Solicitation Concessionaire Contract Vogelwegh Bowling Center.pdf

Vogelweh Bowling Center Concessionaire Contract

1. Contractual Contents.

Signature Page Page 1

Schedule Page 2

Contract Terms and Conditions Page 3

Special Provisions Page 6 - 8

NAF Standard Clauses Attachment 1

Performance Work Statement Attachment 2

Equipment List Attachment 3

FOR THE NAFI: FOR THE CONTRACTOR:

Type or Print Name Type or Print Name

Signature of Contracting Officer Signature of Contractor

Date Date

SCHEDULE

Performance Period Minimum Remuneration Proposed Remuneration to NAFI

01 Basic Period:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

02 First Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

03 Second Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

04 Third Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

05 Fourth Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

06 Fifth Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

07 Sixth Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

08 Seventh Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

09 Eighth Option:

19% of gross sales or $2,000.00 per month, whichever is greater

___% of gross sales or $_____ per month, whichever is greater

NOTE TO OFFERORS: YOUR OFFER MUST BE FILLED IN ON THE SCHEDULE

This Contract will be made and entered into by and between the 700th Contracting Squadron, Kapaun Air

Station on behalf of 86th Force Support Squadron, Vogelweh Air Base Bowling Center, hereinafter called the nonappropriated fund instrumentality (NAFI), and __________________________ hereinafter called the

Concessionaire. The NAFI is a Nonappropriated Fund Instrumentality of the Department of the Air Force, and as such, no appropriated funds of the United States of America shall become due or be paid to the

Concessionaire by reason of this Contract. In consideration of the agreements set forth and the payments to be made as stipulated, it is mutually agreed between the parties hereto:

1. Concessionaire will operate an American Style Snack Bar as described in the Statement of Work to authorized patrons at assigned space at building 2060 for the period, beginning 1 April 2025 or date of award, whichever is earlier and ending 31 March 2026 with nine (9) options to extend (see schedule).

2. For its services provided to the NAFI, the Concessionaire will receive the monthly gross sales minus the remuneration to the NAFI as listed in the below schedule of this contract. The NAFI shall retain the predetermined remuneration as mentioned in the schedule as well as applicable credit card expenses.

Payment of fees due to the NAFI shall be made in Dollars by close of business each day of performance.

Payment to the Concessionaire will be made via electronic funds transfer within 10 days after receipt of the invoice and VAT relief form from the Concessionaire. Up to two (2) payments per month may be requested by the concessionaire.

3. The Concessionaire must:

a. Provide products or services of a quality satisfactory to the NAFI manager or their duly authorized representative.

b. Before beginning performance under this agreement, the Concessionaire will submit a listing of items, with corresponding selling prices, to the Contracting Officer for approval or disapproval action. The final approved listing is considered part of this agreement. Place the price list in a conspicuous spot for patrons to see.

c. At Concessionaire's expense, obtain all permits, give all necessary notices; pay all license fees; and comply with all municipal, prefectural, and national laws, rules, ordinances, and regulations, and any publication published by the military relating to public health or applicable to the business carried on under this agreement and assume complete and sole liability for all national, state, and local taxes applicable to the property, income, and transactions of the concession.

d. Comply with all applicable laws pertaining to wages, worker's compensation, equal opportunity, Service Contract Labor Standards Act, and so forth, as implemented by Air Force directives and required by law.

e. Comply with all memoranda, bulletins, and letters of instruction issued by or on behalf of the NAFI manager or their duly authorized representative.

f. Keep the concession area clean, orderly, attractive, secure, and in a safe and sanitary condition to the satisfaction of the NAFI manager.

g. Employ only persons who meet the health standards prescribed by law or regulations, which pertain to the jobs for which they are hired.

h. Furnish a sufficient number of trained employees for the efficient performance of this Concessionaire contract. Concession personnel must meet the health and security standards prescribed by applicable regulations and must obtain installation passes and permits and security clearances as applicable.

Concession personnel must give prompt and courteous treatment to authorized customers.

Concession personnel must be neatly dressed and meticulous in their personal grooming at all times.

Concessionaire provides employees clean uniforms or, when uniforms are not required, ensures that all clothing worn by employees is always clean and in good condition. A nameplate must be worn.

