Special Construction Clauses 11 Jan 21.pdf

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SPECIAL CLAUSES FOR CONSTRUCTION

NFC-36-204 - DISCLOSURE OF THE MAGNITUDE OF CONSTRUCTION PROJECTS

(NOV 2020)

Advance notices and solicitations shall state the magnitude of the requirement in terms of physical characteristics and estimated price range. In no event shall the statement of magnitude disclose the NAFI’s estimate. Therefore, the estimated price should be described in terms of one of the following price ranges:

(a) Less than $25,000.

(b) Between $25,000 and $100,000.

(c) Between $100,000 and $250,000.

(d) Between $250,000 and $500,000.

(e) Between $500,000 and $1,000,000.

(f) Between $1,000,000 and $5,000,000.

(g) Between $5,000,000 and $10,000,000.

(h) More than $10,000,000.

(End of clause)

NFC-203-14 - DISPLAY OF HOTLINE POSTER(S) (JUN 2020)

(a) Definition.

“United States,” as used in this clause, means the 50 States, the District of Columbia, and outlying areas.

(b) Display of fraud hotline poster(s). Except as provided in paragraph (c)

(1) During contract performance in the United States, the Contractor shall prominently display in common work areas within business segments performing work under this contract and at contract work sites.

(i) Any agency fraud hotline poster or Department of Homeland Security

(DHS) fraud hotline poster identified in paragraph (b)(3) of this clause; and

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(ii) Any DHS fraud hotline poster subsequently identified by the

Contracting Officer.

(2) Additionally, if the Contractor maintains a company website as a method of providing information to employees, the Contractor shall display an electronic version of the poster(s) at the website.

(3) Any required posters may be obtained as follows:

Poster(s) Obtain from

Defense Hotline Posters http://www.dodhotline.dodig.mil/Hotline/posters.cfm

(c) If the Contractor has implemented a business ethics and conduct awareness program, including a reporting mechanism, such as a hotline poster, then the Contractor need not display any agency fraud hotline posters as required in paragraph (b) of this clause, other than any required DHS posters.

(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in all subcontracts that exceed $5.5 million, except when the subcontract

(1) Is for the acquisition of a commercial item; or

(2) Is performed entirely outside the United States.

NFC-211-12 - LIQUIDATED DAMAGES – CONSTRUCTION (SEPT 2000)

(a) If the Contractor fails to complete the work within the time specified in the contract, the

Contractor shall pay liquidated damages to the NAFI in the amount of $XXX on first day and $XXX for each day thereafter for each calendar day of delay until the work is completed or accepted.

(b) If the NAFI terminates the Contractor’s right to proceed, liquidated damages will continue to accrue until the work is completed. These liquidated damages are in addition to excess costs of repurchase under the Termination clause.

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NFC-222-36 - EQUAL OPPORTUNITY FOR WORKERS WITH DISABILITIES (JUN

2020)

(a) Equal opportunity clause. The Contractor shall abide by the requirements of the equal opportunity clause at 41 CFR 60-741.5(a), as of March 24, 2014. This clause prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by the Contractor to employ and advance in employment qualified individuals with disabilities.

(c) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order in excess of the threshold specified in Federal Acquisition Regulation (FAR) 22.1408(a) on the date of subcontract award, unless exempted by rules, regulations, or orders of the Secretary, so that such provisions will be binding upon each subcontractor or vendor. The Contractor shall act as specified by the Director, Office of Federal Contract Compliance Programs of the U.S. Department of Labor, to enforce the terms, including action for noncompliance. Such necessary changes in language may be made as shall be appropriate to identify properly the parties and their undertakings.

NFC-225-9 – BUY AMERICAN–CONSTRUCTION MATERIALS (MAY 2014)

(a) Definitions. As used in this clause-- “Commercially available off-the-shelf (COTS) item”

(1) Means any item of supply (including construction material) that is

(i) A commercial item;

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the NAFI, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products.

“Component” means an article, material, or supply incorporated directly into a construction material.

“Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of

11 January 2021 Page 4 of 12 those systems are delivered to the construction site. Materials purchased directly by the NAFI are supplies, not construction material.

“Cost of components” means

(1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph

(1) of this definition, plus allocable overhead costs, but excluding profit.

Cost of components does not include any costs associated with the manufacture of the construction material.

