SOLICITATION.pdf

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United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS)

Title Commitments

FOR SOLICITATION INFORMATION: Kris Baker kristina.baker@usda.gov

OFFER DUE DATE/LOCAL TIME: May 25, 2020 3:00 PM CST

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A Solicitation/Contract Form

A.1 SF 1449 – to be provided upon award

A. 2 Department/Agency

A.2.1 United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS)

A.3 Contracting Office

A.3.1 Farm Production and Conservation - Business Center Acquisition and Procurement Division Section 1 - Operations Branch

A.4 Contracting Officer

A.4.1 Kris Baker, email: k ristina.baker@usda.gov Phone: 816-926-1435

A.4.2 Any USDA FPAC BC Contracting Officer can act on this contract should the need arise.

A.4.3 A Contracting Officer is the only individual who can legally commit or obligate the Government for the expenditure of public funds. Only the contracting officer has authority to: (1) increase or decrease the award amount; (2) direct or negotiate any changes; (3) modify or extend the period of performance; (4) change the schedule of completion; (5) authorize payment under this order; (6) otherwise modify any terms or conditions of this Contract.

A.5 Program Office

A.5.1 Agricultural Conservation Easement Program Wetland Reserve Easement (ACEP- WRE) New Hampshire State Office

A.5.2 Point of Contact: To Be Provided Upon Award

A.5.3 The program office point of contact will act as the liaison to coordinate activities between the Contractor and Contracting Officer, as required, in the performance of the work under this contract. They have the authority to provide technical clarification of the contract requirements but does not have the authority to modify any contract provisions, including, without limitation, changing the scope of work, the cost/price thereof, or the performance delivery schedule(s) therefore. Technical clarification will be issued in writing within 5 (five) calendar days after verbal issuance.

End of Section

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B SF 1449 Services/Supplies and Prices/Costs

B.1 Contract Type

B.1.1 Purchase Order

B.1.2 Fixed Price

B.2 Pricing

B.2.1 The fixed price for this award is $ . (To be provided upon award)

U.S. Department of Agriculture Natural Resources Conservation Service

Title Services Scope of Work NRCS Easement Programs

C Statement of Work

TITLE SEARCH AND CLOSING SERVICES FOR NRCS’s EASEMENT PROGRAMS

Specifications and Scope of Work for an Appraisal of Real Property for the ACEP-WRE

1. OBJECTIVE

The objective of this blanket purchase arrangement (BPA) is to obtain Vermont title search, title commitment, post survey updates, final title policy, or closing services for acquisitions of conservation easements on behalf of the United States of America, acting by and through the Natural Resources Conservation Service (NRCS), U.S.

Department of Agriculture (USDA).

2. BACKGROUND

The Agricultural Conservation Easement Program Wetland Reserve Easement component (ACEP-WRE), the Wetlands Reserve Program (WRP), Emergency Watershed Protection Program - Floodplain Easements (EWPP-FPE), and the Healthy Forest Reserve Program (HFRP) each provide authorization for the United States to acquire conservation easements from willing landowners for the purpose of restoring and protecting wetlands, floodplains, or forest lands respectively. NRCS is the agency within the USDA that is responsible for administration of these programs.

3. SCOPE

The contractor must coordinate, facilitate, and perform the following services:

a. Provide the title commitment (or title search and/or update of abstracts), including copies of all instruments that created rights, interests, or encumbrances, for the easement boundary and ingress-egress descriptions.

b. Work with NRCS and the landowners to clear exceptions on title to the property and resolve vesting interests.

c. Update the title commitment, based upon the final legal description of the easement area, including copies of all instruments that created rights, interests, or encumbrances on the property, not included on the original title commitment, for the easement boundary and ingress-egress descriptions.

d. Hold funds in escrow, provide closing protection coverage, and provide payment to proper recipient and comply with Internal Revenue Service (IRS) tax reporting Form 1099.

e. Obtain signatures on warranty easement deeds provided by NRCS.

f. Obtain signatures on subordination agreements and limited lien waivers, affidavits, and any other necessary documents.

g. Record documents in the local land records office (e.g., the applicable county registrar or recorder s office, county or town clerk records office).

h. Provide a final title insurance policy using American Land Title Association

(ALTA) U.S. Policy 09-28-1991 (Revised 12/3/2012)

Title Services Scope of Work

i. Provide other services, as necessary, to finalize the easement transaction.

