AFFARS LIBRARY | ||||
PART 5352 [Revised June 15, 2006] |
SUBPART 5352.2 — TEXT OF PROVISIONS AND CLAUSES
5352.201-9101 Ombudsman.
As prescribed in 5301.9103, insert the following clause:
OMBUDSMAN (AUG 2005)
(a) An ombudsman has been appointed to hear and facilitate the resolution of concerns from offerors, potential offerors, and others for this acquisition. When requested, the ombudsman will maintain strict confidentiality as to the source of the concern. The existence of the ombudsman does not affect the authority of the program manager, contracting officer, or source selection official. Further, the ombudsman does not participate in the evaluation of proposals, the source selection process, or the adjudication of protests or formal contract disputes. The ombudsman may refer the party to another official who can resolve the concern.
(b) Before consulting with an ombudsman, interested parties must first address their concerns, issues, disagreements, and/or recommendations to the contracting officer for resolution. Consulting an ombudsman does not alter or postpone the timelines for any other processes (e.g., agency level bid protests, GAO bid protests, requests for debriefings, employee-employer actions, contests of OMB Circular A-76 competition performance decisions).
(c) If resolution cannot be made by the contracting officer, concerned parties may contact the Center/MAJCOM ombudsmen, [Insert names, addresses, telephone numbers, facsimile numbers, and e-mail addresses]. Concerns, issues, disagreements, and recommendations that cannot be resolved at the MAJCOM/DRU level, may be brought by the concerned party for further consideration to the Air Force ombudsman, Associate Deputy Assistant Secretary (ADAS) (Contracting), SAF/AQC, 1060 Air Force Pentagon, Washington DC 20330-1060, phone number (703) 588-7004, facsimile number (703) 588-1067.
(d) The ombudsman has no authority to render a decision that binds the agency.
(e) Do not contact the ombudsman to request copies of the solicitation, verify offer due date, or clarify technical requirements. Such inquiries shall be directed to the Contracting Officer.
(End of clause)
5352.204-9000 Notification of Government security activity and visitor group security agreements.
As prescribed in 5304.404-90, insert the following clause in solicitations and contracts:
NOTIFICATION OF GOVERNMENT SECURITY ACTIVITY AND VISITOR GROUP SECURITY AGREEMENTS (APR 2003)
This contract contains a DD Form 254, DOD Contract Security Classification Specification, and requires performance at a government location in the U.S. or overseas. Prior to beginning operations involving classified information on an installation identified on the DD Form 254, the contractor shall take the following actions:
(a) At least thirty days prior to beginning operations, notify the security police activity shown in the distribution block of the DD Form 254 as to:
(1) The name, address, and telephone number of this contract company’s representative and designated alternate in the U.S. or overseas area, as appropriate;
(2) The contract number and military contracting command;
(3) The highest classification category of defense information to which contractor employees will have access;
(4) The Air Force installations in the U.S. (in overseas areas, identify only the APO number(s)) where the contract work will be performed;
(5) The date contractor operations will begin on base in the U.S. or in the overseas area;
(6) The estimated completion date of operations on base in the U.S. or in the overseas area; and,
(7) Any changes to information previously provided under this clause.
This requirement is in addition to visit request procedures contained in DOD 5220.22-M, National Industrial Security Program Operating Manual.
(b) Prior to beginning operations involving classified information on an installation identified on the DD Form 254 where the contractor is not required to have a facility security clearance, the contractor shall enter into a Visitor Group Security Agreement (or understanding) with the installation commander to ensure that the contractor’s security procedures are properly integrated with those of the installation. As a minimum, the agreement shall identify the security actions that will be performed:
(1) By the installation for the contractor, such as providing storage and classified reproduction facilities, guard services, security forms, security inspections under DOD 5220.22-M, classified mail services, security badges, visitor control, and investigating security incidents; and
(2) Jointly by the contractor and the installation, such as packaging and addressing classified transmittals, security checks, internal security controls, and implementing emergency procedures to protect classified material.
(End of clause)
5352.215-9000 Facility clearance.
As prescribed in 5315.209, insert in Section L a provision substantially the same as the following provision:
FACILITY CLEARANCE (MAY 1996)
The offeror must possess, or acquire prior to award of a contract, a facility clearance equal to the highest classification stated on the Contract Security Classification Specification (DD Form 254) attached to this solicitation.
(End of provision)
5352.215-9001 Notice of pre-bid/pre-proposal conference.
As prescribed in 5315.209, insert a provision substantially the same as the following provision:
NOTICE OF PRE-BID/PRE-PROPOSAL CONFERENCE (MAY 1996)
(a) A pre-bid/pre-proposal conference will be conducted at [insert location including full address] on [insert date] at [insert time] for the purpose of answering questions regarding this solicitation.
(b) Submit the names of all attendees (not to exceed [insert number of attendees]) to [insert point of contact name, address, and phone number] prior to [insert date]. This information must be provided in advance in order to ensure access to the military base/conference site and adequate seating for the conference attendees.
(c) Bidders/Offerors are requested to submit questions to the point of contact noted above not later than [insert time and date]. Information provided at this conference shall not qualify the terms and conditions of the solicitation and specifications. Terms of the solicitation and specifications remain unchanged unless the solicitation is amended in writing. If an amendment is issued, normal procedures relating to the acknowledgment and receipt of solicitation amendments shall apply.
(d) A record of the conference shall be made and furnished to all prospective bidders/offerors. The record should include minutes of the meeting, including questions (on a non-attribution basis) and answers.
(End of provision)
ALTERNATE I (MAY 1996). If access to classified documents is contemplated, the contracting officer may add substantially the same as the following paragraphs (e) and (f) to the basic provision:
(e) To receive classified documents the recipient must have a security clearance of at least [insert classification] and authorization to act as courier. Security clearance and courier authorization must be on file at the following mailing address:
[insert address of organization responsible for this information]
(f) This conference is [insert classification].
