Solicitation S10-022 - Vending Services.pdf

Solicitation S10-022

SAIC FREDERICK

SOLICITATION, OFFER AND AWARD

Maryland Sales and Use Tax Direct Pay Permit No. 3

Page 1 of 20 Pages

2. Subcontract No.

3. Solicitation No.

S10-022

4.� Sealed Bid (IFB) Solicitation Negotiated (RFP) Solicitation

5. Date Issued 9/17/09

6. Requisition/ Purchase Order:

8. Delivery Date:

8A. Place of Delivery:

7. Issued By/Address Offer To:

Bonnie Beard, Associate Subcontracts Specialist, , SAIC Frederick, Inc.

National Cancer Institute - Frederick P.O. Box B, Frederick, Maryland 21702-1201

PH: 301-846-5169 FX: 301-228-4037

8B. XX FOB Destination �

Other

Note: In sealed bid solicitations “offer” and “offeror” mean “bid” and “bidder”.

SOLICITATION

9. To be timely, one (1) copy of the sealed offers, an original or fax copies must be received at the room specified in Item 7 by 10/16/09 by 2:00p.m.

10.Envelopes shall be marked to show solicitation number, and time and date of opening. ____ (hour)_____(date)

OFFER/SUBCONTRACT CONSISTS OF:

A. SUPPLIES/SERVICES – Food and Beverage Vending Services

B. SPECIFICATION/WORK STATEMENT

C. CONTRACT TERMS/LOGISTICS

D. DELIVERY ORDERS

E. EVALUATION

F. TERMS AND CONDITIONS

SCHEDULE

ITEM NO.

SUPPLIES/SERVICES

QTY.

UNIT

UNIT PRICE

AMOUNT

SEE Sections A and B.

12. In compliance with the above, if this offer is accepted within calendar days (60 calendar days unless a different period is inserted by the offeror) from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the price set opposite each item in accordance with the terms of the offer. Note: Sealed bids providing less than calendar days for acceptance will be considered non-responsive and rejected.

13. DISCOUNT FOR PROMPT PAYMENT

10 CALENDAR

DAYS %

20 CALENDAR

30 CALENDAR

CALENDAR

AMENDMENT NO.

DATE

AMENDMENT NO.

DATE

14. ACKNOWLEDGMENT OF AMENDMENTS

The offeror acknowledges receipt of amendments to the solicitation for offerors and related documents numbered and dated:

15A. Name and Address of Offeror:

16. Name and Title of Person Authorized to Sign Offer (Type or Print)

Name/Title: ____________________________________

PH: _________________ FX: _______________

15B. Telephone No:

(Include Area Code):

15C. � Check if remittance address is different from above.

Enter such address in schedule.

17. Signature

18. Offer Date

AWARD (On this form or by other written notice)

19. Accepted As To Items Numbered:

20. Amount:

21. Accounting Data:

22. Submit Invoices following instructions of Article C of Solicitation (1 copy unless other specified)

23. Name/Title of Person Authorized to Sign for

SAIC:

24. SAIC Authorized Signature:

25. Award Date

A. SUPPLIES/SERVICES

ITEM # SUPPLIES/SERVICES OFFER

Food and Beverage vending service with _______% of gross cash receipts machines as shown in Section F

B. SPECIFICATIONS/WORK STATEMENT

1. SAIC Employee Recreation Committee (ERC) is to be compensated a minimum of 16.5% of the gross cash receipt.

2. The offeror shall provide, with their quote, a marketing plan detailing Brand Name products to be stocked in the machines, prices to be charged and the services and restocking plans.

3. STOCKING MACHINES:

Restocking shall be at least once a week, more if the volume in a particular area justifies it.

4. PRICING

Provide with a response to this solicitation price list of product that can be purchased through contractor’s machines.

C. CONTRACT TERMS/LOGISTICS

1. EFFECTIVE DATES

Effective dates of this contract shall be from Date of Award through 36 months.

2. Any award made as a result of this solicitation shall be in the form of an indefinite quantity/scheduled delivery contract for the items listed.

3. PRICE ADJUSTMENT

The prices and fee established shall be firm for the period of the contract, unless the parties hereto mutually agree to a price of fee adjustment, in which event the adjustment shall become effective only on the effective date of a written modification to the contract. Any request by the contractor for adjustment of price and/or fee must be made in writing to the Contracting Officer, and provide sufficient factual information and data to substantiate the proposed revision, including clear and definite identification of existing cost factors which could not be identified at time o entering into contract, however, no adjustments of prices or fee will be made during the last ninety (90) days of any contract period.

4. DESCRIPTION AND INSTALLATION OF VEDNING MACHINES

(a) The contractor shall furnish and install, at its own cost and expense, at such locations as shown in Section F, herein, vending machines in such numbers as may from time to time be agreed upon by the parties hereto during the period of performance under this contract. The parties may from time to time mutually agree to the use under this contract o vending machines other than those described in Section F, in which event the contract shall be modified accordingly. The Contracting Officer shall have the right to determine at any time during the period of this contract that any said vending machines are surplus to its requirements, whereupon said surplus vending machines shall be promptly removed by contractor, at its own cost and expenses, and in the event the said machines are not so removed by the contractor, the Contracting Officer may remove and store them for account of the contractor.

