STANDARD_CONTRACT_PROVISIONS_(2)_(1).pdf

801 Mount Vernon Place, NW Washington, DC 20001

Standard Contract Provisions

WCSA SCP (March, 2011) 1

Washington Convention & Sports Authority (WCSA)

STANDARD CONTRACT PROVISIONS (SCP)

TABLE OF CONTENTS

Page Termination for Default 4 Termination for Convenience 6 Disputes 10 Changes 11 Stop-Work Order 11 Indemnification 13 Laws and Regulations Incorporated by Reference 14 Audits 14 Inspection of Supplies 15 Inspection of Services 17 Order of Precedence 18 Warranty 18 Shipping Instructions – Consignment 19 Transfer 19 Taxes 19 Payments – General 20 Quick Payment Clause 20 Estimated Quantities 21 Certification of Debarment and Suspension 21 Termination of Contracts for Certain Crimes and Violations 22 Multiyear Contracts 22 Health and Safety Standards 22 Non-Discrimination Clause 23 Hiring of District Residents 24 Assignment 24 Waiver 24 Covenant Against Contingent Fees 24 WCSA Employees Not To Benefit 25 Retention and Examination of Records 25 Drug-Free Workplace 26 Anti-Deficiency 28 Entire Agreement 28 Governing Law 29 Severability 29 Headings 29 WCSA Regulations 29

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Insurance 29 Confirmation with Laws 30 Contractors Furnished Equipment 31 Performance 31 Ordering Information 32 Minimum Order 32 Invoice Payment 32 Submission of Invoices 33 First Source Agreement Request For Final Payment 34 Contracting Officer 34 Authorized Changes By Contracting Officer 34 Contracting Officer’s Technical Representative (COTR) 35 Department of Labor Wage Determinations 35 Publicity 35 Freedom of Information Act 36 51% District Residents New Hires Requirement and First Source Employment Agreement

Ethical Obligations and Conflicts 38 Advisory and Assistance Services 39 Protection of Property 40 Americans With Disabilities Act of 1990 41 Section 504 of The Rehabilitation Act of 1973 41 Living Wage Act of 2006 41 Contracts That Crosses Fiscal Years 41 Confidentiality of Information 41 Time 41 Other Contracts 41 Subcontracts 42 Continuity of Services 42 Contracts in Excess of $100K 43 Contracts in Excess of $250K 43 Contracts in Excess of $1M 43 Contract Award 43 Proposal Form, Organization And Content 43 Proposal Submission 45 Withdrawal or Modification of Proposals 45 Late Modifications 45 Late Proposals 46 Explanation To Prospective Offerors 46 Failure To Submit Offers 46 Restriction on Disclosure and Use of Data 46 Proposal With Option Years 47 Proposal Protests 47 Unnecessarily Elaborate Proposals 47 Retention of Proposals 48 Proposal Costs 48

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Certificates of Insurance 48 Acknowledge of Amendments 48 Best and Final Offers 49 Familiarization With Conditions 49 Standards of Responsibility 49 Legal Status 50 Acceptance Period 50 Best Value Determination 51 Evaluation of Option Years 51 Proposal Evaluation 52 Preference For Local Businesses 52 General Preferences 52 Maximum Preference Awarded 52 Preferences For Certified Joint Ventures 52 Required Offeror Submission To Receive Preferences 52 Subcontracting Plan 53 Enforcement And Penalties For Willful Breach of Subcontracting Plan 54 Evaluation of Prompt Payment Discount 54 Performance and Payment Bonds 55 Permits, Licenses and Certificates 56 Utility Connections and Services 56 Safety Precautions 57 Guarantee of Work 57 Protection 58 Debris and Cleaning 58 WCSA Inspectors 58 Reference To Codes And Regulations 59 Stoppage of Work 59 Use of Premises 59 Coordination and Meetings 61 Change Order Breakdown 61 Significant Changes In The Character of Work 63 Termination-Delays 63 Retention of Records 64 Liquidated Damages 64 Retainage 64 Required Labor Contract Provisions 64-70 Compliance With Copeland Act Requirements 71 Compliance With Davis-Bacon and Related Act 71 Disputes Concerning Labor Standards 71

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TERMINATION FOR DEFAULT

(A) (1) The WCSA may, subject to paragraphs (E) and (F) below, by written notice of default to the Contractor, terminate this contract in whole or in part, if the Contractor:

(i) Fails to deliver the supplies or to perform the services within the time specified in this contract or any extension thereof; or

(ii) Fails to make progress, so as to endanger performance of this contract;

(iii) Fails to perform any of the other provisions of this contract;

or

(iv) Breaches any material provision of this contract.

