CLDP_RFP_as_of_Amendment_2.pdf

Commercial Law Development Program

Organization of Volunteer Lawyer Teams for Mock Negotiations

SECTION A – SOLICITATION FORM

Subject: Organization of Volunteer Lawyer Teams for Mock Negotiations

This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as supplemented with additional information included in this notice. The

Government is releasing this solicitation electronically only, via the Federal Business

Opportunities system. This electronic version of the Request for Proposal (RFP) is the official version for this acquisition. No hard copy of this solicitation will be issued.

Questions are due no later than 16 June 2015, 11am, Washington, DC time.

Proposals are due no later than 25 June 2015, 11am, Washington, DC time. Proposals are due electronically only, and shall be submitted to tmehmood@doc.gov.

No phone calls will be accepted during the solicitation period.

mailto:tmehmood@doc.gov

SECTION B - SUPPLIES/SERVICES AND PRICES

B.1 General

The Commercial Law Development Program (CLDP), part of the Office of the General Counsel of the U.S. Department of Commerce provides technical assistance to transitioning countries to create an enabling environment for increased trade and investment, and private sector development. CLDP does so at the behest of US Embassies located in these countries.

A key objective of these countries as they transition to market-based economies is to build the capacity of a critical mass of government lawyers so that they can function as transactional lawyers able to negotiate and draft commercial contracts, in particular contracts related to technology transfer, such as technology licensing agreements, or contracts related to international strategic business partnerships such as international joint-venture agreements.

B.2 Contract Type/Period of Performance

It is anticipated that a Firm Fixed Price contract will be awarded. The contractor shall furnish all necessary services to perform the work described in the Statement of Work, Sections C.

The period of performance shall be for one (1) Base Year of 12 months and four (4) 12-month option years. The Period of Performance (POP) reads as follows:

Base Year 12 months from date of contract award

Option Year I 12 months after Basic Year

Option Year II 12 months after Option Year One

Option Year III 12 months after Option Year Two

Option Year IV 12 months after Option Year Three

B.3 Place of Performance

While much for the work will be performed in Washington, DC., some of the workshops during which mock negotiations will take place may be organized in foreign countries.

SECTION C - DESCRIPTION/SPECIFICATIONS/STATEMENT OF WORK

C.1 Background

The Commercial Law Development Program (CLDP), part of the Office of the General Counsel of the U.S. Department of Commerce provides technical assistance to transitioning and developing countries to create an enabling environment for increased trade and investment, and private sector development. CLDP does so at the behest of US Embassies located in these countries.

A key objective of these countries as they transition to market-based economies is to build the capacity of a critical mass of government lawyers so that they can function as transactional lawyers able to negotiate and draft commercial contracts, in particular contracts related to technology transfer, such as technology licensing agreements, contracts related to international strategic business partnerships such as international joint-venture agreements, or contracts related to foreign investment and to project financing.

Because these countries are seeking foreign investment and technology, they also want their commercial attachés posted overseas as well as their investment promotion officials to understand how international private commercial agreements of the type described in the paragraph above are negotiated and drafted.

In past years, CLDP has found that a very efficient way to build the desired capacity mentioned above has been to organize mock negotiations of commercial contracts, between foreign officials, be they government lawyers or commercial attachés, and teams of volunteer (pro-bono) top-notch US business lawyers. These lawyers worked in private practice; they came from several law firms to ensure that not one law firm in particular benefited from the contacts with the foreign officials being trained. The mock negotiations were based upon case studies created by CLDP. Most often, the teams of volunteer lawyers would create term sheets for the contracts to be negotiated as part of these case studies. After each mock negotiation, the volunteer lawyers spent significant time providing constructive criticism to the foreign participants. Before some mock negotiations, they gave presentations to the participants on legal issues likely to be encountered during the mock negotiations (e.g., arbitration clauses).

C.2. Purpose

The purpose of this acquisition is to provide the government with services to form teams of volunteer lawyers for Mock Negotiations with, and presentations to, lawyers and commercial attachés from transitioning countries.

C.3 Scope

The scope of the Organization of Volunteer Lawyer Teams for Mock Negotiations contract shall include support services necessary to form teams of volunteer lawyers for Mock Negotiations with, and presentations to, lawyers and commercial attachés from transitioning countries.

C.4 Description

As CLDP is increasingly asked to train government lawyers and commercial attachés from transitioning countries, CLDP plans to routinely include mock negotiations in its capacity building programs. CLDP anticipates conducting eight such mock negotiations in the coming 12 months. In order to do so, CLDP will need to rely on a number of teams of U.S. volunteer (pro-bono) high-level lawyers, having different types of expertise, coming from different law firms.

These teams will need to include some lawyers who have had experience with international transactions or with advising developing countries. CLDP intends, therefore, for a DOC contract to be awarded to an organization capable of organizing such teams of volunteer lawyers.

