W91238-09-Q-0134.doc

Section B - Supplies or Services and Prices

Base Year

FFP

Base Year: Recreational Attendant Acorn Campground - New Hogan Lake, Calaveras County, Valley Springs, CA - This is an informational line item only. For pricing see sub line items. Contractor shall furnish all labor, material, tools, equipment, transportation, and supervision necessary to perform services at New Hogan Lake, Caliveras County, CA. Work shall consit of assisting visitors and campers. For more information see Performance Work Statement, Part B - work to be performed. Period of Performance: 01 April 2009 - 30 November 2009

Technical Point of Contact: Duane Johnson (209) 772-1625, Duane.Johnson@usace.army.mil

Contracting Point of Contact: Dennis Wagner (916) 557-5195, Dennis.D.Wagner@usace.army.mil

FOB: Destination

NET AMT

FFP

Option Year One: Recreational Attendant Acorn Campground - New Hogan Lake, Calaveras County, Valley Springs, CA - This is an informational line item only. For pricing see sub line items. Contractor shall furnish all labor, material, tools, equipment, transportation, and supervision necessary to perform services at New Hogan Lake, Caliveras County, CA. Work shall consit of assisting visitors and campers. For more information see Performance Work Statement, Part B - work to be performed. Period of Performance: 01 December 2009 - 30 November 2010

Technical Point of Contact: Duane Johnson (209) 772-1625, Duane.Johnson@usace.army.mil

NET AMT

FFP

Option Year Two: Recreational Attendant Acorn Campground - New Hogan Lake, Calaveras County, Valley Springs, CA - This is an informational line item only. For pricing see sub line items. Contractor shall furnish all labor, material, tools, equipment, transportation, and supervision necessary to perform services at New Hogan Lake, Caliveras County, CA. Work shall consit of assisting visitors and campers. For more information see Performance Work Statement, Part B - work to be performed. Period of Performance: 01 December 2010 - 30 November 2011

Technical Point of Contact: Duane Johnson (209) 772-1625, Duane.Johnson@usace.army.mil

NET AMT

PRICING SCHEDULE

Pricing Schedule

Total for Base Year

Total for Option Year One

Total for Option Year Two

Section C - Descriptions and Specifications

PERFORMANCE WORK STATEMENT

Performance Work Statement

Recreational Attendant, Acorn Campground

New Hogan Lake

03 March 2009

Part A – General Information:

1. The work required under this contract provides for Recreational Attendant services at Acorn Campground, New Hogan Lake, Calaveras County, Valley Springs, located 35 miles northeast of Stockton, California. Prospective vendors are strongly urged to visit the site to become familiar with the location and the work involved.

2. In the event that any part or the entire Park shall be permanently or temporarily closed, the segments of this contract pertaining to that area shall not be required and therefore not utilized. Contractors shall not perform work in those closed areas or facilities that shall not be in use and shall not be compensated for work not accomplished.

3. Period of Performance: This contract consists of a Base Year and two (2) Option Years.

Base Year:

01 April 2009 – 30 November 2009

Option Year One:

01 December 2009 – 30 November 2010

Option Year Two:

01 December 2010 – 30 November 2011

4. Authorities/Technical Direction: The Contractor shall take no direction from any Government employee or any other person other than the Government Contracting Officer that changes the terms and conditions of this contract action, the scope, or any change that impacts the cost, price or schedule. Changes authorized by the Contracting Officer will be in the form of a written, official, signed modification to the contract action received by the Contractor before the Contractor will act upon those changes. The Contractor will comply with the Changes clause of this contract when the contractor believes direction has been given from persons other than the Government Contracting Officer that equate to a change by notifying the Contractor Officer as directed by the clause. Any direction given by any Government employee or any other person outside their authority must be reported to the Contracting Officer. Contracting Officer Representatives (CORs) are limited to the authorities stated in the COR appointment letters.