The contractor will provide the above-listed items to the designated NRCS contact identified on the attachment to this statement of work.

4. STANDARDS AND RESPONSIBILITIES

The acquisition of the program easement and any access easement is governed by the following requirements:

a. Regulations of the Attorney General Governing the Review and Approval of

Title for Federal Land Acquisitions (2016)

b. NRCS regulations and policies governing the NRCS program under which the easement is being acquired.

The contractor will perform the same services that are customarily provided in a commercial transaction, including chain of title, determination of ownership and interest share of surface and subsurface rights, securing and providing all underlying documents, obtaining and recording deeds, and any necessary curative instruments to ensure merchantable, insurable title to the easement are in the name of the United States of America. The contractor is responsible for having up-to-date knowledge of the requirements of the State laws on title searches, closing real estate transactions, and title clearance. The title insurance company and its issuing agents must comply with the State laws, including title insurance reserve requirements. The contractor must be licensed to do title insurance business in New Hampshire. The title insurance company must be approved by the State’s insurance commissioner.

The contractor and any subcontractors must obtain a valid Dun and Bradstreet Data Universal Numbering System (DUNS) number and must maintain active registration in System for Award Management (SAM) for the duration of any contracts or agreements to provide closing services to the NRCS.

The contractor must provide evidence of liability insurance coverage or indemnification in an amount equal to the amount of Federal funds for each easement satisfactory to NRCS, acting on behalf of the Commodity Credit Corporation, providing for reimbursement to NRCS for any loss of Federal funds caused by errors, omissions, fraud, dishonesty, negligence, or failure by the attorneys, agents, or closing agent employees to comply with written closing instructions. The ALTA closing protection letter, revised 4/2/2014, is satisfactory to meet this condition of responsibility. Evidence of liability insurance must be provided prior to award.

5. DESCRIPTION OF SERVICES

a. Title Commitment (or Title Search and/or Update of Abstracts)

The contractor must obtain the following:

i. Copies of all instruments that created rights, interests, or encumbrances on the proposed easement property

ii. Preliminary title commitment, which must cover the entire easement

Title Services Scope of Work area and the access for ingress and egress to the easement area, and must commit to issuing the

ALTA U.S.

Policy Form 9-28-91 (Revised 12/3/2012).1

iii. Title search services and title commitment must be provided within 21 business days of receiving the request from NRCS.

iv. The invoice submitted to the Invoice Processing Platform (IPP) for services rendered at www.ipp.gov.

The title commitment/binder must be provided from a closing agent operating with a licensed title insurance company authorized by law and by the State insurance commissioner to issue title insurances policies in the State in which the land lies. The the easement purchase price. The title search/update of abstract must be for a sufficient period of time for the title company to insure the title without objectionable exceptions and must identify all owners of record, outstanding mortgages, liens, judgments or pending suits, outstanding tax claims, easements or rights-of-way of any type, including oil, gas, and mineral interests that have been severed, any water right interests, and any other exceptions that may cloud the title of the easement to be purchased. The search must show ownership interest of the surface and subsurface rights including oil, gas, coal, sand, gravel, and other minerals associated with the property. The title commitment must include a legible copy of all underlying documents of any type, whether oil, gas, or mineral interests have been severed, mortgages, bankruptcies, and any other exceptions that may cloud the title of the easement to be purchased.

