Water Storage Tank Maintenance and Operation Services Solicitation.pdf

15F06725Q0000253 Page 1 of 17

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

NOTE: OFFEROR TO COMPLETE BLOCKS 12, 17, 23, 24 AND 30.

1. REQUISITION NUMBER

SHOP-PR-25-001837

PAGE 1 OF

5. SOLICITATION NUMBER

15F06725Q0000253

2. CONTRACT NUMBER 3. AWARD/EFFECTIVE

DATE

4. ORDER NUMBER 6. SOLICITATION ISSUE

DATE

05/02/2025

7. FOR SOLICITATION

INFORMATION CALL:

a. NAME b. TELEPHONE NUMBER (No collect calls) 8. OFFER DUE DATE / LOCAL

TIME

05/16/2025 12:00 CT

CODE 15F067

FEDERAL BUREAU OF INVESTIGATION

FAU - FACILITIES ACQUISITION UNIT

935 PENNSYLVANIA AVE, NW

WASHINGTON, DC 20535-0001

9. ISSUED BY X UNRESTRICTED OR SET ASIDE: % FOR

X SMALL BUSINESS

HUBZONE SMALL

BUSINESS

SERVICE-DISABLED

VETERAN-OWNED

SMALL BUSINESS

(SDVOSB)

WOMEN-OWNED SMALL

BUSINESS (WOSB)

ECONOMICALLY DISADVANTAGED

WOMEN-OWNED SMALL BUSINESS

(EDWOSB)

8(A)

NORTH AMERICAN

INDUSTRY CLASSIFICATION

STANDARD (NAICS):

221310

SIZE STANDARD:

41 Mil

10. THE ACQUISITION IS

SEE SCHEDULEX

11. DELIVERY FOR FREE ON BOARD

(FOB) DESTINATION UNLESS

BLOCK IS MARKED

NET 30

12. DISCOUNT TERMS

13a. THIS CONTRACT IS A

RATED ORDER UNDER THE

DEFENSE PRIORITIES AND

ALLOCATIONS SYSTEM -

DPAS (15 CFR 700)

13b. RATING

X REQUEST

FOR QUOTE

(RFQ)

INVITATION

FOR BID

(IFB)

REQUEST

FOR

PROPOSAL

(RFP)

14. METHOD OF SOLICITATION

CODE15. DELIVER TO

SEE SCHEDULE

CODE FBI_HQ16. ADMINISTERED BY

FBI Headquarters 935 Pennsylvania Avenue, NW ARU Room WB-3000 Washington, DC 20535-0001

Accounts Receivable Unit, Debt Collection Team

(O) (202) 324-6885

(F) (202) 324-2504 Accounts.Receivable@ic.fbi.gov

FACILITY

CODE

CODE

TELEPHONE NUMBER

17a. CONTRACTOR/

OFFEROR

CODE18a. PAYMENT WILL BE MADE BY

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN

OFFER SEE ADDENDUM

18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK

BELOW IS CHECKED

19.

ITEM NUMBER

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

Evaluation Criteria for this solicitation is Lowest Price Technically Acceptable.

Office location for awardee must be within a fifty-mile radius to provide an emergency response within one hour.

Firm Fixed Price

See Continuation Sheet(s) (Use Reverse and/or Attach Additional Sheets as Necessary)

25. ACCOUNTING AND APPROPRIATION DATA 26. TOTAL AWARD AMOUNT (For Government Use Only)

X 27a. SOLICITATION INCORPORATES BY REFERENCE (FEDERAL ACQUISITION REGULATION) FAR 52.212-1, 52.212-4. FAR 52.212-3

AND 52.212-5 ARE ATTACHED. ADDENDA

ARE X ARE NOT ATTACHED

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4. FAR 52.212-5 IS ATTACHED. ADDENDA ARE ARE NOT ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN ____ COPIES TO

ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND DELIVER ALL ITEMS SET FORTH

OR OTHERWISE IDENTIFIED ABOVE AND ON ANY ADDITIONAL SHEETS SUBJECT TO THE

TERMS AND CONDITIONS SPECIFIED.