“Domestic construction material” means

(1) An unmanufactured construction material mined or produced in the United States;

(2) A construction material manufactured in the United States, if

(i) The cost of its components mined, produced, or manufactured in the

United States exceeds 50 percent of the cost of all its components.

Components of foreign origin of the same class or kind for which non availability determinations have been made are treated as domestic; or

(ii) The construction material is a COTS item.

“Foreign construction material” means a construction material other than a domestic construction material.

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

(b) Domestic preference.

(1) This clause implements the 41 U.S.C. chapter 83, Buy American, by providing a preference for domestic construction material. In accordance with 41 U.S.C.

1907, the component test of the Buy American statute is waived for construction material that is a COTS item. The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3) of this clause.

This requirement does not apply to information technology that is a commercial item or to the construction materials or components listed by the NAFI as follows:

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____________________[Contracting Officer to list applicable excepted materials or indicate "none”]

(2) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2) of this clause if the NAFI determines that

(i) The cost of domestic construction material would be unreasonable. The cost of a particular domestic construction material subject to the requirements of the Buy American statute is unreasonable when the cost of such material exceeds the cost of foreign material by more than 6 percent;

(ii) The application of the restriction of the Buy American statute to a particular construction material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(c) Request for determination of inapplicability of the Buy American statute.

(1)

(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(3) of this clause shall include adequate information for NAFI evaluation of the request, including

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Price;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable

11 January 2021 Page 6 of 12 survey of the market and a completed price comparison table in the format in paragraph (d) of this clause.

(iii) The price of construction material shall include all delivery costs to the construction site and any applicable duty (whether or not a duty-free certificate may be issued).

(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

(2) If the NAFI determines after contract award that an exception to the Buy

American statute applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(3)(i) of this clause.

(3) Unless the NAFI determines that an exception to the Buy American statute applies, use of foreign construction material is noncompliant with the Buy American statute.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

Foreign and Domestic Construction Materials Price Comparison

Construction material description Unit of measure Quantity Price (dollars) *

Item 1

Foreign construction material

Domestic construction material

Item 2

Foreign construction material

Domestic construction material

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.]

[Include other applicable supporting information.]

[*Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).]

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(End of Clause)

NFC-236-22 - DESIGN WITH FUNDING LIMITATIONS (APR 1984)

(a) The Contractor shall accomplish the design services required under this contract so as to permit the award of a contract, using standard Federal Acquisition Regulation procedures for the construction of the facilities designed at a price that does not exceed the estimated construction contract price as set forth in paragraph (c) below. When bids or proposals for the construction contract are received that exceed the estimated price, the contractor shall perform such redesign and other services as are necessary to permit contract award within the funding limitation. These additional services shall be performed at no increase in the price of this contract. However, the Contractor shall not be required to perform such additional services at no cost to the NAFI if the unfavorable bids or proposals are the result of conditions beyond its reasonable control.

(b) The Contractor will promptly advise the Contracting Officer if it finds that the project being designed will exceed or is likely to exceed the funding limitations and it is unable to design a usable facility within these limitations. Upon receipt of such information, the Contracting Officer will review the Contractor’s revised estimate of construction cost. The NAFI may, if it determines that the estimated construction contract price set forth in this contract is so low that award of a construction contract not in excess of such estimate is improbable, authorize a change in scope or materials as required to reduce the estimated construction cost to an amount within the estimated construction contract price set forth in paragraph (c) below, or the NAFI may adjust such estimated construction contract price. When bids or proposals are not solicited or are unreasonably delayed, the NAFI shall prepare an estimate of constructing the design submitted and such estimate shall be used in lieu of bids or proposals to determine compliance with the funding limitation.

(c) The estimated construction contract price for the project described in this contract is $XXX

NFC-236-23 – RESPONSIBILITY OF THE ARCHITECT–ENGINEER CONTRACTOR

(APR 1984)

The Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by the Contractor under this contract. The Contractor shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications, and other services.

(a) Neither the NAFI’s review, approval or acceptance of, nor payment for, the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract, and

11 January 2021 Page 8 of 12 the Contractor shall be and remain liable to the NAFI in accordance with applicable law for all damages to the NAFI caused by the Contractor’s negligent performance of any of the services furnished under this contract.

(b) The rights and remedies of the NAFI provided for under this contract are in addition to any other rights and remedies provided by law.

