[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapter 1 (Parts 52 to 99)
Revised as of October 1, 2018
Containing a codification of documents of general
applicability and future effect
As of October 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 1--Federal Acquisition Regulation
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 479
Alphabetical List of Agencies Appearing in the CFR...... 499
Table of OMB Control Numbers............................ 509
List of CFR Sections Affected........................... 513
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 52.000 refers
to title 48, part 52,
section 000.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2018), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.govinfo.gov. For
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free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2018
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and
chapter 29 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2018.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 1, parts 52 to 99)
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Part
chapter 1--Federal Acquisition Regulation (Continued)....... 52
[[Page 3]]
CHAPTER 1--FEDERAL ACQUISITION REGULATION (CONTINUED)
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SUBCHAPTER H--CLAUSES AND FORMS
Part Page
52 Solicitation provisions and contract clauses 5
53 Forms....................................... 466
54-99
[Reserved]
[[Page 5]]
SUBCHAPTER H_CLAUSES AND FORMS
PART 52_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents
Sec.
52.000 Scope of part.
Subpart 52.1_Instructions for Using Provisions and Clauses
52.100 Scope of subpart.
52.101 Using part 52.
52.102 Incorporating provisions and clauses.
52.103 Identification of provisions and clauses.
52.104 Procedures for modifying and completing provisions and clauses.
52.105 Procedures for using alternates.
52.106 [Reserved]
52.107 Provisions and clauses prescribed in subpart 52.1.
Subpart 52.2_Text of Provisions and Clauses
52.200 Scope of subpart.
52.201 [Reserved]
52.202-1 Definitions.
52.203-1 [Reserved]
52.203-2 Certificate of Independent Price Determination.
52.203-3 Gratuities.
52.203-4 [Reserved]
52.203-5 Covenant Against Contingent Fees.
52.203-6 Restrictions on Subcontractor Sales to the Government.
52.203-7 Anti-Kickback Procedures.
52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal or
Improper Activity.
52.203-9 [Reserved]
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity.
52.203-11 Certification and Disclosure Regarding Payments To Influence
Certain Federal Transactions.
52.203-12 Limitation on Payments To Influence Certain Federal
Transactions.
52.203-13 Contractor code of business ethics and conduct.
52.203-14 Display of hotline poster(s).
52.203-15 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009.
52.203-16 Preventing Personal Conflicts of Interest.
52.203-17 Contractor Employee Whistleblower Rights and Requirement To
Inform Employees of Whistleblower Rights.
52.203-18 Prohibition on Contracting with Entities that Require Certain
52.203-19 Prohibition on Requiring Certain Internal Confidentiality
Agreements or Statements.
52.204-1 Approval of Contract.
52.204-2 Security Requirements.
52.204-3 Taxpayer identification.
52.204-4 Printed or Copied Double-Sided on Postconsumer Fiber Content
Paper.
52.204-5 Women-Owned Business (Other Than Small Business).
52.204-6 Unique Entity Identifier.
52.204-7 System for Award Management.
52.204-8 Annual Representations and Certifications.
52.204-9 Personal Identity Verification of Contractor Personnel.
52.204-10 Reporting Executive Compensation and First-Tier Subcontract
Awards.
52.204-11 [Reserved]
52.204-12 Unique Entity Identifier Maintenance.
52.204-13 System for Award Management Maintenance.
52.204-14 Service Contract Reporting Requirements.
52.204-16 Commercial and Government Entity Code Reporting.
52.204-17 Ownership or Control of Offeror.
52.204-18 Commercial and Government Entity Code Maintenance.
52.204-19 Incorporation by Reference of Representations and
Certifications.
52.204-20 Predecessor of Offeror.
52.204-21 Basic Safeguarding of Covered Contractor Information Systems.
52.204-22 Alternative Line Item Proposal.
52.204-23 Prohibition on Contracting for Hardware, Software, and
Services Developed or Provided by Kaspersky Lab and Other
Covered Entities.
52.205-52.206 [Reserved]
52.207-1 Notice of Standard Competition.
52.207-2 Notice of Streamlined Competition.
52.207-3 Right of First Refusal of Employment.
52.207-4 Economic Purchase Quantity--Supplies.
52.207-5 Option To Purchase Equipment.
52.207-6 Solicitation of Offers from Small Business Concerns and Small
Business Teaming Arrangements or Joint Ventures (Multiple-
Award Contracts).
52.208-1--52.208-3 [Reserved]
52.208-4 Vehicle Lease Payments.
52.208-5 Condition of Leased Vehicles.
52.208-6 Marking of Leased Vehicles.
52.208-7 Tagging of Leased Vehicles.
52.208-8 Required Sources for Helium and Helium Usage Data.
52.208-9 Contractor Use of Mandatory Sources of Supply or Services.
[[Page 6]]
52.209-1 Qualification Requirements.
52.209-2 Prohibition on Contracting With Inverted Domestic
Corporations--Representation.
52.209-3 First Article Approval--Contractor Testing.
52.209-4 First Article Approval--Government Testing.
52.209-5 Certification Regarding Responsibility Matters
52.209-6 Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, or Proposed for Debarment.
52.209-7 Information Regarding Responsibility Matters.
52.209-8 [Reserved]
52.209-9 Updates of Publicly Available Information Regarding
Responsibility Matters.
52.209-10 Prohibition on Contracting With Inverted Domestic
Corporations.
52.209-11 Representation by Corporations Regarding Delinquent Tax
Liability or a Felony Conviction under any Federal Law.
52.209-12 Certification Regarding Tax Matters.
52.209-13 Violation of Arms Control Treaties or Agreements--
Certification.
52.210-1 Market Research.
52.211-1 Availability of Specifications Listed in the GSA Index of
Federal Specifications, Standards and Commercial Item
Descriptions, FPMR Part 101-29.
52.211-2 Availability of Specifications, Standards, and Data Item
Descriptions Listed in the Acquisition Streamlining and
Standardization Information System (ASSIST).
52.211-3 Availability of Specifications Not Listed in the GSA Index of
Federal Specifications, Standards and Commercial Item
Descriptions.
52.211-4 Availability for Examination of Specifications Not Listed in
the GSA Index of Federal Specifications, Standards and
Commercial Item Descriptions.
52.211-5 Material Requirements.
52.211-6 Brand name or equal.
52.211-7 Alternatives to Government-unique standards.
52.211-8 Time of Delivery.
52.211-9 Desired and Required Time of Delivery.
52.211-10 Commencement, Prosecution, and Completion of Work.
52.211-11 Liquidated Damages--Supplies, Services, or Research and
Development.
52.211-12 Liquidated Damages--Construction.
52.211-13 Time Extensions.
52.211-14 Notice of Priority Rating for National Defense, Emergency
Preparedness, and Energy Program Use.
52.211-15 Defense Priority and Allocation Requirements.
52.211-16 Variation in Quantity.
52.211-17 Delivery of Excess Quantities.
52.211-18 Variation in Estimated Quantity.
52.212-1 Instructions to Offerors--Commercial Items.
52.212-2 Evaluation--Commercial Items.
52.212-3 Offeror Representations and Certifications--Commercial Items.
52.212-4 Contract Terms and Conditions--Commercial Items.
52.212-5 Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items.
52.213-1 Fast Payment Procedure.
52.213-2 Invoices.
52.213-3 Notice to Supplier.
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
52.214-1--52.214-2 [Reserved]
52.214-3 Amendments to Invitations for Bids.
52.214-4 False Statements in Bids.
52.214-5 Submission of Bids.
52.214-6 Explanation to Prospective Bidders.
52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.
52.214-8--52.214-9 [Reserved]
52.214-10 Contract Award--Sealed Bidding.
52.214-11 [Reserved]
52.214-12 Preparation of Bids.
52.214-13 [Reserved]
52.214-14 Place of Performance--Sealed Bidding.
52.214-15 Period for Acceptance of Bids.
52.214-16 Minimum Bid Acceptance Period.
52.214-17 [Reserved]
52.214-18 Preparation of Bids--Construction.
52.214-19 Contract Award--Sealed Bidding--Construction.
52.214-20 Bid Samples.
52.214-21 Descriptive Literature.
52.214-22 Evaluation of Bids for Multiple Awards.
52.214-23 Late Submissions, Modifications, and Withdrawals of Technical
Proposals Under Two-Step Sealed Bidding.
52.214-24 Multiple Technical Proposals.
52.214-25 Step Two of Two-Step Sealed Bidding.
52.214-26 Audit and Records--Sealed Bidding.
52.214-27 Price Reduction for Defective Certified Cost or Pricing Data--
Modifications--Sealed Bidding.
52.214-28 Subcontractor Certified Cost or Pricing Data--Modifications--
Sealed Bidding.
52.214-29 Order of Precedence--Sealed Bidding.
52.214-30 [Reserved]
52.214-31 Facsimile Bids.
52.214-32--52.214-33 [Reserved]
52.214-34 Submission of Offers in the English Language.
52.214-35 Submission of Offers in U.S. Currency.
[[Page 7]]
52.215-1 Instructions to Offerors--Competitive Acquisition.
52.215-2 Audit and Records--Negotiation.
52.215-3 Request for Information or Solicitation for Planning Purposes.
52.215-4 [Reserved]
52.215-5 Facsimile Proposals.
52.215-6 Place of Performance.
52.215-7 Annual Representations and Certifications--Negotiation.
52.215-8 Order of Precedence--Uniform Contract Format.
52.215-9 Changes or Additions to Make-or-Buy Program.
52.215-10 Price Reduction for Defective Certified Cost or Pricing Data.
52.215-11 Price Reduction for Defective Certified Cost or Pricing Data--
Modifications.
52.215-12 Subcontractor Certified Cost or Pricing Data.
52.215-13 Subcontractor Certified Cost or Pricing Data--Modifications.
52.215-14 Integrity of Unit Prices.
52.215-15 Pension adjustments and asset reversions.
52.215-16 Facilities Capital Cost of Money.
52.215-17 Waiver of Facilities Capital Cost of Money.
52.215-18 Reversion or Adjustment of Plans for Postretirement Benefits
(PRB) Other Than Pensions.
52.215-19 Notification of Ownership Changes.
52.215-20 Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data.
52.215-21 Requirements for Certified Cost or Pricing Data and Data Other
Than Certified Cost or Pricing Data--Modifications.
52.215-22 Limitations on Pass-Through Charges--Identification of
Subcontract Effort.
52.215-23 Limitations on Pass-Through Charges.
52.215-24--52.215-42 [Reserved]
52.216-1 Type of Contract.
52.216-2 Economic Price Adjustment--Standard Supplies.
52.216-3 Economic Price Adjustment--Semistandard Supplies.
52.216-4 Economic Price Adjustment--Labor and Material.
52.216-5 Price Redetermination--Prospective.
52.216-6 Price Redetermination--Retroactive.
52.216-7 Allowable Cost and Payment.
52.216-8 Fixed Fee.
52.216-9 Fixed Fee--Construction.
52.216-10 Incentive Fee.
52.216-11 Cost Contract--No Fee.
52.216-12 Cost-Sharing Contract--No Fee.
52.216-13--52.216-14 [Reserved]
52.216-15 Predetermined Indirect Cost Rates.
52.216-16 Incentive Price Revision--Firm Target.
52.216-17 Incentive Price Revision--Successive Targets.
52.216-18 Ordering.
52.216-19 Order Limitations.
52.216-20 Definite Quantity.
52.216-21 Requirements.
52.216-22 Indefinite Quantity.
52.216-23 Execution and Commencement of Work.
52.216-24 Limitation of Government Liability.
52.216-25 Contract Definitization.
52.216-26 Payments of Allowable Costs Before Definitization.
52.216-27 Single or Multiple Awards.
52.216-28 Multiple Awards for Advisory and Assistance Services.
52.216-29 Time-and-Materials/Labor-Hour Proposal Requirements--Non-
Commercial Item Acquisition With Adequate Price Competition.
52.216-30 Time-and-Materials/Labor-Hour Proposal Requirements--Non-
Commercial Item Acquisition without Adequate Price
Competition.
52.216-31 Time-and-Materials/Labor-Hour Proposal Requirements--
Commercial Item Acquisition.
52.217-1 [Reserved]
52.217-2 Cancellation Under Multiyear Contracts.
52.217-3 Evaluation Exclusive of Options.
52.217-4 Evaluation of Option Exercised at Time of Contract Award.
52.217-5 Evaluation of Options.
52.217-6 Option for Increased Quantity.
52.217-7 Option for Increased Quantity--Separately Priced Line Item.
52.217-8 Option To Extend Services.
52.217-9 Option To Extend the Term of the Contract.
52.218 [Reserved]
52.219-1 Small Business Program Representations.
52.219-2 Equal Low Bids.
52.219-3 Notice of HUBZone Set-Aside or Sole Source Award.
52.219-4 Notice of price evaluation preference for HUBZone small
business concerns.
52.219-5 [Reserved]
52.219-6 Notice of Total Small Business Set-Aside.
52.219-7 Notice of Partial Small Business Set-Aside.
52.219-8 Utilization of Small Business Concerns.
52.219-9 Small Business Subcontracting Plan.
52.219-10 Incentive Subcontracting Program.
52.219-11 Special 8(a) Contract Conditions.
52.219-12 Special 8(a) Subcontract Conditions.
52.219-13 Notice of Set-Aside of Orders.
[[Page 8]]
52.219-14 Limitations on Subcontracting.
52.219-15 [Reserved]
52.219-16 Liquidated Damages--Subcontracting Plan.
52.219-17 Section 8(a) Award.
52.219-18 Notification of Competition Limited to Eligible 8(a)
Participants.
52.219-19-26 [Reesrved]
52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-
Aside.
52.219-28 Post-Award Small Business Program Rerepresentation.
52.219-29 Notice of Set-Aside for, or Sole Source Award to, Economically
Disadvantaged Women-Owned Small Business Concerns.
52.219-30 Notice of Set-Aside for, or Sole Source Award to, Women-Owned
Small Business Concerns Eligible Under the Women-Owned Small
Business Program.
52.221 [Reserved]
52.222-1 Notice to the Government of Labor Disputes.
52.222-2 Payment for Overtime Premiums.
52.222-3 Convict Labor.
52.222-4 Contract Work Hours and Safety Standards--Overtime
Compensation.
52.222-5 Construction Wage Rate Requirements--Secondary Site of the
Work.
52.222-6 Construction Wage Rate Requirements.
52.222-7 Withholding of Funds.
52.222-8 Payrolls and Basic Records.
52.222-9 Apprentices and Trainees.
52.222-10 Compliance With Copeland Act Requirements.
52.222-11 Subcontracts (Labor Standards).
52.222-12 Contract Termination--Debarment.
52.222-13 Compliance With Construction Wage Rate Requirements and
Related Regulations.
52.222-14 Disputes Concerning Labor Standards.
52.222-15 Certification of Eligibility.
52.222-16 Approval of Wage Rates.
52.222-17 Nondisplacement of Qualified Workers.
52.222-18 Certification Regarding Knowledge of Child Labor for Listed
End Products.
52.222-19 Child Labor--Cooperation with Authorities and Remedies.
52.222-20 Contracts for Materials, Supplies, Articles, and Equipment
Exceeding $15,000.
52.222-21 Prohibition of segregated facilities.
52.222-22 Previous Contracts and Compliance Reports.
52.222-23 Notice of Requirement for Affirmative Action To Ensure Equal
Employment Opportunity for Construction.
52.222-24 Preaward On-Site Equal Opportunity Compliance Evaluation.
52.222-25 Affirmative Action Compliance.
52.222-26 Equal Opportunity.
52.222-27 Affirmative Action Compliance Requirements for Construction.
52.222-28 [Reserved]
52.222-29 Notification of visa denial.
52.222-30 Construction Wage Rate Requirements--Price Adjustment (None or
Separately Specified Method).
52.222-31 Construction Wage Rate Requirements--Price Adjustment
(Percentage Method).
52.222-32 Construction Wage Rate Requirements--Price Adjustment (Actual
Method).
52.222-33 Notice of Requirement for Project Labor Agreement.
52.222-34 Project Labor Agreement.
52.222-35 Equal Opportunity for Veterans.
52.222-36 Affirmative Action for Workers With Disabilities.
52.222-37 Employment Reports on Veterans.
52.222-38 Compliance with Veterans' Employment Reporting Requirements.
52.222-39 [Reserved]
52.222-40 Notification of Employee Rights Under the National Labor
Relations Act.
52.222-41 Service Contract Labor Standards.
52.222-42 Statement of Equivalent Rates for Federal Hires.
52.222-43 Fair Labor Standards Act and Service Contract Labor
Standards--Price Adjustment (Multiple Year and Option
Contracts).
52.222-44 Fair Labor Standards Act and Service Contract Labor
Standards--Price Adjustment.
52.222-45 [Reserved]
52.222-46 Evaluation of Compensation for Professional Employees.
52.222-47 [Reserved]
52.222-48 Exemption From Application of the Service Contract Labor
Standards to Contracts for Maintenance, Calibration, or Repair
of Certain Equipment--Certification.
52.222-49 Service Contract Labor Standards--Place of Performance
Unknown.
52.222-50 Combating Trafficking in Persons.
52.222-51 Exemption From Application of the Service Contract Labor
Standards to Contracts for Maintenance, Calibration, or Repair
of Certain Equipment--Requirements.
52.222-52 Exemption From Application of the Service Contract Labor
Standards to Contracts for Certain Services--Certification.
52.222-53 Exemption From Application of the Service Contract Labor
Standards to Contracts for Certain Services--Requirements.
52.222-54 Employment Eligibility Verification.
52.222-55 Minimum Wages Under Executive Order 13658.
52.222-56 Certification Regarding Trafficking in Persons Compliance
Plan.
52.222-57-52.222-61 [Reserved]
[[Page 9]]
52.222-62 Paid Sick Leave Under Executive Order 13706.
52.223-1 Biobased Product Certification.
52.223-2 Affirmative Procurement of Biobased Products Under Service and
Construction Contracts.
52.223-3 Hazardous Material Identification and Material Safety Data.
52.223-4 Recovered Material Certification.
52.223-5 Pollution Prevention and Right-to-Know Information.
52.223-6 Drug-Free Workplace.
52.223-7 Notice of radioactive materials.
52.223-8 [Reserved]
52.223-9 Estimate of Percentage of Recovered Material Content for EPA-
Designated Items.
52.223-10 Waste Reduction Program.
52.223-11 Ozone-Depleting Substances and High Global Warming Potential
Hydrofluorocarbons.
52.223-12 Maintenance, Service, Repair, or Disposal of Refrigeration
Equipment and Air Conditioners.
52.223-13 Acquisition of EPEAT[supreg]-Registered Imaging Equipment.
52.223-14 Acquisition of EPEAT[supreg]-Registered Televisions.
52.223-15 Energy Efficiency in Energy-Consuming Products.
52.223-16 Acquisition of EPEAT[supreg]-Registered Personal Computer
Products.
52.223-17 Affirmative Procurement of EPA-designated Items in Service and
Construction Contracts.
52.223-18 Encouraging Contractor Policies To Ban Text Messaging While
Driving.
52.223-19 Compliance with Environmental Management Systems.
52.223-20 Aerosols.
52.223-21 Foams.
52.223-22 Public Disclosure of Greenhouse Gas Emissions and Reduction
Goals--Representation.
52.224-1 Privacy Act Notification.
52.224-2 Privacy Act.
52.224-3 Privacy Training.
52.225-1 Buy American--Supplies.
52.225-2 Buy American Certificate.
52.225-3 Buy American--Free Trade Agreements--Israeli Trade Act.
52.225-4 Buy American--Free Trade Agreement--Israeli Trade Act
Certificate.
52.225-5 Trade Agreements.
52.225-6 Trade Agreements Certificate.
52.225-7 Waiver of Buy American Statute for Civil Aircraft and Related
Articles.
52.225-8 Duty-Free Entry.
52.225-9 Buy American--Construction Materials.
52.225-10 Notice of Buy American Requirement--Construction Materials.
52.225-11 Buy American --Construction Materials Under Trade Agreements.
52.225-12 Notice of Buy American Requirement--Construction Materials
Under Trade Agreements.
52.225-13 Restrictions on Certain Foreign Purchases.
52.225-14 Inconsistency between English Version and Translation of
Contract.
52.225-15--52.225-16 [Reserved]
52.225-17 Evaluation of Foreign Currency Offers.
52.225-18 Place of Manufacture.
52.225-19 Contractor Personnel in a Designated Operational Area or
Supporting a Diplomatic or Consular Mission Outside the United
States.
52.225-20 Prohibition on Conducting Restricted Business Operations in
Sudan--Certification.
52.225-21 Required Use of American Iron, Steel, and Manufactured Goods--
Buy American Statute--Construction Materials.
52.225-22 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Buy American Statute--Construction
Materials.
52.225-23 Required Use of American Iron, Steel, and Manufactured Goods--
Buy American Statute--Construction Materials Under Trade
Agreements.
52.225-24 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Buy American Statute--Construction
Materials Under Trade Agreements.
52.225-25 Prohibition on Contracting with Entities Engaging in Certain
Activities or Transactions Relating to Iran--Representation
and Certifications.
52.225-26 Contractors Performing Private Security Functions Outside the
United States.
52.226 [Reserved]
52.226-1 Utilization of Indian Organizations and Indian-Owned Economic
Enterprises.
52.226-2 Historically Black College or University and Minority
Institution Representation.
52.226-3 Disaster or Emergency Area Representation.
52.226-4 Notice of Disaster or Emergency Area Set-Aside.
52.226-5 Restrictions on Subcontracting Outside Disaster or Emergency
Area.
52.226-6 Promoting excess food donation to nonprofit organizations.
52.227-1 Authorization and Consent.
52.227-2 Notice and Assistance Regarding Patent and Copyright
Infringement.
52.227-3 Patent Indemnity.
52.227-4 Patent Indemnity--Construction Contracts.
52.227-5 Waiver of Indemnity.
52.227-6 Royalty Information.
52.227-7 Patents--Notice of Government Licensee.
52.227-8 [Reserved]
52.227-9 Refund of Royalties.
52.227-10 Filing of Patent Applications--Classified Subject Matter.
[[Page 10]]
52.227-11 Patent Rights--Ownership by the Contractor.
52.227-12 [Reserved]
52.227-13 Patent Rights--Ownership by the Government.
52.227-14 Rights in Data--General.
52.227-15 Representation of Limited Rights Data and Restricted Computer
Software.
52.227-16 Additional Data Requirements.
52.227-17 Rights in Data--Special Works.
52.227-18 Rights in Data--Existing Works.
52.227-19 Commercial Computer Software License.
52.227-20 Rights in Data--SBIR Program.
52.227-21 Technical Data Declaration, Revision, and Withholding of
Payment--Major Systems.
52.227-22 Major System--Minimum Rights.
52.227-23 Rights to Proposal Data (Technical).
52.228-1 Bid Guarantee.
52.228-2 Additional Bond Security.
52.228-3 Workers' Compensation Insurance (Defense Base Act).
52.228-4 Workers' Compensation and War-Hazard Insurance Overseas.
52.228-5 Insurance--Work on a Government Installation.
52.228-6 [Reserved]
52.228-7 Insurance--Liability to Third Persons.
52.228-8 Liability and Insurance--Leased Motor Vehicles.
52.228-9 Cargo Insurance.
52.228-10 Vehicular and General Public Liability Insurance.
52.228-11 Pledges of Assets.
52.228-12 Prospective Subcontractor Requests for Bonds.
52.228-13 Alternative Payment Protections.
52.228-14 Irrevocable Letter of Credit.
52.228-15 Performance and Payment Bonds--Construction.
52.228-16 Performance and Payment Bonds--Other Than Construction.
52.229-1 State and Local Taxes.
52.229-2 North Carolina State and Local Sales and Use Tax.
52.229-3 Federal, State, and Local Taxes.
52.229-4 Federal, State, and Local (State and Local Adjustments).
52.229-5 [Reserved]
52.229-6 Taxes--Foreign Fixed-Price Contracts.
52.229-7 Taxes--Fixed-Price Contracts With Foreign Governments.
52.229-8 Taxes--Foreign Cost-Reimbursement Contracts.
52.229-9 Taxes--Cost-Reimbursement Contracts With Foreign Governments.
52.229-10 State of New Mexico Gross Receipts and Compensating Tax.
52.230-1 Cost Accounting Standards Notices and Certification.
52.230-2 Cost Accounting Standards.
52.230-3 Disclosure and Consistency of Cost Accounting Practices.
52.230-4 Disclosure and Consistency of Cost Accounting Practices--
Foreign Concerns.
52.230-5 Cost Accounting Standards--Educational Institution.
52.230-6 Administration of Cost Accounting Standards.
52.230-7 Proposal Disclosure--Cost Accounting Practice Changes.
52.231 [Reserved]
52.232-1 Payments.
52.232-2 Payments Under Fixed-Price Research and Development Contracts.
52.232-3 Payments Under Personal Services Contracts.
52.232-4 Payments Under Transportation Contracts and Transportation-
Related Services Contracts.
52.232-5 Payments Under Fixed-Price Construction Contracts.
52.232-6 Payment Under Communication Service Contracts With Common
Carriers.
52.232-7 Payments Under Time-and-Materials and Labor-Hour Contracts.
52.232-8 Discounts for Prompt Payment.
52.232-9 Limitation on Withholding of Payments.
52.232-10 Payments Under Fixed-Price Architect-Engineer Contracts.
52.232-11 Extras.
52.232-12 Advance Payments.
52.232-13 Notice of Progress Payments.
52.232-14 Notice of Availability of Progress Payments Exclusively for
Small Business Concerns.
52.232-15 Progress Payments Not Included.
52.232-16 Progress Payments.
52.232-17 Interest.
52.232-18 Availability of Funds.
52.232-19 Availability of Funds for the Next Fiscal Year.
52.232-20 Limitation of Cost.
52.232-21 [Reserved]
52.232-22 Limitation of Funds.
52.232-23 Assignment of Claims.
52.232-24 Prohibition of Assignment of Claims.
52.232-25 Prompt Payment.
52.232-26 Prompt Payment for Fixed-Price Architect-Engineer Contracts.
52.232-27 Prompt Payment for Construction Contracts.
52.232-28 Invitation To Propose Performance-Based Payments.
52.232-29 Terms for Financing of Purchases of Commercial Items.
52.232-30 Installment Payments for Commercial Items.
52.232-31 Invitation To Propose Financing Terms.
52.232-32 Performance-Based Payments.
52.232-33 Payment by Electronic Funds Transfer--System for Award
Management.
52.232-34 Payment by Electronic Funds Transfer--Other than System for
Award Management.
[[Page 11]]
52.232-35 Designation of Office for Government Receipt of Electronic
Funds Transfer Information.
52.232-36 Payment by Third Party.
52.232-37 Multiple Payment Arrangements.
52.232-38 Submission of Electronic Funds Transfer Information with
Offer.
52.232-39 Unenforceability of Unauthorized Obligations.
52.232-40 Providing Accelerated Payments to Small Business
Subcontractors.
52.233-1 Disputes.
52.233-2 Service of Protest.
52.233-3 Protest After Award.
52.233-4 Applicable Law for Breach of Contract Claim.
52.234-1 Industrial Resources Developed Under Title III, Defense
Production Act.
52.234-2 Notice of Earned Value Management System--Preaward Integrated
Baseline Review.
52.234-3 Notice of Earned Value Management System--Postaward Integrated
Baseline Review.
52.234-4 Earned Value Management System.
52.235 [Reserved]
52.236-1 Performance of Work by the Contractor.
52.236-2 Differing Site Conditions.
52.236-3 Site Investigation and Conditions Affecting the Work.
52.236-4 Physical Data.
52.236-5 Material and Workmanship.
52.236-6 Superintendence by the Contractor.
52.236-7 Permits and Responsibilities.
52.236-8 Other Contracts.
52.236-9 Protection of Existing Vegetation, Structures, Equipment,
Utilities, and Improvements.
52.236-10 Operations and Storage Areas.
52.236-11 Use and Possession Prior to Completion.
52.236-12 Cleaning Up.
52.236-13 Accident Prevention.
52.236-14 Availability and Use of Utility Services.
52.236-15 Schedules for Construction Contracts.
52.236-16 Quantity Surveys.
52.236-17 Layout of Work.
52.236-18 Work Oversight in Cost-Reimbursement Construction Contracts.
52.236-19 Organization and Direction of the Work.
52.236-20 [Reserved]
52.236-21 Specifications and Drawings for Construction.
52.236-22 Design Within Funding Limitations.
52.236-23 Responsibility of the Architect-Engineer Contractor.
52.236-24 Work Oversight in Architect-Engineer Contracts.
52.236-25 Requirements for Registration of Designers.
52.236-26 Preconstruction Conference.
52.236-27 Site Visit (Construction).
52.236-28 Preparation of Proposals--Construction.
52.237-1 Site Visit.
52.237-2 Protection of Government Buildings, Equipment, and Vegetation.
52.237-3 Continuity of Services.
52.237-4 Payment by Government to Contractor.
52.237-5 Payment by Contractor to Government.
52.237-6 Incremental Payment by Contractor to Government.
52.237-7 Indemnification and Medical Liability Insurance.
52.237-8 Restriction on Severance Payments to Foreign Nationals.
52.237-9 Waiver of Limitation on Severance Payments to Foreign
Nationals.
52.237-10 Identification of Uncompensated Overtime.
52.237-11 Accepting and Dispensing of $1 Coin.
52.238 [Reserved]
52.239-1 Privacy or Security Safeguards.
52.240 [Reserved]
52.241 Utility Services Provisions and Clauses.
52.241-1 Electric Service Territory Compliance Representation.
52.241-2 Order of Precedence--Utilities.
52.241-3 Scope and Duration of Contract.
52.241-4 Change in Class of Service.
52.241-5 Contractor's Facilities.
52.241-6 Service Provisions.
52.241-7 Change in Rates or Terms and Conditions of Service for
Regulated Services.
52.241-8 Change in Rates or Terms and Conditions of Service for
Unregulated Services.
52.241-9 Connection Charge.
52.241-10 Termination Liability.
52.241-11 Multiple Service Locations.
52.241-12 Nonrefundable, Nonrecurring Service Charge.
52.241-13 Capital Credits.
52.242-1 Notice of Intent To Disallow Costs.
52.242-2 Production Progress Reports.
52.242-3 Penalties for Unallowable Costs.
52.242-4 Certification of Final Indirect Costs.
52.242-5 Small Business Subcontractors.
52.242-6--52.242-12 [Reserved]
52.242-13 Bankruptcy.
52.242-14 Suspension of Work.
52.242-15 Stop-Work Order.
52.242-16 [Reserved]
52.242-17 Government Delay of Work.
52.243-1 Changes--Fixed-Price.
52.243-2 Changes--Cost-Reimbursement.
52.243-3 Changes--Time-and-Materials or Labor-Hours.
52.243-4 Changes.
52.243-5 Changes and Changed Conditions.
52.243-6 Change Order Accounting.
52.243-7 Notification of Changes.
52.244-1 [Reserved]
52.244-2 Subcontracts.
[[Page 12]]
52.244-3 [Reserved]
52.244-4 Subcontractors and outside associates and consultants
(Architect-engineer services).
52.244-5 Competition in Subcontracting.
52.244-6 Subcontracts for Commercial Items.
52.245-1 Government Property.
52.245-2 Government Property Installation Operation Services.
52.245-3--52.245-8 [Reserved]
52.245-9 Use and Charges.
52.246-1 Contractor Inspection Requirements.
52.246-2 Inspection of Supplies--Fixed-Price.
52.246-3 Inspection of Supplies--Cost-Reimbursement.
52.246-4 Inspection of Services--Fixed-Price.
52.246-5 Inspection of Services--Cost-Reimbursement.
52.246-6 Inspection--Time-and-Material and Labor-Hour.
52.246-7 Inspection of Research and Development--Fixed-Price.
52.246-8 Inspection of Research and Development--Cost-Reimbursement.
52.246-9 Inspection of Research and Development (Short Form).
52.246-10 [Reserved]
52.246-11 Higher-Level Contract Quality Requirement.
52.246-12 Inspection of Construction.
52.246-13 Inspection--Dismantling, Demolition, or Removal of
Improvements.
52.246-14 Inspection of Transportation.
52.246-15 Certificate of Conformance.
52.246-16 Responsibility for Supplies.
52.246-17 Warranty of Supplies of a Noncomplex Nature.
52.246-18 Warranty of Supplies of a Complex Nature.
52.246-19 Warranty of Systems and Equipment under Performance
Specifications or Design Criteria.
52.246-20 Warranty of Services.
52.246-21 Warranty of Construction.
52.246-22 [Reserved]
52.246-23 Limitation of Liability.
52.246-24 Limitation of Liability--High-Value Items.
52.246-25 Limitation of Liability--Services.
52.247-1 Commercial Bill of Lading Notations.
52.247-2 Permits, Authorities, or Franchises.
52.247-3 Capability To Perform a Contract for the Relocation of a
Federal Office.
52.247-4 Inspection of Shipping and Receiving Facilities.
52.247-5 Familiarization With Conditions.
52.247-6 Financial Statement.
52.247-7 Freight Excluded.
52.247-8 Estimated Weights or Quantities Not Guaranteed.
52.247-9 Agreed Weight--General Freight.
52.247-10 Net Weight--General Freight.
52.247-11 Net Weight--Household Goods or Office Furniture.
52.247-12 Supervision, Labor, or Materials.
52.247-13 Accessorial Services--Moving Contracts.
52.247-14 Contractor Responsibility for Receipt of Shipment.
52.247-15 Contractor Responsibility for Loading and Unloading.
52.247-16 Contractor Responsibility for Returning Undelivered Freight.
52.247-17 Charges.
52.247-18 Multiple Shipments.
52.247-19 Stopping in Transit for Partial Unloading.
52.247-20 Estimated Quantities or Weights for Evaluation of Offers.
52.247-21 Contractor Liability for Personal Injury and/or Property
Damage.
52.247-22 Contractor Liability for Loss of and/or Damage to Freight
Other Than Household Goods.
52.247-23 Contractor Liability for Loss of and/or Damage to Household
Goods.
52.247-24 Advance Notification by the Government.
52.247-25 Government-Furnished Equipment With or Without Operators.
52.247-26 Government Direction and Marking.
52.247-27 Contract Not Affected by Oral Agreement.
52.247-28 Contractor's Invoices.
52.247-29 F.o.b. Origin.
52.247-30 F.o.b. Origin, Contractor's Facility.
52.247-31 F.o.b. Origin, Freight Allowed.
52.247-32 F.o.b. Origin, Freight Prepaid.
52.247-33 F.o.b. Origin, With Differentials.
52.247-34 F.o.b. Destination.
52.247-35 F.o.b. Destination, Within Consignee's Premises.
52.247-36 F.a.s. Vessel, Port of Shipment.
52.247-37 F.o.b. Vessel, Port of Shipment.
52.247-38 F.o.b. Inland Carrier, Point of Exportation.
52.247-39 F.o.b. Inland Point, Country of Importation.
52.247-40 Ex Dock, Pier, or Warehouse, Port of Importation.
52.247-41 C.& f. Destination.
52.247-42 C.i.f. Destination.
52.247-43 F.o.b. Designated Air Carrier's Terminal, Point of
Exportation.
52.247-44 F.o.b. Designated Air Carrier's Terminal, Point of
Importation.
52.247-45 F.o.b. Origin and/or F.o.b. Destination Evaluation.
52.247-46 Shipping Point(s) Used in Evaluation of F.o.b. Origin Offers.
52.247-47 Evaluation--F.o.b. Origin.
52.247-48 F.o.b. Destination--Evidence of Shipment.
52.247-49 Destination Unknown.
52.247-50 No Evaluation of Transportation Costs.
52.247-51 Evaluation of Export Offers.
[[Page 13]]
52.247-52 Clearance and Documentation Requirements--Shipments to DOD Air
or Water Terminal Transshipment Points.
52.247-53 Freight Classification Description.
52.247-54 [Reserved]
52.247-55 F.o.b. Point for Delivery of Government-Furnished Property.
52.247-56 Transit Arrangements.
52.247-57 Transportation Transit Privilege Credits.
52.247-58 Loading, Blocking, and Bracing of Freight Car Shipments.
52.247-59 F.o.b. Origin--Carload and Truckload Shipments.
52.247-60 Guaranteed Shipping Characteristics.
52.247-61 F.o.b. Origin--Minimum Size of Shipments.
52.247-62 Specific Quantities Unknown.
52.247-63 Preference for U.S.-Flag Air Carriers.
52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels.
52.247-65 F.o.b. Origin, Prepaid Freight--Small Package Shipments.
52.247-66 Returnable Cylinders.
52.247-67 Submission of Transportation Documents for Audit.
52.247-68 Report of Shipment (REPSHIP).
52.248-1 Value Engineering.
52.248-2 Value Engineering--Architect-Engineer.
52.248-3 Value Engineering--Construction.
52.249-1 Termination for Convenience of the Government (Fixed-Price)
(Short Form).
52.249-2 Termination for Convenience of the Government (Fixed-Price).
52.249-3 Termination for Convenience of the Government (Dismantling,
Demolition, or Removal of Improvements).
52.249-4 Termination for Convenience of the Government (Services) (Short
Form).
52.249-5 Termination for Convenience of the Government (Educational and
Other Nonprofit Institutions).
52.249-6 Termination (Cost-Reimbursement).
52.249-7 Termination (Fixed-Price Architect-Engineer).
52.249-8 Default (Fixed-Price Supply and Service).
52.249-9 Default (Fixed-Price Research and Development).
52.249-10 Default (Fixed-Price Construction).
52.249-11 [Reserved]
52.249-12 Termination (Personal Services).
52.249-13 [Reserved]
52.249-14 Excusable Delays.
52.250-1 Indemnification Under Public Law 85-804.
52.250-2 SAFETY Act Coverage Not Applicable.
52.250-3 SAFETY Act Block Designation/Certification.
52.250-4 SAFETY Act Pre-qualification Designation Notice.
52.250-5 SAFETY Act--Equitable Adjustment.
52.251-1 Government Supply Sources.
52.251-2 Interagency Fleet Management System Vehicles and Related
Services.
52.252-1 Solicitation Provisions Incorporated by Reference.
52.252-2 Clauses Incorporated by Reference.
52.252-3 Alterations in Solicitation.
52.252-4 Alterations in Contract.
52.252-5 Authorized Deviations in Provisions.
52.252-6 Authorized Deviations in Clauses.
52.253-1 Computer Generated Forms.
Subpart 52.3_Provision and Clause Matrix
52.300 Scope of subpart.
52.301 Solicitation provisions and contract clauses (Matrix).
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C.
20113.
Source: 48 FR 42478, Sept. 19, 1983, unless otherwise noted.
52.000 Scope of part.
This part (a) gives instructions for using provisions and clauses in
solicitations and/or contracts, (b) sets forth the solicitation
provisions and contract clauses prescribed by this regulation, and (c)
presents a matrix listing the FAR provisions and clauses applicable to
each principal contract type and/or purpose (e.g., fixed-price supply,
cost-reimbursement research and development).
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990]
Subpart 52.1_Instructions for Using Provisions and Clauses
52.100 Scope of subpart.
This subpart (a) gives instructions for using part 52, including the
explanation and use of provision and clause numbers, prescriptions,
prefaces, and the matrix; (b) prescribes procedures for incorporating,
identifying, and modifying provisions and clauses in solicitations and
contracts, and for using alternates; and (c) describes the derivation of
FAR provisions and clauses.
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990]
[[Page 14]]
52.101 Using part 52.
(a) Definition. Modification, as used in this subpart, means a minor
change in the details of a provision or clause that is specifically
authorized by the FAR and does not alter the substance of the provision
or clause (see 52.104).
(b) Numbering--(1) FAR provisions and clauses. Subpart 52.2 sets
forth the texts of all FAR provisions and clauses, each in its own
separate subsection. The subpart is arranged by subject matter, in the
same order as, and keyed to, the parts of the FAR. Each FAR provision or
clause is uniquely identified. All FAR provision and clause numbers
begin with ``52.2,'' since the text of all FAR provisions and clauses
appear in subpart 52.2. The next two digits of the provision or clause
number correspond to the number of the FAR subject part in which the
provision or clause is prescribed. The FAR provision or clause number is
then completed by a hyphen and a sequential number assigned within each
section of subpart 52.2. The following example illustrates the makeup of
the FAR provision or clause number:
[GRAPHIC] [TIFF OMITTED] TC01MY91.000
(2) Provisions or clauses that supplement the FAR. (i) Provisions or
clauses that supplement the FAR are--
(A) Prescribed and included in authorized agency acquisition
regulations issued within an agency to satisfy the specific needs of the
agency as a whole;
(B) Prescribed and included in a regulation issued by a
suborganization of an agency to satisfy the needs of that particular
suborganization; or
(C) Developed for use at a suborganizational level of an agency, not
meant for repetitive use, but intended to meet the needs of an
individual acquisition and, thus, impractical to include in either an
agency or suborganization acquisition regulation. (See 1.301(c).)
(ii) Supplemental provisions or clauses published in agency
acquisition regulations shall be in full text and the prescription for
the use of each shall be included. Supplemental provisions or clauses
published in agency acquisition regulations shall be numbered in the
same manner in which FAR provisions and clauses are numbered except
that--
(A) If it is included in an agency acquisition regulation that is
published in the Federal Register and is codified in Title 48, Code of
Federal Regulations (48 CFR), the number shall be preceded by the
chapter number within 48 CFR assigned by the CFR staff; and
(B) The sequential number shall be ``70'' or a higher number (see
1.303).
(iii) The sequential number at the end of the number of a provision
or clause that supplements the FAR, like its counterpart at the end of
any FAR provision or clause number, indicates the subsection location of
the provision or clause in subpart 52.2 of the agency acquisition
regulation that contains its full text. If, for example, an agency
acquisition regulation contains only one provision followed by only one
clause supplementing the FAR in its section 52.236 (Construction and
Architect-Engineer Contracts), then the sequential numbers would be
``70'' for the provision and ``71'' for the clause.
(c) Prescriptions. Each provision or clause in subpart 52.2 is
prescribed at that place in the FAR text where the subject matter of the
provision or clause receives its primary treatment. The prescription
includes all conditions, requirements, and instructions for using the
provision or clause and its alternates, if any. The provision or clause
may be referred to in other FAR locations.
(d) Introductory text. Within subpart 52.2, the introductory text of
each provision or clause includes a cross-reference to the location in
the FAR subject text that prescribes its use.
(e) Matrix. (1) The matrix in subpart 52.3 contains a column for
each principal type and/or purpose of contract (e.g., fixed-price
supply, cost reimbursement research and development). The matrix lists
the--
(i) Required solicitation provisions;
(ii) Required-when-applicable solicitation provisions;
[[Page 15]]
(iii) Optional solicitation provisions;
(iv) Required contract clauses;
(v) Required-when-applicable contract clauses; and
(vi) Optional contract clauses.
(2) For each provision or clause listed, the matrix provides
information on--
(i) Whether incorporation by reference is or is not authorized (see
52.102);
(ii) The section of the Uniform Contract Format (UCF) in which it is
to be located, if it is used in an acquisition that is subject to the
UCF;
(iii) Its number;
(iv) The citation of the FAR text that prescribes its use; and
(v) Its title.
(3) Since the matrix does not provide sufficient information to
determine the applicability of a provision or clause in the ``required-
when-applicable'' and ``optional'' categories, contracting officers
shall refer to the FAR text (cited in the matrix) that prescribes its
use.
(4) The FAR matrix may be reproduced at agency levels, and at
subordinate levels, for the purpose of supplementing it with agency-
developed provisions and clauses. The resulting consolidated matrices
may be included in agency acquisition regulations.
(f) Dates. Since they are subject to revision from time to time, all
provisions, clauses, and alternates are dated; e.g., (DEC 1983). To
avoid questions concerning which version of any provision, clause, or
alternate is operative in any given solicitation or contract, its date
shall be included whether it is incorporated by reference or in full
text.
[48 FR 42478, Sept. 19, 1983; 48 FR 43273, Sept. 22, 1983, as amended at
55 FR 3887, Feb. 5, 1990; 62 FR 40237, July 25, 1997; 62 FR 64927, Dec.
9, 1997; 65 FR 36016, June 6, 2000; 66 FR 2134, Jan. 10, 2001]
52.102 Incorporating provisions and clauses.
(a) Provisions and clauses should be incorporated by reference to
the maximum practical extent, rather than being incorporated in full
text, even if they--
(1) Are used with one or more alternates or on an optional basis;
(2) Are prescribed on a ``substantially as follows'' or
``substantially the same as'' basis, provided they are used verbatim;
(3) Require modification or the insertion by the Government of fill-
in material (see 52.104); or
(4) Require completion by the offeror or prospective contractor.
This instruction also applies to provisions completed as annual
representations and certifications.
(b) Except for provisions and clauses prescribed in 52.107, any
provision or clause that can be accessed electronically by the offeror
or prospective contractor may be incorporated by reference in
solicitations and/or contracts. However, the contracting officer, upon
request, shall provide the full text of any provision or clause
incorporated by reference.
(c) Agency approved provisions and clauses prescribed in agency
acquisition regulations, and provisions and clauses not authorized by
subpart 52.3 to be incorporated by reference, need not be incorporated
in full text, provided the contracting officer includes in the
solicitation and contract a statement that--
(1) Identifies all provisions and clauses that require completion by
the offeror or prospective contractor;
(2) Specifies that the provisions and clauses must be completed by
the offeror or prospective contractor and must be submitted with the
quotation or offer; and
(3) Identifies to the offeror or prospective contractor at least one
electronic address where the full text may be accessed.
(d) An agency may develop a group listing of provisions and clauses
that apply to a specific category of contracts. An agency group listing
may be incorporated by reference in solicitations and/or contracts in
lieu of citing the provisions and clauses individually, provided the
group listing is made available electronically to offerors and
prospective contractors.
(e) A provision or clause that is not available electronically to
offerors and prospective contractors shall be incorporated in
solicitations and/or contracts in full text if it is--
[[Page 16]]
(1) A FAR provision or clause that otherwise is not authorized to be
incorporated by reference (see subpart 52.3); or
(2) A provision or clause prescribed for use in an agency
acquisition regulation.
(f) Provisions or clauses may not be incorporated by reference by
being listed in the--
(1) Provision at 52.252-3, Alterations in Solicitations; or
(2) Clause at 52.252-4, Alterations in Contract.
[62 FR 64927, Dec. 9, 1997]
52.103 Identification of provisions and clauses.
(a) Whenever any FAR provision or clause is used without deviation
in a solicitation or contract, whether it is incorporated by reference
or in full text, it shall be identified by number, title, and date. This
identification shall also be used if the FAR provision or clause is used
with an authorized deviation, except that the contracting officer shall
then insert ``(DEVIATION)'' after the date. Solicited firms and
contractors will be advised of the meaning of this insertion through the
use of the (1) provision at 52.252-5, Authorized Deviations in
Provisions, or (2) clause at 52.252-6, Authorized Deviations in Clauses.
The above mentioned provision and clause are prescribed in 52.107 (e)
and (f).
(b) Any provision or clause that supplements the FAR whether it is
incorporated by reference or in full text shall be clearly identified by
number, title, date, and name of the regulation. When a supplemental
provision or clause is used with an authorized deviation, insert
``(DEVIATION)'' after the name of the regulation.
(c) A provision or clause of the type described in
52.101(b)(2)(i)(C) shall be identified by the title, date, and the name
of the agency or suborganization within the agency that developed it.
(d) Except for provisions or clauses covered by 52.103(c), the
following hypothetical examples illustrate how a provision or clause
that supplements the FAR shall be identified when it is incorporated in
solicitations and/or contracts by reference or in full text:
(1) If part 14 (Sealed Bidding) of the X Agency Acquisition
Regulation, published in the Federal Register and codified as Chapter 99
in 48 CFR, prescribes the use of a provision entitled ``Bid Envelopes,''
dated October 1983, and that provision is sequentially the first
provision or clause appearing in Section 52.214 of the X Agency
Acquisition Regulation, then the identification of that provision shall
be ``9952.214-70--Bid Envelopes (OCT 1983).''
(2) Assume that Y, a major organizational element of the X Agency,
is authorized to issue the Y Acquisition Regulation, which is not
published in the Federal Register and codified in 48 CFR. If part 36
(Construction and Architect-Engineer Contracts) of the Y Acquisition
Regulation prescribes the use of a clause entitled ``Refrigerated
Display Cases,'' dated March 1983, pertaining to a specialized type of
construction work, and that clause is sequentially the second provision
or clause appearing in Section 52.236 of the Y Acquisition Regulation,
then the identification of that clause shall be ``52.236-71--
Refrigerated Display Cases (MAR 1983)--Y Acquisition Regulation.''
[48 FR 42478, Sept. 19, 1983, as amended at 52 FR 9039, Mar. 20, 1987]
52.104 Procedures for modifying and completing provisions and clauses.
(a) The contracting officer must not modify provisions and clauses
unless the FAR authorizes their modification. For example--
(1) ``The contracting officer may use a period shorter than 60 days
(but not less than 30 days) in paragraph (x) of the clause''; or
(2) ``The contracting officer may substitute the words `task order'
for the word `Schedule' wherever that word appears in the clause.''
(b) When modifying provisions or clauses incorporated by reference,
insert the changed wording directly below the title of the provision or
clause identifying to the lowest level necessary (e.g., paragraph,
sentence, word), to clearly indicate what is being modified.
[[Page 17]]
(c) When modifying provisions or clauses incorporated in full text,
modify the language directly by substituting the changed wording as
permitted.
(d) When completing blanks in provisions or clauses incorporated by
reference, insert the fill-in information directly below the title of
the provision or clause identifying to the lowest level necessary to
clearly indicate the blanks being filled in.
(e) When completing blanks in provisions or clauses incorporated in
full text, insert the fill-in information in the blanks of the provision
or clause.
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 36016, June 6, 2000]
52.105 Procedures for using alternates.
(a) The FAR accommodates a major variation in a provision or clause
by use of an alternate. The FAR prescribes alternates to a given
provision or clause in the FAR subject text where the provision or
clause is prescribed. The alternates to each provision or clause are
titled ``Alternate I,'' ``Alternate II,'' ``Alternate III,'' etc.
(b) When an alternate is used, its date shall be cited along with
the date of the basic provision or clause; e.g., 52.209-3 FIRST ARTICLE
APPROVAL--CONTRACTOR TESTING (OCT 1983)--ALTERNATE I (DEC 1983).
(c) Under certain circumstances, a provision or clause may be used
with two or more alternates. In these circumstances, each of the
applicable alternates shall be cited, whether incorporated by reference
or in full text; e.g., 52.209-3 FIRST ARTICLE APPROVAL--CONTRACTOR
TESTING (OCT 1983)--ALTERNATE I (DEC 1983) AND ALTERNATE II (FEB 1984).
However, under no circumstances may an alternate to a specific provision
or clause be applied to any other provision or clause.
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 36016, June 6, 2000]
52.106 [Reserved]
52.107 Provisions and clauses prescribed in subpart 52.1.
(a) The contracting officer shall insert the provision at 52.252-1,
Solicitation Provisions Incorporated by Reference, in solicitations in
order to incorporate provisions by reference.
(b) The contracting officer shall insert the clause at 52.252-2,
Clauses Incorporated by Reference, in solicitations and contracts in
order to incorporate clauses by reference.
(c) The contracting officer shall insert the provision at 52.252-3,
Alterations in Solicitation, in solicitations in order to revise or
supplement, as necessary, other parts of the solicitation that apply to
the solicitation phase only, except for any provision authorized for use
with a deviation.
(d) The contracting officer shall insert the clause at 52.252-4,
Alterations in Contract, in solicitations and contracts in order to
revise or supplement, as necessary, other parts of the contract, or
parts of the solicitations that apply to the contract phase, except for
any clause authorized for use with a deviation.
(e) The contracting officer shall insert the provision at 52.252-5,
Authorized Deviations in Provisions, in solicitations that include any
FAR or supplemental provision with an authorized deviation. Whenever any
FAR or supplemental provision is used with an authorized deviation, the
contracting officer shall identify it by the same number, title, and
date assigned to the provision when it is used without deviation,
include regulation name for any supplemental provision, except that the
contracting officer shall insert ``(DEVIATION)'' after the date of the
provision.
(f) The contracting officer shall insert the clause at 52.252-6,
Authorized Deviations in Clauses, in solicitations and contracts that
include any FAR or supplemental clause with an authorized deviation.
Whenever any FAR or supplemental clause is used with an authorized
deviation, the contracting officer shall identify it by the same number,
title, and date assigned to the clause when it is used without
deviation, include regulation name for any supplemental clause, except
that the contracting officer shall insert ``(DEVIATION)'' after the date
of the clause.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 48990, Nov. 28, 1989]
[[Page 18]]
Subpart 52.2_Text of Provisions and Clauses
52.200 Scope of subpart.
This subpart sets forth the text of all FAR provisions and clauses
(see 52.101(b)(1)) and gives a cross-reference to the location in the
FAR that prescribes the provision or clause.
[65 FR 36016, June 6, 2000]
52.202-1 Definitions.
As prescribed in 2.201, insert the following clause:
Definitions (NOV 2013)
When a solicitation provision or contract clause uses a word or term
that is defined in the Federal Acquisition Regulation (FAR), the word or
term has the same meaning as the definition in FAR 2.101 in effect at
the time the solicitation was issued, unless--
(a) The solicitation, or amended solicitation, provides a different
definition;
(b) The contracting parties agree to a different definition;
(c) The part, subpart, or section of the FAR where the provision or
clause is prescribed provides a different meaning; or
(d) The word or term is defined in FAR Part 31, for use in the cost
principles and procedures.
(End of clause)
[78 FR 70482, Nov. 25, 2013]
52.203-1 [Reserved]
52.203-2 Certificate of Independent Price Determination.
As prescribed in 3.103-1, insert the following provision. If the
solicitation is a Request for Quotations, the terms Quotation and Quoter
may be substituted for Offer and Offeror.
Certificate of Independent Price Determination (APR 1985)
(a) The offeror certifies that--
(1) The prices in this offer have been arrived at independently,
without, for the purpose of restricting competition, any consultation,
communication, or agreement with any other offeror or competitor
relating to (i) those prices, (ii) the intention to submit an offer, or
(iii) the methods or factors used to calculate the prices offered;
(2) The prices in this offer have not been and will not be knowingly
disclosed by the offeror, directly or indirectly, to any other offeror
or competitor before bid opening (in the case of a sealed bid
solicitation) or contract award (in the case of a negotiated
solicitation) unless otherwise required by law; and
(3) No attempt has been made or will be made by the offeror to
induce any other concern to submit or not to submit an offer for the
purpose of restricting competition.
(b) Each signature on the offer is considered to be a certification
by the signatory that the signatory--
(1) Is the person in the offeror's organization responsible for
determining the prices being offered in this bid or proposal, and that
the signatory has not participated and will not participate in any
action contrary to subparagraphs (a)(1) through (a)(3) above; or
(2)(i) Has been authorized, in writing, to act as agent for the
following principals in certifying that those principals have not
participated, and will not participate in any action contrary to
subparagraphs (a)(1) through (a)(3) above
________________________________________________________________________
[insert full name of person(s) in the offeror's organization responsible
for determining the prices offered in this bid or proposal, and the
title of his or her position in the offeror's organization];
(ii) As an authorized agent, does certify that the principals named
in subdivision (b)(2)(i) above have not participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through
(a)(3) above; and
(iii) As an agent, has not personally participated, and will not
participate, in any action contrary to subparagraphs (a)(1) through
(a)(3) above.
(c) If the offeror deletes or modifies subparagraph (a)(2) above,
the offeror must furnish with its offer a signed statement setting forth
in detail the circumstances of the disclosure.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.203-3 Gratuities.
As prescribed in 3.202, insert the following clause:
Gratuities (APR 1984)
(a) The right of the Contractor to proceed may be terminated by
written notice if, after notice and hearing, the agency head or a
designee determines that the Contractor, its agent, or another
representative--
(1) Offered or gave a gratuity (e.g., an entertainment or gift) to
an officer, official, or employee of the Government; and
(2) Intended, by the gratuity, to obtain a contract or favorable
treatment under a contract.
[[Page 19]]
(b) The facts supporting this determination may be reviewed by any
court having lawful jurisdiction.
(c) If this contract is terminated under paragraph (a) above, the
Government is entitled--
(1) To pursue the same remedies as in a breach of the contract; and
(2) In addition to any other damages provided by law, to exemplary
damages of not less than 3 nor more than 10 times the cost incurred by
the Contractor in giving gratuities to the person concerned, as
determined by the agency head or a designee. (This subparagraph (c)(2)
is applicable only if this contract uses money appropriated to the
Department of Defense.)
(d) The rights and remedies of the Government provided in this
clause shall not be exclusive and are in addition to any other rights
and remedies provided by law or under this contract.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 39200, July 26, 1996]
52.203-4 [Reserved]
52.203-5 Covenant Against Contingent Fees.
As prescribed in 3.404, insert the following clause:
Covenant Against Contingent Fees (MAY 2014)
(a) The Contractor warrants that no person or agency has been
employed or retained to solicit or obtain this contract upon an
agreement or understanding for a contingent fee, except a bona fide
employee or agency. For breach or violation of this warranty, the
Government shall have the right to annul this contract without liability
or to deduct from the contract price or consideration, or otherwise
recover, the full amount of the contingent fee.
(b) Bona fide agency, as used in this clause, means an established
commercial or selling agency, maintained by a contractor for the purpose
of securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Government contracts nor holds itself out
as being able to obtain any Government contract or contracts through
improper influence.
Bona fide employee, as used in this clause, means a person, employed
by a contractor and subject to the contractor's supervision and control
as to time, place, and manner of performance, who neither exerts nor
proposes to exert improper influence to solicit or obtain Government
contracts nor holds out as being able to obtain any Government contract
or contracts through improper influence.
Contingent fee, as used in this clause, means any commission,
percentage, brokerage, or other fee that is contingent upon the success
that a person or concern has in securing a Government contract.
Improper influence, as used in this clause, means any influence that
induces or tends to induce a Government employee or officer to give
consideration or to act regarding a Government contract on any basis
other than the merits of the matter.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41730, Aug. 22, 1991;
61 FR 39189, July 26, 1996; 79 FR 24214, Apr. 29, 2014]
52.203-6 Restrictions on Subcontractor Sales to the Government.
As prescribed in 3.503-2, insert the following clause:
Restrictions on Subcontractor Sales to the Government (SEP 2006)
(a) Except as provided in (b) below, the Contractor shall not enter
into any agreement with an actual or prospective subcontractor, nor
otherwise act in any manner, which has or may have the effect of
restricting sales by such subcontractors directly to the Government of
any item or process (including computer software) made or furnished by
the subcontractor under this contract or under any follow-on production
contract.
(b) The prohibition in (a) above does not preclude the Contractor
from asserting rights that are otherwise authorized by law or
regulation.
(c) The Contractor agrees to incorporate the substance of this
clause, including this paragraph (c), in all subcontracts under this
contract which exceed the simplified acquisition threshold.
(End of clause)
Alternate I (OCT 1995). As prescribed in 3.503-2, substitute the
following paragraph in place of paragraph (b) of the basic clause:
(b) The prohibition in paragraph (a) of this clause does not
preclude the Contractor from asserting rights that are otherwise
authorized by law or regulation. For acquisitions of commercial items,
the prohibition in paragraph (a) applies only to the extent that any
agreement restricting sales by subcontractors results in the Federal
Government being
[[Page 20]]
treated differently from any other prospective purchaser for the sale of
the commercial item(s).
[50 FR 35479, Aug. 30, 1985, as amended at 60 FR 34761, July 3, 1995; 60
FR 48251, Sept. 18, 1995; 61 FR 39198, July 26, 1996; 71 FR 57369, Sept.
28, 2006]
52.203-7 Anti-Kickback Procedures.
As prescribed in 3.502-3, insert the following clause:
Anti-Kickback Procedures (MAY 2014)
(a) Definitions.
Kickback, as used in this clause, means any money, fee, commission,
credit, gift, gratuity, thing of value, or compensation of any kind
which is provided to any prime Contractor, prime Contractor employee,
subcontractor, or subcontractor employee for the purpose of improperly
obtaining or rewarding favorable treatment in connection with a prime
contract or in connection with a subcontract relating to a prime
contract.
Person, as used in this clause, means a corporation, partnership,
business association of any kind, trust, joint-stock company, or
individual.
Prime contract, as used in this clause, means a contract or
contractual action entered into by the United States for the purpose of
obtaining supplies, materials, equipment, or services of any kind.
Prime Contractor, as used in this clause, means a person who has
entered into a prime contract with the United States.
Prime Contractor employee, as used in this clause, means any
officer, partner, employee, or agent of a prime Contractor.
Subcontract, as used in this clause, means a contract or contractual
action entered into by a prime Contractor or subcontractor for the
purpose of obtaining supplies, materials, equipment, or services of any
kind under a prime contract.
Subcontractor, as used in this clause, (1) means any person, other
than the prime Contractor, who offers to furnish or furnishes any
supplies, materials, equipment, or services of any kind under a prime
contract or a subcontract entered into in connection with such prime
contract, and (2) includes any person who offers to furnish or furnishes
general supplies to the prime Contractor or a higher tier subcontractor.
Subcontractor employee, as used in this clause, means any officer,
partner, employee, or agent of a subcontractor.
(b) 41 U.S.C. chapter 87, Kickbacks, prohibits any person from--
(1) Providing or attempting to provide or offering to provide any
kickback;
(2) Soliciting, accepting, or attempting to accept any kickback; or
(3) Including, directly or indirectly, the amount of any kickback in
the contract price charged by a prime Contractor to the United States or
in the contract price charged by a subcontractor to a prime Contractor
or higher tier subcontractor.
(c)(1) The Contractor shall have in place and follow reasonable
procedures designed to prevent and detect possible violations described
in paragraph (b) of this clause in its own operations and direct
business relationships.
(2) When the Contractor has reasonable grounds to believe that a
violation described in paragraph (b) of this clause may have occurred,
the Contractor shall promptly report in writing the possible violation.
Such reports shall be made to the inspector general of the contracting
agency, the head of the contracting agency if the agency does not have
an inspector general, or the Attorney General.
(3) The Contractor shall cooperate fully with any Federal agency
investigating a possible violation described in paragraph (b) of this
clause.
(4) The Contracting Officer may (i) offset the amount of the
kickback against any monies owed by the United States under the prime
contract and/or (ii) direct that the Prime Contractor withhold, from
sums owed a subcontractor under the prime contract, the amount of any
kickback. The Contracting Officer may order the monies withheld under
subdivision (c)(4)(ii) of this clause be paid over to the Government
unless the Government has already offset those monies under subdivision
(c)(4)(i) of this clause. In either case, the Prime Contractor shall
notify the Contracting Officer when the monies are withheld.
(5) The Contractor agrees to incorporate the substance of this
clause, including this subparagraph (c)(5) but excepting subparagraph
(c)(1), in all subcontracts under under this contract which exceed
$150,000.
[52 FR 6122, Feb. 27, 1987, as amended at 53 FR 34228, Sept. 2, 1988; 53
FR 36028, Sept. 16, 1988; 60 FR 34761, July 3, 1995; 75 FR 53134, Aug.
30, 2010; 79 FR 24214, Apr. 29, 2014]
52.203-8 Cancellation, Rescission, and Recovery of Funds for Illegal
or Improper Activity.
As prescribed in 3.104-9(a), insert the following clause:
Cancellation, Rescission, and Recovery of Funds for Illegal or Improper
Activity (MAY 2014)
(a) If the Government receives information that a contractor or a
person has violated 41 U.S.C. 2102-2104, Restrictions on Obtaining and
Disclosing Certain Information, the Government may--
(1) Cancel the solicitation, if the contract has not yet been
awarded or issued; or
[[Page 21]]
(2) Rescind the contract with respect to which--
(i) The Contractor or someone acting for the Contractor has been
convicted for an offense where the conduct violates 41 U.S.C. 2102 for
the purpose of either--
(A) Exchanging the information covered by such subsections for
anything of value; or
(B) Obtaining or giving anyone a competitive advantage in the award
of a Federal agency procurement contract; or
(ii) The head of the contracting activity has determined, based upon
a preponderance of the evidence, that the Contractor or someone acting
for the Contractor has engaged in conduct punishable under 41 U.S.C.
2105(a).
(b) If the Government rescinds the contract under paragraph (a) of
this clause, the Government is entitled to recover, in addition to any
penalty prescribed by law, the amount expended under the contract.
(c) The rights and remedies of the Government specified herein are
not exclusive, and are in addition to any other rights and remedies
provided by law, regulation, or under this contract.
(End of clause)
[62 FR 233, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997, as amended at 67
FR 13063, Mar. 20, 2002; 79 FR 24214, Apr. 29, 2014]
52.203-9 [Reserved]
52.203-10 Price or Fee Adjustment for Illegal or Improper Activity.
As prescribed in 3.104-9(b) insert the following clause:
Price or Fee Adjustment for Illegal or Improper Activity (MAY 2014)
(a) The Government, at its election, may reduce the price of a
fixed-price type contract and the total cost and fee under a cost-type
contract by the amount of profit or fee determined as set forth in
paragraph (b) of this clause if the head of the contracting activity or
designee determines that there was a violation of 41 U.S.C. 2102 or
2103, as implemented in section 3.104 of the Federal Acquisition
Regulation.
(b) The price or fee reduction referred to in paragraph (a) of this
clause shall be--
(1) For cost-plus-fixed-fee contracts, the amount of the fee
specified in the contract at the time of award;
(2) For cost-plus-incentive-fee conrtracts, the target fee specified
in the contract at the time of award, notwithstanding any minimum fee or
``fee floor'' specified in the contract.
(3) For cost-plus-award-fee contracts--
(i) The base fee established in the contract at the time of contract
award;
(ii) If no base fee is specified in the contract, 30 percent of the
amount of each award fee otherwise payable to the Contractor for each
award fee evaluation period or at each award fee determination point.
(4) For fixed-price-incentive contracts, the Government may--
(i) Reduce the contract target price and contract target profit both
by an amount equal to the initial target profit specified in the
contract at the time of contract award; or
(ii) If an immediate adjustment to the contract target price and
contract target profit would have a significant adverse impact on the
incentive price revision relationship under the contract, or adversely
affect the contract financing provisions, the Contracting Officer may
defer such adjustment until establishment of the total final price of
the contract. The total final price established in accordance with the
incentive price revision provisions of the contract shall be reduced by
an amount equal to the initial target profit specified in the contract
at the time of contract award and such reduced price shall be the total
final contract price.
(5) For firm-fixed-price contracts, by 10 percent of the initial
contract price or a profit amount determined by the Contracting Officer
from records or documents in existence prior to the date of the contract
award.
(c) The Government may, at its election, reduce a prime contractor's
price or fee in accordance with the procedures of paragraph (b) of this
clause for violations of the statute by its subcontractors by an amount
not to exceed the amount of profit or fee reflected in the subcontract
at the time the subcontract was first definitively priced.
(d) In addition to the remedies in paragraphs (a) and (c) of this
clause, the Government may terminate this contract for default. The
rights and remedies of the Government specified herein are not
exclusive, and are in addition to any other rights and remedies provided
by law or under this contract.
(End of clause)
[55 FR 36797, Sept. 6, 1990, as amended at 62 FR 233, Jan. 2, 1997; 79
FR 24215, Apr. 29, 2014]
52.203-11 Certification and Disclosure Regarding Payments to Influence
Certain Federal Transactions.
As prescribed in 3.808(a), insert the following provision:
[[Page 22]]
Certification and Disclosure Regarding Payments To Influence Certain
Federal Transactions (SEP 2007)
(a) Definitions. As used in this provision--``Lobbying contact'' has
the meaning provided at 2 U.S.C. 1602(8). The terms ``agency,''
``influencing or attempting to influence,'' ``officer or employee of an
agency,'' ``person,'' ``reasonable compensation,'' and ``regularly
employed'' are defined in the FAR clause of this solicitation entitled
``Limitation on Payments to Influence Certain Federal Transactions''
(52.203-12).
(b) Prohibition. The prohibition and exceptions contained in the FAR
clause of this solicitation entitled ``Limitation on Payments to
Influence Certain Federal Transactions'' (52.203-12) are hereby
incorporated by reference in this provision.
(c) Certification. The offeror, by signing its offer, hereby
certifies to the best of its knowledge and belief that no Federal
appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress on its behalf in connection with the
awarding of this contract.
(d) Disclosure. If any registrants under the Lobbying Disclosure Act
of 1995 have made a lobbying contact on behalf of the offeror with
respect to this contract, the offeror shall complete and submit, with
its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to
provide the name of the registrants. The offeror need not report
regularly employed officers or employees of the offeror to whom payments
of reasonable compensation were made.
(e) Penalty. Submission of this certification and disclosure is a
prerequisite for making or entering into this contract imposed by 31
U.S.C. 1352. Any person who makes an expenditure prohibited under this
provision or who fails to file or amend the disclosure required to be
filed or amended by this provision, shall be subject to a civil penalty
of not less than $10,000, and not more than $100,000, for each such
failure.
(End of provision)
[72 FR 46330, Aug. 17, 2007]
52.203-12 Limitation on Payments to Influence Certain Federal
Transactions.
As prescribed in 3.808(b), insert the following clause:
Limitation on Payments To influence Certain Federal Transactions (OCT
2010)
(a) Definitions. As used in this clause--
Agency means executive agency as defined in Federal Acquisition
Regulation (FAR) 2.101.
Covered Federal action means any of the following actions:
(1) Awarding any Federal contract.
(2) Making any Federal grant.
(3) Making any Federal loan.
(4) Entering into any cooperative agreement.
(5) Extending, continuing, renewing, amending, or modifying any
Federal contract, grant, loan, or cooperative agreement.
Indian tribe and tribal organization have the meaning provided in
section 4 of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450b) and include Alaskan Natives.
Influencing or attempting to influence means making, with the intent
to influence, any communication to or appearance before an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with any
covered Federal action.
Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
Officer or employee of an agency includes the following individuals
who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under Title 5, United States Code, including a position under a
temporary appointment.
(2) A member of the uniformed services, as defined in subsection
101(3), Title 37, United States Code.
(3) A special Government employee, as defined in section 202, Title
18, United States Code.
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, Title 5, United States
Code, appendix 2.
Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit, or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization eligible to receive Federal contracts, grants,
cooperative agreements, or loans from an agency, but only with respect
to expenditures by such tribe or organization that are made for purposes
specified in paragraph (b) of this clause and are permitted by other
Federal law.
[[Page 23]]
Reasonable compensation means, with respect to a regularly employed
officer or employee of any person, compensation that is consistent with
the normal compensation for such officer or employee for work that is
not furnished to, not funded by, or not furnished in cooperation with
the Federal Government.
Reasonable payment means, with respect to professional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
Recipient includes the Contractor and all subcontractors. This term
excludes an Indian tribe, tribal organization, or any other Indian
organization eligible to receive Federal contracts, grants, cooperative
agreements, or loans from an agency, but only with respect to
expenditures by such tribe or organization that are made for purposes
specified in paragraph (b) of this clause and are permitted by other
Federal law.
Regularly employed means, with respect to an officer or employee of
a person requesting or receiving a Federal contract, an officer or
employee who is employed by such person for at least 130 working days
within 1 year immediately preceding the date of the submission that
initiates agency consideration of such person for receipt of such
contract. An officer or employee who is employed by such person for less
than 130 working days within 1 year immediately preceding the date of
the submission that initiates agency consideration of such person shall
be considered to be regularly employed as soon as he or she is employed
by such person for 130 working days.
State means a State of the United States, the District of Columbia,
or an outlying area of the United States, an agency or instrumentality
of a State, and multi-State, regional, or interstate entity having
governmental duties and powers.
(b) Prohibition. 31 U.S.C. 1352 prohibits a recipient of a Federal
contract, grant, loan, or cooperative agreement from using appropriated
funds to pay any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal actions. In accordance with 31
U.S.C. 1352, the Contractor shall not use appropriated funds to pay any
person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with the award of
this contractor the extension, continuation, renewal, amendment, or
modification of this contract.
(1) The term appropriated funds does not include profit or fee from
a covered Federal action.
(2) To the extent the Contractor can demonstrate that the Contractor
has sufficient monies, other than Federal appropriated funds, the
Government will assume that these other monies were spent for any
influencing activities that would be unallowable if paid for with
Federal appropriated funds.
(c) Exceptions. The prohibition in paragraph (b) of this clause does
not apply under the following conditions:
(1) Agency and legislative liaison by Contractor employees. (i)
Payment of reasonable compensation made to an officer or employee of the
Contractor if the payment is for agency and legislative liaison
activities not directly related to this contract. For purposes of this
paragraph, providing any information specifically requested by an agency
or Congress is permitted at any time.
(ii) Participating with an agency in discussions that are not
related to a specific solicitation for any covered Federal action, but
that concern--
(A) The qualities and characteristics (including individual
demonstrations) of the person's products or services, conditions or
terms of sale, and service capabilities; or
(B) The application or adaptation of the person's products or
services for an agency's use.
(iii) Providing prior to formal solicitation of any covered Federal
action any information not specifically requested but necessary for an
agency to make an informed decision about initiation of a covered
Federal action;
(iv) Participating in technical discussions regarding the
preparation of an unsolicited proposal prior to its official submission;
and
(v) Making capability presentations prior to formal solicitation of
any covered Federal action by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Pub.L. 95-507, and subsequent amendments.
(2) Professional and technical services. (i) A payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a covered Federal action or an extension, continuation,
renewal, amendment, or modification of a covered Federal action, if
payment is for professional or technical services rendered directly in
the preparation, submission, or negotiation of any bid, proposal, or
application for that Federal action or for meeting requirements imposed
by or pursuant to law as a condition for receiving that Federal action.
(ii) Any reasonable payment to a person, other than an officer or
employee of a person requesting or receiving a covered Federal action or
an extension, continuation, renewal, amendment, or modification of a
covered Federal action if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for
[[Page 24]]
that Federal action or for meeting requirements imposed by or pursuant
to law as a condition for receiving that Federal action. Persons other
than officers or employees of a person requesting or receiving a covered
Federal action include consultants and trade associations.
(iii) As used in paragraph (c)(2) of this clause, ``professional and
technical services'' are limited to advice and analysis directly
applying any professional or technical discipline (for examples, see FAR
3.803(a)(2)(iii)).
(iv) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation and any other requirements in the actual award documents.
(3) Only those communications and services expressly authorized by
paragraphs (c)(1) and (2) of this clause are permitted.