(b) All electrically operated machines furnished hereunder shall be equipped so as to provide thermal overload protection, and shall comply with specifications MIL-1-16910 (SHIPS) and any amendments thereto hereafter issued with regard to the elimination of radio interference. In addition, all electrical machines furnished shall be equipped with all necessary safety valves, and shall bear the seal of approval of the Underwriter’s Laboratories, Inc.

(c) All vending machines shall be stocked with top name-brand items. Expired goods will at no time be allowed for dispensing.

5. CONTRACTOR TO MAINTAIN MACHINES:

The contractor shall, at its own expense:

(a) Keep said machines in proper mechanical working order, including any meters and special attachments thereto.

(b) Repair and maintain said vending machines and provide necessary replacement for any part which may become broken, destroyed or inoperative.

(c) Keep said vending machines in a clean, attractive and sanitary condition to the satisfaction of the Contracting Officer and the cognizant Safety Officer.

(d) If merchandise is vended, keep said machines adequately stocked so as to ensure continuous service to the patrons with emphasis on variety and freshness.

(e) Install and maintain said machines and equipment in with safety standards prescribed by the Contracting Officer.

(f) Upon request by the Contracting Officer, in addition to providing normal service required herein, provide within 24 hours after notice by the Contracting Officer adequate repair service, out-of-order service, removal service, and relocation service.

6. TITLE TO MACHINES IN CONTRACT:

Unless specifically provided otherwise in this contract, full title to the said vending machines shall remain with the contractor. The contractor assumes the full risk and responsibility for any loss, destruction or damage occurring to the said vending machines.

7. CONTRACTOR’S EMPLOYEES OR AGENTS:

When on the military installation, employees or agents of the contractor shall at all times conduct themselves in an orderly and proper manner. In the event the Contracting Officer shall have any objection to the presence of any employee of the contractor on the military installation, such person shall be removed by the contractor promptly upon the request of the Contracting Officer.

8. GUARANTEE AND WARRANTY:

The contractor shall comply with all applicable laws and regulations pertaining to its pertaining to its business including (as illustration and not in limitation) those relating to operation of laundries, sanitation, preservation of public health and adulteration of food and drink. In addition, the contractor warrants that any edible products supplied shall in all respects be suitable for human consumption.

9. TERMINATION FOR CONVENIENCE:

The terms of this contract shall be firm for a period of three (3) years, unless the parties hereto mutually agree to a termination for convenience. In the event that either party requests to terminate this contract for convenience, a ninety (90) calendar day notice shall be in writing.

10. CONTRACT ADMINISTRATION:

The Contracting Officer or his/hr authorized representative; located at SAIC-Frederick, Inc. will be the administrator of the contract.

11 UNAUTHORIZED INSTRUCTIONS FROM NCI-FREDERICK PERSONNEL:

(a) The contractor will not accept any instruction by any person employed by the NCI-Frederick or otherwise, other than the Contracting Officer, or the Contracting Officer’s Representative acting within the limits of his authority. Contracting Officer’s Representative will be so designated in writing to the contractor, and the scope of his authority will be set forth therein.

(b) Only information, contained in an authorized amendment to this purchase instrument duly issued by the

Contracting Officer, will be considered as grounds for deviation from any stipulation of the purchase instrument or referenced drawings and/or specifications herein.

12. SPACE AND UTILITIES:

(a) The contractor shall not be required to pay any rental for the space occupied by the vending machines furnished hereunder in use on the premises.

(b) The contractor may or may not be required to pay the cost of utilities which may be found necessary for the use or operation of any vending machines furnished hereunder.

13. STORAGE OF CONTRACTOR’S PROPERTY:

The contractor shall not store or leave any property within the boundaries of the NCI-Frederick installation.

14. LICENSES AND PERMITS:

Prior to commencing operations at NIC-Frederick, the contractor shall obtain all licenses, permits and other approvals required for its operations hereunder. The contractor shall pay all fees incurred in connections with obtaining and maintaining such licenses and permits as a cost of operation hereunder.

15. RISK OF LOSS:

The NCI-Frederick will not assume any loss resulting from the use of slugs or foreign coins, as well as any loss resulting from pilferage, deterioration of components, ingredients, or products by fire or other means. The contractor shall not be relieved of liability for its negligence or for the negligence of its employees. The contractor assumes any loss resulting from mechanical defects. The contractor further assumes the full risk and responsibility for any loss, destruction, or damage to any of the refillable containers in which any of the components or ingredients are supplied (e.g., metal tubes for carbon dioxide gas).

16. COLLECTION OF SALES RECEIPTS:

All sales receipts shall be collected at least weekly from vending machines by the contractor.

17. COMPENSATION OF THE PARTIES:

As full compensation for the vending rights and privileges provided by this contract, the contractor shall pay by check made payable to the ERC, quarterly within fifteen (15) calendar days from the last day of the following months December, March, June and September, a sum equal to that specified in Section E.1.b. An itemized statement of gross income from each machine must accompany each quarterly check. Gross cash receipts are defined as the actual cash collected from each machine. Payments not received by the due date are subject to a 10% penalty in addition to the sum specified in Section E.1.b.

Checks shall be sent to: ERC Attn: General Accounting/Internal Audit P.O. Box B Frederick, MD 21702

18. INSURANCE

(a) The contractor shall at its own expense procure and maintain insurance during the entire period or performance under this contract. The following minimum insurance is required:

(1) WORKMAN’S COMPENSATION AND EMPLOYER’S LIABILITY INSURANCE:

As required by applicable Federal and State workers compensation and occupational disease statues.

