Exhibit 10.14
Agreement No.________
Non-Disclosure Agreement
This Agreement is made between CELERITY SYSTEMS, INC., ("CELERITY") and UNISYS
Corporation - Federal Systems Division. ("UNISYS") and concerns the handling,
safeguarding and exchange of sensitive, proprietary or confidential information
(collectively "Proprietary Information"). It is agreed and understood that any
exchange of such Proprietary Information is expressly for the sole purpose of
CELERITY and UNISYS evaluating a possible business arrangement involving an
existing UNISYS contract with a federal government agency.
1. For the purposes hereof, Proprietary Information shall be any documents,
materials or information that (i) is in tangible form and clearly marked as
being proprietary, confidential or sensitive and (ii) is received by one
party to this Agreement ("Recipient") from the other party to this
Agreement ("Transmitter").
2. The Recipient agrees to safeguard, protect and handle all Proprietary
Information made available under this Agreement with the same degree of
care and procedures as Recipient applies to its own confidential or
proprietary information. Without the written consent of the Transmitter,
the Recipient of Proprietary Information agrees (i) not to disclose,
disseminate, reproduce or otherwise distribute such information and
materials to any third party, except a governmental judicial authority's
issued order and (ii) not to use such information for any other purposes
beyond that expressly set forth in this Agreement.
3. All Proprietary Information disclosed under this Agreement shall remain the
property of the Transmitter. It is agreed that the Recipient does not
obtain any title or license rights to the Proprietary Information furnished
under this Agreement.
4. All Proprietary Information exchanged under this Agreement shall be
returned or destroyed in accordance with written instructions upon the
earlier of a written request from the Transmitter or termination of this
Agreement. Either party may terminate this Agreement, at any time, by
providing written notice to the receiving party. Termination of this
Agreement shall not be construed as relieving the Recipient of its
obligations to safeguard, protect and dispose of the Proprietary
Information as set forth in this Agreement.
5. The Recipient's obligations to protect, safeguard and handle Proprietary
Information received hereunder shall not be binding if such Proprietary
Information (i) is in the public domain through no fault of the Recipient,
(ii) is known to the Recipient prior to disclosure hereunder, (iii) is
lawfully disclosed to Recipient by a third party. The Recipient's
obligations shall survive until the Proprietary Information has been
returned, destroyed in accordance with written instructions or covered by a
subsequent agreement between CELERITY and UNISYS for the contemplated
services.
This represents the entire agreement of the parties relative to the subject
matter and shall be governed and construed under the laws of the Commonwealth of
Virginia.
Accepted by:
UNISYS Corporation CELERITY SYSTEMS, INC.
By: /s/ Dennis A. Chaloux By: /s/ William R. Chambers
---------------------------------- ----------------------------
Name: Dennis A. Chaloux Name: William R. Chambers
--------------------------
Title: Sr. Subcontract Administrator Title: Vice President
-------------------------
Date: 6/30/97 Date: 6/26/97
SUBCONTRACT BETWEEN
UNISYS CORPORATION
8008 Westpark Drive
McLean, Virginia 22102
AND
CELERITY SYSTEMS, INC.
9051 Executive Park Drive, Suite 400
Knoxville, Tennessee 37923
SUBCONTRACT NUMBER: 97-IW0324-CELERITY
PRIME CONTRACT NUMBER: 263-96-D-0324
PERIOD OF PERFORMANCE: (Reference Section 2.0)
SUBCONTRACT TYPE: Firm-Fixed-Price (FFP)
Time & Material (T&M)
Purchase Orders
SUBCONTRACT AMOUNT: (Reference Section 1.0)
PAYMENT TERMS: Payment shall be made
upon receipt of proper
invoice, Net (30) days
(Reference Section 13.)
PRIORITY RATING: N/A
SECURITY CLASSIFICATION: None
UNISYS SUBCONTRACT ADMINISTRATOR: Dennis A. Chaloux
TABLE OF CONTENTS
ARTICLE PAGE
1.0 Supplies/Services and Prices..........................................3
2.0 Period of Performance.................................................5
3.0 Packaging Labeling and Shipping.......................................5
4.0 Inspection and Acceptance
5.0 Assignment
6.0 Changes
7.0 Disputes Involving the Government
8.0 Binding Arbitration...................................................6
9.0 Delays
10. Default
11. Notices
12. Invoices/Payments
13. Patent Indemnity......................................................7
14. Risk of Loss
15. Termination
16. Title.................................................................8
17. Warranty
18. Limitation of Liability
19. Compliance With Laws
20. Relationship of the Parties..........................................12
21. Indemnification
22. Limitation of Obligation
23. Release of News Information
24. Non-Waiver Rights
25. Representations and Certifications...................................13
26. Ethical Conduct
27. Severability
28. Applicable State Law
29. Attachments/Exhibits
30. Statement of Work
31. Complete Agreement...................................................14
2
RECITALS
This Agreement is entered into by and between Unisys Corporation,
Federal Systems Division, a Delaware corporation, with its principal offices
located at 8008 Westpark Drive, McLean, Virginia 22102 (hereinafter referred to
as the "BUYER"), and Celerity Systems, Inc. (hereinafter referred to as the
"SELLER") with offices located at 9051 Executive Park Drive, Suite 400,
Knoxville, Tennessee 37923.
WlTNESSETH THAT
In consideration of mutual promises, covenants, and agreements herein
set forth, the Parties agree that the SELLER shall furnish and deliver to the
BUYER all of the supplies, and perform all of the services set forth herein, for
the consideration stated therein. The rights and obligations of the Parties to
this Agreement shall be subject to and governed by the terms of this Agreement
and other documents or specifications attached hereto or Referenced herein.
This Agreement shall not be varied in its terms or conditions by any
oral Agreement or representation, or otherwise than by an instrument in writing,
unless executed by both SELLER and BUYER.
The section titles used herein are for convenience only and shall in no
way be construed as part of this Subcontract or as an indication of the meaning
of the particular section.
1.0 SUPPLIES/SERVICES AND PRICES
SELLER shall provide the necessary personnel and facilities to furnish
the supplies/services as determined by or specified in individual Purchase
Orders issued to the SELLER by the BUYER. All purchase orders shall be issued
pursuant to and in accordance with this Agreement. Prices set forth in this
Agreement include taxes, duties, similar charges and include shipping charges.
All charges for deliveries to the Washington, D.C. Metropolitan Area are
included in the item prices. Transportation charges for deliveries outside the
Washington, D.C., Metropolitan Area will be negotiated on an individual Purchase
Order basis.
Unless otherwise provided in writing by the Subcontract Administrator, the costs
of the following items or activities shall be unallowable as a direct cost:
1. Special rearrangement or alteration of facilities
2. Purchase or lease of any item of general purpose office furniture,
office equipment or FIP equipment regardless of dollar value. (General
purpose equipment is defined as any items of personal property which
are usable for purposes other than research, such as office equipment
and furnishings, pocket calculators, etc.);
3. Travel to attend meetings unless specified in the purchase order
issued by the Unisys Subcontract Administrator
4. Capitalized nonexpendable equipment (defined as having an
acquisition cost of $1,000 or more and a life expectancy of more than
two years).
