[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Proposed Rules]
[Pages 68406-68415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32883]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 63, No. 238 / Friday, December 11, 1998 / 
Proposed Rules  

[[Page 68406]]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

7 CFR Part 1755


RUS Form 545, Central Office Equipment Contract (Not Including 
Installation)

AGENCY: Rural Utilities Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Rural Utilities Service (RUS) is proposing to amend its 
regulations on Telecommunications Standards and Specifications for 
Materials, Equipment, and Construction to add a RUS Form 545 Central 
Office Equipment Contract (Not Including Installation) and to rescind 
REA Form 545, Central Office Equipment Contract (Not Including 
Installation). RUS is proposing this new contract form in order to 
incorporate contractual and technological changes.

DATES: Written comments must be received by RUS, or bear a postmark or 
equivalent, no later than February 9, 1999.

ADDRESSES: Comments should be mailed to Orren E. Cameron, III, 
Director, Telecommunications Standards Division, Rural Utilities 
Service, STOP 1598, United States Department of Agriculture, 1400 
Independence Ave., SW, Washington, DC, 20250-1598. RUS requests an 
original and three copies of all comments (7 CFR part 1700). All 
comments received will be available for public inspection at Room 2835 
(address as above) during regular business hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION CONTACT: John J. Schell, Chief, Central Office 
Equipment Branch, Telecommunications Standards Division, Rural 
Utilities Service, STOP 1598, United States Department of Agriculture, 
1400 Independence Ave., SW, Washington DC, 20250-1598, telephone number 
(202) 720-0671.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866 and therefore has not been reviewed 
by the Office of Management and Budget (OMB).

Executive Order 12372

    This proposed rule is excluded from the scope of Executive Order 
12372, Intergovernmental Consultation, which may require a consultation 
with State and local officials. A Final Rule related Notice entitled, 
``Department Programs and Activities Excluded from Executive Order 
12372'' (50 FR 47034) exempts RUS loans and loan guarantees from 
coverage under this Order.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. RUS has determined that this rule meets the 
applicable standards provided in 3 of the Executive Order. In addition, 
all state and local laws and regulations that are in conflict with this 
rule will be preempted, no retroactive effort will be given to this 
rule, and, in accordance with Sec. 212(c) of the Department of 
Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(c)), appeal 
procedures must be exhausted before an action against the Department or 
its agencies may be initiated.

Regulatory Flexibility Act Certification

    RUS has determined that this proposed rule will not have a 
significant economic impact on a substantial number of small entities, 
as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The RUS telecommunications program provides loans to borrowers at 
interest rates and terms that are more favorable than those generally 
available from the private sector. RUS borrowers, as a result of 
obtaining federal financing, receive economic benefits that exceed any 
direct economic costs associated with complying with RUS regulations 
and requirements.

Information Collection and Recordkeeping Requirements

    The reporting and recordkeeping burdens contained in this rule were 
approved by the Office of Management and Budget (OMB) pursuant to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 35, as amended) under 
control number 0572-0059.
    Send questions or comment regarding this burden or any other aspect 
of these collections of information, including suggestions for reducing 
the burden to F. Lamont Heppe, Director, Program Development and 
Regulatory Analysis, Rural Utilities Service, 1400 Independence Avenue, 
SW., Room 4034-South Building, Washington, D.C. 20250-1522.

National Environmental Policy Act Certification

    The Administrator of RUS has determined that this proposed rule 
will not significantly affect the quality of the human environment as 
defined by the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.). Therefore, this action does not require an environmental 
impact statement or assessment.

Catalog of Federal Domestic Assistance

    The program described by this proposed rule is listed in the 
Catalog of Federal Domestic Assistance Programs under number 10.851, 
Rural Telephone Loans and Loan Guarantees; and number 10.852, Rural 
Telephone Bank Loans. This catalog is available on a subscription basis 
from the Superintendent of Documents, the United States Government 
Printing Office, Washington, DC 20402-9325.

Unfunded Mandates

    This rule contains no Federal mandates for State, local, and tribal 
governments for the private sector. Thus, this rule is not subject to 
the requirements of section 202 and 205 of the Unfunded Mandates Reform 
Act.

Background

    The last revision to the REA Form 545 Contract was September 1966. 
Since that date, divestiture and competition legislation and regulation 
have brought about many changes in the conduct of telecommunications 
business. Notable advances of central office equipment technology such 
as Signaling System No. (SS7), Advanced Intelligent Network (AIN), and 
Integrated Services Digital Network, have made many new services 
available. In order to address the above, significant changes have been 
made in the way business is conducted in the telecommunications 
industry.

[[Page 68407]]

 The proposed RUS Form 545 Contract incorporates those changes into the 
Central Office Equipment Contract. The main changes to the Contract are 
new requirements that: (1) Provide for a software license, (2) provide 
for patent, copyright, and trademark infringement protection, (3) 
provide a cap on consequential damages, and (4) provide Equal 
Employment Opportunity requirements. In addition, it revises and 
updates provisions for (1) delivery of equipment, (2) inspection and 
testing of the completed installations, (3) payments to the contractor, 
(4) insurance, (5) liquidated damages, and (6) completion of the 
project. The above actions will make it possible for RUS 
telecommunications borrowers to continue to provide their subscribers 
with the most modern and efficient telecommunications service, 
implemented in a predictable and orderly fashion.
    RUS has issued a series of 7 CFR chapter XVII parts, which serve to 
implement the policies, procedures, and requirements for administering 
its loan and loan guarantee programs and the loan documents and 
security instruments that provide for and secure RUS financing. The 
revision to 7 CFR part 1755 codifies RUS Form 545, Central Office 
Equipment Contract (Not Including Installation). The 7 CFR part 1755 
also describes where copies of the contract may be obtained. RUS 
telecommunications borrowers are required to use the RUS Form 545 
Contract where major central office facilities are being procured but 
not installed under this contract. The present RUS Form 545 has become 
outdated due to technological advancements and other reasons. Advanced 
technology and equipment concepts have introduced new issues. Contract 
terms and obligations need to be modified and updated to more 
accurately reflect present business practices. Some representative 
issues addressed in this proposed RUS Form 545 contract are: expansion 
of patent infringement protection to include copyrights, trademarks, 
etc.; software right-to-use licensing terms; warranty coverage; use of 
information; consequential damages; delays in project; liquidated 
damages; insurance; independent contractor provisions; and support of 
discontinued products. All these additions and changes have been made 
so that RUS telephone borrowers can continue to provide their 
subscribers with the most up-to-date and efficient telephone service.
    Following the existing practice of the RUS, this proposed rule 
contemplates publication of the complete text of standard contract Form 
545 in the CFR. However, interested parties are advised that RUS is 
considering and anticipates publishing a proposed rule providing for an 
alternative procedure for the publication of standard forms of 
contracts pursuant to which the full text of the contract form will not 
be set forth as codified text in the CFR. Should such alternative 
procedure be adopted pursuant to applicable rulemaking procedures, the 
full text of this contract, as promulgated through final rulemaking, 
may not be codified in the CFR.

List of Subjects in 7 CFR Part 1755

    Loan programs--communications, Reporting and recordkeeping 
requirements, Rural areas, Telephone.

    For the reasons set out in the preamble, Chapter XVII of Title 7 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 1755--TELECOMMUNICATIONS STANDARDS AND SPECIFICATIONS FOR 
MATERIALS, EQUIPMENT, AND CONSTRUCTION

    1. The authority citation for part 1755 continues to read as 
follows:

    Authority: 7 U.S.C. 901 et seq., 1921 et seq., 7941 et seq.

    2. Section 1755.93 is amended by revising the entry for Form 545 in 
the table and footnote 1 at the end of the table to read as follows:


Sec. 1755.93  List of standard forms of telecommunications contracts.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                                                    Source of
      RUS form No.            Issue date               Title                   Purpose               copies
----------------------------------------------------------------------------------------------------------------
 
      *                   *                   *                   *                   *                   *
                                                           *
545....................  [TBD]                Central Office           Purchase and deliver     RUS.\1\
                                               Equipment Contract       Central office
                                               (Not Including           equipment.
                                               Installation).
 
