SPV IJKS Contract Award SPE300-22-D-4091 signed for contract file (final Redacted).pdf

SF 1449– SPE300-22-D-4091

Subsistence Prime Vendor Kuwait, Iraq, Syria, and Jordan – KGL Food Services WLL

Sam khatib Nov 2,2021

General Manager

=US

ate: 2021.11.02 23:01:59 +03'00'

SHUSTER.JAMIE.L.

Digitally signed by

SHUSTER.JAMIE.L.

Date: 2021.11.02 17:11:51 -04'00'

TABLE OF CONTENTS

PARAGRAPH TITLE DATE SOURCE PAGE #

CLAUSES IN FULL TEXT

52.202-24

Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2020) Aug 2020 FAR 11

52.202-25

Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment Aug 2020 FAR 13

52.212-4 Contract Terms and Conditions – Commercial Items Jan 2017 FAR 15

52.212-4 Addendum FAR 23

52.212-5

Contract Terms and Conditions Required to Implement Statutes or Executive Orders – Commercial Jan 2017 24

(1) 52.203-19, 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)). 24

(2) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015) 25

(3) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553). 25

(4) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77, 108-78 (19 U.S.C. 3805 note)). 25

_X_ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402). 25

_X_ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509). 25

_X_ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub L. 111-5) (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009). 25

_X_ (4) 52.204-10, Reporting Executive compensation and First-Tier Subcontract Awards (Oct 2016) (Pub. L. 109-282) (31 U.S.C. 6101 note). 25

_X_ (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Oct 2015) (31 U.S.C. 6101 note). 25

_X_ (9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Jul 2013) (41 U.S.C. 2313). 25

_X_ (12) (i) 52.219-4, 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)(15 U.S.C. 657a). 26

_X_ (17) (i) 52.219-9, Small Business Subcontracting Plan (Jan 2017) (15 U.S.C. 637 (d)(4)). 26

_X_ (20) 52.219-16, Liquidated Damages—Subcontracting Plan (Jan 1999) (15 U.S.C. 637(d)(4)(F)(i)). 26

_X_ (22) 52.219-28, Post Award Small Business Program Rerepresentation (Jul 2013) (15 U.S.C. 632(a)(2)). 26

_X_(26) 52.222-19, Child Labor – Cooperation with Authorities and Remedies (Oct 2016) (E.O. 13126) 27

_X_ (27) 52.222-21, Prohibition of Segregated Facilities (Apr 2015). 27 _X_ (28) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246). 27

_X_ (29) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C.

4212). 27

_X_ (30) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793). 27

_X_ (31) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C.

4212). 27

_X_ (33) (i) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O. 13627). 27

_X_ (40) 52.223-15, Energy Efficiency in Energy-Consuming Products (Dec 2007) (42 U.S.C. 8259b). 28

_X_ (42) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging while Driving (Aug 2011) (E.O. 13513). 28

_X_ (49) 52.225-13, Restrictions on Certain Foreign Purchases (Jun 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury). 29

_X_ (50) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note). 29

_X_ (55 52.232-33, Payment by Electronic Funds Transfer— System for Award Management (Jul 2013) (31 U.S.C. 3332). 29

252.204-7009

Limitations on the Use or Disclosure of Third- Party Contractor Reported Cyber Incident Information Oct 2016 DFARS 32

252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting Oct 2016 DFARS 34

252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support May 2016 DFARS 34

252.211-7006 Passive Radio Frequency Identification Dec 2017 DFARS 35 52.215-06 Place of Performance Oct 1997 FAR 38

52.216-19 Order Limitations Oct 1995 FAR 42 52.216-22 Indefinite Quantity Oct 1995 FAR 42 252.216-7006 Ordering May 2011 DFARS 43

52.216-9065

Economic Price Adjustment – Actual Material Costs for DLA Troop Support – Subsistence Product Price Business Model Oct 2015 DLAD 43

252.225-7012 Preference for Certain Domestic Commodities Dec 2017 DFARS 48

252.225-7043 Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States Jun 2015 DFARS 51