3
5. Travel Costs unless specified in the specific Purchase Order. When
authorized, expenditures for domestic travel (transportation, lodging,
subsistence, and incidental expenses) incurred in direct performance of the
resultant subcontract shall be subject to the provisions of Section 24 of Public
Law 99-234 which amends the Office of Federal Procurement Policy Act to provide
that Subcontractor costs for travel, including lodging, other subsistence, and
incidental expenses, shall be allowable only to the extent that they do not
exceed the amount allowed for federal employees. The Subcontractor, therefore,
shall invoice and be reimbursed for all Travel costs in accordance with
guidelines published in the Federal Register, Vol. 58, No. 42, Friday March 5,
1993.
6. Postage shall be unallowable unless specifically stated in the
Purchase Order.
7. If appropriate, any and all Other Direct Costs (ODC's) shall be
specified in the individual Purchase Orders.
TRAVEL AND PER DIEM
(a) Outside the Washington, D.C. Metropolitan Area:
Travel by air will be reimbursed at actual not to exceed coach fare.
Travel subsistence reimbursement will be authorized under the rates and
conditions of the Federal Travel Regulations and if applicable, an
Agency's Department Travel Manual. Per Diem will be reimbursed at
actual, not to exceed the Per Diem rates set forth in Federal Property
Management Regulations (FPMR) 41 CFR Chapter 101, Chapter 7, GSA
Bulletin FPMR A-40 Supplement (in effect at time of travel). Travel of
more than 10 hours, but less than 24 hours, when no lodging is
required, Per Diem shall be one-half of the Meals and Incidental
Expenses (M&IE) rate prescribed for the location where the majority of
the time is spent performing official business. The Per Diem allowance
shall not be allowed when the period of official travel is 10 hours or
less during the same calendar day. Travel by privately owned vehicle
will be reimbursed at the current GSA approved mileage rate. If the
Subcontractor incurs travel costs in excess of the amount show in each
Purchase Order, it is at its own expense.
(b) Inside the Washington, D.C. Metropolitan Area:
(1) Travel will be reimbursed based on the policies stated in
paragraph (a) above.
(2) Normal commuting expenses are not allowed.
(c) Travel will be reimbursed on a cost basis only. Any burden added
to the travel costs will be allowed only as defined in the
Subcontractor's standard accounting practice or disclosure statement.
The prices for the supplies/services to be provided by the SELLER are as
follows:
CLIN SUPPLIES/SERVICES QTY. UNIT PRICE NET PRICE
- ---- ----------------- ---- ---------- ---------
**To be determined on an individual Purchase Order Proposal Basis.**
4
2.0 PERIOD OF PERFORMANCE
The term of this Agreement shall be from the date of execution through
14 August 1997. The Agreement term may be extended four (4) additional
twelve-month periods upon the BUYER's prior written notice of each such
twelve-month extension period; provided, however, that this Agreement is not
otherwise terminated pursuant to the Termination clause herein.
3.0 PACKAGING LABELING AND SHIPPING
BUYER shall provide SELLER with packaging, labeling and shipping
instructions with each purchase order issued pursuant to this Agreement. SELLER
agrees to ship products ordered by BUYER in accordance with such instructions.
4.0 INSPECTION AND ACCEPTANCE
SELLER shall only tender for acceptance those items that conform to the
requirements of this Agreement. Unisys reserves the right to inspect or test any
supplies or services that have been tendered for acceptance. Unisys may require
repair or replacement of nonconforming supplies or reperformance of
nonperforming services at no additional cost. Unisys agrees to exercise its post
acceptance rights (1) within a reasonable time after the defect was discovered
or should have been discovered; and (2) before any substantial change occurs in
the condition of the item, unless the change is due to the defect in the item.
The Unisys approving and accepting authority for inspection and acceptance of
CLIN's will be the Program Manager or his designated representative. The Program
Manager's designated representative will be identified on each individual P.O.
issued pursuant to any resulting subcontract agreement.
Unless advised otherwise in individual Purchase Orders, inspection and
acceptance of all CLIN's hereunder shall take place at the Government
installation site. The installation site location shall be set forth in
individual Purchase Orders.
5.0 ASSIGNMENT
SELLER may assign it's rights to be paid amounts due as a result of
performance under this contract, to a bank, trust company or other financing
institution, including any Federal lending agency in accordance with the
Assignment of Claims Act (31 U.S.C. 3727)
6.0 CHANGES
Changes in the terms and condition of this Agreement may be made only
by written agreement of the parties hereto.
7.0 DISPUTES INVOLVING THE GOVERNMENT
This Agreement is subject to the Contract Disputes Act of 1978, as
amended (41 U.S.C. 601-613). Failure of the parties to reach agreement on any
request for equitable adjustment, claim, appeal or action arising under or
relating to this Agreement shall be a dispute to be resolved in accordance with
the clause at FAR 52.233-1 Disputes, which is incorporated herein by reference.
SELLER shall proceed diligently with performance of this Agreement, pending
final resolution of any dispute arising under this Agreement.
5
Any decision on appeal, or any other decision of the Government under the Prime
Contract which cannot be appealed under the "Disputes" clause of the Prime
Contract, if binding on the BUYER shall also bind the SELLER to the extent that
it relates to this Agreement, provided the BUYER shall have promptly notified
the SELLER of such decision and, if requested by SELLER, shall have brought suit
or filed claim, as appropriate against the Government. A final judgment in any
such suit or final disposition of such claim shall be conclusive upon the BUYER
and the SELLER.
For any action brought by the BUYER on behalf of the SELLER pursuant to this
clause, the SELLER agrees to indemnify and hold the BUYER harmless from all
costs and expenses incurred by the BUYER in prosecuting any such appeal
initiated by the BUYER at the Seller's request. All costs and expenses incurred
by the BUYER shall be paid by the SELLER and shall not be reimbursed or
compensable as a cost under the Agreement, unless recovered by the BUYER under
the Prime Contract or as part of an award of damages to the BUYER based on such
a claim.
8.0 BINDING ARBITRATION
Any dispute or controversy between the BUYER and SELLER which concerns
only the BUYER and the SELLER or which does not involve a final decision of the
Government Contracting Officer, and which cannot be resolved by mutual agreement
of the parties hereto, shall be settled by arbitration in accordance with the
commercial rules then in effect of the American Arbitration Association. The
place of such arbitration shall be Washington, D.C. Each party shall select one
arbitrator and the two arbitrators so selected shall select the third
arbitrator. The arbitrators shall be knowledgeable in Government procurement
matters related to the types of supplies and services provided pursuant to this
Agreement. The arbitration decision and award shall be binding on the parties,
and judgment thereon may be entered in any court of competent jurisdiction.
9.0 DELAYS
SELLER shall be liable for default unless nonperformance is caused by
an occurrence beyond the reasonable control of the SELLER and without its fault
or negligence. SELLER shall notify the BUYER in writing as soon as it is
reasonably possible after the commencement of any excusable delay, setting forth
the full particulars in connection therewith, shall remedy such occurrence with
all reasonable dispatch, and shall promptly give written notice to the BUYER of
the cessation of such occurrence.
10. DEFAULT
If either party hereto fails to perform an obligation under this
Agreement, the other party, may issue a default termination letter to the party
in default of an obligation under this Agreement to cure the default condition.
If the default condition is not remedied within ten (10) calendar days from the
day of receipt of such letter, the issuer of the default termination letter may
the without the necessity of any further notice, discontinue performance and
terminate this Agreement for default and pursue any other remedies available at
law or in equity. Any failure to exercise rights under this Article shall not
constitute a waiver of any past, present or future right or remedy.
11. NOTICES
All correspondence or notifications required under this Agreement shall
be addressed as follows:
UNISYS Corporation Celerity Systems, Inc.