5352.216-9000 Awarding orders under multiple award contracts.
As prescribed in 5316.506, insert a clause substantially the same as the following clause in solicitations and contracts:
AWARDING ORDERS UNDER MULTIPLE AWARD CONTRACTS (AUG 2005)
(a) All multiple award contractors shall be provided a fair opportunity to be considered for each order in excess of $2,500 pursuant to the procedures established in this clause, unless the contracting officer determines that:
(1) The agency’s need for the services or supplies is of such urgency that providing such opportunity to all such contractors would result in unacceptable delays;
(2) Only one such contractor is capable of providing the services or supplies at the level of quality required because the services or supplies ordered are unique or highly specialized;
(3) The task or delivery order should be issued on a sole source basis in the interest of economy or efficiency because it is a logical follow-on to an order already issued under the contract, provided that all awardees were given a fair opportunity pursuant to the procedures in this clause to be considered for the original order; or
(4) It is necessary to place an order to satisfy a minimum guarantee.
(b) Unless the procedures in paragraph (a) are used for awarding individual orders, multiple award contractors will be provided a fair opportunity to be considered for each order using the following procedures:
[insert Alternate I, Alternate II, or both, as applicable]
(c) Under the provisions of the Federal Acquisition Streamlining Act of 1994, 10 U.S.C. 2304c (Public Law 103-355), a protest is not authorized in connection with the issuance or proposed issuance of an individual task or delivery order except for a protest on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued.
(d) This clause does not guarantee the contractor issuance of any task order or delivery order above the minimum guarantee(s) stated in [identify clause that stipulates minimum guarantee(s)] of this contract.
ALTERNATE I (JUN 2002). When the task or delivery order contract is for services or supplies where the description, delivery, and price are pre-established such that contact with the contractors is not required and the only decision is the order quantities, insert the following paragraph (b), substantially as written, into paragraph (b) of the basic clause:
Orders will use the pre-established descriptions, prices, and schedule information, in conjunction with past performance on previous orders awarded under this contract, to determine the appropriate contractor to receive each order.
ALTERNATE II (JUN 2002). When the task or delivery order contract is for services or supplies where the basic contract statement of work is broad and the pricing is less precise, e.g., a list of labor rates, some contact with multiple awardees will be required to ensure fair opportunity and achieve a clear meeting of the minds as to the price and scope of the order. In this case, insert the following paragraph (b), substantially as written, into paragraph (b) of the basic clause:
(1) The Government will request that each multiple award contractor submit their technical and/or managerial approach, if necessary, and cost/price estimate in response to the Government’s work statement.
(2) The response may be presented to the Government either orally or in writing.
(3) The Government will issue orders based on an assessment of the [insert technical and/or managerial] approach, estimated total cost/price, past performance, and [list other factors as appropriate] in making awards under this paragraph.
(End of clause)
5352.217-9000 Long lead limitation of Government liability.
As prescribed in 5317.7406, insert the following clause in solicitations and contracts:
LONG LEAD LIMITATION OF GOVERNMENT LIABILITY (MAY 1996)
(a) In performing this contract, the contractor is not authorized to make expenditures or incur obligations exceeding $[insert dollar amount].
(b) The maximum amount for which the Government shall be liable if this contract is terminated (i.e., costs already incurred and those associated with termination) is $[insert dollar amount].
(c) The contractor shall notify the contracting officer in writing whenever there is reason to believe that, within the next 60 days, the costs expected to be incurred under this contract, when added to all costs previously incurred, will exceed 75 percent of the total amount allotted to the contract by the Government. The notice shall state the estimated amount of additional funds required to continue performance for the specified schedule period, limited by the not-to-exceed contract value.
(d) Sixty days before the end of the specified schedule period, the contractor shall give notice to the contracting officer of the estimated amount of additional funds required to continue long lead contract performance, when the funds will be needed, and any agreed to extension period specified in the Schedule.
(End of clause)
5352.223-9000 Elimination of Use of Class I Ozone Depleting Substances (ODS).
As prescribed in 5323.804, insert the following clause in solicitations and contracts:
ELIMINATION OF USE OF CLASS I OZONE DEPLETING SUBSTANCES (ODSs) (APR 2003)
(a) Unless the requiring activity has obtained prior Senior Acquisition Official (SAO) approval, contractors may not:
(1) Provide any service or product with any specification, standard, drawing, or other document that requires the use of a Class I ODS in the test, operation, or maintenance of any system, subsystem, item, component, or process; or
(2) Provide any specification, standard, drawing, or other document that establishes a test, operation, or maintenance requirement that can only be met by use of a Class I ODS.
[Note: This prohibition does not apply to manufacturing.]
(b) For the purposes of Air Force policy, the following products that are pure (i.e., they meet the relevant product specification identified in AFI 32-7086) are Class I ODSs:
(1) Halons: 1011, 1202, 1211, 1301, and 2402;
(2) Chlorofluorocarbons (CFCs): CFC-11, CFC-12, CFC-13, CFC-111, CFC-112, CFC-113, CFC-114, CFC-115, CFC-211, CFC-212, CFC-213, CFC-214, CFC-215, CFC-216, and CFC-217, and the blends R-500, R-501, R-502, and R-503; and
(3) Carbon Tetrachloride, Methyl Chloroform, and Methyl Bromide.
[NOTE: Material that uses one or more of these Class I ODSs as minor constituents do not meet the Air Force definition of a Class I ODS.]
(c) The requiring activity has obtained SAO approval to permit the contractor to use the following Class I ODS(s):
Class I ODS/ Application or Use/Quantity (lbs.) per contract period of performance
[List each Class I ODS, its applications or use and the approved quantities for use throughout the length of the contract. If "None," so state.]