(2) The WCSA’s right to terminate this contract under subparagraphs

(A)(1)(ii) and (1) (iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of notice from the Contracting Officer specifying the failure.

(B) If the WCSA terminates this contract in whole or in part, it may acquire under the terms and in the manner the Contracting Officer considers appropriate, supplies and services similar to those terminated, and the Contractor will be liable to the WCSA for any excess costs for those supplies or services. However, the Contractor shall perform all work not terminated.

(C) If the contract is terminated for default, the WCSA may require the

Contractor to transfer title and deliver to the WCSA, as directed by the Contracting Officer any: (1) completed supplies; and (2) partially completed supplies and materials, parts, told, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively referred to as “manufacturing materials” in this clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract. Upon direction from the Contracting Officer, the Contractor shall take timely, reasonable, and necessary action to protect and preserve property in the possession of the Contractor in which the WCSA has an interest.

(D) Payment for completed supplies delivered and accepted by the WCSA shall be at the contract price. Payment for manufacturing materials delivered and accepted and for the protection and preservation of property shall be in the amount agreed upon by the Contractor and Contracting

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Officer. If the parties fail to agree, the Contracting Officer shall set an amount subject to the Contractor’s rights of appeal under the disputes clause hereunder. The WCSA may withhold from amounts due to Contractor such sums as the Contracting Officer deems to be necessary to protect the WCSA against loss because of outstanding liens or claims of former lien holders and to reimburse the WCSA for the excess cost incurred in procuring similar goods and services.

(E) Except with respect to defaults of subcontractors, the Contractor shall not be in default if the Contractor notifies the Contracting Officer within 15 days after the cause of the failure to perform or to make progress and the failure to perform the contract or to make progress arises from causes beyond the control and without the fault or negligence of the Contractor.

Examples of such causes (all of which shall constitute a “Force Majeure”) include: (1) acts of God; (2) acts of the public enemy; (3) acts of the WCSA in its sovereign or contractual capacity; (4) fires; (5) floods; (6) epidemics; (7) quarantine restrictions; (8) strikes or other labor disputes;

(9) freight embargoes; (10) unusually severe weather; or (11) acts of terrorism. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor.

(F) If the failure to perform or to make progress arises out of the default of a Subcontractor and if the default is beyond the control of both the Contractor and subcontractor, without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless the supplies or services to be furnished by the subcontractor were reasonably obtainable from other sources in sufficient time to permit the Contractor to meet the contract requirements.

(G) As used in paragraphs (E) and (F) of this clause, the term “subcontractor” means subcontractor at any tier.

(H) If, after termination, it is determined that the Contractor was not in default, or that the default was excusable as provided hereunder, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the WCSA.

(I) The rights and remedies of the WCSA provided in this clause are in addition to any other rights and remedies provided by law, in equity, or under this contract.

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TERMINATION FOR CONVENIENCE

(A) The WCSA may terminate this contract, in whole or in part, from time to time, if the Contracting Officer determines that termination is in the WCSA’s best interest. The Contracting Officer shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date.

(B) After receipt of a Notice of Termination, and except as directed by the

Contracting Officer, the Contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:

(1) Stop work as specified in the notice.

(2) Place no further subcontracts or orders (referred to as subcontracts in this clause) for materials, services, or facilities, except as necessary to complete the continued portion of the contract.

(3) Terminate all subcontracts to the extent they relate to the work terminated.

(4) Assign to the WCSA, as directed by the Contracting Officer, all rights, title, and interest of the Contractor under the subcontracts terminated, in which case the WCSA shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

(5) With approval or ratification to the extent required by the

Contracting Officer, settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts;

the approval or ratification will be final for purposes of this clause.

(6) As directed by the Contracting Officer, transfer title and deliver to the WCSA:

I. the fabricated or un-fabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

II. the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the WCSA.

(7) Complete performance of the work not terminated.

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(8) Take any action that may be necessary, or that the Contracting Officer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the WCSA has or may acquire an interest.

(9) Use its best efforts to sell, as directed or authorized by the

Contracting Officer, any property of the types referred to in subparagraph (6) above; provided, however that the Contractor (i) is not required to extend credit to any purchaser; and (ii) may acquire the property under the conditions prescribed by, and at prices approved by, the Contracting Officer. The proceeds of any transfer of disposition will be applied to reduce any payments to be made by the WCSA under this contract, credited to the price or cost of the work, or paid in any other manner directed by the Contracting Officer.

(C) After the expiration of ninety (90) days (or such longer period as may be agreed to) after receipt by the Contracting Officer of acceptable inventory schedules, if applicable, the Contractor may submit to the Contracting Officer a list, certified as to quantity, and quality of termination inventory not previously disposed of excluding items authorized for disposition by the Contracting Officer. The Contractor may request the WCSA to remove those items or enter into an agreement for their storage. Within fifteen

(15) days, the WCSA will accept title to those items and remove them or enter into a storage agreement. The Contracting Officer may verify the list upon removal of items or if stored, within forty-five (45) days from submission of the list, and shall correct the list, as necessary, before final settlement.

