ML20136G984
| ML20136G984 | |
| Person / Time | |
|---|---|
| Issue date: | 11/01/1985 |
| From: | Hagan T NRC OFFICE OF ADMINISTRATION (ADM), PRESS INTELLIGENCE, INC. |
| To: | |
| Shared Package | |
| ML20136G980 | List: |
| References | |
| CON-NRC-10-86-211 NUDOCS 8511250009 | |
| Download: ML20136G984 (59) | |
Text
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@.S. Nuclear Regulatory Comission
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- CPO s 1984 0 - 421-526 (961
Award / Contract NRC-10-86-211 Page 2 of 2 Under Section G - Contract Administration Data, add the following:
1.
Under Paragraph G.1, Project Officer, add the following to subsection B; "NAME AND MAIL CODE:
Margaret Conyngham - 160 Library Branch Division of Technical Information and Document Control Washington, DC 20555 Telephone Number: (301)492-8501" 2.
Add the following Paragraph G.5; "G.5 Consideratior.
The present estin?tE for perforrn g tFE Wori u r.de r this cer.trbet is
$(9,120.00.
The tetal arturt otligatEd is 53,000.00.
The obligational ceiling specified above may be increased by the Contracting Officer from time tc time by writtcn notice to the contractor.
Wher, and if the ar:srt(s) paid ar.d payabie to thE contractor hereunder equal the ceiling, the contractor shall be excused from further performance of the worb (except to mtet existing conritments and listilities) unless and until the Contracting Officer increases the amount obligated under this contract.
If and to the extent that such ceiling has beer.
increased, any costs incurred by the contractor in excess of the ceiling prior to its increase shall be allowable to the same extent as if such costs had been incurred after such interest in the ceiing."
Under Section F - Deliveries and Performance, par 6 graph F.3 is revised to reud ns follows:
"F.3 Duration of Contract Period The period of performance shall commence on November 1,1985 and shall expire on October 31, 1957."
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11 T ABLE OF CONTENT 5 (IIlStC !
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12 in comps.ence mth the etiove. the unde s ened agrees. if this oHer is actented with.n calende, de,s ts o celeade, den e i.niese. datte en e sertad a overted e, sa, orte,,s ro<n ine osie for rece.pi o o er specs.co etio. io turn.sh any or en.iems upon wh.ct p,,ces sie one. o si ene pr.ce in-t e
s n oppas.te each item, delsvered 3e tne desgnered poent(s), wthen the tems specif sed in the schedgie 13 OtSCOUNT FOR PROMPT PAYMENT l10 C ALEND Aa oAv5 20 C ALENDAa OAV5 36 C ALENDAa OAv5 A L E N D A as D A v 6 490s Sett en 1. Caeuse Ne $1132 St
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SECTION 8
_ SUPPLIES OR SERVICES AND PRICES / COSTS
$_.Chk'
$[26 1.
Some day-daily and weekend newspaper clippings 2,400 EA in accordance with Section C.I.3., Paragraph A.
i (Monthly estimate - 100 clips per month) 2.
National newspaper clipping in accordance with l48,000 EA 5 C.h 5314Cl" Sec tion C. I.3., Foragraph 8. (Monthly estin, ate - 2,000 clips per n:onth) 3.
Monthly Reading (For items 1 and 2 above) 24 MO $)16 SN.N AMOUNT -----------------------------------------
$lf,i'A'^'
I I (See Section M 3 Price for information pertinent to the above item.)
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I ADM-86-211 Page 3 Section C - Description / Specifications / Work Statement i
l C.1 Statement of Work
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C.l.1
Background
The Library Branch of the NRC's Division of Technical Information and Document Control is charged with the responsibility of providing senior NRC management with a summary of relevant news clippings in a capsule format.
To accomplish this, the Library staff gathers news clippings and prepares the NRC Media Monitor for daily in-house distribution.
C.l.2 Contract Objectives To meet this requirement, the NRC requires contractor assistance and support of a national clipping service contractor in the gathering and clipping of news articles on a local and nationwide basis.
The required clippings must be only those relevant to the NRC mission.
C.I.3 Specifications The contractor shall furnish all necessary qualified personnel, facilities, equipment, and materials (including newspapers) unless otherwise specified herein, to perform the following:
A.
Same Day Daily and Weekend Newspaper Clippings The contractor shall read and furnish original clippings of all relevant information from the following newspapers (including Saturday and Sunday publications) on a daily gavernment work day basis:
New York Times Wall Street Journal Washington Post Same day clips shall include all relevant information in the newspaper, including that contained in syndicated columns, local staff columns, editorials, and letters to the editor.
See Paragraph D. below for a definition of " relevant information."
All same day clips shall be prepared and delivered by 8:30 a.m., Monday through
- Friday, excluding national holidays.
Weekend clips shall be delivered to the same address by 8:30 a.m. on the first government workday following a weekend.
B.
National Clippings The contractor shall deliver to the NRC Library original clippings of all information appearing in each of the approximately 4,000 daily, weekly, and weekend papers published throughout the United States in accordance with the following schedule i
Tuesday through Friday of each week Within 20 days of publication
i ADM-86-211 Page 4
(
Monday of each week Within 22 days of publication t
(
National Holiday (Monday)
Within 23 days of l-publication The NRC recognizes that certain publications may occasionally not reach the contractor in time for review and submission of clippings within the required period, despite the best efforts of the contractor.
In these instances only, the contractor shall not forward such articles.
Articles arriving at NRC beyond the acceptance period, set forth in the above schedule, will be rejected as unacceptable.
Clips shall include all relevant information in ithe newspaper, including that contained in syndicated columns, staff columns, editorials, and letters to the editor.
See Paragraph D.
below for a definition of " relevant information."
C.
Preparation of Clippings I
Preparation of clippings shall be accomplished by clipping the news article from the newspaper source and pasting the clipping on 8-1/?
x 11 inch, 20 weight white bond paper.
There shall be a one-inch margin on all four edges of the paper.
Clippinos may be mounted vertically or horizontally and shall be parallel to either the bottom or side of the paper.
Clippings shall not be mounted diagonally nor at random.
To the fullest possible extent, clippings shall be placed in columns running down the 11-inch dimension of the sheets.
Clippings shall be placed on the mounting paper to fit as many as possible while leaving space between the articles and assuring readability.
Each clipping shall identify its source and date of publication.
The contractor shall insure that no duplicate articles are submitted.
This is a particularly possible occurence with syndicated articles, but it may also arise in other itens to be clipped.
The government will reject duplicate, non-applicable, illegible, incomplete, or undated clippings.
D.
Relevant Information The contractor shall use the following subject item list as a source guide for the definition of relevant information.
If an article deals with, by title or by subject, any of the following list, the contractor shall clip the article and furnish it as reovired above to the NRC, a.
Nuclear Enerqy (Except when Related to Weapons)
- 1. Atomic Energy
- 2. Commercial Nuclear Power Plants
- 3. Manufacturing Components for Nuclear Power Plants
- 4. Nuclear Energy
- 5. Nuclear Fuel (Including Reprocessing and Transportation)
- 6. Nuclear Power Research and Development
- 7. Nuclear Materials Management (Transportation and Safeguards)
- 8. Nuclear Health and Safety (Regulatory Only)
- 9. Nuclear Power I
o m
~-
ADM-8'6-211 Page 5 3
4
- 10. Nuclear Power Plants Radiation Including Environment Ef fects -
- 11. Nuclear Reactors and Power
- 12. Nuclear Safeguards
- 13. Nuclear Waste - Management, Storage, and Transporation
- 14. Plutonium
- 15. Thorium
- 16. Uranium
- 17. Emergency response preparedness / plans
- 18. Earthquakes and geologic / seismic hazards b.
Energy (Only when Related to Nuclear Pcwcr)
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- 1. National Energy Policy l
2.' Air Pollution Related to' Pro' duction of Electric Power by Nuclear Plants
- 3. Electric Utility Companies - Plans, Findne.es, Rotes, etc.
- 4. Power shortages and conservation (Olack' outs, Brownouts)
- 5. Power Transmission Lines
- 6. Prnjections, Plans, Policies, Decisions, Statistics
- 7. Siting of Nuclear and Fossil Fueled Power Plants
- 8. Thermal Pollution Resulting from Operation of Nuclear Facilities Agencies (When Related to Nuclear Matters - Except Weapons) c.
c.
~
- 1. Nuclear Regulatory Conriission
- 2. Environmental Protection Agency - Relat d,to Power -
1 Production 3.DepartmentofEnersy
- 4. United States Congrese
- 5. Foreign and International Atomic Energy Agencids' d.
Miscellaneous
- 1. Foreign Countries' Plans for Utilization of Nuclear Materials or Installation of Nuclear Power Reactors The contractor shall not clip advertisements, cartoons, or comic str'ips geven though they. might contain details of those items on. the list of subjects provided under paragraph D. of Section C.I.3. above.
To meet NRC's requirements, thA contractor is expected to read ~ the entire contents of each newspaper except the obituaries, classified advertisements, and comics.
Section D - Packaging and Marking The Contractor shall use standard commercial packaging for all items to ' he delivered.
On the front of the package, the Contractor shall clearly identify the contract number under which the product is being provided.
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3 ADM-86-211 Page 6 Section E - Inspection and Acceptance E.1 FAR-Citations 52.246-4 INSPECTION OF SERVICES--FIXED-PRICE.
(APR 1984)
(a) Definitions.
" Services," as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.
(b)
The Contractor shall provide and maintain an inspection system acceptable to the Government covering the services under this contract.
Complete records of all inspection work performed by the Contractor shall be maintained and made available to the Government during contract performance and for as long afterwards as the contract requires.
(c) The Government has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract.
The Government shall perform inspections and tests in a manner that will not unduly delay the work.
(d) If any of the services do not conform with contract requirements, the Governmen t may require the Contractor to perform the services again in conformity with contract requirements, at no increase in contrsct amount.
When the defects in services cannot be corrected by reperformance, the Government may (1) require the Contractor to take necessa ry action to ensure that future performance conforms to contract requirements and (2) reduce the contract price u
to reflect the reduced value of the services performed.
(e) If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformi ty with k
contract requirements, the Government may (1) by contract or otherwise, perform the services and charge to the Contractor any cost incurred by the Government that is directly related to the performance of such service or (2) terminate the contract for default.
(End of clause)
(R 7-1902.4 1971 NOV) 7 E.2 Place of Inspection and' Acceptance A.
Inspection and acceptance of the deliverable items to be furnished hereunder shall be made at the destination.
B.
Inspection of the services and deliverables called for h'ereunder shall be performed by the Project Officer.
C.
Acceptance of the services and deliverables called for hereunder shall be accomplished by the Contracting Officer, or the Project Officer.
Section F - Deliveries and Performance eF.1.
Time of Delivery The following items shall be delivered in accordance with the below listed schedule:
item Quantity Delivery A.
Same Day Daily and I set originals The contractor shall Weekend Clippings deliver the clippings
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ADM-86-?ll Page 7
-~x to NRC by 8:30 a.m. each s
day excluding weekends a
14* %s and national holidays B.
National Newspaper 1 set originals The contractor shall deliver the clippings,to n
NRC by 8:30 a.m.
each J
day excluding weekends s
+c' and national holidays.
.3 Clippings shall be 5
delivered no later-than acceptance period set forth in schedule under Section C.1.3.,
Paragraph B.
F.2.
Place of Delivery items A and B shall be delivered to the NRC in accordance with the delivery schedule set forth in F.1. above at the following address:
.. HAND DELIVER T0:
U.S. Nuclear Regulatory Commission
' 7920 Ncrfolk Avenue, Room 160 Bethesda, Maryland 20814 ATTENTION:
Ms. Margaret Conyngham F.3 Duration of Co'ntrdct Period s
I This contract shall become effective on ei'r'r the date of award or the effective date as otherwise specified, ar) :s $11 continue to completion w
thereof, estimated to occur within 'mhYf ' ir (24) months af ter said l
1 contract is effective.
The estimated ett>., tion date is October 31, 1987.
F.4 FAR' Citations 52.247-35 F.0.B. DESTINATION, WITHIN CONSIGNEE'S PREMISES, (APR 1984)
L (a). The term "f.o.b. destination, within consignee's premises," as used in this clause, means free of expense to the Government delivered and laid down F
within the doors of the consignee's premises, including delivery to specific f
rooms within a building if so specified.
L (b) The Contractor shall--
(1)
(1)
Pack and mark the shipment to comply with contract specifications;oor. <
(ii)'(In'the absence n'f specifications, prepa re the shipment in conformance with carrier requirements; (2) Prepare and distribute connercial bills of lading; (3) Deliver the shipment in good order and condition to the point of delivery specified in the contract; (4) Be responsible for any loss of and/or damage to the goods occurring l
before receipt of the shipment by the consignee at the delivery.pnint specified in the contract; s
h I
ADM-86-?ll Page 8 (5) Furnish a-delivery schedule and designate the mode of delivering carrier; and (6) Pay and bear all charges to the specified point of delivery.
(End of clause)
(R 1-19.306(a)(2) and (b))
Section G - Contract Administration Data G.1 Project Officer A.
The individual (s) listed in "B" below is (are) hereby designated as the Contracting Officer's authorized representative (hereinafter called Project Officer) for technical aspects of this contract.
