SF-33 USCA22R0092.pdf

SOLICITATION, OFFER, AND AWARD 1. THIS CONTRACT IS A RATED ORDER UNDER DPAS

(15 CFR 700)

RATING

2. CONTRACT NUMBER 3. SOLICITATION NUMBER

USCA22R0092 SEALED BID (IFB)

X NEGOTIATED (RFP)

4. TYPE OF SOLICITATION 5. DATE ISSUED

10/20/2021

6. REQUISITION/PURCHASE NUMBER

TSS210018

CODE PMD

Procurement Management Division Administrative Office of the United States Courts One Columbus Circle, N.E.

Suite 3-250 Washington, DC 20544-0001

7. ISSUED BY 8. ADDRESS OFFER TO (If other than Item 7)

NOTE: In sealed bid solicitations "offer" and "offeror" mean "bid" and "bidder".

SOLICITATION

See L.1 General Instructions 14:00:00 08/01/2022

(Hour) (Date)

CAUTION - LATE Submissions, Modifications, and Withdrawals: See Section L, Provision No. 3-100. All offers are subject to all terms and conditions contained in this solicitation.

9. Sealed offers in original and ____________ copies for furnishing the supplies or services in the Schedule will be received at the place specified in item 8, or if handcarried, in the depository located in ______________________________________________________ until ________________ local time _________________

10. FOR

INFORMATION

CALL:

A. NAME

Kurtina L. Edwards AREA CODE

NUMBER

502-1462

EXT.

B. TELEPHONE (NO COLLECT CALLS) C. E-MAIL ADDRESS

kurtina_edwards@ao.uscourts.gov

11. TABLE OF CONTENTS

(X) SEC. DESCRIPTION PAGE(S) (X) SEC. DESCRIPTION PAGE(S)

PART I - SCHEDULE PART II - CONTRACT CLAUSES

X A SOLICITATION/CONTRACT FORM 3 X I CONTRACT CLAUSES 6

X B SUPPLIES OR SERVICES AND PRICES/COSTS 4 PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH

X C DESCRIPTION/SPECS./WORK STATEMENT 16 X J LIST OF ATTACHMENTS 1

X D PACKAGING AND MARKING 1 PART IV - REPRESENTATIONS AND INSTRUCTIONS

X E INSPECTION AND ACCEPTANCE 1

X K REPRESENTATIONS, CERTIFICATIONS AND OTHER

STATEMENTS OF OFFERORS

X F DELIVERIES OR PERFORMANCE 2

X L INSTRS., CONDS., AND NOTICES TO OFFERORS 4X G CONTRACT ADMINISTRATION DATA 3

X M EVALUATION FACTORS FOR AWARD 2H SPECIAL CONTRACT REQUIREMENTS

OFFER (Must be fully completed by offeror)

NOTE: Item 12 does not apply if the solicitation includes a minimum offer acceptance period.

In compliance with the above, the undersigned agrees, 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, delivered at the designated point(s), within the time specified in the schedule.

12.

13. DISCOUNT FOR PROMPT PAYMENT 10 CALENDER DAYS(%) 20 CALENDER DAYS(%) 30 CALENDER DAYS(%) CALENDAR DAYS

NUMBER PERCENTAGE

14. ACKNOWLEDGEMENT OF AMENDMENTS (The offeror acknowledges receipt of amendments to the SOLICITATION for offerors and related documents numbered and dated):

AMENDMENT NO. DATE AMENDMENT NO. DATE

15A. NAME AND

ADDRESS OF

OFFEROR

CODE FACILITY 16. NAME AND TITLE OF PERSON AUTHORIZED TO SIGN

OFFER (Type or Print)

15B. TELEPHONE NUMBER

AREA CODE NUMBER EXT.

15C. CHECK IF REMITTANCE ADDRESS IS

DIFFERENT FROM ABOVE - ENTER SUCH

ADDRESS IN SCHEDULE.

17. SIGNATURE 18. OFFER DATE

AWARD (To be completed by Government)

19. ACCEPTED AS TO ITEMS NUMBERED 20. AMOUNT 21. ACCOUNTING AND APPROPRIATION

10 U.S.C. 2304(c) ( ) 41 U.S.C. 253(c) ( )

22. AUTHORITY FOR USING OTHER THAN FULL AND OPEN COMPETITION: 23. SUBMIT INVOICES TO ADDRESS SHOWN IN (4 copies unless otherwise specified)

ITEM

CODE24. ADMINISTERED BY (if other than Item 7) CODE AFSD Accounting Division, DAS-BAPO-ACC Administrative Office of the United States Courts One Columbus Circle, N.E., Suite 5-300 Washington, DC 20544-0001

25. PAYMENT WILL BE MADE BY

26. NAME OF CONTRACTING OFFICER (Type or print) 27. UNITED STATES OF AMERICA 28. DATE

IMPORTANT - Award will be made on this Form, or on Standard Form 26, or by other authorized official written notice.