(D) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribed by the Contracting Officer and the cost and pricing data required by 19 D.C.M.R. 301.5, as amended. The Contractor shall submit the proposal promptly, but no later than one (1) year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this one (1) year period.

However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after one

(1) year or any extension. If the Contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, based on information available, the amount, if any, due the Contractor because of the termination and shall pay the amount determined.

(E) Subject to paragraph (D) above, the Contractor and the Contracting

Officer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable

WCSA SCP (March, 2011) 8 allowance for profit in work done. However, the agreed amount, whether under this paragraph (E) or in subparagraph (F)(3) below, may not exceed the total contract price as reduced by (1) the amount of payments previously made; and (2) the contract price of work not terminated. The contract shall be amended, and the Contractor shall be paid the agreed amount. Except as otherwise set forth therein, paragraph (F) below shall not limit, restrict, or affect the amount that may be agreed upon to be paid under this paragraph.

(F) If the Contractor and the Contracting Officer fail to agree on the amount to be paid because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined by the Contracting Officer as follows, but without duplication of any amounts agreed on under paragraph (E) above:

(1) The contract price for completed supplies or services accepted by

WCSA (or sold or acquired under subparagraph (B) (9) above) not previously paid for, adjusted for any saving of freight and other charges.

(2) The total of:

I. The cost incurred in the work performed by Contractor prior to termination, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to supplies or services paid or to be paid under subparagraph (F) (1) above;

II. The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in subdivision (I) above; and

III. A sum, as profit on subdivision (I) above, determined by the Contracting Officer to be fair and reasonable; however, if it appears that the Contractor would have sustained a loss on the entire contract had it been completed, the Contracting Officer shall allow no profit under this subdivision (III) and shall reduce the settlement to reflect the indicated rate of loss.

(3) The reasonable costs of settlement of the terminated contract, including:

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I. Accounting, legal, clerical and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data;

II. The termination and settlement of subcontracts (excluding the amounts of such settlements); and

III. Storage, transportation, and other costs incurred.

(G) Except for normal spoilage, and except to the extent that the WCSA expressly assumed the risk of loss, the Contracting Officer shall exclude from the amounts payable to the Contractor under paragraph (F) above, the fair value, as determined by the Contracting Officer, of property that is destroyed, lost, stolen, or damaged so as to become undeliverable to the WCSA or to a buyer.

(H) The cost principles and procedures of 19 D.C.M.R. 310 shall govern all costs claimed, agreed to, or determined under this clause.

(I) The Contractor shall have right of appeal under the Disputes clause set forth under Section 1.3 of these provisions, from any determination made by the Contracting Officer under paragraphs (D), (F) or (K) of this Section 1.2, except that if the Contractor failed to submit the termination settlement proposal within the time provided in paragraphs (D) or (K) and failed to request a time extension, there is no right of appeal. If the Contracting Officer has made a determination of the amount due under paragraphs (D), (F) or (K), the WCSA shall pay the Contractor: (1) the amount determined by the Contracting Officer if there is no right of appeal or if no timely appeal has been taken; or (2) the amount finally determined on appeal.

(J) In arriving at the amount due the Contractor under the terminated portion of this contract, there shall be deducted:

1) all un-liquidated advance or other payments to the Contractor under the terminated portion of this contract;

2) any claim which the WCSA has against the Contractor under this contract; and

3) the agreed price for, or the proceeds of sale of materials, supplies, or other things acquired by the Contractor or sold under the provisions of this clause and not recovered by or credited to the

WCSA.

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(K) If the termination is partial, the Contractor may file a proposal with the Contracting Officer for an equitable adjustment of the price(s) of the continued portion of the contract. The Contracting Officer shall make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitable adjustment under this clause shall be requested within 90 days from the effective date of termination unless extended in writing by the Contracting Officer.

(L) (1) The WCSA may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated portion of the contract, if the Contracting Officer believes the total of these payments will not exceed the amount which the Contractor will be entitled.

(2) If the total payments exceed the amount finally determined to be due, the contractor shall repay the excess to the WCSA upon demand, together with interest computed at the rate of one (1%) percent a month. Interest shall be computed from the date the excess payment is received by the Contractor to the date the excess is repaid. Interest shall not be charged on any excess payment due to reduction in the Contractor’s termination settlement proposal because of retention or other disposition of termination inventory until 10 days after the date of the retention or disposition, or a later date determined by the Contracting Officer because of the circumstances.