Title search services must be provided to the designated NRCS contact identified on the attachment to this statement of work within 21 business days of receiving the request from NRCS. The contractor will be provided with the name, address, and telephone number of the landowner, a copy of the current ownership documentation as provided by the landowner to NRCS, a location map of the proposed easement area, and the proposed access route for ingress and egress.

Not every title commitment (search) obtained by NRCS will result in an order for the closing services outlined in section B. NRCS might not ultimately purchase an easement on the properties for which it obtains a title commitment (search). NRCS may elect not to make an offer to the landowner based on eligibility review. NRCS may withdraw an offer to landowners if NRCS lacks funding, landowners are unable to provide clear title or sufficient legal access, or for other reasons as determined by NRCS. The agreement to purchase the conservation easement may also expire or the landowners may elect to cancel the agreement with NRCS.

1 For easement acquisitions in Texas, the T-11 U.S. Policy and T-12 U.S. Endorsement may substituted any place the ALTA U.S. Policy Form 9/28/91 (Revised 12/3/12) is mentioned in this document.

If NRCS intends to proceed with the acquisition of an easement and orders closing services identified in section B, NRCS may require the contractor to execute a separate

Title Services Scope of Work acknowledgement for individual transactions, affirming that it will comply with all of the , for that transaction. If the contractor hires a subcontractor to complete the closing services outlined in section B, the contractor may be required to provide NRCS an executed

6. Closing Services

After receiving the surveyed legal description from NRCS, the contractor must provide an updated preliminary title commitment, which must cover both the easement area and access for ingress and egress. The preliminary title commitment update must be provided to the designated NRCS contact identified on the attachment to this statement of work within 14 business days of receiving the request from NRCS. In the event of acreage changes, after the completion of the survey, the title commitment must be updated to

Upon receipt of the updated preliminary title commitment, NRCS will forward the preliminary title commitment and other related documentation to the USDA Office of the General Counsel (OGC) regional attorney for a preliminary title opinion (PTO). If any outstanding issues remain, NRCS will work with OGC to determine which exceptions are acceptable and which exceptions must be cured.

The preliminary title commitment must not contain an exception related to the terms and conditions of the Warranty Easement Deed to be recorded at closing. However, if such exception is required by the title company, the proposed language for such exception must be approved prior to closing by OGC.

NRCS will provide the NRCS closing instructions and the applicable instructions from the OGC PTO identifying the requirements that must be met before the easement can be closed. The contractor must communicate with NRCS and the landowner regarding proper procedures for the landowner to clear exceptions and the contractor must obtain the execution of documents such as releases, subordinations, full or partial satisfaction for child support, and other types of releases of encumbrances on the property.

The contractor must establish an escrow account in an FDIC-insured account for the payment of the easement associated with the closing and include the escrow account information in their System for Award Management (SAM) registration. The contractor will be responsible for Form 1099 reporting of the easement payment to the IRS. NRCS will prepare documentation needed to authorize payment to the escrow account when notified of the closing date. In certain cases, as stated in the NRCS closing instructions, the contractor may be required to withhold a portion of the payment for property taxes or assessments that are not yet determined or payable in an escrow account and process payments when due.

The contractor is required to close within 30 calendar days of receipt of the Federal funds from the U.S Treasury by electronic funds transfer. The contractor will not close

Title Services Scope of Work any transaction or record deeds or other instruments prior to receiving the NRCS closing instructions letter and OGC PTO requirements.