All personnel will receive Alcohol and Bystander Awareness Briefing, as well as Dram Shop

Training as scheduled and conducted by the NAFI.

i. Remove from employment in the concession, on the request of the NAFI manager, any servant, agent, or employee of the Concessionaire if, in the opinion of the NAFI manager or their duly authorized representative, the conduct of such person, while in and about the premises covered by this contract interferes with proper services or discipline.

j. Obtain insurance for all non-Government property and merchandise used by the Concessionaire in the operation of the concession against theft, fire, storm, flood, and damage, or destruction through any other force of nature; or in lieu thereof, to relieve the NAFI from any liability arising from such theft, loss, damage, or destruction. The Concessionaire must have liability insurance commensurate with the risks involved and furnish proof of such to the Contracting Officer.

k. Not leave cash on the premises during non-operational hours.

l. Be responsible for paying all operating expenses not expressly undertaken by the NAFI.

m. Maintain a Cash Collection Record, showing all income received, in accordance with instructions from the NAFI. Any failure by the Concessionaire, its servants, employees, or agents, to enter all monies received on control sheets will be cause for immediate cancellation of this contract.

4. Concessionaire will not:

a. Represent or permit itself to be represented to the public as an agent or employee of the NAFI by the use of the name of the NAFI on letters, bills, signs, or by any other means. The Concessionaire, its servants, agents, and employees, are in no sense agents of the United States, the NAFI, the commander of the installation within which the concession exists, or of any other entity having to do with the operations of the NAFI.

b. Sell or remove any property that is owned by the NAFI or any other part of the Federal Government and is used in the operation of the concession.

c. Engage in or permit gambling or possession or use of any gambling device on the concession premises or elsewhere on the installation.

d. Sell, deal in, or otherwise possess or transfer, on the concession premises, powdered alcohol or narcotics.

e. Loan money to or borrow money from customers or others, which includes Federal Government

(including NAFI) employees and military personnel.

f. Sell merchandise or services for anything other than US currency, unless authorized in writing by the

Contracting Officer.

g. Sell merchandise or services on credit.

h. Give or offer to any officer or employee of the NAFI, or any other part of the Federal Government, any gift, privilege, special benefit, discount, or anything else of material or personal nature whereby the individual or employee would receive preferential treatment.

2. General

a. Air Force Auditor General personnel, Public Accountant Contract Audit personnel or any person designated by the installation commander, will have the right to inspect or audit the accounts and methods of internal control established by Concessionaire, and to make such inspection or audits as may be considered necessary to ensure strict compliance by Concessionaire with all provisions of this contract and with applicable Air Force regulations.

b. This contract, unless sooner terminated as herein provided, may be extended for additional periods, each of which may not exceed twelve (12) months by mutual agreement of the parties in writing, subject to approval in the same manner as this instrument. In no event will this contract exceed ten years.

c. This contract is automatically terminated in the event the NAFI is dissolved.

d. Any monies due and payable to the NAFI from the Concessionaire on the date of this contract must be paid in full or will remain due and payable until final settlement.

SPECIAL PROVISIONS (Concessionaire Contract)

1. Additional Definitions. The terms Concessionaire and Contractor are used synonymously and mean the individual, partnership, corporation, or other entity which is a party to this contract and who is responsible for all actions and applicable regulations and performance thereunder.

2. Termination: Notwithstanding the clause titled "Termination for Convenience" of the General Provisions relative to termination of this Concessionaire contract, it is mutually agreed that this Concessionaire contract may be terminated in whole or in part by either party:

a. Immediately on written notice to the other party in the event of breach of this Concessionaire contract by the other party.

b. On 30-day notice in writing to the other party. No liability ensues to either party for terminations rendered pursuant to this subparagraph b.

3. Actions To Be Taken Upon Termination (Including Expiration). Concessionaire will promptly settle its account with the NAFI, including payment in full of all amounts due, yield up the facilities and all NAFI furnished property, clean and leave premises in as good order and condition as when received (exceptions are damages due to acts of God or the US Government, and ordinary wear and tear); surrender all installation passes, decals, and so forth, and complete satisfactory settlement of all customer complaints and claims. Termination of the Concessionaire contract does not release the Concessionaire from the obligation to satisfactorily settle customer complaints and claims. The Concessionaire will promptly remove all Concessionaire owned fixtures and supplies. On failure to remove the Concessionaire’s property, the Contracting Officer may cause Concessionaire’s property to be removed and stored in a warehouse at the Concessionaire’s expense. If the Concessionaire is indebted to the NAFI, the

Concessionaire authorizes and empowers the Contracting Officer to take possession of the

Concessionaire’s property and dispose of same by public sale without notice, and out of the proceeds of sale, satisfy all costs and indebtedness to NAFI.

4. Indebtedness:

a. The Concessionaire will pay promptly and in accordance with the terms all indebtedness incurred in connection with the performance of this Concessionaire contract.

b. The NAFI may charge the Concessionaire for a dishonored check received from the Concessionaire, except when the bank acknowledges the return to be the result of bank error or the return is the result of a NAFI error. The amount charged by the NAFI will not exceed the administrative amount normally charged NAFI customers for dishonored checks.