(d) Disclosure. (1) If the Contractor did not submit OMB Standard
Form LLL, Disclosure of Lobbying Activities, with its offer, but
registrants under the Lobbying Disclosure Act of 1995 have subsequently
made a lobbying contact on behalf of the Contractor with respect to this
contract, the Contractor shall complete and submit OMB Standard Form LLL
to provide the name of the lobbying registrants, including the
individuals performing the services.
(2) If the Contractor did submit OMB Standard Form LLL disclosure
pursuant to paragraph (d) of the provision at FAR 52.203-11,
Certification and Disclosure Regarding Payments to Influence Certain
Federal Transactions, and a change occurs that affects Block 10 of the
OMB Standard Form LLL (name and address of lobbying registrant or
individuals performing services), the Contractor shall, at the end of
the calendar quarter in which the change occurs, submit to the
Contracting Officer within 30 days an updated disclosure using OMB
Standard Form LLL.
(e) Penalties. (1) Any person who makes an expenditure prohibited
under paragraph (b) of this clause or who fails to file or amend the
disclosure to be filed or amended by paragraph (d) of this clause shall
be subject to civil penalties as provided for by 31 U.S.C.1352. An
imposition of a civil penalty does not prevent the Government from
seeking any other remedy that may be applicable.
(2) Contractors may rely without liability on the representation
made by their subcontractors in the certification and disclosure form.
(f) Cost allowability. Nothing in this clause makes allowable or
reasonable any costs which would otherwise be unallowable or
unreasonable. Conversely, costs made specifically unallowable by the
requirements in this clause will not be made allowable under any other
provision.
(g) Subcontracts. (1) The Contractor shall obtain a declaration,
including the certification and disclosure in paragraphs (c) and (d) of
the provision at FAR 52.203-11, Certification and Disclosure Regarding
Payments to Influence Certain Federal Transactions, from each person
requesting or receiving a subcontract exceeding $150,000 under this
contract. The Contractor or subcontractor that awards the subcontract
shall retain the declaration.
(2) A copy of each subcontractor disclosure form (but not
certifications) shall be forwarded from tier to tier until received by
the prime Contractor. The prime Contractor shall, at the end of the
calendar quarter in which the disclosure form is submitted by the
subcontractor, submit to the Contracting Officer within 30 days a copy
of all disclosures. Each subcontractor certification shall be retained
in the subcontract file of the awarding Contractor.
(3) The Contractor shall include the substance of this clause,
including this paragraph (g), in any subcontract exceeding $150,000.
(End of clause)
[72 FR 46331, Aug. 17, 2007, as amended at 75 FR 53134, Aug. 30, 2010]
52.203-13 Contractor Code of Business Ethics and Conduct.
As prescribed in 3.1004(a), insert the following clause:
Contractor Code of Business Ethics and Conduct (OCT 2015)
(a) Definitions. As used in this clause--
Agent means any individual, including a director, an officer, an
employee, or an independent Contractor, authorized to act on behalf of
the organization.
Full cooperation--(1) Means disclosure to the Government of the
information sufficient for law enforcement to identify the nature and
extent of the offense and the individuals responsible for the conduct.
It includes providing timely and complete response to Government
auditors' and investigators' request for documents and access to
employees with information;
(2) Does not foreclose any Contractor rights arising in law, the
FAR, or the terms of the contract. It does not require--
(i) A Contractor to waive its attorney-client privilege or the
protections afforded by the attorney work product doctrine; or
(ii) Any officer, director, owner, or employee of the Contractor,
including a sole proprietor, to waive his or her attorney client
privilege or Fifth Amendment rights; and
(3) Does not restrict a Contractor from--
(i) Conducting an internal investigation; or
[[Page 25]]
(ii) Defending a proceeding or dispute arising under the contract or
related to a potential or disclosed violation.
Principal means an officer, director, owner, partner, or a person
having primary management or supervisory responsibilities within a
business entity (e.g., general manager; plant manager; head of a
division or business segment; and similar positions).
Subcontract means any contract entered into by a subcontractor to
furnish supplies or services for performance of a prime contract or a
subcontract.
Subcontractor means any supplier, distributor, vendor, or firm that
furnished supplies or services to or for a prime contractor or another
subcontractor.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Code of business ethics and conduct. (1) Within 30 days after
contract award, unless the Contracting Officer establishes a longer time
period, the Contractor shall--
(i) Have a written code of business ethics and conduct;
(ii) Make a copy of the code available to each employee engaged in
performance of the contract.
(2) The Contractor shall--
(i) Exercise due diligence to prevent and detect criminal conduct;
and
(ii) Otherwise promote an organizational culture that encourages
ethical conduct and a commitment to compliance with the law.
(3)(i) The Contractor shall timely disclose, in writing, to the
agency Office of the Inspector General (OIG), with a copy to the
Contracting Officer, whenever, in connection with the award,
performance, or closeout of this contract or any subcontract thereunder,
the Contractor has credible evidence that a principal, employee, agent,
or subcontractor of the Contractor has committed--
(A) A violation of Federal criminal law involving fraud, conflict of
interest, bribery, or gratuity violations found in Title 18 of the
United States Code; or
(B) A violation of the civil False Claims Act (31 U.S.C. 3729-3733).
(ii) The Government, to the extent permitted by law and regulation,
will safeguard and treat information obtained pursuant to the
Contractor's disclosure as confidential where the information has been
marked ``confidential'' or ``proprietary'' by the company. To the extent
permitted by law and regulation, such information will not be released
by the Government to the public pursuant to a Freedom of Information Act
request, 5 U.S.C. Section 552, without prior notification to the
Contractor. The Government may transfer documents provided by the
Contractor to any department or agency within the Executive Branch if
the information relates to matters within the organization's
jurisdiction.
(iii) If the violation relates to an order against a Governmentwide
acquisition contract, a multi-agency contract, a multiple-award schedule
contract such as the Federal Supply Schedule, or any other procurement
instrument intended for use by multiple agencies, the Contractor shall
notify the OIG of the ordering agency and the IG of the agency
responsible for the basic contract.
(c) Business ethics awareness and compliance program and internal
control system. This paragraph (c) does not apply if the Contractor has
represented itself as a small business concern pursuant to the award of
this contract or if this contract is for the acquisition of a commercial
item as defined at FAR 2.101. The Contractor shall establish the
following within 90 days after contract award, unless the Contracting
Officer establishes a longer time period:
(1) An ongoing business ethics awareness and compliance program.
(i) This program shall include reasonable steps to communicate
periodically and in a practical manner the Contractor's standards and
procedures and other aspects of the Contractor's business ethics
awareness and compliance program and internal control system, by
conducting effective training programs and otherwise disseminating
information appropriate to an individual's respective roles and
responsibilities.
(ii) The training conducted under this program shall be provided to
the Contractor's principals and employees, and as appropriate, the
Contractor's agents and subcontractors.
(2) An internal control system.
(i) The Contractor's internal control system shall--
(A) Establish standards and procedures to facilitate timely
discovery of improper conduct in connection with Government contracts;
and
(B) Ensure corrective measures are promptly instituted and carried
out.
(ii) At a minimum, the Contractor's internal control system shall
provide for the following:
(A) Assignment of responsibility at a sufficiently high level and
adequate resources to ensure effectiveness of the business ethics
awareness and compliance program and internal control system.
(B) Reasonable efforts not to include an individual as a principal,
whom due diligence would have exposed as having engaged in conduct that
is in conflict with the Contractor's code of business ethics and
conduct.
(C) Periodic reviews of company business practices, procedures,
policies, and internal controls for compliance with the Contractor's
code of business ethics and conduct and the special requirements of
Government contracting, including--
(1) Monitoring and auditing to detect criminal conduct;
[[Page 26]]
(2) Periodic evaluation of the effectiveness of the business ethics
awareness and compliance program and internal control system, especially
if criminal conduct has been detected; and
(3) Periodic assessment of the risk of criminal conduct, with
appropriate steps to design, implement, or modify the business ethics
awareness and compliance program and the internal control system as
necessary to reduce the risk of criminal conduct identified through this
process.
(D) An internal reporting mechanism, such as a hotline, which allows
for anonymity or confidentiality, by which employees may report
suspected instances of improper conduct, and instructions that encourage
employees to make such reports.
(E) Disciplinary action for improper conduct or for failing to take
reasonable steps to prevent or detect improper conduct.
(F) Timely disclosure, in writing, to the agency OIG, with a copy to
the Contracting Officer, whenever, in connection with the award,
performance, or closeout of any Government contract performed by the
Contractor or a subcontractor thereunder, the Contractor has credible
evidence that a principal, employee, agent, or subcontractor of the
Contractor has committed a violation of Federal criminal law involving
fraud, conflict of interest, bribery, or gratuity violations found in
Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C.
3729-3733).
(1) If a violation relates to more than one Government contract, the
Contractor may make the disclosure to the agency OIG and Contracting
Officer responsible for the largest dollar value contract impacted by
the violation.
(2) If the violation relates to an order against a Governmentwide
acquisition contract, a multi-agency contract, a multiple-award schedule
contract such as the Federal Supply Schedule, or any other procurement
instrument intended for use by multiple agencies, the contractor shall
notify the OIG of the ordering agency and the IG of the agency
responsible for the basic contract, and the respective agencies'
contracting officers.
(3) The disclosure requirement for an individual contract continues
until at least 3 years after final payment on the contract.
(4) The Government will safeguard such disclosures in accordance
with paragraph (b)(3)(ii) of this clause.
(G) Full cooperation with any Government agencies responsible for
audits, investigations, or corrective actions.
(d) Subcontracts. (1) The Contractor shall include the substance of
this clause, including this paragraph (d), in subcontracts that have a
value in excess of $5.5 million and a performance period of more than
120 days.
(2) In altering this clause to identify the appropriate parties, all
disclosures of violation of the civil False Claims Act or of Federal
criminal law shall be directed to the agency Office of the Inspector
General, with a copy to the Contracting Officer.
(End of clause)
[72 FR 65882, Nov. 23, 2007, as amended at 73 FR 67091, Nov. 12, 2008;
75 FR 14066, Mar. 23, 2010; 80 FR 38299, July 2, 2015]
52.203-14 Display of Hotline Poster(s).
As prescribed in 3.1004(b), insert the following clause:
Display of Hotline Poster(s) (OCT 2015)
(a) Definition.
United States, as used in this clause, means the 50 States, the
District of Columbia, and outlying areas.
(b) Display of fraud hotline poster(s). Except as provided in
paragraph (c)--
(1) During contract performance in the United States, the Contractor
shall prominently display in common work areas within business segments
performing work under this contract and at contract work sites--
(i) Any agency fraud hotline poster or Department of Homeland
Security (DHS) fraud hotline poster identified in paragraph (b)(3) of
this clause; and
(ii) Any DHS fraud hotline poster subsequently identified by the
Contracting Officer.
(2) Additionally, if the Contractor maintains a company website as a
method of providing information to employees, the Contractor shall
display an electronic version of the poster(s) at the website.
(3) Any required posters may be obtained as follows:
Poster(s) Obtain from
_________ _________
_________ _________
(Contracting Officer shall insert--(i) Appropriate agency name(s)
and/or title of applicable Department of Homeland Security fraud hotline
poster); and
(ii) The website(s) or other contact information for obtaining the
poster(s).)
(c) If the Contractor has implemented a business ethics and conduct
awareness program, including a reporting mechanism, such as a hotline
poster, then the Contractor need not display any agency fraud hotline
posters as required in paragraph (b) of this clause, other than any
required DHS posters.
(d) Subcontracts. The Contractor shall include the substance of this
clause, including this paragraph (d), in all subcontracts that exceed
$5.5 million, except when the subcontract--
(1) Is for the acquisition of a commercial item; or
[[Page 27]]
(2) Is performed entirely outside the United States.
(End of clause)
[72 FR 65882, Nov. 23, 2007, as amended at 80 FR 38299, July 2, 2015]
52.203-15 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009
As prescribed in 3.907-7, use the following clause:
Whistleblower Protections Under the American Recovery and Reinvestment
Act of 2009 (JUN 2010)
(a) The Contractor shall post notice of employees rights and
remedies for whistleblower protections provided under section 1553 of
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act).
(b) The Contractor shall include the substance of this clause,
including this paragraph (b), in all subcontracts that are funded in
whole or in part with Recovery Act funds.
(End of clause)
[74 FR 14636, Mar. 31, 2009, as amended at 75 FR 34259, June 16, 2010]
52.203-16 Preventing Personal Conflicts of Interest.
As prescribed in 3.1106, insert the following clause:
Preventing Personal Conflicts of Interest (DEC 2011)
(a) Definitions. As used in this clause--
Acquisition function closely associated with inherently governmental
functions means supporting or providing advice or recommendations with
regard to the following activities of a Federal agency:
(1) Planning acquisitions.
(2) Determining what supplies or services are to be acquired by the
Government, including developing statements of work.
(3) Developing or approving any contractual documents, to include
documents defining requirements, incentive plans, and evaluation
criteria.
(4) Evaluating contract proposals.
(5) Awarding Government contracts.
(6) Administering contracts (including ordering changes or giving
technical direction in contract performance or contract quantities,
evaluating contractor performance, and accepting or rejecting contractor
products or services).
(7) Terminating contracts.
(8) Determining whether contract costs are reasonable, allocable,
and allowable.
Covered employee means an individual who performs an acquisition
function closely associated with inherently governmental functions and
is--
(1) An employee of the contractor; or
(2) A subcontractor that is a self-employed individual treated as a
covered employee of the contractor because there is no employer to whom
such an individual could submit the required disclosures.
Non-public information means any Government or third-party
information that--
(1) Is exempt from disclosure under the Freedom of Information Act
(5 U.S.C. 552) or otherwise protected from disclosure by statute,
Executive order, or regulation; or
(2) Has not been disseminated to the general public and the
Government has not yet determined whether the information can or will be
made available to the public.
Personal conflict of interest means a situation in which a covered
employee has a financial interest, personal activity, or relationship
that could impair the employee's ability to act impartially and in the
best interest of the Government when performing under the contract. (A
de minimis interest that would not ``impair the employee's ability to
act impartially and in the best interest of the Government'' is not
covered under this definition.)
(1) Among the sources of personal conflicts of interest are--
(i) Financial interests of the covered employee, of close family
members, or of other members of the covered employee's household;
(ii) Other employment or financial relationships (including seeking
or negotiating for prospective employment or business); and
(iii) Gifts, including travel.
(2) For example, financial interests referred to in paragraph (1) of
this definition may arise from--
(i) Compensation, including wages, salaries, commissions,
professional fees, or fees for business referrals;
(ii) Consulting relationships (including commercial and professional
consulting and service arrangements, scientific and technical advisory
board memberships, or serving as an expert witness in litigation);
(iii) Services provided in exchange for honorariums or travel
expense reimbursements;
(iv) Research funding or other forms of research support;
(v) Investment in the form of stock or bond ownership or partnership
interest (excluding diversified mutual fund investments);
(vi) Real estate investments;
(vii) Patents, copyrights, and other intellectual property
interests; or
(viii) Business ownership and investment interests.
(b) Requirements. The Contractor shall--
[[Page 28]]
(1) Have procedures in place to screen covered employees for
potential personal conflicts of interest, by--
(i) Obtaining and maintaining from each covered employee, when the
employee is initially assigned to the task under the contract, a
disclosure of interests that might be affected by the task to which the
employee has been assigned, as follows:
(A) Financial interests of the covered employee, of close family
members, or of other members of the covered employee's household.
(B) Other employment or financial relationships of the covered
employee (including seeking or negotiating for prospective employment or
business).
(C) Gifts, including travel; and
(ii) Requiring each covered employee to update the disclosure
statement whenever the employee's personal or financial circumstances
change in such a way that a new personal conflict of interest might
occur because of the task the covered employee is performing.
(2) For each covered employee--
(i) Prevent personal conflicts of interest, including not assigning
or allowing a covered employee to perform any task under the contract
for which the Contractor has identified a personal conflict of interest
for the employee that the Contractor or employee cannot satisfactorily
prevent or mitigate in consultation with the contracting agency;
(ii) Prohibit use of non-public information accessed through
performance of a Government contract for personal gain; and
(iii) Obtain a signed non-disclosure agreement to prohibit
disclosure of non-public information accessed through performance of a
Government contract.
(3) Inform covered employees of their obligation--
(i) To disclose and prevent personal conflicts of interest;
(ii) Not to use non-public information accessed through performance
of a Government contract for personal gain; and
(iii) To avoid even the appearance of personal conflicts of
interest;
(4) Maintain effective oversight to verify compliance with personal
conflict-of-interest safeguards;
(5) Take appropriate disciplinary action in the case of covered
employees who fail to comply with policies established pursuant to this
clause; and
(6) Report to the Contracting Officer any personal conflict-of-
interest violation by a covered employee as soon as it is identified.
This report shall include a description of the violation and the
proposed actions to be taken by the Contractor in response to the
violation. Provide follow-up reports of corrective actions taken, as
necessary. Personal conflict-of-interest violations include--
(i) Failure by a covered employee to disclose a personal conflict of
interest;
(ii) Use by a covered employee of non-public information accessed
through performance of a Government contract for personal gain; and
(iii) Failure of a covered employee to comply with the terms of a
non-disclosure agreement.
(c) Mitigation or waiver. (1) In exceptional circumstances, if the
Contractor cannot satisfactorily prevent a personal conflict of interest
as required by paragraph (b)(2)(i) of this clause, the Contractor may
submit a request through the Contracting Officer to the Head of the
Contracting Activity for--
(i) Agreement to a plan to mitigate the personal conflict of
interest; or
(ii) A waiver of the requirement.
(2) The Contractor shall include in the request any proposed
mitigation of the personal conflict of interest.
(3) The Contractor shall--
(i) Comply, and require compliance by the covered employee, with any
conditions imposed by the Government as necessary to mitigate the
personal conflict of interest; or
(ii) Remove the Contractor employee or subcontractor employee from
performance of the contract or terminate the applicable subcontract.
(d) Subcontract flowdown. The Contractor shall include the substance
of this clause, including this paragraph (d), in subcontracts--
(1) That exceed $150,000; and
(2) In which subcontractor employees will perform acquisition
functions closely associated with inherently governmental functions
(i.e., instead of performance only by a self-employed individual).
(End of clause)
[76 FR 68025, Nov. 2, 2011]
52.203-17 Contractor Employee Whistleblower Rights and Requirement
To Inform Employees of Whistleblower Rights.
As prescribed in 3.908-9, insert the following clause:
Contractor Employee Whistleblower Rights and Requirement To Inform
Employees of Whistleblower Rights (APR 2014)
(a) This contract and employees working on this contract will be
subject to the whistleblower rights and remedies in the pilot program on
Contractor employee whistleblower protections established at 41 U.S.C.
4712 by section 828 of the National Defense Authorization Act for Fiscal
Year 2013 (Pub. L. 112-239) and FAR 3.908.
(b) The Contractor shall inform its employees in writing, in the
predominant language
[[Page 29]]
of the workforce, of employee whistleblower rights and protections under
41 U.S.C. 4712, as described in section 3.908 of the Federal Acquisition
Regulation.
(c) The Contractor shall insert the substance of this clause,
including this paragraph (c), in all subcontracts over the simplified
acquisition threshold.
(End of clause)
[78 FR 60172, Sept. 30, 2013, as amended at 79 FR 24253, Apr. 29, 2014]
52.203-18 Prohibition on Contracting with Entities that Require
Certain Internal Confidentiality Agreements or Statements
--Representation.
As prescribed in 3.909-3(a), insert the following provision:
Prohibition on Contracting With Entities That Require Certain Internal
Confidentiality Agreements or Statements--Representation (JAN 2017)
(a) Definition. As used in this provision--
Internal confidentiality agreement or statement, subcontract, and
subcontractor, are defined in the clause at 52.203-19, Prohibition on
Requiring Certain Internal Confidentiality Agreements or Statements.
(b) In accordance with section 743 of Division E, Title VII, of the
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L.
113-235) and its successor provisions in subsequent appropriations acts
(and as extended in continuing resolutions), Government agencies are not
permitted to use funds appropriated (or otherwise made available) for
contracts with an entity that requires employees or subcontractors of
such entity seeking to report waste, fraud, or abuse to sign internal
confidentiality agreements or statements prohibiting or otherwise
restricting such employees or subcontractors from lawfully reporting
such waste, fraud, or abuse to a designated investigative or law
enforcement representative of a Federal department or agency authorized
to receive such information.
(c) The prohibition in paragraph (b) of this provision does not
contravene requirements applicable to Standard Form 312, (Classified
Information Nondisclosure Agreement), Form 4414 (Sensitive Compartmented
Information Nondisclosure Agreement), or any other form issued by a
Federal department or agency governing the nondisclosure of classified
information.
(d) Representation. By submission of its offer, the Offeror
represents that it will not require its employees or subcontractors to
sign or comply with internal confidentiality agreements or statements
prohibiting or otherwise restricting such employees or subcontractors
from lawfully reporting waste, fraud, or abuse related to the
performance of a Government contract to a designated investigative or
law enforcement representative of a Federal department or agency
authorized to receive such information (e.g., agency Office of the
Inspector General).
(End of provision)
[82 FR 4722, Jan. 13, 2017]
52.203-19 Prohibition on Requiring Certain Internal Confidentiality
Agreements or Statements.
As prescribed in 3.909-3(b), insert the following clause:
Prohibition on Requiring Certain Internal Confidentiality Agreements or
Statements (JAN 2017)
(a) Definitions. As used in this clause--
Internal confidentiality agreement or statement means a
confidentiality agreement or any other written statement that the
contractor requires any of its employees or subcontractors to sign
regarding nondisclosure of contractor information, except that it does
not include confidentiality agreements arising out of civil litigation
or confidentiality agreements that contractor employees or
subcontractors sign at the behest of a Federal agency.
Subcontract means any contract as defined in subpart 2.1 entered
into by a subcontractor to furnish supplies or services for performance
of a prime contract or a subcontract. It includes but is not limited to
purchase orders, and changes and modifications to purchase orders.
Subcontractor means any supplier, distributor, vendor, or firm
(including a consultant) that furnishes supplies or services to or for a
prime contractor or another subcontractor.
(b) The Contractor shall not require its employees or subcontractors
to sign or comply with internal confidentiality agreements or statements
prohibiting or otherwise restricting such employees or subcontractors
from lawfully reporting waste, fraud, or abuse related to the
performance of a Government contract to a designated investigative or
law enforcement representative of a Federal department or agency
authorized to receive such information (e.g., agency Office of the
Inspector General).
(c) The Contractor shall notify current employees and subcontractors
that prohibitions and restrictions of any preexisting internal
confidentiality agreements or statements covered by this clause, to the
extent that such prohibitions and restrictions are inconsistent with the
prohibitions of this clause, are no longer in effect.
[[Page 30]]
(d) The prohibition in paragraph (b) of this clause does not
contravene requirements applicable to Standard Form 312 (Classified
Information Nondisclosure Agreement), Form 4414 (Sensitive Compartmented
Information Nondisclosure Agreement), or any other form issued by a
Federal department or agency governing the nondisclosure of classified
information.
(e) In accordance with section 743 of Division E, Title VII, of the
Consolidated and Further Continuing Appropriations Act, 2015, (Pub. L.
113-235), and its successor provisions in subsequent appropriations acts
(and as extended in continuing resolutions) use of funds appropriated
(or otherwise made available) is prohibited, if the Government
determines that the Contractor is not in compliance with the provisions
of this clause.
(f) The Contractor shall include the substance of this clause,
including this paragraph (f), in subcontracts under such contracts.
(End of clause)
[82 FR 4722, Jan. 13, 2017]
52.204-1 Approval of Contract.
As prescribed in 4.103, insert the following clause:
Approval of Contract (DEC 1989)
This contract is subject to the written approval of . . . . .
[identify title of designated agency official here] and shall not be
binding until so approved.
(End of clause)
[54 FR 5058, Jan. 31, 1989, as amended at 54 FR 48990, Nov. 28, 1989]
52.204-2 Security Requirements.
As prescribed in 4.404(a), insert the following clauses:
Security Requirements (AUG 1996)
(a) This clause applies to the extent that this contract involves
access to information classified Confidential, Secret, or Top Secret.
(b) The Contractor shall comply with (1) the Security Agreement (DD
Form 441), including the National Industrial Security Program Operating
Manual (DOD 5220.22-M), and (2) any revisions to that manual, notice of
which has been furnished to the Contractor.
(c) If, subsequent to the date of this contract, the security
classification or security requirements under this contract are changed
by the Government and if the changes cause an increase or decrease in
security costs or otherwise affect any other term or condition of this
contract, the contract shall be subject to an equitable adjustment as if
the changes were directed under the Changes clause of this contract.
(d) The Contractor agrees to insert terms that conform substantially
to the language of this clause, including this paragraph (d) but
excluding any reference to the Changes clause of this contract, in all
subcontracts under this contract that involve access to classified
information.
(End of clause)
Alternate I (APR 1984). If a cost contract for research and
development with an educational institution is contemplated, add the
following paragraphs (e), (f), and (g) to the basic clause:
(e) If a change in security requirements, as provided in paragraphs
(b) and (c), results (1) in a change in the security classification of
this contract or any of its elements from an unclassified status or a
lower classification to a higher classification, or (2) in more
restrictive area controls than previously required, the Contractor shall
exert every reasonable effort compatible with the Contractor's
established policies to continue the performance of work under the
contract in compliance with the change in security classification or
requirements. If, despite reasonable efforts, the Contractor determines
that the continuation of work under this contract is not practicable
because of the change in security classification or requirements, the
Contractor shall notify the Contracting Officer in writing. Until
resolution of the problem is made by the Contracting Officer, the
Contractor shall continue safeguarding all classified material as
required by this contract.
(f) After receiving the written notification, the Contracting
Officer shall explore the circumstances surrounding the proposed change
in security classification or requirements, and shall endeavor to work
out a mutually satisfactory method whereby the Contractor can continue
performance of the work under this contract.
(g) If, 15 days after receipt by the Contracting Officer of the
notification of the Contractor's stated inability to proceed, (1) the
application to this contract of the change in security classification or
requirements has not been withdrawn or (2) a mutually satisfactory
method for continuing performance of work under this contract has not
been agreed upon, the Contractor may request the Contracting Officer to
terminate the contract in whole or in part. The Contracting Officer
shall terminate the contract in whole or in part, as may be appropriate,
[[Page 31]]
and the termination shall be deemed a termination under the terms of the
Termination for the Convenience of the Government clause.
Alternate II (APR 1984). If employee identification is required for
security or other reasons in a construction contract or architect-
engineer contract, add the following paragraph (e) to the basic clause:
(e) The Contractor shall be responsible for furnishing to each
employee and for requiring each employee engaged on the work to display
such identification as may be approved and directed by the Contracting
Officer. All prescribed identification shall immediately be delivered to
the Contracting Officer, for cancellation upon the release of any
employee. When required by the Contracting Officer, the Contractor shall
obtain and submit fingerprints of all persons employed or to be employed
on the project.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]
52.204-3 Taxpayer identification.
As prescribed in 4.905, insert the following provision:
Taxpayer Identification (OCT 1998)
(a) Definitions.
Common parent, as used in this provision, means that corporate
entity that owns or controls an affiliated group of corporations that
files its Federal income tax returns on a consolidated basis, and of
which the offeror is a member.
Taxpayer Identification Number (TIN), as used in this provision,
means the number required by the Internal Revenue Service (IRS) to be
used by the offeror in reporting income tax and other returns. The TIN
may be either a Social Security Number or an Employer Identification
Number.
(b) All offerors must submit the information required in paragraphs
(d) through (f) of this provision to comply with debt collection
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by
the IRS. If the resulting contract is subject to the payment reporting
requirements described in Federal Acquisition Regulation (FAR) 4.904,
the failure or refusal by the offeror to furnish the information may
result in a 31 percent reduction of payments otherwise due under the
contract.
(c) The TIN may be used by the Government to collect and report on
any delinquent amounts arising out of the offeror's relationship with
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is
subject to the payment reporting requirements described in FAR 4.904,
the TIN provided hereunder may be matched with IRS records to verify the
accuracy of the offeror's TIN.
(d) Taxpayer Identification Number (TIN).
[squ] TIN:______________________________________________________________
[squ] TIN has been applied for.
[squ] TIN is not required because:
[squ] Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income effectively connected with
the conduct of a trade or business in the United States and does not
have an office or place of business or a fiscal paying agent in the
United States;
[squ] Offeror is an agency or instrumentality of a foreign
government;
[squ] Offeror is an agency or instrumentality of the Federal
Government.
(e) Type of organization.
[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Government entity (Federal, State, or local);
[squ] Foreign government;
[squ] International organization per 26 CFR 1.6049-4;
[squ] Other_____________________________________________________________
(f) Common parent.
[squ] Offeror is not owned or controlled by a common parent as
defined in paragraph (a) of this provision.
[squ] Name and TIN of common parent:
Name____________________________________________________________________
TIN_____________________________________________________________________
(End of provision)
[63 FR 58589, Oct. 30, 1998]
52.204-4 Printed or Copied Double-Sided on Postconsumer Fiber
Content Paper.
As prescribed in 4.303, insert the following clause:
Printed or Copied Double-Sided on Postconsumer Fiber Content Paper (MAY
2011)
(a) Definitions. As used in this clause--
Postconsumer fiber means--(1) Paper, paperboard, and fibrous
materials from retail stores, office buildings, homes, and so forth,
after they have passed through their end-usage as a consumer item,
including: used corrugated boxes; old newspapers; old magazines; mixed
waste paper; tabulating cards; and used cordage; or
(2) All paper, paperboard, and fibrous materials that enter and are
collected from municipal solid waste; but not
(3) Fiber derived from printers' over-runs, converters' scrap, and
over-issue publications.
[[Page 32]]
(b) The Contractor is required to submit paper documents, such as
offers, letters, or reports that are printed or copied double-sided on
paper containing at least 30 percent postconsumer fiber, whenever
practicable, when not using electronic commerce methods to submit
information or data to the Government.
(End of clause)
[76 FR 31402, May 31, 2011]
52.204-5 Women-Owned Business (Other Than Small Business).
As prescribed in 4.607(a), insert the following provision:
Women-Owned Business (Other Than Small Business) (OCT 2014)
(a) Definition. Women-owned business concern, as used in this
provision, means a concern that is at least 51 percent owned by one or
more women; or in the case of any publicly owned business, at least 51
percent of its stock is owned by one or more women; and whose management
and daily business operations are controlled by one or more women.
(b) Representation. [Complete only if the offeror is a women-owned
business concern and has not represented itself as a small business
concern in paragraph (c)(1) of FAR 52.219-1, Small Business Program
Representations, of this solicitation.] The offeror represents that it
[squ] is a women-owned business concern.
(End of provision)
[64 FR 10533, Mar. 4, 1999; 64 FR 30103, June 4, 1999, as amended at 73
FR 21778, Apr. 22, 2008; 77 FR 69718, Nov. 20, 2012; 79 FR 61751, Oct.
14, 2014]
52.204-6 Unique Entity Identifier.
As prescribed in 4.607(b), insert the following provision:
Unique Entity Identifier (OCT 2016)
(a) Definitions. As used in this provision--
Electronic Funds Transfer (EFT) indicator means a four-character
suffix to the unique entity identifier. The suffix is assigned at the
discretion of the commercial, nonprofit, or Government entity to
establish additional System for Award Management records for identifying
alternative EFT accounts (see subpart 32.11) for the same entity.
Unique entity identifier means a number or other identifier used to
identify a specific commercial, nonprofit, or Government entity. See
www.sam.gov for the designated entity for establishing unique entity
identifiers.
(b) The Offeror shall enter, in the block with its name and address
on the cover page of its offer, the annotation ``Unique Entity
Identifier'' followed by the unique entity identifier that identifies
the Offeror's name and address exactly as stated in the offer. The
Offeror also shall enter its EFT indicator, if applicable.
(c) If the Offeror does not have a unique entity identifier, it
should contact the entity designated at www.sam.gov for establishment of
the unique entity identifier directly to obtain one. The Offeror should
be prepared to provide the following information:
(1) Company legal business name.
(2) Tradestyle, doing business, or other name by which your entity
is commonly recognized.
(3) Company physical street address, city, state and Zip Code.
(4) Company mailing address, city, state and Zip Code (if separate
from physical).
(5) Company telephone number.
(6) Date the company was started.
(7) Number of employees at your location.
(8) Chief executive officer/key manager.
(9) Line of business (industry).
(10) Company headquarters name and address (reporting relationship
within your entity).
(End of provision)
]81 FR 67739, Sept. 30, 2016]
52.204-7 System for Award Management.
As prescribed in 4.1105(a)(1), use the following provision.
System for Award Manangement (OCT 2016)
(a) Definitions. As used in this provision--
Electronic Funds Transfer (EFT) indicator means a four-character
suffix to the unique entity identifier. The suffix is assigned at the
discretion of the commercial, nonprofit, or Government entity to
establish additional System for Award Management records for identifying
alternative EFT accounts (see subpart 32.11) for the same entity.
Registered in the System for Award Management (SAM) database means
that--
(1) The Offeror has entered all mandatory information, including the
unique entity identifier and the EFT indicator, if applicable, the
Commercial and Government Entity (CAGE) code, as well as data required
by the Federal Funding Accountability and Transparency Act of 2006 (see
subpart 4.14) into the SAM database;
(2) The offeror has completed the Core, Assertions, and
Representations and Certifications, and Points of Contact sections of
the registration in the SAM database;
(3) The Government has validated all mandatory data fields, to
include validation of the Taxpayer Identification Number (TIN) with the
Internal Revenue Service (IRS). The
[[Page 33]]
offeror will be required to provide consent for TIN validation to the
Government as a part of the SAM registration process; and
(4) The Government has marked the record ``Active''.
Unique entity identifier means a number or other identifier used to
identify a specific commercial, nonprofit, or Government entity. See
www.sam.gov for the designated entity for establishing unique entity
identifiers.
(b)(1) By submission of an offer, the Offeror acknowledges the
requirement that a prospective awardee shall be registered in the SAM
database prior to award, during performance, and through final payment
of any contract, basic agreement, basic ordering agreement, or blanket
purchasing agreement resulting from this solicitation.
(2) The Offeror shall enter, in the block with its name and address
on the cover page of its offer, the annotation ``Unique Entity
Identifier'' followed by the unique entity identifier that identifies
the Offeror's name and address exactly as stated in the offer. The
Offeror also shall enter its EFT indicator, if applicable. The unique
entity identifier will be used by the Contracting Officer to verify that
the Offeror is registered in the SAM database.
(c) If the Offeror does not have a unique entity identifier, it
should contact the entity designated at www.sam.gov for establishment of
the unique entity identifier directly to obtain one. The Offeror should
be prepared to provide the following information:
(1) Company legal business name.
(2) Tradestyle, doing business, or other name by which your entity
is commonly recognized.
(3) Company physical street address, city, state, and Zip Code.
(4) Company mailing address, city, state and Zip Code (if separate
from physical).
(5) Company telephone number.
(6) Date the company was started.
(7) Number of employees at your location.
(8) Chief executive officer/key manager.
(9) Line of business (industry).
(10) Company headquarters name and address (reporting relationship
within your entity).
(d) If the Offeror does not become registered in the SAM database in
the time prescribed by the Contracting Officer, the Contracting Officer
will proceed to award to the next otherwise successful registered
Offeror.
(e) Processing time, which normally takes 48 hours, should be taken
into consideration when registering. Offerors who are not registered
should consider applying for registration immediately upon receipt of
this solicitation.
(f) Offerors may obtain information on registration at https://
www.acquisition.gov.
Alternate I (JUL 2013). As prescribed in 4.1105(a)(2), substitute
the following paragraph (b)(1) for paragraph (b)(1) of the basic
provision:
(b)(1) By submission of an offer, the offeror acknowledges the
requirement that a prospective awardee shall be registered in the System
for Award Management prior to award, during performance, and through
final payment of any contract, basic agreement, basic ordering
agreement, or blanket purchasing agreement resulting from this
solicitation. If registration prior to award is not possible, the
awardee shall be registered in the System for Award Management within 30
days after award or before three days prior to submission of the first
invoice, whichever occurs first.
[68 FR 56674, Oct. 1, 2003, as amended at 68 FR 69259, Dec. 11, 2003; 71
FR 36925, June 28, 2006; 73 FR 21778, Apr. 22, 2008; 74 FR 52849, Oct.
14, 2009; 77 FR 188, Jan. 3, 2012; 77 FR 44058, July 26, 2012; 77 FR
69719, Nov. 20, 2012; 78 FR 37680, June 21, 2013; 81 FR 67739, Sept. 30,
2016]
Effective Date Note: At 83 FR 48698, Sept. 26, 2018, section 52.204-
7 was amended by:
a. Revising the date of the provision;
b. In paragraph (a), revising the defined term ``Registered in the
System for Award Management (SAM) database'' to read ``Registered in the
System for Award Management (SAM)'';
c. Removing from paragraphs (a)(1) and (2) ``the SAM database;'' and
adding ``SAM;'' in their places;
d. Revising paragraph (b)(1);
e. Removing from paragraph (b)(2) ``the SAM database'' and adding
``SAM'' in its place;
f. Revising paragraph (d);
g. Removing paragraphs (e) and (f); and
h. Revising the date of Alternate I and paragraph (b)(1).
The amendments are effective Oct. 26, 2018. For the convenience of
the user, the revised text is set forth as follows:
52.204-7 System for Award Management.
* * * * *
System for Award Management (Oct 2018)
* * * * *
(b)(1) An Offeror is required to be registered in SAM when
submitting an offer or quotation, and shall continue to be registered
until time of award, during performance, and through final payment of
any contract, basic agreement, basic ordering agreement, or blanket
purchasing agreement resulting from this solicitation.
* * * * *
[[Page 34]]
(d) Processing time should be taken into consideration when
registering. Offerors who are not registered in SAM should consider
applying for registration immediately upon receipt of this solicitation.
See https://www.sam.gov for information on registration.
(End of provision)
Alternate I (Oct 2018). * * *
(b)(1) An Offeror is required to be registered in SAM as soon as
possible. If registration is not possible when submitting an offer or
quotation, the awardee shall be registered in SAM in accordance with the
requirements of clause 52.204-13, System for Award Management
Maintenance.
52.204-8 Annual Representations and Certifications.
As prescribed in 4.1202(a), insert the following provision:
Annual Representations and Certifications (JAN 2018)
(a)(1) The North American Industry Classification System (NAICS)
code for this acquisition is _______ [insert NAICS code].
(2) The small business size standard is _______ [insert size
standard].
(3) The small business size standard for a concern which submits an
offer in its own name, other than on a construction or service contract,
but which proposes to furnish a product which it did not itself
manufacture, is 500 employees.3
(b)(1) If the provision at 52.204-7, System for Award Management, is
included in this solicitation, paragraph (d) of this provision applies.
(2) If the provision at 52.204-7 is not included in this
solicitation, and the offeror is currently registered in the System for
Award Management (SAM), and has completed the Representations and
Certifications section of SAM electronically, the offeror may choose to
use paragraph (d) of this provision instead of completing the
corresponding individual representations and certifications in the
solicitation. The offeror shall indicate which option applies by
checking one of the following boxes:
[ ] (i) Paragraph (d) applies.
[ ] (ii) Paragraph (d) does not apply and the offeror has completed
the individual representations and certifications in the solicitation.
(c)(1) The following representations or certifications in SAM are
applicable to this solicitation as indicated:
(i) 52.203-2, Certificate of Independent Price Determination. This
provision applies to solicitations when a firm-fixed-price contract or
fixed-price contract with economic price adjustment is contemplated,
unless--
(A) The acquisition is to be made under the simplified acquisition
procedures in Part 13;
(B) The solicitation is a request for technical proposals under two-
step sealed bidding procedures; or
(C) The solicitation is for utility services for which rates are set
by law or regulation.
(ii) 52.203-11, Certification and Disclosure Regarding Payments to
Influence Certain Federal Transactions. This provision applies to
solicitations expected to exceed $150,000.
(iii) 52.203-18, Prohibition on Contracting with Entities that
Require Certain Internal Confidentiality Agreements or Statements--
Representation. This provision applies to all solicitations.
(iv) 52.204-3, Taxpayer Identification. This provision applies to
solicitations that do not include provision at 52.204-7, System for
Award Management.
(v) 52.204-5, Women-Owned Business (Other Than Small Business). This
provision applies to solicitations that--
(A) Are not set aside for small business concerns;
(B) Exceed the simplified acquisition threshold; and
(C) Are for contracts that will be performed in the United States or
its outlying areas.
(vi) 52.209-2, Prohibition on Contracting with Inverted Domestic
Corporations--Representation.
(vii) 52.209-5, Certification Regarding Responsibility Matters. This
provision applies to solicitations where the contract value is expected
to exceed the simplified acquisition threshold.
(viii) 52.209-11, Representation by Corporations Regarding
Delinquent Tax Liability or a Felony Conviction under any Federal Law.
This provision applies to all solicitations.
(ix) 52.214-14, Place of Performance--Sealed Bidding. This provision
applies to invitations for bids except those in which the place of
performance is specified by the Government.
(x) 52.215-6, Place of Performance. This provision applies to
solicitations unless the place of performance is specified by the
Government.
(xi) 52.219-1, Small Business Program Representations (Basic &
Alternate I). This provision applies to solicitations when the contract
will be performed in the United States or its outlying areas.
(A) The basic provision applies when the solicitations are issued by
other than DoD, NASA, and the Coast Guard.
(B) The provision with its Alternate I applies to solicitations
issued by DoD, NASA, or the Coast Guard.
(xii) 52.219-2, Equal Low Bids. This provision applies to
solicitations when contracting by sealed bidding and the contract will
be performed in the United States or its outlying areas.
[[Page 35]]
(xiii) 52.222-22, Previous Contracts and Compliance Reports. This
provision applies to solicitations that include the clause at 52.222-26,
Equal Opportunity.
(xiv) 52.222-25, Affirmative Action Compliance. This provision
applies to solicitations, other than those for construction, when the
solicitation includes the clause at 52.222-26, Equal Opportunity.
(xv) 52.222-38, Compliance with Veterans' Employment Reporting
Requirements. This provision applies to solicitations when it is
anticipated the contract award will exceed the simplified acquisition
threshold and the contract is not for acquisition of commercial items.
(xvi) 52.223-1, Biobased Product Certification. This provision
applies to solicitations that require the delivery or specify the use of
USDA-designated items; or include the clause at 52.223-2, Affirmative
Procurement of Biobased Products Under Service and Construction
Contracts.
(xvii) 52.223-4, Recovered Material Certification. This provision
applies to solicitations that are for, or specify the use of, EPA-
designated items.
(xviii) 52.223-22, Public Disclosure of Greenhouse Gas Emissions and
Reduction Goals--Representation. This provision applies to solicitations
that include the clause at 52.204-7.)
(xix) 52.225-2, Buy American Certificate. This provision applies to
solicitations containing the clause at 52.225-1.
(xx) 52.225-4, Buy American--Free Trade Agreements--Israeli Trade
Act Certificate. (Basic, Alternates I, II, and III.) This provision
applies to solicitations containing the clause at 52.225-3.
(A) If the acquisition value is less than $25,000, the basic
provision applies.
(B) If the acquisition value is $25,000 or more but is less than
$50,000, the provision with its Alternate I applies.
(C) If the acquisition value is $50,000 or more but is less than
$80,317, the provision with its Alternate II applies.
(D) If the acquisition value is $80,317 or more but is less than
$100,000, the provision with its Alternate III applies.
(xxi) 52.225-6, Trade Agreements Certificate. This provision applies
to solicitations containing the clause at 52.225-5.
(xxii) 52.225-20, Prohibition on Conducting Restricted Business
Operations in Sudan--Certification. This provision applies to all
solicitations.
(xxiii) 52.225-25, Prohibition on Contracting with Entities Engaging
in Certain Activities or Transactions Relating to Iran--Representation
and Certifications. This provision applies to all solicitations.
(xxiv) 52.226-2, Historically Black College or University and
Minority Institution Representation. This provision applies to
solicitations for research, studies, supplies, or services of the type
normally acquired from higher educational institutions.
(2) The following representations or certifications are applicable
as indicated by the Contracting Officer:
[Contracting Officer check as appropriate.]
__ (i) 52.204-17, Ownership or Control of Offeror.
__ (ii) 52.204-20, Predecessor of Offeror.
__ (iii) 52.222-18, Certification Regarding Knowledge of Child Labor
for Listed End Products.
__ (iv) 52.222-48, Exemption from Application of the Service
Contract Labor Standards to Contracts for Maintenance, Calibration, or
Repair of Certain Equipment--Certification.
__ (v) 52.222-52, Exemption from Application of the Service Contract
Labor Standards to Contracts for Certain Services--Certification.
__ (vi) 52.223-9, with its Alternate I, Estimate of Percentage of
Recovered Material Content for EPA-Designated Products (Alternate I
only).
__ (vii) 52.227-6, Royalty Information.
__ (A) Basic.
__ (B) Alternate I.
__ (viii) 52.227-15, Representation of Limited Rights Data and
Restricted Computer Software.
(d) The offeror has completed the annual representations and
certifications electronically via the SAM Web site accessed through
https://www.acquisition.gov. After reviewing the SAM database
information, the offeror verifies by submission of the offer that the
representations and certifications currently posted electronically that
apply to this solicitation as indicated in paragraph (c) of this
provision have been entered or updated within the last 12 months, are
current, accurate, complete, and applicable to this solicitation
(including the business size standard applicable to the NAICS code
referenced for this solicitation), as of the date of this offer and are
incorporated in this offer by reference (see FAR 4.1201); except for the
changes identified below [offeror to insert changes, identifying change
by clause number, title, date]. These amended representation(s) and/or
certification(s) are also incorporated in this offer and are current,
accurate, and complete as of the date of this offer.
----------------------------------------------------------------------------------------------------------------
FAR Clause No. Title Date Change
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
[[Page 36]]
Any changes provided by the offeror are applicable to this solicitation
only, and do not result in an update to the representations and
certifications posted on SAM.
(End of provision)
[69 FR 76346, Dec. 20, 2004, as amended at 71 FR 227, Jan. 3, 2006; 74
FR 2730, Jan. 15, 2009; 75 FR 53134, Aug. 30, 2010; 75 FR 60257, Sept.
29, 2010; 75 FR 82568, Dec. 30, 2010; 76 FR 31402, 31414, May 31, 2011;
76 FR 68031, Nov. 2, 2011; 77 FR 188, Jan. 3, 2012; 77 FR 12934, Mar. 2,
2012; 77 FR 13954, Mar. 7, 2012; 77 FR 27548, May 10, 2012; 77 FR 73520,
Dec. 10, 2012; 78 FR 37680, 37698, June 21, 2013; 78 FR 80381, Dec. 31,
2013;79 FR 4630, Jan. 29, 2014; 79 FR 24215, Apr. 29, 2014; 79 FR 61751,
Oct. 14, 2014; 79 FR 31191, May 30, 2014; 79 FR 70342,70348, Nov. 25,
2014; 79 FR 74557, Dec. 15, 2014; 80 FR 81896, Dec. 31, 2015; 80 FR
75906, Dec. 4, 2015; 81 FR 11991, Mar. 7, 2016; 81 FR 58644, Aug. 25,
2016; 81 FR 83096, Nov. 18, 2016; 81 FR 91640, Dec. 16, 2016; 82 FR
4723, Jan. 13, 2017; 82 FR 51530, Nov. 6, 2017; 82 FR 51776, Nov. 8,
2017; 83 FR 3398, Jan. 24, 2018]
Effective Date Note: At 83 FR 48698, Sept. 26, 2018, section 52.204-
8 was amended by revising the date of the provision and paragraphs
(b)(2) introductory text and (d), effective Oct. 26, 2018. For the
convenience of the user, the revised text is set forth as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Oct 2018)
* * * * *
(b) * * *
(2) If the provision at 52.204-7, System for Award Management, is
not included in this solicitation, and the Offeror has an active
registration in the System for Award Management (SAM), the Offeror may
choose to use paragraph (d) of this provision instead of completing the
corresponding individual representations and certifications in the
solicitation. The Offeror shall indicate which option applies by
checking one of the following boxes:
* * * * *
(d) The Offeror has completed the annual representations and
certifications electronically in SAM accessed through https://
www.sam.gov. After reviewing the SAM information, the Offeror verifies
by submission of the offer that the representations and certifications
currently posted electronically that apply to this solicitation as
indicated in paragraph (c) of this provision have been entered or
updated within the last 12 months, are current, accurate, complete, and
applicable to this solicitation (including the business size standard
applicable to the NAICS code referenced for this solicitation), as of
the date of this offer and are incorporated in this offer by reference
(see FAR 4.1201); except for the changes identified below [offeror to
insert changes, identifying change by clause number, title, date]. These
amended representation(s) and/or certification(s) are also incorporated
in this offer and are current, accurate, and complete as of the date of
this offer.
* * * * *
52.204-9 Personal Identity Verification of Contractor Personnel.
As prescribed in 4.1303, insert the following clause:
Personal Identity Verification of Contractor Personnel (JAN 2011)
(a) The Contractor shall comply with agency personal identity
verification procedures identified in the contract that implement
Homeland Security Presidential Directive-12 (HSPD-12), Office of
Management and Budget (OMB) guidance M-05-24, and Federal Information
Processing Standards Publication (FIPS PUB) Number 201.
(b) The Contractor shall account for all forms of Government-
provided identification issued to the Contractor employees in connection
with performance under this contract. The Contractor shall return such
identification to the issuing agency at the earliest of any of the
following, unless otherwise determined by the Government:
(1) When no longer needed for contract performance.
(2) Upon completion of the Contractor employee's employment.
(3) Upon contract completion or termination.
(c) The Contracting Officer may delay final payment under a contract
if the Contractor fails to comply with these requirements.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in all subcontracts when the
subcontractor's employees are required to have routine physical access
to a Federally-controlled facility and/or routine access to a Federally-
controlled information system. It shall be the responsibility of the
prime Contractor to return such identification to the issuing agency in
accordance with the terms set forth in paragraph (b) of this section,
unless otherwise approved in writing by the Contracting Officer.
[[Page 37]]
(End of clause)
[71 FR 211, Jan. 3, 2006, as amended at 71 FR 67775, Nov. 22, 2006; 72
FR 46335, Aug. 17, 2007; 75 FR 82576, Dec. 30, 2010]
52.204-10 Reporting Executive Compensation and First-Tier Subcontract
Awards.
As prescribed in 4.1403(a), insert the following clause:
Reporting Executive Compensation and First-Tier Subcontract Awards (OCT
2016)
(a) Definitions. As used in this clause:
Executive means officers, managing partners, or any other employees
in management positions.
First-tier subcontract means a subcontract awarded directly by the
Contractor for the purpose of acquiring supplies or services (including
construction) for performance of a prime contract. It does not include
the Contractor's supplier agreements with vendors, such as long-term
arrangements for materials or supplies that benefit multiple contracts
and/or the costs of which are normally applied to a Contractor's general
and administrative expenses or indirect costs.
Month of award means the month in which a contract is signed by the
Contracting Officer or the month in which a first-tier subcontract is
signed by the Contractor.
Total compensation means the cash and noncash dollar value earned by
the executive during the Contractor's preceding fiscal year and includes
the following (for more information see 17 CFR 229.402(c)(2)):
(1) Salary and bonus.
(2) Awards of stock, stock options, and stock appreciation rights.
Use the dollar amount recognized for financial statement reporting
purposes with respect to the fiscal year in accordance with the
Financial Accounting Standards Board's Accounting Standards Codification
(FASB ASC) 718, Compensation-Stock Compensation.
(3) Earnings for services under non-equity incentive plans. This
does not include group life, health, hospitalization or medical
reimbursement plans that do not discriminate in favor of executives, and
are available generally to all salaried employees.
(4) Change in pension value. This is the change in present value of
defined benefit and actuarial pension plans.
(5) Above-market earnings on deferred compensation which is not tax-
qualified.
(6) Other compensation, if the aggregate value of all such other
compensation (e.g., severance, termination payments, value of life
insurance paid on behalf of the employee, perquisites or property) for
the executive exceeds $10,000.
(b) Section 2(d)(2) of the Federal Funding Accountability and
Transparency Act of 2006 (Pub. L. 109-282), as amended by section 6202
of the Government Funding Transparency Act of 2008 (Pub. L. 110-252),
requires the Contractor to report information on subcontract awards. The
law requires all reported information be made public, therefore, the
Contractor is responsible for notifying its subcontractors that the
required information will be made public.
(c) Nothing in this clause requires the disclosure of classified
information.
(d)(1) Executive compensation of the prime contractor. As a part of
its annual registration requirement in the System for Award Management
(SAM) database (FAR provision 52.204-7), the Contractor shall report the
names and total compensation of each of the five most highly compensated
executives for its preceding completed fiscal year, if--
(i) In the Contractor's preceding fiscal year, the Contractor
received--
(A) 80 percent or more of its annual gross revenues from Federal
contracts (and subcontracts), loans, grants (and subgrants), cooperative
agreements, and other forms of Federal financial assistance; and
(B) $25,000,000 or more in annual gross revenues from Federal
contracts (and subcontracts), loans, grants (and subgrants), cooperative
agreements, and other forms of Federal financial assistance; and
(ii) The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.
(To determine if the public has access to the compensation information,
see the U.S. Security and Exchange Commission total compensation filings
at http://www.sec.gov/answers/execomp.htm.).
(2) First-tier subcontract information. Unless otherwise directed by
the contracting officer, or as provided in paragraph (g) of this clause,
by the end of the month following the month of award of a first-tier
subcontract with a value of $30,000 or more, the Contractor shall report
the following information at http://www.fsrs.gov for that first-tier
subcontract. (The Contractor shall follow the instructions at http://
www.fsrs.gov to report the data.)
(i) Unique identifier entity identifier for the subcontractor
receiving the award and for the subcontractor's parent company, if the
subcontractor has a parent company.
(ii) Name of the subcontractor.
(iii) Amount of the subcontract award.
(iv) Date of the subcontract award.
(v) A description of the products or services (including
construction) being provided under the subcontract, including the
overall purpose and expected outcomes or results of the subcontract.
(vi) Subcontract number (the subcontract number assigned by the
Contractor).
[[Page 38]]
(vii) Subcontractor's physical address including street address,
city, state, and country. Also include the nine-digit zip code and
congressional district.
(viii) Subcontractor's primary performance location including street
address, city, state, and country. Also include the nine-digit zip code
and congressional district.
(ix) The prime contract number, and order number if applicable.
(x) Awarding agency name and code.
(xi) Funding agency name and code.
(xii) Government contracting office code.
(xiii) Treasury account symbol (TAS) as reported in FPDS.
(xiv) The applicable North American Industry Classification System
code (NAICS).
(3) Executive compensation of the first-tier subcontractor. Unless
otherwise directed by the Contracting Officer, by the end of the month
following the month of award of a first-tier subcontract with a value of
$30,000 or more, and annually thereafter (calculated from the prime
contract award date), the Contractor shall report the names and total
compensation of each of the five most highly compensated executives for
that first-tier subcontractor for the first-tier subcontractor's
preceding completed fiscal year at http://www.fsrs.gov, if--
(i) In the subcontractor's preceding fiscal year, the subcontractor
received--
(A) 80 percent or more of its annual gross revenues from Federal
contracts (and subcontracts), loans, grants (and subgrants), cooperative
agreements, and other forms of Federal financial assistance; and
(B) $25,000,000 or more in annual gross revenues from Federal
contracts (and subcontracts), loans, grants (and subgrants), cooperative
agreements, and other forms of Federal financial assistance; and
(ii) The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.
(To determine if the public has access to the compensation information,
see the U.S. Security and Exchange Commission total compensation filings
at http://www.sec.gov/answers/execomp.htm.)
(e) The Contractor shall not split or break down first-tier
subcontract awards to a value less than $30,000 to avoid the reporting
requirements in paragraph (d) of this clause.
(f) The Contractor is required to report information on a first-tier
subcontract covered by paragraph (d) when the subcontract is awarded.
Continued reporting on the same subcontract is not required unless one
of the reported data elements changes during the performance of the
subcontract. The Contractor is not required to make further reports
after the first-tier subcontract expires.
(g)(1) If the Contractor in the previous tax year had gross income,
from all sources, under $300,000, the Contractor is exempt from the
requirement to report subcontractor awards.
(2) If a subcontractor in the previous tax year had gross income
from all sources under $300,000, the Contractor does not need to report
awards for that subcontractor.
(h) The FSRS database at http://www.fsrs.gov will be prepopulated
with some information from SAM and FPDS databases. If FPDS information
is incorrect, the contractor should notify the contracting officer. If
the SAM database information is incorrect, the contractor is responsible
for correcting this information.
(End of clause)
[77 FR 44058, July 26, 2012, as amended at 78 FR 37681, 37698, June 21,
2013; 80 FR 38299, July 2, 2015; 81 FR 67739, Sept. 30, 2016]
Effective Date Note: At 83 FR 48698, Sept. 26, 2018, section 52.204-
10 was amended by revising the date of the clause, removing from
paragraph (d)(1) introductory text ``database'', and, revising paragraph
(h), effective Oct. 26, 2018. For the convenience of the user, the
revised text is set forth as follows:
52.204-10 Reporting Executive Compensation and First-Tier Subcontract
Awards.
* * * * *
Reporting Executive Compensation and First-Tier Subcontract Awards (Oct
2018)
* * * * *
(h) The FSRS database at http://www.fsrs.gov will be prepopulated
with some information from SAM and the FPDS database. If FPDS
information is incorrect, the contractor should notify the contracting
officer. If the SAM information is incorrect, the contractor is
responsible for correcting this information.
* * * * *
52.204-11 [Reserved]
52.204-12 Unique Entity Identifier Maintenance.
As prescribed in 4.607(c), insert the following clause:
Unique Entity Identifier Maintenance (OCT 2016)
(a) Definition. Unique entity identifier, as used in this clause,
means a number or other
[[Page 39]]
identifier used to identify a specific commercial, nonprofit, or
Government entity. See www.sam.gov for the designated entity for
establishing unique entity identifiers.
(b) The Contractor shall ensure that the unique entity identifier is
maintained with the entity designated at the System for Award Management
(SAM) for establishment of the unique entity identifier throughout the
life of the contract. The Contractor shall communicate any change to the
unique entity identifier to the Contracting Officer within 30 days after
the change, so an appropriate modification can be issued to update the
data on the contract. A change in the unique entity identifier does not
necessarily require a novation be accomplished.
(End of clause)
[81 FR 67739, Sept. 30, 2016]
52.204-13 System for Award Management Maintenance.
As prescribed in 4.1105(b), use the following clause:
System for Award Management Maintenance (OCT 2016)
(a) Definitions. As used in this clause--
Electronic Funds Transfer (EFT) indicator means a four-character
suffix to the unique entity identifier. The suffix is assigned at the
discretion of the commercial, nonprofit, or Government entity to
establish additional System for Award Management (SAM) records for
identifying alternative EFT accounts (see subpart 32.11) for the same
entity.
Registered in the System for Award Management (SAM) database means
that--
(1) The Contractor has entered all mandatory information, including
the unique entity identifier and the EFT indicator (if applicable), the
Commercial and Government Entity (CAGE) code, as well as data required
by the Federal Funding Accountability and Transparency Act of 2006 (see
subpart 4.14), into the SAM database;
(2) The Contractor has completed the Core, Assertions,
Representations and Certifications, and Points of Contact sections of
the registration in the SAM database;
(3) The Government has validated all mandatory data fields, to
include validation of the Taxpayer Identification Number (TIN) with the
Internal Revenue Service (IRS). The Contractor will be required to
provide consent for TIN validation to the Government as a part of the
SAM registration process; and
(4) The Government has marked the record ``Active''.
System for Award Management (SAM) means the primary Government
repository for prospective Federal awardee and Federal awardee
information and the centralized Government system for certain
contracting, grants, and other assistance-related processes. It
includes--
(1) Data collected from prospective Federal awardees required for
the conduct of business with the Government;
(2) Prospective contractor-submitted annual representations and
certifications in accordance with FAR subpart 4.12; and
(3) Identification of those parties excluded from receiving Federal
contracts, certain subcontracts, and certain types of Federal financial
and non-financial assistance and benefits.
Unique entity identifier means a number or other identifier used to
identify a specific commercial, nonprofit, or Government entity. See
www.sam.gov for the designated entity for establishing unique entity
identifiers.
(b) The Contractor is responsible for the accuracy and completeness
of the data within the SAM database, and for any liability resulting
from the Government's reliance on inaccurate or incomplete data. To
remain registered in the SAM 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 SAM database to ensure it is current, accurate and complete.
Updating information in the SAM does not alter the terms and conditions
of this contract and is not a substitute for a properly executed
contractual document.
(c)(1)(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 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 SAM database;
(B) Comply with the requirements of subpart 42.12 of the FAR; and
(C) Agree in writing to the timeline and procedures specified by the
responsible Contracting Officer. The Contractor shall provide with the
notification sufficient documentation to support the legally changed
name.
(ii) If the Contractor fails to comply with the requirements of
paragraph (c)(1)(i) of this clause, or fails to perform the agreement at
paragraph (c)(1)(i)(C) of this clause, and, in the absence of a properly
executed novation or change-of-name agreement, the SAM 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
[[Page 40]]
electronic funds transfer (EFT) clause of this contract.
(2) The Contractor shall not change the name or address for EFT
payments or manual payments, as appropriate, in the SAM record to
reflect an assignee for the purpose of assignment of claims (see FAR
subpart 32.8, Assignment of Claims). Assignees shall be separately
registered in the SAM. Information provided to the Contractor's SAM
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.
(3) The Contractor shall ensure that the unique entity identifier is
maintained with the entity designated at www.sam.gov for establishment
of the unique entity identifier throughout the life of the contract. The
Contractor shall communicate any change to the unique entity identifier
to the Contracting Officer within 30 days after the change, so an
appropriate modification can be issued to update the data on the
contract. A change in the unique entity identifier does not necessarily
require a novation be accomplished.
(d) Contractors may obtain additional information on registration
and annual confirmation requirements at https://www.acquisition.gov.
[77 FR 69719, Nov. 20, 2012, as amended at 78 FR 37681, June 21, 2013;
81 FR 67740, Sept. 30, 2016]
Effective Date Note: At 83 FR 48698, Sept. 26, 2018, section 52.204-
13 was amended by:
a. Revising the date of the clause;
b. In paragraph (a), revising the defined term ``Registered in the
System for Award Management (SAM) database'' to read ``Registered in the
System for Award Management (SAM)'';
c. Removing from paragraphs (a)(1) and (2) ``the SAM database'' and
adding ``SAM'' in their places;
d. Redesignating paragraphs (b) through (d) as paragraphs (c)
through (e);
e. Adding a new paragraph (b);
f. Revising newly redesignated paragraphs (c) and (d)(1)(i)
introductory text;
g. Removing from newly redesignated paragraph (d)(1)(i)(A) ``the SAM
database'' and adding ``SAM'' in its place;
h. Removing from newly redesignated paragraph (d)(1)(ii)
``(c)(1)(i)'' and ``(c)(1)(i)(C)'' and adding ``(d)(1)(i)'' and
``(d)(1)(i)(C)'' in their places, respectively;
i. Removing from newly redesignated paragraph (d)(2) ``in the SAM''
and adding ``in SAM'' in its place; and
j. Removing from newly redesignated paragraph (e) ``https://
www.acquisition.gov'' and adding ``https://www.sam.gov'' in its place.
The amendments are effective Oct. 26, 2018. For the convenience of
the user, the added and revised text is set forth as follows:
52.204-13 System for Award Management Maintenance.
* * * * *
System for Award Management Maintenance (Oct 2018)
* * * * *
(b) If the solicitation for this contract contained the provision
52.204-7 with its Alternate I, and the Contractor was unable to register
prior to award, the Contractor shall be registered in SAM within 30 days
after award or before three days prior to submission of the first
invoice, whichever occurs first.
(c) The Contractor shall maintain registration in SAM during
contract performance and through final payment of any contract, basic
agreement, basic ordering agreement, or blanket purchasing agreement.
The Contractor is responsible for the currency, accuracy and
completeness of the data within SAM, and for any liability resulting
from the Government's reliance on inaccurate or incomplete data. To
remain registered in SAM 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 SAM to
ensure it is current, accurate and complete. Updating information in SAM
does not alter the terms and conditions of this contract and is not a
substitute for a properly executed contractual document.
(d) * * *
(1) * * *
(i) If a Contractor has legally changed its business name or ``doing
business as'' 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 subpart 42.12, the Contractor shall provide the
responsible Contracting Officer a minimum of one business day's written
notification of its intention to--
* * * * *
52.204-14 Service Contract Reporting Requirements.
As prescribed in 4.1705(a), insert the following clause:
Service Contract Reporting Requirements (OCT 2016)
(a) Definition.
First-tier subcontract means a subcontract awarded directly by the
Contractor for the
[[Page 41]]
purpose of acquiring supplies or services (including construction) for
performance of a prime contract. It does not include the Contractor's
supplier agreements with vendors, such as long-term arrangements for
materials or supplies that benefit multiple contracts and/or the costs
of which are normally applied to a Contractor's general and
administrative expenses or indirect costs.
(b) The Contractor shall report, in accordance with paragraphs (c)
and (d) of this clause, annually by October 31, for services performed
under this contract during the preceding Government fiscal year (October
1-September 30).
(c) The Contractor shall report the following information:
(1) Contract number and, as applicable, order number.
(2) The total dollar amount invoiced for services performed during
the previous Government fiscal year under the contract.
(3) The number of Contractor direct labor hours expended on the
services performed during the previous Government fiscal year.
(4) Data reported by subcontractors under paragraph (f) of this
clause.
(d) The information required in paragraph (c) of this clause shall
be submitted via the internet at www.sam.gov. (See SAM User Guide). If
the Contractor fails to submit the report in a timely manner, the
contracting officer will exercise appropriate contractual remedies. In
addition, the Contracting Officer will make the Contractor's failure to
comply with the reporting requirements a part of the Contractor's
performance information under FAR subpart 42.15.
(e) Agencies will review Contractor reported information for
reasonableness and consistency with available contract information. In
the event the agency believes that revisions to the Contractor reported
information are warranted, the agency will notify the Contractor no
later than November 15. By November 30, the Contractor shall revise the
report, or document its rationale for the agency.
(f)(1) The Contractor shall require each first-tier subcontractor
providing services under this contract, with subcontract(s) each valued
at or above the thresholds set forth in 4.1703(a)(2), to provide the
following detailed information to the Contractor in sufficient time to
submit the report:
(i) Subcontract number (including subcontractor name and unique
entity identifier); and
(ii) The number of first-tier subcontractor direct-labor hours
expended on the services performed during the previous Government fiscal
year.
(2) The Contractor shall advise the subcontractor that the
information will be made available to the public as required by section
743 of Division C of the Consolidated Appropriations Act, 2010.
(End of clause)
[78 FR 80375, Dec. 31, 2013, as amended at 81 FR 67740, Sept. 30, 2016]
52.204-15 Service Contract Reporting Requirements for
Indefinite-Delivery Contracts.
As prescribed in 4.1705(b), insert the following clause:
Service Contract Reporting Requirements for Indefinite-Delivery
Contracts (OCT 2016)
(a) Definition.
First-tier subcontract means a subcontract awarded directly by the
Contractor for the purpose of acquiring supplies or services (including
construction) for performance of a prime contract. It does not include
the Contractor's supplier agreements with vendors, such as long-term
arrangements for materials or supplies that benefit multiple contracts
and/or the costs of which are normally applied to a Contractor's general
and administrative expenses or indirect costs.
(b) The Contractor shall report, in accordance with paragraphs (c)
and (d) of this clause, annually by October 31, for services performed
during the preceding Government fiscal year (October 1-September 30)
under this contract for orders that exceed the thresholds established in
4.1703(a)(2).
(c) The Contractor shall report the following information:
(1) Contract number and order number.
(2) The total dollar amount invoiced for services performed during
the previous Government fiscal year under the order.
(3) The number of Contractor direct labor hours expended on the
services performed during the previous Government fiscal year.
(4) Data reported by subcontractors under paragraph (f) of this
clause.
(d) The information required in paragraph (c) of this clause shall
be submitted via the internet at www.sam.gov. (See SAM User Guide). If
the Contractor fails to submit the report in a timely manner, the
Contracting Officer will exercise appropriate contractual remedies. In
addition, the Contracting Officer will make the Contractor's failure to
comply with the reporting requirements a part of the Contractor's
performance information under FAR subpart 42.15.
(e) Agencies will review Contractor reported information for
reasonableness and consistency with available contract information. In
the event the agency believes that revisions to the Contractor reported
information are warranted, the agency will notify the Contractor no
later than November 15. By November 30, the Contractor shall revise the
report, or document its rationale for the agency.
[[Page 42]]
(f)(1) The Contractor shall require each first-tier subcontractor
providing services under this contract, with subcontract(s) each valued
at or above the thresholds set forth in 4.1703(a)(2), to provide the
following detailed information to the Contractor in sufficient time to
submit the report:
(i) Subcontract number (including subcontractor name and unique
entity identifier), and
(ii) The number of first-tier subcontractor direct-labor hours
expended on the services performed during the previous Government fiscal
year.
(2) The Contractor shall advise the subcontractor that the
information will be made available to the public as required by section
743 of Division C of the Consolidated Appropriations Act, 2010.
(End of clause)
[78 FR 80375, Dec. 31, 2013, as amended at 79 FR 4630, Jan. 29, 2014; 81
FR 67740, Sept. 30, 2016]
52.204-16 Commercial and Government Entity Code Reporting.
As prescribed in 4.1804(a), use the following provision:
Commercial and Government Entity Code Reporting (JUL 2016)
(a) Definition. As used in this provision--
Commercial and Government Entity (CAGE) code means--
(1) An identifier assigned to entities located in the United States
or its outlying areas by the Defense Logistics Agency (DLA) Commercial
and Government Entity (CAGE) Branch to identify a commercial or
government entity; or
(2) An identifier assigned by a member of the North Atlantic Treaty
Organization (NATO) or by the NATO Support and Procurement Agency (NSPA)
to entities located outside the United States and its outlying areas
that the DLA Commercial and Government Entity (CAGE) Branch records and
maintains in the CAGE master file. This type of code is known as a NATO
CAGE (NCAGE) code.
(b) The Offeror shall enter its CAGE code in its offer with its name
and address or otherwise include it prominently in its proposal. The
CAGE code entered must be for that name and address. Enter ``CAGE''
before the number. The CAGE code is required prior to award.
(c) CAGE codes may be obtained via--
(1) Registration in the System for Award Management (SAM) at
www.sam.gov. If the Offeror is located in the United States or its
outlying areas and does not already have a CAGE code assigned, the DLA
Commercial and Government Entity (CAGE) Branch will assign a CAGE code
as a part of the SAM registration process. SAM registrants located
outside the United States and its outlying areas shall obtain a NCAGE
code prior to registration in SAM (see paragraph (c)(3) of this
provision).
(2) The DLA Commercial and Government Entity (CAGE) Branch. If
registration in SAM is not required for the subject procurement, and the
offeror does not otherwise register in SAM, an offeror located in the
United States or its outlying areas may request that a CAGE code be
assigned by submitting a request at https://cage.dla.mil.
(3) The appropriate country codification bureau. Entities located
outside the United States and its outlying areas may obtain an NCAGE
code by contacting the Codification Bureau in the foreign entity's
country if that country is a member of NATO or a sponsored nation. NCAGE
codes may be obtained from the NSPA at https://eportal.nspa.nato.int/
AC135Public/scage/CageList.aspx if the foreign entity's country is not a
member of NATO or a sponsored nation. Points of contact for codification
bureaus, as well as additional information on obtaining NCAGE codes, are
available at http://www.nato.int/structur/AC/135/main/links/
contacts.htm.
(d) Additional guidance for establishing and maintaining CAGE codes
is available at https://cage.dla.mil.
(e) When a CAGE Code is required for the immediate owner and/or the
highest-level owner by 52.204-17 or 52.212-3(p), the Offeror shall
obtain the respective CAGE Code from that entity to supply the CAGE Code
to the Government.
(f) Do not delay submission of the offer pending receipt of a CAGE
code.
(End of provision)
[79 FR 31191, May 30, 2014, as amended at 80 FR 38312, July 2, 2015; 81
FR 45867, July 14, 2016]
52.204-17 Ownership or Control of Offeror.
As prescribed in 4.1804(b), use the following provision:
Ownership of Control of Offeror (JUL 2016)
(a) Definitions. As used in this provision--
Commercial and Government Entity (CAGE) code means--
(1) An identifier assigned to entities located in the United States
or its outlying areas by the Defense Logistics Agency (DLA) Commercial
and Government Entity (CAGE) Branch to identify a commercial or
government entity; or
(2) An identifier assigned by a member of the North Atlantic Treaty
Organization
[[Page 43]]
(NATO) or by the NATO Support and Procurement Agency (NSPA) to entities
located outside the United States and its outlying areas that the DLA
Commercial and Government Entity (CAGE) Branch records and maintains in
the CAGE master file. This type of code is known as a NATO CAGE (NCAGE)
code.
Highest-level owner means the entity that owns or controls an
immediate owner of the offeror, or that owns or controls one or more
entities that control an immediate owner of the offeror. No entity owns
or exercises control of the highest level owner.
Immediate owner means an entity, other than the offeror, that has
direct control of the offeror. Indicators of control include, but are
not limited to, one or more of the following: Ownership or interlocking
management, identity of interests among family members, shared
facilities and equipment, and the common use of employees.
(b) The Offeror represents that it [_] has or [_] does not have an
immediate owner. If the Offeror has more than one immediate owner (such
as a joint venture), then the Offeror shall respond to paragraph (c) and
if applicable, paragraph (d) of this provision for each participant in
the joint venture.
(c) If the Offeror indicates ``has'' in paragraph (b) of this
provision, enter the following information:
Immediate owner CAGE code:
________________________________________________________________________
Immediate owner legal name:_____________________________________________
(Do not use a ``doing business as'' name)
Is the immediate owner owned or controlled by another entity?: [_]
Yes or [_] No.
(d) If the Offeror indicates ``yes'' in paragraph (c) of this
provision, indicating that the immediate owner is owned or controlled by
another entity, then enter the following information:
Highest-level owner CAGE code:
________________________________________________________________________
Highest-level owner legal name:
________________________________________________________________________
(Do not use a ``doing business as'' name)
(End of provision)
[79 FR 31192, May 30, 2014, as amended at 81 FR 45867, July 14, 2016]
52.204-18 Commercial and Government Entity Code Maintenance.