Prior to closing the easement, the contractor must ensure that the following have occurred:

a. No new encumbrances have been recorded against the subject property since the date of the most recent title commitment/binder, no adverse change in title has occurred, and there are no intervening matters affecting title that might result in a new title exception to the policy. If any new encumbrances have been recorded against the subject property or other adverse changes in title have occurred since the date of the most recent title commitment/binder, notify the NRCS technical representative immediately and do not proceed until further instructions are received. The contractor may be required to provide a pro forma title policy or marked up title commitment, or an updated title commitment, to confirm all title requirements will be met at or prior to closing.

b. The contractor has received the electronic funds transfer of the easement payment in his or her escrow account.

c. The contractor is prepared to issue the policy of title insurance referred below.

d. All exceptions required to be removed, released, subordinated, waived, or otherwise handled as set forth in the NRCS closing instructions have been completed and the applicable clearance documents recorded and all other requirements met. Proposed subordination agreements, satisfactions, releases, partial releases, and other title curative documents to be signed at closing will be provided to NRCS for review and approval at least 3 business days prior to closing.

e. Compliance with any listed title commitment/binder requirements.

f. Review the Warranty Easement Deed according to the NRCS closing instructions and ensure the proper names and marital status are correct.

g. The contractor must provide a copy of the proposed HUD-1 settlement statement to NRCS for review and approval as least 3 business days prior to closing.

The contractor must schedule the execution of the Warranty Easement Deed deed with the landowner at a mutually agreed upon location and time. The preferred location is the local NRCS service center; however, the deed execution may take place at any agreed-upon location. The contractor must obtain properly executed and acknowledged deed from the landowners conveying the conservation easement, including the associated ingress and egress to the easement area. The contractor must ensure that the deed contains all required signatures, release of dower rights, and that all signatures are in proper form and have been acknowledged, that the acknowledgement certificates are in proper form and have been completed correctly, and that the deed contains all of the necessary exhibits. The contractor must also obtain NRCS signatures on the Warranty Easement Deed.

When the signed documents are returned, the contractor must record the deeds and other instruments as necessary, and ensure the following have occurred:

a. The contractor must ensure that no new encumbrances have been placed on the property prior to recording the Warranty Easement Deed.

Title Services Scope of Work

b. NRCS receives an electronic copy of the executed deed.

c. The contractor must record the Warranty Easement Deed, exhibits, and any necessary title curative documents within 5 business days of execution.

d.

Easement Deed is recorded.

e. The contractor must issue a policy of title insurance on ALTA U.S. Policy Form

9/28/91 (Revised 12/3/12)2, insured party in the full amount of the easement compensation amount identified on the Warranty Easement Deed as of the time and date of the recording of the Warranty Easement Deed. Said policy of title insurance must be free and clear of any and all encumbrances to the title except those shown as acceptable in the NRCS closing instructions and insure the United States interest in the easement area and the right of ingress-egress thereto. The final policy should reflect the execution and recording information pertaining to the insured easement, such as:

-Year or Perpetual Easement granted by to United States of America, by Warranty Easement Deed dated and recorded in Deed Record pages in the Office of the Recorder of

f. Complete IRS tax reporting Form 1099 for the full easement compensation amount, as identified in the warranty easement deed, issued to the appropriate parties.

The contractor must return the following package to the designated NRCS contact identified on the attachment to this statement of work within 5 business days of receipt of recorded documents from the local land records office:

a.The invoice submitted to the Invoice Processing Platform (IPP) covering the agreed-upon costs incurred for services provided at www.ipp.gov. The contractor will be paid a flat fee for services rendered, including all travel expenses, copy costs, telephone charges, and the like. The contractor must provide documentation for reimbursable expenses, such as title insurance fees and recording costs.

b. Policy of title insurance (original and one copy), ALTA U.S. Policy Form 9-28- 91 (Revised 12/3/2012).

c. s certified copy of the ACEP-WRE Warranty Easement Deed and a recording receipt

d. curative documents, including subordination agreements

e. Original and one copy of executed settlement statements

f. Record of disbursement of funds to the landowner

g. Completed IRS Form 1099 issued to the landowners

2 For easement acquisitions in Texas, the T-11 U.S. Policy and T-12 U.S. Endorsement may substituted any place the ALTA U.S. Policy Form 9/28/91 (Revised 12/3/12) is mentioned in this document.

