Land Management Integrated Resources BPA Call

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Issue Date: 1 May 2026 Due Date/Time: 25 May 2026 at 1700 MST

Contractor:

BPA No. 12363N2__A4_____ Project Name Tendoy Precommercial Thinning

BPA RFQ or Call No. 1284LM26Q0063 Location Lolo NF, Missoula RD

Set-Aside Small Business__x__ Unrestricted_____ This will only be sent out to the current BPA Award Holders as of Issue Date.

Contractor: Confirm business size by NAICS code below: Small___ Large___ Initial:______ NAICS Code Exception if Applicable:

Award Information

__X___This is a single award call order. Contractor must provide pricing for all items listed under Box 20.

______This is a multi-award call order. Contractor needs to only provide pricing for all items listed under the specific award(s) they are interested in.

Contractor:

UEI:

Email:

Issuing and Billing Office:

19.

ITEM

NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

NAICS

Code (per Scope of Work)

21.

ESTIMATED

QUANTITY

22.

UNIT OF

MEASURE

23.

UNIT PRICE

24.

AMOUNT

1.1 Precommercial Thinning – Unit 610 115310 29 AC $ $

1.2 Precommercial Thinning – Unit 612 115310 21 AC $ $

1.3 Precommercial Thinning – Unit 613a 115310 7 AC $ $

1.4 Precommercial Thinning – Unit 613b 115310 11 AC $ $

1.5 Precommercial Thinning – Unit 932 115310 31 AC $ $

1.6 Precommercial Thinning – Unit 960 115310 8 AC $ $

1.7 OPTIONAL Precommercial Thinning – Unit 940 115310 79 AC $ $

1.8 OPTIONAL Precommercial Thinning – Unit 941 115310 58 AC $ $

2.1 Hand Piling – Unit 610 115310 29 AC $ $

2.2 Hand Piling – Unit 612 115310 21 AC $ $

2.3 Hand Piling – Unit 613a 115310 7 AC $ $

2.4 Hand Piling – Unit 613b 115310 11 AC $ $

2.5 Hand Piling – Unit 932 115310 31 AC $ $

2.6 Hand Piling – Unit 960 115310 8 AC $ $

2.7 OPTIONAL Hand Piling – Unit 940 115310 79 AC $ $

2.8 OPTIONAL Hand Piling – Unit 941 115310 58 AC $ $

Remarks: All clauses and provisions in the base BPA award are applicable to call orders, however clauses and/or provisions in BPA Call Orders take precedence. See Attachments for additional terms and conditions. The Period of Performance for this Call Order is from the Date of Award through 10/15/2026 Specific item due dates or deliverable due dates are mandatory, not arbitrary, and must be met accordingly, regardless of the final period of

Total Price:

Revised 04-02-2025 Page 2 of 17 performance date.

Contractor: (Name, Signature, and Date)

Date:

Requested By: (Name and Signature)

COR:

Ordered By: (Name and Signature)

Contracting Officer

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1. DESCRIPTION/STATEMENT OF WORK & SPECIFICATIONS

The Forest Service is in need of Precommercial Thinning and Hand Piling to reduce tree density and improve growing conditions.

See Exhibit 1, Statement of Work

Except for those items identified herein as Government-furnished, the Contractor shall furnish everything necessary, including, but not limited to, all labor, equipment, supervision, transportation, supplies and incidentals to perform services under this contract.

1.1 OPTIONAL UNITS

Bidders shall submit a unit price for the Mandatory units, and for each Optional Unit. Optional Units shall be awarded at the discretion of the Government, and pending availability of funds.

The Government may require the delivery of the numbered line item, identified in the schedule as an option item, in the quantity and the price stated in the schedule. The Contracting Officer may exercise the option by written notice to the Contractor within 30 days of the end of the period of performance.

Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree.

2. INSPECTION AND ACCEPTANCE:

2.1 FAR 52.246-4: INSPECTION OF SERVICES--FIXED-PRICE (AUG 1996)

a. Definition. “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 Government covering the services under this contract. Complete records of all inspection work performed by the Contractor shall be maintained and made available to the Government during contract performance and for as long afterwards as the contract requires.

c. The Government 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 Government shall perform inspections and tests in a manner that will not unduly delay the work.

d. If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

e. If any of the services do not conform with contract requirements, the Government may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by reperformance, the Government 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.

f. If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, the Government may—

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

2) Terminate the contract for default.