As prescribed in 4.1804(c), use the following clause:
Commercial and Government Entity Code Maintenance (JUL 2016)
(a) Definition. As used in this clause--
Commercial and Government Entity (CAGE) code means--
(1) An identifier assigned to entities located in the United States
or its outlying areas by the Defense Logistics Agency (DLA) Commercial
and Government Entity (CAGE) Branch to identify a commercial or
government entity; or
(2) An identifier assigned by a member of the North Atlantic Treaty
Organization (NATO) or by the NATO Support and Procurement Agency (NSPA)
to entities located outside the United States and its outlying areas
that the DLA Commercial and Government Entity (CAGE) Branch records and
maintains in the CAGE master file. This type of code is known as a NATO
CAGE (NCAGE) code.
(b) Contractors shall ensure that the CAGE code is maintained
throughout the life of the contract. For contractors registered in the
System for Award Management (SAM), the DLA Commercial and Government
Entity (CAGE) Branch shall only modify data received from SAM in the
CAGE master file if the contractor initiates those changes via update of
its SAM registration. Contractors undergoing a novation or change-of-
name agreement shall notify the contracting officer in accordance with
subpart 42.12. The contractor shall communicate any change to the CAGE
code to the contracting officer within 30 days after the change, so that
a modification can be issued to update the CAGE code on the contract.
(c) Contractors located in the United States or its outlying areas
that are not registered in SAM shall submit written change requests to
the DLA Commercial and Government Entity (CAGE) Branch. Requests for
changes shall be provided at https://cage.dla.mil. Change requests to
the CAGE master file are accepted from the entity identified by the
code.
(d) Contractors located outside the United States and its outlying
areas that are not registered in SAM shall contact the appropriate
National Codification Bureau (points of contact available at http://
www.nato.int/structur/AC/135/main/links/contacts.htm) or NSPA at https:/
/eportal.nspa.nato.int/AC135Public/scage/CageList.aspx to request CAGE
changes.
(e) Additional guidance for maintaining CAGE codes is available at
https://cage.dla.mil.
(End of clause)
[79 FR 31192, May 30, 2014, as amended at 80 FR 38312, July 2, 2015; 81
FR 45867, July 14, 2016]
52.204-19 Incorporation by Reference of Representations and Certifications.
As prescribed in 4.1202(b), insert the following clause.
[[Page 44]]
Incorporation by Reference of Representations and Certifications (DEC
2014)
The Contractor's representations and certifications, including those
completed electronically via the System for Award Management (SAM), are
incorporated by reference into the contract.
(End of clause)
[79 FR 70342, Nov. 25, 2014]
52.204-20 Predecessor of Offeror.
As prescribed in 4.1804(d), insert the following provision:
Predecessor of Offeror (JUL 2016)
(a) Definitions. As used in this provision--
Commercial and Government Entity (CAGE) code means--
(1) An identifier assigned to entities located in the United States
or its outlying areas by the Defense Logistics Agency (DLA) Commercial
and Government Entity (CAGE) Branch to identify a commercial or
government entity; or
(2) An identifier assigned by a member of the North Atlantic Treaty
Organization (NATO) or by the NATO Support and Procurement Agency (NSPA)
to entities located outside the United States and its outlying areas
that the DLA Commercial and Government Entity (CAGE) Branch records and
maintains in the CAGE master file. This type of code is known as a NATO
CAGE (NCAGE) code.
Predecessor means an entity that is replaced by a successor and
includes any predecessors of the predecessor.
Successor means an entity that has replaced a predecessor by
acquiring the assets and carrying out the affairs of the predecessor
under a new name (often through acquisition or merger). The term
``successor'' does not include new offices/divisions of the same company
or a company that only changes its name. The extent of the
responsibility of the successor for the liabilities of the predecessor
may vary, depending on State law and specific circumstances.
(b) The Offeror represents that it [square] is or [square] is not a
successor to a predecessor that held a Federal contract or grant within
the last three years.
(c) If the Offeror has indicated ``is'' in paragraph (b) of this
provision, enter the following information for all predecessors that
held a Federal contract or grant within the last three years (if more
than one predecessor, list in reverse chronological order):
Predecessor CAGE code: ________ (or mark ``Unknown'').
Predecessor legal name: ________.
(Do not use a ``doing business as'' name).
(End of provision)
[81 FR 11991, Mar. 7, 2016, as amended at 81 FR 45867, July 14, 2016]
52.204-21 Basic Safeguarding of Covered Contractor Information Systems.
As prescribed in 4.1903, insert the following clause:
Basic Safeguarding of Covered Contractor Information Systems (JUN 2016)
(a) Definitions. As used in this clause--
Covered contractor information system means an information system
that is owned or operated by a contractor that processes, stores, or
transmits Federal contract information.
Federal contract information means information, not intended for
public release, that is provided by or generated for the Government
under a contract to develop or deliver a product or service to the
Government, but not including information provided by the Government to
the public (such as on public Web sites) or simple transactional
information, such as necessary to process payments.
Information means any communication or representation of knowledge
such as facts, data, or opinions, in any medium or form, including
textual, numerical, graphic, cartographic, narrative, or audiovisual
(Committee on National Security Systems Instruction (CNSSI) 4009).
Information system means a discrete set of information resources
organized for the collection, processing, maintenance, use, sharing,
dissemination, or disposition of information (44 U.S.C. 3502).
Safeguarding means measures or controls that are prescribed to
protect information systems.
(b) Safeguarding requirements and procedures. (1) The Contractor
shall apply the following basic safeguarding requirements and procedures
to protect covered contractor information systems. Requirements and
procedures for basic safeguarding of covered contractor information
systems shall include, at a minimum, the following security controls:
(i) Limit information system access to authorized users, processes
acting on behalf of authorized users, or devices (including other
information systems).
(ii) Limit information system access to the types of transactions
and functions that authorized users are permitted to execute.
(iii) Verify and control/limit connections to and use of external
information systems.
(iv) Control information posted or processed on publicly accessible
information systems.
(v) Identify information system users, processes acting on behalf of
users, or devices.
[[Page 45]]
(vi) Authenticate (or verify) the identities of those users,
processes, or devices, as a prerequisite to allowing access to
organizational information systems.
(vii) Sanitize or destroy information system media containing
Federal Contract Information before disposal or release for reuse.
(viii) Limit physical access to organizational information systems,
equipment, and the respective operating environments to authorized
individuals.
(ix) Escort visitors and monitor visitor activity; maintain audit
logs of physical access; and control and manage physical access devices.
(x) Monitor, control, and protect organizational communications
(i.e., information transmitted or received by organizational information
systems) at the external boundaries and key internal boundaries of the
information systems.
(xi) Implement subnetworks for publicly accessible system components
that are physically or logically separated from internal networks.
(xii) Identify, report, and correct information and information
system flaws in a timely manner.
(xiii) Provide protection from malicious code at appropriate
locations within organizational information systems.
(xiv) Update malicious code protection mechanisms when new releases
are available.
(xv) Perform periodic scans of the information system and real-time
scans of files from external sources as files are downloaded, opened, or
executed.
(2) Other requirements. This clause does not relieve the Contractor
of any other specific safeguarding requirements specified by Federal
agencies and departments relating to covered contractor information
systems generally or other Federal safeguarding requirements for
controlled unclassified information (CUI) as established by Executive
Order 13556.
(c) Subcontracts. The Contractor shall include the substance of this
clause, including this paragraph (c), in subcontracts under this
contract (including subcontracts for the acquisition of commercial
items, other than commercially available off-the-shelf items), in which
the subcontractor may have Federal contract information residing in or
transiting through its information system.
(End of clause)
[81 FR 30446, May 16, 2016]
52.204-22 Alternative Line Item Proposal.
As prescribed in 4.1008, insert the following provision:
Alternative Line Item Proposal (JAN 2017)
(a) The Government recognizes that the line items established in
this solicitation may not conform to the Offeror's practices. Failure to
correct these issues can result in difficulties in acceptance of
deliverables and processing payments. Therefore, the Offeror is invited
to propose alternative line items for which bids, proposals, or quotes
are requested in this solicitation to ensure that the resulting contract
is economically and administratively advantageous to the Government and
the Offeror.
(b) The Offeror may submit one or more additional proposals with
alternative line items, provided that alternative line items are
consistent with subpart 4.10 of the Federal Acquisition Regulation.
However, acceptance of an alternative proposal is a unilateral decision
made solely at the discretion of the Government. Offers that do not
comply with the line items specified in this solicitation may be
determined to be nonresponsive or unacceptable.
(End of provision)
[82 FR 4714, Jan. 13, 2017]
52.204-23 Prohibition on Contracting for Hardware, Software, and
Services Developed or Provided by Kaspersky Lab and Other Covered
Entities.
As prescribed in 4.2004, insert the following clause:
Prohibition on Contracting for Hardware, Software, and Services
Developed or Provided by Kaspersky Lab and Other Covered Entities (Jul
2018)
(a) Definitions. As used in this clause--
Covered article means any hardware, software, or service that--
(1) Is developed or provided by a covered entity;
(2) Includes any hardware, software, or service developed or
provided in whole or in part by a covered entity; or
(3) Contains components using any hardware or software developed in
whole or in part by a covered entity.
Covered entity means--
(1) Kaspersky Lab;
(2) Any successor entity to Kaspersky Lab;
(3) Any entity that controls, is controlled by, or is under common
control with Kaspersky Lab; or
(4) Any entity of which Kaspersky Lab has a majority ownership.
(b) Prohibition. Section 1634 of Division A of the National Defense
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91) prohibits
[[Page 46]]
Government use of any covered article. The Contractor is prohibited
from--
(1) Providing any covered article that the Government will use on or
after October 1, 2018; and
(2) Using any covered article on or after October 1, 2018, in the
development of data or deliverables first produced in the performance of
the contract.
(c) Reporting requirement. (1) In the event the Contractor
identifies a covered article provided to the Government during contract
performance, or the Contractor is notified of such by a subcontractor at
any tier or any other source, the Contractor shall report, in writing,
to the Contracting Officer or, in the case of the Department of Defense,
to the website at https://dibnet.dod.mil. For indefinite delivery
contracts, the Contractor shall report to the Contracting Officer for
the indefinite delivery contract and the Contracting Officer(s) for any
affected order or, in the case of the Department of Defense, identify
both the indefinite delivery contract and any affected orders in the
report provided at https://dibnet.dod.mil.
(2) The Contractor shall report the following information pursuant
to paragraph (c)(1) of this clause:
(i) Within 1 business day from the date of such identification or
notification: The contract number; the order number(s), if applicable;
supplier name; brand; model number (Original Equipment Manufacturer
(OEM) number, manufacturer part number, or wholesaler number); item
description; and any readily available information about mitigation
actions undertaken or recommended.
(ii) Within 10 business days of submitting the report pursuant to
paragraph (c)(1) of this clause: Any further available information about
mitigation actions undertaken or recommended. In addition, the
Contractor shall describe the efforts it undertook to prevent use or
submission of a covered article, any reasons that led to the use or
submission of the covered article, and any additional efforts that will
be incorporated to prevent future use or submission of covered articles.
(d) Subcontracts. The Contractor shall insert the substance of this
clause, including this paragraph (d), in all subcontracts, including
subcontracts for the acquisition of commercial items.
(End of clause)
[83 FR 28144, June 15, 2018]
52.205-52.206 [Reserved]
52.207-1 Notice of Standard Competition.
As prescribed in 7.305(a), insert the following provision:
Notice of Standard Competition (MAY 2006)
(a) This solicitation is part of a standard competition under Office
of Management and Budget Circular No. A-76 (Revised), Performance of
Commercial Activities, dated May 29, 2003 (hereafter ``the Circular''),
to determine whether to accomplish the specified work under contract or
by Government performance.
(b) The Government will evaluate private sector offers, the agency
tender, and public reimbursable tenders, as provided in this
solicitation and the Circular.
(c) A performance decision resulting from this standard competition
will be publicly announced in accordance with the Circular. If the
performance decision favors a private sector offeror, a contract will be
awarded. If the performance decision favors an agency or a public
reimbursable tender, the Contracting Officer shall establish,
respectively, either a Most Efficient Organization letter of obligation
or a fee-for-service agreement, as those terms are defined in the
Circular.
(d) As provided in the Circular, directly interested parties may
file contests, which are governed by the procedures in Federal
Acquisition Regulation 33.103. Until resolution of any contest, or the
expiration of the time for filing a contest, only legal agents for
directly interested parties shall have access to the certified standard
competition form, the agency tender, and public reimbursable tenders.
(End of provision)
[71 FR 20300, Apr. 19, 2006]
52.207-2 Notice of Streamlined Competition.
As prescribed in 7.305(b), insert the following provision:
Notice of Streamlined Competition (MAY 2006)
(a) This solicitation is part of a streamlined competition under
Office of Management and Budget Circular No. A-76 (Revised), Performance
of Commercial Activities, dated May 29, 2003 (hereafter ``the
Circular''), to determine whether to accomplish the specified work under
contract or by Government performance.
(b) The Government will evaluate the cost of private sector and
Agency or public reimbursable performance, as provided in this
solicitation and the Circular.
(c) A performance decision resulting from this streamlined
competition will be publicly announced in accordance with the Circular.
If the performance decision favors private sector performance, the
Contracting Officer
[[Page 47]]
shall either award a contract or issue a competitive solicitation for
private sector offers. If the performance decision favors Agency or
public reimbursable performance, the Agency shall establish,
respectively, either a letter of obligation or a fee-for-service
agreement, as those terms are defined in the Circular.
(End of provision)
[71 FR 20300, Apr. 19, 2006]
52.207-3 Right of First Refusal of Employment.
As prescribed in 7.305(c), insert the following clause:
Right of First Refusal of Employment (MAY 2006)
(a) The Contractor shall give Government personnel who have been or
will be adversely affected or separated as a result of award of this
contract the right of first refusal for employment openings under the
contract in positions for which they are qualified, if that employment
is consistent with post-Government employment conflict of interest
standards.
(b) Within 10 days after contract award, the Contracting Officer
will provide to the Contractor a list of all Government personnel who
have been or will be adversely affected or separated as a result of
award of this contract.
(c) The Contractor shall report to the Contracting Officer the names
of individuals identified on the list who are hired within 90 days after
contract performance begins. This report shall be forwarded within 120
days after contract performance begins.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 52 FR 9039, Mar. 20, 1987;
56 FR 55372, Oct. 25, 1991; 71 FR 20300, Apr. 19, 2006]
52.207-4 Economic Purchase Quantity--Supplies.
As prescribed in 7.203, insert the following provision:
Economic Purchase Quantity--Supplies (AUG 1987)
(a) Offerors are invited to state an opinion on whether the
quantity(ies) of supplies on which bids, proposals or quotes are
requested in this solicitation is (are) economically advantageous to the
Government.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(b) Each offeror who believes that acquisitions in different
quantities would be more advantageous is invited to recommend an
economic purchase quantity. If different quantities are recommended, a
total and a unit price must be quoted for applicable items. An economic
purchase quantity is that quantity at which a significant price break
occurs. If there are significant price breaks at different quantity
points, this information is desired as well.
Offeror Recommendations
------------------------------------------------------------------------
Price
Item Quantity quotation Total
------------------------------------------------------------------------
......... ........... .......
......... ........... .......
......... ........... .......
------------------------------------------------------------------------
(c) The information requested in this provision is being solicited
to avoid acquisitions in disadvantageous quantities and to assist the
Government in developing a data base for future acquisitions of these
items. However, the Government reserves the right to amend or cancel the
solicitation and resolicit with respect to any individual item in the
event quotations received and the Government's requirements indicate
that different quantities should be acquired.
(End of provision)
[50 FR 35479, Aug. 30, 1985, as amended at 52 FR 30078, Aug. 12, 1987]
52.207-5 Option To Purchase Equipment.
As prescribed in 7.404, insert a clause substantially the same as
the following:
Option To Purchase Equipment (FEB 1995)
(a) The Government may purchase the equipment provided on a lease or
rental basis under this contract. The Contracting Officer may exercise
this option only by providing a unilateral modification to the
Contractor. The effective date of the purchase will be specified in the
unilateral modification and may be any time during the period of the
contract, including any extensions thereto.
(b) Except for final payment and transfer of title to the
Government, the lease or rental portion of the contract becomes complete
and lease or rental charges shall be discontinued on the day immediately
preceding the effective date of purchase specified in the unilateral
modification required in paragraph (a) of this clause.
(c) The purchase conversion cost of the equipment shall be computed
as of the effective date specified in the unilateral modification
required in paragraph (a) of this clause, on the basis of the purchase
price set forth in the contract, minus the total purchase option credits
accumulated during the
[[Page 48]]
period of lease or rental, calculated by the formula contained elsewhere
in this contract.
(d) The accumulated purchase option credits available to determine
the purchase conversion cost will also include any credits accrued
during a period of lease or rental of the equipment under any previous
Government contract if the equipment has been on continuous lease or
rental. The movement of equipment from one site to another site shall be
``continuous rental.''
(End of clause)
[59 FR 67026, Dec. 28, 1994]
52.207-6 Solicitation of Offers from Small Business Concerns and
Small Business Teaming Arrangements or Joint Ventures
(Multiple-Award Contracts).
As prescribed in 7.107-6, insert the following provision:
Solicitation of Offers From Small Business Concerns and Small Business
Teaming Arrangements or Joint Ventures (Multiple-Award Contracts) (Oct
2016)
(a) Definition. ``Small Business Teaming Arrangement,'' as used in
this provision--
(1) Means an arrangement where--
(i) Two or more small business concerns have formed a joint venture;
or
(ii) A small business offeror agrees with one or more other small
business concerns to have them act as its subcontractors under a
specified Government contract. A Small Business Teaming Arrangement
between the offeror and its small business subcontractor(s) exists
through a written agreement between the parties that--
(A) Is specifically referred to as a ``Small Business Teaming
Arrangement''; and
(B) Sets forth the different responsibilities, roles, and
percentages (or other allocations) of work as it relates to the
acquisition;
(2)(i) For civilian agencies, may include two business concerns in a
mentor-prot[eacute]g[eacute] relationship when both the mentor and the
prot[eacute]g[eacute] are small or the prot[eacute]g[eacute] is small
and the concerns have received an exception to affiliation pursuant to
13 CFR 121.103(h)(3)(ii) or (iii).
(ii) For DoD, may include two business concerns in a mentor-
prot[eacute]g[eacute] relationship in the Department of Defense Pilot
Mentor-Prot[eacute]g[eacute] Program (see section 831 of the National
Defense Authorization Act for Fiscal Year 1991 (Pub. L. 101-510; 10
U.S.C. 2302 note)) when both the mentor and the prot[eacute]g[eacute]
are small. There is no exception to joint venture size affiliation for
offers received from teaming arrangements under the Department of
Defense Pilot Mentor-Prot[eacute]g[eacute] Program; and
(3) See 13 CFR 121.103(b)(9) regarding the exception to affiliation
for offers received from Small Business Teaming Arrangements in the case
of a solicitation of offers for a bundled contract with a reserve.
(b) The Government is soliciting and will consider offers from any
responsible source, including responsible small business concerns and
offers from Small Business Teaming Arrangements or joint ventures of
small business concerns.
[81 FR 67773, Sept. 30, 2016]
52.208-1--52.208-3 [Reserved]
52.208-4 Vehicle Lease Payments.
As prescribed in 8.1104(a), insert the following clause in
solicitations and contracts for leasing motor vehicles, unless the motor
vehicles are leased in foreign countries:
Vehicle Lease Payments (APR 1984)
(a) Upon the submission of proper invoices or vouchers, the
Government shall pay rent for each vehicle at the rate(s) specified in
this contract.
(b) Rent shall accrue from the beginning of this contract, or from
the date each vehicle is delivered to the Government, whichever is
later, and shall continue until the expiration of the contract term or
the termination of this contract. However, rent shall accrue only for
the period that each vehicle is in the possession of the Government.
(c) Rent shall not accrue for any vehicle that the Contracting
Officer determines does not comply with the Condition of Leased Vehicles
clause of this contract or otherwise does not comply with the
requirements of this contract, until the vehicle is replaced or the
defects are corrected.
(d) Rent shall not accrue for any vehicle during any period when the
vehicle is unavailable or unusable as a result of the Contractor's
failure to render services for the operation and maintenance of the
vehicle as prescribed by this contract.
(e) Rent stated in monthly terms shall be prorated on the basis of
1/30th of the monthly rate for each day the vehicle is in the
Government's possession. If this contract contains a mileage provision,
the Government shall pay rent as provided in the Schedule.
(End of clause)
52.208-5 Condition of Leased Vehicles.
As prescribed in 8.1104(b), insert the following clause in
solicitations and contracts for leasing motor vehicles,
[[Page 49]]
unless the motor vehicles are leased in foreign countries:
Condition of Leased Vehicles (APR 1984)
Each vehicle furnished under this contract shall be of good quality
and in safe operating condition, and shall comply with the Federal Motor
Vehicle Safety Standards (49 CFR 571) and State safety regulations
applicable to the vehicle. The Government shall accept or reject the
vehicles promptly after receipt. If the Contracting Officer determines
that any vehicle furnished is not in compliance with this contract, the
Contracting Officer shall promptly inform the Contractor in writing. If
the Contractor fails to replace the vehicle or correct the defects as
required by the Contracting Officer, the Government may (a) by contract
or otherwise, correct the defect or arrange for the lease of a similar
vehicle and shall charge or set off against the Contractor any excess
costs occasioned thereby, or (b) terminate the contract under the
Default clause of this contract.
(End of clause)
52.208-6 Marking of Leased Vehicles.
As prescribed in 8.1104(c), insert the following clause in
solicitations and contracts for leasing motor vehicles, unless the motor
vehicles are leased in foreign countries:
Marking of Leased Vehicles (APR 1984)
(a) The Government may place nonpermanent markings or decals,
identifying the using agency, on each side, and on the front and rear
bumpers, of any motor vehicle leased under this contract. The Government
shall use markings or decals that are removable without damage to the
vehicle.
(b) The Contractor may use placards for temporary identification of
vehicles except that the placards may not contain any references to the
Contractor that may be construed as advertising or endorsement by the
Government of the Contractor.
(End of clause)
52.208-7 Tagging of Leased Vehicles.
As prescribed in 8.1104(d), insert a clause substantially as
follows:
Tagging of Leased Vehicles (MAY 1986)
While it is the intent that vehicles leased under this contract will
operate on Federal tags, the Government reserves the right to utilize
State tags if necessary to accomplish its mission. Should State tags be
required, the Contractor shall furnish the Government documentation
necessary to allow acquisition of such tags. Federal tags are the
responsibility of the Government.
(End of clause)
[51 FR 19717, May 30, 1986]
52.208-8 Required Sources for Helium and Helium Usage Data.
As prescribed in 8.505, insert the following clause:
Required Sources for Helium and Helium Usage Data (AUG 2018)
(a) Definitions.
Bureau of Land Management, as used in this clause, means the
Department of the Interior, Bureau of Land Management, Amarillo Field
Office, Helium Operations, located at 801 South Fillmore Street, Suite
500, Amarillo, TX 79101-3545.
Federal helium supplier means a private helium vendor that has an
in-kind crude helium sales contract with the Bureau of Land Management
(BLM) and that is on the BLM Amarillo Field Office's Authorized List of
Federal Helium Suppliers available via the Internet at https://
www.blm.gov/programs/energy-and-minerals/helium/partners
Major helium requirement means an estimated refined helium
requirement greater than 200,000 standard cubic feet (scf) (measured at
14.7 pounds per square inch absolute pressure and 70 degrees Fahrenheit
temperature) of gaseous helium or 7510 liters of liquid helium delivered
to a helium use location per year.
(b) Requirements--(1) Contractors must purchase major helium
requirements from Federal helium suppliers, to the extent that supplies
are available.
(2) The Contractor shall provide to the Contracting Officer the
following data within 10 days after the Contractor or subcontractor
receives a delivery of helium from a Federal helium supplier--
(i) The name of the supplier;
(ii) The amount of helium purchased;
(iii) The delivery date(s); and
(iv) The location where the helium was used.
(c) Subcontracts. The Contractor shall insert this clause, including
this paragraph (c), in any subcontract or order that involves a major
helium requirement.
(End of clause)
[67 FR 13064, Mar. 20, 2002, as amended at 79 FR 24253, Apr. 29, 2014;
83 FR 42574, Aug. 22, 2018]
[[Page 50]]
52.208-9 Contractor Use of Mandatory Sources of Supply or Services.
As prescribed in 8.005, insert the following clause:
Contractor Use of Mandatory Sources of Supply or Services (MAY 2014)
(a) Certain supplies or services to be provided under this contract
for use by the Government are required by law to be obtained from
nonprofit agencies participating in the program operated by the
Committee for Purchase From People Who Are Blind or Severely Disabled
(the Committee) under 41 U.S.C. 8504. Additionally, certain of these
supplies are available from the Defense Logistics Agency (DLA), the
General Services Administration (GSA), or the Department of Veterans
Affairs (VA). The Contractor shall obtain mandatory supplies or services
to be provided for Government use under this contract from the specific
sources indicated in the contract schedule.
(b) The Contractor shall immediately notify the Contracting Officer
if a mandatory source is unable to provide the supplies or services by
the time required, or if the quality of supplies or services provided by
the mandatory source is unsatisfactory. The Contractor shall not
purchase the supplies or services from other sources until the
Contracting Officer has notified the Contractor that the Committee or an
AbilityOne central nonprofit agency has authorized purchase from other
sources.
(c) Price and delivery information for the mandatory supplies is
available from the Contracting Officer for the supplies obtained through
the DLA/GSA/VA distribution facilities. For mandatory supplies or
services that are not available from DLA/GSA/VA, price and delivery
information is available from the appropriate central nonprofit agency.
Payments shall be made directly to the source making delivery. Points of
contact for AbilityOne central nonprofit agencies are:
(1) National Industries for the Blind, 1310 Braddock Place,
Alexandria, VA 22314-1691, (703) 310-0500; and
(2) NISH, 8401 Old Courthouse Road, Vienna, VA 22182, (571) 226-
4660.
(End of clause)
[61 FR 2631, Jan. 26, 1996, as amended at 61 FR 67430, Dec. 20, 1996; 66
FR 65368, Dec. 18, 2001; 67 FR 56120, Aug. 30, 2002; 69 FR 34230, June
18, 2004; 71 FR 36941, June 28, 2006; 73 FR 53995, Sept. 17, 2008; 78 FR
80379, Dec. 31, 2013; 79 FR 24215, Apr. 29, 2014]
52.209-1 Qualification Requirements.
As prescribed in 9.206-2, insert the following clause:
Qualification Requirements (FEB 1995)
(a) Definition: Qualification Requirement, as used in this clause,
means a Government requirement for testing or other quality assurance
demonstration that must be completed before award.
(b) One or more qualification requirements apply to the supplies or
services covered by this contract. For those supplies or services
requiring qualification, whether the covered product or service is an
end item under this contract or simply a component of an end item, the
product, manufacturer, or source must have demonstrated that it meets
the standards prescribed for qualification before award of this
contract. The product, manufacturer, or source must be qualified at the
time of award whether or not the name of the product, manufacturer, or
source is actually included on a qualified products list, qualified
manufacturers list, or qualified bidders list. Offerors should contact
the agency activity designated below to obtain all requirements that
they or their products or services, or their subcontractors or their
products or services, must satisfy to become qualified and to arrange
for an opportunity to demonstrate their abilities to meet the standards
specified for qualification.
(Name)__________________________________________________________________
(Address)_______________________________________________________________
(c) If an offeror, manufacturer, source, product or service covered
by a qualification requirement has already met the standards specified,
the relevant information noted below should be provided.
Offeror's Name__________________________________________________________
Manufacturer's Name_____________________________________________________
Source's Name___________________________________________________________
Item Name_______________________________________________________________
Service Identification__________________________________________________
Test Number_____________________________________________________________
(to the extent known)
(d) Even though a product or service subject to a qualification
requirement is not itself an end item under this contract, the product,
manufacturer, or source must nevertheless be qualified at the time of
award of this contract. This is necessary whether the Contractor or a
subcontractor will ultimately provide the product or service in
question. If, after award, the Contracting Officer discovers that an
applicable qualification requirement was not in fact met at the time of
award, the Contracting Officer may either terminate this contract for
default or allow performance to continue if adequate consideration is
offered and the action is determined to be otherwise in the Government's
best interests.
(e) If an offeror, manufacturer, source, product or service has met
the qualification requirement but is not yet on a qualified products
list, qualified manufacturers list, or qualified bidders list, the
offeror must submit evidence of qualification prior to award
[[Page 51]]
of this contract. Unless determined to be in the Government's interest,
award of this contract shall not be delayed to permit an offeror to
submit evidence of qualification.
(f) Any change in location or ownership of the plant where a
previously qualified product or service was manufactured or performed
requires reevaluation of the qualification. Similarly, any change in
location or ownership of a previously qualified manufacturer or source
requires reevaluation of the qualification. The reevaluation must be
accomplished before the date of award.
(End of clause)
[53 FR 34229, Sept. 2, 1988; 53 FR 36028, Sept. 16, 1988, as amended at
59 FR 67056, Dec. 28, 1994]
52.209-2 Prohibition on Contracting With Inverted Domestic
Corporations--Representation.
As prescribed in 9.108-5(a), insert the following provision:
Prohibition on Contracting With Inverted Domestic Corporations--
Representation (NOV 2015)
(a) Definitions. Inverted domestic corporation and subsidiary have
the meaning given in the clause of this contract entitled Prohibition on
Contracting with Inverted Domestic Corporations (52.209-10).
(b) Government agencies are not permitted to use appropriated (or
otherwise made available) funds for contracts with either an inverted
domestic corporation, or a subsidiary of an inverted domestic
corporation, unless the exception at 9.108-2(b) applies or the
requirement is waived in accordance with the procedures at 9.108-4.
(c) Representation. The Offeror represents that--
(1) It [squ] is, [squ] is not an inverted domestic corporation; and
(2) It [squ] is, [squ] is not a subsidiary of an inverted domestic
corporation.
(End of provision)
[76 FR 31414, May 31, 2011, as amended at 79 FR 74557, Dec. 15, 2014; 80
FR 38307, July 2, 2015]
52.209-3 First Article Approval--Contractor Testing.
As prescribed in 9.308-1 (a) and (b), insert the following clause:
First Article Approval--Contractor Testing (SEP 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall test __ unit(s) of Lot/Item __ as specified
in this contract. At least __ calendar days before the beginning of
first article tests, the Contractor shall notify the Contracting
Officer, in writing, of the time and location of the testing so that the
Government may witness the tests.
(b) The Contractor shall submit the first article test report within
__ calendar days from the date of this contract to __ [insert address of
the Government activity to receive the report] marked ``FIRST ARTICLE
TEST REPORT: Contract No. __, Lot/Item No. __.'' Within __ calendar days
after the Government receives the test report, the Contracting Officer
shall notify the Contractor, in writing, of the conditional approval,
approval, or disapproval of the first article. The notice of conditional
approval or approval shall not relieve the Contractor from complying
with all requirements of the specifications and all other terms and
conditions of this contract. A notice of conditional approval shall
state any further action required of the Contractor. A notice of
disapproval shall cite reasons for the disapproval.
(c) If the first article is disapproved, the Contractor, upon
Government request, shall repeat any or all first article tests. After
each request for additional tests, the Contractor shall make any
necessary changes, modifications, or repairs to the first article or
select another first article for testing. All costs related to these
tests are to be borne by the Contractor, including any and all costs for
additional tests following a disapproval. The Contractor shall then
conduct the tests and deliver another report to the Government under the
terms and conditions and within the time specified by the Government.
The Government shall take action on this report within the time
specified in paragraph (b) above. The Government reserves the right to
require an equitable adjustment of the contract price for any extension
of the delivery schedule, or for any additional costs to the Government
related to these tests.
(d) If the Contractor fails to deliver any first article report on
time, or the Contracting Officer disapproves any first article, the
Contractor shall be deemed to have failed to make delivery within the
meaning of the Default clause of this contract.
(e) Unless otherwise provided in the contract, and if the approved
first article is not consumed or destroyed in testing, the Contractor
may deliver the approved first article as part of the contract quantity
if it meets all contract requirements for acceptance.
(f) If the Government does not act within the time specified in
paragraph (b) or (c)
[[Page 52]]
above, the Contracting Officer shall, upon timely written request from
the Contractor, equitably adjust under the Changes clause of this
contract the delivery or performance dates and/or the contract price,
and any other contractual term affected by the delay.
(g) Before first article approval, the acquisition of materials or
components for, or the commencement of production of, the balance of the
contract quantity is at the sole risk of the Contractor. Before first
article approval, the costs thereof shall not be allocable to this
contract for (1) progress payments, or (2) termination settlements if
the contract is terminated for the convenience of the Government.
(h) The Government may waive the requirement for first article
approval test where supplies identical or similar to those called for in
the schedule have been previously furnished by the offeror/contractor
and have been accepted by the Government. The offeror/contractor may
request a waiver.
(End of clause)
Alternate I (JAN 1997). As prescribed in 9.308-1 (a)(2) and (b)(2),
add the following paragraph (i) to the basic clause:
(i) The Contractor shall produce both the first article and the
production quantity at the same facility.
Alternate II (SEP 1989). As prescribed in 9.308-1 (a)(3) and (b)(3),
substitute the following paragraph (g) for paragraph (g) of the basic
clause:
(g) Before first article approval, the Contracting Officer may, by
written authorization, authorize the Contractor to acquire specific
materials or components or to commence production to the extent
essential to meet the delivery schedules. Until first article approval
is granted, only costs for the first article and costs incurred under
this authorization are allocable to this contract for (1) progress
payments, or (2) termination settlements if the contract is terminated
for the convenience of the Government. If first article tests reveal
deviations from contract requirements, the Contractor shall, at the
location designated by the Government, make the required changes or
replace all items produced under this contract at no change in the
contract price.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
55 FR 25531, June 21, 1990; 62 FR 238, Jan. 2, 1997]
52.209-4 First Article Approval--Government Testing.
As prescribed in 9.308-2 (a) and (b), insert the following clause:
First Article Approval--Government Testing (SEP 1989)
[Contracting Officer shall insert details]
(a) The Contractor shall deliver __ units(s) of Lot/Item __ within
__ calendar days from the date of this contract to the Government at ___
[insert name and address of the testing facility] for first article
tests. The shipping documentation shall contain this contract number and
the Lot/Item identification. The characteristics that the first article
must meet and the testing requirements are specified elsewhere in this
contract.
(b) Within __ calendar days after the Government receives the first
article, the Contracting Officer shall notify the Contractor, in
writing, of the conditional approval, approval, or disapproval of the
first article. The notice of conditional approval or approval shall not
relieve the Contractor from complying with all requirements of the
specifications and all other terms and conditions of this contract. A
notice of conditional approval shall state any further action required
of the Contractor. A notice of disapproval shall cite reasons for the
disapproval.
(c) If the first article is disapproved, the Contractor, upon
Government request, shall submit an additional first article for
testing. After each request, the Contractor shall make any necessary
changes, modifications, or repairs to the first article or select
another first article for testing. All costs related to these tests are
to be borne by the Contractor, including any and all costs for
additional tests following a disapproval. The Contractor shall furnish
any additional first article to the Government under the terms and
conditions and within the time specified by the Government. The
Government shall act on this first article within the time limit
specified in paragraph (b) above. The Government reserves the right to
require an equitable adjustment of the contract price for any extension
of the delivery schedule or for any additional costs to the Government
related to these tests.
(d) If the Contractor fails to deliver any first article on time, or
the Contracting Officer disapproves any first article, the Contractor
shall be deemed to have failed to make delivery within the meaning of
the Default clause of this contract.
(e) Unless otherwise provided in the contract, the Contractor--
(1) May deliver the approved first article as a part of the contract
quantity, provided it meets all contract requirements for acceptance and
was not consumed or destroyed in testing; and
(2) Shall remove and dispose of any first article from the
Government test facility at the Contractor's expense.
(f) If the Government does not act within the time specified in
paragraph (b) or (c)
[[Page 53]]
above, the Contracting Officer shall, upon timely written request from
the Contractor, equitably adjust under the Changes clause of this
contract the delivery or performance dates and/or the contract price,
and any other contractual term affected by the delay.
(g) The Contractor is responsible for providing operating and
maintenance instructions, spare parts support, and repair of the first
article during any first article test.
(h) Before first article approval, the acquisition of materials or
components for, or the commencement of production of, the balance of the
contract quantity is at the sole risk of the Contractor. Before first
article approval, the costs thereof shall not be allocable to this
contract for (1) progress payments, or (2) termination settlements if
the contract is terminated for the convenience of the Government.
(i) The Government may waive the requirement for first article
approval test where supplies identical or similar to those called for in
the schedule have been previously furnished by the Offeror/Contractor
and have been accepted by the Government. The Offeror/Contractor may
request a waiver.
(End of clause)
Alternate I (JAN 1997). As prescribed in 9.308-2 (a)(2) and (b)(2),
add the following paragraph (j) to the basic clause:
(j) The Contractor shall produce both the first article and the
production quantity at the same facility.
Alternate II (SEP 1989). As prescribed in 9.308-2 (a)(3) and (b)(3)
substitute the following paragraph (h) for paragraph (h) of the basic
clause:
(h) Before first article approval, the Contracting Officer may, by
written authorization, authorize the Contractor to acquire specific
materials or components or to commence production to the extent
essential to meet the delivery schedules. Until first article approval
is granted, only costs for the first article and costs incurred under
this authorization are allocable to this contract for (1) progress
payments, or (2) termination settlements if the contract is terminated
for the convenience of the Government. If first article tests reveal
deviations from contract requirements, the Contractor shall, at the
location designated by the Government, make the required changes or
replace all items produced under this contract at no change in the
contract price.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
62 FR 238, Jan. 2, 1997]
52.209-5 Certification Regarding Responsibility Matters.
As prescribed in 9.104-7(a), insert the following provision:
Certification Regarding Responsibility Matters (OCT 2015)
(a)(1) The Offeror certifies, to the best of its knowledge and
belief, that--
(i) The Offeror and/or any of its Principals--
(A) Are ( ) are not ( ) presently debarred, suspended, proposed for
debarment, or declared ineligible for the award of contracts by any
Federal agency;
(B) Have ( ) have not ( ), within a three-year period preceding this
offer, been convicted of or had a civil judgment rendered against them
for: commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, State,
or local) contract or subcontract; violation of Federal or State
antitrust statutes relating to the submission of offers; or commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, making false statements, tax evasion, violating Federal
criminal tax laws, or receiving stolen property (if offeror checks
``have'', the offeror shall also see 52.209-7, if included in this
solicitation);
(C) Are ( ) are not ( ) presently indicted for, or otherwise
criminally or civilly charged by a governmental entity with, commission
of any of the offenses enumerated in subdivision (a)(1)(i)(B) of this
provision; and
(D) Have [squ] , have not [squ] ,within a three-year period
preceding this offer, been notified of any delinquent Federal taxes in
an amount that exceeds $3,500 for which the liability remains
unsatisfied.
(1) Federal taxes are considered delinquent if both of the following
criteria apply:
(i) The tax liability is finally determined. The liability is
finally determined if it has been assessed. A liability is not finally
determined if there is a pending administrative or judicial challenge.
In the case of a judicial challenge to the liability, the liability is
not finally determined until all judicial appeal rights have been
exhausted.
(ii) The taxpayer is delinquent in making payment. A taxpayer is
delinquent if the taxpayer has failed to pay the tax liability when full
payment was due and required. A taxpayer is not delinquent in cases
where enforced collection action is precluded.
(2) Examples. (i) The taxpayer has received a statutory notice of
deficiency, under I.R.C. Sec. 6212, which entitles the taxpayer to seek
Tax Court review of a proposed tax deficiency. This is not a delinquent
tax because it is not a final tax liability. Should the taxpayer seek
Tax Court review, this will not be a final tax liability until the
taxpayer has exercised all judicial appeal rights.
[[Page 54]]
(ii) The IRS has filed a notice of Federal tax lien with respect to
an assessed tax liability, and the taxpayer has been issued a notice
under I.R.C. Sec. 6320 entitling the taxpayer to request a hearing with
the IRS Office of Appeals contesting the lien filing, and to further
appeal to the Tax Court if the IRS determines to sustain the lien
filing. In the course of the hearing, the taxpayer is entitled to
contest the underlying tax liability because the taxpayer has had no
prior opportunity to contest the liability. This is not a delinquent tax
because it is not a final tax liability. Should the taxpayer seek tax
court review, this will not be a final tax liability until the taxpayer
has exercised all judicial appeal rights.
(iii) The taxpayer has entered into an installment agreement
pursuant to I.R.C. Sec. 6159. The taxpayer is making timely payments
and is in full compliance with the agreement terms. The taxpayer is not
delinquent because the taxpayer is not currently required to make full
payment.
(iv) The taxpayer has filed for bankruptcy protection. The taxpayer
is not delinquent because enforced collection action is stayed under 11
U.S.C. 362 (the Bankruptcy Code).
(ii) The Offeror has ( ) has not ( ), within a 3-year period
preceding this offer, had one or more contracts terminated for default
by any Federal agency.
(2) Principal, for the purposes of this certification, means an
officer, director, owner, partner, or a person having primary management
or supervisory responsibilities within a business entity (e.g., general
manager; plant manager; head of a division or business segment; and
similar positions).
(b) The Offeror shall provide immediate written notice to the
Contracting Officer if, at any time prior to contract award, the Offeror
learns that its certification was erroneous when submitted or has become
erroneous by reason of changed circumstances.
(c) A certification that any of the items in paragraph (a) of this
provision exists will not necessarily result in withholding of an award
under this solicitation. However, the certification will be considered
in connection with a determination of the Offeror's responsibility.
Failure of the Offeror to furnish a certification or provide such
additional information as requested by the Contracting Officer may
render the Offeror nonresponsible.
(d) Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render, in good faith,
the certification required by paragraph (a) of this provision. The
knowledge and information of an Offeror is not required to exceed that
which is normally possessed by a prudent person in the ordinary course
of business dealings.
(e) The certification in paragraph (a) of this provision is a
material representation of fact upon which reliance was placed when
making award. If it is later determined that the Offeror knowingly
rendered an erroneous certification, in addition to other remedies
available to the Government, the Contracting Officer may terminate the
contract resulting from this solicitation for default.
(End of provision)
[54 FR 19827, May 8, 1989, as amended at 61 FR 2633, Jan. 26, 1996; 65
FR 80265, Dec. 20, 2000; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66990,
Dec. 27, 2001; 73 FR 21798, Apr. 22, 2008; 73 FR 67092, Nov. 12, 2008;
75 FR 14066, Mar. 23, 2010; 80 FR 38299, July 2, 2015]
52.209-6 Protecting the Government's Interest When Subcontracting
With Contractors Debarred, Suspended, or Proposed for Debarment.
As prescribed in 9.409, insert the following clause:
Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, or Proposed for Debarment (OCT 2015)
(a) Definition. Commercially available off-the-shelf (COTS) item, as
used in this clause--
(1) Means any item of supply (including construction material) that
is--
(i) A commercial item (as defined in paragraph (1) of the definition
in FAR 2.101);
(ii) Sold in substantial quantities in the commercial marketplace;
and
(iii) Offered to the Government, under a contract or subcontract at
any tier, without modification, in the same form in which it is sold in
the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4),
such as agricultural products and petroleum products.
(b) The Government suspends or debars Contractors to protect the
Government's interests. Other than a subcontract for a commercially
available off-the-shelf item, the Contractor shall not enter into any
subcontract, in excess of $35,000 with a Contractor that is debarred,
suspended, or proposed for debarment by any executive agency unless
there is a compelling reason to do so.
(c) The Contractor shall require each proposed subcontractor whose
subcontract will exceed $35,000, other than a subcontractor providing a
commercially available off-the-shelf item, to disclose to the
Contractor, in writing, whether as of the time of award of the
subcontract, the subcontractor, or its principals, is or is not
debarred, suspended, or proposed for debarment by the Federal
Government.
(d) A corporate officer or a designee of the Contractor shall notify
the Contracting Officer, in writing, before entering into a subcontract
with a party (other than a subcontractor providing a commercially
available
[[Page 55]]
off-the-shelf item) that is debarred, suspended, or proposed for
debarment (see FAR 9.404 for information on the System for Award
Management (SAM) Exclusions). The notice must include the following:
(1) The name of the subcontractor.
(2) The Contractor's knowledge of the reasons for the subcontractor
being listed with an exclusion in SAM.
(3) The compelling reason(s) for doing business with the
subcontractor notwithstanding its being listed with an exclusion in SAM.
(4) The systems and procedures the Contractor has established to
ensure that it is fully protecting the Government's interests when
dealing with such subcontractor in view of the specific basis for the
party's debarment, suspension, or proposed debarment.
(e) Subcontracts. Unless this is a contract for the acquisition of
commercial items, the Contractor shall include the requirements of this
clause, including this paragraph (e) (appropriately modified for the
identification of the parties), in each subcontract that--
(1) Exceeds $35,000 in value; and
(2) Is not a subcontract for commercially available off-the-shelf
items.
(End of clause)
[56 FR 29138, June 25, 1991, as amended at 57 FR 44269, Sept. 24, 1992;
60 FR 33066, June 26, 1995; 60 FR 34761, July 3, 1995; 69 FR 76349, Dec.
20, 2004; 71 FR 57369, Sept. 28, 2006; 74 FR 65615, Dec. 10, 2009; 75 FR
77741, Dec. 13, 2010; 78 FR 37681, June 21, 2013; 78 FR 46795, Aug. 1,
2013; 80 FR 38299, July 2, 2015]
52.209-7 Information Regarding Responsibility Matters.
As prescribed at 9.104-7(b), insert the following provision:
Information Regarding Responsibility Matters (JUL 2013)
(a) Definitions. As used in this provision--
Administrative proceeding means a non-judicial process that is
adjudicatory in nature in order to make a determination of fault or
liability (e.g., Securities and Exchange Commission Administrative
Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed
Services Board of Contract Appeals Proceedings). This includes
administrative proceedings at the Federal and State level but only in
connection with performance of a Federal contract or grant. It does not
include agency actions such as contract audits, site visits, corrective
plans, or inspection of deliverables.
Federal contracts and grants with total value greater than
$10,000,000 means--
(1) The total value of all current, active contracts and grants,
including all priced options; and
(2) The total value of all current, active orders including all
priced options under indefinite-delivery, indefinite-quantity, 8(a), or
requirements contracts (including task and delivery and multiple-award
Schedules).
Principal means an officer, director, owner, partner, or a person
having primary management or supervisory responsibilities within a
business entity (e.g., general manager; plant manager; head of a
division or business segment; and similar positions).
(b) The offeror [ ] has [ ] does not have current active Federal
contracts and grants with total value greater than $10,000,000.
(c) If the offeror checked ``has'' in paragraph (b) of this
provision, the offeror represents, by submission of this offer, that the
information it has entered in the Federal Awardee Performance and
Integrity Information System (FAPIIS) is current, accurate, and complete
as of the date of submission of this offer with regard to the following
information:
(1) Whether the offeror, and/or any of its principals, has or has
not, within the last five years, in connection with the award to or
performance by the offeror of a Federal contract or grant, been the
subject of a proceeding, at the Federal or State level that resulted in
any of the following dispositions:
(i) In a criminal proceeding, a conviction.
(ii) In a civil proceeding, a finding of fault and liability that
results in the payment of a monetary fine, penalty, reimbursement,
restitution, or damages of $5,000 or more.
(iii) In an administrative proceeding, a finding of fault and
liability that results in--
(A) The payment of a monetary fine or penalty of $5,000 or more; or
(B) The payment of a reimbursement, restitution, or damages in
excess of $100,000.
(iv) In a criminal, civil, or administrative proceeding, a
disposition of the matter by consent or compromise with an
acknowledgment of fault by the Contractor if the proceeding could have
led to any of the outcomes specified in paragraphs (c)(1)(i),
(c)(1)(ii), or (c)(1)(iii) of this provision.
(2) If the offeror has been involved in the last five years in any
of the occurrences listed in (c)(1) of this provision, whether the
offeror has provided the requested information with regard to each
occurrence.
(d) The offeror shall post the information in paragraphs (c)(1)(i)
through (c)(1)(iv) of this provision in FAPIIS as required through
maintaining an active registration in the System for Award Management
database via https://www.acquisition.gov (see 52.204-7).
(End of provision)
[75 FR 14067, Mar. 23, 2010, as amended at 76 FR 4190, Jan. 24, 2011; 77
FR 188, Jan. 3, 2012; 78 FR 37681, June 21, 2013]
[[Page 56]]
Effective Date Note: At 83 FR 48699, Sept. 26, 2018, section 52.209-
7 was amended by revising the date of the provision and removing from
paragraph (d) ``Management database via https://www.acquisition.gov''
and adding ``Management, which can be accessed via https://www.sam.gov''
in its place, effective Oct. 26, 2018. For the convenience of the user,
the revised text is set forth as follows:
52.209-7 Information Regarding Responsibility Matters.
* * * * *
Information Regarding Responsibility Matters (Oct 2018)
* * * * *
52.209-8 [Reserved]
52.209-9 Updates of Publicly Available Information Regarding
Responsibility Matters.
As prescribed at 9.104-7(c), insert the following clause:
Updates of Publicly Available Information Regarding Responsibility
Matters (JUL 2013)
(a) The Contractor shall update the information in the Federal
Awardee Performance and Integrity Information System (FAPIIS) on a semi-
annual basis, throughout the life of the contract, by posting the
required information in the System for Award Management database via
https://www.acquisition.gov
(b) As required by section 3010 of the Supplemental Appropriations
Act, 2010 (Pub. L. 111-212), all information posted in FAPIIS on or
after April 15, 2011, except past performance reviews, will be publicly
available. FAPIIS consists of two segments--
(1) The non-public segment, into which Government officials and the
Contractor post information, which can only be viewed by--
(i) Government personnel and authorized users performing business on
behalf of the Government; or
(ii) The Contractor, when viewing data on itself; and
(2) The publicly-available segment, to which all data in the non-
public segment of FAPIIS is automatically transferred after a waiting
period of 14 calendar days, except for--
(i) Past performance reviews required by subpart 42.15;
(ii) Information that was entered prior to April 15, 2011; or
(iii) Information that is withdrawn during the 14-calendar-day
waiting period by the Government official who posted it in accordance
with paragraph (c)(1) of this clause.
(c) The Contractor will receive notification when the Government
posts new information to the Contractor's record.
(1) If the Contractor asserts in writing within 7 calendar days, to
the Government official who posted the information, that some of the
information posted to the non-public segment of FAPIIS is covered by a
disclosure exemption under the Freedom of Information Act, the
Government official who posted the information must within 7 calendar
days remove the posting from FAPIIS and resolve the issue in accordance
with agency Freedom of Information procedures, prior to reposting the
releasable information. The contractor must cite 52.209-9 and request
removal within 7 calendar days of the posting to FAPIIS.
(2) The Contractor will also have an opportunity to post comments
regarding information that has been posted by the Government. The
comments will be retained as long as the associated information is
retained, i.e., for a total period of 6 years. Contractor comments will
remain a part of the record unless the Contractor revises them.
(3) As required by section 3010 of Pub. L. 111-212, all information
posted in FAPIIS on or after April 15, 2011, except past performance
reviews, will be publicly available.
(d) Public requests for system information posted prior to April 15,
2011, will be handled under Freedom of Information Act procedures,
including, where appropriate, procedures promulgated under E.O. 12600.
(End of clause)
[76 FR 4191, Jan. 24, 2011, as amended at 77 FR 188, 202, Jan. 3, 2012;
77 FR 12949, Mar. 2, 2012; 78 FR 37681, June 21, 2013]
Effective Date Note: At 83 FR 48699, Sept. 26, 2018, section 52.209-
9 was amended by revising the date of the clause and removing from
paragraph (a) ``Management database via https://www.acquisition.gov''
and adding ``Management via https://www.sam.gov'' in its place,
effective Oct, 26, 2018. For the convenience of the user, the revised
text is set forth as follows:
52.209-9 Updates of Publicly Available Information Regarding
Responsibility Matters.
* * * * *
Updates of Publicly Available Information Regarding Responsibility
Matters (Oct 2018)
* * * * *
[[Page 57]]
52.209-10 Prohibition on Contracting With Inverted Domestic
Corporations.
As prescribed in 9.108-5(b), insert the following clause:
Prohibition on Contracting With Inverted Domestic Corporations (NOV
2015)
(a) Definitions. As used in this clause--
Inverted domestic corporation means a foreign incorporated entity
that meets the definition of an inverted domestic corporation under 6
U.S.C. 395(b), applied in accordance with the rules and definitions of 6
U.S.C. 395(c).
Subsidiary means an entity in which more than 50 percent of the
entity is owned--
(1) Directly by a parent corporation; or
(2) Through another subsidiary of a parent corporation.
(b) If the contractor reorganizes as an inverted domestic
corporation or becomes a subsidiary of an inverted domestic corporation
at any time during the period of performance of this contract, the
Government may be prohibited from paying for Contractor activities
performed after the date when it becomes an inverted domestic
corporation or subsidiary. The Government may seek any available
remedies in the event the Contractor fails to perform in accordance with
the terms and conditions of the contract as a result of Government
action under this clause.
(c) Exceptions to this prohibition are located at 9.108-2.
(d) In the event the Contractor becomes either an inverted domestic
corporation, or a subsidiary of an inverted domestic corporation during
contract performance, the Contractor shall give written notice to the
Contracting Officer within five business days from the date of the
inversion event.
(End of clause)
[76 FR 31414, May 31, 2011, as amended at 77 FR 27548, May 10, 2012; 79
FR 74557, Dec. 15, 2014; 80 FR 38307, July 2, 2015]
52.209-11 Representation by Corporations Regarding Delinquent Tax
Liability or a Felony Conviction under any Federal Law.
As prescribed in 9.104-7(d), insert the following provision:
Representation by Corporations Regarding Delinquent Tax Liability or a
Felony Conviction under any Federal Law (FEB 2016)
(a) As required by sections 744 and 745 of Division E of the
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L.
113-235), and similar provisions, if contained in subsequent
appropriations acts, the Government will not enter into a contract with
any corporation that--
(1) Has any unpaid Federal tax liability that has been assessed, for
which all judicial and administrative remedies have been exhausted or
have lapsed, and that is not being paid in a timely manner pursuant to
an agreement with the authority responsible for collecting the tax
liability, where the awarding agency is aware of the unpaid tax
liability, unless an agency has considered suspension or debarment of
the corporation and made a determination that suspension or debarment is
not necessary to protect the interests of the Government; or
(2) Was convicted of a felony criminal violation under any Federal
law within the preceding 24 months, where the awarding agency is aware
of the conviction, unless an agency has considered suspension or
debarment of the corporation and made a determination that this action
is not necessary to protect the interests of the Government.
(b) The Offeror represents that--
(1) It is [ ] is not [ ] a corporation that has any unpaid Federal
tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is
not being paid in a timely manner pursuant to an agreement with the
authority responsible for collecting the tax liability; and
(2) It is [ ] is not [ ] a corporation that was convicted of a
felony criminal violation under a Federal law within the preceding 24
months.
(End of provision)
[80 FR 75906, Dec. 4, 2015]
52.209-12 Certification Regarding Tax Matters.
As prescribed in 9.104-7(e), insert the following provision:
Certification Regarding Tax Matters (FEB 2016)
(a) This provision implements section 523 of Division B of the
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L.
113-235), and similar provisions, if contained in subsequent
appropriations acts.
(b) If the Offeror is proposing a total contract price that will
exceed $5,000,000 (including options), the Offeror shall certify that,
to the best of its knowledge and belief, it--
(1) Has [ ] filed all Federal tax returns required during the three
years preceding the certification;
(2) Has not [ ] been convicted of a criminal offense under the
Internal Revenue Code of 1986; and
(3) Has not [ ], more than 90 days prior to certification, been
notified of any unpaid
[[Page 58]]
Federal tax assessment for which the liability remains unsatisfied,
unless the assessment is the subject of an installment agreement or
offer in compromise that has been approved by the Internal Revenue
Service and is not in default, or the assessment is the subject of a
non-frivolous administrative or judicial proceeding.
(End of provision)
[80 FR 75906, Dec. 4, 2015]
52.209-13 Violation of Arms Control Treaties or Agreements
--Certification.
As prescribed in 9.109-5, insert the following provision:
Violation of Arms Control Treaties or Agreements--Certification (JUN
2018)
(a) This provision does not apply to acquisitions below the
simplified acquisition threshold or to acquisitions of commercial items
as defined at FAR 2.101.
(b) Certification. [Offeror shall check either (1) or (2).]
____ (1) The Offeror certifies that--
(i) It does not engage and has not engaged in any activity that
contributed to or was a significant factor in the President's or
Secretary of State's determination that a foreign country is in
violation of its obligations undertaken in any arms control,
nonproliferation, or disarmament agreement to which the United States is
a party, or is not adhering to its arms control, nonproliferation, or
disarmament commitments in which the United States is a participating
state. The determinations are described in the most recent unclassified
annual report provided to Congress pursuant to section 403 of the Arms
Control and Disarmament Act (22 U.S.C. 2593a). The report is available
via the internet at https://www.state.gov/t/avc/rls/rpt/; and
(ii) No entity owned or controlled by the Offeror has engaged in any
activity that contributed to or was a significant factor in the
President's or Secretary of State's determination that a foreign country
is in violation of its obligations undertaken in any arms control,
nonproliferation, or disarmament agreement to which the United States is
a party, or is not adhering to its arms control, nonproliferation, or
disarmament commitments in which the United States is a participating
state. The determinations are described in the most recent unclassified
annual report provided to Congress pursuant to section 403 of the Arms
Control and Disarmament Act (22 U.S.C. 2593a). The report is available
via the internet at https://www.state.gov/t/avc/rls/rpt/; or
____ (2) The Offeror is providing separate information with its
offer in accordance with paragraph (d)(2) of this provision.
(c) Procedures for reviewing the annual unclassified report (see
paragraph (b)(1) of this provision). For clarity, references to the
report in this section refer to the entirety of the annual unclassified
report, including any separate reports that are incorporated by
reference into the annual unclassified report.
(1) Check the table of contents of the annual unclassified report
and the country section headings of the reports incorporated by
reference to identify the foreign countries listed there. Determine
whether the Offeror or any person owned or controlled by the Offeror may
have engaged in any activity related to one or more of such foreign
countries.
(2) If there may have been such activity, review all findings in the
report associated with those foreign countries to determine whether or
not each such foreign country was determined to be in violation of its
obligations undertaken in an arms control, nonproliferation, or
disarmament agreement to which the United States is a party, or to be
not adhering to its arms control, nonproliferation, or disarmament
commitments in which the United States is a participating state. For
clarity, in the annual report an explicit certification of non-
compliance is equivalent to a determination of violation. However, the
following statements in the annual report are not equivalent to a
determination of violation:
(i) An inability to certify compliance.
(ii) An inability to conclude compliance.
(iii) A statement about compliance concerns.
(3) If so, determine whether the Offeror or any person owned or
controlled by the Offeror has engaged in any activity that contributed
to or is a significant factor in the determination in the report that
one or more of these foreign countries is in violation of its
obligations undertaken in an arms control, nonproliferation, or
disarmament agreement to which the United States is a party, or is not
adhering to its arms control, nonproliferation, or disarmament
commitments in which the United States is a participating state. Review
the narrative for any such findings reflecting a determination of
violation or non-adherence related to those foreign countries in the
report, including the finding itself, and to the extent necessary, the
conduct giving rise to the compliance or adherence concerns, the
analysis of compliance or adherence concerns, and efforts to resolve
compliance or adherence concerns.
(4) The Offeror may submit any questions with regard to this report
by email to [email protected]. To the extent feasible, the
Department of State will respond to such email inquiries within 3
business days.
[[Page 59]]
(d) Do not submit an offer unless--
(1) A certification is provided in paragraph (b)(1) of this
provision and submitted with the offer; or
(2) In accordance with paragraph (b)(2) of this provision, the
Offeror provides with its offer information that the President of the
United States has--
(i) Waived application under U.S.C. 2593e(d) or (e); or
(ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has
ceased all activities for which measures were imposed under 22
U.S.C.2593e(b).
(e) Remedies. The certification in paragraph (b)(1) of this
provision is a material representation of fact upon which reliance was
placed when making award. If it is later determined that the Offeror
knowingly submitted a false certification, in addition to other remedies
available to the Government, such as suspension or debarment, the
Contracting Officer may terminate any contract resulting from the false
certification.
(End of provision)
[83 FR 28149, June 15, 2018]
52.210-1 Market Research.
As prescribed in 10.003, insert the following clause:
Market Research (APR 2011)
(a) Definition. As used in this clause--
Commercial item and nondevelopmental item have the meaning contained
in Federal Acquisition Regulation 2.101.
(b) Before awarding subcontracts over the simplified acquisition
threshold for items other than commercial items, the Contractor shall
conduct market research to--
(1) Determine if commercial items or, to the extent commercial items
suitable to meet the agency's needs are not available, nondevelopmental
items are available that--
(i) Meet the agency's requirements;
(ii) Could be modified to meet the agency's requirements; or
(iii) Could meet the agency's requirements if those requirements
were modified to a reasonable extent; and
(2) Determine the extent to which commercial items or
nondevelopmental items could be incorporated at the component level.
(End of clause)
[76 FR 14565, Mar. 16, 2011]
52.211-1 Availability of Specifications Listed in the GSA Index of
Federal Specifications, Standards and Commercial Item Descriptions,
FPMR Part 101-29.
As prescribed in 11.204(a), insert the following provision:
Availability of Specifications Listed in the GSA Index of Federal
Specifications, Standards and Commercial Item Descriptions, FPMR Part
101-29 (AUG 1998)
(a) The GSA Index of Federal Specifications, Standards and
Commercial Item Descriptions, FPMR Part 101-29, and copies of
specifications, standards, and commercial item descriptions cited in
this solicitation may be obtained for a fee by submitting a request to--
GSA Federal Supply Service, Specifications Section, Suite 8100, 470 East
L'Enfant Plaza, SW, Washington, DC 20407, Telephone (202) 619-8925,
Facsimile (202) 619-8978.
(b) If the General Services Administration, Department of
Agriculture, or Department of Veterans Affairs issued this solicitation,
a single copy of specifications, standards, and commercial item
descriptions cited in this solicitation may be obtained free of charge
by submitting a request to the addressee in paragraph (a) of this
provision. Additional copies will be issued for a fee.
(End of provision)
[63 FR 34063, June 22, 1998]
52.211-2 Availability of Specifications, Standards, and Data
Item Descriptions Listed in the Acquisition Streamlining and
Standardization Information System (ASSIST).
As prescribed in 11.204(b), insert the following provision:
Availability of Specifications, Standards, and Data Item Descriptions
Listed in the Acquisition Streamlining and Standardization Information
System (ASSIST) (APR 2014)
(a) Most unclassified Defense specifications and standards may be
downloaded from the following ASSIST websites:
(1) ASSIST (https://assist.dla.mil/online/start/;
(2) Quick Search (http://quicksearch.dla.mil/;
(3) ASSISTdocs.com (http://assistdocs.com).
(b) Documents not available from ASSIST may be ordered from the
Department of Defense Single Stock Point (DoDSSP) by--
(1) Using the ASSIST Shopping Wizard (https://assist.dla.mil/wizard/
index.cfm);
(2) Phoning the DoDSSP Customer Service Desk (215) 697-2179, Mon-
Fri, 0730 to 1600 EST; or
[[Page 60]]
(3) Ordering from DoDSSP, Building 4, Section D, 700 Robbins Avenue,
Philadelphia, PA 19111-5094, Telephone (215) 697-2667/2179, Facsimile
(215) 697-1462.
(End of provision)
[71 FR 228, Jan. 3, 2006, as amended at 79 FR 24253, Apr. 29, 2014]
52.211-3 Availability of Specifications Not Listed in the GSA Index
of Federal Specifications, Standards and Commercial Item Descriptions.
As prescribed in 11.204(c), insert a provision substantially the
same as the following:
Availability of Specifications Not Listed in the GSA Index of Federal
Specifications, Standards and Commercial Item Descriptions (JUN 1988)
The specifications cited in this solicitation may be obtained from:
(Activity) address)_____________________________________________________
________________________________________________________________________
________________________________________________________________________
(Telephone number)______________________________________________________
(Person to be contacted)________________________________________________
The request should identify the solicitation number and the
specification requested by date, title, and number, as cited in the
solicitation.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 53 FR 17860, May 18, 1988.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 61 FR
31663, June 20, 1996]
52.211-4 Availability for Examination of Specifications Not Listed
in the GSA Index of Federal Specifications, Standards and Commercial
Item Descriptions.
As prescribed in 11.204(d), insert a provision substantially the
same as the following:
Availability for Examination of Specifications Not Listed in the GSA
Index of Federal Specifications, Standards and Commercial Item
Descriptions (JUN 1988)
The specifications cited in this solicitation are not available for
distribution. However, they may be examined at the following
location(s):
(ACTIVITY)______________________________________________________________
(COMPLETE ADDRESS)______________________________________________________
________________________________________________________________________
________________________________________________________________________
(TELEPHONE NUMBER)______________________________________________________
(PERSON TO BE CONTACTED)________________________________________________
(TIME(S) FOR VIEWING)___________________________________________________
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 53 FR 17860, May 18, 1988.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 61 FR
67430, Dec. 20, 1996]
52.211-5 Material Requirements.
As prescribed in 11.304, insert the following clause:
Material Requirements (AUG 2000)
(a) Definitions. As used in this clause--
New means composed of previously unused components, whether
manufactured from virgin material, recovered material in the form of raw
material, or materials and by-products generated from, and reused
within, an original manufacturing process; provided that the supplies
meet contract requirements, including but not limited to, performance,
reliability, and life expectancy.
Reconditioned means restored to the original normal operating
condition by readjustments and material replacement.
Recovered material means waste materials and by-products recovered
or diverted from solid waste, but the term does not include those
materials and by-products generated from, and commonly reused within, an
original manufacturing process.
Remanufactured means factory rebuilt to original specifications.
Virgin material means--
(1) Previously unused raw material, including previously unused
copper, aluminum, lead, zinc, iron, other metal or metal ore; or
(2) Any undeveloped resource that is, or with new technology will
become, a source of raw materials.
(b) Unless this contract otherwise requires virgin material or
supplies composed of or manufactured from virgin material, the
Contractor shall provide supplies that are new, reconditioned, or
remanufactured, as defined in this clause.
(c) A proposal to provide unused former Government surplus property
shall include a complete description of the material, the quantity, the
name of the Government agency from which acquired, and the date of
acquisition.
(d) A proposal to provide used, reconditioned, or remanufactured
supplies shall include a detailed description of such supplies and shall
be submitted to the Contracting Officer for approval.
(e) Used, reconditioned, or remanufactured supplies, or unused
former Government surplus property, may be used in contract performance
if the Contractor has proposed the use of such supplies, and the
Contracting Officer has authorized their use.
[[Page 61]]
(End of clause)
[62 FR 44812, Aug. 22, 1997, as amended at 65 FR 36021, June 6, 2000]
52.211-6 Brand name or equal.
As prescribed in 11.107(a), insert the following provision:
Brand Name or Equal (AUG 1999)
(a) If an item in this solicitation is identified as ``brand name or
equal,'' the purchase description reflects the characteristics and level
of quality that will satisfy the Government's needs. The salient
physical, functional, or performance characteristics that ``equal''
products must meet are specified in the solicitation.
(b) To be considered for award, offers of ``equal'' products,
including ``equal'' products of the brand name manufacturer, must--
(1) Meet the salient physical, functional, or performance
characteristic specified in this solicitation;
(2) Clearly identify the item by--
(i) Brand name, if any; and
(ii) Make or model number;
(3) Include descriptive literature such as illustrations, drawings,
or a clear reference to previously furnished descriptive data or
information available to the Contracting Officer; and
(4) Clearly describe any modifications the offeror plans to make in
a product to make it conform to the solicitation requirements. Mark any
descriptive material to clearly show the modifications.
(c) The Contracting Officer will evaluate ``equal'' products on the
basis of information furnished by the offeror or identified in the offer
and reasonably available to the Contracting Officer. The Contracting
Officer is not responsible for locating or obtaining any information not
identified in the offer.
(d) Unless the offeror clearly indicates in its offer that the
product being offered is an ``equal'' product, the offeror shall provide
the brand name product referenced in the solicitation.
(End of provision)
[64 FR 32742, June 17, 1999, as amended at 64 FR 51850, Sept. 24, 1999;
64 FR 53264, Oct. 1, 1999]
52.211-7 Alternatives to Government-unique standards.
As prescribed in 11.107(b), insert the following provision:
Alternatives to Government-Unique Standards (NOV 1999)
(a) This solicitation includes Government-unique standards. The
offeror may propose voluntary consensus standards that meet the
Government's requirements as alternatives to the Government-unique
standards. The Government will accept use of the voluntary consensus
standard instead of the Government-unique standard if it meets the
Government's requirements unless inconsistent with law or otherwise
impractical.
(b) If an alternative standard is proposed, the offeror must furnish
data and/or information regarding the alternative in sufficient detail
for the Government to determine if it meets the Government's
requirements. Acceptance of the alternative standard is a unilateral
decision made solely at the discretion of the Government.
(c) Offers that do not comply with the Government-unique standards
specified in this solicitation may be determined to be nonresponsive or
unacceptable. The offeror may submit an offer that complies with the
Government-unique standards specified in this solicitation, in addition
to any proposed alternative standard(s).
(End of provision)
[64 FR 51853, Sept. 24, 1999]
52.211-8 Time of Delivery.
As prescribed in 11.404(a)(2), insert the following clause:
Time of Delivery (JUN 1997)
(a) The Government requires delivery to be made according to the
following schedule:
REQUIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
__________ __________ __________
__________ __________ __________
__________ __________ __________
------------------------------------------------------------------------
The Government will evaluate equally, as regards time of delivery,
offers that propose delivery of each quantity within the applicable
delivery period specified above. Offers that propose delivery that will
not clearly fall within the applicable required delivery period
specified above, will be considered nonresponsive and rejected. The
Government reserves the right to award under either the required
delivery schedule or the proposed delivery schedule, when an offeror
offers an earlier delivery schedule than required
[[Page 62]]
above. If the offeror proposes no other delivery schedule, the required
delivery schedule above will apply.
OFFEROR'S PROPOSED DELIVERY SCHEDULE
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
__________ __________ __________
__________ __________ __________
__________ __________ __________
------------------------------------------------------------------------
(b) Attention is directed to the Contract Award provision of the
solicitation that provides that a written award or acceptance of offer
mailed, or otherwise furnished to the successful offeror, results in a
binding contract. The Government will mail or otherwise furnish to the
offeror an award or notice of award not later than the day award is
dated. Therefore, the offeror should compute the time available for
performance beginning with the actual date of award, rather than the
date the written notice of award is received from the Contracting
Officer through the ordinary mails. However, the Government will
evaluate an offer that proposes delivery based on the Contractor's date
of receipt of the contract or notice of award by adding (1) five
calendar days for delivery of the award through the ordinary mails, or
(2) one working day if the solicitation states that the contract or
notice of award will be transmitted electronically. (The term working
day excludes weekends and U.S. Federal holidays.) If, as so computed,
the offered delivery date is later than the required delivery date, the
offer will be considered nonresponsive and rejected.
(End of clause)
Alternate I (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date of award, the contracting officer may substitute the
following paragraph (b) for paragraph (b) of the basic clause. The time
may be expressed by substituting on or before; during the months
__________; or not sooner than ________ or later than _________ as
headings for the third column of paragraph (a) the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the Government will make award by __ [Contracting
Officer insert date]. Each delivery date in the delivery schedule above
will be extended by the number of calendar days after the above date
that the contract is in fact awarded. Attention is directed to the
Contract Award provision of the solicitation that provides that a
written award or acceptance of offer mailed or otherwise furnished to
the successful offeror results in a binding contract. Therefore, the
offeror should compute the time available for performance beginning with
the actual date of award, rather than the date the written notice of
award is received from the Contracting Officer through the ordinary
mails.
Alternate II (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date the contractor will receive notice of award, the
contracting officer may substitute the following paragraph (b) for
paragraph (b) of the basic clause. The time may be expressed by
substituting within days after the date of receipt of a written notice
of award as the heading for the third column of paragraph (a) of the
basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the successful offeror will receive notice of award by
__ [Contracting Officer insert date]. Each delivery date in the delivery
schedule above will be extended by the number of calendar days after the
above date that the Contractor receives notice of award; provided, that
the Contractor promptly acknowledges receipt of notice of award.
Alternate III (APR 1984). If the delivery schedule is to be based on
the actual date the contractor receives a written notice of award, the
contracting officer may delete paragraph (b) of the basic clause. The
time may be expressed by substituting within days after the date of
receipt of a written notice of award as the heading for the third column
of paragraph (a) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41732, Aug. 22, 1991;
60 FR 34739, July 3, 1995. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 62 FR 40238, July 25, 1997]
52.211-9 Desired and Required Time of Delivery.
As prescribed in 11.404(a)(3), insert the following clause:
Desired and Required Time of Delivery (JUN 1997)
(a) The Government desires delivery to be made according to the
following schedule:
[[Page 63]]
DESIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
__________ __________ __________
__________ __________ __________
__________ __________ __________
------------------------------------------------------------------------
If the offeror is unable to meet the desired delivery schedule, it
may, without prejudicing evaluation of its offer, propose a delivery
schedule below. However, the offeror's proposed delivery schedule must
not extend the delivery period beyond the time for delivery in the
Government's required delivery schedule as follows:
REQUIRED DELIVERY SCHEDULE
[Contracting Officer insert specific details]
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
__________ __________ __________
__________ __________ __________
__________ __________ __________
------------------------------------------------------------------------
Offers that propose delivery of a quantity under such terms or
conditions that delivery will not clearly fall within the applicable
required delivery period specified above, will be considered
nonresponsive and rejected. If the offeror proposes no other delivery
schedule, the desired delivery schedule above will apply.
OFFEROR'S PROPOSED DELIVERY SCHEDULE
------------------------------------------------------------------------
WITHIN DAYS AFTER DATE
ITEM NO. QUANTITY OF CONTRACT
------------------------------------------------------------------------
__________ __________ __________
__________ __________ __________
__________ __________ __________
------------------------------------------------------------------------
(b) Attention is directed to the Contract Award provision of the
solicitation that provides that a written award or acceptance of offer
mailed or otherwise furnished to the successful offeror results in a
binding contract. The Government will mail or otherwise furnish to the
offeror an award or notice of award not later than the day the award is
dated. Therefore, the offeror shall compute the time available for
performance beginning with the actual date of award, rather than the
date the written notice of award is received from the Contracting
Officer through the ordinary mails. However, the Government will
evaluate an offer that proposes delivery based on the Contractor's date
of receipt of the contract or notice of award by adding (1) five
calendar days for delivery of the award through the ordinary mails, or
(2) one working day if the solicitation states that the contract or
notice of award will be transmitted electronically. (The term working
day excludes weekends and U.S. Federal holidays.) If, as so computed,
the offered delivery date is later than the required delivery date, the
offer will be considered nonresponsive and rejected.
