ARTICLE

CLAUSE

0020

Computer Generated Forms

(a) Any data required to be submitted on a standard or optional form may be submitted on a computer generated version of the form, provided there is no change to the name, content, or sequence of the data elements on the form, and provided the form carries the standard or optional form number and edition date.

(b) Unless prohibited by the contracting authority, any data required to be submitted on a IPTC unique form may be submitted on a computer generated version of the form provided there is no change to the name, content, or sequence of the data elements on the form and provided the form carries the IPTC form number and edition date.

(c) If the contractor submits a computer generated version of a form that is different than the required form, then the rights and obligations of the parties will be determined based on the content of the required form.

(end of clause)

1005

Conflict of Interest

(a) The contractor specifically agrees that there is no conflict of interest arising from the services to be provided under this agreement. The contractor further agrees that no employee, principal, or affiliate is in any such conflict.

(b) Work under this contract may create a future conflict of interest that could prohibit the contractor from competing for, or being awarded future IPTC contracts. The following examples illustrate situations in which questions concerning potential conflicts of interest may arise:

(1) Unequal access to information - access to internal IPTC business information as part of the performance of a contract that could provide the contractor a competitive advantage in a later competition for another IPTC contract. Such an advantage could easily be perceived as unfair by a competing vendor who is not given similar access to the relevant information.

(2) Competitive advantage - the contractor, under a prior or existing contract, participates in defining or preparing the requirements or documents that are involved in a subsequent procurement where the contractor may be a competitor. This includes, but is not limited to, defining the requirements, preparing an alternatives analysis, drafting the statement of work or specifications, or developing the evaluation criteria.

(3) Impaired objectivity - the contractor is required to assess or evaluate products or services produced or performed by the contractor or one of its business divisions, subsidiaries, or affiliates, or any entity with which it has a significant financial relationship. The contractor’s ability to render impartial advise could appear to be undermined by the contractor’s financial or other business relationship with the entity being evaluated.

(c) The contractor agrees to immediately notify the contracting authority, in writing, if an actual or potential conflict of interest arises, including any of the above and if a non-IPTC client requests or receives any professional advice, representation, or assistance regarding the IPTC.

(d) The IPTC reserves the right to preclude a contractor from participating in a procurement, refuse to permit the contractor to undertake any conflicting agreements with non-IPTC clients, or terminate this contract without cost to the IPTC in the event the contracting authority determines a conflict of interest exists and cannot be avoided or mitigated.

(end of clause)

1010

Gratuities or Gifts

The IPTC may terminate this contract for default if, after investigation, the contracting authority determines that the contractor, its agent or other representative:

(1) offered or gave a gratuity or gift to an authority or employee of the IPTC in direct violation of the IPTC policies; and

(2) intended by the gratuity or gift to obtain a contract or favorable treatment under a contract.

(end of clause)

1015

Disclosure of Contractor Information to the Public

(a) The IPTC reserves the right to disclose information provided by the contractor, in response to a request by a member of the general public. Upon receipt of a written request, the IPTC will disclose information which would constitute ‘public records’ in an IPTC covered by the Freedom of Information Act or the IPTC’s specific open records law(s). In the event the requested information consists of or includes commercial or financial information, including unit prices, the contractor shall be notified of the request and provided with an opportunity to comment.

(b) The contractor will thereafter be notified as to whether the information requested will be released. The contractor understands and agrees that unit and/or aggregate prices contained in the contract may be subject to disclosure without consent.

(end of clause)

2005A

Inspection of Products

(a) The contractor shall use and maintain a written inspection or quality control system acceptable to the IPTC for the products under this contract. The contractor shall tender to the IPTC for acceptance only products which have been inspected in accordance with the acceptable inspection system and have been found by the contractor to be in conformity with contract requirements. As part of the system, the contractor shall prepare records evidencing all inspections made under the system and the outcome. These records shall be kept complete and made available to the IPTC during contract performance and for at least three years after acceptance. The IPTC has the right to evaluate the acceptability and effectiveness of the contractor's inspection system before award and during contract performance. This evaluation may be used to determine the extent of IPTC inspection and testing, but this does not waive its right to inspect and test all items. The right of review, whether exercised or not, does not relieve the contractor of the obligations under the contract. As a minimum, the contractor's inspection/quality control system shall reflect controls and record keeping in the following functional areas:

(1) receiving inspection;

(2) in-process inspection;

(3) final inspection and test (including packaging);

(4) calibration of inspection or test equipment; and

(5) control or disposition of nonconforming material.

(b) The IPTC has the right to inspect and test all products provided under this contract, to the extent practicable, at all times and places, including the period of manufacture, and in any event before acceptance. The IPTC will perform inspections and tests in a manner that will not unduly delay the work. The IPTC assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere in this contract.

(c) If requested by the IPTC, the contractor shall provide, without charge, all reasonable facilities and assistance to the IPTC inspectors. If the IPTC performs inspections or tests on the premises of the contractor or a subcontractor, the contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

(d) The IPTC may require the contractor to correct or replace any products that fail to comply with the requirements of this contract. The IPTC may reject defective products which do not conform to the contract requirements and:

(1) require replacement or correction of the defects;

(2) acquire replacement products from another source, and charge the contractor for any costs incurred by the IPTC; or

(3) accept the products at a reduced price.

(e) Any remedy such as replacement, correction, or reimbursement for re-procurement will be determined by the contracting authority. Corrected or replaced products may not be tendered again unless the former tender and the requirement for correction or replacement are disclosed. If the contractor fails to proceed with reasonable promptness to perform replacement or correction, and if it can be performed within a ceiling price, the IPTC may:

(1) by contract, or otherwise, remove, replace, or correct the products and charge the cost to the contractor; or

(2) terminate this contract for default.

(f) The contracting authority may negotiate a deduction for consideration from the contract for reimbursement to the IPTC for any costs incurred for:

(1) the total time, including round-trip travel time, lost by IPTC representatives when the contractor is not ready for inspection at the time inspection and testing is requested by the IPTC; and

(2) the total time, including round-trip travel time, required by IPTC representatives for re-inspection and retesting necessitated by rejection.

(3) Charges other than these, for any retesting caused by rejection, will be computed as the actual laboratory cost obtained from the National Bureau of Standards or other testing laboratory.

(end of clause)

2005B

Inspection of Services

(a) The contractor shall provide to the IPTC for acceptance only services which conform to the contract requirements. As part of the inspection system, the contractor shall prepare records evidencing all inspections made under the system and the outcome. These records shall be kept complete and made available to the IPTC during contract performance and for at least three years after acceptance. The IPTC has the right to evaluate the acceptability and effectiveness of the contractor's inspection system before award and during contract performance. This evaluation may be used to determine the extent of IPTC inspection and testing, but this does not waive its right to inspect and test all services. The right of review, whether exercised or not, does not relieve the contractor of the obligations under the contract.

(b) The IPTC has the right to inspect and test all services provided under this contract, to the extent practicable, at all times and places during the term of the contract. The IPTC will perform inspections and tests in a manner that will not unduly delay the work.

(c) If requested by the IPTC, the contractor shall provide, without charge, all reasonable facilities and assistance to the IPTC inspectors. If the IPTC performs inspections or tests on the premises of the contractor or a subcontractor, the contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties.

(d) If any of the services do not conform to contract requirements, the IPTC may require the contractor to perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in services cannot be corrected by re-performance, the IPTC may:

(1) require the contractor to take necessary action to ensure that future performance conforms to contract requirements; and

(2) reduce the contract price 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 conformity with contract requirements, the IPTC may:

(1) by contract or otherwise, perform the services and charge to the contractor any cost incurred by the IPTC that is directly related to the performance of such service; or

(2) terminate the contract for default.

(end of clause)

2010

Responsibility of Products

(a) Title to products furnished under this contract shall pass to the IPTC upon formal acceptance, regardless of when or where the IPTC takes physical possession, unless the contract specifically provides for earlier passage of title.

(b) Unless the contract specifically provides otherwise, risk of loss of or damage to products shall remain with the contractor until, and shall pass to the IPTC upon:

(1) delivery of the products to a carrier, if transportation is F.o.b. origin; or

(2) acceptance by the IPTC or delivery of the products to the IPTC at the destination specified in the contract whichever is later, if transportation is f.o.b. destination.

(c) Paragraph (b) of this clause shall not apply to products that so fail to conform to contract requirements as to give a right of rejection. The risk of loss of or damage to such nonconforming products remains with the contractor until cure or acceptance. After cure or acceptance, paragraph (b) of this clause shall apply.

(d) Under paragraph (b) of this clause, the contractor shall not be liable for loss of or damage to products caused by the negligence of authoritys, agents, or employees of the IPTC acting within the scope of their employment.

(end of clause)

2015

Warranty Information

Offerors are encouraged to submit information on any standard commercial warranties provided for offered products. The IPTC will consider these warranties in determining the most advantageous offer, to the extent provided in the evaluation factors.

(end of provision)

2020A

Incorporation of Warranty

Notwithstanding the contractor's standard commercial warranty, if offered and accepted by the IPTC, any dispute thereunder will be resolved under the Disputes clause of this contract, notwithstanding any disputes procedure that may be specified in the warranty.

(end of clause)

2020B

Contractor Warranty

(a) The contractor warrants that all products furnished under this contract, including packaging and markings, will be free from defects in material or workmanship and will conform with/to the specifications and all other requirements of this contract.

(b) The contracting authority will give written notice to the contractor of any breach of warranty and either:

(1) require the prompt correction or replacement of any defective or nonconforming products; or

(2) retain them, reducing the contract price by an amount equitable under the circumstances.

(c) When return for correction or replacement is required, the contractor is responsible for all costs of transportation and for risk of loss in transit. If the contractor fails or refuses to correct or replace the defective or nonconforming products, the contracting authority may correct or replace them with similar products and charge the contractor for any cost to the IPTC. In addition, the contracting authority may dispose of the nonconforming products, with reimbursement from the contractor or from the proceeds for excess costs. Any products corrected or furnished in replacement are subject to this clause.

(d) The rights and remedies of the IPTC provided in this clause are in addition to, and do not limit, any rights afforded to the IPTC

(end of clause)

2020C

Warranty of Services

(a) Definition. "Acceptance," as used in this clause, means the act of an authorized representative of the IPTC by which the IPTC assumes for itself, or as an agent of another, approves specific services, as partial or complete performance of the contract.

(b) Notwithstanding inspection and acceptance by the IPTC or any provision concerning the conclusiveness thereof, the contractor warrants that all services performed under this contract will, at the time of acceptance, be free from defects in workmanship and conform to the requirements of this contract. The contracting authority will give written notice of any defect or nonconformance to the contractor within 30 days from the date of acceptance by the IPTC. This notice will state either

(1) that the contractor shall correct or re-perform any defective or nonconforming services; or

(2) that the IPTC does not require correction or re-performance.

(c) If the contractor is required to correct or re-perform, it shall be at no cost to the IPTC, and any services corrected or re-performed by the contractor shall be subject to this clause to the same extent as work initially performed. If the contractor fails or refuses to correct or re-perform, the contracting authority may, by contract or otherwise, correct or replace with similar services and charge to the contractor the cost occasioned to the IPTC thereby, or make an equitable adjustment in the contract price.

(d) If the IPTC does not require correction or re-performance, the contracting authority will make an equitable adjustment in the contract price.

 (end of clause)

2025A

Delivery Terms and Contractor's Responsibilities

(a) Each IPTC reserves the right to specify the mode of transportation and routing to be employed.

(b) Destination - If the contract specifies "F.o.b. destination," the following apply:

(1) “F.o.b. destination" means delivery to a destination specified in the purchase document by the consignor or seller (unless the contract provides otherwise). This includes within the doors of the specified building, including delivery to specific rooms within the building when specified. The cost of shipping and risk of loss are borne by the seller or consignor. Title to the products passes to the IPTC when deliverables arrive at the contract's stated destination.

(2) The contractor shall:

(i) pack and mark shipments to comply with contract specifications or, in their absence, prepare shipments in accordance with carrier requirements;

(ii) prepare and distribute commercial bills of lading;

(iii) deliver the shipment in good order and condition to the point of delivery specified in the contract;

(iv) be responsible for loss or damage occurring before receipt at the specified point of delivery;

(v) furnish a delivery schedule and designate the mode of delivery;

(vi) pay and bear all delivery costs to the specified point of delivery.

(c) Origin - If the contract specifies "F.o.b. origin" the following apply:

(1) "F.o.b. origin" means delivery, free of expense to the IPTC to the carrier or shipment facility as follows:

(i) delivery on board the indicated type of conveyance of the carrier (or of the IPTC, if specified), to the specified point from which the shipment will be made and from which line haul transportation service (as distinguished from switching, local drayage, or other terminal service) begins;

(ii) to a U.S. Postal Service facility; or

(iii) delivered by the contractor, to any IPTC designated point located within the same commercial zone (as prescribed by the Interstate Commerce Commission) as the F.o.b. point named in the contract.

(2) The contractor shall:

(i) pack and mark shipments to comply with contract specifications or, in their absence, prepare the shipment in accordance with carrier requirements and good commercial practices and secure the lowest applicable transportation charge.

(ii) order specified carrier equipment when requested by the IPTC. Otherwise, order appropriate carrier equipment not in excess of capacity to accommodate the shipment.

(iii) deliver the shipment in good order and condition to the carrier, when loaded by the contractor, load, stow, trim, block, and/or brace shipments as required by the carrier's rules and regulations.

(iv) be responsible for loss or damage occurring before delivery to the carrier; and for loss or damage due to improper packing/marking and, when loaded by the contractor, from improper loading, stowing, trimming, blocking, and/or bracing of the shipment;

(v) prepare a commercial bill of lading or other transportation receipt, to show:

(A) a description of the shipment in terms of the governing freight classification or tariff(or government rate tender) under which the lowest freight rates are applicable;

(B) the seals affixed to the conveyance, including the serial number on them, or other identification;

(C) the length and capacity of cars or trucks ordered and furnished;

(D) other pertinent information required to effect prompt delivery to the consignee, including name delivery address, postal address and ZIP code of consignee, routing, etc.;

(E) special instructions or annotations requested by the IPTC for commercial bills of lading (for example, “This shipment is the property of, and the freight charges paid to the carrier will be reimbursed by, the IPTC”); and

(F) the signature of carrier's agent and the date the shipment is received by the carrier.

(vi) distribute the copies of the bill of lading, or other transportation receipt, as directed by the IPTC.

(vii) supply with each invoice a memorandum copy of the bill of lading, clearly indicating the signature of the carrier's agent, date of pickup, and the weight accepted by the carrier. If the weight is determined by the carrier after pickup, it shall be annotated on the memorandum copy of the bill of lading along with the following:

"I certify that the weight information is that obtained from the carrier.

Signed: ”

(3) If the IPTC has not specified otherwise, the contractor shall ship on commercial bills of lading.

(4) If the IPTC specifies that shipment is to be made on endorsed commercial bills of lading for transportation charges up to $100, the contractor shall be required to prepay all transportation charges, not to exceed $100, per shipment.

(5) The contractor shall annotate the commercial bill of lading as follows:

“Property of <AGENCY NAME>”

(6) The actual transportation costs, not to exceed $100 per shipment, will be added to the contractor's invoice as a separate item. The costs shall be based on the lowest published rate on file with the Interstate Commerce Commission or any state regulatory body. They shall be supported by freight or express receipts marked "prepaid."

(end of clause)

2030A

Time of Delivery

(a) The IPTC requires delivery to be made according to the delivery schedule specified in Section F of the contract schedule. The IPTC will evaluate offerors' proposed delivery schedules to determine the offer with the most advantageous delivery time to the IPTC. Offers that propose delivery that will not clearly fall within the required delivery period will be deemed unacceptable. The IPTC reserves the right to award on the basis of either the required delivery schedule or the proposed delivery schedule when an offeror proposes an earlier delivery schedule than required. If the offeror proposes no other delivery schedule, the required delivery schedule will apply.

(b) The required delivery schedule may be stated in terms of days after the effective date of the contract award or specific dates.

(end of clause)

2035

F.O.B. Destination, Within IPTC’s Premises

(a) The term “F.o.b. destination, within IPTC’s premises,” as used in this clause, means free of expense to the IPTC delivered and laid down within the doors of the IPTC’s premises, including delivery to specific rooms within a building if so specified.

(b) The contractor shall:

(1)        (i) pack and mark the shipment to comply with contract specifications; or

(ii) in the absence of specifications, prepare the shipment in conformance with carrier requirements;

(2) prepare and distribute commercial 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 products occurring before receipt of the shipment by the IPTC at the delivery point specified in the contract;

(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)

2040B

Delivery of Excess Quantities

If the contractor delivers, and the IPTC receives, quantities of any item in excess of the quantity called for, such excess quantities will be treated as being delivered for the convenience of the contractor. The IPTC may retain such excess quantities up to $250 in value without compensating the contractor therefore, and the contractor waives all right, title, or interests therein. Quantities in excess of $250 will, at the option of the IPTC, either be returned at the contractor's expense or retained and paid for by the IPTC at the contract unit price.

(end of clause)

2045

Packaging and Marking

(a) Unless otherwise specified, preservation, packaging, and marking for all items delivered hereunder shall be in accordance with commercial practice and adequate to insure acceptance by common carrier and safe arrival at destination. The contractor shall place the contract number and delivery order number, or purchase order, as applicable, on or adjacent to the exterior shipping label or include them on the internal packing slip. For any magnetic media provided, the contractor shall provide extra markings for protection against exposure to magnetic fields or temperature extremes.

(b) All documentation, reports, and other deliverables shall be clearly marked with the project title, contract number, and delivery order number (when applicable). Unless otherwise specified, all items shall be packaged and packed in accordance with normal commercial practices – e.g., if magnetic media is involved, extra marking shall be considered for protection against exposure to magnetic fields or temperature.

(c) Boxes shipped in cartons shall be secured with heavy duty security tape or bands to ensure the integrity of the contents and to deter theft during shipment. The contractor may be held liable for retail value of material lost during shipment due to poor packaging.

2050

Continuity of Services

(a) The contractor recognizes that the services under this contract are vital to the IPTC and shall be continued without interruption and that, upon contract expiration, a successor, either the IPTC or another contractor, may continue them. The contractor 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 authority’s written notice:

(1) furnish phase-in, phase-out services for up to 90 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 will be subject to the contracting authority’s written 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 on-site 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)

2055

Privacy or Security Safeguards

(a) The contractor shall not publish or disclose in any manner, without the contracting authority's written consent, the details of any safeguards either designed or developed by the contractor under this contract or otherwise provided by the agency.

(b) To the extent required to carry out a program of inspection to safeguard against threats and hazards to the security, integrity, and confidentiality of agency data, the contractor shall afford the agency access to the contractor's facilities, installations, technical capabilities, operations, documentation, records, and databases.

(c) If new or unanticipated threats or hazards are discovered by either the agency or the contractor, or if existing safeguards have ceased to function, the discoverer shall immediately bring the situation to the attention of the other party.

(end of clause)

2060

Stop-Work Order

(a) The contracting authority may, at any time, by written order to the contractor, require the contractor to stop all, or any part, of the work called for by this contract for a period of 90 days after the order is delivered to the contractor, and for any further period to which the parties may agree. The order will be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, the contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work is delivered to the contractor, or within any extension of that period to which the parties shall have agreed, the contracting authority will either-

(1) Cancel the stop-work order; or

(2) Terminate the work covered by the order as provided in the default, or the Termination for Convenience, clause of this contract.

(b) If a stop-work order issued under this clause is canceled or the period of the order or any extension thereof expires, the contractor shall resume work. The contracting authority will make an equitable adjustment in the delivery schedule or contract price, or both, and the contract will be modified, in writing, accordingly, if:

(1) The stop-work order results in an increase in the time required for, or in the contractor's cost properly allocable to, the performance of any part of this contract; and

(2) The contractor asserts its right to the adjustment within 30 days after the end of the period of work stoppage; provided that, if the contracting authority decides the facts justify the action, the contracting authority may receive and act upon the claim submitted at any time before final payment under this contract.

(c) If a stop-work order is not canceled and the work covered by the order is terminated for the convenience of the IPTC, the contracting authority will allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.

(d) If a stop-work order is not canceled and the work covered by the order is terminated for default, the contracting authority will allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.