C.4.1 Tasks

The contractor shall perform the tasks listed below:

C.4.1.1

For each one of the eight mock negotiations that CLDP expects to take place during the 12-month period after the contract is awarded, the Contractor shall organize a team of volunteer business high-level lawyers willing to take part in mock negotiation with foreign officials lasting

1 to 2 days. These lawyers shall be willing to do so without remuneration (pro-bono). Travel expenses, if any, shall be paid by CLDP. For each mock negotiation, the Contractor will have 8-weeks advance notice of the date of the mock negotiation. The volunteer lawyers shall have the right expertise to conduct realistic mock negotiations based upon detailed case studies focused on technology transfer or on international strategic partnerships. The lawyers in each team shall come from more than one law firm. Each team shall include some lawyers who have had experience with international transactions or with advising developing countries.

C.4.1.2

The Contractor shall work with CLDP and with the volunteer lawyers to prepare realistic term sheets for each mock negotiation.

C.4.1.3

When needed, the Contractor shall work with CLDP and with the volunteer lawyers to prepare presentations, before the mock-negotiations, on topics relevant to these negotiations.

C.4.1.4

For each mock negotiation held in Washington, D.C., the Contractor shall find a law firm willing to provide a venue where the mock negotiation will take place.

SECTION D – PACKING AND MARKING

Packaging and Marking of Contract Deliverables

Unless otherwise specified, all documents prepared and submitted by the Contractor to the

Government under this contract shall include the following information on the cover page of each document:

(a) Name and business address of the contractor;

(b) Contract number and task order number;

(c) Name, position, and office location of the Department of Commerce Contracting

Officer's Representative; and

(d) Date of report.

The contract number and task order number shall be placed on or adjacent to all exterior mailing or shipping labels of deliverable items called for by the contract.

SECTION E – INSPECTION AND ACCEPTANCE

E.1. 1352.246-70 Inspection and Acceptance (Apr 2010)

The Contracting Officer or the duly authorized representative will perform inspection and acceptance of supplies and services to be provided under this contract. Inspection and acceptance will be performed at:

U.S. Department of Commerce

14th and Constitution Avenue, NW

Washington, DC 20230

E.2. 52.246-4 -- Inspection of Services -- Fixed-Price (Aug. 1996)

(a) Definition: “Services,” as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.

(b) The Contractor shall provide and maintain an inspection system acceptable to the

Government covering the services under this contract. Complete records of all inspection work performed by the Contractor shall be maintained and made available to the Government during contract performance and for as long afterwards as the contract requires.

(c) The Government has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. The Government shall perform inspections and tests in a manner that will not unduly delay the work.

(d) If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

(e) If any of the services do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by reperformance, the Government may --

(1) Require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and

(2) Reduce the contract price to reflect the reduced value of the services performed.

(f) If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, the Government may --

(1) By contract or otherwise, perform the services and charge to the Contractor any cost incurred by the Government that is directly related to the performance of such service; or

(2) Terminate the contract for default.

(End of Clause)

E.3. PERFORMANCE EVALUATION AND REPORTING

The Government intends to evaluate and share Past Performance Information (PPI) during the course of the contract as described above. Contractors should therefore be mindful of the fact that an excellent PPI record will be an incentive for the Government to award future contracts.

Conversely, a poor PPI record will only serve to act as a disincentive as the Government will be justified in rewarding Contractors with a history of PPI.

SECTION F - PERIOD OF PERFORMANCE

F.1. 1352.215-70 Period of Performance (March 2000)

The period of performance shall be for one (1) Base Year of 12 months and four (4) 12-month option years. The Period of Performance (POP) reads as follows:

Base Year 12 months from date of contract award

Option Year I 12 months after Basic Year

Option Year II 12 months after Option Year One

Option Year III 12 months after Option Year Two

Option Year IV 12 months after Option Year Three

F. 2. Delivery Schedule

Delivery of any items specified shall be shipped F.O.B Destination.

F.4. Reports

The contractor shall provide the government with written reports in electronic mail format each week listing tasks accomplished.

SECTION G – CONTRACT ADMINISTRATION DATA

G.1. PURPOSE

This RFQ solicits quotes for Organization of Volunteer Lawyer Teams for Mock Negotiations.

The requirements are described in the Statement of Work.

G.2. BACKGROUND

See SOW.

G.3. NUMBER OF AWARDS

It is anticipated that one (1) award will be made from this solicitation.

G.4. DATE OF AWARD

It is anticipated that award will be made on or about June 26, 2015.

G.5. COMMITMENT OF PUBLIC FUNDS

The Contracting Officer is the only individual who can legally commit the Government to the expenditure of public funds in connection with the proposed acquisition. Any other commitment, either explicit or implied, is invalid.