(M) Unless otherwise provided in this contract or by statute, the Contractor shall maintain all records and documents relating to the terminated portion of the contract for 3 years after the final settlement. This includes all books and other evidence bearing on the Contractor’s costs and expenses under this contract. The Contractor shall make these records and documents available to the WCSA, at the Contractor’s office, at all reasonable times, without charge. If approved by the Contracting Officer, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.

DISPUTES

(A) In order to make a claim under a contract, a party to the contract shall submit to the WCSA’s Chief Contracting Officer a written assertion that the party is entitled to the payment of money in a sum certain, the adjustment or interpretation of a contract provision, or other relief under the contract. If a claim filed on behalf of a Contractor has a value of more than $50,000, the claim shall be accompanied by the certification of the Contractor that the claim is made in good faith and that, the amount or adjustment requested and the supporting data are accurate and complete to the best of the Contractor’s knowledge and belief.

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(B) The WCSA’s Chief Contracting Officer shall attempt to resolve all contractual disputes by mutual agreement after informal discussion. The WCSA’s Chief Contracting Officer may agree to the use of alternative dispute resolution procedure, in accordance with the principles governing procurements by the Federal government set forth in relevant sections of Title 48 Code of Federal Regulations at any time that the WCSA’s Chief Contracting Officer has authority to resolve the issue in controversy.

(C) If the WCSA’s Chief Contracting Officer cannot resolve a claim after informal discussion, the WCSA’s Chief Contracting Officer shall, within sixty (60) days of receipt of the claim, issue a written decision granting or denying the claim, giving the WCSA’s Chief Contracting Officer’s reasoning, and setting forth the Contractor’s appeal rights. The WCSA’s Chief Contracting Officer’s failure to issue a decision within this time shall be deemed a denial of the claim for appealing the WCSA’s final decision to the District of Columbia Contract Appeals Board.

(D) The District of Columbia Contract Appeals Board shall have exclusive jurisdiction to review final action of the WCSA on any disputes.

CHANGES

The Contracting Officer may, at any time, by written order, and without notice to the surety, if any, make changes in the contract within the general scope hereof.

If such change causes an increase or decrease in the cost of performance of this contract, or in the time required for performance, an equitable adjustment shall be made. Any claim for adjustment under this paragraph must be asserted within ten (10) days from the date the change is offered, provided, however, that the Contracting Officer, if he or she determines that the facts justify such action, may receive, consider and adjust any such claim asserted at any time prior to the date of final settlement of the con- tract. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in the Dispute clause hereto. Nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.

STOP-WORK ORDER

(A) Order to Stop Work. The Contracting Officer may, by written order to the Contractor, at any time, and without notice to any surety, require the Contractor to stop all and any part of the work called for by this contract.

This order shall be for a specified period not exceeding (90) days after the order is delivered to the Contractor, unless the parties agree to any further period. Any such order shall be identified specifically as a stop-work order issued pursuant to this clause. Upon receipt of such an order the

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Contractor shall forthwith comply with its terms and take all reasonable steps to minimize the occurrence of costs allocable to the work covered by the order during the period of work stoppage. Before the stop-work order expires, or within any further period to which the parties shall have agreed, the Contracting Officer shall either:

(1) Cancel the stop-work order; or

(2) Terminate the work covered by such order as provided in the termination clauses of this contract.

(B) Cancellation or Expiration of the Order. If a stop-work order issued under this is issued under, this clause is cancelled at any time during the specified in the order, or if the period of the order or any extension thereof expires, the Contractor shall resume work. A reasonable cost adjustment shall be made in the delivery schedule or contract price, or both, and the contract shall be modified in writing accordingly, if:

(1) The stop work order results in an increase in the time required for, or in the Contractor’s cost properly allocable to the performance of any part of this contract; and

(2) The Contractor asserts a claim for such adjustment within 30 days after the end of the period of work stoppage; if the Contracting Officer decides that the facts justify such action, any such claim asserted may be received and acted upon at any time prior to final payment under this contract.

(C) Termination of stopped work. If a stop-work order is not cancelled and the work covered by such order is terminated for convenience, the Contracting Officer shall allow reasonable costs directly resulting from the stop-work order in arriving at the termination settlement. If a stop-work order is not cancelled and the work covered by the order is terminated for default, the Contracting Officer shall allow a reasonable cost adjustment or otherwise, resulting from the stop-work order.

(D) Except as provided in this clause, no order, statement or conduct of the

Contracting Officer shall be treated as a change order under this clause or entitle the Contractor to a reasonable cost adjustment.

(E) If any such order increases or decreases the Contractor’s cost of, or the time required for performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make a reasonable cost adjustment in the contract price, the delivery schedule or both and shall modify the contract accordingly. Failure to agree upon a reasonable cost adjustment shall be a dispute under the Dispute clause.