(end of clause)

2070

Site Visit

Offerors or quoters are urged and expected to inspect the site where services are to be performed and to satisfy themselves regarding all general and local conditions that may affect the cost of contract performance, to the extent that the information is reasonably obtainable. In no event will failure to inspect the site constitute grounds for a claim after contract award.

(end of provision)

2080

IPTC Property

(a) Title to IPTC property provided under this contract remains in the IPTC. The contractor may use the IPTC property only in connection with this contract. The contractor shall secure IPTC property and maintain adequate property control records in accordance with sound industrial practice and shall make them available for IPTC inspection at all reasonable times.

(b) Upon delivery of IPTC property to the contractor, the contractor assumes the risk and responsibility for its loss or damage, except:

(1) for reasonable wear and tear;

(2) to the extent property is consumed in performing the contract; or

(3) as otherwise provided in the contract.

(c) Upon completing this contract, the contractor shall follow the contracting authority's instructions regarding the disposition of all IPTC property not consumed in performing this contract or previously delivered to the IPTC. The contractor shall prepare for shipment, deliver F.O.B. origin, or dispose of the IPTC property, as directed or authorized by the contracting authority. The net proceeds of any such disposal will be credited to the contract price or will be paid to the IPTC as directed by the contracting authority.

(d) The items of property are listed in an inventory of items attached to this contract and the contractor shall notify the IPTC on any required adjustments.

(end of clause)

2085A

Evaluation Inclusive of Options

(a) The IPTC will evaluate offers for purposes of award by adding the total price for all options to the total price for the basic requirement. Evaluation of options does not obligate the IPTC to exercise the option(s).

(b) Any offer that is materially unbalanced as to prices for basic and option quantities may be rejected. An unbalanced offer is one that is based on prices significantly less than cost for some work and prices that are significantly overstated for other work.

(end of provision)

2085B

Evaluation Exclusive of Options

The IPTC will evaluate offers for award purposes by including only the price for the basic requirement; i.e., options will not be included in the evaluation for award purposes.

(end of provision)

2085C

Evaluation of Options Exercised at Time of Contract Award

Except when it is determined not to be in the IPTC's best interests, the IPTC will evaluate the total price for the basic requirement together with any option(s) exercised at the time of award.

(end of provision)

2090A

Option for Increased Quantity

The IPTC may increase the quantity of products called for in this contract by requiring the delivery of the numbered line item identified in the schedule as an option item, in the quantity and at the price set forth in the schedule. The contracting authority may exercise this option, at any time within the period specified in the schedule, by giving written notice to the contractor. Delivery of the items added by the exercise of this option will continue immediately after, and at the same rate as, delivery of like items called for under this contract, unless the parties otherwise agree.

(end of clause)

2090B

Option for Increased Quantity - Separately Priced Line Item

The IPTC may require the delivery of the numbered line item, identified in the schedule as an option item, in the quantity and at the price stated in the schedule. The contracting authority may exercise the option by written notice to the contractor within [insert in the clause the period of time in which the contracting authority has to exercise the option]. Delivery of added items shall continue at the same rate that like items are called for under the contract, unless the parties otherwise agree.

(end of clause)

2095

Material Requirements

(a) As used in this clause:

(1) “new" means composed of previously unused components, whether manufactured from virgin material, recovered material in the form of raw material, or materials and by-products generated from, and reused within, an original manufacturing process; provided that the products meet contract requirements, including but not limited to, performance, reliability, and life expectancy.

(2) "reconditioned" means restored to the original normal operating condition by readjustments and material replacement.

(3) "recovered material" means waste materials and by-products recovered or diverted from solid waste, but the term does not include those materials and byproducts generated from, and commonly reused within, an original manufacturing process.

(4) "re-manufactured" means factory rebuilt to original specifications.

(5) "virgin material" means:

(i) previously unused raw material, including previously unused copper, aluminum, lead, zinc, iron, other metal or metal ore; or

(ii) any undeveloped resource that is, or with new technology will become, a source of raw materials.

(b) Unless this contract otherwise requires virgin material or products composed of or manufactured from virgin material, the contractor shall provide products that are new, reconditioned, or re-manufactured, as defined in this clause.

(c) An offer to provide unused former government surplus property shall include a complete description of the material, the quantity, the name of the government agency from which acquired, and the date of procurement.

(d) An offer to provide used, reconditioned, or re-manufactured products shall include a detailed description of such products and shall be submitted to the contracting authority for written approval.

(e) Used, reconditioned, or re-manufactured products, or unused former government surplus property, may be used in performance if the contractor has proposed the use of such products, and the contracting authority has authorized their use.

(end of clause)

2100

Brand Name or Equal

(a) One or more items called for by this solicitation have been identified in the schedule by a brand-name-or-equal product description. Offers offering equal products will be considered for award if these products are clearly identified and are determined by the IPTC to contain all of the essential characteristics of the brand-name products referenced in the solicitation.

(b) Unless the offeror clearly indicates in the offer that the offer is for an equal product, the offer will be considered as offering a brand-name product referenced in the solicitation.

(c) If the offeror proposes to furnish an equal product, the brand name and model or catalog number, if any, of the product to be furnished shall be provided in the solicitation response. The evaluation of offers and the determination as to equality of the product offered will be based on information furnished by the offeror or identified in the offer, as well as other information reasonably available to the purchasing activity. The purchasing activity is not responsible for locating or obtaining any information not identified in the offer and reasonably available to the purchasing activity. Accordingly, to ensure that sufficient information is available, the offeror shall furnish as a part of the offer:

(1) all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to establish exactly what the offeror proposes to furnish and to determine whether the product offered meets the requirements of the solicitation; or

(2) specific references to information previously furnished or to information otherwise available to the purchasing activity to permit a determination as to equality of the product offered.

(3) If the offeror proposes to modify a product so as to make it conform to the requirements of the solicitation, the offeror shall:

(i) Include in the offer a clear description of the proposed modifications; and

(ii) Clearly mark any descriptive material to show the proposed modifications.

(d) The decision of the IPTC in regard to accepting a product equal is at the discretion of the IPTC and any decision it makes on the subject is final and shall not be considered a valid reason for protest.

(end of clause)

2110

Option to Purchase Equipment

(a) The IPTC may purchase the equipment provided on a lease or rental basis under this contract. The contracting authority may exercise this option only by providing a unilateral modification to the contractor. The effective date of the purchase will be specified in the unilateral modification and may be any time during the period of the contract, including any extensions thereto.

(b) Except for final payment and transfer of title to the IPTC, the lease or rental portion of the contract becomes complete and lease or rental charges shall be discontinued on the day immediately preceding the effective date of purchase specified in the unilateral modification required in paragraph (a) of this clause.

(c) The purchase conversion cost of the equipment shall be computed as of the effective date specified in the unilateral modification required in paragraph (a) of this clause, on the basis of the purchase price set forth in the contract, minus the total purchase option credits accumulated during the period of lease or rental, calculated by the formula contained elsewhere in this contract.

(d) The accumulated purchase option credits available to determine the purchase conversion cost will also include any credits accrued during a period of lease or rental of the equipment under any previous IPTC contract if the equipment has been on continuous lease or rental. The movement of equipment from one site to another site shall be "continuous rental."

(end of clause)

3010

Data Universal Numbering System (DUNS) Number

(a) The offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation "DUNS" followed by the DUNS number that identifies the offeror's name and address exactly as stated in the offer. The DUNS number is a nine-digit number assigned by Dun and Bradstreet Information Services.

(b) If the offeror does not have a DUNS number, it shall contact Dun and Bradstreet directly to obtain one. A DUNS number will be provided immediately by telephone at no charge to the offeror. For information on obtaining a DUNS number, the offeror, if located within the United States, shall call Dun and Bradstreet at 1-800-333-0505. The offeror shall be prepared to provide the following information:

(1) company name;

(2) company address;

(3) company telephone number;

(4) line of business;

(5) chief executive officer/key manager;

(6) date the company was started;

(7) number of people employed by the company; and

(8) company affiliation.

(c) Offerors located outside the United States may obtain the location and phone number of the local Dun and Bradstreet Information Services office from the Internet home page at http://www.customerservice@dnb.com. If an offeror is unable to locate a local service center, it may send an e-mail to Dun and Bradstreet at globalinfo@mail.dnb.com.

(end of clause)

3015

Place of Performance

If the IPTC intends or the offeror proposes, in the performance of any contract resulting from this solicitation, to use one or more facilities located at addresses different from the offeror's address as indicated in this offer, the offeror shall include in its offer a statement referencing this provision and identifying those facilities by street address, city, country, state, and ZIP code, and the name and address of the operators of those facilities if other than the offeror.

(end of provision)

3025

Protecting the Agency’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment

(a) The government suspends or debars contractors to protect the government’s interests (including the agency). The contractor shall not enter into any subcontract in excess of $25,000 with a contractor that is debarred, suspended, or proposed for debarment unless there is a compelling reason to do so.

(b) The contractor shall require each proposed first-tier subcontractor, whose subcontract will exceed $25,000, to disclose to the contractor, in writing, whether as of the time of award of the subcontract, the subcontractor, or its principals, is or is not debarred, suspended, or proposed for debarment by the federal government.

(c) A corporate officer or a designee of the contractor shall notify the contracting authority, in writing, before entering into a subcontract with a party that is debarred, suspended, or proposed for debarment. The notice shall include the following:

(1) the name of the subcontractor;

(2) the contractor's knowledge of the reasons for the subcontractor being on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs;

(3) the compelling reason(s) for doing business with the subcontractor notwithstanding its inclusion on the List of Parties Excluded From Federal Procurement and Nonprocurement Programs; and

(4) the systems and procedures the contractor has established to ensure that it is fully protecting the agency’s interests when dealing with such subcontractor in view of the specific basis for the party's debarment, suspension, or proposed debarment.

(end of clause)

3035

Covenant Against Contingent Fees

(a) The contractor warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the IPTC will have the right to annul or terminate this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

(b) Definitions

"Bona fide agency," as used in this clause, means an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain IPTC contracts nor holds itself out as being able to obtain any IPTC 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 IPTC contracts nor holds out as being able to obtain any IPTC contract or contracts through improper influence.

"Contingent fee," as used in this clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing an IPTC contract.

"Improper influence," as used in this clause, means any influence that induces or tends to induce an IPTC employee or officer to give consideration or to act regarding a IPTC contract on any basis other than the merits of the matter.

(end of clause)

3045

Anti-Kickback Procedures

(a) Definitions

"Kickback," as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any prime contractor, prime contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.

"Person," as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

"Prime contract," as used in this clause, means a contract or contractual action entered into by the IPTC for the purpose of obtaining products, materials, equipment, or services of any kind.

"Prime contractor" as used in this clause, means a person who has entered into a prime contract with the IPTC.

"Prime contractor employee," as used in this clause, means any officer, partner, employee, or agent of a prime contractor.

"Subcontract," as used in this clause, means a contract or contractual action entered into by a prime contractor or subcontractor for the purpose of obtaining products, materials, equipment, or services of any kind under a prime contract.

"Subcontractor," as used in this clause, (1) means any person, other than the prime contractor, who offers to furnish or furnishes any products, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract, and (2) includes any person who offers to furnish or furnishes general products to the prime contractor or a higher tier subcontractor.

"Subcontractor employee," as used in this clause, means any officer, partner, employee, or agent of a subcontractor.

(b) The Anti-Kickback Act of 1986 (41 U.S.C. §§ 51-58) (the Act), prohibits any person from:

(1) providing or attempting to provide or offering to provide any kickback;

(2) soliciting, accepting, or attempting to accept any kickback; or

(3) including, directly or indirectly, the amount of any kickback in the contract price charged by a prime contractor to the IPTC or in the contract price charged by a subcontractor to a prime contractor or higher tier subcontractor.

(c)

(1) The contractor shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (b) of this clause in its own operations and direct business relationships.

(2) When the contractor has reasonable grounds to believe that a violation described in paragraph (b) of this clause may have occurred, the contractor shall promptly report in writing the possible violation. Such reports shall be made to the head of the contracting office if it does not have an inspector general, or the Federal Transit Administration.

(3) The contractor shall cooperate fully with any federal agency investigating a possible violation described in paragraph (b) of this clause.

(4) The contracting authority may:

(i) offset the amount of the kickback against any monies owed by the United States under the prime contract and/or

(ii) direct that the prime contractor withhold from sums owed a subcontractor under the prime contract the amount of the kickback.

The contracting authority may order that monies withheld under subdivision (c)(4)(ii) of this clause be paid over to the IPTC unless the IPTC has already offset those monies under subdivision (c)(4)(i) of this clause. In either case, the prime contractor shall notify the contracting authority when the monies are withheld.

(5) The contractor agrees to incorporate the substance of this clause, including paragraph (c)(5) but excepting paragraph (c)(1), in all subcontracts under this contract which exceed the IPTC’s small purchase threshold.

(end of clause)

3050

Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity

(a) If the IPTC receives information that a contractor or a person has engaged in conduct constituting a violation of subsection (a), (b), (c), or (d) of section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. § 423) (the Act), as amended by section 4304 of the National Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106), the IPTC may:

(1) cancel the solicitation, if the contract has not yet been awarded or issued; or

(2) rescind the contract with respect to which:

(i) the contractor or someone acting for the contractor has been convicted for an offense where the conduct constitutes a violation of subsection 27(a) or (b) of the Act for the purpose of either:

(A) exchanging the information covered by such subsections for anything of value; or

(B) obtaining or giving anyone a competitive advantage in the award of a IPTC procurement contract; or

(ii) The head of the contracting authority has determined, based upon a preponderance of the evidence, that the contractor or someone acting for the contractor has engaged in conduct constituting an offense punishable under subsection 27(e)(1) of the Act.

(b) If the IPTC rescinds the contract under paragraph (a) of this clause, the IPTC is entitled to recover, in addition to any penalty prescribed by law, the amount expended under the contract.

(c) The rights and remedies of the IPTC specified herein are not exclusive, and are in addition to any other rights and remedies provided by law, regulation, or under this contract.

(end of clause)

3055

Price or Fee Adjustment for Illegal or Improper Activity

(a) The IPTC, at its election, may reduce the price of a fixed-price type contract and the total cost and fee under a cost-type contract by the amount of profit or fee determined as set forth in paragraph (b) of this clause if the head of the contracting activity or designee determines that there was a violation of subsection 27(a), (b), or (c) of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. § 423).

(b) The price or fee reduction referred to in paragraph (a) of this clause will be:

(1) for cost-plus-fixed-fee contracts, the amount of the fee specified in the contract at the time of award;

(2) for cost-plus-incentive-fee contracts, the target fee specified in the contract at the time of award, notwithstanding any minimum fee or "fee floor" specified in the contract;

(3) for cost-plus-award-fee contracts:

(i) the base fee established in the contract at the time of contract award;

(ii) if no base fee is specified in the contract, 30 percent of the amount of each award fee otherwise payable to the contractor for each award fee evaluation period or at each award fee determination point.

(4) for fixed-price-incentive contracts, the IPTC may:

(i) reduce the contract target price and contract target profit both by an amount equal to the initial target profit specified in the contract at the time of contract award; or

(ii) if an immediate adjustment to the contract target price and contract target profit would have a significant adverse impact on the incentive price revision relationship under the contract, or adversely affect the contract financing provisions, the contracting authority may defer such adjustment until establishment of the total final price of the contract. The total final price established in accordance with the incentive price revision provisions of the contract will be reduced by an amount equal to the initial target profit specified in the contract at the time of contract award and such reduced price will be the total final contract price.

(5) for firm-fixed-price contracts, by 10 percent of the initial contract price or a profit amount determined by the contracting authority from records or documents in existence prior to the date of the contract award.

(c) The IPTC may, at its election, reduce a prime contractor's price or fee in accordance with the procedures of paragraph (b) of this clause for violations of the Act by its subcontractors by an amount not to exceed the amount of profit or fee reflected in the subcontract at the time the subcontract was first definitively priced.

(d) In addition to the remedies in paragraphs (a) and (c) of this clause, the IPTC may terminate this contract for default. The rights and remedies of the IPTC specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract.

(end of clause)

3070

Determination of Responsibility

A determination of responsibility will be made on the apparent successful Offeror prior to contract award. If the prospective contractor is found non-responsible, that Offeror will be rejected and will receive no further consideration for award. In the event a contractor is rejected based on a determination of non-responsibility, a determination will be made on the next apparent successful Offeror.

(end of provision)

3075

Limited Criminal Background Suitability Check and Disclosure

All vendor employees working on-site at IPTC facilities will be required to complete Information requests in order that a limited criminal background suitability check may be performed. It is the Contractor’s responsibility to disclose any employee known to have prior felony convictions to the Contracting Authority. In addition, no vendor employee will be granted access for work at court facilities if they have been convicted of a felony without the specific approval of the IPTC Security Manager.

(end of clause)

3080

Submission of Offers

(a) Offers and offer modifications shall be submitted in sealed envelopes or packages (unless submitted by electronic means):

(1) addressed to the office specified in the solicitation; and

(2) showing the time and date specified for receipt, the solicitation number & title, and the name and address of the offeror.

(b) Offerors using commercial carrier services shall ensure that the offer is addressed and marked on the outermost envelope or wrapper as prescribed in paragraphs (a)(1) and (2) of this provision when delivered to the office specified in the solicitation.

(c) Telegraphic offers will not be considered unless authorized by the solicitation; however, offers may be modified or withdrawn by written or telegraphic notice.

(d) Facsimile offers, modifications, or withdrawals, will not be considered unless authorized by the solicitation.

(e) Offers submitted by electronic commerce shall be considered only if the electronic commerce method was specifically stipulated or permitted by the solicitation.

(end of provision)

3085

Explanation to Prospective Offerors

Any prospective offeror desiring an explanation or interpretation of the solicitation, drawings, specifications, etc. shall submit such questions in writing only to the contracting authority soon enough to allow a reply to reach all prospective offerors before the submission of their offers. Oral explanations or instructions given before the award of the contract will not be binding. Any information given by the contracting authority to a prospective offeror concerning a solicitation will be furnished promptly to all other prospective offerors as an amendment to the solicitation, if that information is deemed by the contracting authority to be necessary in submitting offers or if, in the judgment of the contracting authority, the lack of it would be prejudicial to any other prospective offerors. The offeror is instructed specifically to contact only the contracting authority in connection with any aspect of this procurement prior to contract award. Contact with any other IPTC official except the contracting authority, or without the contracting authority’s express consent, concerning this solicitation may result in disqualification of the offeror from consideration for award.

(end of provision)

3090

Late Submissions, Modifications, and Withdrawals of Offers

(a) Offerors are responsible for submitting offers, and any modifications or withdrawals, so as to reach the IPTC office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:00 p.m., local time, for the designated IPTC office on the date that offers are due.

(b) Under no circumstance will any response be accepted later than the time or date detailed, or at any other location than that specified. This restriction includes failure of a private delivery service or the United States Postal Service to deliver documents as required.

(c) Acceptable evidence to establish the time of receipt at the IPTC installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of IPTC personnel.

(d) If an emergency or unanticipated event interrupts normal IPTC processes so that offers cannot be received at the IPTC office designated for receipt of offers by the exact time specified in the solicitation and urgent IPTC requirements preclude amendment of the solicitation, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal IPTC processes resume.

(e) Offers may be withdrawn by written notice received at any time before the exact time set for receipt of offers. Offers may be withdrawn via facsimile received at any time before the exact time set for receipt of offers. An offer may be withdrawn in person by an offeror or its authorized representative, if, before the exact time set for receipt of offers, the identity of the person requesting withdrawal is established and the person signs a receipt for the offer.

(f) Offerors deciding to withdraw their offers shall notify the IPTC promptly of such withdrawal in writing directed to the contracting authority to avoid unnecessary review by the IPTC. The IPTC shall have the right to discard or retain for its records all copies of offers withdrawn from consideration.

(g) After the exact time set for receipt of offers has past, the Offeror irrevocably offers for a One Hundred-Twenty (120) day period, commencing at the due hour and date as specified, to enter into the Contract, if awarded, as hereinafter provided.

(h) After the expiration of the aforesaid one hundred-twenty (120) day period, an offer may be withdrawn by an Offeror who has otherwise complied with all of the requirements of the Solicitation by serving the IPTC with a written notice of withdrawal. An award made by the IPTC prior to its receipt of the notice of withdrawal will be valid, notwithstanding that such award is made after expiration of the said one hundred-twenty (120) day period. For such written notice of withdrawal to be effective, it must be clear, unequivocal and without conditions.

