Prime Contract Clauses Flow-downs applicable to all PSC Vendors, including Commercial Item (as Defined in FAR 2.101) Vendors (Rev -).
|CLAUSE||CLAUSE TITLE||DATE||SUBCONTRACTOR APPLICABILITY|
|All subcontracts, including commercial items.|
|52.202-1||Definitions||APR 1984||All subcontracts, including commercial items.|
|52.203-13||Contractor Code of Business Ethics and Conduct||OCT 2015||All subcontracts, including commercial items, which exceed $5.5 million and have a period of performance of more than 120 days. All disclosures of violation of the civil False Claims Act or of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer.|
|52.203-17||Contractor Employee Whistleblower Rights and Requirement To Inform Employees of Whistleblower Rights||APR 2015||All subcontracts, including commercial items, which exceed $250,000.|
|52.203-19||Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements||JAN 2017||All subcontracts, including commercial items.|
|52.204-2||Security Requirements||AUG 1996||All subcontracts, including commercial items, which involve access to classified information. Section (c) of the clause does not flow down.|
|52.204-9||Personal Identity Verification of Contractor Personnel||JAN 2011||All subcontracts, including commercial items, in which the subcontractor’s employees are required to have routine physical access to a Federally-controlled facility and/or routine access to a Federally-controlled information system.|
|52.204-10||Reporting Executive Compensation and First-Tier Subcontract Awards||OCT 2016||All first-tier subcontracts, including commercial items, which exceed $30,000. The clause does not flow down to lower tier subcontracts.|
|52.204-21||Basic Safeguarding of Covered Contractor Information Systems||JUN 2016||Subcontracts, including subcontracts for the acquisition of commercial items (other than commercially available off-the-shelf items), in which the subcontractor may have Federal contract information residing in or transiting through its information system.|
|52.204-23||Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities||JUL 2018||All subcontracts, including subcontracts for the acquisition of commercial items.|
|52.204-25||Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment||AUG 2019||All subcontracts, including subcontracts for the acquisition of commercial items. Section (b)(2) of the clause does not flow down.|
|52.209-6||Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment||JUL 2013||All subcontracts, including commercial items, which exceed $35,000 that are not a subcontract for a commercially available off-the-shelf item.|
|52.211-5||Material Requirements||AUG 2000||All subcontracts, including commercial items.|
|52.211-15||Defense Priorities and Allocation Requirements||APR 2008||All subcontracts, including commercial items.|
|52.215-2||Audit and Records-Negotiation||OCT 2010||All subcontracts, including commercial items, which exceed $250,000 and (1) are cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable; or (2) for which certified cost and pricing data are required; or (3) that require the subcontractor to furnish reports [cost, funding, or performance reports] as discussed in Section (e) of the clause.|
|52.215-15||Pension Adjustments and Asset Reversions||OCT 2010||Subcontracts for which it is anticipated that certified cost or pricing data will be required or for which any preaward or postaward cost determination will be subject to FAR part 31.|
|52.215-18||Reversion or Adjustment of Plans for Postretirement Benefits (PRB) Other Than Pensions||JUL 2005||Subcontracts for which it is anticipated that certified cost or pricing data will be required or for which any preaward or postaward cost determination will be subject to FAR part 31.|
|52.215-21||Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost and Pricing Data – Modifications||OCT 2010||All subcontracts, including commercial items, which exceed $2 million.|
|52.219-8||Utilization of Small Business Concerns.||NOV 2016||All subcontracts (except with small business concerns), including commercial items, which exceed $700,000 and that include further subcontracting opportunities.|
|52.222-20||Contracts for Materials, Supplies, Articles, and Equipment Exceeding $15,000.00||May 2014||All subcontracts, including commercial items.|
|52.222-21||Prohibition of Segregated Facilities||APR 2015||All subcontracts, including commercial items, subject to Equal Opportunity (FAR 52.222-6) clause of this contract.|
|52.222-26||Equal Opportunity||SEP 2016||All subcontracts, including commercial items, not exempted by the rules, regulations, or orders of the Secretary of Labor issued under Executive Order 11246, as amended.|
|52.222-35||Equal Opportunity for Veterans||OCT 2015||All subcontracts, including commercial items, of $150,000 or greater, unless exempted by the rules, regulations, or orders of the Secretary of Labor.|
|52.222-36||Equal Opportunity for Workers with Disabilities||JUL 2014||All subcontracts, including commercial items, of $15,000 or greater, unless exempted by the rules, regulations, or orders of the Secretary of Labor.|
|52.222-37||Employment Reports on Veterans||FEB 2016||All subcontracts, including commercial items, of $150,000 or greater, unless exempted by the rules, regulations, or orders of the Secretary of Labor.|
|52.222-40||Notification of Employee Rights Under the National Labor Relations Act.||DEC 2010||All subcontracts, including commercial items, which exceed $10,000, unless exempted by the rules, regulations, or orders of the Secretary of Labor.|
|52.222-50||Combating Trafficking in Persons.||MAR 2015||All subcontracts, including commercial items.|
|52.222-54||Employment Eligibility Verification.||OCT 2015||All subcontracts which exceed $3,500, that include work in the U.S., and is for commercial or noncommercial services (except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for the COTS item) or construction.|
|52.223-11||Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons||JUN 2016||All subcontracts, including commercial items.|
|52.223-12||Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners||JUN 2016||All subcontracts, including commercial items.|
|52.223-15||Energy Efficiency in Energy-Consuming Products||DEC 2007||All subcontracts, including commercial items.|
|52.227-10||Filing of Patent Applications – Classified Subject Matter||DEC 2007||All subcontracts, including commercial items, which cover or are likely to cover classified subject matter.|
|52.230-2||Cost Accounting Standards||OCT 2015||All subcontracts, including commercial items, of $750,000 or greater unless exempt by 48 CFR 9902.201-1. Section (b) of the clause does not flow down.|
|52.230-6||Administration of Cost Accounting Standards||JUN 2010||All subcontracts, including commercial items, when 52.230-2 is applicable.|