G.6. Personnel Security Requirements

(a) The Contractor shall comply with Homeland Security Presidential Directive (HSPD) 12, Policy for a Common Identification Standard for Federal Employees and Contractors.

Detailed guidance is provided in the U.S. Office of Management and Budget (OMB)

Memorandum M-05-24, which is available on-line at http://www.whitehouse.gov/omb/memoranda/fy2005/m05-24.pdf.

(b) The Government may require security clearances for performance of this Order. The

Contractor must obtain these clearances before beginning work on the Order (DOC will not allow Contractor employees without clearance in any of its facilities). If satisfactory security arrangements cannot be made with the Contractor, the required services must be obtained from other sources.

(c) The level of classified access required will be indicated on DD-254 or other appropriate form incorporated into each request requiring access to classified information. Contractors are required to have background investigations for suitability if they occupy positions of trust

(e.g., systems administration) even if they do NOT have access to classified information.

(d) Necessary facility and staff clearances must be in place prior to start of work on the Order.

(e) Contractors are responsible for the security, integrity and appropriate authorized use of their systems interfacing with the Government and or used for the transaction of any and all http://www.whitehouse.gov/omb/memoranda/fy2005/m05-24.pdf

Government business. The Government, through the Government's Contracting Officer, may require the use or modification of security and/or secure communications technologies related to Government systems access and use.

(f) The Government, at its discretion, may suspend or terminate the access and/or use of any or all Government access and systems for conducting business with any/or all Contractors when a security or other electronic access, use or misuse issue gives cause for such action. The suspension or termination may last until such time as the Government determines that the situation has been corrected or no longer exists.

G.7. 1352.216-70 Contract Type (March 2000)

This is a Firm Fixed Price Purchase Order for services.

G.8. 1352.211-70 Statement of Work/Specifications (March 2000)

The Contractor shall furnish the necessary services to meet the requirements in the Statement of

Work.

G.9. 1352.201-70 Contracting Officer's Authority (March 2000)

The Contracting Officer is the only person authorized to make or approve any changes in any of the requirements of this contract and notwithstanding any provisions contained elsewhere in this contract, the said authority remains solely in the Contracting Officer. In the event, the

Contractor makes any changes at the direction of any person other than the Contracting Officer, the change will be considered to have been made without authority and no adjustment will be made in the contract terms and conditions, including price.

G.10. 1352.201-71 Contracting Officer’s Technical Representative (COTR) (Apr 2010)

a. The COTR shall be so designated at the time of award of the contract/task order. The COTR may be changed at any time by the Government without prior notice to the Contractor by a unilateral modification to the Contract. The COTR is located at:

US Department of Commerce

1401 Constitution Ave, NW

Washington, DC 20230

POC: TBD

Phone Number: TBD

b. The responsibilities and limitations of the COTR are as follows:

(1) The COTR is responsible for the technical aspects of the project and serves as technical liaison with the Contractor. The COTR is also responsible for the final inspection and acceptance of all reports and such other responsibilities as may be specified in the contract.

(2) The COTR is not authorized to make any commitments or otherwise obligate the

Government or authorize any changes which affect the Contract price, terms or conditions. Any

Contractor request for changes shall be referred to the Contracting Officer directly or through the

COTR. No such changes shall be made without the expressed prior authorization of the

Contracting Officer (CO.) The CO may designate assistant or alternate COTR(s) to act for the

COTR by naming such assistant/alternate(s) in writing and transmitting a copy of such designation to the Contractor.

G.11. Invoice Requirements

(a) Contractor must submit proper invoices at all times. Refer to the Clause Section of this solicitation for additional invoice guidance. A proper invoice shall include the following items (except for interim payments on cost reimbursement contracts for services):

(1) Name and address of the contractor.

(2) Invoice date and invoice number. (Contractors shall date invoices as close as possible to the date of mailing or transmission.)

(3) Contract number or other authorization for supplies delivered or services performed

(including order number and contract line item number).

(4) Description, quantity, unit of measure, unit price, and extended price of supplies delivered or services performed.

(5) Shipping and payment terms (e.g., shipment number and date of shipment, discount for prompt payment terms). Bill of lading number and weight of shipment will be shown for shipments on Government bills of lading.

(6) Name and address of contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

(7) Name (where practicable), title, phone number, and mailing address of person to notify in the event of a defective invoice.

(8) Taxpayer Identification Number (TIN). The contractor must include its TIN on all invoices.

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

(i) The contractor must include EFT banking information on the invoice only if required by agency procedures.

(ii) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the contractor must have submitted correct EFT banking information in accordance with the applicable solicitation provision

(e.g., 52.232-38, Submission of Electronic Funds Transfer Information with Offer), contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer-Central

Contractor Registration, or 52.232-34, Payment by Electronic Funds Transfer-Other

Than Central Contractor Registration), or applicable agency procedures.

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

(10) Any other information or documentation required by the contract (e.g., evidence of shipment).