(2) AUTOMOBILE LIABILITY INSURANCE

Limits: $200,000 per person for bodily injury;

$500,000 per occurrence for bodily injury;

$ 20,000 per occurrence for property damage

(3) COMPREHENSIVE GENERAL LIABILITY INSURANCE

Limits: $500,000 per occurrence for bodily injury.

(b) Prior to commencement of work hereunder, the contractor shall furnish to the Contracting Officer a certificate or written statement of the above required insurance. The policies required shall contain an endorsement to the effect that cancellation or any material change in the policies adversely affecting the interests of the NCI-Frederick in such notice shall be effective until thirty (30) days after written notice thereof to the Contracting Officer. The contractor agrees to insert the substance of this clause, including the paragraph in all subcontracts hereunder.

19. TAXES:

The contractor assumes complete liability for all taxes applicable to the property, income, and transactions of the contractor. The NCI-Frederick shall not be liable to the contractor and will make no reimbursement for any tax imposed either directly or indirectly upon the contractor by any authority by reason of this contract or otherwise.

20. TRANSFER OR ASSIGNMENT PROHIBITED:

Neither this nor any interest herein nor any claim arising hereunder, except as may otherwise be provided in this contract shall be transferred by the contractor or party or parties.

21. GRATUITIES:

The NCI-Frederick may, by written notice to the contractor, terminate the right of the contractor to proceed under this contract if it is found by the Contracting Officer that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the contractor, or any agent or representative of the contractor, to any officer or employee of the Government with a view toward securing favorable treatment with respect to the performance of the contract.

22. REFUNDS:

The contractor shall provide refunds weekly to the Contracting Officer’s designated monitor in each building upon presentation of refund slips/memos for the lost amount.

23. PROBLEM IDENTIFICATION AND CORRECTION:

Each machine shall specifically identify a name and phone number of a representative to be contacted with any problems or complaints. All problems presented shall be corrected within 24 hours of notification with a copy of the problem identified and corrective action taken provided to:

Bonnie Beard 92 Thomas Johnson Drive, Suite 250 Frederick, MD 21702 Telephone: 301-846-5169 Facsimile: 301-228-4037 Email: beardb@mail.nih.gov

24. CONTRACT PERFORMANCE EVALUATIONS:

The contractor’s performance and customer responsiveness will be evaluated on a continuing basis throughout the contract term and quarterly assessments will be provided to the contractor. If an unsatisfactory rating is received and followed by a successive unsatisfactory rating, the contract may be termination effective immediately.

25. QUESTIONS

Questions concerning this subcontract shall be directed to Bonnie Beard, Research Contracts Department, SAIC- Frederick, Inc., at beardb@mail.nih.gov by Wednesday September 30, 2009.

26. SUBMITTAL

All forms and submissions must be in the required format to be eligible for award. Failure to adhere to any completion requirement will cause the offer to be considered non-responsive.

Mailing Envelope. Contractor must return the proposal with the solicitation number (block #3 of page 1) clearly visible on the outside of the sealed proposal envelope. The SAIC-Frederick, Inc. will not be responsible for the handling of any offers not returned with the solicitation number shown in the required manner.

Proposal Package. The proposal packages shall be addressed as follows: SAIC-Frederick, Inc. 92 Thomas Johnson Drive, Suite 250, P.O. Box B, Frederick, MD 21702-1201, ATTN: Bonnie Beard.

D. DELIVERABLES

1. Weekdays dedicated to servicing the NCI-Frederick vending machines are:

_______________ and _____________.

E. EVALUATION

1. EVALUATION FACTORS

a. Basis of award shall be as follows:

1. Quality of products and service

2. Supplier offering highest percent of gross cash receipts over 16.5%, offer of less that 16.5% shall not be acceptable.

mailto:beardb@mail.nih.gov mailto:beardb@mail.nih.gov

Offer: _____ percent of gross receipts

2. PAST PERFORMANCE

Award of any order or subcontract as a result of this solicitation will NOT be made to any supplier with evident deficient past performance as documented in the SAIC-Frederick Vendor File.

F. ATTACHMENTS

ITEMS ATTACHMENT

1. NCI-Frederick Map A

2. Problem/Complaint Form B

3. Format for Monthly Reporting of Gross Receipts (See C.17) C

4. List of Vending Machine Locations D

ATTACHMENT B

PROBLEM/COMPLAINT FORM

To be completed upon receipt/notification of each individual complaint or problem.

Problem/complaint #__________ (To be sequentially numbered 0001, etc.)

Date: __________ Building # __________

Name: ____________________ Phone # ____________

Problem/Complaint Identified:

Corrective Action Taken:

Date Corrected: __________

Note: A copy of this form is to be faxed IMMEDIATELY upon correction to:

Bonnie Beard, Facsimile: 301-228-4037, and submitted with each monthly report.

ATTACHMENT C

MONTHLY REPORT FOR GROSS RECEIPTS

Building: __________

Machine # Item Unit Sold Unit Price Gross Sales Commission

TOTAL:

REPORTS TO BE SUBMITTED WITH EACH CHECK ISSUED QUARTERLY TO THE ERC

ATTACHMENT D (Page 1 of 2)

VENDING MACHINE LOCATIONS

The following is a list of machines to be set up at the various locations within the NCI-Frederick.

NOTE: ALL MACHINES ARE TO BE EQUIPPED WITH DOLLAR BILL ACCEPTORS.