6
Attention: Dennis A. Chaloux
8008 Westpark Drive, Mail Stop W5A12
McLean, Virginia 22102
Phone: (703) 556-5578 Fax: (703) 556-5283
Attention: Bill Chambers
9051 Executive Park Drive, Suite 400
Knoxville, Tennessee 37923
Phone: (423) 539-5300 Fax: (423) 539-5390
12. INVOICES/PAYMENTS
SELLER shall submit an original invoice and two (2) copies to:
UNISYS Corporation
Attention: Frederick W. Garner III
8008 Westpark Drive, Mail Stop W5F39
McLean, Virginia 22102
SELLER's invoice must include:
(l) Name and address of the SELLER,
(2) Invoice Date
(3) Prime Contract Number, contract line item number and purchase
order number
(4) Description, quantity, unit of measure, unit price and extended
price of the items delivered.
(5) Shipping number and date of shipment including the bill of lading
number and weight of shipment. Shipping charges shall be itemized
separately.
(6) Terms of any prompt payment discount if offered.
(7) Name and address of official to whom payment is to be sent; and
(8) Name, title and phone number of person to be notified in event of
defective invoice.
SELLER shall submit invoices for payment for the Products and Services
accepted under this Agreement. Invoices for Products and Services may be
submitted after the date of delivery of such Products and/or Services to the
F.O.B. destination site. Upon receipt of a proper invoice, BUYER agrees to pay
SELLER for accepted Products and Services net forty-five (45) days.
13. PATENT INDEMNITY
SELLER agrees to indemnify BUYER, the United States Government and
their respective officers, employees and agents against liability, including
costs, for actual or alleged direct or contributory infringement of, or
inducement to infringe, any United States or foreign patent, trademark or
copyright, arising out of performance under this Agreement.
14. RISK OF LOSS
Unless the Agreement specifically provides otherwise, risk of loss of
damage to the supplies
7
provided hereunder shall remain with the SELLER until, and shall pass to the
BUYER upon; (1) delivery of the supplies to a carrier, if transportation is
f.o.b. origin; or (2) delivery of the supplies to the BUYER at the destination
specified in the Purchase Order, if transportation is f.o.b. destination.
15. TERMINATION
(a ) Insolvency Termination - Unless otherwise waived by BUYER in writing, this
Agreement shall automatically terminate if SELLER(i) becomes insolvent, (ii)
suffers the appointment of receiver or trustee to manage its business
operations, (iii) attempts an assignment or transfer of this Agreement or any
rights conferred under this Agreement without BUYER's consent, (iv) commences
any bankruptcy, reorganization or liquidation action or (v) admits in writing
that it is unable to perform its obligations under this Agreement.
(b ) Government Contract Termination - In the event the Government Agency (i)
terminates the Government Contract, (ii) fails to renew or continue the
Government Contract, (iii) directs or requests that UNISYS remove or cease use
of Government Contract line items that are associated with the products and
services covered by this Agreement or (iv) restructures or changes the
requirements and/or substance of the Government Contract in a manner that serves
to either generally or specifically eliminate the requirement for the products
and services set forth in this Agreement, UNISYS may terminate this Agreement,
in whole or in part with written notice to SELLER. In the event of any such
termination, UNISYS shall not be liable to SELLER beyond payment for products
and services ordered and received by UNISYS or the Government Agency, as
applicable, prior to the effective termination date.
(c.) Ethics Non-Compliance Termination - This Agreement may be terminated by
UNISYS with written notice if SELLER or an affiliated company is determined to
be in violation of federal law, executive order, judicial order or the ethical
provisions of Article 27 (Ethical Conduct) of this Agreement.
(d.) Termination Affects - Termination of this Agreement applies to business
arrangement between SELLER and BUYER whereby covered products and services may
be ordered by BUYER from SELLER. Any termination of this Agreement does not
affect any granted software license rights which shall survive any such
termination.
16. TITLE
Unless specified elsewhere in this Agreement or individual Purchase
Orders issued hereunder, title to items furnished under this Agreement shall
pass to the BUYER upon acceptance, regardless of when or where BUYER takes
physical possession.
17. WARRANTY
SELLER warrants and implies that the items delivered hereunder are
merchantable and fit for use for the particular purpose described in this
Agreement.
18. LIMITATION OF LIABILITY
Except as otherwise provided by an express or implied warranty, SELLER
will not be liable to BUYER for consequential, incidental, special, punitive,
exemplary or similar damages resulting from any defect or deficiencies in
accepted items. In no event shall BUYER be liable to SELLER, or any third party
to this Agreement, for any consequential, incidental, special, punitive, loss of
profit or revenue, exemplary
8
or similar damages incurred or suffered, regardless of any notification of the
possibility of such damages.
19. COMPLIANCE WITH LAWS
SELLER agrees to comply with all applicable Federal, State and local
laws, executive orders, rules and regulations applicable to its performance
under this Agreement. SELLER agrees to comply with the following Federal
Acquisition Regulation clauses, which shall be deemed incorporated by reference:
The following clauses, as amended and modified below, are applicable to this
order/subcontract. Without limiting any other provisions of the
order/subcontract, the clauses are incorporated by reference into this
order/subcontract with the same force and effect as though set forth in full
text. The dates of the clauses incorporated by reference are the same as the
corresponding clause in the prime contract or higher tier subcontract. The
following definitions shall apply to this order/subcontract except as otherwise
specifically provided.
"BUYER" - Means legal entity issuing this Order/Subcontract.
"CONTRACTING OFFICER" - Means Buyer's authorized representative who
signed this Order/Subcontract or is identified elsewhere in this
Order/Subcontract and will mean Contracting Officer, whenever
appropriate, where indicated elsewhere in these terms and conditions.
"CONTRACTOR" - Means Seller.
"SELLER" - Means legal entity which contracts with the Buyer.
"CONTRACT" or "SCHEDULE" - Means this Order Subcontract.
"SUBCONTRACTOR" - Means Seller's subcontractors.
"GOVERNMENT" - Means Buyer and will mean Government, whenever
appropriate, where indicated elsewhere in these terms and conditions.
