Table of Contents
MODULE 1: GUIDING PRINCIPLES, AUTHORITY, ETHICS, AND
CONTROLS
1.205
Modifications of Procurement Policy
1.208
Application of Federal Statutes to the FDIC Contracting Program
1.209
Contracting Officer Authority
1.211
Unauthorized Contractual Commitments
1.304
Minimum Standards of Contractor Integrity and Fitness
1.305
Disqualifying Conditions
1.307
Suspension and Exclusion of Contractors
1.309
Roles and Responsibilities – Contractor Integrity and Fitness
Review
1.310
Roles and Responsibilities – Contractor Suspension and
Exclusion
1.313
Post-Government Employment
1.314
Prescriptions for Provisions and Clauses for Ethics
MODULE 2: ACQUISITION PLANNING AND COMPETITION
PGI Chapter 2.1
Acquisition Planning
2.103
Acquisition Planning Procedures.
2.104
Early Acquisition Planning
2.106
Acquisition Plan Documentation.
2.206
Non-Competitive Acquisitions
MODULE 3: CONTRACTING METHODS AND TYPES
PGI Chapter 3.1
Simplified Procurement
3.103
Simplified Procurement Procedures
3.104
Competition in Simplified Procurements
3.105
Identifying Potential Sources
3.109
Evaluation of Quotations
3.111
Simplified Procurement Award Types
3.112
Prescriptions for Provisions and Clauses for Simplified
Procurements
PGI Chapter 3.2
Formal Contracting
3.203
Formal Contracting Procedures
3.204
Competition in Formal Contracting
3.205
Identifying Potential Sources
3.206
Source Selection Planning
3.207
Technical Evaluation Panel
3.211
Communications with Offerors
3.214
Documenting the Source Selection Decision
3.216
Notification to Unsuccessful Offerors and Debriefings
3.217
Contract Types and Pricing Arrangements
3.218
Prescriptions for Clauses and Provisions for Formal Contracting
PGI Chapter 3.3
Other Contracting Methods
3.303
Other Contracting Methods Procedures
3.304
Purchases from Mandatory Sources
3.305
Federal Supply Schedule Contracts
3.306
Prescriptions for Clauses and Provisions for Other
Contracting Methods
PGI Chapter 3.4
Contracting in Support of Potential Financial Institution Failures
3.403
Contracting in Support of Potential Financial Institution Failures Procedures
3.405
Use of Existing Contracts and Purchase Cards/Convenience
Checks
3.406
Expedited Contracting Procedures
3.407
Emergency Contracting Procedures
3.408
Contracting Procedures Applicable to both Expedited and Emergency Contracting
3.409
Advance Authorization Letter
PGI Chapter 3.5
Contracting in Emergency Situations
3.503
Contracting in Emergency Situations Procedures
3.504
Planning for Contracting in Emergency Situations
3.505
Notification of Emergency
3.506
Modified Procedures and Authorities
3.507
Advance Authorization Letter
3.508
Short Term Manual Operations
3.509
Emergency Contracting Kits
3.511
Documenting Contracting Actions.
3.512
Restoring Normal Operations
3.513
Prescriptions for Clauses and Provisions for Contracting in Emergency
Situations
PGI Chapter 3.6
Receivership Contracting – Special Issues
3.603
Receivership Contracting Procedures
3.604
Subsidiary Contracting Procedures
3.605
Contracts Entered into by Failed Financial Institutions
MODULE 4: SPECIAL CATEGORIES OF CONTRACTING
PGI Chapter 4.1
Performance-Based Acquisition
4.103
Performance-Based Acquisition Procedures
4.105
Additional Information on Performance-Based
Acquisition/Management
PGI Chapter 4.2
Acquisition of Information Technology
4.203
Information Technology Acquisition Procedures
4.205
Prescriptions for Provisions and Clauses for Information Technology Contracting
PGI Chapter 4.3
Construction Contracting
4.303
Construction Contracting Procedures
4.304
Prescriptions for Provisions and Clauses for Construction
Contracting
MODULE 5: GENERAL CONTRACTING REQUIREMENTS
PGI Chapter 5.1
Protection of Sensitive Information
5.103
Protection of Sensitive Information Procedures
5.104
Sensitive Information and Confidentiality Agreements Procedures
5.105
Application of the Privacy Act
5.106
Protection of Contractor Proposals and Source Selection
information
5.107
Freedom of Information Act
5.108
Prescriptions for Provisions and Clauses
5.203
Contract Security Procedures
5.204
Prescriptions for Provisions and Clauses
PGI Chapter 5.3
Compliance with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d)
5.303
Section 508 Compliance Procedures
5.304
Prescriptions for Provisions and Clauses
PGI Chapter 5.4
Intellectual Property
5.403
Intellectual Property Rights Procedures
5.404
Rights in Data and Copyrights
5.405
Prescriptions for Provisions and Clauses
PGI Chapter 5.6
Subcontracting
5.603
Subcontracting Procedures
5.604
Prescriptions for Provisions and Clauses
PGI Chapter 5.7
Incentive Contracting
5.703
Incentive Contracting Procedures
PGI Chapter 5.8
Bonds and Insurance
5.803
Bonds and Insurance Procedures.
5.807
Prescriptions for Provisions and Clauses
5.904
Prescriptions for Provisions and Clauses
5.1004
Criteria for Use of Warranties.
5.1005
Custom Warranty Clauses
5.1006
Warranty Implementation Procedures
5.1007
Notification of Deficiencies
5.1008
Prescriptions for Provisions and Clauses
PGI Chapter 5.11 Labor
Laws - Service Contract Act and Davis Bacon Act
5.1103
Service Contract Act Procedures.
5.1104
Davis-Bacon Act Procedures
5.1105
Prescriptions for Provisions and Clauses
PGI Chapter 5.12 Buy American Act; Trade Agreements Act of 1979
5.1203
Buy American Act 41 USC §10a - 10d et
seq Procedures
5.1204
Trade Agreements Act of 1979 – 19 USC 2501 et seq.
Procedures
5.1206
Prescriptions for Provisions and Clauses
PGI Chapter 5.13 Contract Payment
5.1303
Contract Payment Procedures
5.1306
Prescriptions for Provisions and Clauses
PGI Chapter 5.14 Protests, Claims, Disputes, and Appeals
5.1404
Claims, Disputes and Appeals Procedures
5.1405
Prescriptions for Provisions and Clauses
PGI Chapter 5.15 Legal Review of Acquisition Documents and Contract Actions
5.1503
Legal Review Procedures
MODULE 6: CONTRACT MANAGEMENT AND ADMINISTRATION
PGI Chapter 6.1
FDIC Automated Procurement System
6.103
FDIC Automated Procurement System Procedures
PGI Chapter 6.2
Contract File Management
6.203
Contract File Management Procedures
PGI Chapter 6.3
Contract Reporting
6.303
Contract Reporting Procedures
6.304
Prescriptions for Provisions and Clauses
PGI Chapter 6.4
Contract Administrationand Oversight Management
6.403
Contract Administration and Oversight Management Procedures
6.404
Contract Management Plan
6.405
Nomination and Appointment of Oversight Manager and Technical Monitor
6.407
Oversight Manager Responsibilities
6.408
Monitoring Contract Performance.
6.409
Ratification of Unauthorized Contractual Commitments
6.410
Prescriptions for Provisions and Clauses
PGI Chapter 6.5
Contract Modifications
6.503
Contract Modification Procedures
6.504
Types of Contract Modifications.
6.506
Consent-to-Assignment: Novation.
6.509
Prescriptions for Provisions and Clauses
PGI Chapter 6.6
Contract Termination
6.604
Termination for Convenience
6.606
Prescriptions for Provisions and Clauses
PGI Chapter 6.7
FDIC-Furnished Property
6.703
FDIC-Furnished Property Procedures
6.704
Contracting Officer Responsibilities
6.705
Oversight Manager Responsibilities
6.707
Property Disposition Options
6.708
Prescriptions for Provisions and Clauses
PGI Chapter 6.8
Contract Closeout
6.803
Contract Closeout Procedures
6.804
Disposition of Contract Files
MODULE 7: FDIC CONTRACT PROVISIONS AND CLAUSES
PGI Chapter 7.1
FDIC Contract Provision and Clauses
7.102
Instructions for Using Provisions and Clauses
7.103
Text of Provisions and Clauses.
APPENDIX B: APPROVALS MEMORANDUM AND MATRIX
APPENDIX C: FDIC PURCHASE CARD (P-CARD) GUIDE
APPENDIX D: RECORD OF PGI CHANGES
This chapter
provides procedures, guidance and information on authority, applicability of
federal statues, ethics, and other controls related to Federal Deposit
Insurance Corporation (FDIC) acquisitions.
The ASB Associate
Director, DOA, is authorized to approve one-time deviations to procurement
policy. Such deviations are accomplished
through the granting of a waiver, which is processed via email. A Contracting Officer prepares the request
for waiver and must follow the format in the Request for Waiver- Email Template
found at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. The applicable Assistant Director must acknowledge
his/her concurrence on the email and include any additional comments before
submitting the request for waiver to the ASB Associate Director for
approval. Any approval or coordination
required from other Divisions or Offices, or waivers to other Directives, must
be obtained prior to submission, and must be included in the waiver
request.
1.208(a) Overview
The federal statutes,
regulations and executive orders described below apply to the FDIC contracting
program and must be considered in the acquisition planning process. Not all
laws apply to all contracts. Where a particular law applies only to a specific
type of contract (e.g., some laws apply only to contracts for services), this
is stated. If no such limitation is stated, the law applies to all types of
contracts. Some laws apply only when FDIC is contracting in its corporate capacity and are so identified;
otherwise, the laws apply to FDIC in all of its capacities. Lastly, the dollar
thresholds that trigger the application of particular statutes, and the
particular procedures for implementation of the requirements of the various
statutes, are given.
1.208(c) Applicable Statutes and Executive Orders
(1)
Labor Laws:
Labor laws apply only to
contracts that FDIC enters into in its corporate capacity.
§
Service Contract
Act (SCA) of 1965 – 41 USC §351 et seq.: Guidance and
information on the SCA is provided at Acquisition Policy Manual (APM)
5.11 and Procedures, Guidance and
Information (PGI) 5.11.
§
Contract Work
Hours and Safety Standards Act – 40 USC §3701
et seq.: Generally requires that
contracts for the employment of laborers and mechanics provide for a forty (40)
hour work week and for payment of overtime at a minimum of one and a half (1½)
times the basic rate of pay for all hours worked in excess of forty (40) hours
in a work week. It applies to contracts and subcontracts greater than $100,000
in value.
§
Davis-Bacon Act – 40 USC §3141 et seq.: Guidance
and information on the Davis-Bacon Act is provided at PGI 5.1104.
§
40 USC §3131 et
seq. (formerly known as the Miller Act): Requires that contractors provide payment and
performance bonds for
construction contracts greater than $100,000 in value. It also requires a
pledge of assets where the surety is an
individual.
§
The Walsh-Healey
Public Contracts Act – 41 USC §35-45: Applies to contracts for the manufacture
or furnishing of supplies (materials, supplies, articles, or equipment),
performed within the
(2)
Socio-Economic Programs:
§
Buy American Act (BAA) – 41 USC §10a: The BAA requires FDIC to give preference to
American-made goods when it procures goods for use in the
§
Trade Agreements
Act (TAA) of 1979
– 19 USC §2501 et seq.: The TAA is the
statutory authority for many of the trade agreements to which the
In general, the BAA applies to contracts with a value
greater than the micropurchase threshold, currently $3,000, and applies to
contracts entered into by FDIC in its corporate capacity only.
Application of the BAA is waived when a free trade
agreement (FTA) applies to the acquisition. FTAs apply to contracts for goods,
services and construction at different dollar thresholds; they apply to FDIC
when it contracts in its corporate capacity only.
There is significant interplay between the BAA and
the TAA; both need to be considered when planning an acquisition. See PGI 5.12 for a comprehensive discussion of the
application of the BAA, the special procedures mandated by the TAA, the dollar
thresholds and the exceptions to their application.
§
Rehabilitation
Act of 1973 – 29 USC §794d (commonly known as Section 508): Section 508
requires that electronic and information technology (EIT) developed, procured, maintained or used by the FDIC
or its contractors be as accessible to persons with disabilities as it is to
persons without disabilities. Acquisitions of EIT must comply
with Section 508 and the regulations published by the Architectural and
Transportation Barriers Compliance Board. The FDIC has adopted its own
regulation on Section 508 in 12 CFR Part 352. Detailed procedures are set out
at PGI 5.3.
§
Javits-Wagner-O’Day
Act (JWOD) – 41 USC §46 et seq.: JWOD applies to contracts for
supplies and may apply to certain contracts for services. The JWOD program
creates jobs and training opportunities for people who are blind or who have
other severe disabilities. Its primary means of doing so is by requiring
government agencies to purchase selected products and services from nonprofit
agencies employing such individuals. The JWOD Program, also known as
AbilityOne, maintains procurement
lists of supplies and services available from groups participating in
AbilityOne. FDIC is required to fill its procurement needs for items on
AbilityOne’s procurement lists from AbilityOne groups. Additional information
may be found at APM
3.3 and PGI 3.3.
§
Rehabilitation
Act of 1973 – 29 USC §793: This act requires that contractors not discriminate
against any employee or applicant qualified for a position because of any
physical or mental disability. It also requires contractors to take affirmative
action to employ, advance in employment, and otherwise treat qualified disabled
individuals without discrimination because of their disabilities. FDIC
voluntarily complies with this statute.
§
Executive Order
11246 – Equal Opportunity: This Executive Order prohibits discrimination by
contractors in employment practices. It applies to all contracts with a value
greater than $10,000.
§
The FDIC
Minority and Women Outreach Program for Contracting – 12 USC §1833e and 12 CFR
Part 361: This program seeks to include minority and women-owned businesses (MWOBs) and small disadvantaged businesses (SDBs) in FDIC
procurements. The Office of Minority and Women Inclusion manages this
outreach program and works with the Acquisition Services Branch (ASB) to
solicit MWOB and SDB firms.
APM
2.105, 3.105,
and 3.205
provide more information about FDIC’s Socio-Economic Programs.
§
Vietnam Era
Veterans Rehabilitation Act of 1972 – 38 USC §4212: This act applies to contracts with a value
greater than $100,000. It requires that contractors not discriminate against
any employee or applicant qualified for a position because they are a disabled
veteran or veteran of the
§
Executive Order
12564 (Drug Free Workplace): This executive order addresses drugs in the work
place. It applies to FDIC contracts where the contractor is an individual or,
if other than an individual, to contracts exceeding $100,000, by virtue of the
FDIC policy of voluntary compliance with its mandates. For a contract where the
contractor is an individual, the contractor must agree not to engage in the
unlawful manufacture, distribution, dispensing, possession or use of a
controlled substance in the performance of the contract. For a contract
exceeding $100,000, the contractor must agree to make a good faith effort to
maintain a drug-free workplace.
§
Federal Prison
Industries (FPI) – 18 USC §4124: The FPI program
directs federal departments and agencies to purchase prison-made products,
subject to certain conditions, from the FPI (trade name
UNICOR). It applies to contracts for goods of the classes listed in the
Schedule of Products Made in Federal Penal and Correctional Institutions; see
the FPI Schedule on
the FPI website,
http://www.unicor.gov. It is FDIC policy that goods valued at greater than
$5,000 must be purchased on the FPI Schedule, when
available, to fill its requirements so long as the FPI prices do not
exceed current market prices. Detailed procedures for complying with the FPI statute are
found at PGI 3.304.
§
Small Business
Act – 15 USC §644e: This section of the Small Business Act deals with contract
bundling. It applies to contracts
entered into by FDIC in its corporate capacity only. See APM
2.204 for the specifics of its application.
(3)
Privacy and Payment Laws:
§
Privacy Act of 1974 – 5 USC §552a: This section applies to FDIC contracts for the
design, development or operation of a system of records on individuals, whether
that system is automated or paper-based. FDIC Circular 1031.1, Administration
of the Privacy Act, is the FDIC comprehensive statement of procedures
on the subject. The circular is available at http://fdic01/division/doa/adminservices/records/directives/1000/index.html. During acquisition planning, the Program
Office must identify whether the Privacy Act applies to the
proposed acquisition. Contractors must comply with the requirements of the
Privacy Act and the
contract must contain a clause describing the requirements imposed on the
contractor.
§
Prompt Payment
Act – 31 USC
§3901-05: This act applies to the FDIC only when it contracts in its corporate capacity. It requires the payment
of interest on properly submitted invoices more than
thirty (30) days past due.
§
Assignment of
Claims Act – 31 USC
§3727: This act permits a contractor to assign claims for monies due to it from
FDIC under a contract to a bank, trust company or other financing
institution.
(4)
Ethics and Integrity Laws:
§
Anti-Kickback
Act of 1986 – 41 USC §§51-58: This Act prohibits both the payment and
acceptance of kickbacks. It
also prohibits including of the cost of kickbacks in the price of a contract.
It provides substantial penalties, both criminal and civil, for violations.
§
Byrd Amendment –
31 USC §1352(b): This requirement limits the use of appropriated funds to
influence, or attempt to influence, certain federal contracting and financial
transactions. It applies to contracts greater than $100,000 in value, entered
into by FDIC in its corporate capacity. An offeror must certify
to compliance with the Byrd Amendment when it submits a bid.
§
Copeland
(Anti-Kickback) Act – 40 USC §3145 and 18 USC §874: This act applies to construction contracts
greater than $2,000, using laborers and mechanics for construction, alteration
or repair of FDIC buildings. It makes it unlawful to use threats or
intimidation to induce a worker to give up part of the wages to which he is
entitled.
§
Federal Deposit
Insurance Act – 12 USC 1822f
(and the corresponding regulations -12 CFR Part 366): Establishes the minimum standards of contractor
integrity and fitness FDIC requires of its service
contractors. An offeror must certify to the standards of this act when it
submits a proposal valued at $100,000 or greater.
(5)
Environmental Laws: For construction contracts, FDIC complies with the
provisions of the Clean Air Act (CAA) of 1990 – 42 USC 7401 et seq.,
(specifically 42 USC §7414) and the Clean Water Act - 33 USC §1251 et
seq. (specifically 33 USC §1318). These acts cover the inspection and monitoring
of facilities related to the development of implementation plans and the
monitoring of compliance with air and water quality standards.
For contracts for either goods or services associated
with refrigeration equipment or air conditioning, or goods containing
ozone-depleting substances, FDIC complies with the CAA of 1990 – 42
USC Sections 7671g (servicing of refrigeration and air conditioning equipment),
7671h (national program for recycling and emissions reduction) and 7671j
(labeling of products containing ozone-depleting substances).
(6)
Information Security Law: The Federal Information Security Management Act of
2002 – 44 USC §§3541-49 establishes a
comprehensive program for the management of government information security. It
applies to contracts for both goods and services involving information
technology. It requires the FDIC to consider information security in its
contract planning, to incorporate terms governing information security in its
contracts, and to adequately oversee the information security practices of its
contractors. Information regarding information security and
protection of sensitive information is found at APM
5.1.
(7)
Tax Law: The Federal Deposit Insurance Act – 12 USC § 1825. This act exempts FDIC from all
federal, state and local taxes, except taxes on real property.
(8)
Office of Management and Budget (OMB)Approval
under the Paperwork Reduction Act - The Paperwork Reduction Act of 1980 - Pub. L. 96-511 requires
Federal agencies to obtain approval from the OMB before collecting information
from ten (10) or more members of the public. The information collection and
recordkeeping requirements in the sections set out below have been approved by
the OMB; the OMB Control Number 3064-0072 covers all FDIC procurement-related
information collections, which are contained in the following PGI sections:
1.304
1.309(c)
3.210(b)
3.215(a)
5.203(c)
5.12
7.3.2-44 through -55
7.5.2-1 through -3
7.5.12-2, -4, -6 and -8.
1.209(d) Contracting Officer Warrant Program
(1)
Warrant Levels: Contracting
Officers are delegated contracting authority for specified contracting dollar
thresholds based on training and experience as follows:
§
Level
I Contracting Officer (Up to $100,000);
§
Level
II Contracting Officer (Up to $1,000,000);
§
Level
III Contracting Officer (Up to $5,000,000);
§
Level
IV Contracting Officer (Up to $10,000,000); and
§
Level
V Contracting Officer (Unlimited)
Contracting Officers may award contracts
or modifications within their delegated authority. When determining the value
of a contract action, the total includes the basic contract and all options.
However, for contract modifications, the dollar threshold is not cumulative. For example,
although a $25,000 modification may push total contract value above $100,000, a
Level I Contracting Officer can still sign the modification, unless the
modification increases the total value by more than fifteen (15) percent of the
total contract value. In those cases, the modification must be signed by a
Contracting Officer with authority for the new cumulative value.
(2)
Experience Requirements: Table 1 shows Contracting Officer warrant
levels with associated minimum business and contracting experience requirements
for each. Contracting experience may also be used to partially satisfy the
business experience requirements.
Table 1.
Contracting Officer Warrant Level Experience Requirements
Level |
Dollar Threshold |
Business Experience |
Contracting Experience |
I |
Not to exceed
$100,000 |
4 Years |
2 Years |
II |
Not to exceed
$1,000,000 |
5 Years |
3 Years |
III |
Not to exceed
$5,000,000 |
6 Years |
3 Years |
IV |
Not to exceed
$10,000,000 |
7 Years |
4 Years |
V |
Unlimited |
8 Years |
5 Years |
(3)
Continuous Learning Requirements: Contracting Officers must complete a
minimum of forty (40) hours of continuous learning annually, or eighty (80)
hours every two years, in order to maintain their Contracting Officer
Appointment. Other ASB personnel in the
1102 job series must also meet the continuous learning requirement. Continuous
learning may be in the form of training or may be earned by attending
conferences, symposia, internal ASB workshops, and other events that offer
topical presentations of value.
§
Training:
In order to satisfy the continuous learning requirement, any training must
enable the individual to: (1) demonstrate an in-depth functional knowledge of
the laws, policies, procedures, and contracting methods that apply to FDIC
contracts and to government contracts in general; and (2) effectively manage
complex contracting actions. Examples of acceptable training subjects include:
o
Negotiation
techniques;
o
Price analysis;
o
Price
evaluations;
o
Contract
terminations;
o
Contract
administration;
o
Commercial and
government contract law;
o
Best value
contracting;
o
Contract claims;
o
Incentive
contracting;
o
Performance-based
contracting; and
o
Oversight
management.
§
Additional
Training Requirements:
o
Training must be
directly related to the knowledge required for success in a position that has
responsibility for contracts;
o
Training may be
provided by FDIC or by FDIC-approved external organizations;
o
Web-based
courses may be used to meet training requirements;
o
A course that addresses
contract subject matter areas pertinent to ongoing FDIC contract work, in
addition to courses prescribed in this section, may be acceptable in part,
provided the number of hours of study for credit is readily identifiable;
o
Training hours
must represent actual classroom hours, unless the training is from a web-based
course; and
o
Courses
satisfying these requirements that were completed prior to the effective date
of the Contracting Officer Program are acceptable.
(4)
Identification of Contracting Officer
Authority: Contracting Officers must
prominently display their certificates of appointment within their offices.
(5)
Continuing Professionalism: All Contracting Officer appointments, regardless of
level, must be reviewed annually by the ASB Associate Director to ascertain
that each Contracting Officer has maintained professional proficiency and
otherwise remains qualified.
(6)
Waivers: Waivers to the qualification requirements may be
requested for individuals who, due to their extraordinary experience, or due to
extraordinary circumstances, should be granted Contracting Officer authority.
Requests must be submitted through the respective ASB Assistant Director to the
ASB Associate Director.
(7)
Interim Contracting Officer Appointments:
Ordinarily, individuals are not
appointed as Contracting Officers if they do not meet the qualification
criteria. However, when necessary, the ASB Associate Director may grant an
interim appointment to an individual who has not yet completed necessary
training or education. Interim appointments ordinarily do not exceed six (6)
months. Failure to successfully complete required training within the interim
period normally results in the loss of appointment without prejudice.
Circumstances beyond the control of the individual may allow the ASB Associate
Director to extend the interim appointment period.
(8)
Termination of Contracting Officer Appointments: Termination of a Contracting Officer appointment is
made in writing by the ASB Associate Director, unless the Certificate of
Appointment contains provisions for automatic termination. Terminations may be
made for reasons such as reassignment or unsatisfactory performance. The
termination must indicate the effective date of termination. Termination of
employment automatically terminates a Contracting Officer's appointment.
Terminations may not be made retroactively.
1.211(a) Documentation - Contractor Activities
For ratification, the contractor must submit an invoice to the
Contracting Officer for the unauthorized work and include documentation that
describes:
(1)
What
work was performed;
(2)
Why
the work was performed;
(3)
Where
the work was performed;
(4)
When
the contractor was instructed to do the work; and
(5)
Who instructed the contractor to do the work,
and in what form were the instructions given (verbal or written), including a
copy of any written authorization.
The ratification request must
be rejected if the contractor cannot name the FDIC individual(s) or
representative(s) who authorized the work. The contractor may file a claim for
resolution.
If an FDIC employee directed
the work, the Contracting Officer must evaluate the contractor’s submission to
determine if it provides a legitimate basis for payment.
1.211(b) Program Office Activities Documentation
Before the execution of the ratification document, the office that directed the work
must submit a written and signed statement to the Contracting Officer that includes:
(1)
Identification
of the employee who directed the contractor to perform the work;
(2)
Statement
of pertinent facts, including why the contracting process was not followed;
(3)
A
statement that goods or services have been provided to, and accepted by, FDIC,
or that FDIC has obtained or shall obtain a benefit resulting from performance
of the unauthorized commitment; and
(4)
An
approved procurement request.
The statement must be signed by the Program Office
Deputy Director for ratification actions of $10,000 or less. For actions greater than $10,000, the
statement must be signed by the Division/Office Director.
1.211(c) Ratification Approval
(1)
Contracting Officer Recommendation
Report: The Contracting Officer must
prepare a written recommendation report documenting the findings of facts
provided by the contractor and Program Office and providing a recommendation
for either approving or denying the ratification action. When
the Contracting Officer recommends approval, the recommendation report must
affirm the goods and services are acceptable and the price is fair and
reasonable. The Contracting Officer must obtain concurrence
from the Contracting Law Unit before
submitting the report for approval.
(2)
Recommendation Report Approval: The Contracting Officer’s recommendation report must
be reviewed and approved by the respective Assistant Director for actions
$10,000 or less. Only the ASB Associate Director may approve actions greater
than $10,000.
(3)
Ratification Denial and Approval: If the ratification is denied, the
Contracting Officer must provide the contractor with a letter disclosing the
decision with a brief rationale. If the ratification is approved, the Contracting
Officer must prepare a contract modification. This is applicable if the
ratification occurs on a contract with a current period of performance. If the
ratification occurs without a corresponding contract, a new contract must be
issued.
(4)
Warrant Authority and Procurement Request
Authority: Ratification is permitted
only within the Contracting Officer’s warrant authority, and after any
additional procurement request authority has been obtained. The specific dollar
amount being ratified must be used for determining the required warrant level
and proper procurement request authority.
(5)
Documentation: The Contracting Officer must file all documentation
supporting the approval or denial of a ratification action,
including procurement request authority and contract modification or new
contract, in the official contract file. The Contracting Officer must provide a copy of an
approved or denied recommendation report to the ASB Assistant Director, Policy
and Operations Section.
This
chapter provides procedures, guidance and information as it relates to
contractor and FDIC employee ethics.
Contracting
Officers and the Program Offices they support must comply with the procedures
regarding ethics issues discussed in this chapter in the award of contracts for
FDIC.
FDIC requires contractors and
subcontractors to meet minimum standards of fitness and integrity in the areas
of ethics, conflicts of interest, and the use of confidential information as per 12 CFR Part
366, which is available at http://www.access.gpo.gov/nara/cfr/waisidx_08/12cfr366_08.html.
Authority for interpreting these standards has been delegated to the Executive
Secretary (except for contracts with law firms, authority for which is
delegated to the General Counsel).
The
fitness and integrity standards apply to contractors who submit proposals for
services. When services are being
procured, the Contracting Officer must ensure that the FDIC Integrity and Fitness clause 7.3.2-46 is included in the request for proposal or
request for quotation for services
estimated to cost greater than $100,000. Contractors who submit proposals for
goods, or who enter into contracts for goods with the FDIC, are not subject to
the regulation.
Contracting Officers must review the
representations for possible issues. If there are any questions regarding the
application of Part 366, the Contracting Officer must consult with the ASB,
Policy and Operations Section, and the Legal Division Contracting Law Unit (CLU).
1.304(a)
Failure to Provide Information
A contractor that fails to provide any required information,
or misstates a material fact, may be determined by FDIC to be ineligible for
the award of the contract for which such information is required, or be in
default with respect to any existing contract for which such information is
required.
1.304(b) Post-award Contractor Data/Information
Submission
During the
term of the contract, the contractor must:
(1)
Verify
the required information for any employee, agent, or subcontractor who performs
services under the contract for whom such information has not been previously
verified, prior to such employee, agent, or subcontractor performing services
under the contract; and
(2)
Immediately
notify FDIC if any of the information submitted was incorrect at the time of
submission, or has subsequently become incorrect.
1.304(c) Retention of Information
A contractor must retain the information
upon which it relied in preparing its integrity and fitness representations
during the term of the contract, and for a period of three (3) years following
the termination or expiration of the contract, and make such information
available for review by FDIC upon request.
The disqualifying conditions set out in
12 CFR Part 366 are fully described in APM 1.305. All firms submitting proposals for services
with estimated costs greater than $100,000, must answer the questions directed
at each of the qualifying conditions, as set forth in clause 7.3.2-46, and
submit them in the proposal. By
submitting a signed proposal, a contractor certifies to the absence of
disqualifying conditions and conflicts of interest at the time it submits a
proposal and that it will only retain employees and subcontractors who meet the
requirements of Part 366.
Contractors with disqualifying conditions
that arise prior to or after award are required to notify FDIC in writing
within ten (10) calendar days. There are no waivers for disqualifying
conditions.
FDIC does not award contracts for
services to contractors that have disqualifying conditions, or conflicts of
interest associated with a particular contract, or permit contractors to
continue performance with such conflicts or conditions, unless the conflicts
are waived by FDIC, or the conflicts or conditions are eliminated by the
contractor.
1.306(a)
Waivers
Conflicts-of-interest
waivers may be granted only when the interest of FDIC in the contractor's
participation outweigh the concern that a reasonable person may question the
integrity of FDIC operations, taking into consideration all the relevant
circumstances.
1.306(b)
Referral
The
Contracting Officer forwards all conflicts of interest issues to the CLU for review and determination.
The
FDIC CLU may suspend or exclude contractors that
violate the contractor fitness and integrity standards (12 CFR Part 366), as well as for
other causes. Suspensions are immediate, but temporary. Exclusions are
generally for a defined period of time.
Part
367 (12 CFR 367) informs contractors and subcontractors (including their
affiliated business entities, key employees, and management officials)
regarding their rights to notice and an opportunity to be heard on FDIC actions
involving suspension and exclusion from contracting and rescission of existing
contracts. It applies to contractors submitting offers to provide services, or
entering into contracts to provide services, and to subcontractors entering
into contracts to perform services under a proposed or existing contract with
FDIC.
Contractors
suspended or excluded from contracting programs are prohibited from entering
into any new contracts for the duration of the suspension or exclusion.
Contracting Officers cannot solicit offers from, award contracts to, extend or
modify existing contracts, award task orders under existing contracts, or
consent to subcontracts with suspended or excluded contractors. Suspended or
excluded contractors are also prohibited from conducting business with FDIC as
agents or representatives of other contractors. If the Contracting Officer
determines it is in the corporation’s best interest to contract with a
suspended or excluded contractor or subcontractor, a waiver must first be
requested from the Legal Division permitting the award.
A suspension becomes effective immediately
upon issuance of the notice. The Contracting Officer is responsible for
checking the FDIC Debarred Vendors List
on the ASB website at http://fdic01/division/DOA/buying/fitness/debarredvendors.html,
and the Federal Government Excluded Parties Listing System at http://www.epls.gov to ensure that a contractor
being considered for an award has not been suspended or excluded from
performing services to FDIC.
1.309(a)
Contracting Officer
The
Contracting Officer is responsible for reviewing integrity and fitness
representations and certifications submitted by contractors and identifying
eligibility issues. Generally, eligibility issues are identified:
(1)
During
the review of eligibility representations and certifications submitted by
potential and current contractors in connection with a solicitation or
modification of a contract;
(2)
In a
request for a waiver of a conflict of interest submitted by a
contractor;
(3)
In a
request from a contractor to limit its representations and certifications in
some manner; or
(4)
From
information derived from outside sources, such as other contractors or the
media.
The
Contracting Officer reviews the contractor's representations and certifications
for completeness and to identify potential issues that could affect eligibility
to serve as an FDIC contractor. Eligibility issues can be found where the representations
and certifications (or an application):
(1)
Reveal
grounds for disqualification under Part 366;
(2)
Are
qualified in some manner or incomplete;
(3)
Appear
to be false; or
(4)
Disclose
a conflict of interest.
If
the contractor’s certifications are complete and no eligibility issue is
identified, the contractor is eligible for possible contract modification or
award. If the certification(s) are incomplete, the Contracting Officer obtains
the missing information from the contractor. The Contracting Officer refers any
eligibility issue to CLU as early as possible in the contracting process. When
the Contracting Officer identifies a potential eligibility issue, the affected
contractor is notified and a copy of the notification sent to CLU. When referring an eligibility issue to CLU,
the Contracting Officer provides CLU with the solicitation and other relevant
contract documents. If CLU requests additional documents from the potential
contractor, the Contracting Officer obtains these, as well. After its review,
CLU provides its comments and recommendation to the Contracting Officer for
action.
1.309(b)
Contracting Law Unit
Review of
Certifications and Waivers: Upon referral by ASB, CLU reviews conflicts of interests raised by the
representations and certifications submitted by a contractor recommended for an
award. CLU issues a written decision of its determination for ASB.
CLU also prepares the cases for eligibility determination, waiver of conflicts of
interest, appeal from final decisions, and other documents for
the Corporation Ethics Committee (CEC), where CLU determines that a particular case is one that
merits consideration. All cases presented to the CEC are reviewed by ASB prior to their submission.
1.309(c)
Security and
Emergency Preparedness Section
The
Security and Emergency Preparedness
Section (SEPS) conducts background
checks on contractors,
subcontractors, and contractor personnel at the request of the Contracting Officer or
Oversight Managers. See policy in FDIC
Circular 1610.2, which can be found at http://fdic01/division/doa/adminservices/records/directives/1000/index.html. If SEPS identifies an eligibility issue or a conflict
of interest, it refers the
matter to the Contracting Officer who may then refer it to CLU.
1.309(d)
Office of Inspector General
The
Office of Inspector General (OIG) is responsible for investigating contractor
misconduct and allegations of criminal conduct. Allegations may be made to the
OIG directly, or may be made to, or come to the attention of, the Contracting
Officer, others in ASB, or the CLU. ASB and CLU may refer allegations they receive to the OIG
for investigation.
1.309(e)
Corporation Ethics Committee
The delegated authority to waive a
conflict of interest, if a
contractor requests a waiver, rests both with the CEC and with the Assistant General Counsel of the
Corporate and Legal Operations (AGC-CLO) Section of the Corporate
Operations Branch of the Legal Division. Information on the Legal
Division is available at http://fdic01/division/legal/about/Branches/COB/Index.html.
Generally, the AGC-CLO (or designee) rules on waiver requests that are simple
and straightforward; more complicated conflicts situations are referred to the
CEC, in the first instance, for
action on a request for waiver. Decisions by the AGC-CLO may be appealed to the
CEC. Cases going to the CEC are
prepared by the CLU and reviewed by the ASB prior to submission.
The
CEC has the authority to reverse, stay, or uphold
a final decision of the AGC-CLO. A request for reconsideration
of a conflict of interest decision - be it a denial of waiver, a grant
of waiver with conditions or other adverse determination - may be submitted, in
writing, by the contractor or by the division or office for whose benefit the
waiver decision is sought, and must be supported by evidence that substantiates
the relief sought. The decision of the CEC is final and constitutes the final action of
the corporation on the matter.
1.309(f)
Office of Minority and Women Inclusion
The
Contracting Officer notifies the Office of Minority and Women Inclusion of any
adverse action(s), including intent to rescind the contract of, or to suspend
and/or exclude a minority and women-owned business (MWOB) or small disadvantaged business (SDB) firm, joint venture with MWOB or SDB participation, and/or prime contractor with MWOB or SDB subcontractors.
See
APM
1.309.
1.310(a)
Legal Division,
Contracting Law Unit
CLU is responsible for the overall administration
of the Suspension
and Exclusion regulations (12 CFR Part 367) with respect to all contractors, except
law firms. CLU determines whether the actions or omissions of
an independent contractor meet the standards for suspension or exclusion as
defined in Part 367. The corporation’s Ethics Counselor (the FDIC Executive
Secretary) is the deciding official in exclusion and suspension cases.
All
reports of contractor misconduct that may support suspension or exclusion action under Part 367 (including but not
limited to violations of Part 366, false certifications as to the contractor’s
integrity and fitness, conflicts of interest, or other types of contractor
misconduct) are referred to CLU with a copy to the ASB, Policy and Operations
Section. Where information provided to CLU establishes a reasonable belief that conduct
warranting a suspension
or exclusion may
have occurred, CLU determines if further action is warranted, as
discussed below. If CLU determines that the information provided does
not support a reasonable belief of actionable misconduct, it prepares a
memorandum closing the case and provides the OIG and the Policy and Operations
Section with a copy of it. If actionable misconduct is determined, CLU prepares a notice to the contractor.
The
following steps are taken by CLU to determine if a suspension or exclusion is warranted:
(1)
CLU is
responsible for reviewing the material submitted, including the administrative
record, and determining whether that record and the evidence, measured against
the applicable evidentiary standard, supports a suspension or exclusion. In cases where the evidence in the
administrative record is insufficient, CLU identifies any additional information that may
be required for an enforcement action and seeks to obtain the information, if
it exists;
(2)
In
situations where exclusion is
the appropriate action, CLU prepares a notice of possible cause to
exclude, and sends it to the contractor. Where suspension is appropriate,
either alone or in conjunction with exclusion, CLU prepares an appropriate notice of suspension
together with a case supporting that action. Where CLU determines there is no legal basis to take
action, it informs the Policy and Operations Section via memorandum; and
(3)
Once
notice has been given and a suspension or exclusion action has commenced, CLU undertakes all necessary contact with the
contractor. In suspension and exclusion cases that go to hearing, CLU reviews the record and draft a case and
proposed decision for the Ethics Counselor. If a contractor appeals the decision of the Ethics Counselor to the
CEC, CLU prepares the case and decision for the CEC’s consideration. In cases that are
settled, CLU prepares appropriate
settlement documents and advises ASB on the execution of
the settlement documents.
1.310(b)
Ethics Counselor and the Corporation Ethics Committee
The
FDIC Executive Secretary is its designated Ethics Counselor. The Ethics
Counselor decides all cases against contractors for suspension or exclusion from service to the FDIC. A contractor may
appeal the Ethics Counselor’s suspension or exclusion
decision to the CEC.
The CEC has authority to reverse, stay, or uphold a
final decision.
1.310(c)
Security and Preparedness Section
If
a false certification or other matter that might warrant suspension or
exclusion of a contractor is identified by SEPS during the background check it conducts, SEPS
refers the matter to CLU with a copy to ASB.
1.310(d)
Office of Inspector General
The
OIG is responsible for investigating contractor misconduct. Allegations of
contractor misconduct may be made to the OIG directly, or may be made to or
come to the attention of the Contracting Officer, others in ASB, the Oversight
Manager, others in the Program Office or the CLU. ASB, the Program
Office and CLU may refer allegations they receive to the OIG
for investigation. The OIG may provide CLU with audit or investigation reports involving
contractor misconduct that might warrant a suspension or exclusion action. The OIG may also provide follow-up
investigatory services that may be necessary to support a suspension or
exclusion.
The
FDIC Legal Division Ethics Unit is the point of contact for matters involving
post-government employment restrictions.
In order for the Ethics Unit to evaluate and provide advice on any
post-employment ethical matter, they must receive notification when any former
FDIC employee or Resolution Trust Corporation (RTC) employee will perform on an
FDIC contract or subcontract. Prior to the former FDIC employee commencing
work, they must provide a certification regarding their ability to engage in
post-government employment to the Contracting Officer. The certification is
available at the FDIC website www.fdic.gov/buying/goods/acquisition/index.html . The Contracting
Officer will forward the signed certification to the Ethics Unit.
If
the Ethics Unit requires additional information, they shall contact the
Contracting Officer and former employee. Any additional information submitted
by the former employee must be submitted to the Contracting Officer, who will
forward it to the Ethics Unit.
If
the Ethics Unit determines the former employee is barred by the post-employment
restrictions from performing on an FDIC contract or subcontract, the Ethics
Unit shall notify the Contracting Officer. The Ethics Unit shall also identify
the length of the prohibition (lifetime or two-year) and, for one or two-year
prohibitions, the date of expiration. The Contracting Officer must inform the
contractor and Oversight Manager of the prohibition. Upon being notified of the
prohibition, the former employee must not commence working on the contract or
subcontract.
7.1.3-1
Post-Government Employment Certification (Pre-Award) - insert provision in all solicitations.
7.1.3-2
Post-Government Employment Certification (Post-Award) - insert clause in all awards.
This chapter provides procedures, guidance and
information on acquisition planning.
PGI 2.104 through 2.107 provide procedures that must
be used by the Acquisition Team when planning procurements, preparing
acquisition plans, and developing requirements packages.
The ASB can be more effective in its mission when the
Program Office provides sufficient advance notice of its requirements. Early
communication by the Program Office enables ASB to view the requirement in a
broad context, and thereby:
(1)
Identify
upcoming requirements and plan how to meet them;
(2)
Schedule
its workload so that contracting resources are available to support requests as
they are received;
(3)
Establish
realistic lead-times and timely award schedules;
(4)
Prevent
contracting delays, by identifying and resolving potential conflicts of
interest and other problems, before the solicitation process begins;
(5)
Finalize
statements of work (SOWs) or statements of objectives (SOO) and requirements packages and correct deficiencies; and
(6)
Consolidate
duplicative requirements for similar or affiliated services to achieve
strategic sourcing benefits.
As soon as a requirement is identified, the Program
Office should contact the appropriate ASB Assistant Director who assigns a
contract specialist to help it develop its acquisition strategy.
2.105(a) Planned Procurement
For an anticipated
procurement, the Program Office must first contact the Contracting Officer, who
provides appropriate guidance to perform market research prior to a
requisition being submitted.
2.105(b) Methods of Market Research
(1)
Trade
literature;
(2)
Commercial
brochures;
(3)
Internet;
(4)
Industry
trade shows;
(5)
Telephone
contact;
(6)
Other
government agencies; and
(7)
General
Services Administration Federal Supply
Schedules, available at http://www.gsa.gov/portal/content/197989
2.105(c) Guidance to Those Conducting Market Research
DO NOT:
(1)
Indicate
authority to make a purchase;
(2)
Negotiate
terms;
(3)
Make
commitment to buy;
(4)
Disclose
corporate or contractor proprietary information;
(5)
Disclose
procurement plans;
(6)
Solicit
written quotes; or
(7)
Disclose
cost or budget estimates.
The same general information
must be made available to all contractors.
2.105(d) Market Surveillance
Market surveillance is a
method of market research used by the
Program Office and is an ongoing process of reviewing information about market
trends, new developments, products, services, and technical features. The
Program Office routinely performs market surveillance when there is no planned
procurement action and without coordination with the Contracting Officer.
2.105(e) Contractor Meetings and Product
Demonstrations
In order to obtain
information about the goods and services in the commercial marketplace, the
Program Office and Contracting Officer may:
(1)
Conduct
face-to-face meetings with contractors to discuss specific products and
services to attain a better understanding of the available products and
services;
(2)
Have
suppliers provide product demonstrations to better understand the functionality
of the available products and services; and
(3)
Have
the contractor provide equipment, hardware, or software for testing or
evaluation. The contractor and FDIC must sign a memorandum of understanding
(MOU) and a confidentiality agreement, before testing or evaluation. The Contracting Officer
signs both documents on behalf of FDIC. The MOU and confidentiality agreement
templates are found on the ASB website at
http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
2.105(f) Market Research for Exercising Contract Options
This
application of market research is a good business practice used to confirm
that FDIC is receiving the most favored price and to ensure the option price is competitive. Such market research
should be completed before required notification to the contractor of intent to
exercise the option, and must be conducted by the Contracting Officer and
Oversight Manager. The Contracting Officer is responsible for establishing the
terms and conditions for all contracts and contract modifications. The Contracting
Officer may use market research information to engage in negotiations with the
contractor to reduce the option price or to establish modifications that extend
the schedule.
Written
Acquisition Plans address one project. Modifications to contracts that are
within the scope of the contract, and incorporate actions and values already
discussed in an approved Acquisition Plan, do not require a
new or revised Acquisition Plan.
While the Program Office and Contracting Officer
jointly prepare the Acquisition Plan, the Contracting Officer is ultimately responsible for ensuring that
the plan is completed and approved in accordance with Appendix B, Approvals Memorandum and Matrix.
The following requirements are applicable to the
development of Acquisition Plans.
2.106(a)
Acquisition Planning Under $1,000,000
Written Acquisition Plans are not required for
actions under $1,000,000, but the Acquisition Team is still expected to do
reasonable planning for these acquisitions.
2.106(b)
Acquisition Plans for Requirements $1,000,000 or More
Written Acquisition
Plans for actions of $1,000,000 or more must be prepared following the
instructions below as applicable.
(1)
Background and Objectives:
§
Statement
of the Requirement: Introduce the plan by a brief statement of the requirement.
§
Background
and Procurement History: Summarize the technical and contractual history of the
acquisition. Discuss feasible acquisition alternatives, the impact of prior
acquisitions on those alternatives, and any related in-house effort.
§
Risks
Associated with the Procurement: Discuss technical, cost, and schedule risks
and describe efforts planned or underway to reduce risk and the consequences.
§
Procurement
Request Authority: State the Program Office’s estimated cost for the
acquisition and the rationale supporting it, including any independent
government cost estimate.
§
Delivery
or Performance-Period Requirements: State the performance period anticipated to
be included in the contract and the rationale for that determination.
§
Sources:
Indicate the prospective sources that can meet the need. Include consideration
of socioeconomic program contractors, and the impact of any bundling that might
affect their participation in the acquisition. Describe all efforts that have
been undertaken to identify additional sources and the results of these
efforts.
§
Competition: Describe how
competition is to be sought, promoted, and sustained throughout the course of
the acquisition. If reasonable competition is not contemplated, discuss the
specific rationale for the use of a non-competitive procurement, and identify
the source(s).
§
Special
Acquisition Considerations: Discuss any issues of particular importance to the
acquisition not elsewhere addressed in the Acquisition Plan. Examples include: unique performance-based arrangements; use of options, special clauses; special solicitation
provisions, federal laws, e.g., Service Contract Act, Section 508 requirements; or APM deviations required.
§
Location
of Performance: Discuss whether the requirement is to be performed on- or
off-site. Include any special considerations associated with the place of
performance.
§
Oversight
Management: Discuss how the Oversight Manager and
Technical Monitor are to oversee the project after contract award, including
any reporting requirements.
§
FDIC-Furnished
Property: Indicate any property to be furnished
to contractors by FDIC, including material and facilities, and discuss any
associated considerations, such as its availability or the schedule for its
acquisition.
§
FDIC-Furnished
Information: Discuss any FDIC information, such as manuals, drawings, and test
data, to be provided to prospective offerors and contractors.
§
Security
Considerations: State that the acquisition complies with FDIC security
directives. If directives are to be waived, explain the rationale for
waiver. State the security risk level
assigned to the requirement by the Division of Administration’s (DOA’s) Corporate Services Branch.
§
Business
Continuity Planning: Discuss the level of business continuity planning necessary
for the acquisition. Address whether the contractor’s services will be
necessary in time of emergency and the level of service that will be required.
Include any maintenance and testing requirement specific to business
continuity, as well as any requirement that the contractor participate with
FDIC in joint disaster planning exercises.
§
Contract Administration: Describe how the contract is to be
administered. In contracts for services, include how inspection and acceptance corresponding to the SOW or
SOO performance criteria are to be enforced.
§
Other
Considerations: Discuss, as applicable, quality assurance requirements, special
involvement by FDIC personnel, impacts related to procurement, and any other
matters germane to the Acquisition Plan not covered
elsewhere.
§
Milestones
for the Acquisition Cycle: Address
the following steps, at a minimum, and any others as appropriate, and provide
dates. The Acquisition
Plan should include “planned” and “revised” dates
as appropriate. A milestone schedule template is available on the ASB
website http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. Provide a complete discussion regarding inordinate delays between milestones.
o
Acquisition Plan approval;
o
Complete
requirements package received by
DOA/ASB;
o
Approval of
Justification for Non-Competitive Procurement (if required);
o
Solicitation
review completed;
o
Solicitation
released;
o
Proposals due;
o
Evaluation of
proposals complete;
o
Preparation of
Selection Recommendation Report (SRR);
o
Approval of SRR;
and
o
Contract Award.
§
Identification
of Participants in Acquisition Plan Preparation: List the
individuals who participated in preparing the Acquisition Plan, giving contact
information for each.
§
Contract
Assessment Report: If the requirement is in excess of
$5,000,000, state whether it has, or will be, reported in the Contract
Assessment Report.
2.106(c)
Acquisition Plan Approval
Approval levels for the plans are delineated in the Approvals Memorandum and Matrix, which
is provided as Appendix B, Approvals Memorandum and Matrix, of this PGI.
2.106(d)
Changes to Approved Acquisition Plans
When
it becomes necessary to revise an approved Acquisition Plan due to a significant change (e.g., scope,
dollar value, contract strategy, or contract type), the Contracting Officer and
Oversight Manager jointly prepare a statement that summarizes the changes. The
original approval authority must approve the Acquisition Plan revision, unless
the dollar value of the change or the new cumulative award value requires a
higher level of approval.
The Program Office develops
the requirements package as described
in APM 2.107 and as detailed below, using
the requirements package checklist found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
A copy of the completed requirements package checklist must be filed in the
official contract file.
2.107(a) Strategy Session
Program Offices are to
engage in a strategy session with a Contracting Officer immediately upon
recognizing the need for contract support. In this strategy session(s) the
Contracting Officer advises the Program Office on the necessary contents of the
requirements package.
2.107(b) Core Requirements Package Documentation
The core requirements
package documents
include:
(1)
Approved
New Financial Environment requisition;
(2)
SOW or
SOO; and
(3)
Independent
FDIC cost estimate.
If the contractor will have
access to, collect, store, use, or share FDIC personally identifiable
information, the FDIC system of records must be identified in the SOW or SOO. The Program Manager’s Information Security Manager should be
contacted to ensure any privacy related issues are appropriately addressed. See
http://fdic01/division/dit/ITGovernance/ITSecurityPrivacy/DivisionalISMProgram/LISTOFISMS.html.