252.225-7048 Export Controlled Items Jun 2013 DFARS 52

252.232-7003 Electronic Submission of Payment Requests and Receiving Reports Jun 2012 DFARS 53

252.237-7019 Training for Contractor Personnel Interacting with Detainees Jun 2013 DFARS 54

252.243-7002 Requests for Equitable Adjustment Dec 2012 DFARS 56 52.252-02 Clauses Incorporated by Reference Feb 1998 FAR 57

CLAUSES INCORPORATED BY REFERENCE

252.201-7000 Contracting Officer’s Representative Dec 1991 DFARS 57 52.203-03 Gratuities Apr 1984 FAR 57

252.203-7000 Requirements Relating to Compensation of Former DOD Officials Sep 2011 DFARS 57

252.203-7002 Requirement to Inform Employees of Whistleblower Rights Sep 2013 DFARS 57

252.203-7003 Agency Office of the Inspector General Dec 2012 DFARS 57 252.204-7004 Alt A, System for Award Management Feb 2014 DFARS 57

52.204-04 Printed or Copied Double-Sided on Postconsumer Fiber Content Paper May 2011 FAR 57

52.204-07 System for Award Management Oct 2016 FAR 57

52.204-09 Personal Identity Verification of Contractor Personnel Jan 2011 FAR 57

52.204-13 System for Award Management Maintenance Oct 2016 FAR 57

52.204-16 Commercial and Government Entity Code Reporting Jul 2016 FAR 57

52.204-18 Commercial and Government Entity Code Maintenance Jul 2016 FAR 57

252.204-7003 Control of Government Personnel Work Product Apr 1992 DFARS 57 252.204-7011 Alternative Line Item Structure Sep 2011 DFARS 57

252.204-7016 Covered Defense Telecommunications Equipment or Services – Representation Dec 2019 DFARS

252.205-7000 Provision of Information to Cooperative Agreement Holders Dec 1991 DFARS 57

52.208-09 Contractor Use of Mandatory Sources of Supply or Services May 2014 FAR 58

252.209-7004

Subcontracting with Firms that are Owned or Controlled by the Government of a Terrorist Country Oct 2015 DFARS 58

52.211-05 Material Requirements Aug 2000 FAR 58 52.211-17 Delivery of Excess Quantities Sep 1989 FAR 58 252.211-7007 Reporting of Government-Furnished Property Aug 2012 DFARS 58 52.219-08 Utilization of Small Business Concerns Nov 2016 FAR 58

252.219-7003 Small Business Subcontracting Plan (DoD Contracts) ALT 1 Mar 2016 DFARS 58

52.222-29 Notification of Visa Denial Apr 2015 FAR 58

52.222-56 Certification Regarding Trafficking in Persons Compliance Plan Mar 2015 FAR 58

52.225-14 Inconsistency Between English Version and Translation of Contract Feb 2000 FAR 58

52.225-25

Prohibition on Contracting with Entities Engaging in Certain Activities or Transactions relating to Iraq Representation and Certifications Oct 2015 FAR 58

252.225-7001 Buy American Act and Balance of Payments Program Dec 2017 DFARS 58

252.225-7002 Qualifying Country Sources as Subcontractors Dec 2017 DFARS 58

252.225-7004

Report of Intended Performance Outside the United States and Canada – Submission After Award Oct 2015 DFARS 58

252.225-7005 Identification of Expenditures in the United States Jun 2005 DFARS 58 252.225-7021 Trade Agreements Dec 2017 DFARS 58 252.225-7041 Correspondence in English Jun 1997 DFARS 58 252.225-7042 Authorization to Perform Apr 2003 DFARS 58

252.226-7001

Utilization of Indian Organizations, Indian Owned Economic Enterprises, and Native Hawaiian Small Business Concerns Sep 2004 DFARS 59

52.228-03 Workers Compensation Insurance (Defense Base Act) Jul 2014 FAR 59

52.228-05 Insurance Work on a Government Installation Jan 1997 FAR 59 52.229-06 Taxes Foreign Fixed Price Contracts Feb 2013 FAR 59 252.229-7000 Invoices Exclusive of Taxes or Duties Jun 1997 DFARS 59