      *                   *                   *                   *                   *                   *
                                                           *
----------------------------------------------------------------------------------------------------------------
\1\ A limited number of copies of the publication will be furnished by RUS upon request. As this document is
  produced by the Federal Government and is, therefore, in the public domain, additional copies may be
  duplicated locally by any user as desired. Requests for copies should be sent to Program Development and
  Regulatory Analysis United States Department of Agriculture, Rural Utilities Service, Washington, DC 20250-
  1522. The telephone number is (202) 720-8674.

* * * * *
    3. Section 1755.545 is added to read as follows:


Sec. 1755. 545,  Form 545, central office equipment contract (not 
including installation.)

    RUS Form 545, Central Office Equipment Contract (Not Including 
Installation), as contained in this section shall be used for all 
purchases of central office equipment (other than such purchases of 
special equipment using Form 397) using RUS financial assistance when 
the equipment is supplied but not installed by the seller as explained 
in 7 CFR part 1753, subparts E and H. RUS Form 545 Central Office 
Equipment Contract follows:

Central Office Equipment Contract (Not Including Installation)
Notice and Instructions to Bidders;
Central Office Equipment Project (Not Including Installation)

    1. Sealed proposals for the engineering, furnishing, and 
delivery, of central office equipment, materials, and software for 
the

----------------------------------------------------------------------

----------------------------------------------------------------------

(hereinafter called the ``Owner'') which is to be part of the system 
known as

----------------------------------------------------------------------

----------------------------------------------------------------------

to be financed pursuant to a loan contract between the Owner and the 
United States of America (hereinafter called the ``Government'') by 
the Administrator (hereinafter called the ``Administrator'') of the 
Rural Utilities Service (hereafter called ``RUS'') will be received 
by the Owner on or before ______ o'clock, ________.M., 
____________________,

at---------------------------------------------------------------------

----------------------------------------------------------------------

at which time and place the proposals will be publicly opened and 
read. The Rural Telephone Bank may also be a party to the loan 
contract.
    2. The Bid Documents (composed of plans, specifications, and 
drawings), together with

[[Page 68408]]

all necessary forms and other documents for bidders, may be obtained 
from the Owner or from the Owner's Engineer, (hereinafter called the 
``Engineer'') at the latter's office at ____________________

.---------------------------------------------------------------------
The Specifications may be examined at the office of the Owner or at 
the office of the Engineer. A copy of the loan contract between the 
Owner and the Government may be examined at the office of the Owner.
    Each set of Bid Documents will have a serial number, assigned by 
the Engineer, and the number with the name of the bidder will be 
recorded by the Engineer. Bids will be accepted only from original 
bidders, or other qualified bidder to whom such a set has been 
transferred by the original bidder with the approval of the Engineer 
prior to the pre-bid technical session.
    3. A pre-bid technical session will be held with each bidder 
during the week of ____________________, (year), at
.---------------------------------------------------------------------

for the purpose of receiving the bidder's technical proposal, 
discussing details of the Project, and considering suggestions from 
bidders. The Owner shall attach to this Notice a list of the 
information required in the bidder's technical proposal. Each bidder 
will be given a specific time period for the pre-bid technical 
session. At the pre-bid technical session, the bidder shall fully 
describe to the Owner any exceptions to the Specifications the 
bidder may request. In addition, the bidder shall identify all 
features and capabilities that are not fully developed or do not 
have a verifiable satisfactory field performance record. If the 
Owner decides to incorporate any changes into the Specifications, 
the Owner shall furnish all prospective bidders a copy of the 
Specifications containing such revisions (the ``Revised 
Specifications'') and all bids shall be made on the basis of the 
Revised Specifications. At this session, the bidder shall identify 
all documentation and materials that it claims constitute agreed 
excluded documentation under Section (2)(xi) of the Software 
License. The bidder shall claim only those items it may be unable to 
provide to the Owner as required by said (2)(xi). The Engineer shall 
immediately provide a list of all items so identified to the 
[appropriate RUS Area office]. The Engineer shall inform the bidder 
at least ______ days before the scheduled bid opening whether either 
the Engineer or [RUS] will reject the bid because of items so 
identified. Licensor agrees that certain Licensed Software cannot be 
excluded from the requirements of section (2)(xi), including but not 
limited to, software, the absence or improper operation of which 
would significantly impair the operation of the system, would 
significantly impair the ability of the Owner to generate revenue, 
or would pose a risk to RUS loan security. If allowed, the agreed 
excluded documentation shall be individually identified in an 
attachment to the bid. No bid shall be accepted from a bidder who 
fails to attend the pre-bid technical session or fails to 
demonstrate to the Owner that its equipment meets the requirements 
of the Plans and Specifications.
    4. Proposals shall be submitted on the forms furnished by the 
Owner and must be delivered in a sealed envelope addressed to the 
Owner. The name and address of the bidder, its license number, if a 
license is required for bidding on a project by the State, and the 
date and hour of the opening of bids must appear on the envelope in 
which the proposal is submitted. Proposals must be in ink or 
typewritten. No alterations or interlineations will be permitted, 
unless made, initialed, and dated before submission.
    5. Prior to the submission of the proposal, the bidder shall 
make and shall be deemed to have made a careful examination of the 
Specifications, forms of bidder's proposal and acceptance, and shall 
become informed as to the location and characteristics of the 
proposed central office and remote terminal features and services, 
the transportation facilities, the kind of facilities required 
before and during the delivery of the equipment and materials, the 
general local conditions and all other matters that may affect the 
cost. Bidders will be required to comply with all applicable 
statutes, codes, and regulations, including those pertaining to the 
licensing of contractors and the ``Anti Kick-Back Acts,'' as 
amended, (40 U.S.C. 276c; 41 U.S.C. 51 et seq.) and regulations 
issued pursuant thereto, and 18 U.S.C. 287, 874, 1001.
    6. If requested by the Owner or the Administrator, the bidder 
shall furnish evidence, satisfactory to the Owner and the 
Administrator, that the bidder has the necessary facilities, 
ability, and financial resources to perform the Contract.
    7. The Contract, when executed, shall be deemed to include the 
entire agreement between the parties thereto and neither party shall 
claim any modification thereof resulting from any representation or 
promise made at any time by any officer, agent, or employee of the 
other or by any other person.
    8. The Owner reserves the right to waive minor irregularities or 
minor errors in any proposal, if it appears to the Owner that such 
irregularities or errors were made through inadvertence. Any such 
irregularities or errors so waived must be corrected on the proposal 
in which they occur prior to the execution of any Contract, which 
may be awarded thereon.
    9. The Owner reserves the right to reject any or all proposals.
    10. The equipment to be furnished for all central offices and 
remote switching terminals included in the proposal is to be of the 
same basic design. A proposal submitted on any other basis will not 
be considered.
    11. Equal Opportunity and Employment.
    (a) The Offeror's or Bidder's attention is called to the ``Equal 
Opportunity Clause'' and the ``Standard Federal Equal Employment 
Specifications'' contained herein.
    (b) The goals and timetables for minority and female 
participation are available from the Office of Federal Contract 
Compliance Programs (OFCCP) which has the sole responsibility for 
enforcing Executive Order 11246, as amended.
    The goals set forth in Executive Order 11246, as amended, are 
applicable to all the Contractor's construction work (whether or not 
it is federal or federally assisted) performed in the covered area. 
If the Contractor performs construction work in a geographical area 
located outside of the covered area, it shall apply the goals 
established for such geographical area where work is actually 
performed. With regard to this second area, the Contractor also is 
subject to the goals for both its federally involved and 
nonfederally involved construction.
    The Contractor's compliance with Executive Order 11246, as 
amended, and the implementing regulations at 41 CFR Part 60-4 shall 
be based on its implementation of the Equal Opportunity Clause.
    (c) The Contractor shall provide written notification to the 
Director of the Office of Federal Contract Compliance Programs 
within 10 working days of award of any construction subcontract in 
excess of $10,000 at any tier for construction work under the 
contract resulting from this solicitation. The notification shall 
list the name, address, and telephone number of the subcontractor; 
employer identification number of the subcontractor; estimated 
dollar amount of the subcontract; estimated starting and completion 
dates of the subcontract; and, the geographical area in which the 
subcontract is to be performed.