(b) Contractors shall provide signed original invoices plus one copy or email one copy to:

NIST Accounts Payable Office

Bldg 101, Room A-836 MS 1621

100 Bureau Drive

Gaithersburg, MD 20899

Telephone: (301) 975-2261

Fax: (301) 975-8283

Email: invoice@nist.gov

(c) Inquiries regarding payment of invoices should be telephoned or emailed to NIST, (301) 975-

2261, invoice@nist.gov; respectively.

(d) If the supplies, services, technical or other reports are rejected for failure to conform to the technical requirements of the Order, or for damage in transit or otherwise, the invoice will be rejected and returned to the Contractor. This shall commence the 30 day period and causing it to begin anew.

Contractor will clearly mark the final invoice with the legend “FINAL INVOICE” and shall execute a final release.

G.12. 1352.208-70 Printing (April 2010)

(a) The contractor is authorized to duplicate or copy production units provided the requirement does not exceed 5,000 production units of any one page or 25,000 production units in the aggregate of multiple pages. Such pages may not exceed a maximum image size of

103/4by 141/4inches. A “production unit” is one sheet, size 81/2x 11 inches (215 x 280 mm), one side only, and one color ink. Production unit requirements are outlined in the Government

Printing and Binding Regulations.

(b) This clause does not preclude writing, editing, preparation of manuscript copy, or preparation of related illustrative material as a part of this contract, or administrative duplicating/copying (for example, necessary forms and instructional materials used by the contractor to respond to the terms of the contract).

mailto:invoice@nist.gov mailto:invoice@nist.gov

(c) Costs associated with printing, duplicating, or copying in excess of the limits in paragraph (a) of this clause are unallowable without prior written approval of the Contracting

Officer. If the contractor has reason to believe that any activity required in fulfillment of the contract will necessitate any printing or substantial duplicating or copying, it shall immediately provide written notice to the Contracting Officer and request approval prior to proceeding with the activity. Requests will be processed by the Contracting Officer in accordance with FAR

8.802.

(d) The contractor shall include in each subcontract which may involve a requirement for any printing, duplicating, and copying in excess of the limits specified in paragraph (a) of this clause, a provision substantially the same as this clause, including this paragraph (d).

G.13. 1352.209-71 Organizational Conflict of Interest (Apr 2010)

(a) There is a potential organizational conflict of interest ( see FAR Subpart 9.5, Organizational and Consultant Conflicts of Interest) due to [ state the nature of the potential conflict ]. Accordingly:

(1) Restrictions are needed to ensure that ( state the nature of the proposed restraint and the applicable time period ).

(2) As a part of the proposal, the offeror shall provide the Contracting Officer with complete information regarding previous or ongoing work that is in any way associated with the contemplated acquisition.

(b) If award is made to the offeror, the resulting contract may include an organizational conflict of interest limitation applicable to subsequent Government work, at either a prime contract level, at any subcontract tier, or both. During evaluation of proposals, the Government may, after discussions with the offeror and consideration of ways to avoid the conflict of interest, insert a provision in the resulting contract that shall disqualify the offeror from further consideration for award of specified future contracts.

(c) The organizational conflict of interest clause included in this solicitation may be modified or deleted during negotiations.

G.14. 1352.209-72 Restrictions Against Disclosure (APR 2010)

a) The contractor agrees, in the performance of this contract, to keep the information furnished by the Government or acquired/developed by the contractor in performance of the contract and designated by the Contracting Officer or Contracting Officer's Representative, in the strictest confidence. The contractor also agrees not to publish or otherwise divulge such information, in whole or in part, in any manner or form, nor to authorize or permit others to do so, taking such reasonable measures as are necessary to restrict access to such information while in the contractor's possession, to those employees needing such information to perform the work described herein, i.e., on a “need to know” basis. The contractor agrees to immediately notify the

Contracting Officer in writing in the event that the contractor determines or has reason to suspect a breach of this requirement has occurred.

(b) The contractor agrees that it will not disclose any information described in subsection

(a) to any person unless prior written approval is obtained from the Contracting Officer. The contractor agrees to insert the substance of this clause in any consultant agreement or subcontract hereunder.

G.15. 1352.209-73 Compliance with the Laws (APR 2010)

The contractor shall comply with all applicable laws, rules and regulations which deal with or relate to performance in accord with the terms of the contract.

G.16. 1352.215-73 Inquiries (APR 2010)

Offerors must submit all questions concerning this solicitation in writing to Contracting

Officer. Questions should be received no later than _3_ calendar days after the issuance date of this solicitation. Any responses to questions will be made in writing, without identification of the questioner, and will be included in an amendment to the solicitation. Even if provided in other form, only the question responses included in the amendment to the solicitation will govern performance of the contract.

