S02 Attachment 2 - Contract Opportunities Clauses and Provisions.docx

CLAUSES

Provision 52.212-1, Instructions to Offerors – Commercial (JUN 2020), applies to this acquisition.

Addendum to FAR 52.212-1 Instructions to Offerors – Commercial Items: All provisions and clauses applicable to this solicitation can be viewed in full text using the following web addresses:

http://www.acquisition.gov/far/index.html and http://www.va.gov/oal/library/vaar/

52.212-3 Offeror Representation and Certification – Commercial Items (FEB 2021) with their offer. Provision at 52.212-3 Offeror Representation and Certification can be accessed electronically at the following web address: http://www.acquisition.gov/far/index.html

Clause 52.212-4, Contract Terms and Conditions - Commercial Items (OCT 2018), applies to this acquisition.

Clause 52.212-5 Contract Terms and Conditions Required to Implement Statues or Executive Orders—Commercial Items (JAN 2021) applies to this acquisition.

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

(1) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (NOV 2015)

(2) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).

(3) 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 items:

[X] (1) 52.203-3 Gratuities (APR 1984).

[X] (2) 52.203-6, Restrictions on Subcontractor Sales to the Government (JUN 2020), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

[] (3) Reserved

[] (4) 52.203-13, Contractor Code of Business Ethics and Conduct (JUN 2020) (41 U.S.C. 3509).

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

[X] (6) 52.203-17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights (Jun 2020).

[X] (7) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (JUN 2020) (Pub. L. 109-282) (31 U.S.C. 6101 note).

[] (8) [Reserved]

[] (9) 52.204-14, Service Contract Reporting Requirements (OCT 2016) (Pub. L. 111- 117, section 743 of Div. C).

[] (10) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (OCT 2016) (Pub. L. 111-117, section 743 of Div. C).

[X] (11) 52.209-6, Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (JUN 2020) (31 U.S.C. 6101 note).

[] (12) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (OCT 2018) (41 U.S.C. 2313).

[] (13) [Reserved]

[] (14)(i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (MAR 2020) (15 U.S.C.

657a).

[] (ii) Alternate I (MAR 2020) of 52.219-3.

[] (15)(i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (MAR 2020) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

[] (ii) Alternate I (MAR 2020) of 52.219-4.

[] (16) [Reserved]

[] (17)(i) 52.219-6, Notice of Total Small Business Set-Aside (NOV 2020) (15 U.S.C. 644).

[] (ii) Alternate I (NOV 2020).

[] (iii) Alternate II (NOV 2020).

[] (18)(i) 52.219-7, Notice of Partial Small Business Set-Aside (NOV 2020) (15 U.S.C. 644).

[] (ii) Alternate I (MAR 2020) of 52.219-7.

[] (iii) Alternate II (Mar 2020) of 52.219-7.

[X] (19) 52.219-8, Utilization of Small Business Concerns (OCT 2018) (15 U.S.C. 637(d)(2) and (3).

[] (20)(i) 52.219-9, Small Business Subcontracting Plan (JUN 2020) (15 U.S.C. 637(d)(4)).

[] (ii) Alternate I (NOV 2016) of 52.219-9.

[] (iii) Alternate II (NOV 2016) of 52.219-9.

[] (iv) Alternate III (JUN 2020) of 52.219-9.

[X] (21) 52.219-13, Notice of Set-Aside of Orders (MAR 2020) (15 U.S.C. 644(r)).

[X] (22) 52.219-14, Limitations on Subcontracting (MAR 2020) (15 U.S.C. 637(a)(14)).

[] (23) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C.

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

[X] (24) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (MAR 2020) (15 U.S.C. 657f).

[X] (25) 52.219-28, Post Award Small Business Program Representation (NOV 2020) (15 U.S.C 632(a)(2)).

[] (26) 52.219-29, Notice of Set-Aside for Economically Disadvantaged Women-Owned Small Business (EDWOSB) Concerns (MAR 2020) (15 U.S.C. 637(m)).

[] (27) 52.219-30, Notice of Set-Aside for Women-Owned Small Business (WOSB) Concerns Eligible Under the WOSB Program (MAR 2020) (15 U.S.C. 637(m)).

[X] (28) 52.222-3, Convict Labor (JUL 2003) (E.O. 11755).

[X] (29) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (JAN 2020) (E.O.

13126).

[X] (30) 52.222-21, Prohibition of Segregated Facilities (APR 2015).

[X] (31) 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246).

[X] (32) 52.222-35, Equal Opportunity for Veterans (JUN 2020) (38 U.S.C. 4212).

[X] (33) 52.222-36, Equal Opportunity for Workers with Disabilities (JUN 2020) (29 U.S.C. 793).

[X] (34) 52.222-37, Employment Reports on Veterans (JUN 2020) (38 U.S.C. 4212).

[X] (35) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496).