CLAUSE TITLE
------ -----
52.202-1 DEFINITIONS (OCT 1995)
52.203-3 GRATUITIES (APR 1995)
52.203-5 COVENANT AGAINST CONTINGENT FEE (APR 1984)
52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
GOVERNMENT (JUL 1995)
52.203-7 ANTI-KICKBACK PROCEDURES (JUL 1995)
52.203-10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER
ACTIVITY (SEP 1990)
52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL
TRANSACTIONS
(JAN 1990)
52.203-13 PROCUREMENT INTEGRITY -- SERVICE CONTRACTING
(APR 1984)
52.204-2 SECURITY REQUIREMENTS (APR 1984)
52.209-6 PROTECTING THE GOVERNMENT'S INTEREST WHEN
9
SUBCONTRACTING WITH CONTRACTORS DEBARRED,
SUSPENDED, OR PROPOSED FOR DEBARMENT
(JUL 1995)
52.210-5 NEW MATERIAL (APR 1984)
52.210-7 USED OR RECONDITIONED MATERIAL, RESIDUAL INVENTORY, AND
FORMER GOVERNMENT SURPLUS PROPERTY (APR 1984)
52.212-13 STOP-WORK ORDER (AUG 1989)
52.212-15 GOVERNMENT DELAY (AUG 1984)
52.215-1 EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (FEB 1993)
52.215-2 AUDIT AND RECORDS - NEGOTIATION (OCT 1995)
52.215-22 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA (OCT
1995)
52.215-23 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA -
MODIFICATIONS (DEC 1994)
52.215-24 SUBCONTRACTOR COST OR PRICING DATA (OCT 1995)
52.215-26 INTEGRITY OF UNIT PRICES (OCT 1995)
52.215-27 TERMINATION OF DEFINED BENEFIT PENSION PLANS (MAR 1996)
52.215-31 WAIVER OF FACILITIES CAPITAL COST OF MONEY (SEP 1987)
52.215-33 ORDER OF PRECEDENCE (JAN 1986)
52.215-39 REVERSION OR ADJUSTMENT OF PLANS FOR POST-RETIREMENT
BENEFITS OTHER THAN PENSIONS (MAR 1996)
52.215-40 NOTIFICATION OF OWNERSHIP CHANGES (FEB 1995)
52.215-42 REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION
OTHER THAN COST OR PRICING DATA MODIFICATIONS (OCT 1995)
52.216-22 INDEFINITE QUANTITY (APR 1984)
52.219-8 UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED
SMALL BUSINESS CONCERNS (OCT 1995)
52.219-9 SMALL, SMALL DISADVANTAGED, AND WOMEN-OWNED SMALL
BUSINESS SUBCONTRACTING PLAN (OCT 1995)
52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (APR 1984)
52.222-2 PAYMENT FOR OVERTIME PREMIUMS (APR 1984)
52.222-3 CONVICT LABOR (APR 1984)
52.222-20 WALSH-HEALY PUBLIC CONTRACTS ACT (APR 1984)
52.222-24 PREAWARD ON-SITE EQUAL OPPORTUNITY COMPLIANCE REVIEW (APR
1984) CLAUSE TITLE
CLAUSE TITLE
------ -----
52.222-26 EQUAL OPPORTUNITY (APR 1984)
52.222-28 EQUAL OPPORTUNITY PREAWARD CLEARANCE OF SUBCONTRACTS
(OVER $ 1,000,000) (APR 1984)
52.222-35 AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA
VETERANS (APR 1984)
52.222-36 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)
10
52.222-37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS AND
VETERANS OF THE VIETNAM ERA (JAN 1988)
52.223-2 CLEAN AIR AND WATER (OVER $ 100,000) (APR 1984)
52.223-6 DRUG FREE WORKPLACE (JUL 1990)
52.223-14 TOXIC CHEMICAL RELEASE REPORTING (OCT 1995)
52.225-3 BUY-AMERICAN ACT - SUPPLIES (JAN 1994)
52.225-11 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (MAY 1992)
52.227-1 AUTHORIZATION AND CONSENT (OVER $50,000) (JUL 1995)
52.227-2 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT
INFRINGEMENT (OVER $100,000) (APR 1984)
52.227-3 PATENT INDEMNITY (APR 1984)
52.229-3 FEDERAL, STATE, AND LOCAL TAXES (OVER $ 100,000)
(JAN 1991)
52.229-5 TAXES - CONTRACTS PERFORMED IN U.S. POSSESSIONS OR PUERTO
RICO (APR 1984)
52.232-1 PAYMENTS (APR 1984)
52.232-7 PAYMENTS UNDER TIME-AND-MATERIALS AND LABOR-HOUR
CONTRACTS (APR 1984)
52.232-8 DISCOUNTS FOR PROMPT PAYMENT (APR 1989)
52.232-9 LIMITATION ON WITHHOLDING OF PAYMENTS (APR 1984)
52.232-11 EXTRAS (APR 1984)
52.232-17 INTEREST (OVER $100,000) (JAN 1991)
52.232-25 PROMPT PAYMENT (MAR 1994)
52.232-28 ELECTRONIC FUNDS TRANSFER PAYMENT METHODS (APR 1989)
52.233-1 DISPUTES (OCT 1995)
52.233-3 PROTEST AFTER AWARD (OCT 1995)
52.237-2 PROTECTION OF GOVERNMENT BUILDINGS, EQUIPMENT AND
VEGETATION (APR 1984)
52.242-13 BANKRUPTCY (OVER $100,000) (JUL 1995)
52.243-1 CHANGES - FIXED PRICE (AUG 1987)
52.243-3 CHANGES - TIME-AND-MATERIALS OR LABOR-HOURS (AUG 1987)
52.244-1 SUBCONTRACTS (FIXED PRICE CONTRACTS) (FEB 1995)
52.244-3 SUBCONTRACTS (TIME-AND-MATERIALS AND LABOR-HOUR
CONTRACTS) (APR 1985)
52.245-2 GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS) (DEC 1989)
52.246-2 INSPECTION OF SUPPLIES -- FIXED PRICE (JUL 1985)
52.246-4 INSPECTION OF SERVICES --FIXED PRICE (FEB 1992)
52.246-16 RESPONSIBILITY FOR SUPPLIES (APR 1984)
52.246-25 LIMITATION OF LIABILITY - SERVICES (APR 1984)
S2.247-3S FOB DESTINATION WITHIN CONSIGNEE'S PREMISES (APR 1984)
52.249-2 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT
(FIXED-PRICE) (APR 1984)
52.249-4 TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (SERVICES)
(FIXED-PRICE) (APR 1984)
52.249-8 DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (OVER $100,000)
(APR 1984)
52.253-1 COMPUTER GENERATED FORMS (JAN 1991)
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1-2 DEPARTMENT OF HEALTH AND HUMAN SERVICES ACQUISITION (HSAR) (48 CFR CHAPTER
3) CLAUSES.
CLAUSE TITLE
- ------ -----
352.202-1 DEFINITIONS (APR 1984)
352.232-9 WITHHOLDING OF CONTRACT PAYMENTS (APR 1984)
352.270-4 PRICING OF ADJUSTMENTS (APR 1984)
352.270-6 PUBLICATION AND PUBLICITY (JUL 1991)
352.270-7 PAPERWORK REDUCTION ACT (APR 1984)
20. RELATIONSHIP OF THE PARTIES
The relationship of the parties to this Agreement is that of a prime
contractor and a subcontractor, and nothing herein shall be deemed or construed
to create a joint venture, partnership or agency relationship between the
parties for any purpose. It is further understood that each party is an
independent contractor and as such shall have no authority to bind or commit the
other.
SELLER is expressly prohibited from communicating with Government
personnel with respect to any aspect of the Project under this Agreement without
the prior consent of the BUYER, or as otherwise agreed by the parties. Any
authorized communications between SELLER's personnel and Government personnel
shall be conducted in the presence of the BUYER's Project Manager or other
authorized representative unless otherwise agreed by the parties.
21. INDEMNIFICATION
The employees of SELLER and the BUYER engaged in performance under this
Agreement shall at all times be deemed to be performing as independent
contractors and not as agents or employees of the other and the acts and
omission of such employees shall be deemed to be those of their respective
employers. SELLER shall indemnify and hold harmless the BUYER and its employees
from and against any and all losses, claims, demands, judgments, costs, and
expenses, of every nature and kind, arising out of or incidental to, or in any
way resulting from the acts or omission of SELLER or SELLER's employees while
acting within the scope of their employment.
22. LIMITATION OF OBLIGATION
Nothing contained herein shall be deemed as obligating the BUYER to
order any of the services described herein; however, when and if services are
ordered by BUYER hereunder, such orders shall be subject to the terms and
conditions of this Agreement.
23. RELEASE OF NEWS INFORMATION
In the event the SELLER desires to issue a news release, public
announcement, advertisement, or other form of publicity concerning their efforts
in connection with this Agreement, then the SELLER, shall obtain the written
approval of the BUYER prior to the release of said information and shall give
full consideration to the role and contribution of the BUYER. Written approval
shall not be unreasonably withheld by BUYER and shall be in accordance with the
requirements of the Prime Contract.