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2.2 CONTRACTOR QUALITY CONTROL PLAN

(A) Quality Control Plan. The Contractor, not the Government, is responsible for management and quality control actions to meet the terms of this contract. The role of the Government is quality assurance to ensure contract standards are met. The Contractor shall provide a Quality Control Plan (QCP) with the technical proposal. The Contractor shall supplement the QCP no later than ten days before beginning work, based on items awarded to the Contractor and Government comments.

The general Quality Control Plan must demonstrate how the Contractor will assure quality meets the requirements and specifications of the contract. It shall specify how quality will be monitored to assure the performance standards are met; the supervision of crew and work; and the personnel that will be performing the quality control. Quality control includes the monitoring of quality while work is in progress and an unbiased sample of thinning and other work to determine actual quality percentage.

Records of quality inspections shall be kept and made available to the Government throughout the performance period and for the period after contract completion until final settlement of any claims under this contract.

(B) Plot Inspections The Contractor shall maintain a plot system that provides an unbiased sample of thinning and other work items quality and which represents the entire area treated. The Contractor shall sample at least 1 percent of the treated area, with a minimum of 5 plots per unit/pay item. A 1/20th acre plot size shall be used during inspections however.

The Government may observe or re-inspect the Contractor’s plots at any time.

a) The Contractor shall mark and identify each inspection plot on the ground with contractor-provided flagging. Plot number shall be written on flagging.

b) The Contractor shall provide written inspection data by unit that meets contract requirements and a sketch map with plot locations. The Contractor shall use the Thinning Inspection Plot Form and inspection forms for other work that are provided in Exhibit 03, 04, and 05. See Exhibit 1, section C for tree deficiency categories and definitions.

a. Plot Tree Data On each tree thinning inspection plot conducted by the Contractor, the Contractor shall record the species of each tree and estimate and record the average diameter and height of all remaining trees on each inspection plot. Record this data on the Thinning Inspection Plot Form. This is in addition to the other required inspection information specified in Exhibit 3 Thinning Inspection Plot Form and detailed instructions, and other contract requirements.

c) All Contractor inspection records shall be provided to the Government within three business days. The person who conducted the Contractor’s inspection shall sign and date each sheet and certify that the inspection records are complete and accurate.

(C) The following calculation will be used to determine Tree Thinning Quality:

Quality = 1- Improper Cut or Selected Trees “Cat A” + Excess Trees “Cat B” X 100 Percent Satisfactory Trees left (S1, S2) up to maximum + Non-stocked spots (N1, N2)

All computations will be carried to at least thousandths (.000) and the final percentage of thinning quality as calculated above will be rounded to the nearest whole percent. Trees in excess to the maximum number of acceptable trees will be considered unsatisfactorily selected trees (Category B). Thinning quality will reflect the deductions for improperly selected or cut trees and improper treatment.

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(D) The following calculation will be used to determine the trees per acre of Category C deficiencies on the unit:

Cat C Trees per Acre = Total Category C on Plots X Reciprocal of Plot Size

Number of Plots

(E) The following calculation will be used to determine Hand Piling Quality:

% Quality = Total number from column (a)+(b)+(c)+(d) X 100 4 x Number of piles

All computations will be carried to at least thousandths (.000) and the final percentage of Hand piling quality as calculated above will be rounded to the nearest whole percent.

2.3 GOVERNMENT INSPECTION PROCEDURES – COMPLIANCE INSPECTION:

(A) Government Inspection

a. The Government will assure the Contractor is providing the quality required and that work meets the performance standards. This Government quality assurance include visual observations, and the Government will conduct inspection plots according to the procedures described in section 2.2, although the plot densities may differ from that done by the Contractor.

b. Work Quality. For each completed subitem, the Contractor’s quality control inspection percentage for thinning and for hand piling will be compared to the Government’s assessment results. If the results differ by 5 percent or less, and the inspection has been conducted to the standards specified, the Contractor’s inspection will be considered acceptable and the quality percentage will be used as the basis for payment. When the results differ by more than 5 percent, the Government’s inspection percentage will be used as the basis for payment.