Bidder's proposal to Engineer, Furnish, and Deliver Equipment, 
Materials and Software
(Proposal shall be submitted in ink or typewritten)

To:--------------------------------------------------------------------
(HEREINAFTER CALLED THE ``OWNER'')
    The undersigned (hereinafter called the ``Bidder'') hereby 
proposes to engineer, furnish, and deliver, and install the 
equipment, materials and software for each Project listed under 
Column 1, ``Project,'' in Article I, 1, and described in the plans, 
specifications and drawings (hereinafter called the 
``Specifications'') prepared by the Owner and attached hereto and 
made a part hereof, financed by a loan to the Owner made or 
guaranteed by the United States of America, acting through the 
Administrator of the Rural Utilities Service (hereinafter called the 
``Administrator''), or by loans to the Owner by the United States of 
America and by the Rural Telephone Bank, and designated 
____________________.
    The Bidder has become informed as to the location and 
characteristics of the proposed Project, has become informed as to 
the kind of facilities required before and during the delivery and 
installation of the equipment, material, and software and has become 
acquainted with all other matters that may affect the cost and time 
of delivery of the Project.
    The Bidder agrees that if its bid is accepted the following 
terms and conditions shall govern.
    If, in submitting this proposal, the Bidder has taken any 
exception to the form of proposal furnished by the Owner, the Bidder 
understands that the Owner and the Administrator may evaluate the 
effect of such change as they see fit and they may exclude the 
proposal from consideration in determining the award of the 
Contract.

[[Page 68409]]



 Article I.--Section 1. Bid Price. The Bidder Will Engineer, Furnish, and Deliver to the Delivery Points Specified Below the Equipment Described in the
                                                          Specifications for the Following Sums
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Completion of
 Project (see notes 1, 2 and 3)      Base bid       Delivery point     Delivery (see     the project      Spare parts          Item         Maintenance
                                                                          note 4)        (see note 5)                                          tools
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)                              (2).............  (3).............  (4).............  (5)............  (6)............  (7)............  (8)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                 $                                                                      $                a                $
                                 $                                                                      $                b                $
                                 $                                                                      $                c                $
                                 $                                                                      $                d                $
                                 $                                                                      $                e                $
                                 $                                                                      $                f                $
                                ------------------------------------------------------------------------------------------------------------------------
    Totals.....................  $                 XXXXXXXX          XXXXXXXX          XXXXXXXX         $                XXXXXXXX         $
                                ------------------------------------------------------------------------------------------------------------------------
    Total Base Bid.............  $                 XXXXXXXX          XXXXXXXX          XXXXXXXX         XXXXXXXX         XXXXXXXX         XXXXXXXX
Alternate 1....................  $                                                                      $                g                $
Alternate 2....................  $                                                                      $                h                $
Alternate 3....................  $                                                                      $                i                $
Alternate 4....................  $                                                                      $                j                $
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note 1: If a remote switching terminal, so designate and list after host office.
Note 2: All items included in a Project shall have the same completion schedule.
Note 3: Each Project shall be separated by a blank line.
Note 4: Delivery time in calendar days.
Note 5: Time in calendar days for Completion of the Project shall be no later than 90 days after the time established for Delivery.

    Section 2. Acceptable Equipment. Unless otherwise specified by 
the Owner (and with advance written agreement by RUS), the Bidder 
agrees to furnish under this proposal only equipment which is 
currently listed in RUS Information Publication 344-2 or covered by 
a letter of technical acceptance issued by the Chairman, Technical 
Standards Committee ``A'' (Telecommunications). The Bidder agrees 
also to furnish only materials, equipment, and software which are 
new and of most recent issue and manufacture, as of the date of the 
bid opening, or of near future release for which the Bidder can 
assure timely delivery.
    Section 3. Changes in Project. The Owner, with the approval of 
the Administrator, may from time to time prior to the delivery of 
equipment or software under this Contract effected by the acceptance 
of this proposal, make reasonable changes, additions to or 
subtractions from the Specifications which are part of the proposal 
as conditions may warrant. However, if substantial changes in the 
Project shall require an extension of time, a reasonable extension 
will be granted if the Bidder shall make a written request therefor 
to the Owner within thirty (30) days after any such change is made. 
Further, if the cost to the Bidder shall be increased or decreased 
by any such change or addition, the Contract price shall be 
increased or decreased by a reasonable amount in accordance with a 
contract amendment signed by the Owner and the Bidder and approved 
by the Administrator. No claim for additional compensation for any 
such change or addition will be considered unless the Bidder shall 
have made a written request therefor to the Owner prior to the 
commencement of work in connection with such change or addition. The 
delivery times specified under Column 4, ``Delivery'', in Article I, 
Section 1, can only be changed by a Contract amendment approved by 
the Bidder, the Owner and RUS.
    Section 4. Taxes. The bid prices herein set forth do not include 
any amounts payable by the Bidder or the Owner on account of taxes 
imposed by any taxing authority upon the sale, purchase, or use of 
materials, supplies, equipment, or software to be incorporated in 
the Project(s). If any such tax is applicable to the sale, purchase, 
or use of materials, supplies, equipment, or software hereunder, the 
amount thereof shall be stated separately on all invoices and paid 
by the Owner.

Article II

Delivery

    Section 1. Time of delivery. The time of delivery of materials, 
equipment, and software is of the essence in this Contract. The 
Bidder shall deliver the materials, equipment, and software required 
hereunder for each Project upon the time intervals established under 
Column 4, ``Delivery,'' in Article I, 1, after the Administrator 
shall have approved this Contract in writing. The times for such 
delivery shall be extended for the period of any reasonable delay 
due exclusively to causes beyond the control and without the fault 
of the Bidder, including, but not limited to, acts of God, fires, 
strikes, floods, changes in the Specifications as herein provided, 
and acts or omissions of the Owner with respect to matters for which 
the Owner is solely responsible. However, no such extension of time 
shall be granted the Bidder unless within thirty (30) days after 
Bidder becomes aware of the happening of any event relied upon by 
the Bidder for such an extension of time the Bidder shall have made 
a request therefor in writing to the Owner. Further, no delay in 
such time for delivery of materials, equipment, and software shall 
result in any liability on the part of the Owner, except that the 
Owner shall be responsible for and shall pay the Bidder on demand 
all additional, supportable costs, and expenses incurred by the 
Bidder due to delays to the extent such delays are caused by the 
Owner's failure to perform its obligations under this Contract 
unless the Owner's failure to perform is caused by forces beyond its 
control.
    Section 2. Sequence of Delivery. All Projects shall be delivered 
in the sequence in which they are listed under Column 1, 
``Project,'' in Article I, Section 1.
    Section 3. Inspection and Tests. All materials, equipment, and 
software used therein shall be subject to the inspection, test, and 
approval of the Owner and Administrator, in accordance with the 
Specifications. The Bidder shall furnish all pertinent information 
required concerning the nature or source of materials. The Owner and 
the Administrator shall have the right to inspect pertinent records 
(other than manufacturing cost information) of the Bidder and of any 
subcontractor relevant to this Project(s). The Bidder shall provide 
all reasonable facilities necessary for such inspection and tests, 
except that the Bidder is not required to provide test equipment for 
the Owner's tests unless specifically required in the 
Specifications. Failure of the Owner to make inspections shall not 
release the Bidder from performance required hereunder.
    The Owner shall make inspections and tests of each Project for 
compliance with the Specifications and provide the Bidder the 
results of such inspections and tests in writing. If the Owner has 
not completed its inspections and tests and provided the

[[Page 68410]]