Title Services Scope of Work

Upon receipt of the final documents, NRCS will request a final title opinion (FTO) from the OGC. If the FTO identifies issues that were not resolved by the contractor in accordance with the NRCS closing instructions and OGC PTO requirements, NRCS will notify the contractor of required remedies. If necessary corrections were originally identified in the NRCS closing agent requirements form or NRCS closing instructions, such corrections must be done at no additional cost to NRCS and returned to the NRCS technical representative within 14 days of notification of such issue. Upon receipt of an OGC FTO indicating that all NRCS closing instruction and OGC PTO requirements have been met, NRCS will process the contractor s payment for closing services.

7. PAYMENT

There will be two payments issued:

a. Payment will occur upon receipt and approval of all deliverables identified above in section V.A. (preliminary title commitment).

b. Payment for recording costs and policy premiums will occur upon receipt and

NRCS approval of all deliverables identified in above section V.B.

c. Payment of the closing fee will occur upon final review and approval by NRCS or OGC of all deliverables identified in above section V.B., including satisfactory completion of any required remedies or corrections.

NRCS will process the payment through the Invoice Processing Platform (IPP at www.ipp.gov) for services rendered.

8. CONFLICT OF INTEREST

The contractor must not close an NRCS easement purchase for their spouse, children, partners, or business associates, and must not have a financial interest in the real estate covered by the proposed easement.

9. AUTHORITY

Only the NRCS contracting officers may place orders under this BPA. Any modifications or questions may be directed to the originating contracting officer identified on the signed contract.

10. NONDISCLOSURE

Work performance required by this statement of work will involve access to potentially sensitive information about governmental and landowner issues. All contractor personnel must comply with the terms of AGAR 452.224-70, Confidentiality of Information, as well as provisions of the Privacy Act of 1974, 5 U.S.C. Section 552a. Additionally, the contractor must comply with the NRCS guidelines and requirements regarding the disclosure of personal information protected under section 1244 of the Food Security Act of 1985, as amended (16 U.S.C. Section 3844), and information protected

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U.S. Department of Agriculture Natural Resources Conservation Service

Title Services Scope of Work under section 1619 of the Food, Conservation, and Energy Act of 2008 (Public Law 110- 246), 7 U.S.C. Section 8791.

11. CIVIL RIGHTS AND PROGRAM DELIVERY

By signing this agreement, the contractor assures the Department of Agriculture that the program or activities provided for under this agreement will be conducted in compliance with all applicable Federal civil rights laws, rules, regulations, and policies.

EXHIBIT A

ATTACHMENTS:

1. NRCS CONTACTS FOR SUBMISSION OF DELIVERABLES

2. NRCS CLOSING AGENT REQUIREMENTS

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Section D - Reserved

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E Inspection and Acceptance

E.1 Acceptance of service will be done upon receipt of the title commitments.

E.1.1 Acceptance will be determined by the Technical Point of Contact.

E.1.2 Acceptance will be based on if the requirements under Section C are met.

E.1.3 The Technical Point of Contact or Contracting Officer reserves the right to review all work products required under the contract for acceptability as needed. The Government shall notify the Contractor whenever revisions to reports/deliverables are required in order for deliverables to be deemed acceptable.

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F Performance

F.1 Period of Performance

F.1.1 The period of performance for this award is for 30 days after receipt of award.

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G Invoicing

G.1 Invoicing

G.1.1 Invoice should be sent after services have been completed.

G.1.2 The "Submit Invoice-to" address for USDA orders is the Department of Treasury's Invoice Processing Platform (IPP). The contractor must follow the instructions on how to register and submit invoices via IPP as prescribed in the previous communications from USDA and Treasury. All invoices are to be submitted via the electronic Invoice Processing Platform. This is a mandatory requirement initiated by the U.S. Department of Treasury and you can find more information at this website h ttps://www.ipp.gov/

G.1.3 Invoices and any supporting documentation shall be attached within the Invoice Processing Platform (IPP) and shall not be submitted directly to the Contracting Officer.