5. Packaging/Price Marking. If required by the Contracting Officer, the Concessionaire will furnish, at its own expense, suitable bags, "sold" labels, and so forth, for securing a customer’s purchase. If required, the packaging will be approved by the Contracting Officer. All items will be marked to reflect the selling price.

6. Claims by Concessionaire. No claim by the Concessionaire relating to this Concessionaire contract may be considered by the Contracting Officer unless such claim is submitted in writing to the Contracting Officer not later than 90 days after the effective date of termination or expiration of this Concessionaire contract.

This clause does not extend the period for filing claims where specifically limited by another clause.

7. Nonwaiver of Defaults. Any failure by the NAFI to enforce or require strict performance of any terms or conditions of this Concessionaire contract will not constitute a waiver and will not affect or impair such terms and conditions in any way or effect the right of the NAFI at any time to avail itself of such remedies as it may have for breach or breaches of such terms and conditions.

8. Trade Fixtures and Supplies. The Concessionaire will furnish, at its expense, all trade fixtures and supplies required for performance of this Concessionaire contract.

9. Quality/Warranty. All products authorized for the Concessionaire to sell will be marketable and sufficient for use intended, and not be "seconds" as the term is usually understood in the trade. All items will be acceptable to the customer and the Contracting Officer and will be subject to inspection and test for workmanship and quality at all times by the Contracting Officer or designee. Any item found to have a latent defect(s) may be returned to the Concessionaire for replacement or refund as determined by the

10. Customer Complaints, Claims, and Refunds. The Concessionaire agrees to adhere to the NAFI policy of customer satisfaction guaranteed and will be responsible for refunds to customers due to customer dissatisfaction with an item or due to overcharges. All customer complaints, claims, and refunds will be resolved and made at Concessionaire’s expense. Any disagreement that cannot be resolved between

Concessionaire and the customer will be referred to the Contracting Officer, whose decision will be final and not subject to the Disputes clause. If the Concessionaire fails to process complaints or claims and make refunds in a timely manner, the NAFI may settle customer complaints or claims and make such refunds and charge the settlement cost to Concessionaire’s account.

11. Internal Controls of Charge-Card Sales:

a. Concessionaire will establish internal control procedures consistent with provisions of this

Concessionaire contract and with NAFI directives for a complete and accurate accounting of all transactions.

b. Each sale will be recorded at the time sale is made. The form will be prepared in duplicate, reflecting the applicable sales data, and signed by the customer. The original of the completed form is attached to the Concessionaire Settlement Report and submitted to the supporting NAFI accounting office. The duplicate copy is retained by the Concessionaire.

c. Concessionaire may accept national charge cards customarily recognized in their commercial trade for customer payment of purchases. Concessionaire is responsible for the payment of any fees, charge backs, and other arranged costs levied by the charge-card-issuing companies.

d. The Contracting Officer, or designee, may conduct inspections considered necessary to ensure strict compliance by the Concessionaire with all provisions of this Concessionaire contract.

12. Concessionaire Settlement Report. At the conclusion of the sales period or as specified by the Contracting

Officer, Concessionaire will prepare a Concessionaire Settlement Report signed by the Concessionaire showing the gross sales for the period and percent due the NAFI and give the NAFI the fees due for that period. The original of the form reflecting sales data will be attached. AF Form 2555 is the preferred form to be used.

13. Utilities. The NAFI will furnish sufficient quantities of space, heat, water, and electricity to satisfy the normal needs of Concessionaire for lighting, heating, drinking, sanitation, and the operation of suitable support equipment.

NOTE: If the Concessionaire is required to reimburse the United States Government for utilities furnished, then the rates are set by the installation commander and agreed to by both parties.

14. Premises. The assignment of space is revocable and is not construed as the creation of tenancy.

Concessionaire is liable for any damage to or loss of the premises and NAFI furnished property or injury to persons resulting from acts or omissions of Concessionaire, its employees, or agents, whether or not covered by insurance. Sublet of any of the premises assigned or assignment to another concession is not authorized. Use of the premises and NAFI furnished property for any purpose other than those specifically set forth herein is prohibited. Concessionaire will not make any alterations in the facilities provided without prior authorization from the NAFI manager. Concessionaire will comply with installation fire and safety regulations, and applicable health and sanitation regulations. Concessionaire will post or display on the premises any sign furnished by the NAFI.