Bidder the results within thirty sixty (60) days after the date of 
delivery as set forth under Column 4,'' delivery'' in Article I, 1, 
the Owner shall (1) pay to the Bidder the costs incurred by the 
Bidder as a result of this delay, and (2) grant an extension of time 
for the Completion of the Project equal to the number of days from 
the date of the end of the sixty (60) day period until the date the 
Owner provides such results to the Bidder. A longer period of time 
for inspection and tests can be allowed if agreed to in writing by 
the Bidder and the Owner.
    Within thirty (30) days of receipt of the results of the 
inspections and tests from the Owner, the Bidder shall correct all 
deficiencies, if any, listed on the test results summary and notify 
the Owner in writing of such corrections, at which time a final 
Owner's inspection and test of each Project shall be conducted. If 
tests subsequent to this are made necessary by the Bidder's failure 
to satisfactorily resolve all such deficiencies as previously 
listed, the Bidder shall pay the Owner for the cost incurred by the 
Owner for all such subsequent tests.
    Section 4. Defective Workmanship, Materials Equipment, or 
Software. Throughout the warranty period defined below the Bidder 
shall, within thirty (30) days of written notice from the Owner, and 
without charge to the Owner, at the Bidder's option, either remedy 
or replace any materials, equipment, or software found to be 
defective in material, or workmanship, or not in conformity with the 
Specification. This is subject to the following definitions and 
conditions:
    (a) The warranty start date for a Project is the scheduled date 
of Completion of the Project as set forth under Column 5, 
``Completion of the Project,'' in Article I, 1, or such earlier date 
that such Project is certified complete. The warranty period is 
twelve (12) months from the warranty start date. If circumstances or 
events under the control of the Bidder cause a delay beyond the 
scheduled date of Completion of the Project, the warranty period is 
twelve (12) months from the actual date of Completion of the 
Project, as defined in Article VII, 1. The warranty period shall not 
be extended due to delays caused by the Owner.
    (b) Without regard to the expiration of the warranty period set 
forth above, the Bidder warrants to the Owner that any Software 
furnished under this Contract shall function, for a period of five 
(5) years from the warranty start date defined in subsection (a) 
above, in accordance with the specifications and any written or 
printed technical material provided by the Bidder to explain the 
operation of the Software and aid in its use. The Bidder shall 
correct all deficiencies within thirty (30) days from the date of 
receipt by the Bidder of written notice of such deficiencies from 
the Owner. An extension of this thirty (30) day period may be 
allowed only if agreed upon by the Owner. It shall be the Bidder's 
obligation to insert and thoroughly test, at no charge to the Owner, 
any software amendment or alteration provided to satisfy the 
obligations of this 6. If a deficiency is detected or a correction 
made within the final ninety (90) days of the warranty, the warranty 
shall be extended to a date ninety (90) days after the deficiency 
has been corrected.
    (c) The Owner shall pay the Bidder for any use of the Bidder's 
technical assistance center except for usage to diagnose defects as 
provided in this 4.
    (d) The warranty continues in full force and effect whether or 
not the Owner has accepted the materials, equipment, or software, or 
by the issuing of any certificate with respect to Completion of the 
Project.
    (e) The warranty does not cover defects in materials, equipment, 
or software that are caused by modifications to or abuse of 
materials, equipment, or software by the Owner or the Owner's 
agents, including but not limited to, the Firm contracted by the 
Owner to install the materials, equipment, and software.
    (f) The Owner shall bear the cost and risk of shipping defective 
components to the Bidder's designated repair center. The Bidder 
shall bear the cost and risk of shipping new or repaired replacement 
components to the Owner.

Article III

Payments

    Section 1. Payment of 90 percent.
    The Bidder shall provide the Owner with written estimates, 
including the prices, of the materials, equipment, and software 
delivered to the site of each Project listed under column 2, in 
Article I, section 1. If the Owner approves these estimates, the 
Owner will pay the Bidder 90 percent of the estimates when all 
materials, equipment, and software required to put each Project into 
operation have been delivered to the site of such Project.
    Section 2. Payment of balance. Upon completion of installation 
(by others) of the equipment, but prior to the payment to the Bidder 
of any amount in excess of ninety percent (90%) of the Total 
Contract Price, the Owner shall make a final inspection of the 
materials, equipment, and software provided hereunder as set forth 
under Article II, 3, Inspections and Tests. If the materials, 
equipment, and software shall be found to be in accordance with the 
Specifications and all provisions hereunder, the owner shall certify 
such fact to the Administrator for approval and as to the amount of 
the balance found to be due to the bidder. When such approval has 
been given, the Owner shall pay to the Bidder all unpaid amounts to 
which the Bidder shall be entitled hereunder. However, such final 
payments shall be made not later than one hundred twenty (120) days 
after delivery as set forth under Column 4, ``Delivery'' in Article 
I, section 1, unless approval by the Administrator shall be withheld 
or delayed due to Bidder's actions or failure to act.
    Section 3. Interest on unpaid amounts. Payment on undisputed 
invoices submitted by the Bidder shall be due thirty (30) days after 
receipt. Any amounts of these invoices not paid when due shall 
accrue interest at a rate one and one-half percent (1 1/2%) per year 
higher than the ``Prime Rate'' published in the Wall Street Journal 
in its first issue of the month in which payment becomes due and 
changing each subsequent month with the first issue published in the 
respective month.
    Section 4. Acceptance not waiver. Acceptance by the Owner of 
equipment, materials, or software while the Bidder is in default 
under any provision of this Contract shall not be construed as a 
waiver by the Owner of any right hereunder including, without 
limitation, any right to liquidated damages the Owner may have by 
virtue of Article V, section 2.

Article IV

Particular Undertakings of the Bidder

    Section 1. Possession and Control. The equipment, materials, and 
software purchased under this Contract, until such date or dates 
when the Owner may take possession and control, shall be under the 
charge and control of the Bidder and during such period of control 
by the Bidder all risks in connection therewith, and in connection 
with the equipment, materials, and software to be used therein, 
shall be borne by the Bidder. The Bidder shall make good and fully 
repair all damages to the equipment, materials, and software under 
the control of the Bidder by reasons of any act of God, or any other 
casualty or cause whether or not the same shall have occurred by 
reason of the Bidder's negligence.
    Section 2. Termination of Bidder's Risks and Obligations. The 
Bidder shall deliver to the Owner, and the Owner shall accept, full 
possession and control of each Project on the date of delivery. Upon 
such delivery of possession and control of any Project the Bidder's 
risks and obligations as set forth above pertaining to such Project 
shall be terminated; provided, however, that nothing herein 
contained shall relieve the Bidder of its obligation for full 
performance under the Specifications, or its liability with respect 
to defective materials, equipment, or software as specified in 
Article II, section 4, hereof. The equipment shall not be installed 
until delivery of possession and control to the Owner has been 
accomplished, as set forth above.
    Section 3. Purchase of Materials. The Bidder shall purchase all 
materials and supplies except software outright and not subject to 
any conditional sales agreements, bailment lease or other agreement 
reserving unto the seller any right, title, or interest therein. 
Materials and supplies other than software shall become the property 
of the Owner as the Owner makes payments therefor to the Bidder in 
accordance with Article III, section 1(a).
    Section 4. Software License. If the Bidder requires a software 
license agreement covering the rights, terms, and conditions of the 
use and assignability of all software integral to the operation of 
the Project, the license shall be in the form of Addendum 1 to this 
Contract (See 7 CFR 1753.38(c)).
    Section 5. Assignment of Guarantees. All guarantees of 
materials, equipment, workmanship, and software running in favor of 
the Bidder shall be transferred and assigned to the Owner upon 
Completion of the Project and at such time as the Bidder receives 
final payment. Any such guarantees shall be in addition to the 
Bidder's warranty defined in Article II, section 4. This provision 
may be modified with respect to a particular warranty if the Bidder

[[Page 68411]]

demonstrates to the satisfaction of RUS and the Owner that a 
transfer is not possible.
    Section 6. Patent, Copyright, Trademark, and Trade Secret 
Infringement. The Bidder shall hold harmless and indemnify the Owner 
from any and all claims, suits, and proceedings for the infringement 
of any patent, copyright, trademark, or violation of trade secrets 
covering any equipment or software used in the work, except for 
items of the Owner's design or selection. If the Owner's use of 
equipment or software is enjoined, the Bidder shall promptly, at its 
own expense, modify or replace the infringing equipment or software 
so that it no longer infringes but remains functionally equivalent, 
or obtain for the Owner a license or other right to use the 
equipment or software. This shall be in addition to any other rights 
or claims, which the Owner may have. The Bidder shall, at its own 
expense, (and the Owner agrees to permit Bidder to do so,) defend 
any suits which may be instituted by any party against the Owner for 
alleged infringement of patents, copyright, trademark, or violation 
of trade secrets relative to the Bidder's performance hereunder. 
Either party shall notify the other promptly of any such claims, and 
the Owner shall give to the Bidder full authority and opportunity to 
settle such claims, and shall reasonably cooperate with the Bidder 
in obtaining information relative to such claims.
    Section 7. Compliance with Statutes and Regulations. The Bidder 
shall comply with all applicable laws, statutes, ordinances, rules, 
and regulations. The Bidder acknowledges that it is familiar with 
the Rural Electrification Act of 1936, as amended (7 U.S.C. 901 et 
seq.), the Anti-Kickback Acts, as amended (40 U.S.C. 276c; 41 U.S.C. 
51 et seq.), and any rules and regulations issued pursuant thereto, 
and 18 U.S.C. 201, 286, 287, 641, 666, 874, 1001, 1361 and 1366, as 
amended.
    The Bidder represents that to the extent required by Executive 
Orders 12549 (3 CFR, 1985-1988 Comp., p. 189) and 12689 (3 CFR, 1989 
Comp., p. 235), Debarment and Suspension, and 7 CFR part 3017, it 
has submitted to the Owner a duly executed certification in the form 
prescribed in 7 CFR part 3017.
    The Bidder represents that, to the extent required, it has 
complied with the requirements of Pub. L. 101-121, section 319, 103 
Stat. 701, 750-765 (31 U.S.C. 1352), entitled ``Limitation on use of 
appropriated funds to influence certain Federal contracting and 
financial transactions,'' and any rules and regulations issued 
pursuant thereto.