c. If the Government’s results are objectionable to the Contractor, the Contractor may request a re-examination in writing within 5-calendar days after receipt of the Government’s quality assurance inspection results. The request shall include documentation that supports that the probability of an error exists. The Government’s re-examintion will consist of a 2-percent sample utilizing the same inspection method as the original examination, but new plots will be selected with different plot centers than the plots previously inspected by the Government. If the results of the re-examination are within 5-percent of the Contractor’s submitted quality control results, the Contractor’s results will be considered acceptable and used for pay. If results of the re-examination exceed 5 percent of the Contractor’s submitted quality control results, the Government’s re-examination results will be used for the basis of pay and the Contractor will be assessed the costs incurred by the Government that are directly related to the performance of such service.

(B) Tree Thinning and Slashing.

a. When the Contractor’s inspection results are below the performance standard of 90 percent quality based on the Contractor’s quality control inspection and verified by the Government monitoring, and deficiencies (excess trees) contribute to the low quality, acceptance

Revised 04-02-2025 Page 6 of 17 and payment will not be made until the deficiency has been corrected unless the Contracting Officer determines excess tree deficiency to be minor or an isolated situation that will not result in any material differences in the total number of trees to be left.

b. When the total number of Category C deficiencies exceed 25 trees per acre based on the Contractor’s quality control inspection and verified by the Government monitoring, acceptance and payment will not be made until the deficiency has been corrected unless the Contracting Officer determines the deficiencies to be minor in nature.

(C) Slash Treatment and Hand Piling. When the Contractor’s inspection results are below the performance standard of 90 percent quality based on the Contractor’s quality control inspection and verified by the Government monitoring, acceptance and payment will not be made until the deficiency has been corrected.

(D) Acceptance. Acceptance will be determined based on compliance with the contract specifications.

Noncompliance will result in non-acceptance of the work. If the Contractor’s work is determined to be unacceptable, the Government may initiate any remedies described in FAR 52.246-4 Inspection of Services.

a. If the initial work is unacceptable to the Government, the Contractor may re-work the area if deficiencies can be corrected. The Government will assess the re-work after receiving the Contractor’s inspection records which reflect that all work meets specification standards.

i. The Government will conduct quality assurance plots up to one time after the initial assessment due to rework by the Contractor.

ii. The Government will assess the Contractor the actual costs of conducting the additional quality assurance after rework. The Contractor may be assessed actual damages which may include but is not limited to: wages of the COR and Government Technical Monitor(s), costs of vehicles, meals and lodging that are incurred during the additional quality assurance.

2.4 METHOD OF CALCULATING PAYMENT

The Contractor’s Quality Control For each completed unit, the Contractor’s quality control inspection percentage for tree thinning will be compared to the Government’s assessment results. If the results differ by 5 percent or less, the Contractor’s inspection will be considered acceptable and the quality percentage will be used as the basis for payment. When the results differ by more than 5 percent, the Government’s inspection percentage will be used as the basis for payment.

Contractor is required to self-inspect. May be done by foreman or separate inspector. Contractor shall use protocol listed below. Inspection must be concurrent with cutting. Contractor shall submit completed data sheets within 3 business days of completion of unit.

When the total number of Category C deficiencies exceed 25 trees per acre based on the Contractor’s quality control inspection and verified by the Government monitoring, acceptance and payment will not be made until the deficiency has been corrected unless the Contracting Officer determines the deficiencies to be minor in nature.

Payment calculation Payment less damages will be based on the following methods.

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Quality at fully acceptable performance- meets or exceeds 90 percent. Whenever the quality of work meets or exceeds 90 percent, based on the results of the Contractor’s quality control inspection and verified by the Government monitoring, the work will be acceptable, a payment will be made that provides payment at the unit price for the sub-item.

Payment Example: With a unit price of $100 and a unit size of 40 acres, the bid price would be $4,000. If the Contractor’s work quality were 95 percent, payment would be $4,000.