5. Estimated Quantity Line Items: All Line Items with quantities are estimated-quantity line items. The quantities are estimated amounts and are not guaranteed amounts. The contractor shall only be paid for work actually performed. At no time shall the contractor exceed the estimated quantity on any estimated quantity line item. The contractor shall establish a tracking system of actual quantities against the contract’s estimated quantities for each estimated quantity line item and shall maintain the tracking system up to date throughout the life of the contract. When the actual quantity of any line item reaches 85% of the estimated quantity on any estimated quantity line item, the contractor shall notify the Government’s Contract Specialist and the Technical PoC in writing by fax or e-mail within two calendar days. Once the Government is notified that the actual quantity has reached 85% of the estimated quantity on any line item and if the Government determines that the estimated quantity needs to be increased, the contractor shall receive an official modification to the contract action signed by the Contracting Officer increasing the quantity and the amount obligated on the contract BEFORE the contractor shall proceed to work over the existing estimated quantity. The modification shall set the new estimated quantity that the contractor shall not exceed without another modification. Every invoice shall be accompanied by a full accounting of each line item being billed, the actual quantity being billed and supporting documentation to support the actual quantities.

6. Pre-Work Meeting: The Contractor shall attend a pre-work meeting with the Park Manager prior to commencement of work to discuss contract requirements. This meeting shall be held at Park Headquarters. The Contractor shall contact the Park Manager at least 5 days prior to the start of the contract to arrange this meeting. Costs associated with the meeting shall be incorporated into the price, as no additional payment shall be made. The Contractor shall be given an initial quantity of necessary forms and supplies at this meeting. A Campground Attendant Handbook given the contractor contains emergency phone numbers, maps and other information about the operation of the campground and campground entrance station.

7. Bonding Requirements: Recreation Attendants are responsible for collection of a variety of user fees. The Contractor shall be required to remit these funds to the Park Office at least once per week (or as directed by the Park Manager’s representative). Audits shall be performed using Park Office reports to check for fund discrepancies. The amount of funds collected and those remitted to the Park Office shall be equal. Prior to the start of work the Contractor shall provide written proof to the Park Manager’s representative of the issuance of a fidelity bond in the amount of $5,000.00. The bond shall be payable to the Corps of Engineers (the Corps of Engineers shall be a party to the bond) for theft or embezzlement of funds collected by the Contractor or any employee of the Contractor for the following user fees: reservations, camping, boat launching, Annual Boat Launch Passes, shower coin boxes and Golden Age Passports. The requirement needed to honor a claim by the government shall be an official police report showing that a loss has occurred.

8. Points of Contact:

COR:

Mr. Duane Johnson

US Army Corps of Engineers

CESPK-CO-N

2713 Hogan Dam Road

Valley Springs CA 95252-0128

Ph: (209) 772-1625 Fax: (-9352)

Duane.Johnson@usace.army.mil Park Ranger:

Ms. Donna Burt

CESPK-CO-N

2713 Hogan Dam Road

Valley Springs CA 95252-0128

Ph: (209) 772-1625 Fax: (-9352)

Donna.Burt@usace.army.mil Contracting:

Mr. Dennis D. Wagner II

CESPK-CT-B

1325 J Street

Sacramento CA 95817-2922

Ph: (916) 557-5195 Fax: (7854)

Dennis.D.Wagner@usace.army.mil

9. Services & Payments: The Contractor shall be paid at the completion of monthly services for the amount of work accomplished. Invoices shall be verified by the Contracting Officer’s Representative before payment can be authorized. Invoices shall be sent monthly, payments shall be a month in the arrears. Send the Original invoice without any back up to the following address: U.S. Army Corps of Engineers; ATTN: CEFC-AO-P; 5720 Integrity Drive Millington, TN 38054-5005. In addition to the original invoice two (2) other invoices shall be sent with all back up information. Send one (1) copy to: U.S. Army Corps of Engineers; Attn: Park Manager, New Hogan lake; 2713 Hogan Dam Road, Valley Springs, CA 95252. Send the other copy to: U.S. Army Corps of Engineers; Attn: (Contract No.); 1325 J Street; Sacramento, CA 95814-2922.