If contract services are
deemed essential in the event of an emergency or business continuity event, the
SOW or SOO must include:
(1)
Business
continuity requirements;
(2)
Requirements
that contractors flow emergency preparedness and continuity requirements to
essential subcontracts; and
(3)
Requirements
for the contractor to have emergency plans for providing services to FDIC in
the event of a disruption of normal operations, and participation in FDIC
business continuity testing, training and exercises.
2.107(c) Additional Requirements Package
Documentation
Based
on any unique attributes of a requirement, the Contracting Officer must obtain
additional information to supplement the core documents of an requirements
package. Additional Items
for consideration in completing the solicitation include:
(1)
IT
Security Plan; (see PGI
5.1)
(2)
Contractor
confidentiality agreements; (see
PGI 5.104(b))
(3)
Section
508 Form; (see PGI 5.3)
(4)
Risk
level determination (see Directive
1610.2 at http://fdic01/division/doa/adminservices/records/directives/1000/index.html);
(5)
Proposal
evaluation methodology; (see PGI 3.210)
(6)
Technical
Evaluation Panel members (see APM
3.207);
(7)
Payment
terms (how often to invoice, necessary supporting documentation,
etc.) (see APM
5.13);
(8)
Proposed
payment incentives, if performance based contract is anticipated (see APM
5.7);
(9)
Indemnity
requirements;
(10)
Insurance requirements (see APM
5.805);
(11)
Warranty requirements (see APM
5.10);
(12)
Any
other special contract provisions;
(13)
Oral
presentations; (see
PGI 3.208(g))
(14)
Offerors’
conference; (see PGI
3.208(e))
(15)
Site
visits; (see
PGI 6.408(d))
(16)
Subcontracting
(and any limitations) (see PGI 5.6); and
(17)
Suggested
sources. (see PGI
3.105 and 3.205)
This chapter provides
procedures, guidance and information regarding the use of competition in FDIC
acquisitions.
As a general rule, at least
three competitive offers should be sought for all procurements over
$5,000. In circumstances where only two
qualified sources can be identified, reasonable competition can be maintained
by soliciting the two.
See APM
3.2 and PGI 3.2 for information on source selection
and competitive range determinations.
2.206(a) Justification for Non-Competitive
Acquisitions
Acceptable
reasons for limiting competition may include, but are not limited to:
(1)
Urgency
(such as an unforeseen or uncontrollable event, but does not include poor
planning);
(2)
Only
one source can meet the requirement. Examples include:
(i) Acquisitions which
require special patent rights, copyrights or other proprietary information with
a specific Contractor;
(ii) Highly specialized
services which demand the expertise of a Contractor or individual with unique
or unusual capabilities;
(iii) An existing Contractor offers the benefits of historical expertise or systems compatibility which other offerors cannot provide as cost-effectively or as timely, and;
(3)
Source
is mandated by law (cite applicable law).
2.206(b) Actions above $5,000 and Up to $100,000
The
Contracting Officer must document, in a memorandum to file, any decision to
acquire required goods or services on a non-competitive basis. The memorandum
to file must include information that describes the goods or services to be
acquired, the proposed dollar value of the procurement, and the rationale for
awarding to a single source in lieu of conducting a competitive procurement. The memorandum to file must identify whether or not
the contractor is Minority-Owned, Women-Owned, Small Disadvantaged Business,
Veteran-Owned, and/or Service Disabled Veteran Owned. If Minority-Owned, also identify the
contractor’s ethnic/racial category from the following list: Asian-Pacific
American, Subcontinent Asian (Asian-Indian) American, Black American, Hispanic
American, Native American, and Other Than One of the Preceding. This memorandum to file
must be signed by a duly appointed Contracting Officer and placed in the
official contract file prior to executing the contract/purchase order.
These procedures do not
apply to transactions made with the purchase card. For guidance on non-competitive purchase card
transactions, see the FDIC Purchase Card
(P-Card) Guide, Appendix C.
2.206(c) Actions above $100,000
When non-competitive procedures are to be used for any action above
$100,000, the Contracting Officer must document the decision, using a
Justification for Non-Competitive Procurement (JNCP). (See JNCP template at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html).The
extent and detail of the JNCP depends on the
particular requirement, its complexity, and its potential dollar value, but in
all cases must address the following:
(1)
A
description of the goods/services, including the requested period of
performance, and a description of any options;
(2)
The
recommended source and applicable business location;
(3)
A
description of the proposed contract action and any pertinent history;
(4)
The
estimated dollar value, as well as the basis for this estimate;
(5)
A
description of any market research conducted and the results of the research;
(6)
The
rationale for use of non-competitive procedures;
(7)
Efforts
to foster competition; and
(8)
Inclusion
in the Contract Assessment Report for actions valued at
$5,000,000 and above.
2.206(d)
Review and Approval of Non-Competitive Procurements
See the Approvals Memorandum and Matrix section of the PGI, Appendix B, for review and approval requirements.
This chapter provides
procedures, guidance and information on the use of simplified procurement procedures by
FDIC Contracting Officers and the Program Offices they support.
Price Reasonableness – A
determination by a Contracting Officer that a quoted price is fair and
reasonable, based on a comparison of competitive quotations or
offers, or other reasonable means including those specified in PGI 3.109(g).
The
Contracting Officer reviews the requisition and requirements package to determine whether the goods and services
may be procured using simplified procedures, or whether another means of
procurement is more appropriate. To do this, the Contracting Officer must first
consider mandatory sources, e.g., Federal
Prison Industries, and AbilityOne.
The Contracting Officer may also consider General Services
Administration (GSA) Federal Supply Schedules and other FDIC contracts as
appropriate (see APM
3.3).
The
Contracting Officer must also consider the statutory requirements addressed in
APM and PGI Modules 1 and 5, (e.g., Service Contract
Act, Davis-Bacon Act, Section 508, and Buy American Act) when developing the procurement strategy for the requirement. (see APM
1.208, PGI 1.208, APM
5 and PGI 5) The results of the reviews discussed above must be
documented in the official contract file.
Simplified
procurements of
$5,000, or less, may be awarded to any contractor that can satisfy the requirement,
and do not require competition. Actions above $5,000 must be competed, or the
Program Office must provide justification as addressed at PGI
2.206, when requesting that non-competitive procedures be used.
The Contracting Officer must develop a solicitation list and document in the official contract file how the list was generated. Firms that have been suspended or disbarred may not be solicited, and are not eligible for award. The solicitation list includes firms provided by the Program Office and the Office of Minority and Women Inclusion (OMWI), or any other sources at the Contracting Officer’s discretion. The Contracting Officer must provide OMWI the opportunity to furnish a list of potential sources for actions greater than $100,000, and may do so for actions of $100,000 or less. When requesting sources from OMWI, the Contracting Officer provides OMWI the requirements package or, at a minimum, the statement of work (SOW) or statement of objectives (SOO), anticipated period of performance, and estimated dollar value. For actions estimated over $5,000, the solicitation list must include at least three potential sources, if available. If adequate competition is not available, the Contracting Officer must document the results of the attempt to find sources in the official contract file.
For each acquisition, at least 33% of the companies solicited must be a Minority or Women Owned Business (MWOB). The Contracting Officer must obtain written approval from the ASB Assistant Director in the event it is determined that the 33% threshold cannot be achieved. The Contracting Officer has discretion to establish the maximum number of sources required in connection with a particular procurement. In making this decision, the Contracting Officer may consider the following factors:
(1) Availability
in the marketplace of the goods or services required;
(2) Information obtained from recent purchases of the same or similar item(s);
(3) Dollar value and urgency of the proposed procurement; and
(4) Past experience concerning prices for the goods or
services required.
A FDIC tool that may be used
to identify potential sources is the Contractor Resource List (CRL). The CRL is a repository of information on
businesses who have expressed interest in providing goods or services to
FDIC. It contains a description of each
business’ goods and services, along with their MWOB status and a link to their
website. Contracting and Program
Management personnel are encouraged to use the CRL database to the maximum
extent practicable. To access to the
CRL, an FDIC employee must first obtain a password by contacting the FDIC-CRL
Help Desk at (877) 275-3342 (press 5 pause, press 2 pause and press 4), or
e-mail: procurementopportunities@fdic.gov. The link to the CRL and guidelines on its use
may be found on webpage http://fdic01/division/doa/buying/index.html. Other tools that may be
utilized to identify potential sources include the Central Contractor Registration (CCR)
database at http://www.ccr.gov, trade publications, internet
search, GSA schedules, and the Federal Business Opportunities (FedBizOpps)
website https://www.fbo.gov/.
The Contracting Officer may post a request for information or the solicitation
to FedBizOpps at
https://www.fbo.gov/,
when determined appropriate.
The Contracting Officer may add a firm to the solicitation list at any time prior to the proposal due date. The Contracting Officer need not extend the proposal due date to accommodate a request received late in the proposal preparation process.
With the exception of those solicitations posted on FedBizOpps, all firms submitting proposals must be on the solicitation list prior to receipt of proposals. The Contracting Officer may reject any proposals submitted by firms not on the list, and return the proposals to the offerors. The Contracting Officer may release the names of the solicited offerors to those on the solicitation list, upon request.
For requirements subject to
the Trade Agreements Act addressed in APM 5.12 and PGI 5.12, a synopsis
of the requirement must be posted to FedBizOpps in sufficient time to
allow forty (40) days from the date of posting to receipt of quotations.
3.106(a) Oral Request for Quotation
To
obtain oral quotations,
the Contacting Officer calls the firms on the solicitation list, presents the requirements,
and requests the firm’s quotation. The Contracting Officer must document in the
official contract file, the names of the
firms contacted, the date solicited, and the prices and other terms and
conditions quoted by each firm. The Contracting Officer may need to obtain from
the selected firm completed background investigation forms or FDIC representations and
certifications, or both, prior to award. The Contracting Officer has the discretion
to obtain a written confirmation of the quotation before award.
3.106(b) Written Request for Quotation
The purpose of an RFQ is to provide
potential offerors the information they need to respond to FDIC requirements. A
written RFQ must address the following items, as required:
(1)
Pricing
schedule;
(2)
Description
of the requirement including the statement of objectives, statement of work, as appropriate;
(3)
Delivery
or performance information, including required delivery date or performance
schedule, and place of performance;
(4)
Contract
clauses and provisions;
(5)
Requirements
for FDIC representations and certifications and background investigation questionnaires;
(6)
Submission
of the offeror’s Data Universal
Numbering System (DUNS) number;
(7)
Quotation
submission instructions (e.g., mail, email, limits on number of pages,
format);
(8)
Basis
for award, including evaluation factors and subfactors; and
(9)
Risk
level determination.
If limited technical
evaluations are performed, the Contracting Officer may also require the offeror
to provide information such as the following:
(1)
Statement
of the firm's relevant experience, including past FDIC experience, with
references;
(2)
Statement
of the firm's ability to meet the performance/schedule requirements;
(3)
Proposed
staffing with supplemental information, such as resumes or professional
qualifications;
(4)
Evidence
of compliance with FDIC insurance requirements, or other licensing
prerequisites; and
(5)
Business
or financial references.
3.106(c) Quotation Response Time
The Contracting Officer must
provide the offeror with sufficient time to prepare a response to the RFQ.
3.106(d)
Request for Quotation Reviews
The Contracting Officer must obtain any required
reviews and approvals, as addressed in Appendix B, Approvals Memorandum and Matrix, prior
to issuing the RFQ.
3.106(e) Distribution
The
Contracting Officer distributes the RFQ to each firm on the solicitation list, using any available means, including:
(1)
Email;
(2)
(3)
Overnight
delivery;
(4)
Posted
to FedBizOpps (https://www.fbo.gov/) or a secure FDIC website; or
(5)
Courier.
3.108(a) Receipt and Safeguarding
Electronic mail is the
preferred method for receipt of quotations. Quotations may also be submitted by
fax,
For quotations delivered to
the FDIC mailroom, the Contracting Officer must advise mailroom staff that
quotations are expected, and provide them the RFQ number at least two business
days prior to the due date. The mailroom
staff is responsible for date and time stamping each quotation and promptly delivering
the package to the Contracting Officer. The Contracting Officer is responsible
for safeguarding, and preventing unauthorized disclosure of information in the
quotation.
3.108(b)
Record of Quotation Received
The Contracting Officer must
create a written abstract of quotations received, including contractor name and
address, prices, delivery requirements, and other pertinent data.
3.108(c)
Quotations from Solicited Firms Only
The Contracting Officer only accepts
quotations from offerors on the solicitation list.
3.108(d) Late Quotations
Quotations or amendments to
quotations received after the designated date and time are late. The
Contracting Officer must reject the quotation and notify the offeror that the
quotation is being rejected. The Contracting Officer may accept a late
quotation, with the approval of the respective the ASB Assistant Director, if
it is in the best interest of FDIC.
3.109(a) Pre-Evaluation
Review
Prior
to evaluation, the Contracting Officer performs an initial review of all
quotations to ensure each complies with the RFQ. The Contracting Officer must
also review the offerors’ representations and certifications for compliance, as
applicable.
3.109(b) Evaluation
Factors
Only the
evaluation factors and subfactors stated in the RFQ may be used to evaluate
quotes.
3.109(c) Oral Request for Quotation Evaluation
When the Contracting Officer
uses an oral solicitation, the contract is awarded to the firm with the lowest
evaluated price received in a responsive quotation. The Contracting Officer
must document the selection decision and maintain written records of oral price
quotations that clearly reflect that the award price is fair and reasonable.
3.109(d) Written
Request for Quotation Evaluation
The Contracting Officer
typically awards simplified procurements on a
price-only basis, i.e., to the firm that is technically capable of performing
the requirement and offers the lowest price for the requested goods or
services. If limited technical evaluation is used, the Contracting Officer
evaluates factors in addition to price, such as past performance, capacity, quality, and technical capability, if specified in the
RFQ.
When evaluating quotes to
determine which ones are technically acceptable, the Contracting Officer must
evaluate these factors by using the following ratings:
(1)
“Pass” – Firm
meets the minimum requirement and is therefore considered for award, or
(2)
“Fail” – Firm
does not meet the minimum requirement and is not considered for award.
The Technical Evaluation
Official (TEO) from the Program Office conducts the technical
evaluation of the quotations and, once complete, submits the evaluation to the
Contracting Officer for approval. The TEO conducts the
same evaluation tasks for a simplified procurement as are
performed by a Technical Evaluation Panel (TEP) and TEP Chairperson
for formal contracting. The Contracting Officer has the discretion to convene a
TEP, in lieu of having the technical evaluation done by
a TEO, when warranted.
A written summary of the technical evaluation must be included in the
official contract file.
3.109(e) Best Value
Evaluation Methods
In
lieu of a price-only evaluation approach, the Contracting Officer may elect to
use a best value approach. When using the best value methodology, the
Contracting Officer evaluates all offerors' quotes, integrating past
performance, key evaluation factors and sub-factors and price,
to determine which quotation represents the best value to FDIC.
3.109(f)
Past Performance Information
The Contracting Officer and
the Program Office must use a contractor's past performance information in the evaluation
process for all procurements of $100,000 or greater for commercial goods or commercial
services. Past performance may be used at the discretion of
the Contracting Officer for any other procurement. For simplified procurements, a review of the information in the FDIC Contractor
Performance Evaluation System is normally
sufficient to determine if the firm’s past performance is acceptable or not. If
further information is required, the Contracting Officer may ask for
references, generally no more than two (2) or three (3), as part of the
quotation. The TEO then calls and
verifies information.
3.109(g) Price Reasonableness Determination
The Contracting Officer’s
determination that a proposed price is reasonable is usually based on
competitive quotations. If only one response is received, or the price variance
between multiple responses reflects a lack of adequate competition, the
Contracting Officer must use another method to determine that the price is fair
and reasonable. These include:
(1)
Comparison to
commercial catalogs or published price lists;
(2)
Comparison to
established market prices;
(3)
Comparison with
prior purchases of same or similar goods/services;
(4)
Comparison to an
independently prepared FDIC estimate, providing the basis for that estimate is
valid; and
(5)
Value analysis
developed by the Contracting Officer/Program Office.
3.110(a) Pre-Award Reviews
The Contracting Officer must ensure the following
reviews are accomplished prior to award of a simplified procurement. Documentation to support the reviews must be
included in the official contract file.
(1)
Excluded Parties: The Contracting Officer must review the Debarred Vendors List, FDIC Division
of Administration: Debarred Vendors,
found at http://fdic01/division/DOA/buying/fitness/debarredvendors.html
and the Federal Government Excluded Parties
Listing System at http://www.epls.gov
before contract award, regardless of dollar value. Award may not be made to a
firm that is on either list.
(2)
CCR Review: The Contracting Officer must review the CCR database
before contract award to ensure the recommended awardee is registered
and to obtain its socioeconomic status. If the proposed awardee is not
registered in CCR, the Contracting Officer must assist them in the
registration process. Award cannot be
made to a contractor that is not registered in CCR, without approval of the respective ASB Assistant
Director.
(3)
Vendor File Review: The Contracting Officer must verify if the recommended firm is listed
in the FDIC Vendor File, which is maintained by the Division of Finance’s Vendor File Maintenance Group (VFMG). If it is not, the Contracting
Officer must obtain the firm’s name, remit to address, tax identification (ID)
number and DUNS number from the CCR database and
send an email to VFMG, DC (email address as stated in Outlook) to request the
firm to be added to the FDIC Vendor File.
Below is a sample format of the email:
To: Vendor File Maintenance Group DC
(Email address is in Outlook address book)
From: Contract Specialist’s Name
Subject: Add Vendor – [Insert Vendor’s Name]
Please add the following
vendor to the vendor file in NFE:
Contractor Name
Street Address
City, State Zip Code
TAX ID #: ______________
DUNS #: ______________
I have verified that this vendor is registered in the
CCR database but
has not been added to NFE. If you have any questions,
please contact [insert Contract Specialist’s name] at x____.
Emails sent to VFMG by 3:00pm are processed the same
day. Emails sent after 3:00pm are processed by 10:00am the next day. VFMG sends
the Contracting Officer a confirmation email with the new vendor ID number when
the firm has been added to the FDIC Vendor File. Award may not be made to a
firm that is not in the FDIC Vendor File.
(4)
Representations and Certifications: The Contracting Officer must review the information
received through the representations and certifications to ensure that
prospective awardees comply with applicable laws and directives and are
eligible to do business with FDIC.
(5)
Background Investigations: The Contracting Officer must obtain preliminary
background investigation approval of
the contractor and key personnel from Security
and Emergency Preparedness Section, prior to award. This approval is required when the award exceeds
$100,000 and is for services or at any dollar amount when contractor personnel or
subcontractor personnel work on-site and have unescorted access to FDIC offices
or facilities, or have access to FDIC networks/systems, or in any other
contract where the Program Office has described a need for background
investigations.
(6)
Financial Capability Review: If the award exceeds $1,000,000, the Contracting
Officer must conduct a financial capability review. The template for the
financial capability review is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html
3.110(b) Award Decision Documentation
The Contracting Officer must
prepare a Price Evaluation Memorandum (PEM) documenting the procurement. The competitive
nature, dollar value, and complexity of the requirement determine the detail
that is necessary for the award decision document. At a minimum, the award
decision document must include a determination of price reasonableness and the basis
for award. PEM templates may
be found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
3.110(c)
Advance Authorization Letter
When advance authorization
is approved by the respective ASB Assistant Director, the Contracting Officer
may orally authorize the contractor to begin work, and then must issue an
advance authorization letter confirming the authorization. Before an
authorization is given, the contractor and the Contracting Officer must agree
to the terms and conditions, price, and deliverables, normally through email
and/or facsimile exchanges. The Contracting Officer must also ensure that
purchase request authority for the total amount of the contract has been
approved before the letter is issued.
3.110(d)
Notification to Unsuccessful Offerors and Debriefings
Under simplified procurements, notification to unsuccessful offerors and
debriefings are normally
not provided, unless requested. If an offeror requests a notification or
debriefing, the Contracting Officer provides them as set forth in PGI 3.216.
For procurements covered
under the World Trade Organization-Government Procurement Agreement or other
trade agreement, the Contracting Officer is required to post an award synopsis
to FedBizOpps in sufficient
time to permit its publication not later than sixty (60) days after award.
Procedures for preparing the award synopsis are available on the ASB website at
http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
3.111(a) Simplified Procurement Orders
A
simplified procurement order is a
contract used with simplified procurements that defines the requirement,
includes unit and extended price, quantity, due date, destination requirements,
invoicing instructions, and applicable clauses, as required.
As a rule, under simplified
procurement orders, FDIC
agrees to pay the stated price upon delivery of the goods or services by the
contractor, and acceptance by the Program
Office. When the simplified procurement
order is over $100,000, or in any other case where it is desired to consummate
a binding contract between the parties before the contractor undertakes
performance, the Contracting Officer must obtain acceptance of the order in
writing. Upon receipt of the contractor-signed simplified procurement order,
the Contracting Officer signs it and returns a copy to the contractor.
A simplified procurement order typically
has no designated Oversight Manager unless determined necessary by the
Contracting Officer and the Program Office, based on the complexity of the
requirement. When an Oversight Manager is not formally appointed, a Program
Office point-of-contact must be named in the simplified procurement order to be
responsible for conducting any oversight responsibilities, such as inspection, acceptance, and reviewing and approving the invoice for payment.
3.111(b)
Blanket Purchase Agreements
A blanket purchase agreement (BPA) is an unfunded agreement establishing FDIC rights
to place orders for specific goods or services, and:
(1)
Is not a
contract because it does not obligate funds, nor does it obligate FDIC to place
any call orders under it.
(2)
Is designed to
reduce administrative costs in accomplishing the procurement of reasonably
known needs by eliminating what could be the costly issuance of individual
purchase orders or contracts.
The use of BPAs can result in
ordering economies and reduced procurement lead-time.
(3)
May be placed
concurrently with more than one firm whenever practicable. If a BPA is awarded
to more than one firm for the same products or services, all of the firms must
be afforded an opportunity to submit a competitive quote for subsequent orders,
or a fair basis for rotational award of orders must be used.
(4)
May be limited
to the furnishing of individual items, groups or classes of goods or services,
or it may be unlimited for all items that a firm is capable of furnishing and
may include established unit prices. Individual orders must not go beyond the
scope of goods and services in the BPA.
(5)
Contains a
statement that a contractor is obligated to furnish goods or services,
described in general terms, if and when requested by authorized representatives
during a specified period of time and within a stipulated aggregate amount, if
one is negotiated.
(6)
Identifies the
authorized ordering officials. Ordering officials are limited to FDIC
Contracting Officers and purchase card holders.
(7)
Describes the
method and types of orders that may be placed against the BPA. Orders are
placed on a simplified procedures order and paid through normal invoicing and
payment methods, or are ordered and paid through a purchase card. The BPA must
state which method is to be used; the two may not be combined.
(8)
Includes a
statement that when orders issued against a BPA equal the stated total dollar
limitation, if any, or when the BPA has reached its expiration date, no further
orders can be placed against it.
3.111(c)
Purchase Card
Policy and procedures for use of the purchase card
and associated convenience checks by FDIC cardholders are found at
Appendix C, FDIC Purchase Card (P-Card)
Guide.
Contracting Officers must
insert the following provisions and clauses as required:
7.3.1-1 Disposition of
Submitted Material - insert
provision in all solicitations.
7.3.1-2 Central Contractor
Registration - insert
provision in all solicitations.
7.3.1-3 Restriction on
Disclosure of Information - insert
provision in all solicitations.
7.3.1-4 Solicitation
Requirements, Terms and Conditions - insert
provision in all solicitations.
7.3.1-5 Price Only Evaluation
Method - insert provision in
solicitations when Best Value is not appropriate and award will be based only
on price.
7.3.1-6 Identification and Delivery of Proposals - insert provision in all solicitations. Fill in the
date and time and select the appropriate address for delivery of proposals.
7.3.1-7 Proprietary Information
- insert provision in all
solicitations.
7.3.1-8 Amendments, Extensions
and Cancellations - insert provision
in all solicitations.
7.3.1-9 Delivery Schedule - insert clause in all awards for goods.
7.3.1-10 Place of Delivery or
Performance - insert clause in all
awards.
7.3.1-11 Deliverables - insert clause in all awards.
7.3.1-12 Period of Performance
- insert clause in all awards for
services.
7.3.1-13 OIG Fraud Hotline - insert clause in all awards.
7.3.1-14 Order of Precedence - insert clause in all awards.
7.3.1-15 Governing Law - insert clause in all awards.
7.3.2-1 Description of Goods or
Services - insert provision in all
solicitations.
7.3.2-2 References to Time - insert provision in all solicitations.
7.3.2-3 Outreach Program: SDB,
Minority-Owned and Women-Owned Business Concerns - insert provision in solicitations that will result in an award
exceeding $100,000.
7.3.2-4 Site Visit - insert
provision in solicitations when services will be performed on-site at FDIC and
a site visit will be allowed prior to award.
7.3.2-5 Offerors’ Conference - insert provision in solicitations when an offerors'
conference will be held.
7.3.2-6 Questions Regarding
Solicitation - insert provision in
all solicitations.
7.3.2-7 Submission of Offers in
the English Language and in
7.3.2-8 Award of Contract –
Competitive - insert provision in
all solicitations which are competed.
7.3.2-9 General Proposal
Instructions - insert provision in
all solicitations.
7.3.2-10 General Proposal
Instructions – Oral Presentation - insert
provision when proposal evaluations will include the use of oral presentations.
7.3.2-11 Pricing Proposal
(Firm-Fixed-Price) - insert
provision in solicitations that will result in firm fixed priced contracts. For awards greater than $1,000,000, include
paragraph (d).
7.3.2-12 Pricing Proposal
(Time and Material or Labor Hour) - insert provision in solicitations for time and
material or labor hour contracts. For
awards greater than $1,000,000, include subparagraph (e).
7.3.2-13 Effective Period of
Offer - insert provision in all
solicitations.
7.3.2-14 Non-Responsive
Proposals -
insert provision in all solicitations.
7.3.2-15
7.3.2-16 Past Performance -
Proposal Instructions - insert
provision in solicitations when past performance information will be
evaluated.
7.3.2-17 Best Value Evaluation
Process - insert provision in
solicitations when the evaluation is based on best value.
7.3.2-18 Evaluation of
7.3.2-19 Reserved
7.3.2-20 Evaluation of Past
Performance - insert provision in
solicitations when past performance will be evaluated.
7.3.2-21 Description/Specifications/Work Statement - insert in
awards where either a SOW or a SOO and PWS or another form of work statement is
included as an attachment in Section J
of the award document.
7.3.2-22 Evaluation of Pricing
- insert provision in all
solicitations. The provision may be tailored by the Contracting Officer to
accommodate the contract type and pricing arrangement.
7.3.2-23 Evaluation of
Financial Capability - insert
provision in solicitations for contracts over $1,000,000.
7.3.2-24 Technical Approach - insert provision in solicitations when the submission
of a technical approach is required (Use in conjunction with the provision
7.3.2-15,
7.3.2-25 Management Plan - insert provision in solicitations when the submission
of a management plan is required. (Use in conjunction with the provision
7.3.2-15,
7.3.2-26 Key Personnel - insert
provision in solicitations when information on Key Personnel is required. (Use
in conjunction with the provision 7.3.2-15,
7.3.2-27 Oral Presentation -
insert provision in solicitations when proposal evaluations will include the
use of oral presentations. (Use in conjunction with 7.3.2-10, General Instructions – Packaging the
Proposal (Oral Presentation).
7.3.2-28 Late Proposals,
Modifications of Proposals, and Withdrawal of Proposals - insert provision in all solicitations.
7.3.2-29 Award - Best Value - insert provision in all solicitations in which award
is based on best value.
7.3.2-30 Rejecting
Proposals/Waiving Informalities -
insert provision in all solicitations.
7.3.2-31 Pre-Award Site Visit - insert
provision in solicitations where the Contracting Officer has decided a
pre-award site-visit may be conducted.
7.3.2-32 Compliance with
Presidential $1 Coin Act of 2005 - insert
clause in contracts where the contractor is operating a business on federal
premises.
7.3.2-33 Independent
Contractors - insert clause in all
awards.
7.3.2-34 Duty to Deliver or
Perform - insert clause in all
awards.
7.3.2-35 Calendar Days - insert clause in all awards.
7.3.2-36 Task Order - insert clause in all basic ordering agreements, receivership basic ordering agreements, and
BPAs, where task orders will be issued. The Contracting
Officer must choose a method for task order awards.
7.3.2-37 Audit of Records - insert clause in all awards that exceed $100,000.
7.3.2-38 Scope of Services –
Task Orders - insert clause in all
task order awards.
7.3.2-39 Incorporation of
Terms and Conditions – Task Orders/Delivery Orders - insert
clause in all task orders and delivery orders.
7.3.2.40 Change in Physical
Location - insert clause in all
awards.
7.3.2-41 FDIC Personnel - insert clause in all awards.
7.3.2-42 Contractor Personnel
- insert clause in all awards.
7.3.2-43 Key Personnel - insert
clause in all awards in which the Program Office has determined key personnel
are required.
7.3.2-44 Representations of
Contractor - insert clause in awards
over $100,000.
7.3.2-45 Preamble to
Contractor Representations and Certifications - insert provision in solicitations for awards over
$100,000.
7.3.2-46 Integrity and Fitness
Representations and Certifications - insert
provision in solicitations for awards for services over $100,000.
7.3.2-47 Additional
Information - Representations, Certifications and Other Statements of the
Offeror - insert provision in solicitations for contracts that
will exceed $100,000.
7.3.2-48 Certification of
Registration in Central Contractor Registration (CCR) - insert provision in solicitations for awards over
$100,000.
7.3.2-49 Reserved
7.3.2-50 Certificate of
Independent Price Determination - insert
provision in solicitations for awards over $100,000.
7.3.2-51 Contingent Fee
Representation - insert provision in
solicitations for awards over $100,000. This certification is not required for
the acquisition of commercial items.
7.3.2-52 Equal Opportunity
Certification - insert provision in
solicitations for awards over $100,000.
7.3.2-53 Reserved
7.3.2-54 Cooperation with the Office of Inspector
General - insert clause in
all awards.
7.3.2-55 Certification and
Disclosure Regarding Payments to Influence Certain Federal Transactions - insert provision in solicitations for awards over
$100,000, when FDIC is acting in its corporate capacity.
7.3.2-56 Task Assignment
Procedures - insert clause in
contracts or task order when task assignments will be used. The Contracting
Officer may tailor the clause, as necessary.
7.3.2-57 Public Release of Contract Award and
Advertising and Publicity Information - insert
clause in all awards.
7.3.2-58 Limitation on Use of
Appropriated Funds to Influence Federal Contracting - insert clause in solicitations for contracts over
$100,000, when FDIC is acting in its corporate capacity.
7.3.2-59 Warranty Concerning Contingent Fees - insert clause in all awards over $100,000, except for
acquisition of commercial items.
7.3.2-60 Anti-Kickback
Procedures - insert clause in awards
over $100,000.
7.3.2-61 Drug-Free Workplace -
insert clause in all awards of any
value to an individual, and in all other awards over $100,000, except contracts
for commercial items.
7.3.2-62 Equal Opportunity - insert clause in all awards over $10,000.
7.3.2-63 Affirmative Action
for Workers with Disabilities - insert
clause in all awards over $10,000.
7.3.2-64 Affirmative Action
for Special Disabled Veterans and
7.3.2-65 Employment Reports on
Special Disabled Veterans and
7.3.2-66 Ozone-Depleting
Substances - insert clause in awards
for supplies that may contain or be manufactured with ozone-depleting substances, or construction awards that may involve the use of ozone-depleting
substances.
7.3.2-67 Reserved
7.3.2-68 Refrigeration
Equipment and Air Conditioners - insert
clause in awards for services that include the maintenance, repair, or disposal
of any equipment or appliance using ozone-depleting substances as a
refrigerant, such as air conditioners, including motor vehicles, refrigerators,
chillers, or freezers.
7.3.2-69 Joint and Several Liability - insert clause in all awards.
7.3.2-70 Legal Representation - insert clause in RBOAs and other receivership contracts where the Legal Division (the branch/section that supports DRR) gives a contractor limited delegated authority to handle legal matters arising out of assets being managed under the RBOA or other receivership contract.
7.3.2-71 FDIC Contracting Capacity - BOAs/RBOAs/BPAs - insert in all awards for BOAs, RBOAs, or BPAs.
7.3.2-72
FDIC Contracting Capacity - Contracts/Task Orders/Delivery Orders - insert in all awards for contracts, task orders, or
delivery orders.
7.3.2-73
Compliance with 12 CFR Part 366 and Application of
12 CFR Part 367 - insert in all awards.
This chapter provides
procedures, guidance and information regarding the use of formal contracting by
FDIC Contracting Officers and the Program Offices they support.
The
Contracting Officer reviews the requisition and requirements package to determine
whether the goods or services are to be procured using formal contracting
procedures, or whether another means of procurement is more appropriate. To do
this, the Contracting Officer must first consider mandatory sources, e.g., Federal
Prison Industries, and AbilityOne. The Contracting Officer may also
consider other available FDIC contracts, General Services Administration Federal Supply
Schedule (FSS) contracts, or other federal agency contracts as
appropriate (see PGI 3.3).
The
Contracting Officer must also consider the statutory requirements addressed in APM
1.208 and PGI 1.208 and PGI 5
(for example, Service Contract Act, Davis-Bacon Act, Section 508, Buy American Act.) when developing the acquisition strategy for the requirement.
When
it is determined that formal contracting is appropriate, use the procedures set
forth below.
3.204(a) Competition
The Contracting Officer, in
conjunction with the Program Office, analyzes the requirement in order to
develop an acquisition strategy appropriate to the procurement. Through this
process, the Contracting Officer strives to promote competition to the maximum
extent possible. The Contracting Officer and the Program Office jointly
determine whether the procurement will be accomplished on a competitive or
non-competitive basis.
3.204(b) Non-Competitive Procurements
When competition cannot be
obtained, and award is made on a non-competitive basis, a Justification for
Non-Competitive Procurement (JNCP) is required. See PGI 2.206
for detailed information on preparing a JNCP. The following procedures are followed when using
non-competitive procedures. The Contracting Officer requests a proposal
directly from the approved source. The proposal is then evaluated both for
technical and price considerations by the Program Office and Contracting
Officer. The technical evaluation is documented by the Program Office and the
Contracting Officer prepares the Price Evaluation Memorandum (PEM) found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
These documents must be included in the official contract file. The PEM is
tailored to the procurement, and must include, as applicable:
(1)
A statement of
the purpose of the procurement;
(2)
A procurement
history summary;
(3)
A concise description
of the procurement action;
(4)
Realism and
reasonableness determinations, as discussed below;
(5)
Funding
information; and
(6)
A statement
regarding inclusion in the Contract Assessment Report addressed at
APM 6.3, if over $5,000,000.
(7)
The PEM must
identify whether or not the contractor is Minority-Owned, Women-Owned, Small
Disadvantaged Business, Veteran-Owned, and/or Service Disabled Veteran
Owned. If Minority-Owned, also identify
the company’s ethnic/racial category from the following list: Asian-Pacific
American, Subcontinent Asian (Asian-Indian) American, Black American, Hispanic
American, Native American, and Other Than One of the Preceding.
Price analysis must be
conducted and summarized in the PEM. The analysis must include a summary of the
contractor’s proposal and related discussions covering
labor, material, travel and any other cost categories. The Contracting Officer
must make a determination of price reasonableness, using information regarding price realism provided by
the Program Office and other information gained during analysis of the
offeror’s price proposal. The PEM must be approved in accordance with the
approval levels found in the matrix at Appendix B, Approvals Memorandum and Matrix.
The
same information covered in PGI 3.105
(identifying potential sources for simplified procurements) applies to PGI
3.205 (identifying potential sources for formal acquisitions).
Source selection planning is documented through
development of a Source Selection Plan (SSP). The SSP is
a confidential document and is not to be disclosed to the public; each page
must be marked “Procurement Sensitive Information: Not for Public Disclosure.” The SSP template is
available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
3.206(a) Source Selection Methodology
The Contracting Officer must
tailor the selection process to the specific requirements and objectives of the
acquisition. The source selection methodology must be detailed in the SSP. The Contracting Officer must draw on the advice of
program, technical, legal, and policy personnel in the acquisition planning
stage when determining the methodology that is to be used. Once the decision to
compete an acquisition has been made, the Contracting Officer must determine
which source selection methodology is appropriate. FDIC has two methods
available: price only and best value.
Selecting among the price
only or best value methods for
source selection involves a determination of the relative importance of price
to other factors. The method selected depends upon the complexity of the goods
or services to be acquired, as well as the dollar value, and procurement
lead-time.
(1)
Price Only Method: The price-only method is generally used
for non-complex, routine requirements. This method calls for the selection of
the offeror whose proposal meets certain specifications (e.g., delivery dates
or performance levels) and who offers the lowest price. Routine goods or
services that fall within the facilities, information technology equipment, and
training (manuals/courses) program areas are good examples of requirements that
are candidates for this method. Under certain situations, the Contracting
Officer and the Program Office may determine that limited "pass/fail"
technical evaluation factors must be included, in addition to evaluating price
and past performance. “Pass/Fail” evaluation ratings are based on whether the
offeror meets the minimum technical requirements and can be considered for
award.
(2)
Best Value Method: The best value method is appropriate for acquisitions
requiring innovative solutions or a high level of technical expertise. This
method allows for the evaluation of technical factors in addition to price and
past performance. This method provides flexibility in selection through
tradeoffs between price and non-price evaluation factors with the intent of
awarding to the contractor that offers FDIC the best value for its money.
When using the best value approach, adjectival ratings are assigned to
the technical factors, coupled with a confidence rating for past performance,
and a determination of reasonableness, realism, and completeness for price. The use of color coding is the primary best value approach used by
FDIC, however, other descriptive methods such as technical points may also be
used to arrive at the adjectival rating. The
color coded ratings and their definitions in Table 2.
Table 2. Color
Coded Ratings for Best Value Method
Color |
Rating |
Definition |
Blue |
Exceptional |
Exceeds
specified minimum performance or capability requirements in a way beneficial
to FDIC. |
Green |
Acceptable |
Meets
specified minimum performance or capability requirements necessary for
acceptable contract performance. |
Yellow |
Marginal |
Does not
clearly meet some specified minimum performance or capability requirements
necessary for acceptable performance, but any proposal inadequacies are
correctable. |
Red* |
Unacceptable |
Fails to
meet specified minimum performance capability requirements. |
* Proposals
with an unacceptable rating are not awardable.
3.206(b) Establishing Evaluation Factors
Evaluation
factors and sub-factors must be developed, based on the requirements of the
procurement. These factors are used to evaluate the offerors’ proposals and
must be stated in the SSP and disclosed to potential
offerors in the request for proposal (RFP). Evaluation factors must be chosen that require the
offeror to provide evidence of its ability to perform. The factors that relate
to the most critical aspects of the SOO or SOW must be
predominant in the technical evaluation. The use of too many evaluation factors
is undesirable and must be avoided because it can lead to an unintentional
leveling of evaluation scores.
Contracting
Officers shall provide the selected TEP members with sufficient advance notice
of the dates designated for proposal evaluation, and any changes to those
dates. Contracting Officers shall invite
OMWI to participate
in all TEPs. OMWI may participate in any
TEP, subject to their discretion and resource availability.
The
RFP is the vehicle
FDIC uses to give potential offerors all the information they need to submit a
proposal. The Contracting Officer must carefully craft the RFP to clearly
articulate to potential offerors FDIC requirements, proposal submission
requirements, evaluation methodology and the selection criteria to be used.
3.208(a)
Request for Proposal Content
The
RFP must include,
as applicable:
(1)
Required date,
time and place for submitting proposals;
(2)
The period of
time that the proposals must remain valid in order to allow FDIC to complete
its evaluation (s), typically ninety (90) calendar days. However, the Contracting Officer has the
discretion to specify a longer or shorter proposal acceptance period;
(3)
Pricing
schedule;
(4)
Description of
the requirement, including the SOO, SOW, as appropriate;
(5)
Delivery or
performance information, including required delivery date or performance
schedule, and place of performance;
(6)
Contract clauses
and provisions;
(7)
Proposal
instructions, including submission instructions (e.g., mail, email, limits on
number of pages, format);
(8)
Basis for award,
including evaluation factors and sub-factors; and
(9)
Information
required for evaluation, including items such as:
§
Statement of the
firm's ability to meet the performance/schedule requirements;
§
Proposed
staffing with supplemental information, such as resumes or professional
qualifications;
§
Compliance with
FDIC insurance requirements
or other licensing prerequisites; and
§
Statement of the
firm's relevant experience, including past FDIC
experience, with references.
3.208(b)
Review of Request for Proposal
The Contracting Officer must obtain any required
reviews and approvals, as addressed in APM
5.15 (legal review requirements), and Appendix B, Approvals Memorandum and Matrix, prior to issuing the RFP.
3.208(c)
Response Time
The
Contracting Officer must establish a due date and time that gives offerors
sufficient time to respond to the RFP. The Contracting Officer may consider the complexity
and/or dollar value of the contract and any unique characteristics to determine
the appropriate response time.
3.208(d)
Offeror Questions
During
the solicitation process, interested firms must submit all questions in
writing. The Contracting Officer must respond in a timely manner, using
information obtained from the Program Office, OMWI, Legal, or other resources, as appropriate. The
Contracting Officer must send the questions and FDIC responses to all firms on
the solicitation list.
The
Contracting Officer and the Program Office must jointly determine the need for
an offerors’ conference, and site visit, if appropriate. Site visits may be used
when offerors need to see the facility or resource in question in order to
submit a proposal for the anticipated contract performance.
If
it is determined that a conference is necessary, the Contracting Officer must
ensure that:
(1)
The timing is as
early as possible in the process;
(2)
The Program
Office is represented to discuss the requirement; and
(3)
The Contracting
Officer is present to discuss solicitation and contract issues.
If
there is a significant delay in scheduling the offerors’ conference, the
Contracting Officer must promptly issue an RFP amendment
extending the due date for submission of proposals.
3.208(f)
Solicitation Amendments
If
the RFP must be
amended, the Contracting Officer must send amendments to all firms in the
competitive range, if one is established, and allow sufficient time to
permit offerors to consider all changes. The Contracting Officer should request
that each offeror confirm receipt of each amendment, either immediately after
it is received, or with the offeror’s proposal.
FDIC
uses oral presentations, along with pricing and other written information,
for the purpose of evaluating an offeror’s understanding and capability to
perform the requirements and to select the successful offeror. The Contracting
Officer may require each offeror to submit all or part of its technical and
management proposal through oral presentations. However, offerors must submit
their pricing proposal, representations and certifications, any required
background investigation forms, and a
signed proposal cover sheet (including any exceptions to FDIC terms and
conditions) in writing. The following illustrates the details of conducting
oral presentations:
(1)
Every Technical
Evaluation Panel (TEP) member must attend all presentations, unless the
ASB Associate Director has approved the member’s absence in writing, and the
Contracting Officer has documented the file appropriately;
(2)
FDIC does not
discuss an offeror’s strengths or weaknesses, nor conduct negotiations during
the oral presentation;
(3)
Changes to the oral
presentation are not
permitted after the stated due date for offerors’ responses;
(4)
FDIC reserves
the right to videotape or otherwise record all presentations, including
question and answer sessions. Copies of video taped presentations or other
recordings are not made available to
individual offerors. The Contracting Officer must ensure that the offerors do
not record their presentations using audio or videotape, or any other
method/medium;
(5)
Offerors’
statements made during the oral presentations do not become
a part of any contract resulting from the RFP, unless FDIC and an offeror agree to make such
information a part of the contract. When
an oral presentation includes information that the parties intend to include in
the contract as material terms or conditions, the information must be put in
writing. Incorporation by reference of oral statements is not permitted;
(6)
Oral
presentations are intended
to demonstrate the offerors’ understanding of the FDIC requirement and the
offerors’ capability. Therefore, the
Contracting Officer must specify in the solicitation the topics that must be
addressed by the offerors during the oral presentation;
(7)
If the offeror
will be engaged in a question-and-answer session during the oral presentation, the Contracting Officer must specify such in the
solicitation. FDIC evaluators must focus their questions on the offeror's understanding
of the requirement, and its capabilities;
(8)
No cost or price
information should be discussed in the oral presentation or during any
question and answer sessions; and
(9)
The Contracting
Officer must also address the following in the solicitation:
§
Role and/or
qualifications of the presenters;
§
Anticipated
dates and location for the oral presentations;
§
The media to be
used for the presentation (PowerPoint or equivalent software);
§
The number of
paper copies and electronic copies to be submitted; and
§
Time limits for
the presentation and question-and-answer session.
Proposals may be
submitted by electronic mail,
3.209(a)
Due Date
In
the case of proposals received electronically, the date and time of the e-mail
is considered the official time of receipt of the proposal. For proposals
delivered to the FDIC mailroom, the Contracting Officer must advise the
mailroom staff that proposals are expected, and provide them the RFP number at
least two (2) days prior to the required due date. The mailroom staff is
responsible for date and time stamping each proposal and delivering the package
to the Contracting Officer.
3.209(d) Non-Responsive Proposals
Examples
of reasons a proposal may be deemed non-responsive include, but are not limited
to:
(1)
The offeror is
debarred or suspended;
(2)
The offeror’s
proposal does not comply with the specified RFP instructions;
(3)
The proposed
delivery date is later than the required delivery date specified in the RFP;
(4)
The proposal
does not comply with FDIC or other government standards specified in the RFP;
(5)
The proposed
price is determined to be grossly unrealistic; or
(6)
The proposal
acceptance period does
not comply with the RFP.
3.209(e)
Solicitation Cancellation
When a Program Office
requests the cancellation of a solicitation, it must provide the Contracting
Officer with the rationale for the cancellation and also cancel the requisition
in the New Financial Environment. The Contracting Officer must document the official
contract file with the reason for the cancellation.
Proposal
evaluation is an assessment of the proposal and the offeror’s ability to
perform the prospective contract successfully. Proposal evaluation encompasses
an evaluation of the mission (technical) capabilities of the offerors, past
performance, price analysis, and evaluation of any additional elements, for example Section 508
compliance. Further information follows on key evaluation areas.
During
evaluation, the Contracting Officer must monitor the proposal acceptance period defined
in the RFP and submitted
in the proposals and request extensions as necessary.
3.210(a)
The
TEP evaluates each
proposal individually, based on the instructions and evaluation factors
provided in the SSP and RFP. The TEP does not
evaluate proposals against each other. Generally, evaluators take the following
steps in the evaluation process:
(1)
Review each
proposal for organization and contents;
(2)
Analyze each
proposal section provided by the Contracting Officer using the evaluation
factors, corresponding standards, and any proposal instructions; and
(3)
Document the
review of each proposal section with ratings and written narratives, describing
both strengths and weaknesses and analyzing their relative importance to the
requirement.
3.210(b) Past Performance Evaluation
The
Contracting Officer receives the completed past performance questionnaires from other
government agencies and commercial entities and provides them to the TEP along with
each offeror's proposal. The TEP may contact the individuals who
completed the questionnaires and any other references in order to obtain
clarification on comments or
to ask follow-up questions.
The
Contracting Officer must search the FDIC Contractor Performance Evaluation
System (in
SharePoint) and provide the TEP with any
recent/relevant performance evaluation forms for the contractor whose
performance is being evaluated.
The
Contracting Officer may obtain additional past performance information from the National
Institute of Health’s Contractor
Performance System available at https://cps.nih.gov.
The
TEP conducts a
structured past performance evaluation that examines an
offeror's relevant present and past performance record to determine its ability
to perform as proposed. The past performance evaluation considers
demonstrated accomplishment of the services outlined in the SOO or SOW, to include the experience and capabilities of the
contractor and its key personnel, and the offeror's overall performance record.
Offerors
without a record of relevant past performance, or for whom information on past performance is not available, are not
evaluated favorably or unfavorably on past performance and, as a result,
receive a "neutral/unknown confidence" rating for the past
performance factor. More recent and more relevant performance has a greater
impact on the past performance confidence assessment than less recent or
relevant effort(s). Likewise, a more relevant past performance record may
receive a higher confidence rating and may be considered more favorable than a
less relevant record of favorable performance. Past performance
information for subcontractors or team members is valued in proportion to the
amount of work they are expected to perform.
A
relevancy rating is assigned using the definitions specified in Table 3 below:
Table 3. Relevancy
Rating
RATING |
DEFINITION |
Highly
Relevant |
The
magnitude of the effort and the complexities on this contract are essentially
what the solicitation requires. |
Relevant |
Some
dissimilarities in magnitude of the effort and/or complexities exist on this
contract, but it contains most of what the solicitation requires. |
Not
Relevent |
Performance on this contract
contains relatively no similarities to the performance required by this
solicitation. |
A
past performance confidence
assessment rating is assigned using the definitions specified in Table 4.
Table 4. Past
Performance Confidence Assessment Rating
RATING |
DEFINITION |
Exceptional/High
Confidence |
Based on
the offeror's performance record, essentially no uncertainty exists that the
offeror will successfully perform the required effort. |
Very
Good/Significant Confidence |
Based on
the offeror's performance record, little uncertainty exists that the offeror
will successfully perform the required effort. |
Satisfactory/ Confidence |
Based on
the offeror's performance record, some uncertainty exists that the offeror
will successfully perform the required effort. |
Neutral/Unknown
Confidence |
No
performance record identifiable. |
Marginal/Little
Confidence |
Based on
the offeror's performance record, substantial uncertainty exists that the
offeror will successfully perform the required effort. Changes to the
offeror's existing processes may be necessary in order to achieve contract
requirements. |
Unsatisfactory/No
Confidence |
Based on
the offeror's performance record, extreme uncertainty exists that the offeror
will successfully perform the required effort. |
3.210(c) Price Evaluation
Price
evaluation includes a determination of price reasonableness and price
realism.
(1)
Price Reasonableness: The preferred method of determining price
reasonableness is through
effective competition. The requirement for seeking competition is satisfied
when:
§
Two or more
responsive offerors, competing independently, submit proposals that satisfy the
FDIC requirement, and award is made to the offeror whose proposal represents
the best value; or
§
Only one
proposal is received, but the Contracting Officer can reasonably conclude that
the proposal was submitted with the expectation of competition.
In the absence of competition, or when only one
proposal is received in a competitive environment, the following methods may be
used to determine price reasonableness:
§
Compare proposed
prices with prices for same or similar goods or services in comparable
quantities acquired under previous or existing contracts, when the original
prices were determined fair and reasonable;
§
Compare proposed
prices with competitive published catalogs or lists, including FSS pricing,
published market prices or commodities, similar indices, and discount or rebate
arrangements;
§
Compare proposed
prices with the FDIC independent cost estimate when the basis for the cost
estimate is known; or
§
Compare set
prices required by law or regulations.
(2)
Price Realism: The TEP evaluates
price proposals to determine whether the proposed price for the work is
realistic. A realistic price is one that reflects a clear understanding of the
requirement and is consistent with the offeror’s technical proposal. The
elements of a price proposal can provide insight into an offeror's
understanding of the requirement. If an offeror's total proposed price either
greatly exceeds or falls far short of the Program Office estimate for the
requirement, the offeror's understanding of what is required must be
questioned. The TEP review and
determination includes the appropriateness of:
§
The number and
qualifications of personnel to be assigned to the various aspects of the
proposed work;
§
Proposed labor
rates or proposed material fees; and
§
The price,
amount, and necessity of travel.