G.17. 1352.233-70 Agency Protests (APR 2010)

(a) An agency protest may be filed with either: (1) The contracting officer, or (2) at a level above the contracting officer, with the appropriate agency Protest Decision Authority. See 64 FR

16,651 (April 6, 1999).

(b) Agency protests filed with the Contracting Officer shall be sent to the following address:

U.S. Department of Commerce

Office of Acquisition Management Commerce Acquisition Solutions, Room 6521 ATTN:

Akinsola Ajayi

14th and Constitution Avenue, NW Washington, D.C.

20230

FAX: 202-482-0456

Email: aajayi@doc.gov

(c) Agency protests filed with the agency Protest Decision Authority shall be sent to the following address:

U.S. Department of Commerce

Office of the General Counsel

Contract Law Division--Room 5892

Herbert C. Hoover Building

14th Street and Constitution Avenue, NW

Washington, D.C. 20230.

Attn: Lauren Didiuk, Esquire

FAX: (202) 482-6281

mailto:aajayi@doc.gov

(d) A complete copy of all agency protests, including all attachments, shall be served upon the Contract Law Division of the Office of the General Counsel within one day of filing a protest with either the Contracting Officer or the Protest Decision Authority.

(e) Service upon the Contract Law Division shall be made as follows: U.S. Department of

Commerce, Office of the General Counsel, Chief, Contract Law Division, Room 5893, Herbert

C. Hoover Building, 14th Street and Constitution Avenue, NW., Washington, DC 20230. FAX:

(202) 482–5858.

G.18. 1352.233-71 GAO and Court of Federal Claims protests (APR 2010)

(a) A protest may be filed with either the Government Accountability Office (GAO) or the

Court of Federal Claims unless an agency protest has been filed.

(b) A complete copy of all GAO or Court of Federal Claims protests, including all attachments, shall be served upon (i) the Contracting Officer, and (ii) the Contract Law Division of the Office of the General Counsel, within one day of filing a protest with either GAO or the

Court of Federal Claims.

(c) Service upon the Contract Law Division shall be made as follows: U.S. Department of

Commerce, Office of the General Counsel, Chief, Contract Law Division, Room 5893, Herbert

C. Hoover Building, 14th Street and Constitution Avenue, NW., Washington, DC 20230. FAX:

(202) 482–5858.

G.19. 1352.237-70 Security processing requirements-high or moderate risk contracts (APR

2010)

(a) Investigative Requirements for High and Moderate Risk Contracts. All contractor (and subcontractor) personnel proposed to be employed under a High or Moderate Risk contract shall undergo security processing by the Department's Office of Security before being eligible to work on the premises of any Department of Commerce owned, leased, or controlled facility in the

United States or overseas, or to obtain access to a Department of Commerce IT system. All

Department of Commerce security processing pertinent to this contract will be conducted at no cost to the contractor. The level of contract risk will determine the type and scope of such processing, as noted below.

(1) Investigative requirements for Non-IT Service Contracts are:

(i) High Risk—Background Investigation (BI).

(ii) Moderate Risk—Moderate Background Investigation (MBI).

(2) Investigative requirements for IT Service Contracts are:

(i) High Risk IT—Background Investigation (BI).

(ii) Moderate Risk IT—Background Investigation (BI).

(b) In addition to the investigations noted above, non-U.S. citizens must have a pre-appointment check that includes an Immigration and Customs Enforcement agency check.

(c) Additional Requirements for Foreign Nationals (Non-U.S. Citizens). To be employed under this contract within the United States, non-U.S. citizens must have:

(1) Official legal status in the United States;

(2) Continuously resided in the United States for the last two years; and

(3) Obtained advance approval from the servicing Security Officer of the contracting operating unit in consultation with the DOC Office of Security (OSY) headquarters. (OSY routinely consults with appropriate agencies regarding the use of non-U.S. citizens on contracts and can provide up-to-date information concerning this matter.)

(d) Security Processing Requirement. Processing requirements for High and Moderate Risk

Contracts are as follows:

(1) The contractor must complete and submit the following forms to the Contracting

Officer's Representative (COR):

(i) Standard Form 85P (SF–85P), Questionnaire for Public Trust Positions;

(ii) FD–258, Fingerprint Chart with OPM's designation in the ORI Block; and

(iii) Credit Release Authorization.

(2) The Sponsor will ensure that these forms have been properly completed, initiate the

CD–254, Contract Security Classification Specification, and forward the documents to the cognizant Security Officer.

(3) Upon completion of security processing, the Office of Security, through the servicing

Security Officer and the Sponsor, will notify the contractor in writing of an individual's eligibility to be provided access to a Department of Commerce facility or Department of

Commerce IT system.

(4) Security processing shall consist of limited personal background inquiries pertaining to verification of name, physical description, marital status, present and former residences, education, employment history, criminal record, personal references, medical fitness, fingerprint classification, and other pertinent information. For non-U.S. citizens, the Sponsor must request an Immigration and Customs Enforcement agency check. It is the option of the Office of

Security to repeat the security processing on any contract employee at its discretion.

