronic Invoicing and Payment Requirements – Invoice Processing

Platform (IPP)

G.1.3.1 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.

G.1.3.2 Under this contract, the following document(s) are required to be submitted as attachment(s) to the IPP invoice: Description of line item(s) invoicing for.

(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 or delivery of all items per applicable terms and conditions.

http://www.ipp.gov/

H Special Contract Requirements

H.1 Onsite contractors must wear masks in accordance with workplace safety protocols.

Additionally, USDA’s Workplace Safety Plan requirement that onsite contractors and visitors must provide a Certification of Vaccination form prior to entry . Those onsite contractors and visitors that are not yet vaccinated or who decline to provide information on their vaccination status must provide proof of a negative COVID-19 test from no earlier than 3 days prior upon arrival.

NOTE: These are subject to change. Please coordinate with the Local POC.

H.2 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.

H.3 Professional Conduct While on Government Facilities

Contractor employees shall observe and maintain themselves in accordance with professional standards according to their location. Attire should be consistent with professional standards. They shall not engage in private activities for personal gain or any other unauthorized purpose while on Government- owned or leased property, nor may Government time or equipment be utilized for these purposes.

H.4 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.

https://www.usda.gov/sites/default/files/documents/usda-covid-19-workplace-safety-plan.pdf

I Contract Clauses

I.1 AGAR

I.1.1 452.204-70 Modification for Contract Closeout Upon contract closeout for contracts utilizing anything other than cost reimbursement (i.e., Simplified Acquisition Procedures (SAP), non-SAP, and/or not Firm Fixed Price): if unobligated funds in the amount of $1000 or less remain on the contract, the Contracting Officer (CO) shall issue a unilateral modification for de-obligation. The contractor will receive a copy of the modification but will not be required to provide a signature. The CO shall immediately proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

Upon contract closeout for contracts utilizing SAP: if unobligated funds of more than $1000 remain on the contract, the CO shall issue a bilateral modification for de-obligation. The contractor will receive a copy of the modification and will be required to provide a signature. (The CO may also request a “Contractor Release of Claims” be completed by the contractor, although not required for contracts and orders using SAP procedures.) If the bilateral modification and Release of Claims are not returned to the CO within 60 days, the CO shall release the modification as unilateral and proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

Upon contract closeout for contracts utilizing anything other than cost reimbursement (i.e.,non-SAP and/or not FFP): if unobligated funds of more than $1000 remain on the contract, the CO shall issue a bilateral modification for de-obligation. The contractor will receive a copy of the modification and a “Contractor Release of Claims” and will be required to provide a signature on both forms. If the bilateral modification and Release of Claims are not returned to the CO within 120 days, the CO shall release the modification as unilateral and proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

(End of Clause)

1.2 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 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-https://www.acquisition.gov/far/part-12#FAR_12_301

(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.

(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;

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

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

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

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

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

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

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

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

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

(i) Payment.-

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

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

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

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

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

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

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

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

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

(D) Contractor point of contact.

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

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due.

The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period 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:

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(A) The date fixed under this contract.

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) The schedule of supplies/services.

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

(3) The clause at 52.212-5.

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

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) [Reserved]

(u) Unauthorized Obligations.

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(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 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 FAR

I.3.1 52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services.

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—

COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES (MAY 2024)

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

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (DEC 2023) (Section 1634 of Pub. L. 115-91).

https://www.acquisition.gov/far/part-52#FAR_52_203_19 https://www.acquisition.gov/far/part-52#FAR_52_204_23

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (NOV 2021) (Section 889(a)(1)(A) of Pub. L. 115-232).

(4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015).

(5) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (MAR 2023) ( 31 U.S.C. 3903 and 10 U.S.C. 3801).

(6) 52.233-3, Protest After Award (AUG 1996) ( 31 U.S.C. 3553).

(7) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77 and 108-78 ( 19 U.S.C. 3805 note)).

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

[Contracting Officer check as appropriate.]

__ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUN 2020), with Alternate I (NOV 2021) ( 41 U.S.C. 4704 and 10 U.S.C. 4655).

__ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (NOV 2021) ( 41 U.S.C. 3509)).

__ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

__ (4) 52.203-17, Contractor Employee Whistleblower Rights (NOV 2023) ( 41 U.S.C. 4712); this clause does not apply to contracts of DoD, NASA, the Coast Guard, or applicable elements of the intelligence community—see FAR 3.900(a).

__ (5) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020) (Pub. L. 109-282) ( 31 U.S.C. 6101 note).

__ (6) [Reserved].

__ (7) 52.204-14, Service Contract Reporting Requirements (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

__ (8) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

_X_ (9) 52.204-27, Prohibition on a ByteDance Covered Application (JUN 2023) (Section 102 of Division R of Pub. L. 117-328).

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