29. AWARD OF CONTRACT: REFERENCE _____________________________

OFFER DATED _________________ . YOUR OFFER ON SOLICITATION (BLOCK

5) INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH

HEREIN, IS ACCEPTED AS TO ITEMS:

30a. SIGNATURE OF OFFEROR/CONTRACTOR 31a. UNITED STATES OF AMERICA (SIGNATURE OF CONTRACTING OFFICER)

30b. NAME AND TITLE OF SIGNER (Type or print) 30c. DATE SIGNED 31b. NAME OF THE CONTRACTING OFFICER (Type or print)

Mckenzie Paige Bucher

31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION

PREVIOUS EDITION IS NOT USABLE

STANDARD FORM 1449 (REV. 11/2021)

Prescribed by GSA - FAR (48 CFR) 53.212

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19.

ITEM NUMBER

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

32a. QUANTITY IN COLUMN 21 HAS BEEN

RECEIVED INSPECTED ACCEPTED, AND CONFORMS TO THE CONTRACT, EXCEPT AS NOTED: _________________________________

32b. SIGNATURE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32c. DATE 32d. PRINTED NAME AND TITLE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32e. MAILING ADDRESS OF AUTHORIZED GOVERNMENT REPRESENTATIVE 32f. TELEPHONE NUMBER OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32g. E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

PARTIAL FINAL

33. SHIP NUMBER 34. VOUCHER NUMBER 35. AMOUNT VERIFIED

CORRECT FOR

COMPLETE PARTIAL FINAL

36. PAYMENT 37. CHECK NUMBER

38. S/R ACCOUNT NUMBER 39. S/R VOUCHER NUMBER 40. PAID BY

41a. I CERTIFY THIS ACCOUNT IS CORRECT AND PROPER FOR PAYMENT 42a. RECEIVED BY (Print)

41b. SIGNATURE AND TITLE OF CERTIFYING OFFICER 41c. DATE

42b. RECEIVED AT (Location)

42c. DATE REC'D (YY/MM/DD) 42d. TOTAL CONTAINERS

STANDARD FORM 1449 (REV. 11/2021) BACK

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Table of Contents

Section Description Page Number

Solicitation/Contract Form 1 Commodity or Services Schedule 2 Contract Clauses

2852.212-4 Contract Terms and Conditions, Commercial Items (FAR Deviation) (Nov 2023) 52.203-13 Contractor Code of Business Ethics and Conduct (Nov 2021) 52.204-13 System for Award Management Maintenance (Oct 2018) 52.204-19 Incorporation by Reference of Representations and Certifications (Dec 2014).

52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Nov 2021) 52.210-1 Market Research (Nov 2021) 52.217-6 Option for Increased Quantity (Mar 1989) 52.217-7 Option for Increased Quantity-Separately Priced Line Item (Mar 1989) 52.219-4 Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct 2022) 52.219-4 Alt I [Reserved] 52.219-6 Notice of Total Small Business Set-Aside (Nov 2020) 52.222-1 Notice to the Government of Labor Disputes (Feb 1997) 52.222-4 Contract Work Hours and Safety Standards--Overtime Compensation (May 2018) 52.222-6 Construction Wage Rate Requirements (Aug 2018) 52.222-7 Withholding of Funds (May 2014) 52.222-8 Payrolls and Basic Records (Jul 2021) 52.222-9 Apprentices and Trainees (July 2005) 52.222-26 Alt I [Reserved] 52.222-35 Equal Opportunity for Veterans (Jun 2020) 52.222-35 Alt I Equal Opportunity for Veterans (Jun 2020) - Alternate I (Jul 2014) 52.222-36 Equal Opportunity for Workers with Disabilities (Jun 2020) 52.222-36 Alt I Equal Opportunity for Workers with Disabilities (Jun 2020) - Alternate I (Jul 2014) 52.222-37 Employment Reports on Veterans (Jun 2020) 52.222-40 Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) 52.222-50 Combating Trafficking in Persons (Nov 2021) 52.222-54 Employment Eligibility Verification (May 2022) 52.225-13 Restrictions on Certain Foreign Purchases (Feb 2021) 52.225-19 Contractor Personnel in a Designated Operational Area or Supporting a Diplomatic or Consular Mission Outside the United States (May 2020) 52.227-1 Authorization and Consent (Jun 2020) 52.227-1 Alt I Authorization and Consent (Jun 2020) - Alternate I (Apr 1984) 52.227-1 Alt II Authorization and Consent (Jun 2020) - Alternate II (Apr 1984) 52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement (Jun 2020) 52.227-3 Patent Indemnity (Apr 1984) 52.227-3 Alt I Patent Indemnity (Apr 1984) - Alternate I (Apr 1984) 52.227-3 Alt II Patent Indemnity (Apr 1984) - Alternate II (Apr 1984) 52.227-3 Alt III Patent Indemnity (Apr 1984) - Alternate III (Jun 2020) 52.227-4 Patent Indemnity-Construction Contracts (Dec 2007) 52.227-4 Alt I Patent Indemnity-Construction Contracts (Dec 2007) - Alternate I (Dec 2007) 52.227-13 Patent Rights-Ownership by the Government (Dec 2007) 52.227-14 Rights in Data-General (May 2014) 52.227-14 Alt I Rights in Data-General (May 2014) - Alternate I (Dec 2007) 52.227-14 Alt II Rights in Data-General (May 2014) - Alternate II (Dec 2007) 52.227-14 Alt III Rights in Data-General (May 2014) - Alternate III (Dec 2007)