Article V

Remedies

    Section 1. Completion on Bidder's Default. If default shall be 
made by the Bidder in the material, equipment, or software furnished 
hereunder, the Owner, without in any manner limiting its legal and 
equitable remedies in the circumstances, may serve upon the Bidder a 
written notice requiring the Bidder to cause such default to be 
corrected forthwith. Unless within thirty (30) days after the 
service of such notice upon the Bidder such default shall be 
corrected or arrangements for the correction thereof, satisfactory 
to both the Owner and the Administrator, shall have been made by the 
Bidder, the Owner may take over the performance of the Bidder's 
obligations hereunder and prosecute the same to completion by 
contract or otherwise for the account and at the expense of the 
Bidder, and the Bidder shall be liable to the Owner for any 
supportable cost or expense in excess of the bid price occasioned 
thereby. The Owner, in such contingency, may exercise any rights, 
claims, or demands which the Bidder may have against third persons 
in connection herewith and for such purpose the Bidder does hereby 
assign, transfer, and set over unto the Owner all such rights, 
claims, and demands.
    Section 2. Liquidated Damages. Should the Bidder fail to 
complete any Project as shown under Column 5, ``Completion of the 
Project,'' in Article I, section 1, due to circumstances or events 
under control of the Bidder, within the time herein agreed upon, 
after giving effect to extensions of time, if any, herein provided, 
then, in that event and in view of the difficulty of estimating with 
exactness damages caused by such delay, the Owner shall, so long as 
the subject Project shall not have been placed in service, have the 
right to deduct from and retain out of such moneys which may be then 
due, or which may become due and payable to the Bidder, the sum of:

____________________ dollars ($____________) for

----------------------------------------------------------------------

(Project)
____________________ dollars ($____________) for

----------------------------------------------------------------------

(Project)
____________________ dollars ($____________) for

----------------------------------------------------------------------
(Project)

per day for each and every day that such completion is delayed 
beyond the scheduled time for Completion of the Project, as 
liquidated damages and not as a penalty, up to the amount of the 
respective Base Bid plus accepted alternates for the affected 
Project; provided, however, that the Owner shall promptly notify the 
Bidder in writing of the manner in which the amount claimed as 
liquidated damages was computed. The Bidder shall pay to the Owner 
the amount necessary to effect such payment in full. Such payment is 
not to be reduced by the value of any partial performance by the 
Bidder.
    At the technical sessions, each Bidder shall identify all 
features and capabilities that are not fully developed or do not 
have a verifiable satisfactory field performance record. If the 
Owner allows these features to be bid as separate Projects, then 
they are to be individually listed under Columns 1 through 8, in 
Article I, section 1. These unproven features and capabilities are 
to be individually listed in this section 2 also, with liquidated 
damages amounts determined by the Owner and stated for each. If a 
Bidder neglects to identify any such feature at the technical 
session, delay in providing the feature is considered a delay in 
completing the associated Project and the Owner may assess 
liquidated damages listed for that Project regardless of whether the 
Project is placed in service.
    Section 3. Consequential Damages. In no event shall the Bidder's 
liability for incidental or consequential loss or damage, except for 
personal injury or tangible property damage, exceed the amount of 10 
times the total contract price, as amended.
    Section 4. Enforcement of Remedies by Administrator. The 
Administrator may on behalf of the Owner exercise any right or 
enforce any remedy, which the Owner may exercise or enforce 
hereunder.
    Section 5. Cumulative Remedies. Every right or remedy herein 
conferred upon or reserved to the Owner or the Administrator shall 
be cumulative and shall be in addition to every right and remedy now 
or hereafter existing at law or in equity or by statute and the 
pursuit of any right or remedy shall not be construed as an 
election; provided, however, that the provisions of section 2 of 
this Article V shall be the exclusive measure of damages for failure 
by the Bidder to have effected the Completion of Project within the 
time herein agreed upon.

Article VI

Equal Employment

    Section 1. The Bidder.
    (a) The Bidder represents that:
    (1) It has, ____________ does not have ____________, 100 or more 
employees, and if it has, that
    (2) It has ____________, has not ____________, furnished the 
Equal Employment Opportunity Employers Information Report EEO-1, 
Standard Form 100, required of employers with 100 or more employees 
pursuant to Executive Order 11246, as amended, and Title VII of the 
Civil Rights Act of 1964.
    (b) The Bidder agrees that it will obtain, prior to the award of 
any subcontract for more than $10,000 hereunder to a subcontractor 
with 100 or more employees, a statement, signed by the proposed 
subcontractor, that the proposed subcontractor has filed a current 
report on Standard Form 100.
    (c) The Bidder agrees that if it has 100 or more employees and 
has not submitted a report on Standard Form 100 for the current 
reporting year and that if this contract will amount to more than 
$10,000, the Bidder will file such report, as required by law, and 
notify the Owner in writing of such filing prior to the Owner's 
acceptance of this proposal.
    (d) The Bidder certifies that it does not maintain or provide 
for its employees any segregated facilities at any of its 
establishments, and that it does not permit its employees to perform 
their services at any location, under its control, where segregated 
facilities are maintained. The Bidder certifies further that it will 
not maintain or provide for its employees any segregated facilities 
at any of its establishments, and that it will not permit its 
employees to perform their services at any location, under its 
control, where segregated facilities are maintained. The Bidder 
agrees that a breach of this certification is a violation of the 
Equal

[[Page 68412]]