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However, nothing under this clause shall excuse the Contractor from proceeding with the contract as changed. By proceeding with the work, the Contractor shall not be deemed to have prejudiced any claim for additional compensation, or an extension of time for delivery and/or completion under this contract.

(F) Within thirty (30) days after receipt of a written change order under

Paragraph (A) or (B) of this clause or within thirty (30) days of the furnishing of written notice under paragraph (C) hereof, unless such period is extended by the Contracting Officer in writing, the Contractor shall assert its right to an adjustment in delivery date and/or price by submitting to the Contracting Officer a written statement describing the general nature and amount of the proposed adjustment.

(G) No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment under this contract.

For a cost reimbursement contract, substitute the following for (E) and add (H):

(E) If any such change causes an increase or decrease in the estimated cost, or the time required for the performance of any part of the work under his contract whether or not changed by the order, or otherwise affects any other terms and conditions of this contract, the CO shall make an equitable adjustment in the: (1) estimated cost, delivery or completion schedule or both; (2) amount of any fixed fee; and (3) other affected terms and shall modify the contract accordingly.

(H) Notwithstanding the terms and conditions of paragraphs (A), (B) and

(D) above, the estimated cost of this contract and, if this contract is incrementally funded, the funds allotted for the performance of this contract is incrementally funded, the new amount allotted to the contract. Until this modification is made, the Contractor shall not be obligated to continue performance or incur costs beyond the cost ceiling(s) set forth in this contract.

INDEMNIFICATION

(A) The Contractor shall indemnify and save harmless the WCSA and all its directors, officers, agents, employees, and representatives from and against any and all losses, expenses, liabilities, claims, damages of any kind arising from or relating to or as a consequence of any act, omission, neglect, breach or default of the Contractor, its agents, employees, or its subcontractors in connection with this contract.

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(B) The indemnification obligation under this section shall not be limited by the existence of any insurance policy or by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any subcontractor, and shall survive the termination of this Contract. The WCSA agrees to give Contractor written notice of any claim of indemnity under this section. Additionally, Contractor shall have the right and sole authority to control the defense or settlement of such claim with counsel satisfactory to the WCSA, provided that no contribution or action by the WCSA is required in connection with the settlement. In addition to other remedies available to WCSA, WCSA may withhold or retain monies due or to become due the Contractor under the contract to satisfy any outstanding claim which the WCSA may have against the Contractor.

LAWS AND REGULATIONS INCORPORATED BY REFERENCE

(A) The provisions of the following Acts, together with the provisions of applicable regulations made pursuant to said Acts are to the extent applicable, incorporated by reference in this contract, together with other applicable laws and regulations of the District of Columbia:

(1) Contract Work Hours and Safety Standards Act, as amended, 40

U.S.C. 328(b)

(2) Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 206

(3) Buy American Act of 1933, as amended, 41 U.S.C. 10a-10d

(4) Service Contract Act of 1965, as amended, 41 U.S.C. 351-358

(5) The Washington Convention Center Management Act of 1979, as amended, D.C. Code Section 9-601, et seq.

(6) First Source Employment Act of 1984, as amended, DC Law 5-93;

DC Code §2-219.01 et seq.

(7) Small, Local, and Disadvantaged Business Development and

Assistance Act of 2005, as amended, DC Law 16-33; DC Code §2-

218.01 et seq.

(8) Washington Convention Center Authority Act of 1994, as amended, DC Law 10-188, DC Code §10-1202.03

AUDITS

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The WCSA may conduct audits of the Contractor’s books and records at the Contractor or subcontractor’s facility. Unless otherwise specified by the terms of the contract, audits will be conducted at the expense of the WCSA.

INSPECTION OF SUPPLIES

(A) Definition. “Supplies,” as used in this clause, includes, but is not limited to raw materials, components, intermediate assemblies, end products, and lots of supplies.

(B) The Contractor shall provide and maintain an inspection system acceptable to the WCSA covering supplies under this contract and shall tender to the WCSA for acceptance only supplies that have been inspected in accordance with the inspection system and have been found by the Contractor to be in conformity with contract requirements. As part of the system, the Contractor shall prepare records evidencing all inspections made under the system and the outcome. These records shall be kept complete and made available to the WCSA during contract performance and for as long afterwards as the contract requires. The WCSA may perform reviews and evaluations as reasonably necessary to ascertain compliance with this paragraph. These reviews and evaluations shall be conducted in a manner that will not unduly delay the contract work. The right of review, whether exercised or not, does not relieve the Contractor of the obligations under this contract.