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52.227-14 Alt V Rights in Data-General (May 2014) - Alternate V (Dec 2007) 52.227-23 Rights to Proposal Data (Technical) (June 1987) 52.228-2 Additional Bond Security (Oct 1997) 52.228-3 Workers' Compensation Insurance (Defense Base Act) (July 2014) 52.228-4 Workers' Compensation and War-Hazard Insurance Overseas (Apr 1984) 52.228-5 Insurance-Work on a Government Installation (Jan 1997) 52.228-11 Individual Surety-Pledge of Assets (Feb 2021) 52.228-14 Irrevocable Letter of Credit (Nov 2014) 52.229-1 State and Local Taxes (Apr 1984) 52.229-3 Federal, State and Local Taxes (Feb 2013) 52.229-4 Federal, State and Local Taxes (State and Local Adjustments) (Feb 2013) 52.229-8 Taxes-Foreign Cost-Reimbursement Contracts (Mar 1990) 52.232-25 Prompt Payment (Jan 2017) 52.232-39 Unenforceability of Unauthorized Obligations (Jun 2013) 52.232-40 Providing Accelerated Payments to Small Business Subcontractors (Nov 2021) 52.233-1 Disputes (May 2014) 52.233-1 Alt I Disputes (May 2014) - Alternate I (Dec 1991) 52.233-3 Protest after Award (Aug 1996) 52.233-4 Applicable Law for Breach of Contract Claim (Oct 2004) 52.236-25 Requirements for Registration of Designers (June 2003) 52.237-9 Waiver of Limitation on Severance Payments to Foreign Nationals (Dec 2022)..

52.244-6 Subcontracts for Commercial Products and Commercial Services (Feb 2024)...

52.249-1 Termination for Convenience of the Government (Fixed-Price) (Short Form) (Apr 1984) 52.249-8 Default (Fixed-Price Supply and Service) (Apr 1984) 52.253-1 Computer Generated Forms (Jan 1991) 52.203-14 Display of Hotline Poster(s) (Nov 2021) 52.203-17 Contractor Employee Whistleblower Rights (Nov 2023) 52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) 52.204-18 Commercial and Government Entity Code Maintenance (Aug 2020) 52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (Dec 2023) 52.204-27 Prohibition on a ByteDance Covered Application (Jun 2023) 52.208-4 Vehicle Lease Payments (Apr 1984) 52.208-5 Condition of Leased Vehicles (Apr 1984) 52.208-6 Marking of Leased Vehicles (Apr 1984) 52.208-7 Tagging of Leased Vehicles (May 1986) 52.209-9 Updates of Publicly Available Information Regarding Responsibility Matters (Oct 2018) 52.209-10 Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015) 52.217-9 Option to Extend the Term of the Contract (Mar 2000) 52.219-2 Equal Low Bids (Oct 1995) 52.219-8 Utilization of Small Business Concerns (Feb 2024) 52.219-28 Post-Award Small Business Program Rerepresentation (Feb 2024) 52.222-10 Compliance with Copeland Act Requirements (Feb 1988) 52.222-11 Subcontracts (Labor Standards) (May 2014) 52.222-12 Contract Termination - Debarment (May 2014) 52.222-13 Compliance with Construction Wage Rate Requirements and Related Regulations (May 2014) 52.222-14 Disputes Concerning Labor Standards (Feb 1988) 52.222-15 Certification of Eligibility (May 2014) 52.222-16 Approval of Wage Rates (May 2014) 52.222-20 Contracts for Materials, Supplies, Articles, and Equipment (Jun 2020) 52.222-50 Alt I Combating Trafficking in Persons (Nov 2021) - Alternate I (Mar 2015) 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026 (Jan 2022)