(d) The offeror/contractor is required to notify the contracting officer if any Class I ODS that is not specifically listed above is required in the test, operation, or maintenance of any system, subsystem, item, component, or process.
(End of clause)
5352.223-9001 Health and Safety on Government Installations.
As prescribed in 5323.9001, insert the following clause in solicitations and contracts:
HEALTH AND SAFETY ON GOVERNMENT INSTALLATIONS (JUN 1997)
(a) In performing work under this contract on a Government installation, the contractor shall:
(1) Comply with the specific health and safety requirements established by this contract;
(2) Comply with the health and safety rules of the Government installation that concern related activities not directly addressed in this contract;
(3) Take all reasonable steps and precautions to prevent accidents and preserve the health and safety of contractor and Government personnel performing or in any way coming in contact with the performance of this contract; and
(4) Take such additional immediate precautions as the contracting officer may reasonably require for health and safety purposes.
(b) The contracting officer may, by written order, direct Air Force Occupational Safety and Health (AFOSH) Standards and/or health/safety standards as may be required in the performance of this contract and any adjustments resulting from such direction will be in accordance with the Changes clause of this contract.
(c) Any violation of these health and safety rules and requirements, unless promptly corrected as directed by the contracting officer, shall be grounds for termination of this contract in accordance with the Default clause of this contract.
(End of clause)
5352.223-9003 Enhanced Security of Products
As prescribed in 5323.9101, insert the following clause in Section I:
ENHANCED SECURITY OF PRODUCTS (MAY 2003)
The contractor shall provide enhanced security for line item(s) ___________ while the item(s) are under the contractor’s control. Enhanced security requirements are described in
[Identify where they are specified (e.g., SOW, attachment, etc.)]
(End of clause)
5352.225-9004 Submission of Offers in Other than United States Currency.
As prescribed in 5325.1002, insert the following provision in solicitations:
SUBMISSION OF OFFERS IN OTHER THAN UNITED STATES CURRENCY (JUNE 2006)
(a) Offers may be submitted in United States dollars or the currency accepted at the place of performance.
(b) All offers shall be evaluated for determination of contract award by converting all foreign currencies to equivalent United States dollars by using the Foreign Currency Fluctuation Defense (FCFD) budget rate for the applicable currency in affect on the date set for the receipt of initial proposals.
(c) When a "Final Proposal Revision" is requested and received, in accordance with the applicable solicitation's terms and conditions, offers shall be evaluated by converting all foreign currencies to equivalent United States dollars by using the Foreign Currency Fluctuation Defense (FCFD) budget rate for the applicable currency in affect on the date set for the receipt of initial proposals.
(End of Provision)
5352.228-9101 Spanish Insurance Certificate.
As prescribed at 5328.310(b), insert the following clause in solicitations and contracts:
SPANISH INSURANCE CERTIFICATE (USAFE) (JUNE 2006)
(a) Below follows the Insurance Certificate required for any Third Country National Contractor (TCN), other than U.S. or Spanish, required for use under this contract. The certificate is provided to standardize base access procedures. It must be completed and signed by the policyholder and the insurer.
(b) The amount of coverage minimum is 90,151.82 Euros per insured party (personal injury), 60,101.21 Euros per accident (property damage), and 6, 010.12 Euros security deposit for legal fees. In all cases the amount of coverage, if different from the above amounts, will be determined by the insurer, except in situations where the minimum coverage applies.
(c) The request for base access and the insurance certificate should be processed to the Spanish authorities 15 days prior to the actual time of arrival for contract performance.
(d) Complete the following certification:
SPANISH INSURANCE CERTIFICATION
CERTIFICATE OF INSURANCE COVERAGE OF THE CIVIL LIABILITY REFERRED TO UNDER ARTICLE 5 OF ANNEX 6 TO THE AGREEMENT BETWEEN THE KINGDOM OF SPAIN AND THE UNITED STATES OF AMERICA ON COOPERATION FOR THE DEFENSE, SIGNED THE 1st OF DECEMBER 1988.
The insurance Company _______________________________________________ with legal domicile in _______________________________________________________________
Tel: __________________________
of Spanish/US nationality, registered in the Mercantile Registry of_______________________________________
Date:____________________, Number________, Book:_______, Section _____, Volume________, Page_______.
CERTIFIES
That Mr./Mrs. ____________________of_____________________ nationality, with passport number_______________, has contracted with this company Policy Number _____________ of civil liability against damages to persons or property which could arise from his/her actions or omissions in the performance of his/her official functions/professional activities in Spain because of the contract of ______________________________________________________ for the U.S. forces, and during the visit which, in respect of such contract, he/she may make to the _______________ Military Base, according to the general conditions in force for this type of insurance and also to the special conditions created for this purpose in the Spanish-U.S. Permanent Committee; that he/she has paid the premium according to the agreed conditions; and that such Policy is in force.
The Policy establishes as coverage of the mentioned risks the following amounts:
INDEMNITY LIMITS:
- For casualty: -------------------------- 601,012.10 Euros
With the following sub-limits for each injured person:
- For personal liability:----------------- 90,151.82 Euros
- For property damage:----------------- 60,101.21 Euros
- For Judiciary Bond:-------------------- 6, 010.12 Euros
The granted coverage is effective from ________________ through________________, and does not include any type of franchise, or similar limitation, to be deducted from the mentioned guarantees or any clause which requires the submission to any type of arbitration. The underwriting insurance company considers that the established amounts adequately cover the insured risks.
The policy sets forth the following clauses:
1. “The insurance company waives any right of subrogation against the United States of America which may arise by reason of any payment under this Policy.”
2. “The parties hereto explicitly agree to submit to the jurisdiction of the Spanish Courts of Law and to the Spanish Laws to settle any matter related to the construction or enforcement of the clauses and conditions of this Policy.”