AUTHORIZED FOR LOCAL REPRODUCTION

Previous edition is unusable

Judiciary Standard Form 33 (REV. 10-12)

USCA22R0092 - Page 1 of 28

Table of Contents

Section Description Page Number

B Supplies or Services and Prices/Costs B.1 General

C Descriptions/Specifications/Statement of Work C.1 Statement of Work/Specifications

D Packaging and Marking E Inspection and Acceptance

2-5B Inspection of Services F Deliveries or Performance

2-60 Stop-Work Order 7-200 Judiciary Delay of Work

G Contract Administration Data 2-120 Submission of Invoice 3-305 Payment by Electronic Funds Transfer-System for Award Management (SAM) Registration 7-1 Contract Administration 7-125 Invoices 7-10 Contractor Representative G.1 Ordering G.2 Product Discounts G.3 Acquisitions and Mergers G.4 Unit Price Adjustments

H Special Contract Requirements H.1 Contract Type-Consumption-Based / Time -and- Materials Solution 1-1 Employment by the Government H.2 Commercial Agreements Unenforceable Terms and Conditions H-3 Continuity of Operations

I Contract Clauses 1-10 Gratuities or Gifts 1-15 Disclosure of Contractor Information to the Public 2-55 Privacy or Security Safeguards 2-95 Material Requirements 3-105 Audit and Records 3-205 Protest after Award 3-25 Protecting the Judiciary's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment 3-300 Registration in the System for Award Management (SAM) 3-35 Covenant Against Contingent Fees 3-40 Restrictions on Subcontractor Sales to the Judiciary 3-45 Anti-Kickback Procedures 3-50 Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity 3-55 Price or Fee Adjustment for Illegal or Improper Activity 6-40 Federal, State, and Local Taxes 7-100A Limitation of Liability (Products) 7-110 Bankruptcy 7-130 Interest (Prompt Payment) 7-135 Payments 7-140 Discounts for Prompt Payment 7-150 Extras 7-185 Changes 7-195 Excusable Delays 7-20 Security Requirements 7-210 Payment for Emergency Closures 7-215 Notification of Ownership Changes 7-220 Termination for Convenience of the Judiciary (Fixed Price) 7-230 Termination for Default - Fixed-Price Products and Services 7-235 Disputes 7-25 Indemnification 7-30 Public Use of the Name of the Federal Judiciary 2-50 Continuity of Services 7-40 Judiciary-Contractor Relationships 7-205 Payment for Judiciary Holidays 1-5 Conflict of Interest

USCA22R0092 - Page 2 of 28

7-85 Examination of Records 7-100B Limitation of Liability (Services) 7-170 Notice of Intent to Disallow Costs 7-185 Alt I Changes 2-140 Judiciary IT Security Standards 3-120 Order of Precedence B-5 Clauses Incorporated by Reference 4-30 Payment (Time-and-Materials and Labor-Hour Contracts) 410-35 Fixed-Price Resource Units Contracts (Deviation) 4-95 Monitoring and Using Consumption-Based Solutions (Deviation) 4-100 Prices and New Services for Consumption-Based Solutions. (Deviation) 6-65 Rights in Data-Special Works 7-35 Deviation Disclosure or Use of Information -Deviation

J List of Attachments K Representations, Certifications and Other Statements of Offerors or Respondents

3-20 Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters 3-30 Certificate of Independent Price Determination 3-5 Taxpayer Identification and Other Offeror Information 3-130 Authorized Negotiators

L Instructions, Conditions and Notices to Offerors or Respondents 3-100 Instructions to Offerors 3-85 Explanation to Prospective Offerors 3-210 Protests 3-95 Preparation of Offers 7-60 Judiciary Furnished Property or Services B-1 Solicitation Provisions Incorporated by Reference L.1 General Instructions 4-1 Type of Contract

M Evaluation Factors for Award 3-70 Determination of Responsibility M.1 Evaluation Criteria

USCA22R0092 - Page 3 of 28

Section B - Supplies or Services and Prices/Costs

CLIN NO. Supplies or Services Quantity Unit of Issue Unit Price Extended Amount

0001 CSP Service Categories in accordance with the

PWS section 5.1

0 Not-To-

Exceed

Period of Performance:11/01/2022 - 10/31/2032

CLIN NO. Supplies or Services Quantity Unit of Issue Unit Price Extended Amount

0002 Professional Services in accordance with the PWS section 6.1 through 6.6

0 Month

Period of Performance:11/01/2022 - 10/31/2032

B.1 General

This Blanket Purchase Agreement (BPA) is to obtain commercial cloud services for the U.S. Judiciary.