24. NON-WAIVER OF RIGHTS
12
The failure of BUYER to insist upon strict performance of the terms and
conditions of this Agreement or to exercise any rights or remedies, shall not be
construed as a waiver of its rights to assert any of same rights or to rely on
any such terms or conditions at any time thereafter.
25. REPRESENTATIONS AND CERTIFICATIONS
All representations and certifications which have been submitted to the
BUYER in connection with the award of this Agreement are incorporated herein and
made a part hereof and such have been relied upon by the BUYER in issuing this
Agreement. SELLER agrees to promptly advise the BUYER should there be any change
in status with respect to the matters covered by such representations and
certifications.
26. ETHICAL CONDUCT
SELLER agrees not to engage in any association, activity, work or
undertaking which constitutes an unethical action, business operation or conduct
in the furtherance of SELLER's production, distribution, marketing and sale of
the products and services covered by this Agreement. SELLER shall promptly
notify BUYER in writing, in the event (i) SELLER, SELLER's parent company or any
company affiliated with SELLER or its parent company is debarred, suspended,
proposed for debarment or suspension, or otherwise excluded from federal
procurement and nonprocurement programs (ii) operation of segregated facilities,
(iii) use of gratuities, kickback arrangements or bribes with federal agencies
or officials or (iv) noncompliance with federal laws, executive orders, judicial
orders or federal regulations concerning affirmative action or equal employment
opportunity.
27. SEVERABILITY
If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be illegal or otherwise unenforceable, the same shall
not invalidate the whole of this Agreement, but such term or provision shall be
deemed modified to the extent necessary in the court's opinion to render such
term or provision enforceable, and the rights and obligations of the parties
shall be construed and enforced accordingly, preserving to the fullest
permissible extent the intent and agreements of the parties herein set forth.
28. APPLICABLE STATE LAW
This Agreement shall be deemed to have been entered into in the
Commonwealth of Virginia, United States of America, and shall for all purposes,
be governed by and construed under the laws thereof regardless of where any
court action or legal proceeding is brought in connection with this Agreement.
29. ATTACHMENTS/EXHIBITS
The exhibits and attachments referred to in this Agreement are
incorporated by reference and made a part of this Agreement. This Agreement and
the exhibits and attachments hereto set forth the entire agreement between the
parties.
Attachment A- Special Subcontract Flow-Down Provisions
Attachment B - Representations and Certifications
13
30. STATEMENT OF WORK
SELLER shall provide the necessary personnel, material and facilities
to deliver to the BUYER the supplies and services set forth in each Purchase
Order. The individual Purchase Order(s) shall have a Statement of Work
(Attachment C) which will give the SELLER guidance to the scope of work where
support is being requested. SELLER services shall be ordered pursuant to
Purchase Order(s) issued by the BUYER, and all such services shall be performed
in accordance with the specific terms and conditions of each Purchase Order.
A. Work will be performed under this Subcontract only in
pursuance of written Purchase Orders approved by the BUYER's
Subcontract Administrator.
B. SELLER's proposed pricing shall be in accordance with
Sections B, D, and G of this subcontract. The agreement of
the parties as to the labor mix to be used and other
allowable direct costs shall also be incorporated into the
Purchase Order.
C. If the SELLER disputes the Purchase Order as issued, it
shall notify the BUYER's Subcontract Administrator in
writing within five (5) working days. Notwithstanding this
notification, me SELLER shall commence work, without delay,
to provide the services and deliverables as ordered.
31. COMPLETE AGREEMENT
This Agreement contains the entire agreement between the parties hereto
with respect to the matters covered herein. No other agreements,
representations, warranties or other matters, oral or written, shall be deemed
to bind the parties hereto with respect to the subject matter hereof. Any
changes or amendments to this Agreement may be made only in writing and signed
by the parties to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
officers "hereunto duly authorized as of the date first written above.
UNISYS CORPORATION CELERITY SYSTEMS, INC.
BY: BY:
--------------------------------- -----------------------------
TYPED NAME: Dennis A. Chaloux TYPED NAME: William Chambers
TITLE: Sr. Subcontract Administrator TITLE: Vice President
Business Development
DATE: DATE:
------------------------------- ---------------------------
14
ATTACHMENT A
H.1 ORDERING PROVISION
The following ordering procedures shall apply to all Purchase Orders issued
under any resultant Subcontract. Any supplies and/or services to be furnished
under any resulting Subcontract will be ordered by issuance of a written
Purchase Order. Purchase Orders shall be issued in accordance with the terms and
conditions of the Subcontract Agreement.
H.2 PROCUREMENT INTEGRITY - SPECIAL PROVISIONS ON EACH PURCHASE ORDER
All Subcontractor personnel who will be personally and substantially involved in
the performance of any Purchase Order issued under this contract which requires
the Subcontractor to act on behalf of, or provide advice with respect to any
phase of an agency procurement, as defined in FAR 3.104-4, shall execute and
submit a "Employee/Contractor Non-Disclosure Agreement" Form (See Attachment in
Section J). This is required prior to the commencement of any work on such
Purchase Order and whenever replacement personnel are proposed under an ongoing
Purchase Order.
H.3 OBSERVANCE OF LEGAL HOLIDAYS AND EXCUSED ABSENCE
The Government observes the following listed days as holidays:
New Years Day
Martin Luther King's Birthday
President's Day
Memorial Day
Independence Day
Labor Day
Columbus Day
Veteran's Day
Thanksgiving Day
Christmas
In addition to the days designated as holidays, the Government observes the
following days:
Any other day designated by Federal Statute
Any other day designated by Executive Order
Any other day designated by the President's Proclamation
It is understood and agreed between the parties that the observance of such days
by Government personnel shall not be a reason for an additional period of
performance, or entitlement of compensation except as set forth within the
Subcontract Agreement. No form of holiday or other premium compensation will be
reimbursed either as a direct or indirect cost, other than normal compensation
for time worked.
H.4 INSURANCE
The Subcontractor shall secure, pay the premiums for and keep in force until the
expiration of the
15
resulting Subcontract, and any renewal thereof, adequate insurance as provided
below, such insurance to specifically include liability assumed by the
Subcontractor under this contract.
a. Workman's Compensation insurance as required by law of the
State.
b. Comprehensive bodily injury liability insurance with limits of
not less than $500,000 for each accident
c. Property damage liability with a limit of not less than
$100,000 for each accident.
d. Automotive bodily injury liability insurance with limits of
not less than $200,000 for each person and $500,000 for each
accident, and property damage liability insurance, with a limit
of not less than $40,000 for each accident.
Each policy of insurance shall contain an endorsement that any cancellation or
material change in the coverage adversely affecting the Government's interest
shall not be effective unless the insurer or the Subcontractor gives written
notice of cancellation or change, as required by the Subcontract Administrator.
When the coverage is provided by self-insurance, the Subcontractor shall not
change or decrease the coverage without the Subcontract Administrator's prior
approval.
A certificate of each policy of insurance shall be furnished to the Subcontract
Administrator within ten (10) days after notice of award certifying, among other
things, that the policy contains the aforementioned endorsement. The insurance
company providing the above insurance shall be satisfactory to the Government.
Notice of policy changes shall be furnished to the Subcontract Administrator.
The substance of this clause shall be made to flow down to any lower tier
subcontractors.