IN WITNESS HEREOF, the present document is signed in______________________________,
on the____________of_____________20____
______________________________________ ___________________________________
For the Insured Company (signature) For the Insurance (signature)
CERTIFICADO DE COBERTURA DE SEGURO DE LA RESPONSABILIDAD CIVIL A QUE SE REFIERE EL ARTICULO 5 DEL ANEXO 6 AL CONVENIO ENTRE EL REINO DE ESPAÑA Y LOS ESTADOS UNIDOS DE AMERICA SOBRE COOPERACION PARA LA DEFENSA, FIRMADO EL DIA 1 DE DICIEMBRE DE 1988.
La Compañia de Seguros ______________________________________ con domicilio social en la Calle/Avda./Pla. ____________________________________________________________________, Tlfo.: _________________ , de nacionalidad española/norteamericana, inscrita en el Registro Mercantil de______________________________, fecha _________________, Número ________, Libro _________, Sección ______, Tomo _______, Folio_______.
CERTIFICA:
Que D. __________________________, de nacionalidad _________________________, provisto del pasaporte número _______________________, tiene suscrita con esta Compañia la Póliza número ____________________________, de responsabilidad civil contra daños a personas y cosas que pudieran derivarse de acciones u omisiones realizadas en el desempeño de sus funciones oficiales/actividades profesionales en España con ocasión del contrato de __________________________________________, para las Fuerzas de los EE.UU. y con la visita que en relación con dicho contrato realice a la Base Militar de ___________________________, según las condiciones generales vigentes para este tipo de seguros y además las condiciones especiales elaboradas a este fin en el Comité Permanente Hispano-Norteamericano; habiéndose satisfecho la prima según las condiciones pactadas, y encontrándose dicha Póliza en vigor.
La Póliza establece como cobertura de los riesgos mencionados las siguientes cuantías:
LIMITES DE INDEMNIZACION:
- Por siniestro: -------------------------- 601.012,10 Euros
Con los siguientes sublímites por perjudicado:
- Por daños personales:----------------- 90.151,82 Euros
- Por daños materiales: ----------------- 60.101,21 Euros
- Por fianzas judiciales:-_--------------- 6.010,12 Euros
Las coberturas otorgadas son efectivas desde el ___________________________, hasta el _________________________, no incluyéndose en las mismas ningún tipo de franquicia o limitación similar a deducir de las garantías indicadas ni ninguna disposición que requiera la sumisión a cualquier tipo de arbitraje. La Compañia aseguradora que suscribe considera que las cuantías establecidas cubren adecuadamente los riesgos asegurados.
La Póliza establece las siguientes cláusulas:
1. “La Compañia Aseguradora renuncia a cualquier derecho de subrogación contra los Estados Unidos de América que pueda provenir por razones diferentes a pago, bajo la Póliza epígrafiada.”
2. “Las partes se someten expresamente a la jurisdicción de los tribunales españoles y al derecho español para resolver cualquier cuestión relativa a la interpretación o aplicación de las cláusulas y condiciones de la Póliza.”
Y para que conste a los efectos oportunos, se firma el presente en __________________ a _______________ de _____________ 2.0___._______________________________________
Tomador: Asegurador:
(END OF CERTIFICATE)
(End of Clause)
5352.237-9001 -- Requirements Affecting Contractor Personnel Performing Mission Essential Services
As prescribed in 5337.9001, insert the following clause in Section I:
REQUIREMENTS AFFECTING CONTRACTOR PERSONNEL PERFORMING MISSION ESSENTIAL SERVICES (OCT 2004)
(a) The Contracting Officer has identified all or a portion of the services performed under this contract as “Essential DoD Contractor Services” as defined and described in DoD Instruction (DoDI) 3020.37, “Continuation of Essential DoD Contractor Services During Crises.” Hereafter, the personnel identified by the contractor to perform these services shall be referred to as “Mission Essential Contractor Personnel.”
(b) Within (insert the number of days required to institute any necessary safety and health precautions) days after contract award or incorporation of this clause into a contract by modification, the Contractor shall provide a written list of all “Mission Essential Contractor Personnel” to the Contracting Officer or designee. The list shall identify names and country(ies) where each employee will perform work under this contract.
(c) As required to comply with or perform pursuant to DoD or Air Force requirements, the contracting officer shall direct the contractor to comply with requirements intended to safeguard the safety and health of Mission Essential Contractor Personnel. The Contracting Officer may communicate the requirements through a letter of notification or other means, and subsequently modify the contract to incorporate the requirements via full text or by reference. The Contractor may file a proposal for cost or other impacts under the Changes clause or a Request for Equitable Adjustment.
(d) This clause shall be inserted in all subcontracts meeting the criteria in paragraph (a) of this clause.
(End of clause)
5352.242-9000 Contractor access to Air Force installations.
As prescribed in 5342.490-1, insert a clause substantially the same as the following clause in solicitations and contracts:
CONTRACTOR ACCESS TO AIR FORCE INSTALLATIONS (JUN 2002)
(a) The contractor shall obtain base identification and vehicle passes for all contractor personnel who make frequent visits to or perform work on the Air Force installation(s) cited in the contract. Contractor personnel are required to wear or prominently display installation identification badges or contractor-furnished, contractor identification badges while visiting or performing work on the installation.
(b) The contractor shall submit a written request on company letterhead to the contracting officer listing the following: contract number, location of work site, start and stop dates, and names of employees and subcontractor employees needing access to the base. The letter will also specify the individual(s) authorized to sign for a request for base identification credentials or vehicle passes. The contracting officer will endorse the request and forward it to the issuing base pass and registration office or security police for processing. When reporting to the registration office, the authorized contractor individual(s) should provide a valid driver’s license, current vehicle registration, valid vehicle insurance certificate, and [insert any additional requirements to comply with local security procedures] to obtain a vehicle pass.
(c) During performance of the contract, the contractor shall be responsible for obtaining required identification for newly assigned personnel and for prompt return of credentials and vehicle passes for any employee who no longer requires access to the work site.