(C) The WCSA has the right to inspect and/or test all supplies called for by the contract, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The WCSA shall perform inspections and tests in a manner that will not unduly delay the work. The WCSA assumes no contractual obligation to perform any inspection or test for the benefit of the Contractor unless specifically set forth elsewhere in the contract.

(D) If the WCSA performs inspections or tests on the premises of the

Contractor or subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, without additional charge, all reasonable facilities and assistance for the safe and convenient performance of these duties. Except as otherwise provided in the contract, the WCSA shall bear the expense of WCSA inspections or tests made at other than Contractor’s or subcontractor’s premise; provided, that in case of rejection, the WCSA shall not be liable for any reduction in the value of inspection or test samples.

(E) (1) When supplies are not ready at the time specified by the Contractor for inspection or test, the Contracting Officer may charge to the Contractor the additional cost of inspections or tests.

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(2) The Contracting Officer may also charge the Contractor for any additional cost of inspections or tests when prior rejection makes re-inspection or retest necessary.

(F) The WCSA has the right either to reject or to require correction of nonconforming supplies. Supplies are nonconforming when they are defective in material or workmanship or otherwise not in conformity with contract requirements. The WCSA may reject nonconforming supplies with or without disposition instructions.

(G) The Contractor shall remove supplies rejected or required to be corrected.

However, the Contracting Officer may require or permit correction in place, promptly after notice, by and at the expense of the Contractor. The Contractor shall not tender for acceptance corrected or rejected supplies without disclosing the former rejection or requirement for correction, and when required, shall disclose the corrective action taken.

(H) If the Contractor fails to promptly remove, replace, or correct rejected supplies that are required to be replaced or corrected, the WCSA may either (1) by contract or otherwise, remove, replace or correct the supplies and charge the cost to the Contractor or (2) terminate the contract for default. Unless the Contractor corrects or replaces the supplies within the delivery schedule, the Contracting Officer may require their delivery and make an equitable price reduction. Failure to agree to a price reduction shall be a dispute.

(I) (1) If this contract provides for the performance of WCSA quality assurance at source, and if requested by the WCSA, the Contractor shall furnish advance notification of the time (i) when Contractor inspection or tests will be performed in accordance with the terms and conditions of the contract and (ii) when the supplies will be ready for WCSA inspection.

(2) The WCSA request shall specify the period and method of the advance notification and the WCSA representative to whom it shall be furnished. Requests shall not require more than two (2) business days of advance notification if the WCSA representative is in residence in the Contractor’s plant, nor more than seven (7) business days in other instances.

(J) The WCSA shall accept or reject supplies as promptly as practicable after delivery, unless otherwise provided in the contract. WCSA’s failure to inspect and accept or reject the supplies shall not relieve the Contractor from the responsibility, nor impose liability upon the WCSA, for correcting the non- conforming supplies.

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(K) Inspections and tests by the WCSA do not relieve the Contractor of responsibility for defects or other failures to meet contract requirements discovered before acceptance. Acceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided in the contract.

(L) If acceptance is not conclusive for any of the reasons in paragraph (K) hereof, the WCSA, in addition to any other rights and remedies provided at law, in equity, or under provisions of this contract, shall have the right to require the Contractor (1) at no increase in contract price, to correct or replace the defective or nonconforming supplies at the original point of delivery or at the Contractor’s plant at the Contracting Officer’s election, and in accordance with a reasonable delivery schedule as may be agreed upon between the Contractor and the Contracting Officer; provided, that the Contracting Officer may require a reduction in contract price if the Contractor fails to meet such delivery schedule, or (2) within a reasonable time after receipt by the Contractor of notice of defects or noncompliance, to repay such portion of the contract as is equitable under the circumstances if the Contracting Officer elects not to require correction or replacement. When supplies are returned to the Contractor, the Contractor shall bear the transportation cost from the original point of delivery to the Contractor’s plant and return to the original point when that point is not the Contractor’s plant. If the Contractor fails to perform or act as required in

(1) or (2) above and does not cure such failure within a period of 10 days (or such longer period as the Contracting Officer may authorize in writing) after receipt of notice from the Contracting Officer specifying such failure, the WCSA shall have the right to contract or otherwise to replace or correct such supplies and charge to the Contractor the cost occasioned the WCSA thereby.

INSPECTION OF SERVICES

(A) “Services” as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.

(B) The Contractor shall provide and maintain an inspection system acceptable to the WCSA covering the services under this contract.

Complete records of all inspection work performed by the Contractor shall be maintained and made available to the WCSA during contract performance and for as long afterwards as the contract requires.

(C) The WCSA has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. The WCSA shall perform inspections and tests in a manner that will not unduly delay the work.

WCSA SCP (March, 2011) 18

(D) If any of the services do not conform to contract requirements, the WCSA may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in service cannot be corrected by re-performance, the WCSA may:

1) require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and

2) reduce the contract price to reflect the reduced value of the services performed.