(e) Notification of Disqualifying Information. If the Office of Security receives disqualifying information on a contract employee, the COR will be notified. The Sponsor, in coordination with the Contracting Officer, will immediately remove the contract employee from duties requiring access to Departmental facilities or IT systems. Contract employees may be barred from working on the premises of a facility for any of the following:

(1) Conviction of a felony crime of violence or of a misdemeanor involving moral turpitude;

(2) Falsification of information entered on security screening forms or on other documents submitted to the Department;

(3) Improper conduct once performing on the contract, including criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct or other conduct prejudicial to the

Government, regardless of whether the conduct was directly related to the contract;

(4) Any behavior judged to pose a potential threat to Departmental information systems, personnel, property, or other assets.

(f) Failure to comply with security processing requirements may result in termination of the contract or removal of contract employees from Department of Commerce facilities or denial of access to IT systems.

(g) Access to National Security Information. Compliance with these requirements shall not be construed as providing a contract employee clearance to have access to national security information.

(h) The contractor shall include the substance of this clause, including this paragraph, in all subcontracts.

SECTION H - SPECIAL CONTRACTING REQUIREMENTS

H.1. Contractor Certification of Employee Status

a. The contract awardee is responsible for certifying that all of its employees are eligible for employment within the United States of America in accordance with FAR 52.222-54, Employment Eligibility Verification as stated in Section I, of this solicitation/contract.

H.2. 52.203-13 Contractor Code of Business Ethics and Conduct (Apr 2010)

(a) Definitions. As used in this clause—

“Agent” means any individual, including a director, an officer, an employee, or an independent Contractor, authorized to act on behalf of the organization.

“Full cooperation”—

(1) Means disclosure to the Government of the information sufficient for law enforcement to identify the nature and extent of the offense and the individuals responsible for the conduct. It includes providing timely and complete response to Government auditors’ and investigators' request for documents and access to employees with information;

(2) Does not foreclose any Contractor rights arising in law, the FAR, or the terms of the contract. It does not require—

(i) A Contractor to waive its attorney-client privilege or the protections afforded by the attorney work product doctrine; or

(ii) Any officer, director, owner, or employee of the Contractor, including a sole proprietor, to waive his or her attorney client privilege or Fifth Amendment rights; and

(3) Does not restrict a Contractor from—

(i) Conducting an internal investigation; or

(ii) Defending a proceeding or dispute arising under the contract or related to a potential or disclosed violation.

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

“Subcontract” means any contract entered into by a subcontractor to furnish supplies or services for performance of a prime contract, or a subcontract.

“Subcontractor” means any supplier, distributor, vendor, or firm that furnished supplies or services to or for a prime contractor or another subcontractor.

“United States,” means the 50 States, the District of Columbia, and outlying areas.

(b) Code of business ethics and conduct.

(1) Within 30 days after contract award, unless the Contracting Officer establishes a longer time period, the Contractor shall—

(i) Have a written code of business ethics and conduct; and

(ii) Make a copy of the code available to each employee engaged in performance of the contract.

(2) The Contractor shall—

(i) Exercise due diligence to prevent and detect criminal conduct; and

(ii) Otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.

(3)(i) The Contractor shall timely disclose, in writing, to the agency Office of the Inspector

General (OIG), with a copy to the Contracting Officer, whenever, in connection with the award, performance, or closeout of this contract or any subcontract there under, the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed—

(A) A violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code; or

(B) A violation of the civil False Claims Act (31 U.S.C. 3729-3733).

(ii) The Government, to the extent permitted by law and regulation, will safeguard and treat information obtained pursuant to the Contractor’s disclosure as confidential where the information has been marked “confidential” or “proprietary” by the company. To the extent permitted by law and regulation, such information will not be released by the Government to the public pursuant to a Freedom of Information Act request, 5 U.S.C. Section 552, without prior notification to the Contractor. The Government may transfer documents provided by the

Contractor to any department or agency within the Executive Branch if the information relates to matters within the organization’s jurisdiction.

(iii) If the violation relates to an order against a Government wide acquisition contract, a multi-agency contract, a multiple-award schedule contract such as the Federal Supply Schedule, or any other procurement instrument intended for use by multiple agencies, the Contractor shall notify the OIG of the ordering agency and the IG of the agency responsible for the basic contract.

(c) Business ethics awareness and compliance program and internal control system. This paragraph (c) does not apply if the Contractor has represented itself as a small business concern pursuant to the award of this contract or if this contract is for the acquisition of a commercial item as defined at FAR 2.101. The Contractor shall establish the following within 90 days after contract award, unless the Contracting Officer establishes a longer time period:

(1) An ongoing business ethics awareness and compliance program.