The Project Officer is not authorized to approve or request any actinn which results in or could result in an increase in contract cost; or terminate, settle any claim or dispute arising under the contract, or issue any unilateral directive whatever.
The Project Officer is responsible for:
(1) monitoring the Contractor's technical
- progress, including surveillance and assessment of perfo rmance, and recommending to the Contracting Officer changes in requirements; (2) interpreting the scope of work; (3) performing technical evaluation as required; (4) performing technical inspections and acceptances required by this contract; and (5) assisting the Contractor in the resolution of technical problems encountered during performance.
Within the purview of this authority, the Project Officer is authorized to review all costs requested for reimbursement by Contractors and submit recommendations for
- approval, disapproval, or suspension
'fo" supplies / services required under the contract.
The Contractins Officer is responsible for directing or negotiating any changes in terms, conditions,'or amounts cited in the contract.
For guidance from the Project Officer to the Contractor te be valid, it must:
(1) be consistent with the description of work set forth in the contract; (2) not constitute new assignment of work or change to the expressed terms, conditions or specifications incorporated into this contract; (3) not constitute a basis for an extension to the period of performance or contract delivery schedule; and, as stated above, (4) not constitute a basis for any increase in the contract cost.
B.
Name and Mail Code:
Office Address:
Telephone Number:
- To be incorporated into any resultant contract G.2 Payment Due Date (a) Payments under this contract will be due 30 calendar days after the date of actual receipt of a proper invoice (original and 4 copies) to:
9
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g ADM-86-Pil Page 9 U.S. Nuclear Regulatory Commission Division of Accounting and Finance Office of Resource Management ATTN:
GOV /COM Accounts Section Washington, D.C.
20555 (b) The date of payment by wire transfer through the Treasury Financial Comunications System shall be considered the date payment is made for individual payments exceeding $25,000.
The date a check is issued shall be considered the date payment is made for individual payments of $25,000 or less.
G.3 Invoice Requirements Invoices shall be submitted in an original and 4 copies to:
U.S. Nuclear Regulatory Commission Division of Accounting and Finance Office of Resource Management ATTN:
GOV /COM Accounts Section Washington, D.C.
20555.
To constitute a proper invoice, the invoice must include the following information and/or attached documentation:
i (1) Name of the business concern and invoice date.
(2) Contract number or other authorization for delivery of property or services.
(3) Description price and quantity of property and services actually delivered or rendered.
(4) Ehipping and payment terms.
(5) Naie (where practicable), title, phone number, and complete mailing address of responsible official to whom payment is to be sent.
(6) Other substantiating documentation or information as required by the contract.
G.4 Interest on Overdue Payments (a) The Prompt Payment Act, Public Law 97-177 (96 STAT. 85, 31 USC 1801) is applicable to payments under this contract and requires the payment of interest to contractors on overdue payments and improperly taken discounts.
(b) Determinations of interest due will be made in accordance with the provisions c-the Prompt Payment Act and Office of Management and Budget Circular A-125, Vol. 47 Federal Register 37321, August 25, 1982. Among other considerations, OMB Circular A-125 provides that:
(
1 ADM-86-Pil Page 10 t'
(1) Interest penalties are not required when payment is delayed because of a disagreement over the amount of payment or other issues concerning compliance with the terms of the contract.
(2) Whenever a proper invoice is paid af ter the due date plus l 'a days, interest will be included with the payment at the interest rate applicable on the payment date.
Interest will be computed from the day after the due date through the payment date.
{
i Section H - Special Contract Requirements H.1 Drawings, Designs, and Specifications All drawings, sketches, designs, design data, specifications, notebooks, technical and scientific data, and all photographs, negatives, reports, findings, recommendations, data and memoranda of every description relating thereto, as well as all copies of the foregoing relating to the work or any part thereto, shall be subject to inspection by the Comission at all reasonable times (for which inspection the proper facilities shall be afforded the Commission by the Contractor and its subcontractors), shall be the property of the Government and may be used by the Government for any purpose whatsoever without any claim on the part of the Contractor and its subcontractors and vendors for additional compensation and shall, subject to the right.of the Contractor to retain a copy of said material for its own use, be delivered to the Government, or otherwise disposed of by the Contractor either as the Contracting i
Officer may from time to time direct.during the progress of the work or in any event as the Contracting Officer shall direct upon completion or l
termination of this contract.
The Contractor's right of retention and i
f i
use shall be subject to the security, patent, and use of information provisions, if any, of this contract.
I H.2 Contractor Organizational Conflicts of Interest (0MB Clearance Number
[
3150-0112)
(a)
Purpose.
The primary purpose of this clause is to aid in ensuring that the Contractor:
(1) Is not placed on a conflicting role because of current or planned interest (financial, contractual, organizational, or j
otherwise) which relate to the work under this contract, and (2) does not obtain an unfair competitive advantage over other parties by virtue f
of its performance of this contract.
t (b)
Scope.
The restrictions described herein shall apply to performance or participation by the Contractor as defined in 41 CFR 520-1.5402(f) in the activities covered by this clause.
(c)
Work for Others.
Notwithstanding any other provision of this contract, during the term of this contract, the Contractor agrees to forgo entering into consulting or other contractual arrangements with any firm or organization, the result of which may give rise to a i
conflict of interest with respect to the work being performed under this contract.
The Contractor shall ensure that all employees who are employed full time under this contract and employees designated as key 4
personnel, if any, under this contract abide by the provision of this
ADM-86-211 Page 11 clause.
If the Contractor believes with respect to itself or any such employee that any proposed consultant or other contractual arrangement with any firm or organization may involve a potential conflict of interest, the Contractor shall obtain the written approval of the Contracting Officer prior to execution of such contractual arrangement.
(d) Disclosure after award.
(1)
The Contractor warrants that to the best of its knowledge and l
belief and except as otherwise set forth in this contract, it does not have any organizational conflicts of interest, as defined in 41 CFR 20-1.5402(a).
(2)
The Contractor agrees that if after award it discovers l
organizational conflicts of interest with respect to this contract, it shall make an immediate and full disclosure in writing to the l
Contracting Officer.
This statement shall include a description of the action which the Contractor has taken or proposes to take to avoid or mitigate such conflicts.
The NRC may, however, terminate the contract for convenience if it deems such termination to be in the best interests of the Government.
(e) Access to and use of information.
l (1)
If the Contractor in the performance of this contract obtains access to info rma tion,
such as NRC plans, policies,
- reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (Pub. L.93-579), or data which has not been released to the public, the Contractor agrees not to:
(i) Use such information for any private purpose until the information has been released to the public; (ii) compete for work for the Commission based on such information for a period of six (6) months after either the completion of this contract or the release of such information to the public, whichever is first; (iii) submit an unsolicited proposal to the Government based on such information until one year after the release of such information to the public, or (iv) release the information without prior written approval by the Contracting Officer unless such information has previously been released to the public by the NRC.
(2)
In addition, the Contractor agrees that to the extent it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (Pub. L. 93-5791, or other confidential or privileged technical, business, or financial information under this contract, the Contractor shall treat such information in accordance with restrictions placed on use of the information.
l
ADM-86-P]I g
Pag 2 12 (3)
The Contractor shall 'have, subject to patent and sacurity provisions of this contract, the right to use technical data it produces under this contract for private purposes provided that all requirements of this contract have been met.
(f)
Subcontracts.
Except as provided in 41 CFR 20-1.5402(h), the Contractor shall include this clause, including this paragraph, in subcontracts of any tier.
The terms " contract," " Contractor," and
" Contracting Officer," shall be appropriately modified to preserve the Government's rights.
(g)
Remedies.
For breach of any of the above prescriptions or for intentional nondisclosure or misrepresentation of any relevant interest required to be disclosed concerning this contract or for such erroneous representations as necessarily imply bad faith, the Government may terminate the contract for default, disqualify the Contractor from subsequent contractual efforts, and pursue other remedies as may be permitted by law or this contract.
(h)
Waiver.
A request for waiver under this clause shall be directed in writing through the Contracting Officer to the Executive Director for Operations (ED0) in accordance with the procedures outlined in %20-1.5411.
H.3 Method of Payment (a) Payment under this contract will be made by wire transfer through the Treasury Financial Communications System for each individual payment in excess of $25,000 and by Treasury check for each individual payment of $25,000 or less.
(b) Within seven days after the effective date of the contract, the Contractor shall forward the following information in writing to the Contracting Officer to facilitate wire transfer of contract payments.
In the event that the Contractor's financial institution has access to the Federal Reserve Communications System, Contractor shall complete all items except items 7 - 9.
In the event the Contractor's financial institution does not have access to the Federal Reserve Communications System, Contractor shall complete all iteras except item 4.
1.
Name and address of organization 2.
Contact person and telephone number 3.
Name and address of financial institution 4.
Financial institutions's 9-digit ABA identifying number for,
routing transfer of funds 5.
Telegraphic abbreviation of financial institt,t on 6.
Account number at your financial ins ti tution your 'inancial institution receives electronic funds transfer messages
- brough, j
i i
I ADM-86-Pil Page 13 if it does not have access to the Federal Reserve Communications System 7.
Name and address of the correspondent financial institution your financial institution receives electronic funds transfer messages through,- if it does not have access to the federal Reserve Communications System 8.
Correspondent financial institution 9-digit ABA identifying number for routing transfer of funds 9.
Telegraphic abbreviation of correspondent financial institution 10.
Signature and title of person supplying this information (c) Any changes to the information furnished under paragraph (b) of this clause shall be furnished to the Contracting Officer in writing.
It is the Contractor's responsibility to furnish these changes promptly to avoid payments to erroneous bank accounts.
H.4 Determination of Minimum Wages and Fringe Berefits Each service employee employed in the performance of this contract by the contractor or any sub-contractor shall be paid the minimum monetary wage and shall be furnished fringe benefits in accordance with the wages and fringe benefits under Wage Determination Number 80-1294 (Rev.-13) dated March 22, 1984, and attached hereto as Attachment number 4.
P 0
P k
I i
r
1 ADM-86-211 Page 14 PART II - CONTRACT CLAUSES Section 1 - Contract Clauses 52.202-1 DEFINITIONS.
(APR 1984)
(a) " Head of the agency" (also called " agency head") or " Secretary" means the Secretary (or Attorney General, Administrator, Governor, Chairperson, or other chief official, as appropriate) of the agency, including any deputy or assistant chief official of the agency, and, in the Department of Defense, the Under Secretary and any Assistant Secretary of the Departments of the Army, Navy, and Air Force and the Director and Deputy Director of Defense agencies; and the term " authorized representative" means any person, persons, or board (other than the Contracting Officer) authorized to act for the head of the agency or Secretary.
(b) " Contracting Of ficer" means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings.
The term includes certain authorized representatives of the Contracting Officer acting within the limits of their authority as delegated by the Contracting Officer.
(c) Except as otherwise provided in this contract, the term " subcontract s" includes, but is not limited to, purchase orders and changes and modifications to purchase orders under this contract.
(End of clause)
(R 7-103.1 1979 MAR)
(R 7-203.1)
(R 7-302.1)
(R 7-402.1)
(R 7-901.1)
(R 7-1902.1)
(R 7-1909.1) 52.203-1 0FFICIALS NOT TO BENEFIT.
(APR 1984)
No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this contract, or to any benefit arising from it.
However, this clause does not apply to this contract to the extent that this contract is made with a corporation for the corporation's general t'enefit.
(End of clause)
(R 7-103.19 1949 JUL)
(R 1-7.102-17) 52.203-3 GRATUITIES.
(APR 1984)
(a) The right of the Contractor to proceed may be terminated by wri tten notice if, af ter 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 favorablo treatment under a contract.
(b) The facts supporting this determination may be reviewed by any court having lawful jurisdiction.
1
ADM-86-211 Page 15 (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)
(R 7-104.16 1952 MAR) 52.203-5 C0VENANT AGAINST CONTINGENT FEES.
(APR 1984)
(a) The Contrar. tor 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, in its discretion, to deduct from the contract l
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 comercial 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 halds 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 nr 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 en.ployee or officer to give consideration or to act regarding a Government contract on any basis other than tne merits of the matter.
(End of clause)
(R 7-103.20 1958 JAN)
(R 1-1.503)
(R 1-7.102-18) 52.214-26 AUDIT--F0RMAL ADVERTISING.
(APR 1984)
(a) Cost or pricing data.
If the Contractor has submitted cost or pricing data in connection with the pricing of any modification to this contract, unlest the pricing was based on adequate price competition, established catalog or narket prices of commercial items sold in substantial quantities to the general public, or prices set by law or regulation, the Contracting Officer or a representative who is an employee of the Government shall have the right to i
ADM-86-211 g
Page 16 I
examine ard audit all books, records, documents, and other data of the Contractor (including computations and projections) related to negot ia t ing, pricing or performing the modification, in order to evaluate the ac cu rac y,
completeness, and currency of the cost or pricing data.
In the case of pricino any modification, the Comptroller General of the United States or a
representative who is an employee of the Government shall have the same rights.
(b) Availability.
The Contractor shall make available at its of fice at all reasonable times the materials described in paragraph (a)
- above, for examina tion, audit, or reproduction, until 3 years af ter final payment under this contract, or for any other period specified in Subpart 4.7 of the Federal Acouisition Regulation (FAR).