(End of clause)
Alternate I (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date of award, the contracting officer may substitute the
following paragraph (b) for paragraph (b) of the basic clause. The time
may be expressed by substituting on or before; during the months __; or
not sooner than __, or later than __ as headings for the third column of
paragraph (a) of the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the Government will make award by __ [Contracting
Officer insert date]. Each delivery date in the delivery schedule above
will be extended by the number of calendar days after the above date
that the contract is in fact awarded. Attention is directed to the
Contract Award provision of the solicitation that provides that a
written award or acceptance of offer mailed or otherwise furnished to
the successful offeror results in a binding contract. Therefore, the
offeror shall compute the time available for performance beginning with
the actual date of award, rather than the date the written notice of
award is received from the Contracting Officer through the ordinary
mails.
Alternate II (APR 1984). If the delivery schedule is expressed in
terms of specific calendar dates or specific periods and is based on an
assumed date the contractor receives notice of award, the contracting
officer may substitute the following paragraph (b) for paragraph (b) of
the basic clause. The time may be expressed by substituting within days
after the date of receipt of a written notice of award as the heading of
the third column of paragraph (a) of the basic clause.
(b) The delivery dates or specific periods above are based on the
assumption that the successful offeror will receive notice of award by
__ [Contracting Officer insert date]. Each delivery date in the delivery
schedule above will be extended by the number of calendar days after the
above date that the
[[Page 64]]
Contractor receives notice of award; provided, that the Contractor
promptly acknowledges receipt of notice of award.
Alternate III (APR 1984). If the delivery schedule is to be based on
the actual date the contractor receives a written notice of award, the
contracting officer may delete paragraph (b) of the basic clause. The
time may be expressed by substituting within days after the date of
receipt of a written notice of award as the heading of the third column
of paragraph (a) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 56 FR 41732, Aug. 22, 1991;
60 FR 34739, July 3, 1995. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 62 FR 40238, July 25, 1997]
52.211-10 Commencement, Prosecution, and Completion of Work.
As prescribed in 11.404(b), insert the following clause in
solicitations and contracts when a fixed-price construction contract is
contemplated. The clause may be changed to accommodate the issuance of
orders under indefinite-delivery contracts for construction.
Commencement, Prosecution, and Completion of Work (APR 1984)
The Contractor shall be required to (a) commence work under this
contract within __ [Contracting Officer insert number] 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 __*. The time stated for completion shall include
final cleanup of the premises.
(End of clause)
*The Contracting Officer shall specify either a number of days after
the date the contractor receives the notice to proceed, or a calendar
date.
Alternate I (APR 1984). If the completion date is expressed as a
specific calendar date, computed on the basis of the contractor
receiving the notice to proceed by a certain day, add the following
paragraph to the basic clause:
The completion date is based on the assumption that the successful
offeror will receive the notice to proceed by __ [Contracting Officer
insert date]. The completion date will be extended by the number of
calendar days after the above date that the Contractor receives the
notice to proceed, except to the extent that the delay in issuance of
the notice to proceed results from the failure of the Contractor to
execute the contract and give the required performance and payment bonds
within the time specified in the offer.
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995]
52.211-11 Liquidated Damages--Supplies, Services, or Research
and Development.
As prescribed in 11.503(a), insert the following clause in
solicitations and contracts:
Liquidated Damages--Supplies, Services, or Research and Development (SEP
2000)
(a) If the Contractor fails to deliver the supplies or perform the
services within the time specified in this contract, the Contractor
shall, in place of actual damages, pay to the Government liquidated
damages of $__ per calendar day of delay [Contracting Officer insert
amount].
(b) If the Government terminates this contract in whole or in part
under the Default--Fixed-Price Supply and Service clause, the Contractor
is liable for liquidated damages accruing until the Government
reasonably obtains delivery or performance of similar supplies or
services. These liquidated damages are in addition to excess costs of
repurchase under the Termination clause.
(c) The Contractor will not be charged with liquidated damages when
the delay in delivery or performance is beyond the control and without
the fault or negligence of the Contractor as defined in the Default--
Fixed-Price Supply and Service clause in this contract.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-12 Liquidated Damages--Construction.
As prescribed in 11.503(b), insert the following clause in
solicitations and contracts:
Liquidated Damages--Construction (SEP 2000)
(a) If the Contractor fails to complete the work within the time
specified in the contract, the Contractor shall pay liquidated damages
to the Government in the amount of __ [Contracting Officer insert
amount] for each calendar day of delay until the work is completed or
accepted.
(b) If the Government terminates the Contractor's right to proceed,
liquidated damages will continue to accrue until the work
[[Page 65]]
is completed. These liquidated damages are in addition to excess costs
of repurchase under the Termination clause.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-13 Time Extensions.
As prescribed in 11.503(c), insert the following clause:
Time Extensions (SEP 2000)
Time extensions for contract changes will depend upon the extent, if
any, by which the changes cause delay in the completion of the various
elements of construction. The change order granting the time extension
may provide that the contract completion date will be extended only for
those specific elements related to the changed work and that the
remaining contract completion dates for all other portions of the work
will not be altered. The change order also may provide an equitable
readjustment of liquidated damages under the new completion schedule.
(End of clause)
[65 FR 46067, July 26, 2000]
52.211-14 Notice of Priority Rating for National Defense, Emergency
Preparedness, and Energy Program Use.
As prescribed in 11.604(a), insert the following provision:
Notice of Priority Rating for National Defense, Emergency Preparedness,
and Energy Program Use (APR 2008)
Any contract awarded as a result of this solicitation will be [ ] DX
rated order; [ ] DO rated order certified for national defense,
emergency preparedness, and energy program use under the Defense
Priorities and Allocations System (DPAS) (15 CFR 700), and the
Contractor will be required to follow all of the requirements of this
regulation. [Contracting Officer check appropriate box.]
(End of provision)
[51 FR 19717, May 30, 1986, as amended at 55 FR 38518, Sept. 18, 1990.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 73 FR
21785, Apr. 22, 2008]
52.211-15 Defense Priority and Allocation Requirements.
As prescribed in 11.604(b), insert the following clause:
Defense Priority and Allocation Requirements (APR 2008)
This is a rated order certified for national defense, emergency
preparedness, and energy program use, and the Contractor shall follow
all the requirements of the Defense Priorities and Allocations System
regulation (15 CFR part 700).
(End of clause)
[51 FR 19717, May 30, 1986, as amended at 55 FR 38518, Sept. 18, 1990.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995; 73 FR
21785, Apr. 22, 2008]
52.211-16 Variation in Quantity.
As prescribed in 11.703(a), insert the following clause:
Variation in Quantity (APR 1984)
(a) A variation in the quantity of any item called for by this
contract will not be accepted unless the variation has been caused by
conditions of loading, shipping, or packing, or allowances in
manufacturing processes, and then only to the extent, if any, specified
in paragraph (b) below.
(b) The permissible variation shall be limited to:
__ Percent increase [Contracting Officer insert percentage]
__ Percent decrease [Contracting Officer insert percentage]
This increase or decrease shall apply to __ *
(End of clause)
*Contracting Officer shall insert in the blank the designation(s) to
which the percentages apply, such as (1) the total contract quantity,
(2) item 1 only, (3) each quantity specified in the delivery schedule,
(4) the total item quantity for each destination, or (5) the total
quantity of each item without regard to destination.
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995; 64 FR 10538, Mar. 4, 1999]
52.211-17 Delivery of Excess Quantities.
As prescribed in 11.703(b), insert the following clause:
Delivery of Excess Quantities (SEP 1989)
The Contractor is responsible for the delivery of each item quantity
within allowable variations, if any. If the Contractor delivers and the
Government receives quantities of any item in excess of the quantity
called for (after considering any allowable variation in
[[Page 66]]
quantity), such excess quantities will be treated as being delivered for
the convenience of the Contractor. The Government may retain such excess
quantities up to $250 in value without compensating the Contractor
therefor, and the Contractor waives all right, title, or interests
therein. Quantities in excess of $250 will, at the option of the
Government, either be returned at the Contractor's expense or retained
and paid for by the Government at the contract unit price.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989.
Redesignated and amended at 60 FR 48251, 48256, Sept. 18, 1995]
52.211-18 Variation in Estimated Quantity.
As prescribed in 11.703(c), insert the following clause in
solicitations and contracts when a fixed-price construction contract is
contemplated that authorizes a variation in the estimated quantity of
unit-priced items:
Variation in Estimated Quantity (APR 1984)
If the quantity of a unit-priced item in this contract is an
estimated quantity and the actual quantity of the unit-priced item
varies more than 15 percent above or below the estimated quantity, an
equitable adjustment in the contract price shall be made upon demand of
either party. The equitable adjustment shall be based upon any increase
or decrease in costs due solely to the variation above 115 percent or
below 85 percent of the estimated quantity. If the quantity variation is
such as to cause an increase in the time necessary for completion, the
Contractor may request, in writing, an extension of time, to be received
by the Contracting Officer within 10 days from the beginning of the
delay, or within such further period as may be granted by the
Contracting Officer before the date of final settlement of the contract.
Upon the receipt of a written request for an extension, the Contracting
Officer shall ascertain the facts and make an adjustment for extending
the completion date as, in the judgement of the Contracting Officer, is
justified.
(End of clause)
[48 FR 42478, Sept. 19, 1983. Redesignated and amended at 60 FR 48251,
48256, Sept. 18, 1995]
52.212-1 Instructions to Offerors--Commercial Items.
As prescribed in 12.301(b)(1), insert the following provision:
Instructions to Offerors--Commercial Items (AUG 2018)
(a) North American Industry Classification System (NAICS) code and
small business size standard. The NAICS code and small business size
standard for this acquisition appear in Block 10 of the solicitation
cover sheet (SF 1449). However, the small business size standard for a
concern which submits an offer in its own name, but which proposes to
furnish an item which it did not itself manufacture, is 500 employees.
(b) Submission of offers. Submit signed and dated offers to the
office specified in this solicitation at or before the exact time
specified in this solicitation. Offers may be submitted on the SF 1449,
letterhead stationery, or as otherwise specified in the solicitation. As
a minimum, offers must show--
(1) The solicitation number;
(2) The time specified in the solicitation for receipt of offers;
(3) The name, address, and telephone number of the offeror;
(4) A technical description of the items being offered in sufficient
detail to evaluate compliance with the requirements in the solicitation.
This may include product literature, or other documents, if necessary;
(5) Terms of any express warranty;
(6) Price and any discount terms;
(7) ``Remit to'' address, if different than mailing address;
(8) A completed copy of the representations and certifications at
FAR 52.212-3 (see FAR 52.212-3(b) for those representations and
certifications that the offeror shall complete electronically);
(9) Acknowledgment of Solicitation Amendments;
(10) Past performance information, when included as an evaluation
factor, to include recent and relevant contracts for the same or similar
items and other references (including contract numbers, points of
contact with telephone numbers and other relevant information); and
(11) If the offer is not submitted on the SF 1449, include a
statement specifying the extent of agreement with all terms, conditions,
and provisions included in the solicitation. Offers that fail to furnish
required representations or information, or reject the terms and
conditions of the solicitation may be excluded from consideration.
(c) Period for acceptance of offers. The offeror agrees to hold the
prices in its offer firm for 30 calendar days from the date specified
for receipt of offers, unless another time period is specified in an
addendum to the solicitation.
[[Page 67]]
(d) Product samples. When required by the solicitation, product
samples shall be submitted at or prior to the time specified for receipt
of offers. Unless otherwise specified in this solicitation, these
samples shall be submitted at no expense to the Government, and returned
at the sender's request and expense, unless they are destroyed during
preaward testing.
(e) Multiple offers. Offerors are encouraged to submit multiple
offers presenting alternative terms and conditions, including
alternative line items (provided that the alternative line items are
consistent with subpart 4.10 of the Federal Acquisition Regulation), or
alternative commercial items for satisfying the requirements of this
solicitation. Each offer submitted will be evaluated separately.
(f) Late submissions, modifications, revisions, and withdrawals of
offers. (1) Offerors are responsible for submitting offers, and any
modifications, revisions, or withdrawals, so as to reach the Government
office designated in the solicitation by the time specified in the
solicitation. If no time is specified in the solicitation, the time for
receipt is 4:30 p.m., local time, for the designated Government office
on the date that offers or revisions are due.
(2)(i) Any offer, modification, revision, or withdrawal of an offer
received at the Government office designated in the solicitation after
the exact time specified for receipt of offers is ``late'' and will not
be considered unless it is received before award is made, the
Contracting Officer determines that accepting the late offer would not
unduly delay the acquisition; and--
(A) If it was transmitted through an electronic commerce method
authorized by the solicitation, it was received at the initial point of
entry to the Government infrastructure not later than 5:00 p.m. one
working day prior to the date specified for receipt of offers; or
(B) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt of
offers; or
(C) If this solicitation is a request for proposals, it was the only
proposal received.
(ii) However, a late modification of an otherwise successful offer,
that makes its terms more favorable to the Government, will be
considered at any time it is received and may be accepted.
(3) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the offer wrapper, other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of
Government personnel.
(4) If an emergency or unanticipated event interrupts normal
Government processes so that offers cannot be received at the Government
office designated for receipt of offers by the exact time specified in
the solicitation, and urgent Government requirements preclude amendment
of the solicitation or other notice of an extension of the closing date,
the time specified for receipt of offers will be deemed to be extended
to the same time of day specified in the solicitation on the first work
day on which normal Government processes resume.
(5) Offers may be withdrawn by written notice received at any time
before the exact time set for receipt of offers. Oral offers in response
to oral solicitations may be withdrawn orally. If the solicitation
authorizes facsimile offers, offers may be withdrawn via facsimile
received at any time before the exact time set for receipt of offers,
subject to the conditions specified in the solicitation concerning
facsimile offers. An offer may be withdrawn in person by an offeror or
its authorized representative if, before the exact time set for receipt
of offers, the identity of the person requesting withdrawal is
established and the person signs a receipt for the offer.
(g) Contract award (not applicable to Invitation for Bids). The
Government intends to evaluate offers and award a contract without
discussions with offerors. Therefore, the offeror's initial offer should
contain the offeror's best terms from a price and technical standpoint.
However, the Government reserves the right to conduct discussions if
later determined by the Contracting Officer to be necessary. The
Government may reject any or all offers if such action is in the public
interest; accept other than the lowest offer; and waive informalities
and minor irregularities in offers received.
(h) Multiple awards. The Government may accept any item or group of
items of an offer, unless the offeror qualifies the offer by specific
limitations. Unless otherwise provided in the Schedule, offers may not
be submitted for quantities less than those specified. The Government
reserves the right to make an award on any item for a quantity less than
the quantity offered, at the unit prices offered, unless the offeror
specifies otherwise in the offer.
(i) Availability of requirements documents cited in the
solicitation. (1)(i) The GSA Index of Federal Specifications, Standards
and Commercial Item Descriptions, FPMR Part 101-29, and copies of
specifications, standards, and commercial item descriptions cited in
this solicitation may be obtained for a fee by submitting a request to--
GSA Federal Supply Service Specifications Section, Suite 8100, 470 East
L'Enfant Plaza, SW, Washington, DC 20407, Telephone (202) 619-8925,
Facsimile (202) 619-8978.
(ii) If the General Services Administration, Department of
Agriculture, or Department of Veterans Affairs issued this solicitation,
a
[[Page 68]]
single copy of specifications, standards, and commercial item
descriptions cited in this solicitation may be obtained free of charge
by submitting a request to the addressee in paragraph (i)(1)(i) of this
provision. Additional copies will be issued for a fee.
(2) Most unclassified Defense specifications and standards may be
downloaded from the following ASSIST websites:
(i) ASSIST (https://assist.dla.mil/online/start/).
(ii) Quick Search (http://quicksearch.dla.mil/).
(iii) ASSISTdocs.com (http://assistdocs.com).
(3) Documents not available from ASSIST may be ordered from the
Department of Defense Single Stock Point (DoDSSP) by--
(i) Using the ASSIST Shopping Wizard (https://assist.dla.mil/wizard/
index.cfm);
(ii) Phoning the DoDSSP Customer Service Desk (215) 697-2179, Mon-
Fri, 0730 to 1600 EST; or
(iii) Ordering from DoDSSP, Building 4, Section D, 700 Robbins
Avenue, Philadelphia, PA 19111-5094, Telephone (215) 697-2667/2179,
Facsimile (215) 697-1462.
(4) Nongovernment (voluntary) standards must be obtained from the
organization responsible for their preparation, publication, or
maintenance.
(j) Unique entity identifier. (Applies to all offers exceeding
$3,500, and offers of $3,500 or less if the solicitation requires the
Contractor to be registered in the System for Award Management (SAM)
database.) The Offeror shall enter, in the block with its name and
address on the cover page of its offer, the annotation ``Unique Entity
Identifier'' followed by the unique entity identifier that identifies
the Offeror's name and address. The Offeror also shall enter its
Electronic Funds Transfer (EFT) indicator, if applicable. The EFT
indicator is a four-character suffix to the unique entity identifier.
The suffix is assigned at the discretion of the Offeror to establish
additional SAM records for identifying alternative EFT accounts (see
subpart 32.11) for the same entity. If the Offeror does not have a
unique entity identifier, it should contact the entity designated at
www.sam.gov for unique entity identifier establishment directly to
obtain one. The Offeror should indicate that it is an offeror for a
Government contract when contacting the entity designated at www.sam.gov
for establishing the unique entity identifier.
(k) System for Award Management. Unless exempted by an addendum to
this solicitation, by submission of an offer, the offeror acknowledges
the requirement that a prospective awardee shall be registered in the
SAM database prior to award, during performance and through final
payment of any contract resulting from this solicitation. If the Offeror
does not become registered in the SAM database in the time prescribed by
the Contracting Officer, the Contracting Officer will proceed to award
to the next otherwise successful registered Offeror. Offerors may obtain
information on registration and annual confirmation requirements via the
SAM database accessed through https://www.acquisition.gov.
(l) Debriefing. If a post-award debriefing is given to requesting
offerors, the Government shall disclose the following information, if
applicable:
(1) The agency's evaluation of the significant weak or deficient
factors in the debriefed offeror's offer.
(2) The overall evaluated cost or price and technical rating of the
successful and the debriefed offeror and past performance information on
the debriefed offeror.
(3) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection.
(4) A summary of the rationale for award;
(5) For acquisitions of commercial items, the make and model of the
item to be delivered by the successful offeror.
(6) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set forth in
the solicitation, applicable regulations, and other applicable
authorities were followed by the agency.
(End of provision)
[60 FR 48251, Sept. 18, 1995]
Editorial Note: For Federal Register citations affecting section
52.212-1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 83 FR 48699, Sept. 26, 2018, section 52.212-
1 was amended by revising the date of provision; removing from paragraph
(j) ``(SAM) database'' and adding ``(SAM)'' in its place; and removing
and reserving paragraph (k), effective Oct. 26, 2018. For the
convenience of the user, the revised text is set forth as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
Instructions to Offerors--Commercial Items (Oct 2018)
* * * * *
52.212-2 Evaluation--Commercial Items.
As prescribed in 12.301(c), the Contracting Officer may insert a
provision substantially as follows:
[[Page 69]]
Evaluation--Commercial Items (OCT 2014)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror whose offer conforming to the
solicitation will be most advantageous to the Government, price and
other factors considered. The following factors shall be used to
evaluate offers:
________________________________________________________________________
________________________________________________________________________
(Contracting Officer shall insert the significant evaluation
factors, such as (i) technical capability of the item offered to meet
the Government requirement; (ii) price; (iii) past performance (see FAR
15.304); and include them in the relative order of importance of the
evaluation factors, such as in descending order of importance.)
Technical and past performance, when combined, are ____ (Contracting
Officer state, in accordance with FAR 15.304, the relative importance of
all other evaluation factors, when combined, when compared to price.)
(b) Options. The Government will evaluate offers for award purposes
by adding the total price for all options to the total price for the
basic requirement. The Government may determine that an offer is
unacceptable if the option prices are significantly unbalanced.
Evaluation of options shall not obligate the Government to exercise the
option(s).
(c) A written notice of award or acceptance of an offer, mailed or
otherwise furnished to the successful offeror within the time for
acceptance specified in the offer, shall result in a binding contract
without further action by either party. Before the offer's specified
expiration time, the Government may accept an offer (or part of an
offer), whether or not there are negotiations after its receipt, unless
a written notice of withdrawal is received before award.
(End of provision)
[60 FR 48252, Sept. 18, 1995, as amended at 62 FR 51271, Sept. 30, 1997;
63 FR 36124, July 1, 1998; 79 FR 61751, Oct. 14, 2014]
52.212-3 Offeror Representations and Certifications--Commercial Items.
As prescribed in 12.301(b)(2), insert the following provision:
Offeror Representations and Certifications--Commercial Items (AUG 2018)
The Offeror shall complete only paragraph (b) of this provision if
the Offeror has completed the annual representations and certification
electronically via the System for Award Management (SAM) Web site
located at https://www.sam.gov/portal.If the Offeror has not completed
the annual representations and certifications electronically, the
Offeror shall complete only paragraphs (c) through (u) of this
provision.
(a) Definitions. As used in this provision--
Economically disadvantaged women-owned small business (EDWOSB)
concern means a small business concern that is at least 51 percent
directly and unconditionally owned by, and the management and daily
business operations of which are controlled by, one or more women who
are citizens of the United States and who are economically disadvantaged
in accordance with 13 CFR part 127. It automatically qualifies as a
women-owned small business eligible under the WOSB Program.
Forced or indentured child labor means all work or service--
(1) Exacted from any person under the age of 18 under the menace of
any penalty for its nonperformance and for which the worker does not
offer himself voluntarily; or
(2) Performed by any person under the age of 18 pursuant to a
contract the enforcement of which can be accomplished by process or
penalties.
Highest-level owner means the entity that owns or controls an
immediate owner of the offeror, or that owns or controls one or more
entities that control an immediate owner of the offeror. No entity owns
or exercises control of the highest level owner.
Immediate owner means an entity, other than the offeror, that has
direct control of the offeror. Indicators of control include, but are
not limited to, one or more of the following: Ownership or interlocking
management, identity of interests among family members, shared
facilities and equipment, and the common use of employees.
Inverted domestic corporation means a foreign incorporated entity
that meets the definition of an inverted domestic corporation under 6
U.S.C. 395(b), applied in accordance with the rules and definitions of 6
U.S.C. 395(c).
Manufactured end product means any end product in product and
service codes (PSCs) 1000-9999, except--
(1) PSC 5510, Lumber and Related Basic Wood Materials;
(2) Product or Service Group (PSG) 87, Agricultural Supplies;
(3) PSG 88, Live Animals;
(4) PSG 89, Subsistence;
(5) PSC 9410, Crude Grades of Plant Materials;
(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;
(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry
Products;
(8) PSC 9610, Ores;
(9) PSC 9620, Minerals, Natural and Synthetic; and
(10) PSC 9630, Additive Metal Materials.
Place of manufacture means the place where an end product is
assembled out of components, or otherwise made or processed from
[[Page 70]]
raw materials into the finished product that is to be provided to the
Government. If a product is disassembled and reassembled, the place of
reassembly is not the place of manufacture.
Predecessor means an entity that is replaced by a successor and
includes any predecessors of the predecessor.
Restricted business operations means business operations in Sudan
that include power production activities, mineral extraction activities,
oil-related activities, or the production of military equipment, as
those terms are defined in the Sudan Accountability and Divestment Act
of 2007 (Pub. L. 110-174). Restricted business operations do not include
business operations that the person (as that term is defined in Section
2 of the Sudan Accountability and Divestment Act of 2007) conducting the
business can demonstrate--
(1) Are conducted under contract directly and exclusively with the
regional government of southern Sudan;
(2) Are conducted pursuant to specific authorization from the Office
of Foreign Assets Control in the Department of the Treasury, or are
expressly exempted under Federal law from the requirement to be
conducted under such authorization;
(3) Consist of providing goods or services to marginalized
populations of Sudan;
(4) Consist of providing goods or services to an internationally
recognized peacekeeping force or humanitarian organization;
(5) Consist of providing goods or services that are used only to
promote health or education; or
(6) Have been voluntarily suspended.
Sensitive technology--
(1) Means hardware, software, telecommunications equipment, or any
other technology that is to be used specifically--
(i) To restrict the free flow of unbiased information in Iran; or
(ii) To disrupt, monitor, or otherwise restrict speech of the people
of Iran; and
(2) Does not include information or informational materials the
export of which the President does not have the authority to regulate or
prohibit pursuant to section 203(b)(3) of the International Emergency
Economic Powers Act (50 U.S.C. 1702(b)(3)).
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service--disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
service-disabled veteran with permanent and severe disability, the
spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a concern, including its affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and qualified
as a small business under the criteria in 13 CFR Part 121 and size
standards in this solicitation.
Small disadvantaged business concern, consistent with 13 CFR
124.1002, means a small business concern under the size standard
applicable to the acquisition, that--
(1) Is at least 51 percent unconditionally and directly owned (as
defined at 13 CFR 124.105) by--
(i) One or more socially disadvantaged (as defined at 13 CFR
124.103) and economically disadvantaged (as defined at 13 CFR 124.104)
individuals who are citizens of the United States; and
(ii) Each individual claiming economic disadvantage has a net worth
not exceeding $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); and
(2) The management and daily business operations of which are
controlled (as defined at 13.CFR 124.106) by individuals, who meet the
criteria in paragraphs (1)(i) and (ii) of this definition.
Subsidiary means an entity in which more than 50 percent of the
entity is owned--
(1) Directly by a parent corporation; or
(2) Through another subsidiary of a parent corporation.
Successor means an entity that has replaced a predecessor by
acquiring the assets and carrying out the affairs of the predecessor
under a new name (often through acquisition or merger). The term
``successor'' does not include new offices/divisions of the same company
or a company that only changes its name. The extent of the
responsibility of the successor for the liabilities of the predecessor
may vary, depending on State law and specific circumstances.
Veteran-owned small business concern means a small business
concern--
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned business concern means a concern which is at least 51
percent owned by one or more women; or in the case of any publicly owned
business, at least 51 percent of its stock is owned by one or more
women; and whose management and daily business
[[Page 71]]
operations are controlled by one or more women.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
Women-owned small business (WOSB) concern eligible under the WOSB
Program (in accordance with 13 CFR part 127), means a small business
concern that is at least 51 percent directly and unconditionally owned
by, and the management and daily business operations of which are
controlled by, one or more women who are citizens of the United States.
(b)(1) Annual Representations and Certifications. Any changes
provided by the offeror in paragraph (b)(2) of this provision do not
automatically change the representations and certifications posted on
the SAM website.
(2) The offeror has completed the annual representations and
certifications electronically via the SAM website accessed through
http://www.acquisition.gov. After reviewing the SAM database
information, the offeror verifies by submission of this offer that the
representations and certifications currently posted electronically at
FAR 52.212-3, Offeror Representations and Certifications--Commercial
Items, have been entered or updated in the last 12 months, are current,
accurate, complete, and applicable to this solicitation (including the
business size standard applicable to the NAICS code referenced for this
solicitation), as of the date of this offer and are incorporated in this
offer by reference (see FAR 4.1201), except for paragraphs _____.
[Offeror to identify the applicable paragraphs at (c) through (u) of
this provision that the offeror has completed for the purposes of this
solicitation only, if any.
These amended representation(s) and/or certification(s) are also
incorporated in this offer and are current, accurate, and complete as of
the date of this offer.
Any changes provided by the offeror are applicable to this
solicitation only, and do not result in an update to the representations
and certifications posted electronically on SAM.]
(c) Offerors must complete the following representations when the
resulting contract will be performed in the United States or its
outlying areas. Check all that apply.
(1) Small business concern. The offeror represents as part of its
offer that it [squ] is, [squ] is not a small business concern.
(2) Veteran-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents as part of its offer
that it [squ] is, [squ] is not a veteran-owned small business concern.
(3) Service-disabled veteran-owned small business concern. [Complete
only if the offeror represented itself as a veteran-owned small business
concern in paragraph (c)(2) of this provision.] The offeror represents
as part of its offer that it [squ] is, [squ] is not a service-disabled
veteran-owned small business concern.
(4) Small disadvantaged business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents that it [squ] is,
[squ] is not a small disadvantaged business concern as defined in 13 CFR
124.1002.
(5) Women-owned small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents that it [squ] is,
[squ] is not a women-owned small business concern.
(6) WOSB concern eligible under the WOSB Program. [Complete only if
the offeror represented itself as a women-owned small business concern
in paragraph (c)(5) of this provision.] The offeror represents that--
(i) It [squ] is, [squ] is not a WOSB concern eligible under the WOSB
Program, has provided all the required documents to the WOSB Repository,
and no change in circumstances or adverse decisions have been issued
that affects its eligibility; and
(ii) It [squ] is, [squ] is not a joint venture that complies with
the requirements of 13 CFR part 127, and the representation in paragraph
(c)(6)(i) of this provision is accurate for each WOSB concern eligible
under the WOSB Program participating in the joint venture. [The offeror
shall enter the name or names of the WOSB concern eligible under the
WOSB Program and other small businesses that are participating in the
joint venture: ________.] Each WOSB concern eligible under the WOSB
Program participating in the joint venture shall submit a separate
signed copy of the WOSB representation.
(7) Economically disadvantaged women-owned small business (EDWOSB)
concern. [Complete only if the offeror represented itself as a WOSB
concern eligible under the WOSB Program in (c)(6) of this provision.]
The offeror represents that--
(i) It [squ] is, [squ] is not an EDWOSB concern, has provided all
the required documents to the WOSB Repository, and no change in
circumstances or adverse decisions have been issued that affects its
eligibility; and
(ii) It [squ] is, [squ] is not a joint venture that complies with
the requirements of 13 CFR part 127, and the representation in paragraph
(c)(7)(i) of this provision is accurate for each EDWOSB concern
participating in the joint venture. [The offeror shall enter the name or
names of the EDWOSB concern and other small businesses that are
participating in the joint venture: ________.] Each EDWOSB concern
[[Page 72]]
participating in the joint venture shall submit a separate signed copy
of the EDWOSB representation.
Note to paragraphs (c)(8) and (9): Complete paragraphs (c)(8) and
(9) only if this solicitation is expected to exceed the simplified
acquisition threshold.
(8) Women-owned business concern (other than small business
concern). [Complete only if the offeror is a women-owned business
concern and did not represent itself as a small business concern in
paragraph (c)(1) of this provision.] The offeror represents that it
[squ] is, a women-owned business concern.
(9) Tie bid priority for labor surplus area concerns. If this is an
invitation for bid, small business offerors may identify the labor
surplus areas in which costs to be incurred on account of manufacturing
or production (by offeror or first-tier subcontractors) amount to more
than 50 percent of the contract price:
________________________________________________________________________
(10) HUBZone small business concern. [Complete only if the offeror
represented itself as a small business concern in paragraph (c)(1) of
this provision.] The offeror represents, as part of its offer, that--
(i) It [squ] is, [squ] is not a HUBZone small business concern
listed, on the date of this representation, on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration, and no material changes in ownership and control,
principal office, or HUBZone employee percentage have occurred since it
was certified in accordance with 13 CFR Part 126; and
(ii) It [squ] is, [squ] is not a HUBZone joint venture that complies
with the requirements of 13 CFR Part 126, and the representation in
paragraph (c)(10)(i) of this provision is accurate for each HUBZone
small business concern participating in the HUBZone joint venture. [The
offeror shall enter the names of each of the HUBZone small business
concerns participating in the HUBZone joint venture: ____.] Each HUBZone
small business concern participating in the HUBZone joint venture shall
submit a separate signed copy of the HUBZone representation.
(d) Representations required to implement provisions of Executive
Order 11246--
(1) Previous contracts and compliance. The offeror represents that--
(i) It [squ] has, [squ] has not participated in a previous contract
or subcontract subject to the Equal Opportunity clause of this
solicitation; and
(ii) It [squ] has, [squ] has not filed all required compliance
reports.
(2) Affirmative Action Compliance. The offeror represents that--
(i) It [squ] has developed and has on file, [squ] has not developed
and does not have on file, at each establishment, affirmative action
programs required by rules and regulations of the Secretary of Labor (41
CFR parts 60-1 and 60-2), or
(ii) It [squ] has not previously had contracts subject to the
written affirmative action programs requirement of the rules and
regulations of the Secretary of Labor.
(e) Certification Regarding Payments to Influence Federal
Transactions (31 U.S.C. 1352). (Applies only if the contract is expected
to exceed $150,000.) By submission of its offer, the offeror certifies
to the best of its knowledge and belief that no Federal appropriated
funds have been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any agency, a Member
of Congress, an officer or employee of Congress or an employee of a
Member of Congress on his or her behalf in connection with the award of
any resultant contract. If any registrants under the Lobbying Disclosure
Act of 1995 have made a lobbying contact on behalf of the offeror with
respect to this contract, the offeror shall complete and submit, with
its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to
provide the name of the registrants. The offeror need not report
regularly employed officers or employees of the offeror to whom payments
of reasonable compensation were made.
(f) Buy American Certificate. (Applies only if the clause at Federal
Acquisition Regulation (FAR) 52.225-1, Buy American--Supplies, is
included in this solicitation.)
(1) The offeror certifies that each end product, except those listed
in paragraph (f)(2) of this provision, is a domestic end product and
that for other than COTS items, the offeror has considered components of
unknown origin to have been mined, produced, or manufactured outside the
United States. The offeror shall list as foreign end products those end
products manufactured in the United States that do not qualify as
domestic end products, i.e., an end product that is not a COTS item and
does not meet the component test in paragraph (2) of the definition of
``domestic end product.'' The terms ``commercially available off-the-
shelf (COTS) item,'' ``component,'' ``domestic end product,'' ``end
product,'' ``foreign end product,'' and ``United States'' are defined in
the clause of this solicitation entitled ``Buy American--Supplies.''
(2) Foreign End Products:
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(3) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25.
(g)(1) Buy American--Free Trade Agreements--Israeli Trade Act
Certificate. (Applies only if the clause at FAR 52.225-3, Buy American--
Free Trade Agreements--Israeli Trade Act, is included in this
solicitation.)
[[Page 73]]
(i) The offeror certifies that each end product, except those listed
in paragraph (g)(1)(ii) or (g)(1)(iii) of this provision, is a domestic
end product and that for other than COTS items, the offeror has
considered components of unknown origin to have been mined, produced, or
manufactured outside the United States. The terms ``Bahrainian,
Moroccan, Omani, Panamanian, or Peruvian end product,'' ``commercially
available off-the-shelf (COTS) item,'' ``component,'' ``domestic end
product,'' ``end product,'' ``foreign end product,'' ``Free Trade
Agreement country,'' ``Free Trade Agreement country end product,''
``Israeli end product,'' and ``United States'' are defined in the clause
of this solicitation entitled ``Buy American--Free Trade Agreements--
Israeli Trade Act.''
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products (other than Bahrainian, Moroccan,
Omani, Panamanian, or Peruvian end products) or Israeli end products as
defined in the clause of this solicitation entitled ``Buy American--Free
Trade Agreements--Israeli Trade Act''
Free Trade Agreement Country End Products (Other than Bahrainian,
Moroccan, Omani, Panamanian, or Peruvian End Products) or Israeli End
Products:
Line Item No. Country of Origin
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
[List as necessary]
(iii) The offeror shall list those supplies that are foreign end
products (other than those listed in paragraph (g)(1)(ii) of this
provision) as defined in the clause of this solicitation entitled ``Buy
American--Free Trade Agreements--Israeli Trade Act.'' The offeror shall
list as other foreign end products those end products manufactured in
the United States that do not qualify as domestic end products, i.e., an
end product that is not a COTS item and does not meet the component test
in paragraph (2) of the definition of ``domestic end product.''
Other Foreign End Products
Line Item No.:__________________________________________________________
Country of Origin:______________________________________________________
(List as necessary)
(iv) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25.
(2) Buy American--Free Trade Agreements--Israeli Trade Act
Certificate, Alternate I. If Alternate I to the clause at FAR 52.225-3
is included in this solicitation, substitute the following paragraph
(g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Canadian end products as defined in the clause of this solicitation
entitled ``Buy American--Free Trade Agreements--Israeli Trade Act'':
Canadian End Products:
Line Item No.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(List as necessary)
(3) Buy American--Free Trade Agreements--Israeli Trade Act
Certificate, Alternate II. If Alternate II to the clause at FAR 52.225-3
is included in this solicitation, substitute the following paragraph
(g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Canadian end products or Israeli end products as defined in the clause
of this solicitation entitled ``Buy American--Free Trade Agreements--
Israeli Trade Act'':
Canadian or Israeli End Products:
Line Item No.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Country of Origin
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(List as necessary)
(g)(4) Buy American--Free Trade Agreements--Israeli Trade Act
Certificate, Alternate III. If Alternate III to the clause at FAR
52.225-3 is included in this solicitation, substitute the following
paragraph (g)(1)(ii) for paragraph (g)(1)(ii) of the basic provision:
(g)(1)(ii) The offeror certifies that the following supplies are
Free Trade Agreement country end products (other than Bahrainian,
Korean, Moroccan, Omani, Panamanian, or Peruvian end products) or
Israeli end products as defined in the clause of this solicitation
entitled ``Buy American--Free Trade Agreements--Israeli Trade Act'':
Free Trade Agreement Country End Products (Other than Bahrainian,
Korean, Moroccan, Omani, Panamanian, or Peruvian End Products) or
Israeli End Products:
Line Item No. Country of Origin
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
[List as necessary]
(5) Trade Agreements Certificate. (Applies only if the clause at FAR
52.225-5, Trade Agreements, is included in this solicitation.)
(i) The offeror certifies that each end product, except those listed
in paragraph (g)(5)(ii)
[[Page 74]]
of this provision, is a U.S.-made or designated country end product, as
defined in the clause of this solicitation entitled ``Trade
Agreements''.
(ii) The offeror shall list as other end products those end products
that are not U.S.-made or designated country end products.
Other End Products:
Line Item No. Country of Origin
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
.......... ......................
------------------------------------- -----------------------
[List as necessary]
(iii) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25. For line items covered by the
WTO GPA, the Government will evaluate offers of U.S.-made or designated
country end products without regard to the restrictions of the Buy
American statute. The Government will consider for award only offers of
U.S.-made or designated country end products unless the Contracting
Officer determines that there are no offers for such products or that
the offers for such products are insufficient to fulfill the
requirements of the solicitation.
(h) Certification Regarding Responsibility Matters (Executive Order
12689). (Applies only if the contract value is expected to exceed the
simplified acquisition threshold.) The offeror certifies, to the best of
its knowledge and belief, that the offeror and/or any of its
principals--
(1) [squ] Are, [squ] are not presently debarred, suspended, proposed
for debarment, or declared ineligible for the award of contracts by any
Federal agency;
(2) [squ] Have, [squ] have not, within a three-year period preceding
this offer, been convicted of or had a civil judgment rendered against
them for: Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a Federal, state or local
government contract or subcontract; violation of Federal or state
antitrust statutes relating to the submission of offers; or Commission
of embezzlement, theft, forgery, bribery, falsification or destruction
of records, making false statements, tax evasion, violating Federal
criminal tax laws, or receiving stolen property,
(3) [squ] Are, [squ] are not presently indicted for, or otherwise
criminally or civilly charged by a Government entity with, commission of
any of these offenses enumerated in paragraph (h)(2) of this clause; and
(4) Have,[squ] have not, within a three-year period preceding this
offer, been notified of any delinquent Federal taxes in an amount that
exceeds $3,500 for which the liability remains unsatisfied.
(i) Taxes are considered delinquent if both of the following
criteria apply:
(A) The tax liability is finally determined. The liability is
finally determined if it has been assessed. A liability is not finally
determined if there is a pending administrative or judicial challenge.
In the case of a judicial challenge to the liability, the liability is
not finally determined until all judicial appeal rights have been
exhausted.
(B) The taxpayer is delinquent in making payment. A taxpayer is
delinquent if the taxpayer has failed to pay the tax liability when full
payment was due and required. A taxpayer is not delinquent in cases
where enforced collection action is precluded.
(ii) Examples. (A) The taxpayer has received a statutory notice of
deficiency, under I.R.C. Sec. 6212, which entitles the taxpayer to seek
Tax Court review of a proposed tax deficiency. This is not a delinquent
tax because it is not a final tax liability. Should the taxpayer seek
Tax Court review, this will not be a final tax liability until the
taxpayer has exercised all judicial appeal rights.
(B) The IRS has filed a notice of Federal tax lien with respect to
an assessed tax liability, and the taxpayer has been issued a notice
under I.R.C. Sec. 6320 entitling the taxpayer to request a hearing with
the IRS Office of Appeals contesting the lien filing, and to further
appeal to the Tax Court if the IRS determines to sustain the lien
filing. In the course of the hearing, the taxpayer is entitled to
contest the underlying tax liability because the taxpayer has had no
prior opportunity to contest the liability. This is not a delinquent tax
because it is not a final tax liability. Should the taxpayer seek tax
court review, this will not be a final tax liability until the taxpayer
has exercised all judicial appeal rights.
(C) The taxpayer has entered into an installment agreement pursuant
to I.R.C. Sec. 6159. The taxpayer is making timely payments and is in
full compliance with the agreement terms. The taxpayer is not delinquent
because the taxpayer is not currently required to make full payment.
(D) The taxpayer has filed for bankruptcy protection. The taxpayer
is not delinquent because enforced collection action is stayed under 11
U.S.C. 362 (the Bankruptcy Code).
(i) Certification Regarding Knowledge of Child Labor for Listed End
Products (Executive Order 13126). [The Contracting Officer must list in
paragraph (i)(1) any end products being acquired under this solicitation
that are included in the List of Products Requiring Contractor
Certification as to Forced or Indentured Child Labor, unless excluded at
22.1503(b).]
(1) Listed end products.
Listed End Product
________________________________________________________________________
________________________________________________________________________
[[Page 75]]
Listed Countries of Origin
________________________________________________________________________
________________________________________________________________________
(2) Certification. [If the Contracting Officer has identified end
products and countries of origin in paragraph (i)(1) of this provision,
then the offeror must certify to either (i)(2)(i) or (i)(2)(ii) by
checking the appropriate block.]
[squ] (i) The offeror will not supply any end product listed in
paragraph (i)(1) of this provision that was mined, produced, or
manufactured in the corresponding country as listed for that product.
[squ] (ii) The offeror may supply an end product listed in paragraph
(i)(1) of this provision that was mined, produced, or manufactured in
the corresponding country as listed for that product. The offeror
certifies that it has made a good faith effort to determine whether
forced or indentured child labor was used to mine, produce, or
manufacture any such end product furnished under this contract. On the
basis of those efforts, the offeror certifies that it is not aware of
any such use of child labor.
(j) Place of manufacture. (Does not apply unless the solicitation is
predominantly for the acquisition of manufactured end products.) For
statistical purposes only, the offeror shall indicate whether the place
of manufacture of the end products it expects to provide in response to
this solicitation is predominantly--
(1) [squ] In the United States (Check this box if the total
anticipated price of offered end products manufactured in the United
States exceeds the total anticipated price of offered end products
manufactured outside the United States); or
(2) [squ] Outside the United States.
(k) Certificates regarding exemptions from the application of the
Service Contract Labor Standards. (Certification by the offeror as to
its compliance with respect to the contract also constitutes its
certification as to compliance by its subcontractor if it subcontracts
out the exempt services.) [The contracting officer is to check a box to
indicate if paragraph (k)(1) or (k)(2) applies.]
(1)[squ] Maintenance, calibration, or repair of certain equipment as
described in FAR 22.1003-4(c)(1). The offeror [squ] does [squ] does not
certify that--
(i) The items of equipment to be serviced under this contract are
used regularly for other than Governmental purposes and are sold or
traded by the offeror (or subcontractor in the case of an exempt
subcontract) in substantial quantities to the general public in the
course of normal business operations;
(ii) The services will be furnished at prices which are, or are
based on, established catalog or market prices (see FAR 22.1003-
4(c)(2)(ii)) for the maintenance, calibration, or repair of such
equipment; and
(iii) The compensation (wage and fringe benefits) plan for all
service employees performing work under the contract will be the same as
that used for these employees and equivalent employees servicing the
same equipment of commercial customers.
(2)[squ] Certain services as described in FAR 22.1003-4(d)(1). The
offeror [squ] does [squ] does not certify that--
(i) The services under the contract are offered and sold regularly
to non-Governmental customers, and are provided by the offeror (or
subcontractor in the case of an exempt subcontract) to the general
public in substantial quantities in the course of normal business
operations;
(ii) The contract services will be furnished at prices that are, or
are based on, established catalog or market prices (see FAR 22.1003-
4(d)(2)(iii));
(iii) Each service employee who will perform the services under the
contract will spend only a small portion of his or her time (a monthly
average of less than 20 percent of the available hours on an annualized
basis, or less than 20 percent of available hours during the contract
period if the contract period is less than a month) servicing the
Government contract; and
(iv) The compensation (wage and fringe benefits) plan for all
service employees performing work under the contract is the same as that
used for these employees and equivalent employees servicing commercial
customers.
(3) If paragraph (k)(1) or (k)(2) of this clause applies--
(i) If the offeror does not certify to the conditions in paragraph
(k)(1) or (k)(2) and the Contracting Officer did not attach a Service
Contract Labor Standards wage determination to the solicitation, the
offeror shall notify the Contracting Officer as soon as possible; and
(ii) The Contracting Officer may not make an award to the offeror if
the offeror fails to execute the certification in paragraph (k)(1) or
(k)(2) of this clause or to contact the Contracting Officer as required
in paragraph (k)(3)(i) of this clause.
(l) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31 U.S.C.
7701). (Not applicable if the offeror is required to provide this
information to the SAM database to be eligible for award.)
(1) All offerors must submit the information required in paragraphs
(l)(3) through (l)(5) of this provision to comply with debt collection
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by
the Internal Revenue Service (IRS).
(2) The TIN may be used by the Government to collect and report on
any delinquent amounts arising out of the offeror's relationship with
the Government (31 U.S.C.
[[Page 76]]
7701(c)(3)). If the resulting contract is subject to the payment
reporting requirements described in FAR 4.904, the TIN provided
hereunder may be matched with IRS records to verify the accuracy of the
offeror's TIN.
(3) Taxpayer Identification Number (TIN).
[squ] TIN: __________.
[squ] TIN has been applied for.
[squ] TIN is not required because:
[squ] Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income effectively connected with
the conduct of a trade or business in the United States and does not
have an office or place of business or a fiscal paying agent in the
United States;
[squ] Offeror is an agency or instrumentality of a foreign
government;
[squ] Offeror is an agency or instrumentality of the Federal
Government.
(4) Type of organization.
[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Government entity (Federal, State, or local);
[squ] Foreign government;
[squ] International organization per 26 CFR 1.6049-4;
[squ] Other _____.
(5) Common parent.
[squ] Offeror is not owned or controlled by a common parent;
[squ] Name and TIN of common parent:
Name __________.
TIN __________.
(m) Restricted business operations in Sudan. By submission of its
offer, the offeror certifies that the offeror does not conduct any
restricted business operations in Sudan.
(n) Prohibition on Contracting with Inverted Domestic Corporations.
(1) Government agencies are not permitted to use appropriated (or
otherwise made available) funds for contracts with either an inverted
domestic corporation, or a subsidiary of an inverted domestic
corporation, unless the exception at 9.108-2(b) applies or the
requirement is waived in accordance with the procedures at 9.108-4.
(2) Representation. The Offeror represents that--
(i) It [squ] is, [squ] is not an inverted domestic corporation; and
(ii) It [squ] is, [squ] is not a subsidiary of an inverted domestic
corporation.
(o) Prohibition on contracting with entities engaging in certain
activities or transactions relating to Iran. (1) The offeror shall email
questions concerning sensitive technology to the Department of State at
[email protected].
(2) Representation and certifications. Unless a waiver is granted or
an exception applies as provided in paragraph (o)(3) of this provision,
by submission of its offer, the offeror--
(i) Represents, to the best of its knowledge and belief, that the
offeror does not export any sensitive technology to the government of
Iran or any entities or individuals owned or controlled by, or acting on
behalf or at the direction of, the government of Iran;
(ii) Certifies that the offeror, or any person owned or controlled
by the offeror, does not engage in any activities for which sanctions
may be imposed under section 5 of the Iran Sanctions Act; and
(iii) Certifies that the offeror, and any person owned or controlled
by the offeror, does not knowingly engage in any transaction that
exceeds $3,500 with Iran's Revolutionary Guard Corps or any of its
officials, agents, or affiliates, the property and interests in property
of which are blocked pursuant to the International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.) (see OFAC's Specially Designated
Nationals and Blocked Persons List at https://www.treasury.gov/resource-
center/sanctions/SDN-List/Pages/default.aspx).
(3) The representation and certification requirements of paragraph
(o)(2) of this provision do not apply if--
(i) This solicitation includes a trade agreements certification
(e.g., 52.212-3(g) or a comparable agency provision); and
(ii) The offeror has certified that all the offered products to be
supplied are designated country end products.
(p) Ownership or Control of Offeror. (Applies in all solicitations
when there is a requirement to be registered in SAM or a requirement to
have a unique entity identifer in the solicitation).
(1) The Offeror represents that it [square] has or [square] does not
have an immediate owner. If the Offeror has more than one immediate
owner (such as a joint venture), then the Offeror shall respond to
paragraph (2) and if applicable, paragraph (3) of this provision for
each participant in the joint venture.
(2) If the Offeror indicates ``has'' in paragraph (p)(1) of this
provision, enter the following information:
Immediate owner CAGE code: ____.
Immediate owner legal name: ____.
(Do not use a ``doing business as'' name)
Is the immediate owner owned or controlled by another entity:
[square] Yes or [square] No.
(3) If the Offeror indicates ``yes'' in paragraph (p)(2) of this
provision, indicating that the immediate owner is owned or controlled by
another entity, then enter the following information:
Highest-level owner CAGE code: ____.
Highest-level owner legal name: ____.
(Do not use a ``doing business as'' name)
(q) Representation by Corporations Regarding Delinquent Tax
Liability or a Felony Conviction under any Federal Law. (1) As required
by sections 744 and 745 of Division E of the Consolidated and Further
Continuing Appropriations Act, 2015 (Pub. L. 113-235), and similar
[[Page 77]]
provisions, if contained in subsequent appropriations acts, The
Government will not enter into a contract with any corporation that--
(i) Has any unpaid Federal tax liability that has been assessed, for
which all judicial and administrative remedies have been exhausted or
have lapsed, and that is not being paid in a timely manner pursuant to
an agreement with the authority responsible for collecting the tax
liability, where the awarding agency is aware of the unpaid tax
liability, unless an agency has considered suspension or debarment of
the corporation and made a determination that suspension or debarment is
not necessary to protect the interests of the Government; or
(ii) Was convicted of a felony criminal violation under any Federal
law within the preceding 24 months, where the awarding agency is aware
of the conviction, unless an agency has considered suspension or
debarment of the corporation and made a determination that this action
is not necessary to protect the interests of the Government.
(2) The Offeror represents that--
(i) It is [ ] is not [ ] a corporation that has any unpaid Federal
tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is
not being paid in a timely manner pursuant to an agreement with the
authority responsible for collecting the tax liability; and
(ii) It is [ ] is not [ ] a corporation that was convicted of a
felony criminal violation under a Federal law within the preceding 24
months.
(r) Predecessor of Offeror. (Applies in all solicitations that
include the provision at 52.204-16, Commercial and Government Entity
Code Reporting.)
(1) The Offeror represents that it [square] is or [square] is not a
successor to a predecessor that held a Federal contract or grant within
the last three years.
(2) If the Offeror has indicated ``is'' in paragraph (r)(1) of this
provision, enter the following information for all predecessors that
held a Federal contract or grant within the last three years (if more
than one predecessor, list in reverse chronological order):
Predecessor CAGE code: ____ (or mark ``Unknown'').
Predecessor legal name: ____.
(Do not use a ``doing business as'' name).
(s) [Reserved]
(t) Public Disclosure of Greenhouse Gas Emissions and Reduction
Goals. Applies in all solicitations that require offerors to register in
SAM (52.212-1(k)).
(1) This representation shall be completed if the Offeror received
$7.5 million or more in contract awards in the prior Federal fiscal
year. The representation is optional if the Offeror received less than
$7.5 million in Federal contract awards in the prior Federal fiscal
year.
(2) Representation. [Offeror to check applicable block(s) in
paragraph (t)(2)(i) and (ii)]. (i) The Offeror (itself or through its
immediate owner or highest-level owner) [ ] does, [ ] does not publicly
disclose greenhouse gas emissions, i.e., makes available on a publicly
accessible Web site the results of a greenhouse gas inventory, performed
in accordance with an accounting standard with publicly available and
consistently applied criteria, such as the Greenhouse Gas Protocol
Corporate Standard.
(ii) The Offeror (itself or through its immediate owner or highest-
level owner) [ ] does, [ ] does not publicly disclose a quantitative
greenhouse gas emissions reduction goal, i.e., make available on a
publicly accessible Web site a target to reduce absolute emissions or
emissions intensity by a specific quantity or percentage.
(iii) A publicly accessible Web site includes the Offeror's own Web
site or a recognized, third-party greenhouse gas emissions reporting
program.
(3) If the Offeror checked ``does'' in paragraphs (t)(2)(i) or
(t)(2)(ii) of this provision, respectively, the Offeror shall provide
the publicly accessible Web site(s) where greenhouse gas emissions and/
or reduction goals are reported.
(u)(1) In accordance with section 743 of Division E, Title VII, of
the Consolidated and Further Continuing Appropriations Act, 2015 (Pub.
L. 113-235) and its successor provisions in subsequent appropriations
acts (and as extended in continuing resolutions), Government agencies
are not permitted to use appropriated (or otherwise made available)
funds for contracts with an entity that requires employees or
subcontractors of such entity seeking to report waste, fraud, or abuse
to sign internal confidentiality agreements or statements prohibiting or
otherwise restricting such employees or subcontractors from lawfully
reporting such waste, fraud, or abuse to a designated investigative or
law enforcement representative of a Federal department or agency
authorized to receive such information.
(2) The prohibition in paragraph (u)(1) of this provision does not
contravene requirements applicable to Standard Form 312 (Classified
Information Nondisclosure Agreement), Form 4414 (Sensitive Compartmented
Information Nondisclosure Agreement), or any other form issued by a
Federal department or agency governing the nondisclosure of classified
information.
(3) Representation. By submission of its offer, the Offeror
represents that it will not require its employees or subcontractors to
sign or comply with internal confidentiality agreements or statements
prohibiting or otherwise restricting such employees or subcontractors
from lawfully reporting waste,
[[Page 78]]
fraud, or abuse related to the performance of a Government contract to a
designated investigative or law enforcement representative of a Federal
department or agency authorized to receive such information (e.g.,
agency Office of the Inspector General).
(End of provision)
Alternate I (OCT 2014). As prescribed in 12.301(b)(2), add the
following paragraph (c)(11) to the basic provision:
(11) (Complete if the offeror has represented itself as
disadvantaged in paragraph (c)(4) of this provision.)
__ Black American.
__ Hispanic American.
__ Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians).
_Asian-Pacific American (persons with origins from Burma, Thailand,
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos,
Cambodia (Kampuchea), Vietnam, Korea, The Philippines, Republic of
Palau, Republic of the Marshall Islands, Federated States of Micronesia,
the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao,
Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, or Nauru).
__ Subcontinent Asian (Asian-Indian) American (persons with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives
Islands, or Nepal).
__ Individual/concern, other than one of the preceding.
(End of provision)
[60 FR 48252, Sept. 18, 1995]
Editorial Note: For Federal Register citations affecting section
52.212-3, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 83 FR 48699, Sept. 26, 2018, section 52.212-
3 was amended by:
a. Revising the date and the introductory text of the provision;
b. Revising paragraph (b);
c. Removing from paragraph (l) introductory text ``the SAM
database'' and adding ``SAM'' in its place; and
d. Removing from paragraph (t) introductory text ``(52.212-1(k))''
and adding ``(12.301(d)(1))'' in its place.
The amendments are effective Oct. 26, 2018. For the convenience of
the user, the revised text is set forth as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Oct 2018)
The Offeror shall complete only paragraph (b) of this provision if
the Offeror has completed the annual representations and certification
electronically in the System for Award Management (SAM) accessed through
https://www.sam.gov. If the Offeror has not completed the annual
representations and certifications electronically, the Offeror shall
complete only paragraphs (c) through (u)) of this provision.
* * * * *
(b)(1) Annual Representations and Certifications. Any changes
provided by the Offeror in paragraph (b)(2) of this provision do not
automatically change the representations and certifications in SAM.
(2) The offeror has completed the annual representations and
certifications electronically in SAM accessed through http://
www.sam.gov. After reviewing SAM information, the Offeror verifies by
submission of this offer that the representations and certifications
currently posted electronically at FAR 52.212-3, Offeror Representations
and Certifications--Commercial Items, have been entered or updated in
the last 12 months, are current, accurate, complete, and applicable to
this solicitation (including the business size standard applicable to
the NAICS code referenced for this solicitation), at the time this offer
is submitted and are incorporated in this offer by reference (see FAR
4.1201), except for paragraphs __.
[Offeror to identify the applicable paragraphs at (c) through (u) of
this provision that the offeror has completed for the purposes of this
solicitation only, if any.
These amended representation(s) and/or certification(s) are also
incorporated in this offer and are current, accurate, and complete as of
the date of this offer.
Any changes provided by the offeror are applicable to this
solicitation only, and do not result in an update to the representations
and certifications posted electronically on SAM.]
* * * * *
52.212-4 Contract Terms and Conditions--Commercial Items.
As prescribed in 12.301(b)(3), insert the following clause:
Contract Terms and Conditions--Commercial Items (Jan 2017)
(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
[[Page 79]]
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 postacceptance
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 41 U.S.C. chapter 71,
Contract Disputes. 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 of 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, 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-- System for Award Management, or
52.232-34, Payment by Electronic Funds Transfer--Other Than System for
Award Management), 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.
[[Page 80]]
(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 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 41 U.S.C. 7109, 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
[[Page 81]]
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. chapter
37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87,
Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower
protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21
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, Compliance with Laws Unique to
Government Contracts, and Unauthorized Obligations 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) System for Award Management (SAM) (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 SAM database, and for any
liability resulting from the Government's reliance on inaccurate or
incomplete data. To remain registered in the SAM 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 SAM database to ensure it is current,
accurate and complete. Updating information in the SAM 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 SAM 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 SAM 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 SAM 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 SAM database. Information provided to the Contractor's SAM 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.
[[Page 82]]
(4) Offerors and Contractors may obtain information on registration
and annual confirmation requirements via SAM accessed through https://
www.acquisition.gov.
(u) Unauthorized Obligations. (1) Except as stated in paragraph
(u)(2) of this clause, when any supply or service acquired under this
contract is subject to any End User License Agreement (EULA), Terms of
Service (TOS), or similar legal instrument or agreement, that includes
any 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 (31 U.S.C.
1341), the following shall govern:
(i) Any such 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 EULA, TOS, or similar legal instrument or agreement. If the EULA,
TOS, or similar legal instrument or agreement is invoked through an ``I
agree'' click box or other comparable 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 clause is deemed to be stricken from the EULA, TOS,
or similar legal instrument or agreement.
(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.
(v) Incorporation by reference. The Contractor's representations and
certifications, including those completed electronically via the System
for Award Management (SAM), are incorporated by reference into the
contract.
(End of clause)
Alternate I (JAN 2017). When a time-and-materials or labor-hour
contract is contemplated, substitute the following paragraphs (a), (e),
(i), (l), and (m) for those in the basic clause.
(a) Inspection/Acceptance. (1) The Government has the right to
inspect and test all materials furnished and services performed under
this contract, to the extent practicable at all places and times,
including the period of performance, and in any event before acceptance.
The Government may also inspect the plant or plants of the Contractor or
any subcontractor engaged in contract performance. The Government will
perform inspections and tests in a manner that will not unduly delay the
work.
(2) If the Government performs inspection or tests on the premises
of the Contractor or a subcontractor, the Contractor shall furnish and
shall require subcontractors to furnish all reasonable facilities and
assistance for the safe and convenient performance of these duties.
(3) Unless otherwise specified in the contract, the Government will
accept or reject services and materials at the place of delivery as
promptly as practicable after delivery, and they will be presumed
accepted 60 days after the date of delivery, unless accepted earlier.
(4) At any time during contract performance, but not later than 6
months (or such other time as may be specified in the contract) after
acceptance of the services or materials last delivered under this
contract, the Government may require the Contractor to replace or
correct services or materials that at time of delivery failed to meet
contract requirements. Except as otherwise specified in paragraph (a)(6)
of this clause, the cost of replacement or correction shall be
determined under paragraph (i) of this clause, but the ``hourly rate''
for labor hours incurred in the replacement or correction shall be
reduced to exclude that portion of the rate attributable to profit.
Unless otherwise specified below, the portion of the ``hourly rate''
attributable to profit shall be 10 percent. The Contractor shall not
tender for acceptance materials and services required to be replaced or
corrected without disclosing the former requirement for replacement or
correction, and, when required, shall disclose the corrective action
taken. [Insert portion of labor rate attributable to profit.]
(5)(i) If the Contractor fails to proceed with reasonable promptness
to perform required replacement or correction, and if the replacement or
correction can be performed within the ceiling price (or the ceiling
price as increased by the Government), the Government may--
(A) By contract or otherwise, perform the replacement or correction,
charge to the Contractor any increased cost, or deduct such increased
cost from any amounts paid or due under this contract; or
(B) Terminate this contract for cause.
(ii) Failure to agree to the amount of increased cost to be charged
to the Contractor shall be a dispute under the Disputes clause of the
contract.
(6) Notwithstanding paragraphs (a)(4) and (5) above, the Government
may at any time require the Contractor to remedy by correction or
replacement, without cost to the Government, any failure by the
Contractor to comply with the requirements of this contract, if the
failure is due to--
(i) Fraud, lack of good faith, or willful misconduct on the part of
the Contractor's managerial personnel; or
[[Page 83]]
(ii) The conduct of one or more of the Contractor's employees
selected or retained by the Contractor after any of the Contractor's
managerial personnel has reasonable grounds to believe that the employee
is habitually careless or unqualified.
(7) This clause applies in the same manner and to the same extent to
corrected or replacement materials or services as to materials and
services originally delivered under this contract.
(8) The Contractor has no obligation or liability under this
contract to correct or replace materials and services that at time of
delivery do not meet contract requirements, except as provided in this
clause or as may be otherwise specified in the contract.
(9) Unless otherwise specified in the contract, the Contractor's
obligation to correct or replace Government-furnished property shall be
governed by the clause pertaining to Government property.
(e) Definitions. (1) The clause at FAR 52.202-1, Definitions, is
incorporated herein by reference. As used in this clause--
(i) Direct materials means those materials that enter directly into
the end product, or that are used or consumed directly in connection
with the furnishing of the end product or service.
(ii) Hourly rate means the rate(s) prescribed in the contract for
payment for labor that meets the labor category qualifications of a
labor category specified in the contract that are--
(A) Performed by the contractor;
(B) Performed by the subcontractors; or
(C) Transferred between divisions, subsidiaries, or affiliates of
the contractor under a common control.
(iii) Materials means--
(A) Direct materials, including supplies transferred between
divisions, subsidiaries, or affiliates of the contractor under a common
control;
(B) Subcontracts for supplies and incidental services for which
there is not a labor category specified in the contract;
(C) Other direct costs (e.g., incidental services for which there is
not a labor category specified in the contract, travel, computer usage
charges, etc.);
(D) The following subcontracts for services which are specifically
excluded from the hourly rate: [Insert any subcontracts for services to
be excluded from the hourly rates prescribed in the schedule.]; and
(E) Indirect costs specifically provided for in this clause.
(iv) Subcontract means any contract, as defined in FAR Subpart 2.1,
entered into with a subcontractor to furnish supplies or services for
performance of the prime contract or a subcontract including transfers
between divisions, subsidiaries, or affiliates of a contractor or
subcontractor. It includes, but is not limited to, purchase orders, and
changes and modifications to purchase orders.
(i) Payments. (1) Work performed. The Government will pay the
Contractor as follows upon the submission of commercial invoices
approved by the Contracting Officer:
(i) Hourly rate.
(A) The amounts shall be computed by multiplying the appropriate
hourly rates prescribed in the contract by the number of direct labor
hours performed. Fractional parts of an hour shall be payable on a
prorated basis.
(B) The rates shall be paid for all labor performed on the contract
that meets the labor qualifications specified in the contract. Labor
hours incurred to perform tasks for which labor qualifications were
specified in the contract will not be paid to the extent the work is
performed by individuals that do not meet the qualifications specified
in the contract, unless specifically authorized by the Contracting
Officer.
(C) Invoices may be submitted once each month (or at more frequent
intervals, if approved by the Contracting Officer) to the Contracting
Officer or the authorized representative.
(D) When requested by the Contracting Officer or the authorized
representative, the Contractor shall substantiate invoices (including
any subcontractor hours reimbursed at the hourly rate in the schedule)
by evidence of actual payment, individual daily job timecards, records
that verify the employees meet the qualifications for the labor
categories specified in the contract, or other substantiation specified
in the contract.
(E) Unless the Schedule prescribes otherwise, the hourly rates in
the Schedule shall not be varied by virtue of the Contractor having
performed work on an overtime basis.
(1) If no overtime rates are provided in the Schedule and the
Contracting Officer approves overtime work in advance, overtime rates
shall be negotiated.
(2) Failure to agree upon these overtime rates shall be treated as a
dispute under the Disputes clause of this contract.
(3) If the Schedule provides rates for overtime, the premium portion
of those rates will be reimbursable only to the extent the overtime is
approved by the Contracting Officer.
(ii) Materials.
(A) If the Contractor furnishes materials that meet the definition
of a commercial item at 2.101, the price to be paid for such materials
shall not exceed the Contractor's established catalog or market price,
adjusted to reflect the--
(1) Quantities being acquired; and
(2) Any modifications necessary because of contract requirements.
(B) Except as provided for in paragraph (i)(1)(ii)(A) and (D)(2) of
this clause, the Government will reimburse the Contractor the
[[Page 84]]
actual cost of materials (less any rebates, refunds, or discounts
received by the contractor that are identifiable to the contract)
provided the Contractor--
(1) Has made payments for materials in accordance with the terms and
conditions of the agreement or invoice; or
(2) Makes these payments within 30 days of the submission of the
Contractor's payment request to the Government and such payment is in
accordance with the terms and conditions of the agreement or invoice.
(C) To the extent able, the Contractor shall--
(1) Obtain materials at the most advantageous prices available with
due regard to securing prompt delivery of satisfactory materials; and
(2) Give credit to the Government for cash and trade discounts,
rebates, scrap, commissions, and other amounts that are identifiable to
the contract.
(D) Other Costs. Unless listed below, other direct and indirect
costs will not be reimbursed.
(1) Other Direct Costs. The Government will reimburse the Contractor
on the basis of actual cost for the following, provided such costs
comply with the requirements in paragraph (i)(1)(ii)(B) of this clause:
[Insert each element of other direct costs (e.g., travel, computer usage
charges, etc. Insert ``None'' if no reimbursement for other direct costs
will be provided. If this is an indefinite delivery contract, the
Contracting Officer may insert ``Each order must list separately the
elements of other direct charge(s) for that order or, if no
reimbursement for other direct costs will be provided, insert `None'''.]
(2) Indirect Costs (Material Handling, Subcontract Administration,
etc.). The Government will reimburse the Contractor for indirect costs
on a pro-rata basis over the period of contract performance at the
following fixed price: [Insert a fixed amount for the indirect costs and
payment schedule. Insert ``$0'' if no fixed price reimbursement for
indirect costs will be provided. (If this is an indefinite delivery
contract, the Contracting Officer may insert ``Each order must list
separately the fixed amount for the indirect costs and payment schedule
or, if no reimbursement for indirect costs, insert `None').'']
(2) Total cost. It is estimated that the total cost to the
Government for the performance of this contract shall not exceed the
ceiling price set forth in the Schedule and the Contractor agrees to use
its best efforts to perform the work specified in the Schedule and all
obligations under this contract within such ceiling price. If at any
time the Contractor has reason to believe that the hourly rate payments
and material costs that will accrue in performing this contract in the
next succeeding 30 days, if added to all other payments and costs
previously accrued, will exceed 85 percent of the ceiling price in the
Schedule, the Contractor shall notify the Contracting Officer giving a
revised estimate of the total price to the Government for performing
this contract with supporting reasons and documentation. If at any time
during the performance of this contract, the Contractor has reason to
believe that the total price to the Government for performing this
contract will be substantially greater or less than the then stated
ceiling price, the Contractor shall so notify the Contracting Officer,
giving a revised estimate of the total price for performing this
contract, with supporting reasons and documentation. If at any time
during performance of this contract, the Government has reason to
believe that the work to be required in performing this contract will be
substantially greater or less than the stated ceiling price, the
Contracting Officer will so advise the Contractor, giving the then
revised estimate of the total amount of effort to be required under the
contract.
(3) Ceiling price. The Government will not be obligated to pay the
Contractor any amount in excess of the ceiling price in the Schedule,
and the Contractor shall not be obligated to continue performance if to
do so would exceed the ceiling price set forth in the Schedule, unless
and until the Contracting Officer notifies the Contractor in writing
that the ceiling price has been increased and specifies in the notice a
revised ceiling that shall constitute the ceiling price for performance
under this contract. When and to the extent that the ceiling price set
forth in the Schedule has been increased, any hours expended and
material costs incurred by the Contractor in excess of the ceiling price
before the increase shall be allowable to the same extent as if the
hours expended and material costs had been incurred after the increase
in the ceiling price.
(4) Access to records. At any time before final payment under this
contract, the Contracting Officer (or authorized representative) will
have access to the following (access shall be limited to the listing
below unless otherwise agreed to by the Contractor and the Contracting
Officer):
(i) Records that verify that the employees whose time has been
included in any invoice meet the qualifications for the labor categories
specified in the contract;
(ii) For labor hours (including any subcontractor hours reimbursed
at the hourly rate in the schedule), when timecards are required as
substantiation for payment--
(A) The original timecards (paper-based or electronic);
(B) The Contractor's timekeeping procedures;
(C) Contractor records that show the distribution of labor between
jobs or contracts; and
(D) Employees whose time has been included in any invoice for the
purpose of
[[Page 85]]
verifying that these employees have worked the hours shown on the
invoices.
(iii) For material and subcontract costs that are reimbursed on the
basis of actual cost--
(A) Any invoices or subcontract agreements substantiating material
costs; and
(B) Any documents supporting payment of those invoices.
(5) Overpayments/Underpayments. Each payment previously made shall
be subject to reduction to the extent of amounts, on preceding invoices,
that are found by the Contracting Officer not to have been properly
payable and shall also be subject to reduction for overpayments or to
increase for underpayments. The Contractor shall promptly pay any such
reduction within 30 days unless the parties agree otherwise. The
Government within 30 days will pay any such increases, unless the
parties agree otherwise. The Contractor's payment will be made by check.
If the Contractor becomes aware of a duplicate invoice payment or that
the Government has otherwise overpaid on an 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 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)(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 41 U.S.C. 7109, which is applicable to the
period in which the amount becomes due, and then at the rate applicable
for each six month period as established 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 in a timely manner;
(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 FAR 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.
(viii) Upon receipt and approval of the invoice designated by the
Contractor as the ``completion invoice'' and supporting documentation,
and upon compliance by the Contractor with all terms of this contract,
any outstanding balances will be paid within 30 days unless the parties
agree otherwise. The completion invoice, and supporting documentation,
shall be submitted by the Contractor as promptly as practicable
following completion of the work under this contract, but in no event
later than 1 year (or such longer period as the Contracting Officer may
approve in writing) from the date of completion.
(7) Release of claims. The Contractor, and each assignee under an
assignment entered into under this contract and in effect at the time of
final payment under this contract, shall execute and deliver, at the
time of and as a condition precedent to final payment under this
contract, a release discharging the Government, its officers, agents,
and employees of and from all liabilities, obligations, and claims
arising out of or under this contract, subject only to the following
exceptions.
(i) Specified claims in stated amounts, or in estimated amounts if
the amounts are not susceptible to exact statement by the Contractor.
[[Page 86]]
(ii) Claims, together with reasonable incidental expenses, based
upon the liabilities of the Contractor to third parties arising out of
performing this contract, that are not known to the Contractor on the
date of the execution of the release, and of which the Contractor gives
notice in writing to the Contracting Officer not more than 6 years after
the date of the release or the date of any notice to the Contractor that
the Government is prepared to make final payment, whichever is earlier.
(iii) Claims for reimbursement of costs (other than expenses of the
Contractor by reason of its indemnification of the Government against
patent liability), including reasonable incidental expenses, incurred by
the Contractor under the terms of this contract relating to patents.
(8) 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.
(9) Electronic Funds Transfer (EFT). If the Government makes payment
by EFT, see 52.212-5(b) for the appropriate EFT clause.
(10) 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 that appears on the payment check or the
specified payment date if an electronic funds transfer payment is made.
(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 an amount
for direct labor hours (as defined in the Schedule of the contract)
determined by multiplying the number of direct labor hours expended
before the effective date of termination by the hourly rate(s) in the
contract, less any hourly rate payments already made to the Contractor
plus reasonable charges the Contractor can demonstrate to the
satisfaction of the Government using its standard record keeping system
that 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 that 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 written
request, with adequate assurances of future performance. Subject to the
terms of this contract, the Contractor shall be paid an amount computed
under paragraph (i) Payments of this clause, but the ``hourly rate'' for
labor hours expended in furnishing work not delivered to or accepted by
the Government shall be reduced to exclude that portion of the rate
attributable to profit. Unless otherwise specified in paragraph (a)(4)
of this clause, the portion of the ``hourly rate'' attributable to
profit shall be 10 percent. In the event of termination for cause, 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.
[60 FR 48254, Sept. 18, 1995]
Editorial Note: For Federal Register citations affecting section
52.212-4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 83 FR 48699, Sept. 26, 2018, section 52.212-
4 was amended by revising the date of the clause and removing and
reserving paragraph (t), effective Oct. 26, 2018. For the convenience of
the user, the revised text is set forth as follows:
52.212-4 Contract Terms and Conditions--Commercial Items.