If the TEP cannot perform the
price realism duties, the TEP Chairperson performs this function. The TEP Chairperson
includes price realism analysis in the TEP report
discussed in section 3.214, or in a written memorandum
to the Contracting Officer.
3.210(d) Technical
Evaluation Panel Briefing
Prior
to distributing the proposals to the TEP, the Contracting Officer briefs the TEP members on
their roles and responsibilities and on their obligations to safeguard the
proposals in their possession in order to prevent unauthorized disclosure. The
Contracting Officer must ensure the TEP members sign
the required Confidentiality Agreement
and Conflict of Interest Certification
(see APM
3.207(c)).
The
Contracting Officer must provide detailed written and verbal instructions on
the mechanics of evaluating each proposal, and a copy of the SSP, RFP, any RFP amendments.
The briefing agenda typically includes, but is not limited to:
(1)
Evaluators'
responsibility for protecting contracting information, including documentation
requirements and use of the standard protective marking statement
"Procurement Sensitive Information – Not for
Public Disclosure" on all proposal evaluation documents;
(2)
Identification
of the proposals received;
(3)
The schedule for
completing the evaluation;
(4)
Key solicitation
terms and conditions and significant SOW contents;
(5)
The process the
TEP follows in its
review;
(6)
Any proposal
format requirements;
(7)
Instructions for
requesting clarifications;
(8)
Evaluation
factors and their corresponding standards;
(9)
The past
performance evaluation
process; and
(10)
The TEP consensus
process.
Upon
completion of the briefing, the Contracting Officer provides the TEP with copies of
the proposals. Usually, the Contracting Officer does not provide the TEP with the price
proposals until after the TEP has completed
its technical evaluation. However, the
Contracting Officer may, with the approval of the respective ASB Assistant
Director, provide the price proposals to the TEP at the same
time as it is given the technical proposals, if appropriate for the
acquisition.
The
Contracting Officer communicates with offerors through two different levels of
exchange, clarifications and discussions. The level of exchange is determined by the degree
of interaction necessary for the Contracting Officer to make the award.
3.211(a) Clarification of Proposals
Clarifications
are limited exchanges between FDIC and offerors that do not result in a change
to the offeror’s proposal or price. Rather, a clarification simply
explains an area of a proposal that is ambiguous, for example, conflicting
statements in the proposal; or is otherwise unclear, such as a clerical
error. In this level of exchange, the
Contracting Officer requests in writing that the offeror(s) clarify certain
aspects of proposals or resolve minor or clerical errors.
During
the evaluation process, if TEP members need
clarification on any part of
a proposal, the TEP Chairperson
may request it from the Contracting Officer. Only the Contracting Officer has
the authority to request clarification from an offeror, and the Contracting
Officer must request clarification in writing. Contracting Officers must
instruct the offeror to provide supplemental information of a strictly
explanatory nature. An offeror must provide the clarification in writing, but
may not change any part of the proposal as a result of the clarification
request. If the offeror provides information that changes the contents of its
proposal, the Contracting Officer can disregard the changes, eliminate the
proposal from further consideration, or waive the matter as a minor
informality, if that is the case. All clarifications must be documented in the
official contract file.
3.211(b)
Discussions
Following
the initial evaluation of the proposal, if there is no one successful offeror,
the Contracting Officer must determine which offerors are within the
competitive range. Technical and/or price discussions must be held
with each offeror in the competitive range. Discussions are
negotiations between the offeror and FDIC. The discussions enhance FDIC
understanding of the proposal, allow reasonable interpretation of the proposal,
and facilitate the evaluation process.
Discussions are tailored
to each offeror’s proposal, and must be conducted by the Contracting Officer.
The primary objective of discussions is to maximize the ability of FDIC to
obtain best value, based on the requirement and the evaluation factors
set forth in the solicitation.
Before
holding discussions, the Contracting Officer normally meets with members
of the TEP to review the
findings. During this meeting, the Contracting Officer must determine what
information to provide to, and request from, offerors in the competitive range concerning
their proposals.
With
the assistance and participation of the TEP, the Contracting Officer conducts the discussions,
face-to-face, telephonically, or in writing, and may include technical, price,
or other issues. The Contracting Officer must control the discussions to ensure
they are conducted fairly. Discussions are not a
general question-and-answer period for each offeror; rather, the Contracting
Officer must ask specific questions to clarify uncertainties in the proposal.
During
discussions, the Contracting Officer must:
(1)
Advise the
offeror of deficiencies in its proposal based upon the TEP's evaluations;
(2)
Attempt to
resolve any uncertainties concerning the offeror's proposal;
(3)
Identify and
resolve suspected mistakes by calling them to the offeror's attention without
disclosing information on other offerors' proposals or the evaluation process;
(4)
As appropriate,
inform an offeror that FDIC considers its price to be too high, or too low;
and.
(5)
Discuss adverse
past performance information to
which the offeror has not previously had an opportunity to comment.
During discussions the
Contracting Officer must ensure that FDIC personnel do not:
(1)
Help an offeror
bring up a proposal to the level of other proposals
through successive discussion opportunities
(see Limits on Communications at PGI
3.211(c) below;
(2)
Indicate to an
offeror that a price must be met to obtain further consideration; or
(3)
Furnish
information about other offerors' proposed prices.
After
discussions are completed,
offerors are given the opportunity to revise or clarify their proposals through
submission of a best and final offer (BAFO).
3.211(c)
Limits on Communications
FDIC personnel involved in
any acquisition must not engage in conduct that:
(1)
Favors one
offeror over another;
(2)
Helps an offeror
bring up a proposal to the level of other proposals through successive
discussion opportunities;
(3)
Reveals an
offeror’s technical solution, including unique technology, innovative and
unique uses of commercial items, or any information that would reveal one
offeror’s intellectual property to another
offeror;
(4)
Reveals an
offeror’s price or indicates to an offeror that a price must be met to obtain
further consideration;
(5)
Reveals the
names of individuals providing reference information about an offeror’s past
performance; or
(6)
Knowingly
furnishes source selection information.
After discussions are concluded,
the Contracting Officer must solicit BAFOs from all offerors in the competitive
range. A BAFO template is provided on the ASB
website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
The request includes:
(1)
Notice that the
Contracting Officer has concluded discussions;
(2)
Notice of the
opportunity to submit BAFOs by revising price proposals,
technical proposals, or other terms and conditions of the original proposals;
and
(3)
A due date and
time that allows a reasonable opportunity for submission of a written BAFO.
After the Contracting Officer has received and
reviewed the BAFO submissions,
the TEP reconvenes to
evaluate them. The TEP follows the same process used to evaluate the original
offers, including a TEP consensus meeting and a price realism determination
after the technical evaluation. However, the TEP only considers the changes
resulting from the BAFO. For any changes that affect the technical evaluation,
the TEP members complete a TEP Evaluation
Rating Form found on the ASB website (http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html)
that addresses any changes to the offers made by the BAFOs The TEP Chairperson
documents the BAFO evaluation results in a TEP addendum.
3.214(a) Technical Evaluation Panel Report
(1)
Technical Evaluation Panel Consensus
The
goal for the TEP is to reach
consensus on the merits of each proposal, relative to the evaluation factors.
After the individual TEP members have completed and documented their
evaluations of each proposal, using a
TEP Evaluation/Rating Form found on the
ASB website (http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html),
the TEP discusses the strengths and weaknesses of each proposal. The TEP must attempt
to achieve a consensus rating for each evaluation factor using a rational,
agreed upon method, e.g., thorough discussion. If the TEP cannot reach a consensus rating, the TEP
Chairperson decides the rating.
(2)
Technical Evaluation Panel Report
The TEP Chairperson provides
the Contracting Officer a report which documents the panel’s position on each
offeror’s technical proposal and past performance if part of the evaluation. This report includes:
§
An analysis of
the proposals, including an assessment of each offeror's ability to accomplish
the technical requirements;
§
An analysis of
the strengths and weaknesses and their magnitude by evaluation factor and
subfactor;
§
A consensus
narrative statement summarizing the strengths and weaknesses of each proposal
and the basis for the consensus;
§
Protective
marking statement, “Procurement Sensitive Information - Not for Public Disclosure” on each page; and
§
A price realism analysis (see PGI 3.210(c)(2)).
If performed after submission of the TEP Report, the
TEP must provide a
separate memorandum to the Contracting Officer.
§
Signature of all
TEP members.
Templates for preparation of the TEP report may be
found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
The TEP Chairperson
provides the completed past performance questionnaires, the TEP Report, and
technical evaluation rating forms (both individual and consensus evaluation
rating forms) to support the evaluation to the Contracting Officer for
inclusion in the official contract file.
(3)
Review of Technical Evaluation Panel Report
The Contracting Officer must review the TEP Report and
evaluation rating forms to ensure that the TEP evaluated all
proposals impartially, and in accordance with the evaluation factors listed in
the solicitation. The Contracting Officer must advise the TEP Chairperson of
any deficiencies in, or necessary changes to, the TEP Report. After reviewing the TEP Report, the
Contracting Officer must provide the offerors’ price proposals to the TEP for review, if
they were not provided at the initiation of the TEP evaluation
process.
3.214(b) Selection Recommendation Report
Both
the Contracting Officer and the TEP Chairperson sign the Selection
Recommendation Report (SRR) which includes:
(1)
Purpose;
(2)
Background;
(3)
Solicitation
planning and evaluation references;
(4)
TEP organization
structure;
(5)
Chronology of
events;
(6)
Solicitation
bidders list, (Include the identification of contractors that are
Minority-Owned, Women-Owned, Small Disadvantaged Business, Veteran-Owned,
and/or Service Disabled Veteran Owned.
For Minority-Owned, also include identification of a contractor’s
ethnic/racial category from the following list: Asian-Pacific American,
Subcontinent Asian (Asian-Indian) American, Black American, Hispanic American,
Native American, and Other Than One of the Preceding.);
(7)
Summary of
proposal responses;
(8)
Evaluation
methodology;
(9)
Summary of
initial proposal evaluation results;
(10)
Summary of BAFO evaluation results;
(11)
Summary-Integrated
best value decision;
(12)
Pre-award
verifications (see PGI 3.215(a);
(13)
Recommendation;
and
(14)
Approval.
A
template for preparation of the SRR may be found
on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
The Contracting Officer must ensure the following reviews are
accomplished prior to developing the SRR and executing
the contract. Documentation to support the reviews must be included in the
official contract file.
(1)
Excluded Parties: The Contracting Officer must review the Debarred Vendors List, FDIC Division
of Administration: Debarred Vendors,
found at http://fdic01/division/DOA/buying/fitness/debarredvendors.html
and the Federal Government Excluded Parties
Listing System at http://www.epls.gov
before contract award, regardless of dollar value. Award may not be made to a
firm that is on either list.
(2)
CCR Review: The Contracting Officer must review the Central
Contractor Registration database found at http://www.ccr.gov,
before contract award to ensure the recommended offeror is registered and to
obtain its socioeconomic status. Award
may not be made to a firm that is not registered in CCR, without approval of the respective ASB Assistant
Director.
(3)
Vendor File Review: The Contracting Officer must verify if the recommended firm is listed
in the FDIC Vendor File, which is maintained by the Division of Finance’s Vendor File Maintenance Group (VFMG). If it is not, the Contracting
Officer must obtain the firm’s name, remit to address, tax identification (ID)
number and DUNS number from the CCR database and
send an email to VFMG, DC (email address as stated in Outlook) to request the firm
to be added to the FDIC Vendor File.
Below is a sample format of the email:
To: Vendor File Maintenance Group DC
(Email address is in Outlook address book)
From: Contract Specialist’s Name
Subject: Add Vendor – [Insert Vendor’s Name]
Please add the following
vendor to the vendor file in NFE:
Contractor Name
Street Address
City, State Zip Code
TAX ID #: ______________
DUNS #: ______________
I have verified that this vendor is registered in the
CCR database but
has not been added to NFE. If you have any questions,
please contact [insert Contract Specialist’s name] at x____.
Emails sent to VFMG by 3:00pm are processed the same
day. Emails sent after 3:00pm are processed by 10:00am the next day. VFMG sends
the Contracting Officer a confirmation email with the new vendor ID number when
the firm has been added to the FDIC Vendor File. Award may not be made to a
firm that is not in the FDIC Vendor File.
(4)
Contractor Representations and Certifications: The Contracting Officer must review the information
received through the FDIC Contractor
Representations and Certifications to ensure that offerors comply with
applicable laws and directives.
(5)
Integrity and Fitness Representations and
Certifications: The Contracting
Officer must review the information received through the FDIC Integrity and Fitness
Representations and Certifications to ensure that offerors are eligible to
do business with FDIC.
(6)
Background Investigations: The Contracting Officer must obtain preliminary
background investigation approval of
the contractor and key personnel from the
Security and Emergency Preparedness Section, prior to award. This approval is required when the award exceeds
$100,000 and is for services; or at any dollar amount when contractor personnel or
subcontractor personnel work on-site and have unescorted access to FDIC offices
or facilities, or have access to FDIC networks/systems, or in any other
contract where the Program Office has described a need for background
investigations.
(7)
Financial Capability Review: If the award will exceed $1,000,000, the
Contracting Officer must conduct a financial capability review. A template is
available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html
(8) Peer/Supervisory
Review: Before the award of any contract action,
(including modifications, task orders, and task assignments, etc.) valued at
$1,000,000 or higher, or the award of any BOA, RBOA, or BPA, the Contracting
Officer shall submit the award file for Peer/Supervisory Review.
This review will include:
- Verification that all calculations used in
developing price evaluations are correct;
- Verification that all statements related to
price evaluation and best value determinations are adequately supported in the
contract file; and
- Verification that APM/PGI policy and procedures
have been followed.
The review may be
accomplished by peers or supervisors, at the discretion of the respective ASB
Assistant Director. The review may be
documented by email or memorandum from the reviewer to the assigned contracting
officer confirming that the review has been accomplished. The email or other
evidence of review should be filed in Part III (Selection) of the official
contract file for new contract awards, or in the folder with other supporting
documentation for modifications, task orders, or task assignments.
3.215(b) Selection
Recommendation Report Approval
Once
the Contracting Officer has completed the SRR, it is forwarded for appropriate review and approval
in accordance with Appendix B, Approvals Memorandum and Matrix.
3.215(c) Award Process
Once
the award decision is approved, the Contracting Officer notifies the successful
offeror via email or in writing.
The
Contracting Officer must prepare the contract, incorporating the successful
offeror’s name and address, key personnel information,
compensation ceilings and any other information necessary to complete the award
document. The Contracting Officer sends the original of the contract to the
contractor, who signs and returns it. After executing the contract, the
Contracting Officer sends a copy to the contractor and retains the original for
the official contract file.
The
Contracting Officer must upload the contract into CEFile and provide
CEFile access to the designated Oversight Manager and any designated Technical
Monitors so they can view the contract and maintain their Oversight Manager
file.
3.215(d)
Notice to Proceed – Advance Authorization Letter
Usually, the Contracting Officer has the fully
executed contract in place before a contractor commences work. An advance
authorization letter may be used in limited circumstances, primarily in the
case of urgent or emergency requirements as addressed in chapters 3.4 and 3.5. However, in some cases
(with the prior approval of the respective ASB Assistant Director) the
Contracting Officer may grant a notice to proceed before the execution date,
with supporting documentation. In such cases, the Contracting Officer can
orally authorize a contractor to begin performing before a contract is fully
executed. The Contracting Officer must immediately issue an advance
authorization letter authorizing the contractor to commence work, (The advance
authorization letter template is available at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html).
Before providing oral authorization, the contractor and FDIC must agree to the
terms and conditions, price, and deliverables. The Contracting Officer also
must ensure that the Program Office has provided an approved requisition with
procurement authority in the total amount of the contract. Further details on
use of an advance authorization letter are found in APM
3.4, APM
3.5, PGI 3.4 and PGI 3.5.
3.216(a)
Notification to Unsuccessful Offerors
The notice contains the identity of the successful
offeror, the total price of the successful proposal and procedures for
requesting a debriefing, if a technical evaluation was conducted. A Notification to Unsuccessful Offerors
template is found on the ASB website at
http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
Debriefings are offered to
unsuccessful offerors when technical proposals are evaluated as part of the
proposal evaluation and award process (includes contracts, basic ordering
agreements (BOAs), task orders, and purchase orders). Unsuccessful offerors must request a debriefing in writing within
fifteen (15) calendar days after the offeror is notified of the contract award.
Debriefings may also be
provided to successful offerors upon request.
Debriefings may be held
either by telephone or in person, within a reasonable time, generally within
thirty (30) calendar days.
(1)
Responsibilities: The Contracting Officer is responsible for assembling
information and coordinating the debriefing with the offeror and the TEP Chairperson or
other TEP members.
However, the Contracting Officer does have the discretion to allow other
participants, such as an offeror's subcontractor and counsel to attend. When
requested by the Contracting Officer, Contracting Law Unit participates
in the debriefing. OMWI is given an
opportunity to participate when debriefings are given to minority or women-owned businesses and small
disadvantaged businesses. TEP personnel
should be available for debriefing consultations, before the debriefing. The
Contracting Officer must retain a record of debriefing conferences in the
official contract file.
(2)
Discussion Items: The Contracting Officer introduces all FDIC participants, explains their
respective roles in the selection and award process, and manages the flow of
the meeting.
§
Required
Discussion Items:
o
Evaluation
Structure: An overview of the evaluation structure/process, including the
procedural aspects of the technical and price assessment, the technical
evaluation criteria, and price proposal.
o
Weaknesses in
the Proposal - Future Improvement: It is essential that debriefers provide
useful information that helps the offeror produce a more competitive proposal
in response to future solicitations. For example, if an offeror's proposed
prices were so much higher than most other offerors' prices that they precluded
any real chance of selection, debriefers could stress a general need to trim
proposal prices - without stating any particular price that might be considered
"competitive" or "reasonable." On the other hand, if the
offeror's proposal lacked technical merit, debriefers can identify the general
areas of weakness, but should refrain from making a point-by-point comparison
of all elements considered.
§
Optional
Discussion Items: When
the Contracting Officer considers it appropriate, other items such as the
following may be discussed:
o
General Ranking:
The offerors ranking in general terms, such as within "the top third"
or "bottom half" of the offerors. It is important to concentrate on
the relative nature of the rating system. Debriefers should emphasize that a
low rating does not necessarily mean that an offeror is not qualified to
perform the required services but, rather, that the contractor was not
perceived to be overall as strong as the successful offeror. It is not appropriate
to discuss either the specific ratings or the price proposals of other
offerors. However, the Contracting Officer may disclose the awardee’s price;
o
Number of
sources solicited;
o
Number of
proposals received;
o
Perceived
strengths in the firm's proposal;
o
Procedures for
requesting information under the Freedom of Information Act, if requested; and
o
Procedures for
filing an official protest, if requested.
§
Unauthorized
Discussion Items: These
items must not be discussed or disclosed to the firm being debriefed:
o
The number of
offerors included in the competitive range or requested
to submit BAFOs;
o
The details of
the assessment of the firm being debriefed, or the firm's specific ranking;
o
Any other
offeror's assessment or ranking;
o
The successful
offeror’s proposal;
o
Copies of any
technical or price evaluation sheets, reports, or any other written information
produced by the TEP or the
Contracting Officer during the evaluation process; and
o
Information
relating to the other offerors, including proprietary information.
The contract types discussed
in the following paragraphs represent those used most frequently by FDIC
Contracting Officers. Any of the
contract types discussed in this paragraph may utilize any combination of the pricing
arrangements addressed in 3.217(d) below, as may be appropriate for the
procurement.
(1)
Contract: A contract is used when the scope of work can be described by
stating a definite goal or target or specifying specific goods. A
contract normally requires the contractor to complete and deliver the specified
end goods (e.g., office supplies)
or services, or may be issued for a specific level of effort during the contract period. A contract must not be
used to issue task orders.
(2)
Basic Ordering Agreement: A BOA is not a contract. It is a written instrument of understanding
negotiated between the FDIC and a contractor for future delivery of as yet
unspecified quantities of goods or services. A BOA becomes a binding contract
when a task order is issued. A BOA must contain the following:
§
Terms and
conditions that apply to the basic BOA and any task orders issued against it;
§
A statement that
the contractor is obligated to furnish goods or services, described in general
terms, if and when requested by authorized representatives during a specified
period of time;
§
A statement that
the FDIC is not obligated to place any orders under the BOA;
§
Identification
of the point at which each order becomes a binding commitment, e.g., issuance
of the order, acceptance of the order
in a specified manner, or failure to reject the order within a specified number
of days;
§
Procedures for
placing orders under the BOA, including:
o
The method(s)
for pricing orders under the BOA, if unit prices are not included in the basic
agreement;
o
How proposals will be solicited;
o
How proposals
will be evaluated; and
o
How task orders will be issued.
§
A statement that
orders may only be placed by warranted ASB Contracting Officers;
§
A statement that
no further orders may be placed against the BOA when it has reached its
expiration date; and
§
A ceiling
amount, which represents the total not-to-exceed dollar amount of all task
orders which may be issued under the BOA.
The scope of BOA may be limited to the furnishing of individual
items, groups or classes of goods or services, or it may be unlimited for all
items that a firm is capable of furnishing. A BOA may include established unit
prices and/or labor categories and labor rates. A BOA must not state or imply any commitment by FDIC to place future
orders with the contractor, nor may it be used in any manner to restrict
competition. Any and all goods/services must be authorized by issuance of task
orders. There is no mechanism in a BOA to authorize
and pay for work under the BOA itself.
Often
it is in the best interest of FDIC to establish BOAs with more than
one contractor. Having BOAs with multiple
qualified and capable contractors reduces administrative lead time for
acquiring the good/service once the specific requirement generates; ensures
FDIC will have sufficient support to meet its requirements; and allows for competition
when issuing task orders, thereby providing FDIC with the best value. When it is not feasible
to establish multiple BOAs due to the uniqueness of the requirement or
other reasons, the Contracting Officer must include the reason for establishing
a single BOA for the required goods or services in the official contract file.
The solicitation and
selection of one or more contractors to receive a BOA may be based on either
competitive procedures (see PGI 2.203) or
non-competitive procedures (see PGI 2.206). When
non-competitive procedures are used, all of the contractors selected to receive
a BOA may be identified in a single memorandum to file (for BOAs less than
$100,000) or a single JNCP (for BOAs equal to or greater than $100,000).
The procurement request
authority must be based on the total estimated value of the requirement,
regardless of how many BOAs may be
awarded. However, a purchase requisition must be created for every BOA.
Therefore, after the number of contractors to receive a BOA is determined,
additional purchase requisitions of zero (0) dollar value must be processed.
The ceiling amount on any of the BOAs must not
exceed the dollar value of the procurement request authority approved
initially, or as subsequently increased. Throughout the performance period of
the BOAs, the Program Office and Contracting Officer must
monitor the dollar value of all task orders issued among the BOAs to ensure
their combined amounts do not exceed the procurement request authority dollar value.
The Contracting Officer
must establish the procedures for awarding task orders under the BOA in
consultation with the Program Office. The procedures must be stated in both the
solicitation for the BOA, and in the BOA itself. The Contracting Officer must
ensure that all task orders are issued in accordance with the ordering
procedures included in the BOA. The ordering procedures may include, but are
not limited to, full or limited competition with all BOA contractors, or a form
of rotation among the BOA contractors. Unless the BOA contains procedures for
issuing a task order by rotation, any non-competitive task order issued under a BOA must be justified in accordance with PGI 2.206.
Each BOA must be reviewed
annually before the anniversary of its effective date and revised as necessary
to conform to the requirements of the APM. A BOA may be changed only by
modifying the agreement itself and not by modifying individual task orders
issued under it. Modifying a BOA does not retroactively affect the task orders
previously issued under it.
(3)
Receivership Basic Ordering Agreement: A
receivership basic ordering
agreement (RBOA) is used to expedite the acquisition of goods and/or services
in support of failing or failed financial institutions and their subsidiaries.
An RBOA is similar to a BOA in all respects except the following:
§
It is limited to
awards in support of the Division of Resolutions and Receiverships (DRR) as it conducts pre- and post-closing activities of
failing or failed financial institutions, prepares for and performs the duties
of receiver in the pre- or post-closing period, or deals with related
subsidiaries.
§
It does not
contain a ceiling amount. Because the amount of goods and/or services to be
acquired during the period of an RBOA depends on the size and number of
financial institution closings, as well as on existing levels of current asset
sales, it is virtually impossible for DRR to accurately
forecast a ceiling amount applicable to the RBOA(s). Furthermore, having an
inaccurate ceiling amount for the RBOA(s) could result in the repeated need to
increase the ceiling amount; thereby extending the time before new task orders
could be issued. Hence, an RBOA does not contain a ceiling amount. Instead,
dollar value ceiling controls are established at the task order level, versus
the RBOA level, allowing DRR the ability to
formulate requirements and resultant cost estimates as needs become better
defined.
§
The dollar value
of the procurement request authority is zero, for the same reason addressed
above as to why an RBOA does not contain a ceiling amount. Whether there are
one or multiple RBOAs, a zero (0) dollar purchase requisition must be created
for every RBOA.
§
RBOAs and task
orders issued under RBOAs may also be used with the expedited and emergency
contracting procedures addressed at PGI 3.5.
3.217(b) Task
Orders
Orders for the acquisition
of goods or services, issued under a BOA or an RBOA are known as task orders.
Only warranted ASB Contracting Officers may issue task orders. Task orders
issued under either a BOA or RBOA are entered into in the same capacity as the
respective BOA or RBOA, unless multiple capacities are authorized in the BOA or
RBOA.
Although task orders may
also include the ordering of goods, the term delivery order is typically used when the order
is only for goods. Nevertheless, the following guidance on task orders applies
regardless of whether the order is for goods or services. The goods or services
to be acquired on the task order must be within the scope of the work
identified in the ordering agreement. The issuance of a task order must be in
compliance with the procedures identified in the BOA or RBOA. The delivery of
goods and the performance of services, ordered in a task order, must be
completed during the period of the ordering agreement.
The issuance of a task order
creates a contract. It contains a unique task order number, negotiated price,
performance period/delivery schedule, requirements document, and contractually
binding signatures. The requirement document is usually in the form of either a
SOW or performance
work statement (PWS). Invoicing,
payments, closeout, and (if necessary) terminations, are accomplished
at the task order level.
The following documents, as
applicable, are required to be processed for each task order, subject the
dollar thresholds and approval levels identified in the February 20, 2007
letter "Revised Procurement-Related Delegations and Re-Delegations of Authority
Limits" and the Approvals Matrix, both found at Appendix
B, Approvals Memorandum and Matrix:
(1)
Purchase
requisition;
(2)
Acquisition Plan;
(3)
Source Selection
Plan;
(4)
Justification
for Non-Competitive Procurement;
(5)
Solicitation;
and
(6)
SRR or PEM.
Legal review of the
acquisition plan, solicitation, and task order award document are subject to
the approval levels identified in APM
5.15, Legal
Review of Acquisition Documents and Contract Actions, and the Approvals Memorandum and Matrix, Appendix B. Task orders over $5,000,000, must be reported
separately in the Contract Assessment Report. Modifications to task orders are subject to the same approvals and
documentation requirements as modifications to contracts (see PGI
6.5).
When task orders are awarded
based on competition among contractors, the source selection process may be
streamlined from that identified in APM
3.206 Source Selection Planning.
However, prior to issuing the request for task order proposal, the streamlining efforts must be approved by the respective ASB
Assistant Director and documented in the official contract file.
Examples of a streamlined
source selection process include:
(1)
Instead of using
color-coding or points in the evaluation of the offerors' technical proposals,
summarize the findings so as to highlight the magnitude of strengths of
weaknesses. These findings are then considered along with price and past
performance (if
applicable) when determining the best value;
(2)
After receipt of
initial proposals, selecting the contractor whose proposal offers the best
value and
negotiating changes to the requirements documents and price with only the
selected contractor; and
(3)
Rotating awards.
3.217 (c) Task Assignments
When
it is necessary to authorize work under a contract or task order, at various
times throughout the period of performance on an as-needed-basis, the vehicle
for authorizing such work is a task assignment. Task assignments involve work
within the scope of the SOW for the
contract or task order for which the specific requirement is not determined
until after contract or task order award. The task assignment is therefore a
subset of the contract or task order. The task assignment must be incorporated
into the contract or task order by bilateral modification. The modification may
or may not involve the addition of line items.
It is recommended the task assignment be assigned a unique number (such
as TA 08-01)for administrative purposes. This number is not an addition to the
contract or task order number, but provides a numerical identification
mechanism for FDIC and the contractor to keep track of the various task
assignments.
The
scope of work associated with any task assignment must be within the scope of
the SOW of the
contract or task order. The period of performance for any task assignment must
not exceed that of the contract or task order, and the total dollar amount of
task assignments must not exceed the ceiling amount of the contract or task
order. Procedures for requesting a
proposal, negotiating, and issuing the task assignment must be identified in
the contract or task order. Because invoices must be submitted
at the contract or task order level, the procedures must identify whether
separate invoices are required for each task assignment.
Only
Contracting Officers have the authority to issue task assignments and this
authority must not be delegated.
Task
assignments do not require an Acquisition Plan, Source Selection Plan, or JNCP. However, a purchase requisition must be approved at the appropriate
level for the dollar value of the task assignment, prior to issuing the task
assignment. A PEM is not
required for a task assignment. However, a determination of price reasonableness must be
documented by the Contracting Officer in a memorandum to the official contract
file. In making the determination, the Contracting Officer must verify that the
negotiated task assignment dollar amount is based on the appropriate skill mix
(labor categories and number of labor hours), which are applied to either previously negotiated
labor rates or labor rates adequately supported in the task assignment
proposal, along with reasonable costs for any material or travel. Legal review is not required for the request
for task assignment, the task assignment, or the modification incorporating the
task assignment into the contract or task order.
3.217(d) Pricing
Arrangements
Any
of the pricing arrangements discussed below may be utilized with any of the
contract types in PGI 3.217(a). As part of acquisition
planning, the Contracting Officer, in coordination with the Program Office,
selects the pricing arrangement most suitable to the procurement. The most
suitable pricing arrangement may be a hybrid utilizing more than one type of
pricing arrangement, when appropriate. For instance, a contract may
include both firm fixed price (FFP) and labor hour line items,
and may further include cost reimbursable items, where contractors are
reimbursed for actual costs for goods or services provided under the contract.
In any of the three categories discussed below, the price or hourly rate
includes all basic costs of performance, including overhead, general and
administrative expenses, profit, and any other specific costs negotiated with
the contractor.
(1)
Firm Fixed Price: A FFP contract,
which best utilizes the basic profit motive of business enterprise, is
appropriate when the risk involved is minimal or can be predicted with an
acceptable degree of certainty. Under a FFP contract, FDIC pays the contractor
a predetermined price for successfully performing the work. This arrangement
represents the least risk for FDIC in that the contract has a predetermined
total price at the time of contract award and is not subject to adjustment
during contract performance. Accordingly, a FFP arrangement places the maximum
risk upon the contractor to manage costs and resulting profit or loss. It
provides maximum incentive for the contractor to control costs and perform
effectively and imposes a minimum administrative burden upon the contracting
parties. FDIC normally issues payment upon delivery and acceptance of the goods
or services. Successful use of this arrangement requires a clear definition of
requirements in the SOW and realistic estimates of work
to be performed. Firm fixed prices include any and all of the contractor's costs
and expenses, direct and indirect, as well as any profit, fee or any markups of
any nature.
(2)
Fixed Unit Prices: A fixed unit price pricing arrangement is one in
which FDIC pays the contractor agreed-upon fixed unit prices for specified
goods or services. Contractor's fixed unit prices include any and all of
contractor's costs and expenses, direct and indirect, as well as any profit,
fee, or any markups of any nature. Fixed unit prices may be appropriate for
requirements such as training courses, office supplies, etc.
(3)
Time and Materials: Time and materials (T&M)
pricing arrangements provide primarily for the procurement of labor services on
the basis of direct labor hours at specified
fixed hourly labor rates, plus the cost of necessary materials. FDIC uses
these contracts when it is difficult to provide a detailed SOW or to estimate
the price or duration of time required for performance. With a T&M pricing
arrangement, FDIC compensates the contractor at the
hourly rates specified in the contract for actual productive work hours
exclusive of travel time, vacation, holiday, sick leave and other absences. The
hourly rates include any and all wages, overhead, general and administrative
expenses and profit or fee. The Contracting Officer may authorize reimbursement
of material
handling expenses in the contract. Any material handling expenses must be
properly applied to direct material (excluding travel, overhead, or any other
allocation). If subcontracting is approved under the contract, the Contracting
Officer must approve subcontractor hourly rates in addition to the prime’s
hourly rates. Subcontractor mark-ups may be permitted, if approved in advance
by the Contracting Officer.
(4)
Labor Hours: A labor hour contract is
similar to a T&M contract, except that FDIC does not require the contractor
to provide materials during performance. As noted under T&M pricing, FDIC compensates the contractor at the hourly rates
specified in the contract for actual productive work hours exclusive of travel
time, vacation, holiday, sick leave and other absences. The hourly rates
include any and all wages, overhead, general and administrative expenses and
profit or fee. If subcontracting is approved under the contract,
the Contracting Officer must approve subcontractor hourly rates in addition to
the prime’s hourly rates. Subcontractor mark-ups may be permitted, if approved
in advance by the Contracting Officer.
(5)
Additional Considerations: Any of the contract types and pricing arrangements
discussed above may include additional requirements that impact the total price
paid to the contractor. These include features such as:
§
Cost
reimbursable items: These are items (goods or services) that are required for
performance of the contract, but would not normally be included in a
contractor’s fixed price or hourly rate. Therefore, the Contracting Officer
includes language in the contract to permit reimbursement of the items on an
actual cost basis. A description of the cost reimbursable items must be
identified in the contract. The contractor must also submit supporting
documentation, such as receipts, with their invoice to show actual
costs incurred.
§
Incentives:
As discussed in PGI 5.7, contracts may include
incentives, such as award term and other applicable performance or delivery
incentives negotiated by the Contracting Officer.
7.3.1-1 Disposition of
Submitted Material - insert
provision in all solicitations.
7.3.1-2 Central Contractor
Registration - insert
provision in all solicitations.
7.3.1-3 Restriction on
Disclosure of Information - insert
provision in all solicitations.
7.3.1-4 Solicitation
Requirements, Terms and Conditions - insert
provision in all solicitations.
7.3.1-5 Price Only Evaluation
Method - insert provision in
solicitations when Best Value is not appropriate and award will be based only
on price.
7.3.1-6 Identification and Delivery of Proposals - insert provision in all solicitations. Fill in the
date and time and select the appropriate address for delivery of proposals.
7.3.1-7 Proprietary Information
- insert provision in all
solicitations.
7.3.1-8 Amendments, Extensions
and Cancellations - insert provision
in all solicitations.
7.3.1-9 Delivery Schedule - insert clause in all awards for goods.
7.3.1-10 Place of Delivery or
Performance - insert clause in all
awards.
7.3.1-11 Deliverables - insert clause in all awards.
7.3.1-12 Period of Performance
- insert clause in all awards for
services.
7.3.1-13 OIG Fraud Hotline - insert clause in all awards.
7.3.1-14 Order of Precedence - insert clause in all awards.
7.3.1-15 Governing Law - insert clause in all awards.
7.3.2-1 Description of Goods or
Services - insert provision in all
solicitations.
7.3.2-2 References to Time - insert provision in all solicitations.
7.3.2-3 Outreach Program: SDB,
Minority-Owned and Women-Owned Business Concerns - insert provision in solicitations that will result in an award
exceeding $100,000.
7.3.2-4 Site Visit - insert
provision in solicitations when services will be performed on-site at FDIC and
a site visit will be allowed prior to award.
7.3.2-5 Offerors’ Conference - insert provision in solicitations when an offerors'
conference will be held.
7.3.2-6 Questions Regarding
Solicitation - insert provision in
all solicitations.
7.3.2-7 Submission of Offers in
the English Language and in
7.3.2-8 Award of Contract –
Competitive - insert provision in
all solicitations which are competed.
7.3.2-9 General Proposal
Instructions - insert provision in
all solicitations.
7.3.2-10 General Proposal
Instructions – Oral Presentation - insert
provision when proposal evaluations will include the use of oral presentations.
7.3.2-11 Pricing Proposal
(Firm-Fixed-Price) - insert
provision in solicitations that will result in firm fixed priced contracts. For awards greater than $1,000,000, include
paragraph (d).
7.3.2-12 Pricing Proposal
(Time and Material or Labor Hour) - insert provision in solicitations for time and
material or labor hour
contracts. For awards greater than $1,000,000, include subparagraph (e).
7.3.2-13 Effective Period of
Offer - insert provision in all
solicitations.
7.3.2-14 Non-Responsive
Proposals -
insert provision in all solicitations.
7.3.2-15
7.3.2-16 Past Performance -
Proposal Instructions - insert
provision in solicitations when past performance information will be
evaluated.
7.3.2-17 Best Value Evaluation
Process - insert provision in
solicitations when the evaluation is based on best value.
7.3.2-18 Evaluation of
7.3.2-19 Reserved
7.3.2-20 Evaluation of Past
Performance - insert provision in
solicitations when past performance will be evaluated.
7.3.2-21 Description/Specifications/Work Statement - insert in
awards where either a SOW or a SOO and PWS or another form of work statement is
included as an attachment in Section J
of the award document.
7.3.2-22 Evaluation of Pricing
- insert provision in all
solicitations. The provision may be tailored by the Contracting Officer to
accommodate the contract type and pricing arrangement.
7.3.2-23 Evaluation of
Financial Capability - insert
provision in solicitations for contracts over $1,000,000.
7.3.2-24 Technical Approach - insert provision in solicitations when the submission
of a technical approach is required (Use in conjunction with the provision
7.3.2-15,
7.3.2-25 Management Plan - insert provision in solicitations when the submission
of a management plan is required. (Use in conjunction with the provision
7.3.2-15,
7.3.2-26 Key Personnel - insert
provision in solicitations when information on Key Personnel is required. (Use
in conjunction with the provision 7.3.2-15,
7.3.2-27 Oral Presentation -
insert provision in solicitations when proposal evaluations will include the
use of oral presentations. (Use in conjunction with 7.3.2-10, General Instructions – Packaging the
Proposal (Oral Presentation).
7.3.2-28 Late Proposals,
Modifications of Proposals, and Withdrawal of Proposals - insert provision in all solicitations.
7.3.2-29 Award - Best Value - insert provision in all solicitations in which award
is based on best value.
7.3.2-30 Rejecting
Proposals/Waiving Informalities -
insert provision in all solicitations.
7.3.2-31 Pre-Award Site Visit - insert
provision in solicitations where the Contracting Officer has decided a
pre-award site-visit may be conducted.
7.3.2-32 Compliance with
Presidential $1 Coin Act of 2005 - insert
clause in contracts where the contractor is operating a business on federal
premises.
7.3.2-33 Independent
Contractors - insert clause in all
awards.
7.3.2-34 Duty to Deliver or
Perform - insert clause in all
awards.
7.3.2-35 Calendar Days - insert clause in all awards.
7.3.2-36 Task Order - insert clause in all basic ordering agreements, receivership basic ordering agreements, and
BPAs, where task orders will be issued. The Contracting
Officer must choose a method for task order awards.
7.3.2-37 Audit of Records - insert clause in all awards that exceed $100,000.
7.3.2-38 Scope of Services –
Task Orders - insert clause in all
task order awards.
7.3.2-39 Incorporation of
Terms and Conditions – Task Orders/Delivery Orders - insert
clause in all task orders and delivery orders.
7.3.2.40 Change in Physical
Location - insert clause in all
awards.
7.3.2-41 FDIC Personnel - insert clause in all awards.
7.3.2-42 Contractor Personnel
- insert clause in all awards.
7.3.2-43 Key Personnel - insert
clause in all awards in which the Program Office has determined key personnel
are required.
7.3.2-44 Representations of
Contractor - insert clause in awards
over $100,000.
7.3.2-45 Preamble to
Contractor Representations and Certifications - insert provision in solicitations for awards over
$100,000.
7.3.2-46 Integrity and Fitness
Representations and Certifications - insert
provision in solicitations for awards for services over $100,000.
7.3.2-47 Additional
Information - Representations, Certifications and Other Statements of the
Offeror - insert provision in solicitations for contracts that
will exceed $100,000.
7.3.2-48 Certification of
Registration in Central Contractor Registration (CCR) - insert provision in solicitations for awards over
$100,000.
7.3.2-49 Reserved
7.3.2-50 Certificate of
Independent Price Determination - insert
provision in solicitations for awards over $100,000.
7.3.2-51 Contingent Fee
Representation - insert provision in
solicitations for awards over $100,000. This certification is not required for
the acquisition of commercial items.
7.3.2-52 Equal Opportunity
Certification - insert provision in
solicitations for awards over $100,000.
7.3.2-53 Reserved
7.3.2-54 Cooperation with the Office of Inspector
General - insert clause in
all awards
7.3.2-55 Certification and
Disclosure Regarding Payments to Influence Certain Federal Transactions - insert provision in solicitations for awards over
$100,000, when FDIC is acting in its corporate capacity.
7.3.2-56 Task Assignment Procedures
- insert clause in contracts or task
order when task assignments will be used. The Contracting Officer may tailor
the clause, as necessary.
7.3.2-57 Public Release of Contract Award and
Advertising and Publicity Information - insert
clause in all awards.
7.3.2-58 Limitation on Use of
Appropriated Funds to Influence Federal Contracting - insert clause in solicitations for contracts over
$100,000, when FDIC is acting in its corporate capacity.
7.3.2-59 Warranty Concerning Contingent Fees - insert clause in all awards over $100,000 except for
acquisition of commercial items .
7.3.2-60 Anti-Kickback
Procedures - insert clause in awards
over $100,000.
7.3.2-61 Drug-Free Workplace -
insert clause in all awards of any
value to an individual, and in all other awards over $100,000, except contracts
for commercial items.
7.3.2-62 Equal Opportunity - insert clause in all awards over $10,000.
7.3.2-63 Affirmative Action
for Workers with Disabilities - insert
clause in all awards over $10,000.
7.3.2-64 Affirmative Action
for Special Disabled Veterans and
7.3.2-65 Employment Reports on
Special Disabled Veterans and
7.3.2-66 Ozone-Depleting
Substances - insert clause in awards
for supplies that may contain or be manufactured with ozone-depleting substances, or construction awards that may involve the use of ozone-depleting
substances.
7.3.2-67 Reserved.
7.3.2-68 Refrigeration
Equipment and Air Conditioners - insert
clause in awards for services that include the maintenance, repair, or disposal
of any equipment or appliance using ozone-depleting substances as a
refrigerant, such as air conditioners, including motor vehicles, refrigerators,
chillers, or freezers.
7.3.2-69 Joint and Several
Liability - insert clause in all
awards.
7.3.2-70 Legal Representation - insert clause in RBOAs and other receivership contracts where the Legal Division (the branch/section that supports DRR) gives a contractor limited delegated authority to handle legal matters arising out of assets being managed under the RBOA or other receivership contract.
7.3.2-71 FDIC Contracting Capacity - BOAs/RBOAs/BPAs - insert in all awards for BOAs, RBOAs, or BPAs.
7.3.2-72
FDIC Contracting Capacity - Contracts/Task Orders/Delivery Orders - insert in all awards for contracts, task orders, or
delivery orders.
7.3.2-73
Compliance with 12 CFR Part 366 and Application of
12 CFR Part 367 - insert in all awards.
This
chapter provides procedures, guidance and information on the use of mandatory
sources (Federal Prison Industries [FPI] and AbilityOne), and awards under General Services
Administration (GSA) Federal Supply Schedules (FSS).
Contracting Officers and the Program Offices they
support must comply with the other contracting methods procedures discussed in
this chapter.
3.304(a) Contracting with Federal Prison Industries
(1)
Market Research: Before purchasing goods
listed in the FPI schedule, the
Contracting Officer and Program Office conduct market research to determine
whether the FPI product is comparable
to goods available from the private sector and best meets FDIC needs in terms
of price, quality, and time of delivery.
(2)
Comparability Determination: The Contracting Officer, with input from
the Program Office, must prepare a written memorandum to file that includes
supporting rationale explaining the assessment of price, quality, and time of
delivery based on the results of the market research that compared the FPI item to supplies available from the private
sector. The Contracting Officer must file the comparability determination in
the official contract file.
(3)
Ordering from Federal Prison Industries: If the FPI goods and services meet FDIC requirements, the
Contracting Officer purchases them from FPI following the ordering procedures at http://www.unicor.gov. Purchases may be made using the purchase card
(P-Card), or the Contracting Officer may issue a delivery order to FPI. The Contracting Officer
must ensure that prices charged by FPI are fair market prices. The price
reasonableness techniques addressed in PGI 3.109(g)
may be utilized to assist in that determination.
(4)
Waivers for Comparable Items: If the Contracting Officer and Program
Office determine that an FPI product is otherwise comparable to products
available from the private sector, but the FPI product does not meet FDIC critical standards,
or is not satisfactory for some other reason, the Contracting Officer must
request a waiver in accordance with the
procedures at http://www.unicor.gov.
(5)
Ordering FPI Goods from Other Sources If
the FPI item is not
comparable in one or more of the areas of price, quality, and time of delivery,
the Contracting Officer may acquire the item from any available source, using
established contracting procedures.
3.304(b) AbilityOne (formerly
Javits-Wagner-O’Day Act) Program
The goods and services
provided by AbilityOne are listed on the Procurement List available at http://www.abilityone.gov/. The Committee
for Purchase from People Who Are Blind or Severely Disabled determines which
supplies and services must be purchased and their price. The website also
provides ordering procedures.
(1)
AbilityOne Products: AbilityOne products are available directly through
AbilityOne at http://www.jwod.com or through
authorized distributors using Internet-based, telephone, or fax ordering or at
a Javits-Wagner-O’Day Act (JWOD) retail location. Orders may be placed and paid
through P-Card or through the issuance of a delivery order by the Contracting Officer.
(2)
AbilityOne Services: The AbilityOne Program offers a wide range of
services. These services are added to the Procurement List individually with
the involvement and cooperation of the Contracting Officer, at which time
AbilityOne becomes a mandatory source for that service for FDIC. The
Contracting Officer negotiates with, and awards, the delivery order directly to the non-profit agency
providing the service.
(3)
Prices: Prices
for items available on the Procurement List are considered to be fair market
prices. If a price seems exceptionally high, the Contracting Officer must
contact the central nonprofit agency directly to discuss a price revision.
(4)
Purchase Exceptions: Prior to purchasing goods or services on the
Procurement List from commercial sources, the Contracting Officer must request
and receive a purchase exception from the designated central nonprofit agency.
Exceptions must be requested in writing, and must state why the AbilityOne
goods or services do not satisfy FDIC requirements. Exceptions are only granted
when the AbilityOne agency cannot provide the goods or services within the time
required, and commercial sources can provide them significantly sooner in the
quantities required; or the quantity requested cannot be produced or provided
economically by the AbilityOne participating agency.
When a purchase exception is granted, the Contracting
Officer must initiate purchase action within fifteen (15) days following the date
of the exception, and provide a copy of the solicitation to the AbilityOne
participating agency when it is issued.
(5)
Awards to
contractors to provide goods or services that are on the AbilityOne Procurement
List: The Contracting Officer must research the
Procurement List on the AbilityOne website to identify the goods or services
that are available for purchase from AbilityOne central nonprofit
agencies. The Contracting Officer must
then list these goods or services in the contract award as items that must be
purchased from AbilityOne sources (unless a purchase exception, as described in
(4) above applies).
The Contracting
Officer may place orders against GSA FSS contracts to meet FDIC requirements. The following sections provide procedures
for use of FSS contracts and contractor selection.
3.305(a) Federal Supply Schedule Program
The GSA directs and manages the FSS program,
whereby the GSA schedule
contracting office issues FSS contracts for use by all federal entities. This
program provides a simplified process for obtaining commonly used commercial
goods or commercial
services at prices
associated with volume buying. GSA establishes indefinite delivery contracts
(including requirements contracts) with commercial firms to provide goods and
services at stated prices for given periods of time. Information on GSA
schedules may be found at www.gsaadvantage.gov.
GSA schedule
contracts require all schedule contractors to publish an Authorized Federal Supply Schedule Pricelist (pricelist). The pricelist contains all supplies and services offered
by a schedule contractor. In addition, each pricelist contains the pricing and
the terms and conditions pertaining to each special item number (a group of
generically similar, but not identical, supplies or services that are intended
to serve the same general purpose or function) that is on schedule. The
schedule contractor is required to provide one copy of its pricelist to any
ordering activity upon request.
3.305(b) Pricing
Goods available on FSS are listed at
fixed prices. Services offered on the schedule are priced either at hourly
rates, or at a fixed price for performance of a specific task, e.g.,
installation, maintenance, or repair. GSA has already
determined the prices of supplies and fixed-price services, and rates for
services offered at hourly rates, under schedule contracts to be fair and
reasonable. Therefore, the Contracting Officer is not required
to make a separate determination of fair and reasonable pricing. By placing an
order against a schedule contract using the following procedures, the
Contracting Officer is concluding that the order represents the best value and results in
the lowest overall cost alternative (considering price, special features,
administrative costs, etc.) to meet FDIC needs. The Contracting Officer may
seek additional discounts at any time before placing an order against a FSS contract.
3.305(c) Federal Supply
Schedule Ordering
Procedures
(1)
Orders for Goods or Services Which Do Not Require a
Statement of Work (SOW): The Contracting Officer places orders with the schedule contractor
that provides the goods or services that represent the best value and selects the delivery and other options available under the schedule that meet FDIC
needs. In order to select the contract that provides the best value for FDIC,
the Contracting Officer reviews available
information about the goods or service offered under FSS contracts by
surveying at least three schedule contractors through the GSA Advantage!
online shopping service, or by reviewing the catalogs or pricelists of at least
three schedule contractors. When selecting the goods
or services representing the best value, the Contracting Officer may consider:
§
Special features
of the goods or services required for effective performance;
§
Trade-in
considerations;
§
Probable life of
the item selected, as compared with that of a comparable item;
§
Warranty considerations;
§
Maintenance
availability;
§
Past
performance; and
§
Environmental
and energy efficiency considerations.
Each
schedule has an established maximum order threshold
which represents the point where it is advantageous to seek a price
reduction. Before placing an order that
is over the maximum order threshold, the Contracting Officer must:
§
Review
additional schedule contractors' catalogs or pricelists, or use the GSA Advantage
online shopping service to review pricing;
§
Seek price reductions from the schedule contractor
(s) appearing to provide the best value (considering
price and other factors); and
§
Place the order
with the schedule contractor that provides the best value.
If
the contractors do not offer further price reductions, the Contracting Officer
may still place an order, if determined to be in the best interest of FDIC.
(2)
Ordering Procedures for Services Requiring a SOW or Priced on a Labor Hour Basis: When purchasing services requiring a SOW under FSS contracts, the
Contracting Officer provides a request for quotation (RFQ), which includes a SOW and evaluation
criteria (e.g., experience and past performance), to at least three schedule contractors that offer services that meet
FDIC needs. The RFQ may be posted to GSA's electronic RFQ system, e-Buy, or may be issued by
other means. Services may be firm fixed price (FFP), or priced with hourly rates (labor hours). The Contracting Officer generally requests firm
fixed prices when appropriate.