FAR Subpart 4.7, Contractor Records Retention, in effect on the date 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 terrrinated, 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.
(c) The Contractor shall insert a clause containing all the provisions of this clause, including 'his pa ragraph (c), in all subcontracts over $10,000 under this contract, altering the clause only as necessary to identify properly E
the contracting parties and the contracting office under the Government prime contract.
B (End of clause)
(R 7-104.41(a) 1982 DEC)
(R 1-3.814-2(a))
5?.216-21 REQUIREMENTS.
(APR 1984)--Alternate III.
(APR 1984)
(a) This is a requirements contract for the supplies or services specified, and effective for the period stated, in the Schedule.
The cuantities of supplies or services specified in the Schedule are estimates only and are not Durchased 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 Delivery-0rder Limitations clause or elsewhere in this contract, the Contractor shall furnish to the Government all supplies er 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) 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 i
ADM-86-211 Page 17 aCCordance With its delivery requirements, to maintain as close a ratio as is toasonably practicable between the total quantities ordered from the two Contractors.
(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 Contracter's and
'invernment 's ' rights and obligations with respect to that order to the same extent as if the order were completed during the contract's ef fective period; provided, that the Contractor shall not he required to make any deliveries under this coritract af ter.
(End of clause)
(R 7-Il02.2(b) 1966 0CT)
(R 7-Il02.2(b)(4) 1966 0CT) 52.219-6 NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE.
(APR 1964)
(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) General.
(1) Of fers 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 resultino from this solicitation will be made to a smell business concern.
(c) Acreement.
A manufacturer or regular dealer submitting an of fer in it s own name agrees to furnish, in performing the contract, only end items manufactured or produced by small business concerns inside the United States, its territories and possessions, the Commonwealth nf Puerto Rico, the Trust Territory of the Pacific Islands, or the District of Columbia.
However, this requirement does not apply in connection with construction or service contractr.
(End of clause)
(R 7-2003.2 1972 JUL)
(R l-1.706-5(e)1 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGEP BUSINESS CONCERNS.
(APR 1984)
(a) It is the policy of the United States that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunit) to participate in performing contracts let by any Federal agency.
(b) The Contractor hereby agrees to carry out this policy in the awarding of mbtontracts to the fullest extent consistent with efficient contract i
performance.
The Contractor further agrees to cooperate in any studies or I
ADM-86-?ll 1
Page 18 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.
(c) As used in this contract, the term "small business concern" shall nean a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto.
The term "small business concern owned and centrolled by socially and economically disadvant;iged individuals" shall mean a small business concern--
(1) Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned business, at least 51 per centum of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (2) Whose management and daily business operations are controlled by one or more of such individuals.
The Contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americanc, Native Americans, Asian-Pacific Americans, Asian-Indian Americans and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to sec tion 8(a) of the Small Business Act.
(d) Contractors acting in good faith may rely on written representatiorc by their subcontractors regarding their status as either a small business concern or a small business concern owned and controlled by socially and economically disadvantaged individuals.
(End of clause)
(R 7-104.14(a) 1980 AUG)
(V FPR Temp. Reg. 50 1979 JUN and its Supplement 2 1980 MAY) 52.219-13 UTILIZATION OF WOMEN-0WNED SMALL BUSINESSES.
(APR 1984)
(a) " Women-owned small businesses," as used in this clause, means businesses that are at least 51 percent owned by women who are United States citizens and who also control and operate the business.
J
" Control," as used in this clause, means exercising the power to make policy decisions.
" Operate," as used in this clause, means being actively involved in the day-to-day management of the business.
(b) It is the policy of the United States that women-owned small businesses shall have the maximum practicable opportunity to participate in performing contracts awarded by any Federal agency.
(c) The Contractor agrees to use its best efforts to give wonen-owned small t
businesses the maximum practicable opportunity to participate in the subcontracts i t awards to the fullest extent consistent with the efficient performance of its contract.
(End of clause)
(7-104.52 1980 AUG)
(FPR Temp. Reg. 54 1980 MAY) 57.220-3 UTILIZATION OF LABnR SURPLUS AREA CONCERNS.
(APR 1984)
(a) Applicability.
This clause is applicable if this centract excteds the appropriate small purchase limitation in Part 13 of the Federal Acquisition Regulation.
l
_.,_.,,__7.y
--,,__,___y..---,-em-
,mr,,-..m,.a_.-.
,,,-.y..,
m, c_c-----,--_w,,,,v--.-y,
ADM-86-?ll Page 19 (b) Policy, it is the policy of the Government to award contracts to i
(.oncerns that agree to perform substantially in labor surplus areas (LSA's) when this can be done consistent with the efficient performance of the contract and at prices no higher than are obtainable elsewhere.
The Contractor agrees to use its best efforts to place subcontracts in accordance with this policy.
(c) Order of preference.
In complying with paragraph (b) above and with pa ragraph (c) of the clause of this contract entitled Utilization of Small Business Concerns and Small Disadvantaged Business Concerns, the Contractor shall observe the following order of preference in awarding subcontracts:
(1)
I small business concerns that are LSA concerns, (2) other small business concerns, and (3) other LSA concerns.
2 j
(d) Definitions.
" Labor surplus area," as used in this clause, means a l
geographical area identifieo by the Department of Labor in accordance with 20 CFR 654, Subpsrt A, as an area of concentrated unemployment or underemployment or an area of labor surplus.
" Labor surplus area concern," as used in this clause, means a cnncern that tr.gether with its first-tier subcontractors will perform substantially in labor surplus areas.
Performance is substantially in labor surplus areas if the costs incurred under the contract on account of manufacturing, production, or i
performance of appropriate services in labor surplus areas exceed 50 percent of the contract price.
(End of clause)
(R 1-1.805-3(a))
j (R 7-104.20(a) 1981 May) 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES, (APR 1984)
(a) If the Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this contract, the Contractor shall innediately give notice, including ell relevant information, to the Contracting Officer.
(b) The Contractor agrees to insert the substance of this clause, including
~
this paragraph (b), in any subcontract to which a labor dispute may delay the timely performance of this contract; except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the subcontractor shall immediately notify the next higher tier subcontractor or the prime Contractor, as the case may be, of all relevant information concerning the dispute.
(End of clause) i (R 7-203.27 1967 JUN)
(AV 7-104.4 1958 SEP) 4 (AV 7-603.1 1958 SEP) 52.222-3 CONVICT LABOR.
(APR 1984)
The Contractor agrees not to employ any person undergoing sentence of imprisonment in performing this contract except as provided by 18 U.S.C.
4082(c)(2) and Executive Order 11755, December 29, 1973.
(End of clause)
(R7-104.171975OCT)
(R 7-607.12 1975 0CT)
(Rl-12.204) it a
i
ADM-66-Pil Page 20 1
52.222-26 EQUAL OPPORTUNITY.
(APR 1984)
(a) If, during any 12-month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded nonexempt Federal contracts and/or subcontracts that have an aggregate value in excess of $10,000, the Contractor shall comply with subparagraphs (b)(1) threugh (11) below.
Upon request, the Contractor shall provide information necessary to determine the
[
applicability of this clause.
(h) During performing this contract, the Contractor agrees as follows:
(1) The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national urigin.
(2)
The Contractor shall take affirmative action to ensure that l
applicants dre employed, and that employees are treated during employment,
]
without regard to thEir race, color, religion, sex, or national origin.
This shall include, but not be limited to, (i) employment, (ii) upgrading, (iii)
E demottor, (iv) transfer, (v) recruitment or recruitment advertisino, (vi) layof f or termination, (vii) rates of pay or other forms of compensation, anc' (viii) selection for training, including apprenticeship.
(3) The Contractor shall post in conspicuous places available to empleyces and applicants for employment the notices to be provided by the Contracting Officer that explain this clause.
(4) The Contractor shall, in all solicitations or advertisement for erployees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race,
=
color, religion, sex, or national origin.
(5) The Contractor shall send, to each labnr union or representative of workers with which it has a, collective bargaining agreement or other contract or understanding, the notice to be provided by the Contracting Officer advising the labor union or workers' representative of the Contractor's commitments under this clause, and post copies of the notice in conspicuous places available to erployees and applicants for employment.
(6) The Contractor shall comply with Executive Order 11246, as amendod, and the rules, regulations, and orders of the Secretary of Labor.
(7)
The Contractor shall furnish to the contracting agency all information reguired by Executive Order 11246, as amended, and by the rules,
regulations, and orders of the Secretary of Labor.
Standard Forn 100 (EE0-!),
or any successor form, is the prescribed form to be filed within 30 days following the award, unless filed within 12 months preceding the date of award.
(8) The Contractor shall permit access to its books, records, and accounts by the contracting agency or the Office of Federal Contract Compliante Programs (0FCCP) for the purposes of investigation to ascertain the Contractor'e, compliance with the applicable rules, regulations, and orders.
(9) If the 0FCCP determires that the Contractor is not in compliance vith this clause or any rule, regulation, or order of the Secretary of Lat'or, this contract may be canceled, terminated, or suspended ir whole or in part and the Contractor may be declared ineligible for further Government con t ra c t s,
under the procedures authorized in Executive Order 11246, as amended, in addition, sanctions may be imposed and remedies invoked against the Contractor as provided in Executive Order 11246, as amended, the rules, regulations, and orders of the Secretary of Labor, or as otherwise provided by law.
(10)
The Contractor shall include the terms and conditions of tubparagraph (b)(1) through (11) of this clause in every subcontract or rurchase order that is not exempted by the rules, regulations, or orders of the Secretary i
I ADM-86-Pil Page 21 of Labor issued under Executive Order 11246, as amended, so that these terms and conditions will be binding upon each subcontractor or vendor.
(11)
The Contractor shall take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing these terms and conditions, including sanctions for noncompliance; provided, that if the Contractor becomes involved in, or is threatened with, j
litigation with a subcontractor or vendor as a result of any direction, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.
(c) Notwithstanding any other clause in this contract, disputes relative to this clause will be governed by the procedures in 41 CFR 60-1.1.
(End of clause)
(R 7-103.18 1978 SEP)
(R 1 12.803-2)
(R 7-607.13 1978 SEP) 52.222-35 AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA VETERANS (APh 1984)
(a) Definitions.
" Appropriate office of the State employment service system," as used in this clause, means the local office of the Federal-State national system of public employment offices assigned to serve the area where the employment opening is to be filled, including the District of Columbia, Guam, Puerto Rico, Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands.
" Openings that the Contractor proposes to fill from within its own organization," as used in this clause, means employment openings for which no one outside the Contractor's organization (including any affiliates, subsidiaries, and the parent companies) will be considered and includes any openings that the Contractor proposes to fill from regularly established
" recall" lists.
" Openings that the Contractor proposes to fill under a customary and traditional employer-union hiring arrangement," as used in this clause, means employment openings that the Contractor proposes to fill from union halls, under their customary and traditional employer-union hiring relationship.
" Suitable employment openings," as used in this clause--
(1) Includes, but is not limited to, openings that occur in jobs categorized as--
(i) Production and nonproduction; i
(ii) Plant and office; (iii) Laborers and mechanics; (iv) Supervisory and nonsupervisory; (v) Technical; and (vi)
Executive, administrative, and professional positions compensated on a salary basis of less that $25,000 a year; and (2) Includes full-time employment, temporary employment of over 3 days, and part-time employment, but not openings that the Contractor proposes to fill from within its own organization or under a customary and traditional employer-union hiring arrangement, nor openings in an educational institution that are restricted to students of that institution.
(b) General. (1) Regarding any position for which the employee or applicant for employment is qualified, the Contractor shall not discriminate against the individual because the individual is a special disabled or Vietnam Era veteran.
The Contractor agrees to take affirmative action to employ, advance in
ADM-86-211 Pag? 22 employment, and otherwise treat qualified special disabled and Vietnam Era veterans without discrimination based upon their disability or veterans' status in all employment practices such as--
(i) Employment; (ii) Upgrading; (iii) Demotion or transfer; (iv) Recruitment; (v) Advertising; (vi) Layoff or terinination; (vii) Rates of pay or other forms of compensation; and (viii) Selection for training, including apprenticeship.
(2) The Contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor (Secretary) issued under the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (the Act), as amended.
(c) Listing openings.
(1) The Contractor agrees to list all suitable employment openings existing at contract award or occuring during contract performance, at an appropriate office of the State employment service system in the locality where the opening occurs.
These openings include those occuring at any Contractor facility, including one not connected with performing this contract. An independent corporate affiliate is exempt from this requirement.
(2) State and local government agencies holding Federal contracts of
$10,000 or more shall also list all their suitable openings with the appropriate office of the State employment service.
(3)
The listing of suitable employment openings with the State employment service system is required at least concurrently with using any other recruitment source or effort and involves the obligations of placing a bona fide job order, including accepting referrals of veterans and nonveterans.
This listing does not require hiring any particular job applicant or hiring from any particular group of job applicants and is not intended to relieve the Contractor from any requirements of Executive orders cr regulations concerning nondiscrimination in employment.
(4) Whenever the Contractor becomes contractually bound to the listing terms of this clause, it shall advise the State employment service system, in each State where it has establishments, of the name and location of each hiring location in the State.