H.5 IDENTIFICATION OF CONTRACTOR EMPLOYEES
During the period of any resulting subcontract, the rights of ingress
and egress to and from any office for subcontractor representatives shall be
made available as required. All Subcontractor employees whose duties under the
resulting subcontract requires their presence at any Government facility shall
be clearly identifiable by a distinctive badge furnished by the Government. In
addition, corporate identification badges will be worn on the outer garment at
all times. The obtaining of the corporate identification badge is the sole
responsibility of the subcontractor. All prescribed information shall
immediately be delivered to the Government Security Office for cancellation or
disposition upon the termination of the employment of any subcontractor
personnel. All on-site subcontractor personnel shall abide by security
regulations, applicable to that site.
H.6 GOVERNMENT FURNISHED ITEMS
All Government furnished items will be identified in the appropriate
Purchase Order. If any given Purchase Order issued under this contract requires
work to be performed on the Government's site, the Government will provide
office work space, office automation equipment and furniture for Subcontractor
personnel.
H.7 NON-PERSONAL SERVICES
16
(a) As stated in the Federal Register, Volume 57, No. 190, page 45096,
dated September 30, 1992, Policy Letter on Inherently Governmental Functions, no
personal services shall be performed under this contract. No Subcontractor
employee will be directly supervised by the Government. All individual employee
assignments, and daily work direction, shall be given by the applicable employee
supervisor. If the Subcontractor believes any Government action or communication
has been given that would create a personal services relationship between the
Government and any Subcontractor employee, the Subcontractor shall promptly
notify the Subcontract Administrator of this communication or action.
(b) The Subcontractor shall not perform any inherently Governmental
actions under this subcontract. No Subcontractor employee shall hold him or
herself out to be a Government employee, agent, or representative. No
Subcontractor employee shall state orally or in writing at any time that he or
she is acting on behalf of the Government. In all communications with third
parties in connection with this subcontract, Subcontractor employees shall
identify themselves as Subcontractor employees and specify the name of the
company for which they work.
(c) The Subcontractor shall insure that all of its employees working on
this subcontract are informed of the substance of this clause. Nothing in this
clause shall limit Unisys' rights in any way under any other provision of the
Subcontract, including those related to Unisys' right to inspect and accept the
services to be performed under this subcontract. The substance of this clause
shall be included in all subcontracts at any tier.
H.8 ORGANIZATIONAL CONFLICTS OF INTEREST
(a) The Subcontractor warrants that, to the best of the Subcontractor's
knowledge and belief, there are no relevant facts or circumstances which could
give rise to an organizational conflict of interest (OCI), as defined in FAR
9.5, Organizational and Consultants Conflicts of Interest, or that the
Subcontractor has disclosed all such relevant information.
(b) The Subcontractor agrees that if an actual or potential OCI is
discovered after award, the Subcontractor shall make a full disclosure in
writing to the Subcontract Administrator. This disclosure shall include a
description of actions which the Subcontractor has taken or proposes to take,
after consultation with the Subcontract Administrator, to avoid, mitigate, or
neutralize the actual or potential conflict.
(c) The Subcontract Administrator may terminate this contract for
convenience, in whole or in part, if it deems such termination necessary to
avoid OCI. If the Subcontractor was aware of a potential OCI prior to award or
discovered an actual or potential conflict after award and did not disclose or
misrepresented relevant information to the Subcontract Administrator, Unisys may
terminate the contract for default, advise the Government Contract Office, or
pursue other remedies as may be permitted by law or this contract.
(d) The Subcontractor shall include this clause in all subcontracts
and in lower tier subcontracts unless a waiver is requested from, and
granted by, the Subcontract Administrator.
(e) In the event that a Purchase Order is issued to the Subcontractor
that would require activity that would create a potential conflict of
interest, the Subcontractor shall:
(1) Notify the Subcontract Administrator of a potential conflict,
and;
17
(2) Recommend to the Subcontract Administrator an alternate
tasking approach which would avoid the potential conflict, or
(3) Present for approval a conflict of interest mitigation plan
that will:
18
(a) Describe in detail the Purchase Order requirement that
creates the potential conflict of interest; and
(b) Outline in detail the actions to be taken by the
Subcontractor or Unisys in the performance of the task to
mitigate the conflict, division of subcontractor effort, and
limited access to information, or other acceptable means.
(4) The Subcontractor shall not commence work on a Purchase Order
related to a potential conflict of interest until specifically
notified by the Subcontract Administrator to proceed.
(5) If the Subcontract Administrator determines that it is in the
best interest of the Government to issue a Purchase Order,
notwithstanding a conflict of interest, a request for waiver
shall be submitted in accordance with FAR 9.503.
19
ATTACHMENT B
REPRESENTATIONS AND CERTIFICATIONS
TAXPAYER IDENTIFICATION
(FAR 52.204-3) (MAR 1994)
(a) Definitions.
"Common parent" as used in this solicitation provision, means that
corporate entity that owns or controls an affiliated group of corporations that
files its Federal income tax returns on a consolidated basis, and of which the
offeror is a member.
"Corporate status" as used in this solicitation provision, means a
designation as to whether the offeror is a corporate entity, an unincorporated
entity (e.g., sole proprietorship or partnership), or a corporation providing
medical and health care services.
"Taxpayer Identification Number (TIN)" as used in this solicitation
provision, means the number required by the IRS to be used by the offeror in
reporting income tax and other returns.
(b) All offerors are required to submit the information required in
paragraphs (c) through (e) of this solicitation provision in order to comply
with reporting requirements of 26 U.S.C. 6041, 6041A, and 6050M and implementing
regulations issued by the Internal Revenue Service (IRS). If the resulting
contract is subject to reporting requirements described in 4.903, the failure or
refusal by the offeror to furnish the information may result in a 31 percent
reduction of payments otherwise due under the contract.
(c) Taxpayer Identification Number (TIN).
(/) [TIN: 101556194
( ) TIN has been applied for.
( ) TIN is not required because:
( ) Offeror is a nonresident alien, foreign corporation, or
foreign partnership that does not have income
effectively connected with the conduct of a trade or
business in the U.S. and does not have an office or
place of business or a fiscal paying agent in the U.S.;
( ) Offeror is an agency or instrumentality of a foreign
government;
( ) Offeror is an agency or instrumentality of a Federal,
state, or local government;
( ) Other. State basis. ______________________________.
(d) Corporate Status.
( ) Corporation providing medical and health care services,
or engaged in the billing and collecting of payments
for such services;
(?) Other corporate entity;
( ) Not a corporate entity;
( ) Sole proprietorship
20
( ) Partnership
( ) Hospital or extended care facility described in 26 CFR
501(c)(3) that is exempt from taxation under 26 CFR 501
(a).
(e) Common Parent.
(/) Offeror is not owned or controlled by a common parent
as defined in paragraph (a) of this clause.
( ) Name and TIN of common parent:
Name
TIN_________________________________
Offerors must complete the following representations when the resulting contract
is to be performed inside the United States its territories or possessions
Puerto Rico, the Trust Territory of the Pacific Islands or the District of
Columbia.
SMALL BUSINESS CONCERN REPRESENTATION
(FAR 52.219-1 ) (FEB 1990)
(a) Representation. The offeror represents and certifies as part of its
offer that it (/) is, ( ) is not a small business concern and that (/) all, ( )
not all end items to be furnished will be manufactured or produced by a small
business concern in the United States, its territories or possessions, Puerto
Rico, or the Trust Territory of the Pacific Islands.
(b) Definition.