Part B – Work to be Performed:

1. General Information: The contractor shall provide all labor, equipment, materials, supplies, transportation and supervision necessary to perform all Recreational Attendant services at Acorn, New Hogan Lake.

2. Two persons shall be required to perform this contract and shall not work beyond their designated hours on another concurrent Recreational Attendant contract at the park. The Contractor shall operate the Acorn Campground entrance station 4 days a week for the period 01 April – 30 September 2009 on the Base Year, 01 April – 30 September 2010 on Option Year 1 and 01 April – 30 September 2011 on Option Year 2. Acorn contains 128 campsites. The Contractor may be required to register campers for the nearby Coyote Point Group Campground which has a capacity of 50 campers. The Contractor(s) working at Acorn may also be required to process and reconcile any Day Use fees that are brought to them by Park Rangers from the Fiddleneck Day Use Area. The Contractor shall occupy the entrance station at the campground on the following schedule to register visitors, collect camping fees, provide information (rules, regulations, pamphlets, brochures, etc.) and assist campers as necessary or as directed by park personnel:

Base Year Schedule: 01 April – 30 September 2009

Sunday OFF

Monday OFF

Tuesday OFF

Wednesday 8:00 A.M. TO 10:00 P.M

Thursday 8:00 A.M. TO 10:00 P.M.

Friday 8:00 A.M. TO 11:00 P.M.

Saturday 8:00 A.M. TO 11:00 P.M.

Option Year 1 Schedule: 01 April – 30 September 2010

Sunday OFF

Monday OFF

Tuesday OFF

Wednesday 8:00 A.M. TO 10:00 P.M.

Thursday 8:00 A.M. TO 10:00 P.M.

Friday 8:00 A.M. TO 11:00 P.M.

Saturday 8:00 A.M. TO 11:00 P.M.

Option Year 2 Schedule: 01 April – 30 September 2011

Sunday OFF

Monday OFF

Tuesday OFF

Wednesday 8:00 A.M. TO 10:00 P.M.

Thursday 8:00 A.M. TO 10:00 P.M.

Friday 8:00 A.M. TO 11:00 P.M.

Saturday 8:00 A.M. TO 11:00 P.M.

The entrance station shall not be left unattended during these operating hours. The service described shall be performed on the days indicated unless specified otherwise by the Park Manager and additional service shall be performed only as directed. Service times and dates may change, as directed by the Park Manager. The Contractor shall be notified at least 24 hours in advance for significant schedule changes and as much time as feasible for minor schedule changes, such as closing times on holidays and weekends. The Contractor requests for modification of duty hours shall be submitted in writing for action by the Park Manager. On days before a holiday (holiday eves) work hours shall be from 8:00 A.M. to 11:00 P.M. When a service day falls on a Federal Holiday, the service shall be performed on that day, unless otherwise specified by the Park Manager.

3. Campground Checks: The Contractor shall make a complete check of Acorn Campground twice daily on scheduled work days. Checks shall be made at 8:00 A.M. when the gates are opened to the campground and again at 5:00 P.M. which shall be the check-in time for new arrivals. Duties performed while making these checks shall include contacting unregistered campers and informing them to register, checking all campground facilities for serviceability, reporting acts of vandalism to the Government, reporting possible fee violators to the Government, and picking up trash and litter. During the afternoon campground check, the Contractor shall also include checking site occupancy, putting up new reservation tags and removing non-current information on campsite posts. Reservations notices for the upcoming week shall be posted on Sunday through Wednesday. Reservations shall not be put up for more than a week in advance.

4. Gates: The Contractor shall be required to open and close the campground entrance gate during the tour of duty. Gates shall be opened at 8:00 A.M. and closed at 10:00 P.M. Sunday - Thursday and at 11:00 P.M. Friday - Saturday. The Contractor shall make the appropriate changes to the “Hours” sign located at the entrance to the campground.