* * * * *
Contract Terms and Conditions--Commercial Items (Oct 2018)
* * * * *
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
As prescribed in 12.301(b)(4), insert the following clause:
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (AUG 2018)
(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) 52.203-19, Prohibition on Requiring Certain Internal
Confidentiality Agreements or
[[Page 87]]
Statements (JAN 2017) (section 743 of Division E, Title VII, of the
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L.
113-235) and its successor provisions in subsequent appropriations acts
(and as extended in continuing resolutions)).
__ (2) 52.204-23, Prohibition on Contracting for Hardware, Software,
and Services Developed or Provided by Kaspersky Lab and Other Covered
Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).
(3) 52.209-10, Prohibition on Contracting with Inverted Domestic
Corporations (NOV 2015).
(4) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).
(5) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004)
(Public Laws 108-77 and 108-78 (19 U.S.C. 3805 note)).
(b) The Contractor shall comply with the FAR clauses in this
paragraph (b) that the Contracting Officer has indicated as being
incorporated in this contract by reference to implement provisions of
law or Executive orders applicable to acquisitions of commercial items:
[Contracting Officer check as appropriate.]
__ (1) 52.203-6, Restrictions on Subcontractor Sales to the
Government (SEP 2006), with Alternate I (OCT 1995) (41 U.S.C. 4704 and
10 U.S.C. 2402).
__ (2) 52.203-13, Contractor Code of Business Ethics and Conduct
(Oct 2015) (41 U.S.C. 3509).
__ (3) 52.203-15, Whistleblower Protections under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5). (Applies to contracts funded by the American Recovery and
Reinvestment Act of 2009.)
__ (4) 52.204-10, Reporting Executive Compensation and First-Tier
Subcontract Awards (Oct 2016) (Pub. L. 109-282) (31 U.S.C. 6101 note).
__ (5) [Reserved]
__ (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016)
(Pub. L. 111-117, section 743 of Div. C).
__ (7) 52.204-15, Service Contract Reporting Requirements for
Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743
of Div. C).
__ (8) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment. (Oct 2015) (31 U.S.C. 6101 note).
__ (9) 52.209-9, Updates of Publicly Available Information Regarding
Responsibility Matters (JUL 2013) (41 U.S.C. 2313).
__ (10) [Reserved]
__ (11)(i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source
Award (NOV 2011) (15 U.S.C. 657a).
__ (ii) Alternate I (NOV 2011) of 52.219-3.
__ (12)(i) 52.219-4, Notice of Price Evaluation Preference for
HUBZone Small Business Concerns (OCT 2014) (if the offeror elects to
waive the preference, it shall so indicate in its offer) (15 U.S.C.
657a).
__ (ii) Alternate I (JAN 2011) of 52.219-4.
__ (13) [Reserved]
__ (14)(i) 52.219-6, Notice of Total Small Business Set-Aside (NOV
2011) (15 U.S.C. 644).
__ (ii) Alternate I (NOV 2011).
__ (iii) Alternate II (NOV 2011).
__ (15)(i) 52.219-7, Notice of Partial Small Business Set-Aside (JUN
2003) (15 U.S.C. 644).
__ (ii) Alternate I (OCT 1995) of 52.219-7.
__ (iii) Alternate II (MAR 2004) of 52.219-7.
__ (16) 52.219-8, Utilization of Small Business Concerns (Nov 2016)
(15 U.S.C. 637(d)(2) and (3)).
__ (17)(i) 52.219-9, Small Business Subcontracting Plan (AUG 2018)
(15 U.S.C. 637(d)(4)).
__ (ii) Alternate I (Nov 2016) of 52.219-9.
__ (iii) Alternate II (Nov 2016) of 52.219-9.
__ (iv) Alternate III (Nov 2016) of 52.219-9.
__ (v) Alternate IV (AUG 2018) of 52.219-9.
__ (18) 52.219-13, Notice of Set-Aside of Orders (NOV 2011) (15
U.S.C. 644(r)).
__ (19) 52.219-14, Limitations on Subcontracting (JAN 2017) (15
U.S.C. 637(a)(14)).
__ (20) 52.219-16, Liquidated Damages--Subcontracting Plan (JAN
1999) (15 U.S.C. 637(d)(4)(F)(i)).
__ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small
Business Set-Aside (NOV 2011) (15 U.S.C. 657f).
__ (22) 52.219-28, Post Award Small Business Program
Rerepresentation (JUL 2013) (15 U.S.C. 632(a)(2)).
__ (23) 52.219-29, Notice of Set-Aside for, or Sole Source Award to,
Economically Disadvantaged Women-Owned Small Business Concerns (Dec
2015) (15 U.S.C. 637(m)).
__ (24) 52.219-30, Notice of Set-Aside for, or Sole Source Award to,
Women-Owned Small Business Concerns Eligible Under the Women-Owned Small
Business Program (Dec 2015) (15 U.S.C. 637(m)).
__ (25) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).
__ (26) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (Jan 2018) (E.O. 13126).
__ (27) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
__ (28)(i) 52.222-26, Equal Opportunity (SEPT 2016) (E.O. 11246).
__ (ii) Alternate I (Feb 1999) of 52.222-26.
__ (29)(i) 52.222-35, Equal Opportunity for Veterans (OCT 2015)(38
U.S.C. 4212).
__ (ii) Alternate I (July 2014) of 52.222-35.
__ (30)(i) 52.222-36, Equal Opportunity for Workers with
Disabilities (JUL 2014) (29 U.S.C. 793).
__ (ii) Alternate I (July 2014) of 52.222-36.
__ (31) 52.222-37, Employment Reports on Veterans (FEB 2016) (38
U.S.C. 4212).
__ (32) 52.222-40, Notification of Employee Rights Under the
National Labor Relations Act (DEC 2010) (E.O. 13496).
[[Page 88]]
__ (33)(i) 52.222-50, Combating Trafficking in Persons (Mar 2015)
(22 U.S.C. chapter 78 and E.O. 13627).
__ (ii) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78
and E.O. 13627).
__ (34) 52.222-54, Employment Eligibility Verification (Oct 2015).
(E. O. 12989). (Not applicable to the acquisition of commercially
available off-the-shelf items or certain other types of commercial items
as prescribed in 22.1803.)
__ (35)(i) 52.223-9, Estimate of Percentage of Recovered Material
Content for EPA-Designated Items (MAY 2008) (42 U.S.C.
6962(c)(3)(A)(ii)). (Not applicable to the acquisition of commercially
available off-the-shelf items.)
__ (ii) Alternate I (MAY 2008) of 52.223-9 (42 U.S.C.
6962(i)(2)(C)). (Not applicable to the acquisition of commercially
available off-the-shelf items.)
__ (36) 52.223-11, Ozone-Depleting Substances and High Global
Warming Potential Hydrofluorocarbons (June, 2016) (E.O. 13693).
__ (37) 52.223-12, Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693).
__ (38)(i) 52.223-13, Acquisition of EPEAT[supreg]-Registered
Imaging Equipment (JUN 2014) (E.O.s 13423 and 13514).
__ (ii) Alternate I (OCT 2015) of 52.223-13.
__ (39)(i) 52.223-14, Acquisition of EPEAT[supreg]-Registered
Televisions (Jun 2014) (E.O.s 13423 and 13514).
(ii) Alternate I (Jun 2014) of 52.223-14.
__ (40) 52.223-15, Energy Efficiency in Energy-Consuming Products
(DEC 2007) (42 U.S.C. 8259b).
__ (41)(i) 52.223-16, Acquisition of EPEAT[supreg]-Registered
Personal Computer Products (OCT 2015) (E.O.s 13423 and 13514).
__ (ii) Alternate I (Jun 2014) of 52.223-16.
__ (42) 52.223-18, Encouraging Contractor Policies to Ban Text
Messaging While Driving (AUG 2011)
__ (43) 52.223-20, Aerosols (June, 2016) (E.O. 13693).
__ (44) 52.223-21, Foams (June, 2016) (E.O. 13693).
__ (45)(i) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a).
__ (ii) Alternate I (JAN 2017) of 52.224-3.
__ (46) 52.225-1, Buy American--Supplies (MAY 2014) (41 U.S.C.
chapter 83).
__ (47)(i) 52.225-3, Buy American--Free Trade Agreements--Israeli
Trade Act (MAY 2014) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19
U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103-
182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-
138, 112-41, 112-42, and 112-43.
__ (ii) Alternate I (MAY 2014) of 52.225-3.
__ (iii) Alternate II (MAY 2014) of 52.225-3.
__ (iv) Alternate III (MAY 2014) of 52.225-3.
__ (48) 52.225-5, Trade Agreements (AUG 2018) 19 U.S.C. 2501, et
seq., 19 U.S.C. 3301 note).
__ (49) 52.225-13, Restrictions on Certain Foreign Purchases (JUNE
2008) (E.O.'s, proclamations, and statutes administered by the Office of
Foreign Assets Control of the Department of the Treasury).
__ (50) 52.225-26, Contractors Performing Private Security Functions
Outside the United States (Oct 2016) (Section 862, as amended, of the
National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302
Note).
__ (51) 52.226-4, Notice of Disaster or Emergency Area Set-Aside
(NOV 2007) (42 U.S.C. 5150).
__ (52) 52.226-5, Restrictions on Subcontracting Outside Disaster or
Emergency Area (NOV 2007) (42 U.S.C. 5150).
__ (53) 52.232-29, Terms for Financing of Purchases of Commercial
Items (FEB 2002) (41 U.S.C.4505, 10 U.S.C. 2307(f)).
__ (54) 52.232-30, Installment Payments for Commercial Items (JAN
2017) (41 U.S.C. 4505, 10 U.S.C. 2307(f)).
__ (55) 52.232-33, Payment by Electronic Funds Transfer--System for
Award Management (JUL 2013) (31 U.S.C. 3332).
__ (56) 52.232-34, Payment by Electronic Funds Transfer--Other than
System for Award Management (JUL 2013) (31 U.S.C. 3332).
__ (57) 52.232-36, Payment by Third Party (MAY 2014) (31 U.S.C.
3332).
__ (58) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5
U.S.C. 552a).
__ (59) 52.242-5, Payments to Small Business Subcontractors (JAN
2017)(15 U.S.C. 637(d)(12)).
__ (60)(i) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C.
2631).
__ (ii) Alternate I (Apr 2003) of 52.247-64.
__ (iii) Alternate II (Feb 2006) of 52.247-64.
(c) The Contractor shall comply with the FAR clauses in this
paragraph (c), applicable to commercial services, that the Contracting
Officer has indicated as being incorporated in this contract by
reference to implement provisions of law or Executive orders applicable
to acquisitions of commercial items: [Contracting Officer check as
appropriate.]
__ (1) 52.222-17, Nondisplacement of Qualified Workers (May 2014)
(E.O. 13495).
__ (2) 52.222-41, Service Contract Labor Standards (AUG 2018) (41
U.S.C. chapter 67).
__ (3) 52.222-42, Statement of Equivalent Rates for Federal Hires
(MAY 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).
__ (4) 52.222-43, Fair Labor Standards Act and Service Contract
Labor Standards-Price Adjustment (Multiple Year and Option Contracts)
(AUG 2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67).
__ (5) 52.222-44, Fair Labor Standards Act and Service Contract
Labor Standards--Price Adjustment (MAY 2014) (29 U.S.C 206 and 41 U.S.C.
chapter 67).
[[Page 89]]
__ (6) 52.222-51, Exemption from Application of the Service Contract
Labor Standards to Contracts for Maintenance, Calibration, or Repair of
Certain Equipment--Requirements (MAY 2014) (41 U.S.C. chapter 67).
__ (7) 52.222-53, Exemption from Application of the Service Contract
Labor Standards to Contracts for Certain Services--Requirements (MAY
2014) (41 U.S.C. chapter 67).
__ (8) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC
2015).
__ (9) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN
2017) (E.O. 13706).
__ (10) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations (MAY 2014) (42 U.S.C. 1792).
__ (11) 52.237-11, Accepting and Dispensing of $1 Coin (SEP 2008)
(31 U.S.C. 5112(p)(1)).
(d) Comptroller General Examination of Record. The Contractor shall
comply with the provisions of this paragraph (d) if this contract was
awarded using other than sealed bid, is in excess of the simplified
acquisition threshold, and does not contain the clause at 52.215-2,
Audit and Records--Negotiation.
(1) The Comptroller General of the United States, or an authorized
representative of the Comptroller General, shall have access to and
right to examine any of the Contractor's directly pertinent records
involving transactions related to this contract.
(2) The Contractor shall make available at its offices at all
reasonable times the records, materials, and other evidence for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in FAR Subpart
4.7, Contractor Records Retention, of the other clauses of this
contract. If this contract is completely or partially terminated, the
records relating to the work terminated shall be made available for 3
years after any resulting final termination settlement. Records relating
to appeals under the disputes clause or to litigation or the settlement
of claims arising under or relating to this contract shall be made
available until such appeals, litigation, or claims are finally
resolved.
(3) As used in this clause, records include books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of form. This does not require the Contractor to create
or maintain any record that the Contractor does not maintain in the
ordinary course of business or pursuant to a provision of law.
(e)(1) Notwithstanding the requirements of the clauses in paragraphs
(a), (b), (c), and (d) of this clause, the Contractor is not required to
flow down any FAR clause, other than those in this paragraph (e)(1) of
this paragraph in a subcontract for commercial items. Unless otherwise
indicated below, the extent of the flow down shall be as required by the
clause--
(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct
2015) (41 U.S.C. 3509).
(ii) 52.203-19, Prohibition on Requiring Certain Internal
Confidentiality Agreements or Statements (JAN 2017) (section 743 of
Division E, Title VII, of the Consolidated and Further Continuing
Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions
in subsequent appropriations acts (and as extended in continuing
resolutions)).
(iii) 52.204-23, Prohibition on Contracting for Hardware, Software,
and Services Developed or Provided by Kaspersky Lab and Other Covered
Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).
(iv) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15
U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further
subcontracting opportunities.If the subcontract (except subcontracts to
small business concerns) exceeds $700,000 ($1.5 million for construction
of any public facility), the subcontractor must include 52.219-8 in
lower tier subcontracts that offer subcontracting opportunities.
(v) 52.222-17, Nondisplacement of Qualified Workers (MAY 2014) (E.O.
13495). Flow down required in accordance with paragraph (l) of FAR
clause 52.222-17.
(vi) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
(vii) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246).
(viii) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38
U.S.C. 4212).
(ix) 52.222-36, Equal Opportunity for Workers with Disabilities
(July 2014) (29 U.S.C. 793).
(x) 52.222-37, Employment Reports on Veterans (FEB 2016) (38 U.S.C.
4212).
(xi) 52.222-40, Notification of Employee Rights Under the National
Labor Relations Act (DEC 2010) (E.O. 13496). Flow down required in
accordance with paragraph (f) of FAR clause 52.222-40.
(xii) 52.222-41, Service Contract Labor Standards (AUG 2018)(41
U.S.C. chapter 67).
(xiii) __ (A) 52.222-50, Combating Trafficking in Persons (Mar 2015)
(22 U.S.C. chapter 78 and E.O. 13627).
__ (B) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and
E.O. 13627).
(xiv) 52.222-51, Exemption from Application of the Service Contract
Labor Standards to Contracts for Maintenance, Calibration, or Repair of
Certain Equipment--Requirements (MAY 2014) (41 U.S.C. chapter 67).
(xv) 52.222-53, Exemption from Application of the Service Contract
Labor Standards to Contracts for Certain Services--Requirements (MAY
2014) (41 U.S.C. chapter 67).
(xvi) 52.222-54, Employment Eligibility Verification (Oct 2015) (E.
O. 12989).
(xvii) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC
2015).
(xviii) 52.222-62 Paid Sick Leave Under Executive Order 13706 (JAN
2017) (E.O. 13706).
[[Page 90]]
(xix)(A) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a).
(B) Alternate I (JAN 2017) of 52.224-3.
(xx) 52.225-26, Contractors Performing Private Security Functions
Outside the United States (Oct 2016) (Section 862, as amended, of the
National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302
Note).
(xxi) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations (MAY 2014) (42 U.S.C. 1792). Flow down required in
accordance with paragraph (e) of FAR clause 52.226-6.
(xxii) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (FEB 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C.
2631). Flow down required in accordance with paragraph (d) of FAR clause
52.247-64.
(2) While not required, the Contractor May include in its
subcontracts for commercial items a minimal number of additional clauses
necessary to satisfy its contractual obligations.
(End of clause)
Alternate I (JULY 2014). As prescribed in 12.301(b)(4)(i), delete
paragraph (d) from the basic clause, redesignate paragraph (e) as
paragraph (d), and revise the reference to ``paragraphs (a), (b), (c),
or (d) of this clause'' in the redesignated paragraph (d) to read
``paragraphs (a), (b), and (c) of this clause''.
Alternate II (AUG 2018). As prescribed in 12.301(b)(4)(ii),
substitute the following paragraphs (d)(1) and (e)(1) for paragraphs
(d)(1) and (e)(1) of the basic clause as follows:
(d)(1) The Comptroller General of the United States, an appropriate
Inspector General appointed under section 3 or 8G of the Inspector
General Act of 1978 (5 U.S.C. App.), or an authorized representative of
either of the foregoing officials shall have access to and right to--
(i) Examine any of the Contractor's or any subcontractors' records
that pertain to, and involve transactions relating to, this contract;
and
(ii) Interview any officer or employee regarding such transactions.
(e)(1) Notwithstanding the requirements of the clauses in paragraphs
(a), (b), and (c), of this clause, the Contractor is not required to
flow down any FAR clause in a subcontract for commercial items, other
than--
(i) Paragraph (d) of this clause. This paragraph flows down to all
subcontracts, except the authority of the Inspector General under
paragraph (d)(1)(ii) does not flow down; and
(ii) Those clauses listed in this paragraph (e)(1). Unless otherwise
indicated below, the extent of the flow down shall be as required by the
clause--
(A) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct
2015) (41 U.S.C. 3509).
(B) 52.203--15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5).
(C) 52.204-23, Prohibition on Contracting for Hardware, Software,
and Services Developed or Provided by Kaspersky Lab and Other Covered
Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).
(D) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15
U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further
subcontracting opportunities. If the subcontract (except subcontracts to
small business concerns) exceeds $700,000 ($1.5 million for construction
of any public facility), the subcontractor must include 52.219-8 in
lower tier subcontracts that offer subcontracting opportunities.
(E) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
(F) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246).
(G) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C.
4212).
(H) 52.222-36, Equal Opportunity for Workers with Disabilities (July
2014) (29 U.S.C. 793).
(I) 52.222-40, Notification of Employee Rights Under the National
Labor Relations Act (DEC 2010) (E.O. 13496). Flow down required in
accordance with paragraph (f) of FAR clause 52.222-40.
(J) 52.222-41, Service Contract Labor Standards (AUG 2018)(41 U.S.C.
chapter 67).
(K) __ (1) 52.222-50, Combating Trafficking in Persons (Mar 2015)
(22 U.S.C. chapter 78 and E.O. 13627).
__ (2) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and
E.O. 13627).
(L) 52.222-51, Exemption from Application of the Service Contract
Labor Standards to Contracts for Maintenance, Calibration, or Repair of
Certain Equipment--Requirements (MAY 2014) (41 U.S.C. chapter 67).
(M) 52.222-53, Exemption from Application of the Service Contract
Labor Standards to Contracts for Certain Services--Requirements (MAY
2014) (41 U.S.C. chapter 67).
(N) 52.222-54, Employment Eligibility Verification (Oct 2015)
(Executive Order 12989).
(O) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC 2015).
(P) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN
2017)(E.O. 13706).
(Q)(1) 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a).
(2) Alternate I (JAN 2017) of 52.224-3.
(R) 52.225-26, Contractors Performing Private Security Functions
Outside the United States (OCT 2016) (Section 862, as amended,
[[Page 91]]
of the National Defense Authorization Act for Fiscal Year 2008; 10
U.S.C. 2302 Note).
(S) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations. (MAY 2014) (42 U.S.C. 1792). Flow down required in
accordance with paragraph (e) of FAR clause 52.226-6.
(T) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
Vessels (FEB 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631). Flow
down required in accordance with paragraph (d) of FAR clause 52.247-64.
[60 FR 48255, Sept. 18, 1995]
Editorial Note: For Federal Register citations affecting section
52.212-5, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Notes: 1. At 83 FR 48699, Sept. 26, 2018, section
52.212-5 was amended by revising the date of the clause and paragraphs
(b)(4), (b)(9), (b)(16), (b)(55), (e)(1)(iv), Alternate II heading and
introductory text, and paragraph (e)(1)(ii)(D) of Alternate II,
effective Oct. 26, 2018. For the convenience of the user, the revised
text is set forth as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Oct 2018)
* * * * *
(b) * * *
* * * * *
__(4) 52.204-10, Reporting Executive Compensation and First-Tier
Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).
* * * * *
__(9) 52.209-9, Updates of Publicly Available Information Regarding
Responsibility Matters (Oct 2018) (41 U.S.C. 2313).
* * * * *
__(16) 52.219-8, Utilization of Small Business Concerns (Oct 2018)
(15 U.S.C. 637(d)(2) and (3)).
* * * * *
__(55) 52.232-33, Payment by Electronic Funds Transfer--System for
Award Management (Oct 2018) (31 U.S.C. 3332).
* * * * *
(e)(1) * * *
(iv) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15
U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further
subcontracting opportunities. If the subcontract (except subcontracts to
small business concerns) exceeds $700,000 ($1.5 million for construction
of any public facility), the subcontractor must include 52.219-8 in
lower tier subcontracts that offer subcontracting opportunities.
* * * * *
Alternate II (Oct 2018). As prescribed in 12.301(b)(4)(ii),
substitute the following paragraphs (d)(1) and (e)(1) for paragraphs
(d)(1) and (e)(1) of the basic clause as follows:
* * * * *
(e)(1) * * *
(ii) * * *
(D) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15
U.S.C. 637(d)(2) and (3)), in all subcontracts that offer further
subcontracting opportunities. If the subcontract (except subcontracts to
small business concerns) exceeds $700,000 ($1.5 million for construction
of any public facility), the subcontractor must include 52.219-8 in
lower tier subcontracts that offer subcontracting opportunities.
* * * * *
2. At 83 FR 48701, Sept. 26, 2018, section 52.212-5 was amended by
revising the date of the clause and removing paragraph (c)(11),
effective Oct. 26, 2018. For the convenience of the user, the revised
text is set forth as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Oct 2018)
* * * * *
52.213-1 Fast Payment Procedure.
As prescribed in 13.404, insert the following clause:
[[Page 92]]
Fast Payment Procedure (MAY 2006)
(a) General. The Government will pay invoices based on the
Contractor's delivery to a post office or common carrier (or, if shipped
by other means, to the point of first receipt by the Government).
(b) Responsibility for supplies. (1) Title to the supplies passes to
the Government upon delivery to--
(i) A post office or common carrier for shipment to the specific
destination; or
(ii) The point of first receipt by the Government, if shipment is by
means other than Postal Service or common carrier.
(2) Notwithstanding any other provision of the contract, order, or
blanket purchase agreement, the Contractor shall--
(i) Assume all responsibility and risk of loss for supplies not
received at destination, damaged in transit, or not conforming to
purchase requirements; and
(ii) Replace, repair, or correct those supplies promptly at the
Contractor's expense, if instructed to do so by the Contracting Officer
within 180 days from the date title to the supplies vests in the
Government.
(c) Preparation of invoice. (1) Upon delivery to a post office or
common carrier (or, if shipped by other means, the point of first
receipt by the Government), the Contractor shall--
(i) Prepare an invoice as provided in this contract, order, or
blanket purchase agreement; and
(ii) Display prominently on the invoice ``FAST PAY.'' Invoices not
prominently marked ``FAST PAY'' via manual or electronic means may be
accepted by the payment office for fast payment. If the payment office
declines to make fast payment, the Contractor shall be paid in
accordance with procedures applicable to invoices to which the Fast
Payment clause does not apply.
(2) If the purchase price excludes the cost of transportation, the
Contractor shall enter the prepaid shipping cost on the invoice as a
separate item. The Contractor shall not include the cost of parcel post
insurance. If transportation charges are stated separately on the
invoice, the Contractor shall retain related paid freight bills or other
transportation billings paid separately for a period of 3 years and
shall furnish the bills to the Government upon request.
(3) If this contract, order, or blanket purchase agreement requires
the preparation of a receiving report, the Contractor shall either--
(i) Submit the receiving report on the prescribed form with the
invoice; or
(ii) Include the following information on the invoice:
(A) Shipment number.
(B) Mode of shipment.
(C) At line item level--
(1) National stock number and/or manufacturer's part number;
(2) Unit of measure;
(3) Ship-To Point;
(4) Mark-For Point, if in the contract; and
(5) FEDSTRIP/MILSTRIP document number, if in the contract.
(4) If this contract, order, or blanket purchase agreement does not
require preparation of a receiving report on a prescribed form, the
Contractor shall include on the invoice the following information at the
line item level, in addition to that required in paragraph (c)(1) of
this clause:
(i) Ship-To Point.
(ii) Mark-For Point.
(iii) FEDSTRIP/MILSTRIP document number, if in the contract.
(5) Where a receiving report is not required, the Contractor shall
include a copy of the invoice in each shipment.
(d) Certification of invoice. The Contractor certifies by submitting
an invoice to the Government that the supplies being billed to the
Government have been shipped or delivered in accordance with shipping
instructions issued by the ordering officer, in the quantities shown on
the invoice, and that the supplies are in the quantity and of the
quality designated by the contract, order, or blanket purchase
agreement.
(e) FAST PAY container identification. The Contractor shall mark all
outer shipping containers ``FAST PAY.'' When outer shipping containers
are not marked ``FAST PAY,'' the payment office may make fast payment.
If the payment office declines to make fast payment, the Contractor
shall be paid in accordance with procedures applicable to invoices to
which the Fast Payment clause does not apply.
(End of clause)
[62 FR 64927, Dec. 9, 1997, as amended at 71 FR 20309, Apr. 19, 2006; 71
FR 25508, May 1, 2006]
52.213-2 Invoices.
As prescribed in 13.302-5(b), insert the following clause:
Invoices (APR 1984)
The Contractor's invoices must be submitted before payment can be
made. The Contractor will be paid on the basis of the invoice, which
must state (a) the starting and ending dates of the subscription
delivery, and (b) either that orders have been placed in effect for the
addressees required, or that the orders will be placed in effect upon
receipt of payment.
[[Page 93]]
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986;
60 FR 34761, July 3, 1995; 61 FR 39198, July 26, 1996; 62 FR 64928, Dec.
9, 1997]
52.213-3 Notice to Supplier.
As prescribed in 13.302-5(c), insert the following clause:
Notice to Supplier (APR 1984)
This is a firm order ONLY if your price does not exceed the maximum
line item or total price in the Schedule. Submit invoices to the
Contracting Officer. If you cannot perform in exact accordance with this
order, WITHHOLD PERFORMANCE and notify the Contracting Officer
immediately, giving your quotation.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34761, July 3, 1995;
61 FR 39198, July 26, 1996; 62 FR 64928, Dec. 9, 1997]
52.213-4 Terms and Conditions--Simplified Acquisitions (Other
Than Commercial Items).
As prescribed in 13.302-5(d), insert the following clause:
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (AUG 2018)
(a) The Contractor shall comply with the following Federal
Acquisition Regulation (FAR) clauses that are incorporated by reference:
(1) The clauses listed below implement provisions of law or
Executive order:
(i) 52.203-19, Prohibition on Requiring Certain Internal
Confidentiality Agreements or Statements (JAN 2017) (section 743 of
Division E, Title VII, of the Consolidated and Further Continuing
Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions
in subsequent appropriations acts (and as extended in continuing
resolutions)).
(ii) 52.204-23, Prohibition on Contracting for Hardware, Software,
and Services Developed or Provided by Kaspersky Lab and Other Covered
Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).
(iii) 52.222-3, Convict Labor (JUN 2003) (E.O. 11755).
(iv) 52.222-21, Prohibition of Segregated Facilities (APR 2015).
(v) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246).
(vi) 52.225-13, Restrictions on Certain Foreign Purchases (JUN 2008)
(E.O.s, proclamations, and statutes administered by the Office of
Foreign Assets Control of the Department of the Treasury).
(vii) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).
(viii) 52.233-4, Applicable Law for Breach of Contract Claim (OCT
2004) (Pub. L. 108-77, 108-78 (19 U.S.C. 3805 note).
(2) Listed below are additional clauses that apply:
(i) 52.232-1, Payments (APR 1984).
(ii) 52.232-8, Discounts for Prompt Payment (FEB 2002).
(iii) 52.232-11, Extras (APR 1984).
(iv) 52.232-25, Prompt Payment (JAN 2017)
(v) 52.232-39, Unenforceability of Unauthorized Obligations (JUN
2013).
(vi) 52.232-40, Providing Accelerated Payments to Small Business
Subcontractors (DEC 2013).
(vii) 52.233-1, Disputes (MAY 2014).
(viii) 52.244-6, Subcontracts for Commercial Items (AUG 2018).
(b) The Contractor shall comply with the following FAR clauses,
incorporated by reference, unless the circumstances do not apply:
(1) The clauses listed below implement provisions of law or
Executive order:
(i) 52.204-10, Reporting Executive Compensation and First-Tier
Subcontract Awards (Oct 2016) (Pub. L. 109-282) (31 U.S.C. 6101 note)
(Applies to contracts valued at $30,000 or more).
(ii) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (Jan 2018) (E.O. 13126) (Applies to contracts for supplies
exceeding the micro-purchase threshold).
(iii) 52.222-20, Contracts for Materials, Supplies, Articles, and
Equipment Exceeding $15,000 (MAY 2014) (41 U.S.C. chapter 65) (Applies
to supply contracts over $15,000 in the United States, Puerto Rico, or
the U.S. Virgin Islands).
(iv) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C.
4212) (applies to contracts of $150,000 or more).
(v) 52.222-36, Equal Employment for Workers with Disabilities (JUL
2014) (29 U.S.C. 793) (Applies to contracts over $15,000, unless the
work is to be performed outside the United States by employees recruited
outside the United States). (For purposes of this clause, ``United
States'' includes the 50 States, the District of Columbia, Puerto Rico,
the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin
Islands, and Wake Island.)
(vi) 52.222-37, Employment Reports on Veterans (FEB 2016) (38 U.S.C.
4212) (Applies to contracts of $150,000 or more).
(vii) 52.222-41, Service Contract Labor Standards (AUG 2018) (41
U.S.C. chapter 67) (Applies to service contracts over $2,500 that are
subject to the Service Contract Labor Standards statute and will be
performed in the United States, District of Columbia,
[[Page 94]]
Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the
U.S. Virgin Islands, Johnston Island, Wake Island, or the outer
Continental Shelf).
(viii)(A) 52.222-50, Combating Trafficking in Persons (MAR 2015) (22
U.S.C. chapter 78 and E.O 13627) (Applies to all solicitations and
contracts).
(B) Alternate I (MAR 2015) (Applies if the Contracting Officer has
filled in the following information with regard to applicable directives
or notices: Document title(s), source for obtaining document(s), and
contract performance location outside the United States to which the
document applies).
(ix) 52.222-55, Minimum Wages Under Executive Order 13658 (DEC 2015)
(Applies when 52.222-6 or 52.222-41 are in the contract and performance
in whole or in part is in the United States (the 50 States and the
District of Columbia)).
(x) 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN
2017) (E.O. 13706) (Applies when 52.222-6 or 52.222-41 are in the
contract and performance in whole or in part is in the United States
(the 50 States and the District of Columbia.))
(xi) 52.223-5, Pollution Prevention and Right-to-Know Information
(MAY 2011) (E.O. 13423) (Applies to services performed on Federal
facilities).
(xii) 52.223-11, Ozone-Depleting Substances and High Global Warming
Potential Hydrofluorocarbons (June, 2016) (E.O. 13693)(applies to
contracts for products as prescribed at FAR 23.804(a)(1)).
(xiii) 52.223-12, Maintenance, Service, Repair, or Disposal of
Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693)
(Applies to maintenance, service, repair, or disposal of refrigeration
equipment and air conditioners).
(xiv) 52.223-15, Energy Efficiency in Energy-Consuming Products (DEC
2007) (42 U.S.C. 8259b) (Unless exempt pursuant to 23.204, applies to
contracts when energy-consuming products listed in the ENERGY
STAR[supreg] Program or Federal Energy Management Program (FEMP) will
be--
(A) Delivered;
(B) Acquired by the Contractor for use in performing services at a
Federally-controlled facility;
(C) Furnished by the Contractor for use by the Government; or
(D) Specified in the design of a building or work, or incorporated
during its construction, renovation, or maintenance).
(xv) 52.223-20, Aerosols (June, 2016) (E.O. 13693) (Applies to
contracts for products that may contain high global warming potential
hydrofluorocarbons as a propellant or as a solvent; or contracts for
maintenance or repair of electronic or mechanical devices).
(xvi) 52.223-21, Foams (June, 2016) (E.O. 13693) (Applies to
contracts for products that may contain high global warming potential
hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons
as a foam blowing agent; or contracts for construction of buildings or
facilities.
(xvii) 52.225-1, Buy American--Supplies (MAY 2014) (41 U.S.C.
chapter 67) (Applies to contracts for supplies, and to contracts for
services involving the furnishing of supplies, for use in the United
States or its outlying areas, if the value of the supply contract or
supply portion of a service contract exceeds the micro-purchase
threshold and the acquisition--
(A) Is set aside for small business concerns; or
(B) Cannot be set aside for small business concerns (see 19.502-2),
and does not exceed $25,000).
(xviii) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations (MAY 2014) (42 U.S.C. 1792) (Applies to contracts greater
than $25,000 that provide for the provision, the service, or the sale of
food in the United States).
(xix) 52.232-33, Payment by Electronic Funds Transfer--System for
Award Management (JUL 2013) (Applies when the payment will be made by
electronic funds transfer (EFT) and the payment office uses the System
for Award Management (SAM) database as its source of EFT information.)
(xx) 52.232-34, Payment by Electronic Funds Transfer--Other than
System for Award Management (JUL 2013) (Applies when the payment will be
made by EFT and the payment office does not use the SAM database as its
source of EFT information.)
(xxi) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
Vessels (FEB 2006) (46 U.S.C. App. 1241) (Applies to supplies
transported by ocean vessels (except for the types of subcontracts
listed at 47.504(d).)
(2) Listed below are additional clauses that may apply:
(i) 52.204-21, Basic Safeguarding of Covered Contractor Information
Systems (June, 2016) (Applies to contracts when the contractor or a
subcontractor at any tier may have Federal contract information residing
in or transiting through its information system.
(ii) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment (Oct 2015) (Applies to contracts over $35,000).
(iii) 52.211-17, Delivery of Excess Quantities (SEP 1989) (Applies
to fixed-price supplies).
(iv) 52.247-29, F.o.b. Origin (FEB 2006) (Applies to supplies if
delivery is f.o.b. origin).
(v) 52.247-34, F.o.b. Destination (NOV 1991) (Applies to supplies if
delivery is f.o.b. destination).
(c) FAR 52.252-2, Clauses Incorporated by Reference (FEB 1998). This
contract incorporates one or more clauses by reference, with the same
force and effect as if they
[[Page 95]]
were given in full text. Upon request, the Contracting Officer will make
their full text available. Also, the full text of a clause may be
accessed electronically at this/these address(es):
________________________________________________________________________
________________________________________________________________________
[Insert one or more Internet addresses]
(d) Inspection/Acceptance. The Contractor shall tender for
acceptance only 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. The Government must exercise its postacceptance rights--
(1) Within a reasonable period of 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.
(e) 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 of 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.
(f) 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 that 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 that reasonably could have been avoided.
(g) 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.
(h) 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.
(End of clause)
[62 FR 64928, Dec. 9, 1997]
Editorial Note: For Federal Register citations affecting section
52.213-4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 83 FR 48700, Sept. 26, 2018, section 52.213-
4 was amended by revising the date of the clause and paragraphs
(a)(2)(viii), (b)(1)(i), and (b)(1)(xix), effective Oct. 26, 2018. For
the convenience of the user, the revised text is set forth as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Oct 2018)
(a) * * *
(2) * * *
(viii) 52.244-6, Subcontracts for Commercial Items (Oct 2018).
* * * * *
(b) * * *
(1) * * *
(i) 52.204-10, Reporting Executive Compensation and First-Tier
Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C.
[[Page 96]]
6101 note) (Applies to contracts valued at $30,000 or more).
* * * * *
(xix) 52.232-33, Payment by Electronic Funds Transfer--System for
Award Management (Oct 2018) (Applies when the payment will be made by
electronic funds transfer (EFT) and the payment office uses the System
for Award Management (SAM) as its source of EFT information).
* * * * *
52.214-1--52.214-2 [Reserved]
52.214-3 Amendments to Invitations for Bids.
As prescribed in 14.201-6(b)(1), insert the following provision:
Amendments to Invitations for Bids (DEC 2016)
(a) If this solicitation is amended, then all terms and conditions
which are not modified remain unchanged.
(b)(1) Bidders shall acknowledge receipt of any amendment to this
solicitation--
(i) By signing and returning the amendment;
(ii) By identifying the amendment number and date in space provided
for this purpose on the form for submitting a bid;
(iii) By letter;
(iv) By facsimile, if facsimile bids are authorized in the
solicitation; or
(v) By email, if email bids are authorized in the solicitation.
(2) The Government must receive the acknowledgement by the time and
at the place specified for receipt of bids.
(End of provision)
[53 FR 43394, Oct. 26, 1988, as amended at 54 FR 48990, Nov. 28, 1989;
67 FR 13056, Mar. 20, 2002; 81 FR 83099, Nov. 18, 2016]
52.214-4 False Statements in Bids.
As prescribed in 14.201-6(b)(2), insert the following provision in
all invitations for bids:
False Statements in Bids (APR 1984)
Bidders must provide full, accurate, and complete information as
required by this solicitation and its attachments. The penalty for
making false statements in bids is prescribed in 18 U.S.C. 1001.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 67 FR 13056, Mar. 20, 2002]
52.214-5 Submission of Bids.
As prescribed in 14.201-6(c)(1), insert the following provision:
Submission of Bids (DEC 2016)
(a) Bids and bid modifications shall be submitted in sealed
envelopes or packages (unless submitted by electronic means) (1)
addressed to the office specified in the solicitation, and (2) showing
the time and date specified for receipt, the solicitation number, and
the name and address of the bidder.
(b) Bidders using commercial carrier services shall ensure that the
bid is addressed and marked on the outermost envelope or wrapper as
prescribed in subparagraphs (a) (1) and (2) of this provision when
delivered to the office specified in the solicitation.
(c) Facsimile bids, modifications, or withdrawals, will not be
considered unless authorized by the solicitation.
(d) Bids submitted by electronic commerce shall be considered only
if the electronic commerce method was specifically stipulated or
permitted by the solicitation.
(End of provision)
[54 FR 48991, Nov. 28, 1989, as amended at 55 FR 3887, Feb. 5, 1990; 60
FR 34739, July 3, 1995; 61 FR 69293, Dec. 31, 1996; 62 FR 12721, Mar.
17, 1997; 81 FR 83099, Nov. 18, 2016]
52.214-6 Explanation to Prospective Bidders.
As prescribed in 14.201-6(c)(2), insert the following provision:
Explanation to Prospective Bidders (APR 1984)
Any prospective bidder desiring an explanation or interpretation of
the solicitation, drawings, specifications, etc., must request it in
writing soon enough to allow a reply to reach all prospective bidders
before the submission of their bids. Oral explanations or instructions
given before the award of a contract will not be binding. Any
information given a prospective bidder concerning a solicitation will be
furnished promptly to all other prospective bidders as an amendment to
the solicitation, if that information is necessary in submitting bids or
if the lack of it would be prejudicial to other prospective bidders.
[[Page 97]]
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25531, June 21, 1990]
52.214-7 Late submissions, modifications, and withdrawals of bids.
As prescribed in 14.201-6(c)(3), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Bids (NOV 1999)
(a) Bidders are responsible for submitting bids, and any
modifications or withdrawals, so as to reach the Government office
designated in the invitation for bids (IFB) by the time specified in the
IFB. If no time is specified in the IFB, the time for receipt is 4:30
p.m., local time, for the designated Government office on the date that
bids are due.
(b)(1) Any bid, modification, or withdrawal received at the
Government office designated in the IFB after the exact time specified
for receipt of bids is ``late'' and will not be considered unless it is
received before award is made, the Contracting Officer determines that
accepting the late bid would not unduly delay the acquisition; and--
(i) If it was transmitted through an electronic commerce method
authorized by the IFB, it was received at the initial point of entry to
the Government infrastructure not later than 5:00 p.m. one working day
prior to the date specified for receipt of bids; or
(ii) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of bids and was
under the Government's control prior to the time set for receipt of
bids.
(2) However, a late modification of an otherwise successful bid that
makes its terms more favorable to the Government, will be considered at
any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the bid wrapper, other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of
Government personnel.
(d) If an emergency or unanticipated event interrupts normal
Government processes so that bids cannot be received at the Government
office designated for receipt of bids by the exact time specified in the
IFB and urgent Government requirements preclude amendment of the IFB,
the time specified for receipt of bids will be deemed to be extended to
the same time of day specified in the solicitation on the first work day
on which normal Government processes resume.
(e) Bids may be withdrawn by written notice received at any time
before the exact time set for receipt of bids. If the IFB authorizes
facsimile bids, bids may be withdrawn via facsimile received at any time
before the exact time set for receipt of bids, subject to the conditions
specified in the provision at 52.214-31, Facsimile Bids. A bid may be
withdrawn in person by a bidder or its authorized representative if,
before the exact time set for receipt of bids, the identity of the
person requesting withdrawal is established and the person signs a
receipt for the bid.
(End of provision)
[64 FR 51840, Sept. 24, 1999]
52.214-8--52.214-9 [Reserved]
52.214-10 Contract Award--Sealed Bidding.
As prescribed in 14.201-6(e), insert the following provision:
Contract Award--Sealed Bidding (JUL 1990)
(a) The Government will evaluate bids in response to this
solicitation without discussions and will award a contract to the
responsible bidder whose bid, conforming to the solicitation, will be
most advantageous to the Government considering only price and the
price-related factors specified elsewhere in the solicitation.
(b) The Government may (1) reject any or all bids, (2) accept other
than the lowest bid, and (3) waive informalities or minor irregularities
in bids received.
(c) The Government may accept any item or group of items of a bid,
unless the bidder qualifies the bid by specific limitations. Unless
otherwise provided in the Schedule, bids may be submitted for quantities
less than those specified. The Government reserves the right to make an
award on any item for a quantity less than the quantity offered, at the
unit prices offered, unless the bidder specifies otherwise in the bid.
(d) A written award or acceptance of a bid mailed or otherwise
furnished to the successful bidder within the time for acceptance
specified in the bid shall result in a binding contract without further
action by either party.
(e) The Government may reject a bid as nonresponsive if the prices
bid are materially unbalanced between line items or subline items. A bid
is materially unbalanced when it is based on prices significantly less
than cost for some work and prices which are significantly overstated in
relation to cost for other work, and if there is a reasonable doubt that
the bid will result in the lowest overall cost to the Government even
though it may be the low evaluated bid, or if it is so unbalanced as to
be tantamount to allowing an advance payment.
[[Page 98]]
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 55 FR 25531, June 21, 1990; 68 FR 43857,
July 24, 2003]
52.214-11 [Reserved]
52.214-12 Preparation of Bids.
As prescribed in 14.201-6(f), insert the following provision:
Preparation of Bids (APR 1984)
(a) Bidders are expected to examine the drawings, specifications,
Schedule, and all instructions. Failure to do so will be at the bidder's
risk.
(b) Each bidder shall furnish the information required by the
solicitation. The bidder shall sign the bid and print or type its name
on the Schedule and each continuation sheet on which it makes an entry.
Erasures or other changes must be initialed by the person signing the
bid. Bids signed by an agent shall be accompanied by evidence of that
agent's authority, unless that evidence has been previously furnished to
the issuing office.
(c) For each item offered, bidders shall (1) show the unit price,
including, unless otherwise specified, packaging, packing, and
preservation and (2) enter the extended price for the quantity of each
item offered in the Amount column of the Schedule. In case of
discrepancy between a unit price and an extended price, the unit price
will be presumed to be correct, subject, however, to correction to the
same extent and in the same manner as any other mistake.
(d) Bids for supplies or services other than those specified will
not be considered unless authorized by the solicitation.
(e) Bidders must state a definite time for delivery of supplies or
for performance of services, unless otherwise specified in the
solicitation.
(f) Time, if stated as a number of days, will include Saturdays,
Sundays, and holidays.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986]
52.214-13 [Reserved]
52.214-14 Place of Performance--Sealed Bidding.
As prescribed in 14.201-6(h), insert the following provision:
Place of Performance--Sealed Bidding (APR 1985)
(a) The bidder, in the performance of any contract resulting from
this solicitation, [squ] intends, [squ] does not intend [check
applicable box] to use one or more plants or facilities located at a
different address from the address of the bidder as indicated in this
bid.
(b) If the bidder checks intends in paragraph (a) above, it shall
insert in the spaces provided below the required information:
Name and Address of
Place of Performance (Street Address, Owner and Operator of
City, County, State, Zip Code) the Plant or Facility
if Other than Bidder
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-15 Period for Acceptance of Bids.
As prescribed in 14.201-6(i), insert the following provision:
Period for Acceptance of Bids (APR 1984)
In compliance with the solicitation, the bidder agrees, if this bid
is accepted within __ calendar days (60 calendar days unless a different
period is inserted by the bidder) from the date specified in the
solicitation for receipt of bids, to furnish any or all items upon which
prices are bid at the price set opposite each item, delivered at the
designated point(s), within the time specified in the Schedule.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 48991, Nov. 28, 1989]
52.214-16 Minimum Bid Acceptance Period.
As prescribed in 14.201-6(j), insert the following provision in
invitations for bids, except for construction, if the contracting
officer determines that a minimum acceptance period must be specified:
Minimum Bid Acceptance Period (APR 1984)
(a) Acceptance period, as used in this provision, means the number
of calendar days available to the Government for awarding a
[[Page 99]]
contract from the date specified in this solicitation for receipt of
bids.
(b) This provision supersedes any language pertaining to the
acceptance period that may appear elsewhere in this solicitation.
(c) The Government requires a minimum acceptance period of __
calendar days [the Contracting Officer shall insert the number of days].
(d) In the space provided immediately below, bidders may specify a
longer acceptance period than the Government's minimum requirement.
The bidder allows the following acceptance period: __ calendar days.
(e) A bid allowing less than the Government's minimum acceptance
period will be rejected.
(f) The bidder agrees to execute all that it has undertaken to do,
in compliance with its bid, if that bid is accepted in writing within
(1) the acceptance period stated in paragraph (c) above or (2) any
longer acceptance period stated in paragraph (d) above.
(End of provision)
52.214-17 [Reserved]
52.214-18 Preparation of Bids--Construction.
As prescribed in 14.201-6(l), insert the following provision:
Preparation of Bids--Construction (APR 1984)
(a) Bids must be (1) submitted on the forms furnished by the
Government or on copies of those forms, and (2) manually signed. The
person signing a bid must initial each erasure or change appearing on
any bid form.
(b) The bid form may require bidders to submit bid prices for one or
more items on various bases, including--
(1) Lump sum bidding;
(2) Alternate prices;
(3) Units of construction; or
(4) Any combination of subparagraphs (1) through (3) above.
(c) If the solicitation requires bidding on all items, failure to do
so will disqualify the bid. If bidding on all items is not required,
bidders should insert the words no bid in the space provided for any
item on which no price is submitted.
(d) Alternate bids will not be considered unless this solicitation
authorizes their submission.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 25531, June 21, 1990]
52.214-19 Contract Award--Sealed Bidding--Construction.
As prescribed in 14.201-6(m), insert the following provision:
Contract Award--Sealed Bidding--Construction (AUG 1996)
(a) The Government will evaluate bids in response to this
solicitation without discussions and will award a contract to the
responsible bidder whose bid, conforming to the solicitation, will be
most advantageous to the Government, considering only price and the
price-related factors specified elsewhere in the solicitation.
(b) The Government may reject any or all bids, and waive
informalities or minor irregularities in bids received.
(c) The Government may accept any item or combination of items,
unless doing so is precluded by a restrictive limitation in the
solicitation or the bid.
(d) The Government may reject a bid as nonresponsive if the prices
bid are materially unbalanced between line items or subline items. A bid
is materially unbalanced when it is based on prices significantly less
than cost for some work and prices which are significantly overstated in
relation to cost for other work, and if there is a reasonable doubt that
the bid will result in the lowest overall cost to the Government even
though it may be the low evaluated bid, or if it is so unbalanced as to
be tantamount to allowing an advance payment.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985;
50 FR 52434, Dec. 23, 1985; 61 FR 31664, June 20, 1996]
52.214-20 Bid Samples.
As prescribed in 14.201-6(o)(1), insert the following provision:
Bid Samples (APR 2002)
(a) Bid sample means a product sample required to be submitted by a
bidder to show those characteristics of the offered products that cannot
adequately be described by specifications, purchase descriptions, or the
invitation for bid (e.g., balance, facility of use, or pattern).
(b) Bidders must furnish bid samples as part of the bid. The
Government must receive the bid samples by the time specified in the
invitation for bids. If the bidder fails to submit samples on time, the
Government will reject the bid, except that the Contracting Officer will
consider a late sample sent by mail under the Late Submissions,
Modifications, and Withdrawals of Bids provision of this solicitation.
[[Page 100]]
(c) The Government will test or evaluate bid samples to determine
compliance with all the characteristics listed for examination in this
solicitation. The Government will reject the bid when the sample fails
to conform to the required characteristics. Products delivered under any
resulting contract must conform to--
(1) the approved sample for the characteristics listed for test or
evaluation and
(2) the specifications for all other characteristics.
(d) Unless otherwise specified in the solicitation, bid samples
shall be (1) submitted at no expense to the Government, and (2) returned
at the bidder's request and expense, unless they are destroyed during
preaward testing.
(End of provision)
Alternate I (MAY 2002). As prescribed in 14.201-6(o)(2)(i), insert
the following Alternate I:
(e) At the discretion of the Contracting Officer, the requirement
for furnishing bid samples may be waived for a bidder if (1) the bid
states that the offered product is the same as a product offered by the
bidder to the __ [as appropriate, the Contracting Officer shall
designate the contracting office or an alternate activity or office],
and (2) the Contracting Officer determines that the previously offered
product was accepted or tested and found to comply with specification
and other requirements for technical acceptability conforming in every
material respect with those in this solicitation.
Alternate II (MAY 2002). As prescribed in 14.201-6(o)(2)(ii), insert
the following Alternate II:
(e) At the discretion of the Contracting Officer, the requirements
for furnishing bid samples may be waived for a bidder if (1) the bid
states that the offered product is the same as a product offered by the
bidder to the __ [as appropriate, the Contracting Officer shall
designate the contracting office or an alternate activity or office] on
a previous acquisition, (2) the Contracting Officer determines that the
previously offered product was accepted or tested and found to comply
with specification and other requirements for technical acceptability
conforming in every material respect with those of this solicitation,
and (3) the product offered under this solicitation will be produced
under a resulting contract at the same plant in which the previously
acquired or tested product was produced.
[48 FR 42478, Sept. 19, 1983, as amended at 67 FR 13056, Mar. 20, 2002;
67 FR 21536, Apr. 30, 2002]
52.214-21 Descriptive Literature.
As prescribed in 14.201-6(p)(1), insert the following provision:
Descriptive Literature (APR 2002)
(a) Descriptive literature, as used in this provision, means
information furnished by a bidder, such as cuts, illustrations,
drawings, and brochures, that shows a product's characteristics or
construction or explains its operation. The term includes only that
information required to evaluate the acceptability of the product and
excludes other information for operating or maintaining the product.
(b) Descriptive literature is required to establish, for the purpose
of evaluation and award, details of the product offered that are
specified elsewhere in the solicitation and pertain to significant
elements such as--
(1) Design;
(2) Materials;
(3) Components;
(4) Performance characteristics; and
(5) Methods of manufacture, assembly, construction, or operation.
(c) Descriptive literature, required elsewhere in this solicitation,
shall be--
(1) Identified to show the item(s) of the offer to which it applies;
and
(2) Received by the time specified in this solicitation.
(d) If the bidder fails to submit descriptive literature on time,
the Government will reject the bid, except that late descriptive
literature sent by mail may be considered under the Late Submissions,
Modifications, and Withdrawals of Bids provision of this solicitation.
(e) If the descriptive literature fails to show that the product
offered conforms to the requirements of the solicitation, the Government
will reject the bid.
(End of provision)
Alternate I (JAN 2017). As prescribed in 14.201-6(p)(2), add the
following paragraphs (f) and (g) to the basic provision:
(f) The Contracting Officer may waive the requirement for furnishing
descriptive literature if the offeror has supplied a product that is the
same as that required by this solicitation under a prior contract. A
bidder that requests a waiver of this requirement shall provide the
following information:
Prior contract number__________________________________________________
Date of prior contract_________________________________________________
Line item number of product
supplied_______________________________________________________________
Name and address of Government activity to which delivery was made_____
Date of final delivery product supplied
[[Page 101]]
________________________________________________________________________
(g) Bidders shall submit bids on the basis of required descriptive
literature or on the basis of a previously supplied product under
paragraph (f) of this provision. A bidder submitting a bid on one of
these two bases may not elect to have its bid considered on the
alternative basis after the time specified for receipt of bids. The
Government will disregard a bidder's request for a waiver under
paragraph (f) if that bidder has submitted the descriptive literature
requested under this solicitation.
[67 FR 13056, Mar. 20, 2002, as amended at 82 FR 4715, Jan. 13, 2017]
52.214-22 Evaluation of Bids for Multiple Awards.
As prescribed in 14.201-6(q), insert the following provision:
Evaluation of Bids for Multiple Awards (MAR 1990)
In addition to other factors, bids will be evaluated on the basis of
advantages and disadvantages to the Government that might result from
making more than one award (multiple awards). It is assumed, for the
purpose of evaluating bids, that $500 would be the administrative cost
to the Government for issuing and administering each contract awarded
under this solicitation, and individual awards will be for the items or
combinations of items that result in the lowest aggregate cost to the
Government, including the assumed administrative costs.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 3887, Feb. 5, 1990]
52.214-23 Late submissions, modifications, revisions, and withdrawals
of technical proposals under two-step sealed bidding.
As prescribed in 14.201-6(r), insert the following provision:
Late Submissions, Modifications, Revisions, and Withdrawals of Technical
Proposals Under Two-Step Sealed Bidding (NOV 1999)
(a) Bidders are responsible for submitting technical proposals, and
any modifications or revisions, so as to reach the Government office
designated in the request for technical proposals by the time specified
in the invitation for bids (IFB). If no time is specified in the IFB,
the time for receipt is 4:30 p.m., local time, for the designated
Government office on the date that bids or revisions are due.
(b)(1) Any technical proposal under step one of two-step sealed
bidding or modification, revision, or withdrawal of such proposal
received at the Government office designated in the request for
technical proposals after the exact time specified for receipt will not
be considered unless the Contracting Officer determines that accepting
the late technical proposal would not unduly delay the acquisition;
and--
(i) If it was transmitted through an electronic commerce method
authorized by the request for technical proposals, it was received at
the initial point of entry to the Government infrastructure not later
than 5:00 p.m. one working day prior to the date specified for receipt
of proposals; or
(ii) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt; or
(iii) It is the only proposal received and it is negotiated under
part 15 of the Federal Acquisition Regulation.
(2) However, a late modification of an otherwise successful proposal
that makes its terms more favorable to the Government will be considered
at any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the technical proposal wrapper, other documentary
evidence of receipt maintained by the installation, or oral testimony or
statements of Government personnel.
(d) If an emergency or unanticipated event interrupts normal
Government processes so that technical proposals cannot be received at
the Government office designated for receipt of technical proposals by
the exact time specified in the request for technical proposals, and
urgent Government requirements preclude amendment of the request for
technical proposals, the time specified for receipt of technical
proposals will be deemed to be extended to the same time of day
specified in the request for technical proposals on the first work day
on which normal Government processes resume.
(e) Technical proposals may be withdrawn by written notice received
at any time before the exact time set for receipt of technical
proposals. If the request for technical proposals authorizes facsimile
technical proposals, they may be withdrawn via facsimile received at any
time before the exact time set for receipt of proposals, subject to the
conditions specified in the provision at 52.214-31, Facsimile Bids. A
technical proposal may be withdrawn in person by a bidder or its
authorized representative if, before the exact time set for receipt of
technical proposals, the identity of the person requesting withdrawal is
established and the person signs a receipt for the technical proposal.
[[Page 102]]
(End of provision)
[64 FR 51840, Sept. 24, 1999]
52.214-24 Multiple Technical Proposals.
As prescribed in 14.201-6(s), insert the following provision:
Multiple Technical Proposals (APR 1984)
In the first step of this two-step acquisition, solicited sources
are encouraged to submit multiple technical proposals presenting
different basic approaches. Each technical proposal submitted will be
separately evaluated and the submitter will be notified as to its
acceptability.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-25 Step Two of Two-Step Sealed Bidding.
As prescribed in 14.201-6(t), insert the following provision:
Step Two of Two-Step Sealed Bidding (APR 1985)
(a) This invitation for bids is issued to initiate step two of two-
step sealed bidding under subpart 14.5 of the Federal Acquisition
Regulation.
(b) The only bids that the Contracting Officer may consider for
award of a contract are those received from bidders that have submitted
acceptable technical proposals in step one of this acquisition under __
[the Contracting Officer shall insert the identification of the step-one
request for technical proposals].
(c) Any bidder that has submitted multiple technical proposals in
step one of this acquisition may submit a separate bid on each technical
proposal that was determined to be acceptable to the Government.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
52.214-26 Audit and Records--Sealed Bidding.
As prescribed in 14.201-7(a)(1), insert the following clause:
Audit and Records--Sealed Bidding (OCT 2010)
(a) As used in this clause, records includes books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of whether such items are in written form, in the form of
computer data, or in any other form.
(b) Certified cost or pricing data. If the Contractor has been
required to submit certified cost or pricing data in connection with the
pricing of any modification to this contract, the Contracting Officer,
or an authorized representative of the Contracting Officer, in order to
evaluate the accuracy, completeness, and currency of the certified cost
or pricing data, shall have the right to examine and audit all of the
Contractor's records, including computations and projections, related
to--
(1) The proposal for the modification;
(2) The discussions conducted on the proposal(s), including those
related to negotiating;
(3) Pricing of the modification; or
(4) Performance of the modification.
(c) Comptroller General. In the case of pricing any modification,
the Comptroller General of the United States, or an authorized
representative, shall have the same rights as specified in paragraph (b)
of this clause and also the right to interview any current employee
regarding such transactions.
(d) Availability. The Contractor shall make available at its office
at all reasonable times the materials described in paragraph (b) of this
clause, for examination, audit, or reproduction, until 3 years after
final payment under this contract, or for any other period specified in
subpart 4.7 of the Federal Acquisition Regulation (FAR). FAR Subpart
4.7, Contractor Records Retention, in effect on the data of this
contract, is incorporated by reference in its entirety and made a part
of this contract.
(1) If this contract is completely or partially terminated, the
records relating to the work terminated shall be made available for 3
years after any resulting final termination settlement.
(2) Records pertaining to appeals under the Disputes clause or to
litigation or the settlement of claims arising under or relating to the
performance of this contract shall be made available until disposition
of such appeals, litigation, or claims.
(e) The Contractor shall insert a clause containing all the
provisions of this clause, including this paragraph (e), in all
subcontracts expected to exceed the threshold in FAR 15.403-4(a)(1) for
submission of certified cost or pricing data.
(End of clause)
Alternate I (MAR 2009). As prescribed in 14.201-7(a)(2),substitute
the following paragraphs (c) and (e) for paragraphs (c) and (e) of the
basic clause:
[[Page 103]]
(c) The Comptroller General of the United States, an appropriate
Inspector General appointed under section 3 or 8G of the Inspector
General Act of 1978 (5 U.S.C. App.), or an authorized representative of
either of the foregoing officials, shall have access to and the right
to--
(1) Examine any of the Contractor's or any subcontractors' records
that pertain to, and involve transactions relating to, this contract or
a subcontract hereunder; and
(2) Interview any officer or employee regarding such transactions.
(e)(1) Except as provided in paragraph (e)(2), the Contractor shall
insert a clause containing the provisions of this clause, including this
paragraph (e), in all subcontracts.
(2) The authority of the Inspector General under paragraph (c)(2) of
this clause does not flow down to subcontracts.
[60 FR 42651, Aug. 16, 1995; 60 FR 44548, Aug. 28, 1995; 62 FR 51271,
Sept. 30, 1997; 74 FR 14649, 14651, Mar. 31, 2009; 75 FR 34281, June 16,
2010; 75 FR 53150, Aug. 30, 2010]
52.214-27 Price Reduction for Defective Certified Cost or Pricing
Data--Modifications--Sealed Bidding.
As prescribed in 14.201-7(b), insert the following clause:
Price Reduction for Defective Certified Cost or Pricing Data--
Modifications--Sealed Bidding (AUG 2011)
(a) This clause shall become operative only for any modification to
this contract involving aggregate increases and/or decreases in costs,
plus applicable profits, expected to exceed the threshold for the
submission of certified cost or pricing data at FAR 15.403-4(a)(1),
except that this clause does not apply to a modification if an exception
under FAR 15.403-1(b) applies.
(b) If any price, including profit, negotiated in connection with
any modification under this clause, was increased by any significant
amount because (1) the Contractor or a subcontractor furnished certified
cost or pricing data that were not complete, accurate, and current as
certified in its Certificate of Current Cost or Pricing Data, (2) a
subcontractor or prospective subcontractor furnished the Contractor
certified cost or pricing data that were not complete, accurate, and
current as certified in the Contractor's Certificate of Current Cost or
Pricing Data, or (3) any of these parties furnished data of any
description that were not accurate, the price shall be reduced
accordingly and the contract shall be modified to reflect the reduction.
This right to a price reduction is limited to that resulting from
defects in data relating to modifications for which this clause becomes
operative under paragraph (a) of this clause.
(c) Any reduction in the contract price under paragraph (b) of this
clause due to defective data from a prospective subcontractor that was
not subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which (1) the actual
subcontract or (2) the actual cost to the Contractor, if there was no
subcontract, was less than the prospective subcontract cost estimate
submitted by the Contractor; provided, that the actual subcontract price
was not itself affected by defective certified cost or pricing data.
(d)(1) If the Contracting Officer determines under paragraph (b) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense--
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current certified cost or pricing data had been submitted;
(ii) The Contracting Officer should have known that the certified
cost or pricing data in issue were defective even though the Contractor
or subcontractor took no affirmative action to bring the character of
the data to the attention of the Contracting Officer;
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract; or
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
(2)(i) Except as prohibited by subdivision (d)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be allowed against the amount of a
contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the certified cost or pricing data
were available before the date of agreement on the price of the contract
(or price of the modification) and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data was known by the Contractor to be
understated when the Certificate of Current Cost or Pricing Data was
signed; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset
[[Page 104]]
even if the available data had been submitted before the date of
agreement on price.
(e) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Interest compounded daily, as required by 26 U.S.C. 6622, on the
amount of such overpayment to be computed from the date(s) of
overpayment to the Contractor to the date the Government is repaid by
the Contractor at the applicable underpayment rate effective for each
quarter prescribed by the Secretary of the Treasury under 26 U.S.C.
6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted certified cost or
pricing data which were incomplete, inaccurate, or noncurrent.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 53 FR 10830, Apr. 1, 1988; 55 FR 52797, Dec.
21, 1990; 56 FR 67415, Dec. 30, 1991; 60 FR 48218, Sept. 18, 1995; 62 FR
51271, Sept. 30, 1997; 75 FR 53150, Aug. 30, 2010; 76 FR 39242, July 5,
2011]
52.214-28 Subcontractor Certified Cost or Pricing Data--Modifications
--Sealed Bidding.
As prescribed in 14.201-7(c), insert the following clause:
Subcontractor Certified Cost or Pricing Data--Modifications--Sealed
Bidding (OCT 2010)
(a) The requirements of paragraphs (b) and (c) of this clause shall
(1) Become operative only for any modification to this contract
involving aggregate increases and/or decreases in costs, plus applicable
profits, expected to exceed the threshold for submission of certified
cost or pricing data at (FAR) 48 CFR 15.403-4(a)(1), and
(2) Be limited to such modifications.
(b) Before awarding any subcontract expected to exceed the threshold
for submission of certified cost or pricing data at FAR 15.403-4(a)(1),
on the date of agreement on price or the date of award, whichever is
later, or before pricing any subcontract modifications involving
aggregate increases and/or decreases in costs, plus applicable profits,
expected to exceed the threshold for submission of certified cost or
pricing data at FAR 15.403-4(a)(1), the Contractor shall require the
subcontractor to submit certified cost or pricing data (actually or by
specific identification in writing), as part of the subcontractor's
proposal in accordance with FAR 15.408, Table 15-2 (to include any
information reasonably required to explain the subcontractor's
estimating process such as the judgmental factors applied and the
mathematical or other methods used in the estimate, including those used
in projecting from known data, and the nature and amount of any
contingencies included in the price), unless an exception under FAR
15.403-1(b) applies.
(c) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in subsection 15.406-2 of the Federal
Acquisition Regulation that, to the best of its knowledge and belief,
the data submitted under paragraph (b) above were accurate, complete,
and current as of the date of agreement on the negotiated price of the
subcontract or subcontract modification.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in each subcontract that, when entered
into, exceeds the threshold for submission of certified cost or pricing
data at FAR 15.403-4(a)(1).
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 50 FR 1747, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 56 FR 67415, Dec. 30, 1991; 59 FR 62499,
Dec. 5, 1994; 60 FR 48218, Sept. 18, 1995; 62 FR 51271, Sept. 30, 1997;
75 FR 53150, Aug. 30, 2010]
52.214-29 Order of Precedence--Sealed Bidding.
As prescribed in 14.201-7(d), insert the following clause:
Order of Precedence--Sealed Bidding (JAN 1986)
Any inconsistency in this solicitation or contract shall be resolved
by giving precedence in the following order: (a) the Schedule (excluding
the specifications); (b) representations and other instructions; (c)
contract clauses; (d) other documents, exhibits, and attachments; and
(e) the specifications.
(End of clause)
[51 FR 2666, Jan. 17, 1986, as amended at 60 FR 48218, Sept. 18, 1995]
52.214-30 [Reserved]
52.214-31 Facsimile Bids.
As prescribed in 14.201-6(v), insert the following provision:
[[Page 105]]
Facsimile Bids (DEC 1989)
(a) Definition. Facsimile bid, as used in this solicitation, means a
bid, modification of a bid, or withdrawal of a bid that is transmitted
to and received by the Government via electronic equipment that
communicates and reproduces both printed and handwritten material.
(b) Bidders may submit facsimile bids as responses to this
solicitation. These responses must arrive at the place and by the time,
specified in the solicitation.
(c) Facsimile bids that fail to furnish required representations or
information or that reject any of the terms, conditions, and provisions
of the solicitation may be excluded from consideration.
(d) Facsimile bids must contain the required signatures.
(e) The Government reserves the right to make award solely on the
facsimile bid. However, if requested to do so by the Contracting
Officer, the apparently successful bidder agrees to promptly submit the
complete original signed bid.
(f) Facsimile receiving data and compatibility characteristics are
as follows:
(1) Telephone number of receiving facsimile equipment:
________________________________________________________________________
(2) Compatibility characteristics of receiving facsimile equipment
(e.g., make and model number, receiving speed, communications protocol):
________________________________________________________________________
________________________________________________________________________
(g) If the bidder chooses to transmit a facsimile bid, the
Government will not be responsible for any failure attributable to the
transmission or receipt of the facsimile bid including, but not limited
to, the following:
(1) Receipt of garbled or incomplete bid.
(2) Availability or condition of the receiving facsimile equipment.
(3) Incompatibility between the sending and receiving equipment.
(4) Delay in transmission or receipt of bid.
(5) Failure of the bidder to properly identify the bid.
(6) Illegibility of bid.
(7) Security of bid data.
(End of provision)
[54 FR 48992, Nov. 28, 1989, as amended at 64 FR 51841, Sept. 24, 1999]
52.214-32--52.214-33 [Reserved]
52.214-34 Submission of Offers in the English Language.
As prescribed in 14.201-6(w), insert the following provision:
Submission of Offers in the English Language (APR 1991)
Offers submitted in response to this solicitation shall be in the
English language. Offers received in other than English shall be
rejected.
(End of provision)
[56 FR 15155, Apr. 15, 1991, as amended at 56 FR 33487, July 22, 1991;
58 FR 31143, May 28, 1993; 62 FR 51271, Sept. 30, 1997; 64 FR 51841,
Sept. 24, 1999; 64 FR 72433, Dec. 27, 1999]
52.214-35 Submission of Offers in U.S. Currency.
As prescribed in 14.201-6(x), insert the following provision:
Submission of Offers in U.S. Currency (APR 1991)
Offers submitted in response to this solicitation shall be in terms
of U.S. dollars. Offers received in other than U.S. dollars shall be
rejected.
(End of provision)
[56 FR 15155, Apr. 15, 1991, as amended at 58 FR 31143, May 28, 1993; 62
FR 51271, Sept. 30, 1997; 64 FR 51841, Sept. 24, 1999; 64 FR 72433, Dec.
27, 1999]
52.215-1 Instructions to Offerors--Competitive Acquisition.
As prescribed in 15.209(a), insert the following provision:
Instructions to Offerors--Competitive Acquisitions (JAN 2017)
(a) Definitions. As used in this provision--
Discussions are negotiations that occur after establishment of the
competitive range that may, at the Contracting Officer's discretion,
result in the offeror being allowed to revise its proposal.
In writing, writing, or written means any worded or numbered
expression that can be read, reproduced, and later communicated, and
includes electronically transmitted and stored information.
Proposal modification is a change made to a proposal before the
solicitation's closing date and time, or made in response to an
amendment, or made to correct a mistake at any time before award.
Proposal revision is a change to a proposal made after the
solicitation closing date, at the request of or as allowed by a
Contracting Officer as the result of negotiations.
Time, if stated as a number of days, is calculated using calendar
days, unless otherwise specified, and will include Saturdays, Sundays,
and legal holidays. However, if the
[[Page 106]]
last day falls on a Saturday, Sunday, or legal holiday, then the period
shall include the next working day.
(b) Amendments to solicitations. If this solicitation is amended,
all terms and conditions that are not amended remain unchanged. Offerors
shall acknowledge receipt of any amendment to this solicitation by the
date and time specified in the amendment(s).
(c) Submission, modification, revision, and withdrawal of proposals.
(1) Unless other methods (e.g., electronic commerce or facsimile) are
permitted in the solicitation, proposals and modifications to proposals
shall be submitted in paper media in sealed envelopes or packages (i)
addressed to the office specified in the solicitation, and (ii) showing
the time and date specified for receipt, the solicitation number, and
the name and address of the offeror. Offerors using commercial carriers
should ensure that the proposal is marked on the outermost wrapper with
the information in paragraphs (c)(1)(i) and (c)(1)(ii) of this
provision.
(2) The first page of the proposal must show--
(i) The solicitation number;
(ii) The name, address, and telephone and facsimile numbers of the
offeror (and electronic address if available);
(iii) A statement specifying the extent of agreement with all terms,
conditions, and provisions included in the solicitation and agreement to
furnish any or all items upon which prices are offered at the price set
opposite each item;
(iv) Names, titles, and telephone and facsimile numbers (and
electronic addresses if available) of persons authorized to negotiate on
the offeror's behalf with the Government in connection with this
solicitation; and
(v) Name, title, and signature of person authorized to sign the
proposal. Proposals signed by an agent shall be accompanied by evidence
of that agent's authority, unless that evidence has been previously
furnished to the issuing office.
(3) Submission, modification, revision, and withdrawal of proposals.
(i) Offerors are responsible for submitting proposals, and any
modifications or revisions, so as to reach the Government office
designated in the solicitation by the time specified in the
solicitation. If no time is specified in the solicitation, the time for
receipt is 4:30 p.m., local time, for the designated Government office
on the date that proposal or revision is due.
(ii)(A) Any proposal, modification, or revision, received at the
Government office designated in the solicitation after the exact time
specified for receipt of offers is ``late'' and will not be considered
unless it is received before award is made, the Contracting Officer
determines that accepting the late offer would not unduly delay the
acquisition; and--
(1) If it was transmitted through an electronic commerce method
authorized by the solicitation, it was received at the initial point of
entry to the Government infrastructure not later than 5:00 p.m. one
working day prior to the date specified for receipt of proposals; or
(2) There is acceptable evidence to establish that it was received
at the Government installation designated for receipt of offers and was
under the Government's control prior to the time set for receipt of
offers; or
(3) It is the only proposal received.
(B) However, a late modification of an otherwise successful proposal
that makes its terms more favorable to the Government, will be
considered at any time it is received and may be accepted.
(iii) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of that
installation on the proposal wrapper, other documentary evidence of
receipt maintained by the installation, or oral testimony or statements
of Government personnel.
(iv) If an emergency or unanticipated event interrupts normal
Government processes so that proposals cannot be received at the office
designated for receipt of proposals by the exact time specified in the
solicitation, and urgent Government requirements preclude amendment of
the solicitation, the time specified for receipt of proposals will be
deemed to be extended to the same time of day specified in the
solicitation on the first work day on which normal Government processes
resume.
(v) Proposals may be withdrawn by written notice received at any
time before award. Oral proposals in response to oral solicitations may
be withdrawn orally. If the solicitation authorizes facsimile proposals,
proposals may be withdrawn via facsimile received at any time before
award, subject to the conditions specified in the provision at 52.215-5,
Facsimile Proposals. Proposals may be withdrawn in person by an offeror
or an authorized representative, if the identity of the person
requesting withdrawal is established and the person signs a receipt for
the proposal before award.
(4) Unless otherwise specified in the solicitation, the offeror may
propose to provide any item or combination of items.
(5) Offerors shall submit proposals in response to this solicitation
in English, unless otherwise permitted by the solicitation, and in U.S.
dollars, unless the provision at FAR 52.225-17, Evaluation of Foreign
Currency Offers, is included in the solicitation.
(6) Offerors may submit modifications to their proposals at any time
before the solicitation closing date and time, and may submit
modifications in response to an amendment, or to correct a mistake at
any time before award.
[[Page 107]]
(7) Offerors may submit revised proposals only if requested or
allowed by the Contracting Officer.
(8) Proposals may be withdrawn at any time before award. Withdrawals
are effective upon receipt of notice by the Contracting Officer.
(d) Offer expiration date. Proposals in response to this
solicitation will be valid for the number of days specified on the
solicitation cover sheet (unless a different period is proposed by the
offeror).