(d) When work under this contract requires unescorted entry to controlled or restricted areas, the contractor shall comply with AFI 31-101, Volume 1, The Air Force Installation Security Program, and AFI 31-501, Personnel Security Program Management, as applicable.
(e) Upon completion or termination of the contract or expiration of the identification passes, the prime contractor shall ensure that all base identification passes issued to employees and subcontractor employees are returned to the issuing office.
(f) Failure to comply with these requirements may result in withholding of final payment.
(End of clause)
5352.242-9001 Common Access Cards (CACs) for Contractor Personnel.
As prescribed in 5342.490-2, insert a clause substantially the same as the following clause in solicitations and contracts:
COMMON ACCESS CARDS (CACs) FOR CONTRACTOR PERSONNEL (AUG 2004)
(a) For installation(s)/location(s) cited in the contract, contractors shall ensure Common Access Cards (CACs) are obtained by all contract or subcontract personnel who meet one or both of the following criteria:
(1) Require logical access to Department of Defense computer networks and systems in either:
(i) the unclassified environment; or
(ii) the classified environment where authorized by governing security directives.
(2) Perform work, which requires the use of a CAC for installation entry control or physical access to facilities and buildings.
(b) Contractors and their personnel shall use the following procedures to obtain CACs:
(1) Contractors shall provide a listing of personnel authorized a CAC to the contracting officer. The contracting officer will provide a copy of the listing to the government representative in the local organization designated to authorize issuance of contractor CACs (i.e., “authorizing official”).
(2) Contractor personnel on the listing shall each complete and submit a DD Form 1172-2 or other authorized DoD electronic form to the authorizing official. The authorizing official will verify the applicant’s name against the contractor’s listing and return the DD Form 1172-2 to the contractor personnel.
(3) Contractor personnel will proceed to the nearest CAC issuance workstation (usually the local Military Personnel Flight (MPF) with the DD Form 1172-2 and appropriate documentation to support their identification and/or citizenship. The CAC issuance workstation will then issue the CAC.
(c) While visiting or performing work on installation(s)/location(s), contractor personnel shall wear or prominently display the CAC as required by the governing local policy.
(d) During the performance period of the contract, the contractor shall:
(1) Within 7 working days of any changes to the listing of the contract personnel authorized a CAC, provide an updated listing to the contracting officer who will provide the updated listing to the authorizing official;
(2) Return CACs in accordance with local policy/directives within 7 working days of a change in status for contractor personnel who no longer require logical or physical access;
(3) Return CACs in accordance with local policy/directives within 7 working days following a CACs expiration date; and
(4) Report lost or stolen CACs in accordance with local policy/directives.
(e) Within 7 working days following completion/termination of the contract, the contractor shall return all CACs issued to their personnel to the issuing office or the location specified by local policy/directives.
(f) Failure to comply with these requirements may result in withholding of final payment.
As prescribed in 5347.4-100(a) insert the following clause in solicitations and contracts:
AIR SAFETY (JUNE 2006)
(a) Contractor is obligated to comply with generally accepted standards of airmanship, training, and maintenance practices and procedures. Contractor must also satisfy Department of Defense (DOD) quality and safety requirements as described in 32 CFR Part 861, Section 861.4. In addition, contractor shall comply with all provisions of applicable statutes, tenders of service, and contract terms as such may affect flight safety, as well as with all applicable Federal Aviation Administration (FAA) Regulations, Airworthiness Directives, Orders, rules, and standards promulgated under the Federal Aviation Act of 1958, as amended. Compliance with published standards may not, standing alone, constitute compliance with generally accepted standards of airmanship, training, or maintenance.
(b) The cleanliness and orderliness of an aircraft, including the visible components and surfaces thereof affect the ability to inspect an aircraft, may be valid indicators of the overall maintenance level of an aircraft, and may have a direct effect on the security and confidence of passengers. Therefore, contractor's failure to keep and maintain all such components and surfaces of the aircraft used in performance of this contract clean, orderly, and in good state of repair may be deemed a failure to comply with generally accepted standards of maintenance to the extent the failure goes beyond mere cosmetic or housekeeping deficiencies and relates in some manner to confidence in the safety, maintenance, or airworthiness of the aircraft.
(c) Should the government determine that any of the following conditions exist, it may suspend or place in temporary nonuse status contractor's further performance of airlift transportation services for the DOD:
(1) Contractor's failure to meet any of the obligations imposed by the preceding two paragraphs.
(2) Involvement of one of contractor's aircraft in a serious or fatal accident, incident, or operational occurrence (regardless of whether or not such aircraft is being used in the performance of this contract).
(3) Any other condition that affects the safe operation of contractor's flights hereunder.
(d) Such suspension shall be accomplished pursuant to the Department of Defense Commercial Air Transportation Quality and Safety Review Program (32 CFR Part 861), which is hereby incorporated in this contract by reference, or any procedures that supersede same which may be adopted by the Commander (Air Mobility Command) from time to time. The suspension procedures, including the temporary nonuse, reinstatement and appeals processes, set out therein, are binding, final, and conclusive. In no event shall suspension or temporary nonuse proceedings, regardless of outcome, give rise to any liability on the part of the government.
(e) Suspension or temporary nonuse hereunder resulting in unavailability of contractor aircraft to perform service under this contract shall be treated as failure to maintain authorization to engage in air transportation under the clause of the contract entitled, "Requirement for Authorization to Engage in Air Transportation."