As long as the Contractor is contractually bound to these terms and has so advised the State system, it need not advise the State system of subsequent contracts.
The Contractor may advise the State system when it is no longer bound by this contract clause.
(5) Under the most compelling circumstances, an employment opening may not be suitable for listing, including situations when (i) the Government's needs cannot reasonably be supplied, (ii) listing would be contrary to national security, or (iii) the requirement of listing would not be in the Government's interest.
(d) Applicability. (1) This clause does not apply to the listing of employment openings which occur and are filled outside the 50 states, the District of Columbia, Puerto Rico, Guam, Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands.
(2) The terms of paragraph (c) above of this clause do not apply to openings that the Contractor proposes to fill from within its own organization j
or under a customary and traditional employer-union hiring arrangement.
This exclusion does not apply to a particular opening once an employer decides to consider applicants outside of its own organization or employer-union arrangement for that opening.
l
ADM-86-211 Page 23 (e) Postings. (1) The Contractor agrees to post employment' notices stating (i) the Contractor's obligation under the law to take affirmative action to l
employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era, and (ii) the rights of applicants and employees.
(2) These notices shall be posted in conspicuous places that are available to employees and applicants for employment.
They shall be in a form prescribed by the Director, Office of Federal Contract Compliance Programs, i
i Department of Labor (Director), and provided by or through the Contracting Officer.
(3) The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of the Act, and is committed to take affirmative action to employ, and advance in employment, qualified special disabled and Vietnam Era veterans.
(f) Noncompliance. If the Contractor does not comply with the requirements of this clause, appropriate actions may be taken under the rules, regulations, and relevant orders of the Secretary issued pursuant to the Act.
(g) Subcontracts. The Contractor shall include the terms of this clause in every subcontract or purchase order of $10,000 or more unless exempted by rules, regulations, or orders of the Secretary.
The Contractor shall act as specified by the Director to enforce the terms, including action for noncompliance.
(End of clause)
(R 7-103.27 1976 JUL)
(R FpR Temp. Reg. 39) 52.222-36 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)
(a) General. (1) Regarding any position for which the employee or applicant for employment is qualified, the Contractor shall not discriminate against any employee or applicant because of physical or mental handicap.
The Contracter agrees to take affirmative action to employ, advance in employment, and i
otherwise treat qualified handicapped individuals without discrimination based l
upon their physical or mental handicap in all employment practices such as--
(i)
Employment; ii)
Upgrading; iii)
Demotion or transfer; iv)
Recruitment; v)
Advertising; (vi)
Layoff or termination; (vii) Rates of pay or other forms of compensation; and (viii) Selection for training, including apprenticeship.
(2) The Contractor agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor (Secretary) issued under the Rehabilitation Act of 1973 (29 U.S.C. 793) (the Act), as amended.
(b) Postings. (1) The Contractor agrees to post employment notices stating (i) the Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified handicapped individuals and (ii) the rights of applicants and employees.
(2) These notices shall be posted in conspicuous places that are available to employees and applicants for employment.
They shall be in a form prescribed by the Director, Office of Federal Contract Compliance Prngrams, Department of Labor (Director), and provided by or through the Contracting Officer.
I
g ADM-86-211 Page 24 (3) The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of Section 503 of the Act and is committed to take effirmative action to employ, and advance in employment, qualified physically ind mentally handicapped individuals.
(c) Noncompliance. If the Nntractor does not comply with the requirements of this clause, appropriate acticw may be taken under the rules, regulations, and relevant orders of the Secret..ry issued pursuant to the Act.
(d) Subcontracts. The Contracor shall include the terms of this clause in every subcontract or purchase order in excess of $2,500 unless exempted by rules, regulations, or orders of the Secretary.
The Contractor shall act as specified by the Director to enforce the
- terms, including action for noncompliance.
(End of clause)
(R 7-103.28 1976 MAY)
(R FPR Temp. Reg. 38)
FpR TEMP. REG 76 SERVICE CONTRACT ACT (a) Service Contract Act of 1965, as amended:
This contract is subject to the Service Contract Act of 1965, as amended (41 U.S.C. 351 et seq.) and is subject to the following provisions and to all other applicable provisions of the Act and regulations of the Secretary of Labor issued thereunder (29 CFR.nart4).
(b)(1)
Each service employee employed in the performance of this contract by the contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor or authorized representative, as specified in any wage determination attached to this l
contract.
l (2)(i)
If there is such a wage determination attached to this contract, the contracting officer shall require that any class of service employee which is not listed therein and which is to be employed under the contract (i.e., the work to be performed is not performed by any classification listed in the wage determination), be classified by the contractor so as to provide a reasonable relationship (i.e., appropriate level of skill comparison) between such unlisted classifications and the classifications listed in the wage determination.
Such conformed class of employees shall be paid the monetary wages and. furnished the fringe benefits as are determined pursuant to the procedures in this sectinn.
(The information collection requirements contained in the following paragraph of this section have been approved by the Office of Management and Budget under OMB control number 1215-0150.)
(ii)
Such conforming procedure shall be initiated by the contractor prior te the performance of contract work by such unlisted class of employee.
A written report of the proposed conforming action, including information regarding the agreement or disagreement of the authorized representative of the employees involved or, where there is no authorized representative, the employees themselves, shall be submitted by the contractor to the contracting officer no later than Y) days after such unlisted class of employees performs any contract work.
The contracting officer shall review the proposed acticn and promptly submit a report of the action, together with the agency's recommendation and all pertinent information including the position of the contractor and the
_ _ =
ADM-86-211 i
Page 25 l
employees, to the Wage and Hour Division, Employment Standards Administration, O.S. Department of Labor, for review.
The Wage and Hour Division will approve, modify, or disapprove the action or render a final determination in the event of v
disagreement within 30 days of receipt or will notify the contracting officer within 30 days of receipt that additional time is necessary.
r (iii)
The final determination of the conformance action by the Wage and Hour Division shall be transmitted to the contracting officer who shall promptly n
noti fy the contractor of the action taken.
Each affected errployee shall be furnished by the contractor with a written copy of such determination or it i
shall be posted as a part of the wage determination.
(iv)(A) The process of establishing wage and fringe bent. it rates that bear a reasonable relationship to those listed in a wage detennina tion cannot be
]
reduced to any single formula.
The approach used may vary from wage determination to wage determination depending on the circumstances.
Standard wage and salary administration practices which rank various job classifications by pay grade pursuant to point schemes or other job factors may, for example, be relied upon.
Guidance may also be obtained from the way different jobs are rated under Federal pay systems (Federal Wage Board Pay System and the General 1
]
Schedule) or from other wage determinations issued in the same locality.
Basic i
to the establishment of any conformable wage rate (s) is the concept that a pay 1
relationship should be maintained between job classifications based on the skill required and the duties performed.
(B) In the case of a contract modification, an exercise of an option or extension of an existing contract, or in any other case where a contractor succeeds a contract under which the classification in question was previously conformed pursuant to thi.s section, a new conformed wage rate and fringe benefits may be assigned to such conformed classification by indexing (i.e.,
adjusting) the previous conformed rate and fringe benefits by an amount equal to the average (mean) percentage increase (or decrease, where appropriate) between j
the wages and fringe benefits specified for all classifications to be used on the contract which are listed in the current wage determination, and those specified for the corresponding classifications in the previously applicable wage determination.
Where conforming actions are accomplished in accordance with this paragraph prior to the performance of contract work by the unlisted i
class of employees, the contractor shall advise the contracting officer of the i
action taken but the other procedures in paragraph (b)(2)(ii) of ithis section need not be followed.
l (C) No errployee engaged in performing work on this contract shall in any event 4
be paid less than the currently applicable minimum wage specified under section
]
6(a)(1) of the Fair Labor Standards Act of 1938, as amended.
(v) The wage rate and f ringe benefits finally determined pursuant to paragraphs (b)(2)(i) and (ii) of this section shall be paid to all employces performing in the classification from the first day on which contract work is performed by them in the classification.
Failure to pay such unlisted employees the i
j compensation agreed upon by the interested parties and/or finally determined by the Wage and Hour Division retroactive to the date such class of employees I
comenced contract work shall be a violation of the Act and this contract.
1 i
1
t l
ADM-86-211 Page 26 (vi)
Upon discovery of failure to comply with paragraph (b)(2)'(1) through (v) of this section, the Wage and Hour Division shall make a final determination of conformed classification, wage rate, and/or fringe benefits which shall be retroactive to the date such class of employees commenced contract work.
(3)
If, as authorized pursuant to section 4(d) of the Service Contract Act of 1965 as amended, the term of this contract is more than 1 year, the minimum monetary wages and fringe benefits required to be paid or furnished thereunder to service employees shall be subject to adjustment after 1 year and not less l
often than once every 2 years, pursuant to wage determinations to be issued by l
the Wage and Hour Division, Employment Standards Administration of the l
Department of Labor as provided in such Act.
l (c)
The contractor or subcontractor may discharge the obligation to furnish l
fringe benefits specified in the attachment or detennined conformably thereto by furnishing any equivalent combinations of bona fide fringe benefits, or by ma king equivalent or differential payments in cash in accordance with the applicable rules set forth in Subpart D of 29 CFR Part 4, and not otherwise.
(d)(1)
In the absence of a minimum wage attachment for this contract, neither the contractor nor any subcontractor under this contract shall pay any person performing work under the contract (regardless of whether they are service employees) less than the minimum wage specified by section 6(a)(1) of the Fair Labor Standard Act of 1938.
Nothing in this provision shall relieve the i
contractor or any subcontractor of any other obligation under law or contrac.t for the payment of a higher wage to any employee.
l (2)
If this contract succeeds a contract, subject to the Service Contract Act of 1965 as amended, under which substantially the same services were furnished in the same locality and service employees were paid wages and fringe benefits provided for in a collective bargaining agreement, in the absence of the minimum wage attachment for this contract setting forth such collectively bargained wage rates and fringe benefits, neither the contractor nor any subcontractor under this contract shall pay any service employee performing any of the contract wnrk (regardless of whether or not such employee was employed under the predecessor contract), less than the wages and fringe benefits provided for in such collective bargaining agreements, to which such employee would have been entitled if employed under the predecessor contract, including accrued wages and fringe benefits and any prospective increases in wages and fringe benefits provided for under such agreement.
No contractor or subcontractor under this l
contract may be relieved of the foregoing obligation unless the limitations of 64.lb(b) of 29 CFR Part 4 apply or unless the Secretary of Labor or his authorized representative finds, after hearing as provided in 64.10 of 29 CFR Part 4 that the wages and/or fringe benefits provided for in such agreement are substantially at variance with those which prevail for services of a character similar in the locality, or determines, as provided in 64.11 of 29 CFR Part 4, that the collective bargaining agreement applicable to service employees employed under the predecessor contract was not entered into as a result of arm's-length negotiations.
Where it is found in accordance with the review procedures provided in 29 CFR 4.10 and/or 4.11 and Parts 6 and 8 that some or all of the wages and/or fringe benefits contained in a predecessor contractor's collective bargaining agreement are substantially at variance with those which prevail for services of a character similar in the locality, and/or that the collective bargaining agreement applicable to service employees employed under i
ADM-86-211 Page 27 the predecessor contract was not entered into as a result of arm's-length negotiations, the Department will issue a new or revised wage determination setting forth the applicable wage rates and fringe benefits.
Such determination shall be made part of the contract or subcontract, in accordance with the decision of the Administrator, the Administrative Law Judge, or the Board of Service Contract Appeals, as the case may be, irrespective of whether such issuance occurs prior to or after the award of a contract or subcontract 53 I
Comp. Gen. 401 (1972).
In the case of a wage determination issued solely as a result of a findint of substantial variance, sui b determination shall be effective as of the dote of the final administrative uecision.
(e)
The contractor and any subcontractor under this contract shall notify each service employee commencing work on this contract of the minimum monetary wage and any fri'nge benefits required to be paid pursuant to this contract, or shall E
post the wage determination attached to this contract.
The poster provided by the Department of Labor (Publication WH 1313) shall be posted in a prominent and accessible place at the worksite.
Failure to comply with this requirement is a violation of section 2(a)(4) of the Act and of this contract.
(Approved by the Office of Management and Budget under OMB control number 1215-0150).
(f)
The contractor or subcontractor shall not permit any part of the services called for by this contract to be performed in buildings or surroundings or under working conditiors provided by or under the control or supervision of the contractor or subcontractor which are unsanitary or hazardous or dangerous to the health or safety of service employees engaged to furnish these services, and the centractor ur subcontractor shall comply with the sa fe ty and health standards applied under 29 CFR Part 1925.
(g)(1)
The contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years f rom the completion of the work records containing the information specified in paragraphs (g)(1)(i) through (vi) of this section for each employee subject to the Act and shall make them available for inspection and transcription by authorized representatives of the Wage and Hour Division, Employment Standards Administration of the U.S.
Department of Labor.
(Sections 4.6(g)(1)(i) through (iv) approved by the Office of Management and Budget under 0MB control number 1215-0017 and sections 4.6(g)(1)(v) and (vi) approved under OMB control number 1215-0159).
(i) Name and address and social security number of each employee.