(e) Restriction on disclosure and use of data. Offerors that include
in their proposals data that they do not want disclosed to the public
for any purpose, or used by the Government except for evaluation
purposes, shall--
(1) Mark the title page with the following legend: This proposal
includes data that shall not be disclosed outside the Government and
shall not be duplicated, used, or disclosed--in whole or in part--for
any purpose other than to evaluate this proposal. If, however, a
contract is awarded to this offeror as a result of--or in connection
with--the submission of this data, the Government shall have the right
to duplicate, use, or disclose the data to the extent provided in the
resulting contract. This restriction does not limit the Government's
right to use information contained in this data if it is obtained from
another source without restriction. The data subject to this restriction
are contained in sheets [insert numbers or other identification of
sheets]; and
(2) Mark each sheet of data it wishes to restrict with the following
legend: Use or disclosure of data contained on this sheet is subject to
the restriction on the title page of this proposal.
(f) Contract award. (1) The Government intends to award a contract
or contracts resulting from this solicitation to the responsible
offeror(s) whose proposal(s) represents the best value after evaluation
in accordance with the factors and subfactors in the solicitation.
(2) The Government may reject any or all proposals if such action is
in the Government's interest.
(3) The Government may waive informalities and minor irregularities
in proposals received.
(4) The Government intends to evaluate proposals and award a
contract without discussions with offerors (except clarifications as
described in FAR 15.306(a)). Therefore, the offeror's initial proposal
should contain the offeror's best terms from a cost or price and
technical standpoint. The Government reserves the right to conduct
discussions if the Contracting Officer later determines them to be
necessary. If the Contracting Officer determines that the number of
proposals that would otherwise be in the competitive range exceeds the
number at which an efficient competition can be conducted, the
Contracting Officer may limit the number of proposals in the competitive
range to the greatest number that will permit an efficient competition
among the most highly rated proposals.
(5) The Government reserves the right to make an award on any item
for a quantity less than the quantity offered, at the unit cost or
prices offered, unless the offeror specifies otherwise in the proposal.
(6) The Government reserves the right to make multiple awards if,
after considering the additional administrative costs, it is in the
Government's best interest to do so.
(7) Exchanges with offerors after receipt of a proposal do not
constitute a rejection or counteroffer by the Government.
(8) The Government may determine that a proposal is unacceptable if
the prices proposed are materially unbalanced between line items or
subline items. Unbalanced pricing exists when, despite an acceptable
total evaluated price, the price of one or more line items is
significantly overstated or understated as indicated by the application
of cost or price analysis techniques. A proposal may be rejected if the
Contracting Officer determines that the lack of balance poses an
unacceptable risk to the Government.
(9) If a cost realism analysis is performed, cost realism may be
considered by the source selection authority in evaluating performance
or schedule risk.
(10) A written award or acceptance of proposal mailed or otherwise
furnished to the successful offeror within the time specified in the
proposal shall result in a binding contract without further action by
either party.
(11) If a post-award debriefing is given to requesting offerors, the
Government shall disclose the following information, if applicable:
(i) The agency's evaluation of the significant weak or deficient
factors in the debriefed offeror's offer.
(ii) The overall evaluated cost or price and technical rating of the
successful and the debriefed offeror and past performance information on
the debriefed offeror.
(iii) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection.
(iv) A summary of the rationale for award.
(v) For acquisitions of commercial items, the make and model of the
item to be delivered by the successful offeror.
(vi) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set forth in
the solicitation, applicable regulations, and other applicable
authorities were followed by the agency.
[[Page 108]]
(End of provision)
Alternate I (OCT 1997). As prescribed in 15.209(a)(1), substitute
the following paragraph (f)(4) for paragraph (f)(4) of the basic
provision:
(f)(4) The Government intends to evaluate proposals and award a
contract after conducting discussions with offerors whose proposals have
been determined to be within the competitive range. If the Contracting
Officer determines that the number of proposals that would otherwise be
in the competitive range exceeds the number at which an efficient
competition can be conducted, the Contracting Officer may limit the
number of proposals in the competitive range to the greatest number that
will permit an efficient competition among the most highly rated
proposals. Therefore, the offeror's initial proposal should contain the
offeror's best terms from a price and technical standpoint.
Alternate II (OCT 1997). As prescribed in 15.209(a)(2), add a
paragraph (c)(9) substantially the same as the following to the basic
clause:
(9) Offerors may submit proposals that depart from stated
requirements. Such proposals shall clearly identify why the acceptance
of the proposal would be advantageous to the Government. Any deviations
from the terms and conditions of the solicitation, as well as the
comparative advantage to the Government, shall be clearly identified and
explicitly defined. The Government reserves the right to amend the
solicitation to allow all offerors an opportunity to submit revised
proposals based on the revised requirements.
[62 FR 51259, Sept. 30, 1997; 64 FR 51841, Sept. 24, 1999, as amended at
64 FR 72433, 72451, Dec. 27, 1999; 66 FR 2135, Jan. 10, 2001; 68 FR
69258, Dec. 11, 2003; 82 FR 4715, Jan. 13, 2017]
52.215-2 Audit and Records--Negotiation.
As prescribed in 15.209(b), insert the following clause:
Audit and Records--Negotiation (OCT 2010)
(a) As used in this clause, records includes books, documents,
accounting procedures and practices, and other data, regardless of type
and regardless of whether such items are in written form, in the form of
computer data, or in any other form.
(b) Examination of costs. If this is a cost-reimbursement,
incentive, time-and-materials, labor-hour, or price redeterminable
contract, or any combination of these, the Contractor shall maintain and
the Contracting Officer, or an authorized representative of the
Contracting Officer, shall have the right to examine and audit all
records and other evidence sufficient to reflect properly all costs
claimed to have been incurred or anticipated to be incurred directly or
indirectly in performance of this contract. This right of examination
shall include inspection at all reasonable times of the Contractor's
plants, or parts of them, engaged in performing the contract.
(c) Certified cost or pricing data. If the Contractor has been
required to submit certified cost or pricing data in connection with any
pricing action relating to this contract, the Contracting Officer, or an
authorized representative of the Contracting Officer, in order to
evaluate the accuracy, completeness, and currency of the certified cost
or pricing data, shall have the right to examine and audit all of the
Contractor's records, including computations and projections, related
to--
(1) The proposal for the contract, subcontract, or modification;
(2) The discussions conducted on the proposal(s), including those
related to negotiating;
(3) Pricing of the contract, subcontract, or modification; or
(4) Performance of the contract, subcontract or modification.
(d) Comptroller General. (1) The Comptroller General of the United
States, or an authorized representative, shall have access to and the
right to examine any of the Contractor's directly pertinent records
involving transactions related to this contract or a subcontract
hereunder and to interview any current employee regarding such
transactions.
(2) This paragraph may not be construed to require the Contractor or
subcontractor to create or maintain any record that the Contractor or
subcontractor does not maintain in the ordinary course of business or
pursuant to a provision of law.
(e) Reports. If the Contractor is required to furnish cost, funding,
or performance reports, the Contracting Officer or an authorized
representative of the Contracting Officer shall have the right to
examine and audit the supporting records and materials, for the purpose
of evaluating (1) the effectiveness of the Contractor's policies and
procedures to produce data compatible with the objectives of these
reports and (2) the data reported.
(f) Availability. The Contractor shall make available at its office
at all reasonable times the records, materials, and other evidence
described in paragraphs (a), (b), (c), (d), and (e) of this clause, for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in Subpart 4.7,
Contractor Records Retention, of the Federal Acquisition Regulation
(FAR), or for any longer period required by statute or by other clauses
of this contract. In addition--
[[Page 109]]
(1) If this contract is completely or partially terminated, the
Contractor shall make available the records relating to the work
terminated until 3 years after any resulting final termination
settlement; and
(2) The Contractor shall make available records relating to appeals
under the Disputes clause or to litigation or the settlement of claims
arising under or relating to this contract until such appeals,
litigation, or claims are finally resolved.
(g) The Contractor shall insert a clause containing all the terms of
this clause, including this paragraph (g), in all subcontracts under
this contract that exceed the simplified acquisition threshold and--
(1) That are cost-reimbursement, incentive, time-and-materials,
labor-hour, or price-redeterminable type or any combination of these;
(2) For which certified cost or pricing data are required; or
(3) That require the subcontractor to furnish reports as discussed
in paragraph (e) of this clause.
The clause may be altered only as necessary to identify properly the
contracting parties and the Contracting Officer under the Government
prime contract.
(End of clause)
Alternate I (MAR 2009). As prescribed in 15.209(b)(2), substitute
the following paragraphs (d)(1) and (g) for paragraphs (d)(1) and (g) of
the basic clause:
(d) Comptroller General or Inspector General. (1) The Comptroller
General of the United States, an appropriate Inspector General appointed
under section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C.
App.), or an authorized representative of either of the foregoing
officials, shall have access to and the right to--
(i) Examine any of the Contractor's or any subcontractor's records
that pertain to and involve transactions relating to this contract or a
subcontract hereunder; and
(ii) Interview any officer or employee regarding such transactions.
(g)(1) Except as provided in paragraph (g)(2) of this clause, the
Contractor shall insert a clause containing all the terms of this
clause, including this paragraph (g), in all subcontracts under this
contract. The clause may be altered only as necessary to identify
properly the contracting parties and the Contracting Officer under the
Government prime contract.
(2) The authority of the Inspector General under paragraph
(d)(1)(ii) of this clause does not flow down to subcontracts.
Alternate II (AUG 2016). As prescribed in 15.209(b)(3), add the
following paragraph (h) to the basic clause:
(h) The provisions of the OMB Uniform Guidance at 2 CFR part 200,
subpart F apply to this contract.
Alternate III (JUN 1999). As prescribed in 15.209(b)(4), delete
paragraph (d) of the basic clause and redesignate the remaining
paragraphs accordingly, and substitute the following paragraph (e) for
the redesignated paragraph (e) of the basic clause:
(e) Availability. The Contractor shall make available at its office
at all reasonable times the records, materials, and other evidence
described in paragraphs (a), (b), (c), and (d) of this clause, for
examination, audit, or reproduction, until 3 years after final payment
under this contract or for any shorter period specified in Subpart 4.7,
Contractor Records Retention, of the Federal Acquisition Regulation
(FAR), or for any longer period required by statute or by other clauses
of this contract. In addition--
(1) If this contract is completely or partially terminated, the
Contractor shall make available the records relating to the work
terminated until 3 years after any resulting final termination
settlement; and
(2) The Contractor shall make available records relating to appeals
under the Disputes clause or to litigation or the settlement of claims
arising under or relating to this contract until such appeals,
litigation, or claims are finally resolved.
[60 FR 42651, Aug. 16, 1995, as amended at 61 FR 39198, July 26, 1996;
62 FR 259, Jan. 2, 1997; 62 FR 51271, Sept. 30, 1997; 63 FR 9055, Feb.
23, 1998; 64 FR 32749, June 17, 1999; 72 FR 27389, May 15, 2007; 74 FR
14649, 14651, Mar. 31, 2009; 75 FR 53150, Aug. 30, 2010; 81 FR 45854,
July 14, 2016]
52.215-3 Request for Information or Solicitation for Planning Purposes.
As prescribed in 15.209(c), insert the following provision:
Request for Information or Solicitation for Planning Purposes (OCT 1997)
(a) The Government does not intend to award a contract on the basis
of this solicitation or to otherwise pay for the information solicited
except as an allowable cost under other contracts as provided in
subsection 31.205-18, Bid and proposal costs, of the Federal Acquisition
Regulation.
(b) Although ``proposal'' and ``offeror'' are used in this Request
for Information, your response will be treated as information only. It
shall not be used as a proposal.
(c) This solicitation is issued for the purpose of: [state purpose].
[[Page 110]]
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-4 [Reserved]
52.215-5 Facsimile Proposals.
As prescribed in 15.209(e), insert the following provision:
Facsimile Proposals (OCT 1997)
(a) Definition. Facsimile proposal, as used in this provision, means
a proposal, revision or modification of a proposal, or withdrawal of a
proposal that is transmitted to and received by the Government via
facsimile machine.
(b) Offerors may submit facsimile proposals as responses to this
solicitation. Facsimile proposals are subject to the same rules as paper
proposals.
(c) The telephone number of receiving facsimile equipment is:
[insert telephone number].
(d) If any portion of a facsimile proposal received by the
Contracting Officer is unreadable to the degree that conformance to the
essential requirements of the solicitation cannot be ascertained from
the document--
(1) The Contracting Officer immediately shall notify the offeror and
permit the offeror to resubmit the proposal;
(2) The method and time for resubmission shall be prescribed by the
Contracting Officer after consultation with the offeror; and
(3) The resubmission shall be considered as if it were received at
the date and time of the original unreadable submission for the purpose
of determining timeliness, provided the offeror complies with the time
and format requirements for resubmission prescribed by the Contracting
Officer.
(e) The Government reserves the right to make award solely on the
facsimile proposal. However, if requested to do so by the Contracting
Officer, the apparently successful offeror promptly shall submit the
complete original signed proposal.
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-6 Place of Performance.
As prescribed in 15.209(f), insert the following provision:
Place of Performance (OCT 1997)
(a) The offeror or respondent, in the performance of any contract
resulting from this solicitation, [squ] intends, [squ] does not intend
[check applicable block] to use one or more plants or facilities located
at a different address from the address of the offeror or respondent as
indicated in this proposal or response to request for information.
(b) If the offeror or respondent checks ``intends'' in paragraph (a)
of this provision, it shall insert in the following spaces the required
information:
------------------------------------------------------------------------
Place of performance (street Name and address of owner and
address, city, state, county, zip operator of the plant or facility
code) if other than offeror or respondent
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of provision)
[62 FR 51261, Sept. 30, 1997]
52.215-7 [Reserved]
52.215-8 Order of Precedence--Uniform Contract Format.
As prescribed in 15.209(h), insert the following clause:
Order of Precedence--Uniform Contract Format (OCT 1997)
Any inconsistency in this solicitation or contract shall be resolved
by giving precedence in the following order:
(a) The Schedule (excluding the specifications).
(b) Representations and other instructions.
(c) Contract clauses.
(d) Other documents, exhibits, and attachments.
(e) The specifications.
(End of clause)
[62 FR 51261, Sept. 30, 1997]
52.215-9 Changes or Additions to Make-or-Buy Program.
As prescribed in 15.408(a), insert the following clause:
Changes or Additions to Make-or-Buy Program (OCT 1997)
(a) The Contractor shall perform in accordance with the make-or-buy
program incorporated in this contract. If the Contractor proposes to
change the program, the Contractor shall, reasonably in advance of the
proposed change, (1) notify the Contracting Officer in writing, and (2)
submit justification in sufficient detail to permit evaluation. Changes
in the place of performance of any ``make'' items in the program are
subject to this requirement.
(b) For items deferred at the time of negotiation of this contract
for later addition to
[[Page 111]]
the program, the Contractor shall, at the earliest possible time--
(1) Notify the Contracting Officer of each proposed addition; and
(2) Provide justification in sufficient detail to permit evaluation.
(c) Modification of the make-or-buy program to incorporate proposed
changes or additions shall be effective upon the Contractor's receipt of
the Contracting Officer's written approval.
(End of clause)
Alternate I (OCT 2010). As prescribed in 15.408(a)(1) add the
following paragraph (d) to the basic clause:
(d) If the Contractor desires to reverse the categorization of
``make'' or ``buy'' for any item or items designated in the contract as
subject to this paragraph, it shall--
(1) Support its proposal with certified cost or pricing data in
accordance with FAR 15.408, Table 15-2 when required by FAR 15.403, and
data other than certified cost or pricing data, to permit evaluation;
and
(2) After approval is granted, promptly negotiate with the
Contracting Officer an equitable reduction in the contract price in
accordance with paragraph (k) of the Incentive Price Revision--Firm
Target clause or paragraph (m) of the Incentive Price Revision--
Successive Targets clause of this contract.
Alternate II (OCT 2010). As prescribed in 15.408(a)(2), add the
following paragraph (d) to the basic clause:
(d) If the Contractor desires to reverse the categorization of
``make'' or ``buy'' for any item or items designated in the contract as
subject to this paragraph, it shall--
(1) Support its proposal with certified cost or pricing data in
accordance with FAR 15.408, Table 15-2, when required by FAR 15.403, and
data other than certified cost or pricing data, to permit evaluation;
and
(1) Support its proposal with cost or pricing data to permit
evaluation; and
(2) After approval is granted, promptly negotiate with the
Contracting Officer an equitable reduction in the contract's total
estimated cost and fee in accordance with paragraph (e) of the Incentive
Fee clause of this contract.
[62 FR 51261, Sept. 30, 1997, as amended at 75 FR 53150, Aug. 30, 2010]
52.215-10 Price Reduction for Defective Certified Cost or Pricing Data.
As prescribed in 15.408(b), insert the following clause:
Price Reduction for Defective Certified Cost or Pricing Data (AUG 2011)
(a) If any price, including profit or fee, negotiated in connection
with this contract, or any cost reimbursable under this contract, was
increased by any significant amount because--
(1) The Contractor or a subcontractor furnished certified cost or
pricing data that were not complete, accurate, and current as certified
in its Certificate of Current Cost or Pricing Data;
(2) A subcontractor or prospective subcontractor furnished the
Contractor certified cost or pricing data that were not complete,
accurate, and current as certified in the Contractor's Certificate of
Current Cost or Pricing Data; or
(3) Any of these parties furnished data of any description that were
not accurate, the price or cost shall be reduced accordingly and the
contract shall be modified to reflect the reduction.
(b) Any reduction in the contract price under paragraph (a) of this
clause due to defective data from a prospective subcontractor that was
not subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which (1) the actual
subcontract or (2) the actual cost to the Contractor, if there was no
subcontract, was less than the prospective subcontract cost estimate
submitted by the Contractor; provided, that the actual subcontract price
was not itself affected by defective certified cost or pricing data.
(c)(1) If the Contracting Officer determines under paragraph (a) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense:
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current certified cost or pricing data had been submitted.
(ii) The Contracting Officer should have known that the certified
cost or pricing data in issue were defective even though the Contractor
or subcontractor took no affirmative action to bring the character of
the data to the attention of the Contracting Officer.
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract.
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
(2)(i) Except as prohibited by subdivision (c)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be
[[Page 112]]
allowed against the amount of a contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the certified cost or pricing data
were available before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data, and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data were known by the Contractor to be
understated before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset even
if the available data had been submitted before the ``as of'' date
specified on its Certificate of Current Cost or Pricing Data.
(d) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Interest compounded daily, as required by 26 U.S.C. 6622, on the
amount of such overpayment to be computed from the date(s) of
overpayment to the Contractor to the date the Government is repaid by
the Contractor at the applicable underpayment rate effective for each
quarter prescribed by the Secretary of the Treasury under 26 U.S.C.
6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted certified cost or
pricing data that were incomplete, inaccurate, or noncurrent.
(End of clause)
[62 FR 51262, Sept. 30, 1997, as amended at 75 FR 53151, Aug. 30, 2010;
76 FR 39242, July 5, 2011]
52.215-11 Price Reduction for Defective Certified Cost or Pricing
Data--Modifications.
As prescribed in 15.408(c), insert the following clause:
Price Reduction for Defective Certified Cost or Pricing Data--
Modifications (AUG 2011)
(a) This clause shall become operative only for any modification to
this contract involving a pricing adjustment expected to exceed the
threshold for submission of certified cost or pricing data at FAR
15.403-4, except that this clause does not apply to any modification if
an exception under FAR 15.403-1 applies.
(b) If any price, including profit or fee, negotiated in connection
with any modification under this clause, or any cost reimbursable under
this contract, was increased by any significant amount because (1) the
Contractor or a subcontractor furnished certified cost or pricing data
that were not complete, accurate, and current as certified in its
Certificate of Current Cost or Pricing Data, (2) a subcontractor or
prospective subcontractor furnished the Contractor certified cost or
pricing data that were not complete, accurate, and current as certified
in the Contractor's Certificate of Current Cost or Pricing Data, or (3)
any of these parties furnished data of any description that were not
accurate, the price or cost shall be reduced accordingly and the
contract shall be modified to reflect the reduction. This right to a
price reduction is limited to that resulting from defects in data
relating to modifications for which this clause becomes operative under
paragraph (a) of this clause.
(c) Any reduction in the contract price under paragraph (b) of this
clause due to defective data from a prospective subcontractor that was
not subsequently awarded the subcontract shall be limited to the amount,
plus applicable overhead and profit markup, by which (1) the actual
subcontract or (2) the actual cost to the Contractor, if there was no
subcontract, was less than the prospective subcontract cost estimate
submitted by the Contractor; provided, that the actual subcontract price
was not itself affected by defective certified cost or pricing data.
(d)(1) If the Contracting Officer determines under paragraph (b) of
this clause that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense:
(i) The Contractor or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the price of
the contract would not have been modified even if accurate, complete,
and current certified cost or pricing data had been submitted.
(ii) The Contracting Officer should have known that the certified
cost or pricing data in issue were defective even though the Contractor
or subcontractor took no affirmative action to bring the character of
the data to the attention of the Contracting Officer.
(iii) The contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each item
procured under the contract.
(iv) The Contractor or subcontractor did not submit a Certificate of
Current Cost or Pricing Data.
[[Page 113]]
(2)(i) Except as prohibited by subdivision (d)(2)(ii) of this
clause, an offset in an amount determined appropriate by the Contracting
Officer based upon the facts shall be allowed against the amount of a
contract price reduction if--
(A) The Contractor certifies to the Contracting Officer that, to the
best of the Contractor's knowledge and belief, the Contractor is
entitled to the offset in the amount requested; and
(B) The Contractor proves that the certified cost or pricing data
were available before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data, and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data were known by the Contractor to be
understated before the ``as of'' date specified on its Certificate of
Current Cost or Pricing Data; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset even
if the available data had been submitted before the ``as of'' date
specified on its Certificate of Current Cost or Pricing Data.
(e) If any reduction in the contract price under this clause reduces
the price of items for which payment was made prior to the date of the
modification reflecting the price reduction, the Contractor shall be
liable to and shall pay the United States at the time such overpayment
is repaid--
(1) Interest compounded daily, as required by 26 U.S.C. 6622, on the
amount of such overpayment to be computed from the date(s) of
overpayment to the Contractor to the date the Government is repaid by
the Contractor at the applicable underpayment rate effective for each
quarter prescribed by the Secretary of the Treasury under 26 U.S.C.
6621(a)(2); and
(2) A penalty equal to the amount of the overpayment, if the
Contractor or subcontractor knowingly submitted certified cost or
pricing data that were incomplete, inaccurate, or noncurrent.
(End of clause)
[62 FR 51262, Sept. 30, 1997, as amended at 75 FR 53151, Aug. 30, 2010;
76 FR 39243, July 5, 2011 ]
52.215-12 Subcontractor Certified Cost or Pricing Data.
As prescribed in 15.408(d), insert the following clause:
Subcontractor Certified Cost or Pricing Data (OCT 2010)
(a) Before awarding any subcontract expected to exceed the threshold
for submission of certified cost or pricing data at FAR 15.403-4, on the
date of agreement on price or the date of award, whichever is later; or
before pricing any subcontract modification involving a pricing
adjustment expected to exceed the threshold for submission of certified
cost or pricing data at FAR 15.403-4, the Contractor shall require the
subcontractor to submit certified cost or pricing data (actually or by
specific identification in writing), in accordance with FAR 15.408,
Table 15-2 (to include any information reasonably required to explain
the subcontractor's estimating process such as the judgmental factors
applied and the mathematical or other methods used in the estimate,
including those used in projecting from known data, and the nature and
amount of any contingencies included in the price), unless an exception
under FAR 15.403-1 applies.
(b) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in FAR 15.406-2 that, to the best of
its knowledge and belief, the data submitted under paragraph (a) of this
clause were accurate, complete, and current as of the date of agreement
on the negotiated price of the subcontract or subcontract modification.
(c) In each subcontract that exceeds the threshold for submission of
certified cost or pricing data at FAR 15.403-4, when entered into, the
Contractor shall insert either--
(1) The substance of this clause, including this paragraph (c), if
paragraph (a) of this clause requires submission of certified cost or
pricing data for the subcontract; or
(2) The substance of the clause at FAR 52.215-13, Subcontractor
Certified Cost or Pricing Data--Modifications.
(End of clause)
[62 FR 51263, Sept. 30, 1997, as amended at 75 FR 53151, Aug. 30, 2010]
52.215-13 Subcontractor Certified Cost or Pricing Data--Modifications.
As prescribed in 15.408(e), insert the following clause:
Subcontractor Certified Cost or Pricing Data--Modifications (OCT 2010)
(a) The requirements of paragraphs (b) and (c) of this clause
shall--
(1) Become operative only for any modification to this contract
involving a pricing adjustment expected to exceed the threshold for
submission of certified cost or pricing data at FAR 15.403-4; and
(2) Be limited to such modifications.
(b) Before awarding any subcontract expected to exceed the threshold
for submission of certified cost or pricing data at FAR 15.403-4, on the
date of agreement on price or
[[Page 114]]
the date of award, whichever is later; or before pricing any subcontract
modification involving a pricing adjustment expected to exceed the
threshold for submission of certified cost or pricing data at FAR
15.403-4, the Contractor shall require the subcontractor to submit
certified cost or pricing data (actually or by specific identification
in writing), in accordance with FAR 15.408, Table 15-2 (to include any
information reasonably required to explain the subcontractor's
estimating process such as the judgmental factors applied and the
mathematical or other methods used in the estimate, including those used
in projecting from known data, and the nature and amount of any
contingencies included in the price), unless an exception under FAR
15.403-1 applies.
(c) The Contractor shall require the subcontractor to certify in
substantially the form prescribed in FAR 15.406-2 that, to the best of
its knowledge and belief, the data submitted under paragraph (b) of this
clause were accurate, complete, and current as of the date of agreement
on the negotiated price of the subcontract or subcontract modification.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in each subcontract that exceeds the
threshold for submission of certified cost or pricing data at FAR
15.403-4 on the date of agreement on price or the date of award,
whichever is later.
(End of clause)
[62 FR 51263, Sept. 30, 1997, as amended at 75 FR 53151, Aug. 30, 2010]
52.215-14 Integrity of Unit Prices.
As prescribed in 15.408(f)(1), insert the following clause:
Integrity of Unit Prices (OCT 2010)
(a) Any proposal submitted for the negotiation of prices for items
of supplies shall distribute costs within contracts on a basis that
ensures that unit prices are in proportion to the items' base cost
(e.g., manufacturing or acquisition costs). Any method of distributing
costs to line items that distorts unit prices shall not be used. For
example, distributing costs equally among line items is not acceptable
except when there is little or no variation in base cost. Nothing in
this paragraph requires submission of certified cost or pricing data not
otherwise required by law or regulation.
(b) When requested by the Contracting Officer, the Offeror/
Contractor shall also identify those supplies that it will not
manufacture or to which it will not contribute significant value.
(c) The Contractor shall insert the substance of this clause, less
paragraph (b), in all subcontracts for other than: acquisitions at or
below the simplified acquisition threshold in FAR Part 2; construction
or architect-engineer services under FAR Part 36; utility services under
FAR Part 41; services where supplies are not required; commercial items;
and petroleum products.
(End of clause)
Alternate I (OCT 1997). As prescribed in 15.408(f)(2), substitute
the following paragraph (b) for paragraph (b) of the basic clause:
(b) The Offeror/Contractor shall also identify those supplies that
it will not manufacture or to which it will not contribute significant
value.
[62 FR 51263, Sept. 30, 1997, as amended at 75 FR 53151, Aug. 30, 2010]
52.215-15 Pension adjustments and asset reversions.
As prescribed in 15.408(g), insert the following clause:
Pension Adjustments and Asset Reversions (OCT 2010)
(a) The Contractor shall promptly notify the Contracting Officer in
writing when it determines that it will terminate a defined-benefit
pension plan or otherwise recapture such pension fund assets.
(b) For segment closings, pension plan terminations, or curtailment
of benefits, the amount of the adjustment shall be--
(1) For contracts and subcontracts that are subject to full coverage
under the Cost Accounting Standards (CAS) Board rules and regulations
(48 CFR Chapter 99), the amount measured, assigned, and allocated in
accordance with 48 CFR 9904.413-50(c)(12); and
(2) For contracts and subcontracts that are not subject to full
coverage under the CAS, the amount measured, assigned, and allocated in
accordance with 48 CFR 9904.413-50(c)(12), except the numerator of the
fraction at 48 CFR 9904.413-50(c)(12)(vi) shall be the sum of the
pension plan costs allocated to all non-CAS covered contracts and
subcontracts that are subject to Federal Acquisition Regulation (FAR)
Subpart 31.2 or for which certified cost or pricing data were submitted.
(c) For all other situations where assets revert to the Contractor,
or such assets are constructively received by it for any reason, the
Contractor shall, at the Government's option, make a refund or give a
credit to the Government for its equitable share of the gross amount
withdrawn. The Government's equitable share shall reflect the
Government's participation in pension costs through those contracts for
which certified
[[Page 115]]
cost or pricing data were submitted or that are subject to FAR Subpart
31.2.
(d) The Contractor shall include the substance of this clause in all
subcontracts under this contract that meet the applicability requirement
of FAR 15.408(g).
(End of clause)
[63 FR 58598, Oct. 30, 1998, as amended at 68 FR 69527, Dec. 11, 2003;
69 FR 59704, Oct. 5, 2004; 69 FR 60967, Oct. 14, 2004; 75 FR 53151, Aug.
30, 2010]
52.215-16 Facilities Capital Cost of Money.
As prescribed in 15.408(h), insert the following provision:
Facilities Capital Cost of Money (JUN 2003)
(a) Facilities capital cost of money will be an allowable cost under
the contemplated contract, if the criteria for allowability in FAR
31.205-10(b) are met. One of the allowability criteria requires the
prospective Contractor to propose facilities capital cost of money in
its offer.
(b) If the prospective Contractor does not propose this cost, the
resulting contract will include the clause Waiver of Facilities Capital
Cost of Money.
(End of provision)
[52 FR 35669, Sept. 22, 1987. Redesignated and amended at 62 FR 51263,
Sept. 30, 1997; 68 FR 28092, May 22, 2003]
52.215-17 Waiver of Facilities Capital Cost of Money.
As prescribed in 15.408(i), insert the following clause:
Waiver of Facilities Capital Cost of Money (OCT 1997)
The Contractor did not include facilities capital cost of money as a
proposed cost of this contract. Therefore, it is an unallowable cost
under this contract.
(End of clause)
[52 FR 35669, Sept. 22, 1987. Redesignated and amended at 62 FR 51263,
Sept. 30, 1997]
52.215-18 Reversion or Adjustment of Plans for Postretirement
Benefits (PRB) Other Than Pensions.
As prescribed in 15.408(j), insert the following clause:
Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other
Than Pensions (JUL 2005)
(a) The Contractor shall promptly notify the Contracting Officer in
writing when the Contractor determines that it will terminate or reduce
the benefits of a PRB plan.
(b) If PRB fund assets revert or inure to the Contractor, or are
constructively received by it under a plan termination or otherwise, the
Contractor shall make a refund or give a credit to the Government for
its equitable share as required by 31.205-6(o)(5) of the Federal
Acquisition Regulation (FAR). When determining or agreeing on the method
for recovery of the Government's equitable share, the contracting
parties should consider the following methods: cost reduction,
amortizing the credit over a number of years (with appropriate
interest), cash refund, or some other agreed upon method. Should the
parties be unable to agree on the method for recovery of the
Government's equitable share, through good faith negotiations, the
Contracting Officer shall designate the method of recovery.
(c) The Contractor shall insert the substance of this clause in all
subcontracts that meet the applicability requirements of FAR 15.408(j).
(End of clause)
[70 FR 33673, June 8, 2005]
52.215-19 Notification of Ownership Changes.
As prescribed in 15.408(k), insert the following clause:
Notification of Ownership Changes (OCT 1997)
(a) The Contractor shall make the following notifications in
writing:
(1) When the Contractor becomes aware that a change in its ownership
has occurred, or is certain to occur, that could result in changes in
the valuation of its capitalized assets in the accounting records, the
Contractor shall notify the Administrative Contracting Officer (ACO)
within 30 days.
(2) The Contractor shall also notify the ACO within 30 days whenever
changes to asset valuations or any other cost changes have occurred or
are certain to occur as a result of a change in ownership.
(b) The Contractor shall--
(1) Maintain current, accurate, and complete inventory records of
assets and their costs;
(2) Provide the ACO or designated representative ready access to the
records upon request;
(3) Ensure that all individual and grouped assets, their capitalized
values, accumulated
[[Page 116]]
depreciation or amortization, and remaining useful lives are identified
accurately before and after each of the Contractor's ownership changes;
and
(4) Retain and continue to maintain depreciation and amortization
schedules based on the asset records maintained before each Contractor
ownership change.
(c) The Contractor shall include the substance of this clause in all
subcontracts under this contract that meet the applicability requirement
of FAR 15.408(k).
(End of clause)
[62 FR 51264, Sept. 30, 1997]
52.215-20 Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data.
As prescribed in 15.408(l), insert the following provision:
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data (OCT 2010)
(a) Exceptions from certified cost or pricing data. (1) In lieu of
submitting certified cost or pricing data, offerors may submit a written
request for exception by submitting the information described in the
following subparagraphs. The Contracting Officer may require additional
supporting information, but only to the extent necessary to determine
whether an exception should be granted, and whether the price is fair
and reasonable.
(i) Identification of the law or regulation establishing the price
offered. If the price is controlled under law by periodic rulings,
reviews, or similar actions of a governmental body, attach a copy of the
controlling document, unless it was previously submitted to the
contracting office.
(ii) Commercial item exception. For a commercial item exception, the
offeror shall submit, at a minimum, information on prices at which the
same item or similar items have previously been sold in the commercial
market that is adequate for evaluating the reasonableness of the price
for this acquisition. Such information may include--
(A) For catalog items, a copy of or identification of the catalog
and its date, or the appropriate pages for the offered items, or a
statement that the catalog is on file in the buying office to which the
proposal is being submitted. Provide a copy or describe current discount
policies and price lists (published or unpublished), e.g., wholesale,
original equipment manufacturer, or reseller. Also explain the basis of
each offered price and its relationship to the established catalog
price, including how the proposed price relates to the price of recent
sales in quantities similar to the proposed quantities;
(B) For market-priced items, the source and date or period of the
market quotation or other basis for market price, the base amount, and
applicable discounts. In addition, describe the nature of the market;
(C) For items included on an active Federal Supply Service Multiple
Award Schedule contract, proof that an exception has been granted for
the schedule item.
(2) The offeror grants the Contracting Officer or an authorized
representative the right to examine, at any time before award, books,
records, documents, or other directly pertinent records to verify any
request for an exception under this provision, and the reasonableness of
price. For items priced using catalog or market prices, or law or
regulation, access does not extend to cost or profit information or
other data relevant solely to the offeror's determination of the prices
to be offered in the catalog or marketplace.
(b) Requirements for certified cost or pricing data. If the offeror
is not granted an exception from the requirement to submit certified
cost or pricing data, the following applies:
(1) The offeror shall prepare and submit certified cost or pricing
data, data other than certified cost or pricing data, and supporting
attachments in accordance with the instructions contained in Table 15-2
of FAR 15.408, which is incorporated by reference with the same force
and effect as though it were inserted here in full text. The
instructions in Table 15-2 are incorporated as a mandatory format to be
used in this contract, unless the Contracting Officer and the Contractor
agree to a different format and change this clause to use Alternate I.
(2) As soon as practicable after agreement on price, but before
contract award (except for unpriced actions such as letter contracts),
the offeror shall submit a Certificate of Current Cost or Pricing Data,
as prescribed by FAR 15.406-2.
(End of provision)
Alternate I (OCT 2010). As prescribed in 15.408(l) (and see 15.403-
5(b)(1)), substitute the following paragraph (b)(1) for paragraph (b)(1)
of the basic provision:
(b)(1) The offeror shall submit certified cost or pricing data, data
other than certified cost or pricing data, and supporting attachments in
the following format: [Insert description of the data and format that
are required, and include access to records necessary to permit an
adequate evaluation of the proposed price in accordance with 15.408,
Table 15-2, Note 2. The description may be inserted at the time of
issuing the solicitation, or the Contracting Officer may specify that
the offeror's
[[Page 117]]
format will be acceptable, or the description may be inserted as the
result of negotiations.]
Alternate II (OCT 1997). As prescribed in 15.408(l), add the
following paragraph (c) to the basic provision:
(c) When the proposal is submitted, also submit one copy each to:
(1) the Administrative Contracting Officer, and (2) the Contract
Auditor.
Alternate III (OCT 1997). As prescribed in 15.408(l), add the
following paragraph (c) to the basic provision (if Alternate II is also
used, redesignate the following paragraph as paragraph (d)).
(c) Submit the cost portion of the proposal via the following
electronic media: [Insert media format, e.g., electronic spreadsheet
format, electronic mail, etc.]
Alternate IV (OCT 2010). As prescribed in 15.408(l), replace the
text of the basic provision with the following:
(a) Submission of certified cost or pricing data is not required.
(b) Provide data described below: [Insert description of the data
and the format that are required, including the access to records
necessary to permit an adequate evaluation of the proposed price in
accordance with 15.403-3.]
[62 FR 51264, Sept. 30, 1997, as amended at 75 FR 53152, Aug. 30, 2010;
77 FR 44066, July 26, 2012]
52.215-21 Requirements for Certified Cost or Pricing Data and Data
Other Than Certified Cost or Pricing Data--Modifications.
As prescribed in 15.408(m), insert the following clause:
Requirements for Certified Cost or Pricing Data and Data Other Than
Certified Cost or Pricing Data--Modifications (OCT 2010)
(a) Exceptions from certified cost or pricing data. (1) In lieu of
submitting certified cost or pricing data for modifications under this
contract, for price adjustments expected to exceed the threshold set
forth at FAR 15.403-4 on the date of the agreement on price or the date
of the award, whichever is later, the Contractor may submit a written
request for exception by submitting the information described in the
following subparagraphs. The Contracting Officer may require additional
supporting information, but only to the extent necessary to determine
whether an exception should be granted, and whether the price is fair
and reasonable--
(i) Identification of the law or regulation establishing the price
offered. If the price is controlled under law by periodic rulings,
reviews, or similar actions of a governmental body, attach a copy of the
controlling document, unless it was previously submitted to the
contracting office.
(ii) Information on modifications of contracts or subcontracts for
commercial items. (A) If--
(1) The original contract or subcontract was granted an exception
from certified cost or pricing data requirements because the price
agreed upon was based on adequate price competition or prices set by law
or regulation, or was a contract or subcontract for the acquisition of a
commercial item; and
(2) The modification (to the contract or subcontract) is not
exempted based on one of these exceptions, then the Contractor may
provide information to establish that the modification would not change
the contract or subcontract from a contract or subcontract for the
acquisition of a commercial item to a contract or subcontract for the
acquisition of an item other than a commercial item.
(B) For a commercial item exception, the Contractor shall provide,
at a minimum, information on prices at which the same item or similar
items have previously been sold that is adequate for evaluating the
reasonableness of the price of the modification. Such information may
include--
(1) For catalog items, a copy of or identification of the catalog
and its date, or the appropriate pages for the offered items, or a
statement that the catalog is on file in the buying office to which the
proposal is being submitted. Provide a copy or describe current discount
policies and price lists (published or unpublished), e.g., wholesale,
original equipment manufacturer, or reseller. Also explain the basis of
each offered price and its relationship to the established catalog
price, including how the proposed price relates to the price of recent
sales in quantities similar to the proposed quantities.
(2) For market-priced items, the source and date or period of the
market quotation or other basis for market price, the base amount, and
applicable discounts. In addition, describe the nature of the market.
(3) For items included on an active Federal Supply Service Multiple
Award Schedule contract, proof that an exception has been granted for
the schedule item.
(2) The Contractor grants the Contracting Officer or an authorized
representative the right to examine, at any time before award, books,
records, documents, or other directly pertinent records to verify any
request for an exception under this clause, and the reasonableness of
price. For items priced using catalog or market prices, or law or
regulation, access does not extend to cost or profit information or
other data relevant solely to the Contractor's determination of the
prices to be offered in the catalog or marketplace.
[[Page 118]]
(b) Requirements for certified cost or pricing data. If the
Contractor is not granted an exception from the requirement to submit
certified cost or pricing data, the following applies:
(1) The Contractor shall submit certified cost or pricing data, data
other than certified cost or pricing data, and supporting attachments in
accordance with the instructions contained in Table 15-2 of FAR 15.408,
which is incorporated by reference with the same force and effect as
though it were inserted here in full text. The instructions in Table 15-
2 are incorporated as a mandatory format to be used in this contract,
unless the Contracting Officer and the Contractor agree to a different
format and change this clause to use Alternate I.
(2) As soon as practicable after agreement on price, but before
award (except for unpriced actions), the Contractor shall submit a
Certificate of Current Cost or Pricing Data, as prescribed by FAR
15.406-2.
(End of clause)
Alternate I (OCT 2010). As prescribed in 15.408(m) and 15.403-
5(b)(1), substitute the following paragraph (b)(1) for paragraph (b)(1)
of the basic clause.
(b)(1) The Contractor shall submit certified cost or pricing data,
data other than certified cost or pricing data, and supporting
attachments prepared in the following format: [Insert description of the
data and format that are required and include access to records
necessary to permit an adequate evaluation of the proposed price in
accordance with 15.408, Table 15-2, Note 2. The description may be
inserted at the time of issuing the solicitation, or the Contracting
Officer may specify that the offeror's format will be acceptable, or the
description may be inserted as the result of negotiations.]
Alternate II (OCT 1997). As prescribed in 15.408(m), add the
following paragraph (c) to the basic clause:
(c) When the proposal is submitted, also submit one copy each to:
(1) the Administrative Contracting Officer, and (2) the Contract
Auditor.
Alternate III (OCT 1997). As prescribed in 15.408(m), add the
following paragraph (c) to the basic clause (if Alternate II is also
used, redesignate the following paragraph as paragraph (d)):
(c) Submit the cost portion of the proposal via the following
electronic media: [Insert media format]
Alternate IV (OCT 2010). As prescribed in 15.408(m), replace the
text of the basic clause with the following:
(a) Submission of certified cost or pricing data is not required.
(b) Provide data described below: [Insert description of the data
and the format that are required, including the access to records
necessary to permit an adequate evaluation of the proposed price in
accordance with 15.403-3.]
[62 FR 51264, Sept. 30, 1997, as amended at 75 FR 53152, Aug. 30, 2010]
52.215-22 Limitations on Pass-Through Charges--Identification of
Subcontract Effort.
As prescribed in 15.408(n)(1), use the following provision:
Limitations on Pass-Through Charges--Identification of Subcontract
Effort (OCT 2009)
(a) Definitions. Added value, excessive pass-through charge,
subcontract, and subcontractor, as used in this provision, are defined
in the clause of this solicitation entitled ``Limitations on Pass-
Through Charges'' (FAR 52.215-23).
(b) General. The offeror's proposal shall exclude excessive pass-
through charges.
(c) Performance of work by the Contractor or a subcontractor. (1)
The offeror shall identify in its proposal the total cost of the work to
be performed by the offeror, and the total cost of the work to be
performed by each subcontractor, under the contract, task order, or
delivery order.
(2) If the offeror intends to subcontract more than 70 percent of
the total cost of work to be performed under the contract, task order,
or delivery order, the offeror shall identify in its proposal--
(i) The amount of the offeror's indirect costs and profit/fee
applicable to the work to be performed by the subcontractor(s); and
(ii) A description of the added value provided by the offeror as
related to the work to be performed by the subcontractor(s).
(3) If any subcontractor proposed under the contract, task order, or
delivery order intends to subcontract to a lower-tier subcontractor more
than 70 percent of the total cost of work to be performed under its
subcontract, the offeror shall identify in its proposal--
(i) The amount of the subcontractor's indirect costs and profit/fee
applicable to the work to be performed by the lower-tier
subcontractor(s); and
(ii) A description of the added value provided by the subcontractor
as related to the work to be performed by the lower-tier
subcontractor(s).
(End of provision)
[74 FR 52855, Oct. 14, 2009]
[[Page 119]]
52.215-23 Limitations on Pass-Through Charges.
As prescribed in 15.408(n)(2), use the following clause:
Limitations on Pass-Through Charges (OCT 2009)
(a) Definitions. As used in this clause--
Added value means that the Contractor performs subcontract
management functions that the Contracting Officer determines are a
benefit to the Government (e.g., processing orders of parts or services,
maintaining inventory, reducing delivery lead times, managing multiple
sources for contract requirements, coordinating deliveries, performing
quality assurance functions).
Excessive pass-through charge, with respect to a Contractor or
subcontractor that adds no or negligible value to a contract or
subcontract, means a charge to the Government by the Contractor or
subcontractor that is for indirect costs or profit/fee on work performed
by a subcontractor (other than charges for the costs of managing
subcontracts and any applicable indirect costs and associated profit/fee
based on such costs).
No or negligible value means the Contractor or subcontractor cannot
demonstrate to the Contracting Officer that its effort added value to
the contract or subcontract in accomplishing the work performed under
the contract (including task or delivery orders).
Subcontract means any contract, as defined in FAR 2.101, entered
into by a subcontractor to furnish supplies or services for performance
of the contract or a subcontract. It includes but is not limited to
purchase orders, and changes and modifications to purchase orders.
Subcontractor, as defined in FAR 44.101, means any supplier,
distributor, vendor, or firm that furnishes supplies or services to or
for a prime Contractor or another subcontractor.
(b) General. The Government will not pay excessive pass-through
charges. The Contracting Officer shall determine if excessive pass-
through charges exist.
(c) Reporting. Required reporting of performance of work by the
Contractor or a subcontractor. The Contractor shall notify the
Contracting Officer in writing if--
(1) The Contractor changes the amount of subcontract effort after
award such that it exceeds 70 percent of the total cost of work to be
performed under the contract, task order, or delivery order. The
notification shall identify the revised cost of the subcontract effort
and shall include verification that the Contractor will provide added
value; or
(2) Any subcontractor changes the amount of lower-tier subcontractor
effort after award such that it exceeds 70 percent of the total cost of
the work to be performed under its subcontract. The notification shall
identify the revised cost of the subcontract effort and shall include
verification that the subcontractor will provide added value as related
to the work to be performed by the lower-tier subcontractor(s).
(d) Recovery of excessive pass-through charges. If the Contracting
Officer determines that excessive pass-through charges exist;
(1) For other than fixed-price contracts, the excessive pass-through
charges are unallowable in accordance with the provisions in FAR subpart
31.2; and
(2) For applicable DoD fixed-price contracts, as identified in
15.408(n)(2)(i)(B), the Government shall be entitled to a price
reduction for the amount of excessive pass-through charges included in
the contract price.
(e) Access to records. (1) The Contracting Officer, or authorized
representative, shall have the right to examine and audit all the
Contractor's records (as defined at FAR 52.215-2(a)) necessary to
determine whether the Contractor proposed, billed, or claimed excessive
pass-through charges.
(2) For those subcontracts to which paragraph (f) of this clause
applies, the Contracting Officer, or authorized representative, shall
have the right to examine and audit all the subcontractor's records (as
defined at FAR 52.215-2(a)) necessary to determine whether the
subcontractor proposed, billed, or claimed excessive pass-through
charges.
(f) Flowdown. The Contractor shall insert the substance of this
clause, including this paragraph (f), in all cost-reimbursement
subcontracts under this contract that exceed the simplified acquisition
threshold, except if the contract is with DoD, then insert in all cost-
reimbursement subcontracts and fixed-price subcontracts, except those
identified in 15.408(n)(2)(i)(B)(2), that exceed the threshold for
obtaining cost or pricing data in accordance with FAR 15.403-4.
(End of clause)
Alternate I (OCT 2009). As prescribed in 15.408(n)(2)(iii),
substitute the following paragraph (b) for paragraph (b) of the basic
clause:
(b) General. The Government will not pay excessive pass-through
charges. The Contracting Officer has determined that there will be no
excessive pass-through charges, provided the Contractor performs the
disclosed value-added functions.
[74 FR 52855, Oct. 14, 2009]
[[Page 120]]
52.215-24--52.215-42 [Reserved]
52.216-1 Type of Contract.
As prescribed in 16.105, complete and insert the following
provision:
Type of Contract (APR 1984)
The Government contemplates award of a ______ [Contracting Officer
insert specific type of contract] contract resulting from this
solicitation.
(End of provision)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34761, July 3, 1995]
52.216-2 Economic Price Adjustment--Standard Supplies.
As prescribed in 16.203-4(a), insert the following clause. The
clause may be modified by increasing the 10 percent limit on aggregate
increases specified in subparagraph (c)(1), upon approval by the chief
of the contracting office.
Economic Price Adjustment--Standard Supplies (JAN 1997)
(a) The Contractor warrants that the unit price stated in the
Schedule for ____ [offeror insert Schedule line item number] is not in
excess of the Contractor's applicable established price in effect on the
contract date for like quantities of the same item. The term unit price
excludes any part of the price directly resulting from requirements for
preservation, packaging, or packing beyond standard commercial practice.
The term established price means a price that (1) is an established
catalog or market price for a commercial item sold in substantial
quantities to the general public, and (2) is the net price after
applying any standard trade discounts offered by the Contractor.
(b) The Contractor shall promptly notify the Contracting Officer of
the amount and effective date of each decrease in any applicable
established price. Each corresponding contract unit price shall be
decreased by the same percentage that the established price is
decreased. The decrease shall apply to those items delivered on and
after the effective date of the decrease in the Contractor's established
price, and this contract shall be modified accordingly.
(c) If the Contractor's applicable established price is increased
after the contract date, the corresponding contract unit price shall be
increased, upon the Contractor's written request to the Contracting
Officer, by the same percentage that the established price is increased,
and the contract shall be modified accordingly, subject to the following
limitations:
(1) The aggregate of the increases in any contract unit price under
this clause shall not exceed 10 percent of the original contract unit
price.
(2) The increased contract unit price shall be effective (i) on the
effective date of the increase in the applicable established price if
the Contracting Officer receives the Contractor's written request within
10 days thereafter or (ii) if the written request is received later, on
the date the Contracting Officer receives the request.
(3) The increased contract unit price shall not apply to quantities
scheduled under the contract for delivery before the effective date of
the increased contract unit price, unless failure to deliver before that
date results from causes beyond the control and without the fault or
negligence of the Contractor, within the meaning of the Default clause.
(4) No modification increasing a contract unit price shall be
executed under this paragraph (c) until the Contracting Officer verifies
the increase in the applicable established price.
(5) Within 30 days after receipt of the Contractor's written
request, the Contracting Officer may cancel, without liability to either
party, any undelivered portion of the contract items affected by the
requested increase.
(d) During the time allowed for the cancellation provided for in
subparagraph (c)(5) above, and thereafter if there is no cancellation,
the Contractor shall continue deliveries according to the contract
delivery schedule, and the Government shall pay for such deliveries at
the contract unit price, increased to the extent provided by paragraph
(c) above.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 238, 260, Jan. 2, 1997]
52.216-3 Economic Price Adjustment--Semistandard Supplies.
As prescribed in 16.203-4(b), insert the following clause. The
clause may be modified by increasing the 10 percent limit on aggregate
increases specified in subparagraph (c)(1), upon approval by the chief
of the contracting office.
Economic Price Adjustment--Semistandard Supplies (JAN 1997)
(a) The Contractor warrants that the supplies identified as line
items ____ [offeror insert Schedule line item number] in the Schedule
are, except for modifications required by the contract specifications,
supplies for which it has an established price. The term established
price means a price that (1) is an established catalog or market price
for a
[[Page 121]]
commercial item sold in substantial quantities to the general public,
and (2) is the net price after applying any standard trade discounts
offered by the Contractor. The Contractor further warrants that, as of
the date of this contract, any difference between the unit prices stated
in the contract for these line items and the Contractor's established
prices for like quantities of the nearest commercial equivalents are due
to compliance with contract specifications and with any contract
requirements for preservation, packaging, and packing beyond standard
commercial practice.
(b) The Contractor shall promptly notify the Contracting Officer of
the amount and effective date of each decrease in any applicable
established price. Each corresponding contract unit price (exclusive of
any part of the unit price that reflects modifications resulting from
compliance with specifications or with requirements for preservation,
packaging, and packing beyond standard commercial practice) shall be
decreased by the same percentage that the established price is
decreased. The decrease shall apply to those items delivered on and
after the effective date of the decrease in the Contractor's established
price, and this contract shall be modified accordingly.
(c) If the Contractor's applicable established price is increased
after the contract date, the corresponding contract unit price
(exclusive of any part of the unit price resulting from compliance with
specifications or with requirements for preservation, packaging, and
packing beyond standard commercial practice) shall be increased, upon
the Contractor's written request to the Contracting Officer, by the same
percentage that the established price is increased, and the contract
shall be modified accordingly, subject to the following limitations:
(1) The aggregate of the increases in any contract unit price under
this clause shall not exceed 10 percent of the original contract unit
price.
(2) The increased contract unit price shall be effective (i) on the
effective date of the increase in the applicable established price if
the Contracting Officer receives the Contractor's written request within
10 days thereafter or (ii) if the written request is received later, on
the date the Contracting Officer receives the request.
(3) The increased contract unit price shall not apply to quantities
scheduled under the contract for delivery before the effective date of
the increased contract unit price, unless failure to deliver before that
date results from causes beyond the control and without the fault or
negligence of the Contractor, within the meaning of the Default clause.
(4) No modification increasing a contract unit price shall be
executed under this paragraph (c) until the Contracting Officer verifies
the increase in the applicable established price.
(5) Within 30 days after receipt of the Contractor's written
request, the Contracting Officer may cancel, without liability to either
party, any undelivered portion of the contract items affected by the
requested increase.
(d) During the time allowed for the cancellation provided for in
subparagraph (c)(5) above, and thereafter if there is no cancellation,
the Contractor shall continue deliveries according to the contract
delivery schedule, and the Government shall pay for such deliveries at
the contract unit price, increased to the extent provided by paragraph
(c) above.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 238, 261, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997]
52.216-4 Economic Price Adjustment--Labor and Material.
As prescribed in 16.203-4(c), when contracting by negotiation,
insert a clause that is substantially the same as the following clause
in solicitations and contracts when the conditions specified in 16.203-
4(c)(1)(i) through (iv) apply (but see 16.203-4(c)(2)). The clause may
be modified by increasing the 10-percent limit on aggregate increases
specified in subparagraph (c)(4), upon approval by the chief of the
contracting office.
Economic Price Adjustment--Labor and Material (JAN 2017)
(a) The Contractor shall notify the Contracting Officer if, at any
time during contract performance, the rates of pay for labor (including
fringe benefits) or the unit prices for material shown in the Schedule
either increase or decrease. The Contractor shall furnish this notice
within 60 days after the increase or decrease, or within any additional
period that the Contracting Officer may approve in writing, but not
later than the date of final payment under this contract. The notice
shall include the Contractor's proposal for an adjustment in the
contract unit prices to be negotiated under paragraph (b) below, and
shall include, in the form required by the Contracting Officer,
supporting data explaining the cause, effective date, and amount of the
increase or decrease and the amount of the Contractor's adjustment
proposal.
(b) Promptly after the Contracting Officer receives the notice and
data under paragraph (a) above, the Contracting Officer and the
[[Page 122]]
Contractor shall negotiate a price adjustment in the contract unit
prices and its effective date. However, the Contracting Officer may
postpone the negotiations until an accumulation of increases and
decreases in the labor rates (including fringe benefits) and unit prices
of material shown in the Schedule results in an adjustment allowable
under subparagraph (c)(3) below. The Contracting Officer shall modify
this contract (1) to include the price adjustment and its effective date
and (2) to revise the labor rates (including fringe benefits) or unit
prices of material as shown in the Schedule to reflect the increases or
decreases resulting from the adjustment. The Contractor shall continue
performance pending agreement on, or determination of, any adjustment
and its effective date.
(c) Any price adjustment under this clause is subject to the
following limitations:
(1) Any adjustment shall be limited to the effect on unit prices of
the increases or decreases in the rates of pay for labor (including
fringe benefits) or unit prices for material shown in the Schedule.
There shall be no adjustment for (i) supplies or services for which the
production cost is not affected by such changes, (ii) changes in rates
or unit prices other than those shown in the Schedule, or (iii) changes
in the quantities of labor or material used from those shown in the
Schedule for each item.
(2) No upward adjustment shall apply to supplies or services that
are required to be delivered or performed before the effective date of
the adjustment, unless the Contractor's failure to deliver or perform
according to the delivery schedule results from causes beyond the
Contractor's control and without its fault or negligence, within the
meaning of the Default clause.
(3) There shall be no adjustment for any change in rates of pay for
labor (including fringe benefits) or unit prices for material which
would not result in a net change of at least 3 percent of the then-
current total contract price. This limitation shall not apply, however,
if, after final delivery of all line items, either party requests an
adjustment under paragraph (b) above.
(4) The aggregate of the increases in any contract unit price made
under this clause shall not exceed 10 percent of the original unit
price. There is no percentage limitation on the amount of decreases that
may be made under this clause.
(d) The Contracting Officer may examine the Contractor's books,
records, and other supporting data relevant to the cost of labor
(including fringe benefits) and material during all reasonable times
until the end of 3 years after the date of final payment under this
contract or the time periods specified in subpart 4.7 of the Federal
Acquisition Regulation (FAR), whichever is earlier.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 62 FR 238, Jan. 2, 1997; 82
FR 4715, Jan. 13, 2017]
52.216-5 Price Redetermination--Prospective.
As prescribed in 16.205-4, insert the following clause:
Price Redetermination--Prospective (OCT 1997)
(a) General. The unit prices and the total price stated in this
contract shall be periodically redetermined in accordance with this
clause, except that (1) the prices for supplies delivered and services
performed before the first effective date of price redetermination (see
paragraph (c) below) shall remain fixed and (2) in no event shall the
total amount paid under this contract exceed any ceiling price included
in the contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Price redetermination periods. For the purpose of price
redetermination, performance of this contract is divided into successive
periods. The first period shall extend from the date of the contract to
__, [see Note (1)] and the second and each succeeding period shall
extend for __ [insert appropriate number] months from the end of the
last preceding period, except that the parties may agree to vary the
length of the final period. The first day of the second and each
succeeding period shall be the effective date of price redetermination
for that period.
(d) Data submission. (1) Not more than __ nor less than __ [see Note
(2)] days before the end of each redetermination period, except the
last, the Contractor shall submit--
(i) Proposed prices for supplies that may be delivered or services
that may be performed in the next succeeding period, and--
(A) An estimate and breakdown of the costs of these supplies or
services in the format of Table 15-2, FAR 15.408, or in any other form
on which the parties may agree;
(B) Sufficient data to support the accuracy and reliability of this
estimate; and
(C) An explanation of the differences between this estimate and the
original (or last preceding) estimate for the same supplies or services;
and
(ii) A statement of all costs incurred in performing this contract
through the end of the ___ month (see Note (3)) before the submission of
proposed prices in the format of Table 15-2, FAR 15.408 (or in any other
form on which the parties may agree), with sufficient supporting data to
disclose unit costs and cost trends for--
(A) Supplies delivered and services performed; and
[[Page 123]]
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary).
(2) The Contractor shall also submit, to the extent that it becomes
available before negotiations on redetermined prices are concluded--
(i) Supplemental statements of costs incurred after the date stated
in subdivision (d)(1)(ii) above for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary); and
(ii) Any other relevant data that the Contracting Officer may
reasonably require.
(3) If the Contractor fails to submit the data required by
subparagraphs (1) and (2) above, within the time specified, the
Contracting Officer may suspend payments under this contract until the
data are furnished. If it is later determined that the Government has
overpaid the Contractor, the Contractor shall repay the excess to the
Government immediately. Unless repaid within 30 days after the end of
the data submittal period, the amount of the excess shall bear interest,
computed from the date the data were due to the date of repayment, at
the rate established in accordance with the Interest clause.
(e) Price redetermination. Upon the Contracting Officer's receipt of
the data required by paragraph (d) above, the Contracting Officer and
the Contractor shall promptly negotiate to redetermine fair and
reasonable prices for supplies that may be delivered or services that
may be performed in the period following the effective date of price
redetermination.
(f) Contract modifications. Each negotiated redetermination of
prices shall be evidenced by a modification to this contract, signed by
the Contractor and the Contracting Officer, stating the redetermined
prices that apply during the redetermination period.
(g) Adjusting billing prices. Pending execution of the contract
modification (see paragraph (f) above), the Contractor shall submit
invoices or vouchers in accordance with the billing prices stated in
this contract. If at any time it appears that the then-current billing
prices will be substantially greater than the estimated final prices, or
if the Contractor submits data showing that the redetermined price will
be substantially greater than the current billing prices, the parties
shall negotiate an appropriate decrease or increase in billing prices.
Any billing price adjustment shall be reflected in a contract
modification and shall not affect the redetermination of prices under
this clause. After the contract modification for price redetermination
is executed, the total amount paid or to be paid on all invoices or
vouchers shall be adjusted to reflect the agreed-upon prices, and any
requested additional payments, refunds, or credits shall be made
promptly.
(h) Quarterly limitation on payments statement. This paragraph (h)
applies only during periods for which firm prices have not been
established.
(1) Within 45 days after the end of the quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (h)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) The statement required by subparagraph (1) above need not be
submitted for any quarter for which either no costs are to be reported
under subdivision (1)(ii) above, or revised billing prices have been
established in accordance with paragraph (g) above, and do not exceed
the existing contract price, the Contractor's price-redetermination
proposal, or a price based on the most recent quarterly statement,
whichever is least.
(3) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may,
[[Page 124]]
instead of being refunded, be added to the unliquidated progress payment
account, consistent with the Progress Payments clause. The Contractor
shall provide complete details to support any claimed reductions in
refunds.
(4) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(i) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(j) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon redetermined prices for any price redetermination
period within 60 days (or within such other period as the parties agree)
after the date on which the data required by paragraph (d) above are to
be submitted, the Contracting Officer shall promptly issue a decision in
accordance with the Disputes clause. For the purpose of paragraphs (f),
(g), and (h) above, and pending final settlement of the disagreement on
appeal, by failure to appeal, or by agreement, this decision shall be
treated as an executed contract modification. Pending final settlement,
price redetermination for subsequent periods, if any, shall continue to
be negotiated as provided in this clause.
(k) Termination. If this contract is terminated, prices shall
continue to be established in accordance with this clause for (1)
completed supplies and services accepted by the Government and (2) those
supplies and services not terminated under a partial termination. All
other elements of the termination shall be resolved in accordance with
other applicable clauses of this contract.
(End of clause)
Notes: (1) Express in terms of units delivered, or as a date; but in
either case the period should end on the last day of a month.
(2) Insert the numbers of days chosen so that the Contractor's
submission will be late enough to reflect recent cost experience (taking
into account the Contractor's accounting system), but early enough to
permit review, audit (if necessary), and negotiation before the start of
the prospective period.
(3) Insert first, except that second may be inserted if necessary to
achieve compatibility with the Contractor's accounting system.
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
61 FR 67425, Dec. 20, 1996; 62 FR 51265, Sept. 30, 1997]
52.216-6 Price Redetermination--Retroactive.
As prescribed in 16.206-4, insert the following clause:
Price Redetermination--Retroactive (OCT 1997)
(a) General. The unit price and the total price stated in this
contract shall be redetermined in accordance with this clause, but in no
event shall the total amount paid under this contract exceed __ [insert
dollar amount of ceiling price].
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Data submission. (1) Within __ [Contracting Officer insert
number of days] days after delivery of all supplies to be delivered and
completion of all services to be performed under this contract, the
Contractor shall submit--
(i) Proposed prices;
(ii) A statement in the format of table 15-2, FAR 15.408, or in any
other form on which the parties may agree, of all costs incurred in
performing the contract; and
(iii) Any other relevant data that the Contracting Officer may
reasonably require.
(2) If the Contractor fails to submit the data required by
subparagraph (1) above within the time specified, the Contracting
Officer may suspend payments under this contract until the data are
furnished. If it is later determined that the Government has overpaid
the Contractor, the excess shall be repaid to the Government
immediately. Unless repaid within 30 days after the end of the data
submittal period, the amount of the excess shall bear interest, computed
from the date the data were due to the date of repayment, at the rate
established in accordance with the Interest clause.
(d) Price determination. Upon the Contracting Officer's receipt of
the data required by paragraph (c) above, the Contracting Officer and
the Contractor shall promptly negotiate to redetermine fair and
reasonable prices for supplies delivered and services performed by the
Contractor under this contract.
(e) Contract modification. The negotiated redetermination of price
shall be evidenced by a modification to this contract, signed by the
Contractor and the Contracting Officer.
(f) Adjusting billing prices. Pending execution of the contract
modification (see paragraph (e) above), the Contractor shall submit
[[Page 125]]
invoices or vouchers in accordance with billing prices stated in this
contract. If at any time it appears that the then-current billing prices
will be substantially greater than the estimated final prices, or if the
Contractor submits data showing that the redetermined prices will be
substantially greater than the current billing prices, the parties shall
negotiate an appropriate decrease or increase in billing prices. Any
billing price adjustment shall be reflected in a contract modification
and shall not affect the redetermination of prices under this clause.
After the contract modification for price redetermination is executed,
the total amount paid or to be paid on all invoices or vouchers shall be
adjusted to reflect the agreed-upon prices, and any resulting additional
payments, refunds, or credits shall be made promptly.
(g) Quarterly limitation on payments statement. This paragraph (g)
shall apply until final price redetermination under this contract has
been completed.
(1) Within 45 days after the end of the quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor), a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (g)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (i), (ii), and (iii) above, the
Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account, consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reduction in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(i) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon redetermined prices within 60 days (or within such
other period as the parties agree) after the date on which the data
required by paragraph (c) above are to be submitted, the Contracting
Officer shall promptly issue a decision in accordance with the Disputes
clause. For the purpose of paragraphs (e), (f), and (g) above, and
pending final settlement of the disagreement on appeal, by failure to
appeal, or by agreement, this decision shall be treated as an executed
contract modification.
(j) Termination. If this contract is terminated before price
redetermination, prices shall be established in accordance with this
clause for completed supplies and services not terminated. All other
elements of the termination shall be resolved in accordance with other
applicable clauses of this contract.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
61 FR 67426, Dec. 20, 1996; 62 FR 51265, Sept. 30, 1997]
52.216-7 Allowable Cost and Payment.
As prescribed in 16.307(a), insert the following clause:
Allowable Cost and Payment (AUG 2018)
(a) Invoicing. (1) The Government will make payments to the
Contractor when requested as work progresses, but (except for small
business concerns) not more often than once every 2 weeks, in amounts
determined to be allowable by the Contracting Officer in
[[Page 126]]
accordance with Federal Acquisition Regulation (FAR) subpart 31.2 in
effect on the date of this contract and the terms of this contract. The
Contractor may submit to an authorized representative of the Contracting
Officer, in such form and reasonable detail as the representative may
require, an invoice or voucher supported by a statement of the claimed
allowable cost for performing this contract.
(2) Contract financing payments are not subject to the interest
penalty provisions of the Prompt Payment Act. Interim payments made
prior to the final payment under the contract are contract financing
payments, except interim payments if this contract contains Alternate I
to the clause at 52.232-25.
(3) The designated payment office will make interim payments for
contract financing on the __ [Contracting Officer insert day as
prescribed by agency head; if not prescribed, insert ``30th''] day after
the designated billing office receives a proper payment request.
In the event that the Government requires an audit or other review
of a specific payment request to ensure compliance with the terms and
conditions of the contract, the designated payment office is not
compelled to make payment by the specified due date.
(b) Reimbursing costs. (1) For the purpose of reimbursing allowable
costs (except as provided in paragraph (b)(2) of the clause, with
respect to pension, deferred profit sharing, and employee stock
ownership plan contributions), the term costs includes only--
(i) Those recorded costs that, at the time of the request for
reimbursement, the Contractor has paid by cash, check, or other form of
actual payment for items or services purchased directly for the
contract;
(ii) When the Contractor is not delinquent in paying costs of
contract performance in the ordinary course of business, costs incurred,
but not necessarily paid, for--
(A) Supplies and services purchased directly for the contract and
associated financing payments to subcontractors, provided payments
determined due will be made--
(1) In accordance with the terms and conditions of a subcontract or
invoice; and
(2) Ordinarily within 30 days of the submission of the Contractor's
payment request to the Government;
(B) Materials issued from the Contractor's inventory and placed in
the production process for use on the contract;
(C) Direct labor;
(D) Direct travel;
(E) Other direct in-house costs; and
(F) Properly allocable and allowable indirect costs, as shown in the
records maintained by the Contractor for purposes of obtaining
reimbursement under Government contracts; and
(iii) The amount of financing payments that have been paid by cash,
check, or other forms of payment to subcontractors.
(2) Accrued costs of Contractor contributions under employee pension
plans shall be excluded until actually paid unless--
(i) The Contractor's practice is to make contributions to the
retirement fund quarterly or more frequently; and
(ii) The contribution does not remain unpaid 30 days after the end
of the applicable quarter or shorter payment period (any contribution
remaining unpaid shall be excluded from the Contractor's indirect costs
for payment purposes).
(3) Notwithstanding the audit and adjustment of invoices or vouchers
under paragraph (g) below, allowable indirect costs under this contract
shall be obtained by applying indirect cost rates established in
accordance with paragraph (d) below.
(4) Any statements in specifications or other documents incorporated
in this contract by reference designating performance of services or
furnishing of materials at the Contractor's expense or at no cost to the
Government shall be disregarded for purposes of cost-reimbursement under
this clause.
(c) Small business concerns. A small business concern may receive
more frequent payments than every 2 weeks.
(d) Final indirect cost rates. (1) Final annual indirect cost rates
and the appropriate bases shall be established in accordance with
subpart 42.7 of the Federal Acquisition Regulation (FAR) in effect for
the period covered by the indirect cost rate proposal.
(2)(i) The Contractor shall submit an adequate final indirect cost
rate proposal to the Contracting Officer (or cognizant Federal agency
official) and auditor within the 6-month period following the expiration
of each of its fiscal years. Reasonable extensions, for exceptional
circumstances only, may be requested in writing by the Contractor and
granted in writing by the Contracting Officer. The Contractor shall
support its proposal with adequate supporting data.
(ii) The proposed rates shall be based on the Contractor's actual
cost experience for that period. The appropriate Government
representative and the Contractor shall establish the final indirect
cost rates as promptly as practical after receipt of the Contractor's
proposal.
(iii) An adequate indirect cost rate proposal shall include the
following data unless otherwise specified by the cognizant Federal
agency official:
(A) Summary of all claimed indirect expense rates, including pool,
base, and calculated indirect rate.
(B) General and Administrative expenses (final indirect cost pool).
Schedule of claimed
[[Page 127]]
expenses by element of cost as identified in accounting records (Chart
of Accounts).
(C) Overhead expenses (final indirect cost pool). Schedule of
claimed expenses by element of cost as identified in accounting records
(Chart of Accounts) for each final indirect cost pool.
(D) Occupancy expenses (intermediate indirect cost pool). Schedule
of claimed expenses by element of cost as identified in accounting
records (Chart of Accounts) and expense reallocation to final indirect
cost pools.
(E) Claimed allocation bases, by element of cost, used to distribute
indirect costs.
(F) Facilities capital cost of money factors computation.
(G) Reconciliation of books of account (i.e., General Ledger) and
claimed direct costs by major cost element.
(H) Schedule of direct costs by contract and subcontract and
indirect expense applied at claimed rates, as well as a subsidiary
schedule of Government participation percentages in each of the
allocation base amounts.
(I) Schedule of cumulative direct and indirect costs claimed and
billed by contract and subcontract.
(J) Subcontract information. Listing of subcontracts awarded to
companies for which the contractor is the prime or upper-tier contractor
(include prime and subcontract numbers; subcontract value and award
type; amount claimed during the fiscal year; and the subcontractor name,
address, and point of contact information).
(K) Summary of each time-and-materials and labor-hour contract
information, including labor categories, labor rates, hours, and
amounts; direct materials; other direct costs; and, indirect expense
applied at claimed rates.
(L) Reconciliation of total payroll per IRS form 941 to total labor
costs distribution.
(M) Listing of decisions/agreements/approvals and description of
accounting/organizational changes.
(N) Certificate of final indirect costs (see 52.242-4, Certification
of Final Indirect Costs).
(O) Contract closing information for contracts physically completed
in this fiscal year (include contract number, period of performance,
contract ceiling amounts, contract fee computations, level of effort,
and indicate if the contract is ready to close).
(iv) The following supplemental information is not required to
determine if a proposal is adequate, but may be required during the
audit process:
(A) Comparative analysis of indirect expense pools detailed by
account to prior fiscal year and budgetary data.
(B) General organizational information and limitation on
allowability of compensation for certain contractor personnel. See
31.205-6(p). Additional salary reference information is available at
https://www.whitehouse.gov/wp-content/uploads/2017/11/Contractor
CompensationCapContractsAwarded BeforeJune24.pdf and https://
www.whitehouse.gov/wp-content/uploads/2017/11/Contractor
CompensationCapContractsAwarded afterJune24.pdf.
(C) Identification of prime contracts under which the contractor
performs as a subcontractor.
(D) Description of accounting system (excludes contractors required
to submit a CAS Disclosure Statement or contractors where the
description of the accounting system has not changed from the previous
year's submission).
(E) Procedures for identifying and excluding unallowable costs from
the costs claimed and billed (excludes contractors where the procedures
have not changed from the previous year's submission).
(F) Certified financial statements and other financial data (e.g.,
trial balance, compilation, review, etc.).
(G) Management letter from outside CPAs concerning any internal
control weaknesses.
(H) Actions that have been and/or will be implemented to correct the
weaknesses described in the management letter from subparagraph (G) of
this section.
(I) List of all internal audit reports issued since the last
disclosure of internal audit reports to the Government.
(J) Annual internal audit plan of scheduled audits to be performed
in the fiscal year when the final indirect cost rate submission is made.
(K) Federal and State income tax returns.
(L) Securities and Exchange Commission 10-K annual report.
(M) Minutes from board of directors meetings.
(N) Listing of delay claims and termination claims submitted which
contain costs relating to the subject fiscal year.
(O) Contract briefings, which generally include a synopsis of all
pertinent contract provisions, such as: Contract type, contract amount,
product or service(s) to be provided, contract performance period, rate
ceilings, advance approval requirements, pre-contract cost allowability
limitations, and billing limitations.