|52.232-40||Providing Accelerated Payments to Small Business Subcontractors.||DEC 2013||All subcontracts, including commercial items, with small business concerns.|
|52.234-1||Industrial Resources Developed Under Title III, Defense Production Act||SEP 2016||All subcontracts, including commercial items.|
|52.242-1||Notice of Intent to Disallow Costs||APR 1984||All subcontracts, including commercial items.|
|52.244-6||Subcontracts for Commercial Items||NOV 2017||All subcontracts, including commercial items.|
|52.245-1||Government Property||JAN 2017||All subcontracts, including commercial items, where Government property is acquired or furnished for subcontract performance.|
|52.247-63||Preference For U.S. Flag Air Carriers||JUN 2003||All subcontracts, including commercial items.|
|52.247-64||Preference for Privately Owned U.S. – Flag Commercial Vessels||FEB 2006||All subcontracts, including commercial items.|
|52.248-1||Value Engineering||OCT 2010||All subcontracts, including commercial items, of $150,000 or greater.|
|252.203-7003||Agency Office of the Inspector General||DEC 2012||All subcontracts, including commercial items, to which FAR 52.203-13, Contractor Code of Business Ethics and Conduct, applies.|
|252.204-7009||Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information||OCT 2016||Subcontracts for services that include support for the Government’s activities related to safeguarding covered defense information and cyber incident reporting, including subcontracts for commercial items.|
|252.204-7012||Safeguarding Covered Defense Information and Cyber Incident Reporting||DEC 2019||Subcontracts for operationally critical support or for which subcontract performance will involve covered defense information, including subcontracts for commercial items.|
|252.204-7015||Notice of Authorized Disclosure of Information for Litigation Support||MAY 2016||All subcontracts, including subcontracts for commercial items.|
|252.204-7020||NIST SP 800-171 DoD Assessment Requirements||NOV 2020||All subcontracts, including subcontracts for the acquisition of commercial items (excluding COTS items).|
|252.223-7008||Prohibition of Hexavalent Chromium||JUN 2013||All subcontracts, including commercial items.|
|252.225-7004||Report of Intended Performance Outside the United States and Canada – Submission After Award||OCT 2015||All subcontracts, including commercial items, which exceed $700,000 in value and could be performed in the United States.|
|252.225-7007||Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies||SEP 2006||All subcontracts, including commercial items.|
|252.225-7009||Restriction on Acquisition of Certain Articles Containing Specialty Metals||OCT 2014||All subcontracts, including subcontracts for commercial items. Section (d) and (e)(1) of the clause do not flow down.|
|252.225-7013||Duty-Free Entry—Basic (May 2016)||MAY 2016||All subcontracts, including commercial items.|
|252.225-7019||Restriction on Acquisition of Anchor and Mooring Chain||DEC 2009||Subcontracts for items containing welded shipboard anchor and mooring chain, four inches or less in diameter.|
|252.225-7025||Restriction on Acquisition of Forgings||DEC 2009||Subcontracts that include ship propulsion shafts (excludes service and landing craft), periscope tubes, and ring forgings for bull gears (greater than 120 inches in diameter).|
|252.225-7038||Restriction on Acquisition of Air Circuit Breakers||JUN 2005||Subcontracts for air circuit breakers.|
|252.225-7048||Export-Controlled Items.||JUN 2013||All subcontracts, including commercial items.|
|252.227-7013||Rights in Technical Data—Noncommercial Items.||FEB 2014||All subcontracts, including commercial items.|
|252.227-7014||Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation||FEB 2014||All subcontracts, including commercial items.|
|252.227-7015||Technical Data–Commercial Items||FEB 2014||All subcontracts, including commercial items.|
|252.227-7015 Alt 1||Technical Data–Commercial Items (FEB 2014) Alternate 1||DEC 2011||All subcontracts, including commercial items.|
|252.227-7016||Rights in Bid or Proposal Information.||JAN 2011||All subcontracts, including commercial items.|
|252.227-7019||Validation of Asserted Restrictions—Computer Software||SEP 2016||All subcontracts, including commercial items.|
|252.227-7025||Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends||MAY 2013||All subcontracts, including commercial items.|
|252.227-7027||Deferred Ordering of Technical Data or Computer Software||APR 1988||All subcontracts, including commercial items.|
|252.227-7030||Technical Data – Withholding of Payment||MAR 2000||All subcontracts, including commercial items.|
|252.227-7037||Validation of Restrictive Markings on Technical Data||SEP 2016||All subcontracts, including commercial items.|
|252.227-7038||Patent Rights—Ownership by the Contractor (Large Business)||JUN 2012||All subcontracts, including commercial items.|
|252.244-7000||Subcontracts for Commercial Items||JUN 2013||All subcontracts, including subcontracts for the acquisition of commercial items.|
|252.246-7001||Warranty of Data||MAR 2014||All subcontracts, including commercial items.|
|252.246-7001 Alt 1||Warranty of Data (Mar 2014) – Alternate 1||MAR 2014||All subcontracts, including commercial items.|
|252.246-7003||Notification of Potential Safety Issues||JUN 2013||Subcontracts, including subcontracts for commercial items, described in Section (f)(1) of the clause.|
|252.246-7007||Contractor Counterfeit Electronic Parts Detection and Avoidance System||AUG 2016||Subcontracts, including subcontracts for commercial items, for electronic parts or assemblies containing electronic parts. Sections (a) through (e) flow down. The introductory text of the clause does not apply to subcontractors.|
|252.246-7008||Sources of Electronic Parts||DEC 2017||Subcontracts, including subcontracts for commercial items, for electronic parts or assemblies containing electronic parts.|
|252.247-7023||Transportation of Supplies by Sea||APR 2014||All subcontracts, including commercial items, that meet the requirements in (b)(2) of the clause.|
|252.247-7024||Notification of Transportation of Supplies by Sea||MAR 2000||All subcontracts, including commercial items, that meet the requirements in (b)(2) of the clause.|
|252.249-7002||Notification of Anticipated Contract Termination or Reduction||OCT 2015||All subcontracts, including commercial items, of $750,000 or greater.|
RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE
a) Seller agrees that it has reviewed DFARS 252.227-7013, 252.227-7014, 252.227-7015, 252.227-7016, 252.227-7017, 252.227-7018, and 252.227-7028 and has made all assertions regarding rights in Technical Data, Computer Software, and Computer Software Documentation in accordance with those clauses for commercial and non-commercial data to be provided to Buyer under this Purchase Order.