Small business concern, as used in this provision, means a concern,
including its affiliates, that is independently owned and operated, not dominant
in the field of operation in which it is bidding on Government contracts, and
qualified as a small business under the criteria and size standards in this
solicitation.
(c) Notice. Under 15 U.S.C. 645(d), any person who misrepresents a
firm's status as a small business concern in paragraph (a) of this clause in
order to obtain a contract to be awarded under the preference programs
established pursuant to sections 8(a), 8(d), 9, or 15 of the Small Business Act
or any other provision of Federal law that specifically references section 8(d)
for a definition of program eligibility, shall (1) be punished by imposition of
a fine, imprisonment, or both (2) be subject to administrative remedies; and (3)
be ineligible for participation in programs conducted under the authority of the
Act.
SMALL DISADVANTAGED BUSINESS CONCERN
REPRESENTATION (FAR 52.219-2) (FEB 1990)
(a) Representation. The offeror represents that it ( ) is, (/) is not a
small disadvantaged business concern.
(b) Definitions.
Asian Pacific Americans, as used in this provision, means United States
citizens whose origins are in Japan, China, the Philippines, Vietnam, Korea,
Samoa, Guam, the U.S. Trust Territory of the
21
Pacific Islands (Republic of Palau), the Northern Mariana Islands, Laos,
Kampuchea (Cambodia), Taiwan, Burma, Thailand, Malaysia, Indonesia, Singapore,
Brunei, Republic of the Marshal Islands, or the Federated States of Micronesia.
Indian tribe, as used in this provision, means any Indian tribe, band,
nation, or other organized group or community of Indians, including any Alaska
Native Corporation as defined in 13 CFR 124.1000 which is recognized as such by
the State in which such tribe, band, nation, group or community resides.
Native Americans, as used in this provision, means American Indians,
Eskimos, Aleuts, and native Hawaiians.
Native Hawaiian Organization, as used in this provision, means any
community service organization serving Native Hawaiians in, and chartered as a
not-for-profit organization by, the State of Hawaii, which is controlled by
Native Hawaiians, and whose business activities will principally benefit such
Native Hawaiians.
Small business concern, as used in this provision, means a concern,
including its affiliates, that is independently owned and operated, not dominant
in the field of operation in which it is bidding on Government contracts, and
qualified as a small business under the criteria and size standards in 13 CFR
part 121.
Small disadvantaged business concern, as used in this provision, means
a small business concern that (a) is at least 51 percent owned by one or more
individuals who are both socially and economically disadvantaged, or a publicly
owned business having at least 51 percent of its stock unconditionally owned by
one or more socially and economically disadvantaged individuals and (b) has its
management and daily business controlled by one or more such individuals. This
term also means a small business concern that is at least 51 percent
unconditionally owned by an economically disadvantaged Indian tribe or Native
Hawaiian Organization, or a publicly owned business having at least 51 percent
of its stock unconditionally owned by one of these entities which has its
management and daily business controlled by members of an economically
disadvantaged Indian tribe or Native Hawaiian Organization, and which meets the
requirements of 13 CFR part 124.
Subcontinent Asian Americans, as used in this provision, means United
States citizens whose origins are in India, Pakistan, Bangladesh, Sri Lanka,
Bhutan, or Nepal.
(c) Qualified groups. The offeror shall presume that socially and
economically disadvantaged individuals include Black Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian
Americans, and other individuals found to be qualified by SBA under 13 CFR 124.
The offeror shall presume that socially and economically disadvantaged entities
also include Indian tribes and Native Hawaiian Organizations.
WOMEN-OWNED SMALL BUSINESS REPRESENTATION
(FAR 52.219-3) (APR 1984)
(a) Representation. The offeror represents that it ( ) is, (/) is not a
women-owned small business concern.
(b) Definitions.
22
"Small business concern", as used in this provision, means a concern,
including its affiliates, that is independently owned and operated, not dominate
in the field of operation in which it is bidding on Government contracts, and
qualified as a small business under the criteria and size standards in 13 CFR
121.
"Women-owned", as used in this provision, means a small business that
is at least 51 percent owned by a woman or women who are U.S. citizens and who
also control and operate the business.
WOMEN-OWNED BUSINESS
(FAR 52.204-5) (OCT 1995)
(SOLICITATIONS ANTICIPATED TO EXCEED $100,000)
As prescribed in FAR 4.603(b): /
(a) Representation. The offeror represents that it ( ) is, (/); not a
women-owned business concern.
(b) Definition. Women-owned business concern, as used in this provision
means a concern which is at least 51 percent owned by one or more women; or in
the case of any publicly owned business at least 51 percent of the stock of
which is owned by one or more women; whose management and daily business
operations are controlled by one or more women.
The following certifications and representations are required to implement
provisions of Executive Order 11246 and must be completed by all Offerors.
CERTIFICATION OF NONSEGREGATED FACILITIES
(FAR 52.222-21) (APR 1984)
(a) Segregated facilities, as used in this provision, means any waiting
rooms, work areas, rest rooms and wash rooms, restaurants and other eating
areas, time clocks, locker rooms and other storage or dressing areas, parking
lots, drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees, that are segregated by explicit
directive or are in fact segregated on the basis of race, color, religion, or
national origin because of habit, local custom, or otherwise.
(b) By the submission of this offer, the offeror certifies that it does
not and will not maintain or provide for its employees any segregated facilities
at any of its establishments, and that it does not and will not permit its
employees to perform their services at any location under its control where
segregated facilities are maintained. The offeror agrees that a breach of this
certification is a violation of the Equal Opportunity clause in the contract.
(c) The offeror further agrees that (except where it has obtained
identical certifications from proposed subcontractors for specific time periods)
it will--
(1 ) Obtain identical certifications from proposed subcontractors
before the award of subcontracts under which the subcontractor will be subject
to the Equal Opportunity clause:
(2) Retain the certifications in the files; and
(3) Forward the following notice to the proposed subcontractors
(except if the
23
proposed subcontractors have submitted identical certifications for specific
time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR
CERTIFICATIONS OF NONSEGREGATED FACILITIES
A Certification of Nonsegregated Facilities must be submitted before
the award of a subcontract under which the subcontractor will be subject to the
Equal Opportunity clause. The certification may be submitted either for each
subcontract or for all subcontracts during a period (i.e., quarterly,
semiannually, or annually). NOTE: The penalty for making false statements in
offers is prescribed in 18 U.S.C. 1001.
PREVIOUS CONTRACTS AND COMPLIANCE REPORTS
(FAR 52.222-22) (APR 1984)
The offeror represents that--
(a) It ( ) has, (/) has not participated in a previous contract or
subcontract subject either to the Equal Opportunity clause of this solicitation,
the clause originally contained in Section 310 of Executive Order No. 10925, or
the clause contained in Section 201 of Executive Order No. 11114;
(b) It ( ) has, (/) has not filed all required compliance reports; and
(c) Representations indicating submission of required compliance
reports, signed by proposed subcontractors, will be obtained before subcontract
awards.
AFFIRMATIVE ACTION COMPLIANCE
(FAR 52.222-25) (APR 1984)
The offeror represents that--
(a) It ( ) has developed and has on file, (/) has not developed and
does not have on file, at each establishment, affirmative action programs
required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and
60-2), or
(b) It (/) has not previously had contracts subject to the written
affirmative action programs requirement of the rules and regulations of the
Secretary of Labor.
CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL
TRANSACTIONS (FAR 52.203.11 )(JAN 1990) (SOLICITATIONS EXPECTED TO EXCEED
$100,000)
(a) The definitions and prohibitions contained in the clause, at FAR
52.203-12, Limitation on Payments to Influence Certain Federal Transactions,
included in this solicitation, are hereby incorporated by reference in paragraph
(b) of this certification.
(b) The offeror, by signing its offer, hereby certifies to the best of
his or her knowledge and belief as of December 12, 1989, that--
24
(1) No Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress on his or her behalf in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment or modification of any Federal
contract, grant, loan, or cooperative agreement;
(2) If any funds other than Federal appropriated funds (including
profit or fee received under a covered Federal transaction) have been paid, or
will be paid, to any person for influencing or attempting to influence an
officer or employee of any agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress on his or her behalf in
connection with this solicitation, the offeror shall complete and submit, with
its offer, OMB standard form LLL, Disclosure of Lobbying Activities. to the
Contracting Officer; and
(3) He or she will include the language of this certification in
all subcontract awards at any tier and require that all recipients of
subcontract awards in excess of $100,000 shall certify and disclose accordingly.
(c) Submission of this certification and disclosure is a prerequisite
for making or entering into this contract imposed by section 1352, title 31,
United States Code. Any person who makes an expenditure prohibited under this
provision or who fails to file or amend the disclosure form to be filed or
amended by this provision, shall be subject to a civil penalty of not less than
$10,000, and not more than $100,000, for each such failure.
BUY AMERICAN ACT-TRADE AGREEMENTS-BALANCE OF PAYMENTS PROGRAM CERTIFICATE
(52.225-8) (JAN 1994)
As prescribed in FAR 25.408(a)(1)
(a) The offeror hereby certifies that each end product, except those
listed in paragraph (b) of this provision, is a domestic end product (as defined
in the clause entitled "Buy American Act" - Trade Agreements Balance of Payments
Program) and that components of unknown origin have been mined, produced, or
manufactured outside the United States, a designated country, a North American
Free Trade Agreement (NAFTA) Country, or a Caribbean Basin country, as defined
in section 25.401 of the Federal Acquisition Regulation.
(b) Excluded End Products:
Line Item Number Country of Origin
___________________________________________________
___________________________________________________
___________________________________________________
(List as necessary)
(c) Offers will be evaluated by giving certain preferences to domestic
end products, designated country end products, NAFTA country end products, and
Caribbean Basin country end products over other end products. In order to obtain
these preferences in the evaluation of each excluded end product
25
listed in paragraph (b) of this provision, offerors must identify and certify
below those excluded end products that are designated or NAFTA country end
products, or Caribbean Basin country end products. Products that are not
identified and certified below will not be deemed designated country end
products, NAFTA country end products, or Caribbean Basin country end products.
Offerors must certify by inserting the applicable line item numbers in the
following:
(1) The offeror certifies that the following supplies qualify as
"designated or NAFTA country end products" as those terms are defined in the
clause entitled "Buy American Act - Trade Agreements Act - Balance of Payments
Program":
_______________________________________________
(Insert Line item numbers)
(2) The offeror certifies that the following supplies qualify as
"Caribbean Basin country end products" as that term is defined in the clause
entitled "Buy American Act -Trade Agreements - Balance of Payments Program":
_______________________________________________
(Insert Line item numbers)
(d) Offers will be evaluated in accordance with Part 25 of the Federal
Acquisition Regulation.
BUY AMERICAN ACT-NORTH-AMERICAN FREE TRADE AGREEMENT IMPLEMENTATION ACT-BALANCE
OF PAYMENTS PROGRAM CERTIFICATE
(52.225-20) (JAN 1997)
(a) The offeror certifies that each end product, except those listed in
paragraph (g)(2) of this provision, is a domestic end product (as defined in the
clause entitled "Buy American Act-North American Free Trade Agreement
Implementation Act-Balance of Payments Program") and that components of unknown
origin have been considered to have been mined, produced, or manufactured
outside the United States.
(b) Excluded End Products:
_______________________________________________
Line Item No. Country of Origin
_______________________________________________
(List as necessary)
_______________________________________________
(c) Offers will be evaluated by giving certain preferences to domestic end
products or NAFTA country end products over other end products. In order to
obtain these preferences in the evaluation of each excluded end product listed
in paragraph (b) of this provision, offerors must identify and certify below
those excluded end products that are NAFTA country end products. Products that
are not
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identified and certified below will not be deemed NAFTA country end products.
The offeror certifies that the following supplies qualify as "NAFTA country end
products" as that term is defined in the clause entitled "Buy American Act-North
American Free Trade Agreement Implementation Act-Balance of Payments Program."
_______________________________________________
Line Item No.-- Country of Origin
_______________________________________________
(List as necessary)
(d) Offers will be evaluated in accordance with Part 25 of the Federal
Acquisition Regulations.
(End of provision)
The following certification and representations is required to implement
provisions of Executive Order 12549 and must be completed by all Offerors.
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER
RESPONSIBILITY MATTERS (FAR 52.209-5) (MAY 1989)
(a) (1) The Offeror certifies, to the best of its knowledge and
belief, that-
(i) The offeror and/or any of its Principals --
(A) Are ( ) are not (/) presently debarred,
suspended, proposed for debarment, or declared ineligible for the award of
contracts by any Federal agency;
(B) Have ( ) have not (/) within a 3-year period
preceding this offer, been convicted of or had a civil judgment rendered against
them for: commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, state, or
local) contract or subcontract; violation of Federal or state antitrust statutes
relating to the submission of offers; or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property; and
(C) Are ( ) are not (/) presently indicted for, or
otherwise criminally or civilly charged by a governmental entity with,
commission of any of the offenses enumerated in subdivision (A)(1)(i)(B) of this
provision.
(ii) The Offeror has ( ) has not (/) within a 3-year period
preceding this offer, had one or more contracts terminated for default by any
Federal agency.
(2) "Principals", for the purposes of this certification, means
officers; directors; owners, partners; and, persons having primary management or
supervisory responsibilities within a business entity (e.g., general manager;
plant manager; head of a subsidiary, division or business segment, and similar
positions).
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THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN
AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT
CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER SECTION 1001,
TITLE 18, UNITED STATES CODE.
(b) The Offeror shall provide immediate written notice to the
Contracting Officer if, at any time prior to contract award, the Offeror learns
that its certification was erroneous when submitted or has become erroneous by
reasons of changed circumstances.
(c) A certification that any of the items in paragraph (a) of this
provision exists will not necessarily result in withholding of an award under
this solicitation. However, the certification will be considered in connection
with a determination of the Offeror's responsibility. Failure of the Offeror to
furnish a certification or provide such additional information as requested by
the Contracting Officer may render the Offeror nonresponsible.
(d) Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render, in good faith, the
certification required by paragraph (a) of this provision. The knowledge and
information of an Offeror is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
(e) The certification in paragraph (a) of this provision is a material
representation of fact upon which reliance was placed when making award. If it
is later determined that the Offeror knowingly rendered an erroneous
certification, in addition to other remedies available to the Government, the
Contracting Officer may terminate the contract resulting from this solicitation
for default.
CERTIFICATION:
The undersigned certifies under penalty of law that the information provided
above to the best of his/her knowledge is true and correct. I have executed this
certification as of the day and year stated below.
- ---------------------------------------
Signature of authorized representative
William Chambers
- ---------------------------------------
Typed name of authorized representative
Vice President Business Development
- ---------------------------------------
Title of authorized representative
6/26/97
- ----------------------------------------
Date
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