Quality at less than fully acceptable performance- less than 90 percent. Whenever the quality of work is below 90 percent (full pay) based on the results of the Contractor’s quality control inspection and verified by the Government monitoring, the work is unacceptable and the value of services provided significantly reduced. Therefore, a deduction will be made for less than fully acceptable performance in accordance with the following: Graduated deductions will be made that increase as the quality decreases. For each 1-percent that quality decreases between 90 and 70 percent, a 2-percent deduction in the unit price will be made. No payment will be made for units where quality of work is below 70 percent.

Payment Example: With a thinning quality of 85 percent, the deduction would be: 10 percent for quality between 85 to 90 percent (5 x 2%). Therefore, the full deduction would be 10 percent, resulting in the Contractor receiving 90 percent of the bid price.

With a unit price of $100 per acre and a unit size of 40 acres, the bid price would be $4,000. At 85 percent thinning quality, payment would be:

$100 x 90% x 40 acres = $3,600.

Payment Example: With a thinning quality of 70 percent, the deduction would be: 40 percent for quality 70 to 90 percent (20 x 2%). Therefore, the full deduction would be 40 percent, resulting in the Contractor receiving 60 percent of bid price.

With a unit price of $100 per acre and a unit size of 40 acres, the bid price would be $4,000. At 70 percent thinning quality, payment would be:

$100 x 60% x 40 acres = $2,400.

Unacceptable Work

Any unit, with quality less 90 percent, is considered unacceptable and may be rejected. For these areas the Government may (i) accept the work at a reduced price (ii) require the area to be re-worked at no additional expense to the Government, or (iii) reject the work in its entirety. If the quality is unacceptable, the Contractor's right to proceed is subject to immediate termination for default.

When work quality falls below 90 percent in areas of 1/4 acre or larger and the quality of work can be corrected, the Government may require the area to be reworked.

Any unit slash treatment and sanitation treatment quality must reflect full compliance with requirements.

Noncompliance with any of the specifications will classify the treatment as unsatisfactory and rework will be required before a payments is made.

Any work quality that the Government determines to be unacceptable and is not corrected, will be so noted in the performance evaluation.

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3. COMMENCEMENT PROSECUTION, AND COMPLETION OF WORK

The Contractor shall be required to (a) commence work under this contract within 7 calendar days after the date the Contractor receives the notice to proceed, (b) prosecute the work diligently, and (c) complete the entire work ready for use not later than October 15, 2026.

4. POST AWARD CONFERENCE

A post award conference with the successful offeror is required. It will be scheduled after the date of contract award. The conference will be held at Missoula Ranger District or virtually.

5. EVALUATION CRITERIA:

The provision at FAR 52.212-2, Evaluation—Commercial Products and Commercial Services is not applicable to this solicitation. In lieu of this provision, quotes will be evaluated in accordance with FAR 12.203 based on the criteria listed below. Award will be made to the offeror representing the best value to the Government. The Government will evaluate quotations based on the lowest price technically acceptable criteria. Only the lowest priced offer will be evaluated for Technical Acceptability. Should the lowest priced offer not receive an acceptable technical or past performance rating, the process will continue in order of lowest priced offer until the lowest price, technically acceptable offer with acceptable or neutral past performance is identified.

(a) The Government will evaluate based on:

(I) Price (II) Contractors submitted Quality Control Plan (III) Past Performance in Government Contracting (IV) Experience in pre-commercial tree thinning and stand improvement activities.

Evaluation of Options:

Except when it is determined not to be in the Government’s best interest, the Government will evaluate offers for award purposed by adding the total price for all options to the total price for the basic requirement.

Evaluation of options will not obligate the Government to exercise the option(s).

Technical Acceptability:

Technical Acceptability will be evaluated to receive an overall rating of "acceptable" or "unacceptable."

This will be based on the offeror's ability to provide a sound and compliant approach that meets all requirements and shows a thorough understanding of them. It is the contractor's responsibility to ensure their quotation clearly demonstrates their capability to meet these requirements. All offerors must provide the following minimum information and documentation with their quotations to be considered responsive and have their offers evaluated:

Detailed explanation of the offeror’s ability to perform the required services. A simple statement of capabilities will not suffice. The offeror must address how they will accomplish the requirement in the statement of work. Contractors Quality control Plan will need to demonstrate an ability to understand the requirement. The Contractor needs to demonstrate how they are going to perform pumping and cleaning services, manage the quality of services and ensure timeliness.