G.2 Payment

G.2.1 USDA pays for services in arrears (after service is completed). No payments will be made prior to the completion of service.

G.2.2 Payment will be made after receipt of invoice or acceptance of goods whichever is later. Payment will be made via Electronic Funds Transfer.

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H Reserved

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I Task Order Provisions and Clauses

I.1 A GAR 452.204-70 – Inquires (Feb 1988)

Inquiries and all correspondence concerning this solicitation should be submitted in writing to the Contracting Officer. Offerors should contact only the Contracting Officer issuing the solicitation about any aspect of this requirement prior to contract award.

(End of provision)

I.2 AGAR 452.211-72 – Statement of Work/Specifications (Feb 1988)

The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the objectives set forth in the Performance Work Statement/Specifications referenced in Section C.

(End of Clause)

I.3 AGAR 452.211-74 – Period of Performance (Feb 1988)

The period of performance for this award shall be for thirty (30) days after receipt of award.

I.4 AGAR 452.246-70 – Inspection Acceptance (Feb 1988)

(a) The Contracting Officer or Contracting Officer’s duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.

(b) Inspection and acceptance will be performed after each service requirement is completed.

(End of clause)

I.5 L imitation of Authority

The government assigned Project or Program Manager, Task POC, or COR are responsible for monitoring the Contractor’s performance. Any proposed modifications to the task order, such as changes to the scope of work, or to the terms and conditions of the task order must be authorized by the Contracting Officer.

I.6 A GAR 452.224-70 – Confidentiality of Information (Feb 1988)

Confidential information, as used in this clause, means --information or data of a personal nature, proprietary about an individual, or (2) information or data submitted by or pertaining to an organization.

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(a) In addition to the types of confidential information described in (a)(1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.

(b) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract.

Failure to agree will be settled pursuant to the "Disputes" clause.

(c) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.

(d) Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.

(e) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor's intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45 day period, the contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the "Disputes" clause.

(f) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure,

(g) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.

I.7 C onflict of Interest

If for any reason the agency or the Contractor determines that the Contractor faces a potential, perceived, or real conflict of interest, the agency shall notify the Contractor or the Contractor shall notify the agency, and the Contractor shall cease all work on, reassign the task, or proceed at the discretion of the agency. At the agency's option, the Contractor may provide an acceptable replacement.

I.8 F AR 52.212-4 - CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (OCT 2018)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

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(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (3 1 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 4 1 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 5 2.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 5 2.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include-

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on

Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

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

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

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(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 5 2.232-33, Payment by Electronic Funds Transfer- System for Award Management, or 5 2.232-34, Payment by Electronic Funds Transfer- Other Than System for Award Management), or applicable agency procedures.

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

(2) Invoices will be handled in accordance with the Prompt Payment Act (3 1 U.S.C.3903) and Office of Management and

Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment -

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (3 1 U.S.C.3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 5 2.212-5(b) for the appropriate

EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the

Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall-

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the-

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the

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(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 3 3.211 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer

(see 3 2.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 3 2.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon:

(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b.

destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

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(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work.

Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the

Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the

Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 3 1 U.S.C.

1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 1 8 U.S.C. 431 relating to officials not to benefit; 4 0 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 4 1 U.S.C. chapter 87, Kickbacks; 4 1 U.S.C.4 712 and 1 0 U.S.C. 2409 relating to whistleblower protections; 4 9 U.S.C. 40118, Fly American; and 4 1 U.S.C. chapter 2 1 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government

Contracts, and Unauthorized Obligations paragraphs of this clause;

(3) The clause at 5 2.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

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(7) The S tandard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t)[Reserved]

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(iv) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

I.9 F AR 52.212-5 - Contract TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS-COMMERCIAL ITEMS (

JAN 2020)

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

(1) 5 2.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017)

(section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub.