Before placing an order that is over the maximum
order threshold, the Contracting Officer must provide the RFQ (including the
SOW and evaluation
criteria) to additional schedule contractors that offer
services that meet the needs of the ordering activity. When determining the
appropriate number of additional schedule contractors, the Contracting Officer
may consider, among other factors, the complexity, scope and estimated value of
the requirement, and the market search results. The Contracting Officer must
also seek price reductions from schedule contractors. The Contracting Officer
must provide the RFQ for services requiring a SOW to any
schedule contractor who requests a copy of it.
The Contracting Officer and Program Office evaluate
all responses received using the evaluation criteria provided to
the schedule contractors. The evaluation must consider the level of effort and the mix of
labor proposed to perform the specific task being ordered. The Contracting
Officer must evaluate the total proposed price and place the order with the
schedule contractor that represents the best value.
3.305(d) Documentation Requirements
The Contracting Officer prepares a Price Evaluation
Memorandum for FSS awards,
including at a minimum, and as applicable:
(1)
The schedule
contracts considered, noting the contractor from which the service was
purchased;
(2)
A description of
the service purchased;
(3)
The amount paid;
(4)
The evaluation
methodology used in selecting the contractor to receive the order;
(5)
The rationale
for any tradeoffs in making the selection;
(6)
Price analysis and the basis
for determining the best value for FDIC; and
(7)
The rationale
for selection of pricing mechanism (FFP or labor hour).
3.305(e) Price Reductions
In addition to seeking price
reductions before placing an order exceeding the maximum order threshold, there
may be other reasons to request a price reduction. For example, the Contracting
Officer should seek a price reduction when the goods or services are available
elsewhere at a lower price. Schedule contractors are not required to pass on to
all schedule users a price reduction extended only to an individual ordering
activity for a specific order
.
3.305(f) Limited Sources Justification
When the Program Office requests the Contracting
Officer to consider less than the number of schedule contractors discussed in PGI 3.305(c), or when limiting price comparisons to FSS contractors
selling a specific brand-name item, the Program Office must provide a written
justification, in accordance with APM 2.206
and PGI 2.206, to the Contracting Officer demonstrating
why the comparison should be limited, or why FDIC requires a specific brand
name item.
3.305(g) Order Placement
The Contracting Officer places orders directly with
the schedule contractor in accordance with the terms and conditions of the
pricelists, using an FDIC FSS delivery order. Only those clauses unique to FDIC may be added to the delivery order.
3.305(h) Combining Schedule and Non-Schedule Items on
the Same Order
For administrative
convenience, the Contracting Officer may add items not on the GSA FSS schedule to a
GSA schedule order
only if:
(1)
Normal
procurement procedures for the non-schedule item/service have been followed
(competition, Justification for Non-Competitive Procurement, etc);
(2)
The FDIC
Contracting Officer has determined the prices for the items not on the GSA schedule
contract fair and reasonable;
(3)
The items are
clearly labeled on the order as items not on the GSA contract
(open-market); and
(4)
All clauses
applicable to items not on the GSA schedule
contract are included in the order.
Contracting
Officers must insert the following provisions and clauses as required:
7.3.3-1 Copy of
Contractor’s General Services Administration Schedule
Contract - insert provision in solicitations for orders against
GSA Schedules.
7.3.3-2 Contractor Use of AbilityOne
- Mandatory Source of Goods or Services insert clause in awards for goods or services
where some of the goods or services to be procured are on the AbilityOne
Procurement List (maintained by the Committee for Purchase from People Who are
Blind or Severely Disabled), a mandatory source of procurement for the FDIC.
This chapter provides the
roles, responsibilities and authorities of FDIC Contracting Officers and other
officials who support the FDIC Division of Resolutions and Receiverships (DRR) as it plans for the resolution of a financial
institution that may fail, conducts the resolution upon the closing, or
performs the duties of receiver in the immediate post-closing period. It provides contracting procedures, guidance and information necessary
to award contracts more quickly, in support of the related DRR efforts.
Contracting
Officers and the Program Offices they support must comply with the procedures
regarding contracting in support of potential financial institution failures
discussed in this chapter in the award of contracts for FDIC.
When the need
for contracting in support of possible financial institution failures is
identified, the DRR Director, or designee, notifies the ASB
Associate Director, Division of Administration (DOA), or designee, usually via
e-mail or memorandum, of the potential closing of a financial institution and
that immediate contractor support is required. The notification must include
the following information to the extent that it is available at the time of
notification:
(1)
Justification of
the need for expedited or emergency contracting procedures;
(2)
Timeline for the
closing;
(3)
Types of
services required;
(4)
Estimated period
of performance;
(5)
Anticipated
location(s) of performance;
(6)
Total estimated
cost; and
(7)
Explanation as
to why only one firm is to be solicited, if such is the case.
Immediately upon
notice from DRR of
the need for contracting in support of failing or failed financial
institutions, DRR and ASB must first jointly review existing contracts and use
them to the extent practicable. They should also consider purchase card
(P-Card) and convenience check options, to determine if these meet all or part
of the current need for goods and services.
3.405(a) Existing Contracts Review
The review of
existing contracts may include:
(1)
Types of
contracts available and their scope in reference to the goods and services
required;
(2)
Ordering
procedures under existing contracts;
(3)
Verification
that background investigations have been
completed, if required;
(4)
Potential
organizational conflicts of interest;
(5)
Verification
that information technology security requirements have been met, if applicable;
(6)
Pricing
structures;
(7)
History/references/experience
with the firm(s); and
(8)
Other relevant
information.
3.405(b) Purchase Card and Convenience Check Use
The DRR, ASB, and other supporting divisions or
offices are to use the P-Card and convenience checks, when appropriate, to procure required goods or services in
support of an anticipated financial institution failure. P-Card and convenience
check procedures are found in Appendix C, FDIC Purchase Card (P-Card) Guide.
The anticipated failure of a
financial institution may require goods and services be delivered quickly, but
may not meet the definition of an emergency. These circumstances would still
allow for a competitive contracting process to be conducted. Nevertheless,
certain parts of the contracting process may need to be modified or suspended
to meet DRR’s needs within the timeframe of a particular
closing. Under these circumstances, expedited contracting procedures may be followed. Specific procedures are detailed in PGI 3.408.
Emergency
contracting procedures are designed to allow the Contracting Officer maximum
flexibility to immediately make critical awards in support of DRR efforts. These procedures allow ASB to suspend
any contracting procedures that hinder a rapid and effective response to a
financial crisis, particularly documentation requirements. These procedures
differ from expedited contracting procedures in that:
(1)
Competition is not
required and Justification for Non-Competitive Procurement (JNCP) requirements are suspended for the immediate crisis
period;
(2)
Quotes can be
obtained by phone, regardless of dollar value, but should be followed up by
either an email or fax confirmation for later filing in the official contract
file; and
(3)
Technical
proposals may be provided orally, but should be followed up by either an email
or fax confirmation for subsequent filing in the official contract file.
3.408(a) Requirements Package
In lieu of a
formal requirements package, the Contracting Officer may accept an
email or a brief memorandum from DRR describing the contracting need, in addition
to the approved purchase request.
3.408(b) Market Research
If DRR and ASB determine that no existing contracts
meet the needs of a particular situation because the current contractors lack
either the capacity or experience required, then ASB and DRR review previous market research and conduct
new market research, as necessary, to identify firms that can potentially
perform the work. Those firms must be quickly contacted by ASB and DRR to see if they
can provide the required goods or services. The goal is to identify a
contractor(s) and quickly move to a mini-competition or sole source award, as the timeline and other circumstances of the
particular closing permit.
3.408(c) Competition
In expedited contracting
procedures, time may allow for the Contracting Officer to use competition to
meet DRR’s need for goods and services in a particular
resolution or closing. The use of competition is at the Contracting Officer’s
discretion, after full coordination with the DRR Program Office and a careful
review of the timeframes for performance or delivery. In the event competition
is not obtained when using expedited contracting procedures, DRR prepares a
JNCP for the Contracting Officer’s
approval. The JNCP may initially be signed by the Oversight Manager and the
Contracting Officer. However, see PGI 3.411 below for
further documentation requirements. Under emergency procedures, the preparation
of the JNCP may be suspended until after the immediate crisis is past.
3.408(d) Basis for Award
An award under
expedited or emergency procedures is generally made based on price only or on
limited technical criteria and price.
3.408(e) Contractor Qualification Requirements
Once
a firm has been identified to perform the work, the Contracting Officer must
conduct the following checks to determine if the contractor meets FDIC
contracting requirements:
(1)
Determine
if the offeror is suspended or debarred from doing business with FDIC or the
federal government by checking the
Debarred Vendors List, FDIC Division
of Administration: Debarred Vendors,
found at http://fdic01/division/DOA/buying/fitness/debarredvendors.html
and the Federal Government Excluded Parties
Listing System at http://www.epls.gov
before contract award. Award may not be made to a
firm that is on either list.
(2)
Verify the contractor is registered in
the Central Contractor Registration System found at http://www.ccr.gov. If not, determine if the
contractor can be registered in a timely manner, or if payment should be made
outside the New Financial Environment by
using a FDIC P-Card or payment authorization voucher.
(3)
Check
the FDIC Contractor Performance Evaluation System to
quickly assess the contractor’s record of successful performance in order to
determine if there are any significant performance issues to consider before
awarding a contract.
3.408(f) Access to FDIC Facilities, Networks, or
Systems
In instances
where the contractor is to be either given access to FDIC facilities or
networks/systems, or the contract is for services which exceed $100,000, the
Contracting Officer must notify the DOA Security and Emergency Preparedness Section (SEPS). SEPS must conduct expedited fitness and integrity checks,
background investigations and credit checks on the contractor and key
personnel after receipt of the relevant security
information. This requirement applies to contracts entered into in the
corporate capacity prior to the closing of a failed
financial institution; it does not apply to contracts entered into by the
receiver in the immediate post-closing period (the first ninety (90) days of
the receivership).
3.408(g) Waiver of Pre- and Post Award Documents and
Reviews
The
Contracting Officer may waive the preparation of an Acquisition Plan or Contract
Management Plan, financial capability review, the review
of the request for proposal by
Legal, and other reviews not required by law or statue as indicated in the APM and PGI, as deemed necessary to ensure a
timely contract award.
3.408(h) Contractor Commitment
When
time permits, the Contracting Officer should obtain
the contractor’s commitment to perform the required work by requesting a
written/electronic proposal from the contractor(s). Award would then be made to
the successful contractor through a formal written contract.
If the urgency
of the requirement does not allow time to request and receive a
written/electronic proposal from the contractor, and an advance authorization
letter will be issued, the Contracting Officer must contact the contractor and
secure its commitment to:
(1)
Perform the
contract;
(2)
Review and
negotiate contract documents;
(3)
Agree to a
not-to-exceed ceiling amount and period of performance;
(4)
Provide names
and resumes of key personnel, if required;
(5)
Complete the
following certifications, if required:
§
FDIC Contractor Representations and
Certifications (FDIC 3700/04A); and
§
FDIC Integrity and Fitness
Representations and Certifications (FDIC 3700/12)
(6)
Complete the
following background investigations forms, if
required:
§
Background Investigation Questionnaire for Contract
Personnel and Subcontractors (FDIC
1600/4), and
§
Notice and Authorization Pertaining to Consumer
Reports (FDIC 1600/10);
(7)
Identify
potential organizational conflicts of interest, if any;
(8)
Execute
confidentiality agreement(s); and
(9)
Identify other
issues, such as indemnification and liability
concerns.
When there is
insufficient time to prepare a formal contract, the Contracting Officer has the
authority to issue an advance authorization letter prior to final contract
execution. A not-to-exceed price must be determined before the selected contractor begins work.
Once the Contracting Officer
confirms that the selected contractor is committed to performing the required
work in the specified timeframes, the Contracting Officer then:
(1)
Prepares and
sends an unsigned advance authorization letter to the contractor, along with
integrity and fitness representations and certifications, contractor
representations and certifications, background investigation forms and
confidentiality agreements for the
contractor and key contractor personnel to execute and
return. The advance authorization letter, at a minimum, must:
§
Describe the
work to be performed,
§
Include a
defined period of performance,
§
Include a
not-to-exceed price,
§
Include a
milestone schedule for finalizing negotiations and executing a formal contract,
and
§
Identify the
points of contact within the contractor’s firm and the FDIC Program Office.
(2)
The selected
contractor must sign and return the advance authorization letter. Upon receipt
of the contractor-signed advance authorization letter, the Contracting Officer
submits the background investigation forms to DOA SEPS to conduct expedited background
checks of the company and key personnel. Based on review of the certifications submitted,
the Contracting Officer determines if any ethics or organizational conflicts of
interest exist. If they
do, a request for review is forwarded by the Contracting Officer to the
designated FDIC ethics official to determine if a waiver can be issued. In
addition, the Contracting Officer forwards any legal issues raised by the
contractor to the Contracting Law Unit (CLU) for review.
(3)
The Contracting
Officer then executes and distributes the advance authorization letter
authorizing the contractor to commence work, following receipt of clearances
from the DOA SEPS and the designated ethics
official, if required, and consultation with CLU on any
outstanding legal issues.
A final formal contract
should be negotiated and executed within sixty (60) calendar days of issuance
of the advance authorization letter, if one is utilized. During this time, DRR must submit a
final requirements package to ASB,
including an amended purchase request if required, a detailed statement of work and final FDIC
cost estimate.
The Contracting Officer uses
the final requirements package to draft a
formal contract and negotiates with the contractor to finalize the terms,
conditions and prices. CLU assists the Contracting Officer
in resolving legal issues during negotiations with the contractor, and reviews
the draft formal contract before it is sent to the contractor.
The Contracting
Officer must retain copies of all documents involved in awarding contracts
under an expedited or emergency process, and must fully document the official contract
file after the contract(s) are in place and the
immediate crisis is past. Documentation includes a Price Evaluation Memorandum documenting any price/performance negotiations.
Normally all contract documentation
should be fully completed in no more than sixty (60) calendar days from the
issuance of the advance authorization letter, or when an advance authorization
letter is not issued, within sixty (60) calendar days of contract award.
This chapter
provides procedures, guidance, and information for FDIC Contracting Officers
and other officials to use when contracts must be awarded in emergency
situations.
Contracting
Officers and the Program Offices they support must comply with the procedures
regarding contracting in emergency situations discussed in this chapter in the
award of contracts for FDIC.
Contract
planning for emergency situations includes special provisions for the temporary
suspension of APM policies or
procedures. Other features include:
(1)
Developing and
maintaining a list of legal authorities governing emergency situations;
(2)
Training ASB
personnel on operating in emergency situations,
(3)
Increasing
selected Certificate of Appointment limits and purchase card (P-Card) limits;
(4)
Providing
materials, equipment, software and support to Contracting Officers;
(5)
Developing and maintaining
a centralized list of existing contracts, and filling any voids by awarding
basic ordering agreements for goods or
services not covered by existing contracts; and
(6)
Identifying the
types and quantities of goods and services that might be required in different
emergency situations.
ASB may monitor the
Emergency Response Community of Practice website at https://acc.dau.mil/emergencyresponse
to stay informed of federal policies and procedures, best practices, training
resources and other information on emergency response contracting.
The ASB Assistant Directors for the Corporate
Contracting Section and Information Technology Contracting Section, in coordination
with client divisions, annually review existing FDIC, General Services
Administration (GSA) and other agency contracts to determine which
contracts might meet the needs of various emergency situation scenarios. This
review includes:
(1)
The type of
contracts available and their scope, with reference to the goods and services
that may be needed in various emergency situations;
(7)
Ordering procedures
under existing contracts;
(8)
Potential
organizational conflicts of interest;
(9)
Whether
background investigations have been
completed, if required;
(10)
Existing
information technology security procedures involved;
(11)
Pricing
structures;
(12)
Past performance
history; and
(13)
Other relevant
information.
The results of the review
must be reported promptly to the Security and
Emergency Preparedness Section (SEPS) for inclusion in the Business Continuity Plan.
Upon notification of an emergency situation, the Contracting
Officer may use any of the following steps, as required, to make awards:
(1)
Review actual
requirements identified as part of the emergency situation declaration;
(2)
Match the
identified requirements to existing FDIC, GSA and other
agency contracts for placing immediate orders;
(3)
Determine
if requirements can be procured using
P-Card procedures;
(4)
Determine if
requirements can be procured using simplified acquisition procedures;
(5)
Use oral
requests for proposals if appropriate;
(6)
Conduct
procurements using limited competition based on unusual and compelling urgency;
and
(7)
Award an advance
authorization letter to initiate contractor
performance.
In order to expedite essential procurements during emergency
situations, certain approval thresholds are expanded and certain procurement
policies/procedures are waived or temporarily suspended. These include:
3.506(a) Expanded
Thresholds
(1)
The simplified
acquisition threshold is increased to $250,000, or $10,000,000 for commercial
goods or commercial
services; and
(2)
The ASB
Assistant Director, Policy and Operations Section, has authorized and
pre-positioned an appropriate number of higher limit P-Cards and convenience
checks among selected
FDIC Contracting Officers and Program Office officials for use explicitly in
case of emergency situations. These pre-positioned card accounts are activated
upon card issuance, but are not used until an emergency situation arises. During the early stages of any emergency
situation, ASB reassess the need for additional P-Card/convenience check
flexibility and works closely with the issuing bank to meet additional demands.
3.506(b) Waivers
(1)
Acquisition
planning requirements are waived;
(2)
Pre-solicitation
review requirements by the Contracting Law Unit (CLU) and the Office of Minority and Women Inclusion are waived;
and
(3)
Competition requirements
up to the (increased) simplified procurement threshold are waived.
3.506(c) Suspension of
Procurement Policies/Procedures
During the period of the emergency situation:
(1)
File
documentation requirements for non-competitive actions, including
Justifications for Non-Competitive Procurements, are suspended. Documentation of all actions must be
completed as time permits during the emergency situation or immediately after
it ends;
(2)
Formal Selection
Recommendation Report requirements
are suspended and replaced by abbreviated documentation of selection
recommendation decisions. The abbreviated decision documentation may be
approved electronically;
(3)
Central
Contractor Registration and electronic funds transfer requirements
are suspended if payment will be made by P-Card or payment authorization
voucher;
(4)
Overtime for
time and materials or labor hour contracts may
be approved retroactively; and
(5)
Bid guarantee
requirements are suspended.
The Contracting Officer has the authority
to issue an advance authorization letter prior to final contract execution,
when there is insufficient time to prepare a contract. A not-to-exceed ceiling
amount must be determined before the
selected contractor begins work.
The Contracting Officer
confirms that the selected contractor is committed to performing the required
work in the specified timeframes and then:
(1)
Prepares and
sends an unsigned advance authorization letter to the contractor, along with
integrity and fitness representations and certifications, contractor
representations and certifications, background investigation forms and
confidentiality agreements for the
contractor and key contractor personnel to execute and return. The advance
authorization letter, at a minimum, must:
§
Describe the
work to be performed;
§
Include a
defined period of performance;
§
Include a
not-to-exceed ceiling amount;
§
Include a
milestone schedule for finalizing negotiations and executing a formal contract;
and
§
Identify the
points of contact within the contractor’s firm and the FDIC Program Office.
(2)
The selected
contractor must sign and return the advance authorization letter. Upon receipt
of the contractor-signed advance authorization letter, the Contracting Officer
submits the background investigation forms to the
Division of Administration (DOA) SEPS to conduct expedited background
checks of the company and key personnel. Based on review of the certifications submitted,
the Contracting Officer determines if any ethics or organizational conflict of
interest exist. If they
do, the Contracting Officer forwards a request for review to the designated
FDIC ethics official to determine if a waiver can be issued. In addition, the
Contracting Officer forwards any legal issues raised by the contractor to CLU for review.
(3)
The Contracting
Officer then executes and distributes the advance authorization letter
authorizing the contractor to commence work following receipt of clearances
from the DOA SEPS and the designated ethics
official, if required, and consultation with CLU on any
outstanding legal issues.
(4)
The Contracting
Officer negotiates with the Contractor to finalize the terms, conditions and
prices. CLU assists the
Contracting Officer in resolving legal issues during negotiations and reviews
the draft final contract before it is sent to the contractor.
In emergency situations that
involve electrical, electronic or communications outages; the financial system
(i.e., NFE), and the procurement system (i.e., APS) may become and remain temporarily inoperable. In
order to ensure FDIC continues to operate as normally as possible, Contracting
Officers, Oversight Managers and Technical Monitors, etc., perform largely the
same as under full operational capabilities. Hard-copy forms must be used and
“walked through” the process for all process steps not explicitly waived or
suspended. Hard-copy procurement requests, as an example, must concisely
describe the requirement, cite specific funds and be signed and dated by an authorized
program official. Contracting Officers must maintain a record of all emergency
situation contracting and P-Card actions using requisitioning, contract, and
purchase card logs.
Emergency
Contracting Kits must be located away from FDIC main offices, in a secure and
readily accessible location. A contracting kit includes:
(1)
Office supplies
(paper, pens, calculators, etc.);
(2)
Current
inventory of telephone, facsimile numbers, and email addresses of select
officials and individuals, and the websites of select organizations;
(3)
FDIC tax-exempt
number, 53-0185558;
(4)
Hard (paper)
copy of all common procurement forms and templates, including procurement
request forms and award documents;
(5)
Purchase orders
and blank log forms;
(6)
Compact disc
(CD) copy of all current FDIC procurement policies, procedures, forms and
templates;
(7)
Laptop computer,
portable printer and facsimile machine with all necessary software and
procurement-related forms loaded on the laptop hard drive, as well as telecommunications
software for operation from remote locations; and
(8)
Information on
previously-identified FDIC or GSA contracts for
ordering emergency goods and services.
Additionally,
each Contracting Officer is provided a CD copy of all current FDIC procurement
policies, procedures, forms and templates, to permit them to work at other
off-site locations.
FDIC Contracting
Officers and other officials must make every effort to fully document the
contract or P-Card file for each action processed during the period of the
emergency situation. At a minimum, the documentation includes:
(1)
An approved
purchase request and any available requirements package or equivalent;
(2)
A brief
memorandum that identifies:
§
The specific
action as a requirement in an emergency situation;
§
The solicitation
or contractor selection process applied; and
§
The rationale
for the award decision, including orders against existing contracts or a
modification of an existing contract.
(3)
The actual award
or modification document;
(4)
Delivery/acceptance reports and
any discrepancy reports;
(5)
Payment records;
and
(6)
Any other
records of the transaction.
Restoring normal
operations includes:
(1)
Reinstating all
polices procedures and approval thresholds that were expanded, waived, or
suspended during the emergency situation;
(2)
Ensuring that
all contracts and required documentation are collected and filed in the
official contract file;
(3)
Reconciling
emergency situation procurement records with financial and other records,
(4)
Identifying and
resolving any situations requiring ratification of
unauthorized procurements;
(5)
Refining the
inventory of existing contracts for use in emergency situations;
(6)
Updating the
list of goods and services that may be needed in future emergency situations;
and
(7)
Collecting and
recording “lessons learned” from all stakeholders to enhance FDIC future
emergency response capabilities.
Contracting
Officers must insert the following provisions and clauses as required:
7.3.5-1 Emergency Preparedness
- insert clause in awards when the
Program Office has determined the requirement to be critical or essential to
FDIC.
This chapter
provides procedures, guidance, and information for FDIC Contracting Officers
and other officials regarding special issues that may arise in receivership contracting.
Contracting
Officers and the Program Offices they support must comply with the procedures
regarding receivership contracting discussed
in this chapter in the award of contracts for FDIC.
A resolution of the Board of
Directors of the
subsidiary (resolution)
and a Subsidiary Agency Agreement (SAA) between the receiver and the subsidiary
are required. The resolution must authorize the FDIC to contract for goods and
services on behalf of the subsidiary. The SAA identifies the services the
receiver will provide, the assets it covers and the subsidiary’s agreement to
the use of third party contractors by the receiver.
The Division of Resolutions
and Receiverships (DRR), as the Program Office, and the Contracting Officer
follow the PGI in putting contracts in place for the benefit of a subsidiary under an SAA
with the receiver.
3.604(a) Documentation
The Contracting Officer must
obtain copies of the resolution and the SAA from the Oversight Manager and
place them in the official contract file.
3.604(b) Contracting Capacity
When a contract for goods or
services is entered into on behalf of a subsidiary under an SAA,
the contract is entered into in the receivership capacity and signed by “FDIC as
Receiver for (name of institution), as Agent for (name of subsidiary).”
3.604(c) Contract Type
A basic ordering agreement or
receivership basic ordering
agreement must be established for requirements that must accommodate payments
being charged to multiple capacities (e.g., receivership and subsidiary). Individual
task orders must be issued in the appropriate capacity to allow payments to be
applied against the correct business unit in the New Financial Environment.
During the periods preceding
and immediately following the closing of a failed financial institution, the
Legal Division reviews all
the contracts to which the failed financial institution was a party (those
entered into prior to its failure). DRR, with the support of the Legal Division, decides
which of these contracts it will repudiate and which it will retain. DRR must
notify the Contracting Officer assigned to the closing of the contracts that
the receiver intends to retain. The Contracting Officer, working with DRR, and
consulting with the Contracting Law Unit as needed,
seeks to negotiate, with the various contractors, a bilateral modification of
each of the retained contracts to bring them into line with standard FDIC
contract clauses. The extent to which a particular contract can be modified
varies from contract to contract. At a minimum, the Contracting Officer must
negotiate a modification of the invoicing and payment procedures under the
contract to conform them to the FDIC contract payment process.
This chapter provides the
procedures, guidance and information for use by FDIC Contracting Officers and
Program Offices when using the performance-based acquisition (PBA) and performance-based management approach to awarding and managing
contracts.
The PBA procedures
addressed in this chapter do not replace the usual procurement practices
addressed elsewhere in the APM and PGI, except in the areas specifically
addressed below.
4.103(a) Getting Started
PBA differs from
other types of acquisitions in that a PBA describes what needs to be done in
terms of its objectives, i.e., what outcome or result is required. A PBA
solicitation does not tell a prospective offeror how to do the work. This allows the contractor community to utilize
its expertise to provide a solution that ensures results at the best possible
price. It also enables FDIC to have measurable objectives. Contracting Officers
and Oversight Managers must have tools, including positive and negative
incentives, to ensure goals and performance standards (i.e., service or quality
levels) are met. If a contractor does not meet FDIC goals, it may face reduced
payment or contract termination. FDIC
guidance related to incentives is provided at PGI 5.7.
There are a number of
approaches that can be taken to establish a PBA. The Contracting Officer and
the Program Office should work together to decide upon the best approach to be
used, and to develop the required documentation. The following issues should be
considered when establishing a PBA:
(1)
Use of a Statement of Objectives (SOO): A SOO is a high-level
summary of the objectives for the contract developed by the Program
Office. Keeping this document at a high
level allows contractors more flexibility. Though there is no mandatory format
for a SOO, the following information should be
included:
§
Background
or introduction (FDIC mission and program history);
§
Purpose
(specifically, what this contract/order is to accomplish; may include
performance standards or objectives);
§
Scope
of work (what is included and what is not, at a high level);
§
Place
and period of performance; and
§
Constraints
(policies, procedures, regulations, information and personnel security
requirements, etc.).
(2)
Use of a Performance Work Statement (PWS): A PWS is very similar to a traditional
statement of work. However, rather than FDIC telling the contractor how to
perform the task, the contractor details what it will do to accomplish the
stated objectives, and how it will do this.
FDIC normally requires the offeror to submit the PWS as part of the
proposal, and may require that the PWS be updated after contract award.
4.103(b) Getting Results
(1)
Quality Assurance Plan (QAP)/Quality
Assurance Surveillance Plan (QASP):There are two types of documents that define the
method for determining whether or not the desired results are being achieved,
the QAP and the QASP. Both documents can be written either by FDIC or the
offeror. If written by the offeror, FDIC should review, and be prepared to
negotiate necessary changes, prior to acceptance. If FDIC develops the documents, the Oversight
Manager, the Technical Monitor and the Contracting Officer work together in
doing so. The two documents are described below:
§
QAP: The QAP is
generally written by the offeror to delineate how the contractor intends to measure
and monitor its performance.
§
QASP: The QASP delineates how FDIC monitors the contractor’s
performance. The FDIC Acquisition Team uses a QASP to
explain how it plans to “trust but verify” the contractor’s reported
performance metrics (also referred to as performance measures). The QASP may be written by FDIC; however, another
approach is to ask the contractor to write both the QAP and the QASP for submission with the proposal, both of
which are then reviewed, edited, if necessary, and approved by FDIC. If FDIC drafts the QASP, the Program Office must do so with
assistance, as required, by the Contracting Officer.
The QASP should map to the QAP, i.e., if the contractor is measuring
the right things, FDIC should validate those same things to ensure service or
quality levels have been met. The QASP becomes part of the awarded contract.
(2)
Existing Quality Standards: Rather than inventing metrics or quality or
performance standards, the Contracting Officer and Program Office should use
existing commercial quality standards (identified during market research), such as International Standards Organization 9000
or the Software Engineering Institute's Capability Maturity Models.
(3)
Performance Metrics: Performance metrics are used to track contractor
progress towards meeting stated performance objectives. Before accepting the
QASP, FDIC must validate that the performance metrics in the QASP align with the
PWS and the
overall objectives of the contract.
Performance monitoring includes verifying
contractor-provided data; in-depth inspection and/or testing
should be the exception and not the rule. When contractors propose the
performance metrics and the QASP, these become true discriminators among the
proposals in a best-value evaluation.
The rule of thumb is to include no more than three to
four performance metrics per acquisition. Consider the following when drafting
the metrics:
§
Relate
each metric directly to the objectives of the acquisition;
§
Limit
the metric to those that are truly important;
§
Select
the metric with some consideration of cost;
§
Determine
that the cost of measurement does not exceed the value of the information; and
§
Use
the more expensive means of measurement only for the most risky and
mission-critical requirements.
(4)
Acceptable Surveillance Methods: Acceptable surveillance methods include 100 percent
inspection, random sampling, periodic inspection, and customer
input:
§
100
percent inspection: Usually only used for infrequent tasks
or tasks with stringent performance requirements, e.g., where safety or health
is a concern;
§
Random
sampling: Usually the most appropriate method for recurring tasks. With random
sampling, services are sampled to determine if the level of performance is
acceptable;
§
Periodic
inspection: Sometimes called "planned
sampling," consists of the evaluation of tasks selected on other than a100
percent or random basis. It may be appropriate for tasks that occur
infrequently, and where 100 percent inspection is neither required nor
practicable; and
§
Customer
input: Usually not a primary method, this is a valuable supplement to more
systematic methods. For example, in a case where random sampling indicates
unsatisfactory service, customer complaints can be used as substantiating evidence.
More information on the PBA approach is
available in the Seven Steps to
Performance-Based Acquisition guide found at the Office of Federal
Procurement Policy’s PBA website, http://www.acquisition.gov/comp/seven_steps/home.html
.
The Seven Steps Library, found at this
website, contains links to various agencies’ guidance, training sources, sample
documents, and a host of informational documents.
This chapter provides the
additional procedures, guidance and information for Contracting Officers and
others in acquiring information technology (IT) goods and services.
The procedures identified
below apply to all Contracting Officers and Program Office personnel
responsible for planning and procuring IT. In keeping with FDIC Circular
1360.17, Information Technology Security
Guidance for FDIC Procurements/Third Party Products, (available at http://fdic01/division/doa/adminservices/records/directives/1000/index.html),
IT security and privacy requirements should be incorporated into the
procurement lifecycle, beginning with the initial needs determination. IT
security and privacy considerations must be fully addressed in acquisition
planning, as the requirement is being developed, and included in all phases of
the procurement process, including pre-solicitation planning, solicitation,
proposal evaluation, contract award, contract performance, administration, and
contract closeout. Privacy requirements that apply to IT contracts are
found at APM
5.1and PGI 5.1.
4.203(a) Requirement Package Planning
The Program Office is
responsible for determining the level of security necessary for IT
procurements. In developing the requirements package, the Program Office must coordinate IT security and
privacy requirements for a procurement with the Division of Information
Technology (DIT) Information Security and Privacy Staff (ISPS). Additional
IT considerations that must be included in the requirements package as
applicable are:
(1)
Appropriate
security requirements (management, administrative, and technical), specifically
FDIC and government information security requirements, along with methods for
providing security assurance throughout the life cycle of the contract. The
life cycle encompasses mission and business planning, acquisition planning,
acquisition, contract performance, disposal and contract closeout. These government information security requirements
are described in Office of Management and Budget (OMB) Circular A-130, Management
of Federal Information Resources (http://www.whitehouse.gov/omb/circulars_a130_a130trans4)
and National Institute of Standards Technology
(NIST) Special Publication 800-100, Information Security Handbook: A Guide for Managers
(http://csrc.nist.gov/publications/PubsSPs.html).
(2)
Preliminary
sensitivity assessments and risk analyses to determine IT security requirements
(products incorporated in the statement of work);
(3)
Privacy
Threshold Analysis (PTA) to determine if system contains personally
identifiable information and meets the E-Government Act of 2002
requirement for a Privacy Impact Assessment. Additionally, the PTA assists in
determining if the requirement is considered a system of records covered by the
Privacy Act of 1974;
(4)
Contract
responsibilities for monitoring contractor security (contractor and Oversight
Manager);
(5)
Additional
IT security and privacy policies, procedures, laws and regulations, not covered
in contract clauses, that are to be incorporated in the contract;
(6)
Specific
IT security specifications, features, and controls for the procurement
requirement to be addressed in a contractor-developed IT security plan, if
required;
(7)
Identification
of a member of the Technical Evaluation Panel (TEP) rom DIT ISPS, with expertise in IT security, to
review the security portions of offerors’ proposals and evaluate the IT
security plan. This person is a non-voting member of the TEP;
(8)
Technical
evaluation factors to evaluate contractor IT security;
(9)
A
FDIC point of contact for oversight of IT security, to be included in the
resultant contract;
(10)
A
list of all FDIC-furnished equipment, information and systems that FDIC
provides the contractor upon award;
(11)
Test
or other assurance requirements to ensure that the contractor has implemented
and maintained contract-specified IT security according to the IT security
plan;
(12)
Requirements
for any unique warranties or
other provisions for ensuring IT security;
4.203(b)
Source Selection Plans
The Contracting Officer
includes a section on IT security requirements in the Source Selection Plan (SSP) for procurements greater than $100,000. While a
formal SSP must only be
created for procurements greater than $100,000, the following factors must be
considered in all procurements for IT regardless of amount.
(1)
A
statement that IT security is required and included with the procurement
request;
(2)
The
IT security technical evaluation factors;
(3)
The
TEP member(s) responsible for reviewing and
evaluating the security portions of offerors’ proposals;
(4)
The
price proposal format (pricing schedule), including a price line item for IT
security;
(5)
The
use of confidentiality agreements for the procurement;
(6)
The
risk level designations for the contract, as a whole, or for the contractor and
subcontractor labor categories; and
4.203(c) Solicitation Development
All solicitations and
contracts in which the contractor and subcontractor personnel must have
physical or electronic access to FDIC network, facilities, information or data,
must contain appropriate IT security provisions and clauses. Specific IT security and privacy provisions
and clauses are included in a contract based upon the particular nature of the
IT services and information/data requirements of the contract. IT specific clauses included in a contract
are driven by four general contract situations:
(1)
The contract is for services to develop/maintain IT
applications or implement/operate IT resources: Contractors for traditional IT work, such as
developing applications or supporting infrastructure components, are
responsible for fulfilling IT security and privacy requirements and must comply
with all applicable laws (Federal Information Security Management Act,
E-Government Act of 2002, Privacy Act), requirements (OMB), and guidance (NIST) related to information
security and privacy. Larger contracts must account for security costs.
(2)
The contract
is for services to develop and/or maintain applications or content located on
an FDIC website accessed by the public: The contractor must ensure that the website conforms to the privacy
requirements outlined in the E-Government Act of 2002, including adhering to
restrictions on the use of persistent tracking devices (“cookies”) and
providing links to FDIC privacy policy published on FDIC.gov. The contractor
must also provide access to FDIC to allow for verification of compliance with these
requirements.
(3)
The contract requires IT work or services to be
performed at an off-site (non-FDIC) location: FDIC information/data that exists or is processed
off-site must be adequately protected and controlled. The contractor must demonstrate this protection by submitting IT
security plans or equivalent independent IT audit results and submit to site
inspections. The contractor must also
report any incidents involving FDIC data promptly to FDIC.
(4)
The contract requires that a data connection be
established between FDIC and a non-FDIC facility/location: Connecting a non-FDIC entity to the FDIC network
requires careful configuration to ensure that adequate security is maintained,
that only approved equipment is connected to the FDIC network, and that the FDIC
network remain isolated from any other networks located at the contractor
facility. A separate signed interconnection security agreement is required.
4.203(d) Proposal Evaluation
The
offeror’s IT security plan must be evaluated and documented in the TEP memorandum.
4.203(e) Contract Award
Prior to finalizing the
Selection Recommendation Report (SRR), a pre-award site survey is required for a
contractor who has remote access to the FDIC network in order to verify
security at its facility. FDIC personnel with expertise in this area perform
this review. IT security is a factor to consider as part of the best value decision for
the award. The Contracting Officer addresses the IT security evaluation and
pre-award site visit in the SRR.
4.203(f) Post Award Conference
It is the responsibility of
the Oversight Manager to discuss the IT security plan at the Post Award
Conference. IT security topics to be covered include the IT security plan,
confidentiality agreements and IT security
awareness training.
4.203(g) Information Technology
Contract Administration
To ensure the effective administration of IT contracts:
The Oversight Manager:
(1)
Authorizes
access to FDIC systems for contractor personnel by completing the Access Authorization Security Application
online at http://wasiis102p/AASA/Requester/AOForm.asp?FormView=2.
The Oversight Manager suspends access when the Contracting Officer determines
the contract is complete, when the contractor personnel leave, or when the contractor no longer
requires access;
(2)
With
DIT coordination, or the
assistance of the Information Security Manager (ISM), or both, conducts periodic reviews of
compliance with FDIC security policies and standards during contract
performance or product service, and observes and documents contractor security
practices during site visits and performance evaluations;
(3)
Ensures
that contractors perform initial sensitivity assessments according to FDIC IT
security guidance, to determine additional IT security requirements, such as
the need for security plans and risk analyses;
(4)
Makes
certain that contractor employees are aware of their responsibility to be
familiar with the federal security requirements of OMB Circular A-130 and other federal and FDIC IT
security requirements;
(5)
Ensures
that contractors keep FDIC network equipment in a locked room with controlled
access;
(6)
Ensures
that contractors maintain documentation indicating that the contractor monitors
relative employee automated information
systems security activities during contract
performance or product service;
(7)
Reports
any suspected IT security-related contract violations of the contractor, or its
subcontractor, to the Contracting Officer and the ISM. In cases determined to be severe,
notifies the Office of the Inspector General
and other appropriate authorities;
(8)
Reports
any suspected violations of FDIC security policy by contractor personnel to DIT ISPS or
the ISM; and
(9)
Maintains
accurate records of contractor-furnished equipment and FDIC-furnished equipment
provided to off-site contractors.
The DIT ISPS:
(1)
Develops
Oversight Manager guidelines for monitoring contractor security practices and
for obtaining training on accepted security practices. These guidelines must clearly define the Oversight Manager’s
role in, and responsibility for, contractor security;
(2)
Coordinates
with the Oversight Manager to conduct semi-annual reviews of compliance with
FDIC security policies and standards, during and following the period of
contract performance or product service to FDIC; and to monitor completion; and
(3)
Processes
waivers or justifications seeking approval of the use of non-standard hardware or software.
4.203(h) Intellectual Property
Most systems and software
applications include intellectual property rights. The
Contracting Officer must ensure that FDIC receives the appropriate intellectual
property rights in accordance with the guidance provided in PGI
5.4, Intellectual Property.
4.203(i) Phased Approach – Rational Unified Process
The Rational Unified Process (RUP)
is generally used for IT system development projects. RUP is based on a series
of current best practices that include concepts such as iterative development,
requirements management and continuous verification of quality. Prior to its implementation, the RUP process
framework was customized to FDIC requirements, including:
(1)
Incorporating
guidance on the selection, acquisition and implementation of commercial
off-the-shelf software;
(2)
Incorporating
Roadmaps
(found at http://fdic01/division/dit/bab/pmo/rup/roadmaps.html)
that provide step-by-step activities for FDIC projects of varying size, type,
risk and complexity, and
(3)
The
addition of DIT organizational interaction guidance for
projects to refer to during their entire life cycle.
Further information on
RUP may be found at the DIT Program Management Office website
at
http://fdic01/division/dit/ITGovernance/FrameworksMethodologies/RationalUnifiedProcessRUP/index.html
4.204(a)
Earned Value Management
The
sponsoring division, in conjunction with the DIT and the
Contracting Officer, determines if a contract warrants the use of earned value
management (EVM) based on the complexity, risk, dollar value, and visibility of the
project. EVM is mandatory
for actions subject to Capital Investment Review Committee review, currently
$3,000,000. However, EVM may be used at lower dollar
thresholds when determined appropriate. When it is determined that the use of
EVM is
appropriate, the principle objectives of the American
National Standards Institute/Electronic Industries Alliance 748 (ANSI/EIA 748)
Standard, Earned Value Management Systems, found at http://ocio.os.doc.gov/s/groups/public/@doc/@os/@ocio/@oitpp/documents/content/prod01_002422.pdf
should be implemented for the project.
Implementation of an EVM system for major projects
includes:
(1)
Inclusion
of EVM requirements in FDIC solicitations for
services, requests for proposals and the addition of appropriate EVM clauses to contracts
that require the contractor to measure and report on work progress on major
projects;
(2)
Reviews
of FDIC EVM policies and contractor EVM plans to ensure c
(3)
Periodic
reviews to ensure that the EVM program continues to
meet the needs of FDIC and the guidelines established for its use; and
(4)
Baseline
reviews to analyze the impact of EVM on the final cost,
schedule and performance by contractors
on major projects.
4.204(b) Contracting Officer
Responsibilities
The
Contracting Officer must ensure that:
(1)
Offerors
without an ANSI/EIA 748 compliant system are not eliminated from consideration
for contract award, but are required to submit a comprehensive EVM plan;
(2)
Contractors
are required to submit EVM monthly reports for
those contracts for which EVM applies;
(3)
EVM requirements are
applied to subcontractors using the same rules applied to the prime contractor; and
(4)
In
conjunction with the Program Office, the adequacy of the proposed EVM plan is determined
prior to contract award, when an offeror is required to provide an EVM plan as part of its proposal.
4.204 (c) Division of Information
Technology, Program
Management Office Responsibilities
The
DIT Program Management Office (PMO) is
a resource center for clients, executives, project managers and project team
members engaged in the operation and oversight of IT projects. Its mission is
to continuously improve the practice and results of IT program and project
management. It serves as a FDIC resource
for use of EVM on major IT projects. Information on EVM can be found at the PMO website found at http://fdic01/division/dit/ITGovernance/FrameworksMethodologies/EarnedValueManagementEVM/index.html.
Contracting Officers must
insert the following provisions and clauses as required:
7.4.2-1 Security and Privacy
Compliance for IT Services - insert
clause in all awards for services in which contractor or its subcontractors may
develop or maintain IT applications or implement or operate other IT resources.
7.4.2-2 Off-site Processing and
Storing of FDIC Information - insert
clause in all awards in which FDIC information (electronic or paper form) may
be processed or stored off site in a non-FDIC facility (e.g., contractor
personnel work from their company office, a service provider processes FDIC
information at its location).
7.4.2-3 Data Connection - insert clause in all awards in which a data
connection may be established between the FDIC network and the contractor
located at a non-FDIC facility.
7.4.2-4 Privacy Requirements
for External Web Applications and Content - insert clause in all awards in which the contractor may develop or
maintain applications or content located on an FDIC-web site accessed by the
public.
The acquisition of construction follows the policy outlined in APM
3.2, Formal Contracting, and applicable FDIC
directives. This chapter provides procedures, guidance and information on those
aspects of the process unique to contracting for the design and subsequent new
construction of FDIC buildings or facilities.
Architect-Engineer Services – Professional services of an architectural or
engineering nature, as defined by applicable state law. State law requires
these services be performed or approved by a registered architect or engineer.
Such services are generally associated with the design or construction of real
property.
Design – The
process of defining the construction requirements (including the functional
relationships and technical systems to be used, such as architectural,
environmental, structural, electrical, mechanical, and fire protection),
producing the technical specifications and drawings, and preparing the
construction cost estimate.
Design-Bid-Build – Contracting for design and construction sequentially with two
contracts and two contractors.
Design-Build – Combining design and construction in a single contract with one
contractor.
Two-Phase Design-Build Selection Procedures – A selection method in which a limited number of
offerors (normally five [5] or fewer) is selected during phase one of the selection
process to submit detailed proposals for phase two of the selection process.
4.303(a) Use of the General Services
Administration
Contracts for
architect-engineer services and construction are very specialized and complex.
The General Services Administration (GSA) provides support in the area of
architect-engineer services and construction, including project management and
the award and administration of these types of contracts. When practical, FDIC
may choose to enter into an interagency agreement with GSA to
obtain these services.
4.303(b) Construction Contracting Approach
If FDIC
contracts directly for architect-engineer and construction services, the
Contracting Officer and the Program Office must consider the following when
determining the appropriate contracting approach:
(1)
Design-Bid-Build: This approach requires two separate and
distinct contracts; one for the design phase and the other for
construction. When using the
design-bid-build contracting method, the preferred pricing arrangement for the
“design” phase of a construction project is firm fixed price (FFP). The “build” portion of a design-bid-build construction
project should also be FFP. It may be priced:
§
On a
lump-sum basis (when a lump sum is paid for the total work or defined parts of
the work);
§
On a
unit-price basis (when a unit price is paid for a specified quantity of work
units); or
§
Using
a combination of the two methods.
(2)
Design-Build: An innovative approach to contracting
which ensures there is a single point of responsibility for both the design and
construction of the project and does not result in the government being the
integrator of the design and construction efforts.
§
The
contract pricing arrangement should be the method which best provides an
equitable sharing of risks, and
§
When
using the design-build contracting method, the government team should also
consider using a performance-based acquisition approach.
(3)
Two-Phase Design-Build: A two-phase design-build selection
procedure may be used when in the best interest of the government. Phase One is
the initial competition among either construction firms with design capability
or teams comprised of construction contractors and architect-engineers. Phase
one evaluation factors should include:
§
Technical
approach (but not detailed design or technical information);
§
Technical
qualifications, such as:
o
Specialized experience
and technical competence;
o
Past performance of the
offeror’s team (including the architect-engineer and construction members).
§
Other
appropriate factors (excluding cost or price related factors, which are not
permitted in phase one).
The evaluation of phase one
proposals should result in a down-select to three to four of the most highly qualified
offerors (not to exceed the maximum number specified in the solicitation).
Phase two of the competition
is among only the down-selected firms and is a “full” competition, to include
cost and potentially a most probable cost assessment. The result of phase two
is award to the offeror providing the best overall value to the government,
after consideration of all evaluation factors. In a highly complex, highly
subcontracted effort, the evaluation team may elect to conduct past performance assessments on the
major subcontractors (typically, the mechanical, electrical and plumbing
subcontractors) for each of the phase two offerors. A two phase design-build selection may be combined
into a single solicitation if the Contracting Officer decides that this method
is appropriate.
Contracting Officers must
insert the following provisions and clauses as required:
7.4.3-1 Commencement,
Prosecution and Completion of Work - insert
clause in all construction contracts.
7.4.3-2 Location(s) for
Services - insert clause in all
construction contracts.
7.4.3-3 Contractor’s Project
Manager - insert clause in all
construction contracts.
7.4.3-4 Specifications and
Drawings - insert clause in
contracts over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in contracts below $100,000, at Contracting
Officer's discretion).
7.4.3-5 Differing Site
Conditions - insert clause in
contracts over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in contracts at or below $100,000, at
Contracting Officer's discretion).
7.4.3-6 Material and
Workmanship - insert clause in all
construction contracts.
7.4.3-7 Superintendence by
Contractor - insert clause in
contracts over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in contracts at or below $100,000, at
Contracting Officer's discretion).
7.4.3-8 Permits and
Responsibilities - insert clause in
contracts for construction or dismantling, demolition, or removal of
improvements.
7.4.3-9 Conditions Affecting
the Work - insert clause in
contracts over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in contracts at or below $100,000, at
Contracting Officer's discretion).
7.4.3-10 Other Contracts - insert clause in contracts over $100,000 for
construction or dismantling, demolition, or removal of improvements. (Also,
insert in contracts at or below $100,000, at Contracting Officer's discretion).
7.4.3-11 Shop Drawings - insert clause in contracts over $100,000 for
construction or dismantling, demolition, or removal of improvements. (Also,
insert in contracts at or below $100,000, at Contracting Officer's discretion).
7.4.3-12 Use and Possession
Prior to Completion - insert clause
in contracts over $100,000 for construction or dismantling, demolition, or
removal of improvements. (Also, insert in contracts at or below $100,000, at
Contracting Officer's discretion).
7.4.3-13 Measurements - insert clause in all construction contracts.
7.4.3-14 Layout of Work - insert clause in construction contracts where there
is a need for accurate work layout and site verification during work
performance.
7.4.3-15 Availability and Use
of Utility Services - insert clause
in awards for construction or dismantling, demolition, or removal of
improvements.
7.4.3-16 Use of Premises - insert clause in all construction contracts.
7.4.3-17 Operation and Storage
Areas - insert clause in contracts
over $100,000 for construction or dismantling, demolition, or removal of
improvements. (Also, insert in contracts at or below $100,000, at Contracting
Officer's discretion).
7.4.3-18 Heat - insert clause in all construction contracts.
7.4.3-19 Protection of
Existing Vegetation, Structures, Equipment, Utilities, and Improvement - insert clause in contracts over $100,000 for
construction or dismantling, demolition, or removal of improvements. (Also,
insert in contracts below $100,000, at Contracting Officer's discretion).
7.4.3-20 Health and Safety - insert clause in all construction awards.
7.4.3-21 Cleanup - insert clause in awards for construction or
dismantling, demolition, or removal of improvements that are other than
simplified procurements.
7.4.3-22 Use of Equipment by
the FDIC - insert clause in
construction awards.
This chapter
provides the procedures, guidance and information to be used by FDIC
Contracting Officers and others for properly dealing with issues of
confidentiality and protecting information involved in the acquisition process
and throughout the life of the contract.
Contracting
Officers and the Program Offices they support must comply with the procedures
regarding protection of sensitive information discussed in this chapter in the
award of contracts for FDIC.
5.104(a) Sensitive Information
As a
part of acquisition planning, the Program Office identifies in the requirements
package any sensitive information, including personally
identifiable information, to be provided to offerors during the solicitation
phase of procurement, or to be provided to or collected by the contractor
following award. This includes sensitive
information to be provided in electronic or paper form.