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Quality Control Plan:

• Acceptable: The contractor shows a demonstrate ability to understand the requirement. The contractor demonstrates how they are going to perform tree thinning and stand improvement activities.

, manage the quality of services and ensure timeliness.

• Unacceptable: Vendor does not submit quality control plan. Vendor is unable to demonstrate the ability to understand the requirement. The vendor does not demonstrate how they are going to perform tree thinning and stand improvement activities.

, manage the quality of services, and ensure timeliness.

Experience:

• Acceptable: The contractor shows detailed experience in Thinning/piling or provides information that shows that their subcontractor detailed experience in tree thinning and stand improvement activities.

• Unacceptable: The vendor is unable to show detailed experience in Thinning/piling.

Price:

The offeror shall provide pricing as requested in the Schedule of Items on of this Request for Quote.

Failure to propose pricing for all individual line items may result in a quotation being excluded from further consideration. The offeror’s quotation will be evaluated in accordance with FAR 12.204, to determine if it is fair and reasonable.

Past Performance:

The Government may utilize any references provided by the Contractor, along with information available from past contracts/orders with the USDA and any information found using sources such as Federal Government sources or the Contractor Performance Assessment Reporting System (CPARS) to determine if the Contractor has acceptable or neutral Past Performance. Past Performance will be evaluated using the following rating system:

• Acceptable: The contractor shows a demonstrated ability to meet contract requirements in prior or current contracts, including quality of work, timeliness, cost control, business relations, and adherence to contract terms.

• Neutral: Offeror does not have a past performance record.

• Unacceptable: The contractor has a documented history of failing to meet contract requirements, including poor quality, missed deadlines, cost overruns, lack of responsiveness, or unethical behavior

6. CONTRACTING OFFICER’S REPRESENTATIVE:

Name:

Address:

Telephone:

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7. LIST OF ATTACHMENTS

The following attachments are made a part of this solicitation and any resultant contract.

Title Pages Exhibit 1 -Statement of Work 14 Exhibit 2 – Maps (4 maps) 4 Exhibit 3 - Thinning Inspection Form and Instructions 7 Exhibit 4 - Thinning Inspection Form Example 3 Exhibit 5 - Handpile Inspection Form and Example 2 Exhibit 6 - Detailed Unit Rx Summary Table 1 Wage Determination 1976-1342 Rev 82 dated Dec 3 2025 4 FAR Class Deviations and Updates (at end of this document) 2 Notice for Filing Agency Protests (at end of this document) 2

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March 2025 Class Deviation

This Call Order incorporates two FAR class deviations to ensure compliance with Executive Orders 14148, 14173, 14168, and 14208, issued since January 20, 2025. It also removes references to AGAR clauses and provisions that have been rescinded. These updates reflect recent policy changes and remove outdated requirements, as detailed below.

The following FAR provisions and clauses are hereby removed in their entirety from the LMIR BPA:

• 52.222-21 Prohibition of Segregated Facilities

• 52.222-26 Equal Opportunity

• 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026/1

1/This provision was removed to comply with the Executive Order 14236 titled "Additional Rescissions of Harmful Executive Orders and Actions," dated March 14, 2025.

The following FAR clauses now include deviations to align with recent Executive Orders:

• 52.212-3 Offeror Representations and Certifications—Commercial Products and Commercial Services

(MAY 2024) (DEVIATION FEB 2025)

• 52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders— Commercial Products and Commercial Services (JAN 2025) (DEVIATION FEB 2025)

• 52.223-1 Biobased Product Certification (MAY 2024) (DEVIATION FEB 2025)

• 52.223-2 Reporting of Biobased Products Under Service and Construction Contracts (MAY 2024)

(DEVIATION FEB 2025)

Ther following references to AGAR Clauses and provisions are hereby removed to comply with AGAR Rule 2024-22463 (89 FR 81014):

• AGAR 452.211-74 Period of Performance (FEB 1988)/2

• AGAR 452.215-73 Post Award Conference (NOV 1996) /2

• AGAR 452.219-70 Size Standard and NAICS Code Information (SEP 2001) /2

• AGAR 452.236-72 Use of Premises (NOV 1996) /2

• AGAR 452.236-77 Emergency Response (NOV 1996)

• AGAR 452.236-78 Fire Suppression and Liability (MAY 2014)

• AGAR 452.237-74 Key Personnel (FEB 1988) /2

2/AGAR clauses and provisions that were included in full text have been retained, with only the AGAR reference removed.