5. Change Fund: The Contractor shall supply and keep a $150.00 daily change fund that shall be kept separate from the recreation user fees collected. The change fund shall be in a variety of currency, including quarters for the showers, to meet the public’s needs. The Contractor shall be responsible for keeping the change fund accurate and shall be solely accountable for any shortages.

6. Entrance Station: The Contractor shall occupy the Acorn Entrance Station in accordance with the schedule above. Duties shall include but not limited to the following items.

a. National Recreation Reservation System (NRRS): The Contractor shall collect recreation user fees and process campground registrations and reservations using the NRRS computer located in the Acorn Station. The Government shall provide appropriate NRRS training to the Contractor in preparation for the following tasks. Tasks shall include but shall not be limited to: Maintain current site occupancy records, post reserved sites and facilities, check site availability for customers, check-in registration processing, check-out processing, receive daily arrival reports (DARs), remove expired permits and reservation cards from campsite markers, collect recreation user fees, enter Annual Pass transactions into the computer, distribute appropriate receipts and passes, reconcile monies utilizing the NRRS programs and reports, print daily campground occupancy reports, backup the NRRS database daily, and shutdown/start up the NRRS computer according to established procedures.

b. Visitor Assistance: The Contractor shall perform specific duties daily to provide visitors with appropriate materials and information in accordance with established procedures. Duties shall include but not limited to the following: perform radio communications according to established procedures, advise visitors of Title 36 Regulations and distribute copies of Title 36 and other printed materials, visitors with pets shall be informed of park regulations regarding pets, display interpretive information, distribute trash bags, coordinate special programs, distribute Corps surveys and safety information.

c. Honor Vaults: The Contractor shall collect and track recreation user fees that have been deposited in the honor vault (iron ranger) as directed by the Park Manager. The Contractor shall pull the honor vault and count recreation user fees with a ranger in a secure location at dates and times determined by the Government. The Contractor shall also determine if there are any possible fee violators by cross-referencing inspection forms with collected envelops. Visitors who have not paid fees shall be reported to a Ranger. After verification with a Ranger, fee monies collected in the honor vaults shall be reconciled through the NRRS computer. The Contractor shall restock supplies of government provided fee envelopes and pens at the vault. Two attendants are required while counting fees. One attendant shall occupy the entrance station and the other shall count fees with a ranger.

7. Fee Reconciliation: The Contractor shall be responsible for collection of a variety of user fees. The Contractor shall be required to remit these funds to the Park Office at least once per week (or as directed by the Park Manager’s representative). Audits shall be performed using Park Office reports to check for fund discrepancies. The amount of funds collected, and those remitted to the Park Office, shall be equal. Fee collection shall be administered in accordance with NRRS and Park operating guidelines, ER 1130-2-550, EP 1130-2-550, and CFR Title 36 Chapter III, Section 327. The NRRS and park operating guidelines are found in the Campground Attendant Handbook which shall be available at each of the campground entrance stations. The balance of the documents cited above shall be available at Park Headquarters. The Contractor shall prepare reconciliation records and forms for the fees collected. All cash shall be converted into cashiers checks or money orders. The Contractor shall be responsible for the cost of purchasing the cashiers check or money order. The Contractor may wish to open a bank account with a local vendor in order to exchange currency and obtain a casher’s check or money order. Checks, money orders and user permit receipts shall be reconciled on government authorized forms. The reconciliation process shall be performed during scheduled services. The Government shall not be responsible for compensation for reconciliation performed outside of regular scheduled services.

8. Register campers for the Deer Flat Boat –In Campground on a first-come first- serve basis. There are 30 campsites at Deer Flat and campers shall not be required to register for a specific site.

9. Empty coins from pay shower collection boxes in Acorn Campground (14 boxes) and provide coins from their change fund for visitors wishing to use the showers.