(end of provision)

3095

Preparation of Offers

(a) Offerors are expected to examine the drawings, specifications, schedule and all provisions and instructions. Failure to do so will be at the offeror's risk.

(b) Each offeror shall furnish the information required by the solicitation. The offeror shall sign the offer and print or type its name on the offer and each continuation sheet on which it makes an entry. Erasures or other changes shall be initialed by the person signing the offer. Offers signed by an agent shall be accompanied by evidence of that agent’s authority, unless that evidence has been previous furnished to the purchasing office.

(c) For each item in the offer, the offeror shall:

(1) show the unit price/cost, including, unless otherwise specified, packaging, packing, and preservation; and

(2) enter the extended price/cost for the quantity of each item offered in the “amount” column of the schedule.

In case of discrepancy between a unit price/cost and an extended price/cost, the unit price/cost will be presumed to be correct, subject, however, to correction to the same extent and in the same manner as any other mistake.

(d) Offers for products or services other than those specified will not be considered unless authorized by the solicitation.

(e) Offerors shall state a definite time for delivery of products or for performance of services, unless otherwise specified in the solicitation.

(f) Time, if stated as a number of days, will include Saturdays, Sundays, federal, and IPTC holidays.

(end of provision)

3100

Instructions to Offerors

(a) Definitions As used in this provision:

"Discussions" are negotiations that occur after establishment of the competitive range that may, at the contracting authority's discretion, result in the offeror being allowed to revise its offer.

In writing," "writing," or "written" means any worded or numbered expression that can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.

"Offer modification" is a change made to an offer before the solicitation's closing date and time, or made in response to an amendment, or made to correct a mistake at any time before award.

"Offer revision" is a change to an offer made after the solicitation closing date, at the request of or as allowed by a contracting authority as the result of negotiations.

"Time," if stated as a number of days, is calculated using calendar days, unless otherwise specified, and will include Saturdays, Sundays, and legal holidays. However, if the last day falls on a Saturday, Sunday, or legal holiday, then the period will include the next working day.

(b) Amendments to solicitations: If this solicitation is amended, all terms and conditions that are not amended remain unchanged. Offerors shall acknowledge receipt of any amendment to this solicitation by the date and time specified in the amendment(s).

(1) Unless otherwise specified in the solicitation, the offeror may propose to provide any item or combination of items.

(2) Offerors shall submit offers in response to this solicitation in English and in U.S. dollars.

(3) Offerors may submit modifications to their offers at any time before the solicitation closing date and time, and may submit modifications in response to an amendment, or to correct a mistake at any time before award.

(4) Offerors may submit revised offers only if requested or allowed by the contracting authority.

(5) Offers may be withdrawn at any time before award. Withdrawals are effective upon receipt of notice by the contracting authority.

(c) Offer expiration date: Offers in response to this solicitation will be valid for the number of days specified on the solicitation cover sheet.

(d) Restriction on disclosure and use of data: Offerors that include in their offers data that they do not want disclosed to the public for any purpose, or used by the IPTC except for evaluation purposes, shall:

(1) mark the title page with the following legend:

This offer includes data that shall not be disclosed outside the IPTC and shall not be duplicated, used, or disclosed-in whole or in part-for any purpose other than to evaluate this offer. If, however, a contract is awarded to this offeror as a result of-or in connection with the submission of this data, the IPTC shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit the IPTC's right to use information contained in this data if it is obtained from another source without restriction. The data subject to this restriction are contained in sheets [insert numbers or other identification of sheets]; and

(2) mark each sheet of data it wishes to restrict with the following legend:

Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this offer.

(e) Contract award:

(1) The IPTC intends to award a contract or contracts resulting from this solicitation to the responsible offeror(s) whose offer(s) represents the best value after solicitation review for legal compliance and vendor responsibleness, in accordance with the factors and subfactors in the solicitation.

(2) The IPTC may reject any or all offers if such action is in the IPTC's interest.

(3) The IPTC may waive informalities and minor irregularities in offers received.

(4) The IPTC reserves the right to make multiple awards if, after considering the additional administrative costs, it is in the IPTC's best interest to do so.

(5) Exchanges with offerors after receipt of an offer for clarification purposes do not constitute a rejection or counteroffer by the IPTC.

(6) The IPTC may determine that an offer is unacceptable if the prices proposed are materially unbalanced between line items or sub-line items. Unbalanced pricing exists when, despite an acceptable total evaluated price, the price of one or more contract line items is significantly overstated or understated as indicated by the application of cost or price analysis techniques. An offer may be rejected if the contracting authority determines that the lack of balance poses an unacceptable risk to the IPTC.

(7) If a cost realism analysis is performed, cost realism may be considered by the source selection authority in evaluating performance or schedule risk.

(8) A written award or acceptance of offer mailed or otherwise furnished to the successful offeror within the time specified in the offer shall result in a binding contract without further action by either party.

(9) The IPTC may disclose the following information in postaward debriefings to other offerors:

(A) the overall reviewed cost or price;

(B) a summary of the rationale for award; and

(D) for procurements of commercial items, the make and model of the item to be delivered by the successful offeror.

(end of provision)

3100-Alt1

Alternate I - Substitute the following paragraph for paragraph (f)(4) of the basic provision if the IPTC intends to make award after discussions with offerors within the competitive range.

(f)(4) The IPTC intends to evaluate offers and award a contract after conducting discussions with offerors whose offers have been determined to be within the competitive range. If the contracting authority determines that the number of offers that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the contracting authority may limit the number of offers in the competitive range to the greatest number that will permit an efficient competition among the most highly rated offers. Therefore, the offeror's initial offer shall contain the offeror's best terms from a price and technical standpoint.

3100-Alt2

Alternate II Add a paragraph (c)(9) to the basic clause, if the IPTC would be willing to accept alternate offers.

(c)(9) Offerors may submit offers that depart from stated requirements. Such offers shall clearly identify why the acceptance of the offer would be advantageous to the IPTC.

Any deviations from the terms and conditions of the solicitation, as well as the comparative advantage to the IPTC shall be clearly identified and explicitly defined.

The IPTC reserves the right to amend the solicitation to allow all offerors an opportunity to submit revised offers based on the revised requirements.

3105

Audit and Records - Negotiation

(a) As used in this clause, "records" includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form.

(b) Examination of costs If this is a cost-reimbursement, incentive, time-and-materials, labor-hour, or price re-determinable contract, or any combination of these, the contractor shall maintain and the contracting authority, or an authorized representative of the contracting authority, will have the right to examine and audit all records and other evidence sufficient to reflect properly all costs claimed to have been incurred or anticipated to be incurred directly or indirectly in performance of this contract. This right of examination will include inspection at all reasonable times of the contractor's plants, or parts of them, engaged in performing the contract.

(c) Cost or pricing data If the contractor has been required to submit cost or pricing data in connection with any pricing action relating to this contract, the contracting authority, or an authorized representative of the contracting authority, in order to evaluate the accuracy, completeness, and currency of the cost or pricing data, will have the right to examine and audit all of the contractor's records, including computations and projections, related to:

(1) the offer for the contract, subcontract, or modification;

(2) the discussions conducted on the offer(s), including those related to negotiating;

(3) pricing of the contract, subcontract, or modification; or

(4) performance of the contract, subcontract or modification.

(d) Comptroller General

(1) The Comptroller General of the United States, or an authorized representative, will have access to and the right to examine any of the contractor's directly pertinent records involving transactions related to this contract or a subcontract hereunder.

(2) This paragraph may not be construed to require the contractor or subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e) Reports If the contractor is required to furnish cost, funding, or performance reports, the contracting authority or an authorized representative of the contracting authority will have the right to examine and audit the supporting records and materials, for the purpose of evaluating:

(1) the effectiveness of the contractor's policies and procedures to produce data compatible with the objectives of these reports; and

(2) the data reported.

(f) Availability The contractor shall make available at its office at all reasonable times the records, materials, and other evidence described in paragraphs (a), (b), (c), (d), and (e) of this clause, for examination, audit, or reproduction, until 3 years after final payment under this contract, or for any shorter or longer period required by statute or by other clauses of this contract. In addition:

(1) if this contract is completely or partially terminated, the contractor shall make available the records relating to the work terminated until 3 years after any resulting final termination settlement; and

(2) the contractor shall make available records relating to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to this contract until such appeals, litigation, or claims are finally resolved.

(g) The contractor shall insert a clause containing all the terms of this clause, including this paragraph (g), in all subcontracts under this contract that exceed the agency’s small purchase threshold, and:

(1) that are cost-reimbursement, incentive, time-and-materials, labor-hour, or price re-determinable type or any combination of these;

(2) for which cost or pricing data are required; or

(3) that require the subcontractor to furnish reports as discussed in paragraph (e) of this clause.

(h) The clause may be altered only as necessary to identify properly the contracting parties and the contracting authority under the agency prime contract.

(end of clause)

3115

Facsimile Offers

(a) Definition "Facsimile offer," as used in this provision, means an offer, revision or modification of an offer, or withdrawal of an offer that is transmitted to and received by the IPTC via facsimile machine.

(b) Offerors may not submit facsimile offers as responses to this solicitation but may submit revision or modification of already submitted offers. Additionally, offerors may withdraw an offer already submitted to the IPTC via facsimile machine.

(end of provision)

3120

Order of Precedence

Any inconsistency in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) the schedule (excluding the specifications);

(2) representations and other instructions;

(3) the solicitation/contract provisions and clauses;

(4) other documents, exhibits, and attachments;

(5) the specifications.

(end of clause)

3125

Acknowledgment of Solicitation Amendments

(a) Offerors shall acknowledge receipt of any amendment to this solicitation by:

(1) signing and returning the amendment;

(2) identifying the amendment number and date in the space provided for this purpose on the solicitation form; or

(3) letter or telegram.

(b) Acknowledgments of amendments are subject to the Late Submissions, Modifications and Withdrawals of Offers provision of the solicitation. Offers lacking acknowledgment of an amendment affecting price, quantity, quality, or delivery may be rejected.

(end of provision)

3135

Single or Multiple Awards

The IPTC may elect to award a single contract or to award multiple contracts for the same or similar products or services to two or more sources under this solicitation.

(end of provision)

3140

Notice to the IPTC of Labor Disputes

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 immediately give notice, including all relevant information, to the contracting authority.

(end of clause)

3150

Contract Work Hours and Safety Standards
(a) Overtime requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(b) Violation; liability for unpaid wages; liquidated damages: In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section.

(c) Withholding for unpaid wages and liquidated damages: The agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

(4) Subcontract: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.

(end of clause)

3205

Protest after Award

(a) Upon receipt of a notice of protest or a determination that a protest is likely, the contracting authority may, by written order to the contractor, direct the contractor to stop performance of the work called for by this contract. The order will be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, the contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Upon receipt of the final decision in the protest, the contracting authority will either:

(1) cancel the stop-work order; or

(2) terminate the work covered by the order as provided in the Default, or the Termination clause of this contract.

(b) If a stop-work order issued under this clause is canceled either before or after a final decision in the protest, the contractor shall resume work. The contracting authority will make an equitable adjustment in the delivery schedule or contract price, or both, and the contract will be modified, in writing, accordingly, if:

(1) the stop-work order results in an increase in the time required for, or in the contractor's cost properly allocable to, the performance of any part of this contract; and

(2) the contractor asserts its right to an adjustment within 30 days after the end of the period of work stoppage; provided, that if the contracting authority decides the facts justify the action, the contracting authority may receive and act upon an offer at any time before final payment under this contract.

(c) If a stop-work order is not canceled and the work covered by the order is terminated for the convenience of the agency, the contracting authority will allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.

(d) If a stop-work order is not canceled and the work covered by the order is terminated for default, the contracting authority will allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.

(e) The agency's rights to terminate this contract at any time are not affected by action taken under this clause.

(f) If, as the result of the contractor's intentional or negligent misstatement, misrepresentation, or mis-certification, a protest related to this contract is sustained, and the agency pays costs, the agency may require the contractor to reimburse the agency the amount of such costs. In addition to any other remedy available, the agency may collect this debt by offsetting the amount against any payment due the contractor under any contract between the contractor and the agency.

(end of clause)

4005

Ordering

(a) Any products and services to be furnished under this contract will be ordered by issuance of written delivery orders or task orders by the individuals or activities designated in the schedule. Such orders may be issued from the effective date of the contract through the last day of the contract.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract and will specify the date, time and place for the products to be delivered or the services to be performed. If the contracting authority so requires, the contractor shall provide a written or oral acknowledgment. In the event of a conflict between a delivery order or a task order and this contract, this contract will control.

(c) If mailed, a delivery order or a task order is considered “issued” when the IPTC deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the schedule.

(end of clause)

4015

Definite Quantity

(a) This is an indefinite-delivery, definite-quantity contract for the products or services specified, effective for the period stated in the schedule, and the contractor shall furnish them when ordered. Delivery or performance shall be at locations designated in orders issued in accordance with the Ordering clause and the contract schedule.

(b) Except for any limitations on quantities in the Order Limitations clause or in the schedule, there is no limit on the number of orders that may be issued.

(c) Any order issued during the effective period of this contract and not completed within that time shall be completed by the contractor within the time specified in the order. The contract will govern the contractor’s and IPTC’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period.

(end of clause)

4020

Requirements

(a) This is an indefinite-delivery requirements contract for the products or services specified and effective for the period stated in the schedule. The quantities of products or services specified in the schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the agency's requirements do not result in orders in the quantities described as “estimated” or “maximum” in the schedule, that fact will not constitute the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations in the Order Limitations clause or elsewhere in this contract, the contractor shall furnish to the agency all products or services specified in the schedule and called for by orders issued in accordance with the Ordering clause.

(c) Except as this contract otherwise provides, the agency will order from the contractor all the products or services specified in the schedule that are required to be purchased by the activity or activities specified in the schedule.

(d) The agency is not required to purchase from the contractor requirements in excess of any limit on total orders under this contract.

(e) If the agency urgently requires delivery or performance 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 agency may acquire the urgently required products or services from another source. In the event that the contractor accepts such an order for accelerated delivery, such accelerated delivery shall not constitute the basis for an equitable price adjustment.

(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 will govern the contractor’s and agency’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period.

(end of clause)

4025

Indefinite Quantity

(a) This is an indefinite-delivery indefinite-quantity contract for the products or services specified, and effective for the period stated, in the schedule. The quantities of products and services specified in the schedule are estimates only and are not purchased by this contract.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The contractor shall furnish to the IPTC, when and if ordered, the products or services specified in the schedule up to and including the quantity designated in the schedule as the “maximum.” The IPTC will order at least the quantity of products or services designated in the schedule as the “minimum.”

(c) Except for any limitations on quantities in the Order Limitations clause or in the schedule, there is no limit on the number of orders that may be issued.

(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the contractor within the time specified in the order. The contract will govern the contractor’s and IPTC’s rights and obligations with respect to that order to the same extent as if the order were completed during contract’s effective period.

(end of clause)

4030

Payments

(a) The IPTC will pay the contractor, upon the submission of proper invoices or vouchers, the prices stipulated in this contract for products delivered and accepted or services rendered and accepted, less any deductions provided in this contract. Unless otherwise specified in this contract, payment will be made on partial deliveries accepted by the IPTC if:

(1) the amount due on the deliveries warrants it; or

(2) the contractor requests it and the amount due on the deliveries is at least $1,000 or 50 percent of the total contract price.

(b) To the extent possible, the contractor shall:

(1) obtain materials at the most advantageous prices available, with due regard to securing prompt delivery of satisfactory materials; and

(2) take all cash and trade discounts, rebates, allowances, credits, salvage, commissions, and other benefits. When unable to take advantage of the benefits, the contractor shall promptly notify the contracting authority and give the reasons. The contractor shall give credit to the IPTC for cash and trade discounts, rebates, scrap, allowances, credits, salvage, commissions, and other amounts that have accrued to the benefit of the contractor, or would have accrued except for the fault or neglect of the contractor. The contractor shall not deduct from gross costs the benefits lost without fault or neglect on the part of the contractor or lost through fault of the IPTC.

(c) At any time or times before final payment under this contract the contracting authority may request audit of the invoices or vouchers and substantiating material. Each payment previously made will be subject to reduction to the extent of amounts, on preceding invoices or vouchers, that are found by the contracting authority not to have been properly payable and will also be subject to reduction for overpayments or to increase for underpayments. Upon receipt and written approval of the voucher or invoice designated by the contractor as the “completion voucher” or “completion invoice” and substantiating material, and upon compliance by the contractor with any required release and all other terms of this contract, the IPTC will promptly pay any balance due the contractor. The completion invoice or voucher, and substantiating material, shall be submitted by the contractor as promptly as practicable following completion of the work under this contract, but in no event later than one year (or such longer period as the contracting authority may approve in writing) from the date of completion.

(d) The contractor agrees that any refunds, rebates, or credits (including any related interest) accruing to or received by the contractor or any assignee, that arise under the materials portion of this contract and for which the contractor has received reimbursement, shall be paid by the contractor to the IPTC. The contractor and each assignee, under an assignment entered into under this contract and in effect at the time of final payment under this contract, shall execute and deliver, at the time of and as a condition precedent to final payment under this contract, an assignment to the IPTC of such refunds, rebates, or credits (including any interest) in form and substance satisfactory to the contracting authority.

(end of clause)

4060

Allowable Cost and Payment

(a) Invoicing. The IPTC will make payments to the contractor when requested as work progresses, but not more than monthly, in amounts determined to be allowable by the contracting authority. The contractor shall submit an invoice or voucher to the address specified in the schedule, supported by a statement of claimed allowable costs of performing this contract, in such form and detail as the contracting authority may require.

(b) Reimbursing costs

(1) For the purpose of reimbursing allowable costs, the term “costs” includes only:

(i) those recorded costs that, at the time of the request for reimbursement, the contractor has paid by cash, check, or other form of actual payment for items or services purchased directly for the contract;

(ii) when the contractor is not delinquent in paying costs of contract performance in the ordinary course of business, costs incurred, but not necessarily paid, for:

(A) products and services purchased directly for the contract and associated financing payments to subcontractors, provided payments will be made:

(1) in accordance with the terms and conditions of a subcontract or invoice; and

(2) ordinarily prior to the submission of the contractor’s next payment request to the IPTC;

(B) materials issued from the contractor's inventory and placed in the production process for use on the contract;

(C) direct labor;

(D) direct travel;

(E) other direct in-house costs; and

(F) Properly allocable and allowable indirect costs, as shown in the records maintained by the contractor for purposes of obtaining reimbursement under IPTC contracts; and

(iii) The amount of progress payments that have been paid by cash, check, or other forms of payment to subcontractors.

(2) Accrued costs of contractor contributions under employee pension plans will be excluded until actually paid unless:

(i) the contractor’s practice is to make contributions to the retirement fund quarterly or more frequently; and

(ii) the contribution does not remain unpaid 30 days after the end of the applicable quarter or shorter payment period (any contribution remaining unpaid will be excluded from the contractor’s indirect costs for payment purposes).

(3) Notwithstanding the audit and adjustment of invoices or vouchers under paragraph (e) of this clause, allowable indirect costs under this contract will be obtained by applying indirect cost rates established in accordance with paragraph (c) of this clause.

(4) Any statements in specifications or other documents incorporated by reference in this contract designating performance of services or furnishing of materials at the contractor's expense or at no cost to the IPTC will be disregarded for purposes of cost reimbursement under this clause.

(c) Final indirect cost rates

(1) Final annual indirect cost rates and the appropriate bases will be established for the period covered by the indirect cost rate offer.

(2)

(i) The contractor shall submit an adequate final indirect cost rate offer to the contracting authority and auditor within 90 days after the end of each of its fiscal years, or by a later date approved in writing by the contracting authority. The contractor shall support the cost data and specify the contract and/or subcontract to which the rates apply.

(ii) The proposed rates shall be based on the contractor's actual cost experience for that period. The contracting authority or contracting authority's representative and the contractor will establish the final indirect cost rates as promptly as practical after receipt of the contractor's offer.