252.229-7001 Tax Relief Sep 2014 DFARS 59 52.232-17 Interest May 2014 FAR 59

52.232-33 Payment by Electronic Funds Transfer System for Award Management Jul 2013 FAR 59

52.232-37 Multiple Payment Arrangements May 1999 FAR 59

252.232-7003 Electronic Submission of Payment Requests and Receiving Reports Jun 2012 DFARS 59

252.232-7008 Assignment of Claims (Overseas) Jun 1997 DFARS 59 252.232-7010 Levies on Contract Payments Dec 2006 DFARS 59 252.233-7001 Choice of Law (Overseas) Jun 1997 DFARS 59

52.233-9001 Disputes Agreement to Use Alternative Dispute Resolution (ADR) Dec 2016 DLAD 59

252.237-7010 Prohibition on Interrogation of Detainees by Contractor Personnel Jun 2013 DFARS 59

52.242-13 Bankruptcy Jul 1995 FAR 59 52.242-15 Stop Work Order Aug 1989 FAR 59 252.243-7001 Pricing of Contract Modifications Dec 1991 DFARS 59 252.243-7002 Request for Equitable Adjustment Dec 2012 DFARS 59 52.245-01 Government Property Jan 2017 FAR 59 52.245-09 Use and Charges Apr 2012 FAR 59

252.245-7001 Tagging Labeling, and Marking of Government Furnished Property Apr 2012 DFARS 60

252.245-7002 Reporting Loss of Government Property Dec 2017 DFARS 60

252.245-7003 Contractor Property Management System Administration Apr 2012 DFARS 60

252.245-7004 Reporting Reutilization, and Disposal Dec 2017 DFARS 60

252.246-7004 Safety of Facilities, Infrastructure and Equipment for Military Operations Oct 2010 DFARS 60

52.247-34 F.O.B. Destination Nov 1991 FAR 60

52.247-64 Preference for Privately Owned U.S. – Flag Commercial Vessels Feb 2006 FAR 60

252.247-7023 Transporation of Supplies by Sea Apr 2014 DFARS 60 252.247-7024 Notification of Transportation of Supplies by Sea Mar 2000 DFARS 60

52.247-9012 Requirements for Treatment of Wood Packaging Material (WPM) Feb 2007 DLAD 60

52.251-01 Government Supply Sources Apr 2012 FAR 60

252.251-7000 Ordering From Government Supply Sources Aug 2012 DFARS 60

52.253-01 Computer Generated Forms Jan 1991 FAR 60

ADDITIONAL PROCUREMENT LANGUAGE

N/A

FEDERAL FOOD, DRUG, AND COSMETIC

ACT-WHOLESALE MEAT ACT N/A

DLA Troop Support 60

N/A

IN PERSONAM JURISDICTION FOR CIVIL

OR CRIMINAL ACTIONS BROUGHT BY THE

UNITED STATES GOVERNMENT Dec 2009

DLA Troop Support 61

N/A SANITARY CONDITIONS N/A

DLA Troop Support 62

C08 Tailored Logistics Support Purchasing Reviews Feb 2017 DLA Troop Support 65

RP001 DLA Packaging Requirements for Procurement N/A DLA Troop Support 66

252.225-7981

Additional Access to Contractor and Subcontractor Records (Other Than USCENTCOM) Deviation [2015-O0016] Sep 2015 CENTCOM 67

252.225-7993 Prohibition on Providing Funds to the Enemy (Deviation 2015-O0016) Sep 2015 CENTCOM 68

252.225-7994

Additional Access to Contractor and Subcontractor Records in the United States Central Command Theater of Operations Deviation [2015-O0013] (DATED) 2015 CENCOM 68

252.225-7995

Contractor Personnel Performing in the United States Central Command Area of Responsibility (Deviation 2015-O0009) Jan 2015 CENTCOM 69

AUTHORIZED NEGOTIATORS 88

STATEMENT OF WORK

PARAGRAPH TITLE PAGE #

I Introduction 89 II Estimated Value/Guaranteed Minimum/Maximum Quantity 91 III Contract Implementation Phase 91