10. Issue Annual Boat Launch Passes under guidelines provided by the Park Manager or his representative.

11. Personally inspect work sites if someone other than the contractor shall be actually performing the services. The Contractor shall ensure the employees’ work performance be in compliance with contract. The Park Manager shall be notified of any inspections by the contractor.

12. Additional Services: Contractor shall provide temporary or emergency coverage at any other entrance station in the event any of these Contractors become ill, or in any other way incapable of fulfilling their contract obligations. The additional services shall only be performed with the consent of and as directed by the Park Manager. Services provided on an emergency basis shall be accounted for on the monthly invoice by the Contractor. The Contractor shall perform additional service in 1-hour increments. Approval of the Park Manager or the Contracting Officers Representative for additional services shall be required when the need for such services can be reasonably predicted. Prior approval shall not be required for work connected with the operation of the entrance station in emergency situations. An example of an emergency would be a Contractor that shall become suddenly incapacitated because of an accident.

PART C – GOVERNMENT RESPONSIBILITIES:

1. Provide Recreational Attendant(s) with limited water, sewer, and electricity along with a trailer pad for living quarters.

2. Furnish all forms, maps, rules and regulations, pamphlets, visitation log books, brochures, fee envelope and other informational handouts that shall be required for the Contractor to perform the specified services.

3. Maintain government property used by the Recreational Attendant in the performance of work. A refuse container for solid waste shall be provided and serviced by the government.

4. Provide a 2-way radio and telephone for official use only within the entrance station.

PART D – CONTRACTORS RESPONSIBILITIES:

1. The Contractor shall be responsible for all costs related to performing this contract and its successful completion. The contractor shall be required to travel at least once weekly from the work site to New Hogan Lake Park Headquarters, a distance of approximately 3 miles, to reconcile fees collected at the entrance station. A campground attendant handbook covering the operation of the entrance station and the issuance of camping permits shall be given to contractors during a pre-work conference and shall be kept at the entrance station where the contractor shall be working. A copy shall also be available at Park Headquarters.

2. It shall be essential that the Contractor possess a vehicle in good working order to make trips between work locations and fulfill contract requirements at no expense to the government, to perform the duties required. Duties requiring transportation shall be but not limited to checking the campground for sites.

3. The Contractor shall be knowledgeable and proficient in handling money, maintaining written records, performing math calculations and operating computers. The Contractor shall be responsible for maintaining accurate, legible, and detailed records relating to recreation area operations. The fee remittance procedure shall require the Contractor to purchase a bank cashier’s check (currently $5.00) or money order up to 2 times weekly during the contact period. Funds in excess of change funds shall be stored in a floor safe at the entrance station. The park manager shall provide the combination and establish procedures for the safekeeping of fees during the orientation provided prior to the commencement of work.

4. The Contractor shall be involved entering license plate information and other pertinent data on each vehicle in the campground into the NRRS computer.

5. The Contractor shall be capable of handling dissatisfied or difficult visitors in a respectful and courteous manner. Exercise tact, diplomacy and courtesy at all times while dealing with the public. Campgrounds shall be available to campers without regard to sex, race, creed, color, or national origin.

6. The Contractor will have sufficient equipment and manpower to perform services on dates and times as prescribed. If for any reason the Contractor is unable to perform any service, the Park Manager must be notified in advance.

7. Government Property: The Contractor shall be responsible for all government material and shall be accountable for any loss, damage, or misuse. The Contractor shall utilize government furnished materials to ensure the utmost in economy of usage possible. A property receipt form (NHL FORM 38) shall be used when property is issued to the Contractor; 1 copy shall be kept on file by the Park Manager, a 2nd copy shall be given to the Contractor. The form shall be signed off by the Government when the property is turned in at the end of the contract period.

8. Deliveries: Park personnel shall not accept deliveries of materials that are to be used or installed by the Contractor.