The following AGAR clauses is hereby included:

• AGAR 452.236-70 Emergency Response, Fire Suppression and Liability (NOV 2024)

All call orders will incorporate these changes by reference at award.

Disclaimer: System updates may lag policy updates. The System for Award Management (SAM) may continue to require entities to complete representations based on provisions that are not included in agency solicitations. Examples include 52.222-25, Affirmative Action Compliance, and paragraph (d) of 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services.

Contracting officers will not consider these representations when making award decisions or enforce requirements. Entities are not required to, nor are they able to, update their entity registration to remove

Revised 04-02-2025 Page 12 of 17 these representations in SAM.

In advancement of Section 2 of Executive Order 14208, the removal of requirements related to Executive Order 14057 eliminates all non-statutory sustainability requirements or preferences in purchases of food service wares, including paper straws. In addition to removing requirements related to Executive Order 14057, the attachment also reflects recent updates to Code of Federal Regulation citations for the U.S.

Department of Agriculture’s BioPreferred® Program, a statutory purchasing preference program.

These class deviations will remain in effect until rescinded or incorporated into the FAR.

Executive Order 14398, Addressing DEI Discrimination by Federal Contractors dated 17 April 2026

FAR 52.222-90, Addressing DEI Discrimination by Federal Contractors, into both new and existing contracts

As prescribed in 22.2203, insert the following clause:

Addressing DEI Discrimination by Federal Contractors (Deviation DATE)

(a) Definitions. As used in this clause— Program participation means membership or participation in, or access or admission to: training, mentoring, or leadership development programs; educational opportunities; clubs; associations; or similar opportunities that are sponsored or established by the contractor or subcontractor.

Racially discriminatory diversity, equity, and inclusion (DEI) activities means disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity's resources.

(b) In connection with the performance of work under this contract, the Contractor agrees as follows:

(1) The Contractor will not engage in any racially discriminatory DEI activities;

(2) The Contractor will furnish all information and reports, including providing access to books, records, and accounts, as required by the Contracting Officer, for purposes of ascertaining compliance with this clause;

(3) In the event of the Contractor's or a subcontractor's noncompliance with this clause, this contract may be canceled, terminated, or suspended in whole or in part, and the Contractor or subcontractor may be declared ineligible for further Government contracts;

(4) The Contractor will report any subcontractor's known or reasonably knowable conduct that may violate this clause to the Contracting Officer and take any appropriate remedial actions directed by the Contracting Officer; and

(5) The Contractor will inform the Contracting Officer if a subcontractor sues the Contractor and the suit puts at issue, in any way, the validity of this clause.

(6) The Contractor recognizes that compliance with the requirements of this clause are material to the Government's payment decisions for purposes of 31 U.S.C. 3729(b)(4).

(c) The Contractor must include the substance of this clause, including this paragraph (c), in subcontracts at any tier, including those for commercial products and commercial services, except those where the place of delivery or performance is outside the United States.

(End of clause)

AGAR 452.203-72 Unenforceable Supplier Terms (April 2026) Supplier terms mean provisions customarily drafted by vendors of supplies or services and intended to create a binding legal obligation on the end user. The term applies:

1. Regardless of the format or style of the document. For example, supplier terms may appear in standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order or otherwise become effective after the contract date.

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2. Regardless of the media or delivery mechanism used. For example, supplier terms may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

(b) Applicability. When any supply or service acquired under this contract is subject to supplier terms, the supplier terms are deemed part of the contract only to the extent they are consistent with this clause.

Supplier terms that conflict with any part of this clause, the contract, or Federal law are void and will not be considered incorporated into a contract, even if they are physically present in a contract documentation or systems. In the event of any inconsistency between supplier terms and this contract, this clause and the terms of the Government contract shall govern and supersede any supplier terms in all cases.

(c) Authorization Required. Notwithstanding any other provision, no supplier terms shall be binding on the Government unless the term is expressly authorized on the USDA Supplier Terms Authorization Form signed by the Contracting Officer, and the completed Authorization Form has been incorporated into the contract.