(3) The contractor and the contracting authority will execute a written understanding setting forth the final indirect cost rates. The understanding will specify:

(i) the agreed-upon final annual indirect cost rates;

(ii) the bases to which the rates apply;

(iii) the periods for which the rates apply;

(iv) any specific indirect cost items treated as direct costs in the settlement; and

(v) the affected contract an/or subcontract, identifying any with advance agreements or special terms and the applicable rates. The understanding will not change any monetary ceiling, contract obligation, or specific cost allowance or disallowance provided for in this contract. The understanding is incorporated into this contract upon execution.

(4) Failure by the parties to agree on a final annual indirect cost rate will be a dispute within the meaning of the Disputes clause.

(5) Within 120 days (or a period approved in writing by the contracting authority) after settlement of the final annual indirect cost rates for all years of a physically complete contract, the contractor shall submit a completion invoice or voucher to reflect the settled amounts and rates.

(6)

(i) If the contractor fails to submit a completion invoice or voucher within the time specified in paragraph (c)(5) of this clause, the contracting authority may:

(A) determine the amounts due to the contractor under the contract; and

(B) record this determination in a unilateral modification to the contract.

(ii) The determination constitutes the final decision of the contracting authority in accordance with the Disputes clause.

(d) Billing rates. Until final annual indirect cost rates are established for any period, the IPTC will reimburse the contractor at billing rates established by the contracting authority subject to adjustment when the final rates are established. These billing rates:

(1) will be the anticipated final rates; and

(2) may be prospectively or retroactively revised by mutual agreement, at either party's request, to prevent substantial overpayment or underpayment.

(e) Audit. At any time or times before final payment, the contracting authority may have the contractor's invoices or vouchers and statements of cost audited. Any payment may be:

(1) reduced by amounts found by the contracting authority not to constitute allowable costs; or

(2) adjusted for prior overpayments or under-payments.

(f) Final payment

(1) Upon written approval of a completion invoice or voucher, submitted by the contractor in accordance with paragraph (c)(5) of this clause, and upon the contractor’s compliance with all terms of this contract, the IPTC will promptly pay any balance of allowable costs and that part of the fee (if any) not previously paid.

(2) The contractor shall pay to the IPTC any refunds, rebates, credits, or other amounts (including interest, if any) accruing to or received by the contractor or any assignee under this contract, to the extent that those amounts are properly allocable to costs for which the contractor has been reimbursed by the IPTC. Reasonable expenses incurred by the contractor for securing refunds, rebates, credits, or other amounts are allowable costs if approved in writing by the contracting authority. Before final payment under this contract, the contractor and each assignee whose assignment is in effect at the time of final payment shall execute and deliver:

(i) an assignment to the IPTC, in form and substance satisfactory to the contracting authority, of refunds, rebates, credits, or other amounts (including interest, if any) properly allocable to costs for which the contractor has been reimbursed by the IPTC under this contract; and

(ii) a release discharging the IPTC, its officers, agents, and employees from all liabilities, obligations, and claims arising out of or under this contract, except:

(A) specified claims stated in exact amounts, or in estimated amounts when the exact amounts are not known;

(B) claims (including reasonable incidental expenses) based upon liabilities of the contractor to third parties arising out of the performance of this contract; provided that the claims are not known to the contractor on the date of the execution of the release, and that the contractor gives notice of the claims in writing to the contracting authority within six years following the release date or notice of final payment date, whichever is earlier; and

(C) claims for reimbursement of costs, including reasonable incidental expenses, incurred by the contractor under the patent clauses of this contract, excluding, however, any expenses arising from the contractor's indemnification of the IPTC against patent liability.

(end of clause)

4065

Fixed Fee

(a) The IPTC will pay the contractor for performing this contract the fixed fee specified in the schedule.

(b) Payment of the fixed fee will be made as specified in the schedule; provided that after payment of 85 percent of the fixed fee, the contracting authority may withhold further payment of fee until a reserve is set aside in an amount that the contracting authority considers necessary to protect the IPTC's interest. This reserve will not exceed 15 percent of the total fixed fee. The contracting authority will release 75 percent of all fee withholds under this contract after receipt of the certified final indirect cost rate offer covering the year of physical completion of this contract, provided the contractor has satisfied all other contract terms and conditions, and is not delinquent in submitting final vouchers on prior years’ settlements. The contracting authority may release up to 90 percent of the fee withheld under this contract based on the contractor’s past performance related to the submission and settlement of final indirect cost rate offers.

(end of clause)

4075

Cost Contract - No Fee

(a) The IPTC will not pay the contractor a fee for performing this contract.

(b) After payment of 80 percent of the total estimated cost shown in the schedule, the contracting authority may withhold further payment of allowable cost until a reserve is set aside in an amount that the contracting authority considers necessary to protect the IPTC's interest. This reserve will not exceed whichever is less - one percent of the total estimated cost shown in the schedule, or

(1) $10,000 for nonprofit organizations, or

(2) $100,000 for all other organizations.

(end of clause)

4080

Cost-Sharing Contract - No Fee

(a) The IPTC will not pay the contractor a fee for performing this contract.

(b) After paying the contractor 80 percent of the IPTC’s share of the total estimated cost of performance shown in the schedule, the contracting authority may withhold further payment of allowable cost until a reserve is set aside in an amount that the contracting authority considers necessary to protect the IPTC's interest. This reserve will not exceed whichever is less:

(1) one percent of the IPTC’s share of the total estimated cost shown in the

schedule, or

(2) $10,000 for nonprofit organizations, or

(3) $100,000 for all other organizations.

(end of clause)

4085

Limitation of Cost

(a) The parties estimate that performance of this contract, exclusive of any fee, will not cost the IPTC more than:

(1) the estimated cost specified in the schedule, or,

(2) if this is a cost-sharing contract, the IPTC’s share of the estimated cost specified in the schedule.

(b) The contractor agrees to use its best efforts to perform the work specified in the schedule and all obligations under this contract within the estimated cost, which, if this is a cost-sharing contract includes both the IPTC’s and the contractor’s share of the cost.

(c) The contractor shall notify the contracting authority in writing whenever it has reason to believe that:

(1) the costs the contractor expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost specified in the schedule; or

(2) the total cost for the performance of this contract, exclusive of any fee, will be either greater or substantially less than had been previously estimated.

(d) As part of the notification, the contractor shall provide the contracting authority a revised estimate of the total cost of performing this contract.

(e) Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause:

(1) the IPTC is not obligated to reimburse the contractor for costs incurred in excess of:

(i) the estimated cost specified in the schedule, or

(ii) if this is a cost-sharing contract, the estimated cost to the IPTC specified in the schedule; and

(2) the contractor is not obligated to continue performance under this contract (including actions under the Termination clause of this contract) or otherwise incur costs in excess of the estimated cost or otherwise incur costs in excess of the estimated cost specified in the schedule, until the contracting authority:

(i) notifies the contractor in writing that the estimated cost has been increased and

(ii) provides a revised estimated total cost of performing this contract. If this is a cost-sharing contract, the increase will be allocated in accordance with the formula specified in the schedule.

(f) No notice, communication, or representation in any other form other than that specified in paragraph (e)(2) of this clause, or from any person other than the contracting authority, will affect this contract’s estimated cost to the IPTC. In the absence of the specified notice, the IPTC is not obligated to reimburse the contractor for any costs in excess of the estimated cost or, if this is a cost-sharing contract, for any costs in excess of the estimated cost to the IPTC specified in the schedule, whether those excess costs were incurred during the course of the contract or as a result of termination.

(g) If the estimated cost specified in the schedule is increased, any costs the contractor incurs before the increase that are in excess of the previously estimated cost will be allowable to the same extent as if incurred afterwards, unless the contracting authority issues a termination or other notice directing that the increase is solely to cover termination or other specified expenses.

(h) Change orders will not be considered an authorization to exceed the estimated cost to the IPTC specified in the schedule, unless they contain a statement increasing the estimated cost.

(i) If this contract is terminated or the estimated cost is not increased, the IPTC and the contractor will negotiate an equitable distribution of all property produced or purchased under the contract, based upon the share of costs incurred by each.

(end of clause)

4095

Price Reduction for Defective Cost or Pricing Data

(a) If any price, including profit or fee, negotiated in connection with this contract, or modification to this contract, or any cost reimbursable under this contract, was increased by any significant amount because:

(1) the contractor or subcontractor furnished cost or pricing data that were not complete, accurate, and current as certified in its Certificate of Current Cost or Pricing Data;

(2) a subcontractor or prospective subcontractor furnished the contractor cost or pricing data that were not complete, accurate, and current as certified in the Contractor’s Certificate of Current Cost or Pricing Data; or

(3) any of these parties furnished data of any description that were not accurate, the price or cost shall be reduced accordingly and the contract will be modified to reflect the reduction.

(b) Any reduction in the contract price under paragraph (a) of this clause due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract will be limited to the amount, plus applicable overhead and profit markup, by which:

(1) the actual subcontract; or

(2) the actual cost to the contractor, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the contractor; provided that the actual subcontract price was not itself affected by defective cost or pricing data).

(c)

(1) If the contracting authority determines under paragraph (a) of this clause that a price or cost reduction shall be made, the contractor agrees not to raise the following matters as a defense:

(i) the contractor or subcontractor was a sole source supplier or otherwise was in a superior bargaining position and thus the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted;

(ii) the contracting authority shall have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting authority;

(iii) the contract was based on an agreement about the total cost of the contract and there was no agreement about the cost of each item procured under the contract; or

(iv) the contractor or subcontractor did not submit a Certificate of Current Cost or Pricing Data.

(2)

(i) Except as prohibited by subdivision (c)(2)(ii) of this clause, an offset in an amount determined appropriate by the contracting authority based upon the facts will be allowed against the amount of a contract price reduction if:

(A) the contractor certifies to the contracting authority that, to the best of the contractor’s knowledge and belief, the contractor is entitled to the offset in the amount requested; and

(B) the contractor proves that the cost or pricing data were available before the “as of” date specified on its Certificate of Current Cost or Pricing Data, and that the data were not submitted before such date.

(ii) An offset will not be allowed if:

(A) the understated data were known by the contractor to be understated before the “as of date” specified on its Certificate of Current Cost or Pricing Data; or

(B) the IPTC proves that the facts demonstrate that the contract price would not have increased in the amount to be offset even if the available data had been submitted before the “as of” date specified on its Certificate of Current Cost or Pricing Data.

(d) If any reduction in the contract price under this clause reduces the price of items for which payment was made prior to the date of the modification reflecting the price reduction, the contractor shall be liable to and shall pay the IPTC at the time such overpayment is repaid:

(1) simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the contractor to the date the IPTC is repaid by the contractor at the applicable underpayment rate effective for each quarter prescribed by the Secretary of Treasury under 26 U.S.C. 6621(a)(2); and

(2) a penalty equal to the amount of the overpayment, if the contractor or subcontractor knowingly submitted cost or pricing data that were incomplete, inaccurate, or noncurrent.

(end of clause)

4100

Price Reduction for Defective Cost or Pricing Data - Modifications

(a) This clause will become operative only for any modification to this contract involving a pricing adjustment only when a request for cost or pricing data was necessary for the contracting authority to determine price reasonableness.

(b) If any price, including profit or fee, negotiated in connection with any modification under this clause, or any cost reimbursable under this contract, was increased by any significant amount because:

(1) the contractor or a subcontractor furnished cost or pricing data that were not complete, accurate, and current as certified in its Certificate of Current Cost or Pricing Data;

(2) a subcontractor or prospective subcontractor furnished the contractor cost or pricing data that were not complete, accurate, and current as certified in the Contractor's Certificate of Current Cost or Pricing Data; or

(3) any of these parties furnished data of any description that were not accurate, the price or cost will be reduced accordingly and the contract will be modified to reflect the reduction. This right to a price reduction is limited to that resulting from defects in data relating to modifications for which this clause becomes operative under paragraph (a) of this clause.

(c) Any reduction in the contract price under paragraph (b) of this clause due to defective data from a prospective subcontractor that was not subsequently awarded the subcontract shall be limited to the amount, plus applicable overhead and profit markup, by which:

(1) the actual subcontract; or

(2) the actual cost to the contractor, if there was no subcontract, was less than the prospective subcontract cost estimate submitted by the contractor; provided, that the actual subcontract price was not itself affected by defective cost or pricing data.

(d)

(1) If the contracting authority determines under paragraph (b) of this clause that a price or cost reduction shall be made, the contractor agrees not to raise the following matters as a defense:

(i) the contractor or subcontractor was a sole source supplier or otherwisee was in a superior bargaining position and thus the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted;

(ii) the contracting authority shall have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting authority;

(iii) the contract was based on an agreement about the total cost of the contract and there was no agreement about the cost of each item procured under the contract;

(iv) the contractor or subcontractor did not submit a Certificate of Current Cost or Pricing Data.

(2)

(i) Except as prohibited by paragraph (d)(2)(ii) of this clause, an offset in an amount determined appropriate by the contracting authority based upon the facts will be allowed against the amount of a contract price reduction if:

(A) the contractor certifies to the contracting authority that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset in the amount requested; and

(B) the contractor proves that the cost or pricing data were available before the "as of" date specified on its Certificate of Current Cost or Pricing Data, and that the data were not submitted before such date.

(ii) An offset will not be allowed if:

(A) the understated data were known by the contractor to be understated before the "as of" date specified on its Certificate of Current Cost or Pricing Data; or

(B) the IPTC proves that the facts demonstrate that the contract price would not have increased in the amount to be offset even if the available data had been submitted before the "as of" date specified on its Certificate of Current Cost or Pricing Data.

(e) If any reduction in the contract price under this clause reduces the price of items for which payment was made prior to the date of the modification reflecting the price reduction, the contractor shall be liable to and shall pay the IPTC at the time such overpayment is repaid:

(1) simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the contractor to the date the IPTC is repaid by the contractor at the applicable underpayment rate effective for each quarter prescribed by the Secretary of the Treasury under 26 U.S.C. § 6621(a)(2); and

(2) a penalty equal to the amount of the overpayment, if the contractor or subcontractor knowingly submitted cost or pricing data that were incomplete, inaccurate, or noncurrent.

(end of clause)

4105

Integrity of Unit Prices

(a) Any offer submitted for the negotiation of prices for items of products shall distribute costs within contracts on a basis that ensures that unit prices are in proportion to the items' base cost (e.g., manufacturing or procurement costs). Any method of distributing costs to line items that distorts unit prices shall not be used. For example, distributing costs equally among line items is not acceptable except when there is little or no variation in base cost. Nothing in this paragraph requires submission of cost or pricing data not otherwise required by law or regulation.

(b) When requested by the contracting authority, the offeror/contractor shall also identify those products that it will not manufacture or to which it will not contribute significant value.

(c) The contractor shall insert the substance of this clause, less paragraph (b), in all subcontracts for other than: procurements at or below the IPTC’s small purchase threshold; architect-engineer services; utility services; services where products are not required; commercial items; and petroleum products.

(end of clause)

4115

Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing

Data-Modifications

(a) Exceptions from cost or pricing data

(1) In lieu of submitting cost or pricing data for modifications under this contract, the contractor may submit a written request for exception by submitting the information described in the following paragraphs. The contracting authority may require additional supporting information, but only to the extent necessary to determine whether an exception shall be granted, and whether the price is fair and reasonable:

(i) Identification of the law or regulation establishing the price offered

 If the price is controlled under law by periodic rulings, reviews, or similar actions of a governmental body, attach a copy of the controlling document, unless it was previously submitted to the contracting office.

(ii) Information on modifications of contracts or subcontracts for commercial items

(A) If:

(1) the original contract or subcontract was granted an exception from cost or pricing data requirements because the price agreed upon was based on adequate price competition or prices set by law or regulation, or was a contract or subcontract for the procurement of a commercial item; and

(2) the modification (to the contract or subcontract) is not exempted based on one of these exceptions, then the contractor may provide information to establish that the modification would not change the contract or subcontract from a contract or subcontract for the procurement of a commercial item to a contract or subcontract for the procurement of an item other than a commercial item.

(B) For a commercial item exception, the contractor shall provide, at a minimum, information on prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price of the modification. Such information may include:

(1) for catalog items, a copy of or identification of the catalog and its date, or the appropriate pages for the offered items, or a statement that the catalog is on file in the buying office to which the offer is being submitted. Provide a copy or describe current discount policies and price lists (published or unpublished), e.g., wholesale, original equipment manufacturer, or reseller. Also explain the basis of each offered price and its relationship to the established catalog price, including how the proposed price relates to the price of recent sales in quantities similar to the proposed quantities;

(2) for market-priced items, the source and date or period of the market quotation or other basis for market price, the base amount, and applicable discounts. In addition, describe the nature of the market;

(3) for items included on an active federal supply service multiple award schedule contract, proof that an exception has been granted for the schedule item.

(2) The contractor grants the contracting authority or an authorized representative the right to examine, at any time before award, books, records, documents, or other directly pertinent records to verify any request for an exception under this clause, and the reasonableness of price. For items priced using catalog or market prices, or law or regulation, access does not extend to cost or profit information or other data relevant solely to the contractor's determination of the prices to be offered in the catalog or marketplace.

(b) Requirements for cost or pricing data

If the contractor is not granted an exception from the requirement to submit cost or pricing data, the following applies:

(1) the contractor shall submit cost or pricing data and supporting attachments;

(2) as soon as practicable after agreement on price, but before award (except for un-priced actions), the contractor shall submit a Certificate of Current Cost or Pricing Data.

(end of clause)

4130

Disclosure and Consistency of Cost Accounting Practices

(a) The contractor, in connection with this contract, shall:

(1) comply with the requirements of 48 CFR 9904.401, Consistency in Estimating, Accumulating, and Reporting Costs; 48 CFR 9904.402, Consistency in Allocating Costs Incurred for the Same Purpose; 48 CFR 9904.405, Accounting for Unallowable Costs; and 48 CFR 9904.406, Cost Accounting Standard – Cost Accounting Period, in effect on the date of award of this contract as indicated in 48 CFR part 9904;

(2) (CAS-covered contracts only) if it is a business unit of a company required to submit a Disclosure Statement, disclose in writing its cost accounting practices as required by 48 CFR 9903.202-1 through 9903.202-5. If the contractor has notified the contracting authority that the Disclosure Statement contains trade secrets and commercial or financial information which is privileged and confidential, the Disclosure Statement shall be protected and shall not be released outside of the IPTC;

(3)

(i) follow consistently the contractor's cost accounting practices. A change to such practices may be proposed, however, by either the IPTC or the contractor, and the contractor agrees to negotiate with the contracting authority the terms and conditions under which a change may be made. After the terms and conditions under which the change is to be made have been agreed to, the change shall be applied prospectively to this contract, and the Disclosure Statement, if affected, shall be amended accordingly;

(ii) the contractor shall, when the parties agree to a change to a cost accounting practice and the contracting authority has made the finding required in 48 CFR 9903.201-6(b), that the change is desirable and not detrimental to the interests of the IPTC, negotiate an equitable adjustment as provided in the Changes clause of this contract. In the absence of the required finding, no agreement may be made under this contract clause that will increase costs paid by the IPTC.

(4) agree to an adjustment of the contract price or cost allowance, as appropriate, if the contractor or a subcontractor fails to comply with the applicable CAS or to follow any cost accounting practice, and such failure results in any increased costs paid by the IPTC. Such adjustment shall provide for recovery of the increased costs to the IPTC together with interest thereon computed at the annual rate of interest established under the Internal Revenue Code of 1986 (26 U.S.C. § 6621), from the time the payment by the IPTC was made to the time the adjustment is effected.

(b) If the parties fail to agree whether the contractor has complied with an applicable CAS, rule, or regulation as specified in 48 CFR 9903 and 9904 and as to any cost adjustment demanded by the IPTC, such failure to agree will constitute a dispute under the Dispute clauses and/or provisions of this contract.

(c) The contractor shall permit any authorized representatives of the IPTC to examine and make copies of any documents, papers, and records relating to compliance with the requirements of this clause.

(d) The contractor shall include in all negotiated subcontracts, which the contractor enters into, the substance of this clause, except paragraph (b), and shall require such inclusion in all other subcontracts of any tier.

(end of clause)

4140

Predetermined Indirect Cost Rates

(a) Notwithstanding the Allowable Cost and Payment clause of this contract, the allowable indirect costs under this contract shall be obtained by applying predetermined indirect cost rates to bases agreed upon by the parties, as specified below.

(b)

(1) The contractor shall submit an adequate final indirect cost rate offer to the contracting authority and auditor within the 6-month period following the expiration of each of its fiscal years. Reasonable extensions, for exceptional circumstances only, may be requested in writing by the contractor and granted in writing by the contracting authority. The contractor shall support its offer with adequate supporting data.