(c) If the Contractor is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

NFC-236-24 - WORK OVERSIGHT IN ARCHITECT-ENGINEER CONTRACT (APR

1984)

The extent and character of the work to be done by the Contractor shall be subject to the general oversight, supervision, direction, control, and approval of the Contracting Officer.

NFC-236-25 – REQUIREMENTS FOR REGISTRATION OF DESIGNERS (JUN 2003)

Architects or engineers registered to practice in the particular professional field involved in a State, the District of Columbia, or an outlying area of the United States shall prepare or review and approve the design of architectural, structural, mechanical, electrical, civil, or other engineering features of the work.

NFC-236-7009 - OPTION FOR SUPERVISION AND INSPECTION SERVICES (DEC

1991)

(a)The NAFI may

(1) At its option, direct the Contractor to perform any part or all of the supervision and inspection services for the construction contract as provided under Appendix A of this contract; and

(2)Exercise its option, by written order, at any time prior to six months after satisfactory completion and acceptance of the work under this contract.

(b) Upon receipt of the Contracting Officer's written order, the Contractor shall proceed with the supervision and inspection services.

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NFC-252-2 - CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Full text is available online at:

https://www.afnafpo.afsv.net/pages/Construction-Support/Construction-Support.aspx (NAF Contracting).

NFC-252-4 - ALTERATIONS IN CONTRACT (APR 1984)

Portions of this contract are altered as follows:

NFC-252-6 - AUTHORIZED DEVIATION IN CLAUSES (NOV 2020)

(a) The use in this solicitation or contract of any NAFI clause with an authorized deviation is indicated by the addition of “(DEVIATION)” after the date of the clause.

(b) The use in this solicitation or contract of any NAFI clause with an authorized deviation is indicated by the addition of “(DEVIATION)” after the name of the regulation.

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CLAUSES INCORPORATED BY REFERENCE

NFC-202-1 Definitions NFC-203-2 Certificate of Independent Price Determination NFC-203-3 Gratuities NFC-203-5 Covenant Against Contingent Fees NFC-203-7 Anti-Kickback Procedures NFC-203-8 Cancellation, Recession, and Recovery of Funds for Illegal or Improper Activity NFC-203-10 Price or Fee Adjustment for Illegal or Improper Activity NFC-203-11 Certification and Disclosure Regarding Payments to Influence Certain Federal

Transactions NFC-203-12 Limitation on Payments to Influence Certain Federal Transactions NFC-203-13 Contractor Code of Business Ethics and Conduct NFC-203-16 Preventing Personal Conflicts of Interest.

NFC-203-17 Contractor Employee Whistleblower Rights and Requirement to Inform appraisals NFC-204-3 Taxpayer Identification NFC-204-4 Printed or Copied Double-Sided on Postconsumer Fiber Content Paper NFC-204-5 Women-Owned Business (Other Than Small Business) NFC-204-9 Personal Identity Verification of Contractor Personnel NFC-204-12 Data Universal Numbering System Number Maintenance NFC-204-19 Incorporation by Reference of Representations and Certifications NFC-209-2 Prohibition on Contracting with Inverted Domestic Corporations –

Representation.

NFC-209-5 Certification Regarding Responsibility Matters NFC-209-6 Protecting the NAFI's Interest When Subcontracting with Contractor's Debarred, Suspended, or Proposed for Debarment NFC-209-9 Updates of Publicly Available Information Regarding Responsibility Matters NFC-210-1 Market Research NFC-211-10 Commencement, Prosecution, and Completion of Work NFC-211-13 Time Extensions NFC-215-2 Audit and Records—Negotiations NFC-215-6 Place of Performance NFC-215-8 Order of Precedence—Uniform Contract Format NFC-222-1 Notice to the NAFI of Labor Disputes NFC-222-4 Contract Work Hours and Safety Standards-Overtime Compensation NFC-222-5 Employment Eligibility Verification.

NFC-222-6 Construction Wage Rate Requirements.

NFC-222-7 Withholding of Funds.

NFC-222-8 Payrolls and Basic Records NFC-222-9 Apprentices and Trainees.

NFC-222-10 Compliance with Copeland Act Requirements.

NFC-222-11 Subcontracts (Labor Standards) NFC-222-12 Contract Termination- Debarment.

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NFC-222-13 Compliance with Construction Wage Rate Requirements and Related Regulations NFC-222-14 Disputes Concerning Labor Standards.