B.1.2 BPA ORDERING PERIODS:

The ordering period for this BPA shall be ten (10) 1-year ordering periods

Ordering Period 1 - November 1, 2022 - October 31, 2023 Ordering Period 2 -November 1, 2023 - October 31, 2024 Ordering Period 3 - November 1, 2024 - October 31, 2025 Ordering Period 4 - November 1, 2025 - October 31, 2026 Ordering Period 5 - November 1, 2026 - October 31, 2027 Ordering Period 6 - November 1, 2027 - October 31, 2028 Ordering Period 7 - November 1, 2028 - October 31, 2029 Ordering Period 8 - November 1, 2029 - October 31, 2030 Ordering Period 9 - November 1, 2030 - October 31, 2031 Ordering Period 10 - November 1, 2031 - October 31, 2032

Section C - Descriptions/Specifications/Statement of Work

C.1 Statement of Work/Specifications

See: Judiciary Commercial Cloud Services PWS (Attachment I)

Section D - Packaging and Marking No Clauses

Section E - Inspection and Acceptance

USCA22R0092 - Page 4 of 28

Clause(s) Incorporated By Reference, see Clause B-5 Clause Title Date

2-5B Inspection of Services APR 2013

Section F - Deliveries or Performance

Clause(s) Incorporated By Reference, see Clause B-5 Clause Title Date

2-60 Stop-Work Order JAN 2010

7-200 Judiciary Delay of Work JAN 2003

Section G - Contract Administration Data

Clause(s) Incorporated By Reference, see Clause B-5 Clause Title Date

2-120 Submission of Invoice OCT 2006

3-305 Payment by Electronic Funds Transfer-System for Award

Management (SAM) Registration

APR 2013

7-1 Contract Administration JAN 2003

7-125 Invoices APR 2011

7-5 Contracting Officer's Representative APR 2013

7-10 Contractor Representative JAN 2003

(a) The contractor's representative to be contacted for all contract administration matters is as follows (contractor complete the information):

Name: ___________________________________________________________________________ Address: ___________________________________________________________________________ Telephone: ___________________________________________________________________________ Email: ___________________________________________________________________________ Fax: ___________________________________________________________________________

(b) The contractor's representative shall act as the central point of contact with the judiciary, shall be respons-ible for all contract administration issues relative to this contract, and shall have full authority to act for and leg-ally bind the contractor on all such issues.

(END)

G.1 Ordering

1. BPA CALL CONTRACT TYPE

The contract type of BPA Calls issued under this BPA will be Fixed-Price Resource Units for CSP services, and Labor Hour, Time-and-Materials, Fixed Price, or hybrid may be used for professional and training support.

services.

2. BPA CALL ORDERING METHOD

2.1 BPA Calls will be placed against this BPA via the issuance of written BPA Call. The use of the Government Purchase Cards and oral BPA Calls is not authorized. A BPA Call becomes binding once both parties sign the

USCA22R0092 - Page 5 of 28

BPA Call, or when the contractor commences performance.

3. BPA OBLIGATION

3.1. Extent of Obligation

3.1.1. The Government estimates, but does not guarantee, that the volume of purchases through this BPA will be $100 Million.

3.1.2 The Government is obligated only to the extent of authorized purchases actually made under this BPA via BPA Calls.

3.2. Funds Obligation

3.2.1. This BPA does not obligate any funds. Funds will only be obligated on BPA Calls.

4.AUTHORIZED USERS

4.1 The BPA is open for ordering exclusively by judiciary COCP Level VI or above Contracting Officers at the at the Administrative Office of the United States Courts’ Procurement Management Division, and only in sup-port of the Administrative Office of the United States Courts’ Department of Technology Services’ Cloud Host-ing & Networks Office (CHNO).

5.ORDERING PERIOD AND SURVIVAL

5.1. Ordering Period

5.1.1. If a BPA Call issued within the BPA’s Ordering Period(s) include options, the BPA Call’s options may be exercised after the BPA ordering end date(s) provided that:

5.1.1.1. The BPA Call that includes the option was issued during the BPA’s ordering period(s), and does not ex-ceed 60 months past the expiration date of the BPA;

5.1.1.2. The Ordering Office satisfies all other applicable regulations for exercise of options.

6. BPA CALL ORDERING PROCEDURES

6.1 All BPA Calls will be solicited in accordance with Vol 14 § 325.50.35 (Open Market Multiple Award BPA) through Vol 14 § 325.50.40 (a) (Ordering Under BPAs), but the use of Blanket Delivery Orders IAW Vol 14 § 325.50.40(b) is not authorized.

6.2 The contractor shall not respond to solicitations from non-authorized users, and that are not in support of the Administrative Office of the United States Courts’ Department of Technology Services’ Cloud Hosting & Net-works Office (CHNO).

6.2.1 Proper solicitations will contain the following information on the solicitations form.

ISSUED BY

<Name> <Telephone #> Procurement Management Division Administrative Office of the United States Courts Suite 3-250 Washington, DC 20544-0001

DESTINATION (SF 18), or DELIVER TO (SOLICITATION/CONTRACT/ORDER Form) Administrative Office of the U. S. Courts Cloud Technology and Hosting Office <further description if necessary> <Address> <City, State, Zip Code>

6.3 BPA CALL SOLICITATIONS

USCA22R0092 - Page 6 of 28

6.3.1 The contractor shall anticipate rapid quote submission times, usually within ten (10) days of the BPA Call solicitation, however, the submission date and time (all times eastern) will be specified within the solicitation.

6.3.2 The contractor shall ensure that submission are provided only for services that are currently available on the

BPA.

6.3.3 Vol 14 Provision 3-100, Instructions to Offerors shall apply to all solicitations issued under the Open Mar-ket Multiple Award BPAs.