(ii)
The correct work classification or classifications, rate or rates of monetary wages paid and fringe benefits provided, rate or rates of tringe benefit payments in lieu thereof, and total daily and weekly compensatiun of each employee.
(iii)
The number of daily and weekly hours so worked by each employce.
(iv)
Any deductions, rebates, or refunds from the total daily or weekly compensation of each employee.
(v)
A list of monetary wages and fringe benefits for those classes of service employees not included in the wage determination attached to this contract but for which such wage rates or fringe benefits have been determined by the intersted parties or by the Administrator or authorized representative pursuant I
ADM-86-Pil Page 28 to the labor standards clause in paragraph (b) of this section.
A copy of the report required by the clause in paragraph (b)(2)(ii) of this section shall be deemed to be such a list.
(vi)
Any list of the predecessor contractor's employees which have been furnished to the contractor pursuant to 64.61(1)(2).
(2)
The contractor shall also make available a copy of this contract for inspection or transcription by authorized representatives of the Wage and Hour Division.
(3)
Failure to make and maintain or to make available such records for inspection and transcription shall be a violation of the regulations and this contract, and in the case of failure to produce such records, the contracting officer, upon direction of the Department of Labor and notification of the contractor, shall take action to cause suspension of any further payment or advance of funds until such violation ceases.
(4)
The contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.
(h)
The contractor shall unconditionally pay to each employee subject to the Act all wages due free and clear and without subsequent deduction (except as otherwise provided by law or Regulations, 29 CFR Part 4), rebate, or kickback or any account.
Such payments shall be made no later than one pay period following the end of the regular pay period in which such wages were earned or accrued.
A pay period under this Act may not be of any duration longer than semi-monthly.
(1)
The contracting officer shall withhold or cause to be withheld from the Government prime. contractor under this or any other Government contract with the prime contractor such sums as an appropriate official of the Department of Labor requests or such sums as the contracting officer decides may be necessary to pay underpaid employees employed by the contractor or subcontractor.
In the event of failure to pay any employees subject to the Act all or part of the wages or fringe benefits due under the Act, the agency may, after authorization or by direction of the Department of Labor and written notification to the contractor, take action to cause suspension of any further payment or advance of funds until such violations have ceased.
Additionally, any failure to comply with the requirements of these clauses relating to the Sevice Contract Act of 1965, may be grounds for termination of the right to proceed with the contract work.
In such event, the Government may enter into other contracts or arrangements for completion of the work, charging the contractor in default with any additional cost.
(j)
The contractor agrees to insert these clauses in this section relating to the Service Contract Act of 1965 in all subcontracts subject to the Act.
The term " contractor" as used in these clauses in any subcontract, shall be deemed to refer to the subcontractor, except in the tenn " Government prime contractor."
(k)(1)
As used in these clauses, the term " service employee" means any person engaged in the performance of this contract other than any person employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in Part 541 of Title 29, Code of Federal Regulations, as of July 30, 1976, and any subsequent revision of those regulations.
The term " service
g ADM-86-211 Pag? 29 employee" includes all such persons regardless of any contractual relationship that may be alleged to exist between a contractor or subcontractor and such persons.
(2)
The following statement is included in contract pursuant to section 2(a)(5) of the Act and is for informational purposes only:
The following classes of service employees expected to be employed under the contract with the Government would be subject, if employed by the contracting agency, to the provisions of 5 U.S.C. 5341 or 5 U.S.C. 5332 and would, if so employed, be paid not less than the following rates of wages and fringe benefits:
Employee Class Monetary Wage-Fringe Benefits Clerk Typist
$5.94 per hour Office Assistant
$6.65 per hour Editor
$8.23 per hour Proofreader
$7.41 per hour Fringe Benefits Health Insurance:
The government pays approximately 60 percent not to exceed cost of the insurance.
Life Insurance:
The government pays one-third of the cost of Basic Life Insurance.
Paid Holidays:
New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas
- Day, Martin Luther King's Birthday (beginning January 1986), and Inauguration Day (once every 4 years).
1 1
g ADM-86-?ll Page 30 Leave Accrued:
Sick Leave:
Two (2) hours each week regardless of length of service Annual leave (Vacation):
1.
Two (2) hours each week for an employee with less than three years of service.
2.
Three (3) hours each week for an employee with three but less than 15 years of service.
3.
Four (4) hours each week for an employee with 15 or more years of service.
Retirement:
The government contributes 7 percent of the basic hourly rate.
(1)(1)
If wages to be paid or fringe benefits to be furnished any service employees employed by the Government prime contractor or any subcontractor under the contract are provided for in a collective bargaining agreement which is or will be effective during any period in which the contract is being performed, the Government prime contractor shall report such fact to the contracting officer, together with full information as to the application and accrual of such wages and fringe benefits, including any prospective increases, to service employees engaged in work on the contract, and a copy of the collective bargaining agreement.
Such report shall be made upon commencing perfnrmance of the contract, in the case of collective bargaining agreements effective at such time, and in the case of such agreements or provisions or amendments thereof effective at a lates time during the period of contract performance, such agreements s,.all be f. ported promptly af ter negotiation thereof.
( Approved by the Office of Management arJ Budget under OMB control number 1215-0150.)
(2)
Not less than 10 days prior to completion of any contract being performed at a Federal fccility where service employees may be retained in the performance of the succeeding contract and subject to a wage determination which contains vacation or other benefit provisions based upon length of service with a contractor (predecessor) or successor (4.173 of Regulations, 29 CFR Part 4), the incumbent prime contractor shall furnish to the contracting officer, a certified list of the names of all service employees on the contractor's or subcontractor's payroll during the last month of contract performance.
Such list shall also contain anniversary dates of employment on the contract either with the current or predecessor contractors of each such service employee.
The contracting officer shall turn over such list to the successor contractor at the comencement of the succeeding contract.
( Approved by the Of fice of Management and Budget under OMB control number 1215-0150.)
l (m)
Rulings and interpretations of the Service Contract Act of 1965, as amended, are contained in Regulations, 29 CFR Part 4.
(n)(1)
By entering into this contract, the contractor (and officials thereof) certifies that neither it (nor he or she) nor any person or firm who has a substantial interest in the contractor's firm is a person or firm ineligible to 1
i i
- - _ _... i _ M - i - ~ - i l i -
g ADM-86-211 page 31 be awarded Government contracts by virtue of the sanctions imposed pursuant to section 5 of the Act.
(2)
No part of this contract shall be subcnntracted to any person or firm ineligible for award of a Government contract pursuant to section 5 of the Act.
(3)
The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
(0)
Notwithstanding any of the clauses in paragraphs (b) through (m) of this section relating to the Service Contract Act of 1965, the following employees may be employed in accordance with the following variations, tolerances, and exemptions, which the Secretary of Labor, pursuant to section 4(b) of the Act prior to its amendment by Public Law 92-473, found to be necessary and proper in the public interest or to avoid serious impairment of the conduct of Government business:
(1)
Apprentices, student-learnefs, and workers whose earning capacity is impaired by age, physical, or mental deficiency or injury may be employed at wages lower than the minimum wages otherwise required by section 2(a)(1) or 2(b)(1) of the Service Contract Act without diminishing an cash payments in lieu thereof required under section 2(a)y fringe benefits or (2) of that Act, in accordance with the conditions and procedures prescribed for the employment of apprentices, student-learner:,, handicapped persons, and handicapped clients of sheltered workshops under section 14 of the Fair Labor Standards Act of 1938, in the regulations issued by the Administrator (29 CFR Parts 520, 521, 524, and 525).
'(2)
The Administrator will issue certificates under the Service Contract Act for the employment of apprentices, student-learners, handicapped persons, or handicapped clients of sheltered workshops not subject to the Fair Labor Standards Act of 1938, or subject to different minimum rates of pay under the two acts, authorizing appropriate rates of minimum wages (but without chanoing requirements concerning fringe benefits or supplementary cash payments in lieu thereof), applying procedures prescribed by the applicable regulations issued under the Fair Labor Standards Act of 1938 (29 CFR Parts 520, 521, 524, and 525).
(3)
The Administrator will also withdraw, annul, or cancel such cer,tificates in accordance with the regulations in Parts 525 and 528 of Title 29 of the Code of Federal Regulations.
(p)
Apprentices will be permitted to work at less than the predetermined rate for the work they perfonn when they are employed and individually registered in a bona fide apprenticeship program registered with a State Apprenticeship Agency which is recognized by the U.S. Department of Labor, or if no such recognized i
agency exists in a State, under a program registered with the Bureau of I
Apprenticeship and Training.
Employment and Training Administration, U.S.
Department of Labor.
Any employee who is not registered as an apprentice in an approved program shall be paid the wage rate and fringe benefits contained in the applicable wage determination for the journeyman classification of work actually performed.
The wage rates paid apprentices shall not be less than the wage rate for their level of progress set forth in the registered program, expressed as the appropriate percentage of the journeyman's rate contained in l
i
ADM-86-211 Page 32 the applicable wage deternination.
The allowable ratio of apprentices to journeymen employed on the contract work in any craft classification shall not be greater than the ratio permitted to the contractor as to his entire work force under the registered program.
(q)
An employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips may have the amount of tips credited by the employer against the minimum wage required by section 2(a)(1) or section 2(b)(1) of the Act in accordance with section 3(m) of the Fair Labor Standards Act and Regulations, 29 CFR Part 531: Provided, however; that the amount of such credit may not exceed $1.24 per hour beginning January 1,1980, and $1.34 per hour af ter December 31, 1980.
To utilize this proviso:
(1)
The em/>1 oyer must inform tipped employees about this tip credit allowance before the credit is utilized.
(2)
The employees must be allowed to retain all tips (individually or through a pooling arrangement and regardless of whether the employer elects to take a credit for tips received):
(3)
The employer must be able to show by records that the employee receives at least the applicable Sevice Contract Act minimum wage through the combination of direct wages and tip credit; (approved by the Office of Management and Budget under OMB control number 1215-0017);
(4)
The use of such tip credit must have been permitted under any predecessor collective bargaining agreement applicable by virtue of section 4(c) of the Act.
(r)
Disputes concerning labor standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract.
Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 4, 6, and 8.
Disputes within the meaning of the clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S.
Department of Labor, the employees or their representatives.
(FPR Temporary Regulation 76) 52.2??-44 FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT--PRICE ADJUSTMENT.
(APR 1984)
(a) The Contractor warrants that the prices in this contract do not include any allowance for any contingency to cover increased costs for which adjustment is provided under this clause.
(b) The contract price or contract unit price labor rates will be adjusted to reflect increases or decreases by the Contractor in wages or fringe benefits of employees working on this contract to comply with--
(1) An increased or decreased wage determination applied to this contract by operation of law; or (2) An amendment to the Fair Labor Standards Act of 1938 that is enacted subsequent to award of this contract, affects the minimum wage, and becomes applicable to this contract under law.
(c) Any such adjustment will be limited to increases or decreasen in wages oe fringe benefits as described in paragraph (b) above, and to the concomitant I
-m ADM-86-211 Page 33 x
increases or decreases in social security and unemployment taxes and workers' compensation insurance; it shall not otherwise include any amount for general and administrative costs, overhead, or profits.
(d) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after the effective date of the wage change, unless this period is extended by the Contracting Officer in writing.
The Contractor shall promptly notify the Contracting Officer of any decrease under this clause, but nothing in the clause shall preclude the Government from asserting a claim within the period permitted by law. The notice shall contain c.
statement of the amount claimed and any relevant supporting data that the Contracting Officer may reasonably require.
Upon agreement nf the parties, the contract price or contract unit price labor rates shall be enodified in writing.
The Contractor shall continue perforr..ance pending agreement on or determination of any)such adjustment and its effective date.
(e The Contracting Officer or an authorized representative shall, until the empiration of 3 years af ter final paynant under the contract, have access to and the right to examine any directly pertinent books, documents, papers, and records of the Contractor.
(End of clause)
(R 7-1905(c) 1975 MAY) 52.223-2 CLEAN AIR AND WATER.
(APR 1984) i (a) " Air Act," as used in this clause, means the Clean Air Act (42 U.S.C.
7401 et seq.).
" Clean air standards," as used in this clause, means--
(1)
Any enforceable
- rules, regulations, guidelines, standards,.
limitations,
- orders, controls, prohibitions, work practices, or other requirements contained in, issued under, or otherwise adopted under the Air Act or Executive Order 11738; (2) An applicable implementation plan as described in section 110(d) of the Air Act (42 U.S.C. 7410(d));
(3) An approved implementation procedure or plan under section 111(c) or section 111(d) of the Air Act (42 U.S.C. 7411(c) or (d)); or (4) An approved implementation procedure under section ll2(d) of the Air Act (42 U.S.C. 7412(d)).
" Clean water standards," as used in this clause, means any enforceable limitation, control, condition, prohibition, standard, or other requirement promulgated under the Water Act or contained in a permit issued to e discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C.
1342), or by local government to ensure compliance with pretreatment regulations as required by section 307 of the Water Act (33 U.S.C. 1317).
" Compliance," as used in this clause, means comnliance with--
(1) Clear air or water standards; or (2) A schedule or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency, or an air or water pollution control agency under the requirements of the Air Act or Water Act and related regulations.