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52.223-11 Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (May 2024) 52.223-20 Aerosols (May 2024) 52.223-21 Foams (May 2024) 52.223-23 Sustainable Products and Services (May 2024) 52.223-23 (DEV) Sustainable Products and Services (May 2024) (DEVIATION FEB 2025) 52.225-21 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021) 52.225-22 Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021) 52.225-22 Alt I Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials (Jan 2021) - Alternate I (May 2014) 52.225-23 Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials under Trade Agreements (Nov 2023) 52.225-23 Alt I Required Use of American Iron, Steel, and Manufactured Goods--Buy American Statute--Construction Materials under Trade Agreements (Nov 2023) - Alternate I (Nov 2023) 52.225-24 Notice of Required Use of American Iron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials Under Trade Agreements (Jan 2021) 52.225-24 Alt I Notice of Required Use of American Iron, Steel, and Manufactured Goods- Buy American Statute-Construction Materials Under Trade Agreements (Jan 2021) - Alternate I (May 2014) 52.225-24 Alt II Notice of Required Use of American Iron, Steel, and Manufactured Goods- Buy American Statute-Construction Materials Under Trade Agreements (Jan 2021) - Alternate II (Nov 2023) 52.226-7 Drug-Free Workplace (May 2024) 52.226-8 Encouraging Contractor Policies To Ban Text Messaging While Driving (May 2024) 52.228-16 Performance and Payment Bonds - Other Than Construction (Nov 2006) 52.229-13 Taxes-Foreign Contracts in Afghanistan (Nov 2021) 52.229-14 Taxes-Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement) (Nov 2021) 52.244-6 (DEV) Subcontracts for Commercial Products and Commercial Services (JAN 2025)

(DEVIATION FEB 2025)

52.246-26 Reporting Nonconforming Items (Nov 2021) 52.252-4 Alterations in Contract (Apr 1984) 52.252-6 Authorized Deviations in Clauses (Nov 2020) 2852.201-70 Contracting Officer's Representative (COR) (Nov 2023) 2852.203-70 General Non-Disclosure Agreement (Nov 2023) 2852.203-71 Intelligence Related Non-Disclosure Agreement (Nov 2023) 2852.222-70 Domestic Violence, Sexual Assault, and Stalking (Nov 2023) 2852.223-70 Unsafe Conditions Due to the Presence of Hazardous Material (Nov 2023).

2852.233-70 Protests Filed Directly with the Department of Justice (Nov 2023) DOJ-02 Contractor Privacy Requirements (Nov 2023) DOJ-03 Personnel Security Requirements For Contractor Employees (Nov 2023) DOJ-03 Alt I Personnel Security Requirements For Contractor Employees (Nov 2021); (Alt. I) -- Classified Information -- Cleared Contractors (Nov 2023) DOJ-05 Security of Department Information and Systems (OCT 2023) DOJ-07 Prohibition On Access By Non-U.S. Citizens To DOJ IT Systems (Nov 2023) DOJ-08 Continuing Contract Performance During a Pandemic Influenza or other National Emergency (Nov 2023)

3 List of Attachments 4 Solicitation Provisions

52.237-8 Restriction on Severance Payments to Foreign Nationals (Aug 2003) 52.204-5 Women-Owned Business (Other Than Small Business) (Oct 2014) 52.204-8 Annual Representations and Certifications (May 2024) 52.204-8 (DEV) Annual Representations and Certifications (JAN 2025) (DEVIATION FEB 2025)