(2) The proposed rates shall be based on the contractor's actual cost experience for that period. The appropriate IPTC representative and the contractor shall establish the final indirect cost rates as promptly as practical after receipt of the contractor's offer.

(c) Allowability of costs and acceptability of cost allocation methods will be determined by the contracting authority.

(d) Predetermined rate agreements in effect on the date of this contract will be incorporated into the contract schedule. The contracting authority and contractor will negotiate rates for subsequent periods and execute a written indirect cost rate agreement setting forth the results. The agreement will specify:

(1) the agreed-upon predetermined indirect cost rates;

(2) the bases to which the rates apply;

(3) the period for which the rates apply; and

(4) the specific items treated as direct costs or any changes in the items previously agreed to be direct costs. The indirect cost rate agreement will not change any monetary ceiling, contract obligation, or specific cost allowance or disallowance provided for in this contract. The agreement is incorporated into this contract upon execution.

(e) Pending establishment of predetermined indirect cost rates for any fiscal year (or other period agreed to by the parties), the contractor shall be reimbursed either at the rates fixed for the previous fiscal year (or other period) or at billing rates acceptable to the contracting authority, subject to appropriate adjustment when the final rates for that period are established.

(f) Any failure by the parties to agree on any predetermined indirect cost rates under this clause will not be considered a dispute within the meaning of the Disputes clause. If for any fiscal year (or other period specified in the schedule) the parties fail to agree to predetermined indirect cost rates, the allowable indirect costs will be obtained through a State or Federal source capable to provide such information and accessible to the IPTC’s enquiry.

 (end of clause)

5001

Payments under Personal and Professional Services Contracts

(a) The IPTC will pay the contractor for:

(1) the services performed by the contractor;

(2) as set forth in the schedule of this contract;

(3) at the rates prescribed;

(4) upon the submission by the contractor of proper invoices or time statements to the office or officer designated and at the time provided for in this contract.

(b) The IPTC will also pay the contractor:

(1) a per diem rate in lieu of subsistence for each day the contractor is in a travel status away from home or regular place of employment in accordance with IPTC travel rules/regulations as authorized in appropriate travel orders; and

(2) any other transportation expenses if provided for in the schedule.

(end of clause)

5005

Non-disclosure (Professional Services)

The contractor acknowledges that confidential information might be generated or made available during the course of performance of this agreement. In addition to the restrictions on disclosure established under the vendor's code of ethics, the contractor specifically agrees not to disclose any information received or generated under this contract, unless its release is approved in writing by the contracting authority. The contractor further agrees to assert any privilege allowed by law and to defend vigorously IPTC rights to confidentiality.

(end of clause)

5010

Inspection of Professional Service

(a) The contracting authority may, at any time or place, inspect the services performed and the products delivered, including documents and reports. The contracting authority may reject any products or services that do not meet the highest standards of professionalism, no matter what type of contract is employed, and in addition to any specific standards of quality set out in this agreement. No payment will be due for any products or services rejected under this clause.

(b) Acceptance of any product or service does not relieve the contractor of the duties imposed by contractor's code of professional ethics. The contractor remains liable for the period allowed under federal and/or state law for claims by the IPTC, for any errors or omissions occurring during performance. All partners or principals agree that they will be jointly and severably liable for such errors and omissions.

(end of clause)

5020

Records Ownership

Notwithstanding any state law providing for retention of rights in the records, the contractor agrees that the IPTC may, at its option, demand and take without additional compensation all records relating to the services provided under this agreement. The contractor shall turn over all such records upon request but may retain copies of documents produced by the contractor.

(end of clause)

5030

Authorization and Consent

(a) The IPTC authorizes and consents to all use and manufacture, in performing this contract or any subcontract at any tier, of any invention described in and covered by a

United States patent:

(1) embodied in the structure or composition of any article the delivery of which is accepted by the IPTC under this contract or

(2) used in machinery, tools, or methods whose use necessarily results from compliance by the contractor or a subcontractor with:

(i) specifications or written provisions forming a part of this contract or

(ii) specific written instructions given by the contracting authority directing the manner of performance. The entire liability to the IPTC for infringement of a patent of the United States will be determined solely by the provisions of the indemnity clause, if any, included in this contract or any subcontract hereunder (including any lower-tier subcontract), and the IPTC assumes liability for all other infringement to the extent of the authorization and consent herein above granted.

(b) The contractor agrees to include, and require inclusion of, this clause, suitably modified to identify the parties, in all subcontracts at any tier for products or services (including construction, architect-engineer services, and materials, products, models, samples, and design or testing services expected to exceed the IPTC’s small purchase threshold); however, omission of this clause from any subcontract, including those at or below the IPTC’s small purchase threshold, does not affect this authorization and consent.

(end of clause)

5030-Alt1

Alternate I - The following is substituted for paragraph (a) of the clause:

(a) The IPTC authorizes and consents to all use and manufacture of any invention described in and covered by a United States patent in the performance of this contract or any subcontract at any tier.

5030-Alt2

Alternate II - The following is substituted for paragraph (a) of the clause:

(a) The IPTC authorizes and consents to all use and manufacture in the performance of any order at any tier or subcontract at any tier placed under this contract for communication services and facilities for which rates, charges, and tariffs are not established by a IPTC regulatory body, of any invention described in and covered by a United States patent:

(1) embodied in the structure or composition of any article the delivery of which is accepted by the IPTC under this contract; or

(2) used in machinery, tools, or methods whose use necessarily results from compliance by the contractor or a subcontractor with specifications or written provisions forming a part of this contract or with specific written instructions given by the contracting authority directing the manner of performance.

5035

Payments under Fixed-Price Architect-Engineer Contracts

(a) Estimates shall be made monthly of the amount and value of the work and services performed by the contractor under this contract which meet the standards of quality established under this contract. The estimates shall be prepared by the contractor and accompanied by any supporting data required by the contracting authority.

(b) Upon written approval of the estimate by the contracting authority, payment upon properly executed vouchers will be made to the contractor, as soon as practicable, of 90 percent of the written approved amount, less all previous payments; provided, that payment may be made in full during any months in which the contracting authority determines that performance has been satisfactory. Also, whenever the contracting authority determines that the work is substantially complete and that the amount retained is in excess of the amount adequate for the protection of the IPTC, the contracting authority may release the excess amount to the contractor.

(c) Upon satisfactory completion by the contractor and acceptance by the contracting authority of the work done by the contractor under the "Statement of Architect-Engineer Services," The contractor will be paid the unpaid balance of any money due for work under the statement, including retained percentages relating to this portion of the work. Upon satisfactory completion and final acceptance of the construction work, the contractor shall be paid any unpaid balance of money due under this contract.

(d) Before final payment under the contract, or before settlement upon termination of the contract, and as a condition precedent thereto, the contractor shall execute and deliver to the contracting authority a release of all claims against the IPTC arising under or by virtue of this contract, other than any claims that are specifically excepted by the contractor from the operation of the release in amounts stated in the release.

(e) Notwithstanding any other provision in this contract, and specifically paragraph (b) of this clause, progress payments will not exceed 80 percent on work accomplished on undefinitized contract actions. A "contract action" is any action resulting in a contract including contract modifications for additional products or services, but not including contract modifications that are within the scope and under the terms of the contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

(end of clause)

5040

Permits and Responsibilities (Services)

The contractor shall be responsible, without additional expense to the IPTC, for obtaining any necessary licenses and permits, and for complying with any applicable federal, state, and municipal laws, codes, and regulations applicable to the performance of the work. The contractor shall also be responsible for all damages to persons or property that occurs as a result of the contractor’s fault or negligence. The contractor shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the contract.

(end of clause)

5050

Responsibility of the Architect-Engineer Contractor

(a) The contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by the contractor under this contract. The contractor shall, without additional compensation, correct or revise any errors or deficiencies in its designs, drawings, specifications, and other services.

(b) Neither the IPTC's review, approval or acceptance of, nor payment for, the services required under this contract will be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract, and the contractor shall be and remain liable to the IPTC in accordance with applicable law for all damages to the IPTC caused by the contractor's negligent performance of any of the services furnished under this contract.

(c) The rights and remedies of the IPTC provided for under this contract are in addition to any other rights and remedies provided by law.

(d) If the contractor is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

(end of clause)

5055

Work Oversight in Architect-Engineer Contracts

The extent and character of the work to be done by the contractor shall be subject to the general oversight, supervision, direction, control, and written approval of the contracting authority.

(end of clause)

5060

Requirements for Registration of Designers

Architects or engineers registered to practice in the particular professional field involved in a state, the District of Columbia, or an outlying area of the United States shall prepare or review and approve the design of architectural, structural, mechanical, electrical, civil, or other engineering features of the work.

(end of clause)

5065

Subcontractors and Outside Associates and Consultants (Architect-Engineer Services)

Any subcontractors and outside associates or consultants required by the contractor in connection with the services covered by the contract will be limited to individuals or firms that were specifically identified and agreed to during negotiations. The contractor shall obtain the contracting authority's written consent before making any substitution for these subcontractors, associates, or consultants.

(end of clause)

5070

Termination (Fixed-Price Architect-Engineer)

(a) The IPTC may terminate this contract in whole or, from time to time, in part, for the IPTC's convenience or because of the failure of the contractor to fulfill the contract obligations. The contracting authority will terminate by delivering to the contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the contractor shall:

(1) immediately discontinue all services affected (unless the notice directs otherwise); and

(2) deliver to the contracting authority all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process.

(b) If the termination is for the convenience of the IPTC, the contracting authority will make an equitable adjustment in the contract price but will allow no anticipated profit on unperformed services.

(c) If the termination is for failure of the contractor to fulfill the contract obligations, the IPTC may complete the work by contract or otherwise and the contractor shall be liable for any additional cost incurred by the IPTC.

(d) If, after termination for failure to fulfill contract obligations, it is determined that the contractor had not failed, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the IPTC.

(e) The rights and remedies of the IPTC provided in this clause are in addition to any other rights and remedies provided by law or under this contract.

(end of clause)

5075

Suspensions and Delays

(a) If the performance of all or any part of the work of this contract is suspended, delayed, or interrupted by:

(1) an order or act of the contracting authority in administering this contract; or

(2) by a failure of the contracting authority to act within the time specified in this contract, or within a reasonable time if not specified, an adjustment will be made for any increase in the cost of performance of this contract caused by the delay or interruption (including the costs incurred during any suspension or interruption). An adjustment will also be made in the delivery or performance dates and any other contractual term or condition affected by the suspension, delay, or interruption. However, no adjustment may be made under this clause for any delay or interruption to the extent that performance would have been delayed or interrupted by any other cause, including the fault or negligence of the contractor, or for which an adjustment is provided or excluded under any other term or condition of this contract.

(b) A claim under this clause will not be allowed:

(1) for any costs incurred more than 20 days before the contractor has notified the contracting authority in writing of the act or failure to act involved; and

(2) unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of the delay or interruption, but not later than the day of final payment under the contract.

(end of clause)

6005

Fidelity Bond Requirements

Any offeror awarded a contract as a result of this solicitation will be required to submit a fidelity bond in the penal amount set forth in the schedule, in a form acceptable to and within the time specified by the contracting authority. Corporate sureties will appear on the list in Treasury Circular 570 and the amount of the bond may not exceed the underwriting limit stated for the surety on that list. Failure to submit an acceptable bond may be cause for termination of the contract for default.

(end of provision)

6010

Deposit of Assets Requirements

(a) Any offeror required to submit a surety bond as a result of this solicitation may instead deposit assets in a form acceptable to the IPTC in an amount set forth in the schedule.

(b) When assets are deposited, the offeror shall execute a bond in a form as specified in this solicitation. Failure to deposit assets acceptable to the IPTC may be cause for termination of the contract for default.

(c) If the contractor has deposited assets instead of furnishing sureties for any bond required under this contract and the assets are in the form of checks, currency, or drafts, the contracting authority will hold the assets in an account for the contractor's benefit.

(d) Upon contract completion, the contractor's funds will be returned as soon as possible, unless the contracting authority determines that part or all of the account is required to compensate the IPTC for costs it incurs as a result of the contractor's delay, default, or failure to perform. In such a case, the entire account will be available to compensate the IPTC.

(end of clause)

6020

Insurance - Work on IPTC Controlled Site

(a) The contractor shall, at its own expense, provide and maintain during the entire performance of this contract, at least the kinds and minimum amounts of insurance required in the schedule or elsewhere in the contract.

(b) Before commencing work under this contract, the contractor shall notify the contracting authority in writing that the required insurance has been obtained. The policies evidencing required insurance shall contain an endorsement to the effect that any cancellation or any material change adversely affecting the IPTC's interest shall not be effective:

(1) for such period as the laws of the state in which this contract is to be performed prescribe; or

(2) until 30 days after the insurer or the contractor gives written notice to the contracting authority, whichever period is longer.

(c) The contractor shall insert the substance of this clause, including this paragraph (c), in subcontracts under this contract that require work on an IPTC controlled site and shall require subcontractors to provide and maintain the insurance required in the schedule or elsewhere in the contract. The contractor shall maintain a copy of all subcontractors' proofs of required insurance, and shall make copies available to the contracting authority upon request.

(end of clause)

6025

Insurance - Liability to Third Persons

(a) (1) Except as provided in paragraph (a)(2) of this clause, the contractor shall provide and maintain workers' compensation, employer's liability, comprehensive general liability (bodily injury), comprehensive automobile liability (bodily injury and property damage) insurance, and such other insurance as the contracting authority may require under this contract.

(2) The contractor may, with the written approval of the contracting authority, maintain a self-insurance program, provided that, with respect to workers' compensation, the contractor is qualified pursuant to statutory authority.

(3) All insurance required by this paragraph shall be in a form and amount and for those periods as the contracting authority may require or approve and with insurers approved in writing by the contracting authority.

(b) The contractor will not be reimbursed for liabilities (and expenses incidental to such liabilities):

(1) for which the contractor is otherwise responsible under the express terms of any clause specified in the schedule or elsewhere in the contract;

(2) for which the contractor has failed to insure or to maintain insurance as required by the contracting authority; or

(3) that result from willful misconduct or lack of good faith on the part of any of the contractor's directors, officers, managers, superintendents, or other representatives who have supervision or direction of:

(i) all or substantially all of the contractor's business;

(ii) all or substantially all of the contractor's operations at any one plant or separate location in which this contract is being performed; or

(iii) a separate and complete major industrial operation in connection with the performance of this contract.

(c) If any suit or action is filed or any claim is made against the contractor, the cost and expense of which may be reimbursable to the contractor under this contract, and the risk of which is then uninsured or is insured for less than the amount claimed, the contractor shall:

(1) immediately notify the contracting authority and promptly furnish copies of all pertinent papers received;

(2) authorize IPTC representatives to collaborate with counsel for the insurance carrier in settling or defending the claim when the amount of the liability claimed exceeds the amount of coverage; and

(3) authorize IPTC representatives to settle or defend the claim and to represent the contractor in or to take charge of any litigation, if required by the IPTC, when the liability is not insured or covered by bond. The contractor may, at its own expense, be associated with the IPTC representatives in any such claim or litigation.

(end of clause)

Insurance

(a) The contractor shall carry and maintain, during the entire period of performance under this contract, adequate insurance as follows:

(1) Workman's Compensation and Employee's Liability Insurance: Contractors are required to comply with applicable federal and state workers’ compensation and occupational disease statutes. If occupational diseases are not compensable under those statutes, they shall be covered under the employer’s liability section of the insurance policy. Employer’s liability coverage of at least $100,000 per incident is required.

(2) Automobile Liability Insurance: The contractor is required to have coverage at a minimum of $500,000 per person; $5,000,000 per occurrence for bodily injury; and $3,000,000 per occurrence for property damage.

(3) General Liability Insurance: The contractor is required to have coverage at a minimum of $200,000 per person and $500,000 per occurrence for death or bodily injury and $20,000 per occurrence for property damage.

(4) Self-Insurance: If the contractor has been approved to provide a qualified program of self insurance, the contractor must submit any proposed changes to the program to the contracting authority for approval.

(b) Upon request, the contractor shall provide the following information to the contracting authority prior to beginning performance under this contract:

(1) insurance carrier certification of the above minimum amounts, and

(2) evidence of a commitment by the insurance carrier to notify the contracting authority in writing of any material change, expiration, or cancellation of any of the insurance policies required hereunder not less than 30 days before such change, expiration or cancellation is effective.

(c) The maintenance of insurance coverage as required by this clause is a continuing obligation, and the lapse or termination of insurance coverage without replacement coverage being obtained will be grounds for termination for default.

(end of clause)

6040

Tax Exemption

The Contractor is advised that the IPTC is exempt from sales and compensating use taxes on all tangible personal property (materials, equipment and components) pursuant to the law of the State of Indiana, and the Contractor shall not include any charges representing such taxes on any invoices hereunder. Contractor shall be responsible for all franchise fees and taxes of any kind whatsoever.

(end of clause)

6055

Delivery of Limited Rights and Restricted Computer Software

To the extent that the contractor has, in its offer, identified pre-existing proprietary data or restricted computer software, the contracting authority, or a duly authorized representative, until the expiration of three years after final payment of this contract, will have the right to examine any books, records, documents or other data supporting the contractor's claim(s) hereunder. Notwithstanding the contractor's rights and claims of, and the IPTC's agreement to protect, pre-existing proprietary data or software, the IPTC will have unlimited or unrestricted rights without additional contractor compensation, to any data or software identified above, that is:

(1) obtained independent of this contract;

(2) in the public domain; or

(3) determined, subsequent to the effective date of this contract, to not have qualified as pre-existing data or software or a derivative of pre-existing data or software to which the contractor would have such proprietary rights.

(end of clause)

6065

Rights in Data - Special Works

(a) Allocation of Rights

(1) The IPTC will have:

(i) unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract, except as provided in paragraph (c) of this clause for copyright;

(ii) the right to limit exercise of claim to copyright in data first produced in the performance of this contract, and to obtain assignment of copyright in such data, in accordance with paragraph (c)(1) of this clause;

(iii) the right to limit the release and use of certain data in accordance with paragraph (d) of this clause.

(b) All works first produced in the performance of this contract are the sole property of the IPTC. The contractor agrees not to assert or authorize others to assert any rights or establish any claim of copyright in these works.

(c) Release and use restrictions Except as otherwise specifically provided for in this contract, the contractor shall not use for purposes other than the performance of this contact, nor shall the contractor release, reproduce, distribute, or publish, any data or work first produced in the performance of this contract, nor authorize others to do so, without written permission of the contracting authority.

(d) Indemnity The contractor shall indemnify the IPTC and its officers, agents, and employees acting for the IPTC against any liability, including costs and expenses, incurred as the result of the violation of trade secrets, proprietary rights, copyrights, or rights of privacy or publicity, arising out of the creation, delivery, publication, or use of any data or works furnished under this contract; or any libelous or other unlawful matter contained in such data or works. The provisions of this paragraph do not apply unless the IPTC provides notice to the contractor as soon as practicable of any claim or suit, affords the contractor an opportunity under applicable laws, rules, or regulations to participate in the defense thereof, and obtains the contractor’s consent to the settlement of any suit or claim other than as required by final decree of a court of competent jurisdiction; nor do these provisions apply to material furnished to the contractor by the IPTC and incorporated in data or in works to which this clause applies.

(end of clause)

7001

Contract Administration

(a) The contracting authority and contracting authority’s technical representative for the contract will be the IPTC’s primary points of contact during the performance of the contract. The contracting authority responsible for the administration of this contract will provide a communiqué providing the contracting authority’s technical representative’s name, business address, e-mail address, and telephone number. Written communications from the contractor shall make reference to the contract number and shall be mailed to the address provided in the communiqué. Communications pertaining to contract administration matters will be addressed to the contracting authority.

(b) Notwithstanding the contractor’s responsibility for total management during the performance of this contract, the administration of this contract will require the maximum coordination between the IPTC and the contractor. All contract administration will be effected by the contracting authority except as may be re-delegated. In no event will any understanding or agreement, contract modification, change order, or other matter in deviation from the terms of this contract between the contractor and a person other than the contracting authority be effective or binding upon the IPTC. All such actions shall be formalized by a proper contractual document executed by the contracting authority.