L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 5 2.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky

Lab and Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(3) 5 2.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (Aug 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).

(4) 5 2.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

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(5) 5 2.233-3, Protest After Award (Aug 1996) (3 1 U.S.C. 3553).

(6) 5 2.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Public Laws 108-77 and 108-78 (1 9 U.S.C. 3805 n ote)).

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

[Contracting Officer check as appropriate.]

(1) 5 2.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (4 1 U.S.C. 4704 and 1 0 U.S.C. 2402).

(2) 5 2.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (4 1 U.S.C. 3509)).

(3) 5 2.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (June 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

(4) 5 2.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2018) (Pub. L. 109-282) (3 1 U.S.C. 6101 note).

(5) [Reserved].

(6) 5 2.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

(7) 5 2.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111- 117, section 743 of Div. C).

(8) 5 2.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Oct 2015) (3 1 U.S.C. 6101 note).

(9) 5 2.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Oct 2018) (4 1 U.S.C.

2 313).

(10) [Reserved].

(11) (i) 5 2.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011) (1 5 U.S.C.657a).

(ii) Alternate I (Nov 2011) of 5 2.219-3.

(12) (i) 5 2.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct 2014) (if the offeror elects to waive the preference, it shall so indicate in its offer) (1 5 U.S.C. 657a).

(ii) Alternate I (Jan 2011) of 5 2.219-4.

(13) [Reserved]

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(14) (i) 5 2.219-6, Notice of Total Small Business Set-Aside (Nov 2011) (1 5 U.S.C.644).

(ii) Alternate I (Nov 2011).

(iii) Alternate II (Nov 2011).

(15) (i) 5 2.219-7, Notice of Partial Small Business Set-Aside (June 2003) (1 5 U.S.C. 644).

(ii) Alternate I (Oct 1995) of 5 2.219-7.

(iii) Alternate II (Mar 2004) of 5 2.219-7.

(16) 5 2.219-8, Utilization of Small Business Concerns (Oct 2018) (1 5 U.S.C. 637(d)(2) and (3)).

(17) (i) 5 2.219-9, Small Business Subcontracting Plan (Aug 2018) (1 5 U.S.C. 637(d)(4))

(ii) Alternate I (Nov 2016) of 5 2.219-9.

(iii) Alternate II (Nov 2016) of 5 2.219-9.

(iv) Alternate III (Nov 2016) of 5 2.219-9.

(v) Alternate IV (Aug 2018) of 5 2.219-9

(18) 5 2.219-13, Notice of Set-Aside of Orders (Nov 2011) (1 5 U.S.C. 644(r)).

(19) 5 2.219-14, Limitations on Subcontracting (Jan 2017) (1 5 U.S.C.637(a)(14)).

(20) 5 2.219-16, Liquidated Damages-Subcontracting Plan (Jan 1999) (1 5 U.S.C. 637(d)(4)(F)(i)).

(21) 5 2.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (Oct 2019) (1 5 U.S.C. 657f).

(22) 5 2.219-28, Post Award Small Business Program Rerepresentation (Jul 2013) (1 5 U.S.C. 632(a)(2)).

(23) 5 2.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (Dec 2015) (1 5 U.S.C. 637(m)).

(24) 5 2.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (Dec 2015) (1 5 U.S.C. 637(m)).

(25) 5 2.222-3, Convict Labor (June 2003) (E.O.11755).

(26) 5 2.222-19, Child Labor-Cooperation with Authorities and Remedies (Jan 2020) (E.O.13126).

(27) 5 2.222-21, Prohibition of Segregated Facilities (Apr 2015).

(28) (i) 5 2.222-26, Equal Opportunity (Sept 2016) (E.O.11246).

(ii) Alternate I (Feb 1999) of 5 2.222-26.

(29) (i) 5 2.222-35, Equal Opportunity for Veterans (Oct 2015) (3 8 U.S.C. 4212).

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