b) When Seller is asserting restrictions based solely on copyright, for data other than computer software, Seller grants Buyer and the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted data to reproduce, prepare derivative works of, distribute copies to the public, and perform publicly and display publicly such data by or on behalf of the Government.
c) When Seller is asserting restrictions based solely on copyright, for computer software, Seller to grants Buyer and the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to reproduce, prepare derivative works of, and perform and display publicly (but not to distribute copies to the public) such computer software by or on behalf of the Government.
DPAS RATING: DO-A3
a) This contract is a rated order under DPAS (15 CFR 700), with a rating of DO-A3. By signing the P/O Seller agrees to the following: This is a rated order certified for national defense use, and Seller is required to follow all the provisions of the Defense Priorities and Allocation System regulation (15 CFR 700).
a) The Seller agrees to identify the country of origin of all articles, materials, and supplies provided to Buyer under the P/O.
COMBATING TRAFFICKING IN PERSONS
a) This contract includes FAR 52.222-50. If this P/O is for supplies, other than commercially available off-the-shelf items, acquired outside of the U.S., or services performed outside of the U.S. and have an estimated value that exceeds $500,000, by signing the P/O the Seller certifies: (i) It has implemented a compliance plan to prevent any prohibited activities identified in paragraph (b) of FAR 52.222-50 and to monitor, detect, and terminate any agent, subcontract or subcontractor employee engaging in prohibited activities; and (ii) After having conducted due diligence, either – (A) To the best of the Seller’s knowledge and belief, neither it nor any of its agents, subcontractors, or their agents is engaged in any such activities; or (B) If abuses relating to any of the prohibited activities identified in paragraph (b) of FAR 52.222-50 have been found, the Seller has taken the appropriate and referral actions.
b) The Seller agrees to make this certification to the Buyer annually during performance of the P/O.
CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
a) This contract contains FAR 52.203-11 and 52.203-12. By signing the P/O, Seller certifies to the best of its knowledge and belief that no Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, an employee of a Member of Congress on its behalf in connection with the awarding of this contract.
b) If any registrants under the Lobbying Disclosure Act of 1995 have made any lobbying contact on behalf of the Seller with respect to this contract, the Seller shall complete and submit, with its offer to Buyer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to provide the name of the registrants. The Seller need not report regularly employed officers or employees of the Seller to whom payments of reasonable compensation were made.
CERTIFICATION REGARDING DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT
a) This contract contains FAR 52.209-6. By signing the P/O, Seller certifies that it and/or any of its principals are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency.
(This SECTION replaces, in its entirety, the warranty clause of Bollinger’s STANDARD Purchase order terms and conditions)
a) All warranties of Seller, whether created expressly by law or in fact, are incorporated in any P/O by reference and shall include and are supplemented by the following express warranties:
i) Seller shall be responsible for all costs associated with promptly correcting, at the site of the equipment or vessel, valid warranty claims. The costs shall include but are not limited to:
- Repair, replacement, and associated freight;
- Bollinger production, administrative, and engineering services;
- Correcting direct damage to equipment, the site, the compartment or contents resulting from the warranty defect;
- Correcting the work, materials, and equipment that are disturbed in fulfilling the warranty, including that which may have been warranted under another contract;
- All damages incurred by Bollinger as a result of Seller’s failure to make prompt repairs.
ii) If the Seller fails to proceed promptly in accordance with the warranty, Bollinger may have such work performed at the expense of Seller.
iii) A valid warranty claim is defined as: the correction of any defect in workmanship or material identified during the warranty period. A valid warranty claim also mandates correction of defects in workmanship and material after the warranty expires that are latent, caused by fraud, or caused by gross mistake such as amounting to fraud.
iv) The warranty period begins at Bollinger’s acceptance of the supplies and services furnished under this contract and ends twenty-four (24) months after the U.S Government’s acceptance of the supplies and services furnished under this contract for the first vessel and eighteen (18) months after the U.S Government’s acceptance of the supplies and services furnished under this contract for follow-on vessels. The warranty period shall be extended for supplies and services by the time during which the vessel is not available by reason of any defects for which Bollinger determines the Seller to be responsible. The supplies and services subject to correction and furnished in replacement shall be subject to the conditions of this Warranty clause to the same extent as supplies and services initially delivered. The warranty for supplies and services subject to correction and furbished in replacement shall be equal in duration to that set forth above and shall run from the date of delivery of the corrected or replaced supplies or services.
v) In addition to the warranty period of section iv), the Seller shall extend to the Government the full coverage of any standard commercial warranty normally offered in a similar commercial sale, provided that such warranty is available at no additional cost to the Government. The Seller shall provide a copy of the standard commercial warranty with the item. The standard commercial warranty period shall begin upon the final acceptance by the Government of the applicable material or software.