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52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Nov 2021) 52.204-29 Federal Acquisition Supply Chain Security Act Orders-Representation and Disclosures (Dec 2023) 52.209-7 Information Regarding Responsibility Matters (Oct 2018) 52.219-1 Small Business Program Representations (Feb 2024) 52.219-1 Alt I Small Business Program Representations (Feb 2024) - Alternate I (Feb 2024) DOJ-06 National Security Risk Assessment (Nov 2023) 52.237-8 Restriction on Severance Payments to Foreign Nationals (Aug 2003) 52.204-5 Women-Owned Business (Other Than Small Business) (Oct 2014) 52.204-8 Annual Representations and Certifications (May 2024) 52.204-8 (DEV) Annual Representations and Certifications (JAN 2025) (DEVIATION FEB 2025) 52.204-24 Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Nov 2021) 52.204-29 Federal Acquisition Supply Chain Security Act Orders-Representation and Disclosures (Dec 2023) 52.209-7 Information Regarding Responsibility Matters (Oct 2018) 52.219-1 Small Business Program Representations (Feb 2024) 52.219-1 Alt I Small Business Program Representations (Feb 2024) - Alternate I (Feb 2024) DOJ-06 National Security Risk Assessment (Nov 2023)

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Section 1 - Commodity or Services Schedule

SCHEDULE OF SUPPLIES/SERVICES

CONTINUATION SHEET

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0001 Water Storage Tank Water Treatment

Safety System Repair/Maintenance - In support of Water Tank Storage Tank Maintenance and Operating Service

The contractor shall maintain and operate the WST to provide a reliable potable water source to the CJIS complex. Contractor will maintain required chlorine levels within the WST set forth by the West Virginia DHHR and the EPA. Along with performing necessary water sampling and testing to ensure a safe and healthy water supply, the contractor shall report all results to the WV DHHR and the EPA.

PSC: H946

Line Period of Performance: 08/01/2025 - 07/31/2026

Base Period

Delivery Schedule:

Quantity: 0.000000 FOB:

Place of Performance: CJIS Division 1000 Custer Hollow Road Fee Programs Unit, Module D-3 Clarksburg, WV 26306-0001

Fee Programs Unit

(304) 625-2360 fee_programs_unit@fbi.gov

0 EA $________ $_________________

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0002 Water Storage Tank Water Treatment

Safety System Repair/Maintenance - In support of Water Tank Storage Tank Maintenance and Operating Service

The contractor shall maintain and operate the WST to provide a reliable potable water source to the CJIS complex. Contractor will maintain required chlorine levels within the WST set forth by the West Virginia DHHR and the EPA. Along with performing necessary water sampling and testing to ensure a safe and healthy water supply, the contractor shall report all results to the WV DHHR and the EPA.

PSC: H946

Line Period of Performance: 08/01/2026 - 07/31/2027

Unexercised Option 1

1000 Custer Hollow Road Fee Programs Unit, Module D-3 Clarksburg, WV 26306-0001

Fee Programs Unit

(304) 625-2360 fee_programs_unit@fbi.gov

0 EA $________ $_________________

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

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0003 Water Storage Tank Water Treatment

Safety System Repair/Maintenance - In support of Water Tank Storage Tank Maintenance and Operating Service

The contractor shall maintain and operate the WST to provide a reliable potable water source to the CJIS complex. Contractor will maintain required chlorine levels within the WST set forth by the West Virginia DHHR and the EPA. Along with performing necessary water sampling and testing to ensure a safe and healthy water supply, the contractor shall report all results to the WV DHHR and the EPA.

PSC: H946

Line Period of Performance: 08/01/2027 - 07/31/2028

Unexercised Option 2

1000 Custer Hollow Road Fee Programs Unit, Module D-3 Clarksburg, WV 26306-0001

Fee Programs Unit

(304) 625-2360 fee_programs_unit@fbi.gov

0 EA $________ $_________________

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0004 Water Storage Tank Water Treatment

Safety System Repair/Maintenance - In support of Water Tank Storage Tank Maintenance and Operating Service

The contractor shall maintain and operate the WST to provide a reliable potable water source to the CJIS complex. Contractor will maintain required chlorine levels within the WST set forth by the West Virginia DHHR and the EPA. Along with performing necessary water sampling and testing to ensure a safe and healthy water supply, the contractor shall report all results to the WV DHHR and the EPA.