(d) Unenforceable Terms. Any supplier terms that impose obligations or restrictions inconsistent with applicable Federal law are unenforceable against the Government and deemed stricken from the agreement. This includes, but is not limited to, any clause that:

1. Requires the Government to pay future fees, penalties, interest, legal costs, early termination fees, cancellation fees, minimum purchase commitments, true up payments, seat count minimums, usage minimums, continued use charges, or any other financial obligation not expressly authorized by the contract.

2. Requires the Government to indemnify the contractor or any other entity.

3. Restricts the Government’s ability to obtain similar supplies or services from another source.

4. Imposes any penalty, financial or otherwise, based on the Government’s decision not to exercise an option.

5. Subjects the United States Government to the laws of any U.S. state, territory, district, municipality, or foreign nation, except where Federal law expressly permits such application.

6. Requires dispute resolution in a forum or venue other than one prescribed by applicable Federal law.

7. Establishes a period of limitations for bringing an action that differs from that provided by applicable Federal law.

8. Grants the contractor rights to use, mine, access, aggregate, analyze, or otherwise exploit Government data, usage data, or metadata.

9. Deems the Government to have accepted initial or revised terms based on silence, continued performance, or failure to object.

10. Grants the supplier the right to audit Government facilities, systems, records, or use of the product or service, except as expressly authorized by the contract and applicable Federal law.

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11. Requires the Government to accept supplier security requirements, network access requirements, monitoring, penetration testing, or other technical or security measures.

12. Permits the supplier to suspend, degrade, or terminate access to products or services based on alleged nonpayment, alleged breach, automated security triggers.

13. Limits the Government’s right to use, install, access, test, evaluate, or transfer the licensed product or service in any manner consistent with the contract and Federal law.

14. Requires the Government to store, process, maintain, or transmit data in a particular geographic location, or permits the supplier to transfer Government data outside the United States, except as expressly authorized by applicable Federal law.

15. Authorizes the supplier to use the Government’s name, seal, trademark, logo, or any reference to the Government as an end user or customer for marketing, publicity, promotional activities, press releases, or similar purposes.

16. Incorporates by reference, or requires the Government to accept, terms or conditions imposed by any third party, subcontractor, or upstream service provider, unless such terms are expressly incorporated into the contract by bilateral modification.

17. Limits, conditions, or negates the contractor’s performance obligations, service levels, or remedies through a supplier provided service level agreement (SLA).

18. Uses Government data, usage data, metadata, prompts, content, or interactions to train, fine tune, improve, or derive any artificial intelligence, machine learning, or automated decision making model.

19. Subjects the Government to automated decision making, automated risk scoring, automated content moderation, or any algorithmic process that may affect access, performance, or rights under the contract.

20. Utilizes artificial intelligence or algorithmic tools that produce decisions, recommendations, or outputs affecting contract performance without providing transparency, explainability, auditability, and bias mitigation consistent with applicable Federal law and policy.

21. Profiles, tracks, or analyzes Government user behavior, preferences, communications, or interactions for personalization, marketing, or algorithmic optimization purposes.

(e) Non-binding Actions. Neither the Government nor any Government authorized end user is deemed to have consented to any term, condition, or clause by virtue of its inclusion in the supplier agreement or through the use of clickwrap, browsewrap, “I agree” mechanisms, or similar means. Execution of such mechanisms does not bind the Government or its authorized end users to any unenforceable terms.

(f) End user. The supplier agreement shall bind the ordering activity as the end user to the extent it does not conflict with the terms of this clause, but it shall not bind or impose personal liability on any Government employee or any person acting on behalf of the Government in their personal capacity.

(g) Law and disputes. The supplier agreement is governed by Federal law.

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(h) Statutory exception. This clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(i) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate, or suspend any rights granted to the Government except as allowed by the contract. If the supplier or licensor believes the ordering activity to be in breach of the supplier agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while proceeding diligently with performance, pending final resolution of any dispute in accordance with the Disputes Clause at FAR 52.212 4(d) or FAR 52.233 1, as applicable.

(j) Arbitration. Binding arbitration shall not be used unless specifically authorized by agency guidance.