6.3.4 Offers may be submitted on the solicitation form, letterhead stationery, or as otherwise specified in the solicitation. As a minimum, offers must show—

(1) The solicitation number;

(2) The time specified in the solicitation for receipt of offers;

(3) The name, address, and telephone number of the offeror;

(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the re-quirements in the solicitation. This may include product literature, or other documents, if necessary;

(5) Terms of any express warranty, not already included in the BPA;

(6) Price and any discount terms;

(7) "Remit to" address, if different than mailing address

(8) Acknowledgment of Solicitation Amendments;

(9) If the offer is not submitted on the solicitation form, include a statement specifying the extent of agreement with all terms, conditions, and provisions included in the solicitation. Offers that fail to furnish required repres-entations or information, or reject the terms and conditions of the solicitation may be excluded from considera-tion.

6.3.5 Period for acceptance of offers. The offeror agrees to hold the prices in its offer firm for 30 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the soli-citation.

6.3.6 Open Market Multiple Award BPA Call Protests

6.3.6.1 The offeror agrees no protest under Vol 14 § 350 (Judiciary Protest Procedures) is authorized in connec-tion with the issuance or proposed issuance of a BPA Call under this Open Market Multiple Award BPA, ex-cept—

(A) A protest on the grounds that the BPA Call increases the scope, period, or estimated value of the BPA; or

(B) A protest of a BPA Call valued in excess of $10 million.

6.3.6.2 Protests of BPA Calls in excess of the threshold stated in 6.3.5.1 (B) may be in accordance with Vol 14 § 350.

7. SCOPE OF BPA CALLS

7.1 All BPA Calls must be for the provision of CSP services, and no BPA Calls shall exclusively be for technic-al support services.

G.2 Product Discounts

The BPA holder's stated discounts off the OEM list price shall serve as the minimum discount (expressed in

USCA22R0092 - Page 7 of 28 percentage) per product/product category. Discounts shall be in effect throughout the life of the BPA and shall be applied to all future services and products added to the BPA as new services and products are made avail-able.

G.3 Acquisitions and Mergers

This BPA shall survive unto Contractor, its Successors, all rights and assignments. The terms and conditions in this BPA shall survive the acquisition or merger of the Contractor by or with another entity. The Contractor shall ensure these survivorship terms are included in any such merger or acquisition agreement, including a duty on the part of the surviving entity to abide by the terms of this BPA.

G.4 Unit Price Adjustments

All awarded BPA Calls incorporate clause 4-95, Monitoring and Using Consumption- Based Solutions, and 4-100, Prices and New Services for Consumption-Based Solutions.

A fixed-price resource units contract establishes a fixed price per unit of measure. Unless otherwise specified in the contract, the unit prices are subject to downward adjustment only, with such adjustments based on changes to the contractor's commercial catalog Pricing. The contracting officer may use fixed price resource units con-tracts when acquiring consumption-based solutions.

Application

(1) A fixed-price resource units contract is suitable for use when acquiring consumption-based solutions.

(2) Contract line item ceiling amounts are established at contract award or issuance of BPA Calls, based on the government estimate of the services to be consumed and the unit prices awarded. Consumption is invoiced monthly in arrears unless otherwise specified in the contract

Section H - Special Contract Requirements

H.1 Contract Type-Consumption-Based / Time -and- Materials Solution

Definition: Consumption-based solution:

Consumption-based solution, means any combination of equipment, software, and non-labor services that to-gether provide a capability that is metered and billed based on actual usage and predetermined pricing per re-source unit, and includes the ability to rapidly scale capacity up or down, e.g. cloud computing services.

Definition: Time-and-materials solution:

(a)Definitions for the purposes of Time-and-Materials Contracts.

Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are-

(1) Performed by the contractor;

(2) Performed by the subcontractors; or

(3) Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

Materials means-

(1) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contractor under a common control;

(2) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(3) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.); and

(4) Applicable indirect costs.

USCA22R0092 - Page 8 of 28

(b) Description. A time-and-materials contract provides for acquiring supplies or services on the basis of-

(1) Direct labor hours at specified fixed hourly rates that include wages, overhead, general and adminis-trative expenses, and profit; and

(2) Actual cost for materials.

(c) Application. A time-and-materials contract may be used only when it is not possible at the time of placing the contract to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence.

1-1 Employment by the Government JAN 2003

(a) The contractor covenants that throughout the term of this contract no contractor employee who performs ser-vices under this contract will be an officer or employee of the government of the United States.

(b) If the contractor be an individual, the contractor covenants that throughout the term of this contract the indi-vidual will not be or become an officer or employee of the government of the United States. If during the term of contract the contractor intends to become an officer or employee of the government, the contractor shall ad-vise the contracting officer in writing of such intentions so appropriate measures may be taken.

(c) If the contractor be other than an individual, the contractor covenants that throughout the term of this con-tract no partner, principal, officer, stockholder, or other person having a financial interest in the contractor or the ability to control the contractor, directly or indirectly, will be or become an officer or employee of the gov-ernment of the United States. The status of a stockholder as an officer or employee of the government of the United States will not constitute a violation of this subsection if the stock of the contractor is traded publicly over the counter or on a regional or national stock exchange.