LOCATIONS_

Bldg. 244 – 1st Flr Bldg. 314 Bldg. 321 Bldg. 325 Soda – Outside Soda – Outside Soda – Inside Soda – Inside Snack Machine

Bldg. 350 Bldg. 362 Bldg. 376 Bldg. 426 Soda – Inside Soda – Inside Soda – Outside Soda – Inside Snack Machine Snack Machine Snack Machine

Bldg. 428 Bldg. 429 Bldg. 431 Bldg. 432 Soda – Inside Soda – Inside Soda – Inside Soda – Inside Snack Machine

Bldg. 459 Bldg. 469 – 1st Flr Bldg. 535 – 3rd Flr Bldg. 538 – 2nd Flr Soda – Outside Soda – Inside Soda – Inside Soda – Inside Juice Snack Machine Snack Machine Snack Machine

Bldg. 539 - 2nd Flr Bldg. 549 0 Lobby Bldg. 550 Bldg. 558 Snack Machine Soda – Inside Soda – Outside Soda – Outside Juice Snack Machine Soda Soda – 3rd Flr Soda – Outside

Bldg. 560 Bldg. 567 Bldg. 571 Bldg. 576 Soda 1st Flr Soda – Outside Soda – Inside Soda – Outside Soda 2nd Flr Vended Food 2nd Flr Coffee 2nd Flr Snack Machine 2nd Flr

Bldg. 578 Bldg. 1021 – 2nd Flr Bldg. 1050 – 1st Flr Bldg. 1052 Soda – Outside Soda – Inside Soda – Inside Soda – Outside Snack Machine Snack Machine

ATTACHMENT D (Page 2 of 2)

OFF SITE

LOCATIONS_

92 Thomas Johnson Drive, Suite 250, Frederick, MD.

Soda – Inside Snack Machine

7116 Geoffrey Way, Frederick, MD Coffee Machine

G. TERMS AND CONDITIONS

1. GOVERNMENT RELATIONSHIP

This Order is made by SAIC-Frederick, Inc., a Subsidiary of Science Applications International Corporation under its contract with the National Cancer Institute at Frederick (NCI-Frederick). The provisions and clauses contained herein are influenced by and reflect the relationship of the parties in that contract, which was awarded and is administered under the provision of the Federal Acquisition Regulation (FAR). There is no privity of contract between the Seller and the Government.

2. GENERAL RELATIONSHIP

The Seller is not an employee of SAIC-Frederick, Inc. for any purpose whatsoever. Seller agrees that in all matters relating to this Order it shall be acting as an independent contractor and shall assume and pay all liabilities and perform all obligations imposed with respect to the performance of this Order. Seller shall have no right, power or authority to create any obligation, expressed or implied, on behalf of Buyer and/or Buyer’s customers and shall have no authority to represent Buyer as an agent.

3. DEFINITIONS

Buyer – SAIC-Frederick, Inc.

Seller – The party (contractor) receiving the award from SAIC-Frederick, Inc.

Prime Contract − The Government contract under which this Order is issued (see paragraph 1 entitled "Government Relationship").

NCI Government Contracting Officer −The NCI-Frederick person with the authority to interpret, modify, administer, and/or otherwise make decisions with regard to the Prime Contract". This term includes authorized representatives of the NCI-Frederick Contracting Officer within their delegated authority.

Contracting Officer – The SAIC-Frederick, Inc. person with the authority to enter into and administer Orders. The term includes authorized representatives of the Contracting Officer acting within their delegated authority.

Order – The contractual agreement between SAIC-Frederick, Inc. and the Seller.

Special Definitions – See paragraph 4 for the special definitions that apply in the use of the solicitation and award clauses of this Order.

4. SOLICITATION AND AWARD CLAUSES – SPECIAL DEFINITIONS

FAR clauses included in this Order, including any solicitation document, shall be interpreted as follows:

Unless a purposeful distinction is made clear and the context of the clause requires retention of the original definition, the term “Contractor” shall mean Seller, the term “Contract” shall mean this Order, the term “Subcontractor” shall mean subcontractors of Seller at any tier, and the terms “Government”, “Contracting Officer” and equivalent phrases shall mean SAIC-Frederick, Inc. and SAIC-Frederick’s Contracting Officer, respectively. It is intended that the referenced clauses shall apply to Seller in such manner as is necessary to reflect the position of Seller as a contractor to SAIC-Frederick, Inc.

to insure Seller’s obligations to SAIC-Frederick, Inc. and to the United States Government, and to enable SAIC- Frederick, Inc. to meet its obligations under its Prime Contract.

Full text of the referenced clauses may be found in the FAR (Code of Federal Regulation [CFR] Title 48), obtainable from the Superintendent of Documents, Government Printing Office (GPO), Washington, DC 20402 or online at http://www.arnet.gov/far/.

Copies of the clauses will be furnished by the Contracting Officer upon request.

5. ENTIRE AGREEMENT

This Order, including all attachments and/or documents incorporated by reference by Buyer, shall constitute the entire agreement between Buyer and Seller. No other document (including Seller’s proposal, quotation or acknowledgement forms, etc.) shall be a part of this Order, even if referred to, unless specifically agreed to in writing by Buyer. No right that Buyer has regarding this Order may be waived or modified except in writing by Buyer.