(v) The Contractor shall update the billings on all contracts to
reflect the final settled rates and update the schedule of cumulative
direct and indirect costs claimed and billed, as required in paragraph
(d)(2)(iii)(I) of this section, within 60 days after settlement of final
indirect cost rates.
(3) The Contractor and the appropriate Government representative
shall execute a written understanding setting forth the final indirect
cost rates. The understanding shall specify (i) the agreed-upon final
annual indirect cost rates, (ii) the bases to which the
[[Page 128]]
rates apply, (iii) the periods for which the rates apply, (iv) any
specific indirect cost items treated as direct costs in the settlement,
and (v) the affected contract and/or subcontract, identifying any with
advance agreements or special terms and the applicable rates. The
understanding shall not change any monetary ceiling, contract
obligation, or specific cost allowance or disallowance provided for in
this contract. The understanding is incorporated into this contract upon
execution.
(4) Failure by the parties to agree on a final annual indirect cost
rate shall be a dispute within the meaning of the Disputes clause.
(5) Within 120 days (or longer period if approved in writing by the
Contracting Officer) after settlement of the final annual indirect cost
rates for all years of a physically complete contract, the Contractor
shall submit a completion invoice or voucher to reflect the settled
amounts and rates. The completion invoice or voucher shall include
settled subcontract amounts and rates. The prime contractor is
responsible for settling subcontractor amounts and rates included in the
completion invoice or voucher and providing status of subcontractor
audits to the contracting officer upon request.
(6)(i) If the Contractor fails to submit a completion invoice or
voucher within the time specified in paragraph (d)(5) of this clause,
the Contracting Officer may--
(A) Determine the amounts due to the Contractor under the contract;
and
(B) Record this determination in a unilateral modification to the
contract.
(ii) This determination constitutes the final decision of the
Contracting Officer in accordance with the Disputes clause.
(e) Billing rates. Until final annual indirect cost rates are
established for any period, the Government shall reimburse the
Contractor at billing rates established by the Contracting Officer or by
an authorized representative (the cognizant auditor), subject to
adjustment when the final rates are established. These billing rates--
(1) Shall be the anticipated final rates; and
(2) May be prospectively or retroactively revised by mutual
agreement, at either party's request, to prevent substantial overpayment
or underpayment.
(f) Quick-closeout procedures. Quick-closeout procedures are
applicable when the conditions in FAR 42.708(a) are satisfied.
(g) Audit. At any time or times before final payment, the
Contracting Officer may have the Contractor's invoices or vouchers and
statements of cost audited. Any payment may be (1) reduced by amounts
found by the Contracting Officer not to constitute allowable costs or
(2) adjusted for prior overpayments or underpayments.
(h) Final payment. (1) Upon approval of a completion invoice or
voucher submitted by the Contractor in accordance with paragraph (d)(5)
of this clause, and upon the Contractor's compliance with all terms of
this contract, the Government shall promptly pay any balance of
allowable costs and that part of the fee (if any) not previously paid.
(2) The Contractor shall pay to the Government any refunds, rebates,
credits, or other amounts (including interest, if any) accruing to or
received by the Contractor or any assignee under this contract, to the
extent that those amounts are properly allocable to costs for which the
Contractor has been reimbursed by the Government. Reasonable expenses
incurred by the Contractor for securing refunds, rebates, credits, or
other amounts shall be allowable costs if approved by the Contracting
Officer. Before final payment under this contract, the Contractor and
each assignee whose assignment is in effect at the time of final payment
shall execute and deliver--
(i) An assignment to the Government, in form and substance
satisfactory to the Contracting Officer, of refunds, rebates, credits,
or other amounts (including interest, if any) properly allocable to
costs for which the Contractor has been reimbursed by the Government
under this contract; and
(ii) A release discharging the Government, its officers, agents, and
employees from all liabilities, obligations, and claims arising out of
or under this contract, except--
(A) Specified claims stated in exact amounts, or in estimated
amounts when the exact amounts are not known;
(B) Claims (including reasonable incidental expenses) based upon
liabilities of the Contractor to third parties arising out of the
performance of this contract; provided, that the claims are not known to
the Contractor on the date of the execution of the release, and that the
Contractor gives notice of the claims in writing to the Contracting
Officer within 6 years following the release date or notice of final
payment date, whichever is earlier; and
(C) Claims for reimbursement of costs, including reasonable
incidental expenses, incurred by the Contractor under the patent clauses
of this contract, excluding, however, any expenses arising from the
Contractor's indemnification of the Government against patent liability.
(End of clause)
Alternate I (FEB 1997). As prescribed in 16.307(a)(2), substitute
the following paragraph (b)(1)(iii) for paragraph (b)(1)(iii) of the
basic clause:
(iii) The amount of progress and other payments to the Contractor's
subcontractors that either have been paid, or that the Contractor is
required to pay pursuant to the clause of this contract entitled
``Prompt
[[Page 129]]
Payment for Construction Contracts.'' Payments shall be made by cash,
check, or other form of payment to the Contractor's subcontractors under
similar cost standards.
Alternate II (AUG 2012). As prescribed in 16.307(a)(3), substitute
the following paragraph (a)(1) for paragraph (a)(1) of the basic clause:
(a)(1) The Government will make payments to the Contractor when
requested as work progresses, but not more often than once every two
weeks, in amounts determined to be allowable by the Contracting Officer
in accordance with FAR subpart 31.3 in effect on the date of this
contract and the terms of this contract. The Contractor may submit to an
authorized representative of the Contracting Officer, in such form and
reasonable detail as the representative may require, an invoice or
voucher supported by a statement of the claimed allowable cost for
performing this contract.
Alternate III (AUG 2012). As prescribed in 16.307(a)(4), substitute
the following paragraph (a)(1) for paragraph (a)(1) of the basic clause:
(a)(1) The Government will make payments to the Contractor when
requested as work progresses, but not more often than once every two
weeks, in amounts determined to be allowable by the Contracting Officer
in accordance with FAR subpart 31.6 in effect on the date of this
contract and the terms of this contract. The Contractor may submit to an
authorized representative of the Contracting Officer, in such form and
reasonable detail as the representative may require, an invoice or
voucher supported by a statement of the claimed allowable cost for
performing this contract.
Alternate IV (AUG 2012). As prescribed in 16.307(a)(5), substitute
the following paragraph (a)(1) for paragraph (a)(1) of the basic clause:
(a)(1) The Government will make payments to the Contractor when
requested as work progresses, but not more often than once every two
weeks, in amounts determined to be allowable by the Contracting Officer
in accordance with FAR subpart 31.7 in effect on the date of this
contract and the terms of this contract. The Contractor may submit to an
authorized representative of the Contracting Officer, in such form and
reasonable detail as the representative may require, an invoice or
voucher supported by a statement of the claimed allowable cost for
performing this contract.
[48 FR 42478, Sept. 19, 1983]
Editorial Note: For Federal Register citations affecting section
52.216-7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
52.216-8 Fixed Fee.
As prescribed in 16.307(b), insert the following clause in
solicitations and contracts when a cost-plus-fixed-fee contract (other
than a facilities contract or a construction contract) is contemplated.
Fixed Fee (JUN 2011)
(a) The Government shall pay the Contractor for performing this
contract the fixed fee specified in the Schedule.
(b) Payment of the fixed fee shall be made as specified in the
Schedule; provided that the Contracting Officer withholds a reserve not
to exceed 15 percent of the total fixed fee or $100,000, whichever is
less, to protect the Government's interest. The Contracting Officer
shall release 75 percent of all fee withholds under this contract after
receipt of an adequate certified final indirect cost rate proposal
covering the year of physical completion of this contract, provided the
Contractor has satisfied all other contract terms and conditions,
including the submission of the final patent and royalty reports, and is
not delinquent in submitting final vouchers on prior years' settlements.
The Contracting Officer may release up to 90 percent of the fee
withholds under this contract based on the Contractor's past performance
related to the submission and settlement of final indirect cost rate
proposals.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997; 76 FR 31409, May 31, 2011]
52.216-9 Fixed Fee--Construction.
As prescribed in 16.307(c), insert the following clause in
solicitations and contracts when a cost-plus-fixed-fee construction
contract is contemplated:
Fixed Fee--Construction (JUN 2011)
(a) The Government shall pay to the Contractor for performing this
contract the fixed fee specified in the Schedule.
(b) Payment of the fixed fee shall be made in installments based
upon the percentage of completion of the work as determined from
estimates submitted to and approved by the Contracting Officer, but
subject to the withholding provisions of paragraph (c) below.
(c) The Contracting Officer shall withhold a reserve not to exceed
15 percent of the total fixed fee or $100,000, whichever is less, to
protect the Government's interest. The
[[Page 130]]
Contracting Officer shall release 75 percent of all fee withholds under
this contract after receipt of an adequate certified final indirect cost
rate proposal covering the year of physical completion of this contract,
provided the Contractor has satisfied all other contract terms and
conditions, including the submission of the final patent and royalty
reports, and is not delinquent in submitting final vouchers on prior
years' settlements. The Contracting Officer may release up to 90 percent
of the fee withholds under this contract based on the Contractor's past
performance related to the submission and settlement of final indirect
cost rate proposals.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997; 76 FR 31409, May 31, 2011]
52.216-10 Incentive Fee.
As prescribed in 16.307(d), insert the following clause in
solicitations and contracts when a cost-plus-incentive-fee contract
(other than a facilities contract) is contemplated:
Incentive Fee (JUN 2011)
(a) General. The Government shall pay the Contractor for performing
this contract a fee determined as provided in this contract.
(b) Target cost and target fee. The target cost and target fee
specified in the Schedule are subject to adjustment if the contract is
modified in accordance with paragraph (d) below.
(1) Target cost, as used in this contract, means the estimated cost
of this contract as initially negotiated, adjusted in accordance with
paragraph (d) below.
(2) Target fee, as used in this contract, means the fee initially
negotiated on the assumption that this contract would be performed for a
cost equal to the estimated cost initially negotiated, adjusted in
accordance with paragraph (d) below.
(c) Withholding of payment. (1) Normally, the Government shall pay
the fee to the Contractor as specified in the Schedule. However, when
the Contracting Officer considers that performance or cost indicates
that the Contractor will not achieve target, the Government shall pay on
the basis of an appropriate lesser fee. When the Contractor demonstrates
that performance or cost clearly indicates that the Contractor will earn
a fee significantly above the target fee, the Government may, at the
sole discretion of the Contracting Officer, pay on the basis of an
appropriate higher fee.
(2) Payment of the incentive fee shall be made as specified in the
Schedule; provided that the Contracting Officer withholds a reserve not
to exceed 15 percent of the total incentive fee or $100,000, whichever
is less, to protect the Government's interest. The Contracting Officer
shall release 75 percent of all fee withholds under this contract after
receipt of an adequate certified final indirect cost rate proposal
covering the year of physical completion of this contract, provided the
Contractor has satisfied all other contract terms and conditions,
including the submission of the final patent and royalty reports, and is
not delinquent in submitting final vouchers on prior years' settlements.
The Contracting Officer may release up to 90 percent of the fee
withholds under this contract based on the Contractor's past performance
related to the submission and settlement of final indirect cost rate
proposals.
(d) Equitable adjustments. When the work under this contract is
increased or decreased by a modification to this contract or when any
equitable adjustment in the target cost is authorized under any other
clause, equitable adjustments in the target cost, target fee, minimum
fee, and maximum fee, as appropriate, shall be stated in a supplemental
agreement to this contract.
(e) Fee payable. (1) The fee payable under this contract shall be
the target fee increased by ___ [Contracting Officer insert Contractor's
participation] cents for every dollar that the total allowable cost is
less than the target cost or decreased by ___ [Contracting Officer
insert Contractor's participation] cents for every dollar that the total
allowable cost exceeds the target cost. In no event shall the fee be
greater than ___ [Contracting Officer insert percentage] percent or less
than __ [Contracting Officer insert percentage] percent of the target
cost.
(2) The fee shall be subject to adjustment, to the extent provided
in paragraph (d) above, and within the minimum and maximum fee
limitations in subparagraph (1) above, when the total allowable cost is
increased or decreased as a consequence of (i) payments made under
assignments or (ii) claims excepted from the release as required by
paragraph (h)(2) of the Allowable Cost and Payment clause.
(3) If this contract is terminated in its entirety, the portion of
the target fee payable shall not be subject to an increase or decrease
as provided in this paragraph. The termination shall be accomplished in
accordance with other applicable clauses of this contract.
(4) For the purpose of fee adjustment, total allowable cost shall
not include allowable costs arising out of--
(i) Any of the causes covered by the Excusable Delays clause to the
extent that they are beyond the control and without the fault or
negligence of the Contractor or any subcontractor;
(ii) The taking effect, after negotiating the target cost, of a
statute, court decision,
[[Page 131]]
written ruling, or regulation that results in the Contractor's being
required to pay or bear the burden of any tax or duty or rate increase
in a tax or duty;
(iii) Any direct cost attributed to the Contractor's involvement in
litigation as required by the Contracting Officer pursuant to a clause
of this contract, including furnishing evidence and information
requested pursuant to the Notice and Assistance Regarding Patent and
Copyright Infringement clause;
(iv) The purchase and maintenance of additional insurance not in the
target cost and required by the Contracting Officer, or claims for
reimbursement for liabilities to third persons pursuant to the
Insurance--Liability to Third Persons clause;
(v) Any claim, loss, or damage resulting from a risk for which the
Contractor has been relieved of liability by the Government Property
clause; or
(vi) Any claim, loss, or damage resulting from a risk defined in the
contract as unusually hazardous or as a nuclear risk and against which
the Government has expressly agreed to indemnify the Contractor.
(5) All other allowable costs are included in total allowable cost
for fee adjustment in accordance with this paragraph (e), unless
otherwise specifically provided in this contract.
(f) Contract modification. The total allowable cost and the adjusted
fee determined as provided in this clause shall be evidenced by a
modification to this contract signed by the Contractor and Contracting
Officer.
(g) Inconsistencies. In the event of any language inconsistencies
between this clause and provisioning documents or Government options
under this contract, compensation for spare parts or other supplies and
services ordered under such documents shall be determined in accordance
with this clause.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996;
62 FR 12721, Mar. 17, 1997; 76 FR 31410, May 31, 2011]
52.216-11 Cost Contract--No Fee.
As prescribed in 16.307(e), insert the following clause in
solicitations and contracts when a cost-reimbursement contract is
contemplated that provides no fee and is not a cost-sharing contract.
This clause may be modified by substituting $10,000 in lieu of $100,000
as the maximum reserve in paragraph (b) if the Contractor is a nonprofit
organization.
Cost Contract--No Fee (APR 1984)
(a) The Government shall not pay the Contractor a fee for performing
this contract.
(b) After payment of 80 percent of the total estimated cost shown in
the Schedule, the Contracting Officer may withhold further payment of
allowable cost until a reserve is set aside in an amount that the
Contracting Officer considers necessary to protect the Government's
interest. This reserve shall not exceed one percent of the total
estimated cost shown in the Schedule or $100,000, whichever is less.
(End of clause)
Alternate I (APR 1984). In a contract for research and development
with an educational institution or a nonprofit organization, for which
the contracting officer has determined that withholding of a portion of
allowable costs is not required, delete paragraph (b) of the basic
clause.
[48 FR 42478, Sept. 19, 1983, as amended at 72 FR 27389, May 15, 2007]
52.216-12 Cost-Sharing Contract--No Fee.
As prescribed in 16.307(f), insert the following clause in
solicitations and contracts when a cost-sharing contract is
contemplated. This clause may be modified by substituting $10,000 in
lieu of $100,000 as the maximum reserve in paragraph (b) if the contract
is with a nonprofit organization.
Cost-Sharing Contract--No Fee (APR 1984)
(a) The Government shall not pay to the Contractor a fee for
performing this contract.
(b) After paying 80 percent of the Government's share of the total
estimated cost of performance shown in the Schedule, the Contracting
Officer may withhold further payment of allowable cost until a reserve
is set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interest. This reserve shall not
exceed one percent of the Government's share of the total estimated cost
shown in the Schedule or $100,000, whichever is less.
(End of clause)
Alternate I (APR 1984). In a contract for research and development
with an educational institution, for which the contracting officer has
determined that withholding of a portion of allowable cost is not
required, delete paragraph (b) of the basic clause.
[48 FR 42478, Sept. 19, 1983, as amended at 72 FR 27389, May 15, 2007]
[[Page 132]]
52.216-13--52.216-14 [Reserved]
52.216-15 Predetermined Indirect Cost Rates.
As prescribed in 16.307(g), insert the following clause:
Predetermined Indirect Cost Rates (APR 1998)
(a) Notwithstanding the Allowable Cost and Payment clause of this
contract, the allowable indirect costs under this contract shall be
obtained by applying predetermined indirect cost rates to bases agreed
upon by the parties, as specified below.
(b)(1) The Contractor shall submit an adequate final indirect cost
rate proposal to the Contracting Officer (or cognizant Federal agency
official) and auditor within the 6-month period following the expiration
of each of its fiscal years. Reasonable extensions, for exceptional
circumstances only, may be requested in writing by the Contractor and
granted in writing by the Contracting Officer. The Contractor shall
support its proposal with adequate supporting data.
(2) The proposed rates shall be based on the Contractor's actual
cost experience for that period. The appropriate Government
representative and the Contractor shall establish the final indirect
cost rates as promptly as practical after receipt of the Contractor's
proposal.
(c) Allowability of costs and acceptability of cost allocation
methods shall be determined in accordance with FAR subpart 31.3 in
effect on the date of this contract.
(d) Predetermined rate agreements in effect on the date of this
contract shall be incorporated into the contract Schedule. The
Contracting Officer (or cognizant Federal agency official) and
Contractor shall negotiate rates for subsequent periods and execute a
written indirect cost rate agreement setting forth the results. The
agreement shall specify (1) the agreed-upon predetermined indirect cost
rates, (2) the bases to which the rates apply, (3) the period for which
the rates apply, and (4) the specific items treated as direct costs or
any changes in the items previously agreed to be direct costs. The
indirect cost rate agreement shall not change any monetary ceiling,
contract obligation, or specific cost allowance or disallowance provided
for in this contract. The agreement is incorporated into this contract
upon execution.
(e) Pending establishment of predetermined indirect cost rates for
any fiscal year (or other period agreed to by the parties), the
Contractor shall be reimbursed either at the rates fixed for the
previous fiscal year (or other period) or at billing rates acceptable to
the Contracting Officer (or cognizant Federal agency official), subject
to appropriate adjustment when the final rates for that period are
established.
(f) Any failure by the parties to agree on any predetermined
indirect cost rates under this clause shall not be considered a dispute
within the meaning of the Disputes clause. If for any fiscal year (or
other period specified in the Schedule) the parties fail to agree to
predetermined indirect cost rates, the allowable indirect costs shall be
obtained by applying final indirect cost rates established in accordance
with the Allowable Cost and Payment clause.
(g) Allowable indirect costs for the period from the beginning of
performance until the end of the Contractor's fiscal year (or other
period specified in the Schedule) shall be obtained using the
predetermined indirect cost rates and the bases shown in the Schedule.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 31622, June 20, 1996;
62 FR 64916, Dec. 9, 1997; 63 FR 9065, Feb. 23, 1998; 72 FR 27389, May
15, 2007]
52.216-16 Incentive Price Revision--Firm Target.
As prescribed in 16.406(a), insert the following clause:
Incentive Price Revision--Firm Target (OCT 1997)
(a) General. The supplies or services identified in the Schedule as
Items ___ [Contracting Officer insert Schedule line item numbers] are
subject to price revision in accordance with this clause; provided, that
in no event shall the total final price of these items exceed the
ceiling price of ___ dollars ($___). Any supplies or services that are
to be (1) ordered separately under, or otherwise added to, this contract
and (2) subject to price revision in accordance with the terms of this
clause shall be identified as such in a modification to this contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Data submission. (1) Within __ [Contracting Officer insert
number of days] days after the end of the month in which the Contractor
has delivered the last unit of supplies and completed the services
specified by item number in paragraph (a) of this clause, the Contractor
shall submit in the format of Table 15-2, FAR 15.408, or in any other
form on which the parties agree--
(i) A detailed statement of all costs incurred up to the end of that
month in performing all work under the items;
(ii) An estimate of costs of further performance, if any, that may
be necessary to
[[Page 133]]
complete performance of all work under the items;
(iii) A list of all residual inventory and an estimate of its value;
and
(iv) Any other relevant data that the Contracting Officer may
reasonably require.
(2) If the Contractor fails to submit the data required by
subparagraph (1) above within the time specified and it is later
determined that the Government has overpaid the Contractor, the
Contractor shall repay the excess to the Government immediately. Unless
repaid within 30 days after the end of the data submittal period, the
amount of the excess shall bear interest, computed from the date the
data were due to the date of repayment, at the rate established in
accordance with the Interest clause.
(d) Price revision. Upon the Contracting Officer's receipt of the
data required by paragraph (c) above, the Contracting Officer and the
Contractor shall promptly establish the total final price of the items
specified in (a) above by applying to final negotiated cost an
adjustment for profit or loss, as follows:
(1) On the basis of the information required by paragraph (c) above,
together with any other pertinent information, the parties shall
negotiate the total final cost incurred or to be incurred for supplies
delivered (or services performed) and accepted by the Government and
which are subject to price revision under this clause.
(2) The total final price shall be established by applying to the
total final negotiated cost an adjustment for profit or loss, as
follows:
(i) If the total final negotiated cost is equal to the total target
cost, the adjustment is the total target profit.
(ii) If the total final negotiated cost is greater than the total
target cost, the adjustment is the total target profit, less ___
[Contracting Officer insert percent] percent of the amount by which the
total final negotiated cost exceeds the total target cost.
(iii) If the final negotiated cost is less than the total target
cost, the adjustment is the total target profit plus ___ [Contracting
Officer insert percent] percent of the amount by which the total final
negotiated cost is less than the total target cost.
(e) Contract modification. The total final price of the items
specified in paragraph (a) above shall be evidenced by a modification to
this contract, signed by the Contractor and the Contracting Officer.
This price shall not be subject to revision, notwithstanding any changes
in the cost of performing the contract, except to the extent that--
(1) The parties may agree in writing, before the determination of
total final price, to exclude specific elements of cost from this price
and to a procedure for subsequent disposition of those elements; and
(2) Adjustments or credits are explicitly permitted or required by
this or any other clause in this contract.
(f) Adjusting billing prices. (1) Pending execution of the contract
modification (see paragraph (e) above), the Contractor shall submit
invoices or vouchers in accordance with billing prices as provided in
this paragraph. The billing prices shall be the target prices shown in
this contract.
(2) If at any time it appears from information provided by the
contractor under subparagraph (g)(2) below that the then-current billing
prices will be substantially greater than the estimated final prices,
the parties shall negotiate a reduction in the billing prices.
Similarly, the parties may negotiate an increase in billing prices by
any or all of the difference between the target prices and the ceiling
price, upon the Contractor's submission of factual data showing that
final cost under this contract will be substantially greater than the
target cost.
(3) Any billing price adjustment shall be reflected in a contract
modification and shall not affect the determination of the total final
price under paragraph (d) above. After the contract modification
establishing the total final price is executed, the total amount paid or
to be paid on all invoices or vouchers shall be adjusted to reflect the
total final price, and any resulting additional payments, refunds, or
credits shall be made promptly.
(g) Quarterly limitation on payments statement. This paragraph (g)
shall apply until final price revision under this contract has been
completed.
(1) Within 45 days after the end of each quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement, cumulative from the beginning
of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total costs (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total target profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (g)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established--increased or decreased in
accordance
[[Page 134]]
with subparagraph (d)(2) above, when the amount stated under subdivision
(ii), immediately above, differs from the aggregate target costs of the
supplies or services; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reductions in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(i) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon the total final price within 60 days (or within such
other period as the Contracting Officer may specify) after the date on
which the data required by paragraph (c) above are to be submitted, the
Contracting Officer shall promptly issue a decision in accordance with
the Disputes clause.
(j) Termination. If this contract is terminated before the total
final price is established, prices of supplies or services subject to
price revision shall be established in accordance with this clause for
(1) completed supplies and services accepted by the Government and (2)
those supplies and services not terminated under a partial termination.
All other elements of the termination shall be resolved in accordance
with other applicable clauses of this contract.
(k) Equitable adjustment under other clauses. If an equitable
adjustment in the contract price is made under any other clause of this
contract before the total final price is established, the adjustment
shall be made in the total target cost and may be made in the maximum
dollar limit on the total final price, the total target profit, or both.
If the adjustment is made after the total final price is established,
only the total final price shall be adjusted.
(l) Exclusion from target price and total final price. If any clause
of this contract provides that the contract price does not or will not
include an amount for a specific purpose, then neither any target price
nor the total final price includes or will include any amount for that
purpose.
(m) Separate reimbursement. If any clause of this contract expressly
provides that the cost of performance of an obligation shall be at
Government expense, that expense shall not be included in any target
price or in the total final price, but shall be reimbursed separately.
(n) Taxes. As used in the Federal, State, and Local Taxes clause or
in any other clause that provides for certain taxes or duties to be
included in, or excluded from, the contract price, the term contract
price includes the total target price or, if it has been established,
the total final price. When any of these clauses requires that the
contract price be increased or decreased as a result of changes in the
obligation of the Contractor to pay or bear the burden of certain taxes
or duties, the increase or decrease shall be made in the total target
price or, if it has been established, in the total final price, so that
it will not affect the Contractor's profit or loss on this contract.
(End of clause)
Alternate I (APR 1984). As prescribed in 16.406(a), add the
following paragraph (o) to the basic clause:
(o) Provisioning and options. Parts, other supplies, or services
that are to be furnished under this contract on the basis of a
provisioning document or Government option shall be subject to price
revision in accordance with this clause. Any prices established for
these parts, other supplies, or services under a provisioning document
or Government option shall be treated as target prices. Target cost and
profit covering these parts, other supplies, or services may be
established separately, in the aggregate, or in any combination, as the
parties may agree.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67426, Dec. 20, 1996;
62 FR 12696, Mar. 17, 1997; 62 FR 51265, Sept. 30, 1997]
[[Page 135]]
52.216-17 Incentive Price Revision--Successive Targets.
As prescribed in 16.406(b), insert the following clause:
Incentive Price Revision--Successive Targets (OCT 1997)
(a) General. The supplies or services identified in the Schedule as
Items ___ [Contracting Officer insert line item numbers] are subject to
price revision in accordance with this clause; provided, that in no
event shall the total final price of these items exceed the ceiling
price of ___ dollars ($___). The prices of these items shown in the
Schedule are the initial target prices, which include an initial target
profit of ___ [Contracting Officer insert percent] percent of the
initial target cost. Any supplies or services that are to be (1) ordered
separately under, or otherwise added to, this contract and (2) subject
to price revision in accordance with this clause shall be identified as
such in a modification to this contract.
(b) Definition. Costs, as used in this clause, means allowable costs
in accordance with part 31 of the Federal Acquisition Regulation (FAR)
in effect on the date of this contract.
(c) Submitting data for establishing the firm fixed price or a final
profit adjustment formula. (1) Within __ [Contracting Officer insert
number of days] days after the end of the month in which the Contractor
has completed ___ [see Note 1], the Contractor shall submit the
following data:
(i) A proposed firm fixed price or total firm target price for
supplies delivered and to be delivered and services performed and to be
performed.
(ii) A detailed statement of all costs incurred in the performance
of this contract through the end of the month specified above, in the
format of Table 15-2, FAR 15.408 (or in any other form on which the
parties may agree), with sufficient supporting data to disclose unit
costs and cost trends for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary).
(iii) An estimate of costs of all supplies delivered and to be
delivered and all services performed and to be performed under this
contract, using the statement of costs incurred plus an estimate of
costs to complete performance, in the format of table 15-2, FAR 15.408
(or in any other form on which the parties may agree), together with--
(A) Sufficient data to support the accuracy and reliability of the
estimate; and
(B) An explanation of the differences between this estimate and the
original estimate used to establish the initial target prices.
(2) The Contractor shall also submit, to the extent that it becomes
available before negotiations establishing the total firm price are
concluded--
(i) Supplemental statements of costs incurred after the end of the
month specified in subparagraph (1) above for--
(A) Supplies delivered and services performed; and
(B) Inventories of work in process and undelivered contract supplies
on hand (estimated to the extent necessary); and
(ii) Any other relevant data that the Contracting Officer may
reasonably require.
(3) If the Contractor fails to submit the data required by
subparagraphs (1) and (2) above within the time specified and it is
later determined that the Government has overpaid the Contractor, the
Contractor shall repay the excess to the Government immediately. Unless
repaid within 30 days after the end of the data submittal period, the
amount of the excess shall bear interest, computed from the date the
data were due to the date of repayment, at the rate established in
accordance with the Interest clause.
(d) Establishing firm fixed price or final profit adjustment
formula. Upon the Contracting Officer's receipt of the data required by
paragraph (c) above the Contracting Officer and the Contractor shall
promptly establish either a firm fixed price or a profit adjustment
formula for determining final profit, as follows:
(1) The parties shall negotiate a total firm target cost, based upon
the data submitted under paragraph (c) above.
(2) If the total firm target cost is more than the total initial
target cost, the total initial target profit shall be decreased. If the
total firm target cost is less than the total initial target cost, the
total initial target profit shall be increased. The initial target
profit shall be increased or decreased by __ percent [see Note 2] of the
difference between the total initial target cost and the total firm
target cost. The resulting amount shall be the total firm target profit;
provided, that in no event shall the total firm target profit be less
than __ percent or more than __ percent [Contracting Officer insert
percents] of the total initial target cost.
(3) If the total firm target cost plus the total firm target profit
represent a reasonable price for performing that part of the contract
subject to price revision under this clause, the parties may agree on a
firm fixed price, which shall be evidenced by a contract modification
signed by the Contractor and the Contracting Officer.
(4) Failure of the parties to agree to a firm fixed price shall not
constitute a dispute under the Disputes clause. If agreement is not
reached, or if establishment of a firm fixed price is inappropriate, the
Contractor and the Contracting Officer shall establish a
[[Page 136]]
profit adjustment formula under which the total final price shall be
established by applying to the total final negotiated cost an adjustment
for profit or loss, determined as follows:
(i) If the total final negotiated cost is equal to the total firm
target cost, the adjustment is the total firm target profit.
(ii) If the total final negotiated cost is greater than the total
firm target cost, the adjustment is the total firm target profit, less
__ percent of the amount by which the total final negotiated cost
exceeds the total firm target cost.
(iii) If the total final negotiated cost is less than the total firm
target cost, the adjustment is the total firm target profit, plus __
percent of the amount by which the total final negotiated cost is less
than the total firm target cost.
(iv) The total firm target cost, total firm target profit, and the
profit adjustment formula for determining final profit shall be
evidenced by a modification to this contract signed by the Contractor
and the Contracting Officer.
(e) Submitting data for final price revision. Unless a firm fixed
price has been established in accordance with paragraph (d) of this
section within __ [Contracting Officer insert number of days] days after
the end of the month in which the Contractor has delivered the last unit
of supplies and completed the services specified by item number in
paragraph (a) of this section, the Contractor shall submit in the format
of table 15-2, FAR 15.408 (or in any other form on which the parties
agree)--
(1) A detailed statement of all costs incurred up to the end of that
month in performing all work under the items;
(2) An estimate of costs of further performance, if any, that may be
necessary to complete performance of all work under the items;
(3) A list of all residual inventory and an estimate of its value;
and
(4) Any other relevant data that the Contracting Officer may
reasonably require.
(f) Final price revision. Unless a firm fixed price has been agreed
to in accordance with paragraph (d) above, the Contractor and the
Contracting Officer shall, promptly after submission of the data
required by paragraph (e) above, establish the total final price, as
follows:
(1) On the basis of the information required by paragraph (e) above,
together with any other pertinent information, the parties shall
negotiate the total final cost incurred or to be incurred for the
supplies delivered (or services performed) and accepted by the
Government and which are subject to price revision under this clause.
(2) The total final price shall be established by applying to the
total final negotiated cost an adjustment for final profit or loss
determined as agreed upon under subparagraph (d)(4) above.
(g) Contract modification. The total final price of the items
specified in paragraph (a) above shall be evidenced by a modification to
this contract, signed by the Contractor and the Contracting Officer.
This price shall not be subject to revision, notwithstanding any changes
in the cost of performing the contract, except to the extent that--
(1) The parties may agree in writing, before the determination of
total final price, to exclude specific elements of cost from this price
and to a procedure for subsequent disposition of these elements; and
(2) Adjustments or credits are explicitly permitted or required by
this or any other clause in this contract.
(h) Adjustment of billing prices. (1) Pending execution of the
contract modification (see paragraph (e) above), the Contractor shall
submit invoices or vouchers in accordance with billing prices as
provided in this paragraph. The billing prices shall be the initial
target prices shown in this contract until firm target prices are
established under paragraph (d) above. When established, the firm target
prices shall be used as the billing prices.
(2) If at any time it appears from information provided by the
contractor under subparagraph (i)(1) below that the then-current billing
prices will be substantially greater than the estimated final prices,
the parties shall negotiate a reduction in the billing prices.
Similarly, the parties may negotiate an increase in billing prices by
any or all of the difference between the target prices and the ceiling
price, upon the Contractor's submission of factual data showing that the
final cost under this contract will be substantially greater than the
target cost.
(3) Any adjustment of billing prices shall be reflected in a
contract modification and shall not affect the determination of any
price under paragraph (d) or (f) above. After the contract modification
establishing the total final price is executed, the total amount paid or
to be paid on all invoices or vouchers shall be adjusted to reflect the
total final price, and any resulting additional payments, refunds, or
credits shall be made promptly.
(i) Quarterly limitation on payments statement. This paragraph (i)
shall apply until a firm fixed price or a total final price is
established under subparagraph (d)(3) or (f)(2).
(1) Within 45 days after the end of each quarter of the Contractor's
fiscal year in which a delivery is first made (or services are first
performed) and accepted by the Government under this contract, and for
each quarter thereafter, the Contractor shall submit to the contract
administration office (with a copy to the contracting office and the
cognizant contract auditor) a statement,
[[Page 137]]
cumulative from the beginning of the contract, showing--
(i) The total contract price of all supplies delivered (or services
performed) and accepted by the Government and for which final prices
have been established;
(ii) The total cost (estimated to the extent necessary) reasonably
incurred for, and properly allocable solely to, the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established;
(iii) The portion of the total interim profit (used in establishing
the initial contract price or agreed to for the purpose of this
paragraph (i)) that is in direct proportion to the supplies delivered
(or services performed) and accepted by the Government and for which
final prices have not been established--increased or decreased in
accordance with subparagraph (d)(4) above when the amount stated under
subdivision (ii), immediately above, differs from the aggregate firm
target costs of the supplies or services; and
(iv) The total amount of all invoices or vouchers for supplies
delivered (or services performed) and accepted by the Government
(including amounts applied or to be applied to liquidate progress
payments).
(2) Notwithstanding any provision of this contract authorizing
greater payments, if on any quarterly statement the amount under
subdivision (1)(iv) above exceeds the sum due the Contractor, as
computed in accordance with subdivisions (1)(i), (ii), and (iii) above,
the Contractor shall immediately refund or credit to the Government the
amount of this excess. The Contractor may, when appropriate, reduce this
refund or credit by the amount of any applicable tax credits due the
Contractor under 26 U.S.C. 1481 and by the amount of previous refunds or
credits effected under this clause. If any portion of the excess has
been applied to the liquidation of progress payments, then that portion
may, instead of being refunded, be added to the unliquidated progress
payment account consistent with the Progress Payments clause. The
Contractor shall provide complete details to support any claimed
reductions in refunds.
(3) If the Contractor fails to submit the quarterly statement within
45 days after the end of each quarter and it is later determined that
the Government has overpaid the Contractor, the Contractor shall repay
the excess to the Government immediately. Unless repaid within 30 days
after the end of the statement submittal period, the amount of the
excess shall bear interest, computed from the date the quarterly
statement was due to the date of repayment, at the rate established in
accordance with the Interest clause.
(j) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
(k) Disagreements. If the Contractor and the Contracting Officer
fail to agree upon (1) a total firm target cost and a final profit
adjustment formula or (2) a total final price, within 60 days (or within
such other period as the Contracting Officer may specify) after the date
on which the data required in paragraphs (c) and (e) above are to be
submitted, the Contracting Officer shall promptly issue a decision in
accordance with the Disputes clause.
(l) Termination. If this contract is terminated before the total
final price is established, prices of supplies or services subject to
price revision shall be established in accordance with this clause for
(1) completed supplies and services accepted by the Government and (2)
those supplies or services not terminated under a partial termination.
All other elements of the termination shall be resolved in accordance
with other applicable clauses of this contract.
(m) Equitable adjustments under other clauses. If an equitable
adjustment in the contract price is made under any other clause of this
contract before the total final price is established, the adjustment
shall be made in the total target cost and may be made in the maximum
dollar limit on the total final price, the total target profit, or both.
If the adjustment is made after the total final price is established,
only the total final price shall be adjusted.
(n) Exclusion from target price and total final price. If any clause
of this contract provides that the contract price does not or will not
include an amount for a specific purpose, then neither any target price
nor the total final price includes or will include any amount for that
purpose.
(o) Separate reimbursement. If any clause of this contract expressly
provides that the cost of performance of an obligation shall be at
Government expense, that expense shall not be included in any target
price or in the total final price, but shall be reimbursed separately.
(p) Taxes. As used in the Federal, State, and Local Taxes clause or
in any other clause that provides for certain taxes or duties to be
included in, or excluded from, the contract price, the term contract
price includes the total target price or, if it has been established,
the total final price. When any of these clauses requires that the
contract price be increased or decreased as a result of changes in the
obligation of the Contractor to pay or bear the burden of certain taxes
or duties, the increase or decrease shall be made in the total target
price or, if it has been established, in the total final price, so that
it will not affect the Contractor's profit or loss on this contract.
[[Page 138]]
(End of clause)
Notes: (1) The degree of completion may be based on a percentage of
contract performance or any other reasonable basis.
(2) The language may be changed to describe a negotiated adjustment
pattern under which the extent of adjustment is not the same for all
levels of cost variation.
Alternate I (APR 1984). As prescribed in 16.406(b), add the
following paragraph (q) to the basic clause:
(q) Provisioning and options. Parts, other supplies, or services
that are to be furnished under this contract on the basis of a
provisioning document or Government option shall be subject to price
revision in accordance with this clause. Any prices established for
these parts, other supplies, or services under a provisioning document
or Government option shall be treated as initial target prices, or
target prices as agreed upon and stipulated in the pricing document
supporting the provisioning or added items. Initial or firm target costs
and profits and final prices covering these parts, other supplies, or
services may be established separately, in the aggregate, or in any
combination, as the parties may agree.
[48 FR 42478, Sept. 19, 1983, as amended at 61 FR 67426, Dec. 20, 1996;
62 FR 12696, Mar. 17, 1997; 62 FR 51265, Sept. 30, 1997]
52.216-18 Ordering.
As prescribed in 16.506(a), insert the following clause:
Ordering (OCT 1995)
(a) Any supplies and services to be furnished under this contract
shall be ordered by issuance of delivery orders or task orders by the
individuals or activities designated in the Schedule. Such orders may be
issued from ___ through ___ [insert dates].
(b) All delivery orders or task orders are subject to the terms and
conditions of this contract. In the event of conflict between a delivery
order or task order and this contract, the contract shall control.
(c) If mailed, a delivery order or task order is considered
``issued'' when the Government deposits the order in the mail. Orders
may be issued orally, by facsimile, or by electronic commerce methods
only if authorized in the Schedule.
(End of clause)
[60 FR 49727, Sept. 26, 1995]
52.216-19 Order Limitations.
As prescribed in 16.506(b), insert a clause substantially the same
as follows:
Order Limitations (OCT 1995)
(a) Minimum order. When the Government requires supplies or services
covered by this contract in an amount of less than ___ [insert dollar
figure or quantity], the Government is not obligated to purchase, nor is
the Contractor obligated to furnish, those supplies or services under
the contract.
(b) Maximum order. The Contractor is not obligated to honor--
(1) Any order for a single item in excess of ___ [insert dollar
figure or quantity];
(2) Any order for a combination of items in excess of ___ [insert
dollar figure or quantity]; or
(3) A series of orders from the same ordering office within __ days
that together call for quantities exceeding the limitation in
subparagraph (1) or (2) above.
(c) If this is a requirements contract (i.e., includes the
Requirements clause at subsection 52.216-21 of the Federal Acquisition
Regulation (FAR)), the Government is not required to order a part of any
one requirement from the Contractor if that requirement exceeds the
maximum-order limitations in paragraph (b) above.
(d) Notwithstanding paragraphs (b) and (c) above, the Contractor
shall honor any order exceeding the maximum order limitations in
paragraph (b), unless that order (or orders) is returned to the ordering
office within __ days after issuance, with written notice stating the
Contractor's intent not to ship the item (or items) called for and the
reasons. Upon receiving this notice, the Government may acquire the
supplies or services from another source.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 49727, Sept. 26, 1995]
52.216-20 Definite Quantity.
As prescribed in 16.506(c), insert the following clause:
Definite Quantity (OCT 1995)
(a) This is a definite-quantity, indefinite-delivery contract for
the supplies or services specified, and effective for the period stated,
in the Schedule.
(b) The Government shall order the quantity of supplies or services
specified in the Schedule, and the Contractor shall furnish them when
ordered. Delivery or performance shall be at locations designated in
orders
[[Page 139]]
issued in accordance with the Ordering clause and the Schedule.
(c) Except for any limitations on quantities in the Order
Limitations clause or in the Schedule, there is no limit on the number
of orders that may be issued. The Government may issue orders requiring
delivery to multiple destinations or performance at multiple locations.
(d) Any order issued during the effective period of this contract
and not completed within that time shall be completed by the Contractor
within the time specified in the order. The contract shall govern the
Contractor's and Government's rights and obligations with respect to
that order to the same extent as if the order were completed during the
contract's effective period; provided, that the Contractor shall not be
required to make any deliveries under this contract after __ [insert
date].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 49727, Sept. 26, 1995]
52.216-21 Requirements.
As prescribed in 16.506(d), insert the following clause:
Requirements (OCT 1995)
(a) This is a requirements contract for the supplies or services
specified, and effective for the period stated, in the Schedule. The
quantities of supplies or services specified in the Schedule are
estimates only and are not purchased by this contract. Except as this
contract may otherwise provide, if the Government's requirements do not
result in orders in the quantities described as estimated or maximum in
the Schedule, that fact shall not constitute the basis for an equitable
price adjustment.
(b) Delivery or performance shall be made only as authorized by
orders issued in accordance with the Ordering clause. Subject to any
limitations in the Order Limitations clause or elsewhere in this
contract, the Contractor shall furnish to the Government all supplies or
services specified in the Schedule and called for by orders issued in
accordance with the Ordering clause. The Government may issue orders
requiring delivery to multiple destinations or performance at multiple
locations.
(c) Except as this contract otherwise provides, the Government shall
order from the Contractor all the supplies or services specified in the
Schedule that are required to be purchased by the Government activity or
activities specified in the Schedule.
(d) The Government is not required to purchase from the Contractor
requirements in excess of any limit on total orders under this contract.
(e) If the Government urgently requires delivery of any quantity of
an item before the earliest date that delivery may be specified under
this contract, and if the Contractor will not accept an order providing
for the accelerated delivery, the Government may acquire the urgently
required goods or services from another source.
(f) Any order issued during the effective period of this contract
and not completed within that period shall be completed by the
Contractor within the time specified in the order. The contract shall
govern the Contractor's and Government's rights and obligations with
respect to that order to the same extent as if the order were completed
during the contract's effective period; provided, that the Contractor
shall not be required to make any deliveries under this contract after
__ [insert date].
(End of clause)
Alternate I (APR 1984). If the requirements contract is for
nonpersonal services and related supplies and covers estimated
requirements that exceed a specific Government activity's internal
capability to produce or perform, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(c) The estimated quantities are not the total requirements of the
Government activity specified in the Schedule, but are estimates of
requirements in excess of the quantities that the activity may itself
furnish within its own capabilities. Except as this contract otherwise
provides, the Government shall order from the Contractor all of that
activity's requirements for supplies and services specified in the
Schedule that exceed the quantities that the activity may itself furnish
within its own capabilities.
Alternate II (APR 1984). If the requirements contract includes
subsistence for both Government use and resale in the same Schedule, and
similar products may be acquired on a brand-name basis, add the
following paragraph (g) to the basic clause:
(g) The requirements referred to in this contract are for items to
be manufactured according to Government specifications. Notwithstanding
anything to the contrary stated in the contract, the Government may
acquire similar products by brand name from other sources for resale.
Alternate III (OCT 1995). If the requirements contract involves a
partial small business set-aside, substitute the following paragraph (c)
for paragraph (c) of the basic clause:
[[Page 140]]
(c) The Government's requirements for each item or subitem of
supplies or services described in the Schedule are being purchased
through one non-set-aside contract and one set-aside contract.
Therefore, the Government shall order from each Contractor approximately
one-half of the total supplies or services specified in the Schedule
that are required to be purchased by the specified Government activity
or activities. The Government may choose between the set-aside
Contractor and the non-set-aside Contractor in placing any particular
order. However, the Government shall allocate successive orders, in
accordance with its delivery requirements, to maintain as close a ratio
as is reasonably practicable between the total quantities ordered from
the two Contractors.
Alternate IV (OCT 1995). If the contract includes subsistence for
both Government use and resale in the same Schedule and similar products
may be acquired on a brand-name basis and the contract also involves a
partial small business set-aside, substitute the following paragraph (c)
for paragraph (c) of the basic clause and add the following paragraph
(g) to the basic clause:
(c) The Government's requirements for each item or subitem of
supplies or services described in the Schedule are being purchased
through one non-set-aside contract and one set-aside contract.
Therefore, the Government shall order from each Contractor approximately
one-half of the total supplies or services specified in the Schedule
that are required to be purchased by the specified Government activity
or activities. The Government may choose between the set-aside
Contractor and the non-set-aside Contractor in placing any particular
order. However, the Government shall allocate successive orders, in
accordance with its delivery requirements, to maintain as close a ratio
as is reasonably practicable between the total quantities ordered from
the two Contractors.
(g) The requirements referred to in this contract are for items to
be manufactured according to the Government specifications.
Notwithstanding anything to the contrary stated in the contract, the
Government may acquire similar products by brand name from other sources
for resale.
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48264, Sept. 18, 1995;
60 FR 49727, Sept. 26, 1995]
52.216-22 Indefinite Quantity.
As prescribed in 16.506(e), insert the following clause:
Indefinite Quantity (OCT 1995)
(a) This is an indefinite-quantity contract for the supplies or
services specified, and effective for the period stated, in the
Schedule. The quantities of supplies and services specified in the
Schedule are estimates only and are not purchased by this contract.
(b) Delivery or performance shall be made only as authorized by
orders issued in accordance with the Ordering clause. The Contractor
shall furnish to the Government, when and if ordered, the supplies or
services specified in the Schedule up to and including the quantity
designated in the Schedule as the maximum. The Government shall order at
least the quantity of supplies or services designated in the Schedule as
the minimum.
(c) Except for any limitations on quantities in the Order
Limitations clause or in the Schedule, there is no limit on the number
of orders that may be issued. The Government may issue orders requiring
delivery to multiple destinations or performance at multiple locations.
(d) Any order issued during the effective period of this contract
and not completed within that period shall be completed by the
Contractor within the time specified in the order. The contract shall
govern the Contractor's and Government's rights and obligations with
respect to that order to the same extent as if the order were completed
during the contract's effective period; provided, that the Contractor
shall not be required to make any deliveries under this contract after
___ [insert date].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 55 FR 38518, Sept. 18, 1990;
60 FR 49727, Sept. 26, 1995]
52.216-23 Execution and Commencement of Work.
As prescribed in 16.603-4(b)(1), insert the following clause in
solicitations and contracts when a letter contract is contemplated,
except that it may be omitted from letter contracts awarded on SF 26:
Execution and Commencement of Work (APR 1984)
The Contractor shall indicate acceptance of this letter contract by
signing three copies of the contract and returning them to the
Contracting Officer not later than ___ [insert date]. Upon acceptance by
both parties, the Contractor shall proceed with performance of the work,
including purchase of necessary materials.
[[Page 141]]
(End of clause)
52.216-24 Limitation of Government Liability.
As prescribed in 16.603-4(b)(2), insert the following clause in
solicitations and contracts when a letter contract is contemplated:
Limitation of Government Liability (APR 1984)
(a) In performing this contract, the Contractor is not authorized to
make expenditures or incur obligations exceeding ___ dollars.
(b) The maximum amount for which the Government shall be liable if
this contract is terminated is ___ dollars.
(End of clause)
52.216-25 Contract Definitization.
As prescribed in 16.603-4(b)(3), insert the following clause:
Contract Definitization (OCT 2010)
(a) A ____ [insert specific type of contract] definitive contract is
contemplated. The Contractor agrees to begin promptly negotiating with
the Contracting Officer the terms of a definitive contract that will
include (1) all clauses required by the Federal Acquisition Regulation
(FAR) on the date of execution of the letter contract, (2) all clauses
required by law on the date of execution of the definitive contract, and
(3) any other mutually agreeable clauses, terms, and conditions. The
Contractor agrees to submit a ____ [insert specific type of proposal
(e.g., fixed-price or cost-and-fee)] proposal, including data other than
certified cost or pricing data, and certified cost or pricing data, in
accordance with FAR 15.408, Table 15-2, supporting its proposal.
(b) The schedule for definitizing this contract is [insert target
date for definitization of the contract and dates for submission of
proposal, beginning of negotiations, and, if appropriate, submission of
make-or-buy and subcontracting plans and certified cost or pricing
data]:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(c) If agreement on a definitive contract to supersede this letter
contract is not reached by the target date in paragraph (b) above, or
within any extension of it granted by the Contracting Officer, the
Contracting Officer may, with the approval of the head of the
contracting activity, determine a reasonable price or fee in accordance
with subpart 15.4 and part 31 of the FAR, subject to Contractor appeal
as provided in the Disputes clause. In any event, the Contractor shall
proceed with completion of the contract, subject only to the Limitation
of Government Liability clause.
(1) After the Contracting Officer's determination of price or fee,
the contract shall be governed by--
(i) All clauses required by the FAR on the date of execution of this
letter contract for either fixed-price or cost-reimbursement contracts,
as determined by the Contracting Officer under this paragraph (c);
(ii) All clauses required by law as of the date of the Contracting
Officer's determination; and
(iii) Any other clauses, terms, and conditions mutually agreed upon.
(2) To the extent consistent with subparagraph (c)(1) above, all
clauses, terms, and conditions included in this letter contract shall
continue in effect, except those that by their nature apply only to a
letter contract.
(End of clause)
Alternate I (APR 1984). In letter contracts awarded on the basis of
price competition, add the following paragraph (d) to the basic clause:
(d) The definitive contract resulting from this letter contract will
include a negotiated ___ [insert price ceiling or firm fixed price] in
no event to exceed ___ [insert the proposed price upon which the award
was based].
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48221, Sept. 18, 1995;
62 FR 51271, Sept. 30, 1997; 75 FR 53152, Aug. 30, 2010]
52.216-26 Payments of Allowable Costs Before Definitization.
As prescribed in 16.603-4(c), insert the following clause:
Payments of Allowable Costs Before Definitization (DEC 2002)
(a) Reimbursement rate. Pending the placing of the definitive
contract referred to in this letter contract, the Government will
promptly reimburse the Contractor for all allowable costs under this
contract at the following rates:
(1) One hundred percent of approved costs representing financing
payments to subcontractors under fixed-price subcontracts, provided that
the Government's payments to the Contractor will not exceed 80 percent
of the allowable costs of those subcontractors.
(2) One hundred percent of approved costs representing cost-
reimbursement subcontracts; provided, that the Government's payments to
the Contractor shall not exceed 85 percent of the allowable costs of
those subcontractors.
(3) Eighty-five percent of all other approved costs.
[[Page 142]]
(b) Limitation of reimbursement. To determine the amounts payable to
the Contractor under this letter contract, the Contracting Officer shall
determine allowable costs in accordance with the applicable cost
principles in part 31 of the Federal Acquisition Regulation (FAR). The
total reimbursement made under this paragraph shall not exceed 85
percent of the maximum amount of the Government's liability, as stated
in this contract.
(c) Invoicing. Payments shall be made promptly to the Contractor
when requested as work progresses, but (except for small business
concerns) not more often than every 2 weeks, in amounts approved by the
Contracting Officer. The Contractor may submit to an authorized
representative of the Contracting Officer, in such form and reasonable
detail as the representative may require, an invoice or voucher
supported by a statement of the claimed allowable cost incurred by the
Contractor in the performance of this contract.
(d) Allowable costs. For the purpose of determining allowable costs,
the term costs includes--
(1) Those recorded costs that result, at the time of the request for
reimbursement, from payment by cash, check, or other form of actual
payment for items or services purchased directly for the contract;
(2) When the Contractor is not delinquent in payment of costs of
contract performance in the ordinary course of business, costs incurred,
but not necessarily paid, for--
(i) Supplies and services purchased directly for the contract and
associated financing payments to subcontractors, provided payments
determined due will be made--
(A) In accordance with the terms and conditions of a subcontract or
invoice; and
(B) Ordinarily within 30 days of the submission of the Contractor's
payment request to the Government;
(ii) Materials issued from the Contractor's stores inventory and
placed in the production process for use on the contract;
(iii) Direct labor;
(iv) Direct travel;
(v) Other direct in-house costs; and
(vi) Properly allocable and allowable indirect costs as shown on the
records maintained by the Contractor for purposes of obtaining
reimbursement under Government contracts; and
(3) The amount of financing payments that the Contractor has paid by
cash, check, or other forms of payment to subcontractors.
(e) Small business concerns. A small business concern may receive
more frequent payments than every 2 weeks.
(f) Audit. At any time before final payment, the Contracting Officer
may have the Contractor's invoices or vouchers and statements of costs
audited. Any payment may be (1) reduced by any amounts found by the
Contracting Officer not to constitute allowable costs or (2) adjusted
for overpayments or underpayments made on preceding invoices or
vouchers.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 65 FR 16283, Mar. 27, 2000;
67 FR 70521, Nov. 22, 2002]
52.216-27 Single or Multiple Awards.
As prescribed in 16.506(f), insert the following provision:
Single or Multiple Awards (OCT 1995)
The Government may elect to award a single delivery order contract
or task order contract or to award multiple delivery order contracts or
task order contracts for the same or similar supplies or services to two
or more sources under this solicitation.
(End of provision)
[60 FR 49727, Sept. 26, 1995]
52.216-28 Multiple Awards for Advisory and Assistance Services.
As prescribed in 16.506(g), insert the following provision:
Multiple Awards for Advisory and Assistance Services (OCT 1995)
The Government intends to award multiple contracts for the same or
similar advisory and assistance services to two or more sources under
this solicitation unless the Government determines, after evaluation of
offers, that only one offeror is capable of providing the services at
the level of quality required.
(End of provision)
[60 FR 49728, Sept. 26, 1995]
52.216-29 Time-and-Materials/Labor-Hour Proposal
Requirements--Non-Commercial Item Acquisition With Adequate Price
Competition.
As prescribed in 16.601(f)(1), insert the following provision:
Time-and-Materials/Labor-Hour Proposal Requirements--Non-Commercial Item
Acquisition With Adequate Price Competition (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify fixed hourly rates in its offer that
include wages, overhead, general and administrative expenses,
[[Page 143]]
and profit. The offeror must specify whether the fixed hourly rate for
each labor category applies to labor performed by--
(1) The offeror;
(2) Subcontractors; and/or
(3) Divisions, subsidiaries, or affiliates of the offeror under a
common control;
(c) The offeror must establish fixed hourly rates using--
(1) Separate rates for each category of labor to be performed by
each subcontractor and for each category of labor to be performed by the
offeror, and for each category of labor to be transferred between
divisions, subsidiaries, or affiliates of the offeror under a common
control;
(2) Blended rates for each category of labor to be performed by the
offeror, including labor transferred between divisions, subsidiaries, or
affiliates of the offeror under a common control, and all
subcontractors; or
(3) Any combination of separate and blended rates for each category
of labor to be performed by the offeror, affiliates of the offeror under
a common control, and subcontractors.
(End of provision)
[71 FR 74665, Dec. 12, 2006, as amended at 78 FR 13767, Feb. 28, 2013]
52.216-30 Time-and-Materials/Labor-Hour Proposal
Requirements--Non-Commercial Item Acquisition without Adequate
Price Competition.
As prescribed in 16.601(f)(2), insert the following provision:
Time-and-Materials/Labor-Hour Proposal Requirements--Non-Commercial Item
Acquisition Without Adequate Price Competition (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify separate fixed hourly rates in its
offer that include wages, overhead, general and administrative expenses,
and profit for each category of labor to be performed by--
(1) The offeror;
(2) Each subcontractor; and
(3) Each division, subsidiary, or affiliate of the offeror under a
common control.
(c) Unless exempt under paragraph (d) of this provision, the fixed
hourly rates for services transferred between divisions, subsidiaries,
or affiliates of the offeror under a common control--
(1) Shall not include profit for the transferring organization; but
(2) May include profit for the prime Contractor.
(d) The fixed hourly rates for services that meet the definition of
commercial item at 2.101 that are transferred between divisions,
subsidiaries, or affiliates of the offeror under a common control may be
the established catalog or market rate when it is the established
practice of the transferring organization to price interorganizational
transfers at other than cost for commercial work of the offeror or any
division, subsidiary or affiliate of the offeror under a common control.
(End of provision)
[71 FR 74665, Dec. 12, 2006, as amended at 78 FR 13767, Feb. 28, 2013]
52.216-31 Time-and-Materials/Labor-Hour Proposal
Requirements--Commercial Item Acquisition.
As prescribed in 16.601(f)(3), insert the following provision:
Time-and-Materials/Labor-Hour Proposal Requirements--Commercial Item
Acquisition (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify fixed hourly rates in its offer that
include wages, overhead, general and administrative expenses, and
profit. The offeror must specify whether the fixed hourly rate for each
labor category applies to labor performed by--
(1) The offeror;
(2) Subcontractors; and/or
(3) Divisions, subsidiaries, or affiliates of the offeror under a
common control.
(End of provision)
[71 FR 74665, Dec. 12, 2006, as amended at 72 FR 6882, Feb. 13, 2007; 78
FR 13767, Feb. 28, 2013]
52.217-1 [Reserved]
52.217-2 Cancellation Under Multiyear Contracts.
As prescribed in 17.109(a), insert the following clause:
Cancellation Under Multiyear Contracts (OCT 1997)
(a) Cancellation, as used in this clause, means that the Government
is canceling its requirements for all supplies or services in program
years subsequent to that in which notice of cancellation is provided.
Cancellation shall occur by the date or within the time period specified
in the Schedule, unless a later date is agreed to, if the Contracting
Officer (1) notifies the Contractor that funds are not available for
contract performance for any subsequent program year, or (2) fails to
notify the Contractor that funds are
[[Page 144]]
available for performance of the succeeding program year requirement.
(b) Except for cancellation under this clause or termination under
the Default clause, any reduction by the Contracting Officer in the
requirements of this contract shall be considered a termination under
the Termination for Convenience of the Government clause.
(c) If cancellation under this clause occurs, the Contractor will be
paid a cancellation charge not over the cancellation ceiling specified
in the Schedule as applicable at the time of cancellation.
(d) The cancellation charge will cover only (1) costs (i) incurred
by the Contractor and/or subcontractor, (ii) reasonably necessary for
performance of the contract, and (iii) that would have been equitably
amortized over the entire multiyear contract period but, because of the
cancellation, are not so amortized, and (2) a reasonable profit or fee
on the costs.
(e) The cancellation charge shall be computed and the claim made for
it as if the claim were being made under the Termination for Convenience
of the Government clause of this contract. The Contractor shall submit
the claim promptly but no later than 1 year from the date (1) of
notification of the nonavailability of funds, or (2) specified in the
Schedule by which notification of the availability of additional funds
for the next succeeding program year is required to be issued, whichever
is earlier, unless extensions in writing are granted by the Contracting
Officer.
(f) The Contractor's claim may include--
(1) Reasonable nonrecurring costs (see Subpart 15.4 of the Federal
Acquisition Regulation) which are applicable to and normally would have
been amortized in all supplies or services which are multiyear
requirements;
(2) Allocable portions of the costs of facilities acquired or
established for the conduct of the work, to the extent that it is
impracticable for the Contractor to use the facilities in its commercial
work, and if the costs are not charged to the contract through overhead
or otherwise depreciated;
(3) Costs incurred for the assembly, training, and transportation to
and from the job site of a specialized work force; and
(4) Costs not amortized solely because the cancellation had
precluded anticipated benefits of Contractor or subcontractor learning.
(g) The claim shall not include--
(1) Labor, material, or other expenses incurred by the Contractor or
subcontractors for performance of the canceled work;
(2) Any cost already paid to the Contractor;
(3) Anticipated profit or unearned fee on the canceled work; or
(4) For service contracts, the remaining useful commercial life of
facilities. Useful commercial life means the commercial utility of the
facilities rather than their physical life with due consideration given
to such factors as location of facilities, their specialized nature, and
obsolescence.
(h) This contract may include an Option clause with the period for
exercising the option limited to the date in the contract for
notification that funds are available for the next succeeding program
year. If so, the Contractor agrees not to include in option quantities
any costs of a startup or nonrecurring nature that have been fully set
forth in the contract. The Contractor further agrees that the option
quantities will reflect only those recurring costs and a reasonable
profit or fee necessary to furnish the additional option quantities.
(i) Quantities added to the original contract through the Option
clause of this contract shall be included in the quantity canceled for
the purpose of computing allowable cancellation charges.
(End of clause)
[61 FR 39207, July 26, 1996, as amended at 62 FR 51271, Sept. 30, 1997]
52.217-3 Evaluation Exclusive of Options.
As prescribed in 17.208(a), insert a provision substantially the
same as the following in solicitations when the solicitation includes an
option clause and does not include one of the provisions prescribed in
17.208 (b) or (c):
Evaluation Exclusive of Options (OCT 1984)
The Government will evaluate offers for award purposes by including
only the price for the basic requirement; i.e., options will not be
included in the evaluation for award purposes.
(End of provision)
52.217-4 Evaluation of Option Exercised at Time of Contract Award.
As prescribed in 17.208(b), insert a provision substantially the
same as the following:
Evaluation of Options Exercised at Time of Contract Award (JUN 1988)
Except when it is determined in accordance with FAR 17.206(b) not to
be in the Government's best interests, the Government will evaluate the
total price for the basic requirement together with any option(s)
exercised at the time of award.
[[Page 145]]
(End of provision)
[53 FR 17860, May 18, 1988]
52.217-5 Evaluation of Options.
As prescribed in 17.208(c), insert a provision substantially the
same as the following:
Evaluation of Options (JUL 1990)
Except when it is determined in accordance with FAR 17.206(b) not to
be in the Government's best interests, the Government will evaluate
offers for award purposes 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).
(End of provision)
[53 FR 17860, May 18, 1988, as amended at 55 FR 25532, June 21, 1990; 69
FR 59704, Oct. 5, 2004]
52.217-6 Option for Increased Quantity.
As prescribed in 17.208(d), insert a clause substantially the same
as the following:
Option for Increased Quantity (MAR 1989)
The Government may increase the quantity of supplies called for in
the Schedule at the unit price specified. The Contracting Officer may
exercise the option by written notice to the Contractor within ____
[insert in the clause the period of time in which the Contracting
Officer has to exercise the option]. Delivery of the added items shall
continue at the same rate as the like items called for under the
contract, unless the parties otherwise agree.
(End of clause)
[54 FR 5058, Jan. 31, 1989]
52.217-7 Option for Increased Quantity--Separately Priced Line Item.
As prescribed in 17.208(e), insert a clause substantially the same
as the following:
Option for Increased Quantity--Separately Priced Line Item (MAR 1989)
The Government may require the delivery of the numbered line item,
identified in the Schedule as an option item, in the quantity and at the
price stated in the Schedule. The Contracting Officer may exercise the
option by written notice to the Contractor within ____ [insert in the
clause the period of time in which the Contracting Officer has to
exercise the option]. Delivery of added items shall continue at the same
rate that like items are called for under the contract, unless the
parties otherwise agree.
(End of clause)
[54 FR 5058, Jan. 31, 1989]
52.217-8 Option To Extend Services.
As prescribed in 17.208(f), insert a clause substantially the same
as the following:
Option To Extend Services (NOV 1999)
The Government may require continued performance of any services
within the limits and at the rates specified in the contract. These
rates may be adjusted only as a result of revisions to prevailing labor
rates provided by the Secretary of Labor. The option provision may be
exercised more than once, but the total extention of performance
hereunder shall not exceed 6 months. The Contracting Officer may
exercise the option by written notice to the Contractor within ___
[insert the period of time within which the Contracting Officer may
exercise the option].
(End of clause)
[54 FR 29283, July 11, 1989, as amended at 64 FR 51843, Sept. 24, 1999]
52.217-9 Option To Extend the Term of the Contract.
As prescribed in 17.208(g), insert a clause substantially the same
as the following:
Option To Extend the Term of the Contract (MAR 2000)
(a) The Government may extend the term of this contract by written
notice to the Contractor within ___ [insert the period of time within
which the Contracting Officer may exercise the option]; provided that
the Government gives the Contractor a preliminary written notice of its
intent to extend at least __ days [60 days unless a different number of
days is inserted] before the contract expires. The preliminary notice
does not commit the Government to an extension.
(b) If the Government exercises this option, the extended contract
shall be considered to include this option clause.
(c) The total duration of this contract, including the exercise of
any options under this clause, shall not exceed __ (months) (years).
[[Page 146]]
(End of clause)
[54 FR 5058, Jan. 31, 1989, as amended at 64 FR 51843, Sept. 24, 1999;
65 FR 16286, Mar. 27, 2000]
52.218 [Reserved]
52.219-1 Small Business Program Representations.
As prescribed in 19.309(a)(1), insert the following provision:
Small Business Program Representations (OCT 2014)
(a) Definitions. As used in this provision--
Economically disadvantaged women-owned small business (EDWOSB)
concern means a small business concern that is at least 51 percent
directly and unconditionally owned by, and the management and daily
business operations of which are controlled by, one or more women who
are citizens of the United States and who are economically disadvantaged
in accordance with 13 CFR part 127. It automatically qualifies as a
women-owned small business concern eligible under the WOSB Program.
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
service-disabled veteran with permanent and severe disability, the
spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a concern, including its affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and qualified
as a small business under the criteria in 13 CFR Part 121 and the size
standard in paragraph (b) of this provision.
Small disadvantaged business concern, consistent with 13 CFR
124.1002, means a small business concern under the size standard
applicable to the acquisition, that--
(1) Is at least 51 percent unconditionally and directly owned (as
defined at 13 CFR 124.105) by--
(i) One or more socially disadvantaged (as defined at 13 CFR
124.103) and economically disadvantaged (as defined at 13 CFR 124.104)
individuals who are citizens of the United States, and
(ii) Each individual claiming economic disadvantage has a net worth
not exceeding $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); and
(2) The management and daily business operations of which are
controlled (as defined at 13 CFR 124.106) by individuals who meet the
criteria in paragraphs (1)(i) and (ii) of this definition.
Veteran-owned small business concern means a small business
concern--
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
Women-owned small business (WOSB) concern eligible under the WOSB
Program (in accordance with 13 CFR part 127), means a small business
concern that is at least 51 percent directly and unconditionally owned
by, and the management and daily business operations of which are
controlled by, one or more women who are citizens of the United States.
(b)(1) The North American Industry Classification System (NAICS)
code for this acquisition is--______[insert NAICS code].
(2) The small business size standard is ____
[insert size standard].
(3) The small business size standard for a concern which submits an
offer in its own name, other than on a construction or service contract,
but which proposes to furnish a product which it did not itself
manufacture, is 500 employees.
(c) Representations. (1) The offeror represents as part of its offer
that it [square] is, [square] is not a small business concern.
(2) [Complete only if the offeror represented itself as a small
business concern in paragraph (c)(1) of this provision.] The offeror
represents that it [square] is, [square] is not, a small disadvantaged
business concern as defined in 13 CFR 124.1002.
(3) [Complete only if the offeror represented itself as a small
business concern in paragraph (c)(1) of this provision.] The offeror
represents as part of its offer that it [square] is, [square] is not a
women-owned small business concern.
[[Page 147]]
(4) Women-owned small business (WOSB) concern eligible under the
WOSB Program. [Complete only if the offeror represented itself as a
women-owned small business concern in paragraph (c)(3) of this
provision.] The offeror represents as part of its offer that--
(i) It [square] is, [square] is not a WOSB concern eligible under
the WOSB Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It [square] is, [square] is not a joint venture that complies
with the requirements of 13 CFR part 127, and the representation in
paragraph (c)(4)(i) of this provision is accurate for each WOSB concern
eligible under the WOSB Program participating in the joint venture. [The
offeror shall enter the name or names of the WOSB concern eligible under
the WOSB Program and other small businesses that are participating in
the joint venture: ____.] Each WOSB concern eligible under the WOSB
Program participating in the joint venture shall submit a separate
signed copy of the WOSB representation.
(5) Economically disadvantaged women-owned small business (EDWOSB)
concern. [Complete only if the offeror represented itself as a women-
owned small business concern eligible under the WOSB Program in (c)(4)
of this provision.] The offeror represents as part of its offer that--
(i) It [square] is, [square] is not an EDWOSB concern eligible under
the WOSB Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It [square] is, [square] is not a joint venture that complies
with the requirements of 13 CFR part 127, and the representation in
paragraph (c)(5)(i) of this provision is accurate for each EDWOSB
concern participating in the joint venture. [The offeror shall enter the
name or names of the EDWOSB concern and other small businesses that are
participating in the joint venture: ____.] Each EDWOSB concern
participating in the joint venture shall submit a separate signed copy
of the EDWOSB representation.
(6) [Complete only if the offeror represented itself as a small
business concern in paragraph (c)(1) of this provision.] The offeror
represents as part of its offer that it [square] is, [square] is not a
veteran-owned small business concern.
(7) [Complete only if the offeror represented itself as a veteran-
owned small business concern in paragraph (c)(6) of this provision.] The
offeror represents as part of its offer that it [square] is, [square] is
not a service-disabled veteran-owned small business concern.
(8) [Complete only if the offeror represented itself as a small
business concern in paragraph (c)(1) of this provision.] The offeror
represents, as part of its offer, that--
(i) It [square] is, [square] is not a HUBZone small business concern
listed, on the date of this representation, on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration, and no material changes in ownership and control,
principal office, or HUBZone employee percentage have occurred since it
was certified in accordance with 13 CFR Part 126; and
(ii) It [square] is, [square] is not a HUBZone joint venture that
complies with the requirements of 13 CFR Part 126, and the
representation in paragraph (c)(8)(i) of this provision is accurate for
each HUBZone small business concern participating in the HUBZone joint
venture. [The offeror shall enter the names of each of the HUBZone small
business concerns participating in the HUBZone joint venture: ____.]
Each HUBZone small business concern participating in the HUBZone joint
venture shall submit a separate signed copy of the HUBZone
representation.
(d) Notice. (1) If this solicitation is for supplies and has been
set aside, in whole or in part, for small business concerns, then the
clause in this solicitation providing notice of the set-aside contains
restrictions on the source of the end items to be furnished.
(2) Under 15 U.S.C. 645(d), any person who misrepresents a firm's
status as a business concern that is small, HUBZone small, small
disadvantaged, service-disabled veteran-owned small, economically
disadvantaged women-owned small, or women-owned small eligible under the
WOSB Program in order to obtain a contract to be awarded under the
preference programs established pursuant to section 8, 9, 15, 31, and 36
of the Small Business Act or any other provision of Federal law that
specifically references section 8(d) for a definition of program
eligibility, shall--
(i) Be punished by imposition of fine, imprisonment, or both;
(ii) Be subject to administrative remedies, including suspension and
debarment; and
(iii) Be ineligible for participation in programs conducted under
the authority of the Act.
(End of provision)
Alternate I (SEP 2015). As prescribed in 19.309(a)(2), add the
following paragraph (c)(9) to the basic provision:
(9) [Complete if offeror represented itself as disadvantaged in
paragraph (c)(2) of this provision. The offeror shall check the category
in which its ownership falls:
__ Black American.
__ Hispanic American.
__ Native American (American Indians, Eskimos, Aleuts, or Native
Hawaiians).
[[Page 148]]
__ Asian-Pacific American (persons with origins from Burma,
Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan,
Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, Republic of
Palau, Republic of the Marshall Islands, Federated States of Micronesia,
the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao,
Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, or Nauru).
__ Subcontinent Asian (Asian-Indian) American (persons with origins
from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives
Islands, or Nepal).
__ Individual/concern, other than one of the preceding.
[60 FR 48264, Sept. 18, 1995]
Editorial Note: For Federal Register citations affecting section
52.219-1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
52.219-2 Equal Low Bids.
As prescribed in 19.309(b), insert the following provision:
Equal Low Bids (OCT 1995)
(a) This provision applies to small business concerns only.
(b) The bidder's status as a labor surplus area (LSA) concern may
affect entitlement to award in case of tie bids. If the bidder wishes to
be considered for this priority, the bidder must identify, in the
following space, the LSA in which the costs to be incurred on account of
manufacturing or production (by the bidder or the first-tier
subcontractors) amount to more than 50 percent of the contract price.
________________________________________________________________________
________________________________________________________________________
(c) Failure to identify the labor surplus areas as specified in
paragraph (b) of this provision will preclude the bidder from receiving
priority consideration. If the bidder is awarded a contract as a result
of receiving priority consideration under this provision and would not
have otherwise received award, the bidder shall perform the contract or
cause the contract to be performed in accordance with the obligations of
an LSA concern.
(End of provision)
[60 FR 48265, Sept. 18, 1995, as amended at 63 FR 35725, June 30, 1998;
63 FR 70274, Dec. 18, 1998; 69 FR 25279, May 5, 2004; 76 FR 18314, Apr.
1, 2011; 79 FR 61753, Oct. 14, 2014]
52.219-3 Notice of HUBZone Set-Aside or Sole Source Award.
As prescribed in 19.1309(a), insert the following clause:
Notice of HUBZone Set-Aside or Sole Source Award (NOV 2011)
(a) Definitions. See 13 CFR 125.6(e) for definitions of terms used
in paragraph (c).
(b) Applicability. This clause applies only to--
(1) Contracts that have been set aside or reserved for, or awarded
on a sole source basis to, HUBZone small business concerns;
(2) Part or parts of a multiple-award contract that have been set
aside for HUBZone small business concerns; and
(3) Orders set-aside for HUBZone small business concerns under
multiple-award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F).