" Facility," as used in this clause, means any building, plant, installation, structure, mine, vessel or other floating cra f t,
- location, or site of operations, owned, leased, or supervised by a Contractor or subcontractor, used in the performance of a contract or subcontract.
When a location or site of operations includes more than one building, plant, installation, or structure, c
c; -
...c._._.
_m ADM-86-211 7
Page 34 9
the entire location or site shall be deemed a facility except when the Administrator, or a designee, of the Environmental Protection Agency, determines that independent facilities are collocated in one geographical area.
" Water Act," as used in this clause, means Clean Water Act (33 U.S.C.1251 et seq.).
(b) The Contractor agrees--
(1) To comply with all the requirements of section 114 of the Clean Air Act (42 II.S.C. 7414) and section 308 of the Clean Water Act (33 U.S.C.
1318) relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, and all regulations and guidelines issued to implement those acts b* fore the award of this contract; (2) That no portion of the work required by this prime contract will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this contract was awarded unless and until the EPA eliminates the name of the facility from the listing; (3) To use best efforts to comply with clean air standards and clean water standards at the facility in which the contract is being performed; and (4)
To insert the substance of this clause into any nonexempt subcontract, including this subparagraph (b)(4).
(End of clause)
(R 7-103.29 1975 0CT)
(R1-1.2302) 52.227-2 NOTICE AND ASSISTANCE, REGARDING PATENT AND COPYRIGHT INFRINGEMENT.
(APR 1984)
~(a) The Contractor shall report to the Contracting Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this contract of which the Contractor has knowledge.
(b) In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this contract or out of the use of any supplies furnished or work nr services performed under this contract, the Contractor shall furnish to the Government, when rsiquested by the Contracting Officer, all evidence and information in possession of the Contractor pertaining to such suit or claim.
Such evidence and information shall be furnished at the expense of the Government except where tb. Contractor has agreed to indemnify the Government.
(c) The Contractor agrees to include, and require inclusion of, this clause in all subcontracts at any tier for supplies or services (including construction and architect-engineer subcontracts and those for material, supplies, models, samples, or design or testing services) expected to exceed the dollar amount set forth in 13.000 of the Federal Acquisition Regulation (FAR).
(End of clause)
(R 7-103.23 1965 JAN) 52.229-3 FEDERAL, STATE, AND LOCAL TAXES (APR 1984)
(a) " Contract date," as used in this clause, means the date set for bid opening or, if this is a negotiated contract or a modification, the effective date of this contract or modification.
"All applicable Federal, State, and local taxes and duties," as used in this clause, means all taxes and duties, in effect on the contract date, that the I
ADM-86-211 Page 35 taxing authority is imposing and collecting on the transactions nr property covered by this contract.
"Af ter-irlposed Federal tax," as used in this clause, means any nw er increased Federal ekcise tax or duty, or tax that was exenpted or excluded on the contract date but who}se exemption was later revoked or reduced during the contract period, on the transactions or property covered by this contract that the Contractor is required to pay or bear as the. result of legislative, judicial, or administrative action taking effect after the contract date.
It does not include social security tax or other employment taxes.
"Af ter-relieved Federal tax " as used in ' this clause, means any amount of Federal excise tax or duty, except social security or other employment taxes, that would otherwise have been payable on the transactions or property covered by this contract, but which the Contractor is not required to pay or bear, or for which the Contractor obtains a refund or drawback, as the result of legislative, judicial, or administrative action taking effect after the contract date.
(b) The contract price includes all applicable Federal, State, and local taxes and duties.
(c) The contract price shall be increased by the amount of any after-imposed Federal tax, provided the Contractor warrants in writing that no amount for such newly imposed Federal excise tax or duty or rate increase was included in the contract price, as a contingency reserve or otherwise.
(d)
The contract price shall be decreased by the amount of any after-relieved Federal tax.
(e) The contract price shall, be decreased by the amount of any Federal s
excise tax or duty, except social secu?ity or other employment taxes, that the Contractor is required to pay or bear, or does not obtain a refund of, through the Contractor's fault, negligence, or failure to follow instructions of the Contracting Officert (f) No adjustment shall be made in the contract s price under this clause unless the amount of the adjustment exceeds $100.
(g) The Contractor shall promptly notify the Contracting Officer of all matters relating to any Federal excise tax or duty that reasonably may be expected to result in either an increase or decrease in the contract price and shall take appropriate action as the Contracting Officer directs.
(h) The Government shall, without liability, furnish evidence appropriate to' establish exemption form any Federal, State,.or local tax when the Contractor
~
requests such evidence and a resonable basis exists to sustain the exemption.
(End of clause) i (R 7-103.10(a) 1971 NOV).
(R 1-11.401-1(c))
t 52.232-1 PAYMENTS.
(APR 1984)
The Government shall pay the Contractor, upon the submission of proper invoices or vouchers, the prices stipulated in this contract for supplies delivered and accepted or services rendered and accepted, less any deductions provided in this contract.
Unless otherwise specified in this contract, papent shall be made on partial deliveries accepted by the Government if--
(a) The amount due on the deliveries warrants it; or (b) The Contractor requests it and the amount due on the deliveries is at least $1,000 or 50 percent of the total contract price.
(End of clause)
(R 7-103.7 1958 JAN)
(R 1-7 ?02-7)
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. ~...~
ADM-86-211 Page 36 52.232-17 INTEREST.
(APR 1984)
(a) Notwithstanding any cther clause of this contract, all amounts that become payable by the Contractor to the Government under this contract (net of any applicable tax credit under the Internal Revenue Code (26 U.S.C.
1481))
shall bear simple interest from the date due until paid unless paid within 30 days of becoming due.
The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section 12 nf the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in paragraph (b) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.
(b) Amounts shall be due at the earliest of the following dates:
(1)iThe date fixed under this contract.
(2) The date of the first written demand for payment consistent with this contract, including any demand resulting from a default termination.
(3) The date the Government transmits to the Contractor a proposed supplemental agreement to confirm completed negotiations establishing the amount of debt. (4) If this contract provides for revision of prices, the date of written notice to the Contractor stating the amount of refund payable in connection with a pricing proposal or a negotiated pricing agreement not confirmed by contract modification.
(c) The interest charge made under this clause may be reduced under the procedures prescribed in 32.614-2 of the Federal Acquisition Regulation in effect on.the date of this contract.
(End of clause)
(R 7-104.39 1972 MAY)
(R 1-7.203-15) 52.232-23 ASSIGNMENT OF CLAIMS.
(APR 1984)
(a) The Contractor, under the Assignment of Claims Act, as amended, 31 U.S.C. 203, 41 U.S.C.15 (hereaf ter referred to as the "the Act"), may assign its rights to be paid amounts due or to become due as a result of the performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency.
The assignee under such an assignment may thereafter further assign or reassign its right under the origiral assignment to any type of financing institution described in the preceding sentence.
(b) Any assignment or reassignment authorized under the Act and this clause shall cover all unpaid amounts payable under this contract, and shall not be made to more than one party, except that an assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in the financing of this contract.
(c) The Contractor shall not furnish or disclose to any assignee under this contract any classified document (including this contract) or information related to work under this contract until the Contracting Officer authorizes such action in writing.
(End of clause)
(R 7-103.8 1962 FEB; R 1-30.703 1976 MAY)
(R 7-602.8 1976 0CT) l (R 7-607.6 1976 0CT)
L...
.._J I
ADM-86-211 Page 37 52.233-1 DISPUTES.
(APR 1984)
(a) This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C.
601-613) (the Act).
(b) Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause.
(c) " Claim," as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.
A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant.
However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $50,000 is not a claim under the Act until certified as required by subparagraph (d)(2) below.
A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act.
The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.
(d) (1) A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision.
A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer.
(2) For Contractor claims exceeding $50,000, the Contractor shall submit with the claim a certification that--
(i) The claim is made in good faith; (ii) Supporting data are accurate and complete to the best of the Contractor's knowledge and belief; and (iii)
The amcunt requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable.
(3) (i) If the Contractor is an individual, the certification shall be executed by that individual.
(ii) If the Contractor is not an individual, the certification shall be executed by--
(A) A senior company official in charge at the Contractor's plant or location involved; or (8) An officer or general partner of the Contractor having overall responsibility for the conduct of the Contractor's affairs.-
(e) For Contractor claims of $50,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request.
For Contractor-certified claims over $50,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made.
(f) The Contracting Officer's decision shall be final unless the Contractor appeals or files a suit as provided in the Act.
(g) The Government shall pay interest on the amount found due and unpaid from (1) the date the Contracting Officer receives the claim (properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment.
Simple interes+ on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then'at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.
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.h ADM-86-211 Page 38 (h) 1he Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.
(End of clause)
(R 7-103.12 1980 JUN)
(R FPR Temporary Regulation 55-II 1980 JUN) 52.237-3 CONTINUITY OF SERVICES.
(APR 1984)
(a) The Contractor recognizes that the services under this contract are vital to the Government and must be continued without interruption and that, upon contract expiration, a successor, either the Government or another contractor, 'may continue them.
The Centractor agrees to (1) furnish phase-in training and (2) exercise its best efforts and cooperation to effect an orderly and efficient transition to a successor.
(b) The Contractor shall, upon the Contracting Officer's written notice, (1) furnish phase-in, phase-out services for up to 60 days after this contract expires and (2) negotiate in good faith a plan with a successor to determine the nature and extent of phase-in, phase-out services required.
The plan shall specify a training program and a date for transferring responsibilities for each division of work described in the plan, and shall be subject to the Centracting Officer's approval.
The Contractor shall provide sufficient experienced personnel during the phase-in, phase-out period to ensure that the services called for by this contract are maintained at the required level of proficiency.
(c) The Contractor shall allow as many personnel as practicable to remain on the job to help the successor maintain the continuity and consistency of the services required by this contract.
The Contractor also shall disclose necessary personnel records and allow the successor to conduct onsite interviews with these employees.
If selected employees are agreeable to the change, the Contractor shall release them at a mutually agreeable date and negotiate transfer of their earned fringe benefits to the successor.
(d) The Contractor shall be reimbursed for all reasonable phase-in, phase-out costs (i.e.,
costs incurred within the agreed period after contract expiration that result from phase-in, phase-out operations) and a fee (profit) not to exceed a pro rata portion of the fee (profit) under this contract.
(End of clause)
(R 7-1910.3 JUL 1976) 52.243-1 CHANGES--FIXED-PRICE.
(APR 1984)--Alternate II.
(APR 1984)
(a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:
(1) Description of services to be performed.
(2) Time of performance (i.e.,
hours of the day, days of the week, etc.).
(3) Place of performance of the services.
(4) Drawings, designs, or specifications when the supplies to be furnished arc be specially manufactured for the Government in accordance with the drawings, m: vs, or specifications, i
ADM-86-Pil Page 39 (5) Method of shipment or packing of supplies.
(6) Place of delivery.
(b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.
(c) The Contractor must submit any " proposal for adjustment" (hereafter referred to as proposal) under this clause within 30 days from the date of receipt of the written order.
However, if the Contracting Officer decides that the facts jus ti fy it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract.
(d) If the Contractor's proposal includes the cost of property made obsolete or excess by the change, the Contracting Officer shall have the right to prescribe the manner of the disposition of the property.
(e) Failure to agree to any adjustment shall be a dispute under the D'sputes clause.
However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.
(End of clause)
(R 7-103.2 1958 JAN)
(R l-7.102-1)
(R 7-1902.2 1971 NOV)
(R 7-103.2 1958 JAN)
(R 1-7.102-2) 52.246-25 LIMITATION OF LIABILITY--SERVICES.
(APR 1984)
(a) Except as provided in paragraphs (b) and (c) below, and except to the extent that the Contractor is expressly responsible under this contract for deficiencies in the services required to be performed under it (including any materials furnished in conjunction with those services), the Contractor shall not be liable for loss of or damage to property of the Government that (1) occurs after Government acceptance of services performed under this contract and (2) results from any defects or deficiencies in the services performed or materials furnished.
(b) The limitation of liability under paragraph (a) above shall not apply when a defect or deficiency in, or the Government's acceptance of, services performed or materials furnished results from willful misconduct or lack of good faith on the part of any of the Contractor's managerial personnel.
The term
" Contractor's managerial personnel," as used in this
- clause, means the Contractor's directors,
- officers, and any of the Contractor's managers, superintendents, or equivalent representatives who have supervision or direction of--
(1) All or substantially all of the Contractor's business; (2) All or substantially all of the Contractor's operations at any one
- plant, labora tory, or separate location at which the contract is being performed; or (3) A separate and complete major industrial operation connected with the performance of this contract.
(c) If the Contractor carries insurance, or has established a reserve for self-insurance,' covering liability for loss or damage suffered by the Government i
through the Contractor's performance of services or furnishing of materials t
H._.__.-__.--..__._-_.._.u..-__a.
ADM-86-211 Page 40 under this contract, the Contractor shall be liable to the Government, to the extent of such insurance or reserve, for loss of or damage to property of the Government occurring af ter Government acceptance of, and resulting from any defects and deficiencies in, services performed or materials furnished under this contract.
(d) The Contractor shall include this clause, including this paragraph (d),
supplemented as necessary to reflect the relationship of the contracting parties, in all subcontracts over $25,000.
(End of clause)
(R 7-1912 1974 APR) 52.247-S3 PREFERENCE FOR U.S.-FLAG AIR CARRIERS.