Acceptance of the standard commercial warranty does not waive the Government’s rights under the “Inspection” clause, nor does it limit the Government’s rights with regard to other terms and conditions of the contract. In the event of a conflict, the terms and conditions of the contract shall take precedence over the standard commercial warranty.
vi) Seller warrants that all technical data delivered under this contract will at the time of delivery conform with the specifications and all other requirements of this contract. The warranty period shall extend for three years after Buyer’s delivery of the data to the Government.
vii) Except in the case of goods for which Buyer furnished detailed manufacturing drawings, the manufacture and sale by Seller of the goods, the use of the goods by Buyer, or disclosures by Seller to Buyer in any manner shall not infringe upon or violate the legal or equitable rights of any person, corporation, or partnership arising out of any license or franchise, or out of any patent, trademark, copyright, or other proprietary right now or hereinafter in effect.
viii) All obligations of Seller under any P/O shall survive acceptance of payment by Buyer and shall include liability for any loss, consequential and incidental damages, and expenses resulting from the breach of any warranty or resulting from any other act or omission by Seller, its agents or employees, while in the performance thereof
ix) The rights and remedies of Bollinger provided in this clause are in addition to and do not limit any rights otherwise afforded to Bollinger under this contract.
a) The U.S. Government has expressed a desire to procure multiple vessels under the PSC program. It is extremely important to the U.S. Government to maintain standardization within the PSC fleet.
b) Equipment supplied under the PSC program for follow-on vessels shall be identical to that supplied for the first vessel, unless otherwise approved in advance in writing by Bollinger.
c) Any cost incurred by Bollinger for changes proposed by Seller shall be to Seller’s account. Changes shall include, but not be limited to, changes to the model number, components, parts, part numbers, technical data packages, software, firmware, hardware, VFI, or similar items.
a) Seller expressly represents that the Contract Disputes Act (CDA) is incorporated into this Agreement and Purchase Order and to be bound by the procedures set forth therein regarding any and all disputes arising out of or related to this Agreement and/or Purchase Order. Seller further agrees to first make and assert any and all claims and/or requests for equitable adjustment arising out of, related to, or connected with the Contract, Agreement, or Purchase Order in the manner and within the time limits provided in the Contract for Seller to pursue like claims against USG and in sufficient time for Seller to make such claims against the USG in accordance with the Contact. Seller agrees to permit Seller to prosecute a claim or equitable adjustment in the name of Seller for the use and benefit of Seller in the manner provided in the Prime Contract for like claims pursued by Bollinger against the USG. However, nothing contained in this Agreement shall cancel rights, remedies, or benefits in favor of Seller that do not exist pursuant to the terms of this Agreement.
i) Pending final disposition of any dispute under this Agreement or Purchase Order, Seller agrees to proceed diligently with the performance of this Agreement or Purchase Order and in accordance with the decision of Bollinger or USG.
ii) Any decision made by the USG Contracting Officer in Bollinger’s Prime Contract, if binding upon Bollinger, shall bind Bollinger and Seller. In no event shall Bollinger be required to appeal on behalf of or permit Seller to appeal in Bollinger’s name if Bollinger considers Seller’s position to be groundless in fact, or in law or frivolous. Any decision on such appeal shall be binding upon Seller.
iii) If Bollinger permits Seller to appeal in Bollinger’s name, Seller will be permitted, to the extent permitted by the Government, to participate in any such appeal for the purpose of protecting its rights, and Bollinger will not enter into a settlement agreement with the Government or take any other action which would prejudice Seller’s rights under this Clause without Seller’s consent. Fees and costs and expenses incurred by Bollinger in prosecuting any such appeal initiated by Bollinger at Seller’s request shall be paid by Seller and shall not be reimbursable or otherwise compensable as a cost under this Purchase Order or Agreement. The Seller agrees to comply with the same claim certification requirements and support data requirements imposed upon the Bollinger under its Prime Contract by reason of the Contract Disputes Act of 1978 (41 U.S.C. §601-613), FAR 52.233-1. Specifically, Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, agree to provide with its claim submission, in accordance with the CDA, the following certification language: “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the [submitting party] believes the Government are liable; and that I am duly authorized to certify the claim on behalf of the [submitting party].”
iv) Seller agrees to accept in full satisfaction and discharge of any and all of its claims brought under the CDA the amounts which Bollinger recovers from the Government on behalf of the Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, pursuant to the terms of this Agreement and Purchase Order, if any. If no such recovery is obtained from the Government, Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, agree to accept Bollinger’s good faith efforts, cooperation, and compliance with its obligations provided herein to obtain such recovery in full satisfaction and discharge of Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, asserted claims. Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, shall not commence or take any legal action related to the Bollinger’s prosecution of Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, claims. Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, agree that each will not seek to recover from Bollinger any amount that Bollinger does not recover from the Government for each of Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers claims, respectively.
v) Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, agree that each will prepare its claim(s) in accordance with FAR 52.233-1 as well as provide a cost or pricing data certification pursuant to the FAR.
vi) Bollinger and Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, shall confer with regard to discovery, the proposed presentation of evidence and testimony, and shall give due regard to the needs of the other party’s proof. If the presentation of the proof or part of the proof of one party’s claim or request for contract adjustment directly interferes with the proof of the other party’s claim, Bollinger shall confer with Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers. As the named party, however, Bollinger has the right to make the final decision as to what action to take, if any.
vii) Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, may retain their own attorneys and experts to prepare and assist in presenting the Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, evidence in support of their claims in the name of Bollinger if allowed by Bollinger.
viii) Bollinger’s counsel will be designated as the lead attorney for all claims filed with the Government and jointly negotiated. With regard to any proceeding before the CBCA or COFC, or any resultant appeal, Bollinger’s counsel shall be designated as “Counsel of Record.”
b) Arbitration Clause
i) As a condition precedent to arbitration, Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, must first submit any and all claims and disputes arising out of, related to, or connected with the Agreement and/or Purchase Order through the CDA procedure and consistent with Article 15(a) above before filing any arbitration proceeding or demand. Only after Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers, exhausts any and all remedies and procedures addressed in Article 15(a), shall Seller, and Seller on behalf of its sub-tier subcontractors, suppliers and Sellers be permitted to submit any and all unresolved disputes arising under this Agreement and/or Purchase Order that cannot be settled by the parties under the Dispute Resolution Procedures in Article 15(a) to binding arbitration under the Construction Industry Rules of Arbitration of the American Arbitration Association. The parties agree that the AAA Construction Industry Rules are expressly incorporated into this Agreement and/or Purchase Order. Any and all arbitration proceedings and hearings shall be located in New Orleans, Louisiana. Louisiana Law shall govern this Contract.
ii) Seller shall support Bollinger as requested in the resolution of any Disputes that arise between Bollinger and the U.S. Government. Bollinger shall support Seller’s requests for equitable adjustment to price and schedule for Changes initiated by the U.S. Government.