(k) Equitable or injunctive relief. Equitable or injunctive relief, including the award of attorney fees, costs, or interest, may be awarded against the United States Government only when explicitly provided by statute (e.g., the Prompt Payment Act or the Equal Access to Justice Act).

(l) Revisions to supplier agreements. Any revisions to the supplier agreement must be incorporated into the contract using a bilateral modification. Unilateral revisions are not binding on the Government.

(m) No automatic renewals. If any license or service tied to periodic payment is provided under the supplier agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express written consent from an authorized Government representative.

(n) Indemnification. Any clause of the supplier agreement requiring the supplier or licensor to defend or indemnify the end user is amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(o) Taxes or surcharges. Any taxes or surcharges which the supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the associated Government contract or order and must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed otherwise.

(p) Non assignment. The supplier agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government’s prior approval, except as expressly permitted by FAR 52.212-4(b) or FAR 52.232-23, as applicable.

(q) Confidential information. If the supplier agreement includes a confidentiality clause, such clause is amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in the supplier agreement to the contrary, the Government may retain any confidential information as required by law, regulation, or its internal document retention procedures for legal, regulatory, or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of the supplier agreement.

(r) Conflict with Federal law. If any other language, provision, or clause of the supplier agreement conflicts or is inconsistent with Federal law or the terms and conditions of this contract, such language, provisions, or clauses will be considered null and void and will not be binding on the United States Government.

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(End of Clause)

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As prescribed in AGAR 433.104-4 (a)(5)(ii), the following Notice for Filing Agency Protests shall be included in every solicitation.

NOTICE FOR FILING AGENCY PROTESTS

United States Department of Agriculture (USDA) Ombudsman Program

The USDA is committed to issuing solicitations and awarding contracts in a fair and prompt manner. The Ombudsman Program for Agency Protests (OPAP) was established to address protest issues within the agency, providing an alternative to costly and time-consuming litigation. Operating independently, OPAP offers relief comparable to that granted by the Government Accountability Office (GAO). Interested parties are encouraged to resolve concerns through USDA’s internal Alternative Dispute Resolution (ADR) process before pursuing external forums such as the GAO. Concerns may be addressed informally or through a formal agency protest filed with either the Contracting Officer or the Ombudsman.

Informal Forum with the Ombudsman

1. Initial Point of Contact: Interested parties who believe a specific USDA procurement is unfair or otherwise defective should first direct their concerns to the applicable Contracting Officer.

2. Escalation: If the Contracting Officer is unable to address their concerns, interested parties are encouraged to contact the USDA Ombudsman for Agency Protests. Under this informal process, the agency is not required to suspend contract award performance. Utilization of the informal forum does not suspend any time requirement for filing a formal protest with the agency or other forums.

3. Required Information: To ensure a timely response, interested parties should provide the following information to the Ombudsman: solicitation/contract number, contracting office, Contracting Officer, and solicitation closing date (if applicable).

Formal Agency Protest with the Ombudsman

1. Effort to Resolve: Prior to submitting a formal agency protest, protesters must first use their best efforts to resolve their concerns with the Contracting Officer through open and frank discussions.

2. Independent Review: If the protester’s concerns remain unresolved, an Independent Review is available by the Ombudsman. The protester may file a formal agency protest with either the Contracting Officer or, alternatively, with the Ombudsman under the OPAP program. Contract awards or performance will be suspended during the protest period unless justified in writing for urgent and compelling reasons or determined in writing to be in the best interest of the Government.

3. Resolution Timeline: The agency’s goal is to resolve protests within 35 calendar days from the date of filing.

4. Required Information: Protests shall include the information set forth in FAR 33.104(a)(3).

Failure to submit the required information may result in a delay or dismissal of the protest.

5. Timeliness: Protests must be filed within the timeframes specified in FAR 33.104.

6. Submission: Formal protests under the OPAP program should be submitted electronically to SPE.inquiry@usda.gov and the Contracting Officer.

Election of Forum. By initiating a protest with the USDA, the protester agrees not to pursue the same matter with the Government Accountability Office (GAO) or any other external forum while the agency protest is pending. If a protest is filed externally, the agency protest will be dismissed.

Page last modified on October 15, 2025 mailto:SPE.inquiry@usda.gov