(APR 1984)
(a) " International air transportation," as used in this clause, means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States.
" United States," as used in this clause, means the 50 States, the District of Columbia, the Connonwealth of Puerto Rico, and possessions of the United States.
"U.S.-flag air carrier," as used in this clause, means an air carrier holding a certificate under section 401 of the Federal Aviatio'n Act of 1958 (49 U.S.C. 1371).
(b) Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C.
1517) (Fly America Act) requires that all Federal agencies and Government contractors and subcontractors use U.S.-flag air carriers for U.S.
Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available.
It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-fla g air transportation, to disallow expenditures from
- funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.
(c) The Contractor agrees, in perfonning work under this contract, to use U.S.-flag air carriers for international air transportation of personnel (and their personal effects) or property to the extent that service by those carriers is available.
(d) In the event that the Contractor selects a carrier other than a U.S.-
flag air carrier for international air transportation, the Contractor shall include a certification on vouchers involving such transportation essentially as follows:
CERTIFICATION OF UNAVAILABILITY Of U.S.-FLAG AIR CARRIERS I hereby certify that international air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons (see section 47.403 of the Federal Acquisition Regulation): [ State reasons]:
(End of certification)
(e) The Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under this contract that may involve international air transportation.
(End of clause)
(R 7-104.95 1979 NOV)
(R 1-1.323-2)
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I ADM-86-211 Page 41 52.249-4 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (SERVICES) (SHORT FORM).
(APR 1984)
The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest.
If this contract is terminated, the Government shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination.
(End of clause)
(R 7-1902.16 1968 FE8)
(R 1-8.705-1) 52.249-8 DEFAULT (FIXED-PRICE SUPPLY AND SERVICE).
(APR 1984)
(a) (1) The Government may, subject to paragraphs (c) and (d) below, by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to--
(i) Deliver the supplies or to perform the services within the time specified in this contract or any extension; (ii) Make prcgress, so as to endanger performance of this contract (but see subparagraph (a)(2) below); or (iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below).
(2) The Government's right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure.
(b) If the Government tenninates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will be liable to the Government for any excess costs for those supplies or services.
However, the Contractor shall continue the work not terminated.
(c) Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contrac tor.
Examples of such causes include (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions (7) strikes, (8) freight embargoes, and (9) unusually severe weather.
In each instance the failure to perform must be beyond the control and without the fault or negligence of the Contractor.
(d) If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule.
(e) If this contract is terminated for default, the Government may require the Contractor to transfer title and deliver to the Government, as directed by the Contracting Officer, any (1) completed supplies, and (2) partially completed
4 ADM-86-211 Page 42 supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as " manufacturing materials" in this clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract.
Upon direction of the Contracting Officer, the Contractor shall also protect and preserve property in its possession in which the Government has an interest.
(f) The Government shall pay contract price for completed supplies delivered and accepted.
The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property.
Failure to agree will be a dispute under the Disputes clause.
The Government may withhold from these amounts any sum the Contracting Officer determines to be necessary to protect the Government against loss because of outstanding liens or claims of former lien holders.
(g) If,i after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Government.
(h) The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.
(End of clause)
(R 1-8.707)
(R 7-103.11 1959 AUG) 52.249-14 EXCUSABLE DELAYS.
(ApR 1984)
(a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.
Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) qua rantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather.
In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor.
"De f aul t" includes failure to make progress in the work so as to endanger performance.
(b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless--
(1) The subcontracted supplies or services were obtainable from other sources; (2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and (3) The Contractor failed to comply reasonably with this order.
(c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure.
If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.
(End of clause)
(R 7-203.11 1969 AUG)
(R 1-8.708)
(R 7-605.39)
= _ =. - -....- -.~:.
i ADM-86-211 Page 43 (R 1-7.403-5)
(R 7-702.7)
(R 7-703.7)
(R 1-7.?02-11)
(R 1-8.700-2(c))
ADM-86-212 Page 44 PART !!! - LIST OF DOCUMENTS, EXHIBITS, AND OTHER ATTACHMENTS
-Section J - List of Attachments Attachment Number Title 1
NRC Organization Chart 2
NRC Contractor Organizational Conflicts of Interest (41 CFR Part 20) 3 Billing Instructions 4
Wage Determination 80-1294, Revision -13 i
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i ATTACHMErdT TWO PART 20-1 -- GENERAL Subpart 20-1.54--Contractor Organizational Conflicts of Interest Sec.
20-1.5401 Scope and policy.
20-1.5402 Definitions.
20-1.5403 Criteria for recognizing contractor organizational conflicts of interest.
20-1.5404 Representation.
20-1.5405 Contract clauses.
20-1.5405-1 General contract clause.
20-1.5405-2 Special contract provisions.
20-1.5406 Evaluation, findings, and contract award..
20-1.5407 Conflicts identified after award.
20-1.5408 (Reserved) 20-1.5409 (Reserved) 20-1.5410 Subcontractors.
20-1.5411 Waiver.
20-1.5412 Remedies.
AUTHORITY:
Sec. 8, Pub. L.95-601, adding Sec.170A to Pub. L.83-703, 68 Stat. 919, as amended (42 U.S.C. ch.14) 520-1.5401 Scope and Policy (a) It is the policy of the U.S. Nuclear Regulatory Commission (NRC) to avoid, eliminate or neutralize contractor organizational conflicts of interest.
The NRC achieves this objective by requiring all prospective contractors to submit information describir.g relationships, if any, with organizations or persons (including those regulated by NRC) which may give rise to actual or potential conflicts of interest in the event of contract award.
(b)
Contractor conflict of interest determinations cannot be made automatically or routinely; the application of sound judgment on virtually a case-by-case basis is necessary if the policy is to be applied so as to satisfy the overall public interest.
It is not possibleito prescribe in advance a specific method or set of criteria which would serve to identify and resolve all of the contractor conflict of interest situations which might arise; however, examples are provided in these regulations to guide application of the policy.
NRC contracting and program officials must be alert to other situations which may warrant application of this policy guidance.
The ultimate test is:
Might the contractor, if awarded the contract, be placed in a position where its judgment may be biased, or where it may have an unfair competitive advantage?
(c)
The conflict of interest rule contained in this subpart applies to contractors and offerors only.
Individuals or firms who have other relat'ionships with NRC (e.g., parties to a licensing proceeding) are not covered by thir regulation.
This rule does not apply to the acquisition of consulting services through the personnel appointment process, NRC i
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7590-01 agreements with other government agencies, international ' rganizations.
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. or state, local or foreign governments; separate procedures for avoiding conflicts of interest will be employed in such agreements, as appropriate.
520-1.5402 Definitions (a)
" Organizational conflicts of interest" means that a relationship exists whereby a contractor or prospective contractor has present or planned interests related to the work to be performed under an NRC contract which:
(1) May diminish its capacity to give impartial, technically sound, objective assistance and advice or may otherwise result in a
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biased work product, or (2) may result in its being given an unfair competitive advantage.
(b)i "Research" means any scientific or technical work involving theoretical analysis, exploration, or experimentation.
(c)
- Evaluation activities" means any effort involving the appraisal of a technology, process, product, or policy.
(d)
" Technical consulting and management support services" means internal assistance to a component of the NRC in the formulation or administration of its programs, projects, or policies which normally require the contractor to be given access to information which has not been made available to the public or proprietary information.
Such services typically include assistance in the preparation of program plans; and preparation of preliminary designs, specifications, or statements of work.
(e) " Contract" means any contract, agreement, or other arrangement with the NRC except as provided in Section 20-1.5401(c).
(f)
" Contractor" means any person, finn, unincorporated association, joint venture, co-spontor, partnership, corporation, affiliates thereof, or their successors in interest, including their chief executives, directors, key personnel (identified in the contract), proposed consultants or subcontractors, which is a party to a contract with the NRC.
(g)
" Affiliates" means business concerns which are affiliates of each other when either directly or indirectly one concern or individual controls or has the power to control another, or when a third party controls or has the power to control both (41 CFR 51-1,606-1(e)).
(h)' " Subcontractor" means any subcontractor of any tier which performs work under a contract with the NRC except subcontracts for supplies and subcontracts in amounts of $10,000 or less.
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(i)
"Prospectiva contractor" or " offeror" means any person, firm, unincorporated association, joint venture, partnership, corporation, or affiliates thereof, including its chief evecutive, directors, key personnel (identified in the proposal), proposed consultants, or subcontractors, suomitting a bid or proposal, solicited or unsolicited, to the NRC to octain a contract.
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s-7590-01 (j)
" Potential conflict of interest" means that a factual situation exists that suggests (indicates) that an actual conflict of interest may arise from award of a proposed contract.
The term " potential conflict of interest" is used to signify those situations which merit investigation prior to contract award in order to ascertain whether award would give rise to an actual conflict or which must be reported to the contracting officer for investigation if they arise during contract performance.
520-1.5403 Criteria for recognizing contractor organizational conflicts of interest (a)
General.
Two questions will be asked in determining whether actual or potential organizational conflicts of interest exist:
(1) Are there conflicting roles which might bias a contractor's judgment in relation to its work for the NRC7 (2) May the contractor be given an unfair competitive advantage based on the performance of the contract?
The ultimate determination by NRC as to whether organizational conflicts of interest exist will be made in light of common sense and good business judgment based upon the relevant facts disclosed and the work to be While it is difficult to identify and to prescribe in advance performed.
a specific method for avoiding all of the various situations or relationships which might involve potential organizational conflicts of interest, NRC personnel will pay particular attention to proposed contractual requirements which call for the rendering of advice, consultation or evaluation activities, or similar activities that lay direct groundwork for the NRC's decisions on regulatory activities, future procurements, and research programs.
(b)
Situations or relationships which may give rise to organizational conflicts of interest.
(1) The offeror or contractor shall disclose information concerning relationships which may give rise to organizational conflicts of interest under the following circumstances:
(i) Where the offeror or contractor provides advice and recommendations to the NRC in a technical area in which it is also providing consulting assistance in the same arec to any organization regulated by the NRC.
(ii) Where the offeror or contractor provides advice to the NRC on the same or similar matter in which it is also providing assistance to any organization regulated by the NRC.
(iii) Where the offeror or contractor evaluates its own products or services, or the products or services of another entity where the offeror or contractor has been substantially involved in their development or marketing.
(iv) Where the award of a contract would otherwise result in placing the of feror or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC or may otherwise result in an unf air competitive advantage for the offeror or contractor. i
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I 7590-01 (2) The contracting officer may request specific information from an offeror or contractor or may require special contract provisions such as provided in 520-1.5405-2 in the following circumstances:
(i) Where the offeror or contractor prepares specifications which are to be used in competitive procurements of products or services covered by such specifications.
(ii) Where the offeror or contractor prepares plans for specific approaches or methodologies that are to be incorporated into competitive procurements using such approaches or methodologies.
(iii) Where the offeror or contractor is granted access to information not available to the public concerning NRC plans, policies, or programs which could form the basis for a later procurement action.
(iv) Where the offeror or contractor is granted access to proprietary information of its competitors.
(v) Where the award of a contract might otherwise result in placing the offeror or contractor in a conflicting role in which its judgment may be biased in relation to its work for the NRC or may otherwise result in an unfair competitive advantage for the offeror or contractor.
(c) Policy application guidance.
The following examples are illustrative only and are not intend'ed to identify and resolve all contractor organizational conflict of interest situations.
(1) Example.
The XYZ Corp., in response to a request for proposal (RFP), proposes to undertake certain analyses of a reactor component as called for in the RFP. The XYZ Corp. is one of several companies considered to be technically well qualified.
In response to the inquiry in the RFP, the XYZ Corp.
advises that it is currently performing similar analyses for the reactor manufacturer.
Guidance. An NRC contract for that particular work normally would not be awarded to the XYZ Corp. because it would be placed in a position in which its judgment could be biased in relationship to its work for NRC.
Since there are other well-qualified companies available, there would be no reason for considering a waiver of the policy.
(2) Example.
The ABC Corp., in response to a RFP, proposes to perform certain analyses of a reactor component which are unique to one type of advanced reactor. As is the case with other technically qualified companies responding to the RFP, the ABC Corp. is performing various projects for several different utility clients.
None of the ABC Corp.
projects have any relationship to the work called for in the RFP. Based on the NRC evaluation, the ABC Corp. is considered to be the best qualified company to perform the work outlined in the RFP. _
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7590-01 Guidance.
An NRC contract normally could be awarded to the ABC Corp. because no conflict of interest exists which would motivate bias with respect to the work.
An appropriate clause would be included in the contract to preclude the ABC Corp. from subsequently contracting for work during the performance of the NRC contract with the private sector which could create a conflict.
For example, ABC Corp. would be precluded i
from the performance of similar work for the company developing the advanced reactor mentioned in the example.
(3)
Example. As a result of operating problems in a certain type of comercial nuclear facility, it is imperative that NRC secure specific data on various operational aspects of that type of plant so as to assure adequate safety protection of the public.
Only one manufacturer has extensive experience with that type of plant.
Consequently, that company is the only one with whom NRC can contract which can develop and conduct the testing programs required to obtain the data in reasonable time.