(E) If the Contractor fails to promptly perform the services again or take the necessary action to ensure future performance in conformity with contract requirements, the WCSA may.

1) by contract or otherwise, perform the services and charge to the Contractor any cost incurred by the WCSA that is directly related to the performance of such service; and

2) reduce the contract price to reflect the reduced value of the services performed.

ORDER OF PRECEDENCE

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(a) The Schedule (excluding the specifications).

(b) The specifications.

(c) Representations and other instructions.

(d) Contract clauses.

(e) Other documents, exhibits, and attachments.

WARRANTY

(A) For Goods. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in the contract.

(B) For Services. (a) Notwithstanding inspection and acceptance by the

WCSA or any provision concerning the conclusiveness thereof, the Contractor warrants that all services performed under this contract will, at the time of acceptance, be provided in a workmanlike manner and conform to the requirements of the contract. The Contracting Officer shall

WCSA SCP (March, 2011) 19 give written notice of any defect or nonconformance to the Contractor within 30 days from the date of acceptance by the WCSA. This notice shall state either—

(1) That the Contractor shall correct or reperform any defective or nonconforming services; or

(2) That WCSA does not require correction or reperformance.

(b) If the Contractor is required to correct or reperform, it shall be at no cost to the WCSA, and any services corrected or reperformed by the Contractor shall be subject to this clause to the same extent as work initially performed. If the Contractor fails or refuses to correct or reperform, the Contracting Officer may, by contract or otherwise, correct or replace with similar services and charge to the Contractor the cost occasioned to the WCSA thereby, or make an equitable adjustment in the contract price.

(c) If the WCSA does not require correction or reperformance, the

Contracting Officer shall make an equitable adjustment in the contract price.

SHIPPING INSTRUCTIONS – CONSIGNMENT

Unless otherwise specified in the Invitation for Bids/Request for Proposals, each case, crate, barrel, package, etc., delivered under the contract must be plainly stencil marked or securely tagged, stating the Contractor’s name, contract number and delivery address as noted in the contract. In case of carload lots, the Contractor shall tag the car, stating Contractor’s name and contract number. Any failure to comply with these instructions will place the material at the Contractor’s risk. Deliveries by rail, water, truck or otherwise, must be within the working hours and in ample time to allow for unloading and if necessary, the storing of the materials or supplies before closing time. Deliveries at any other time will not be accepted unless specific arrangements have been previously made with the contact person identified in the contract at the delivery point.

TRANSFER

No contract or any interest therein shall be transferred by the parties to whom the award is made; such transfer will be null and void and will be cause to annul the contract.

TAXES

WCSA SCP (March, 2011) 20

(A) WCSA is exempt from and will not pay Federal Excise Tax, Transportation Tax, and District of Columbia Sales and Use Taxes.

(B) Tax exemption certificates are no longer issued by the District for Federal

Excise Tax. The following statement may be used by the supplier when claiming tax deductions for Federal Excise Tax exempt items sold to the

WCSA.

“WCSA AS AN INDEPENDENT AGENCY OF THE

DISTRICT OF COLUMBIA GOVERNMENT IS EXEMPT

FROM FEDERAL EXCISE TAX UNDER REGISTRATION

NO. 52-73-0206-K, INTERNAL REVENUE SERVICE,

BALTIMORE, MARYLAND.”

WCSA IS ALSO EXEMPT FROM MARYLAND SALES

TAX, AND IS REGISTERED WITH THE MARYLAND

COMPTROLLER OF THE TREASURY FOR THE

PURPOSES OF THE FOLLOWING:

Deliveries to other District Departments or Agencies – Exemption No. 09339

PAYMENTS - GENERAL

The WCSA shall pay the Contractor, upon the submission of proper invoices, the prices stipulated in the contract for supplies delivered and accepted or services rendered and accepted, less any deductions provided in the contract. Unless otherwise specified in this contract, payments will be made only after performance of the contract in accordance with all provisions thereof.

QUICK PAYMENT CLAUSE

(A) The WCSA will pay interest penalties on amounts due to the Contractor under the Quick Payment Act, D.C. Official Code §2-221.01 et seq., for the period beginning on the day after the required payment date and ending on the date on which payment of the amount is made. Interest shall be calculated at the rate of 1% per month. No interest penalty shall be paid if payment for the completed delivery of the item of property or service is made on or before:

(1) the third (3rd) day after the required payment date for meat or a meat product;

(2) the fifth (5th) day after the required payment date for an agricultural commodity; or

(3) the fifteenth (15th) day after the required payment date for any other item.