15. Taxes:

a. Concessionaire assumes complete and sole liability for all Federal, State, host country, and local taxes applicable to the property, income, and transactions of the Concessionaire, and where required by applicable laws and regulations, will collect and remit to the State applicable sales taxes. Sales taxes, which have been collected, are excluded from the computation of gross receipts in the determination of the fee payable to NAFI. The amount of taxes excluded will not exceed the actual sum payable to the State. Where required by State law or regulation, the Concessionaire will obtain and conspicuously display the State sales tax permit.

b. The Concessionaire warrants that the amount payable to the NAFI has not been reduced by the amount of any tax or duty from which the Concessionaire is exempt. If any such tax or duty has been included the pricing or consideration through error or otherwise, the contract pricing or consideration will be correspondingly reduced or adjusted. If for any reason after the contract date, the

Concessionaire is relieved in whole or in part from the payment or the burden of any tax or duty included in the contract pricing or other consideration, the contract pricing and other consideration will be correspondingly reduced or adjusted.

INSTRUCTIONS TO OFFERORS

SITE VISIT:

A site visit has been scheduled for 17 September at 0900 hours, where prospective contractors may inspect the area where services are to be performed and to satisfy themselves as to the general and local conditions that may affect the cost of performance of the contract, to the extent such information is reasonably obtainable.

Prospective contractors that are interested in attending the scheduled site visit must advise the contracting office five calendar days prior to the scheduled visit if they plan to attend, POC: Mr. Darrell Hafer, Email: darrell.hafer.2@us.af.mil & LT Richard Hirth Email:

richard.hirth.1@us.af.mil.

In no event will a failure to inspect the site constitute grounds for a claim after award of the contract. If site visits are to be made, contact 700th Contracting Squadron immediately upon receipt of the solicitation for an appointment to allow sufficient time for approval of base entry. The NAFI intends to conduct no more than one single site visit.

EVALUATION:

1. Technical Proposal: The Offeror shall submit documentation on experience and certifications as described below:

Certifications. The offeror shall submit documentation of business registration, experience and a bank certification stating the offeror has the financial capabilities for a minimum of €10,000.00 or the remuneration offered for the operation of the concession.

Offers must be submitted electronically, by email, to darrell.hafer.2@us.af.mil & richard.hirth.1@us.af.mil not later than 4 October 2024, at 16:00 hrs. (4:00 pm) CEST. All questions regarding this Request for Quote are due in writing by 1400 (2:00 PM) (CEST), 12 September 2024.

2. Technical Evaluation. Technical evaluation shall be on an acceptable/unacceptable basis.

Documentation will be evaluated to:

1. Verify proper business license,

2. Proof of experience,

3. Bank certifications,

4. Ability to obtain required insurance.

The Concessionaire must have liability insurance for bodily injury, death, and property damage commensurate with the risks involved and furnish proof of such to the Contracting Officer within 10 calendar days after award notification but prior to the first performance day of the contract. Documentation will be evaluated to determine if the offeror can show proof of at least thirty-six (36) months experience within the last five (5) years as a Food Concessionaire or in the local food industry.

3. Remuneration: For award purposes the offeror will be evaluated on the proposed remuneration in the schedule. The offeror must include the proposed remuneration for the basic year and each option year.

Failure to include proposed remuneration will exclude the offer from further consideration for award.

The Contracting Officer may require an offeror to provide additional information to establish the reasonableness of any price proposed. The offeror is responsible for researching the appropriate tax mailto:darrell.hafer.2@us.af.mil regulations and complying accordingly. Any offer may also be rejected if it does not meet the minimum remuneration: see schedule.

Award Process:

The Government intends to award to the highest remuneration, technically acceptable proposal.

Offerors are cautioned that all required proposal information must be received by the proposal due date to be considered for award.

As a minimum, offers must show:

a. The solicitation number,

b. The name, address and telephone number of the offeror;

c. A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation.

d. Acknowledgement of Solicitation Amendments.

ADDITIONAL INFORMATION

All correspondence shall be in English language. Offers other than in English language MAY NOT be considered for award.

Period for acceptance of offers: The offeror agrees to hold the prices in its offer firm for 60 calendar days from the date specified for receipt of offers, unless otherwise specified.

NONAPPROPRIATED FUND STANDARD CLAUSES

l. DEFINITIONS

As used throughout this contract, the following terms and abbreviations have the meanings set forth below:

a. Contract. An agreement that creates a legal obligation. The elements of a contract are a mutual agreement; between competent parties; for a legal purpose; involving the exchange of legal consideration; and that creates a mutuality of obligation to perform between the parties. The term contract, as used herein, includes without limitation, formal bilateral contracts, purchase orders, consignment sales agreements, amendments and modifications thereto, as well as other agreements entered into by an authorized Contracting Officer acting within his or her authority.

b. Contracting Officer. An individual delegated the authority to legally bind the NAFI by entering into, modifying, administering, and terminating contracts.

c. Contractor. Any legal entity that is awarded a contract. The Contractor is the party responsible for and agrees to furnish supplies and/or services at specified prices/rates and/or to pay the NAFI mutually agreed to commissions and/or fees in conjunction with providing services to NAFI customers under this contract. Contractor may include, but is not limited to the following terms "vendor," "seller,"