PSC: H946

Line Period of Performance: 08/01/2028 - 07/31/2029

Unexercised Option 3

1000 Custer Hollow Road Fee Programs Unit, Module D-3 Clarksburg, WV 26306-0001

Fee Programs Unit

(304) 625-2360 fee_programs_unit@fbi.gov

0 EA $________ $_________________

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0005 Water Storage Tank Water Treatment

Safety System Repair/Maintenance - In support of Water Tank Storage Tank Maintenance and Operating Service

The contractor shall maintain and operate the WST to provide a reliable potable water source to the CJIS complex. Contractor will maintain required chlorine levels within the WST set forth by the West Virginia DHHR and the EPA. Along with performing necessary water sampling and testing to ensure a safe and healthy water supply, the contractor shall report all results to the WV DHHR and the EPA.

0 EA $________ $_________________

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PSC: H946

Line Period of Performance: 08/01/2029 - 07/31/2030

Unexercised Option 4

1000 Custer Hollow Road Fee Programs Unit, Module D-3 Clarksburg, WV 26306-0001

Fee Programs Unit

(304) 625-2360 fee_programs_unit@fbi.gov

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Section 2 - Contract Clauses

2852.212-4 Contract Terms and Conditions, Commercial Items (FAR Deviation) (Nov 2023)

When a commercial item is contemplated (using FAR part 12 procedures or otherwise) and the contract will include FAR 52.212-4, the following replaces subparagraph (g)(2); paragraph (h); subparagraph (i)(2); paragraph (s); and paragraph (u), Unauthorized Obligations, of the basic FAR clause, and adds paragraph (w), as follows:

(g) (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 act regulations at 5 CFR part 1315, as modified by subparagraph (i)(2), Prompt payment, of this clause.

(h) Patent indemnity. Contractor shall indemnify and hold harmless the Government and its respective affiliates, officers, directors, employees, agents, successors and assigns (collectively, “Indemnities”) from and against any and all liability and losses incurred by the Indemnities that are (i) included in any settlement and/or (ii) awarded by a court of competent jurisdiction arising from or in connection with any third party claim of infringement made against Indemnities asserting that any product or service supplied under this contract constitutes infringement of any patent, copyright, trademark, service mark, trade name or other proprietary or intellectual right. This indemnity shall not apply unless Contractor shall have been informed within a reasonable time by the Government of the claim or action alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules, or regulations to participate in its defense. This indemnity also shall not apply to any claim unreasonably settled by the Government which obligates Contractor to make any admission or pay any amount without written consent signed by an authorized officer of Contractor, unless required by final decree of a court of competent jurisdiction.

(i) (2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C.

3903) and prompt payment regulations (5 CFR part 1315), with the following modification regarding the due date: For the sole purpose of computing an interest penalty due the Contractor, the Government agrees to inspect and determine the acceptability of any supply delivered or service performed specified in the invoice within thirty (30) days of receipt of a proper invoice from the Contractor, after which time, if no affirmative action has been taken by the Government to accept such supply or service, the supply or service will be deemed accepted and payment due thirty (30) days from the date of deemed acceptance. If the Government makes the determination that the item delivered or service performed is deficient or otherwise unacceptable, or the invoice is otherwise determined not to be a proper invoice, the terms and conditions of this paragraph regarding prompt payment will apply to the date the Contractor corrects the deficiency in the item delivered or service performed or submits a proper invoice. If actual acceptance occurs within the constructive acceptance period, the Government will base the determination of an interest penalty on the actual date of acceptance. The constructive acceptance requirement does not, however, compel Government officials to accept supplies or services, perform contract administration functions, or make payment prior to fulfilling their responsibilities.

(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, Payments, Invoice, Other Compliances, and Compliance with Laws Unique to Government Contracts provisions of the basic FAR clause at 52.212-4, and the Unauthorized Obligations and Contractor's Commercial Supplier Agreements—Unenforceable Clauses provisions of JAR 2852.212-4.

(3) FAR 52.212-5.

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(4) Other paragraphs of the basic FAR clause at 52.212-4, with the exception of paragraph (o), Warranty, and those paragraphs identified in this deviation of 52.212-4.

(5) Addenda to this solicitation, contract, or order, including contractor's Commercial supplier agreements incorporated into the contract.

(6) Solicitation provisions if this is a solicitation.

(7) Paragraph (o), Warranty, of the basic FAR clause at 52.212-4.