(d) For purposes of subsection (c), a business or partnership interest or stock owned by a spouse, child, or parent of an officer or employee of the government of the United States shall be deemed to be owned by such officer or employee.

(e) The violation of any subsection of this section will constitute a material breach for which the judiciary may seek any and all remedies under the contract, including terminations.

(END)

H.2 Commercial Agreements Unenforceable Terms and Conditions

When any supply or service acquired under this Blanket Purchase Agreement (BPA) is subject to a commercial agreement (Vol 14 § 540), the following language shall be deemed incorporated into the commercial agreement.

As used herein, “this agreement” means the commercial agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instru-mentality of the judiciary, the following shall apply:

(i) Applicability. This agreement is a part of a BPA, contract, or order between the commercial sup-plier and the judiciary for the acquisition of the supply or service that necessitates a license or other similar leg-al instrument (including all contracts, orders, BPA Calls, and Government Purchase Card orders).

(ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a judiciary employee or person acting on behalf of the judiciary in their personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the judiciary to the laws of a U.S. state, U.S. territory, dis-trict, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

USCA22R0092 - Page 9 of 28

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by Clause 7-235 Disputes is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by Clause 7-235 Disputes in relation to a dispute is hereby deleted.

(iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or sus-pend any rights granted to the judiciary except as allowed by this BPA, contract, or order. If the supplier or li-censor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Clause 7-235 Disputes while continuing performance.

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or re-lating to this agreement, a binding arbitration shall not be used unless specifically authorized by judiciary guid-ance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the judiciary only when explicitly provided by statute.

(vi) Updating terms.

(A) After award, the AO may unilaterally revise commercial agreement terms: if they are not ma-terial. A material change is defined as:

(1) Terms that change judiciary rights or obligations;

(2) Terms that increase judiciary prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other judiciary right addressed elsewhere in this BPA, contract, or call.

(B) For revisions that will materially change the terms of the BPA, contract, or order, the revised commercial agreement must be incorporated into the BPA, contract, or order using a bilateral modification.

(C) Any agreement license terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this BPA, contract, or order shall not be enforceable against the judiciary, and the judiciary shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Contract Of-ficer.

(viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying judiciary BPA, contract, or order or order.

(B) This charge, if disputed by the judiciary, will be resolved in accordance with Clause 7-235 Disputes; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dis-

USCA22R0092 - Page 10 of 28 pute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the judiciary.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the judiciary as the end user will be governed by the terms of the underlying judiciary BPA, con-tract, or order and, in any event, must be submitted to the Contracting Officer for a determination of applicabil-ity prior to invoicing unless specifically agreed to otherwise in the judiciary BPA, contract, or order.

(xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations there-under be delegated, without the judiciary's prior approval, except as expressly permitted under subparagraph (b) of this clause.

(xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the BPA, contract, or order price list, as applicable, shall be deemed “confidential information.” Although the Freedom of Information Act (FOIA) does not apply to the judiciary, as a matter of policy, and to the extent that it is in the best interest of the judiciary, procurement docu-ments that would be released under FOIA may be released upon request including issues regarding release of “unit pricing.” Notwithstanding anything in this agreement to the contrary, the judiciary may retain any confid-ential information as required by law, regulation, policy or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will con-tinue to be subject to the confidentiality obligations of this agreement.

H-3 Continuity of Operations

In the event of an emergency, disaster, or situation requiring Continuity of Operations (COOP), the Contractor shall continue to provide support under the task order at a contractor facility and/or alternate location(s). Not all contractor personnel positions shall be required to provide support during a COOP event. Only contractor per-sonnel positions performing "Essential Functions” shall be required to provide support during a COOP event.

Upon award of the task order, the COR will provide the contractor with a list of those functions determ-ined “Essential” under the task order. The Contractor shall develop, maintain and update as necessary a COOP Plan. Within 45 calendar days after task order award, the Contractor shall finalize and submit its COOP Plan for COR approval. The COOP Plan shall describe what measures will be implemented to address the Contract-or’s immediate and ongoing response capability. In addition, the COOP Plan shall describe how implemented measures will mitigate all foreseeable risks and ensure continued support during an immediate response and subsequent recovery period. The Contractor shall provide to the Government any estimated cost(s) which may be incurred beyond any provisions the Government may have previously provided to enable remote work.