(End of Clause)
5352.247-9001 Requirement for Authorization to Engage in Air Transportation
As prescribed in 5347.4-100(b)(1), insert the following clause in solicitations and contracts:
REQUIREMENT FOR AUTHORIZATION TO ENGAGE IN AIR TRANSPORTATION (JUNE 2006)
(a) This contract is conditioned upon the Contractor (if the contractor is a team arrangement, applies to each team member) being an air carrier and holding a Certificate of Public Convenience and Necessity issued under Section 401 of the Federal Aviation Act (FAA of 1958, as amended), or otherwise authorized by the Department of Transportation (DOT) to engage in direct air transportation services, holding an Air Carrier's Operating Certificate issued by the FAA under Part 121 of the Federal Aviation Regulations (14 CFR 121) for airlift operated by the offeror, and participating in the CRAF, if applicable. Furthermore, the Contractor shall not be in a suspension or temporary nonuse status in accordance with the clause entitled "AIR SAFETY."
(b) If at any time during the performance period of this contract the contractor is not in compliance with the requirements of paragraph a above, including, but not limited to, instances when the certificate demonstrating compliance with paragraph a above is (i) suspended by the pertinent regulatory body for any period of time even though the effect of the suspension is stayed pending review by a court of competent jurisdiction, (ii) canceled or revoked in its entirety by the pertinent regulatory body even though the effect of the cancellation or revocation is stayed pending review by a court of competent jurisdiction, or (iii) such certificate or interim operating authority has expired and has not been renewed, then the contracting officer may elect any one or a combination of the following courses of action:
(1) Suspend the contractor from further performance of all or any part of this contract until such time as the suspension/temporary nonuse imposed by the pertinent regulatory body shall have expired or until such time as the suspension, temporary nonuse, cancellation, or revocation shall have been finally set aside, removed, or otherwise terminated. The period of suspension of this contract will begin at the time that notice thereof is given by the contracting officer to the contractor's designee named in accordance with paragraph ____ of Section ____ of this contract. All flights, which were scheduled to be flown during the time any such suspension is in effect, will be canceled. A unilateral modification reflecting the cancellation and reducing the government's obligation accordingly will be issued by the contracting officer at the termination of the period during which this contract is suspended or after the expiration of the period of performance of this contract. Any such cancellation is not for the convenience of the government and is not a termination within the meaning of the clause entitled "Termination for Convenience of the Government (Fixed-Price)." Such cancellation will be accomplished at no cost to either party, and the substitute service provisions of this contract will not apply to such canceled flights.
(2) Exercise the government's rights under the clause of the contract entitled "Contractor's Failure to Provide Service."
(3) Terminate this contract in whole or in part under the procedures of the clause entitled "Default." If this contract is terminated for default pursuant to paragraph b, and if it is subsequently determined that termination for default is not appropriate, this contract shall then be considered to have been canceled pursuant to subparagraph b(4) below.
(4) Cancel this contract in whole or in part. Any such cancellation will be accomplished by the issuance of a unilateral modification and will not be a termination under the provisions of the clause entitled "Termination for Convenience of the Government (Fixed-Price)," and neither party will be liable to the other party for costs incurred as a result of such cancellation.
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ALTERNATE I (JUNE 2006). When using FAR Part 15 procedures and the air carriers hold a current Air Carrier Operating Certificate issued by the Federal Aviation Agency under a part other than Part 121 of the Federal Aviation Regulation, or a comparable foreign carrier operating certificate issued by a foreign government body, insert substantially the same paragraph (a) to the basic clause.
(a) This contract is conditioned upon the contractor being a commercial air taxi operator within the meaning of the Federal Aviation Act (FAA of 1958, as amended) and holding a current Air Carrier Operating Certificate in accordance with Part 127/135 of the Federal Aviation Regulations and holding a registration under Part 298 of the Department of Transportation (DOT) Regulations. Furthermore, the contractor shall not be in a suspension or temporary nonuse status in accordance with the clause entitled "Air Safety."
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ALTERNATE II (JUNE 2006). When using FAR Part 12 procedures, insert substantially the same paragraph (b) to the basic clause. When contracting with an air carrier modify subparagraph (a) of the clause as appropriate to identify the applicable certificate and issuing authority.
(b) If at any time during the performance period of this contract the contractor is not in compliance with the requirements of paragraph (a) above, including, but not limited to, instances when the certificate demonstrating compliance with paragraph (a) above is (i) suspended by the pertinent regulatory body for any period of time even though the effect of the suspension is stayed pending review by a court of competent jurisdiction, (ii) canceled or revoked in its entirety by the pertinent regulatory body even though the effect of the cancellation or revocation is stayed pending review by a court of competent jurisdiction, or (iii) such certificate or interim operating authority has expired and has not been renewed, then the contracting officer may elect any one or a combination of the following courses of action:
(1) Suspend the contractor from further performance of all or any part of this contract until such time as the suspension, temporary nonuse, cancellation, or revocation shall have been finally set aside, removed, or otherwise terminated. The period of suspension of this contract will begin when the contracting officer notifies the contractor. Any flights that were scheduled to be flown during the time any such suspension is in effect will be canceled and the government’s obligation reduced by all costs directly attributable to the canceled flights. Any such cancellation is not for the convenience of the government and will be accomplished at no cost to either party, and the substitute service provisions of this contract will not apply to such canceled flights.
(2) Exercise the government’s rights under the contract clause entitled “Contractor’s Failure to Provide Service.”
(3) Terminate this contract for cause in whole or in part under FAR clause 52.212-4, “Contract Terms and Conditions—Commercial Items.”
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5352.247-9002 Contractor's Failure to Provide Service.
As prescribed in 5347.4-100(c)(1) insert the following clause in solicitations and contracts:
CONTRACTOR’S FAILURE TO PROVIDE SERVICE (JUNE 2006)
(a) In the event that contractor's aircraft is unable to depart from any station, the government may invoke remedies which are set forth in this paragraph which will neither constitute a termination within the meaning of the clause entitled "Termination for Convenience of the Government," nor in any way diminish the government's rights under the clause entitled "Default." The rights and remedies of the government provided for in this paragraph are not exclusive and do not give rise to government liability for costs incurred and are in addition to any other government rights and remedies provided for by law or by this contract.