5.104(b) Contractor
Confidentiality Agreement
The Contracting Officer provides the contractor confidentiality
agreements, (FDIC Form 3700/46, Confidentiality Agreement (for
Contractor) and FDIC Form 3700/46A, Confidentiality Agreement (for
Contractor Personnel)) (http://fdic01/division/doa/adminservices/records/forms/3000/index.html)
to the contractor, as an attachment to the contract. The program office and Contracting Officer,
at their discretion, jointly determine when it is in the best interest of FDIC
to have confidentiality agreements signed by non-key personnel. When non-key personnel are required to sign
the confidentiality agreements, the Oversight Manager shall notify the
contractor in writing and shall identify whether the requirement extends to all
categories of non-key personnel or selected categories of non-key
personnel. Prior to receiving any
sensitive information, those designated non-key personnel must return their
signed confidentiality agreements to the Oversight Manager. The contractor and all key personnel must
sign and return their confidentiality agreements to the Contracting Officer
before receiving any sensitive information.
During performance of the contract, a change in key personnel or
designated non-key personnel requires the contractor to provide the FDIC with a
confidentiality agreement signed by the new personnel before being given
access to sensitive information.
Contractor and key personnel confidentiality agreements must be filed in
the official contract file by the Contracting Officer, whereas Oversight
Managers must file non-key personnel confidentiality agreements in the
official contract file.
5.105(a) FDIC Systems of Records
When processing new
procurement actions where the contractor is required to design, develop,
operate or maintain a system containing personal information to accomplish an
FDIC function, the Program Office must complete a Privacy Threshold Analysis to
determine if the system contains personally identifiable information and is
considered a system of records subject to the Privacy Act of 1974. The Privacy Act requires a Privacy Impact
Assessment when developing or buying an information technology system that
contains personal information about members of the public. If the Program Office confirms that the services being performed are
subject to the Privacy Act, the name of the system of records and privacy and
security requirements must be provided to the Contracting Officer and
identified in the contract.
5.105(b) Failure to Comply with the Privacy Act of
1974
Willful failure to comply
with the Privacy Act of 1974, either through improper collection of information
on individuals or disclosure of protected information, subjects FDIC personnel
and contractor personnel to criminal penalties. In addition, FDIC can be sued for civil damages for
failure to comply with the Privacy Act of 1974.
Information
submitted by potential contractors in their proposals, and information
generated by FDIC employees during the source selection process, is procurement
sensitive. All persons involved in the source selection process are obligated
to protect the confidentiality of this information. Throughout the source
selection process, procurement officials must adhere to the commitment to
safeguard procurement sensitive information. PGI 3.210(d) speaks to the responsibility of
technical evaluators in protecting procurement-related information.
5.107(a) Reference Guide
The
following list identifies the sources of policies and procedures for processing
Freedom of Information Act (FOIA) requests at FDIC and provides links thereto:
(1)
(2)
Executive Order (EO), Improving Agency
Disclosure of Information, December 14,
2005, http://www.whitehouse.gov/news/releases/2005/12/print/20051214-4.html.
(3)
FDIC Circular 1023.1, Procedures for Processing Freedom of Information Act Requests,
April 18, 2006, http://fdic01/division/doa/adminservices/records/directives/1000/index.html.
5.107(b) Designated Responsibilities
(1)
Legal Division: FDIC has designated the General Counsel
as its Chief FOIA Officer with
corporate-wide responsibility for efficient and appropriate compliance with the
FOIA. FDIC has delegated to the FDIC Legal Division FOIA-Privacy Act (FOIA-PA) Group responsibility
for the day-to-day administration and operation of the FOIA program.
(2)
ASB: ASB, Policy and Operations Section, responds to
ASB-related FOIA requests received
from the FOIA-PA Group with assistance from
ASB Contracting Officers as necessary. ASB, Policy and Operations Section, is
also responsible for retaining an administrative record of actions taken on
FOIA requests in accordance with the provisions of
FDIC Circular 1210.1, FDIC Records
Retention and Disposition Schedule.
5.107(c) Freedom of Information Act Procedures
(1)
FOIA Submittal Procedures: All FOIA requests are submitted in writing (this
includes email) and sent directly to the FOIA-PA Group. The preferred method for submitting FOIA requests is electronically via the FDIC
website, http://www.fdic.gov/about/freedom/index.html. Upon receiving a FOIA request related to contracting activity, the
FOIA-PA Group catalogues it and refers it to
the assigned FOIA contact within ASB,
Policy and Operations Section, for further handling.
(2)
Timeframes for Responding to FOIA Requests: FDIC responds to valid FOIA requests within twenty (20) business days of
receipt. ASB typically has fifteen (15) business days to complete and submit
its assigned FOIA information to the
FOIA requestor or FOIA-PA Group. The actual number of days for ASB to respond depends on
the date on which the official request is received from the FOIA-PA Group.
(3)
ASB
Procedures for Compiling FOIA Responses: ASB, Policy and Operations Section, reviews official
contract files to compile the requested information to respond to FOIA requests. Before forwarding the FOIA material to the FOIA-PA Group, ASB, Policy and Operations Section, verifies with the
designated Contracting Officer that the material is complete. If documents
cannot be located in the official contract file, ASB, Policy and Operations Section,
assigns the FOIA request to the
respective ASB Assistant Director for handling.
Contracting Officers must insert
the following provisions and clauses as required:
7.5.1-1 Privacy Act -
insert clause in all awards that require the design, development, or operation
of a system of records on individuals.
7.5.1-2 Protecting Sensitive
Information - insert
clause in all awards in which the contractor, its personnel or its
subcontractors may have access to FDIC facilities or systems, or otherwise may
have access to FDIC sensitive information. Add the two versions of the confidentiality
agreement as attachments
to the contract when including this clause.
7.5.1-3 Access to FDIC
Information Systems - insert clause
in awards for services in which contractor personnel or subcontractor personnel
may have access to FDIC network and/or information systems.
This chapter provides the procedures,
guidance and information for use by FDIC Contracting Officers and the Program
Offices they support in dealing with security requirements on FDIC contracts.
Background
Investigation – A
generic term that describes a check or checks which the Division of Administration’s Security and Emergency
Preparedness Section (SEPS) completes on contractors, subcontractors and
contractor/subcontractor employees to ensure they meet minimum security and
integrity and fitness standards as set forth by FDIC. These checks range from a fingerprint criminal records
check by the Federal Bureau of Investigation, to checks of various online
databases such as Lexis/Nexis, Dun and Bradstreet, and the Excluded Parties
List System, which can be found at http://www.epls.gov/.
It also includes various types of background investigations conducted by the United States Office of
Personnel Management (OPM) for the FDIC.
FDIC Circular 1610.2, available at http://fdic01/division/doa/adminservices/records/directives/1000/index.html,
describes FDIC security procedures for FDIC contractors and subcontractors.
5.203(a) Pre-Solicitation Requirements
The Program Office:
(1)
Establishes
the security risk levels by labor category or by contract using the Risk Level Matrix (Attachment A to
Circular 1610.2);
(2)
Documents
the results of the pre-solicitation risk level determination by using the Contractor Risk Level Record (Attachment
B to 1610.2);
(3)
Provides
the results of the risk level determination to its Information Security Manager (ISM) for concurrence. A list of FDIC
division-level ISMs is at
http://fdic01/division/dit/ITGovernance/ITSecurityPrivacy/DivisionalISMProgram/LISTOFISMS.html.
(4)
Includes
the approved risk level determination in the requirements package.
5.203(b) Solicitation Requirements
The Contracting
Officer incorporates the risk level determination into the solicitation and
contract. The solicitation package must
include the following documents:
(1)
Risk
level designation;
(2)
Background
investigation forms;
(3)
Background Investigation Questionnaire
for Contractors, FDIC
Form 1600/07 (http://fdic01/division/doa/adminservices/records/forms/1000/index.html);
(4)
Background Investigation Questionnaire
for Contractor Personnel and Subcontractors, FDIC Form 1600/04 (http://fdic01/division/doa/adminservices/records/forms/1000/index.html)
(for contractor and subcontractor key personnel); and
(5)
Notice and Authorization Pertaining to
Consumer Reports Pursuant to the Fair Credit Reporting Act of 1970, FDIC Form 1600/10 (http://fdic01/division/doa/adminservices/records/forms/1000/index.html)
(for contractor and subcontractor key personnel).
5.203(c) Pre-award and Post-award Investigations
FDIC
conducts pre-award and post-award investigations of contractor personnel in
accordance with FDIC Circular 1610.2, Personnel Security
Policy and Procedures for FDIC Contractors.
(1)
Preliminary Background Investigations: Prior to award, the Contracting Officer
requests SEPS to
perform preliminary background investigations, including credit checks, on the
apparent successful offeror and all key personnel. The Contracting Officer may not award
the contract without notification from SEPS of satisfactory
preliminary background investigation results.
If there is an urgent need for the
contractor to begin performance, the Contracting Officer must obtain approval
from the respective ASB Assistant Director to award the contract prior to
completion of preliminary background investigations.
In the period immediately following
contract award, all contractor personnel and subcontractor personnel who work
on-site at, and have unescorted access to, FDIC offices or facilities, or have
access to FDIC networks/systems, must submit FDIC background investigation forms, undergo fingerprinting, and may be
required to submit paperwork to initiate an OPM background investigation.
The contractor personnel and
subcontractor personnel must not begin working on the contract until the
fingerprint and the credit check processes have been completed and FDIC has
rendered a favorable determination, and the paperwork for any further OPM background investigation has been submitted.
Background investigation and credit check
authorization forms contain personally identifiable information (PII). These documents must not be made
into electronic format nor submitted to SEPS in electronic
format. Printed copies of the forms, along with the cover letter which
requests SEPS perform the background investigation(s) and credit check(s), must be
physically delivered to SEPS. The forms, and any other documents
containing PII, must not be uploaded into CEFile. Only the cover page of the request to
SEPS, along with the written response from SEPS (minus any PII), are to be
uploaded into CEFile
(2)
Fingerprinting: The Oversight Manager coordinates fingerprinting of contractor personnel
with SEPS as necessary, immediately after contract award. SEPS processes the clearance
applications and informs the Oversight Manager of the results.
(3)
Adverse Finding: SEPS works with
contractor employees to resolve any adverse findings discovered during their
background investigation, keeping the Contracting Officer and Program Office
informed of any delays. SEPS gives a contractor employee fourteen (14) days to
respond with any information disputing the adverse finding. Unless the finding
is resolved, the Contracting Officer requires the contractor to remove and
replace the employee in question with an employee FDIC accepts. The replacement
is at no additional expense to FDIC, and without relief from any contractual performance
and delivery requirements.
(4)
Changes in Contractor Personnel: The contractor must notify the Contracting Officer of
any changes in key personnel assigned to
the contract. For other than key personnel, the
contractor notifies the Oversight Manager of any new contractor or
subcontractor personnel assigned to the contract or any change in assignment of
current personnel. FDIC performs the appropriate background investigations and fingerprint check for any new personnel.
The Contracting Officer and the Oversight Manager have a continuing duty over
the life of a contract to update security information as changes in contractor
personnel occur, including their access to FDIC
facilities and network/systems.
5.203(d) Identification Badges
The Oversight Manager is
responsible for coordinating with the SEPS and the contractor to ensure the
issuance of appropriate badges to contractor personnel, and return of badges during the pre-exit clearance.
5.203(e) Termination of Access
Pre-exit clearances are conducted by the Oversight Manager when a
contractor employee no longer performs under the contract, and when the
contract ends. The Oversight Manager must ensure all access to FDIC facilities
and networks/systems is terminated, and that FDIC Form 3700/25, Pre-exit
Clearance Record for Contractors, found at http://fdic01/division/doa/adminservices/records/forms/3000/index.html,
is completed and filed in the official contract file. Additionally, the Oversight Manager must submit a request
in the Identify Access Management System (IAMS) in order to terminate a
contractor employee’s network/systems access. The Technical Monitor must notify
the Oversight Manager immediately, whenever they become aware that a contractor
employee is exiting.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.2-1 Background
Investigation Questionnaires -insert
provision in all solicitations for contracts greater than $100,000 or in which
any contractor personnel or subcontractor personnel will be required to undergo
a background investigation, namely when the contract requires they work on-site
and have unescorted access to FDIC offices or facilities, or have access to
FDIC networks/systems.
7.5.2-2 Reserved
7.5.2-3 Background
Investigations - insert clause in:
(1) all awards for services over $100,000, (2) awards at any dollar amount when
contractor personnel or subcontractor personnel will work on site and have
unescorted access to FDIC offices or facilities, or have access to FDIC
networks/systems, or (3) in any other contract where the Program Office has
described a need for background investigations. (Use
Alternate 1 when a waiver to FDIC Circular 1610.2 has been granted allowing the
$100,000 threshold to apply separately to the value of the contract and the
value of any subcontract.)
7.5.2-3 Alternative 1 – (Use Alternative 1 when a waiver to FDIC Circular
1610.2 has been granted allowing the $100,000 threshold to apply separately to
the value of the contract and the value of any subcontract.)
7.5.2-4 Reserved
7.5.2-5 Reserved
7.5.2-6 Reserved
7.5.2-7 Reserved
7.5.2-8 Reserved
7.5.2-9 Risk Level Designation
(Entire Contract) - insert clause in
all awards for services over $100,000 or awards at any dollar amount when the
Program Office has designated a risk level for the contract, per the policy set
out in Circular 1610.2. Under this clause,
the risk level applies to the entire contract and all labor categories that
perform on the contract.
7.5.2-10 Risk Level
Designation (Labor Category) -
insert clause in all awards for services over $100,000 or at any dollar amount
when the Program Office has designated a risk level for the labor categories in
the contract, per the policy set out in Circular 1610.2. Under this clause, the risk levels have been
established for each labor category; not for the Contract as a whole.
7.5.2-11 Identification/Access
Badges - insert the clause in awards
for services in which the contractor may work on-site at FDIC and require
unescorted access to FDIC facilities.
7.5.2-12 Reserved
7.5.2-13 Use of FDIC Premises
by Contractor Personnel - insert
clause in all awards in which the contractor may access FDIC offices or
facilities.
This chapter provides the
procedures, guidance and information for the implementation of Section 508 of
the Rehabilitation Act of 1973 (Section 508)
in FDIC contracts that include electronic and information technology equipment or
services.
5.303(a) Electronic and Information Technology Access
by Employees and Members of the Public
Section 508 requires FDIC to
give employees, and members of the public, with disabilities the same access to
electronic and information technology (EIT) as given to persons without disabilities. FDIC
Circular 2711.1, Electronic
and Information Technology (EIT)
Accessibility Pursuant to Section 508 of the Rehabilitation Act, provides guidance for implementation of Section 508
(http://fdic01/division/doa/adminservices/records/directives/2000/index.html).
5.303(b) Accessibility Standards
Section 508 requires agencies to implement the accessibility standards throughout the acquisition process. The EIT accessibility standards published by the Architectural and Transportation Barriers Compliance Board (Access Board) are found at 36 CFR Part 1194)
(http://www.access-board.gov/sec508/standards.htm).
5.303(c)
Section 508 Implementation Responsibilities
(1)
The
Program Office is responsible for:
§
Identifying in
its requirements documents which of the technical standards established by the
Access Board apply to the requirement
(seehttp://www.access-board.gov/sec508/standards.htm
);
§
Conducting
market research to
identify what products, if any, are available that meet the standards, or
whether an exception applies;
§
Drafting
the related specification(s);
§
Determining
whether an exception to buying Section 508-compliant EIT applies. The exceptions are:
o
Undue burden;
o
Commercial
non-availability;
o
EIT incidental to
a contract;
o
EIT in remote
locations; and
o
Fundamental
alterations.
http://fdic01/division/doa/adminservices/records/directives/2000/index.html.
Note that early in the
implementation of Section 508, an exemption was granted for very small dollar
awards (less than $5,000), but that exemption has expired and all EIT purchases are
now covered by Section 508;
§
Obtaining
approval from the Division of
Information Technology (DIT) Director of a determination of either
commercial non-availability or undue burden;
§
Consulting
with DIT, if the requirement is for development
of EIT, and submitting the DIT-prescribed forms in the requirements
package. Guidance and forms can be found on the
DIT web page, Developing
EIT Products
under Section 508 (http://fdic01/division/dit/section508/index.html); and
§
Complete
a Section 508 Determination and Finding
(FDIC Form 3700/51) identifying the technical standards and documenting an
exception, if one applies. The undue burden and commercial non-availability
exceptions require additional findings and documentation, using the forms found
on the Division of Administration web page, Accessibility-508
(http://fdic01/division/doa/buying/Assessibility_508.html);
(2)
The
Contracting Officer is responsible for:
§
Including in the
request for proposal/request for quotation the appropriate Section 508 EIT clause which
identifies the technical standards that apply to the acquisition, and directs
prospective contractors to the Voluntary
Product Accessibility Template (VPAT) found on the ASB website at http://www.itic.org/archives/ITI%20Voluntary%20Product%20Accessibility%20Template.htm;
§
Coordinating
the evaluation process with the DIT Technical Evaluation Panel (TEP) advisor from the Delivery Management Branch, Independent Testing
Section, assigned to evaluate Section 508 compliance.
The DIT advisor to the TEP (non-voting member) evaluates offerors’ VPATs
to determine their level of compliance with Section 508 and how well the
offerors meet the technical standards; and
§
Ensuring
that the following provision is a part of all maintenance agreements supporting
EIT hardware or software: “Under this maintenance
agreement, Contractor agrees to maintain compliance with Section 508 of the
Rehabilitation Act of 1973 for all hardware/software.”
(3)
DIT is
responsible for:
§
Providing
technical assistance and funding when remediation of existing EIT products or projects is necessary to achieve
Section 508 compliance, and including funding for this purpose in the DIT budget;
§
Making
the final determination of undue burden or commercial non-availability (DIT Director); and
§
Providing
an advisor to the TEP to evaluate how well
offers meet Section 508 standards.
5.303(d) Section 508 Contracting Tools
There are various tools
available to assist the Contracting Officer and Program Office to ensure that
FDIC-purchased EIT is Section 508
compliant:
(1)
FDICnet:
Guidance on Section 508 roles and responsibilities is found on the Section 508 at FDIC web page at
http://fdic01/division/omwi/section508.html;
(2)
General
Services Administration’s (GSA’s) site at www.section508.gov. This site provides best practices, free
training on various Section 508-related subjects, and frequently asked
questions;
(3)
GSA’s Buy Accessible Wizard website at www.buyaccessible.gov: The Wizard is a tool for conducting and
documenting market research; and
(4)
Access
Board accessibility standards at http://www.access-board.gov/508.htm: This site provides detailed information
on the standards and provides training.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.3-1 Section 508, Electronic
and Information Technology (EIT) - (Basic
Ordering Agreement) - insert clause in all basic ordering agreements (BOAs) where electronic and information technology (IT) is being
developed, purchased or maintained.
7.5.3-2 Section 508, Electronic
and Information Technology (EIT) -
(Contract or Task Order) - insert
clause in all awards other than BOAs where
electronic and IT is being developed, purchased or maintained. FDIC must fill
in the blanks next to the standards that apply to the award.
This chapter provides
procedures, guidance and information on acquiring, protecting and using
intellectual property, including inventions, patents and copyrighted
material as part of the acquisition process.
5.403(a) Acquisition of Intellectual Property Rights
Contracting Officers must
consider the following relative to intellectual property rights in FDIC
contracts.
(1)
Non-Impairment of Private Rights: Any
FDIC efforts directed toward competition must not improperly demand or use
privately-developed intellectual property. FDIC complies with applicable laws and
regulations regarding patents and intellectual property rights.
(2)
Commercial Application: Consistent with its expressed policies,
FDIC encourages the commercial application of data, copyrights and inventions
made under its contracts.
(3)
Indemnification for Use of Intellectual Property: Contracting Officers must include
clauses providing indemnification for FDIC use of intellectual property obtained by a license or assignment from a
contractor.
The Contracting Officer must
fully coordinate with the Contracting Law Unit (CLU) on any solicitation involving intellectual property.
FDIC acquires patent rights,
rights in data, and copyrights in software only to the degree necessary to
protect its interests. Those rights may include:
(1)
Limited
rights of use, such as nonexclusive licenses or use for a particular function
or organization only;
(2)
Restricted
rights, generally for computer software, allow FDIC to use the software for the
purpose stated in the contract, but does not allow disclosure or distribution.
Contracts must address the specifics when restricted rights are granted by the
contractor;
(3)
Unlimited
rights of use for patents, data, copyrighted materials, and
software. FDIC is granted the right to use, disclose, distribute, and copy
materials/data as it sees fit; and
(4)
Ownership
rights in patents or copyrighted materials, such as when software or computer
programs have been solely funded and developed exclusively for the use of FDIC,
or when materials have been jointly developed by a contractor and FDIC
employees.
Determinations to acquire
limited or restricted rights must consider future competitions and the effect
total program or project costs for FDIC.
The Contracting Officers must fully coordinate with CLU on any
solicitation involving rights in data and copyrights.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.4-1 Authorization and
Consent - insert clause in all
construction contacts and any contracts involving the application of patentable
business methods, such as online auction services.
7.5.4-2 Notice and Assistance
Regarding Patent and Copyright Infringement - insert clause in all construction contracts; contracts in which
original data is transferred or developed by a contractor for use by FDIC;
contracts in which educational or training materials are developed by a
contractor for the use by FDIC; and contracts involving the licensing of any
intellectual property.
7.5.4-3 Patent Indemnity - insert clause in all construction contracts and any
contract involving the application of patentable business methods, such as
online auction services.
7.5.4-4 Patent Rights-Retention
by the Contractor - insert clause in
awards in which use of an invention developed by the contractor under the
contract is a core component of the services provided by the contractor. This
clause is to be used when patent rights are to be retained by the contractor
instead of FDIC.
7.5.4-5 Patent
Rights-Acquisition by the FDIC -
insert clause in awards in which use of an invention developed by the
contractor under the contract is a core component of the services provided by
the contractor. This clause is to be used when patent rights are to be
transferred to FDIC.
7.5.4-6 FDIC Rights in
Data-General - insert clause in
awards in which original data or software applications are transferred or
developed by a contractor for use by FDIC; contracts in which educational or
training materials are developed by a contractor for use by FDIC; and contracts
involving the licensing of any intellectual property by the
contractor to FDIC.
7.5.4-7 Rights in Data-Special
Works - insert clause in awards
involving specially commissioned copyrightable works in which the contractor
should not acquire any copyright in the works unless specifically approved by
the Contracting Officer.
7.5.4-8 Rights in Data-Existing
Works - insert clause in awards in
which pre-existing copyrighted materials are used by the contractor in the
performance of the contract.
7.5.4-9 Commercial Computer Software-Restricted Rights - insert clause in awards which include the acquisition of commercial computer software, except orders under the General Services Administration’s Multiple Award Schedule.
This chapter provides
procedures, guidance and information on the use of options in FDIC
awards.
5.503(a) Establishing Options
When the Contracting Officer
and Program Office determine to include an option(s) in a contract, the
appropriate option provisions and clauses must be inserted in the solicitation
and contract. The terms of the solicitation must address how FDIC evaluates
options in the
pre-award phase and exercises them after contract award.
The resulting contract must
specify the limits on the purchase of additional goods or services or the
overall duration of the term of the contract, including any extension. The
contract also states the period within which the option may be
exercised and requires a written notification of the intent to exercise the
option to the contractor.
5.503(b) Exercising Options
The Contracting Officer may only exercise
an option after:
(1)
Receiving
an approved procurement requisition from the Program Office, signifying that the
requirement covered by the option fulfills an existing FDIC need, and making a
written determination for the official contract file that exercise of the
option:
§
Is
in accordance with the terms of the contract;
§
Based
on current market research; and
§
Is
the most advantageous method of fulfilling an FDIC need, price and other
factors considered.
The Contracting Officer must
provide written notice to the contractor of the intent to exercise the option at least sixty
(60) days prior to expiration of the period of performance, unless a different
time period is specified in the contract. A
template for the notice of intent to exercise the
option is available on the ASB
website (http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html). The
option exercise is accomplished through issuance of a unilateral modification.
If written notice is not provided within the time period specified, the
Contracting Officer may still exercise the option, with the contractor’s
agreement, using a bilateral modification. The modification to exercise the
option must be issued before the current period of performance expires.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.5-1 Option Period - insert clause in awards which include option periods.
7.5.5-2 Notice of Exercise of
Option -
insert clause in awards which include option periods.
This chapter provides
procedures, guidance and information related to subcontracting.
5.603(c) Subcontracting Plan
The contents of a
subcontracting plan are detailed
below:
(1)
Name,
address and Data Universal Numbering
System (DUNS) number of the subcontractor;
(2)
Summary
of capabilities of the subcontractor;
(3)
Description
of roles of subcontractor key personnel;
(4)
Estimated
percentage of work to be performed by the subcontractor;
(5)
Description
of work to be performed by the subcontractor;
(6)
Minority
or Women Owned Business (MWOB) designation of subcontractor, i.e., Women-Owned,
Minority-Owned. Also, if Minority-
Owned, the subcontractor’s ethnic/racial category from the following list:
Asian-Pacific American
Subcontinent Asian (Asian-Indian)
American
Black American
Hispanic American
Native American
Other than one of the preceding
(7)
Small
disadvantaged business (SDB) certification, if any, of
subcontractor; and
(8)
Rationale
and the offeror’s policy for subcontracting, including a description of how the
subcontracting commitments will be met.
5.603(d) Subcontracting Plan Evaluation
When evaluating the
contractor’s subcontracting plan, consider the following:
(1)
Has
the offeror adequately documented the rationale for subcontracting?
(2)
Is
the proposed level of subcontracting appropriate for the requirements of the
contract (that is, logically balanced on a technical basis)?
(3)
Are
the subcontractor’s qualifications, resources and capabilities appropriate for
the complexity of the work?
5.603(e) Approving Subcontractors after Award
The contractor's request to
add a subcontractor after award must include a new or revised subcontracting
plan and any
pertinent pricing information. Any revision to a subcontracting plan which
decreases the level of participation for MWOB or SDB must be given tight
scrutiny and only permitted if determined by the Contracting Officer to be in
the best interest of FDIC. The Contracting Officer reviews the request and
forwards it, along with any comments, to the Oversight Manager for approval or
disapproval. If approved, the Contracting Officer must issue a
modification that authorizes subcontracting with the named firm and
incorporates the necessary subcontracting clauses and subcontracting plan.
5.603(f) Subcontracting Plan Compliance
The subcontracting plan is considered
a material part of the contract. The contractor’s failure to comply with
and make progress under the subcontracting plan may be considered a breach of
contract. In addition, failure to achieve the stated subcontracting goals
may result in the issuance of a cure notice or show cause
letter for purposes of termination for default. It may also have a negative and adverse impact on
the contractor’s past performance record to be considered during
proposal evaluation on future solicitations. Therefore, throughout contract
performance, the Contracting Officer and Program Office must determine whether
the contractor has made a good faith effort to comply with the subcontracting
plan, consistent with the goals and objectives, reporting, and other aspects of
the plan.
5.603(g) Subcontracting Reports
The
subcontracting report must include:
(1)
Subcontractor’s
name, address, and DUNS number;
(2)
Subcontractor’s
type of business concern [Minority Owned (including ethnicity), Women Owned,
Small Disadvantaged Business, Veteran Owned and/or Service Disabled Veteran
Owned Business];
(3) Estimated
percentage of the work to be performed by the subcontractor. (Applicable only
to awards with Subcontracting Plans.);
(4) Description of work performed by
subcontractor during the report period and dates, or range of dates,
performance was accomplished;
(5) Compensation
paid to subcontractor during reporting period;
(6) Total compensation paid to subcontractor cumulative to date; and
(7) Percentage of completion toward subcontracting plan goals or commitments. (Applicable only to awards with Subcontracting Plans.)
The Contractor must provide
the subcontracting report to FDIC using the FDIC Subcontracting Reporting
System (SRS). The SRS is a web-based
system that is accessible via the internet at https://www2.fdic.gov/SRSweb/. Contractor may access a copy of the SRS User
Guide in the Miscellaneous section of the following webpage:
http://www.fdic.gov/buying/goods/acquisition/index.html.
The subcontracting report must be submitted within 10
days after the end of each quarter (i.e., by January 10th for the
quarter ending December 31st, by April 10th for the
quarter ending March 31st , by July 10th for the quarter
ending June 30th and by October 10th for the quarter
ending September 30th).
Contracting Officers must
insert the following provisions and clauses as required:
7.5.6-1 Prohibition on
Subcontracting - insert provision in
solicitations when subcontracting will not be permitted.
7.5.6-2 Subcontracting
Reporting - insert
in awards when subcontracting is approved.
7.5.6-3 Subcontracting
Reporting (BOAs/RBOAs/BPAs)
- insert clause in basic ordering
agreements, receivership basic ordering agreements or
blanket purchase agreements if
subcontracting is approved.
7.5.6-4 Approved Subcontractors
and Consent to Subcontract - insert
clause in all awards.
7.5.6-4 Alternate
1 - insert in awards when a
waiver to the APM requirement for approval of subcontractors has been granted
for subcontracts valued at $100,000 and under.
7.5.6-5 Subcontracting Plan Compliance - insert clause
in awards where subcontracting has been approved.
This chapter provides
procedures, guidance and information related to the use of incentive
contracting by FDIC
Contracting Officers and the Program Offices they support.
5.703(a) Monetary Incentives
In labor hour and time and
materials contracts,
pre-determined monetary incentives may be used to
motivate the contractor to:
(1)
Control
the amount of dollars incurred for labor and/or material;
(2)
Increase
technical performance; and/or
(3)
Expedite
delivery.
Because of the
interdependency of these three goals, a contract that emphasizes only one of
the goals may jeopardize control over the others. Therefore, when including
pre-determined monetary incentives for multiple
goals, the contract must include a constraint that operates to preclude
rewarding a contractor for superior technical performance or delivery results
when the incurred dollar amount of those results outweighs their value to FDIC.
In firm fixed price contracts, pre-determined
monetary incentives are limited to motivating the contractor to increase
technical performance, and/or expedite delivery. When pre-determined monetary
incentives are used for
technical performance or delivery, incentive increases must only be provided
for achievement that surpasses the targets/goals, and incentive decreases are
provided for to the extent that such targets/goals are not met. The incentive
increases or decreases are applied to the targets/goals rather than the minimum
requirements.
The value of the purchase
requisition must be based on the inclusion of the estimated maximum amount for
any monetary incentives which may be
paid under the resulting contract. The cost estimate developed by the Program
Office must identify this amount separately from labor, material, travel, etc.
The purchase requisition must be structured so that those approving it clearly
understand they are also approving the use of the monetary incentive.
The purchase requisition
must be accompanied by documentation (memorandum for the file) from the Program
Office supporting the selection of the efforts subject to the incentive(s) and
the dollar values assigned to the price additions or reductions. For example,
if $10,000 is to be used as an annual incentive for a contractor performing
certain services with zero defects, the memorandum to file must address the
benefits FDIC receives from having zero defects and why $10,000 is an
appropriate amount. Because the amount is often based on the subjective
judgment of FDIC personnel, care should be taken to ensure the amount is
neither trivial nor excessive. The goal is to establish an incentive amount
sufficient enough to motivate the contractor to perform at a level higher than
what it would have done without the incentive.
Upon receipt of the
proposal(s) and completion of negotiations, the Program Office and Contracting
Officer must determine, prior to award, the maximum dollar amount FDIC would
owe the contractor, in the event the contractor earns all of the monetary
incentives available on
the contract. The contract must identify the value of the monetary incentive as
a subset of the total contract ceiling amount, so
that the contract clearly conveys:
(1)
Contract
ceiling amount for labor and/or material;
(2)
Total
monetary incentive amount that could potentially be earned by the
contractor; and
(3)
Total
contract ceiling amount for the
combination of the two.
The procedures for
administratively processing the monetary incentive must be
incorporated into the contract. The procedures must include an explanation of
how and when the incentive amount is to be determined, the written means by
which the Contracting Officer notifies the contractor of the results, and the
process of invoicing for the price addition or price reduction. The invoice should clearly
identify the amount of the addition or reduction, along with the performance
period to which it applies.
Special attention must be
given to the process of invoicing for a price reduction. The goal is to avoid,
to the maximum extent possible, an overpay situation in which the contractor
must send FDIC a check to accomplish the reduction in price. Instead, it is preferable to process the
price reduction as an adjustment to the negotiated price (for firm fixed price contracts) or to the incurred
amount (for labor hour and time and
material contracts).
Depending on how long it
takes the FDIC to determine the amount of any increase or decrease, the
contractor may not be able to submit the adjustment with the immediate invoice to which it
applies. Therefore, it may be necessary for the Contracting Officer to include
language in the contract for the withholding of money. The
withhold amount is to be released upon the completion of the contract; after it
is determined no reductions from contract price are owed to FDIC.
5.703(b) Contract Extension Incentive (Award Term)
The award term process can
be administratively time-consuming. Factors that the Contracting Officer must
consider before making a decision to use award term include the
dollar value, complexity and criticality of the procurement; the availability
of FDIC resources to monitor and evaluate performance; and the benefits
expected to result from such oversight. Caution must be used to prevent a
situation in which the award term administrative burden is out of proportion to
the improvements expected in the quality of the contractor's performance. It
should only be used when the expected results warrant the additional
administrative/management effort.
The award term process is
established contractually, prior to the start of performance, in a
pre-determined Award Term Plan. The plan must include:
(1)
Details
of the award term process and include the roles of FDIC personnel (such as the
Evaluation Monitors, the Award Term Review Board and the Term Determining Official
[TDO]);
(2)
Performance
evaluation criteria;
(3)
Award
term period;
(4)
Point
scoring process; and
(5)
Procedures
for making future changes to the
plan.
Based on the final score
assigned by the TDO to the contractor's performance, along with the continued
need for the services/products and the availability of funding, the
contractor's performance period may be extended. However, prior to notifying the contractor,
approval of any award term extension must be obtained from the respective ASB
Assistant Director.
This chapter provides
procedures, guidance and information on the use of bonds and insurance to protect the
FDIC against financial losses under contracts.
The procedures in this
chapter are to be used by FDIC Contracting Officers and the Program Offices
they support when soliciting, awarding and managing contracts involving bonds
and insurance.
5.804(a) Payment and Performance Bonds
The Contracting Officer must
request the Contracting Law Unit review of
bonds for legal
sufficiency after receipt. Bonds are normally not returned to the contractor,
because they expire when the contract is completed. Contract completion, for
purposes of the performance bond, includes the life of any guarantee required
by the contract. However, where the bond is supported by a negotiable
instrument, rather than by surety, the supporting instrument must be returned (or the
amount reduced) upon completion of the contract (See PGI 5.804[c]). The Contracting Officer may reduce or eliminate the
amount of bond coverage required during warranty periods, or
when contract performance is substantially complete, if it would not adversely
impact the subcontractors, suppliers, or FDIC.
5.804(c) Adequate Security in Lieu of Sureties
(1)
Types of Security: The contractor may deposit any of the
types of security listed in this section in lieu of furnishing corporate or
individual sureties on performance and payment bonds. When any of those types of security are
deposited, a statement must be incorporated in the bond form pledging the
security. When the contractor pledges assets instead of providing a surety bond, the supplier must complete the bond form
as principal, and the bond form must describe the assets pledged. Other forms of acceptable
securities include:
§
United
States bonds or
notes with a maturity date less than five years from the date of the contract,
together with an agreement authorizing collection or sale in the event of
default. The par
value of the bonds or notes must be at
least equal to the penal amount of
the bond; and
§
A
certified check, cashier's check, bank draft, postal money order, or currency.
The deposit must be at least equal to the penal amount of
the surety bond, and payable solely to the order of
FDIC.
(2)
Safeguarding: The Contracting Officer must coordinate bond receipt with the FDIC Division of Finance (DOF),
Cash Management, which safeguards payment or performance bonds during contract
performance. Upon direction of the Contracting Officer, DOF returns the bond(s)
to the contractor when the bond obligation has ceased. DOF maintains an
inventory of all deposited bonds supporting FDIC contracts.
(3)
Contract Completion: Upon contract completion, the contractor’s
funds must be returned as soon as possible, unless the Contracting Officer
determines that part or all of the account is required to compensate FDIC for
costs it incurs as a result of the contractor’s delay, default, or failure to
perform. In such a case, the entire account must be available to compensate
FDIC.
5.804(d) Information
and Notice to Sureties
The Contracting Officer has
an obligation to keep sureties, subcontractors, and suppliers informed as to
activities under the contract, as specified in the performance or payment bond.
5.805(a) Insurance Requirements
The amount of coverage
required is determined jointly by the Program Office and the Contracting
Officer, based upon an analysis of the risk of loss involved in the contract.
As a general rule of thumb, for contracts with a value of $100,000 or more, the
policy limits per occurrence/incident should be: $100,000 for workers’
compensation insurance, $5,000,000 for general liability insurance, and
$1,000,000 for automobile liability insurance.
5.805(c) Evidence of Insurance
Unless
otherwise granted an extension of time for submission by the Contracting
Officer, the contractor must provide the Contracting Officer with certificates
of insurance no later than
ten (10) days after execution of the contract. The Contracting officer must
ensure that the certificates:
(1)
Are
issued by the insurance company;
(2)
State
that the required insurance is
currently in force;
(3)
Contain
a statement that the insurers give thirty (30) days advance notice of
cancellation to the Contracting Officer; and
(4)
Name
FDIC as an additional insured on the contractor’s comprehensive bodily injury
and property damage liability insurance, and automobile public liability and
property damage insurance policies for contracts with a value of $100,000 or
more.
Should required insurance be cancelled,
FDIC has the right to procure such insurance and the cost thereof is deducted
from monies then due, or which thereafter become due, to the contractor. A contractor may carry any additional
insurance it may deem necessary. The contractor is not relieved of any
responsibility by the fact that the contractor carries insurance.
Other evidence of insurance the
Contracting Officer may obtain from the Contractor includes a binder or a copy
of the original insurance policy.
Contracting Officers must insert the following provisions and clauses as required:
7.5.8-1 Liability Insurance - insert clause in all awards over $100,000.
7.5.8-2 Certificates of
Insurance - insert clause in awards
over $100,000.
7.5.8-3 Insurance for
Equipment/Tools - insert clause in
construction contracts and other contracts in which the contractor will use its
equipment, tools, supplies, or materials on FDIC premises.
7.5.8-4 Notice to the FDIC on
Damages - insert clause in awards
over $100,000.
7.5.8-5 Cost of Insurance - insert
clause in awards over $100,000.
7.5.8-6 Payment and/or
Performance Bonds - insert clause in
construction contracts valued at or above $100,000.
7.5.8-7 Fidelity Bond Coverage
- insert clause in all awards when
the program office informs the Contracting Officer that coverage is necessary.
7.5.8-8 Reserved
7.5.8-9 Errors and Omissions
Insurance - insert clause in awards
when the program office informs the Contracting Officer that coverage is
necessary.
7.5.8-10 Reserved
7.5.8-11 Liability to Third
Persons - insert clause in all
awards.
7.5.8-12 Pledge of Assets - insert clause in all awards when an individual surety is required as
a term of the contract.
This chapter provides the
procedures, guidance and information for FDIC Contracting Officers and Program
Offices regarding federal, state and local taxes and duties.
5.903(a) Tax Exemption
The invoice a contractor
presents to FDIC, for the goods or services it directly provides FDIC under its
contract, is not subject to sales tax due to the tax-exempt status of FDIC. Any
sales tax that is charged by a contractor on an invoice is to be deducted from
the amount approved for payment. If a contractor needs proof of the tax-exempt
status of FDIC, the Contracting Officer provides the contractor with the State Sales Tax Exemption Certificate
found at http://fdic01/division/dof/financial/taxpolicy/state_certificates/index.html
or a completed SF-1094, U.S. Tax
Exemption Form.
When contractors purchase
goods or services to use in performance of an FDIC contract, they generally
have to pay the taxes assessed on
the goods or services because they cannot claim tax-exempt
status by virtue of the fact they are performing work for FDIC. Some
jurisdictions may extend the FDIC tax-exemption to contractors, depending on
the nature of the transaction. In that event, contractors should take advantage
of all available exemptions. When there is a basis for claiming a tax exemption
(the taxing authority has indicated a willingness to exempt the specific goods
or services from tax), the Contracting Officer provides the forms addressed in
the previous paragraph.
5.903(b) Legal Division, Contracts
Law Unit Assistance
Issues related to the sales
tax exempt status of FDIC are essentially legal in nature and can vary widely.
The Contracting Law Unit (CLU) should be contacted for assistance with tax
questions that arise related to a contract.
Questions as to how the tax
law may affect offerors and contractors themselves are outside the purview of
CLU. They should
be referred to their own legal counsel, not to CLU.
Contracting Officers must insert the
following provisions and clauses as required:
7.5.9-1 FDIC Exempt from
Federal, State, and Local Taxes -
insert clause in all awards.
This chapter provides
procedures, guidance and information on the use of warranties by FDIC
Contracting Officers and the Program Offices they support.
The Contracting Officer
generally accepts standard commercial warranties, if there is no additional
cost to FDIC. Custom, modified or extended warranties generally
entail additional cost to FDIC and require analysis to determine if the
warranty is in the best interest of FDIC.
5.1003(a) Warranty Planning
Planning is an essential
step in obtaining an effective warranty and should
begin early enough to address warranty requirements during the development of
the item. Therefore, consideration of warranty provisions and their impact
should be included within the acquisition planning process.
5.1003(b) Warranty Analysis
The analysis to determine
whether to use a custom, modified or extended warranty should examine
the goods or services total costs, both with and without a warranty. Where possible,
a comparison should be made with the costs of obtaining and enforcing
warranties for similar goods and services. The Contracting Officer should
consider the criteria addressed in 5.1004 below when determining if a warranty
is in the best interest of FDIC, and document the results of the analysis in
the official contract file.
The Program Office and
Contracting Officer must consider the following in their analysis:
5.1004(a) Nature and
Use of the Goods or Services
This includes such factors as:
(1)
Complexity
and function;
(2)
Degree
of development;
(3)
State
of the art;
(4)
End
use;
(5)
Difficulty
in detecting defects before acceptance; and
(6)
Potential
harm to FDIC if the item is defective.
5.1004(b) Cost
Warranty costs arise from:
(1)
The
contractor’s charge for accepting the deferred liability created by the
warranty; and
(2)
FDIC
administration and enforcement of the warranty.
5.1004(c) Administration
and Enforcement
The ability of FDIC to
enforce the warranty is essential
to the effectiveness of any warranty. The Program Office, after consultation
with the Contracting Officer, must assure that an adequate administrative
system for reporting defects exists or can be established. The adequacy of a
reporting system may depend upon such factors as the:
(1)
Nature
and complexity of the item;
(2)
Location
and proposed use of the item;
(3)
Storage
time for the item;
(4)
Distance
of the customer from the source of the item;
(5)
Difficulty
in establishing existence of defects; and
(6)
Difficulty
in tracing responsibility for defects.
5.1004(d)
Trade Practice
In many instances an item is
customarily warranted in the trade, and as a result of that practice, the cost
of an item to FDIC is the same whether or not a warranty is included.
In those instances, it would be in the best interest of FDIC to include such a
warranty.
5.1004(e) Reduced
Quality Assurance Requirements
The contractor’s charge for assumption of added liability may be partially,
or completely, offset by reducing FDIC contract quality assurance requirements
where the warranty provides adequate
assurance of a satisfactory product.
Custom warranty clauses will likely
result in a higher contract price, where terms substantially differ from those
typically offered by contractors. The Contracting
Officer (in conjunction with the Program Office and the Contracting Law Unit, in analyzing whether a special warranty clause is appropriate,
must consider the standard market practices for each commodity, as well as the
costs and benefits to FDIC when making that decision. The decision to include a
special warranty clause must be approved by the respective ASB Assistant
Director.
Any contract
that contains a warranty clause must include:
(1)
Identification
of the specific goods or services covered by the warranty;
(2)
Implementation
procedures, including warranty notification content and procedures,
(3)
Identification
of the individuals responsible for implementation of warranty provisions;
(4)
Warranty
period, including:
§
What
constitutes the start of the warranty period, e.g., delivery, acceptance, in-service date;
§
The
ending of the warranty, e.g., passing a test or demonstration, or operation
without failure for a specified time period; and
§
Circumstances
requiring an extension of the warranty, e.g., extending the warranty period as
a result of mass defect correction during warranty period;
(5)
Responsibility
for shipping or transportation costs;
(6)
Conditions
not covered by the warranty; and
(7)
Any
limitation on contractor liability.
The Oversight Manager must
immediately notify the Contracting Officer and contractor of any deficiencies
in material or workmanship of delivered items, and whether the contract
contains a warranty or maintenance
clause. In addition, the Oversight Manager must monitor response and repair
times as stipulated in the contract.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.10-1 Warranty of Construction - insert clause in all construction awards.
7.5.10-2 Guarantees - insert clause in all
construction awards.
This chapter
provides the procedures, guidance and information to support FDIC Contracting
Officers and other officials in implementing the Service Contract Act (SCA) of 1965 and the Davis-Bacon Act (DBA).
Wage Determination
– A determination of minimum
wages or fringe benefits made under sections 2(a) or 4(c) of the SCA (41 U.S.C. 351(a) or 353(c)) applicable
to the employment in a given locality of one or more classes of service
employees.
Additional definitions for terms associated with the SCA are detailed
in 29 CFR Part 4 and 5, which is available at http://www.access.gpo.gov/nara/cfr/waisidx_06/29cfrv1_06.html.
5.1103(a)
Service Contract Act Application
The
SCA prescribes
wage rates and benefits by locality and through collective bargaining
agreements. Examples of non-professional services subject to
the SCA are:
(1)
Custodial,
janitorial, or housekeeping services;
(2)
Snow,
trash and garbage removal;
(3)
Guard
services;
(4)
Temporary
or secretarial support services;
(5)
Certain
specialized services requiring special skills, such as graphic arts or
stenographic reporting;
(6)
Packing,
crating, or storage;
(7)
Maintenance
and repair of equipment;
(8)
Data
processing, collection, and analysis; and
(9)
Accounting
clerks and bookkeepers.
5.1103(b) Service Contract
Act Exemptions
There are a
number of exemptions to the SCA’s application, both in the statute and
the regulations.
Statutory
exemptions include:
(1)
Contracts
entered into by FDIC in its receivership capacity;
(2)
Contracts
for construction, alteration, or repair of public buildings or public works
subject to the DBA;
(3)
Contracts
for supplies subject to the Walsh-Healey Public Contracts Act;
(4)
Transportation
contracts governed by published tariff rates;
(5)
Contracts
for telecommunications services subject to the Communications Act;
(6)
Contracts
for public utility and postal operations services; and
(7)
Employment
contracts for direct services to a federal agency by an individual or
individuals.
Regulatory exemptions (found
at 29 CFR Part 4) include:
(1)
Bona
fide executive, administrative, and professional positions. Professional
positions are narrowly defined as the traditional professions, i.e., doctors,
accountants, lawyers, and teachers (29 CFR 541);
(2)
Certain
computer-related professional positions. Exempt within this group are computer
engineers, program designers and other persons who perform original,
non-repetitive tasks; and
(3)
Contracts
for the maintenance, calibration, or repair of:
§
Automated
data processing equipment and office information or word processing equipment;
§
Certain
scientific and medical equipment; and
§
Office
or business machines not otherwise exempted, where the manufacturer or supplier
of the equipment performs the services. (29 CFR 4.123(e)(i)).
The Contracting Law Unit should be
contacted for further guidance on SCA exemptions.
5.1103(c)
Service Contract Act Wage Determinations
(1)
When
the SCA applies to an acquisition, the Contracting
Officer must seek a wage determination from the Department of Labor (DOL), Wage
and Hour Division for each labor category that falls under the SCA. The wage determination must be obtained
prior to:
§
Issuing
a request for proposal (RFP);
§
Commencement
of negotiations, if not obtained prior to issuance of the RFP;
§
Exercise
of option or
contract extension;
§
Changes
in scope that significantly affect the labor requirements of the award; and
§
The
biennial anniversary date of a
multi-year contract.
Guidelines for the application of the SCA and obtaining
wage determinations are on the DOL SCA website at http://www.dol.gov/compliance/laws/comp-sca.htm.
(2)
The
Contracting Officer can obtain locality wage determinations using either of the
following methods:
§
Accessing
the DOL Wage Determinations OnLine (WDOL) website at www.wdol.gov to select the wage determination that
applies to the non-professional service categories in the procurement; or
§
Submitting
an e98, Notice of
Intention to Make a Service
Contract and Response to Notice, and describing the proposed contract
and the occupations expected to be employed on the contract. The e98 is an
option on
the www.wdol.gov home page, and the system uses queries
to walk the user through the process. The system assigns a unique serial number
to the e98 linking it to the request. It also amends the response if the
applicable wage determination is revised. It is important to provide the
correct email address and other information requested on the e98 request.
(3)
If
there is no wage determination and the existing contract is being performed by
service employees under an established collective bargaining
agreement, and if the successor’s contract is for substantially the same
services as were furnished at the same location by the incumbent contractor,
the wages and fringe benefits of the successor’s service employees are
determined by the predecessor’s collective bargaining agreement.
5.1103(d)
Revised Service Contract Act Wage Determinations
The Contracting
Officer is required to monitor revisions to wage determinations, and does so by
signing up for the WDOL “Alert Service.”
Any revision to
a wage determination that is published in the WDOL SCA database prior to the date of award (or the
date of a specified modification having the effect of a new award) is the
effective wage rate for the contract. Any revision to a wage determination that
is published in the WDOL SCA database after the date of award, but before
work commences, does not establish the effective wage rate, provided that
contract performance commences within thirty (30) days of the award date.
However, if contract performance does not commence until thirty (30) days after
award (or the specified modification), then any revised wage determination
published in the WDOL SCA database at least ten (10) days prior to the
date work commences is the effective wage rate for the contract.
5.1103(e)
Adding New Labor Categories
If it is discovered
that the most current, applicable wage determination covering the appropriate
locality, occupations, types of services and fringe benefit levels for the service(s)
to be performed was not included in the contract, the Contracting Officer must
ensure that the applicable wage determination is added to the contract through
a modification.
5.1103(f) Modifications and Requests for
Equitable Adjustment
Issuance of a new wage determination
requires that the Contracting Officer issue a modification to formally
incorporate the new or revised rates into the contract. Revised wage
determinations are issued at the time of exercise of any options periods.
A new wage determination must be requested and incorporated into the
contract on the anniversary date of a two-year contract (at the end of the
first year of performance) and each two-year anniversary of a multi-year
contract.
When a new or revised wage determination
is incorporated into the contract, the contractor is entitled to submit a
request for an equitable price adjustment for the affected class rates. If the
contractor does not formally request an equitable adjustment, the Contracting
Officer is not required to increase the applicable contract labor rate(s) as a
result of a revised wage determination. However, the Contracting Officer must
give any request reasonable consideration.
As a general benchmark, the contractor’s
labor rates are only increased in the amount of (not to exceed) the net
increase in the rate from the old to the revised wage determination. For
example, if the old wage determination rate increased from $7.00 to a revised
rate of $7.08, then the corresponding contract labor rate is only increased by
$.08. Labor rate adjustments apply only to direct labor costs and not
to general and administrative and profit.