Section I - Contract Clauses

Clause(s) Incorporated By Reference, see Clause B-5 Clause Title Date

1-10 Gratuities or Gifts JAN 2010

1-15 Disclosure of Contractor Information to the Public AUG 2004

2-55 Privacy or Security Safeguards JAN 2003

2-95 Material Requirements JAN 2003

3-105 Audit and Records APR 2011

3-205 Protest after Award JAN 2003

USCA22R0092 - Page 11 of 28

3-25 Protecting the Judiciary's Interest When Subcontracting with

Contractors Debarred, Suspended, or Proposed for Debarment

JUN 2014

3-300 Registration in the System for Award Management (SAM) APR 2013

3-35 Covenant Against Contingent Fees JAN 2003

3-40 Restrictions on Subcontractor Sales to the Judiciary JUN 2014

3-45 Anti-Kickback Procedures JUN 2012

3-50 Cancellation, Rescission, and Recovery of Funds for Illegal or

Improper Activity

JUN 2012

3-55 Price or Fee Adjustment for Illegal or Improper Activity JUN 2012

6-40 Federal, State, and Local Taxes JAN 2003

7-100A Limitation of Liability (Products) JAN 2003

7-110 Bankruptcy JAN 2003

7-130 Interest (Prompt Payment) JAN 2003

7-135 Payments APR 2013

7-140 Discounts for Prompt Payment JAN 2003

7-150 Extras JAN 2003

7-185 Changes APR 2013

7-195 Excusable Delays JAN 2003

7-20 Security Requirements APR 2013

7-210 Payment for Emergency Closures APR 2013

7-215 Notification of Ownership Changes JAN 2003

7-220 Termination for Convenience of the Judiciary (Fixed Price) JAN 2003

7-230 Termination for Default - Fixed-Price Products and Services JAN 2003

7-235 Disputes JAN 2003

7-25 Indemnification AUG 2004

7-30 Public Use of the Name of the Federal Judiciary JUN 2014

2-50 Continuity of Services JAN 2003

7-40 Judiciary-Contractor Relationships JAN 2003

7-205 Payment for Judiciary Holidays APR 2013

1-5 Conflict of Interest AUG 2004

7-85 Examination of Records JAN 2003

7-100B Limitation of Liability (Services) JAN 2003

7-170 Notice of Intent to Disallow Costs JAN 2003

USCA22R0092 - Page 12 of 28

7-185 Alt I Changes APR 2013

2-140 Judiciary IT Security Standards APR 2013

3-120 Order of Precedence JAN 2003

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following or-der:(1) the schedule (excluding the specifications);(2) representations and other instructions;(3) the solicitation/ contract provisions and clauses;(4) other documents, exhibits, and attachments;(5) the specifications.

(END)

B-5 Clauses Incorporated by Reference OCT 2010

This procurement incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the contracting officer will make their full text available. Also, the full text of a clause may be accessed electronically at this address:

http://www.uscourts.gov/procurement.aspx.

(END)

4-30 Payment (Time-and-Materials and Labor-Hour Contracts) APR 2011

(a) The judiciary will pay the contractor as follows upon submission of invoices or vouchers approved in writ-ing by the contracting officer or the contracting officer's authorized representative:

(1) Hourly rate.

(i) Hourly rate means the rate(s) prescribed in the contract for payment for labor that meets the labor category qualifications of a labor category specified in the contract that are --

• Performed by the contractor;

• Performed by subcontractors; or

• Transferred between divisions, subsidiaries, or affiliates of the contractor under a common control.

(ii) The amounts will be computed by multiplying the appropriate hourly rates prescribed in the contract by the number of direct labor hours performed.

(iii) The hourly rates shall be paid for all labor performed on the contract that meets the labor qualifications specified in the contract. Labor hours incurred to perform tasks for which labor qualifications were specified in the contract will not be paid to the extent the work is performed by employees that do not meet the qualifica-tions specified in the contract, unless specifically authorized by the contracting officer.

(iv) The hourly rates will include wages, indirect costs, general and administrative expense, and profit. Frac-tional parts of an hour will be payable on a prorated basis.

(v) Vouchers may be submitted once each month (or at more frequent intervals if approved in writing by the contracting officer). The contractor will substantiate vouchers (including any subcontractor hours reimbursed at the hourly rate in the contract) by evidence of actual payment and by -

(A) individual daily job timekeeping records;

(B) records that verify the employees meet the qualifications for the labor categories specified in the con-tract; or

(C) other substantiation approved in writing by the contracting officer.

(vi) Promptly after receipt of each substantiated voucher, the judiciary will, except as otherwise provided in this contract, and subject to the terms of paragraph (e) of this section, pay the voucher as approved by the con-tracting officer or authorized representative.

(vii) Unless otherwise prescribed in the contract, the contracting officer may unilaterally issue a contract modi-fication requiring the contractor to withhold amounts from its billings until a reserve is set aside in an amount that the contracting officer considers necessary to protect the judiciary's interests. The contracting officer may require a withhold of five percent of the amounts due under paragraph (a) of this clause, but the total amount withheld for the contract may not exceed $50,000. The amounts withheld will be retained until the contractor

USCA22R0092 - Page 13 of 28 executes and delivers the release required by paragraph (g) of this clause.

(viii) Unless the contract prescribes otherwise, the hourly rates in the contract will not be varied by virtue of the contractor having performed work on an overtime basis. If no overtime rates are provided in the contract and overtime work is approved in writing in advance by the contracting officer, overtime rates may be negotiated.

Failure to agree upon these overtime rates will be treated as a dispute under the Disputes clause of this contract.

If the contract provides rates for overtime, the premium portion of those rates will be reimbursable only to the extent the overtime has been approved in writing in advance by the contracting officer.

(b) Materials.

(1) For the purposes of this clause -

(i) Direct materials means those materials that enter directly into the end product, or that are used or consumed directly in connection with the furnishing of the end product or service.