"supplier," “manufacturer,” “distributor,” “concessionaire” and/or "licensee."

d. Contracting Officer’s Representative (COR). An individual authorized in writing by a Contracting

Officer to monitor Contractor performance and/or help administer a contract, but does not have authority to legally bind the NAFI into any contractual or legal obligations. Definition applies to

Contracting Officer’s Technical Representative (COTR) and Alternate COR (ACOR).

e. Day. A day means, unless otherwise provided, a 24 hour period of time denoted as midnight to midnight of a calendar day, unless the last day of a specified number of days within which the contractor must file a claim or notice with the Contracting Officer falls on Saturday, Sunday or a federal holiday, in which case the last day shall be the next business day denoted as Monday through

Friday.

f. Nonappropriated Fund Instrumentality (NAFI). A DoD organizational and fiscal entity supported in whole or in part by Nonappropriated Funds. A NAFI, as an instrumentality of the U.S. Government, enjoys the same immunities and privileges as the U.S. Government in the absence of specific Federal statute. It is not incorporated under the law of any State, but has the legal status of an instrumentality of the United States. References to United States, the Government, and other related references will generally be implied to mean the NAFI throughout this contract.

2. LEGAL STATUS

The Nonappropriated Fund Instrumentality (NAFI), which is party to this contract, is an integral part of the

Department of Defense and is an instrumentality of the United States Government.

No appropriated funds of the United States shall become due or be paid the Contractor by reason of this contract.

3. CLAIMS, PROTESTS & APPEALS

a. This contract is not subject to the Contract Disputes Act of 1978 (41 U.S.C. 7101-7109), and therefore, not subject to the jurisdiction of the Government Accountability Office (GAO), except when issued by an Appropriated Fund buying office. Disputes arising under or relating to this contract shall be resolved under this clause IAW DoDI 4105.67 and DAFMAN 64-119. When the contract is issued by an Appropriated Fund buying office, disputes shall be resolved by the Appropriated Fund buying office dispute procedures.

b. Protests and/or protest appeals shall be filed with the Contracting Officer that issued the contract, or other designated authority, in strict accordance with the procedures and timelines in DAFMAN 64-

119.

c. "Claims," as used in this clause, means the inability of a Contractor and the Contracting Officer to reach a mutual agreement related to contractual issues in controversy resulting in the filing of a written demand or assertion seeking payment of money, adjustment or interpretation of contract, or other relief, and issuance of a Contracting Officer’s final decision. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under this clause. The submission may be converted to a claim under this clause, by complying with the submission requirements of this clause. If it is disputed either as to liability or amount or is not acted upon in a reasonable time.

(1) A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the NAFI against the Contractor shall be subject to a written decision by the Contracting Officer.

(2) For Contractor claims exceeding $100,000, the Contractor shall submit with the claim a certification that contains the following statement: “Subject to the False Claims Act, 31 USC 3729, I certify the claim is made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the NAFI is liable; and that I am duly authorized to certify on behalf of the Contractor.”

(3) For contract claims of less than $100,000, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor-certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the

Contractor of the date by which the decision will be made.

d. The Contracting Officer’s decision shall be final unless the contractor appeals as provided in paragraph

(d) of this clause.

(1) The Contracting Officer’s final decision on claims may be appealed by submitting a written appeal to Armed Services Board of Contract Appeals with a copy to the Contracting Officer, within 90 days of receipt of the Contracting Officer’s final decision. Decisions of the Armed Services Board of Contract Appeals are final, but certain claims may be subject to the jurisdiction of the U.S.

Court of Federal Claims.

(2) The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.

4. REPRESENTATIONS

a. This written contract, including identified attachments, enclosures and documents incorporated by reference, is the entire agreement between the parties. The NAFI will not be bound by any oral or written representation not included or incorporated in the written contract or a written modification thereto. The NAFI will not be bound by any terms on Contractor forms or letters unless such terms are specifically agreed to and incorporated in the contract and signed by the Contracting Officer. Except as otherwise specifically provided in this contract, all additions, changes or deletions to this contract must be prepared in writing as a modification and signed either unilaterally by the Contracting Officer or bilaterally by both parties in accordance with applicable regulations.

b. The Contractor shall not represent itself to be an agent or representative of the NAFI or any other agency or instrumentality of the United States.

5. ADVERTISEMENTS

The Contractor shall not represent in any manner, expressly or by implication, that items or services purchased or sold under this contract are approved or endorsed by any element of the

U.S. Government, including the NAFI. All Contractor advertisements that refer to the NAFI or a NAFI activity will contain a statement that the advertisement was neither paid for nor sponsored, in whole or in part, by the U.S. Government or the NAFI.