HQ C-2-0002 ACCESS TO PROPRIETARY DATA OR COMPUTER SOFTWARE (NAVSEA) (JUN 1994)
(a) Performance under this contract may require that the Contractor have access to technical data, computer software, or other sensitive data of another party who asserts that such data or software is proprietary. If access to such data or software is required or to be provided, the Contractor shall enter into a written agreement with such party prior to gaining access to such data or software. The agreement shall address, at a minimum, (1) access to, and use of, the proprietary data or software exclusively for the purposes of performance of the work required by this contract, and (2) safeguards to protect such data or software from unauthorized use or disclosure for so long as the data or software remains proprietary. In addition, the agreement shall not impose any limitation upon the Government or its employees with respect to such data or software. A copy of the executed agreement shall be provided to the Contracting Officer. The Government may unilaterally modify the contract to list those third parties with which the Contractor has agreement(s).
(b) The Contractor agrees to: (1) indoctrinate its personnel who will have access to the data or software as to the restrictions under which access is granted; (2) not disclose the data or software to another party or other Contractor personnel except as authorized by the Contracting Officer; (3) not engage in any other action, venture, or employment wherein this information will be used, other than under this contract, in any manner inconsistent with the spirit and intent of this requirement; (4) not disclose the data or software to any other party, including, but not limited to, joint venturer, affiliate, successor, or assign of the Contractor; and (5) reproduce the restrictive stamp, marking, or legend on each use of the data or software whether in whole or in part.
(c) The restrictions on use and disclosure of the data and software described above also apply to such information received from the Government through any means to which the Contractor has access in the performance of this contract that contains proprietary or other restrictive markings.
(d) The Contractor agrees that it will promptly notify the Contracting Officer of any attempt by an individual, company, or Government representative not directly involved in the effort to be performed under this contract to gain access to such proprietary information. Such notification shall include the name and organization of the individual, company, or Government representative seeking access to such information.
(e) The Contractor shall include this requirement in subcontracts of any tier which involve access to information covered by paragraph (a), substituting “subcontractor” for “Contractor” where appropriate.
(f) Compliance with this requirement is a material requirement of this contract.
HQ C-2-0004 ACCESS TO THE VESSEL(S) (NAVSEA) (SEP 2016)
Officers, employees and associates of other prime Contractors with the Government and their subcontractors, shall, as authorized by the Supervisor, have, at all reasonable times, admission to the plant, access to the vessel(s) where and as required, and be permitted, within the plant and on the vessel(s) required, to perform and fulfill their respective obligations to the Government. The Contractor shall make reasonable arrangements with the Government or Contractors of the Government, as shall have been identified and authorized by the Supervisor to be given admission to the plant and access to the vessel(s) for office space, work areas, storage or shop areas, or other facilities and services, necessary for the performance of the respective responsibilities involved, and reasonable to their performance.
HQ C-2-0005 ACCESS TO THE VESSELS BY NON-U.S. CITIZENS (NAVSEA) (SEP 2016)
(a) No person not known to be a U.S. citizen shall be eligible for access to naval vessels, work sites and adjacent areas when said vessels are under construction, conversion, overhaul, or repair, except upon a finding by COMNAVSEA or his designated representative that such access should be permitted in the best interest of the United States. The Contractor shall establish procedures to comply with this requirement and NAVSEAINST 5510.3 (series).
(b) If the Contractor desires to employ non-U.S. citizens in the performance of work under this contract or agreement that requires access as specified in paragraph (a) of this requirement, approval must be obtained prior to access for each contract or agreement where such access is required. To request such approval for non-U.S. citizens of friendly countries, the Contractor shall submit to the cognizant Contract Administration Office (CAO), an Access Control Plan (ACP) which shall contain as a minimum, the following information:
(1) Badge or Pass oriented identification, access, and movement control system for non-U.S. citizen employees with the badge or pass to be worn or displayed on outer garments at all times while on the Contractor’s facilities and when performing work aboard ship.
(i) Badges must be of such design and appearance that permits easy recognition to facilitate quick and positive identification.
(ii) Access authorization and limitations for the bearer must be clearly established and in accordance with applicable security regulations and instructions.
(iii) A control system, which provides rigid accountability procedures for handling lost, damaged, forgotten or no longer required badges, must be established.
(iv) A badge or pass check must be performed at all points of entry to the Contractor’s facilities or by a site supervisor for work performed on vessels outside the Contractor’s plant.
(2) Contractor’s plan for ascertaining citizenship and for screening employees for security risk.
(3) Data reflecting the number, nationality, and positions held by non-U.S. citizen employees, including procedures to update data as non-U.S. citizen employee data changes, and pass to cognizant CAO.
(4) Contractor’s plan for ensuring subcontractor compliance with the provisions of the Contractor’s ACP.
(5) These conditions and controls are intended to serve as guidelines representing the minimum requirements of an acceptable ACP. They are not meant to restrict the Contractor in any way from imposing additional controls necessary to tailor these requirements to a specific facility.