5.1103(g) FDIC Purchase Card Use
If
a purchase subject to the SCA is made under
the FDIC Purchase Card Program, the cardholder must obtain a wage determination
and provide it to the contractor; see Appendix C, FDIC Purchase Card (P-Card) Guide.
5.1103(h) Contracts in Both Corporate Capacity and
Receivership Capacity
For contracts entered into
by FDIC acting in both its corporate capacity and its receivership capacity, the Contracting Officer
must segregate the services and inform offerors that the SCA wage
determination applies only to services performed for FDIC in its corporate
capacity.
When the DBA applies to an acquisition, the
Contracting Officer must seek a wage determination from the DOL, Wage and Hour
Division for each labor category that falls under the DBA and provide it to
potential offerors in the solicitation. Wage determinations are available on line at http://www.wdol.gov/.
5.1104(a) Davis-Bacon Act Application
The DOL is responsible for
issuing wage determinations reflecting prevailing wages, including fringe benefits for workers who work on
construction, alteration or repair of public buildings or public works. The
wage determinations apply only to those laborers and mechanics employed by a
contractor upon the site of the work; this includes drivers who transport
materials or equipment used in the course of contract operations to or from the
site. Determinations are issued for different types of construction, such as
building, heavy, highway, and residential (referred to as rate schedules), and
apply only to the types of construction designated in the determination.
5.1104(b) Exemptions
The DBA does not apply to:
(1)
Construction
work which is incidental to the furnishing of supplies, equipment, or services;
or
(2)
Work
which is so merged with non-construction work it can’t be segregated as a
separate contractual requirement.
5.1104(c) Davis-Bacon Act Wage Determinations
The Contracting Officer must
incorporate the appropriate wage determinations in solicitations and contracts
and must designate the work to which each determination or part thereof
applies. When exercising an option to extend the
term of a contract, the Contracting Officer must select the most current wage
determination(s) from the same schedule(s) as the wage determination(s)
incorporated into the contract.
(1)
General Wage Determinations: A general wage determination
contains prevailing wage rates for the
types of construction designated in the determination, and is used in contracts
performed within a specified geographical area. General wage determinations
contain no expiration date and remain valid until modified, superseded, or
canceled by the DOL. Once incorporated in a contract, a general wage
determination normally remains effective for the life of the contract, unless
the Contracting Officer exercises an option to extend the
term of the contract. These determinations must be used whenever possible. They
are issued at the discretion of the DOL either upon receipt of an agency
request or on the DOL’s own initiative.
General wage determinations
are published on the WDOL website.
General wage determinations are effective on the publication date of the wage
determination or upon receipt of the wage determination by the contracting
agency, whichever occurs first. Archived DBA general wage determinations that
are no longer current may be accessed in the “Archived DB WD” database on WDOL for
information purposes only. Contracting Officers may not use an archived wage
determination in a contract action without obtaining prior approval of the DOL.
To obtain prior approval, the DOL, Wage and Hour Division should be contacted
using http://www.dol.gov/whd/.
(2) Project Wage Determinations: A project wage determination is issued at the specific request of a contracting agency. It is used only when no general wage determination applies, and is effective for one hundred eighty (180) calendar days from the date of the determination. However, if a determination expires before contract award, it may be possible to obtain an extension to the one hundred eighty (180)-day life of the determination. Once incorporated in a contract, a project wage determination remains effective for the life of the contract, unless the Contracting Officer exercises an option to extend the term of the contract, and the wage determination has been revised.
(3)
With
a general wage determination, or a project wage determination containing more
than one rate schedule, the Contracting Officer must either include only the
rate schedules that apply to the particular types of construction (building,
heavy, highway, etc.) or include the entire wage determination and clearly
indicate the parts of the work to which each rate schedule is applied.
Inclusion by reference is not permitted.
5.1104(d) Revised Davis-Bacon Act Wage Determinations
Each time the Contracting
Officer exercises an option to extend the
term of a contract for construction, or a contract that includes substantial
construction work that can be segregated from other work under the contract,
the Contracting Officer must modify the contract to incorporate the most
current wage determination.
5.1104(e) Modifications and Requests for Equitable
Adjustment
When the new or revised wage
determination is incorporated into the contract, the contractor is entitled to
submit a request for equitable price adjustment. If the contractor does not
formally request an equitable adjustment, the Contracting Officer is not
required to increase the contract price as a result of a revised wage
determination. However, the Contracting Officer must give any request
reasonable consideration.
5.1104(f)
FDIC Purchase Card Use
If
a purchase subject to the DBA is made under the FDIC Purchase
Card Program, the cardholder must obtain a wage determination and provide it to
the contractor; see Appendix C, FDIC Purchase Card (P-Card) Guide.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.11-1 Service Contract Act of 1965 - insert in service contracts over $2,500
entered into by FDIC in its corporate capacity where the principal
purpose of the contract is to furnish services through "service employees," as defined in subparagraph (k) of the clause.
7.5.11-2 Davis Bacon Act - insert clause in awards over $ 2,000 for
construction, alterations, or repair (including painting and decorating) of
public buildings or public works within the United States.
7.5.11-3 Contract Work Hours
and Safety Standards Act Overtime Compensation - insert clause in all construction contracts over
$100,000, and any other contract over $100,000 where laborers and mechanics are
used.
7.5.11-4 Payrolls and Basic
Records - insert clause in all
construction awards over $2,000.
7.5.11-5 Apprentices and
Trainees - insert clause in all
construction awards over $2,000.
7.5.11-6 Compliance with
Copeland Act Requirements - insert
clause in all construction awards over $2,000.
7.5.11-7 Subcontracts (Labor
Standards) - insert clause in
construction awards over $2,000.
7.5.11-8 Contract Termination – Debarment - insert clause in construction awards over $2,000.
7.5.11-9 Compliance with
Davis-Bacon and Related Act Regulations - insert clause in construction awards over $2,000.
7.5.11-10 Disputes Concerning Labor Standards - insert clause in construction awards over $2,000.
7.5.11-11 Certification of
Eligibility -
insert clause in construction awards over $2,000.
7.5.11-12 Withholding of Funds - insert clause in construction awards over $ 2,000.
7.5.11-13 Notice to the FDIC
of Labor Disputes - insert
clause in all construction awards.
7.5.11-14 Reserved
This chapter provides
procedures, guidance and information for Contracting Officers and other
officials in implementing the Buy American Act (BAA) and the Trade Agreements Act (TAA) of 1979, as well as the
related agreements in FDIC acquisitions. The information in this chapter is
intended to assist the Contracting Officer in determining the applicability of
the BAA and TAA to an acquisition. It also provides links to additional
relevant information that must be considered when (1) evaluating purchases
under these acts, and (2) determining if there are other requirements, purchase
restrictions or prohibitions that must be considered when acquiring foreign
goods or services.
Component – An article, material, or supply
incorporated directly into an end product.
Commercially
available off-the-shelf (COTS) item – Means any item of supply (including
construction material) that is a commercial item; sold in substantial
quantities in the commercial marketplace; and offered to the Government, under
a contract or subcontract at any tier, without modification, in the same form
in which it is sold in the commercial marketplace; and does not include bulk
cargo, such as agricultural products and petroleum.
Construction Material –
An article, material, or goods brought to the
construction site by a contractor or subcontractor for incorporation into the
building or work. The term also includes an item brought to the site
preassembled from articles, materials, or supplies. However, emergency life
safety systems, such as emergency lighting, fire alarm, and audio evacuation
systems, that are discrete systems incorporated into a public building or work
and that are produced as complete systems, are evaluated as a single and
distinct construction material, regardless of when or how the individual parts
or components of those systems are delivered to the construction site.
Materials purchased directly by the government are supplies, not
construction material.
End Product
– Those articles, materials, and supplies to be acquired for public use.
United States – The fifty (50) states of the United States, the District of Columbia,
and outlying areas.
United States-Made End Product – An article that is mined, produced, or
manufactured in the United States or that is substantially transformed in the
United States into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from which it
was transformed.
World Trade Organization Government Procurement
Agreement (WTO GPA) Country – Any of the following countries: Aruba, Austria,
Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy,
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak
Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, or the United Kingdom.
WTO GPA Country End Product – An article that:
(1)
Is wholly the
growth, product, or manufacture of a WTO GPA country; or
(2)
In the case of
an article that consists in whole or in part of materials from another country,
has been substantially transformed in a WTO GPA country into a new and
different article of commerce with a name, character, or use distinct from that
of the article or articles from which it was transformed. The term refers to a
product offered for purchase under a goods contract, but for purposes of
calculating the value of the end product includes services (except
transportation services) incidental to the article, provided that the value of
those incidental services does not exceed that of the
article itself.
Note: More definitions
relating to the BAA and TAA may be
found at 48 CFR Part 25 (http://www.access.gpo.gov/nara/cfr/waisidx_07/48cfr25_07.html).
5.1203(a) Limiting Factors to Application of the Buy
American Act
There are several factors
that limit the application of the BAA to FDIC awards. These are:
(1)
Statutory Exceptions:
§
The FDIC
Chairman finds this restriction would be “inconsistent with the public
interest,” This exception applies when an agency has an agreement with a
foreign government that provides a blanket exception to the BAA. This determination is made at the highest level of the
corporation, and currently there are no public interest exceptions for the
FDIC.
§
The
cost would be “unreasonable”, or
§
The
articles, materials, or supplies, either as end items or components, are not
mined, produced, or manufactured in the United States in sufficient and
reasonably available commercial quantities and of a satisfactory quality.
(2)
Suspension of the BAA for Information Technology Commercial Items: United States Government appropriations law, as
enacted since 2004, suspends application of the BAA to the acquisition of
information technology that is a commercial item. This exception is likely to continue into the foreseeable future.
(3)
Waiver of BAA Requirements: Application of the BAA to
an FDIC acquisition is waived when a Free Trade Agreement (FTA) applies to the
acquisition (see discussion of the TAA of
1979 below).
5.1203(b) Contracting Officer Responsibilities
The Contracting Officer must document the
official contract file when any of the following exceptions to the BAA apply, or other factors
addressed above limit the applicability of the BAA to FDIC requirements:
(1)
Inconsistent with the Public Interest: When determined that adherence to the BAA is inconsistent with the public interest, the
determination must be signed by the FDIC Chairman. See 5.1203(a)(1) above for
guidance.
(2)
Unreasonable Cost: The
Contracting Officer must evaluate the cost of offers using the procedures and
evaluation factors discussed in the BAA Cost Reasonableness Evaluation Template found
on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html;
(3)
Class or Individual Non-availability Determinations:
A
determination has been made that certain items are not mined, produced, or manufactured in the United States
in sufficient and reasonably available commercial quantities and of a
satisfactory quality to be considered United States made. This list is found at
48 CFR Part 25 (http://edocket.access.gpo.gov/cfr_2007/octqtr/48cfr25.104.htm).
The Division of Administration Director may
make an individual determination of non-availability on a case-by-case basis.
The WTO GPA and other FTAs (such as the
North American Free Trade Agreement (NAFTA) and the Central
American Free Trade Agreement (CAFTA)) apply to contracts
for goods, services and construction and they apply to FDIC when it contracts
in its corporate capacity only. The
following information is intended to assist the Contracting Officer and Program
Office in determining whether the TAA applies to a particular acquisition.
5.1204 (a) Trade Agreements Act Exemptions
Certain methods of acquisition are exempt
from application of the TAA. The exemptions are:
(1)
Acquisitions
set aside for small businesses;
(2)
Acquisitions
from Federal Prison Industries and acquisitions from nonprofit agencies
employing people who are blind or severely disabled;
(3)
Acquisitions
not using full and open competition where the limitation of competition would
preclude use of TAA procedures;
(4)
Sole
source acquisitions; or
(5)
Acquisitions
of arms, ammunition, or war materials; or national security or national defense purchases.
5.1204 (b) Trade Agreements Act Dollar Thresholds
There are different dollar thresholds
that trigger application of the WTO GPA and the other FTAs to the various types
of contracts, and certain types of goods, services and construction are exempt
from coverage (see Table 5).
Table 5. Trade
Agreements Act Dollar Thresholds
Trade Agreement |
(equal to or exceeding) |
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Source:
FAR Part 25.402
5.1204(c) Contracts for Goods
If the request for proposal (RFP) is for a goods contract, the Contracting Officer must determine
if:
(1)
The
contract is above a dollar threshold that triggers the TAA; and
(2)
The
good is of a type covered by the TAA using the listing found on the ASB website
at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
Acquisitions of goods not found on this listing are excluded from coverage
by the United States schedule of the WTO GPA or an FTA.
5.1204(d) Contracts for Services
If the RFP is for a service contract, the Contracting Officer must determine if:
(1)
The
contract is above a dollar threshold that triggers the TAA; and
(2)
The
particular service is covered by the TAA. Acquisitions of the services found in
Table 6 are excluded from coverage by the United States schedule of the WTO GPA
or an FTA as indicated in Table 6.
Table 6. Excluded
Services
Source:
FAR 25.401
For services
not found in the above table, consult the corresponding
descriptions of services by class in the Central Product Classification (CPC)
of the United Nations, Statistical Division to determine if the required services are
listed (see
http://unstats.un.org/unsd/cr/registry/regcst.asp?Cl=17). If the service is not in the CPC, this means that the service is
not one that is covered by the TAA.
5.1204(e) Construction Materials and Services
If the RFP is for construction
materials and services, the Contracting Officer must determine if:
(1)
The
contract is above a dollar threshold that triggers the TAA; and
(2)
The
particular services are covered by the TAA. Consult the following to assist in
making
this determination.
§
Construction
services category in the WTO GPA’s Universal List of Services found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.htm;
and
§
Corresponding descriptions of
services by class in the CPC of the United Nations, Statistical Division found
at http://unstats.un.org/unsd/cr/registry/regcst.asp?Cl=17.
If the services are not found in either
listing, this means that the service is not one that is covered by the TAA.
5.1204(f) Trade Agreements Act Requirements for
Solicitations
If the TAA applies to an acquisition, the
Contracting Officer, among other things, must:
(1)
Advise
offerors in the RFP that the TAA applies to the acquisition;
(2)
Post
the solicitation on FedBizOpps and allow offerors forty (40) days to submit
offers;
(3)
Specify
in the RFP that proposals must be submitted in the
English language and using United States currency for quotations; and
(4)
Notify
unsuccessful offerors from WTO GPA countries and other FTA countries, who won
the award and the amount of the winning
offer.
Contracting Officers must insert
the following provisions and clauses as required:
7.5.12-1 Buy American Act – Supplies - insert clause in all solicitations and awards [corporate capacity only] for supplies over
$3,000 (micropurchase threshold) but not exceeding $25,000; and in
solicitations and awards over $25,000 if neither of the clauses at 7.5.12-3 and
7.5.12-5 apply. Do not insert the clause if an exception to the BAA applies (e.g., non-availability,
public interest or information technology that is a commercial item).
7.5.12-2 Buy American Act Certificate - insert provision in solicitations containing the
clause at 7.5.12-1.
7.5.12-3 Buy American Act-Free Trade
Agreements-Israeli Trade Act -
insert in all solicitations and awards (corporate capacity only) for supplies, or
for services involving the furnishing of supplies, in which the acquisition
value is $25,000 or more but is less
than $203,000, except if the acquisition if for information technology that is
a commercial item.
7.5.12-4 Buy American Act – Free Trade Agreements- Israeli Trade Act
Certificate - insert provision in
all solicitations containing the clause at 7.5.12-3.
7.5.12-5 Trade Agreements - insert clause in all solicitations and awards
[corporate capacity only]
valued at $203,000 or more, if the acquisition is covered by the WTO GPA.
7.5.12-6 Trade Agreements
Certificate - insert clause in all
solicitations containing the clause at 7.5.12-5.
7.5.12-7 Restrictions on
Certain Foreign Purchases - insert
in awards by FDIC in its corporate capacity, unless an exception applies.
This chapter
provides procedures, guidance and information for Contracting Officers and
other stakeholders concerning the approval and processing of contract payments.
The following
procedures apply to payments under FDIC contracts.
5.1303(b) Performance-Based Payments
(1)
Establishing Performance Basis: The basis for performance-based
payments may be either specifically described events
(e.g., milestones) or some measurable criterion of performance.
(2)
Payment Schedule and Amounts: The Contracting Officer must establish
a complete, fully-defined schedule of events or performance criteria, and
payment amounts when negotiating contract terms. If a contract change
significantly affects the event or performance criterion, the Contracting
Officer must consider the need to adjust the payment schedule and amounts, and
modify the contract appropriately.
5.1304(a)
Submission of Invoices
Invoices must be prepared in strict accordance with Clause 7.5.13-13 Content of Invoice or the invoice is rejected. The preferred method for submission of invoices is electronic. The procedures for electronic invoice submission are contained in clause 7.5.13-14 Electronic Invoice Preparation and Submission (CORHQ Business Unit) and clause 7.5.13-15 Electronic Invoice Preparation and Submission (CORFD/RECVR/SUBD). However, for awards in support of Division of Insurance and Research (DIR) Center for Financial Research (CFR) Visiting Scholars, submission of invoices may be by fax or mail, as addressed in clause 7.5.13-8 Invoice Preparation and Submission (Center for Financial Research Visiting Scholars).
5.1304(b) Proper Invoice
Division of Finance/Disbursement Operations Unit (DOF/DOU) and the Oversight Manager must perform an initial review of an invoice to determine if it is proper under the terms of the Prompt Payment Act (PPA). If the invoice does not comply with the requirements of the PPA, it must be returned within seven (7) days of receipt with the reasons why it is not a proper invoice. Both of the reviews discussed below must be completed within seven (7) days of receipt of the invoice by DOF/DOU.
(1) DOF/DOU: Prior to entering an invoice into the New Financial Environment (NFE), DOF/DOU ensures the invoice includes the basic information necessary to process a payment in NFE, as required by the PPA (e.g., contractor name, invoice number, contract number, and total amount due) (see PGI 5.1305). If it is not a proper invoice per the PPA, DOF/DOU must return the invoice to the contractor or, in the case of invoices submitted in support of DIR CFR Visiting Scholars, DOF/DOU must return the invoice to the Oversight Manager who will return it to the contractor.
(2)
Oversight Manager: Once an invoice is entered into the
NFE, the Oversight Manager must perform an initial review to ensure that all
information or documentation required by the contract is included. An exception to this procedure applies to
invoices submitted in support of CFR Visiting Scholars, whereby DIR will
receive and review the invoice prior to it being submitted to DOF/DOU and
entered into NFE. In this situation,
DIR's initial review must also ensure
the invoice includes the basic information necessary to process a payment in
NFE, as required by the PPA (e.g., contractor name, invoice number, contract
number, and total amount due). In either of the above
situations, the Oversight Manager must return the invoice to the contractor if the invoice does not include the
documentation required by the contract.
5.1304(c)
Invoice Certification
The Oversight Manager is responsible for
certifying invoices in
NFE within the timeframes established by the PPA and DOF/AP, and:
(1)
Ensuring
that all charges contained on each invoice are within the contract terms and conditions;
(2)
Reviewing
documentation required by the contract to ensure that it adequately supports
the invoice;
(3)
Ensuring
that the goods or services were delivered in an acceptable manner and comply
with the statement of work and other technical requirements of the
contract;
(4)
Monitoring
total payments to the contractor to ensure that they do not exceed the contract
ceiling;
(5)
Ensuring
invoices comply with FDIC contractor travel
reimbursement guidelines, when travel is a reimbursable cost under the contract
(see DOF Travel page at http://fdic01/division/dof/travel/regulartravel/appendices/apndx_J.html);
(6)
Working
with contractors to resolve issues; and
(7)
Certifying
invoices within the timeframes established by the PPA and DOF/AP.
5.1304(e) Fixed Price Invoices
Under fixed
price contracts, the FDIC pays agreed upon fixed amounts, and therefore review
of supporting documentation, such as timesheets and, subcontractor invoices, is
not required.
5.1304(f)
Time and Material/Labor
Hour Invoices
FDIC pays contractor costs that are
allowable by the terms of the contract and are reasonable in nature and amount.
In this regard, the contractor is compensated for actual productive work hours,
exclusive of travel time, vacation, holiday, sick leave, or other absences. In
addition, the contractor is compensated for other contract costs, including
materials and travel that are delivered in accordance with the terms and
conditions of the contract, and have been determined to be fair, reasonable,
and necessary.
5.1304(g) Taxes
Guidance on
taxes may be found at APM
5.9 and PGI 5.9.
Payment must be based on
receipt of a proper invoice and satisfactory contract performance. Generally, invoices must
be paid within thirty (30) calendar days of receipt, unless the invoice is
determined to be unacceptable. The 30-day clock does not start if the goods or
services being billed have not yet been received and accepted by FDIC, there is
a disagreement with the contractor over compliance with a
contract requirement, or billing errors are identified on the invoice.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.13-1 Method of Payment –
Electronic Funds Transfer (EFT) - insert clause in all awards.
7.5.13-2 Method of Payment –
Third Party - insert clause in
awards where the Contracting Officer determines payments will be made by
purchase card.
7.5.13-3 Payments Under
Labor-Hour Awards - insert clause in
labor hour awards.
7.5.13-4 Payments Under Time
and Material Awards - insert clause in time and
material awards.
7.5.13-5 Payment Under Fixed
Price Awards - insert clause in
awards where the Contractor is paid on a fixed price basis for goods or services.
7.5.13-6 Compensation Ceiling
- Contract or Task Order - insert
clause in awards for contracts or task orders using labor hour, time and material, and/or fixed-unit-price pricing arrangements.
7.5.13-7 Compensation Ceiling
– BOA - insert clause in all BOA
awards.
7.5.13-8 Invoice Preparation and Submission (Center for Financial Research –Visiting Scholars Program) - insert clause in awards issued to support the DIR Center for Financial Research-Visiting Scholars Program.
7.5.13-9 Travel Expenses
(Non-Reimbursable) - insert clause
for awards in which travel expenses will NOT be reimbursed.
7.5.13-10 Travel Expenses
(Reimbursable) - insert clause in
awards in which travel expenses will be reimbursed.
7.5.13-11 Fees and Expenses
of Subcontractors - insert clause in
awards where subcontractor fees and expenses WILL BE reimbursed.
7.5.13-12 Schedule for
Invoicing - insert clause in all
awards.
7.5.13-13 Content of Invoice
- insert clause in all awards.
7.5.13-14 Electronic Invoice
Preparation and Submission (CORHQ Business Unit) - insert clause in awards issued under CORHQ business
unit.
7.5.13-15 Electronic Invoice
Preparation and Submission (CORFD/RECVR/SUBSD) - insert clause in awards assigned a CORFD, RECVR, OR
SUBSD business unit.
7.5.13-16 Central Contractor
Registration (CCR) - insert clause in all awards.
7.5.13-17 Right to Offset
Contract Payment Against Delinquent Obligations - insert clause in all awards.
7.5.13-18 Prompt Payment - insert clause in awards by FDIC in its corporate
capacity.
This chapter provides the
procedures, guidance, and information on protests, claims and disputes, and their respective appeals processes.
Information on solicitation protests and the related appeals is at 5.1403.
Information on claims and disputes and the related appeals is at 5.1404.
5.1403(b) Contracting Officer’s Decision
Upon
receiving a protest, the Contracting Officer promptly notifies the respective
ASB Assistant Director and provides a copy of the protest. Within seven (7)
business days after receiving the protest, the Contracting Officer:
(1)
Reviews
the protest;
(2)
Collects
all pertinent information;
(3)
Prepares
the decision; and
(4)
Submits
the decision to the Contracting Law Unit (CLU), the respective ASB Assistant Director
and the ASB Associate Director for concurrence.
After
concurrence is received and within ten (10) business days from the date the
protest was received, the Contracting Officer sends the decision to the
protestor.
5.1403(c) Protest Appeal Process
(1)
Filing Requirements: If the protestor disagrees with the Contracting
Officer’s decision, the protestor may file an appeal of the decision with the
ASB Associate Director.
The appeal must be based on the same facts and address
the same issues submitted in the protest; the protestor cannot present new
information or raise new issues in the appeal. The protestor submits copies of
all documents pertinent to the protest, including the Contracting Officer’s
decision, with the appeal.
(2)
Contracting Officer’s Report: Within ten (10) business days following
the ASB Associate Director’s receipt of the appeal, the Contracting Officer prepares a
written report on the protest and submits it to the ASB Associate Director. The
Contracting Officer’s report contains:
§
The
Contracting Officer's statement of the relevant facts and the findings,
determinations or conclusions;
§
Documents
relevant to the protest, such as:
o
The complete
solicitation package and all amendments;
o
The protestor’s
proposal and the proposal(s) selected for award; and
o
The technical
evaluation materials, price evaluation materials, the Selection Recommendation
Report and similar documents.
§
The status of the award, which addresses:
o
If the
Contracting Officer has made an award, whether the contractor has begun performance
or shipped or delivered the products or services; and
o
If the
Contracting Officer has not made an award, when the Contracting Officer
anticipates an award and the impact on FDIC operations if the Contracting
Officer delays award until the review process is complete.
§
A
statement that the solicitation complied in all respects with the policies and
procedures in the APM and PGI, or an explanation of any deviations from policies and procedures and the authority
for the deviations;
§
A CLU attorney’s analysis of the legal merit of the
protest; and
§
Any
other documents, statements, or materials that contain facts or findings that
have a direct bearing on the award decision.
(3)
Associate Director’s Decision: The ASB Associate Director issues a
decision on the protest within ten (10) business days following receipt of the
Contracting Officer’s report. The decision of the ASB Associate Director is
final.
5.1403(d) Protest and Appeals
Procedures for Office of Inspector General Contracts
The protest
and appeals procedures for Office of Inspector General
(OIG) contracts are the same as described above with the following exceptions:
(1)
The
interested party files its appeal with the Counsel to the Inspector General;
(2)
The
Contracting Officer submits a written report on the protest to the Assistant
Inspector General for Management and Congressional Relations;
(3)
Counsel
to the Inspector General performs the legal review of the protest and prepares
the legal opinion of its merit; and
(4)
The
Assistant Inspector General for Management and Congressional Relations issues
the decision on the protest within ten (10) business days following receipt of
the Contracting Officer’s report. The decision of the Assistant Inspector
General for Management and Congressional Relations is final.
5.1404(b) Contracting Officer’s Decision
Upon receiving a claim, the Contracting Officer promptly
notifies the respective ASB Assistant Director and provides a copy of the
claim. Within seven (7) business days after receiving the claim, the
Contracting Officer:
(1)
Reviews
the claim;
(2)
Collects
all pertinent information;
(3)
Communicates
with the contractor to resolve the claim;
(4)
Prepares
the final decision; and
(5)
Submits
the final decision to CLU, the respective ASB Assistant Director
and the ASB Associate Director for concurrence.
After concurrence is received and within
sixty (60) days from the date the claim was received for corporate contracts and
within one hundred eighty (180) days for receivership contracts, the
Contracting Officer sends the final decision to
the contractor.
5.1404(c) Claims Appeal Process
(1)
Filing Requirements: If the contractor disagrees with the Contracting
Officer’s final decision, the contractor may file an appeal of
the decision with the ASB Associate Director.
The appeal must be based on the same facts and address
the same issues submitted in the original claim; the contractor cannot present new information
or raise new issues in the appeal. The contractor submits copies of all
documents pertinent to the claim, including the Contracting Officer’s final
decision, with the appeal.
(2)
Contracting Officer’s Report:
Within fifteen (15) days following the ASB Associate Director receipt of
the appeal, the Contracting Officer prepares a written report to the
ASB Associate Director on the claim.
The report must have the concurrence of the respective ASB Assistant
Director, and CLU. The Contracting Officer’s report contains:
§
The
Contracting Officer's statement of the relevant facts and the findings,
determinations or conclusions;
§
Documents
relevant to the claim, such as the awarded contract and all modifications, and the contractor’s claim
§
A
CLU attorney’s analysis of the legal merit of the
claim; and
§
Any
other documents, statements, or materials that contain facts or findings that have a direct bearing on the claim.
(3)
ASB Associate Director Decision: The ASB Associate Director issues a
decision on the claim within fifteen (15) days following receipt of
the Contracting Officer’s report, unless the circumstances require additional
time. The decision of the ASB Associate Director is final.
If the final decision requires an equitable adjustment to the
contract, the Contracting Officer coordinates with CLU and the contractor to agree to a modification
or a settlement agreement.
5.1404(d) Claims and Disputes Procedures for Office of Inspector General
Contracts
The claims and disputes procedures for OIG contracts are the same as
described above with the following exceptions:
(1)
The
contractor submits its appeal of
the Contracting Officer’s decision to the Inspector General;
(2)
The
Contracting Officer sends the file and the decision to the Inspector General;
(3)
The
Inspector General or designee notifies the contractor of any extension of time
required to render the decision;
(4)
The
Inspector General issues a decision on the claim within fifteen (15) days following receipt of
the Contracting Officer’s report, unless the circumstances require additional
time. The decision of the Inspector General is final; and
(5)
Counsel
to the Inspector General prepares all legal analyses and settlement agreements.
Contracting Officers must
insert the following provisions and clauses as required:
7.5.14-1 Disputes -
insert clause in all awards.
7.5.14-2 Notice and Certification of Claims - insert clause in all awards.
This chapter
provides procedures, guidance and information on the legal review requirements
for FDIC acquisition documents and actions.
5.1503(a) Solicitations $1,000,000 or
Greater
Legal
review of all solicitations with a value of $1,000,000 or greater is sent
through the FDIC Automated Procurement System (APS) to the Contracting Law Unit (CLU) via automatic workflow. Prior to
submitting the solicitation for review, the Contracting Officer must attach in
APS a copy of the
Acquisition Plan or, at a minimum, an outline of the
particulars of the solicitation. The Contracting Officer may send additional
information to the CLU by
email. A member of the CLU reviews the solicitation and provides any
feedback through the APS. CLU comments are maintained with the solicitation
in APS and in the official
contract file.
5.1503(b) Other Legal Reviews
To request legal review of other contract
actions, as identified in APM 5.1503, the Contracting Officer may send either a
memorandum or an e-mail to CLU which describes the matter at issue and
attaches all relevant documentation.
In all cases, the Contracting Officer
must provide the CLU attorney the solicitation or contract number
and any other information needed to gain access to the solicitation/contract
file on CEFile.
This chapter provides
procedures, guidance, and information for FDIC Contracting Officers and others
regarding use of the FDIC Automated Procurement System (APS).
6.103(a) Background
The APS is a
commercial off-the-shelf software product that has been configured with minimal
customization to automate the FDIC procurement process. APS is an
integrated application that facilitates the creation of procurement-related
documentation and provides the capability to monitor procurement activity
through the procurement states of contract planning, solicitation, award,
administration and closeout. The system has been integrated with the FDIC New
Financial Environment to ensure proper internal
controls and data sharing. APS ensures a
standardized contract process and consistent contractual documents through
various workflows, as well as a centralized clause library. Finally, APS, as the central repository for all contract data,
provides enhanced management reporting functionality.
6.103(b) Automated Procurement System Procedures,
Guidance and Information
The APS User Guide provides procedures, guidance, and information on the use of APS. Additional information is available on the APS website at https://aps.fdic.gov/suite/.
This chapter provides procedures,
guidance and information on the responsibilities of Contracting Officers and
support staff, as well as Program Office personnel, in contract file management.
6.203(a) Accessing CEFile
(1)
Requesting CEFile Access: Guidance on requesting access to CEFile
is provided in CEFile Job Aid No.
1, How to Request Access to
CEFile (AASA Form Instructions), found
at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
(2)
Personnel Requiring CEFile Access: CEFile access
is provided to FDIC employees who require access to (1) maintain official
contract files, (2) perform reviews of official
contract files, or (3) perform other required procurement related functions,
such as gather documents in response to Freedom
of Information Act requests, etc. Table 7 below identifies the
personnel within various divisions/offices that have a need to access CEFile to
perform their responsibilities:
Table 7. Employees
Requiring CEFile Access
Division/Office |
Employees Requiring
CEFile Access |
Acquisition Services Branch (ASB) |
- Contracting Officers - Policy and Operations Section Analysts - Special Assistant to the ASB Associate Director - Administrative support staff |
Program Offices |
- Oversight Managers - Technical Monitors - Other program office personnel |
Legal/Contract Law Unit |
Counsel |
Office of Minority and Women
Inclusion |
Minority and Women-Owned Business Specialists |
Division of Information Technology Information (DIT), Security and Privacy Staff |
Privacy Specialists/Program Analysts |
Office of Inspector General (OIG) |
Audit Specialists |
Division of
Administration (DOA)/Management Services Branch and Office of Enterprise Risk
Management |
Management Analysts |
In limited circumstances, CEFile access may be granted to contractor employees,
if access is required to perform their responsibilities under a contract
(3)
Granting Access
to Oversight Managers/Technical Monitors:
Contracting Officers must grant access to the designated Oversight
Manager, and Technical Monitors if any, prior to award and, on existing awards,
when the Program Office requests that the Oversight Manager or Technical
Monitor be changed. Access must be granted before issuing appointment letters. Access is provided on an
individual contract by contract basis, and permits the Oversight Manager and
Technical Monitor to file documents in the Oversight Manager file and to read documents in other parts of the
official contract file.
Guidance on
updating access lists during the process of creating a new contract file is
provided in CEFile Job Aid B found at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html. Guidance on updating access lists on existing
contracts is provided in CEFile Job Aid A at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
6.203(b) Locating Contract Files in CEFile
Guidance on locating contract files in CEFile is provided in
CEFile Job
Aid No. 2, Locate Your
Contract File, found at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
CEFile users can search for contract files using
various data fields such as the contract number or contractor name. For best results, CEFile users should search for
contracts using the contract number. If
a contract cannot be located in CEFile, or if the contract number is not known,
the CEFile user should contact the assigned Contracting Officer for assistance
in locating the contract file.
6.203(c) Creating Official Contract Files in
CEFile
Guidance on establishing contract files
in CEFile is
provided in CEFile Job Aid B,
Create a Contract File in CEFile Using
the RFP Number, at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
(1)
Creating Contract Files: Contracting Officers must create the
official contract file folder in CEFile after being assigned an approved requisition
for processing. An official contract file must be created for each of the following:
§
Purchase
orders;
§
Contracts;
§
Multiple-award
vehicles (e.g., basic ordering agreements (BOAs), blanket purchase agreements (BPAs), and receivership basic ordering
agreements (RBOAs);
§
Task
orders awarded under single or multiple-award vehicles; and
§
Delivery
orders awarded against Federal Supply Schedule (FSS) contracts. Use the same language as in
Module 4 (delivery order supplies, or delivery order for FSS contracts)
(2)
Multiple Awards: Where a solicitation results in
multiple awards (e.g., a BOA, BPA, or RBOA), a file must be created for
the solicitation and also for each contract (i.e., BOA, BPA, or RBOA). In this
case, the solicitation file serves as the ‘master file’ for all pre-award
documentation and the other files are ‘master contracts’ for each individual
BOA, BPA or RBOA.
6.203(d) File Folder Organization
Contracting Officers and Oversight Managers must
organize and file contract documents in CEFile in accordance
with the guidance set forth in CEFile Job
Aid No. 5, CEFile
Documentation Checklist/Guidance, found at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
(1)
Folder Parts: Contract files are created with the
following standard six (6)-part folders:
§
Part
I: Solicitation;
§
Part
II: Evaluation;
§
Part
III: Selection;
§
Part
IV: Award and Modifications;
§
Part
V: Administration (includes the
Oversight Manager file); and
§
Part
VI: Closeout.
(2)
Oversight Manager File: The Oversight Manager file is
located under Part V, Administration. For contract files established after June
18, 2007, the following Oversight Manager file standard sub-folders are created
by the system:
§
Invoices-Oversight Manager Copies; (Note: As of
October 29, 2009, Oversight Managers are no longer required to upload invoices
into CEFile because NFE will be the system of record for Contractor
invoices. However, the use of this
sub-folder will continue to be appropriate for filing documentation and
correspondence involving problems with invoice payments.);
§
Deliverables;
§
Deliverable
Inspection and Acceptance Documentation;
§
Tracking
of FDIC-Furnished Equipment, Security Identification Badges, and Network
Access;
§
Performance
Documentation;
§
Site
Visits;
§
Correspondence
Emails;
§
Information
Technology Security Plan (if applicable);
§
Claims
Material-Oversight Manager Documentation; and
§
Pre-Exit
Clearance Record for Contractors.
For contract files established before
June 18, 2007, the Oversight Manager must create sub-folders in the Oversight
Manager file. Guidance on creating sub-folders in
CEFile is
provided at CEFile Job Aid No.
4, Create Sub-Folders in the OM File, found at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
6.203(e) Filing Documents
Guidance on importing (or filing) documents in
official contract files is provided in CEFile Job Aid No. 3, How to Import A Document into CEFile, at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
(1)
Document Filing Requirements: The official contract file must contain
contract documentation from the point that an approved requisition is received
by ASB and assigned to a Contracting Officer for processing, through the
closeout of
the contract. The Contracting Officer must ensure that all pre-award documents
are filed in the official contract file before contract award. Contracting Officers
must also ensure all file documentation is contained in the official contract
file before closing out the contract.
Throughout the contract, the Oversight
Manager and Technical Monitors must maintain in the official contract file all pertinent documents related to contract
oversight, including, but not limited to, problems with payment of invoices, performance documentation, deliverables, etc.
Documents containing personally identifiable
information (PII), as defined in APM
5.102, must not be uploaded into CEFile.
(2)
Reports: Contracting Officers may generate reports
showing the contents of official contract files. Guidance on generating reports
is provided in CEFile Job Aid D, Generate PO/Contract Folder Contents Report, at http://fdic01/division/doa/buying/goods/CEFileJob/CEFilesJob.html.
6.203(f) Archiving Files
After contract
closeout, the Contracting Officer must archive
the official contract file by
moving it to the Contract Closeout procurement folder in CEFile. Closed out contract files are
permanently removed from CEFile, in accordance with FDIC Circular
1210.1, FDIC Records Retention
and Disposition Schedule, found at http://fdic01/division/doa/adminservices/records/directives/1000/index.html.
6.203(g) File Reviews and Audits
Contracting
Officers and Oversight Managers must periodically review the information in
their respective files and ensure that all documentation is contained in the
file. If documentation is missing, the Contracting Officer and/or Oversight
Manager must take immediate steps to file the documents in the official
contract file.
On a quarterly basis, the FDIC ASB, Policy and Operations Section, must perform post-award reviews of official contract files to ensure compliance with the contract management policy. FDIC official contract files are also subject to review by the Office of the Inspector General, Government Accountability Office, and various divisions/offices within the corporation, including the DOA Management Support Branch, Office of Enterprise Risk Management, and the DIT Information Security and Privacy Staff.
This chapter provides the
procedures, guidance and information regarding contract reporting by the ASB.
6.303(a) Place of Manufacture Report
The FDIC must annually
submit a report to congress on the amount of the acquisitions made by the
corporation during the government’s fiscal year, that are for goods
manufactured outside the United States. The
Contracting Officer and purchase card (P-Card) holders are responsible for
collecting the information that ASB uses to prepare the report.
The report is partially
based on information collected from the offerors using the solicitation provision
entitled, Place of Manufacture. For
purposes of this report, the criteria established in the law only pertain to
whether the place of manufacture of an end product is in the United States or
outside the United States. This provision is to be inserted in solicitations
that are predominantly for the acquisition of manufactured end products. “Predominantly” means the estimated value of
the manufactured end products exceed the estimated value of other items to be acquired
in the solicitation.
The Contracting Officer must
include in this report an itemized list of all waivers granted under the Buy
American Act with respect
to such items and a summary of the total procurement funds spent on goods
manufactured in the United States. Also,
the Contracting Officer selects the predominant reason for acquiring foreign
manufactured end products, if more than one reason applies. The Contracting Officer must complete the Place of Manufacture Report Worksheet found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html,
for each applicable contract and submit them to the ASB Assistant Director, Policy
and Operations Section, no later than January 31 of each year.
P-Card holders who purchase
goods valued over the micro-purchase threshold as defined at 41 USC 428(f) (currently
$3,000), must provide a summary report to the ASB Assistant Director, Policy
and Operations Section, no later than January 31st of each year as
described in the P-Card Place of
Manufacture Reporting Template, found on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
ASB, Policy and Operations
Section, must consolidate all reports and forward a summary report not later
than March 15 to the Office of Legislative Affairs for coordination and
distribution to congress by March 31.
6.303(b) Contract Assessment Report
The Contracting Officer and
Program Office are responsible for providing ASB, Policy and Operations
Section, with information on any procurement action anticipated or awarded over
$5,000,000 to be incorporated in the Contract Assessment Report.
6.303(c) Internal Revenue Service Report
The Contracting Officer or
P-Card holder is responsible for collecting the data that ASB uses to prepare
the Internal Revenue Service Report.
(1)
The
Contracting Officer must report quarterly to the ASB, Policy and Operations
Section, any awards made with appropriated funds. The report contains awards of
$25,000 or more. These contracts are usually contracts awarded for the Office
of Inspector General.
(2)
The
P-Card holder is responsible for obtaining the following contractor information
at the time of sale in order to complete the convenience check log:
§
Check
number;
§
Transaction
date;
§
Transaction
amount;
§
Contractor’s
legal name;
§
location
of where the transaction took place;
§
Contractor
mailing address;
§
Contractor
taxpayer identification number; and
§
Description
of purchase.
The cardholder must submit a copy of the convenience
check log at the end
of each billing cycle, to the Agency Program Coordinator who prepares a
consolidated report for the Division of Finance, Managers, Receivables, Receipts and Vendor Maintenance Unit.
6.303(d) Minority and Women-Owned Business Activity
Report
Upon award of any contract
or modification involving Minority and Women-Owned Businesses or small
disadvantaged businesses, at either the prime or subcontract level, the Contracting Officer must
provide information to ASB, Policy and Operations Section, on the contractor,
subcontractor(s), contract amounts, subcontract amounts, etc. (template at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html).
ASB, Policy and Operations Section, uses the information to create the business
activity report, which is submitted to Office of Minority and Women Inclusion semi-annually.
Contracting Officers must
insert the following provisions and clauses as required:
7.6.3-1 Place of Manufacture - insert
provision in solicitations (corporate capacity only) that are predominantly for the acquisition of manufactured end products, (i.e., the estimated value of the manufactured end products exceeds the
estimated value of other items to be acquired as a result of the solicitation).
This chapter provides the procedures, guidance and
information on the responsibilities of FDIC Contracting Officers and
Program Offices for proper and effective contract administration and oversight
management.
Contract or Task Order Ceiling – The dollar amount that may not be exceeded for a specific
contract or task order.
Contract Oversight – The process of ensuring that the contractor delivers the goods, or
performs the services, as required under the contract to fulfill the
requirements and mission of the Program Office.
Contracting Officers and the
Program Offices they support must comply with the procedures regarding contract
administration and oversight
management discussed in this chapter in the award of contracts for FDIC.
The Oversight Manager, together with the Contracting
Officer, must determine the level of oversight that is necessary to ensure the
contractor makes satisfactory progress toward the successful completion of the
contract. To assist in performing oversight activities for complex contracts
for services, the Oversight Manager must work with the Contracting Officer to
develop the Contract Management Plan (CMP). At a minimum, the CMP must be developed before the
post-award conference, if one is to be held. A template for the CMP is
included on the ASB website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. In situations where a CMP is prepared at the
BOA/RBOA/PBA level instead of the task order level, the CMP must identify such
and state that the same administrative approach will apply to all task orders
because the statement of work requirements, risks, terms and conditions, etc.,
are all the same.
The Contracting Officer is
responsible for ensuring that a signed copy of the CMP is included in the
official contract file. In situations where a CMP is prepared at the
BOA/RBOA/PBA level instead of the task order level, a copy of the CMP must be
included in the official contract file for each task order to which it
pertains. The plan must be updated, as appropriate, during performance to
reflect any major changes to the contract or oversight plan. Revised copies
must be redistributed based on original distribution. Oversight Managers may
supplement the elements of the CMP, as needed.
The Program Office is
responsible for identifying and nominating qualified individuals to represent
their office in the capacity of Oversight Manager. In complex areas of
performance, the Oversight Manager may find it appropriate to nominate one or
more Technical Monitors. The duties of the Technical Monitor are a subset of
the duties of the Oversight Manager, but the responsibility for oversight
management remains with
the Oversight Manager.
6.405(a) Nomination of Oversight Manager
and Technical Monitor
The Program
Office must:
(1)
Select
qualified nominees for the roles of Oversight Manager and Technical Monitor(s);
(2)
Ensure
that the nominee has accomplished the necessary Oversight Management training; and
(3)
Provide
the Contracting Officer with the names of the nominee(s) in writing. Nomination templates are found on the ASB
website at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
6.405(b) Appointment of Oversight Manager
and Technical Monitor
The Contracting Officer
appoints the Oversight Manager with the Oversight
Manager Appointment Memorandum, and the Technical Monitor with a Technical Monitor Appointment Memorandum, found on the ASB website at
http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
Contracting
Officers must:
(1)
Verify
that, within the last three years, the Oversight Manager and Technical Monitor(s)
have completed the two (2)-day in-class Oversight Management Training course. If
it is necessary to appoint the Oversight Manager and/or Technical Monitor
before they have the ability to take the two (2)-day in-class course, they may
be appointed after successfully completing the FDIC web-based Oversight
Management Training course, and have scheduled themselves to attend the next
available two (2)-day in-class course;
(2)
Verify
that the individual being appointed as the Oversight Manager is listed as an
Oversight Manager in FDIC Automated Procurement System (APS);
(3)
Grant
the Oversight Manager and Technical Monitor(s) access to the Acquisition
Oversight Manager’s user access list in CEFile;
(4)
Forward
a copy of the signed Oversight Manager and Technical Monitor appointment
memorandums to the contractor upon
award to ensure that the contractor has been advised of their roles and
responsibilities; and
(5)
Forward
a copy of the signed Oversight Manager and Technical Monitor appointment
memorandums to ASB, Policy and
Operations Section, for purposes of updating the Contract Administration Database.
6.405(c) Appointment of
Replacement Oversight Manager
In the event
the Oversight Manager is absent from the office for an extended period or is no
longer serving in the oversight management capacity, the Program Office must promptly
nominate a replacement Oversight Manager.
In the event
of a short-term absence (e.g., two week vacation), the Program Office must assign
the Oversight Manager's administrative duties (e.g., invoice approval) to another qualified Oversight
Manager from the Program Office for the duration of the absence. The Program
Office must inform the Contracting Officer of this assignment in writing; a new
Oversight Manager Appointment Memorandum is
not necessary. The Contracting Officer must verify that the substitute
Oversight Manager has completed the required Oversight Management training within the
last three years and, if the substitute Oversight Manager must approve invoices during the short-term absence period, assign
the substitute Oversight Manager as the Oversight Manager in APS.
6.405(d) Appointment of New Oversight
Manager and Technical Monitor
If the Program
Office requests that an existing Oversight Manager or Technical Monitor be
replaced with a new Oversight Manager or Technical Monitor during contract
administration, the above mentioned general conditions apply. In addition, the
Contracting Officer must:
(1)
Terminate
the existing Oversight Manager
Appointment Memorandum in writing;
(2)
Verify
completion of training (within the last three years) prior to appointment of
the Oversight Manager and Technical Monitors and issue a new appointment
memorandum;
(3)
Provide
a copy of the termination letter and the new appointment memorandum to the
contractor to inform them of the change;
(4)
Provide
a copy of the termination letter and the new appointment memorandum to ASB
Policy for purpose of updating the Contract Administration Database;
(5)
Modify
the contract to change the Oversight Manager; and
(6)
Update
the CEFile access list to remove the existing Oversight
Manager’s name and replace it with the name of the new Oversight Manager (Note:
Only the owner of the file in CEFile can update the access list).
6.405(e) Oversight
Manager and Technical Monitor Training Requirements
Oversight Managers and Technical Monitors must
complete the two (2)-day in-class Oversight Management Training course
prior to their nomination or appointment on a contract. If it is necessary to appoint the Oversight
Manager and/or Technical Monitor before they have the ability to take the two
(2)-day in-class course, the Contracting Officer may do so after they have
successfully completed the FDIC web-based Oversight Management Training course,
and have scheduled themselves to attend the next available two (2)-day in-class
course. After initial completion of the
two (2)-day in-class Oversight Management Training course, the Oversight
Managers and Technical Monitors must continue to take the course again, every
three years. Oversight Managers and
Technical Monitors are responsible for scheduling with Corporate University and
completing the course by its three year anniversary date. It is therefore recommended that Oversight Managers
and Technical Monitors contact Corporate University at least six months prior
to the three year anniversary date, in order to determine the dates the course
is being offered and enroll in a course with available seating.
When a post-award conference is determined to be
necessary, the Contracting Officer must coordinate with the Oversight Manager
and the contractor to schedule the conference, establish the agenda, and
conduct and document the conference.
6.406(a) Establishing the Post-Award
Conference
The Contracting Officer is responsible
for convening and chairing the post-award conference, with the Oversight Manager generally leading the technical
discussions. The Contracting Officer and the
Oversight Manager must:
(1)
Establish
the time and place of the conference (must generally be held not later than one
(1) week after award);
(2)
Prepare
the agenda;
(3)
Invite
appropriate personnel (Technical Monitors, the Contracting Law Unit (CLU), and other relevant personnel);
(4)
Invite
the contractor; and
(5)
Schedule
and conduct a preliminary conference with FDIC personnel to properly plan for
the conference.
6.406(b) Post-award Conference Agenda
The post-award conference must cover the
following areas, as applicable:
(1)
Roles
of FDIC personnel in administration of the contract;
(2)
Scope
of the contract;
(3)
Rights
and obligations of both parties;
(4)
Contract
terms and conditions;
(5)
Contract
administration procedures;
(6)
Technical
requirements of the contract;
(7)
Potential
contract problem areas and their potential resolution;
(8)
Changes
in personnel;
(9)
Invoicing
requirements and FDIC invoice review, approval, and payment process;
(10)
FDIC
Contractor Performance Evaluation System;
(11)
Contractor
compliance with approved subcontracting plans or joint venture agreements, if
applicable;
(12)
Verification
of insurance coverage, if required;
(13)
Contractor
eligibility and conflict of interest certifications;
(14)
Contractor
confidentiality agreements and confidential information;
(15)
Contractor
security and the process for obtaining contractor badges and access to FDIC
sites and systems, as applicable;
(16)
Information
technology (IT) security, if applicable;
and
§
The
security plan;
§
Screening
requirements; and
§
Contractor
and subcontractor IT training.
(17)
Site
visits, if applicable.
6.406(c) Documentation of Post-Award
Conference
After the
post-award conference, the Contracting Officer must prepare a
memorandum to file which identifies the participants and covers all of the
items discussed, including:
(1)
Issues
requiring resolution; and
(2)
Controversial
matters and responsibilities for further action, the individuals assigned, and
the due dates for those actions.
Copies of the
memorandum to file become part of the official contract and oversight files.
The Contracting Officer must distribute copies of the memorandum to file to all
participants.
The Oversight
Manager ensures that the contractor delivers the required goods or performs the
work according to the contract and the delivery schedule. Duties also include
monitoring the expenditure of funds in relation to the contract or task order
ceiling and approving invoices.