6. EXAMINATION OF RECORDS

a. The Contractor agrees that the Contracting Officer or a duly authorized representative(s) shall have the right to examine and audit the books and records of the Contractor directly pertaining to the contract during the period of the contract and until expiration of three (3) years after the final payment under the contract.

b. The Contractor shall include this clause in all subcontracts.

7. HOLD AND SAVE HARMLESS

The Contractor agrees to indemnify and hold harmless the NAFI and any other agency or instrumentality of the United States, and their officers, agents, and employees, from any loss, expense, damage, injury, claim, suit or judgment (including administrative actions taken against the NAFI by other federal, state or local agencies) arising from the Contractor’s (employees, agents or subcontractors) acts or omissions or the items/services provided pursuant to the contract (including any patent, copyright, or trademark infringement claimed by a third party in connection with the items/services provided by the contractor). Nothing contained herein, however, shall relieve or be construed as relieving the NAFI or any other agency or instrumentality of the United States from any liability resulting from its negligence.

8. INSURANCE

a. The Contractor shall, at its own expense, provide and maintain during the entire performance period of this contract at least the insurance coverage as stated in this contract. In no event shall the coverage be less than the minimum requirements established by applicable state and local regulations and laws for the risk associated with the services to be provided by the contract. The Contractor shall be fully responsible to the NAFI for errors and omissions of its associates and subcontractors under this contract.

b. The Contractor shall furnish to the Contracting Officer a current certificate of insurance prior to the commencement of performance under the contract. The “INSURED” block of the Certificate of

Insurance must list both the Contractor’s name (or Contractor’s d.b.a. name) / and the contract number.

The Certificates of Insurance shall evidence that all lines of insurance coverage required by the contract are in effect, and that not less than thirty (30) days prior written notice shall be provided to the

Contracting Officer in the event of modification, cancellation, or non-renewal of any portion of the insurance coverage(s). All certificates of insurance must list the NAFI as the certificate holder, name the NAFI and the United States as additional insureds, and carry an endorsement waiving the

Contractor’s rights to subrogation against the NAFI and the United States.

9. PROCUREMENT INTEGRITY

By submission of an offer or performance of this contract, the offeror or Contractor certifies with respect to this NAFI contract action:

a. That no discussion, offer, or promise of future employment or business opportunity has nor will be made to NAFI civilian or military personnel who personally and substantially participated in the contract action.

(1) That no offer, promise, or gift of any gratuity, entertainment, money, or other thing of value has nor will be made to any NAFI civilian or military personnel or any other employee of the

NAFI or member of their family or household.

(2) That no information proprietary to other offerors or other contracting information (offeror list, prices offered, technical evaluations, rankings, etc.) is sought or obtained until it is available to the public under NAFI procedures.

(3) That no person or selling agency has been employed or retained to secure this contract for a commission, percentage, brokerage, or contingent fee except bona fide employees or bona fide established commercial selling agencies retained by the Contractor for the purpose of securing business.

b. The Contractor certifies that no gratuities (entertainment, gifts, money, kickbacks, or other things of value) were nor will be solicited or accepted by the Contractor or Contractor representative, nor from any Subcontractor or Subcontractor representative, for the purpose of obtaining or rewarding favorable treatment in connection with this contract or any subcontract under it.

c. The Contractor will report in writing to the Contracting Officer any possible violation of this clause when there are reasonable grounds to believe a violation may have occurred. The Contractor will cooperate fully with any federal agency investigation of a possible violation of this clause.

d. For breach of any of these certifications, the NAFI may terminate this contract for default, and/or deduct from amounts due under this or other contracts, or charge the Contractor for the total value of any contingent fee, gratuity, kickback or other loss to the NAFI arising out of the breach.

10. ASSIGNMENT OF CLAIMS

The Contractor cannot assign any right or delegate any obligations under this contract without the prior written permission of the Contracting Officer.

11. TERMINATION FOR CONVENIENCE

The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the best interest of the NAFI. If this contract is for supplies and is so terminated, the Contractor shall be compensated in accordance with FAR, Sub Parts 49.1 and 49.2 in effect on this contract's date. To the extent that this contract is for services and is so terminated, the NAFI shall be liable only for payment in accordance with the payment clauses of this contract for services rendered prior to the effective date of termination, providing there are no Contractor claims covering nonrecurring costs for capital investment. If there are any such Contractor claims, they shall be settled in accordance with FAR, Sub Parts 49.1 and 49.2.

12. CANCELLATION BY MUTUAL AGREEMENT

Should the situation warrant, the parties upon mutual agreement and no costs, may cancel this contract without further recourse to the other and mutual release of any further obligations.