(8) The Standard Form 1449.

(9) Other documents, exhibits, and attachments.

(10) The specification.

(u) Unauthorized obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract or order is subject to any Commercial supplier agreement that includes any language, provision, or clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (see 31 U.S.C. 1341), the following shall govern:

(i) Any such language, provision, or clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other similar mechanism ( e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement and have no effect.

(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(w) Commercial supplier agreements—unenforceable clauses. When any supply or service acquired under this contract or order is subject to a contractor's commercial supplier agreement, the following shall be deemed incorporated into such agreement and modifies and replaces any similar language, provision, or clause in such agreement. As used herein, “this agreement” means any contractor commercial supplier agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

(i) Applicability. This agreement is a part of a contract between commercial supplier and the U.S.

Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR part 12).

(ii) End user. This agreement shall bind the Government as end user but shall not operate to bind the Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language, provision, or clause purporting to subject the U.S. Government to the laws of any U.S. state, territory, district, or municipality, or the laws of a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted and shall have no effect.

(B) Any language, provision, or clause requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted and shall have no effect.

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(C) Any language, provision, or clause prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted and shall have no effect.

(iv) Continued performance. Notwithstanding any other provision in this agreement, if the Contractor believes the Government to be in breach of this contract, order, or agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d), Disputes, of FAR 52.212-4.

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to the contract, order, or this agreement, (A) binding arbitration shall not be used unless otherwise specifically authorized by agency guidance, and (B) equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the Government only when explicitly provided by statute.

(vi) Updating terms.

(A) After award, the contractor may unilaterally revise terms if they are not material. Material terms are defined as:

(1) Terms that change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease the overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provisions of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

(vii) Order of precedence. Any Order of Precedence clause in any commercial supplier agreement is not enforceable against the Government. The applicable Order of Precedence for this contract, order, or agreement is FAR 52.212-4(s), as revised by JAR 2812.302 and 2852.212-4(s).

(viii) No automatic renewals. If any license or service tied to period payment is provided under this 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 consent by a properly warranted contracting officer, and any provision or term of any license or service purporting to provide for automatic renewal is unenforceable against the Government.

(ix) Indemnification by the Government or end-user. Any language, provision, or clause of this commercial supplier agreement requiring the Government or End-user to indemnify the commercial supplier or licensor is not enforceable against the Government.

(x) Indemnification by the commercial supplier or licensor. Any clause of this agreement requiring or permitting the commercial supplier or licensor to defend the Government as a condition of indemnifying the Government for any claim of infringement is hereby 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.

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(xi) Audits. Any language, provision, or clause of this commercial supplier agreement permitting Contractor to audit the end user's compliance with this agreement is not enforceable against the Government. To the extent any language, provision or clause of this agreement permits Contractor to audit the Government's compliance under this contract, order, or agreement, such language, provision, or clause of this agreement is hereby stricken and replaced as follows:

(A) If Contractor reasonably believes that the Government has violated the terms of this agreement with regard to the restrictions on authorized use and/or the number of authorized users, upon written request from Contractor, including an explanation of the basis for the request, DOJ will provide a redacted version of the Government's most recent Security Assessment and Authorization package (SAA) to Contractor on a confidential basis, so that Contractor may reasonably verify the Government's compliance with its obligations under this agreement. Contractor understands and agrees that the Government will remove or redact any information from the SAA that it reasonably believes may compromise (a) the security of the Government's information technology environment; (b) the confidentiality of any third-party proprietary or confidential information; (c) any confidential, sensitive law enforcement information; and (d) any other information that the Government believes may compromise a past, current, or prospective investigation, prosecution, or litigation. Notwithstanding the preceding, and subject to the Government's policies and procedures for such review, including but not limited to complying with all Government security requirements prior to being granted access to the Government's facilities, including the execution of appropriate confidentiality and/or non-disclosure agreements, the Government will arrange, upon Contractor's written request, for Contractor to view an un-redacted version of the SAA on Government premises. Contractor understands that Contractor will be provided a copy of the un-redacted SAA on Government premises only and that no un-redacted copy of the SAA, or any medium containing information relating to it, will be permitted to be removed from Government premises.