(i) This program shall include reasonable steps to communicate periodically and in practical manner the Contractor’s standards and procedures and other aspects of the Contractor’s business ethics awareness and compliance program and internal control system, by conducting effective training programs and otherwise disseminating information appropriate to an individual’s respective roles and responsibilities.

(ii) The training conducted under this program shall be provided to the Contractor’s principals and employees, and as appropriate, the Contractor’s agents and subcontractors.

(2) An internal control system.

(i) The Contractor’s internal control system shall—

(A) Establish standards and procedures to facilitate timely discovery of improper conduct in connection with Government contracts; and

(B) Ensure corrective measures are promptly instituted and carried out.

(ii) At a minimum, the Contractor’s internal control system shall provide for the following:

(A) Assignment of responsibility at a sufficiently high level and adequate resources to ensure effectiveness of the business ethics awareness and compliance program and internal control system.

(B) Reasonable efforts not to include an individual as a principal, whom due diligence would have exposed as having engaged in conduct that is in conflict with the Contractor’s code of business ethics and conduct.

(C) Periodic reviews of company business practices, procedures, policies, and internal controls for compliance with the Contractor’s code of business ethics and conduct and the special requirements of Government contracting, including— http://uscode.house.gov/ http://uscode.house.gov/ https://www.acquisition.gov/far/current/html/Subpart%202_1.html#wp1145508

(1) Monitoring and auditing to detect criminal conduct;

(2) Periodic evaluation of the effectiveness of the business ethics awareness and compliance program and internal control system, especially if criminal conduct has been detected; and

(3) Periodic assessment of the risk of criminal conduct, with appropriate steps to design, implement, or modify the business ethics awareness and compliance program and the internal control system as necessary to reduce the risk of criminal conduct identified through this process.

(D) An internal reporting mechanism, such as a hotline, which allows for anonymity or confidentiality, by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports.

(E) Disciplinary action for improper conduct or for failing to take reasonable steps to prevent or detect improper conduct.

(F) Timely disclosure, in writing, to the agency OIG, with a copy to the Contracting

Officer, whenever, in connection with the award, performance, or closeout of any Government contract performed by the Contractor or a subcontract there under, the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed a violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C. 3729-

3733).

(1) If a violation relates to more than one Government contract, the Contractor may make the disclosure to the agency OIG and Contracting Officer responsible for the largest dollar value contract impacted by the violation.

(2) If the violation relates to an order against a Government wide acquisition contract, a multi-agency contract, a multiple-award schedule contract such as the Federal Supply

Schedule, or any other procurement instrument intended for use by multiple agencies, the contractor shall notify the OIG of the ordering agency and the IG of the agency responsible for the basic contract, and the respective agencies’ contracting officers.

(3) The disclosure requirement for an individual contract continues until at least 3 years after final payment on the contract.

(4) The Government will safeguard such disclosures in accordance with paragraph

(b)(3)(ii) of this clause.

(G) Full cooperation with any Government agencies responsible for audits, investigations, or corrective actions.

(d) Subcontracts.

(1) The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts that have a value in excess of $5,000,000 and a performance period of more than

120 days.

(2) In altering this clause to identify the appropriate parties, all disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the

Inspector General, with a copy to the Contracting Officer.

H.3. Observance of legal holidays and administrative leave (Government on-site employees)

The Government hereby provides "notices" and the Contractor hereby acknowledges "receipt" that the Government personnel observe the listed days as holidays:

President's Day Memorial Day http://uscode.house.gov/

Independence Day Labor Day

Veteran's Day Thanksgiving Day

Christmas Day New Year's Day

Columbus Day Martin Luther King, Jr. Day

Any other day designated by Federal Statute

Any other day designated by Executive Order

Any other day designated by the President's Proclamation

The contractor shall observe the above holidays on the date observed by the Government. It is understood and agreed between the Government and the Contractor that observance of such days by Government personnel shall not "on-its-face" be the cause for an additional period of performance, or entitlement of compensation except as set forth within the contract.

Contractor employees performing duties at Government sites are automatically relieved from duty by virtue of the fact that government employees are dismissed early or given the day off, and it will be without loss to the Contractor in accordance with the payment set forth in the paragraph below. No form of holiday or other premium compensation will be reimbursed;

however, this does not preclude reimbursement for authorized overtime work.

Further, when the Government grants administrative leave to its employees, contractor personnel shall also be dismissed. When administrative leave is granted to contractor personnel assigned on-site as result of inclement weather, potentially hazardous conditions, and other special circumstances, etc., it will be without loss to the Contractor. In this instance, the cost of salaries and wages to the Contractor for the period of any such excused absence shall be a reimbursable item of direct cost hereunder for employees whose regular time is normally charged indirect (in accordance with the contractor's accounting policy). In each instance, the Contractor agrees to continue to provide sufficient personnel to perform round-the-clock requirements of critical tasks already in operation or scheduled, and shall be guided by the instructions issued by the

Contracting Officer or his duly appointed representative. All personnel assigned to this contract shall limit their observation or holidays to those set forth above.