(end of clause)

7005

Contracting Authority’s Technical Representative

(a) Upon award, a contracting authority’s technical representative (CATR) may be appointed by the contracting authority. The CATR will be responsible for coordinating the technical aspects of this contract and inspecting products/services furnished hereunder; however, the CATR will not be authorized to change any terms and conditions of the resultant contract, including price.

(b) The CATR, if appointed, may be assigned one or more of the following responsibilities:

(1) monitoring the contractor's performance under the contract to ensure compliance with technical requirements of the contract;

(2) notifying the contracting authority immediately if performance is not proceeding satisfactorily;

(3) ensuring that changes in work under the contract are not initiated before written authorization or modification is issued by the contracting authority;

(4) providing the contracting authority a written request and justification for changes;

(5) providing interpretations relative to the meaning of technical specifications and technical advice relative to contracting authority’s written approvals, and

(6) providing general technical guidance to the contractor within the scope of the contract and without constituting a change to the contract.

(end of clause)

7011

Independent Contractor

The Contractor agrees that, in accordance with its status as an independent contractor, it will conduct itself consistent with such status, that it will neither hold itself out as nor claim to be an officer or employee of the IPTC, State or City, by reason hereof, and that it will not by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the IPTC, State or City, including, but not limited to, Worker’s Compensation coverage, Unemployment Insurance Benefits, Social Security coverage or Retirement membership or credit.

(end of clause)

7012

Contractor’s Employees

(a) All experts or Contractors or employees of the Contractor who are employed by the Contractor to perform Work under this Agreement are neither employees of the agency nor under contract to the agency and the Contractor alone is responsible for their work, direction, compensation and personal conduct while engaged under this Agreement. Nothing in this Agreement shall impose any liability or duty on the agency for the acts, omissions, liabilities or obligations of the Contractor or any other person, firm, company, agency, association, corporation, or organization engaged by the Contractor as expert, Contractor, independent contractor, specialist, trainee, employee, servant, or agent, or for taxes of any nature including but not limited to unemployment insurance, workers’ compensation, disability benefits and social security, or, except as specifically stated in this Agreement, to any person, firm or corporation.

(b) All employees of the Contractor or Subcontractor shall wear a visible identification badge at all times while on agency property and shall observe all rules and regulations applicable to agency employees. The identification badge shall contain the employee’s name, picture, title of position, name of company and address of company.

(c) Employees of the Contractor who are found to be intoxicated, or who have been found partaking of or appear to be under the influence of intoxicating or alcoholic beverages or controlled substances while engaged in the performance of their duties or during their break period shall be summarily removed by the Contractor from the project for the duration of the Contract because of the stringent safety precautions required.

(d) Whenever the Contracting Authority’s Technical Representative shall notify the Contractor in writing that in his/her opinion any worker employed for this Contract is incompetent, unfaithful or disorderly, such individual shall be discharged from the Work and shall not again be employed on it.

(end of clause)

7015

Observance of Regulations/Standards of Conduct

(a) When contractor personnel are performing contract work at a IPTC facility, they shall comply with all rules and regulations of the facility, including, but not limited to, rules and regulations governing security, controlled access, personnel clearances and conduct with respect to health and safety and to property at the site, regardless of whether or not title to such property is vested in the IPTC. The facilities to which the contractor has access belong to the IPTC and will not at any time be considered “IPTC Property” furnished to the contractor.

(b) The contractor and its employees shall only conduct business covered by the contract during periods paid for by the IPTC, and will not conduct any other business on IPTC premises.

(c) The contractor shall be responsible for maintaining satisfactory standards of employee competency, conduct, appearance and integrity. It is the contractor’s responsibility to take disciplinary action with respect to its employees as may be necessary. The contractor is also responsible for ensuring that its employees do not disturb papers on desks, open desk drawers or cabinets, or use IPTC property (such as, but not limited to, telephones or copiers) except as authorized.

(end of clause)

7020

Security Requirements

The contractor shall provide competent personnel to perform the services under this contract. Work shall be performed in accordance with IPTC security requirements, and the best commercial practices without unnecessary delays or interference with the IPTC's mission or functions. Personnel visiting the IPTC to provide support covered under this contract may be subjected to IPTC screening and its security policies.

(end of clause)

7025

Indemnification

(a) The contractor assumes full responsibility for and shall indemnify the agency against any and all losses or damage of whatsoever kind and nature to any and all agency property, including any equipment, products, accessories, or parts furnished, while in its custody and care for storage, repairs, or service to be performed under the terms of this contract, resulting in whole or in part from the negligent acts or omissions of the contractor, any subcontractor, or any employee, agent or representative of the contractor or subcontractor.

(b) If due to the fault, negligent acts (whether of commission or omission) and/or dishonesty of the contractor or its employees, any agency-owned or controlled property is lost or damaged as a result of the contractor's performance of this contract, the contractor shall be responsible to the agency for such loss or damage, and the agency, at its option, may, in lieu of requiring reimbursement therefor, require the contractor to replace at its own expense, all property lost or damaged.

(c) Hold Harmless and Indemnification Agreement: The contractor shall save and hold harmless and indemnify the agency against any and all liability claims and cost of whatsoever kind and nature for injury to or death of any person or persons and for loss or damage to any contractor property or property owned by a third party occurring in connection with or in any way incident to or arising out of the occupancy, use, service, operation, or performance of work under the terms of this contract, resulting in whole or in part from the acts or omissions of the contractor, any subcontractor, or any employee, agent, or representative of the contractor or subcontractor.

(d) The contractor shall indemnify and hold the agency, its employees, and others acting on its behalf harmless against any and all loss, liability, or damage arising out of the negligence, failure to act, fraud, embezzlement, or other misconduct by the contractor, its employees, subcontractors, agents, or representatives of the contractor or subcontractor.

(e) Agency's Right of Recovery: Nothing in the above paragraphs will be considered to preclude the agency from receiving the benefits of any insurance/bonds the contractor may carry which provides for the indemnification of any loss or destruction of, or damages to, property in the custody and care of the contractor where such loss, destruction or damage is to agency property. The contractor shall do nothing to prejudice the agency's right to recover against third parties for any loss, destruction of, or damage to, agency property, and upon the request of the contracting authority will, at the agency's expense, furnish to the agency all reasonable assistance and cooperation (including assistance in the prosecution of suit and the execution of instruments of assignment in favor of the agency) in obtaining recovery.

(f) Agency Liability: The agency will not be liable for any injury to the contractor’s personnel or damage to the contractor’s property unless such injury or damage is due to negligence on the part of the agency and is recoverable under the Federal Torts Claims Act, or pursuant to other statutory authority applicable to the agency.

(end of clause)

7030

Public Use of the Name of the IPTC

(a) The contractor shall not refer to the IPTC, or to any court or other organizational entities existing thereunder (hereinafter referred to as "the IPTC"), in advertising, news releases, brochures, catalogs, television and radio advertising, letters of reference, web sites, or any other media used generally by the vendor in its commercial marketing initiatives, in such a way that it represents or implies that the IPTC prefers or endorses the products or services offered by the contractor. This provision will not be construed as limiting the contractor's ability to refer to the IPTC as one of its customers.

(b) No public release of information pertaining to this contract will be made without prior IPTC written approval, as appropriate, and then only with written approval of the contracting authority.

(end of clause)

7035

Disclosure or Use of Information

(a) Agency information made available to the contractor for the performance or administration of this contract shall be used only for those purposes and shall not be used in any other way without the written agreement of the contracting authority.

(b) To the extent the information is otherwise publicly available; it is public information and is not restricted by operation of this clause. However, if public information is provided to the contractor for use in performance or administration of this contract in a media, format, or otherwise in a manner in which it is not available the public, such information may not be used for any other purpose by the contractor except with the written permission of the contracting authority. If the contractor is uncertain about the availability or proposed use of information provided for the performance or administration of this contract, the contractor shall consult with the contracting authority regarding use of that information for other purposes.

(c) The contractor agrees to assume responsibility for protecting the confidentiality of IPTC records and data which are not public information. Such information may include, but is not limited to, all employee or fare collection format data and any written and oral information of a personal nature. Such information is to be safeguarded to ensure that it is not improperly disclosed. Each authority or employee of the contractor to whom information may be made available or disclosed shall be notified in writing by the contractor that such information may be disclosed only for a purpose and to the extent authorized herein, and that further disclosure of any such information for a purpose or to an extent not so authorized may subject the person(s) responsible to criminal sanctions imposed by applicable law.

(d) Performance of this contract may require the contractor to access and use data and information, proprietary to the IPTC or to a IPTC contractor, which is of such a nature that its dissemination or use, other than in performance of this contract, would be adverse to the interests of the IPTC and/or others.

(e) Contractor and/or contractor personnel shall not divulge or release data or information developed or obtained in performance of this contract until made public by the IPTC, except as authorized by the contracting authority. The contractor shall not use, disclose, or reproduce proprietary data which bears a restrictive legend, other than as required in the performance of this contract. Nothing herein will preclude the use of any data independently acquired by the contractor without such limitations or prohibit an agreement at no cost to the IPTC between the contractor and the data owner which provides for greater rights to the contractor.

(f) The IPTC and contractor agree that neither expects the performance under this contract to involve reporting or handling of classified information or materials. Either party shall notify the other promptly in writing if the expectation of that party changes, and shall include in the notice reasons therefore. If there are sealed records, in camera proceedings or grand jury matters, the contractor shall consult with the contracting authority as to the proper safeguarding, security, and secrecy of the original notes and transcript orders.

(g) The contracting authority will advise the contractor whenever the IPTC places a service order which will require classified information or materials. The contractor will have the right to decline to provide services, in which event such services shall be outside the scope of this contract.

(h) The contractor shall hold inviolate and in strictest confidence any and all information of an official nature not for inclusion in the document, any information which the presiding judicial official designates as “off the record” and all classified information and material. (i) The contractor shall classify, safeguard, and otherwise act with respect to all classified information and material in accordance with applicable law and requirements of the contracting authority. The contractor shall not permit any individual to have or gain access to the classified information or material without written permission of the contracting authority, except as access may be necessary for authorized employees of the contractor to perform services under this contract.

(j) Notwithstanding any other provision of this contract, the contractor may deliver transcript containing classified material or information only to the IPTC. The contractor shall never sell or deliver such document to a private person without the express written permission of the contracting authority. Notwithstanding any other provision of this contract, the contractor shall never keep a copy of a document containing classified material or information after the delivery of the original to the contracting authority.

(end of clause)

7040

IPTC - Contractor Relationships

(a) The IPTC and the contractor understand and agree that the services to be delivered under this contract by the contractor to the IPTC are non-personal services. The parties recognize and agree that no employer-employee or master-servant relationships exist or will exist under the contract between the IPTC and the contractor and/or between the IPTC and the contractor's employees. It is therefore, in the best interest of the IPTC to afford the parties a full and complete understanding of their respective obligations.

(b) The contractor and/or the contractor's personnel under this contract shall not:

(1) be placed in a position where they are appointed or employed by a federal officer, or are under the supervision, direction, or evaluation of a federal officer;

(2) be placed in a staff or policy making position;

(3) be placed in a position of command, supervision, administration or control over IPTC personnel or the personnel of other contractors, or become a part of the IPTC organization;

(4) be used for the purpose of avoiding manpower ceilings or other personnel rules and regulations.

(c) Employee Relationship

(1) The services to be performed under this contract do not require the contractor or its employees to exercise personal judgement and discretion on behalf of the IPTC. The contractor's employees will act and exercise personal judgement and discretion on the behalf of the contractor, as directed by the contractor's supervisory personnel, and in accordance with the contract terms and conditions.

(2) Rules, regulations, directions, and requirements issued by the IPTC under the IPTC's responsibility for good order, administration, security, and safety are applicable to all personnel physically located on-site, inclusive of contractor personnel who are required under the terms and conditions of this contract to be so located.. This is not to be construed or interpreted to establish any degree of IPTC control which is inconsistent with a non-personal services contract.

(end of clause)

7050

Parking

Parking is extremely limited at the IPTC facility, as such there is no formal contractor parking available at the facility. In the event that this contract requires the extended delivery of equipment, materials, or services to the IPTC facility, the contractor shall contact the IPTC Maintenance Director or their designee (including the CATR), and park delivery vehicles at the designated locations within the IPTC facility ONLY. Arrangements for pick-up and delivery at the IPTC facility shall be coordinated with the CATR and made in accordance with building management policies. Failure to adhere to the IPTC designated parking instructions may lead to removal of on-site parking privileges.

(end of clause)

7055

Contractor Use of IPTC Networks

(a) The IPTC is obligated and committed to ensuring that IPTC property and resources are used appropriately and for the public interest. The IPTC shall confront issues involving contractors and their employees to ensure that IPTC property and resources equating to taxpayer dollars are not wasted or used inappropriately.

(b) Whenever authorized as a user of IPTC networks, the contractor, subcontractor, teaming partner, and all employees (hereinafter referred to as “entities”), shall not perform or participate, directly or indirectly, in any of the following:

(1) accessing internet sites which may be inappropriate or reflect poorly on the IPTC: Unless accessing internet sites is case-related, entities shall refrain from creating, downloading, viewing, storing, copying, and transmitting sexually explicit or sexually-oriented materials which are never appropriate and may be illegal in some cases. Internet sites capture the domain name of all sites accessing them and maintain a record of this information. It could be embarrassing to the IPTC if the IPTC’s domain name were found on the access records of inappropriate sites;

(2) logging onto video or audio sites, such as broadcast services or radio stations and downloading music files. This consumes significant disk space on local computers and may be a violation of copyright law. Each of the several thousand video clips downloaded daily can be equal to downloading a 400-page memorandum;

(3) using IPTC systems to send or receive e-mails containing greeting cards, political statements, jokes, pictures, chain letters or other unauthorized mass mailings, regardless of the subject matter, and other items of a personal nature;

(4) sending large attachments unless required for official business. Video, sound, or other large file attachments consume large amounts of network capacity. E-mail attachments, large files, and executable programs present two problems. First, large attachments consume network capacity and storage space on both national and local e-mail servers and desktops, slowing the network down for everyone. Second, executable programs present a risk for infection by computer viruses;

(5) participating in chat rooms or using “instant messaging” software;

(6) checking personal e-mail accounts over the IPTC’s network;

(7) using the network connection for personal commercial purposes, private gain, or illegal activities. Unless use is required for official IPTC and contract- related business, all entities shall refrain from using the network connection for commercial purposes (including shopping). It is also inappropriate to use the network connection in support of outside employment activities (including consulting for pay, sales or administration of business transactions, and sales of products or services) or for illegal activities (such as gambling or hacking);

(8) using the e-mail or the network connection for offensive activities. It is inappropriate to use e-mail or the internet to access, send, or receive information on, or in support of, activities that are illegal or offensive. Such activities include, but are not limited to, hate speech or material that ridicules or degrades others on the basis of race, creed, religion, color, sex, disability, national origin, or sexual orientation.

(end of clause)

7060

IPTC-Furnished Property or Service

No property or services will be furnished by the IPTC unless specifically provided for in the solicitation.

(end of provision)

7065

Protection of IPTC Buildings, Equipment, and Vegetation

The contractor shall use reasonable care to avoid damaging buildings, equipment, and vegetation (such as trees, shrubs, and grass) on the IPTC installation. If the contractor’s failure to use reasonable care causes damage to any of this property, the contractor shall replace or repair the damage at no expense to the IPTC, as the contracting authority directs. If the contractor fails or refuses to make such repair or replacement, the contractor shall be liable for the cost, which may be deducted from the contract price.

(end of clause)

7070

IPTC Property Furnished "As Is"

(a) The IPTC makes no warranty whatsoever with respect to IPTC property furnished "as is," except that the property is in approximately the same condition when inspected by the contractor pursuant to the solicitation or, if not inspected by the contractor, as when last available for inspection under the solicitation.

(b) The contractor may repair any property made available on an "as is" basis. Such repair will be at the contractor's expense. Such property may be modified at the contractor's expense, but only with the written permission of the contracting authority. Any repair or modification of property furnished "as is" shall not affect the title of the IPTC.

(c) Except as otherwise provided in this clause, IPTC property furnished "as is" shall be governed by the IPTC Property clause of this contract.

(end of clause)

7080

Competition in Subcontracting

The contractor shall select subcontractors (including suppliers) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract.

(end of clause)

7085

Examination of Records

(a) The agency will have access to and the right to examine any directly pertinent books, documents, papers, or other records of the contractor involving transactions related to this contract, until three years after final payment under this contract, or for any shorter period specified for particular records.

(b) The contractor agrees to include in all subcontracts under this contract a provision to the effect that the agency will have until three years after final payment under the contract, or for any shorter specified period for particular records, have access to and the right to examine any directly pertinent books, documents, papers, or other records of the subcontractor involving transactions related to the subcontract. The term subcontract as used in this clause excludes:

(1) purchase orders; and

(2) subcontracts for public utility services at rates established for uniform applicability to the general public.

(end of clause)

7095

Contractor Inspection Requirements

The contractor is responsible for performing or having performed all inspections and tests necessary to substantiate that the products or services furnished under this contract conform to contract requirements, including any applicable technical requirements for specified manufacturers' parts. This clause takes precedence over any IPTC inspection and testing required in the contract's specifications, except for specialized inspections or tests specified to be performed solely by the IPTC.

(end of clause)

7100

Limitation of Liability (Products)

(a) Except as provided in paragraphs (b) and (c) this clause, and except for remedies expressly provided elsewhere in this contract, the contractor shall not be liable for loss of or damage to property of the IPTC excluding the products delivered under this contract) that:

(1) occurs after IPTC acceptance of the products delivered under this contract; and

(2) results from any defects or deficiencies in the products.

(b) The limitation of liability under paragraph (a) of this clause shall not apply when a defect or deficiency in, or the IPTC's acceptance of, the products 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, laboratory, 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 IPTC through purchase or use of the products required to be delivered under this contract or the contractor’s performance of services or furnishing of materials under this contract, the contractor shall be liable to the IPTC, to the extent of such insurance or reserve, for loss of or damage to property of the IPTC occurring after IPTC acceptance of, and resulting from any defects or deficiencies in, the products delivered under this contract.

(end of clause)

7101

Limitation of Liability (Services)

(a) Except as provided in paragraphs (b) and (c) of this clause, 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 IPTC that:

(1) occurs after IPTC 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) of this clause shall not apply when a defect or deficiency in, or the IPTC’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, laboratory, 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 IPTC through the contractor’s performance of services or furnishing of materials under this contract, the contractor shall be liable to the IPTC, to the extent of such insurance or reserve, for loss of or damage to property of the IPTC occurring after IPTC acceptance of, and resulting from any defects and deficiencies in, services performed or materials furnished under this contract.

(end of clause)

7110

Bankruptcy

In the event the contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, the contractor agrees to furnish, by certified mail or electronic commerce method authorized by the contract, written notification of the bankruptcy to the contracting authority responsible for administering the contract. This notification shall be furnished within five calendar days of the initiation of the bankruptcy proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the petition was filed, and a list of IPTC contract numbers and contracting offices for all IPTC contracts pursuant to which final payment has not been made. This obligation remains in effect until final payment under this contract.

(end of clause)

7115

Availability of Funds

Funds are presently available for this contract. The agency's obligation under this contract is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. There is no legal liability on the part of the agency for any payment if funds made available to the agency for this contract are ceased. If funding is ceased to the agency, the contractor shall receive notice of such non-availability, to be confirmed in writing by the contracting authority.

(end of clause)

7129

Invoices

(a) Invoices shall be submitted in an original and two (2) copies to the address specified on the SF 26 or SF 33 as applicable, or as otherwise specified with this contract. Invoices shall be submitted in accordance with the schedule for payments as set forth elsewhere under this contract.

(b) The office that will make payments due under this contract will be designated as specified in the contract at the time of contract award.

(c) To constitute a proper invoice, the billing document shall include the following information and/or attached documentation:

(1) name of business concern and such business’s Taxpayer Identification Number;

(2) period(s) covered by invoice and invoice date;

(3) purchase/delivery/task order or contract number or other authorization for delivery of property or services;

(4) for each line item - general description of product delivered or services rendered, measured unit, and associated price. If the invoice includes ‘services’, the following additional information shall be required:

(i) person performing service each day by hour and part of an hour;

(ii) services performed each day by hour and part of an hour.