A Contract Implementation Phase – Ramp Up 91 B Contract Transition-Out-Rampdown 94

IV Product Sourcing and Pricing 95 A Price Definitions and Provisions 95 B Distribution Categories 103 C Domestic Item Preference 104 D Local Market Ready Items 105 E Brand Name Items 106 F Pork Items 106 G National Contracts Type Contracts 106

H DLA Troop Support Manufacturer’s Pricing Agreement Program 107 I Mandatory Items (Mandatory Food Products and Non-Food Items 108 J National Allowance Program Agreement 110

K Rebates/Discounts and Price Related Provisions 113 L Item Availability 115

M Surge and Sustainment 115 N Food Service Operating Supplies 116 O Dispensing Supplies and Services 116 P Disposal of Products 120

V Transportation 120 A Right to Use the System that Provides the Best Services 120 B Insurance/Liability and Claims 124 C Customs 127 D Prime Vendor Responsibilities Regarding Transportation 127 E Government Responsibilities Regarding Transportation 127 F Vehicle Transportation 128 G Global Positioning System 128 H Private Convoy Security in Iraq and Syria 129 I Safety of Life at Sea (SOLAS) 138 J Airlifts 140

K Direct Vendor Deliveries Within Iraq and Syria 142 L Overland Transport of Product in Support of Aerial Ports of Debarkation and

Sea Ports of Debarkation (APOD/SPOD) and Port to Port Shipments 142 M Prime Vendor Product Transfer 143

VI International Agreements, Workers Compensation Insurance and Interpretations/Translations 143

A International Agreements (i.e., Defense Cooperation Agreement, Diplomatic Notes, Status of Forces Agreement (“SOFA”), etc. 143

B Workers Compensation Insurance 143 C Interpretations/Translations 144

VII Inventory and Warehouse Management 144 A Warehouse Management 144 B Government Furnished Material – Operational Rations 147 C Breaking Cases 148 D Office Space and Equipment for Government Employees 149

VIII Security Measures/Force Protection and Theater Support 149 A Security Measures / Force Protection 149 B Theater Support 152 C Mandatory Eligibility for Installation Access 157

IX Quality Control, Quality Assurance and Inspections 158 A Product Quality 158 B Product Sanitarily Approved Source Requirements 162

C Warranties 162 D Quality Program 163 E Quality Systems Management Visits and Audits 171 F Warehousing and Sanitation Program/Stored Product Pest Management 171 G Delivery Temperatures, Shipping, and Storage Requirements 171 H Rejection Procedures 173 I Authorized Returns 174 J Short Shipments and Shipping Errors 174

K Army Veterinary Inspectors and Inspections 174 L Military Inspection at Destination 174

X Packaging, Packing, and Labeling 176 XI Markings 177 XII Palletization 178 XIII Customers 179

A Kuwait Customers 179 B Iraq Customers 179 C Jordan Customers 181 D Syria Customers 182

XIV Delivery, Title, Orders, and Order Fill Rates 182 A Customer Deliveries 184 B Title 184 C Ordering System – Subsistence Total Order and Receipt Electronic System

(STORES) 184

D Order Placement 186 E Order Cancellation 186 F Holidays 186 G Emergency Orders 187 H Order Fill or Substitution Policy 187 I New Items 187 J Fill Rate/Substitutions/Exceptions 190

XV Contract Authority, Administration, In-Process Reviews, Invoices, Payments, Reports, and Prime Vendor 832 Catalogs

A Contracting Authority 194 B Administration 194 C In-Process Reviews 194 D Notice to Contractors 194 E Contractor Performance Assessment Reporting System 195 F Invoicing 196 G Payments 198 H Management Reports 199 I Prime Vendor 832 Catalogs 203 J Other Considerations 205

STATEMENT OF WORK

PARAGRAPH TITLE PAGE #

AWARDED DISTRIBUTION PRICES 205

AWARDED MARKET BASKET PRODUCT PRICES 215

STORES EDI IMPLEMENTATION GUIDELINES 220

NOTE: Solicitation SPE300-15-R-0042, to include solicitation amendments 0001 through 0016, are incorporated into this contract document. Ceratin solicitation clauses and procurement language may have been updated as reflected below. The KGL final offer dated November 13, 2020 which is being accepted by the Government to form this contract, is incorporated by reference into this contract. In addition, KGL is required to complete its transition in accordance with its proposal submissions.