6. ACCEPTANCE AND MODIFICATION OF TERMS

Acceptance of this Order by Seller may be made by signing the acknowledgement copy hereof or by partial performance hereunder, and any such acceptance shall constitute an unqualified agreement to all terms and conditions set forth herein unless otherwise modified in writing by the parties. Any additions, deletions or differences in the terms proposed by Seller are objected to and hereby rejected, unless Buyer agrees otherwise in writing. No additional or different terms and conditions proposed by the Seller in accepting this Order shall be binding upon Buyer unless accepted in writing by Buyer and no other addition, alteration or modification to, and no waiver of any of the provisions herein contained shall be valid unless made in writing and executed by Buyer and Seller. Seller shall perform in accordance with the Description/Quantity schedule set forth in this Order and all attachments thereto.

7. LEGAL CONSTRUCTION AND INTERPRETATIONS

This Order shall be governed by and interpreted in accordance with the principles of Federal Contract Law, and to the extent that Federal Contract Law is not dispositive, and the state law becomes applicable, the law of the State of Maryland shall apply.

8. COMPLIANCE WITH LAWS AND REGULATIONS

Seller shall submit all certifications required by Buyer under this Order and shall at all times, at its own expense, comply with all applicable Federal, State and local laws, ordinances, administrative orders, rules or regulations.

9. GIFTS

Seller shall not make or offer a gratuity or gift of any kind to Buyer’s employees or their families. Seller should note that the providing of gifts or attempting to provide gifts under government subcontracts might be a violation of the Anti- Kickback Act of 1986 (4 U.S.C. 51-58).

10. MARYLAND SALES AND USE TAX

The State of Maryland has issued Direct Payment Permit #3, effective date August 29, 1996, to SAIC-Frederick, Inc. that will be issued to vendors of NCI-Frederick for purchases of goods and services. A copy of this Permit is available to vendors upon request. As a holder of a Direct Payment Permit, SAIC-Frederick, Inc. is authorized to make direct payment of sales and use tax to the State of Maryland. Accordingly, sellers that provide goods and services to SAIC- Frederick, Inc. are relieved from collecting sales tax from SAIC-Frederick, Inc. Therefore, sellers to SAIC-Frederick, Inc. shall not place a separate line item for tax on any invoice sent to SAIC-Frederick, Inc. Please note that the Permit is not to be used by sellers to make purchases free of sales tax, nor shall the Permit be transferred or assigned.

11. BUYER FURNISHED DATA AND MATERIALS

Seller agrees that it will keep confidential and not disclose, disseminate or publish the features of any equipment, tools, gauges, patterns, designs, drawings, engineering data, computer programs and software or other technical or proprietary information furnished, loaned or bailed by Buyer hereunder (hereinafter collectively referred to as (items/information), and will use such items/information only in the performance of this Order or, if authorized, other orders from Buyer, and not otherwise without Buyer’s written consent.

All such items furnished, loaned or bailed by Buyer hereunder, or fabricated, manufactured, purchased, or otherwise acquired by Seller for the performance of this Order and specifically charged to Buyer, are the property of Buyer.

Upon completion, expiration or termination of this Order, Seller shall return all such items in good condition, reasonable wear only excepted, together with all spoiled and surplus items to Buyer, or make such other disposition thereof as may be directed or approved by Buyer. Seller agrees to replace, at its expense, all such items not so returned. Seller shall make no charge for any storage, maintenance or retention of such items. Seller shall bear all risk of loss for all such items in Seller’s possession.

Seller also agrees to use any designs or data contained or embodied in such items in accordance with any restrictive legends placed on such items by Buyer or any third party. If Buyer furnishes any material, for fabrication hereunder, Seller agrees: (i) not to substitute any other material for such fabrication with Buyer’s prior written consent, and (ii) that title to such material shall not be affected by incorporation in or attachment to any other property.

12. NOTICE OF DELAY

Seller agrees to immediately notify Buyer in writing of any actual or potential delay in Sellers performance under this Order. Such notice shall, at a minimum, describe the cause, effect, duration and corrective action proposed by Seller to address the problem. Seller shall give prompt written notice to the Buyer of all changes to such conditions.

13. CHANGES AND SUSPENSION

Buyer may, by written notice to Seller at any time, make changes within the general scope of this Order in any one or more of the following: (a) drawings, designs or specifications; (b) quantity; (c) time or place of delivery; (d) method of shipment or packing; and (e) the quantity of Buyer furnished property. Buyer may, for any reason, direct Seller to suspend, in whole or in part, delivery of goods or performance of services hereunder for such period of time as may be determined by Buyer in its sole discretion. If any such change or suspension causes a material increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, an equitable adjustment shall be made in the Order price or delivery schedule, or both, provided Seller shall have notified Buyer in writing of any claim for such adjustment within twenty (20) days from the date of notification of the change or suspension from Buyer. No such adjustment or any other modification of the terms of this Order will be allowed unless authorized by Buyer by means of a written modification to the Order. Seller shall proceed with the work as changed without interruption and without awaiting settlement of any such claim.

14. ADVERTISING

Seller agrees that prior to the issuance of any publicity or publication of any advertising that in either case makes reference to this Order, or to Buyer, Seller will obtain the written permission of Buyer with respect thereto.

15. CONFIDENTIAL INFORMATION

Seller shall not at any time, even after the expiration or termination of this Order, use or disclose to any person for any purpose other than to perform this Order, any information it receives, directly or indirectly from Buyer in connection with this Order, except information that is or becomes publicly available, or is rightfully received by Seller from a third party without restriction. Upon request by Buyer, Seller shall return to Buyer all documentation and other material containing such information.