(iii) rates and charges for each service so detailed; and

(iv) individual expenses charged, if allowed under this agreement.

(5) payment terms;

(6) total amount billed;

(7) a subtotal of any and all fees or credits applied to the invoice;

(8) an amount due (if any) or credit balance;

(9) name (where practicable), title, phone number, fax number, and complete mailing address of the responsible official to whom payment is to be sent. The “remit to” address shall correspond to the remittance address in the contract;

(10) other substantiating documentation or information as required by the purchase/delivery/task order or contract;

(11) all follow-up invoices shall be marked “Duplicate of Original.” Contractor questions regarding payment information or check identification shall be directed to the relevant paying authority specified in the contract.

(end of clause)

7135

Payments

The agency will pay the contractor, upon the submission of proper invoices or vouchers, the prices stipulated in this contract for products delivered and accepted or services rendered and accepted, less any deductions provided in this contract. Unless otherwise specified in this contract, payment will be made on partial deliveries accepted by the agency if:

(1) the amount due on the deliveries warrants it; or

(2) 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)

7140

Discounts for Prompt Payment

(a) Discounts for prompt payment, in direct relation to the complexity of each procured project and the ability to realistically exercise the discount(s) offered, they may or may not be considered in evaluating bids/proposals. However, any offered discount will form a part of the award, and will be taken if payment is made within the discount period indicated in the offer by the offeror. As an alternative to offering a discount for prompt payment in conjunction with the offer, offerors awarded contracts may include discounts for prompt payment on individual invoices.

(b) In connection with any discount offered for prompt payment, time will be computed from the date of the invoice. If the contractor has not placed a date on the invoice, the due date will be calculated from the date the designated billing office receives a proper invoice, provided the agency annotates such invoice with the date of receipt at the time of receipt. For the purpose of computing the discount earned, payment will be considered to have been made on the date that appears on the payment check or, for an electronic funds transfer, the specified payment date. When the discount date falls on a Saturday, Sunday, or legal holiday when agency offices are closed and agency business is not expected to be conducted, payment may be made on the following business day.

(end of clause)

7141

Prompt Payment to Subcontractors

(a) The Contractor is required to pay all Subcontractors for all work that the Subcontractor has satisfactorily completed, no later than five (5) business days after the Contractor has received payment from the Agency.

(b) In addition, all retainage amounts must be paid by the Contractor to the Subcontractor no later than fourteen (14) business days after the Subcontractor has, in the opinion of the contract authority’s technical representative, satisfactorily completed its portion of the Work.

(c) A delay in or postponement of payment to the Subcontractor requires good cause and prior written approval of the contracting authority.

(d) The Contractor is required to include, in each subcontract, a clause requiring the use of appropriate arbitration mechanisms to resolve all payment disputes.

(e) The Agency will not pay the Contractor for work performed unless and until the Contractor ensures that the Subcontractors have been promptly paid for the work they have performed under all previous payment requests, as evidenced by the filing with the Agency of lien waivers, canceled checks (if requested), and the Contractor’s sworn statement that it has complied with the prompt payment requirements. Prime Contractors must submit a prompt payment affidavit, (form to be provided by the Agency) which identifies each subcontractor (both DBE and non-DBE) and the date and amount of the last payment to such subcontractor, with every payment request filed with the Agency, except for the first payment request, on every contract with the Agency.

(f) Failure to comply with these prompt payment requirements is a breach of the Contract, which may lead to any remedies permitted under law, including, but not limited to, Contractor debarment. In addition, Contractor’s failure to promptly pay its Subcontractors is subject to the provisions any applicable law of the state or city the agency is located in.

(end of clause)

7142

Relationship Between the IPTC and Others

Nothing contained herein shall be deemed to give any third party a claim or cause of action against the IPTC beyond such as may otherwise exist without regard to this Contract.

(end of clause)

7150

Extras

Except as otherwise provided in this contract, no payment for extras will be made unless such extras, and the price for such extras, have been authorized in writing by the contracting authority.

(end of clause)

7160

Limitation on Withholding of Payments

If more than one clause or schedule term of this contract authorizes the temporary withholding of amounts otherwise payable to the contractor for products delivered or services performed, the total of the amounts withheld at any one time shall not exceed the an amount of two multiples (2x) of the greatest amount that may be withheld under any one clause or schedule term at that time; provided, that this limitation shall not apply to:

(1) withholdings pursuant to any clause relating to wages or hours of employees;

(2) withholdings not specifically provided for by this contract;

(3) the recovery of overpayments; and

(4) any other withholding for which the contracting authority determines that this limitation is inappropriate.

(end of clause)

7175

Assignment of Claims

(a) The contractor 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 original assignment to any type of financing institution described in the preceding sentence.

(b) Any assignment or reassignment authorized under this clause will cover all unpaid amounts payable under this contract, and will 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 sensitive or classified document (including this contract) or information related to work under this contract unless the contracting authority authorizes such action in writing.

(end of clause)

7180

Prohibition of Assignment of Claims

The assignment of claims under the Assignment of Claims Act of 1940, as amended, 31

U.S.C. § 3727, 41 U.S.C. § 15, is prohibited for this contract.

(end of clause)

7185

Changes

(a) The contracting authority 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) drawings, designs, or specifications when the products to be furnished are to be specially manufactured for the agency in accordance with the drawings, designs, or specifications;

(2) statement of work or description of services to be performed;

(3) method of shipment or packing of products;

(4) place of delivery of products or place of performance;

(5) delivery or performance schedule, time (i.e. hours of the day, days of the week, etc.) or place of delivery or performance of services;

(6) agency-furnished property or facilities.

(b) Any other written or oral order (including direction, instruction, interpretation, or determination) from the contracting authority that causes a change will be treated as a change order under this clause, provided that the contractor gives the contracting authority written notice stating

(1) the date, circumstances, and source of the order and

(2) that the contractor regards the order as a change order.

(c) 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 authority will make an equitable adjustment in the contract price, the delivery schedule, or both, and will modify the contract.

(d) The contractor shall assert its right to an adjustment within 30 days from the date of receipt of the written order. However, if the contracting authority decides that the facts justify it, the contracting authority may receive and act upon an offer submitted before final payment of the contract.

(e) If the contractor’s offer includes the cost of property made obsolete or excess by the change, the contracting authority will have the right to prescribe the manner of the disposition of the property.

(f) Failure to agree to any adjustment is a dispute under the Disputes clause. However, nothing in this clause will excuse the contractor from proceeding with the contract as changed.

(g) No products or services for which an additional cost or fee will be charged by the contractor will be furnished without the prior written authorization of the contracting authority.

(end of clause)

7195

Excusable Delays

(a) Except for defaults of subcontractors at any tier, the contractor will 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 its sovereign capacity or of the agency in its 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 shall be beyond the control and without the fault or negligence of the contractor. “Default” includes failure to make progress in the work so as to endanger performance.

(b) If 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 will not be deemed to be in default, unless:

(1) the subcontract products or services were obtainable from other sources;

(2) the contracting authority ordered the contractor in writing to purchase these products 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 authority will ascertain the facts and extent of the failure. If the contracting authority determines that any failure to perform resulted from one or more of the causes above, the delivery schedule will be revised, subject to the rights of the agency under the termination clause of this contract.

(end of clause)

7200

Agency Delay of Work

(a) If the performance of all or any part of the work of this contract is delayed or interrupted

(1) by an act of the contracting authority in the administration of this contract that is not expressly or impliedly authorized by this contract, or

(2) by a failure of the contracting authority to act within the time specified in this contract, or within a reasonable time if not specified, an adjustment (excluding profit) shall be made for any increase in the cost of performance of this contract caused by the delay or interruption and the contract shall be modified in writing accordingly.

Adjustment shall also be made in the delivery or performance dates and any other contractual term or condition affected by the delay or interruption. However, no adjustment shall be made under this clause for any delay or interruption to the extent that performance would have been delayed or interrupted by any other cause, including the fault or negligence of the contractor, or for which an adjustment is provided or excluded under any other term or condition of this contract.

(b) A claim under this clause shall not be allowed --

(1) For any costs incurred more than 20 days before the contractor shall have notified the Contracting authority in writing of the act or failure to act involved; and

(2) Unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of the delay or interruption, but not later than the day of final payment under the contract.

(end of clause)

7210

Payment for Emergency Closures

During an emergency closure of the government taken in its sovereign capacity for the public good, the IPTC is not obligated to compensate contractors during the emergency closure unless: 1) the contract specifically requires the contractor to be on-site at the IPTC facility during an emergency closure; 2) the contract specifically provides for compensation to the contractor even when the government acts in its sovereign capacity; or 3) the contractor obtains approval from the Contracting Officer or designated Contracting Authority’s Technical Representative to perform work at an offsite location.

(end of clause)

7215

Notification of Ownership Changes

(a) The contractor shall make the following notifications in writing:

(1) when the contractor becomes aware that a change in its ownership has occurred, or is certain to occur, that could result in changes in the valuation of its capitalized assets in the accounting records, the contractor shall notify the contracting authority within 30 days;

(2) the contractor shall also notify the contracting authority within 30 days whenever changes to asset valuations or any other cost changes have occurred or are certain to occur as a result of a change in ownership.

(b) The contractor shall:

(1) maintain current, accurate, and complete inventory records of assets and their costs;

(2) provide the contracting authority or designated representative ready access to the records upon request;

(3) ensure that all-individual and grouped assets, their capitalized values, accumulated depreciation or amortization, and remaining useful lives are identified accurately before and after each of the contractor's ownership changes; and

(4) retain and continue to maintain depreciation and amortization schedules based on the asset records maintained before each contractor ownership change.

(c) The contractor shall include the substance of this clause in all subcontracts under this contract.

(end of clause)

7220

Termination for Convenience of the IPTC (Fixed-Price)

(a) The IPTC may terminate performance of work under this contract in whole or, from time to time, in part if the contracting authority determines that termination is in the IPTC’s interest. The contracting authority will terminate by delivering to the contractor a notice of termination specifying the extent of the termination and the effective date.

(b) After receipt of a notice of termination, and except as directed by the contracting authority, the contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:

(1) stop work as specified in the notice;

(2) place no further subcontracts or orders (referred to as subcontracts in this clause) for materials, services, or facilities except as necessary to complete the continued portion of the contract;

(3) terminate all orders and subcontracts to the extent they relate to the work terminated;

(4) assign to the IPTC, as directed by the contracting authority, all right, title, and interest of the contractor under the subcontracts terminated, in which case the IPTC shall have the right to settle or to pay any termination settlement offer arising out of those terminations;

(5) with written approval or ratification to the extent required by the contracting authority, settle all outstanding liabilities and termination settlement offers arising from the termination of subcontracts; the written approval or ratification will be final for purposes of this clause;

(6) as directed by the contracting authority, transfer title and deliver to the IPTC:

(i) the fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

(ii) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the IPTC;

(7) complete performance of the work not terminated;

(8) take any action that may be necessary, or that the contracting authority may direct, for the protection and preservation of the property related to this contract that is in the possession of the contractor and in which the IPTC has or may acquire an interest;

(9) use its best efforts to sell, as directed or authorized by the contracting authority, any property of the types referred to in paragraph (b)(6) of this clause, provided, however, that the contractor:

(i) is not required to extend credit to any purchaser and;

(ii) may acquire the property under the conditions prescribed by, and at prices approved in writing by, the contracting authority. The proceeds of any transfer or disposition will be applied to reduce any payments to be made by the IPTC under this contract, credited to the price or cost of the work, or paid in any other manner directed by the contracting authority.

(c) The contractor shall submit complete termination inventory schedules no later than 60 days from the effective date of termination, unless extended in writing by the contracting authority upon written request of the contractor within this 60-day period.

(d) After expiration of any plant clearance period, the contractor may submit to the contracting authority a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the contracting authority. The contractor may request the IPTC to remove those items or enter into an agreement for their storage. Within 30 days, the IPTC will accept title to those items and remove them or enter into a storage agreement. The contracting authority may verify the list upon removal of the items, or if stored, within 45 days from submission of the list, and will correct the list, as necessary, before final settlement.

(e) After termination, the contractor shall submit a final termination settlement offer to the contracting authority in the form and with the certification prescribed by the contracting authority. The contractor shall submit the offer promptly, but no later than 120-days from the effective date of termination, unless extended in writing by the contracting authority upon written request of the contractor within this 120-day period. However, if the contracting authority determines that the facts justify it, a termination settlement offer may be received and acted on after the 120-day period or any extension. If the contractor fails to submit the offer within the time allowed, the contracting authority may determine, on the basis of information available, the amount, if any, due the contractor because of the termination and shall pay the amount determined.

(f) Subject to paragraph (e) of this clause, the contractor and contracting authority may agree upon the whole or any part of the amount to be paid or remaining to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, whether under this paragraph (f) or paragraph (g) of this clause, exclusive of costs shown in paragraph (g)(3) of this clause, may not exceed the total contract price as reduced by

(1) the amount of payments previously made and;

(2) the contract price of work not terminated. The contract will be modified, and the contractor paid the agreed amount. Paragraph (g) of this clause will not limit, restrict, or affect the amount that may be agreed upon to be paid under this paragraph.

(g) If the contractor and the contracting authority fail to agree on the whole amount to be paid because of the termination of work, the contracting authority will pay the contractor amounts determined by the contracting authority as follow, but without duplication of any amounts agreed on under paragraph (f) of this clause:

(1) the contract price for completed products or services accepted by the IPTC (or sold or acquired under paragraph (b)(9) of this clause) not previously paid for, adjusted for any saving of freight and other charges;

(2) the total of:

(i) the costs incurred in the performance of the work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to products or services paid or to be paid under paragraph (g)(1) of this clause;

(ii) the cost of settling and paying termination settlement offers under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in subdivision (g)(2)(i) of this clause; and

(iii) a sum, as profit on subdivision (g)(2)(i) of this clause, determined by the contracting authority; in effect on the date of the contract, to be fair and reasonable; however, if it appears that the contractor would have sustained a loss on the entire contract had it been completed, the contracting authority will allow no profit under this subdivision (g)(2)(iii) and will reduce the settlement to reflect the indicated rate of loss.

(3) the reasonable costs of settlement of the work terminated, including:

(i) accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement offers and supporting data;

(ii) the termination and settlement of subcontracts (excluding the amounts of such settlements); and

(iii) storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.

(h) Except for normal spoilage, and except to the extent that the IPTC expressly assumed the risk of loss, the contracting authority will exclude from the amounts payable to the contractor under paragraph (g) of this clause, the fair value, as determined by the contracting authority, of property that is destroyed, lost, stolen, or damaged so as to become undeliverable to the IPTC or to a buyer.

(i) The cost principles and procedures of the IPTC procurement Manual, in effect on the date of this contract, will govern all costs claimed, agreed to, or determined under this clause.

(j) The contractor shall have the right of appeal under the Disputes clause, from any determination made by the contracting authority under paragraph (e), (g), or (l) of this clause, except that if the contractor has failed to submit the termination settlement offer or request for equitable adjustment within the time provided in paragraph (e) or (l), respectively, and failed to request an extension of time, there is no right of appeal.

(k) In arriving at the amount due the contractor under this clause, there will be deducted:

(1) all unliquidated advance or other payments to the contractor under the terminated portion of this contract;

(2) any claim which the IPTC has against the contractor under this contract; and

(3) the agreed price for, or the proceeds of sale of materials, products, or other things acquired by the contractor or sold under the provisions of this clause and not recovered by or credited to the IPTC.

(l) If the termination is partial, the contractor may file an offer with the contracting authority for an equitable adjustment of the price(s) of the continued portion of the contract. The contracting authority will make any equitable adjustment agreed upon. Any offer by the contractor for an equitable adjustment under this clause shall be requested within 90 days from the effective date of termination unless extended in writing by the contracting authority.

(m)

(1) The IPTC may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the contractor for the terminated portion of the contract, if the contracting authority believes the total of these payments will not exceed the amount to which the contractor will be entitled.

(2) If the total payments exceed the amount finally determined to be due, the contractor shall repay the excess to the IPTC upon demand, together with interest computed at the average rate per month of T-bills as found in the last day of the month issue of the Wall Street journal for the month in which termination was executed. Interest will be computed for the period from the date the excess is repaid. Interest will not be charged on any excess payment due to a reduction in the contractor’s termination settlement offer because of retention or other disposition of termination inventory until 10 days after the date of the retention or disposition, or a later date determined by the contracting authority because of the circumstances.

(n) Unless otherwise provided in this contract, or by statute, the contractor shall maintain all records and documents relating to the terminated portion of this contract for 3 years after final settlement. This includes all books and other evidence bearing on the Contractor’s costs and expenses under this contract. The contractor shall make these records and documents available to the IPTC, at the contractor’s office, at all reasonable times, without any direct charge. If approved in writing by the contracting authority, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.

(end of clause)

7223

Termination for Convenience of the Judiciary (Short Form)

The contracting authority, by written notice, may terminate this contract, in whole or in part, when it is in the IPTC’s interest by providing written notice 10 calendar days in advance to the contractor. If this contract is terminated, the IPTC shall be liable only for payment under the payment provisions of this contract for products received or services rendered before the effective date of termination.

(end of clause)

7225

Termination for Convenience (Cost-Reimbursement)

(a) The IPTC may terminate performance of work under this contract in whole or, from time to time, in part, if:

(1) the contracting authority determines that a termination is in the IPTC's interest; or

(2) the contractor defaults in performing this contract and fails to cure the default within 10 days (unless extended by the contracting authority) after receiving a notice specifying the default. "Default" includes failure to make progress in the work so as to endanger performance.

(b) The contracting authority will terminate by delivering to the contractor a notice of termination specifying whether termination is for default of the contractor or for convenience of the IPTC, the extent of termination, and an effective date no sooner than 10 calendar days. If, after termination for default, it is determined that the contractor was not in default or that the contractor's failure to perform or to make progress in performance is due to causes beyond the control and without the fault or negligence of the contractor as set forth in the Excusable Delays clause, the rights and obligations of the parties will be the same as if the termination was for the convenience of the IPTC.

(c) After receipt of a Notice of Termination, and except as directed by the contracting authority, the contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:

(1) stop work as specified in the notice;

(2) place no further subcontracts or orders (referred to as subcontracts in this clause), except as necessary to complete the continued portion of the contract;

(3) terminate all subcontracts to the extent they relate to the work terminated;

(4) assign to the IPTC, as directed by the contracting authority, all right, title, and interest of the contractor under the subcontracts terminated, in which case the IPTC will have the right to settle or to pay any termination settlement offer arising out of those terminations;

(5) with written approval or ratification to the extent required by the contracting authority, settle all outstanding liabilities and termination settlement offers arising from the termination of subcontracts, the cost of which would be reimbursable in whole or in part, under this contract; written approval or ratification will be final for purposes of this clause;

(6) transfer title (if not already transferred) and, as directed by the contracting authority, deliver to the IPTC:

(i) the fabricated or unfabricated parts, work in process, completed work, products, and other material produced or acquired for the work terminated;

(ii) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the IPTC; and

(iii) the jigs, dies, fixtures, and other special tools and tooling acquired or manufactured for this contract, the cost of which the contractor has been or will be reimbursed under this contract;

(7) complete performance of the work not terminated;

(8) take any action that may be necessary, or that the contracting authority may direct, for the protection and preservation of the property related to this contract that is in the possession of the contractor and in which the IPTC has or may acquire an interest.

(9) use its best efforts to sell, as directed or authorized by the contracting authority, any property of the types referred to in paragraph (c)(6) of this clause; provided, however, that the contractor:

(i) is not required to extend credit to any purchaser and

(ii) may acquire the property under the conditions prescribed by, and at prices approved in writing by the contracting authority. The proceeds of any transfer or disposition will be applied to reduce any payments to be made by the IPTC under this contract, credited to the price or cost of the work, or paid in any other manner directed by the contracting authority.

(d) The contractor shall submit complete termination inventory schedules no later than 90 days from the effective date of termination, unless extended in writing by the contracting authority upon written request of the contractor within this 90-day period.

(e) After expiration of the plant clearance period, the contractor may submit to the contracting authority a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the contracting authority. The contractor may request the IPTC to remove those items or enter into an agreement for their storage. Within 15 days, the IPTC will accept the items and remove them or enter into a storage agreement. The contracting authority may verify the list upon removal of the items, or if stored, within 45 days from submission of the list, and will correct the list, as necessary, before final settlement.