52.204-24 - Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2020)

The Offeror shall not complete the representation at paragraph (d)(1) of this provision if the Offeror has represented that it “does not provide covered telecommunications equipment or services as a part of its offered products or services to the Government in the performance of any contract, subcontract, or other contractual instrument” in the provision at 52.204-26, Covered Telecommunications Equipment or Services—Representation, or in paragraph (v) of the provision at 52.212-3, Offeror Representations and Certifications- Commercial Items.

(1) Definitions. As used in this provision-

Backhaul, covered telecommunications equipment or services, critical technology, interconnection arrangements, reasonable inquiry, roaming, and substantial or essential component have the meanings provided in the clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.

(2) Prohibition. (1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

Nothing in the prohibition shall be construed to—

(1) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements;

or

(2) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract or extending or renewing a contract with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This prohibition applies to the use performance of work under a Federal contract. Nothing in the prohibition shall be construed to—

(2) Prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements;

or

(3) Cover telecommunications equipment that cannot route or redirect user data traffic or cannot permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(c) Procedures. The Offeror shall review the list of excluded parties in the System for Award

Management (SAM) (https://www.sam.gov) for entities excluded from receiving federal awards for “covered telecommunications equipment or services.”

(d) Representations. The Offeror represents that—

(1) It [] will, [] will not provide covered telecommunications equipment or services to the

Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation. The Offeror shall provide the additional disclosure information required at paragraph (e)(1) of this section if the Offeror responds “will” in paragraph (d)(1) of this section; and

(2) After conducting a reasonable inquiry, for purposes of this representation, the Offeror represents that—

It [] does, [] does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services. The Offeror shall provide the additional disclosure information required at paragraph (e)(2) of this section if the Offeror responds “does” in paragraph (d)(2) of this section.

(e) Disclosures. (1) Disclosure for the representation in paragraph (d)(1) of this provision. If the

Offeror has responded “will” in the representation in paragraph (d)(1) of this provision, the Offeror shall provide the following information as part of the offer:

(i) For covered equipment—

(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the original equipment manufacturer (OEM) or a distributor, if known);

(B) A description of all covered telecommunications equipment offered (include brand;

model number, such as OEM number, manufacturer part number, or (C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.

(ii) For covered services—

(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B) If not associated with maintenance, the Product Service Code (PSC) of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(1) of this provision.

(2) Disclosure for the representation in paragraph (d)(2) of this provision. If the Offeror has responded “does” in the representation in paragraph (d)(2) of this provision, the Offeror shall provide the following information as part of the offer:

(i) For covered equipment—

(A) The entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known);

(B) A description of all covered telecommunications equipment offered (include brand;

model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); and

(C) Explanation of the proposed use of covered telecommunications equipment and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b)(2) of this provision.

(ii) For covered services—

(A) If the service is related to item maintenance: A description of all covered telecommunications services offered (include on the item being maintained: Brand; model number, such as OEM number, manufacturer part number, or wholesaler number; and item description, as applicable); or

(B) If not associated with maintenance, the PSC of the service being provided; and explanation of the proposed use of covered telecommunications services and any factors relevant to determining if such use would be permissible under the prohibition in par(End of provision)

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2020)

(a) Definitions. As used in this clause— Backhaul means intermediate links between the core network, or backbone network, and the small subnetworks at the edge of the network (e.g., connecting cell phones/towers to the core telephone network). Backhaul can be wireless (e.g., microwave) or wired (e.g., fiber optic, coaxial cable, Ethernet).