WCSA SCP (March, 2011) 21

(B) Any amount of an interest penalty which remains unpaid at the end of any thirty (30) day period shall be added to the principal amount of the debt and thereafter interest penalties shall accrue on the added amount.

ESTIMATED QUANTITIES

It is the intent of the WCSA to secure a contract for all of the needs for items specified herein which may occur during the contract term. The WCSA agrees that it will purchase its requirements of the articles or services included herein from the Contractor. Articles and/or services specified herein have a history of repetitive use in the WCSA. The estimated quantities stated in the Invitation for Bids/Request for Proposals reflect the best estimates available. They shall not be construed to limit the quantities which may be ordered from the Contractor by the WCSA or to relieve the Contractor of his obligation to fill all such orders. Orders will be placed from time to time if and when needs arise for delivery, ALL CHARGES PREPAID, to the WCSA. The WCSA does not guarantee to order any specific quantities of any item(s) or including work hours of service.

CERTIFICATION OF DEBARMENT AND SUSPENSION

(A) The Contractor by signing the Bid/Proposal/Quote or Contract certifies to the best of its knowledge and belief that the Contractor and/or any of its Principals are not presently debarred, suspended, proposed for debarment or declared ineligible for the award of contracts by any Federal or District agency.

“Principals,” for the purposes of this certification, means officers; directors;

owners; partners; and, persons having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions).

(B) The Contractor shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Contractor learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

(C) A certification that any of the items in paragraph (A) of this provision exists will not necessarily result in withholding of an award under this solicitation.

However, the certification will be considered in connection with a determination of the Contractor’s responsibility. Failure of the Contractor to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Contractor nonresponsible.

WCSA SCP (March, 2011) 22

(D) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (A) of this provision. The knowledge and information of an Contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

(E) The certification in paragraph (A) of this provision is a material representation of fact upon which reliance was placed when making the award. If it is later determined that the Contractor knowingly rendered an erroneous certification, in addition to other remedies available to the WCSA, the Contracting Officer may terminate the contract resulting from the solicitation for default.

TERMINATION OF CONTRACTS FOR CERTAIN CRIMES AND VIOLATIONS

(A) The WCSA may terminate without liability any contract and may deduct from the contract price or otherwise recover the full amount of any fee, commission, percentage, gift, or consideration paid in violation of this title if:

(1) The Contractor has been convicted of a crime arising out of or in connection with the procurement of any work to be done or any payment to be made under the contract; or

(2) There has been any breach or violation of:

(a) Any provision of Chapter 3 of Title 19 District of Columbia Municipal Regulations (DCMR), as amended, or

(b) The contract provision against contingent fees.

(B) If a contract is terminated pursuant to this section, the Contractor:

(1) May be paid only the actual costs of the work performed to the date of termination, plus termination costs, if any; and

(2) Shall refund all profits or fixed fees realized under the Contract.

(C) The rights and remedies contained in this are in addition to any other right or remedy provided by law, and the exercise of any of them is not a waiver of any other right or remedy provided by law.

WCSA SCP (March, 2011) 23

MULTIYEAR CONTRACT

If a contract is a multiyear contract, then the following provision is made part of this contract: If funds are not appropriated or otherwise made available for the continued performance in a subsequent year of a multiyear contract, the contract for the subsequent year shall be terminated, either automatically or in accordance with the termination clause of the contract. Unless otherwise provided for in the contract, the effect of termination is to discharge both the WCSA and the Contractor from future performance of the contract, but not from the existing obligations. The Contractor shall be reimbursed for the reasonable value of any non-recurring costs incurred but not amortized in the price of the supplies or services delivered under the contract.

HEALTH AND SAFETY STANDARDS

Items delivered under this contract shall conform to all requirements of the Occupational Safety and Health Act of 1970, as amended (“OSHA”), and Department of Labor Regulations under OSHA, and all Federal requirements in effect at time of bid opening/proposal submission.

NON-DISCRIMINATION CLAUSE

(A) The Contractor shall not discriminate in any manner against any employee or applicant for employment that would constitute a violation of the District of Columbia Human Rights Act, approved December 13, 1977, as amended (D. C. Law 2-38; D. C. Official Code §2-1402.11) (2001 Ed.)(“Act” as used in this Section). The Contractor shall include a similar clause in all subcontracts, except subcontracts for standard commercial supplies or raw materials. In addition, Contractor agrees and any subcontractor shall agree to post in conspicuous places, available to employees and applicants for employment, notice setting forth the provisions of this non-discrimination clause as provided in Section 251 of the Act.

(B) Pursuant to rules of the Office of Human Rights, published on August 15, 1986 in the D. C. Register and Mayor’s Order 2002-175 (10/23/02), 49 DCR 9883, the following clauses apply to this contract:

(1) The Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status,…