[X] (36)(i) 52.222-50, Combating Trafficking in Persons (OCT 2020) (22 U.S.C. chapter 78 and E.O. 13627).

[] (ii) Alternate I (MAR 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627).

[X] (37) 52.222-54, Employment Eligibility Verification (OCT 2015). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

[] (38)(i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Items (May 2008) (42 U.S.C.6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

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

[] (39)(i) 52.223-13, Acquisition of EPEAT®-Registered Imaging Equipment (JUN 2014) (E.O.s 13423 and 13514).

[] (ii) Alternate I (OCT 2015) of 52.223-13.

[] (40)(i) 52.223-14, Acquisition of EPEAT®-Registered Televisions (JUN 2014) (E.O.s 13423 and 13514).

[] (ii) Alternate I (JUN 2014) of 52.223-14.

[] (41) 52.223-15, Energy Efficiency in Energy-Consuming Products (MAY 2020)(42 U.S.C.

8259b).

[] (42)(i) 52.223-16, Acquisition of EPEAT®-Registered Personal Computer Products (OCT 2015) (E.O.s 13423 and 13514).

[] (ii) Alternate I (JUN 2014) of 52.223-16.

[X] (43) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (JUN 2020)

[X] (44) 52.225-1, Buy American—Supplies (JAN 2021) (41 U.S.C. chapter 83).

[X] (45)(i) 52.225-3, Buy American—Free Trade Agreements—Israeli Trade Act (JAN 2021) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43.

[] (ii) Alternate I (JAN 2021) of 52.225-3.

[] (iii) Alternate II (JAN 2021) of 52.225-3.

[] (iv) Alternate III (JAN 2021) of 52.225-3.

[] (46) 52.225-5, Trade Agreements (OCT 2019) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

[X] (47) 52.225-13, Restrictions on Certain Foreign Purchases (FEB 2021) (E.O.'s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

[X] (48) 52.225-25 Prohibition on Contracting with Entities Engaging in Certain Activities or Transactions Relating to Iran—Representation and Certifications (JUN 2020).

[] (49) 52.225-26, Contractors Performing Private Security Functions Outside the United States (OCT 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note).

[] (50) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42 U.S.C. 5150).

[] (51) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov 2007) (42 U.S.C. 5150).

[] (52) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C.

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

[] (53) 52.232-30, Installment Payments for Commercial Items (JAN 2017) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).

[X] (54) 52.232-33, Payment by Electronic Funds Transfer—System for Award Management (OCT 2018) (31 U.S.C. 3332).

[] (55) 52.232-34, Payment by Electronic Funds Transfer—Other than System for Award Management (Jul 2013) (31 U.S.C. 3332).

[] (56) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C. 3332).

[X] (57) 52.232-39 Unenforceability of Unauthorized Obligations (JUN 2013).

[X] (58) 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (DEC 2013).

[] (59) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a).

[X] (60) 52.247-34 F.O.B. Destination (NOV 1991)

[] (61) (i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

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

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

[] (1) 52.222-17, No displacement of Qualified Workers (MAY 2014) (E.O. 13495).

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

[] (3) 52.222-42, Statement of Equivalent Rates for Federal Hires (MAY 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

[] (4) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment (Multiple Year and Option Contracts) (AUG 2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

[] (5) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards—Price Adjustment (MAY 2014) (29 U.S.C 206 and 41 U.S.C. chapter 67).

[] (6) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (MAY 2014) (41 U.S.C. chapter 67).

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

[] (8) 52.222-55, Minimum Wages Under Executive Order 13658 (NOV 2020) (Executive Order 13658).

[] (9) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (JUN 2020) (42 U.S.C. 1792).

(End of Clause)

Statement regarding any Additional Provisions and Clauses, or other terms and conditions important to the requirement/procurement process consistent with commercial practices:

Provisions in full text:

52.225-18 Place of Manufacture (AUG 2018).

(a) Definitions. As used in this clause— “Manufactured end product” means any end product in product and service codes (PSCs) 1000-9999, except—

(1) FPSC 5510, Lumber and Related Basic Wood Materials;

(2) Product or Service Group (PSG) 87, Agricultural Supplies;

(3) PSG 88, Live Animals;

(4) PSG 89, Subsistence;

(5) PSC 9410, Crude Grades of Plant Materials;

(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;

(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products;

(8) PSC 9610, Ores;

(9) PSC 9620, Minerals, Natural and Synthetic; and (10) PSC 9630, Additive Metal Materials.

“Place of manufacture” means the place where an end product is assembled out of components, or otherwise made or processed from raw materials into the finished product that is to be provided to the Government. If a product is disassembled and reassembled, the place of reassembly is not the place of manufacture.

(b) For statistical purposes only, the offeror shall indicate whether the place of manufacture of the end products it expects to provide in response to this solicitation is predominantly— (1) [] In the United States (Check this box if the total anticipated price of offered end products manufactured in the United States exceeds the total anticipated price of offered end products manufactured outside the United States); or (2) [] Outside the United States.