Covered foreign country means The People’s Republic of China. Covered telecommunications equipment or services means–

(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);

(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou

Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);

(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or

(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

Critical technology means–

(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;

(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled-

(1) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(2) For reasons relating to regional stability or surreptitious listening;

(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);

(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);

(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or

(b) Emerging and foundational technologies controlled pursuant to section 1758 of the Ex ort Control Reform Act of 2018 (50 U.S.C. 4817).

Interconnection arrangements means arrangements governing the physical connection of two or more networks to allow the use of another’s network to hand off traffic where it is ultimately delivered (e.g., connection of a customer of telephone provider A to a customer of telephone company B) or sharing data and other information resources.

Reasonable inquiry means an inquiry designed to uncover any information in the entity’s possession about the identity of the producer or provider of covered telecommunications equipment or services used by the entity that excludes the need to include an internal or third-party audit.

Roaming means cellular communications services (e.g., voice, video, data) received from a visited network when unable to connect to the facilities of the home network either because signal coverage is too weak or because traffic is too high.

Substantial or essential component means any component necessary for the proper function or performance of a piece of equipment, system, or service.

(b) Prohibition.

(1) Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019

(Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2019, from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The Contractor is prohibited from providing to the Government any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104.

(2) Section 889(a)(1)(B) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232) prohibits the head of an executive agency on or after August 13, 2020, from entering into a contract, or extending or renewing a contract, with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception at paragraph (c) of this clause applies or the covered telecommunication equipment or services are covered by a waiver described in FAR 4.2104. This prohibition applies to the use of covered telecommunications equipment or services, regardless of whether that use is in performance of work under a Federal contract.

(c) Exceptions. This clause does not prohibit contractors from providing—

(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

(d) Reporting requirement.

(1) In the event the Contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the Contractor is notified of such by a subcontractor at any tier or by any other source, the Contractor shall report the information in paragraph (d)(2) of this clause to the Contracting Officer, unless elsewhere in this contract are established procedures for reporting the information; in the case of the Department of Defense, the Contractor shall report to the website at https://dibnet.dod.mil. For indefinite delivery contracts, the Contractor shall report to the Contracting Officer for the indefinite delivery contract and the Contracting Officer(s) for any affected order or, in the case of the Department of Defense, identify both the indefinite delivery contract and any affected orders in the report provided at https://dibnet.dod.mil.

(2)The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause (i)Within one business day from the date of such identification or notification: the contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known);

supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description;

and any readily available information about mitigation actions undertaken or recommended.

(ii)Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.

(e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e) and excluding paragraph (b)(2), in all subcontracts and other contractual instruments, including subcontracts for the acquisition of commercial items.

(End of clause)

52.212-4 – CONTRACT TERMS AND CONDICTIONS – COMMERCIAL ITEMS (JAN 2017)

FAR

(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.

(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 (31 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 41 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 52.233-1, 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 52.202-1, 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.

(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., 52.232-33, Payment by Electronic Funds Transfer— System for Award Management, or 52.232-34, 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 (31 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 (31 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 52.212-5(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 interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid.

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

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

33.211 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 32.607-2).

(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 32.608-2 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.

(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 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts;

18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 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 52.212-5.

(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.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(t) System for Award Management (SAM).

(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)

(i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day’s written notification of its intention to:

(A) Change the name in the SAM database;

(B) Comply with the requirements of Subpart 42.12 of the FAR;

(C) Agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor’s SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of payment” paragraph of the EFT clause of this contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through https://www.acquisition.gov.

(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 Use 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.

(v) 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.

(End of Clause)

Addendum to 52.212-4:

The following paragraph of 52.212-4 is amended as indicated below:

Paragraph (t), System for Award Management.

Add the following paragraph:

(a) Definitions.

“System for Award Management (SAM) database” means the primary Government repository for prospective Federal awardee and Federal awardee information and the centralized Government system for certain contracting, grants, and other assistance-related processes.

“Commercial and Government Entity (CAGE) Code” means—

(1) An identifier assigned to entities located in the United States or its outlying areas by the Defense Logistics Agency (DLA) Commercial and Government Entity (CAGE) Branch to identify a commercial or Government…