9. Security: The Contractor shall maintain all combinations, codes, locations, and instructions in a confidential and secure manner. A telephone shall be used to set up an appointment for fee reconciliation and turn in reports. Information regarding fee money shall not be transmitted on the radio. The Contractor shall be required to disarm and arm the entrance station alarm system on a daily basis.

10. Keys: The Contractor shall responsible for all keys issued. Keys shall be for the exclusive use of the Contractor and authorized employees. The Contractor shall be liable for any costs involved in changing locks due to lost keys. Key loss shall be reported to the Park Manager immediately. Keys shall be turned in to the Park Manager immediately upon termination of the contract.

11. Incidents, disturbances, and suspicious activities requiring immediate attention shall be reported to a ranger as soon as possible utilizing government provided radios or telephone. Furnish as much information as possible: type of problem, number of people involved, and other pertinent data. Under no circumstances shall the Contractor attempt to enforce any regulations or apprehend any violators. Contractor shall often dispatch EMS upon direction from the Park Rangers.

12. In the event of an incident, if the Contractor shall be unable to contact a ranger or the Park Manager, the Contractor shall contact the Sheriffs Office at 754-6500. "911" shall only be used when a serious disturbance or emergency exists. If an incident occurs after hours and a ranger shall not be present, the Contractor shall be the Point Of Contact for local law enforcement fire and ambulance. The Contractor shall submit a request to the Park Manager for reimbursement for the time worked as Additional Scheduled Service. Reimbursement shall be at the discretion of the Park Manger.

13. All communication with such officers shall be recorded and reported to a ranger or the Park Manager as soon as possible after the fact. Incident information shall be confidential. The Contractor shall only discuss this information with the Park Rangers or law enforcement officers.

14. Health Codes: The Contractor shall comply with all pertinent provisions of the Corps of Engineers Manual, EM 385-1-1, "Safety and Health Requirements Manual", the California State Health Code, and Calaveras County Codes. EM 385-1-1 shall be available online at http://www.hq.usace.army.mil/soh/em385/current/current38511.htm

15. Job Safety: The work to be performed shall be within the boundaries of public recreation areas and the attention of the Contractor and his employees shall be directed to the need for caution and care while driving and operating equipment in these locations. The Contractor and his employees shall comply with all state and local traffic laws including but not limited to posted speed limits.

16. Recreational Attendant Personnel: All recreation attendants shall be able to do tasks required in this contract and have a basic ability for reading, comprehending and writing English in order to accomplish the work for this contract. The Contractor shall be knowledgeable in handling money, maintaining written records, performing math calculations and operating a computer. The Contractor shall maintain a neat, well-groomed appearance while on duty. The required dress shall be khaki long pants or shorts and a brown knit polo shirt to be provided by the contractor. Identification on the shirt shall consist of the words “Park Host” and the Corps logo embroidered above the left pocket and the employee’s name sewn on the right side of the shirt. Safe footwear (i.e., no sandals, thongs, etc.) shall be worn while on duty. A description of the required uniform shirt shall be found in the Gall’s Inc public safety catalog and shall be listed as putty/black trim, item # SW 158. Uniform information can be obtained by calling 1-800-477-7766 or online at www.galls.com. When ordering, refer to item # CE001 LBC 1863 so that the Corps logo can be put on the shirt. You shall also need to give them the name (in block letter style) to be sewn on the right side of the shirt. Attendants shall be required to have the required uniform items within 15 days of commencing work. The contractor and his employees shall take directions from and cooperate fully with the designated Park Ranger who shall the shift leader during the time the contractor shall on duty. The attendant shall carry no weapons of any kind in public use areas, allow no pets or alcoholic beverages within the entrance station area and take no part in selling or advertising activity.