13. TERMINATION FOR CAUSE

a. The NAFI may, subject to paragraphs c. and d. below, by written notice of cause to the Contractor, terminate this contract in whole or in part if the Contractor fails to-

(1) Deliver the supplies or perform the service within the time specified within this contract or any extension;

(2) Make progress, so as to endanger performance of this contract (however, see paragraph b. below);

or

(3) Perform any of the other clauses of this contract (however see paragraph b. below).

b. The NAFI's right to terminate this contract under paragraph a.2., and a.3. above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the

Contracting Officer) after receipt of notice from the Contracting Officer specifying the failure.

c. If the NAFI terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will remain liable to the NAFI for any excess costs for those supplies or services.

However, the Contractor must continue the work not terminated.

d. Defaults by subcontractors at any tier for any reason do not constitute causes beyond the control and without the fault or negligence of the Contractor. The Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include:

(1) Acts of God or of the public enemy

(2) Act of the NAFI in either its sovereign or contractual capacity

(3) Fires

(4) Floods

(5) Epidemics

(6) Quarantine restrictions

(7) Strikes

(8) Freight embargoes

(9) Unusually severe weather

e. If this contract is terminated for cause, the NAFI may require the Contractor to transfer title and deliver to the NAFI as directed by the Contracting Officer, any

(1) completed supplies, and

(2) partially completed supplies and materials, parts, tool dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as manufacturing materials in the clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract.

Upon direction of the Contracting Officer, the Contractor shall also protect and preserve property in its possession in which the NAFI has an interest.

f. The NAFI shall pay the contract price for completed supplies delivered and accepted. The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Claims Clause. The NAFI may withhold from these amounts any sum the Contracting

Officer determines to be necessary to protect the NAFI against loss because of outstanding liens or claims of former lien holders.

g. If, after termination, it is determined that the cause by the Contractor was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for convenience of the

NAFI.

h. The rights and remedies of the NAFI in this clause are in addition to any other rights and remedies provided by law or under this contract.

i. This contract is automatically terminated for the convenience of the NAFI in the event the NAFI is dissolved.

14. CHANGES

a. The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

(1) If the requirement is for supplies and/or services: Drawings, designs, or specifications; method of shipment or packing; description of services to be performed; time of performance (i.e., hours of the day, days of the week, etc.); place of delivery or place of performance of services.

(2) If the requirement is for concession services (including public private ventures): Specifications

(including drawings and designs); method or manner of performance of work; NAFI-furnished facilities, equipment, materials, services, or site; and/or directing acceleration in the performance of work.

(3) If the requirement is for transportation services: Specifications; work or services; place of origin;

place of delivery; tonnage to be shipped; and/or amount of NAFI-furnished property.

b. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting

Officer will make an equitable adjustment in the contract price, the delivery schedule, or both, and modify the contract.

c. The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order; however, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract.

d. If the Contractor’s proposal includes the cost of property made obsolete or excess by the change, the

Contracting Officer shall have the right to prescribe the manner of the disposition of the property.

e. If the requirement is for architect-engineer or other professional services, no services for which an additional cost or fee will be charged by the Contractor shall be furnished without the prior written authorization of the Contracting Officer.

f. If the requirement is for concession services (including public private ventures), the Contractor shall notify the Contracting Officer in writing within seven (7) days of the occurrence of any event that the

Contractor considers a change to the contract that has not been authorized in writing signed by the

Contracting Officer. The Contractor will be deemed to have waived any right to an adjustment if timely notice is not provided to the Contracting Officer as required herein. For purposes of this clause, "event" shall include, but not be limited to, an order or direction by a NAFI or other NAFI official, a contested contract interpretation, interference with or interruption of the contract work, or any other event that increases the cost or time to perform the contract as compared to the cost or time that would be required if the Contractor performed the contract in accordance with its terms.

g. Failure to agree to any adjustment shall be a “claim” under the “Claims” clause of this Contract;

however, nothing in this clause shall excuse the Contractor from proceeding with the Contract as changed.

15. SOCIAL RESPONSIBILITY AND LABOR STANDARDS NONRESALE

By performance of this contract, the Contractor and any subcontractors shall comply with the Social

Responsibility requirements addressed herein:

a. Combating Trafficking in Persons (CTIP). Applicable to all contracts, regardless of location performed.

(1) Definitions. The meanings of the terms coercion, commercial sex act, debt bondage, forced labor, involuntary servitude, severe forms of trafficking in persons, and sex trafficking are as is defined in the Trafficking Victims Protection Act of 2000, Public Law 106-386, October 28, 2000 < http://www.state.gov/documents/organization/10492.pdf >.