To prepare for
oversight management, the Oversight Manager must review the
entire contract, including the contractor's proposal, and understand the terms and
conditions of the contract. By doing this, the Oversight Manager has the
information needed to oversee contractor performance in a competent manner,
including the roles and contractual obligations of all parties and other
important terms of the contract, such as the compliance with performance
milestones, inspection and acceptance of
deliverables, and review and processing of contractor invoices.
The Oversight
Manager must promptly notify the Contracting Officer in writing of any
noncompliance, deviation in
performance, or failure to make progress.
The Oversight Manager must also provide timely notification to the
Contracting Officer of any need for modification of the contract, and refer all
questions regarding contract provisions to the Contracting Officer.
The Contracting
Officer and Oversight Manager are jointly responsible for contract monitoring
and oversight. The following paragraphs
provide specific information for both the Contracting Officer and Oversight
Manager in carrying out contract monitoring responsibilities.
6.408(a) Communication
As may be necessary, the Oversight Manager may
provide direction to the contractor in performance matters that are within the
scope of the contract as written. The
Oversight Manager must be careful to avoid giving any direction that would
result in a material change to the contract such as changes to pricing,
period of performance, schedule, or other terms and conditions. The Oversight
Manager must refer any questions of contract interpretation to the Contracting
Officer.
Examples of appropriate communication include:
(1)
Coordinating
with the contractor on all technical matters of performance related to the
contract, including giving technical guidance with respect to the statement of
work, inspection, testing, and acceptance procedures;
(2)
Discussing
invoicing matters; and
(3)
Providing
the contractor with information, FDIC directives, relevant FDIC policies, and
other items necessary to successfully carry out its duties as required by the
contract.
6.408(b) Maintaining Independent Status
of Contractors
The Oversight
Manager and Contracting Officer are obligated to avoid establishing an
employer-employee relationship with contractor personnel that may result from
improper contract oversight or administration, and to preserve the independent
status of the contractor. Key precautions include:
(1)
FDIC
employees must not directly or indirectly supervise contractor employees;
(2)
Contractor
personnel work stations must be separated from FDIC personnel to the maximum
extent practical;
(3)
The
Oversight Manager must ensure that contractor personnel wear badges on site,
display appropriate office signs, or take some other measure to clearly
identify themselves as contractor employees;
(4)
Contractor
employees must not be invited to attend regular staff meetings; and
(5)
Contractor
employees, in general, must not participate in services, or employee
recreational activities (including office picnics and holiday parties) provided
for the benefit of FDIC employees.
Oversight
Managers must refer questions to the Contracting Officer who then seeks the
advice of CLU, as necessary.
6.408(c) Contractor Personnel
(1)
Qualifications: The Oversight Manager must monitor the
contractor’s assignment of personnel in relation to qualifications, as required
by the contract. The Oversight Manager must ensure that:
§
Contractor
personnel possess the requisite experience and qualifications as required by
the contract. This may be done through evaluation of an individual’s resume
and/or observation of an individual’s performance; and
§
Contractor
personnel are assigned to and working under the appropriate contract labor
categories, if contractor is being reimbursed on a time and materials or
labor hour basis. This is done by consistently monitoring
labor usage and review of invoices.
(2)
Facilities/Systems Access and Exit
Procedures: As addressed
in PGI 5.2, the Oversight Manager works with the
Security and Emergency Preparedness
Section and the contractor to coordinate personnel badging requirements,
and to terminate contractor personnel access to facilities and systems when
required.
The Oversight Manager coordinates pre-exit clearance procedures
for contractor personnel who no longer require system access or access to FDIC
facilities, using FDIC Form 3700/25, Pre-Exit Clearance Record for
Contractors found on the FDIC
Forms page, DOA: Forms Series - 3000 Services
& Facilities, at http://fdic01/division/doa/adminservices/records/forms/3000/index.html.
The Oversight Manager may
make site visits to perform inspections at contractor’s facility to:
(1)
Verify
the contractor's performance against scheduled and reported performance;
(2)
Verify
that the proper employees working on the contract are assigned to appropriate
tasks;
(3)
Determine
the adequacy of contractor facilities and working conditions if an issue arises
in contractor performance;
(4)
Observe
firsthand how the contractor operates;
(5)
Ensure
compliance with FDIC policies, procedures, and directives; and
(6)
Follow
up on any previously noted problems.
If the Oversight Manager determines site visits will
be included as part of the contract monitoring process, the Contracting Officer
must address site visits in the CMP and include site visits as a topic for discussion
at the post-award conference.
Site visits should be planned and scheduled so as not to
interfere or delay the contractor’s performance. Additionally, the Oversight Manager must not
take any action or make any representation during the site visit that would
cause a change to the contract.
The Oversight Manager must
conduct site visits where the contractor has connectivity access to the FDIC
network from its facility.
6.408(e)
Inspection and Acceptance
The Oversight Manager is
responsible for inspection and acceptance under the
contract.
(1)
Inspection: The Oversight Manager is responsible for inspecting
the contractor’s work to ensure that it is in full compliance with contract
requirements and the Quality Assurance Surveillance Plan under a
performance-based contract, if applicable. The Oversight Manager must perform
inspection within the
time period prescribed in the contract.
(2)
Acceptance: The Oversight Manager is responsible for acceptance of any goods
or services delivered to FDIC. In executing this duty, the Oversight Manager
must verify that the work performed is in accordance with the contract
requirements. The Oversight Manager must document acceptance in the official
contract file. This documentation is important because it provides
evidence of contractor performance. It
also supports the payment or rejection of invoices.
(3)
Nonconforming Goods or Services: If the goods or services are nonconforming, the
Oversight Manager can reject them and direct the contractor to correct the
deficiencies within a reasonable time, at the contractor's expense. However,
before doing so, the Oversight Manager must promptly consult with the
Contracting Officer. Based upon the discussions with the
Contracting Officer, the Oversight Manager must issue a written notification to
the contractor describing the deficiencies and corrective action required. The
Oversight Manager must provide a copy of the written notification to the
Contracting Officer. Depending on the severity of the deficiency, it may be
appropriate for the Contracting Officer to issue the written notification. In
certain circumstances, the Contracting Officer may also need to issue a
modification to the contract. The Oversight Manager
must not approve payment for nonconforming goods or services until the
contractor corrects the deficiency.
The Oversight Manager must notify the Contracting
Officer if the contractor does not correct the deficiencies or if correction
cannot be accomplished within the terms and costs of the contract, and must
reject the goods or services. The Contracting Officer confers with the
Oversight Manager, and CLU as necessary, to determine if
further action needs to be taken.
The Oversight Manager may only accept
nonconforming goods or services when it is in the best interest of FDIC, the
contractor has provided consideration, and the Contracting Officer and CLU have approved this action.
6.408(f)
Contractor Performance Evaluation
Contracting Officer and
Oversight Managers are responsible for evaluating contractor performance. Information on a contractor's performance is
not only critical to subsequent source selections, it is also a primary means
of reporting contractor performance data to management. Contractor performance evaluations must be
completed annually, except as noted below, for each award, regardless of dollar
value. (Awards, as used in this section of the PGI, refer to contracts,
task orders and other contracting actions where funds are expended. Therefore, evaluations are not required at
the BOAs, RBOAs and BPAs level, as funds are not expended at this level.) The due date for evaluations is based upon
the effective date of the award.
(1)
For awards with
a total period of performance (including options) of less than one year, a
final evaluation is required to be completed within sixty (60) days following
the expiration date (i.e., within 60 days following the last day of
performance).
(2)
For awards with
a period of performance (including options) of one year or greater, annual
evaluations are required in addition to a final evaluation. Annual evaluations must be completed within
60 days of the anniversary of the effective date of the award. An annual evaluation is not required if it is
scheduled to occur within 3 months of the expiration date of award. Additional performance evaluations (interim)
may be prepared at the discretion of the Contracting Officer and Oversight
Manager.
The Contracting Officer begins the performance evaluation process by entering the appropriate administrative details of the award into the FDIC Contractor Performance Evaluation and Reporting Form, found at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
The Contracting Officer emails the form to the Oversight Manager, who completes the remainder of the form by providing ratings and comments, along with answers to questions regarding subcontractors, key personnel, customer satisfaction, etc. The Oversight Manager then emails the completed form back to the Contracting Officer. The Contracting Officer sends the form to the contractor in either a letter or email, explaining the purpose of the evaluation and allowing thirty (30) days for the contractor to concur, rebut, or appeal the evaluation (see sample letter at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html). If the contractor rebuts/appeals the ratings/comments given by the Oversight Manager, the Contracting Officer works with both parties and attempts to resolve the differences. If the Contracting Officer cannot resolve the differences, the evaluation is referred to the respective ASB Assistant Director. The ASB Assistant Director’s decision cannot be appealed. If the contractor does not reply within the stated 30 days, the Contracting Officer may consider the evaluation complete, and may finalize the form.
The repository for all completed forms is the FDIC Contractor Performance Evaluation System, which is accessed via SharePoint. Upon completion of the thirty (30) days in which the contractor has to respond, and upon resolution of any appeal/rebuttal, the Contracting Officer uploads the Contractor Performance Evaluation and Reporting Form into the system. To accomplish this, the form is placed in a folder named for the contractor. If a folder for the contractor does not already exist, it must be created in SharePoint by the Contracting Officer. The contractor's name on the folder must be written the same as that on the contract. The document name assigned to the completed evaluation form must identify the contract number and year the evaluation was completed. An example of the correct format is as follows:
2008 CORHQ-XX-C-XXXX
Data on the individual and overall rating for each evaluation must be entered into the CPES Log found in the SharePoint site. This information will be used to provide reports to management on contractor performance.
The Contracting Officer must
also upload the form and all associated correspondence in CEFile.
Any action by an Oversight Manager,
Technical Monitor, or others that causes the contractor to extend or expand the
requirements of the contract and thus impact the price, schedule, quantities or
quality of the deliverables, or change other substantive terms and conditions
of the contract without the Contracting Officer’s direction may be considered
an unauthorized contractual commitment. Oversight Managers must be aware of,
and guard against the potential of unauthorized contractual commitments and
notify the Contracting Officer of any events that could result in such an
action. Procedures for processing ratifications of
unauthorized contractual commitment, including review and approval requirements
are addressed at APM
1.209 and PGI 1.209.
Contracting Officers must
insert the following provisions and clauses as required:
7.6.4-1 Inspection and Acceptance - insert clause in all awards except construction
contracts.
7.6.4-2 Inspection and Acceptance (Construction) - insert clause in all construction awards.
7.6.4-3 Risk of Loss or Damage - insert clause
in all awards.
This chapter describes the
procedures, guidance and information for use by FDIC Contracting Officers and
Program Offices concerning contract modifications.
Contract modifications are the result of necessary changes to the contract
and may only be issued by the Contracting Officer. The need for modifications
is typically identified by the Contracting Officer, Oversight Manager, or
contractor. The Contracting Officer must evaluate the
circumstances to determine if a modification is the appropriate action required
on a contract. Prior to the issuance of the modification, the Contracting
Officer and Oversight Manager must ensure that any required funding and
approvals have been obtained, and the necessary documentation has been entered
into the official contract file.
6.503(a) Modifications Increasing Contract Value
Prior to awarding a contract
modification that increases the total value of a contract, the Contracting Officer
must ensure the contract file contains an approved purchase requisition for the
cumulative dollar amount of the contract, including all modifications. This
cumulative amount represents the procurement request authority for the
modification. Depending on the dollar value of the current contract and the
dollar value of the modification, and whether the increase in value is due to
in-scope versus out-of-scope work, approvals and documentation requirements
must be accomplished before the issuance of the modification, as addressed in
the February 20, 2007 letter, “Revised Procurement-Related Delegations and
Re-Delegations of Authority Limits,” and the Approvals Matrix, both found at Appendix B, Approvals
Memorandum and Matrix. Depending on
the situation, documentation includes one or more of the following:
(1)
Memorandum
to file;
(2)
Justification
for Non-Competitive Procurement;
(3)
Approval
from the FDIC Board of Directors; and
(4)
Price
Evaluation Memorandum.
6.503(b) Modifications Increasing Period of
Performance
Modifications to increase
the contract schedule or period of performance may be issued if the Contracting
Officer determines it is in the best interest of FDIC. If the contractor is the
cause of the increase in contract schedule or period of performance,
consideration must be obtained from the contractor. Modifications which increase
the contract schedule or period of performance must be issued prior to the
completion of the contract.
When the need exists to
increase the performance period to continue providing contractual coverage
while a replacement contract is being completed, the action is referred to as a
bridge/interim modification. Appropriate acquisition planning and effective
contract oversight should
preclude the necessity for bridge/interim modifications. However, due to
extenuating circumstances, bridge/interim modifications may be issued on an
exception basis.
Depending on the dollar
value of the current contract, the length of the current performance period,
and the length of the desired increase in the period of performance, approvals
and/or documentation requirements must be accomplished before the issuance of
the modification, as addressed in the February 20, 2007 letter "Revised
Procurement-Related Delegations and Re-Delegations of Authority Limits"
and the Approvals Matrix, both found at Appendix B, Approvals Memorandum and Matrix. Depending on the situation,
documentation includes one of the following:
(1)
Memorandum
to file; or
(2)
Approval
from the FDIC Board of Directors.
6.503(c) Modifications for Unpriced Actions
Contract modifications that change
the price of a contract are bilateral and normally must contain the final
negotiated price before they are signed.
However, in those rare instances in which time does not permit for
negotiating a final price and a delay could adversely affect FDIC, a
modification may be issued as an unpriced action. A maximum (not-to-exceed)
price must be negotiated and incorporated in the modification. Also, the modification
must include a firm schedule for negotiating the final price and for issuing
the ultimate modification relating to the change. Authority to issue a
modification for an unpriced action must be obtained from the respective ASB
Assistant Director.
The types of modifications and associated
responsibilities are defined below.
6.504(a) Unilateral Changes
(1)
Oversight Manager Responsibility: The Oversight Manager must:
§
Identify
the necessary change, when applicable; and
§
Submit
a procurement requisition (PR) through the New Financial Environment (NFE) to the Contracting Officer.
(2)
Contracting Officer Responsibility: The
Contracting Officer must:
§
Verify
that the change does not affect the rights of the parties;
§
Document
the change in a unilateral contract modification and provide a signed copy to
the contractor;
§
File
the modification in the official contract file; and
§
Obtain
legal review, when required (see APM
5.15).
6.504(b) Bilateral Changes
(1)
Oversight Manager Responsibility: The
Oversight Manager must:
§
Submit
a PR through NFE to
the Contracting Officer;
§
Provide
the Contracting Officer with a detailed written explanation of the reason for,
and description of, the change and rationale as to whether any additional work
is in-scope or out-of-scope;
§
Determine
if the cost to FDIC caused by the modification exceeds the contract or task
order ceiling, and if so, ensure that additional procurement request authority
has been obtained;
§
Ensure
that the proposed prices are realistic for the work to be performed, reflect a
clear understanding of the requirements, and are consistent with the
contractors change proposal;
§
Provide
a complete and approved Justification for Non-Competitive Procurement, when required; and
§
Participate
jointly with the Contracting Officer in any negotiation pursuant to the need
for the modification.
(2)
Contractor Officer Responsibility: The Contracting Officer must:
§
Determine
if the requested modification is within the scope of the contract. In making such determination, the Contracting
Officer considers:
o
What was
reasonably anticipated by the parties to be within the scope of the contract
when it was first entered into;
o
The extent to
which the proposed modification increases the overall cost of the contract;
o
Change in the
delivery schedule;
o
Whether the
change requires a contract extension; and
o
The effect the
change might have on competition.
§
Use
price analysis techniques to help determine the
reasonableness of the proposed price by using the techniques set forth in PGI 3.210, Proposal
Evaluation (or any other reasonable basis), and document the pricing
analysis in the official contract file;
§
Negotiate
the changes required by the modification, with the support of the Oversight
Manager;
§
Obtain
legal review, when required (see APM
5.15);
§
Execute
the modification with the contractor; and
§
Provide
an original of the executed modification to the contractor and a copy to the
official contract file.
A constructive change occurs when,
as a result of FDIC action or inaction, a change has occurred in the
circumstances of the contractor’s performance that was not expressly ordered by
the Contracting Officer. It typically occurs either by the communications or
conduct of FDIC officials and has the effect of requiring the contractor to
perform different work under the contract than what was originally
contemplated.
Monitoring a
contractor's technical performance requires skill and judgment to ensure that
the contractor performs the exact tasks required by the contract. A contractor
sometimes performs work beyond that which is required by the contract. If the
contractor perceives that the work was ordered by FDIC or otherwise caused by a
perceived act or omission of FDIC, the contractor may claim that the
contract was "constructively" changed. As a result, the contractor
may be entitled to additional compensation for the changes.
The Oversight Manager
must take care to avoid inadvertently causing constructive changes.
Constructive changes may occur when an Oversight Manager or other corporation
official:
(1)
Provides
"suggestions" to a contractor;
(2)
Provides
definitions to general contract terms;
(3)
Accelerates
the delivery schedule;
(4)
Directs
work to be performed differently;
(5)
Changes
the sequencing of work;
(6)
Delays
rejecting or accepting deliverables;
(7)
Delays
reviewing invoices and approving payment;
(8)
Fails
to warn the contractor of an event/change; or
(9)
Interferes
with, or hinders performance.
The Oversight Manager
must immediately notify the Contracting Officer, if it appears that the
contractor is performing work that is not required under the contract and which
may result in a claim against FDIC.
Claims for
constructive changes are a primary reason FDIC is sometimes required to pay
additional compensation under fixed price contracts. Constructive changes can
arise from written or oral communication or as a result of action or inaction
by corporation officials any of which may be perceived as an expansion or
modification of the work/performance requirements of the contract. These types
of communications and actions may be construed by the contractor as having the
same effect as a written change order.
If the contractor has changed performance such that
it is no longer complying with the contract requirements and FDIC did not know,
or could not have known, about the change, then:
(1)
No
constructive change has occurred;
(2)
The
contractor is not entitled to any related increased cost or schedule change;
and
(3)
The
Contracting Officer must take action to enforce the contract performance
requirements and schedule.
When a contractor requests consent to assignment of
its contract with FDIC to another business entity, which if approved will
result in a novation, the Contracting Officer and the Oversight Manager
must determine whether the assignment is in the best interest of FDIC. The
steps to take in making this assessment are set out below.
6.506(a) Oversight Manager Responsibility
The Oversight Manager must:
(1)
Determine
whether the technical expertise of the proposed contractor meets the technical
expertise required to perform the contract;
(2)
Provide
a written recommendation to the Contracting Officer specifying whether FDIC
should consent to the assignment; and
(3)
Provide
a written recommendation to the Contracting Officer specifying whether the
current contractor should be released from liability under the contract.
6.506(b) Contracting
Officer Responsibility
The Contracting Officer must:
(1)
Determine
if the proposed contractor has been debarred or otherwise excluded from doing
business with the government;
(2)
Determine
if any conflicts of interest exist under the proposed assignment;
(3)
Determine
whether the proposed contractor has the financial capability to successfully
complete the remaining contract requirements;
(4)
Ensure
that the dollar value of the contract does not increase as a result of the
novation, without adequate consideration. For
labor hour and time and materials type contracts, ensure that the labor rates
remain the same or, if applicable, negotiate a reduction;
(5)
Upon
receipt of written recommendations from the Oversight Manager and with support
of the Contracting Law Unit (CLU), determine whether FDIC consents to the
assignment, and whether the original contractor will be released from
liability;
(6)
Obtain
integrity and fitness representations and certifications and, other contractor
representations and certifications from the proposed contractor and complete
background checks in the same manner as for new contracts;
(7)
Request
that CLU draft a Consent to Assignment (http://fdic01/division/doa/adminservices/records/forms/3000/index.html) and any other documents needed to
effect assignment and novation;
(8)
Execute
the documents with the current contractor and the assigned contractor; and
(9)
Provide
copies of the document to the contractor, the Oversight Manager, and the
official contract file.
The Contractor and its assignee (the
institution providing financing) initiate the assignment process by executing
an instrument of assignment. The instrument of assignment must be attached to a
notice of assignment, which is prepared and provided to the Contracting Officer
by the assignee. The following is a suggested format for a notice of
assignment.
Notice
of Assignment
To: ___________ [Address and
send to the Contracting Officer. Also
address and send to a surety on
any bond applicable to the Contract].
This has reference to
Contract No. __________ dated ______, entered into between ______ [Contractor’s
name and address] and FDIC ________ [office and address], for ________
[Describe nature of the contract].
Moneys due or to become due
under the contract described above have been assigned to the undersigned under
the provisions of the Assignment of Claims Act of 1940, as amended, 31 U.S.C. 3727, 41
U.S.C. 15.
A true copy of the instrument
of assignment executed by the Contractor on ___________ [Date], is attached to
the original notice.
Payments due or to become due
under this contract should be made to the undersigned assignee.
Please return to the
undersigned the enclosed copies of this notice with appropriate notations
showing the date and hour of receipt, and signed by the person acknowledging
receipt on behalf of the addressee.
Sincerely,
_______________________________________________
[Name of Assignee]
By ____________________________________________
[Signature of Signing Officer]
_______________________________________________
[Title of Signing Officer]
_______________________________________________
_______________________________________________
[Address of Assignee]
Acknowledgement
Receipt is acknowledged of
the above notice and of a copy of the instrument of assignment. They were
received ____ (a.m.) (p.m.) on ______, 20___.
_______________________________________________
[Signature]
_______________________________________________
[Title]
_______________________________________________
On behalf of
_______________________________________________
[Name of Addressee of this Notice]
In order for remittance to be made to the
assignee, the assignee must be registered in Central Contractor Registration (CCR) and must have an NFE vendor ID.
The Contracting Officer must notify DOF Accounts Payable of the impending assignment
of claims and thereafter coordinate the appropriate date
for changing the remittance address in NFE.
The
Contracting Officer may sign the assignment of claims only after obtaining
review and concurrence from CLU.
The signed assignment of claims is then returned to the assignee, with a
copy provided to DOF Accounts Payable. The Contracting Officer must also modify the
contract to incorporate the assignment of claims and change the remittance
address to that of the assignee.
The Contracting
Officer must provide the stop work order to the contractor, in writing, by
either a letter or modification bearing the Contracting Officer's name,
signature and date. The stop work order may require the contractor to stop all,
or any part, of the work called for by the contract for a period not to exceed
ninety (90) days, unless the contractor and FDIC agree to extend the stop work
order. As applicable, stop work orders must include:
(1)
A
description of the work to be suspended;
(2)
Instructions
concerning the contractor’s issuance of further orders for materials or
services;
(3)
Guidance
to the contractor on action to be taken on any subcontracts; and
(4)
Other
suggestions to the contractor for minimizing costs.
Promptly after
issuing the stop work order, the Contracting Officer may
discuss the stop work order with the contractor and may
modify the order, if necessary, in light of the discussion.
If the stop work
order is canceled or otherwise expires, the contractor must immediately resume
work. The Contracting Officer must adjust the performance schedule, the
contract amount, or both and modify the contract if:
(1)
The
stop work order causes an increase in the time required to perform the work or
the cost to do the work, or both; and
(2)
The
contractor asserts its right to an adjustment, in writing to the Contracting
Officer, within thirty (30) days following the end of the stop work order
period.
If the contractor is
notified during the period of the stop work order that the contract will be
terminated, the contractor must not resume work, unless otherwise directed to
do so in the termination notice.
If the contract is
terminated, the FDIC will consider the necessary, unavoidable and reasonable
costs to the contractor caused by the stop work order, during the period from
its issuance until the date of termination of the contract.
Contracting Officers must
insert the following provisions and clauses as required:
7.6.5-1 Changes - insert clause in all awards except for construction.
7.6.5-2 Changes (Construction)
- insert clause in all awards for
construction.
7.6.5-3 Stop Work Order - insert clause in all awards except construction.
7.6.5-4 Suspension of Work - insert clause in all awards for
construction.
7.6.5-5 Assignment of Claims - insert
clause in all awards.
This chapter provides the
procedures, guidance and information to be used by FDIC Contracting Officers
and Program Offices in processing contract terminations.
Cure Notice – A notice issued by the Contracting Officer to a
contractor for unsatisfactory performance under the terms of the contract
instructing the contractor to "cure" the performance within a
specified period of time.
The decision to terminate a
contract for default or convenience is made by the Contracting Officer, after
consultation with, and concurrence from, the Contracting Law Unit (CLU). The Contracting Officer must notify the ASB
Associate Director of any decision to terminate for default and must notify the
respective ASB Assistant Director for termination for convenience.
The Contracting Officer must obtain written
concurrence from the Oversight Manager and CLU before
proceeding with a termination for convenience.
6.604(a)
Procedures
Termination for convenience takes place when FDIC
delivers a notice of termination for convenience to the contractor specifying the
extent of termination and the effective date. The notice of termination must be
delivered to the contractor at least thirty (30) days before the effective date
of the termination. The Contracting Officer includes in the notice a
requirement for the contractor to:
(1)
Complete
any performance of work not terminated, and take whatever action is necessary
to mitigate any further costs, and for an orderly and timely discontinuation of
the work terminated;
(2)
Deliver
to FDIC all contract deliverables, completed or partially completed, including
any plans, drawings, information, data, materials or equipment in the
contractors possession; and
(3)
Provide
a settlement proposal detailing any cost associated with
the termination for convenience.
The
contractor is generally paid for allowable costs incurred up to the
termination.
6.604(b) Partial
Termination for
Convenience
If the termination for convenience is partial, the contractor may
file a proposal with the Contracting Officer for an adjustment of the price(s)
of the continued portion of the contract or order. The Contracting Officer must
make any adjustment agreed upon within ninety (90) days from the effective date
of termination, unless extended in writing by the Contracting Officer. The
contractor can request an adjustment to any proposal by the Contracting
Officer.
6.604(c) Charges Incurred After Termination for
Convenience
FDIC is not liable for payment to the contractor, or
to any subcontractors, for any fees, charges, penalties, or damages related to
the terminated work, which are incurred after the effective date of the
termination for convenience.
6.605(a) Oversight Manager
Responsibilities
The Oversight Manager must
notify the Contracting Officer in writing when a basis for termination for default arises and
assist the Contracting Officer and CLU in considering
whether termination for default is appropriate. During termination for default,
the Oversight Manager must maintain complete records in the official contract
file of the facts that support termination.
6.605(b) Contracting Officer
Responsibilities
When considering termination of a contract for default, the Contracting
Officer must:
(1)
Issue
a cure notice, if practical, and provide the
contractor with a reasonable amount of time to correct the situation;
(2)
Evaluate
the response to the cure notice and determine if the termination for default is
still warranted;
(3)
Obtain
written recommendations and concurrence from the Oversight Manager and obtain
CLU advice on the propriety of the termination and
the likely risks of such action;
(4)
Notify
the ASB Associate Director of the decision to terminate the contract;
(5)
Prepare
the notice of termination to the contractor and obtain CLU concurrence;
(6)
Execute
the termination documents;
(7)
Determine
whether any unpaid contractor invoices must be paid, ensure that the contract file
contains all documents relating to the termination, and determine whether the
termination might affect other contracts; and
(8)
Discuss
with CLU the possibility of
suspension and debarment of the contractor, if the grounds for termination
warrant.
Contracting Officers must insert the following
provisions and clauses as required:
7.6.6-1 Termination for
Convenience of the FDIC - insert clause in all awards.
7.6.6-2 Termination for Default - insert
clause in all awards.
7.6.6-3 Termination for Default Damages - insert clause in all awards for construction or dismantling, demolition,
or removal of improvements.
7.6.6-4 Excusable Delays - insert clause in all awards.
This chapter provides the
procedures, guidance and related information for FDIC Contracting Officers and
other officials involved in managing FDIC-furnished property used on FDIC
contracts.
Contracting Officers and the
Program Offices they support must comply with the procedures regarding
FDIC-furnished property discussed in this chapter in the award of contracts for
FDIC.
The
Contracting Officer must include, as appropriate, requirements for monitoring
FDIC property in the
possession of contractors in the Oversight Manager and Technical Monitor
appointment memorandums, and periodically monitor the status of the property.
If the contract calls for FDIC to provide the
contractor with any FDIC property or equipment,
the Oversight Manager must:
(1)
Prepare
an itemized list of the property including serial numbers, if any;
(2)
Ensure
delivery of the property in accordance with the contract;
(3)
Obtain
written acknowledgement for receipt of the property from the contractor;
(4)
Provide
the Contracting Officer with the property list, that includes the condition and
age of the property and a written contractor acknowledgement for receipt of the
property; and
(5)
Recover
the property or account for it at the end of the contract or whenever FDIC
property is
no longer required.
The contractor may be
directed or authorized by the Contracting Officer to dispose of FDIC-owned
property under contractor control in any of the following ways:
(1)
Transfer Property Title to Contractor:
FDIC may transfer the title of property to the contractor. This approach
is used when it is not practical for FDIC to readily utilize the property.
(2)
Return Property to Suppliers:
Return excess contractor-acquired property to
suppliers for full credit, less the supplier's normal restocking charge. The
cost of returning contractor-acquired property to suppliers should not be
included in any claim for reimbursement.
(3)
Return Property to FDIC: Property may be returned to FDIC for
reutilization or disposal.
Contracting Officers must
insert the following provisions and clauses as required:
7.6.7-1 FDIC Property - insert
clause in awards by FDIC in its corporate capacity, where FDIC property may be
furnished to the contractor.
This chapter provides procedures, guidance and information for closing out
official contract files.
The Contracting Officer and
Oversight Manager are responsible for contract closeout using the
procedures in the following paragraphs. FDIC does not require a contractor
release for contract closeout. Additionally, the Contracting Officer does not sign a release from the
contractor.
6.803(a) Contracting Officer Closeout
Responsibilities
The standard timeframe in
which a Contracting Officer initiates contract closeout is 180 days after the
expiration date of the contractual action.
However, different timeframes are permissible, based on the discretion
of the respective ASB Assistant Director.
The Contracting Officer must
determine that the contractor has performed all required
contractual obligations prior to closing out the contract.
The Contracting Officer begins contract closeout by requesting the Oversight Manager to complete the Oversight Manager Closeout Memorandum found at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html.
Upon receipt of the signed Oversight Manager Closeout Memorandum, the Contracting Officer must:
(1) Review the Oversight Manager Closeout Memorandum and verify that there are no open issues, such as unreturned property, unpaid invoices, undelivered goods or services, claims, disputes, audits or billing reviews. If there are open issues, they must be resolved before moving to the next step in the contract closeout process. All issues that require referral to the Legal Division must immediately be referred to the Contract Law Unit.
(2) If there are no open issues, send the contractor written notification that FDIC intends to close out the contract and afford the contractor twenty-one (21) days to confirm that the contract is ready to be closed out. A template for the contractor notification letter is available on the ASB website http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. In the event the contractor identifies an unresolved issue in its response, the contract closeout process must be suspended pending resolution of the issue. All issues that require referral to the Legal Division must immediately be referred to the Contract Law Unit;
(3) Ensure that a final Contractor Performance Evaluation and Reporting Form, if required, has been uploaded into the FDIC Contractor Performance Evaluation System (via SharePoint) and into CEFile;
(4) Ensure that the official contract file contains all required documentation;
(5) Complete and sign the closeout checklist to officially close out the contract file. A template for the closeout checklist is available on the ASB website http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html;
(6) Officially close out the contract in the appropriate procurement and finance systems; and
(7) Move the official contract file to the procurement contract closeout folder in CEFile.
6.803(b)
Oversight Manager Closeout Responsibilities
The Oversight Manager
completes the Oversight Manager Closeout Memorandum, which includes the
Oversight Manager’s determination or verification that:
(1)
All
deliverables, including reports, have been delivered and accepted;
(2)
All
payments have been made and reconciled;
(3)
Any
funds owed by the contractor to FDIC have been collected;
(4)
All
FDIC property has been returned;
(5)
A
pre-exit clearance has been completed on all contractor personnel and the
Security and Emergency Preparedness
Section has collected all contractor personnel identification badges and parking passes, if
any;
(6)
The
Oversight Manager has requested the Division
of Information Technology to
terminate all contractor personnel’s systems access;
(7)
A Contractor
Performance Evaluation and Reporting Form has been completed, if required, and provided to the
Contracting Officer;
(8)
The
Oversight Manager agrees that the Contracting Officer may closeout the contract; and
(9)
All
contract oversight documentation has been filed in the official contract file.
The Oversight
Manager must return a signed copy of the Oversight Manager Closeout Memorandum,
within twenty-one (21) days from the date of the Contracting Officer’s request.
Once contracts are
formally closed, the Contracting Officer must move the contract file to the
procurement contract closeout folder within
CEFile. The official contract file remains in the
archived folder for the period required in accordance with established FDIC
records management procedures.
This chapter provides
instructions for using provisions and clauses in solicitations and contracts,
sets forth the solicitation provisions and contract clauses prescribed by this
FDIC acquisition PGI manual, and presents a matrix listing the provisions and
clauses in a user friendly manner.
The following paragraphs address instructions for the
use of provisions and clauses, including an explanation of the provision and
clause numbering system, prescriptions, and the provision/clause matrix. Also prescribed below are procedures for incorporating,
identifying, and modifying provisions and clauses; using alternates; and adding new clauses or
provisions.
7.102(a) Numbering of Provisions and Clauses
Subchapter
7.103 sets forth the text of all FDIC provisions and clauses. Each provision or
clause is uniquely identified. All provision and clause numbers begin with 7
since the text of all provisions and clauses appear in Module 7. The next digit
corresponds to the number of the module in which the provision or clause is
prescribed. Following this single digit are one or two digits which correspond
to the number of the chapter of the module in which the provision or clause is
prescribed. The provision or clause number is then completed by a hyphen and a
sequential number. The following example illustrates the makeup of the
provision or clause number 7.3.12-11.
7. |
3. |
12. |
-11 |
Module
containing provision or clause text |
Module
prescribing provision or clause |
Chapter
prescribing provision or clause |
Sequence
number |
7.102(b) Prescriptions
Each provision and clause
has an associated prescription which describes the conditions, requirements,
and instructions for using the provision or clause. A provision or clause is prescribed in the
PGI, at the end of the chapter where the subject matter of the provision or
clause receives its primary or most closely related treatment. Prescriptions
are also listed in 7.103, immediately prior to the text of each provision or
clause.
7.102(c) Provision/Clause
Matrix
The provision/clause matrix
in 7.104 contains a column for each principal type of solicitation (request for
quotation and request
for proposal) and type of award (e.g., contract, basic ordering
agreement, task order). The matrix also has columns that
identify (1) whether the number and title applies to a provision or a clause,
(2) the section of the contract in which the provision or clause is located,
and (3) whether the provision or clause requires editing by the Contracting
Officer. Since the matrix does not
provide sufficient information to determine the applicability of a provision or
clause, Contracting Officers must refer to the prescription for its use.
All provisions and clauses
are dated “July 2008” in accordance with the issuance of the revised APM and
newly issued PGI. The date will always be included as part of the title of the
provision or clause. Any revisions to the provisions and clauses will reflect a
change in the date based upon approval by ASB Policy and Operations Section.
7.102(e) Incorporating Provisions and Clauses
Provisions and clauses may
be incorporated by full text or by reference. When incorporation by reference
is used, the provision or clause must include the number, the title and the
date.
Provisions and clauses that
require editing by the Contracting Officer to fill in words, descriptions,
numbers, dates, etc.; select among various choices or alternatives; or tailor
the language to meet unique aspects of the acquisition must be incorporated in
full text. Also, provisions that require the offeror or prospective contractor
to fill in information, select among various choices, or provide narrative
statements (e.g., Section K Representations and Certifications) must be
incorporated in full text. All other provisions and clauses should be
incorporated by reference to the maximum practical extent. Any provision or
clause that is incorporated by reference must be accessible electronically to
the offeror or prospective contractor via the FDIC web page http://www.fdic.gov/buying/goods/acquisition/index.html). However, the Contracting Officer, upon request,
must provide the full text of any provision or clause incorporated by
reference.
7.102(f) Procedures for Modifying and Completing Provisions
and Clauses
The
Contracting Officer must not modify any provisions or clauses designated in the
provision/clause matrix with an "N" under the column entitled
"Editing Required?." If the Contracting Officer believes a provision
or clause designated as non-editable should be changed, they must submit the
proposed language in writing to the Contracting Law Unit (CLU) with an
explanation for the basis of the change, and copy the ASB Policy and Operations
Section. Approval of the revised
language will be obtained from the CLU. The revised
provision or clause may apply to a specific solicitation or contract, or may
apply to all future procurements. If the
change is approved, the provision or clause will be updated in the FDIC Automated Procurement System (APS) by the ASB Policy and Operations Section who will
then notify the Contracting Officer.
The Contracting Officer must
complete the provisions and clauses designated in the matrix with a
"Y" under the column entitled "Editing Required?". If a Contracting Officer believes there are
unique aspects of an acquisition that, beyond completing fill-ins, selecting
alternatives, or describing factors/sub-factors and evaluation criteria in
Sections L and M, require the structure or language of an editable provision to
be changed, they must submit the proposed language in writing to the CLU with
an explanation for the basis of the change.
The Contracting Officer must also copy the ASB Policy and Operations
Section with information sent to the CLU.
Approval of the revised language will be obtained from the CLU. If the change is approved, the Contracting
Officer will be authorized to edit the provision or clause accordingly, as the
document is created in APS.
7.102(g) Procedures for Using Alternates
A major variation in a
provision or clause may be accommodated by the use of an alternate. The
Contracting Officer must edit the provision or clause, as applicable, to either
include or delete the alternate. Provisions and clauses containing alternates
must contain narrative statements as to when the alternate applies.
7.102(h) Procedures for Adding New Provisions or Clauses
If the Contracting Officer
believes a new provision or clause is appropriate, they must submit the
proposed language in writing to the CLU with an explanation for the basis of it
use, and copy the ASB Policy and Operations Section. Approval of the language must be obtained
from the CLU. The new provision or clause may
apply to a specific solicitation or contract, or may apply to all future
procurements. Once approved, the ASB Policy and Operations Section will upload
the solicitation or clause into the APS Clause Library.
Set forth below are all provisions and clauses, in
full text, along with prescriptions for their use.
7.0.1-1 Solicitation Provisions Incorporated by
Reference (July 2008)
Prescription:
Insert Provision 7.7.1-1, Solicitation Provisions Incorporated by
Reference, in all solicitations.
Provision:
This solicitation incorporates one or more solicitation provisions by reference, with the same force and effect as if they were given in full text. The full text of a solicitation provision is available in Module 7 of the document entitled Procedures, Guidance and Information (PGI), which may be accessed electronically at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html. ______________________________________________________________
7.0.1-2 Clauses Incorporated by Reference (July 2008)
Prescription:
Insert Clause 7.7.1-2, Clauses Incorporated by Reference, in solicitations and
awards.
Clause:
This contract incorporates one or more clauses by reference, with the same
force and effect as if they were given in full text. The full text of a
contract clause is available in Module 7 of the document entitled
Procedures, Guidance and Information (PGI), which may be accessed
electronically at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html.
______________________________________________________________
7.1.3-1
Post-Government Employment Certification (Pre-Award) (May 2009)
Prescription:
Per PGI 1.314, insert provision 7.1.3-1, Post-Government Employment Certification
(Pre-Award), in all solicitations.
Provision:
Any former Federal Deposit Insurance
Corporation (FDIC) or Resolution Trust Corporation (RTC) employee who the
offeror proposes to use in performance of work under the contract or its
subcontracts must complete the post-government employment certification found at FDIC website www.fdic.gov/buying/goods/acquisition/index.html.
The offeror shall submit the certification(s) in the
volume of its proposal entitled "Additional Information". The
certification(s) of the successful offeror will be reviewed by the FDIC Legal
Division Ethics Unit to determine compliance with post-government employment
restrictions. The former employee may be required to provide additional
information as to their position and responsibilities while employed at FDIC or
RTC and as a post-government employee working on the FDIC contract or
subcontract.
7.1.3-2
Post-Government Employment Certification (Post-Award) (May 2009)
Prescription:
Per PGI 1.314, insert clause 7.1.3-2, Post-Government Employment Certification
(Post-Award), in all awards.
Clause:
Any former Federal Deposit Insurance
Corporation (FDIC) or Resolution Trust Corporation (RTC) employee who the
contractor intends to use in performance of work under the contract or its
subcontracts must complete and submit the post-government employment certification found at FDIC website www.fdic.gov/buying/goods/acquisition/index.html. The certification
must be submitted to the Contracting Officer prior to the former employee
commencing work under the contract. The
FDIC Legal Division Ethics Unit will review the certification to determine
compliance with the post-government employment restrictions. The former employee may be required to
provide additional information as to their position and responsibilities while
employed at FDIC or RTC and as a post-government employee working on the FDIC
contract or subcontract.
7.3.1-1 Disposition of Submitted Material (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-1, Disposition of
Submitted Material, in all solicitations.
Provision:
Materials submitted in
response to this solicitation will not be returned, except for proposals deemed
non-responsive. The FDIC will retain one (1) copy of each proposal submitted,
including non-responsive proposals, for official record purposes; remaining copies will
be archived or destroyed, at the discretion of the Contracting Officer.
7.3.1-2 Central Contractor Registration (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-2, Central
Contractor Registration, in all solicitations.
Provision:
The FDIC will only make
awards to businesses that are registered in the Central Contractor Registration
(CCR) database.
The preferred method for completing your registration is via the World
Wide Web at http://www.ccr.gov. The CCR Handbook is
available at this site to assist you with your registration and provide
detailed instructions. If you have any
questions regarding CCR or the registration process,
please contact the CCR Assistance Center toll free at
(888) 227-2423.
________________________________________________________________
7.3.1-3 Restriction on Disclosure of
Information (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-3, Restriction on
Disclosure of Information in all solicitations.
Provision:
By participating in this
solicitation, the offeror expressly agrees not to disclose any information it
obtains from the FDIC related to this solicitation or any subsequent award
without the prior written approval of the Contracting Officer (except as part
of the preparation of a proposal in response to this solicitation). Offeror may be required to execute a
confidentiality agreement. "Disclosure of information" includes any
disclosure in any format, by or through any media (e.g., press releases) to
anyone else, including the general public.
The Contracting Officer has complete and sole discretion to determine if
an offeror is in violation of this provision.
FDIC reserves the right to disqualify an offeror from further
participation in the solicitation, if the offeror violates this non-disclosure
agreement. The FDIC also reserves the
right to consider a violation of the non-disclosure agreement in the award
decision or as a potential breach of contract in any subsequent award.
________________________________________________________________
7.3.1-4 Solicitation Requirements, Terms and
Conditions (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-4, Solicitation
Requirements, Terms and Conditions, in all solicitations.
Provision:
Offerors are expected to
meet all solicitation requirements. Any assumption that has been used in
preparation of the proposal or any exception to the solicitation’s terms and
conditions must be fully explained and justified in the offeror's
proposal. Failure to comply with the
terms and conditions of the solicitation may result in the offeror being
removed from consideration for award.
________________________________________________________________
7.3.1-5 Price Only Evaluation Method (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-5, Price Only
Evaluation Method, in solicitations when Best Value is not appropriate and
award will be based only on price.
Provision:
After receipt and evaluation
of proposals, FDIC may award a contract to the responsive offer which is
technically acceptable and has the lowest price.
________________________________________________________________
7.3.1-6 Identification and Delivery of
Proposals (March 2009)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-6, Identification
and Delivery of Proposals, in all
solicitations. Fill in the date and time and select the appropriate address for
delivery of proposals.
Provision:
The
proposal due date under this RFP is _________________, 20__, by _____ p.m.,
local time of the FDIC office issuing this solicitation. Proposals received after that date and time
may be returned without any review by the FDIC.
Proposals and amendments to
proposals must be: (1) marked with the solicitation number and the name and
address of the offeror, (2) submitted in both paper media within a sealed
envelope or package and electronic media in the form of a CD, and (3) delivered
to the office specified below. An
offeror who uses a commercial carrier to deliver its proposal must ensure the
outermost wrapper of its package contains the information specified in (1) and
(3) above. Proposals may be delivered by regular mail, express delivery mail,
or hand-delivered by the offeror or private courier. When hand-delivering a
proposal, offeror should allow at least an additional hour for delivery in
advance of the time specified above.
[THE FOLLOWING ADDRESS SHALL
BE USED FOR WASHINGTON PROPOSALS ONLY]
Federal Deposit Insurance
Corporation
Seidman Center
3501 North Fairfax Drive
Arlington, VA 22226-3500
[NOTE: THE FOLLOWING ADDRESS
IS FOR FIELD OFFICE PROPOSALS ONLY]
Federal Deposit Insurance
Corporation
1601 Bryan Street
Dallas, TX 75201
Attention: Acquisition
Services
________________________________________________________________
7.3.1-7 Proprietary Information (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-7, Proprietary
Information, in all solicitations.
Provision:
All proposals submitted in
response to this solicitation become the property of the FDIC. The offeror should specifically designate any
proprietary or confidential information with an appropriate restrictive
legend. The FDIC will use its best efforts to maintain the confidentiality of
all such information. In the absence of
any claim of
confidentiality, the FDIC will assume that none of the information in the
proposal is confidential, and the offeror waives any claim for breach of
confidentiality. The FDIC is subject to
the "Freedom of Information Act," 5 U.S.C. §522, as amended, and the
determination of the releasability of information is made pursuant to that
statute and the implementing regulations.
________________________________________________________________
7.3.1-8 Amendments, Extensions and
Cancellations (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.1-8, Amendments,
Extensions, and Cancellations, in all solicitations.
Provision:
This solicitation may be
amended, extended or cancelled by the FDIC Contracting Officer at any time
prior to award, if in the best interest of the FDIC. All prospective offerors will be notified of
any amendment, extension or cancellation issued under this solicitation.
________________________________________________________________
7.3.1-9 Delivery Schedule (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-9, Delivery Schedule,
in all awards for goods.
Clause:
The goods must be delivered
in accordance with the following schedule.
Item Description Day
after Award
_____________________ ____________
_____________________ ____________
_____________________ ____________
_____________________ ____________
________________________________________________________________
7.3.1-10 Place of Delivery or Performance (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert clause 7.3.1-10, Place of Delivery
or Performance, in all awards.
Clause:
The place of delivery or
performance is: _____________________________________.
________________________________________________________________
7.3.1-11 Deliverables (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-11, Deliverables,
in all awards.
Clause:
The Contractor must provide
all deliverables described in the statement of work.
________________________________________________________________
7.3.1-12 Period of Performance (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-12, Period of
Performance, in all awards for services.
Clause:
The Period of Performance
begins on __________________________________ ("Effective Date") and
expires on ___________________.
________________________________________________________________
7.3.1-13 OIG Fraud Hotline (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-13, OIG Fraud Hotline,
in all awards
Clause:
The FDIC’s Office of
Inspector General (OIG) investigates allegations of fraud, waste and abuse in
FDIC contracting. The OIG maintains a
telephone hotline to collect information about possible fraud, waste or
abuse. Contractor is required to:
(1) Put up OIG Fraud Hotline
posters in each facility where it has employees working on FDIC contracts, and
(2) distribute pamphlets about the OIG Fraud Hotline to employees working on
FDIC contracts. The FDIC will supply
Contractor with OIG Fraud Hotline posters and pamphlets, upon request.
________________________________________________________________
7.3.1-14 Order of Precedence (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-14, Order of
Precedence, in all awards.
Clause:
The order of precedence for
resolving any inconsistency in or conflict among the various components of this
contract is:
(1) Contract Clauses
(2) Statement of Work
(3) Exhibits and Attachments
(4) Contractor's Proposal
including all revisions.
________________________________________________________________
7.3.1-15 Governing Law (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert clause 7.3.1-15, Governing Law,
in all awards
Clause:
This contract is governed by
Federal law and will be construed accordingly.
To the extent State law may apply, in the case where there is no
applicable Federal law, the State law that applies is the law of the State in
which the FDIC office executing the contract is located (or the law of the District
of Columbia for contracts executed by the FDIC office located in the District
of Columbia).
________________________________________________________________
7.3.2-1 Description of Goods or Services (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-1, Description of
Goods or Services, in all solicitations.
Provision:
The FDIC is requesting
proposals from offerors to perform the following activities: [brief description of goods or services;
period of expected performance, including options, if any; location of performance; and any incidental
deliverables such as manuals, reports, etc.]. The goods or services the
FDIC requires are described in the [Statement of Objectives (SOO), Statement of Work ("SOW"), or Performance Work Statement (PWS)]
included in this solicitation. The term “proposal” as may be used in this
document refers to the written offer, written information, and pricing
information. Each of the elements is
further described in Section L, Instructions, Conditions, and Notices to
Offerors, of this solicitation
________________________________________________________________
7.3.2-2 References to Time (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-2, References to
Time, in all solicitations.
Provision:
All references to time in
this solicitation refer to the local time of the FDIC office issuing this
solicitation.
________________________________________________________________
7.3.2-3 Outreach Program: SDB,
Minority-Owned and Women-Owned Business Concerns (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision in 7.3.2-3, Outreach Program: SDB, Minority-Owned and Women-Owned Business Concerns, in solicitations that will result in an award
exceeding $100,000.
Provision:
The FDIC strongly encourages
the participation of Small Disadvantaged Business (SDB) and Minority-Owned and Women-Owned Business (MWOB) concerns in this solicitation.
________________________________________________________________
7.3.2-4 Site Visit (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-4, Site Visit, in solicitations when services will be performed
on-site at FDIC and a site visit will be allowed prior to award.
Provision:
In order to provide
potential offerors an opportunity to walk through the FDIC location(s) where
services will be performed under the contract, a site visit will be held
on __________________ at _________ a.m. to tour the facility[ies].
Each potential offeror is
limited to two (2) attendees at the site visit. Potential
offerors must submit the names of attendees to ____________________ by
_____________, 200_. All submissions
must be by email to ________________ at ________________@fdic.gov or by
facsimile at Fax No. (___) ________). If a potential offeror elects not to
attend the site visit, it will be deemed to have waived any objection based on
not having had access to information provided at the site visit. If a potential offeror is unable to use
either email or fax, it should contact ______________________at ______________.
Attendees shall meet in the
lobby area at the following location, at the times specified below:
Date: ___________________
Time: ____a.m. / p.m. (the site visit will last
approximately ____ hour(s))
Location: Federal Deposit Insurance Corporation
_______________________________
-- Lobby
_______________________________
[ADD OTHER LOCATIONS, IF
SERVICES WILL BE PERFORMED AT DIFFERENT SITES AND A WALK-THROUGH/SITE VISIT IS
NEEDED AT BOTH SITES (i.e., Virginia Square and DC location(s)]:
Date: ___________________
Time: ____p.m. (the Site Visit will last
approximately ____ hour(s))
Location: Federal Deposit Insurance Corporation
______________________________ -- Lobby
______________________________
Attendees will be required
to obtain a visitor's badge when they arrive at the FDIC. A picture ID must be shown to obtain the
visitor's badge. The FDIC will not
provide transportation to the site visit location(s).
________________________________________________________________
7.3.2-5 Offerors’ Conference (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-5, Offeror's
Conference, in solicitations when an offerors' conference will
be held.