NFC-222-18 Certification Regarding Knowledge of Child Labor for Listed End Products NFC-222-22 Previous Contracts and Compliance Reports NFC-222-25 Affirmative Action Compliance NFC-222-27 Affirmative Action Compliance Requirements for Construction.

NFC-222-37 Employment Reports on Veterans.

NFC-222-38 Compliance with Veterans' Employment Reporting Requirements

NFC-222-40 Notification of Employee Rights Under the National Labor Relations Act.

NFC-222-48 Exemption from Application of the Service Contract Labor Standards to

Contracts for Maintenance, Calibration, or Repair of Certain Equipment Certification

NFC-222-52 Exemption from Application of the Service Contract Labor Standards to Contracts for Services-Certification.

NFC-223-1 Biobased Product Certification NFC-223-2 Affirmative Procurement of Biobased Products Under Service and Construction

Contracts.

NFC-223-3 Hazardous Material Identification and Material Safety Data.

NFC-223-4 Recovered Material Certification NFC-223-6 Drug-Free Workplace.

NFC-223-9 Estimate of Percentage of Recovered Material Content for EPA – Designated

Items.

NFC-223-10 Waste Reduction Program.

NFC-223-15 Energy Efficiency in Energy-Consuming Products.

NFC-223-17 Affirmative Procurement of EPA-designated Items in Service and Construction

Contracts.

NFC-223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving NFC-224-1 Privacy Act Notification.

NFC-224-2 Privacy Act.

NFC-225-2 Buy American Act Certificate NFC-225-4 Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate NFC-225-6 Trade Agreements Certificate NFC-225-13 Restrictions on Certain Foreign Purchases NFC-225-20 Prohibition on Conducting Restricted Business Operations in Sudan-Certification NFC-225-25 Prohibition on Contracting with Entities Engaging in Certain Activities or

Transactions Relating to Iran--Representation and Certifications NFC-226-2 Historically Black College or University and Minority Institution Representation NFC-227-1 Authorization and Consent.

NFC-227-2 Notice and Assistance Regarding Patent and Copyright Infringement.

NFC-227-4 Patent Indemnity- Construction Contracts.

NFC-227-6 Royalty Information NFC-227-15 Representation of Limited Rights Data and Restricted Computer Software NFC-228-2 Additional Bond Security.

NFC-228-5 Insurance-Work on a NAFI Installation.

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NFC-228-11 Pledges of Assets NFC-228-12 Prospective Subcontractor Requests for Bonds.

NFC-228-14 Irrevocable Letter of Credit.

NFC-228-15 Performance and Payment Bonds- Construction.

NFC-229-3 Federal, State, and Local Taxes.

NFC-232-5 Payments under Fixed-Price Construction Contracts.

NFC-232-17 Interest.

NFC-232-27 Prompt Payment for Construction Contracts.

NFC-232-34 Payment by Electronic Funds Transfer – Other than System for Award

Management NFC-232-39 Unenforceability of Unauthorized Obligations.

NFC-233-3 Protest after Award.

NFC-233-4 Applicable Law for Breach of Contract Claim NFC-236-2 Differing Site Conditions NFC-236-3 Site Investigation and Conditions Affecting the Work.

NFC-236-5 Material and Workmanship.

NFC-236-6 Superintendence by the Contractor NFC-236-7 Permits and Responsibilities.

NFC-236-8 Other Contracts.

NFC-236-9

Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements.

NFC-236-10 Operations and Storage Areas.

NFC-236-11 Use & Possession Prior to Completion.

NFC-236-12 Cleaning Up.

NFC-236-13 Accident Prevention.

NFC-236-14 Availability and Use of Utility Services.

NFC-236-15 Schedules for Construction Contracts.

NFC-236-17 Layout of Work.

NFC-236-21 Specifications and Drawings for Construction.

NFC-236-26 Preconstruction Conference.

NFC-236-7009 Option for Supervision and Inspection Services NFC-242-13 Bankruptcy NFC-242-14 Suspension of Work NFC-243-4 Changes NFC-244-6 Subcontracts for Commercial Items NFC-245-1 NAFI Property NFC-246-12 Inspection of Construction NFC-246-21 Warranty of Construction NFC-248-1 Value Engineering--Construction NFC-249-1 Termination for Convenience of the NAFI (Fixed-Price) (Short Form) NFC-249-10 Default (Fixed-Price Construction)