Opportunity Clause in this contract. As used in this certification, 
the term ``segregated facilities'' means any waiting rooms, work 
areas, restrooms and washrooms, restaurants and other eating areas, 
timeclocks, locker rooms and other storage or dressing areas, 
parking lots, drinking fountains, recreation or entertainment areas, 
transportation, and housing facilities provided for employees which 
are segregated by explicit directive or are in fact segregated on 
the basis of race, color, religion, or national origin, because of 
habit, local custom, or otherwise. The Bidder agrees that (except 
where it has obtained identical certifications from proposed 
subcontractors for specific time periods) it will obtain identical 
certifications from proposed subcontractors prior to the award of 
subcontracts exceeding $10,000 which are not exempt from the 
provisions of the Equal Opportunity Clause, and that it will retain 
such certifications in its files.
    Section 2. During the performance of this contract, the 
Contractor agrees as follows:
    (a) The Contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, or 
national origin. The Contractor will take affirmative action to 
ensure that applicants are employed, and that employees are treated 
during employment without regard to their race, color, religion, 
sex, or national origin. Such action shall include, but not be 
limited to, the following: employment, upgrading, demotion or 
transfer; recruitment or recruitment advertising; layoff or 
termination; rates of pay or other forms of compensation; and 
selection for training, including apprenticeship. The Contractor 
agrees to post in conspicuous places available to employees and 
applicants for employment, notices to be provided setting forth the 
provisions of this nondiscrimination clause.
    (b) The Contractor will, in all solicitations or advertisements 
for employees placed by or on behalf of the Contractor, state that 
all qualified applicants shall receive consideration for employment 
without regard to race, color, religion, sex, or national origin.
    (c) The Contractor will send to each labor union or 
representative of workers with which the Bidder has a collective 
bargaining agreement or other contract or understanding, a notice to 
be provided advising the said labor union or workers' representative 
of the Contractor's commitments under this section, and shall post 
copies of the notice in conspicuous places available to employees 
and applicants for employment.
    (d) The Contractor will comply with all provisions of Executive 
Order 11246 and of the rules, regulations, and relevant orders of 
the Secretary of Labor.
    (e) The Contractor will furnish all information and reports 
required by Executive Order 11246 and by rules, regulations, and 
orders of the Secretary of Labor, or pursuant thereto, and will 
permit access to the Contractor's books, records, and accounts by 
the administering agency and the Secretary of Labor for purposes of 
investigation to ascertain compliance with such rules, regulations, 
and orders.
    (f) In the event of the Contractor's noncompliance with the 
nondiscrimination clauses of this contract or with any of the said 
rules, regulations, or orders, this contract may be canceled, 
terminated, or suspended in whole or in part and the Contractor may 
be declared ineligible for further Government contracts or federally 
assisted construction contracts in accordance with procedures 
authorized in Executive Order 11246 and such other sanctions as may 
be imposed and remedies invoked as provided in the said Executive 
Order 11246 or by rule, regulation or order of the Secretary of 
Labor, or as otherwise provided by law.
    (g) The Contractor will include the portion of the sentence 
immediately preceding paragraph (a) and the provisions of paragraphs 
(a) through (g) in every subcontract or purchase order unless 
exempted by rules, regulations, or orders of the Secretary of Labor 
issued pursuant to section 204 of Executive Order 11246 so that such 
provisions will be binding upon each subcontractor or vendor. The 
Contractor will take such action with respect to any subcontract or 
purchase order as the administering agency may direct as a means of 
enforcing such provisions, including actions for noncompliance; 
provided, however, that in the event a contractor becomes involved 
in, or is threatened with, litigation with a subcontractor or vendor 
as a result of such direction by the administering agency, the 
Contractor may request the United States to enter into such 
litigation to protect the interests of the United States.
    Section 3. Equal Employment Opportunity Specifications.
    (a) As used in these specifications:
    ``Covered area'' means the geographical area described in the 
solicitation from which this contract resulted;
    ``Director'' means Director, Office of Federal Contract 
Compliance Programs, United States Department of Labor, or any 
person to whom the Director delegates authority;
    ``Employer identification number'' means the Federal Social 
Security number used on the Employer's Quarterly Federal Tax Return, 
U.S. Treasury Department Form 941; and
    ``Minority'' includes:
    (i) Black (all persons having origins in any of the Black 
African racial groups not of Hispanic origin);
    (ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, 
Central or South American or other Spanish Culture or origin, 
regardless of race);
    (iii) Asian and Pacific Islander (all persons having origins in 
any of the original peoples of the Far East, Southeast Asia, the 
Indian Subcontinent, or the Pacific Islands); and
    (iv) American Indian or Alaskan Native (all persons having 
origins in any of the original peoples of North America and 
maintaining identifiable tribal affiliations through membership and 
participation or community identification).
    (b) Whenever the Contractor, or any subcontractor at any tier, 
subcontracts a portion of the work involving any construction trade, 
it shall physically include in each subcontract in excess of $10,000 
the provisions of these specifications and the Notice which contains 
the applicable goals for minority and female participation and which 
is set forth in the solicitations from which this contract resulted.
    (c) If the Contractor is participating (pursuant to 41 CFR 60-
4.5) in a Hometown Plan approved by the U.S. Department of Labor in 
the covered area either individually or through an association, its 
affirmative action obligations on all work in the Plan area 
(including goals and timetables) shall be in accordance with that 
Plan for those trades which have unions participating in the Plan. 
Contractors must be able to demonstrate their participation in and 
compliance with the provisions of any such Hometown Plan. Each 
Contractor or Subcontractor participating in an approved Plan is 
individually required to comply with its obligations under the EEO 
clause, and to make a good faith effort to achieve each goal under 
the Plan in each trade in which it has employees. The overall good 
faith performance by other contractors or subcontractors toward a 
goal in an approved Plan does not excuse any covered contractor's or 
subcontractor's failure to take good faith efforts to achieve the 
Plan goals and timetables.
    (d) The Contractor shall implement the specific affirmative 
action standards provided in paragraphs (g) (i) through (xvi) of 
these specifications. The goals set forth in the solicitation from 
which this contract resulted are expressed as percentages of the 
total hours of employment and training of minority and female 
utilization the Contractor should reasonably be able to achieve in 
each construction trade in which it has employees in the covered 
area. Covered construction contractors performing construction work 
in geographical areas where they do not have a federal or federally 
assisted construction contract shall apply the minority and female 
goals established for the geographical area where the work is being 
performed. Goals are published periodically in the Federal Register 
in notice form, and such notices may be obtained from any Office of 
Federal Contract Compliance Programs office or from Federal 
procurement contracting officers. The Contractor is expected to make 
substantially uniform progress in meeting its goals in each craft 
during the period specified.
    (e) Neither the provisions of any collective bargaining 
agreement, nor the failure by a union with which the Contractor has 
a collective bargaining agreement, to refer either minorities or 
women shall excuse the Contractor's obligations under these 
specifications, Executive Order 11246 or the regulations promulgated 
pursuant thereto.
    (f) In order for the nonworking training hours of apprentices 
and trainees to be counted in meeting the goals, such apprentices 
and trainees must be employed by the Contractor during the training 
period, and the Contractor must have made a commitment to employ the 
apprentices and trainees at the completion of their training, 
subject to the availability of employment opportunities. Trainees 
must be trained pursuant to training programs approved by the U.S. 
Department of Labor.
    (g) The Contractor shall take specific affirmative actions to 
ensure equal

[[Page 68413]]