(c) To request approval for non-U.S. citizens of hostile and/or communist-controlled countries (listed in Department of Defense Industrial Security Manual, DOD 5220.22-M or available from cognizant CAO), Contractor shall include in the ACP the following employee data: name, place of birth, citizenship (if different from place of birth), date of entry to U.S., extenuating circumstances (if any) concerning immigration to U.S., number of years employed by Contractor, position, and stated intent concerning U.S. citizenship. COMNAVSEA or his designated representative will make individual determinations for desirability of access for the above group. Approval of ACP’s for access of non-U.S. citizens of friendly countries will not be delayed for approval of non-U.S. citizens of hostile communist-controlled countries. Until approval is received, Contractor must deny access to vessels for employees who are non-U.S. citizens of hostile and/or communist-controlled countries.
(d) The Contractor shall fully comply with approved ACPs. Noncompliance by the Contractor or subcontractor serves to cancel any authorization previously granted, in which case the Contractor shall be precluded from the continued use of non-U.S. citizens on this contract or agreement until such time as the compliance with an approved ACP is demonstrated and upon a determination by the CAO that the Government’s interests are protected. Further, the Government reserves the right to cancel previously granted authority when such cancellation is determined to be in the Government’s best interest. Use of non-U.S. citizens, without an approved ACP or when a previous authorization has been canceled, will be considered a violation of security regulations. Upon confirmation by the CAO of such violation, this contract, agreement or any job order issued under this agreement may be terminated or default in accordance with the clause entitled “DEFAULT (FIXED-PRICE SUPPLY AND SERVICE)” (FAR 52.249-8), “DEFAULT (FIXED-PRICE RESEARCH AND DEVELOPMENT)” (FAR 52.249-9) or “TERMINATION (COST REIMBURSEMENT)” (FAR 52.249-6), as applicable.
(e) Prime Contractors have full responsibility for the proper administration of the approved ACP for all work performed under this contract or agreement, regardless of the location of the vessel, and must ensure compliance by all subcontractors, technical representatives and other persons granted access to U.S. Navy vessels, adjacent areas, and work sites.
(f) In the event the Contractor does not intend to employ non-U.S. citizens in the performance of the work under this contract, but has non-U.S. citizen employees, such employees must be precluded from access to the vessel and its work site and those shops where work on the vessel’s equipment is being performed. The ACP must spell out how non-U.S. citizens are excluded from access to contract work areas.
(g) The same restriction as in paragraph (f) above applies to other non-U.S. citizens who have access to the Contractor’s facilities (e.g., for accomplishing facility improvements, from foreign crewed vessels within its facility, etc.) except that, with respect to access to the vessel and worksite, the restrictions shall not apply to uniformed U.S. Navy personnel who are non-U.S. citizens and who are either assigned to the ship or require access to the ship to perform their duties.
CLARIFICATIONS TO ACCESS TO THE VESSELS BY NON-U.S. CITIZENS (C‑2‑0005) (NAVSEA) (MAR 2018)
As used throughout “ACCESS TO THE VESSELS BY NON-U.S. CITIZENS (C‑2‑0005), the following terms shall have the meanings set forth below:
(a) NAVAL VESSELS – means USCG Heavy Polar Icebreakers.
(b) U.S. NAVY VESSELS – means USCG Heavy Polar Icebreakers.
(c) UNIFORMED U.S. NAVY PERSONNEL – means uniformed U.S. Navy or U.S. Coast Guard personnel.
HQ C-2-0008 ASSIGNMENT AND USE OF NATIONAL STOCK NUMBERS (NAVSEA) (MAY 1993)
To the extent that National Stock Numbers (NSNs) or preliminary NSNs are assigned by the Government for the identification of parts, pieces, items, subassemblies or assemblies to be furnished under this contract, the Contractor shall use such NSNs or preliminary NSNs in the preparation of provisioning lists, package labels, packing lists, shipping containers and shipping documents as required by applicable specifications, standards or Data item Descriptions of the contract or as required by orders for spare and repair parts. The cognizant Government Contract Administration Office shall be responsible for providing the Contractor such NSNs or preliminary NSNs which may be assigned and which are not already in possession of the Contractor.
HQ C-2-0011 COMPUTER SOFTWARE AND/OR COMPUTER DATABASE(S) DELIVERED TO AND/OR RECEIVED FROM THE GOVERNMENT (NAVSEA) (APR 2004)
(a) The Contractor agrees to test for viruses all computer software and/or computer databases, as defined in the clause entitled “RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION” (DFARS 252.227-7014), before delivery of that computer software or computer database in whatever media and on whatever system the software is delivered. The Contractor warrants that any such computer software and/or computer database will be free of viruses when delivered.
(b) The Contractor agrees to test any computer software and/or computer database(s) received from the Government for viruses prior to use under this contract.
(c) Unless otherwise agreed in writing, any license agreement governing the use of any computer software to be delivered as a result of this contract must be paid-up and perpetual, or so nearly perpetual as to allow the use of the computer software or computer data base with the equipment for which it is obtained, or any replacement equipment, for so long as such equipment is used. Otherwise the computer software or computer database does not meet the minimum functional requirements of this contract. In the event that there is any routine to disable the computer software or computer database after the software is developed for or delivered to the Government, that routine shall not disable the computer software or computer database until at least twenty-five calendar years after the delivery date of the affected computer software or computer database to the Government.
(d) No copy protection devices or systems shall be used in any computer software or computer database delivered under this contract to restrict or limit the Government from making copies. This does not prohibit license agreements from specifying the maximum amount of copies that can be made.
(e) Delivery by the Contractor to the Government of certain technical data and other data is now frequently required in digital form rather than as hard copy. Such delivery may cause confusion between data rights and computer software rights. It is agreed that, to the extent that any such data is computer software by virtue of its delivery in digital form, the Government will be licensed to use that digital-form with exactly the same rights and limitations as if the data had been delivered as hard copy.