(c) General. (1) Offers are solicited only from HUBZone small
business concerns. Offers received from concerns that are not HUBZone
small business concerns will not be considered.
(2) Any award resulting from this solicitation will be made to a
HUBZone small business concern.
(d) Agreement. A HUBZone small business concern agrees that in the
performance of the contract, in the case of a contract for--
(1) Services (except construction), at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern or employees of other HUBZone small business concerns;
(2) Supplies (other than acquisition from a nonmanufacturer of the
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed by the concern or other HUBZone
small business concerns;
(3) General construction. (i) At least 15 percent of the cost of
contract performance to be incurred for personnel will be spent on the
HUBZone prime contractor's employees;
(ii) At least 50 percent of the cost of the contract performance to
be incurred for personnel will be spent on the HUBZone prime
contractor's employees or on a combination of the HUBZone prime
contractor's employees and employees of HUBZone small business concern
subcontractors; and
(iii) No more than 50 percent of the cost of contract performance to
be incurred for personnel will be subcontracted to concerns that are not
HUBZone small business concerns; or
(4) Construction by special trade contractors. (i) At least 25
percent of the cost of contract performance to be incurred for personnel
will be spent on the HUBZone prime contractor's employees;
[[Page 149]]
(ii) At least 50 percent of the cost of the contract performance to
be incurred for personnel will be spent on the HUBZone prime
contractor's employees or on a combination of the HUBZone prime
contractor's employees and employees of HUBZone small business concern
subcontractors;
(iii) No more than 50 percent of the cost of contract performance to
be incurred for personnel will be subcontracted to concerns that are not
HUBZone small business concerns.
(e) A HUBZone joint venture agrees that, in the performance of the
contract, the applicable percentage specified in paragraph (d) of this
clause will be performed by the aggregate of the HUBZone small business
participants.
(f)(1) When the total value of the contract exceeds $25,000, a
HUBZone small business concern nonmanufacturer agrees to furnish in
performing this contract only end items manufactured or produced by
HUBZone small business concern manufacturers.
(2) When the total value of the contract is equal to or less than
$25,000, a HUBZone small business concern nonmanufacturer may provide
end items manufactured by other than a HUBZone small business concern
manufacturer provided the end items are produced or manufactured in the
United States.
(3) Paragraphs (f)(1) and (f)(2) of this section do not apply in
connection with construction or service contracts.
(g) Notice. The HUBZone small business offeror acknowledges that a
prospective HUBZone awardee must be a HUBZone small business concern at
the time of award of this contract. The HUBZone offeror shall provide
the Contracting Officer a copy of the notice required by 13 CFR 126.501
if material changes occur before contract award that could affect its
HUBZone eligibility. If the apparently successful HUBZone offeror is not
a HUBZone small business concern at the time of award of this contract,
the Contracting Officer will proceed to award to the next otherwise
successful HUBZone small business concern or other offeror.
(End of clause)
Alternate I (NOV 2011). As prescribed in 19.1309(a)(1), substitute
the following paragraphs (d)(3) and (d)(4) for paragraphs (d)(3) and
(d)(4) of the basic clause:
(d)(3) General construction, at least 15 percent of the cost of the
contract performance to be incurred for personnel will be spent on the
concern's employees; or
(d)(4) Construction by special trade contractors, at least 25
percent of the cost of the contract performance to be incurred for
personnel will be spent on the concern's employees.
[63 FR 70274, Dec. 18, 1998, as amended at 75 FR 77732, Dec. 13, 2010;
76 FR 68036, Nov. 2, 2011]
52.219-4 Notice of Price Evaluation Preference for HUBZone Small
Business Concerns.
As prescribed in 19.1309(b), insert the following clause:
Notice of Price Evaluation preference for HUBZone Small Business
Concerns (OCT 2014)
(a) Definitions. See 13 CFR 125.6(e) for definitions of terms used
in paragraph (d).
(b) Evaluation preference. (1) Offers will be evaluated by adding a
factor of 10 percent to the price of all offers, except--
(i) Offers from HUBZone small business concerns that have not waived
the evaluation preference; and
(ii) Otherwise successful offers from small business concerns.
(2) The factor of 10 percent shall be applied on a line item basis
or to any group of items on which award may be made. Other evaluation
factors described in the solicitation shall be applied before
application of the factor.
(3) When the two highest rated offerors are a HUBZone small business
concern and a large business, and the evaluated offer of the HUBZone
small business concern is equal to the evaluated offer of the large
business after considering the price evaluation preference, award will
be made to the HUBZone small business concern.
(c) Waiver of evaluation preference. A HUBZone small business
concern may elect to waive the evaluation preference, in which case the
factor will be added to its offer for evaluation purposes. The
agreements in paragraphs (d) and (e) of this clause do not apply if the
offeror has waived the evaluation preference.
[squ] Offeror elects to waive the evaluation preference.
(d) Agreement. A HUBZone small business concern agrees that in the
performance of the contract, in the case of a contract for
(1) Services (except construction), at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern or employees of other HUBZone small business concerns;
(2) Supplies (other than procurement from a nonmanufacturer of such
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed by the concern or other HUBZone
small business concerns;
(3) General construction. (i) At least 15 percent of the cost of
contract performance to
[[Page 150]]
be incurred for personnel will be spent on the prime contractor's
employees;
(ii) At least 50 percent of the cost of the contract performance to
be incurred for personnel will be spent on the prime contractor's
employees or on a combination of the prime contractor's employees and
employees of HUBZone small business concern subcontractors;
(iii) No more than 50 percent of the cost of contract performance to
be incurred for personnel will be subcontracted to concerns that are not
HUBZone small business concerns; or
(4) Construction by special trade contractors. (i) At least 25
percent of the cost of contract performance to be incurred for personnel
will be spent on the prime contractor's employees;
(ii) At least 50 percent of the cost of the contract performance to
be incurred for personnel will be spent on the prime contractor's
employees or on a combination of the prime contractor's employees and
employees of HUBZone small business concern subcontractors;
(iii) No more than 50 percent of the cost of contract performance to
be incurred for personnel will be subcontracted to concerns that are not
HUBZone small business concerns.
(e) A HUBZone joint venture agrees that the aggregate of the HUBZone
small business concerns to the joint venture, not each concern
separately, will perform the applicable percentage of work requirements.
(f)(1) When the total value of the contract exceeds $25,000, a
HUBZone small business concern nonmanufacturer agrees to furnish in
performing this contract only end items manufactured or produced by
HUBZone small business concern manufacturers.
(2) When the total value of the contract is equal to or less than
$25,000, a HUBZone small business concern nonmanufacturer may provide
end items manufactured by other than a HUBZone small business concern
manufacturer provided the end items are produced or manufactured in the
United States.
(3) Paragraphs (f)(1) and (f)(2) of this section do not apply in
connection with construction or service contracts.
(g) Notice. The HUBZone small business offeror acknowledges that a
prospective HUBZone awardee must be a HUBZone small business concern at
the time of award of this contract. The HUBZone offeror shall provide
the Contracting Officer a copy of the notice required by 13 CFR 126.501
if material changes occur before contract award that could affect its
HUBZone eligibility. If the apparently successful HUBZone offeror is not
a HUBZone small business concern at the time of award of this contract,
the Contracting Officer will proceed to award to the next otherwise
successful HUBZone small business concern or other offeror.
(End of clause)
Alternate I (JAN 2011). As prescribed in 19.1309(b)(1), substitute
the following paragraphs (d)(3) and (d)(4) for paragraphs (d)(3) and
(d)(4) of the basic clause:
(3) General construction, at least 15 percent of the cost of the
contract performance to be incurred for personnel will be spent on the
concern's employees; or
(4) Construction by special trade contractors, at least 25 percent
of the cost of the contract performance to be incurred for personnel
will be spent on the concern's employees.
[63 FR 70275, Dec. 18, 1998, as amended at 69 FR 59704, Oct. 5, 2004; 70
FR 33661, June 8, 2005; 75 FR 77732, Dec. 13, 2010; 79 FR 61753, Oct.
14, 2014]
52.219-5 [Reserved]
52.219-6 Notice of Total Small Business Set-Aside.
As prescribed in 19.508(c), insert the following clause:
Notice of Total Small Business Set-Aside (NOV 2011)
(a) Definition.
Small business concern, as used in this clause, means a concern,
including its affiliates, that is independently owned and operated, not
dominant in the field of operation in which it is bidding on Government
contracts, and qualified as a small business under the size standards in
this solicitation.
(b) Applicability. This clause applies only to--
(1) Contracts that have been totally set aside or reserved for small
business concerns; and
(2) Orders set aside for small business concerns under multiple-
award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F).
(c) General. (1) Offers are solicited only from small business
concerns. Offers received from concerns that are not small business
concerns shall be considered nonresponsive and will be rejected.
(2) Any award resulting from this solicitation will be made to a
small business concern.
(d) Agreement. A small business concern submitting an offer in its
own name shall furnish, in performing the contract, only end items
manufactured or produced by small business concerns in the United States
or its outlying areas. If this procurement is processed under simplified
acquisition procedures
[[Page 151]]
and the total amount of this contract does not exceed $25,000, a small
business concern may furnish the product of any domestic firm. This
paragraph does not apply to construction or service contracts.
(End of clause)
Alternate I (NOV 2011). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no small business manufacturers or processors in the Federal
market in accordance with 19.502-2(c), delete paragraph (d).
Alternate II (NOV 2011). As prescribed in 19.508(c), substitute the
following paragraph (c) for paragraph (c) of the basic clause:
(c) General. (1) Offers are solicited only from small business
concerns and Federal Prison Industries, Inc. (FPI). Offers received from
concerns that are not small business concerns or FPI shall be considered
nonresponsive and will be rejected.
(2) Any award resulting from this solicitation will be made to
either a small business concern or FPI.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 25069, June 12, 1989;
60 FR 48265, Sept. 18, 1995; 61 FR 39209, July 26, 1996; 68 FR 28085,
May 22, 2003; 69 FR 16150, Mar. 26, 2004; 76 FR 68036, Nov. 2, 2011]
52.219-7 Notice of Partial Small Business Set-Aside.
As prescribed in 19.508(d), insert the following clause:
Notice of Partial Small Business Set-Aside (JUN 2003)
(a) Definitions. Small business concern, as used in this clause,
means a concern, including its affiliates, that is independently owned
and operated, not dominant in the field of operation in which it is
bidding on Government contracts, and qualified as a small business under
the size standards in this solicitation.
(b) General. (1) A portion of this requirement, identified elsewhere
in this solicitation, has been set aside for award to one or more small
business concerns.
(2) Offers on the non-set-aside portion will be evaluated first and
award will be made on that portion in accordance with the provisions of
this solicitation.
(3) The set-aside portion will be awarded at the highest unit
price(s) in the contract(s) for the non-set-aside portion, adjusted to
reflect transportation and other costs appropriate for the selected
contractor(s).
(4) The contractor(s) for the set-aside portion will be selected
from among the small business concerns that submitted responsive offers
on the non-set-aside portion. Negotiations will be conducted with the
concern that submitted the lowest responsive offer on the non-set-aside
portion. If the negotiations are not successful or if only part of the
set-aside portion is awarded to that concern, negotiations will be
conducted with the concern that submitted the second-lowest responsive
offer on the non-set-aside portion. This process will continue until a
contract or contracts are awarded for the entire set-aside portion.
(c) Agreement. For the set-aside portion of the acquisition, a small
business concern submitting an offer in its own name shall furnish, in
performing the contract, only end items manufactured or produced by
small business concerns in the United States or its outlying areas. If
this procurement is processed under simplified acquisition procedures
and the total amount of this contract does not exceed $25,000, a small
business concern may furnish the product of any domestic firm. This
paragraph does not apply to construction or service contracts.
(End of clause)
Alternate I (OCT 1995). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no small business manufacturers or processors in the Federal
market in accordance with 19.502-2(c), delete paragraph (c).
Alternate II (MAR 2004). As prescribed in 19.508(d), add the
following paragraph (d) to the basic clause:
(d) Notwithstanding paragraph (b) of this clause, offers from
Federal Prison Industries, Inc., will be solicited and considered for
both the set-aside and non-set-aside portion of this requirement.
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 25069, June 12, 1989;
55 FR 52798, Dec. 21, 1990; 60 FR 48265, Sept. 18, 1995; 61 FR 39209,
July 26, 1996; 68 FR 28085, May 22, 2003; 69 FR 16150, Mar. 26, 2004]
52.219-8 Utilization of Small Business Concerns.
As prescribed in 19.708(a), insert the following clause:
Utilization of Small Business Concerns (NOV 2016)
(a) Definitions. As used in this contract--
HUBZone small business concern means a small business concern,
certified by the
[[Page 152]]
Small Business Administration, that appears on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration.
Service-disabled veteran-owned small business concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
service-disabled veteran with permanent and severe disability, the
spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
Small business concern means a small business as defined pursuant to
Section 3 of the Small Business Act and relevant regulations promulgated
pursuant thereto.
Small disadvantaged business concern, consistent with 13 CFR
124.1002, means a small business concern under the size standard
applicable to the acquisition, that--
(1) Is at least 51 percent unconditionally and directly owned (as
defined at 13 CFR 124.105) by--
(i) One or more socially disadvantaged (as defined at 13 CFR
124.103) and economically disadvantaged (as defined at 13 CFR 124.104)
individuals who are citizens of the United States; and
(ii) Each individual claiming economic disadvantage has a net worth
not exceeding $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); and
(2) The management and daily business operations of which are
controlled (as defined at 13.CFR 124.106) by individuals, who meet the
criteria in paragraphs (1)(i) and (ii) of this definition.
Veteran-owned small business concern means a small business
concern--
(1) Not less than 51 percent of which is owned by one or more
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any
publicly owned business, not less than 51 percent of the stock of which
is owned by one or more veterans; and
(2) The management and daily business operations of which are
controlled by one or more veterans.
Women-owned small business concern means a small business concern--
(1) That is at least 51 percent owned by one or more women, or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(2) Whose management and daily business operations are controlled by
one or more women.
(b) It is the policy of the United States that small business
concerns, veteran-owned small business concerns, service-disabled
veteran-owned small business concerns, HUBZone small business concerns,
small disadvantaged business concerns, and women-owned small business
concerns shall have the maximum practicable opportunity to participate
in performing contracts let by any Federal agency, including contracts
and subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the United
States that its prime contractors establish procedures to ensure the
timely payment of amounts due pursuant to the terms of their
subcontracts with small business concerns, veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business concerns,
and women-owned small business concerns.
(c) The Contractor hereby agrees to carry out this policy in the
awarding of subcontracts to the fullest extent consistent with efficient
contract performance. The Contractor further agrees to cooperate in any
studies or surveys as may be conducted by the United States Small
Business Administration or the awarding agency of the United States as
may be necessary to determine the extent of the Contractor's compliance
with this clause.
(d)(1) The Contractor may accept a subcontractor's written
representations of its size and socioeconomic status as a small
business, small disadvantaged business, veteran-owned small business,
service-disabled veteran-owned small business, or a women-owned small
business if the subcontractor represents that the size and socioeconomic
status representations with its offer are current, accurate, and
complete as of the date of the offer for the subcontract.
(2) The Contractor may accept a subcontractor's representations of
its size and socioeconomic status as a small business, small
disadvantaged business, veteran-owned small business, service-disabled
veteran-owned small business, or a women-owned small business in the
System for Award Management (SAM) if--
(i) The subcontractor is registered in SAM; and
(ii) The subcontractor represents that the size and socioeconomic
status representations made in SAM are current, accurate and complete as
of the date of the offer for the subcontract.
(3) The Contractor may not require the use of SAM for the purposes
of representing size or socioeconomic status in connection with a
subcontract.
[[Page 153]]
(4) In accordance with 13 CFR 121.411, 124.1015, 125.29, 126.900,
and 127.700, a contractor acting in good faith is not liable for
misrepresentations made by its subcontractors regarding the
subcontractor's size or socioeconomic status.
(5) The Contractor shall confirm that a subcontractor representing
itself as a HUBZone small business concern is certified by SBA as a
HUBZone small business concern by accessing the System for Award
Management database or by contacting the SBA. Options for contacting the
SBA include--
(i) HUBZone small business database search application Web page at
http://dsbs.sba.gov/dsbs/search/dsp_searchhubzone.cfm; or http://
www.sba.gov/hubzone;
(ii) In writing to the Director/HUB, U.S. Small Business
Administration, 409 3rd Street, SW., Washington DC 20416; or
(iii) The SBA HUBZone Help Desk at [email protected].
(End of clause)
[63 FR 70275, Dec. 18, 1998, as amended at 64 FR 3196, Jan. 20, 1999; 64
FR 10549, Mar. 4, 1999; 64 FR 32749, June 17, 1999; 64 FR 36224, July 2,
1999; 65 FR 60546, Oct. 11, 2000; 69 FR 25279, May 5, 2004; 75 FR 77739,
Dec. 13, 2010; 75 FR 77733, Dec. 13, 2010; 78 FR 37683, June 21, 2013;
79 FR 24217, Apr. 29, 2014; 79 FR 61753, Oct. 14, 2014; 81 FR 45846,
July 14, 2016]
Effective Date Note: At 83 FR 48700, Sept. 26, 2018, section 52.219-
8 was amended by revising the date of the clause and removing from
paragraph (d)(5) introductory text ``database'', effective Oct. 26,
2018. For the convenience of the user, the added and revised text is set
forth as follows:
52.219-8 Utilization of Small Business Concerns.
* * * * *
Utilization of Small Business Concerns (Oct 2018)
* * * * *
52.219-9 Small Business Subcontracting Plan.
As prescribed in 19.708(b), insert the following clause:
Small Business Subcontracting Plan (AUG 2018)
(a) This clause does not apply to small business concerns.
(b) Definitions. As used in this clause--
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group Corporation organized
under the laws of the State of Alaska in accordance with the Alaska
Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.) and
which is considered a minority and economically disadvantaged concern
under the criteria at 43 U.S.C. 1626(e)(1). This definition also
includes ANC direct and indirect subsidiary corporations, joint
ventures, and partnerships that meet the requirements of 43 U.S.C.
1626(e)(2).
Commercial item means a product or service that satisfies the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation.
Commercial plan means a subcontracting plan (including goals) that
covers the offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or a
portion thereof (e.g., division, plant, or product line).
Electronic Subcontracting Reporting System (eSRS) means the
Governmentwide, electronic, web-based system for small business
subcontracting program reporting. The eSRS is located at http://
www.esrs.gov.
Indian tribe means any Indian tribe, band, group, pueblo, or
community, including native villages and native groups (including
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined
in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.),
that is recognized by the Federal Government as eligible for services
from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c).
This definition also includes Indian-owned economic enterprises that
meet the requirements of 25 U.S.C. 1452(e).
Individual subcontracting plan means a subcontracting plan that
covers the entire contract period (including option periods), applies to
a specific contract, and has goals that are based on the offeror's
planned subcontracting in support of the specific contract, except that
indirect costs incurred for common or joint purposes may be allocated on
a prorated basis to the contract.
Master subcontracting plan means a subcontracting plan that contains
all the required elements of an individual subcontracting plan, except
goals, and may be incorporated into individual subcontracting plans,
provided the master subcontracting plan has been approved.
Reduced payment means a payment that is for less than the amount
agreed upon in a subcontract in accordance with its terms and
conditions, for supplies and services for which the Government has paid
the prime contractor.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
[[Page 154]]
Total contract dollars means the final anticipated dollar value,
including the dollar value of all options.
Untimely payment means a payment to a subcontractor that is more
than 90 days past due under the terms and conditions of a subcontract
for supplies and services for which the Government has paid the prime
contractor.
(c)(1) The Offeror, upon request by the Contracting Officer, shall
submit and negotiate a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns. If the Offeror is submitting an individual
subcontracting plan, the plan must separately address subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns, with a
separate part for the basic contract and separate parts for each option
(if any). The subcontracting plan shall be included in and made a part
of the resultant contract. The subcontracting plan shall be negotiated
within the time specified by the Contracting Officer. Failure to submit
and negotiate the subcontracting plan shall make the Offeror ineligible
for award of a contract.
(2)(i) The Contractor may accept a subcontractor's written
representations of its size and socioeconomic status as a small
business, small disadvantaged business, veteran-owned small business,
service-disabled veteran-owned small business, or a women-owned small
business if the subcontractor represents that the size and socioeconomic
status representations with its offer are current, accurate, and
complete as of the date of the offer for the subcontract.
(ii) The Contractor may accept a subcontractor's representations of
its size and socioeconomic status as a small business, small
disadvantaged business, veteran-owned small business, service-disabled
veteran-owned small business, or a women-owned small business in the
System for Award Management (SAM) if--
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and socioeconomic
status representations made in SAM are current, accurate and complete as
of the date of the offer for the subcontract.
(iii) The Contractor may not require the use of SAM for the purposes
of representing size or socioeconomic status in connection with a
subcontract.
(iv) In accordance with 13 CFR 121.411, 124.1015, 125.29, 126.900,
and 127.700, a contractor acting in good faith is not liable for
misrepresentations made by its subcontractors regarding the
subcontractor's size or socioeconomic status.
(d) The Offeror's subcontracting plan shall include the following:
(1) Separate goals, expressed in terms of total dollars
subcontracted, and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, and women-owned small business concerns as
subcontractors. For individual subcontracting plans, and if required by
the Contracting Officer, goals shall also be expressed in terms of
percentage of total contract dollars, in addition to the goals expressed
as a percentage of total subcontract dollars. The Offeror shall include
all subcontracts that contribute to contract performance, and may
include a proportionate share of products and services that are normally
allocated as indirect costs. In accordance with 43 U.S.C. 1626--
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted
towards the subcontracting goals for small business and small
disadvantaged business concerns, regardless of the size or Small
Business Administration certification status of the ANC or Indian tribe;
and
(ii) Where one or more subcontractors are in the subcontract tier
between the prime Contractor and the ANC or Indian tribe, the ANC or
Indian tribe shall designate the appropriate Contractor(s) to count the
subcontract towards its small business and small disadvantaged business
subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor that
awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one Contractor
to count the subcontract toward its goals, the ANC or Indian tribe shall
designate only a portion of the total subcontract award to each
Contractor. The sum of the amounts designated to various Contractors
cannot exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the prime Contractor, and the
subcontractors in between the prime Contractor and the ANC or Indian
tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the ANC's
or the Indian tribe's written designation within 30 days of the
subcontract award, the Contractor that awarded the subcontract to the
ANC or Indian tribe will be considered the designated Contractor.=
(2) A statement of--
[[Page 155]]
(i) Total dollars planned to be subcontracted for an individual
subcontracting plan; or the Offeror's total projected sales, expressed
in dollars, and the total value of projected subcontracts to support the
sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-disabled
veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes); and
(vii) Total dollars planned to be subcontracted to women-owned small
business concerns.
(3) A description of the principal types of supplies and services to
be subcontracted, and an identification of the types planned for
subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the subcontracting
goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential sources
for solicitation purposes (e.g., existing company source lists, SAM,
veterans service organizations, the National Minority Purchasing Council
Vendor Information Service, the Research and Information Division of the
Minority Business Development Agency in the Department of Commerce, or
small, HUBZone, small disadvantaged, and women-owned small business
trade associations). A firm may rely on the information contained in SAM
as an accurate representation of a concern's size and ownership
characteristics for the purposes of maintaining a small, veteran-owned
small, service-disabled veteran-owned small, HUBZone small, small
disadvantaged, and women-owned small business source list. Use of SAM as
its source list does not relieve a firm of its responsibilities (e.g.,
outreach, assistance, counseling, or publicizing subcontracting
opportunities) in this clause.
(6) A statement as to whether or not the Offeror included indirect
costs in establishing subcontracting goals, and a description of the
method used to determine the proportionate share of indirect costs to be
incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and Indian
tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Offeror who will
administer the Offeror's subcontracting program, and a description of
the duties of the individual.
(8) A description of the efforts the Offeror will make to assure
that small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have an
equitable opportunity to compete for subcontracts.
(9) Assurances that the Offeror will include the clause of this
contract entitled ``Utilization of Small Business Concerns'' in all
subcontracts that offer further subcontracting opportunities, and that
the Offeror will require all subcontractors (except small business
concerns) that receive subcontracts in excess of $700,000 ($1.5 million
for construction of any public facility) with further subcontracting
possibilities to adopt a subcontracting plan that complies with the
requirements of this clause.
(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the Offeror with the subcontracting plan;
(iii) After November 30, 2017, include subcontracting data for each
order when reporting subcontracting achievements for indefinite-
delivery, indefinite-quantity contracts with individual subcontracting
plans where the contract is intended for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l) of
this clause using the Electronic Subcontracting Reporting System (eSRS)
at http://www.esrs.gov. The reports shall provide information on
subcontract awards to small business concerns (including ANCs and Indian
tribes that are not small businesses), veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business concerns
(including ANCs and Indian tribes that have
[[Page 156]]
not been certified by SBA as small disadvantaged businesses), women-
owned small business concerns, and for NASA only, Historically Black
Colleges and Universities and Minority Institutions. Reporting shall be
in accordance with this clause, or as provided in agency regulations;
(v) Ensure that its subcontractors with subcontracting plans agree
to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its unique entity
identifier, and the email address of the Offeror's official responsible
for acknowledging receipt of or rejecting the ISRs, to all first-tier
subcontractors with subcontracting plans so they can enter this
information into the eSRS when submitting their ISRs; and
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own unique entity identifier, and
the email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its subcontractors
with subcontracting plans.
(11) A description of the types of records that will be maintained
concerning procedures that have been adopted to comply with the
requirements and goals in the plan, including establishing source lists;
and a description of the offeror's efforts to locate small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns and award subcontracts to them. The
records shall include at least the following (on a plant-wide or
company-wide basis, unless otherwise indicated):
(i) Source lists (e.g., SAM), guides, and other data that identify
small business, veteran-owned small business, service-disabled veteran-
owned small business, HUBZone small business, small disadvantaged
business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources that
are small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an award
of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not, why
not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business concerns
were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and, if
not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited and,
if not, why not; and
(G) If applicable, the reason award was not made to a small business
concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, service-disabled veteran-owned, and women-owned
small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the program's
requirements.
(vi) On a contract-by-contract basis, records to support award data
submitted by the offeror to the Government, including the name, address,
and business size of each subcontractor. Contractors having commercial
plans need not comply with this requirement.
(12) Assurances that the Offeror will make a good faith effort to
acquire articles, equipment, supplies, services, or materials, or obtain
the performance of construction work from the small business concerns
that it used in preparing the bid or proposal, in the same or greater
scope, amount, and quality used in preparing and submitting the bid or
proposal. Responding to a request for a quote does not constitute use in
preparing a bid or proposal. The Offeror used a small business concern
in preparing the bid or proposal if--
(i) The Offeror identifies the small business concern as a
subcontractor in the bid or proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a portion of
the subcontract; or
(ii) The Offeror used the small business concern's pricing or cost
information or technical expertise in preparing the bid or proposal,
where there is written evidence of an intent or understanding that the
small business concern will be awarded a subcontract for the related
work if the Offeror is awarded the contract.
(13) Assurances that the Contractor will provide the Contracting
Officer with a written explanation if the Contractor fails to acquire
articles, equipment, supplies, services or materials or obtain the
performance of construction work as described in (d)(12) of this clause.
This written explanation must be submitted to the Contracting Officer
within 30 days of contract completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the Contracting Officer any material
[[Page 157]]
matter pertaining to payment to or utilization of a subcontractor.
(15) Assurances that the offeror will pay its small business
subcontractors on time and in accordance with the terms and conditions
of the underlying subcontract, and notify the contracting officer when
the prime contractor makes either a reduced or an untimely payment to a
small business subcontractor (see 52.242-5).
(e) In order to effectively implement this plan to the extent
consistent with efficient contract performance, the Contractor shall
perform the following functions:
(1) Assist small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns by
arranging solicitations, time for the preparation of bids, quantities,
specifications, and delivery schedules so as to facilitate the
participation by such concerns. Where the Contractor's lists of
potential small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business subcontractors
are excessively long, reasonable effort shall be made to give all such
small business concerns an opportunity to compete over a period of time.
(2) Provide adequate and timely consideration of the potentialities
of small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns in all
``make-or-buy'' decisions.
(3) Counsel and discuss subcontracting opportunities with
representatives of small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, and women-owned small business firms.
(4) Confirm that a subcontractor representing itself as a HUBZone
small business concern is certified by SBA as a HUBZone small business
concern in accordance with 52.219-8(d)(2).
(5) Provide notice to subcontractors concerning penalties and
remedies for misrepresentations of business status as small, veteran-
owned small business, HUBZone small, small disadvantaged, or women-owned
small business for the purpose of obtaining a subcontract that is to be
included as part or all of a goal contained in the Contractor's
subcontracting plan.
(6) For all competitive subcontracts over the simplified acquisition
threshold in which a small business concern received a small business
preference, upon determination of the successful subcontract offeror,
prior to award of the subcontract the Contractor must inform each
unsuccessful small business subcontract offeror in writing of the name
and location of the apparent successful offeror and if the successful
subcontract offeror is a small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, or women-owned small business concern.
(7) Assign each subcontract the NAICS code and corresponding size
standard that best describes the principal purpose of the subcontract.
(f) A master subcontracting plan on a plant or division-wide basis
that contains all the elements required by paragraph (d) of this clause,
except goals, may be incorporated by reference as a part of the
subcontracting plan required of the Offeror by this clause; provided--
(1) The master subcontracting plan has been approved;
(2) The Offeror ensures that the master subcontracting plan is
updated as necessary and provides copies of the approved master
subcontracting plan, including evidence of its approval, to the
Contracting Officer; and
(3) Goals and any deviations from the master subcontracting plan
deemed necessary by the Contracting Officer to satisfy the requirements
of this contract are set forth in the individual subcontracting plan.
(g) A commercial plan is the preferred type of subcontracting plan
for contractors furnishing commercial items. The commercial plan shall
relate to the offeror's planned subcontracting generally, for both
commercial and Government business, rather than solely to the Government
contract. Once the Contractor's commercial plan has been approved, the
Government will not require another subcontracting plan from the same
Contractor while the plan remains in effect, as long as the product or
service being provided by the Contractor continues to meet the
definition of a commercial item. A Contractor with a commercial plan
shall comply with the reporting requirements stated in paragraph (d)(10)
of this clause by submitting one SSR in eSRS for all contracts covered
by its commercial plan. This report shall be acknowledged or rejected in
eSRS by the Contracting Officer who approved the plan. This report shall
be submitted within 30 days after the end of the Government's fiscal
year.
(h) Prior compliance of the offeror with other such subcontracting
plans under previous contracts will be considered by the Contracting
Officer in determining the responsibility of the offeror for award of
the contract.
(i) A contract may have no more than one subcontracting plan. When a
contract modification exceeds the subcontracting plan
[[Page 158]]
threshold in 19.702(a), or an option is exercised, the goals of the
existing subcontracting plan shall be amended to reflect any new
subcontracting opportunities. When the goals in a subcontracting plan
are amended, these goal changes do not apply retroactively.
(j) Subcontracting plans are not required from subcontractors when
the prime contract contains the clause at 52.212-5, Contract Terms and
Conditions Required to Implement Statutes or Executive Orders--
Commercial Items, or when the subcontractor provides a commercial item
subject to the clause at 52.244-6, Subcontracts for Commercial Items,
under a prime contract.
(k) The failure of the Contractor or subcontractor to comply in good
faith with (1) the clause of this contract entitled ``Utilization Of
Small Business Concerns,'' or (2) an approved plan required by this
clause, shall be a material breach of the contract and may be considered
in any past performance evaluation of the Contractor.
(l) The Contractor shall submit ISRs and SSRs using the web-based
eSRS at http://www.esrs.gov. Purchases from a corporation, company, or
subdivision that is an affiliate of the Contractor or subcontractor are
not included in these reports. Subcontract awards by affiliates shall be
treated as subcontract awards by the Contractor. Subcontract award data
reported by the Contractor and subcontractors shall be limited to awards
made to their immediate next-tier subcontractors. Credit cannot be taken
for awards made to lower tier subcontractors, unless the Contractor or
subcontractor has been designated to receive a small business or small
disadvantaged business credit from an ANC or Indian tribe. Only
subcontracts involving performance in the United States or its outlying
areas should be included in these reports with the exception of
subcontracts under a contract awarded by the State Department or any
other agency that has statutory or regulatory authority to require
subcontracting plans for subcontracts performed outside the United
States and its outlying areas.
(1) ISR. This report is not required for commercial plans. The
report is required for each contract containing an individual
subcontracting plan.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A report
is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each reporting
period, unless otherwise directed by the Contracting Officer. Reports
are required when due, regardless of whether there has been any
subcontracting activity since the inception of the contract or the
previous reporting period. When the Contracting Officer rejects an ISR,
the Contractor shall submit a corrected report within 30 days of
receiving the notice of ISR rejection.
(ii)(A) When a subcontracting plan contains separate goals for the
basic contract and each option, as prescribed by FAR 19.704(c), the
dollar goal inserted on this report shall be the sum of the base period
through the current option; for example, for a report submitted after
the second option is exercised, the dollar goal would be the sum of the
goals for the basic contract, the first option, and the second option.
(B) If a subcontracting plan has been added to the contract pursuant
to 19.702(a)(3) or 19.301-2(e), the Contractor's achievements must be
reported in the ISR on a cumulative basis from the date of incorporation
of the subcontracting plan into the contract.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(iv) The authority to acknowledge receipt or reject the ISR
resides--
(A) In the case of the prime Contractor, with the Contracting
Officer; and
(B) In the case of a subcontract with a subcontracting plan, with
the entity that awarded the subcontract.
(2) SSR. (i) Reports submitted under individual subcontracting
plans.
(A) This report encompasses all subcontracting under prime contracts
and subcontracts with an executive agency, regardless of the dollar
value of the subcontracts. This report also includes indirect costs on a
prorated basis when the indirect costs are excluded from the
subcontracting goals.
(B) The report may be submitted on a corporate, company or
subdivision (e.g. plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor or a subcontractor is performing work for more
than one executive agency, a separate report shall be submitted to each
executive agency covering only that agency's contracts, provided at
least one of that agency's contracts is over $700,000 (over $1.5 million
for construction of a public facility) and contains a subcontracting
plan. For DoD, a consolidated report shall be submitted for all
contracts awarded by military departments/agencies and/or subcontracts
awarded by DoD prime contractors.
(D) The report shall be submitted annually by October 30 for the
twelve month period ending September 30. When a Contracting Officer
rejects an SSR, the Contractor shall submit a revised report within 30
days of receiving the notice of SSR rejection.
(E) Subcontract awards that are related to work for more than one
executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in eSRS, including
SSRs submitted by subcontractors with subcontracting plans,
[[Page 159]]
resides with the Government agency awarding the prime contracts unless
stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and all
indirect costs.
(B) The report shall be submitted annually, within thirty days after
the end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work for
more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial plans
resides with the Contracting Officer who approved the commercial plan.
(End of clause)
Alternate I (Nov 2016). As prescribed in 19.708(b)(1)(i), substitute
the following paragraph (c)(1) for paragraph (c)(1) of the basic clause:
(c)(1) The apparent low bidder, upon request by the Contracting
Officer, shall submit a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns. If the bidder is submitting an individual
subcontracting plan, the plan must separately address subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns, with a
separate part for the basic contract and separate parts for each option
(if any). The plan shall be included in and made a part of the resultant
contract. The subcontracting plan shall be submitted within the time
specified by the Contracting Officer. Failure to submit the
subcontracting plan shall make the bidder ineligible for the award of a
contract.
Alternate II (Nov 2016). As prescribed in 19.708(b)(1)(ii),
substitute the following paragraph (c)(1) for paragraph (c)(1) of the
basic clause:
(c)(1) Proposals submitted in response to this solicitation shall
include a subcontracting plan that separately addresses subcontracting
with small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns. If the
Offeror is submitting an individual subcontracting plan, the plan must
separately address subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned small business, HUBZone
small business, small disadvantaged business, and women-owned small
business concerns, with a separate part for the basic contract and
separate parts for each option (if any). The plan shall be included in
and made a part of the resultant contract. The subcontracting plan shall
be negotiated within the time specified by the Contracting Officer.
Failure to submit and negotiate a subcontracting plan shall make the
Offeror ineligible for award of a contract.
Alternate III (JAN 2017). As prescribed in 19.708(b)(1)(iii),
substitute the following paragraphs (d)(10) and (l) for paragraphs
(d)(10) and (l) in the basic clause:
(d)(10) Assurances that the Offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the Offeror with the subcontracting plan;
(iii) Submit Standard Form (SF) 294 Subcontracting Report for
Individual Contract in accordance with paragraph (l) of this clause.
Submit the Summary Subcontract Report (SSR), in accordance with
paragraph (l) of this clause using the Electronic Subcontracting
Reporting System (eSRS) at http://www.esrs.gov. The reports shall
provide information on subcontract awards to small business concerns
(including ANCs and Indian tribes that are not small businesses),
veteran-owned small business concerns, service-disabled veteran-owned
small business concerns, HUBZone small business concerns, small
disadvantaged business concerns (including ANCs and Indian tribes that
have not been certified by the Small Business Administration as small
disadvantaged businesses), women-owned small business concerns, and for
NASA only, Historically Black Colleges and Universities and Minority
Institutions. Reporting shall be in accordance with this clause, or as
provided in agency regulations; and
(iv) Ensure that its subcontractors with subcontracting plans agree
to submit the SF 294 in accordance with paragraph (l) of this clause.
Ensure that its subcontractors with subcontracting plans agree to submit
the SSR in accordance with paragraph (l) of this clause using the eSRS.
(l) The Contractor shall submit a SF 294. The Contractor shall
submit SSRs using the web-based eSRS at http://www.esrs.gov. Purchases
from a corporation, company, or subdivision that is an affiliate of the
Contractor or subcontractor are not included in these reports.
Subcontract awards by affiliates shall be treated as subcontract awards
by
[[Page 160]]
the Contractor. Subcontract award data reported by the Contractor and
subcontractors shall be limited to awards made to their immediate next-
tier subcontractors. Credit cannot be taken for awards made to lower
tier subcontractors, unless the Contractor or subcontractor has been
designated to receive a small business or small disadvantaged business
credit from an ANC or Indian tribe. Only subcontracts involving
performance in the U.S. or its outlying areas should be included in
these reports with the exception of subcontracts under a contract
awarded by the State Department or any other agency that has statutory
or regulatory authority to require subcontracting plans for subcontracts
performed outside the United States and its outlying areas.
(1) SF 294. This report is not required for commercial plans. The
report is required for each contract containing an individual
subcontracting plan. For Contractors the report shall be submitted to
the Contracting Officer, or as specified elsewhere in this contract. In
the case of a subcontract with a subcontracting plan, the report shall
be submitted to the entity that awarded the subcontract.
(i) The report shall be submitted semi-annually during contract
performance for the periods ending March 31 and September 30. A report
is also required for each contract within 30 days of contract
completion. Reports are due 30 days after the close of each reporting
period, unless otherwise directed by the Contracting Officer. Reports
are required when due, regardless of whether there has been any
subcontracting activity since the inception of the contract or the
previous reporting period. When a Contracting Officer rejects a report,
the Contractor shall submit a revised report within 30 days of receiving
the notice of report rejection.
(ii)(A) When a subcontracting plan contains separate goals for the
basic contract and each option, as prescribed by FAR 19.704(c), the
dollar goal inserted on this report shall be the sum of the base period
through the current option; for example, for a report submitted after
the second option is exercised, the dollar goal would be the sum of the
goals for the basic contract, the first option, and the second option.
(B) If a subcontracting plan has been added to the contract pursuant
to 19.702(a)(3) or 19.301-2(e), the Contractor's achievements must be
reported in the report on a cumulative basis from the date of
incorporation of the subcontracting plan into the contract.
(iii) When a subcontracting plan includes indirect costs in the
goals, these costs must be included in this report.
(2) SSR. (i)Reports submitted under individual subcontracting plans.
(A) This report encompasses all subcontracting under prime contracts
and subcontracts with an executive agency, regardless of the dollar
value of the subcontracts. This report also includes indirect costs on a
prorated basis when the indirect costs are excluded from the
subcontracting goals.
(B) The report may be submitted on a corporate, company or
subdivision (e.g., plant or division operating as a separate profit
center) basis, unless otherwise directed by the agency.
(C) If the Contractor and/or a subcontractor is performing work for
more than one executive agency, a separate report shall be submitted to
each executive agency covering only that agency's contracts, provided at
least one of that agency's contracts is over $700,000 (over $1.5 million
for construction of a public facility) and contains a subcontracting
plan. For DoD, a consolidated report shall be submitted for all
contracts awarded by military departments/agencies and/or subcontracts
awarded by DoD prime contractors.
(D) The report shall be submitted annually by October 30, for the
twelve month period ending September 30. When a Contracting Officer
rejects an SSR, the Contractor is required to submit a revised SSR
within 30 days of receiving the notice of report rejection.
(E) Subcontract awards that are related to work for more than one
executive agency shall be appropriately allocated.
(F) The authority to acknowledge or reject SSRs in the eSRS,
including SSRs submitted by subcontractors with subcontracting plans,
resides with the Government agency awarding the prime contracts unless
stated otherwise in the contract.
(ii) Reports submitted under a commercial plan.
(A) The report shall include all subcontract awards under the
commercial plan in effect during the Government's fiscal year and all
indirect costs.
(B) The report shall be submitted annually, within 30 days after the
end of the Government's fiscal year.
(C) If a Contractor has a commercial plan and is performing work for
more than one executive agency, the Contractor shall specify the
percentage of dollars attributable to each agency.
(D) The authority to acknowledge or reject SSRs for commercial plans
resides with the Contracting Officer who approved the commercial plan.
Alternate IV (AUG 2018). As prescribed in 19.708(b)(1)(iv),
substitute the following paragraphs (c) and (d) for paragraphs (c) and
(d) of the basic clause:
(c)(1) The Contractor, upon request by the Contracting Officer,
shall submit and negotiate a subcontracting plan, where applicable, that
separately addresses subcontracting with small business, veteran-owned
small business, service-disabled veteran-owned
[[Page 161]]
small business, HUBZone small business, small disadvantaged business,
and women-owned small business concerns. If the Contractor is submitting
an individual subcontracting plan, the plan shall separately address
subcontracting with small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, and women-owned small business concerns,
with a separate part for the basic contract and separate parts for each
option (if any). The subcontracting plan shall be incorporated into the
contract. The subcontracting plan shall be negotiated within the time
specified by the Contracting Officer. The subcontracting plan does not
apply retroactively.
(2)(i) The prime Contractor may accept a subcontractor's written
representations of its size and socioeconomic status as a small
business, small disadvantaged business, veteran-owned small business,
service-disabled veteran-owned small business, or a women-owned small
business if the subcontractor represents that the size and socioeconomic
status representations with its offer are current, accurate, and
complete as of the date of the offer for the subcontract.
(ii) The Contractor may accept a subcontractor's representations of
its size and socioeconomic status as a small business, small
disadvantaged business, veteran-owned small business, service-disabled
veteran-owned small business, or a women-owned small business in the
System for Award Management (SAM) if--
(A) The subcontractor is registered in SAM; and
(B) The subcontractor represents that the size and socioeconomic
status representations made in SAM are current, accurate and complete as
of the date of the offer for the subcontract.
(iii) The Contractor may not require the use of SAM for the purposes
of representing size or socioeconomic status in connection with a
subcontract.
(iv) In accordance with 13 CFR 121.411, 124.1015, 125.29, 126.900,
and 127.700, a contractor acting in good faith is not liable for
misrepresentations made by its subcontractors regarding the
subcontractor's size or socioeconomic status.
(d) The Contractor's subcontracting plan shall include the
following:
(1) Separate goals, expressed in terms of total dollars
subcontracted and as a percentage of total planned subcontracting
dollars, for the use of small business, veteran-owned small business,
service-disabled veteran-owned small business, HUBZone small business,
small disadvantaged business, and women-owned small business concerns as
subcontractors. For individual subcontracting plans, and if required by
the Contracting Officer, goals shall also be expressed in terms of
percentage of total contract dollars, in addition to the goals expressed
as a percentage of total subcontract dollars. The Contractor shall
include all subcontracts that contribute to contract performance, and
may include a proportionate share of products and services that are
normally allocated as indirect costs. In accordance with 43 U.S.C.
1626--
(i) Subcontracts awarded to an ANC or Indian tribe shall be counted
towards the subcontracting goals for small business and small
disadvantaged business concerns, regardless of the size or Small
Business Administration certification status of the ANC or Indian tribe;
and
(ii) Where one or more subcontractors are in the subcontract tier
between the prime Contractor and the ANC or Indian tribe, the ANC or
Indian tribe shall designate the appropriate Contractor(s) to count the
subcontract towards its small business and small disadvantaged business
subcontracting goals.
(A) In most cases, the appropriate Contractor is the Contractor that
awarded the subcontract to the ANC or Indian tribe.
(B) If the ANC or Indian tribe designates more than one Contractor
to count the subcontract toward its goals, the ANC or Indian tribe shall
designate only a portion of the total subcontract award to each
Contractor. The sum of the amounts designated to various Contractors
cannot exceed the total value of the subcontract.
(C) The ANC or Indian tribe shall give a copy of the written
designation to the Contracting Officer, the Contractor, and the
subcontractors in between the prime Contractor and the ANC or Indian
tribe within 30 days of the date of the subcontract award.
(D) If the Contracting Officer does not receive a copy of the ANC's
or the Indian tribe's written designation within 30 days of the
subcontract award, the Contractor that awarded the subcontract to the
ANC or Indian tribe will be considered the designated Contractor.
(2) A statement of--
(i) Total dollars planned to be subcontracted for an individual
subcontracting plan; or the Contractor's total projected sales,
expressed in dollars, and the total value of projected subcontracts to
support the sales for a commercial plan;
(ii) Total dollars planned to be subcontracted to small business
concerns (including ANC and Indian tribes);
(iii) Total dollars planned to be subcontracted to veteran-owned
small business concerns;
(iv) Total dollars planned to be subcontracted to service-disabled
veteran-owned small business;
(v) Total dollars planned to be subcontracted to HUBZone small
business concerns;
[[Page 162]]
(vi) Total dollars planned to be subcontracted to small
disadvantaged business concerns (including ANCs and Indian tribes); and
(vii) Total dollars planned to be subcontracted to women-owned small
business concerns.
(3) A description of the principal types of supplies and services to
be subcontracted, and an identification of the types planned for
subcontracting to--
(i) Small business concerns;
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns; and
(vi) Women-owned small business concerns.
(4) A description of the method used to develop the subcontracting
goals in paragraph (d)(1) of this clause.
(5) A description of the method used to identify potential sources
for solicitation purposes (e.g., existing company source lists, SAM,
veterans service organizations, the National Minority Purchasing Council
Vendor Information Service, the Research and Information Division of the
Minority Business Development Agency in the Department of Commerce, or
small, HUBZone, small disadvantaged, and women-owned small business
trade associations). The Contractor may rely on the information
contained in SAM as an accurate representation of a concern's size and
ownership characteristics for the purposes of maintaining a small,
veteran-owned small, service-disabled veteran-owned small, HUBZone
small, small disadvantaged, and women-owned small business source list.
Use of SAM as its source list does not relieve a firm of its
responsibilities (e.g., outreach, assistance, counseling, or publicizing
subcontracting opportunities) in this clause.
(6) A statement as to whether or not the Contractor included
indirect costs in establishing subcontracting goals, and a description
of the method used to determine the proportionate share of indirect
costs to be incurred with--
(i) Small business concerns (including ANC and Indian tribes);
(ii) Veteran-owned small business concerns;
(iii) Service-disabled veteran-owned small business concerns;
(iv) HUBZone small business concerns;
(v) Small disadvantaged business concerns (including ANC and Indian
tribes); and
(vi) Women-owned small business concerns.
(7) The name of the individual employed by the Contractor who will
administer the Contractor's subcontracting program, and a description of
the duties of the individual.
(8) A description of the efforts the Contractor will make to assure
that small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns have an
equitable opportunity to compete for subcontracts.
(9) Assurances that the Contractor will include the clause of this
contract entitled ``Utilization of Small Business Concerns'' in all
subcontracts that offer further subcontracting opportunities, and that
the Contractor will require all subcontractors (except small business
concerns) that receive subcontracts in excess of $700,000 ($1.5 million
for construction of any public facility) with further subcontracting
possibilities to adopt a subcontracting plan that complies with the
requirements of this clause.
(10) Assurances that the Contractor will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the Contractor with the subcontracting plan;
(iii) After November 30, 2017, include subcontracting data for each
order when reporting subcontracting achievements for an indefinite-
delivery, indefinite-quantity contract with an individual subcontracting
plan where the contract is intended for use by multiple agencies;
(iv) Submit the Individual Subcontract Report (ISR) and/or the
Summary Subcontract Report (SSR), in accordance with paragraph (l) of
this clause using the Electronic Subcontracting Reporting System (eSRS)
at http://www.esrs.gov. The reports shall provide information on
subcontract awards to small business concerns (including ANCs and Indian
tribes that are not small businesses), veteran-owned small business
concerns, service-disabled veteran-owned small business concerns,
HUBZone small business concerns, small disadvantaged business concerns
(including ANCs and Indian tribes that have not been certified by SBA as
small disadvantaged businesses), women-owned small business concerns,
and for NASA only, Historically Black Colleges and Universities and
Minority Institutions. Reporting shall be in accordance with this
clause, or as provided in agency regulations;
(v) Ensure that its subcontractors with subcontracting plans agree
to submit the ISR and/or the SSR using eSRS;
(vi) Provide its prime contract number, its unique entity
identifier, and the email address of the Contractor's official
responsible for acknowledging receipt of or rejecting the ISRs, to all
first-tier subcontractors with subcontracting plans so they can enter
this information into the eSRS when submitting their ISRs; and
[[Page 163]]
(vii) Require that each subcontractor with a subcontracting plan
provide the prime contract number, its own unique entity identifier, and
the email address of the subcontractor's official responsible for
acknowledging receipt of or rejecting the ISRs, to its subcontractors
with subcontracting plans.
(11) A description of the types of records that will be maintained
concerning procedures that have been adopted to comply with the
requirements and goals in the plan, including establishing source lists;
and a description of the Contractor's efforts to locate small business,
veteran-owned small business, service-disabled veteran-owned small
business, HUBZone small business, small disadvantaged business, and
women-owned small business concerns and award subcontracts to them. The
records shall include at least the following (on a plant-wide or
company-wide basis, unless otherwise indicated):
(i) Source lists (e.g., SAM), guides, and other data that identify
small business, veteran-owned small business, service-disabled veteran-
owned small business, HUBZone small business, small disadvantaged
business, and women-owned small business concerns.
(ii) Organizations contacted in an attempt to locate sources that
are small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, or women-owned small business concerns.
(iii) Records on each subcontract solicitation resulting in an award
of more than $150,000, indicating--
(A) Whether small business concerns were solicited and, if not, why
not;
(B) Whether veteran-owned small business concerns were solicited
and, if not, why not;
(C) Whether service-disabled veteran-owned small business concerns
were solicited and, if not, why not;
(D) Whether HUBZone small business concerns were solicited and, if
not, why not;
(E) Whether small disadvantaged business concerns were solicited
and, if not, why not;
(F) Whether women-owned small business concerns were solicited and,
if not, why not; and
(G) If applicable, the reason award was not made to a small business
concern.
(iv) Records of any outreach efforts to contact--
(A) Trade associations;
(B) Business development organizations;
(C) Conferences and trade fairs to locate small, HUBZone small,
small disadvantaged, service-disabled veteran-owned, and women-owned
small business sources; and
(D) Veterans service organizations.
(v) Records of internal guidance and encouragement provided to
buyers through--
(A) Workshops, seminars, training, etc.; and
(B) Monitoring performance to evaluate compliance with the program's
requirements.
(vi) On a contract-by-contract basis, records to support award data
submitted by the Contractor to the Government, including the name,
address, and business size of each subcontractor. Contractors having
commercial plans need not comply with this requirement.
(12) Assurances that the Contractor will make a good faith effort to
acquire articles, equipment, supplies, services, or materials, or obtain
the performance of construction work from the small business concerns
that it used in preparing the proposal for the modification, in the same
or greater scope, amount, and quality used in preparing and submitting
the modification proposal. Responding to a request for a quote does not
constitute use in preparing a proposal. The Contractor used a small
business concern in preparing the proposal for a modification if--
(i) The Contractor identifies the small business concern as a
subcontractor in the proposal or associated small business
subcontracting plan, to furnish certain supplies or perform a portion of
the subcontract; or
(ii) The Contractor used the small business concern's pricing or
cost information or technical expertise in preparing the proposal, where
there is written evidence of an intent or understanding that the small
business concern will be awarded a subcontract for the related work when
the modification is executed.
(13) Assurances that the Contractor will provide the Contracting
Officer with a written explanation if the Contractor fails to acquire
articles, equipment, supplies, services or materials or obtain the
performance of construction work as described in (d)(12) of this clause.
This written explanation must be submitted to the Contracting Officer
within 30 days of contract completion.
(14) Assurances that the Contractor will not prohibit a
subcontractor from discussing with the contracting officer any material
matter pertaining to the payment to or utilization of a subcontractor.
(15) Assurances that the offeror will pay its small business
subcontractors on time and in accordance with the terms and conditions
of the underlying subcontract, and notify the contracting officer when
the prime contractor makes either a reduced or an untimely payment to a
small business subcontractor (see 52.242-5).
[48 FR 42478, Sept. 19, 1983]
Editorial Note: For Federal Register citations affecting section
52.219-9, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
[[Page 164]]
52.219-10 Incentive Subcontracting Program.
As prescribed in 19.708(c)(1), insert the following clause:
Incentive Subcontracting Program (OCT 2014)
(a) Of the total dollars it plans to spend under subcontracts, the
Contractor has committed itself in its subcontracting plan to try to
award certain percentages to small business, veteran-owned small
business, service-disabled veteran-owned small business, HUBZone small
business, small disadvantaged business, and women-owned small business
concerns, respectively.
(b) If the Contractor exceeds its subcontracting goals for small
business, veteran-owned small business, service-disabled veteran-owned
small business, HUBZone small business, small disadvantaged business,
and women-owned small business concerns in performing this contract, it
will receive __ [Contracting Officer to insert the appropriate number
between 0 and 10] percent of the dollars in excess of each goal in the
plan, unless the Contracting Officer determines that the excess was not
due to the Contractor's efforts (e.g., a subcontractor cost overrun
caused the actual subcontract amount to exceed that estimated in the
subcontracting plan, or the award of subcontracts that had been planned
but had not been disclosed in the subcontracting plan during contract
negotiations). Determinations under this paragraph are unilateral
decisions made solely at the discretion of the Government.
(c) If this is a cost-plus-fixed-fee contract, the sum of the fixed
fee and the incentive fee earned under this contract may not exceed the
limitations in 15.404-4 of the Federal Acquisition Regulation.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 48266, 48267, Sept.
18, 1995; 62 FR 51271, Sept. 30, 1997; 63 FR 36125, July 1, 1998; 63 FR
70277, Dec. 18, 1998; 64 FR 72449, Dec. 27, 1999; 65 FR 60548, Oct. 11,
2000; 66 FR 53493, Oct. 22, 2001; 79 FR 61754, Oct. 14, 2014]
52.219-11 Special 8(a) Contract Conditions.
As prescribed in 19.811-3(a), insert the following clause:
Special 8(a) Contract Conditions (JAN 2017)
The Small Business Administration (SBA) agrees to the following:
(a) To furnish the supplies or services set forth in this contract
according to the specifications and the terms and conditions hereof by
subcontracting with an eligible concern pursuant to the provisions of
section 8(a) of the Small Business Act, as amended (15 U.S.C. 637(a)).
(b) That in the event SBA does not award a subcontract for all or a
part of the work hereunder, this contract may be terminated either in
whole or in part without cost to either party.
(c) Except for novation agreements, delegates to the ____ [insert
name of contracting agency] the responsibility for administering the
subcontract to be awarded hereunder with complete authority to take any
action on behalf of the Government under the terms and conditions of the
subcontract; provided, however, that the ____ [insert name of
contracting agency] shall give advance notice to the SBA before it
issues a final notice terminating the right of a subcontractor to
proceed with further performance, either in whole or in part, under the
subcontract for default or for the convenience of the Government.
(d) That payments to be made under any subcontract awarded under
this contract will be made directly to the subcontractor by the ____
[insert name of contracting agency].
(e) That the subcontractor awarded a subcontract hereunder shall
have the right of appeal from decisions of the Contracting Officer
cognizable under the Disputes clause of said subcontract.
(f) To notify the [insert name of contracting agency] Contracting
Officer immediately upon notification by the subcontractor that the
owner or owners upon whom 8(a) eligibility was based plan to relinquish
ownership or control of the concern.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 46009, Oct. 31, 1989;
55 FR 3888, Feb. 5, 1990; 61 FR 67422, Dec. 20, 1996; 82 FR 4731, Jan.
13, 2017]
52.219-12 Special 8(a) Subcontract Conditions.
As prescribed in 19.811-3(b), insert the following clause:
Special 8(a) Subcontract Conditions (JAN 2017)
(a) The Small Business Administration (SBA) has entered into
Contract No. ____ [insert number of contract] with the ____ [insert name
of contracting agency] to furnish the supplies or services as described
therein. A copy of the contract is attached hereto and made a part
hereof.
(b) The ____ [insert name of subcontractor], hereafter referred to
as the subcontractor, agrees and acknowledges as follows:
(1) That it will, for and on behalf of the SBA, fulfill and perform
all of the requirements of Contract No. ___ [insert number of contract]
for the consideration stated therein
[[Page 165]]
and that it has read and is familiar with each and every part of the
contract.
(2) That the SBA has delegated responsibility, except for novation
agreements, for the administration of this subcontract to the ___
[insert name of contracting agency] with complete authority to take any
action on behalf of the Government und_d conditions of this subcontract.
(3) That it will not subcontract the performance of any of the
requirements of this subcontract to any lower tier subcontractor without
the prior written approval of the SBA and the designated Contracting
Officer of the ____ [insert name of contracting agency].
(4) That is will notify the [insert name of contracting agency]
Contracting Officer in writing immediately upon entering an agreement
(either oral or written) to transfer all or part of its stock or other
ownership interest to any other party.
(c) Payments, including any progress payments under this
subcontract, will be made directly to the subcontractor by the ____
[insert name of contracting agency].
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 54 FR 34757, Aug. 21, 1989;
54 FR 46009, Oct. 31, 1989; 55 FR 3889, Feb. 5, 1990; 55 FR 38518, Sept.
18, 1990; 61 FR 67422, Dec. 20, 1996; 82 FR 4731, Jan. 13, 2017]
52.219-13 Notice of Set-Aside of Orders.
As prescribed in 19.508(f), insert the following clause:
Notice of Set-Aside of Orders (NOV 2011)
The Contracting Officer will give notice of the order or orders, if
any, to be set aside for small business concerns identified in
19.000(a)(3) and the applicable small business program. This notice, and
its restrictions, will apply only to the specific orders that have been
set aside for any of the small business concerns identified in
19.000(a)(3).
(End of clause)
[76 FR 68036, Nov. 2, 2011]
52.219-14 Limitations on Subcontracting.
As prescribed in 19.508(e) or 19.811-3(e), insert the following
clause:
Limitations on Subcontracting (JAN 2017)
(a) This clause does not apply to the unrestricted portion of a
partial set-aside.
(b) Applicability. This clause applies only to--
(1) Contracts that have been set aside or reserved for small
business concerns or 8(a) participants;
(2) Part or parts of a multiple-award contract that have been set
aside for small business concerns or 8(a) participants; and
(3) Orders set aside for small business or 8(a) participants under
multiple-award contracts as described in 8.405-5 and 16.505(b)(2)(i)(F).
(c) By submission of an offer and execution of a contract, the
Offeror/Contractor agrees that in performance of the contract in the
case of a contract for--
(1) Services (except construction). At least 50 percent of the cost
of contract performance incurred for personnel shall be expended for
employees of the concern.
(2) Supplies (other than procurement from a nonmanufacturer of such
supplies). The concern shall perform work for at least 50 percent of the
cost of manufacturing the supplies, not including the cost of materials.
(3) General construction. The concern will perform at least 15
percent of the cost of the contract, not including the cost of
materials, with its own employees.
(4) Construction by special trade contractors. The concern will
perform at least 25 percent of the cost of the contract, not including
the cost of materials, with its own employees.
(End of clause)
[52 FR 38190, Oct. 14, 1988, as amended at 55 FR 52798, Dec. 21, 1990;
61 FR 67411, Dec. 20, 1996; 64 FR 32749, June 17, 1999; 76 FR 68037,
Nov. 2, 2011; 82 FR 4731, Jan. 13, 2017]
52.219-15 [Reserved]
52.219-16 Liquidated Damages--Subcontracting Plan.
As prescribed in 19.708(b)(2), insert the following clause:
Liquidated Damages--Subcontracting Plan (JAN 1999)
(a) Failure to make a good faith effort to comply with the
subcontracting plan, as used in this clause, means a willful or
intentional failure to perform in accordance with the requirements of
the subcontracting plan approved under the clause in this contract
entitled ``Small Business Subcontracting Plan,'' or willful or
intentional action to frustrate the plan.
(b) Performance shall be measured by applying the percentage goals
to the total actual subcontracting dollars or, if a commercial plan is
involved, to the pro rata share of actual subcontracting dollars
attributable to Government contracts covered by the commercial plan. If,
at contract completion or, in the case of a commercial plan, at the
close
[[Page 166]]
of the fiscal year for which the plan is applicable, the Contractor has
failed to meet its subcontracting goals and the Contracting Officer
decides in accordance with paragraph (c) of this clause that the
Contractor failed to make a good faith effort to comply with its
subcontracting plan, established in accordance with the clause in this
contract entitled ``Small Business Subcontracting Plan,'' the Contractor
shall pay the Government liquidated damages in an amount stated. The
amount of probable damages attributable to the Contractor's failure to
comply shall be an amount equal to the actual dollar amount by which the
Contractor failed to achieve each subcontract goal.
(c) Before the Contracting Officer makes a final decision that the
Contractor has failed to make such good faith effort, the Contracting
Officer shall give the Contractor written notice specifying the failure
and permitting the Contractor to demonstrate what good faith efforts
have been made and to discuss the matter. Failure to respond to the
notice may be taken as an admission that no valid explanation exists.
If, after consideration of all the pertinent data, the Contracting
Officer finds that the Contractor failed to make a good faith effort to
comply with the subcontracting plan, the Contracting Officer shall issue
a final decision to that effect and require that the Contractor pay the
Government liquidated damages as provided in paragraph (b) of this
clause.
(d) With respect to commercial plans, the Contracting Officer who
approved the plan will perform the functions of the Contracting Officer
under this clause on behalf of all agencies with contracts covered by
the commercial plan.
(e) The Contractor shall have the right of appeal, under the clause
in this contract entitled Disputes, from any final decision of the
Contracting Officer.
(f) Liquidated damages shall be in addition to any other remedies
that the Government may have.
(End of clause)
[54 FR 30710, July 21, 1989, as amended at 60 FR 48267, Sept. 18, 1995;
63 FR 34068, June 22, 1998; 63 FR 70277, Dec. 18, 1998]
52.219-17 Section 8(a) Award.
As prescribed in 19.811-3(c), insert the following clause:
Section 8(a) Award (JAN 2017)
(a) By execution of a contract, the Small Business Administration
(SBA) agrees to the following:
(1) To furnish the supplies or services set forth in the contract
according to the specifications and the terms and conditions by
subcontracting with the Offeror who has been determined an eligible
concern pursuant to the provisions of section 8(a) of the Small Business
Act, as amended (15 U.S.C. 637(a)).
(2) Except for novation agreements, delegates to the ____ (insert
name of contracting activity) the responsibility for administering the
contract with complete authority to take any action on behalf of the
Government under the terms and conditions of the contract; provided,
however that the contracting agency shall give advance notice to the SBA
before it issues a final notice terminating the right of the
subcontractor to proceed with further performance, either in whole or in
part, under the contract.
(3) That payments to be made under the contract will be made
directly to the subcontractor by the contracting activity.
(4) To notify the [insert name of contracting agency] Contracting
Officer immediately upon notification by the subcontractor that the
owner or owners upon whom 8(a) eligibility was based plan to relinquish
ownership or control of the concern.
(5) That the subcontractor awarded a subcontract hereunder shall
have the right of appeal from decisions of the cognizant Contracting
Officer under the ``Disputes'' clause of the subcontract.
(b) The offeror/subcontractor agrees and acknowledges that it will,
for and on behalf of the SBA, fulfill and perform all of the
requirements of the contract.
(c) The offeror/subcontractor agrees that it will not subcontract
the performance of any of the requirements of this subcontract to any
lower tier subcontractor without the prior written approval of the SBA
and the cognizant Contracting Officer of the ____ [insert name of
contracting agency].
(End of clause)
[54 FR 46009, Oct. 31, 1989, as amended at 55 FR 3889, Feb. 5, 1990; 61
FR 67422, Dec. 20, 1996; 82 FR 4731, Jan. 13, 2017]
52.219-18 Notification of Competition Limited to Eligible 8(a) Participants.
As prescribed in 19.811-3(d), insert the following clause:
Notification of Competition Limited to Eligible 8(a) Participants (JAN
2017)
(a) Offers are solicited only from small business concerns expressly
certified by the Small Business Administration (SBA) for participation
in the SBA's 8(a) Program and which meet the following criteria at the
time of submission of offer--
(1) The Offeror is in conformance with the 8(a) support limitation
set forth in its approved business plan; and
[[Page 167]]
(2) The Offeror is in conformance with the Business Activity Targets
set forth in its approved business plan or any remedial action directed
by the SBA.
(b) By submission of its offer, the Offeror represents that it meets
all of the criteria set forth in paragraph (a) of this clause.
(c) Any award resulting from this solicitation will be made to the
Small Business Administration, which will subcontract performance to the
successful 8(a) offeror selected through the evaluation criteria set
forth in this solicitation.
(d)(1) Agreement. A small business concern submitting an offer in
its own name shall furnish, in performing the contract, only end items
manufactured or produced by small business concerns in the United States
or its outlying areas. If this procurement is processed under simplified
acquisition procedures and the total amount of this contract does not
exceed $25,000, a small business concern may furnish the product of any
domestic firm. This paragraph does not apply to construction or service
contracts.
(2) The [insert name of SBA's contractor] will notify the [insert
name of contracting agency] Contracting Officer in writing immediately
upon entering an agreement (either oral or written) to transfer all or
part of its stock or other ownership interest to any other party.
(End of clause)
Alternate I (JAN 2017). If the competition is to be limited to 8(a)
participants within one or more specific SBA regions or districts, add
the following paragraph (a)(3) to paragraph (a) of the clause:
(3) The offeror's approved business plan is on the file and serviced
by _____* _____ (*Contracting Officer completes by inserting the
appropriate SBA District and/or Regional Office(s) as identified by the
SBA).
Alternate II (DEC 1996). When the acquisition is for a product in a
class for which the Small Business Administration has determined that
there are no small business manufacturers or processors in the Federal
market in accordance with 19.502-2(c), delete subparagraph (d)(1).
[54 FR 46009, Oct. 31, 1989; 54 FR 48105, Nov. 21, 1989, as amended at
55 FR 3889, Feb. 5, 1990; 55 FR 25532, June 21, 1990; 55 FR 38518, Sept.
18, 1990; 60 FR 48267, Sept. 18, 1995; 61 FR 39209, July 26, 1996; 61 FR
67422, Dec. 20, 1996; 62 FR 238, Jan. 2, 1997; 62 FR 12720, Mar. 17,
1997; 64 FR 32745, June 17, 1999; 64 FR 51850, Sept. 24, 1999; 68 FR
28085, May 22, 2003; 70 FR 18959, Apr. 11, 2005; 82 FR 4731, Jan. 13,
2017]
52.219-19--52.219-26 [Reserved]
52.219-27 Notice of Service-Disabled Veteran-Owned Small Business Set-Aside.
As prescribed in 19.1407, insert the following clause:
Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (NOV
2011)
(a) Definition. Service-disabled veteran-owned small business
concern--
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by one
or more service-disabled veterans; and
(ii) The management and daily business operations of which are
controlled by one or more service-disabled veterans or, in the case of a
service-disabled veteran with permanent and severe disability, the
spouse or permanent caregiver of such veteran.
(2) Service-disabled veteran means a veteran, as defined in 38
U.S.C. 101(2), with a disability that is service-connected, as defined
in 38 U.S.C. 101(16).
(b) Applicability. This clause applies only to--
(1) Contracts that have been set aside or reserved for service-
disabled veteran-owned small business concerns;
(2) Part or parts of a multiple-award contract that have been set
aside for service-disabled veteran-owned small business concerns; and
(3) Orders set aside for service-disabled veteran-owned small
business concerns under multiple-award contracts as described in 8.405-5
and 16.505(b)(2)(i)(F).
(c) General. (1) Offers are solicited only from service-disabled
veteran-owned small business concerns. Offers received from concerns
that are not service-disabled veteran-owned small business concerns
shall not be considered.
(2) Any award resulting from this solicitation will be made to a
service-disabled veteran-owned small business concern.
(d) Agreement. A service-disabled veteran-owned small business
concern agrees that in the performance of the contract, in the case of a
contract for--
(1) Services (except construction), at least 50 percent of the cost
of personnel for contract performance will be spent for employees of the
concern or employees of other service-disabled veteran-owned small
business concerns;
(2) Supplies (other than acquisition from a nonmanufacturer of the
supplies), at least 50 percent of the cost of manufacturing, excluding
the cost of materials, will be performed
[[Page 168]]
by the concern or other service-disabled veteran-owned small business
concerns;
(3) General construction, at least 15 percent of the cost of the
contract performance incurred for personnel will be spent on the
concern's employees or the employees of other service-disabled veteran-
owned small business concerns; or
(4) Construction by special trade contractors, at least 25 percent
of the cost of the contract performance incurred for personnel will be
spent on the concern's employees or the employees of other service-
disabled veteran-owned small business concerns.
(e) A joint venture may be considered a service-disabled veteran
owned small business concern if--
(1) At least one member of the joint venture is a service-disabled
veteran-owned small business concern, and makes the following
representations: That it is a service-disabled veteran-owned small
business concern, and that it is a small business concern under the
North American Industry Classification Systems (NAICS) code assigned to
the procurement;
(2) Each other concern is small under the size standard
corresponding to the NAICS code assigned to the procurement; and
(3) The joint venture meets the requirements of paragraph 7 of the
explanation of Affiliates in 19.101 of the Federal Acquisition
Regulation.
(4) The joint venture meets the requirements of 13 CFR 125.15(b)
(f) Any service-disabled veteran-owned small business concern
(nonmanufacturer) must meet the requirements in 19.102(f) of the Federal
Acquisition Regulation to receive a benefit under this program.
(End of clause)
[69 FR 25279, May 5, 2004, as amended at 76 FR 68037, Nov. 2, 2011]
52.219-28 Post-Award Small Business Program Rerepresentation.
As prescribed in 19.309(c), insert the following clause:
Post-Award Small Business Program Rerepresentation (JUL 2013)
(a) Definitions. As used in this clause--
Long-term contract means a contract of more than five years in
duration, including options. However, the term does not include
contracts that exceed five years in duration because the period of
performance has been extended for a cumulative period not to exceed six
months under the clause at 52.217-8, Option to Extend Services, or other
appropriate authority.
Small business concern means a concern, including its affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on Government contracts, and qualified
as a small business under the criteria in 13 CFR part 121 and the size
standard in paragraph (c) of this clause. Such a concern is ``not
dominant in its field of operation'' when it does not exercise a
controlling or major influence on a national basis in a kind of business
activity in which a number of business concerns are primarily engaged.
In determining whether dominance exists, consideration shall be given to
all appropriate factors, including volume of business, number of
employees, financial resources, competitive status or position,
ownership or control of materials, processes, patents, license
agreements, facilities, sales territory, and nature of business
activity.
(b) If the Contractor represented that it was a small business
concern prior to award of this contract, the Contractor shall
rerepresent its size status according to paragraph (e) of this clause
or, if applicable, paragraph (g) of this clause, upon the occurrence of
any of the following:
(1) Within 30 days after execution of a novation agreement or within
30 days after modification of the contract to include this clause, if
the novation agreement was executed prior to inclusion of this clause in
the contract.
(2) Within 30 days after a merger or acquisition that does not
require a novation or within 30 days after modification of the contract
to include this clause, if the merger or acquisition occurred prior to
inclusion of this clause in the contract.
(3) For long-term contracts--
(i) Within 60 to 120 days prior to the end of the fifth year of the
contract; and
(ii) Within 60 to 120 days prior to the date specified in the
contract for exercising any option thereafter.
(c) The Contractor shall rerepresent its size status in accordance
with the size standard in effect at the time of this rerepresentation
that corresponds to the North American Industry Classification System
(NAICS) code assigned to this contract. The small business size standard
corresponding to this NAICS code can be found at http://www.sba.gov/
content/table-small-business-size-standards.
(d) The small business size standard for a Contractor providing a
product which it does not manufacture itself, for a contract other than
a construction or service contract, is 500 employees.
(e) Except as provided in paragraph (g) of this clause, the
Contractor shall make the representation required by paragraph (b) of
this clause by validating or updating all its representations in the
Representations and Certifications section of the System for Award
Management (SAM) and its other data in SAM, as necessary, to ensure that
they reflect the Contractor's current status. The Contractor shall
notify the contracting
[[Page 169]]
office in writing within the timeframes specified in paragraph (b) of
this clause that the data have been validated or updated, and provide
the date of the validation or update.
(f) If the Contractor represented that it was other than a small
business concern prior to award of this contract, the Contractor may,
but is not required to, take the actions required by paragraphs (e) or
(g) of this clause.
(g) If the Contractor does not have representations and
certifications in SAM, or does not have a representation in SAM for the
NAICS code applicable to this contract, the Contractor is required to
complete the following rerepresentation and submit it to the contracting
office, along with the contract number and the date on which the
rerepresentation was completed:
The Contractor represents that it is, is not a small business
concern under NAICS Code _______ assigned to contract number _________.
[Contractor to sign and date and insert authorized signer's name and
title].
(End of clause)
[72 FR 36856, July 5, 2007, as amended at 74 FR 11825, Mar. 19, 2009; 74
FR 14493, Mar. 31, 2009; 76 FR 18314, Apr. 1, 2011; 77 FR 23371, Apr.
18, 2012; 78 FR 37683, June 21, 2013; 79 FR 61754, Oct. 14, 2014]