(b) Substitute Service. This term, as used herein, applies to the substitution of an aircraft to replace contractor's aircraft, which is unable to proceed from the departure station or from any en route station short of destination in accordance with schedules established pursuant to this contract. If the contractor fails to make an aircraft available for departure within 16 hours subsequent to scheduled departure time for a passenger flight or a mixed flight from an originating station or an en route station, or within 4 hours of a scheduled departure time for a passenger flight or a mixed flight from an en route station where no holding facilities for passengers are available, or within 24 hours of a scheduled departure time for a cargo flight from either the originating station or an en route station, or for any flight within such lesser time as may be agreed to by the contractor's designee, the government may: (1) cancel the requirement for further movement of the defaulted flight; (2) require the contractor to transport the defaulted passengers or cargo by substitute service within such additional time as the contracting officer may allow; (3) acquire substitute service from commercial sources; or (4) reschedule the defaulted flight or transport the defaulted passengers or cargo, or any portion thereof, itself. The exercise of any of these options will be in accordance with the following:
(1) In the event that the requirement for further movement of the defaulted flight is canceled, the number of passengers equal to the Guaranteed Allowable Cabin Load (GACL) for the flight involved, or the number of pounds of cargo equal to the GACL of the flight involved, or the number of miles for the flight involved, will be subtracted from the government's guarantee. Any canceled requirement will be deleted from the contract by unilateral modification. If the failure to depart was from the originating station, contractor will not be paid any amount for the flight involved. If the failure to depart was from an en route station, the contractor will be paid at the AMC negotiated uniform rate for that portion of the trip over which he did transport the passengers or cargo.
(2) If the contractor is required to transport the passengers or cargo of the defaulted flight by substitute service within such additional time as the contracting officer may allow, the contractor shall arrange and pay directly all costs involved in the transportation by the substitute aircraft. In this event, the contractor will be paid the full contract price for the flight involved, irrespective of the amount paid by him for this transportation by substitute aircraft. The substitute aircraft provided by the contractor must be of like type, configured in accordance with the applicable specifications, and must be approved by the contracting officer. In lieu of, or in addition to, providing the above type substitute service, the contractor may, at his own expense, purchase the amount of space, by common carriage or otherwise, needed for the movement of the passengers or cargo of the defaulted flight. The purchase of such space must be approved by the contracting officer and must be obtained only from American Flag carriers, except that in the event an American Flag carrier is unavailable or not reasonably available for point-to-point substitute service within an overseas area, upon prior authorization of the contracting officer, the contractor may use a Foreign Flag schedule carrier for substitute service on an exception basis only and provided the requirements of the clause entitled "Preference for United States Flag Air Carriers," are complied with. In such event, contractor would be paid the contract price for the involved transportation. If contractor transports by purchase of common carriage only a part of the number of passengers or amount of cargo of the defaulted flight, he will only be paid for those passengers or cargo so transported, and the passengers or cargo not transported shall be deducted from the government's guarantee.
(3) The government may purchase substitute service from commercial sources. This can be by a substitute commercial aircraft or by the purchase from commercial sources of sufficient space to transport by common carriage or otherwise, the number of passengers or amount of cargo involved in the defaulted flight. In either event, the substitute service shall be deducted from the government's guarantee and the contractor would be charged by the government, any amount that the government had to pay to commercial sources which is in excess of the contract price for the transportation of the passengers or cargo involved for the distance involved. (If this substitute service is obtained for only a portion of a trip as provided in the contract, the contract price will be prorated for the distance involved in determining the amount due to the government.) Contractor will not be paid any amount for the defaulted flight except that he will be paid at the AMC negotiated uniform rate for that portion of the trip, if any, over which he did transport the passengers or cargo on the flight involved. The contractor shall provide all services normally provided in connection with flights operating under this contract. In the event the defaulted flight was to be performed between military bases and the government procures common carriage substitute service, the defaulting contractor shall be responsible for the transportation between the military bases and the commercial terminal.
(4) The government may, in its discretion, elect to either reschedule the defaulted flight to a later time within the performance period of the contract or may move these passengers and/or this cargo, or any portion thereof. In this event, the number of passengers equal to the GACL for the flight involved, or the number of pounds of cargo to the GACL of the flight involved, or the number of miles for the flight involved will be subtracted from the government's guarantee and the contractor will be charged, by the government, the excess, if any, of the charge for this movement as computed under the provisions of DOD Rates (https://www.amcfm.scott.af.mil/filecabinet/docs/fy05/DoD_by_Zone.pdf) over the contract price. If this movement is utilized for only a portion of a trip as provided in the contract, the contract price will be prorated for the distance involved in determining the amount due the government. Contractor will not be paid any amount for transportation of the passengers or cargo of the defaulted flight except that he will be paid at the AMC negotiated uniform rate for that portion of the trip, if any, over which he did transport said passengers or cargo in the flight involved.
(c) The contracting officer may permit the contractor to provide services with substitute aircraft having a lower Allowable Cabin Load (ACL). When such substitution of aircraft is permitted, the contractor shall be reimbursed at the rate per ton/pax mile established in the original award times the lesser ACL with a corresponding reduction in the government's guarantee. In addition or as an alternative to providing substitute aircraft having a lower ACL, the contracting officer may permit the contractor to acquire, at his own expense, the amount of space, by common carriage, needed for movement of the pax or cargo equal to the ACL of the aircraft originally scheduled for the flight, in which event the contractor will be paid at the contract rate for the pax and/or cargo within the GACL which are actually transported. The contracting officer may also permit the contractor to provide services with substitute aircraft having a higher ACL than the aircraft required for performance of services under the contract. In this event, the contractor will be reimbursed only the contract price for the flight as originally awarded.