(B) The Contractor also understands and agrees that the Contractor shall make a request under this paragraph no more than on an annual basis and only during the period of the contract, and that any activities performed by Contractor under this clause will be performed at Contractor's expense, without reimbursement by the Government.

(C) Discrepancies found with regard to the restrictions on authorized use and/or the number of authorized users may result in a charge by Contractor to the Government. Any resulting invoice must comply with the proper invoicing and payment requirements specified in the contract. This charge, if disputed by the Government, will be resolved through the Disputes clause at 52.212-4(d); no payment obligation shall arise on the part of the Government until the conclusion of the dispute process.

(xii) Taxes or surcharges. Any taxes or surcharges which the Contractor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(xiii) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under FAR 52.212-4 (b), Assignment.

(xiv) Confidential information.

(A) During the term of this contract or order, either party may identify information as “confidential information,” and there shall be no disclosure, dissemination, or publication of any such information except to the extent required for the performance of this contract or order and otherwise provided in this clause or by statute or regulation. Specifically, the parties agree that the party receiving confidential information may only disclose such information to its employees and contractors on a “need-to-know” basis to carry out the obligations of this contract or order, and that subcontractors

15F06725Q0000253 Page 14 of 17 performing under this Agreement are subject to the same stipulations provided in this provision. The parties also agree that this provision shall survive the termination of this contract or order, and any confidential information obtained or received which comes within these restrictions shall remain confidential, provided that the obligation to treat information as confidential shall not apply to information which is or becomes publicly available through no improper action of the receiving party; is or comes to be in the receiving party's possession independent of its relationship with the disclosing party; is developed by or becomes known to the receiving party without use of any confidential information of the disclosing party; or is obtained rightfully from a third party not bound by an obligation of confidentiality. Additionally, nothing in this contract or order shall restrict disclosure by the receiving party pursuant to any applicable law, including but not limited to the Freedom of Information Act, 5 U.S.C. 552, et seq., or an order of any court of competent jurisdiction, provided that in either such case the receiving party gives prompt notice to the disclosing party to allow the disclosing party to interpose an objection to such disclosure, take action to assure confidential handling of the confidential information, or take such other action as it deems appropriate to protect its confidential information.

(B) The Government considers and hereby identifies as confidential any and all information related to any inquiries and/ or searches performed by the Government or by contractor at the Government's direction under this contract or order, including the subject of any such inquiry or search and any and all search terms, regardless of whether provided in writing or orally to Contractor, and Contractor agrees that it may only disclose such information to its employees and contractors on a “need-to-know” basis to carry out the obligations of this contract or order and that it will not share, reveal, divulge, disclose, disseminate, or publicize any such information to any third party except as provided in this provision without the prior written approval of the Contracting Officer. Contractor also understands and agrees that any subcontractors performing under this contract or order are subject to the same stipulations and that Contractor may be held responsible for any violations of confidentiality by a subcontractor.

(C) These provisions are consistent with and do not supersede, conflict with, or otherwise alter an employee's obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by Executive orders and statutory provisions relating to whistleblower protection are incorporated into this contract and are controlling.

(D) The Government may share the terms, conditions and prices set forth in this Order with, and provide a copy of the Order to, other Executive branch agencies of the U.S. Government, provided that the Government shall ensure that other Executive branch agencies to which it provides such information will be required to treat all such information consistent with terms and conditions set forth in this Order.

(E) Notwithstanding anything in this agreement, 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 this Order.

(xv) Authorized users. Authorized users may include full and part-time employees of the Government, including those working at or from remote locations, and contractors and contractor employees working within the scope of their contract with the Government, including those at or from remote locations.

(xvi) Authorized use. Authorized users are authorized to use the product or service acquired under this contract in performing business on behalf of the Government. Any information obtained or acquired by the Government under this contract may be used by the Government in the performance of Government business.

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(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevails to the extent of such inconsistency.

(End of Clause)

A.1 ADDENDUM TO FAR 52.212-4, Contract Terms and Conditions, Commercial Items (FAR Deviation) (Nov 2023)

The terms and conditions for the following clauses are hereby incorporated into this solicitation and resulting contract as an addendum to FAR clause 52.212-4.

This Section Is Intentionally Left Blank

[END OF ADDENDUM TO FAR 52.212-4]

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Section 3 - List of Attachments

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Section 4 - Solicitation Provisions