(ii) Materials means -

(A) Direct materials, including supplies transferred between divisions, subsidiaries, or affiliates of the contract-or under a common control;

(B) Subcontracts for supplies and incidental services for which there is not a labor category specified in the contract;

(C) Other direct costs (e.g., incidental services for which there is not a labor category specified in the contract, travel, computer usage charges, etc.); and

(D) Applicable indirect costs.

(2) If the contractor furnishes its own materials that meet the definition of commercial item in the Guide to Judi-ciary Policy's Glossary of Procurement Terms, the price to be paid for such materials must not exceed the con-tractor's established catalog or market price, adjusted to reflect the quantities being acquired; and actual cost of any modifications necessary because of contract requirements.

(3) Except as provided for in paragraph (b)(2) of this clause, the judiciary will reimburse the contractor for al-lowable cost of materials provided the contractor -

(i) has made payments for materials in accordance with the terms and conditions of the agreement or invoice; or

(ii) ordinarily makes these payments within 30 days of the submission of the contractor's payment request to the judiciary and such payment is in accordance with the terms and conditions of the agreement or invoice.

(4) Payment for materials is subject to Clause 4-60, Allowable Cost and Payment.

(5) The contractor may include allocable indirect costs and other direct costs to the extent they are --

(i) comprised only of costs that are clearly excluded from the hourly rate;

(ii) allocated in accordance with the contractor's written or established accounting practices; and

(iii) indirect costs are not applied to subcontracts that are paid at the hourly rates.

(6) To the extent practicable, the contractor shall --

(i) obtain materials at the most advantageous prices available, with due regard to securing prompt delivery of satisfactory materials; and

(ii) take all cash and trade discounts, rebates, allowances, credits, salvage, commissions, and other benefits.

When unable to take advantage of the benefits, the contractor shall promptly notify the contracting officer and give the reasons. The contractor shall give credit to the judiciary for cash and trade discounts, rebates, scrap, commissions, and other amounts that have accrued to the benefit of the contractor, or would have accrued ex-cept for the fault or neglect of the contractor. The contractor shall not deduct from gross costs the benefits lost without fault or neglect on the part of the contractor or lost through fault of the judiciary.

(7) The judiciary will not pay profit or fee to the prime contractor on materials, except when reimbursing for commercial items under paragraph (b)(2) above.

(c) If the contractor enters into any subcontract that requires consent under Clause 7-75, Subcontracts, without obtaining such consent, the judiciary is not required to reimburse the contractor for any costs incurred under the subcontract prior to the date the contractor obtains the required consent. Any reimbursement of subcontract costs incurred prior to the date the consent was obtained shall be at the sole discretion of the judiciary.

(d) Total cost. It is estimated that the total cost to the judiciary for the performance of this contract shall not ex-ceed the ceiling price set forth in the contract, and the contractor agrees to use its best efforts to perform the work specified in the contract and all obligations under this contract within such ceiling price. If at any time the contractor has reason to believe that the hourly rate payments and material costs that will accrue in performing the contract in the next succeeding 30 days, if added to all other payments and costs previously accrued, will ex-ceed 85 percent of the ceiling price in the contract, the contractor shall notify the contracting officer, giving a

USCA22R0092 - Page 14 of 28 revised estimate of the total price to the judiciary for performing this contract with supporting reasons and docu-mentation. If at any time during the performance of this contract, the contractor has reason to believe that the total price to the judiciary for the performance of this contract will be substantially greater or less than the then stated ceiling price, the contractor shall so notify the contracting officer, giving a revised estimate of the total price for performing this contract, with supporting reasons and documentation. If at any time during the per-formance of this contract, the judiciary has reason to believe that the work to be required in performing this con-tract will be substantially greater or less than the stated ceiling price, the contracting officer will advise the con-tractor, giving the then revised estimate of the total amount of effort to be required under the contract.

(d) Ceiling price. The judiciary will not be obligated to pay the contractor any amount in excess of the ceiling price in the contract, and the contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the contract, unless and until the contracting officer notifies the contractor in writ-ing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth in the contract has been increased, any hours expended and material costs incurred by the contractor in excess of the ceiling price before the increase will be allowable to the same extent as if the hours expended and material costs had been incurred after the increase in the ceiling price.

(e) Audit. At any time before final payment under this contract the contracting officer may request audit of the invoices or vouchers and supporting documentation. Each payment previously made will be subject to reduction to the extent of amounts, on preceding invoices or vouchers, that are found by the contracting officer or author-ized representative not to have been properly payable and will also be subject to reduction for overpayments or to increase for underpayments. Upon receipt and written approval of the voucher or invoice designated by the contractor as the "completion voucher" or "completion invoice" and supporting documentation, and upon com-pliance by the contractor with all terms of this contract (including, without limitation, terms related to patents and the terms of paragraph (g) of this clause), the judiciary will promptly pay any balance due the contractor.

The completion invoice or voucher, and supporting documentation, shall be submitted by the contractor as promptly as practicable following completion of the work under this contract, but in no event later than one year (or such longer period as the contracting officer may approve in writing) from the date of completion.