(d) The contracting officer, in making his decisions and selections for substitute service, will use his discretion in such a manner as to mitigate contractor's liability for excess costs when reasonably possible. However, military needs and urgency will be the prime consideration in the exercise of this discretion.
(e) The provisions of Section C, Performance Work Statement, relative to contractor's responsibility for care of passengers, and for providing meals and billets, apply to all situations discussed in this clause, wherein the contractor failed to depart as scheduled. Contractor shall retain responsibility for passengers until such time as they are moved by the contractor or the government, or the requirement is canceled by the government.
(f) In the event the contractor fails to deliver any part of the GACL (pax or cargo) to manifested destination due to an accident, contractor will be paid at AMC negotiated uniform rate only for that amount of pax or cargo delivered to manifested destination.
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ALTERNATE I (JUNE 2006). When using FAR Part 15 procedures for domestic charter airlift transportation, replace paragraphs (b) through (f) of the basic clause by inserting paragraph (b) to the basic clause.
(b) Substitute Service. This term, as used herein, applies to the substitution of an aircraft to replace contractor's aircraft, which is unable to proceed from the departure station or from any en route station short of destination in accordance with schedules established pursuant to this contract. If the contractor fails to make an aircraft available for departure as required by the flight schedules, the government may: (1) cancel the requirement for further movement of the defaulted flights; (2) require the contractor to transport the defaulted passengers or cargo by substitute service within such additional time as the contracting officer may allow; (3) acquire substitute service from commercial sources; or (4) reschedule the defaulted flight or transport the defaulted passengers or cargo, or any portion thereof, itself. The exercise of any of these options will be in accordance with the following:
(1) In the event that the requirement for further movement of the defaulted flights is canceled, the number of miles/trips for the flight involved, and directed landings (if applicable) will be subtracted from the government's guarantee. Any canceled requirement will be deleted from the contract by unilateral modification.
(2) If the contractor is required to transport the passengers or cargo of the defaulted flights by substitute service within such additional time as the contracting officer may allow, the contractor shall arrange and pay directly all cost involved in the transportation by the substitute aircraft. Contractor will be paid, in this event, the full contract price for the flight involved, irrespective of the amount paid by him for this transportation by substitute aircraft. The substitute aircraft provided by the contractor must be of like type, configured in accordance with the applicable specifications, and must be approved by the contracting officer. In lieu of, or in addition to, providing the above type substitute service, the contractor may, at his own expense, purchase the amount of space, by common carriage or otherwise, needed for the movement of passengers or cargo of the defaulted flight. The purchase of such space must be approved by the contracting officer. In such event, contractor would be paid the contract price for the involved transportation.
(3) The government may purchase substitute service from commercial sources. This can be by a substitute commercial aircraft or by the purchase from commercial sources of sufficient space to transport by common carriage or otherwise, the number of passengers or amount of cargo involved in the defaulted flight. In either event, the substitute service shall be deducted from the government's guarantee and the contractor would be charged by the government, any amount that the government had to pay to commercial sources which is in excess of the contract price for the transportation of the passengers or cargo involved for the distance involved. Contractor will not be paid any amount for this defaulted flight. The contractor shall provide all services normally provided in connection with flights operating under this contract.
(4) The government may, in its discretion, elect to either reschedule the defaulted flight to a later time within the performance period of the contract or may move these passengers and/or this cargo, or any portion thereof. In this event, the number of miles/trips for the flight involved will be subtracted from the government's guarantee and the contractor will be charged, by the government, the excess, if any, of the charge for this movement over the contract price. Contractor will not be paid any amount for transportation of passengers or cargo of the defaulted flight.
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ALTERNATE II (JUNE 2006). When using FAR Part 12 procedures, replace paragraphs (a) through (f) of the basic clause and insert paragraphs (a) and (b) to the basic clause.
(a) In the event the contractor’s aircraft is unable to depart from any station, the government may invoke the remedies set forth in this clause, which will not constitute a termination under FAR clause 52.212-4, “Contract Terms and Conditions—Commercial Items.” The rights and remedies provided in this clause are not exclusive, do not give rise to government liability for costs incurred, and are in addition to government rights and remedies provided by law or by this contract.
(b) Substitute Service. This term means substitution of an aircraft to replace contractor’s aircraft, which is unable to perform the required services. If the contractor fails to make an aircraft available to perform services under the terms of the contract, the government may:
(1) Cancel the requirement for further performance of the defaulted flight or services. In that event, the government’s obligation will be reduced by the costs directly attributable to the canceled flight or services.
(2) Require the contractor to obtain substitute service from another DOD-approved carrier to perform the services within such additional time as the contracting officer may allow. The contractor shall arrange for and pay directly all costs involved in performing the services by substitute aircraft. The government will pay the contractor the contract price for the services, irrespective of the amount the contractor pays for the substitute service. The substitute aircraft provided by the contractor must be of like type, must be configured in accordance with the applicable specifications, and must be approved by the contracting officer. In lieu of, or in addition to, providing the above substitute service, the contractor may, at his own expense, purchase the amount of space by common carriage or otherwise needed to transport the passengers or cargo from the defaulted flight. The contracting officer must approve purchase of such space. The government will pay the contractor the contract price for the services, irrespective of the amount the contractor pays for the space.
(3) Purchase substitute service from commercial sources. This may include use of substitute commercial aircraft or purchase of sufficient space to transport by common carriage or otherwise the passengers or cargo from the defaulted flight. In either event, the value of the service will be deducted from the contract minimum (if applicable). The contractor will not be paid for the defaulted flight but will be charged any amount in excess of the contract price that the government had to pay for the substitute service.
(4) Elect to either reschedule the defaulted flight to a later time or move the passengers and/or cargo, or any portion thereof, itself. In the latter event, the value of the service will be deducted from the contract minimum (if applicable). The contractor will not be paid for the defaulted flight but will be charged any amount in excess of the contract price that the government had to pay to transport the passengers and/or cargo.
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