That company has a definite interest in any NRC decisions that might result from the data produced because those decisions affect the reactor's design and thus the company's costs.
Guidance. This situation wouh place the manufacturer in a role in which its judgment could be biased in relationship to its work for NRC.
Since the nature of the work required is vitally important in terms of NRC's responsibilities and no reasonable alternative exists, a waiver of the policy may be warranted.
Any such waiver shall be fully documented and coordinated in accordance with the waiver provisions of this policy with particular attention to the establishment of protective mechanisms to guard against bias.
(4)
Example.
The ABC Co. submits a proposal for a new system for evaluating a specific reacter component
- s performance for the purpose of developing standards that are important to the NRC program. The ABC Co.
has advised NRC that it intends to sell the new system to industry once its practicability has been demonstrated.
Other companies in this business are using older systens for evaluation of the specific reactor component.
Guidance. A contract could be awarded to the ABC Co. provided that the contract stipulates that no information produced under the contract will be used in the contractor's private activities unless such information has been reported to NRC. Information which is reported to NRC by contractors will normally be disseminated by NRC to others so as to preclude an unfair competitive advantage that might otherwise accrue. When NRC furnishes information to the contractor for the performance of contract work, it shall not be used in the contractor's private activities unless such infonnation is generally available to others.
Further, the contract will stipulate that the contractor will inform the NRC contracting officer of all situations in which the information devd aped under the contract is proposed to be used.
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I 7590-01 (5)
Example.
The ABC Corp., in response to a RFP proposes to assemble a map showing certain seismological features of the Appalachian fold belt.
In accordance with the representation in the RFP and 5 20-1.5403(b)(1)(i), ABC Corp. infonns the NRC that it is presently doing seismological studies for several utilities in the Eastern United States but none of the sites are within the geographic area contemplated by the NRC study.
Guidance.
The contracting officer would nonnally conclude that award of a contract would not place ABC Corp. in a conflicting role where its judgment might be biased.
The work for others clause of 520-1.5405-1(c) would preclude ABC Corp. from accepting work during the term of the NRC contract which could create a conflict of interest.
(d)
Other considerations.
(1) The fact that the NRC can identify and later avoid, eliminate, or neutralize any potential organizational conflicts arising from the perfonnance of a contract is not relevant to a detennination of the existence of such conflicts prior to the award of a contract.
(2)
It is not relevant that the contractor has the professional reputation of being able to resist temptations which arise from organizational conflicts of interest, or that a follow-on procurement is not involved, or that a contract is awarded on a competitive or a sole source basis.
520-1.5404 Representation (a) The following procedures are designed to assist the NRC contracting officer in detennining whether situations or relationships exist which may constitute organizational conflicts of interest with respect to a particular offeror or contractor.
(b)
Representation procedure.
The following organizational conflicts of interest representation provision shall be included in all solicitations and unsolicited proposals for:
(1) Evaluation services or activities; (2) technical consulting and management support services; (3) research; and (4) other contractual situations where special organizational conflicts of interest provisions are noted in the solicitation ahd would be included in toe resulting contract.
This representation requirement shall also apply to all modifications for additional effort under the contract except those issued under the " changes" clause.
Where, however, a statement of the type required by the organizational conflicts of interest representation provision has previously been submitted with regard to the contract being modified, only an updating of such statement shall be required.
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7590-01 ORGANIZATIONAL CONFLICTS OF INTEREST REPRESENTATION l
I represent tgthe best of my knowledge and belief that:
The award t flW k/Lbeff a contract or the modification of an existing contract does ( ) or does not (r) involve situations or relationships of the type set forth in 41 CFR 520-1.5403(b)(1).
(c)
Instructions to offerors.
The following shall be included in all NRC solicitations:
(1) If the representation as completed indicates that situations or relationships of the type set forth in 41 CFR 520-1.5403(b)(1) are involved, or the contracting officer otherwise detemines that potential organizational conflicts exist, the offeror shall provide a statement in writing which dese-Ses in a concise manner all relevant facts bearing on his representation to the contracting officer.
If the contracting officer determines that organizational conflicts exist, the following actions may be taken:
(1) Impose appropriate conditions which avoid such conflicts, (ii) disqualify the offeror, or (iii) detemine that it is otherwise in the best interest of the United States to seek award of the contract under the waiver provisions of 520-1.5411.
(2) The refusal to provide the representation required by 5 20-1.5404(b) or upon request of the contracting officer the facts required by 520-1.5404(c), shall result in disqualification of the offeror for award.
The nondisclosure or misrepresentation of any relevant interest may also result in the disqualification of the offeror for award; or if such nondisclosure or misrepresentation is discovered after award, the resulting contract may be terminated.
The offeror may also be disqualified from subsequent related NRC contracts and be subject to such other remedial actions provided by law or the resulting contract.
(d)
The offeror may, because of actual or potential organizational conflicts of interest, propose to exclude specific kinds of work from the statements of work contained in a RFP unless the RFP specifically prohibits such exclusion.
Any such proposed exclusion by an offeror will be considered by the NRC in the evaluation of proposals.
If the NRC considers the proposed excluded work to be an essential or integral part of the required work and its exclusion would work to the detriment of the competitive postur? of the other offerors, the proposal must be rejected as unacceptable.
i (e)
The offeror's failure to execute the representation required by subsection (b) above with respect to invitation for bids will be considered to be a minor informality, and the offeror will be permitted to correct the omission.
I 20-1.5405 Contract clauses i
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7590-01 All contracts of the types set forth in 5 20-1.5404(b) shall include the following clauses:
(a)
Purpose.
The primary purpose of this clause is to aid in ensuring that the contractor:
(1) Is not placed in a conflicting role because of current or planned interest (financial, contractual, organizational, or otherwise) which relate to the work under this contract, and (2) does not obtain an unfair competitive advantage over other parties by virtue of its performance of this contract.
(b)
Scope.
The r-strictions described herein shall apply to perfonnance or participat1on by the contractor as defined in 41 CFR I 20-1.5402(f) in the actitities covered by this clause.
(c)
Work for others.
Notwithstanding any other provision of this contract, during the term of this contract, the contractor agrees to forego entering into consulting or other contractual arrangements with any firm or organization, the result of which may give rise to a conflict of interest with respect to the work being performed under this contract.
The contractor shall ensure that all employees who are employed full time under this contract and employees designated as key personnel, if any, under this contract abide by the provision of this clause.
If the contractor believes with respect to itself or any such employee that any proposed consultant or other contractual arrangement with any firm or organization may involve a potential conflict of interest, the contractor shall obtain the written approval of the contracting officer prior to execution of such contractual arrangement.
(d)
Disclosure after award.
(1) The contractor warrants that to the best of its knowledge and belief and except as otherwise set forth in this contract, it does not have any or anizational conflicts of interest, as defined in 41 CFR 520-1.5402 a).
(2)
The contractor agrees that if after award it discovers organizational conflicts of interest with respect to this contract, it shall make an imediate and full disclosure in writing to the contracting officer.
This statement shall include a description of the action which the contractor has taken or proposes to take to avoid or mitigate such conflicts.
The NRC may, however, terminate the contract for convenience if it deems such termination to be in the best interests of the government.
(e)
Access to and use of information.
(1) If the contractor in the perfonnance of this contract obtains access to infonnation, such as NRC plans, policies, reports, studies, financial plans, internal data protected by the Privacy Act of 1974 (Pub. L.93-579), or data which has not been released to the public, the contractor agrees not to: (i) Use such information for any private purpose until the information has been released to the public; (ii) compete for work for the Comission based I
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7590-01 on such information for a period of six (6) months after e'ither the completion of this contract or the release of such infonnation to the public, whichever is first, (iii) submit an unsolicited proposal to the government based on such information until one year after the release of such information to the public, or (iv) release the information without prior written approval by the contracting officer unless such information has previously been released to the public by the NRC.
(2)
In addition, the contractor agrees that to the extent it receives or is given access to proprietary data, data protected by the Privacy Act of 1974 (Pub. L.93-579), or other confidential or privileged technical, business, or financial information under this contract, the contractor shall treat such information in accordance with restrictions placed on use of the information.
(3)
The contractor shall have, subject to patent and security provisions of this contract, the right to use technical data it produces under this contract for private purposes provided that all requirements of this contract have been met.
(f)
Subcontracts.
Except as provided in 41 CFR 5 20-1.5402(h), the contractor shall include this clause, including this paragraph, in subcontracts of any tier.
The terms " contract," " contractor," and
" contracting officer," shall be appropriately modified to preserve the government's rights.
(g)
Remedies.
For breach of any of the above proscriptions or for intentional nondisclosure or misrepresentation of any relevant interest required to be disclosed concerning this contract or for such erroneous representations as necessarily imply bad faith, the government may terminate the contract for default, disqualify the contractor from subsequent contractual efforts, and pursue other remedies as may be permitted by law or this contract.
(h) Waiver.
A request for waiver under this clause shall be directed in writing through the contracting officer to the Executive Director for Operations (E00) in accordance with the procedures outlined in 520-1.5411.
520-1.5405-2 Special contract provisions.
(a)
If it is determined from the nature of the proposed contract that organizational conflicts of interest exist, the contracting officer may determine that such conflict can be avoided or after obtaining a waiver in accordance with $20-1.5411, neutralized through the use of an appropriate special contract provision.
If appropriate, the offeror may negotiate the tenns and conditions of these clauses, including the extent and time period of any such restriction. These provisions include but are not limited to: '
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Hardware exclusion clauses which prohibit the acceptance of performed by the contractor;proouction contracts following a related nonprodu (2)
Software exclusion clauses; (3) personnel) to avoid certain organizational conflicts of interest (4)
Clauses which provide for protection of confidential data and guard against its unauthorized use.
(b)
The following additional contract clause may be included as section (i) in the clause set forth in5 20-i.5405-1 when it is determined that award of a follow-on contract would constitute an organizational conflict of interest.
(i)
Follow-on effort.
(1) The contractor shall be ineligible to participate in NRC contracts, subcontracts, or proposals therefer (solicited or unsolicited) which stem directly from the contractor's performance of work under this contract.
the contracting officer, the contractor shall not perform any technicalF consulting or management support services work or evaluation activities under this contract on any of its products or services or the products or-services of another firm if the contractor has been substanti (2)
If the contractor under this contract prepares a complete or essentially complete statement of work or specifications, the contractor shall be ineligible to perform or participate in the initial contractual effort which is based on such statement of work or specifications.
The contractor shall not incorporate its products or services in such statement of work or specifications unless so directed in writing by the contracting officer, in which case the restriction in this subparagraph shall not apply.
(3)
Nothing in this paragraph shall preclude the contractor from offering or selling its standard commercial items to the government.
. 20-1.5406 Evaluation, findings, and contract award The contracting officer will evaluate all relevant facts submitteo by an of feror pursuant to the representation requirements of 120-1.5404(b) and other relevant information.
After evaluating this information against tne criteria of i 20-l.5403, a finding will be made by the contracting officer whether organizational conflicts of interest exist with respect to a particular offeror.
If it has been determined that conflicts of interest exist, then the contracting officer shall either:
(a)
Disqualify the offeror from award, t 1 I
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(b)
Avoid or eliminate such conflicts by oppropriate measures; or (t)
Award the contract under the walver provision of 5 20-1.5411.
520-1.5407 Conflicts identified after award.
If potential organizational conflicts of interest are identified after award with respect to a particular contractor, the contracting of ficer determines that such conflicts do, in fact, exist and that it would not be in the best interests of the government to terminate the contract as provided in the clauses required by 520-1.5405, the contracting officer will take every reasonable action to avoid, eliminate, or, after obtaining a waiver in accordance with $20-1.5411, neutralize the effects of the identified conflict.
520-1.5408 (Reserved) 520-l.5409 (Reserved) 520-1.5410 Subcontracts The contracting officer shall require offerors and contractors to submit a representation statement in accordance with 520-1.5404(b) from subcontractors and consultants.
The contracting officer shall require the contractor to include contract clauses in accordance with 520-1.5405 in consultant agreements or subcontracts involving performance of work under a prime contract covered by this subsection.
520-1.5411 Waiver In the first instance, determination with respect to the need to seek a waiver for specific contract awards shall be made by the contracting officer with tne advice and concurrence of the program office director and the Office of Executive Legal Director.
Upon the recommendation of the contracting officer, and after consultation with the Office of the General Counsel, the ED0 may waive the policy in specific cases if he determines that it is in the best interest of the United States to do so.
Such action shall be strictly limited to those situations in which:
(1) The work to be performed under contract is vital to the NRC program; (2) the work cannot be satisfactorily performed except by a contractor whose interests give rise to a question of conflict of interest; and (3) contractual and/or technical review and supervision methods can be employed by NRC to neutralize the conflict.
For any such waivers, the justification and approval documents shall be placed in the Public Document Room.
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7590-01 620-1. 5412 Remedies In addition to such other remedies as may be permitted by law or contract for a breach of the restrictions in this subpart or for any intentional misrepresentation or intentional nondisclosure of any relevant interest required to be provided-for this section, the NRC may debar the contractor from subsequent NRC contracts.
Dated at_Wuhinaton. D.[Jbis 27th day of March 1979.
For the Nuclear Regulatory Commission 3
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CCtuudN Sh #A Samuel
. Chilk e
Secretary of the Commission
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