(f) Any limited rights legends or other allowed legends placed by a Contractor on technical data or other data delivered in digital form shall be digitally included on the same media as the digital-form data and must be associated with the corresponding digital-form technical data to which the legends apply to the extent possible. Such legends shall also be placed in human readable form on a visible surface of the media carrying the digital-form data as delivered, to the extent possible.
HQ C-2-0023 EXCLUSION OF MERCURY (NAVSEA) (MAY 1998)
Mercury or mercury containing compounds shall not be intentionally added or come in direct contact with hardware or supplies furnished under this contract.
HQ C-2-0038 PERMITS AND RESPONSIBILITIES (NAVSEA) (SEP 1990)
The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Federal, State, and Municipal laws, codes, and regulations, in connection with any movement over the public highways of overweight/overdimensional materials.
HQ C-2-0039 PLANS AND OTHER DATA (FT) (NAVSEA) (JAN 1983)
Whenever the Department shall so require, the Contractor shall, at the cost of reproduction, furnish to whomsoever may be designated by the Department (including other shipbuilding Contractors), copies of working plans (including reproducibles), selected record plans, indices, material schedules, plan schedules, purchase specifications and other data relating to the construction of the vessel. The furnishing of such data shall not constitute any guaranty or warranty, either express or implied, by the Contractor other than that they are correct copies of such data.
HQ C-2-0051 SPECIFICATIONS AND STANDARDS (NAVSEA) (AUG 1994)
(i) A “zero-tier reference” is a specification, standard, or drawing that is cited in the contract (including its attachments).
(ii) A “first-tier reference” is either: (1) a specification, standard, or drawing cited in a zero-tier reference, or (2) a specification cited in a first-tier drawing.
All zero-tier and first-tier references, as defined above, are mandatory for use. All lower tier references shall be used for guidance only.
HQ C-2-0063 USE OF NAVY SUPPORT CONTRACTORS FOR OFFICIAL CONTRACT FILES (NAVSEA) (APR 2004)
(a) NAVSEA may use a file room management support contractor, hereinafter referred to as “the support contractor”, to manage its file room, in which all official contract files, including the official file supporting this procurement, are retained. These official files may contain information that is considered a trade secret, proprietary, business sensitive or otherwise protected pursuant to law or regulation, hereinafter referred to as “protected information”. File room management services consist of any of the following: secretarial or clerical support; data entry; document reproduction, scanning, imaging, or destruction; operation, management, or maintenance of paper-based or electronic mail rooms, file rooms, or libraries; and supervision in connection with functions listed herein.
(b) The cognizant Contracting Officer will ensure that any NAVSEA contract under which these file room management services are acquired will contain a requirement that:
(1) The support contractor not disclose any information;
(2) Individual employees are to be instructed by the support contractor regarding the sensitivity of the official contract files;
(3) The support contractor performing these services be barred from providing any other supplies and/or services, or competing to do so, to NAVSEA for the period of performance of its contract and for an additional three years thereafter unless otherwise provided by law or regulation; and,
(4) In addition to any other rights the contractor may have, it is a third party beneficiary who has the right of direct action against the support contractor, or any person to whom the support contractor has released or disclosed protected information, for the unauthorized duplication, release, or disclosure of such protected information.
(c) Execution of this contract by the contractor is considered consent to NAVSEA’s permitting access to any information, irrespective of restrictive markings or the nature of the information submitted, by its file room management support contractor for the limited purpose of executing its file room support contract responsibilities.
(d) NAVSEA may, without further notice, enter into contracts with other contractors for these services. Contractors are free to enter into separate non-disclosure agreements with the file room contractor. (Please contact Director, E Business Division for contractor specifics.) However, any such agreement will not be considered a prerequisite before information submitted is stored in the file room or otherwise encumber the government.
HQ D-1-0004 PIO PACKAGING LANGUAGE (W/O MIL-E-17555 REQUIREMENT)
Item 0006 – The supplies furnished hereunder shall be cleaned, preserved, packaged, packed and marked in accordance with the instructions provided by the Contracting Officer, Provisioning Activity, or ACO. When not otherwise specified, spare and repair parts shall be packaged to ensure protection against corrosion, deterioration, physical, and electrical damage during shipment from the Contractor to the point of delivery.
HQ D-2-0004 IDENTIFICATION MARKING OF PARTS (NAVSEA) (NOV 1996)
Identification marking of individual parts within the systems, equipments, assemblies, subassemblies, components, groups, sets or kits, and of spare and repair parts shall be done in accordance with applicable specifications and drawings. To the extent identification marking of such parts is not specified in applicable specifications or drawings, such marking shall be accomplished in accordance with the following:
(1) Parts shall be marked in accordance with generally accepted commercial practice.
(2) In cases where parts are so small as not to permit identification marking as provided above, such parts shall be appropriately coded so as to permit ready identification.
HQ D-2-0006 MARKING AND PACKING LIST(S) (NAVSEA) (NOV 1996)
(a) Marking. Shipments, shipping containers and palletized unit loads shall be marked in accordance with best commercial practice.
(b) Packing List(s). A packing list (DD Form 250 Material Inspection and Receiving Report may be used) identifying the contents of each shipment, shipping container or palletized unit load shall be provided by the Contractor with each shipment. When a contract line item identified under a single stock number includes an assortment of related items such as kit or set components, detached parts or accessories, installation hardware or material, the packing list(s) shall identify the assorted items.
Where assortment of related items is included in the shipping container, a packing list identifying the contents shall be furnished.
(c) Master Packing List. In addition to the requirements in paragraph (b) above, a master packing list shall be prepared where more than one shipment, shipping container or palletized unit load comprise the contract line item being shipped. The master packing list shall be attached to the number one container and so identified.