employment opportunity. The evaluation of the Contractor's 
compliance with these specifications shall be based upon its effort 
to achieve maximum results from its actions. The Contractor shall 
document these efforts fully, and shall implement affirmative action 
steps at least as extensive as the following:
    (i) Ensure and maintain a working environment free of 
harassment, intimidation, and coercion at all sites, and in all 
facilities at which the Contractor's employees are assigned to work. 
The Contractor, where possible, will assign two or more women to 
each construction project. The Contractor shall specifically ensure 
that all foremen, superintendents, and other on-site supervisory 
personnel are aware of and carry out the Contractor's obligation to 
maintain such a working environment, with specific attention to 
minority or female individuals working at such sites or in such 
facilities.
    (ii) Establish and maintain a current list of minority and 
female recruitment sources, provide written notification to minority 
and female recruitment sources and to community organizations when 
the Contractor or its unions have employment opportunities 
available, and maintain a record of the organizations' responses.
    (iii) Maintain a current file of the names, addresses and 
telephone numbers of each minority and female off-the-street 
applicant and minority or female referral from a union, a 
recruitment source or community organization and of what action was 
taken with respect to each such individual. If such individual was 
sent to the union hiring hall for referral and was not referred back 
to the Contractor by the union or, if referred, not employed by the 
Contractor, this shall be documented in the file with the reason 
therefore, along with whatever additional actions the Contractor may 
have taken.
    (iv) Provide immediate written notification to the Director when 
the union or unions with which the Contractor has a collective 
bargaining agreement has not referred to the Contractor a minority 
person or woman sent by the Contractor, or when the Contractor has 
other information that the union referral process has impeded the 
Contractor's efforts to meet its obligations.
    (v) Develop on-the-job training opportunities and/or participate 
in training programs for the area which expressly include minorities 
and women, including upgrading programs and apprenticeship and 
trainee programs relevant to the Contractor's employment needs, 
especially those programs funded or approved by the Department of 
Labor. The Contractor shall provide notice of these programs to the 
sources compiled under (g)(ii) above.
    (vi) Disseminate the Contractor's EEO policy by providing notice 
of the policy to unions and training programs and requesting their 
cooperation in assisting the Contractor in meeting its EEO 
obligations; by including it in any policy manual and collective 
bargaining agreement; by publicizing it in the company newspaper, 
annual report, etc.; by specific review of the policy with all 
management personnel and with all minority and female employees at 
least once a year; and by posting the company EEO policy on bulletin 
boards accessible to all employees at each location where 
construction work is performed.
    (vii) Review, at least annually, the company's EEO policy and 
affirmative action obligations under these specifications with all 
employees having any responsibility for hiring, assignment, layoff, 
termination, or other employment decisions including specific review 
of these items with onsite supervisory personnel such as 
Superintendents, General Foremen, etc., prior to the initiation of 
construction work at any job site. A written record shall be made 
and maintained identifying the time and place of these meetings, 
persons attending, subject matter discussed, and disposition of the 
subject matter.
    (viii) Disseminate the Contractor's EEO policy externally by 
including it in any advertising in the news media, specifically 
including minority and female news media, and providing written 
notification to and discussing the Contractor's EEO policy with 
other contractors and subcontractors with whom the Contractor does 
or anticipates doing business.
    (ix) Direct its recruitment efforts, both oral and written, to 
minority, female, and community organizations, to schools with 
minority and female students and to minority and female recruitment 
and training organizations serving the Contractor's recruitment area 
and employment needs. Not later than one month prior to the date for 
the acceptance of applications for apprenticeship or other training 
by any recruitment source, the Contractor shall send written 
notification to organizations such as the above, describing the 
openings, screening procedures, and tests to be used in the 
selection process.
    (x) Encourage present minority and female employees to recruit 
other minority persons and women and, where reasonable, provide 
after school, summer, and vacation employment to minority and female 
youth both on the site and in other areas of a Contractor's work 
force.
    (xi) Validate all tests and other selection requirements where 
there is an obligation to do so under 41 CFR Part 60-3.
    (xii) Conduct, at least annually, an inventory and evaluation at 
least of all minority and female personnel for promotional 
opportunities and encourage these employees to seek or to prepare 
for, through appropriate training, etc., such opportunities.
    (xiii) Ensure that seniority practices, job classifications, 
work assignments and other personnel practices, do not have a 
discriminatory effect by continually monitoring all personnel and 
employment related activities to ensure that the EEO policy and the 
Contractor's obligations under these specifications are being 
carried out.
    (xiv) Ensure that all facilities and company activities are 
nonsegregated except that separate or single-user toilet and 
necessary changing facilities shall be provided to assure privacy 
between the sexes.
    (xv) Document and maintain a record of all solicitations of 
offers for subcontracts from minority and female construction 
contractors and suppliers, including circulation of solicitations to 
minority and female contractor associations and other business 
associations.
    (xvi) Conduct a review, at least annually, of all supervisors' 
adherence to and performance under the Contractor's EEO policies and 
affirmative action obligations.
    (h) Contractors are encouraged to participate in voluntary 
associations, which assist in fulfilling one or more of their 
affirmative action obligations (g)(i) through (xvi). The efforts of 
a contractor association, joint contractor-union, contractor-
community, or other similar group of which the Contractor is a 
member and participant, may be asserted as fulfilling any one or 
more of its obligations under (g)(i) through (xvi) of these 
specifications provided that the Contractor actively participates in 
the group, makes every effort to assure that the group has a 
positive impact on the employment of minorities and women in the 
industry, ensures that the concrete benefits of the program are 
reflected in the Contractor's minority and female workforce 
participation, makes a good faith effort to meet its individual 
goals and timetables, and can provide access to documentation which 
demonstrates the effectiveness of actions taken on behalf of the 
Contractor. The obligation to comply, however, is the Contractor's 
and failure of such a group to fulfill an obligation shall not be a 
defense for the Contractor's noncompliance.
    (i) A single goal for minorities and a separate single goal for 
women have been established. The Contractor, however, is required to 
provide equal employment opportunity and to take affirmative action 
for all minority groups, both male and female, and all women, both 
minority and non-minority. Consequently, the Contractor may be in 
violation of Executive Order if a particular group is employed in a 
substantially disparate manner (for example, even though the 
Contractor has achieved its goals for women generally, the 
Contractor may be in violation of Executive Order 11246 if a 
specific minority group of women is underutilized).
    (j) The Contractor shall not use the goals and timetables or 
affirmative action standards to discriminate against any person 
because of race, color, religion, sex, or national origin.
    (k) The Contractor shall not enter into any subcontract with any 
person or firm debarred from Government contracts pursuant to 
Executive Order 11246.
    (l) The Contractor shall carry out such sanctions and penalties 
for violation of these specifications and of the Equal Opportunity 
Clause, including suspension, termination, and cancellation of 
existing subcontracts as may be imposed or ordered pursuant to 
Executive Order 11246 and its implementing regulations, by the 
Office of Federal Contract Compliance Programs. Any Contractor who 
fails to carry out such sanctions and penalties shall be in 
violation of these specifications and Executive Order 11246.
    (m) The Contractor, in fulfilling its obligations under these 
specifications, shall implement specific affirmative action steps, 
at least as extensive as those standards prescribed in paragraph (g) 
of these specifications, so as to achieve maximum

[[Page 68414]]

results from its efforts to ensure equal employment opportunity. If 
the Contractor fails to comply with the requirements of Executive 
Order 11246, as amended, the implementing regulations, or these 
specifications, the Director shall proceed in accordance with 41 CFR 
60-4.8.
    (n) The Contractor shall designate a responsible official to 
monitor all employment related activity to ensure that the company 
EEO policy is being carried out, to submit reports relating to the 
provisions hereof as may be required by the Government and to keep 
records. Records shall at least include for each employee the name, 
address, telephone numbers, construction trade, union affiliation if 
any, employee identification number when assigned, social security 
number, race, sex, status (e.g., mechanic, apprentice, trainee, 
helper, or laborer), dates of changes in status, hours worked per 
week in the indicated trade, rate of pay, and locations at which the 
work was performed. Records shall be maintained in an easily 
understandable and retrievable form; however, to the degree that 
existing records satisfy this requirement, contractors shall not be 
required to maintain separate records.
    (o) Nothing herein provided shall be construed as a limitation 
upon the application of other laws which establish different 
standards of compliance or upon the application of requirements for 
the hiring of local or other area residents (e.g. those under the 
Public Works Employment Act of 1977 and the Community Development 
Block Grant Program).
    Section 4. In this Article VI.
    (a) The term ``Contractor'' shall also mean ``Bidder'' or 
``Subcontractor'' as applicable.
    (b) The provisions of sections 2 & 3 are applicable to the 
extent required by law. In determining whether these sections are 
applicable, reference should be made to Office of Federal Contract 
Compliance Programs regulations (41 CFR Part 60).

Article VII

Miscellaneous

    Section 1. Definitions.
    The term ``Completion of the Contract'' shall mean 
accomplishment of completion of the Project for all central offices 
(and associated remote switching terminals), features and services 
listed under Column 1, ``Project,'' in Article I, section 1, and all 
alternates accepted by the Owner, on the Owner's acceptance.
    The term ``Completion of the Project'' shall mean full 
performance by the Bidder of the Bidder's obligations herein set out 
and all amendments and revisions thereof for a central office (and 
all associated remote switching terminals), feature or service. The 
scheduled date for completion of the Project is ninety (90) days 
after delivery as specified under Column 4, ``Delivery,'' in Article 
I, section 1, as amended or adjusted under Article II, section 1, 
and section 3. The scheduled date for Completion of the Project is 
the date from which liquidated damages are computed. The actual date 
of completion of the Project shall be the date of the receipt by the 
Owner from the Bidder of written notification that all deficiencies 
listed on the results of acceptance tests have been corrected; 
provided, that the final inspection and tests by the Owner finds the 
deficiencies satisfactorily resolved. If the deficiencies have not 
been satisfactorily resolved, the actual date of completion of the 
Project shall be the date that the deficiencies are fully and 
satisfactorily resolved as determined by subsequent Owner's tests. 
The Certificate of Completion approved and signed by the Owner and 
approved in writing by the Administrator shall be conclusive 
evidence as to the fact of Completion of the Project and the date 
thereof. Full compliance with the procedure for ``Completion of the 
Project'' and an individual Certificate of Completion is required 
for each Project listed under Column 1, ``Project,'' in Article I, 
section 1.
    The ``Contract'' shall consist of the Notice and Instructions to 
Bidders, the Bidder's proposal and the Owner's acceptance, and the 
Specifications.
    The term ``days'' shall mean calendar days.
    The term ``minor errors or irregularities'' shall mean a defect 
or variation in a Bidder's bid that is a matter of form and not of 
substance. Errors or irregularities are ``minor'' if they can be 
corrected or waived without being prejudicial to other Bidders and 
when they do not affect the price, quantity, quality, or timeliness 
of construction. Unless otherwise noted, the Owner determines 
whether an error or irregularity is ``minor.''
    The term ``placed in service'' shall mean used by the Owner to 
earn revenue.
    The term ``Project'' shall mean a central office and all 
associated remote switching terminals (if any), a remote switching 
terminal if purchased without a supporting central office, a feature 
(or group of features), or a service (or group of services), which 
is listed under Column 1, ``Project,'' in Article I, section 1. The 
only instance in which a remote switching terminal can constitute a 
separate Project is where such remote switching terminal is 
purchased with associated modifications to its supporting host 
switch but no other modifications to the host switch are specified. 
A Project will have a single completion schedule listed under Column 
5 ``Completion of the Project,'' in Article I, section 1, and a 
single liquidated damages amount shown in Article V, section 2. The 
Contract may consist of one or more Projects.
    The term ``Software'' shall mean computer programs contained on 
a tape, disc, semiconductor device or other memory device or system 
memory consisting of logic instructions and instruction sequences in 
machine-readable object code, which manipulate data in the central 
processor, control and perform input/output operations, perform 
error diagnostic and recovery routines, control call processing, and 
perform peripheral control, and administrative and maintenance 
functions; as well as associated documentation, excluding source 
code, used to describe, maintain, and use the programs provided 
under the Contract.
    The term ``Specifications'' shall mean the minimum performance 
requirements of the Owner as contained in the documents listed 
below, and attached to this agreement:

RUS Form---------------------------------------------------------------

dated------------------------------------------------------------------

RUS Form---------------------------------------------------------------

dated------------------------------------------------------------------

RUS Form---------------------------------------------------------------

dated------------------------------------------------------------------

RUS Form---------------------------------------------------------------

dated------------------------------------------------------------------

requirements may have been amended by specific written exceptions in 
the Bidder's proposal which have been agreed to by the Owner and 
accepted by the Administrator.
    Section 2. Continuing Equipment Support--Parts, Service, and 
Software. In addition to warranty repairs and replacement, the 
Bidder shall offer repair service and repair parts to the Owner in 
accordance with the Bidder's practices and terms then in effect, for 
the Bidder's manufactured equipment furnished pursuant to this 
Agreement. Such repair service or repair parts shall be available 
for as long as the Bidder is manufacturing or stocking such 
equipment, or for no less than eight (8) years after the Bidder has 
ceased manufacturing or offering such equipment for sale. The Bidder 
shall also offer software support services to the Owner in 
accordance with the Bidder's practices, terms, and charges then in 
effect, but in any event for no less than five (5) years after the 
Bidder has ceased manufacturing or offering for sale such software.
    Section 3. Materials and Supplies. The Bidder shall use only 
such unmanufactured articles, materials, and supplies as have been 
mined or produced in the United States, or in any eligible country, 
and only such manufactured articles, materials, and supplies as have 
been manufactured in the United States, or in any eligible country, 
substantially all from articles, materials, or supplies mined, 
produced or manufactured, as the case may be, in the United States, 
or in any eligible country, provided that other articles, materials, 
or supplies may be used in the event and to the extent that the 
Administrator shall expressly authorize in writing such use pursuant 
to the provisions of the Rural Electrification Act of 1938, being 
Title IV of Public Resolution No. 122, 75th Congress, approved June 
21, 1938. For purposes of this section, an ``eligible country'' is 
any country that applies with respect to the United States an 
agreement ensuring reciprocal access for United States products and 
services and United States suppliers to the markets of that country, 
as determined by the United States Trade Representative. The Bidder 
agrees to submit to the Owner such certificate or certificates, 
signed by the Bidder and all subcontractors, with respect to 
compliance with the foregoing provision as the Administrator from 
time to time may require.
    Section 4. Confidentiality. All information supplied by the 
Bidder to the Owner which bears a legend or notice restricting its 
use, copying, or dissemination, except insofar as it may be in the 
public domain through no acts attributable to the Owner, shall be 
treated by the Owner as confidential information, and the Owner 
shall not reproduce any such information except for its own internal 
use and as authorized by this Contract, and shall use any 
information only for archival backup, in-house training, operating, 
maintenance, and administrative

[[Page 68415]]

purposes and in conjunction with its use of the equipment, 
materials, and software furnished hereunder. All information 
supplied to the Bidder by the Owner which bears a legend or notice 
restricting its use, copying, or dissemination, except insofar as it 
may be in the public domain through no acts attributable to the 
Bidder, shall be treated by the Bidder as confidential information, 
and shall not be used by the Bidder for any purpose adverse to the 
interests of the Owner, and shall not be reproduced or distributed 
by the Bidder except for the Bidder's use in its performance under 
this Contract. The foregoing confidentiality obligations do not 
apply to information which is independently developed by the 
receiving party or which is lawfully received by the receiving party 
free of restriction from another source having a right to so furnish 
such information, or is already known to the receiving party at the 
time of disclosure free of restriction. If the Bidder has failed to 
provide continuing equipment support as described in Article VII, 
section 2, the Owner is released from this obligation. This 
provision does not restrict release of information by the United 
States of America pursuant to the Freedom of Information Act or 
other legal process.
    Section 5. Entire Agreement. The terms and conditions of this 
Contract as approved by RUS supersede all prior oral or written 
understandings between the parties. There are no understandings or 
representations, expressed or implied, not expressly set forth 
herein.
    Section 6. Survival of Obligations. The rights and obligations 
of the parties, which by their nature, would continue beyond the 
termination, cancellation, or expiration of this Contract, shall 
survive such termination or expiration.
    Section 7. Non-Waiver. No waiver of any terms or conditions of 
this Contract, or the failure of either party to enforce strictly 
any such term or condition on one or more occasions, shall be 
construed as a waiver of the same or of any other terms or 
conditions of this Contract on any other occasion.
    Section 8. Releases Void. Neither party shall require releases 
or waivers of any personal rights from representatives or employees 
of the other in connection with visits to its premises, nor shall 
such parties plead such releases or waivers in any action or 
proceeding.
    Section 9. Nonassignment of Contract. The Bidder shall not 
assign the Contract, effected by acceptance of this proposal, or any 
part hereof, or enter into any contract with any person, firm or 
corporation, for the performance of the Bidder's obligations 
hereunder, or any part hereof, without the approval in writing of 
the Owner, the Surety, and the Administrator.
    Section 10. Choice of Law. The rights and obligations of the 
parties and all interpretations and performance of this Contract 
shall be governed in all respects by the laws of the State of 
____________________ except for its rules with respect to the 
conflict of laws.
    Section 11. Approval of the Administrator. The acceptance of 
this proposal by the Owner shall not create a contract unless such 
acceptance shall be approved in writing by the Administrator within 
ninety (90) days after the date hereof:

By---------------------------------------------------------------------
(Signature of Bidder)

----------------------------------------------------------------------
(Name--Type or Print)

----------------------------------------------------------------------
(Title)

----------------------------------------------------------------------
(Company Name of Bidder)

----------------------------------------------------------------------

----------------------------------------------------------------------
(Address of Bidder)

Attest:

----------------------------------------------------------------------
(Secretary)

----------------------------------------------------------------------
(Date)
    The proposal must be signed with the full name of the Bidder. In 
the case of a partnership, the proposal must be signed in the firm 
name by each partner. In the case of a corporation, the proposal 
must be signed in the corporate name by a duly authorized officer 
and the Corporate seal affixed and attested by the Secretary of the 
Corporation.
(If executed by other than the President, a Vice-President, the 
partners or the individual owner, a power of attorney or other 
legally acceptable document authorizing execution shall accompany 
this contract, unless such power of attorney is on file with RUS.)

Acceptance

    Subject to the approval of the Administrator, the Owner hereby 
accepts the proposal of

----------------------------------------------------------------------

----------------------------------------------------------------------
for the Project(s) herein described for the Total Base Bid of 
$________________ and

Alternate For

Spare Parts, Item(s)........................  $
Maintenance Tools, Item(s)..................  $
Alternate No. 1 add (deduct)................  $
Alternate No. 2 add (deduct)................  $
Alternate No. 3 add (deduct)................  $
Alternate No. 4 add (deduct)................  $
Alternate No. 5 add (deduct)................  $
Alternate No. 6 add (deduct)................  $
    The total contract price is.............  $
 

By---------------------------------------------------------------------
Owner

----------------------------------------------------------------------
President

    Attest:

----------------------------------------------------------------------
    Secretary

----------------------------------------------------------------------
Date Of Acceptance

    Dated: December, 7, 1998.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 98-32883 Filed 12-10-98; 8:45 am]
BILLING CODE 3410-15-P