17. Contractor(s) Site Area: The areas shall, at all times, be maintained in a clean and sanitary condition. No flower or vegetable gardens shall be planted. One pet shall be allowed at the site and shall be confined or kept on a leash at all times. Dogs that demonstrate an aggressive behavior and/or bark excessively shall be kept in the campground. Contractor(s) shall move onto their living site not more than 14 days prior to the beginning of the contract period. Removal of all personal property and equipment of the Contractor(s) shall occur no later than seven days after the close of the contract. After removal, the area shall be left in a clean and sanitary condition. The government shall not be responsible for any costs incidental to moving onto or away from the contract site.

18. Reporting Requirements: The Contractor shall submit a Safety Exposure Report, SPD Form 94, to the Park Manager by the last day of each month. A master copy of Form 94 is provided. Negative reports shall be required.

19. Accident Records: The Contractor shall maintain an accurate record of, and shall report to the Contracting Officer in the manner and on the forms prescribed by the Contracting Officer, all accidents resulting in death, traumatic injury, occupational disease, and damage to property, materials, supplies, and equipment incidental to work performed under this contract.

20. Lost & Found: All personal property found anywhere on government land shall be accounted for and turned over to the Park. Park Rangers shall be informed of all lost and found items and shall be responsible for the storing and record keeping of these items.

21. Repair/Work Order Form: The Contractor shall report vandalism and potential safety hazards encountered while performing services. The Contractor shall complete the Repair/Work Order Form, CESPK FORM 64, and submit it to Park Rangers on the day the problem is discovered. Equipment malfunctions if applicable shall also be reported. Damaged or inoperative facilities shall be reported. If the damaged facilities pose an immediate danger to the public, the Contractor shall notify the Park Office or a Park Ranger as quickly as possible. A copy of the form shall be provided to the contractor at the pre-work meeting.

Quality Assurance Surveillance Plan

The contractor shall be responsible for the quality assurance of their own work. At any time the Contracting Officer Representative (COR) will perform an inspection of the services provided by the contractor. If discrepancies are annotated, the contractor will have five (5) business days to make the necessary changes and report back to the COR.

Section E - Inspection and Acceptance

INSPECTION AND ACCEPTANCE TERMS

Supplies/services will be inspected/accepted at:

Section F - Deliveries or Performance

DELIVERY INFORMATION

30-NOV-2009

30-NOV-2010

30-NOV-2011

Section I - Contract Clauses

CLAUSES INCORPORATED BY FULL TEXT

52.212-4 CONTRACT TERMS AND CONDITIONS-- COMMERCIAL ITEMS (OCT 2008)

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

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

(d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

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

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

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

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

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

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

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

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

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

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer--Central Contractor Registration, or 52.232-34, Payment by Electronic

Funds Transfer--Other Than Central Contractor Registration), or applicable agency procedures.

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

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

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

(i) Payment.--

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

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

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

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall--

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

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

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

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

(D) Contractor point of contact.

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

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section 611 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

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

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if--

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

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

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

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

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

(A) The date fixed under this contract.

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

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

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

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

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

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

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

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

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

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

(l) Termination for the Government's convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

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

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

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

(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

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

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 3701, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order: (1) the schedule of supplies/services; (2) the Assignments, Disputes, Payments, Invoice, Other Compliances, and Compliance with Laws Unique to Government Contracts paragraphs of this clause; (3) the clause at 52.212-5; (4) addenda to this solicitation or contract, including any license agreements for computer software; (5) solicitation provisions if this is a solicitation; (6) other paragraphs of this clause; (7) the Standard Form 1449; (8) other documents, exhibits, and attachments; and (9) the specification.

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

(2)(i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in FAR subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to (A) change the name in the CCR database; (B) comply with the requirements of subpart 42.12; and (C) agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the CCR information that shows the Contractor to be other than the

Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

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

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via the internet at http://www.ccr.gov or by calling 1-888-227-2423 or 269-961-5757.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS--COMMERCIAL ITEMS (DEC 2008)

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

(1) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(2) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78).

(b) The Contractor shall comply with the FAR clauses in this…