(f) After termination, the contractor shall submit a final termination settlement offer to the contracting authority in the form and with the certification prescribed by the contracting authority. The contractor shall submit the offer promptly, but no later than 1 year from the effective date of termination, unless extended in writing by the contracting authority upon written request of the contractor within this 1-year period. However, if the contracting authority determines that the facts justify it, a termination settlement offer may be received and acted on after 1 year or any extension. If the contractor fails to submit the offer within the time allowed, the contracting authority may determine, on the basis of information available, the amount, if any, due the contractor because of the termination and will pay the amount determined.

(g) Subject to paragraph (f) of this clause, the contractor and the contracting authority may agree on the whole or any part of the amount to be paid (including an allowance for fee) because of the termination. The contract will be amended, and the contractor paid the agreed amount.

(h) If the contractor and the contracting authority fail to agree in whole or in part on the amount of costs and/or fee to be paid because of the termination of work, the contracting authority will determine, on the basis of information available, the amount, if any, due the contractor, and will pay that amount, which will include the following:

(1) all costs reimbursable under this contract, not previously paid, for the performance of this contract before the effective date of the termination, and those costs that may continue for a reasonable time with the written approval of or as directed by the contracting authority; however, the contractor shall discontinue those costs as rapidly as practicable;

(2) the cost of settling and paying termination settlement offers under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in paragraph (h)(1) of this clause;

(3) the reasonable costs of settlement of the work terminated, including:

(i) accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement offers and supporting data;

(ii) the termination and settlement of subcontracts (excluding the amounts of such settlements); and

(iii) storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory. If the termination is for default, no amounts for the preparation of the contractor's termination settlement offer may be included;

(4) a portion of the fee payable under the contract, determined as follows:

(i) if the contract is terminated for the convenience of the IPTC, the settlement will include a percentage of the fee equal to the percentage of completion of work contemplated under the contract, but excluding subcontract effort included in subcontractors' termination offers, less previous payments for fee;

(ii) if the contract is terminated for default, the total fee payable will be such proportionate part of the fee as the total number of articles (or amount of services) delivered to and accepted by the IPTC is to the total number of articles (or amount of services) of a like kind required by the contract.

(5) If the settlement includes only fee, it will be determined under paragraph (h)(4) of this clause.

(i) The cost principles and procedures in effect on the date of this contract, will govern all costs claimed, agreed to, or determined under this clause.

(j) The contractor shall have the right of appeal, under the Disputes clause, from any determination made by the contracting authority under paragraph (f), (h), or (l) of this clause, except that if the contractor failed to submit the termination settlement offer within the time provided in paragraph (f) and failed to request a time extension, there is no right of appeal. If the contracting authority has made a determination of the amount due under paragraph (f), (h) or (l) of this clause, the IPTC will pay the contractor:

(1) the amount determined by the contracting authority if there is no right of appeal or if no timely appeal has been taken or

(2) the amount finally determined on an appeal.

(k) In arriving at the amount due the contractor under this clause, there will be deducted:

(1) all unliquidated advance or other payments to the contractor, under the terminated portion of this contract;

(2) any claim which the IPTC has against the contractor under this contract; and

(3) the agreed price for, or the proceeds of sale of materials, products, or other things acquired by the contractor or sold under this clause and not recovered by or credited to the IPTC.

(l) The contractor and contracting authority shall agree to any equitable adjustment in fee for the continued portion of the contract when there is a partial termination. The contracting authority will amend the contract to reflect the agreement.

(m)

(1) The IPTC may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the contractor for the terminated portion of the contract, if the contracting authority believes the total of these payments will not exceed the amount to which the contractor will be entitled.

(2) If the total payments exceed the amount finally determined to be due, the contractor shall repay the excess to the IPTC upon demand, together with interest computed at a rate of 2% annually. Interest will be computed for the period from the date the excess payment is received by the contractor to the date the excess is repaid. Interest will not be charged on any excess payment due to a reduction in the contractor's termination settlement offer because of retention or other disposition of termination inventory until 10 days after the date of the retention or disposition, or a later date determined by the contracting authority because of the circumstances.

(n) The provisions of this clause relating to fee are inapplicable if this contract does not include a fee.

(end of clause)

7225-Alt1

Alternate I - Substitute the following paragraphs (h) and (l) for paragraphs (h) and (l) of the basic Clause 7225.

(h) If the contractor and the contracting authority fail to agree in whole or in part on the amount to be paid because of the termination of work, the contracting authority will determine, on the basis of information available, the amount, if any, due the contractor and will pay the amount determined as follows:

(1) If the termination is for the convenience of the IPTC, include:

(i) an amount for direct labor hours (as defined in the schedule of the contract) determined by multiplying the number of direct labor hours expended before the effective date of termination by the hourly rate(s) in the schedule, less any hourly rate payments already made to the contractor;

(ii) an amount (computed under the provisions for payment of materials) for material expenses incurred before the effective date of termination, not previously paid to the contractor;

(iii) an amount for labor and material expenses computed as if the expenses were incurred before the effective date of termination, if they are reasonably incurred after the effective date, with the approval of or as directed by the contracting authority; however, the contractor shall discontinue these expenses as rapidly as practicable;

(iv) if not included in subdivision (h)(1)(i), (ii), or (iii) of this clause, the cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the contract; and

(v) the reasonable costs of settlement of the work terminated; including:

(A) accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data;

(B) the termination and settlement of subcontracts (excluding the amounts of such settlements); and

(C) storage, transportation, and other costs incurred, reasonably necessary for the protection or disposition of the termination inventory.

(2) If the termination is for default of the contractor, include the amounts computed under paragraph (h)(1) of this clause but omit:

(i) any amount for preparation of the contractor’s termination settlement proposal; and

(ii) the portion of the hourly rate allocable to profit for any direct labor hours expended in furnishing materials and services not delivered to and accepted by the IPTC.

(l) If the termination is partial, the contractor may file with the contracting authority a proposal for an equitable adjustment of price(s) for the continued portion of the contract. The contracting authority will make any equitable adjustment agreed upon. Any proposal by the contractor for an equitable adjustment under this clause shall be requested within 90 days from the effective date of termination, unless extended in writing by the contracting authority.

7230

Termination for Default

(a) The agency may:

(1) subject to paragraphs (c) and (d) of this clause, by written notice of default to the contractor, terminate this contract in whole or in part if the contractor fails to:

(A) deliver the products or to perform the services within the time specified in this contract or any extension;

(B) make progress, so as to endanger performance of this contract (but see paragraph (a)(2) of this clause); or

(C) perform any of the other provisions of this contract (but see paragraph (a)(2) of this clause).

(2) The agency's right to terminate this contract under subdivisions (a)(1)(A) and (1)(C) of this clause, may be exercised if the contractor does not cure the failure within 10 days (or more if authorized in writing by the contracting authority) after receipt of the notice from the contracting authority specifying the failure.

(b) If the agency terminates this contract in whole or in part, it may acquire, under the terms and in the manner the contracting authority considers appropriate, products or services similar to those terminated, and the contractor will be liable to the agency for any excess costs for those products 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 contractor. Examples of such causes include:

(1) acts of God or of the public enemy,

(2) acts of the government in its sovereign capacity or of the agency in its 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 shall 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 products 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 agency may require the contractor to transfer title and deliver to the agency, as directed by the contracting authority, any:

(1) completed products, and

(2) partially completed products, 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 authority, the contractor shall also protect and preserve property in its possession in which the agency has an interest.

(f) The agency will pay the contract price for completed products delivered and accepted. The contractor and contracting authority will 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 agency may withhold from these amounts any sum the contracting authority determines to be necessary to protect the agency against loss because of outstanding liens or claims of former lien holders.

(g) If, after termination, it is determined that the contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the agency.

(h) The rights and remedies of the agency in this clause are in addition to any other rights and remedies provided by law or under this contract.

(end of clause)

7231

Remedies In Case Of Default & Termination for Cause

(a) The Contractor shall be in default if it commits a breach of the Contract deemed material by the agency. Without limiting the generality of the foregoing and in addition to those instances specifically referred to in the Contract, the Contractor shall be in such default if:

(1) it fails to begin the Work in accordance with the requirements of the Contract;

(2) it abandons the Work;

(3) it assigns or subcontracts the Work other than as provided in the Contract;

(4) at any time the Contracting Authority’s Technical Representative shall be of the opinion that performance of this Contract is unnecessarily or unreasonably delayed, or that the Contractor is willfully violating any of the provisions or covenants of this Contract or is not executing the same in good faith or in accordance with its terms;

(5) the Work is not completed within the time prescribed, as may be extended by the agency; or

(6) the Contractor becomes insolvent (other than as a bankrupt), or assigns for the benefit of creditors, or takes advantage of any insolvency statute or debtor or creditor law or if its property of affairs are put in the hands of a receiver; or

(7) the Contracting Authority’s Technical Representative shall be of the opinion that the Work cannot be completed within the time herein provided therefor or within the time to which such completion may have been extended provided, however, that the impossibility of timely completion is in the Contracting Authority’s Technical Representative’s opinion, attributable to conditions within the Contractor’s control.

(b) When, in the opinion of the Contracting Authority’s Technical Representative, reasonable grounds for insecurity exist with respect to the Contractor’s ability to perform the Work or any portion thereof, the Authority may request that Contractor, within a reasonable time, provide written adequate assurance of its ability to perform in accordance with the Contract. Such assurance must be provided by Contractor within the time set forth in the Authority’s request.

(c) In the event of a default by the Contractor, the agency will notify the Contractor of the default, in writing, and advising the Contractor that, unless such default be rectified to the satisfaction of the agency within seven (7) work-days from such notice, the Contractor shall be in default; except that, at its sole discretion, the agency may extend such seven (7) work-day period for such additional period as the agency shall deem appropriate without waiver of any of its rights hereunder. Upon receipt of such notice, Contractor shall immediately cease performance of the Work or any part thereof under this Contract. The agency shall thereupon have the right to take any action necessary to complete the Work, including performing the Work itself, or contracting with another individual or entity. In the event the Work is completed by the agency or others, Contractor shall be liable for the costs and expense of said labor, materials, plant, tools, equipment, supplies and property. The costs and expenses so charged may be deducted by the agency and paid out of any monies otherwise payable to the Contractor.

(d) The agency may also bring any suit or proceeding to recover damages or to obtain any other relief or for any other purpose proper under this Contract.

(e) The agency may, in its sole discretion, waive a default by the Contractor, but such waiver, and failure by the agency to take action in respect to any default, shall not be deemed a waiver of any subsequent default.

(f) In case the agency shall by Contract or otherwise complete the Work or any part thereof under the provisions of Paragraph C above, the Contracting Authority’s Technical Representative from time to time during the course of the completion of the Work or such part thereof or at any time thereafter, shall certify to the amount of the expense incurred by the agency in the completion of the Work or such part thereof.

Said certificate shall be final and conclusive upon the Contractor and admissible in evidence against the Contractor, and his legal representatives, in any litigation arising or growing out of this Contract.

(g) In the event that the agency wrongfully terminates the Contract for default, such termination shall be deemed to be a termination for convenience.

(end of clause)

7235

Disputes

(a) In the event the Contractor and the agency are unable to resolve their differences concerning a determination by the contracting authority’s technical representative, the Contractor may initiate a dispute resolution in accordance with the procedure set forth in this Article. Exhaustion of these dispute resolution procedures shall be a precondition to any lawsuit permitted hereunder.

(b) The parties to this Contract authorize the Disputes Resolution Officer (DRO), who shall be the highest-ranking Officer of the agency, acting personally, to decide all questions of any nature whatsoever arising out of, under or in connection with, or in any way related to or on account of, this Contract (including claims in the nature of breach of Contract or fraud or misrepresentation before or subsequent to Contract award) and his decision shall be conclusive, final and binding on the parties. His decision may be based on such assistance as he may find desirable, including advice of engineering or other experts. The effect of his decision shall not be impaired or waived by any negotiations or settlement offers in connection therewith, or by any prior decision of others, which prior decisions shall be deemed subject to review, or by any termination or cancellation of this Contract. All notices seeking dispute resolution shall be submitted in writing by either party to the DRO, acting personally, for his decision, together with all evidence and other pertinent information in regard to such questions, in order that a fair and impartial decision may be made. The DRO shall render his decision in writing and deliver a copy of the same to the parties.

(c) If the Contractor protests the determination of the DRO, the Contractor may commence a lawsuit in a court of the State in which the agency resides, it being understood the review of the Court shall be limited to the question of whether or not the DRO’s determination is arbitrary, capricious or so grossly erroneous as to evidence bad faith. No evidence or information shall be introduced or relied upon in such an action or proceeding that has not been presented to the DRO personally prior to the DRO making his decision.

(d) Neither the requirements of this Article nor the time necessary for compliance therewith, however, shall affect the time to have accrued for purpose of any statute controlling actions/proceedings against the agency and the time of such accrual shall be determined without reference to this Article.

(end of clause)

7240

Antitrust Assignment

The Contractor hereby assigns, sells and transfers to the agency all right, title and interest in and to any claims and causes of action arising under the antitrust laws of the State of agency residence or of the United States relating to the particular goods or services purchased or procured by the agency under this Contract.

(end of clause)

7250

Grand Jury Testimony

Upon refusal of the Contractor as an individual or as member, partner, director or officer of the Contractor, if the Contractor be a firm, partnership or corporation, when called before a grand jury, governmental department, commission, agency or any other body which is empowered to compel the attendance of witnesses and examine them under oath, to testify in an investigation or to answer any relevant questions concerning any transaction or contract entered into with the State, or any political subdivision thereof, or a public authority or with any public department, agency or official of the State or any political subdivision thereof, when immunity has been granted to the witness against subsequent use of such testimony, or any evidence derived therefrom in any subsequent criminal proceeding:

(a)  Such individual, or any firm, partnership or corporation of which he is a member, partner, director or officer may be disqualified for a period of five (5) years after such refusal from submitting bids for, or entering into or obtaining any contracts, leases, permits or licenses with the agency and/or shall be subject to such other action appropriate under the circumstances; and

(b)  this Contract and any and all such existing contracts, leases, permits or licenses made with or obtained by any such individual or with or by the firm, partnership, or corporation of which he/she is a member, partner, director or officer may be cancelled or terminated by the agency or be subject to such action appropriate under the circumstances thereto without incurring any penalty or damages on account of such cancellation or termination, but any monies owing for goods delivered, work done, or rentals, permit or license fees due, prior to the cancellation or termination, shall be paid.

(end of clause)

8000

Fly America Requirements

The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation.

(end of clause)

8010

Buy America

(a) The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, and microcomputer equipment and software. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content.

(b) A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors.

(end of clause)

8020

Energy Conservation

The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

(end of clause)

8030

Clean Water

(a) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

(b) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

(end of clause)

8040

Access to Records

The following access to records requirements apply to this Contract:

(a) Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.

(b) Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000.

(c) Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions.

(d) Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

(e) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

(f) The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).

(g) FTA does not require the inclusion of these requirements in subcontracts.

(end of clause)

8050

Federal Changes

Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract.

(end of clause)

8060

Clean Air

(a) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

(b) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

(end of clause)

8070

Recovered Materials

The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247.

(end of clause)

8080

Contract Work Hours and Safety Standards
(a) Overtime requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(b) Violation; liability for unpaid wages; liquidated damages: In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section.

(c) Withholding for unpaid wages and liquidated damages: The agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

(4) Subcontract: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.

(end of clause)

8090

No Obligation by the Federal Government.

(a) The agency and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the agency, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.

(b) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

(end of clause)

8100

Program Fraud and False or Fraudulent Statements or Related Acts.

(a) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § § 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.

(b) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate.

(c) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.

(end of clause)

8110

Contracts Involving Federal Privacy Act Requirements

The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any contract:

(a) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974,

5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract.

(b) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA.

(end of clause)

8120

Civil Rights

The following requirements apply to the underlying contract:

(a) Nondiscrimination:  In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.

(b) Equal Employment Opportunity: The following equal employment opportunity requirements apply to the underlying contract:

(1) Race, Color, Creed, National Origin, Sex: In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(2) Age: In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(3) Disabilities: In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(c) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.

(end of clause)

8130

Incorporation of Federal Transit Administration (FTA) Terms

The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any agency requests which would cause agency to be in violation of the FTA terms and conditions.

(end of clause)

8140

Metric System

To the extent U.S. DOT or FTA directs, the agency agrees to use the metric system of measurement in its Project activities, in accordance with the Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act, 15 U.S.C. §§ 205a et seq.; Executive Order No. 12770, "Metric Usage in Federal Government Programs," 15 U.S.C. § 205a note; and U.S. DOT or FTA regulations and directives.  As practicable and feasible, the agency agrees to accept products and services with dimensions expressed in the metric system of measurement.

(end of clause)

8150

ADA Access

The contractor acknowledges that Section 202 of the Americans with Disabilities Act of 1990 [Title II] and Section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794] places certain accessibility requirements on public entities constructing facilities to be used in connection with public transportation services and agrees that if any facilities constructed, designed or provided through this contract shall be constructed, designed or provided, they shall be accomplished in such manner as to comply with those and other known accessibility laws.

(end of clause)

8160

Notice of Federal Participation

This procurement is funded in part, or whole, by grant monies supplied through the Federal Transit Administration of the Department of Transportation.

(end of clause)

8170

Byrd Anti-Lobbying Amendment

Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying" as found in Schedule M of this solicitation. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.

(end of clause)

8180

Cargo Preference - Use of United States-Flag Vessels

The contractor agrees:

(1) to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels;

(2) to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill-of-lading.)

(3) to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel.

(end of clause)

8190

Bus Testing

The Contractor agrees to comply with 49 U.S.C. A 5323(c) and FTA's implementing regulation at 49 CFR Part 665 and shall perform the following:

(1) A manufacturer of a new bus model or a bus produced with a major change in components or configuration shall provide a copy of the final test report to the recipient at a point in the procurement process specified by the recipient which will be prior to the recipient's final acceptance of the first vehicle.

(2) A manufacturer who releases a report under paragraph 1 above shall provide notice to the operator of the testing facility that the report is available to the public.

(3) If the manufacturer represents that the vehicle was previously tested, the vehicle being sold should have the identical configuration and major components as the vehicle in the test report, which must be provided to the recipient prior to recipient's final acceptance of the first vehicle. If the configuration or components are not identical, the manufacturer shall provide a description of the change and the manufacturer's basis for concluding that it is not a major change requiring additional testing.

(4) If the manufacturer represents that the vehicle is "grandfathered" (has been used in mass transit service in the United States before October 1, 1988, and is currently being produced without a major change in configuration or components), the manufacturer shall provide the name and address of the recipient of such a vehicle and the details of that vehicle's configuration and major components.

(end of clause)

8200

Pre-Award and Post-Delivery Audit Requirements

The Contractor agrees to comply with 49 U.S.C. § 5323(l) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the following certifications:

(1) Buy America Requirements: The Contractor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies compliance with Buy America, it shall submit documentation which lists 1) component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and 2) the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly.

(2) Solicitation Specification Requirements: The Contractor shall submit evidence that it will be capable of meeting the bid specifications.

(3) Federal Motor Vehicle Safety Standards (FMVSS): The Contractor shall submit 1) manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant FMVSS or 2) manufacturer's certified statement that the contracted buses will not be subject to FMVSS regulations.

(end of clause)

8210

Suspension and Debarment

(a) This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945.

(b) The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into.

(c) By signing and submitting its bid or proposal, the offeror certifies as follows:

“The certification in this clause is a material representation of fact relied upon by the IPTC. If it is later determined that the offeror knowingly rendered an erroneous certification, in addition to remedies available to the IPTC, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The offeror agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The offeror further agrees to include a provision requiring such compliance in its lower tier covered transactions”

(end of clause)

8220

Transit Employee Protective Provisions

(a) The Contractor agrees to comply with applicable transit employee protective requirements as follows:

(1) General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this subsection (a), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate provisions for those projects are set forth in subsections (2) and (3) of this clause.

(2) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.

§ 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract, the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of Labor to meet the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant Agreement or Cooperative Agreement with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter.

(3) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.

§ 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto.

(b) The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA.

(end of clause)

8230

Drug and Alcohol Testing
The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Indian, or the IPTC, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before January 15 and to submit the Management Information System (MIS) reports before February 15 to the IPTC Manager of Security. To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register.

(end of clause)