16. INDEMNIFICATION

Seller shall indemnify, defend and hold harmless Buyer from and against any and all claims, liabilities, damages, losses, causes of action, lawsuits, costs and expenses, including reasonable attorneys’ fees and litigation costs incurred in connection therewith and regardless of legal theory (hereinafter referred to as ”claims”), occasioned wholly or in part by any act or omission of Seller or any of its lower tiers, or their employees, agents or representatives arising out of or relating to this Order. Notwithstanding the foregoing, Seller’s obligations under this Section shall not apply to any claims that are finally determined by a court of competent jurisdiction to be occasioned solely by the negligence or willful misconduct of Buyer.

17. INFRINGEMENT INDEMNITIES

Seller shall, at its expense, indemnify, defend, save and hold Buyer and its successors, affiliates, officers , directors, employees, agents, independent contractors and customers, and the officers, agents and employees of such customers (hereinafter collectively referred to in this section as “Buyer”) harmless from and against any and all damages, liabilities, penalties, interest and costs awarded against and reasonable expenses, including without limitation attorneys’ fees that result or arise out of or relate to, in whole or part, any claims, suits, proceedings, actions, causes of action and demands brought against the Buyer asserting that the deliverables, including without delivery, including without limitation all software, goods or services, or any part thereof, furnished under this Order, or the creation, delivery, use modification, reproduction, release, performance, display or disclosure, including without limitation resale or sublicensing thereof, constitutes an infringement of any patent, trademark, trade secret, copyright or other proprietary or intellectual property right or rights of privacy or publicity. In the event such goods or services or use thereof are enjoined in whole or in part, Seller shall at its expense and Buyer’s option undertake one of the following: (i) obtain for Buyer the right to continue the use of such goods or services; (ii) in a manner acceptable to Buyer, substitute equivalent goods or services or make modifications thereto so as to avoid such infringement and extend this indemnity thereto; or (iii) refund to Buyer an amount equal to the purchase price for such goods or services plus any excess costs or expenses incurred in obtaining substitute goods or services from another source.

Notwithstanding this Section 17, should the deliverables or portion thereof be held to constitute an infringement and use as contemplated by this Order be enjoined or be threatened to be enjoined, Seller shall notify Buyer and immediately, at Seller’s expense; (i) procure for Buyer the right to continue to use the deliverables, or (ii) portion thereof with a version that is non-infringing, provided that the replacement or modified version meets any applicable specifications to Buyer’s satisfaction. If (i) or (ii) are not available to Seller, in addition to any damages or expenses reimbursed under this section, Seller shall refund to Buyer all amounts paid to Seller by Buyer under this Order.

18. NON-WAIVER OF RIGHTS

The failure of Buyer to insist upon strict performance of any of the terms and conditions in this Order or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of same or to rely on any such terms or conditions at any time thereafter. Acceptance or payment of any part of the Order shall not bind Buyer to accept future shipments or performance of services nor deprive Buyer of the right to return goods already accepted or for which Buyer has made payment. Acceptance or payment shall not be deemed to be a waiver of Buyer’s right to cancel or return all or any part of the goods because of failure to conform to the Order or by reason of defects, whether latent or patent, or other breach of warranty, or to make any claim for damages of any and all kind.

19. INSURANCE REQUIREMENTS FOR WORK ON A GOVERNMENT INSTALLATION

If this Order entails effort on a Government installation, including any off-site buildings owned or leased by the Government, the Seller must provide and maintain the minimum amounts of insurance stated below.

At Buyer’s request, Seller agrees to provide Certificates of Insurance evidencing that the required insurance coverages are in force and providing not less than thirty days written notice prior to any cancellation or restrictive modification of the policies.

Further, the required insurance coverages below shall be primary and non-contributing with respect to any other insurance that may be maintained by Buyer. The below required coverages and their limits in no way lessen nor affect Seller’s other obligations or liabilities set forth in this Order.

Seller agrees to purchase and maintain at its own expense the following insurance coverages with minimum limits as stated:

• Statutory Workers’ Compensation and Employer’s Liability in an amount no less than $1 Million per occurrence covering its employees, including a waiver of subrogation obtained from the carrier in favor of Buyer;

• Commercial General Liability in an amount no less than $1 Million per each occurrence and $2 Million in this Aggregate covering bodily injury, broad form property damage, personal injury, products and completed operations, contractual liability and independent contractors’ liability. Buyer, its officers and employees shall be included as Additional Insureds and a waiver of subrogation shall be obtained from the carrier in favor of Buyer;

• Automobile Liability in an amount no less than $1 Million Combined Single Limit for Bodily Injury covering use of all owned, non-owned, and hired vehicles. Buyer, its officers and employees shall be included as Additional Insureds on the policy;

• Professional Liability in an amount no less than $1 Million per occurrence covering damages caused by any acts, errors, and omissions arising out of the professional services performed by Seller, or any person for whom the Seller is legally liable. To the extent that coverage for Seller’s services are not excluded in (ii) above by virtue of being deemed not of a professional nature, this requirement does not apply.

• All-Risk Property Insurance in an amount adequate to replace property, including supplies covered by this Order, of Buyer and/or Buyer’s customer that may be in the possession or control of Seller. Buyer shall be named as a Loss Payee with respect to loss or damage to said property and/or supplies furnished by Buyer.

The required insurance coverages above shall be primary and non-contributing with respect to any other insurance that may be maintained by Buyer and notwithstanding any provision contained herein, Seller, and its employees, agents, representatives, consultants, subcontractors and suppliers, are not insured by the Buyer, and are not covered under any policy of insurance that the Buyer has obtained or has in place.