(d) Part Identification. All items within the kit, set, installation hardware or material shall be suitably segregated and identified within the unit pack(s) or shipping container by part number and/or national stock number.
5252.227-9113 GOVERNMENT-INDUSTRY DATA EXCHANGE PROGRAM (APR 2015)
(a) The Contractor shall participate in the appropriate interchange of the Government-Industry Data Exchange Program (GIDEP) in accordance with GIDEP PUBLICATION 1 dated April 2008. Data entered is retained by the program and provided to qualified participants. Compliance with this requirement shall not relieve the Contractor from complying with any other requirement of the contract.
(b) The Contractor agrees to insert paragraph (a) of this requirement in any subcontract hereunder exceeding $500,000.00. When so inserted, the word “Contractor” shall be changed to “Subcontractor”.
(c) GIDEP materials, software and information are available without charge from:
GIDEP Operations Center
P.O. Box 8000
Corona, CA 92878-8000
Phone: (951) 898-3207
FAX: (951) 898-3250
52.246-11 Higher-Level Contract Quality Requirement (DEC 2014) (a) The Contractor shall comply with the higher-level quality standard(s) listed below.
ANSI/ISO/ASQ 9001-2015 Quality Management Systems and supplemental requirements imposed by this contract
(b) The Contractor shall include applicable requirements of the higher-level quality standard(s) listed in paragraph (a) of this clause and the requirement to flow down such standards, as applicable, to lower-tier subcontracts, in– (1) Any subcontract for critical and complex items (see 46.203(b) and (c)); or (2) When the technical requirements of a subcontract require– (i) Control of such things as design, work operations, in-process control, testing, and inspection; or (ii) Attention to such factors as organization, planning, work instructions, documentation control, and advanced metrology.
HQ E-2-0008 INSPECTION AND TEST RECORDS (NAVSEA) MAY 1995)
Inspection and Test Records: Inspection and test records shall, as a minimum, indicate the nature of the observations, number of observations made, and the number and type of deficiencies found. Data included in inspection and test records shall be complete and accurate, and shall be used for trend analysis and to assess corrective action and effectiveness.
HQ E-2-0015 QUALITY MANAGEMENT SYSTEM REQUIREMENTS (NAVSEA) (APR 2017)
Quality Management System Requirements. The Contractor shall provide and maintain a quality management system that, as a minimum, adheres to the requirements of ANSI/ISO/ASQ 9001-2015 Quality Management Systems and supplemental requirements imposed by this contract. The quality management system procedures, planning, and all other documentation and data that comprise the quality management system shall be made available to the Government for review. Existing quality documents that meet the requirements of this contract may continue to be used. The Government may perform any necessary inspections, verifications, and evaluations to ascertain conformance to requirements and the adequacy of the implementing procedures. The Contractor shall require of subcontractors a quality management system achieving control of the quality of the services and/or supplies provided. The Government reserves the right to disapprove the quality management system or portions thereof when it fails to meet the contractual requirements.
Additional Prime Contract Clauses Flow-downs applicable to PSC Vendors (Exclusive of Commercial Items) (Rev -).
|CLAUSE||CLAUSE TITLE||DATE||SUBCONTRACTOR APPLICABILITY|
|52.203-6||Restrictions on Subcontractor Sales to the Government.||SEPT 2006||All subcontracts which exceed $250,000.|
|52.203-7||Anti-Kickback Procedures.||MAY 2014||All subcontracts which exceed $150,000. Section (c)(1) of clause does not flow down.|
|52.203-12||Limitation on Payments to Influence Certain Federal Transactions||OCT 2010||All subcontracts which exceed $150,000.|
|52.215-11||Price Reduction for Defective Certified Cost or Pricing Data – Modifications||AUG 2011||All subcontracts where certified Cost or Pricing Data is required.|
|52.215-13||Subcontractor certified Cost or Pricing Data – Modifications||OCT 2010||All subcontracts that exceed $2 million.|
|52.215-14||Integrity of Unit Prices||OCT 2010||All subcontracts, except: subcontracts $250,000 or less, construction or architect-engineer services (see FAR part 36), utility services (see FAR part 41), services where supplies are not required, commercial items, and petroleum products.|
|Small Business Subcontracting Plan (Deviation 2016-O0009)
|JAN 2017||All subcontracts (except with small business concerns) in excess of $750,000.|
|52.222-4||Contract Work Hours and Safety Standards -Overtime Compensation||MAY 2014||All subcontracts that may require or involve the employment of laborers and mechanics.|
|52.223-18||Encouraging Contractor Policies to Ban Text Messaging While Driving.||AUG 2011||All subcontracts which exceed the micro-purchase threshold (FAR 2.101)|
|52.225-13||Restrictions on Certain Foreign Purchases.||JUN 2008||All subcontracts.|
|52.227-1||Authorization and Consent.||DEC 2007||All subcontracts which exceed $250,000.|
|52.227-2||Notice and Assistance Regarding Patent and Copyright Infringement.||DEC 2007||All subcontracts which exceed $250,000.|
|252.203-7001||Prohibition on Persons Convicted of Fraud or Other Defense Contract-Related Felonies||DEC 2008||All first-tier subcontracts which exceed $250,000.|
|252.203-7002||Requirement to Inform Employees of Whistleblower Rights.||SEP 2013||All subcontracts.|
|252.203-7004||Display of Hotline Posters||OCT 2016||Subcontracts which exceed $5.5 million.|
|252.204-7000||Disclosure of Information||OCT 2016||All subcontracts.|
|252.211-7000||Acquisition Streamlining||OCT 2010||Subcontracts over $1.5 million.|
|252.225-7016||Restriction on Acquisition Of Ball and Roller Bearings||JUN 2011||Subcontracts for items that contain ball or roller bearings.|
|252.226-7001||Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns||SEP 2004||All subcontracts which exceed $500,000.|