(2) Policy. DoD NAFIs have adopted the U.S. Government’s zero tolerance policy regarding trafficking in persons. During the contract period of performance, Contractor and Contractor employees shall not: (a) Engage in severe forms of trafficking; (b) Procure commercial sex; or (c)

Use forced labor http://www.state.gov/documents/organization/10492.pdf

(3) Contractor Requirements. Contractor shall: (a) Notify its employees of: Zero tolerance policy described in this clause; and actions that will be taken against employees for violations of this policy. (Such actions may include, but are not limited to, removal from the Contract, reduction in benefits, or termination of employment); and (b) Take appropriate action against employees or subcontractors that violate policy in paragraph a.(2) of this clause, up to and including termination.

(4) Notification. Contractor shall inform the Contracting Officer immediately of: (a) Any information it receives from any source (including host country law enforcement) alleging a Contractor employee, subcontractor, or subcontractor employee has engaged in conduct that violates this policy; and (b) Any actions taken against Contractor employees, subcontractors, or subcontractor employees pursuant to this clause.

(5) Remedies. In addition to other remedies available to the NAFI, Contractor's failure to comply with the requirements of this clause may result in (a) Requiring the Contractor to remove a Contractor employee or employees from performance under the contract; (b) Requiring the Contractor to terminate a subcontract; (c) Suspension of contract or fee payments; (d) Termination of the contract for default or cause, in accordance with the termination clause of this contract; and/or (e)

Suspension or debarment.

(6) Mitigating Factors. The Contracting Officer may consider whether Contractor had a Trafficking in

Persons awareness program at the time of any violation as a mitigating factor when determining remedies.

(7) Additional information about Trafficking in Persons and examples of awareness programs can be found on the U.S. Department of State, Office to Monitor and Combat Trafficking in Persons

(OMCTP) website < http://www.state.gov/j/tip/index.htm >.

b. Labor; Work Hours, Compensation and Benefits; Discipline; Freedom of Association; Discrimination;

and Workspaces. Applicable to all contracts, regardless of location performed. Contractor

Requirements:

(1) Labor. Contractor shall not employ any person under the age of 14 years, unless local and national laws stipulates a higher age for work or mandatory schooling, in which case the higher age will apply. Contractor shall not use force or other compulsory labor in performance of this contract, nor require employees to lodge "deposits" or identity papers upon commencing employment with the

Contractor or subcontractor.

(2) Working Hours, Compensation and Benefits. Contractor shall comply with applicable local and national laws on maximum daily/weekly working hours. Contractor shall ensure that wages paid for a standard workweek are consistent with local and national laws.

(3) Safe and Healthy Workplace. Contractors shall provide employees with a safe and healthy workplace in compliance with all local and national laws.

http://www.state.gov/j/tip/index.htm

(4) Discipline. Contractor shall not engage in or support the use of corporal punishment, mental or physical coercion, verbal abuse, or withholding passports or travel documents.

(5) Freedom of Association & Right to Collective Bargaining. Contractor shall respect the right of all employees to form and join trade unions of their choice, consistent with prevailing local and national laws and to bargain collectively without any activity that impedes or suppresses freedom of association. Contractors shall ensure that representatives of such employees are not subject to discrimination and that such representatives have access to their members in the workplace.

(6) Discrimination. Contractors shall comply consistently with local and national laws with regard to discrimination in hiring, compensation, access to training, promotion, termination, or retirement based on race, caste, national origin, religion, disability, gender, sexual orientation, maternity status, union membership, or political affiliation.

c. U.S. Labor Statutes.

(1) Applicable to all contracts, performed within the United States. Where a statute specifies where within the U.S. it applies, the definition in the statute supersedes definitions in this clause.

(2) Definitions

(a) “United States” in general means the 50 States, the District of Columbia, Outlying Areas, and

Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act (43 U.S.C.

1331, et seq.), but does not include any other place subject to

U.S. jurisdiction or any U.S. base or possession in a foreign country (29 CFR 4.112).

(b) “Outlying Areas” means: (1) Commonwealths of Puerto Rico and the Northern Mariana

Islands; (2) Territories: American Samoa, Guam, and U.S. Virgin Islands; and (3) Minor outlying islands (Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll and Wake Atoll).

d. The Contractor shall:

(1) Comply with all applicable statutes to include, but not limited to the Fair Labor standards Act

(FLSA), Service Contract Labor Standards Statute and Construction Wage Rate Requirements.

(2) Provide subcontractor names and performance addressees within 24 hours, if requested by the

(3) Have an effective program for monitoring compliance with applicable statutes and as applicable ensure U.S. Department of Labor (DoL) Wage and Hour Division posters in workers’ language are posted at U.S. work sites.

(4) Ensure compliance with all applicable hours, wages, labor relations (including collective bargaining), workmen’s compensation, working conditions and other matters pertaining to labor standards of the country, or political matters pertaining to labor standards of the country, or political subdivision thereof, where contract is performed.

e. To ensure full compliance with…