Any self-insured retentions, deductibles and exclusions in coverage in the policies required under this Article shall be assumed by, for the account of, and at the sole risk of Seller which provides the insurance and to the extent applicable shall be paid by Seller. In no event shall the liability of Seller be limited to the extent of any insurance or the minimum limits required herein.

20. EXPORT CONTROL COMPLIANCE FOR FOREIGN PERSONS

Seller shall not, nor shall Seller authorize or permit its employees, agents or lower tiers to disclose, export or re-export any Buyer information, or any process, product or services that is produced under this Order, without prior notification to Buyer and complying with all applicable Federal, State and local laws, regulations and ordinances, including the regulations of the U.S. Department of Commerce and/or the U.S. Department of State. In addition, Seller agrees to immediately notify Buyer if Seller is listed on any of the Department of State, Treasury or Commerce proscribed persons or destinations lists, or if Seller’s export privileges are otherwise denied, suspended or revoked in whole or in part.

Under its contract with NCI-Frederick, Buyer conducts research activities that include export-controlled technology that cannot be readily segregated. Buyer may require Seller (including any lower tiers) to place restrictions on their work force performing onsite at SAIC-Frederick, Inc. to protected individuals as established under the guidelines of the Commerce Department Export Administration Regulations (EAR) and the State Department International Traffic in Arms Regulations (ITAR).

Contractors (including any lower tiers) may be required to disclose the status of personnel proposed to perform work onsite prior to award.

Contractors shall include in all agreements and related documents with lower tiers, notice to third parties that the export of any process, goods and/or technical data from the United States may require an export control license from the U.S.

Government and that, failure to obtain such export control license may result in termination of Order, and/or criminal liability under U.S. laws.

21. ASSIGNMENT

Neither this Order nor any interest herein may be assigned, in whole or in part, without the prior written consent of Buyer except that the Seller shall have the right to assign this Order to any successor of such party by way of merger or consolidation or the acquisition of substantially all of the business and assets of the Seller relating to the subject matter of this Order. This right shall be retained provided that such successor shall expressly assume all of the obligations and liabilities of the Seller under this Order, and that the Seller shall remain liable and responsible to Buyer for the performance and observance of all such obligations.

Notwithstanding the foregoing, any amounts due the Seller may be assigned in accordance with the provisions of the clause 52.232-23, Assignment of Claims.

In the event the prime contract of SAIC-Frederick, Inc. with the Government is succeeded by a successor contractor selected by the Government, this Order may be assigned to the successor contractor.

22. DISPUTES

(A) If a decision relating to the Prime Contract is made by the NCI-Frederick Contracting Officer and such decision is also related to this Order, said decision, if binding upon Buyer under the Prime Contract shall in turn be binding upon Buyer and Seller with respect to such matter; provided, however, that if Seller disagrees with any such decision made by the NCI Contracting Officer and Buyer elects not to appeal any such decision, Seller shall have the right reserved to Buyer under the Prime Contract with the Government to prosecute a timely appeal in the name of Buyer, as permitted by the contract or by law, Seller to bear its own legal and other costs. If Buyer elects not to appeal any such decision, Buyer agrees to notify Seller in a timely fashion after receipt of such decision and to assist Seller in its prosecution of any such appeal in every reasonable manner. If Buyer elects to appeal any such decision of the NCI Contracting Officer, Buyer agrees to furnish Seller promptly of a copy of such appeal. Any decision upon appeal, if binding upon Buyer, shall in turn be binding upon Seller. Pending the making of any decision, either by the NCI Contracting Officer or on appeal, Seller shall proceed diligently with performance of this Order.

If, as a result of any decision or judgment whish is binding upon Seller and Buyer, as provided above, Buyer is unable to obtain payment or reimbursement from the Government under the Prime Contract for, or is required to refund or credit to the Government, any amount with respect to any item or matter for which the Buyer has reimbursed or paid Seller, Seller shall, on demand, promptly repay such amount to Buyer. Additionally, pending the final conclusion of any appeal hereunder, Seller shall, on demand promptly repay any such amount to Buyer. Buyer's maximum liability for any matter connected with or related to this Order which was properly the subject of a claim against the Government under the Prime Contract shall not exceed the amount of the Buyer's recovery from the Government.

Seller agrees to provide certification that data supporting any claim made by Seller hereunder is made in good faith and that the supporting data is accurate and complete to the best of the Seller's knowledge or belief, all in accordance with the requirements of the Contracts Disputes Act of 1978 (41USC601-613) and implementing regulations. If any claim of Seller is determined to be based on upon fraud or misrepresentation, Seller agrees to defend, indemnify, and hold Buyer harmless for any and all liability, loss, cost, or expense resulting there from.

Any dispute not addressed in paragraph (A) above, will be subject to paragraph (B) as described below.

(B) Buyer and Seller agree to first enter into negotiations to resolve any controversy, claim or dispute (“dispute”) arising under or relating to this Order. The parties agree to negotiate in good faith to reach a mutually agreeable resolution of such dispute within a reasonable period of time. If good faith negotiations are unsuccessful, Buyer and Seller agree to resolve the dispute by binding and final arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall take place in the County of Frederick, State of Maryland. The arbitrator(s) shall be bound to follow the provisions of this Order in resolving the dispute, and may not award punitive damages. The decision of the arbitrator(s) shall be final and binding on the parties, and any award of the arbitrator(s) may be entered or enforced in any court of competent jurisdiction.