(End of provision)

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

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

http://www.acquisition.gov/far/index.html http://www.va.gov/oal/library/vaar/

(End of provision)

852.252-70 Solicitation provisions or clauses incorporated by reference (JAN 2008). The following provisions or clauses incorporated by reference in this solicitation must be completed by the offeror or prospective contractor and submitted with the quotation or offer. Copies of these provisions or clauses are available on the Internet at the web sites provided in the provision at FAR 52.252-1, Solicitation Provisions Incorporated by Reference, or the clause at FAR 52.252-2, Clauses Incorporated by Reference. Copies may also be obtained from the contracting officer.

(End of provision)

Provisions incorporated by reference are:

· 52.203-11 Certification and Disclosure regarding payments to Influence Certain Federal Transactions (SEP 2007);

· 52.204-7 System for Award Management (OCT 2018)

· 52.204-17 Ownership or Control of Offeror (AUG 2020)

· 52.211-6 Brand Name or Equal (AUG 1999)

· 52.212-1 Instructions to Offerors – Commercial Items (JUN 2020);

Clauses in Full Text:

52.252-2 Clauses Incorporated by Reference (FEB 1998).

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

http://www.acquisition.gov/far/index.html http://www.va.gov/oal/library/vaar/

(End of clause)

Clauses Incorporated by Reference:

· 52.204-13 System for Award Management Maintenance (OCT 2018)

· 52.204-18 Commercial and Government Entity Code Maintenance (AUG 2020)

· 52.222-20 Contracts for materials, supplies, articles, and equipment exceeding $15,000.00 (JUN 2020);

· 52.232-1 Payments (APR 1984);

· 52.232-8 Discounts for prompt payment (FEB 2002);

· 52.243-1 Changes –Fixed Price (AUG 1987);

· 852.203-70 Commercial Advertising (MAY 2018);

· 852.246-71 Inspection (OCT 2018)

Provision 52.212-2, Evaluation – Commercial Items (OCT 2014), applies to this acquisition.

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors will be used to evaluate offers: Price and technical acceptability as applicable will be determined in accordance with the statement of work provided (Please see item description). The Government has determined in advance that the Best Value will be the offer with the lowest evaluated price among those offers rated “technically acceptable”.

(b) Additional Instructions to offerors concerning Grey Market items- The VHA (Veterans Health Administration) will not accept “Grey Market Goods”.

Grey market goods are defined as: Gray Market Goods also known as parallel market, is the trade of a commodity through distribution channels which, while legal, are unofficial, unauthorized, or unintended by the original manufacturer.

Products that are purchased outside of our authorized distributor network on the gray market generate a number of concerns such as: counterfeit or adulterated devices, inadequate storage conditions, tracking issues in case of a recall, loss of warrantee, and most importantly patient safety. In some instances, unauthorized distributors procure products from an authorized distributor for resale.

(c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

LIMITATIONS ON SUBCONTRACTING

Offerors are required to comply with 13 C.F.R. 125.6. Offerors are to check which block applies:

[ ] I certify that no subcontractors are performing services under this contract. My Company receives 100% of the cost of this contract and does not subcontract.

[ ] I certify that my company and those subcontractors that are similarly situated, receive at least 50% of the value of this contract. I understand that a similarly situated subcontractor must meet the size standard for NAICS assigned by the prime and must be in certified in VIP. Please provide the following information to identify and calculate the cost of the work self-performed and what is subcontracted.

Contractor DUNs Number Description of Work COST of work in % ____________________________________________________________________________________

Total % of value of contract by Prime Contractor ____________ Total % of value of contract by similarly situated subcontractors ____________ WARNING: Severe Penalties for Contractors that violate the Limitations on Subcontracting Rule: If caught during the performance violating the FAR government subcontracting rules or limitations on subcontracting clause under the Code of Federal Regulations 13 C.F.R. 125.6(g), there can be stiff penalties: “Whoever violates the requirements set forth in paragraph (a) of this section shall be subject to the penalties prescribed in 15 U.S.C. 645(d), except that the fine shall be treated as the greater of $500,000 or the dollar amount spent, in excess of permitted levels, by the entity on subcontractors. A party's failure to comply with the spirit and intent of a subcontract with a similarly situated entity may be considered a basis for debarment on the grounds, including but not limited to, that the parties have violated the terms of a Government contract or subcontract pursuant to FAR 9.406-2(b)(1)(i) (48 CFR 9.406-2(b)(1)(i)).” Contracting Officers may require the contractor to demonstrate its compliance with the limitations on subcontracting at any time during the performance of the contract by having the Contractor provide invoices, copies of subcontracts, or a list of the value of tasks performed.

IAW 1001 of Title 18, I certify the above representations are true and correct to the best of my knowledge.

Return this certification via email to Justin Coleman at justin.coleman1@va.gov.