SECTION I – CONTRACT CLAUSES

I.1 1352.239-72 SECURITY REQUIREMENTS FOR INFORMATION TECHNOLOGY RESOURCES

(APR 2010)

(a) Applicability. This clause is applicable to all contracts that require contractor electronic access to Department of Commerce sensitive non-national security or national security information contained in systems, or administrative control of systems by a contractor that process or store information that directly supports the mission of the Agency.

(b) Definitions. For purposes of this clause, the term “Sensitive” is defined by the guidance set forth in the Computer Security Act of 1987 (Pub. L. 100-235), including the following definition of the term:

(1) Sensitive information is “ * * * any information, the loss, misuse, or unauthorized access to, or modification of which could adversely affect the national interest or the, conduct of

Federal programs, or the privacy to which individuals are entitled under section 552a of title 5, United States Code (The Privacy Act), but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense or foreign policy.”

(2) For purposes of this clause, the term “National Security” is defined by the guidance set forth in:

(i) The DOC IT Security Program Policy and Minimum Implementation Standards, Section

4.3.

(ii) The DOC Security Manual, Chapter 18.

(iii) Executive Order 12958, as amended, Classified National Security Information.

Classified or national security information is information that has been specifically authorized to be protected from unauthorized disclosure in the interest of national defense or foreign policy under an Executive Order or Act of Congress.

(3) Information technology resources include, but are not limited to, hardware, application software, system software, and information (data). Information technology services include, but are not limited to, the management, operation (including input, processing, transmission, and output), maintenance, programming, and system administration of computer systems, networks, and telecommunications systems.

(c) The contractor shall be responsible for implementing sufficient Information Technology security, to reasonably prevent the compromise of DOC IT resources for all of the contractor's systems that are interconnected with a DOC network or DOC systems that are operated by the contractor.

(d) All contractor personnel performing under this contract and contractor equipment used to process or store DOC data, or to connect to DOC networks, must comply with the requirements contained in the DOC Information Technology Management Handbook ( see DOC, Office of the Chief Information Officer Web site), or equivalent/more specific agency or operating unit counsel guidance as specified immediately hereafter [insert agency or operating unit counsel specific guidance, if applicable].

(e) Contractor personnel requiring a user account for access to systems operated by the contractor for DOC or interconnected to a DOC network to perform contract services shall be screened at an appropriate level in accordance with Commerce Acquisition Manual 1337.70, Security Processing Requirements for Service Contracts.

(f) Within 5 days after contract award, the contractor shall certify in writing to the COR that its employees, in performance of the contract, have completed initial IT security orientation training in DOC IT Security policies, procedures, computer ethics, and best practices, in accordance with DOC IT Security Program Policy, chapter 15, section 15.3. The COR will inform the contractor of any other available DOC training resources. Annually thereafter the contractor shall certify in writing to the COR that its employees, in performance of the contract, have completed annual refresher training as required by section 15.4 of the DOC IT Security

Program Policy.

(g) Within 5 days of contract award, the contractor shall provide the COR with signed acknowledgement of the provisions as contained in Commerce Acquisition Regulation (CAR), 1352.209-72, Restrictions Against Disclosures.

(h) The contractor shall afford DOC, including the Office of Inspector General, access to the contractor's and subcontractor's facilities, installations, operations, documentation, databases, and personnel used in performance of the contract. Access shall be provided to the extent required to carry out a program of IT inspection, investigation, and audit to safeguard against threats and hazards to the integrity, availability, and confidentiality of DOC data or to the function of computer systems operated on behalf of DOC, and to preserve evidence of computer crime.

(i) For all contractor-owned systems for which performance of the contract requires interconnection with a DOC network on which DOC data will be stored or processed, the contractor shall provide, implement, and maintain a System Accreditation Package in accordance with the DOC IT Security Program Policy. Specifically, the contractor shall:

(1) Within 14 days after contract award, submit for DOC approval a System Certification

Work Plan, including project management information (at a minimum the tasks, resources, and milestones) for the certification effort, in accordance with DOC IT Security Program Policy and

[Insert agency or operating unit counsel specific guidance, if applicable]. The Certification Work

Plan, approved by the COR, in consultation with the DOC IT Security Officer, or

Agency/operating unit counsel IT Security Manager/Officer, shall be incorporated as part of the contract and used by the COR to monitor performance of certification activities by the contractor of the system that will process DOC data or connect to DOC networks. Failure to submit and receive approval of the Certification Work Plan may result in termination of the contract.

(2) Upon approval, follow the work plan schedule to complete system…