Seller hereby waives any immunity, sovereign or otherwise, that it would otherwise have to such jurisdiction and agrees that its rights, obligations, and liabilities hereunder shall be determined in the same manner and to the same extent as those of a private litigant under like circumstances.

All costs of the arbitration shall be shared equally between the Parties, but the Parties specifically agree that each Party shall bear the expense of any costs incurred by it for its own counsel, experts, witnesses, preparation of documents, presentations, and logistics related to the proceedings.

Pending any decision, appeal or judgment referred to in this provision or the settlement of any dispute arising under this Order, Seller shall proceed diligently with the performance of this Order.

23. NOTIFICATION OF DEBARMENT/SUSPENSION

By acceptance of this Order either in writing or by performance, Seller certifies that as of the date of award of this Order neither the Seller, lower tiers, nor any of its principals, is debarred, suspended, or proposed for debarment by the Federal Government. Further, Seller shall provide immediate written notice to the Buyer in the event that during performance of this Order the Seller or any of its principals is debarred, suspended, or proposed for debarment by the Federal Government.

24. QUALITY ASSURANCE/INSPECTION

All goods furnished and services performed pursuant hereto shall be subject to inspection and test by Buyer at all reasonable times and places, during the Order term, and in any event, prior to Final Acceptance as that term is defined in the Statement of Work. No inspection made prior to Final Acceptance shall relieve Seller from responsibility for defects or other to meet the failure requirements of this Order. In the event that goods furnished or services supplied are not in accordance with the Statement of Work and Schedule or other requirements. Buyer may require Seller to promptly correct, repair, replace or re-perform the goods or services. The cost of correction, repair, replacement, or re-performance shall be determined under Section 7 of this Order. If Seller fails to proceed with reasonable promptness to perform the required correction, repair, replacement, or re-performance, Buyer may terminate the Order for default. If Seller is unable to accomplish the foregoing, then Buyer may procure such materials and services from another source or perform such services in-house and charge to Seller’s account all costs, expenses and damages associated therewith. Buyer’s approval of designs furnished by Seller shall not relieve Seller of its obligations hereunder.

25. ORDER OF PRECEDENCE

In the event of an inconsistency or conflict between these SAIC Terms and Conditions and the Order issued, the inconsistency or conflict shall be resolved by giving precedence in the following order:

1) The Order including SAIC-Frederick, Inc. Standard Terms and Conditions, Exhibits thereto and any provisions.

2) Specifications and/or drawings.

3) Other documents or exhibits when attached.

26. TERMINATION

Termination for Convenience

1) Buyer shall have the right to terminate this Order, in whole or in part, at any time, without cause, by providing written notice to Seller. Upon receiving notice of such termination, Seller shall:

a) stop all work on this Order on the date and to the extent specified;

b) place no further contracts hereunder except as may be necessary for completing such portions of the Order that have not been terminated; and

c) terminate all contracts to the extent that they may relate to portions of the Order that have been terminated; and

d) protect all property in which Buyer has or may acquire an interest and deliver such property to Buyer.

2) Within twenty (20) days from such termination, Seller may submit to Buyer its written claim for termination charges in the form prescribed by Buyer. Failure to submit such claim within such time shall constitute a waiver of all claims and a release of all Buyer’s liability arising out of such termination. Under no circumstances shall Seller be entitled to anticipatory or lost profits.

3) Buyer reserves the right to verify claims hereunder and Seller shall make available to Buyer, upon its request, all relevant, non-proprietary books and records for inspection and audit (e.g. time cards and receipts). If Seller fails to afford Buyer its rights hereunder, Seller shall be deemed to have relinquished its claim.

Termination for Default

1) Buyer may, by written notice of default to Seller, terminate the whole or any part of this Order, in any one of the following circumstances:

a) Seller fails to make delivery of the goods or to perform the services within time specified herein or any extension thereof; or

b) Seller fails to perform any of the other provisions of this Order in accordance with its terms and does not cure such failure within a period of ten (10) days after receipt of notice from Buyer specifying such failure; or

c) Seller becomes insolvent or the subject of proceedings under any law relating to the relief of debtors or admits in writing its inability to pay its debts as they become due.

2) If this Order is so terminated, Buyer may procure or otherwise obtain, upon such terms and in such manner as Buyer may deem appropriate, goods or services similar to those terminated. Seller shall be liable to Buyer for any excess costs of such similar supplies or services.

3) Seller shall transfer title and deliver to Buyer, in the manner and to the extent requested in writing by Buyer at or after termination, such complete or partially completed articles, property, materials, parts, tools, fixtures, plans, drawings, information and contract rights as Seller has produced or acquired for the performance of the terminated part of this Order, and Buyer will pay Seller the contract price for completed articles delivered to and accepted by Buyer and the fair value of the other property of Seller so requested and delivered.

4) Seller shall continue performance of this Order to the extent not terminated. Buyer shall have no obligation to Seller with respect to the terminated part of this Order except as herein provided.

27. SECURITY

Under its contract with NCI-Frederick, SAIC-Frederick, Inc. may be required to conduct, on persons performing work on Government Owned or controlled installations, individual background checks prior to the commencement of effort. As part of this process, information will be required to enable SAIC-Frederick, Inc. to conduct the appropriate background checks, including name (including any aliases), daytime phone number, SSN, date of birth, and country of birth.