(g) Assignment and Release of Claims. The contractor, and each assignee under an assignment entered into un-der this contract and in effect at the time of final payment under this contract, shall execute and deliver, at the time of and as a condition precedent to final payment under this contract, a release discharging the judiciary, its officers, agents, and employees of and from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions:

(1) specified claims in stated amounts, or in estimated amounts if the amounts are not susceptible of exact state-ment by the contractor;

(2) claims, together with reasonable incidental expenses, based upon the liabilities of the contractor to third parties arising out of performing this contract, that are not known to the contractor on the date of the execution of the release, and of which the contractor gives notice in writing to the contracting officer not more than 6 years after the date of the release or the date of any notice to the contractor that the judiciary is prepared to make final payment, whichever is earlier; or

(3) claims for reimbursement of costs (other than expenses of the contractor by reason of its indemnification of the judiciary against patent liability), including reasonable incidental expenses, incurred by the contractor under the terms of this contract relating to patents.

(END)

410-35 Fixed-Price Resource Units Contracts (Deviation)

§ 410.35.10 Description A fixed-price resource units contract establishes a fixed price per unit of measure. Unless otherwise specified in the contract, the unit prices are subject to downward adjustment only, with such adjustments based on changes to the contractor’s commercial catalog pricing. The contracting officer may use fixed-price resource units con-tracts when acquiring consumption-based solutions.

4-95 Monitoring and Using Consumption-Based Solutions (Deviation)

(a) The Contractor shall measure/meter consumption of awarded line items and their associated price, and

USCA22R0092 - Page 15 of 28 provide reports of such consumption to the Contracting Officer no less than monthly. More frequent reporting, up to and including real-time consumption information, is preferred when available through an online user con-sole or similar capability.

(b) The Contractor shall notify the Contracting Officer when consumption reaches 75 percent and 90 percent of the funded amount of the allocable contract line item.

(c) The Government will not be obligated to pay the Contractor any amount in excess of the allocable contract line items funded amounts, and the Contractor shall not be obligated to continue performance if to do so would exceed the allocable contract line-item funded amount.

(End of Clause)

4-100 Prices and New Services for Consumption-Based Solutions. (Deviation)

(a) If during contract performance the Contractor lowers prices in its publicly available commercial catalog for any awarded services or features, Contractor shall within 30 calendar days notify the Contracting Officer and begin using the lower price(s) on this contract or order, taking into account any discounts, premiums, or fees consistent with the terms and conditions of the contract, unless specifically negotiated otherwise. The Contract-or may offer new or additional discounts at any time.

(End of Clause)

6-65 Rights in Data-Special Works JAN 2010

(a) Definitions. As used in this clause:

"Data" means recorded information, regardless of form or the media on which it may be recorded. The term in-cludes technical data and computer software. The term does not include information incidental to contract ad-ministration, such as financial, administrative, cost or pricing, or management information.

"Unlimited rights" means the rights of the judiciary to use, disclose, reproduce, prepare derivative works, dis-tribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

(b) Allocation of Rights.

(1) The judiciary shall have:

(i) unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract, except as provided in paragraph (c) of this clause;

(ii) the right to limit assertion of copyright in data first produced in the performance of this contract, and to ob-tain assignment of copyright in that data, in accordance with paragraph (c)(1) of this clause;

(iii) the right to limit the release and use of certain data in accordance with paragraph (d) of this clause.

(2) The contractor shall have, to the extent permission is granted in accordance with paragraph (c)(1) of this clause, the right to assert claim to copyright subsisting in data first produced in the performance of this contract.

(c) Copyright:

(1) Data first produced in the performance of this contract

(i) The contractor shall not assert or authorize others to assert any claim to copyright subsisting in any data first produced in the performance of this contract without prior written permission of the contracting officer. When copyright is asserted, the contractor shall affix the appropriate copyright notice of 17 U.S.C. 401 or 402 and ac-knowledgment of judiciary sponsorship (including contract number) to the data when delivered to the judiciary, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. The contractor grants to the judiciary, and others acting on its behalf, a paidup, nonexclusive, irrevoc-able, worldwide license for all delivered data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the judiciary.

(ii) If the judiciary desires to obtain copyright in data first produced in the performance of this contract and per-mission has not been granted as set for in paragraph (c)(1)(i) of this clause, the contracting officer shall direct the contractor to assign (with or without registration), or obtain the assignment of, the copyright to the judiciary

USCA22R0092 - Page 16 of 28 or its designated assignee.

(2) Data not first produced in the performance of this contract. The contractor shall not, without prior written permission of the contracting officer, incorporate in data delivered under this contract any data not first pro-duced in the performance of this contract and that contain the copyright notice of 17 U.S.C. 401 or 402, unless the contractor identifies such data and grants to the judiciary, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause.

(c) Release and use restrictions. Except as otherwise specifically provided for in this contract, the contractor shall not use, release, reproduce, distribute, or publish,any data first produced in the performance of this con-tract, nor authorize others to do so, without written permission of the contracting officer.

(d) Indemnity. The contractor shall indemnify the judiciary and its officers, agents, and employees acting for the judiciary against any liability, including costs and expenses, incurred as the result of the violation of trade secrets, proprietary rights, copyrights, or right of privacy or publicity, arising out of…