Provision:
In order to provide a forum
for questions from potential offerors, the FDIC will hold an offerors’
Conference ("Conference") at the following location on
__________________, 200_ at _____a.m./ p.m.:
Federal Deposit Insurance
Corporation
______________________________
______________________________
______________________________
Each potential offeror is
limited to two (2) attendees at the Conference.
Potential offerors must submit the names of attendees to
__________________ by _____________, 200_. All submissions must be by email to
________________ at ________________@fdic.gov or by facsimile at Fax No. (___)
________). If a potential offeror is unable to use either email or fax, it
should contact ______________________at ______________.
If a potential offeror
elects not to attend the Conference, it will be deemed to have waived any
objection based on not having had access to information provided at the
Conference.
________________________________________________________________
7.3.2-6 Questions Regarding Solicitation (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-6, Questions
Regarding Solicitation, in all solicitations.
Provision:
The FDIC will respond to
questions or requests for clarification, submitted in writing by an offeror, regarding this
solicitation. Questions or requests for
clarification must be submitted by ____p.m. on _____________, 200_ by email to
________________ at ________________@fdic.gov or by facsimile at Fax No. (___)
________). If an offeror is unable to use either email or fax, it should
contact ______________________at ______________.
[INCLUDE THE FOLLOWING FOR
SOLICITATIONS THAT ARE MAILED TO PROSPECTIVE OFFERORS]
The FDIC will provide a copy
of the questions and any written responses or clarifications to all firms from
whom proposals have been solicited.
[INCLUDE THE FOLLOWING FOR
SOLICITATIONS THAT ARE PUT ON FEDBIZOPPS FOR USE BY PROSPECTIVE OFFERORS]
Questions and their answers
to this solicitation will be posted in the form of an Amendment on the Federal
Business Opportunities (FedBizOpps) Internet website (http://www.fedbizopps.gov).
________________________________________________________________
7.3.2-7 Submission of Offers in the English
Language and in U.S. Currency (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-7, Submission of
Offers in the English Language and U.S. Currency, in all solicitations.
Provision:
Offers submitted in response
to this solicitation must be in the English language and in terms of U.S.
dollars. Offers received in other than
English or in other than U.S. dollars will be rejected.
________________________________________________________________
7.3.2-8 Award of
Contract - Competitive (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-8, Award of
Contract - Competitive, in all solicitations which are competed.
Provision:
The Contracting Officer
reserves the right to make award (s) as a result of the initial responses to
this solicitation, make final offer revisions with the apparent successful
offeror(s), or hold discussions with all
offerors as appropriate. The FDIC reserves the right to award one, more than
one or no contracts under this solicitation.
________________________________________________________________
7.3.2-9 General Proposal Instructions (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-9, General
Proposal Instructions, in all solicitations.
Provision:
(a) This solicitation does
not commit the FDIC to award any contract, to pay any cost incurred related to
proposal submission, oral presentation, or any subsequent negotiations. It is also the offeror's responsibility to
inform the FDIC of any present, pending or possible future conflict of interest.
(b) Because the FDIC expects to receive and
analyze a large volume of data in selection of the successful offeror,
proposals shall be made strictly in accordance with the proposal format set
forth herein. Failure to comply with the
terms and conditions of this solicitation may result in the offeror being
removed from consideration for award.
(c) Each proposal shall be divided into ______
( ) separate parts:
Volume __
- Mission Capability
Volume __
- Relevant Past Performance
Volume __
- Pricing
Volume __ -
Additional Information
Volume __ -
Background Investigation Questionnaires
Volume __
- Section 508 [USE ONLY IF EIT IS INCLUDED]
The numbers of printed
copies to be submitted for each volume are specified in other provisions of
this solicitation. In addition to
printed copies, offeror must submit the proposal electronically on compact disk
(CD). Each proposal volume must be
contained in a separate folder or file on the CD(s)
(d) Each volume shall have a cover page that
identifies: (1) the offeror's name, address and telephone and fax numbers and
the name of its contact person regarding the solicitation; (2) the solicitation
Number; and (3) the volume number and name.
(e) If the proposal exceeds
the page limits identified in the solicitation, the proposal may be determined
non-responsive and returned
to the offeror. The following will not
be included in the page count limitations: cover pages, table of contents,
tabs, dividers, glossaries, blank pages and a compliance matrix (if
proposed).
(f) Exceptions taken to the terms and conditions
of the solicitation, including the attachments, must be identified and fully
described in the "Additional Information" volume of your proposal. Each exception must be identified
specifically, by reference to the paragraph or part of the solicitation to
which exception is taken. Provide
rationale in support of the exception and fully explain the impact it has, if
any, on performance, schedule, and price.
Failure to comply with the terms and conditions of the solicitation may
result in the offeror being removed from consideration for award.
7.3.2-10 General
Proposal Instructions – Oral Presentation (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-10, General
Proposal Instructions – Oral Presentation, in conjunction with 7.3.2-27 Oral Presentation when proposal evaluations will include the use of
oral presentations.
Provision:
(a) This solicitation does
not commit the FDIC to award any contract, to pay any cost incurred related to
proposal submission, oral presentation, or any subsequent negotiations. It is also the offeror's responsibility to
inform the FDIC of any present, pending or possible future conflict of interest.
(b) Because the FDIC expects to receive and
analyze a large volume of data in selection of the successful offeror,
proposals shall be made strictly in accordance with the proposal format set
forth herein. Failure to comply with the
terms and conditions of this solicitation may result in the offeror being
removed from consideration for award.
(c) Each proposal shall be divided into ______
( ) separate parts:
Volume __
- Mission Capability
Volume __
- Relevant Past Performance
Volume __
- Pricing
Volume __ -
Additional Information
Volume __ -
Background Investigation Questionnaires
Volume __
- Section 508 [USE ONLY IF EIT IS INCLUDED]
The numbers of printed
copies to be submitted for each volume are specified in other provisions of
this solicitation. In addition to
printed copies, offeror must submit the proposal electronically on compact disk
(CD). Each proposal volume must be
contained in a separate folder or file on the CD(s)
(d) Each volume shall have a cover page, that
identifies (1) the offeror's name, address and telephone and fax numbers and
the name of its contact person regarding the solicitation; (2) the solicitation
Number; and (3) the volume number and name.
(e) The oral presentation requirements,
including the deliverables and the topics to be presented, are identified in
the provision "Oral Presentation".
(f) If the proposal exceeds the page limits
identified in the solicitation, the proposal may be determined non-responsive and returned
to the offeror. The following will not
be included in the page count limitations: cover pages, table of contents,
tabs, dividers, glossaries, blank pages and a compliance matrix (if proposed).
(g) Exceptions taken to the terms and conditions
of the solicitation, including the attachments, must be identified and fully
described in the "Additional Information" volume of your
proposal. Each exception must be
identified specifically, by reference to the paragraph or part of the
solicitation to which exception is taken.
Provide rationale in support of the exception and fully explain the
impact it has, if any, on performance, schedule, and price. Failure to comply with the terms and
conditions of the solicitation may result in the offeror being removed from
consideration for award.
________________________________________________________________
7.3.2-11 Pricing Proposal (Firm-Fixed-Price)
(July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-11, Pricing
Proposal (Firm-Fixed-Price), in solicitations that will result in firm
fixed priced contracts.
For awards greater than $1,000,000, include paragraph (d).
Provision:
Offerors shall submit an
original and one (1) copy of the Pricing Proposal. (No page limitation.)
(a) Pricing Schedule. Offerors shall complete and submit the
Pricing Schedule provided as Attachment ___ to this solicitation. Instructions for completing the Pricing
Schedule are provided in Attachment ___.
[IF TRAVEL COSTS WILL NOT BE
REIMBURSED, USE THE FOLLOWING PARAGRAPH (b)]:
(b) Travel costs will not be
reimbursed separately; factor travel costs into the firm fixed price you propose.
[IF TRAVEL COSTS WILL BE
REIMBURSED, USE THE FOLLOWING PARAGRAPH (b)]:
(b) Travel costs will be reimbursed in accordance
with FDIC Contractor Travel Reimbursement Guidelines
found at http://www.fdic.gov/buying/goods/acquisition/index.html. If the Contractor must be in the Washington,
D.C., area overnight, the Contractor is required to stay at the Seidman Center
providing space is available. If space is not available the Contracting Officer
will authorize the contractor to obtain alternate lodging. For reimbursement, the Contractor must submit
written evidence regarding the unavailability of lodging at the Seidman Center
with their invoice.
(c) Sales Tax Exemption.
FDIC is a Federal Government corporation and is exempt from State sales
tax. Therefore, it is not required to
pay sales tax on invoices submitted to
it and, if included, the amounts will be deducted from the total amount
invoiced.
[INCLUDE THE FOLLOWING FOR
CONTRACTS OF $1,000,000 OR MORE.]
(d) Bank Reference &
Certified Financial Statements. Offerors
must provide a bank reference together with a certified Balance Sheet and
Income Statement prepared by an independent auditor for the offeror, or an acceptable
equivalent, for the current and preceding two (2) fiscal years. If the offeror cannot provide these
statements, explain why, and provide other suitable proof of the offeror's
financial responsibility.
________________________________________________________________
7.3.2-12 Pricing Proposal (Time-and-Material or
Labor Hour) (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-12 Pricing
Proposal (Time-and-Material or Labor Hour), in solicitations for time-and-material or labor
hour contracts.
For awards greater than $1,000,000, include subparagraph (e).
Provision:
Offerors shall submit an
original and one (1) copy of the Pricing Proposal in accordance with the
Pricing Schedule, Attachment ___ to this solicitation. Instructions for completing the Pricing
Schedule are provided in Attachment ___.
[IF SUBCONTRACTING IS NOT
PERMITTED, INCLUDE THE FOLLOWING PARAGRAPH (a)]:
(a) Subcontracting is not permitted under this
solicitation.
[IF SUBCONTRACTING IS
PERMITTED, WITH SUBCONTRACTOR MARKUP, INCLUDE THE FOLLOWING PARAGRAPH (a)]:
(a) Offeror must identify the markup rate the
prime contractor has applied to
each subcontractor labor category.
Offeror must justify the reasonableness of the subcontractor markup
rate(s).
[IF SUBCONTRACTING IS
PERMITTED, BUT SUBCONTRACTOR MARKUP IS NOT PERMITTED, INCLUDE THE FOLLOWING
PARAGRAPH (a)]:
(a) Subcontracting is permitted under this
solicitation; however,markup of the subcontractor labor rates by the prime
contractor is not
permitted.
(b) For the purpose of
proposing on-site and off-site labor rates, the following definitions apply:
(1) On-site - a contractor is working
on-site if the major portion of the work activity, measured in labor hours, is performed at or in a facility controlled by
FDIC. For these purposes,
"controlled" includes facilities owned, leased, rented or occupied by
the FDIC, for the purpose of doing business in its corporate, conservatorship, or receivership capacities. For the portion of the work that the
Contractor performs at or in a facility controlled by FDIC, FDIC will allow
Contractor to utilize standard and existing FDIC equipment and material,
including but not limited to computer hardware and software.
(2) Off-site - a contractor is working
off-site if the major portion of the work activity, measured in labor hours, is performed at a facility other than one
controlled by the FDIC (as defined above), in which the Contractor furnishes
any and all materials needed to perform the work, including ,but not limited
to, computer hardware and software. FDIC
may decide to supply contractor with software to be used in which case no cost
or fee will be charged to the contractor.
No other fees, costs, or expenses must be paid to a contractor working
off-site other than the labor hour rate, unless
specifically set forth in this contract.
(c) If the contract includes
reimbursable travel, and the Contractor must be in the Washington, D.C., area
overnight, the Contractor is required to stay at the Seidman Center providing
space is available. If space is not available the Contracting Officer will
authorize the contractor to obtain alternate lodging. For reimbursement, the Contractor must submit
written evidence regarding the unavailability of lodging at the Seidman Center
with their invoice.
(d) Sales Tax Exemption.
FDIC is a Federal Government corporation and is exempt from State sales
tax. Therefore, it is not required to
pay sales tax on invoices submitted to
it and if included, the amounts will be deducted from the total amount
invoiced.
[INCLUDE THE FOLLOWING FOR
CONTRACTS OF $1,000,000 OR MORE.]
(e)
References/Financials.
Offerors must provide a bank
reference together with a certified Balance Sheet and Income Statement prepared
by an independent auditor, or an acceptable equivalent, for the current and
preceding two (2) fiscal years. If the
offeror cannot provide these statements, explain why, and provide other
suitable proof of the offeror's financial responsibility.
________________________________________________________________
7.3.2-13 Effective Period of Offer (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-13, Effective
Period of Offer, in all solicitations
Provision:
The proposal shall be signed
by an authorized officer of the company who can commit the offeror, and shall
include a statement that the offer is valid for a period of not less than 120
days, unless withdrawn by written notice to the Contracting Officer.
________________________________________________________________
7.3.2-14 Non-Responsive Proposals (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-12, Non-Responsive
Proposals, in all solicitations
Provision:
Any proposal that fails to
comply with the material requirements of this solicitation may be considered
non-responsive and may be eliminated from further consideration.
________________________________________________________________
7.3.2-15 Mission Capability - Proposal
Instructions (June 2010)
Prescription:
Per PGI 3.112 and PGI 3.218,
insert provision 7.3.2-15, Mission
Capability - Proposal Instructions, in solicitations when mission
capability will be evaluated. Include
paragraphs (b), (c), and/or (d), when applicable.
Provision:
(a) The Mission Capability
Volume must include the information described below. Do not include any pricing
information in this volume. Offerors
must submit an original and ____________( ) copies of the Mission Capability
Volume.
The Mission Capability
Volume should be specific and complete.
Legibility, clarity and coherence are very important. Your responses
will be evaluated against the Mission Capability rating criteria defined in the
provision of this solicitation Evaluation
of Mission Capability. Using the
instructions provided below, provide as specifically as possible the actual
methodology you would use for accomplishing/satisfying these subfactors. Do not merely reiterate the objective or
reformulate the requirements specified in the solicitation.
The proposal must address
the following:
Subfactor 1. (For example
Management Plan) (_____ page maximum)
Subfactor 2. (For example
Technical Approach) (_____ page maximum)
Subfactor 3. (For example
Key Personnel)(_____ page maximum)
[USE ONE OF THE VERSIONS OF (b)
BELOW IF FDIC INFORMATION MAY BE PROCESSED OR STORED OFF-SITE IN A NON-FDIC
FACILITY (E.G. CONTRACTOR PERSONNEL WORK FROM THEIR COMPANY OFFICE OR A SERVICE
PROVIDER PROCESSES FDIC DATA AT THEIR LOCATION)]
- IT SECURITY PLAN:
USE THIS VERSION OF (b) WHEN THE INFORMATION MAY BE BOTH ELECTRONIC AND
PAPER FORM.
-
PHYSICAL/ENVIRONMENTAL SECURITY PLAN: USE THIS VERSION OF (b) WHEN THE
INFORMATION WILL BE PAPER FORM ONLY.]
(b) IT Security Plan.
The offeror must provide an
IT Security Plan as a separate section of the Mission Capability volume. The IT
Security Plan must describe the controls, processes, procedures and training of
personnel that the Contractor will follow to ensure appropriate security of
FDIC information. A template to assist
with the format and documentation requirements of the IT Security Plan is
available at the FDIC website: (www.fdic.gov/buying/goods/acquisition/index.html). In lieu of using the template, the offeror
may modify and submit its existing IT Security Plan, provided the modified Plan
accommodates the requirements of the FDIC.
Also, in place of an IT Security Plan, the Contractor may provide a copy
of any information technology-based, independent security audit or review
covering the systems on which and the facilities where FDIC information will be
processed and stored. Examples would
include a “Statement on Auditing Standards No. 70 Type II (SAS 70 Type II)” or
“International Organization for Standards/International Electro-technical
Commission 17799 Assessment (ISO/IEC 17799).”
(b) Physical/Environmental Security Plan.
The offeror must provide a Physical/Environmental
Security Plan as a separate
section of the Mission Capability volume. The
Physical/Environmental Security Plan must describe the controls, processes,
procedures and training of personnel that the Contractor will follow to ensure
appropriate security of FDIC information. A template to assist with the format
and documentation requirements of the Physical/Environmental Security Plan is
available at the FDIC website:
(www.fdic.gov/buying/goods/acquisition/index.html).
The template document on this website is entitled “IT Security Plan
Template”. However, the offeror must
complete only the cover page, index, executive summary, and Section 2.1.6,
Physical and Environmental Protection (PE).
In lieu of using the template, the offeror may modify and submit its
existing Physical/Environmental Security Plan, provided the modified Plan
accommodates the requirements of the FDIC.
Also, in place of a Physical/Environmental Security Plan, the Contractor
may provide a copy of any independent security audit or review covering the
systems on
which and the facilities where FDIC information will
be processed and stored.
Examples would include a “Statement on Auditing
Standards No. 70 Type II
(SAS 70 Type II)” or “International Organization for
Standards/International
Electro-technical Commission 17799 Assessment
(ISO/IEC 17799).”
[USE (c) BELOW IF
SUBCONTRACTING IS PERMITTED.]
(c) Subcontracting Plan. The offeror
must provide a subcontracting plan for any portion of the work proposed to be
subcontracted. Offerors are encouraged
to subcontract with Minority or Woman Owned Business (MWOBs) and Small Disadvantaged Business (SDBs).
The subcontracting plan must provide
at least the following;
(1) Name, address and Dun and
Bradstreet Number (DUNS) of the subcontractor;
(2) Summary of capabilities of the
subcontractor;
(3) Description of roles of Key
Personnel of the
subcontractor;
(4) Estimated percentage of work to be
performed by the subcontractor;
(5) Description of work to be performed
by the subcontractor;
(6)
Minority or Woman Owned Business (MWOB) designation of the
subcontractor, i.e., Women-Owned, Minority-Owned. If Minority-Owned, also provide the
subcontractor’s ethnic/racial category from the following list:
Asian-Pacific
American
Subcontinent
Asian (Asian-Indian) American
Black
American
Hispanic
American
Native
American
Other
than one of the preceding
(7) SDB certification,
if any, of subcontractor; and
(8) Provide your rationale and a policy
for subcontracting on this contract, including how you will meet your proposed
subcontracting commitments.
(Note: Do NOT include any
labor rates in the Subcontracting Plan. Estimated compensation to the subcontractor,
including detailed information concerning labor categories and labor rates,
must be included in the Pricing Volume.)
[INCLUDE (d) BELOW AS A
SEPARATE PARAGRAPH UNDER THIS SECTION IF THIS IS A FOLLOW-ON/RE-COMPETE
CONTRACT]
(d) If the offeror proposes
to hire any incumbent key personnel, the offeror must include a copy of the incumbent
personnel’s resume and a letter of commitment from the individual. Do not include any pricing information (e.g.,
proposed salary, etc.) in the letter of commitment.
________________________________________________________________
7.3.2-16 Past Performance - Proposal Instructions
(July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-16, Past
Performance - Proposal Instructions, in solicitations when past performance information will be
evaluated.
Provision:
Offerors must submit an
original and _____________ ( ) copies of the Past Performance Volume. Do not include any pricing information in
this volume.
(a) General
Each offeror must submit a
Past Performance Volume with its proposal, containing past performance information in the format
described in paragraph (d) below, Past Performance Information. This information is required for both the
offeror and for major subcontractors and joint venture partners that the
offeror considers critical to its overall successful performance of this
requirement. The FDIC will use data
provided by each offeror, as well as data obtained from other sources, in the
evaluation of past performance.
Offeror
must notify its proposed subcontractors that by providing past performance information and references to the offeror for
inclusion in the proposal, a subcontractor is deemed to have given consent to
the possible release by FDIC to offeror of any adverse past performance
information the FDIC receives, in order that the offeror can respond to it.
(b) Relevant Contracts (Maximum ___ pages for each relevant
contract).
Submit past performance information, in the format
described in paragraph (d), on ____________ (
) recent contracts you consider the most relevant in demonstrating your
ability to perform this requirement.
Also include past performance information on up to __________ ( ) recent
contracts performed by each of your subcontractors and joint venture partners,
if any, which you consider the most relevant in demonstrating their ability to
perform this requirement. For a
description of the characteristics or aspects the FDIC will consider in
determining relevance, see Section M,
Evaluation Factors for Award.
(c) Specific Content
Explain the rationale
supporting the relevance to this requirement of the particular contracts you
selected as indicators of past performance, e.g., what particular aspects of these contracts relate to the
particulars of this requirement, in what way do they relate, and to what
degree. Your discussion may include
your accomplishments in resolving problems encountered on these prior contracts
and in identifying and managing program risk. Clearly describe management
actions you took to overcome problems and the effect those actions had in
achieving improvements or rectifying problems.
Merely having problems does not automatically equate to a little or no
confidence rating, since the problems encountered may have been on a more
complex program, or an offeror may have subsequently demonstrated the ability
to overcome the problems encountered.
This may allow the offeror to be considered a higher confidence
candidate.
(d) Past Performance
Information
Provide the information
listed below for each contract (Government or commercial) being described (see
paragraph (b)). Provide frank, concise
comments regarding your performance on the contracts you identify. Provide a separate completed form for each
contract.
(1) Name of the customer.
(2) Contract/work identification
number.
(3) Contract type.
(4) Total contract value.
(5) Brief description of the work
performed.
(6) Period of performance.
(7) Point of contact for the contract
(technical/project manager’s and contracting official’s names and telephone
numbers).
(8) For each of the sub-factors under
the Mission Capability factor, illustrate how the work you performed applies to
that sub-factor.
(9) Specify, by name, any key personnel, who you propose for the contract resulting from
this solicitation, who participated in this contract, and indicate their
contractual roles for both contracts.
(10) Identify whether a subcontracting
plan was required
by the contract. If one was required, identify,
in percentage terms, the planned versus achieved goals during contract
performance for Small Businesses, Small Disadvantaged Businesses (SDB), and Minority or Women Owned Businesses (MWOB). If goals
were not met, please explain.
(e) Performance
Questionnaires
Offeror
must ask each customer identified by the offeror in paragraph (d) to complete a
Past Performance Questionnaire (PPQ) (form is available at www.fdic.gov/buying/goods/acquisition/index.html).
The offeror is responsible for providing customers with the questionnaire,
along with ensuring the questionnaire identifies the solicitation number and
the name, fax number, and email address of the Contracting Officer. By
selecting the customer as a reference and requesting they submit the
questionnaire to FDIC, the offeror is authorizing the customer to release past
performance information to
the FDIC, whether it is positive or negative information. Responsibility
for tracking the completion of the PPQs rests solely with the offeror.
The completed PPQs must be sent directly to the FDIC from the customer and
should be preferably emailed to ______@fdic.gov or faxed to the Contracting
Officer __________________________ at _______________(insert fax number).
Any PPQs received from the offeror will not be considered. The offeror is
responsible for ensuring the PPQs are received by FDIC no later than the proposal
due date. Offeror should contact the Contracting Officer to confirm
receipt. In the event no PPQs are received by the FDIC Contracting
Office, the Contracting Officer may contact the points of contact provided by
the offeror.
7.3.2-17 Best Value Evaluation Process (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-17, Best Value
Evaluation Process, in solicitations when the evaluation is based on best
value.
Provision:
(a) The FDIC will review all
proposals for responsiveness and all Offerors (including subcontractors) for
compliance with 12 CFR 366, and will evaluate individual proposals against the
evaluation criteria. The FDIC may
exclude an offeror from further consideration if it submits an Offer that does
not conform to the proposal submission requirements.
[ORDER OF IMPORTANCE MUST BE
INCLUDED IN PARAGRAPH (b) OF THIS PROVISION.
EXAMPLES INCLUDE BUT ARE NOT LIMITED TO THE FOLLOWING.]
(b) Factors A and B are of equal importance, and
are more important than Factors C, D, and E, which are all equal in importance.
Sub-factors A-1, A-2, and A-3 are all equal in importance.
(b) Factors A, B, C, D, and E are listed in
descending order of importance.
SubFactors A1, A2, and A3 are all equal in importance.
Factor A - Mission
Capability
Sub-factor A.1 -
Sub-factor A.2 -
Sub-factor A.3 -
Factor B - Past Performance
Factor C – Price
Factor D – IT Security Plan
[if required]
Factor E – Section 508
Compliance [if required]
Following an evaluation,
award will be made to the offeror(s) whose proposal is determined to be most
advantageous (best value) to the FDIC.
(c) Subjective judgment is
implicit in the analysis of best value. The best value
may not necessarily be represented by the lowest price offered. Price is not expected to be the most
significant factor in the selection of a Contractor from this solicitation. The
degree of importance of price as a factor, however, could
increase depending upon how
equally matched the competing proposals are for the other factors
evaluated. When competing proposals are
judged to be equal upon evaluation of the other factors considered in the best
value analysis,
total price and other price factors would become the most significant
factor.
________________________________________________________________
7.3.2-18 Evaluation of Mission Capability (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-18, Evaluation of Mission
Capability in solicitations where mission capability will be evaluated.
Provision:
[USE THE FOLLOWING PARAGRAPH
(a) FOR COLOR-CODED BEST VALUE METHODOLOGY]
(a) Review and Assessment of
Mission Capability Written Proposals.
FDIC will review and assess the Mission Capability of each written
proposal against the stated evaluation sub-factors (e.g., Management Plan) set
forth in the provision Mission Capability
– Proposal Instructions. Mission
Capability ratings will focus on strengths and weaknesses of the offeror's
proposal and assess the extent to which offeror’s proposal fulfills the
functional requirements and meet FDIC’s needs.
Evaluators will consider the soundness, content, clarity, quality,
accuracy, and completeness of the proposal.
Each sub-factor within the Mission Capability factor will receive one of
the following color ratings (Blue, Green, Yellow, Red), based on the assessed
strengths and proposal shortfalls of each offeror's proposal as it relates to
each of the Mission Capability sub-factors.
MISSION CAPABILITY RATING
SCALE
COLOR RATING DEFINITION
Blue/ Exceptional: Exceeds minimum performance or capability requirements in a way
beneficial to the FDIC.
Green/Acceptable: Meets minimum performance or
capability requirements necessary for acceptable contract performance.
Yellow/Marginal: Does not meet some minimum performance or capability requirements
necessary for acceptable contract performance, but any proposal inadequacies
are correctable.
Red/Unacceptable: Fails to meet minimum performance or capability
requirements. Proposals with an
unacceptable rating are not awardable.
[USE THE FOLLOWING PARAGRAPH
(a) FOR POINT SYSTEM BEST VALUE METHODOLOGY]
(a) Review and Assessment of
Mission Capability Written Proposals.
FDIC will review and assess the Mission Capability of each written
proposal against the stated evaluation sub-factors set forth above. Mission Capability ratings will focus on
strengths and weaknesses of the offeror's proposal and assess the extent to
which offeror’s proposed technical and management solutions fulfill the
functional requirements and meet FDIC’s needs.
A total of 100 points will be assigned to the Mission Capability
factor. Points assigned at the subfactor
level will be driven by the order of importance for each subfactor. All points assigned at the subfactor level
will equal 100 points at the factor level. Cumulative points will reflect the
quality of the offeror’s proposal for Mission Capability according to the
stratification table below.
MISSION CAPABILITY RATING
SCALE
TECHNICAL POINTS
Point Rating Table.
Adjectival Rating/Point Range: Rating
Description/Standard
Excellent/90-100: Meets or
exceeds all requirements. Proposal
demonstrates complete understanding of the requirement and offers a substantial
chance of success. No deficiencies or
weaknesses identified.
Very Good/80-89: Meets or exceeds some
requirements. Proposal shows reasonable
understanding of the requirement and offers a high chance of success. No deficiencies or weaknesses identified.
Good/70-79: Meets minimum
requirements. Proposal shows reasonable
understanding of the requirement and offers a high chance of success. Significant weaknesses or deficiencies exist,
but are correctable through clarification or discussions.
Marginal/60-69: Meets some minimum
requirements. Proposal indicates only a
marginal understanding of the requirement and offers only a minimal chance for
success. Significant deficiencies and
weaknesses must be corrected in order to make the proposal acceptable, but any
proposal inadequacies are correctable.
Poor/0-59: Does not meet
requirements. Proposal demonstrates a
significant lack of understanding of the requirement and does not offer a
reasonable chance for success. Proposals
with a poor rating are not awardable.
[USE THE FOLLOWING PARAGRAPH
(a) FOR PRICE/PERFORMANCE TRADEOFF BEST VALUE METHODOLOGY]
(a) Review and Assessment of
Mission Capability Written Proposals.
FDIC will review and assess the Mission Capability of each written
proposal against the minimum technical qualification requirements set forth
below. Each subfactor within the
Mission Capability Factor will receive a Pass/Fail rating. An offeror must receive an acceptable (i.e.,
Pass) rating for each subfactor to be considered for award.
[INSERT MINIMUM TECHNICAL
QUALIFICATION REQUIREMENTS FOR EACH SUB-FACTOR LISTED BELOW]
Sub-factor A:
Sub-factor B:
Sub-factor C:
[IF EXPERIENCE WAS
IDENTIFIED AS AN AREA FOR EVALUATION, INLCUDE THE FOLLOWING]
(b) Offeror will be evaluated on its experience
in managing services similar in scope to those required in this solicitation,
which demonstrate the offeror's capability to support the mission.
________________________________________________________________
7.3.2-19 RESERVED
________________________________________________________________
7.3.2-20 Evaluation of Past Performance (July
2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-20, Evaluation of
Past Performance, in solicitations when past performance will be evaluated.
Provision:
(a) Past Performance Factor.
Under the Past Performance factor, the performance confidence assessment is an
evaluation of an offeror's past work record to assess the FDIC's confidence in
the probability that offeror can successfully perform, as proposed. The FDIC will evaluate the offeror's demonstrated
record of contract compliance in supplying services that meet user's needs,
including management of cost and schedule.
The Past Performance Evaluation is accomplished by reviewing aspects of
an offeror's relevant past performance, focusing on and targeting performance that is relevant to the Mission
Capability subfactors. In determining
relevance, contracts of similar project complexity, scope, type, and schedule
are considered. Data on efforts
performed by other divisions within offeror’s organization and by critical
subcontractors may also be considered, if such resources significantly
influence the offeror’s performance of the proposed effort.
(b) The FDIC may consider as
relevant contracts performed for agencies of the federal, state or local
governments, and for commercial customers.
Each offeror will receive an integrated performance confidence
assessment, which is the rating for the Past Performance factor. While the Past Performance Evaluation focuses
on performance that is relevant to the Mission Capability subfactors, the
resulting performance confidence assessment is made at the factor level and
represents an overall evaluation of contractor performance.
(c) Where the relevant
performance record indicates performance problems, the FDIC will consider the
number and severity of the problems and the appropriateness and effectiveness
of any corrective actions taken (not just planned or promised). The FDIC may review more recent contracts or
performance evaluations to ensure corrective actions have been implemented and
to evaluate their effectiveness.
(d) The following criteria
will be used to determine relevancy of previous contracts:
HIGHLY RELEVANT - The
magnitude and the complexity of the effort on this contract are essentially the
same as the solicitation.
RELEVANT - Some dissimilarity in the magnitude or the
complexity of the effort on this contract exists, but it contains most of what
the solicitation requires.
NOT RELEVANT - Performance
on this contract contains little similarity to the performance required by this
solicitation.
Each offeror will receive
one of the ratings described below:
RATING DEFINITION
Exceptional/High Confidence
- Based on the offeror's performance record, essentially no uncertainty exists
that the offeror will successfully perform the required effort.
Very Good/Significant
Confidence - Based on the offeror's performance record, little uncertainty
exists that the offeror will successfully perform the required effort.
Satisfactory/Confidence -
Based on the offeror's performance record, some uncertainty exists that the
offeror will successfully perform the required effort.
Neutral/Unknown Confidence -
No performance record can be established.
Marginal/Little Confidence -
Based on the offeror's performance record, substantial uncertainty exists that
the offeror will successfully perform the required effort. Changes to the offeror's existing processes
may be necessary in order to achieve contract requirements.
Unsatisfactory/No Confidence
- Based on the offeror's performance record, extreme uncertainty exists that
the offeror will successfully perform the required effort.
(e) Discussions may be
conducted as necessary to provide the offeror an opportunity to address any
adverse past performance, or clarify the relevancy of the offeror's past
performance information or address minor clerical issues.
(f) Offerors without a
record of relevant past performance or for whom information on past
performance is not available will not be evaluated favorably or unfavorably on
past performance, but will receive a "Neutral/Unknown Confidence"
rating for the Past Performance factor.
(g) More recent and relevant
performance will have a greater impact on the Performance Confidence Assessment
than less recent or relevant effort. A
strong record of relevant past performance may be considered more
advantageous to the FDIC than a "Neutral/Unknown Confidence"
rating. Likewise, a more relevant past
performance record may receive a higher confidence rating and be considered
more favorably than a less relevant record of favorable performance.
(h) Past performance
information may be obtained through other Government systems, questionnaires tailored
to the circumstances of this acquisition, interviews with program managers and
contracting officers, and other sources known to the FDIC, including commercial
sources and any other sources deemed appropriate.
________________________________________________________________
7.3.2-21 Description/Specifications/Work Statement (October 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert clause 7.3.2-21, Description/ Specifications/Work Statement
(October 2008), in awards where either a SOW or a SOO and PWS
or another form of work statement is included as an attachment in Section J of
the award document.
Clause:
The name/description of the
goods or services being acquired is as follows:
_____________________________________________________________.
The specifications for and
the description of the work to be performed under this award are fully detailed
in either a Statement of Work (SOW) or a Statement of Objective (SOO) coupled
with a Performance Work Statement (PWS), which is included as an attachment in
Section J of this award document.
________________________________________________________________
7.3.2-22 Evaluation of Pricing (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.2-22, Evaluation of
Pricing, in all solicitations. The
provision may be tailored by the Contracting Officer to accommodate the
contract type and pricing arrangement.
Provision:
Price proposals will be
evaluated with respect to completeness, reasonableness, and realism. The Contracting
Officer may also evaluate the Overall Evaluated Price (OEP) for each
offeror.
Completeness. Offerors must submit their
proposed prices in accordance with the Pricing Schedule. Offerors must submit fully loaded labor
rates. Offers failing to propose a price
for all mandatory labor categories may receive no further consideration and may
be eliminated.
Reasonableness. FDIC will
evaluate prices for labor rates using one or more of the following
techniques.
(a) Comparing
the proposed prices to those of other offerors.
(b) Comparing
the proposed prices to FDIC's independent estimate and those in other FDIC
contracts.
(c) Comparing
the proposed prices to the prices in the company's GSA Schedule or
commercial price list.
Prices that are extreme (high or low) may be judged
unreasonable.
Realism. Labor rates that do not reflect a reasonable
compensation for the skill required in a labor category will be considered
unrealistic.
Overall Evaluated Price (OEP): The OEP will
be computed based on the total of the following:
(a) The
offeror's proposed labor rates for each labor category multiplied by the number
of labor hours.
(b) The FDIC-reimbursed travel costs.
________________________________________________________________
7.3.2-23 Evaluation of Financial Capability
(July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.2-23, Evaluation of
Financial Capability in solicitations for awards over $1,000,000.
Provision:
The FDIC will evaluate the
financial capability of the potential awardee(s) on a "pass/fail"
basis.
________________________________________________________________
7.3.2-24 Technical Approach (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-24, Technical
Approach, in solicitations when the submission of a technical approach is
required (Use in conjunction with the provision Mission Capability – Proposal Instructions.).
Provision:
(a) The offeror must provide a comprehensive and
complete written technical approach. The technical approach must demonstrate
the offeror's understanding of the requirement and describe the methodology by
which the offeror will successfully accomplish the requirements stated in the
Statement of Objectives/Statement of Work. The
technical approach must, at a minimum, include the following:
(1)
(2)
(3)
[CONTRACTING OFFICER MUST
INCLUDE/LIST ALL PERTINENT ELEMENTS TO BE USED IN THE EVALUATION OF OFFERORS
PROPOSAL]
[IF FDIC WILL EVALUATE AN
OFFEROR'S EXPERIENCE, ADD THE FOLLOWING:]
(b) If the proposed technical approach is similar
to that used successfully by the offeror in performing previous services, which
are similar in size and scope to those required in this solicitation, describe
the experience and how it supports the mission capability of this effort.
________________________________________________________________
7.3.2-25 Management Plan (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-25, Management
Plan, in solicitations when the submission of a management plan is
required. (Use in conjunction with the provision Mission Capability – Proposal Instructions.).
Provision:
(a) The offeror must provide a comprehensive and
complete written management plan for managing the project that clearly provides
a practical, low-risk approach and includes all of the following:
(1)
(2)
(3)
[CONTRACTING OFFICER MUST
INCLUDE/LIST ALL PERTINENT ELEMENTS TO BE USED IN THE EVALUATION OF OFFERORS
PROPOSAL]
[IF FDIC WILL EVALUATE AN
OFFERORS EXPERIENCE, ADD THE FOLLOWING:]
(b) If the proposed management plan is similar to
that used successfully by the offeror in performing previous services, which
are similar in size and scope to those required in this solicitation, describe
the experience and how it supports the mission capability of this effort.
________________________________________________________________
7.3.2-26 Key Personnel (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-26, Key Personnel, in solicitations when information on Key Personnel
is required. (Use in conjunction with the provision Mission Capability – Proposal Instructions.).
Provision:
The offeror must identify
and demonstrate that proposed key personnel possess the
necessary experience and qualifications.
The offeror must provide resumes for each key personnel. Each resume must not exceed 2 pages in
length. Each resume must include the
following information:
(1) General Information (name/title)
(2) Education
(3) Experience
(4) Accreditations
(memberships/professional licenses)
________________________________________________________________
7.3.2-27 Oral Presentation (July 2008)
Prescription:
Per PGI 3.112 and PGI 3.218,
insert provision 7.3.2-27, Oral
Presentation, in solicitations in conjunction with 7.3.2-10 General Proposal Instructions – Oral
Presentation when proposal evaluations will include the use of oral
presentations.
Provision:
(a) After the submission of proposals, eligible
offerors must make an oral presentation of the
technical aspects of their proposals to the FDIC Technical Evaluation Panel and
Contracting Officer, and participate in a question and answer session. Offerors
must expect probing questions as to their understanding of the requirement and
capabilities. Oral presentations will be evaluated as described in
Section M. THE PRESENTATION OF
INFORMATION ABOUT PRICING IS NOT PERMITTED DURING EITHER THE ORAL PRESENTATION
OR THE QUESTION AND ANSWER SESSION.
(b) With the offeror's proposal, the offeror must
submit an electronic file (on CD) of the oral presentation slides and
______(__) paper copy sets of the presentation.
Offeror must use PowerPoint (.ppt) or a similar program to provide
visual support for its presentation. There is no limit on the number of slides
that an offeror may use. However, when
reviewing and evaluating the oral presentations, FDIC will not evaluate any
slide that was not projected and fully addressed during the presentation. The production and use of an excessive number
of or overly elaborate slides may be considered in the evaluation process.
(c) FDIC will not accept any change to the oral
presentation briefing
slides after the due date for proposal submission. However, while making the oral presentation,
the offeror may expand on the information contained in the briefing slides. The FDIC will not discuss an offeror’s
strengths or weaknesses and will not conduct negotiations during the oral
presentation. Statements made by the
offeror during the oral presentation will not become a part of any contract
resulting from this solicitation unless the FDIC and offeror agree to make it a
part of the contract.
(d) The following topics must be covered in the
oral presentation:
(1)
(2)
(3)
(e) The presentation must be given by key
personnel or senior
members of the team being proposed to manage the contract. The majority of the presentation must be
given by the individual who will personally direct and supervise performance
and will have complete operational responsibility. However, the offeror may have other personnel
conduct parts of the presentation related to their area of expertise. The number of presenters must be held to a
minimum and all must be individuals who will perform under the contract.
(f) The oral presentation, excluding the question and answer period, will be
limited to _____ (__) minutes.
Following the oral presentation, there will be a short recess to be
followed by a _____ (__) minute question and answer session. During the question and answer session, FDIC
may request clarification or elaboration
of any points addressed in the oral presentation for the purpose of clarifying
areas of the offeror’s response which are unclear or not adequately supported
or understood. The offeror is not
entitled to ask FDIC questions during the oral presentation or question and
answer period.
(g) Oral presentations are expected to occur
approximately _______________ ( )
calendar days after the closing date of this solicitation. The order in which
oral presentations will be made will be randomly determined by the Contracting
Officer. The Offeror will receive an advance notice, at least _______ (__)
calendar days prior to the oral presentation date,
identifying the offeror’s scheduled date, time and location for the oral
presentation. The offeror must confirm the receipt of the notification for the
oral presentation to the Contracting Officer and must include a list of names
and titles for all presenters and attendees.
The offeror’s point of contact for the presentation, including telephone
number, must also be included in the confirmation. FDIC may not be able to accommodate a schedule
change requested by an offeror for its oral presentation and may proceed with
the source selection process without hearing the offeror’s oral
presentation. It is within the
Contracting Officer’s discretion to reschedule any offeror’s presentation.
(h) At the start of the oral presentation, the Contracting Officer will provide the offeror
with the oral presentation CD that was submitted with the proposal, which the
offeror must use for the presentation.
The offeror will have access to an overhead projector and a podium. The offeror may not use any other media, such
as a chalk board, white board, or flip-chart.
(i) Offeror may not record its presentation using
audio or videotape or any other method/medium.
FDIC reserves the right to videotape or otherwise record the
presentation, including question and answer session. Copies of videotaped presentations or other
recordings will not be made available to individual offerors.
(j) The actual facilities that will be used for
the oral presentation, or facilities similar to them, will be made
available to offerors for a 20-minute inspection, at a date to be determined by the Contracting
Officer. An offeror must make a written
request to the Contracting Officer to view the facilities, if it desires to
inspect them prior to the oral presentation.
________________________________________________________________
7.3.2-28 Late Proposals,
Modifications of Proposals, and Withdrawal of Proposals (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-28, Late Proposals,
Modifications of Proposals, and Withdrawals of Proposals, in all solicitations.
Provision:
Any
proposal or modification of a proposal, including Best and Final Offers, received after the date and time specified in the solicitation for
submission to the FDIC, will not be considered, unless it is received before
award is made and the Contracting Officer determines that accepting the late offer
would not unduly delay the acquisition and:
(a) It was sent either by
commercial carrier or by U.S. Postal Service registered or
certified mail not later than the fifth (5th) calendar day prior to the date
specified in Block 8 (e.g., an offer due by the twentieth (20th) of the month
must have been mailed on the fifteenth (15th) or earlier); or
(b) In the case of receipt
after the date and time specified in in the solicitation, the FDIC determines
that the late receipt was due solely to mishandling by the FDIC after receipt
at the FDIC; or
(c) It was the only proposal
received; or
(d) It offers significant
price or technical advantages to the FDIC.
(e) The only acceptable
evidence to establish:
(1) The date of mailing of a late
proposal or a
modification is a shipping label from a commercial carrier, the U.S. Postal
Service registered or
certified mail postmark on the envelope or wrapper, or the original receipt from
the U.S. Postal Service. If there is not
a legible date, then the proposal or modification shall be deemed to have been
mailed late.
(2) The time of receipt at the FDIC
office issuing this RFP is either the
time and date stamp on the proposal wrapper or other documentary evidence of
receipt provided by the FDIC office.
(f) Proposals may be
withdrawn by written or facsimile notice received by FDIC any time prior to
award. Proposals may be withdrawn in
person by the offeror or an authorized representative, as well.
________________________________________________________________
7.3.2-29 Award - Best Value (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-29, Award - Best
Value, in all solicitations in which award is based on best value.
Provision:
FDIC will base the award on
an integrated assessment of the evaluation factors and sub-factors. FDIC has the sole discretion to determine
which proposal(s)
represents the best value to the
FDIC. A technically acceptable offer
other than the one with the lowest-evaluated price may be awarded the contract.
________________________________________________________________
7.3.2-30 Rejecting Proposals/Waiving
Informalities (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-30, Rejecting
Proposals/Waiving Informalities, in all solicitations.
Provisions:
The FDIC may reject any or
all proposals if it is in the best interest of the FDIC to do so. In awarding the contract, the FDIC
Contracting Officer may waive minor informalities and irregularities in
proposals it receives. The Contracting
Officer has sole discretion to determine what constitutes minor informalities
and irregularities.
________________________________________________________________
7.3.2-31 Pre-Award Site Visit (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-31, Pre-Award Site
Visit, in solicitations where the Contracting Officer has
decided a pre-award site-visit may be conducted.
Provision:
A pre-award site visit and survey of
the offeror’s site or sites may be conducted to verify the security of the
offeror’s facility and validate the offeror’s ability to perform in accordance
with its proposal.
________________________________________________________________
7.3.2-32 Compliance with Presidential $1 Coin
Act of 2005 (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-32, Compliance with
Presidential $1 Coin Act of 2005, in awards where the Contractor is
operating a business on Federal premises.
Clause:
The Contractor will ensure
full compliance with the Presidential $1 Coin Act, Public Law 109-145. By
January 1, 2008, any contractor operating a business on Federal premises must
provide the capability for customers to use $1 coins in business operations
that involve currency and coin, including vending machines, and must display
signage noting this capability. These business operations must be capable of
accepting and dispensing $1 coins, either through person-to-person transactions
or through automated means.
________________________________________________________________
7.3.2-33 Independent Contractors (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-33, Independent
Contractors, in all awards.
Clause:
The FDIC retains Contractor
as an independent contractor for the sole purpose of performing the services or
providing the goods described in this contract.
If subcontracting is permitted, the use of the term “Contractor” herein
refers to both the Contractor and all Subcontractors at all levels. Contractor must ensure that all
Subcontractors adhere to all of the terms and conditions of this contract that
have flow-down requirements.
_______________________________________________________________
7.3.2-34 Duty to Deliver or Perform (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-34, Duty to Deliver
or Perform, in all awards.
Clause:
Contractor agrees to perform
the services or provide the goods, in accordance with the terms and conditions
set forth herein and in any attachments to the contract.
________________________________________________________________
7.3.2-35 Calendar Days (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-35, Calendar Days,
in all awards.
Clause:
Unless specifically provided
otherwise in this contract, the term "days" used anywhere in this
contract means calendar days.
________________________________________________________________
7.3.2-36 Task Order (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-36, Task Order,
in all BOAs or RBOAs .
Contracting Officer must choose a method for TO awards.
Clause:
At any time during the
Period of Performance, the Contracting Officer may send to Contractor, and any
other Contractors awarded this [BOA] [RBOA] a Request for Task Order Proposal (the "Request")
describing the nature of one or more specific tasks, the structure for
Contractor's offer and any other information relating to the task. Task orders
under this Agreement will be awarded based using the following method(s):
[CHOOSE METHOD FOR AWARD OF
TASK ORDERS]
Rotational: Contractors
will be placed in a queue established on the basis of their price-fee
proposals. The queue will list contractors from lowest to highest price-fee
with the lowest price-fee contractor listed first. Task orders will be issued
on a rotational basis beginning with the first contractor in the queue. This
method will be the primary method used to award task orders.
Direct Award: FDIC reserves
the right to issue a task order directly, outside of any rotation. A contractor
receiving a direct award will be placed at the end of the queue for the next
rotational award.
Competition: FDIC may compete the award of a particular
task order among all contractors holding this Agreement. Both price-fee and
technical capability will be evaluated. A contractor awarded a task order
through competition will be placed at the end of the queue for the next
rotational award.
If Contractor wishes to offer
its goods or services for the task, it must deliver an offer pursuant to the
terms of the Request. Based on the
offers received, the FDIC may select one or more contractors to perform the
tasks. The task order must be executed
by Contractor and the FDIC Contracting Officer after which there will exist a
binding obligation between Contractor and the FDIC under the terms of the
Agreement and the task order for delivery of the goods or services described
therein. The task order format, an
example of which is set forth as Attachment [ ] to this Agreement, may
change during the period of performance of this Agreement.
________________________________________________________________
7.3.2-37 Audit of Records (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-37, Audit of Records,
in all awards that exceed $100,000.
Clause:
(a) Audit and Inspection Rights. The FDIC, through its Contracting Officer or
his designated representative(s), has the right to audit and examine
Contractor’s records and inspect its facilities. The scope of these rights is described below.
(b) Examination of Costs.
Contractor is required to maintain sufficiently detailed records of the costs
it incurs in performing this contract
The FDIC has the right to audit and examine Contractor’s books and
records, and its accounting procedures
and practices, regardless of their form (e.g., machine readable media) or type
(e.g., data bases, applications software, data base management software,). The FDIC has the right to inspect, at
reasonable times, the facilities used by Contractor during performance of the
contract.
(c) Reports. If Contractor is required to furnish cost,
funding or performance reports, the FDIC has the right to audit and examine
Contractor’s books, records, other documents and supporting materials to
evaluate (1) the data underlying the reports and (2) the effectiveness of
Contractor's policies and procedures to produce data compatible with the
objectives of these reports.
(d) Comptroller
General.
(1) The Comptroller General of the United
States, or his authorized representative, shall have access to and the right to
examine any of the contractor’s directly pertinent records involving
transactions related to this contract or a subcontract hereunder for a period
of three (3) years following final payment under the contract.
(2) The period of access and
examination is automatically extended for records relating to claims or
litigation arising from the performance of this contract, or costs and expenses
of this contract to which the Comptroller General has taken exception, and
continues until all claims, litigation, appeals or exceptions
are resolved.
(3) This paragraph may not be construed
to require contractors or subcontractors to create or maintain any record that
the contractor or subcontractor does not maintain in ordinary course of
business or pursuant to a provision of law.
(e) Retention
Requirement. Contractor must retain the
materials described in paragraphs (b) and (c) above for three (3) years
following final payment under this contract, or for any longer period required
by statute or another clause in this contract.
Contractor must make the materials available to the FDIC for audit,
examination and reproduction, at reasonable times during the retention period.
Contractor must also provide the FDIC with working space at its facilities to
conduct the audit and examination.
If this contract is
terminated, completely or partially, Contractor must maintain the materials
described in subparagraphs (b) and (c) above for three (3) years following any
final settlement Contractor
must maintain, and make available to the FDIC, records relating to appeals under the
"Disputes" clause of this contract, or to claims or
litigation arising under or from this contract, until the appeals, claims or litigation are resolved.
(f) Computer Data. Contractor may transfer computer data in
machine readable form from one reliable computer medium to another. Contractor's computer data retention and
transfer procedures must maintain the integrity, reliability and security of
the original data. Contractor's choice
of media affects neither Contractor's obligations nor the FDIC's rights under
this clause.
(g) Subcontracts. Contractor is required to insert a clause
containing all the terms of this clause, including this subparagraph (g) -
altered as necessary to identify properly the contracting parties and the
Contracting Officer under the FDIC prime contract - in all subcontracts under
this contract that exceed $100,000.
________________________________________________________________
7.3.2-38 Scope of Services – Task Orders (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-38, Scope of Service
– Task Orders, in task order awards
Clause:
Contractor must . . .
[Describe the work to be performed or goods to be provided. Include the specific details of the work,
level of the firm's responsibility, expected staffing projections, level of
FDIC oversight, etc.].
________________________________________________________________
7.3.2-39 Incorporation of Terms and Conditions –
Task Orders/Delivery Orders (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-39, Incorporation of
Terms and Conditions – Task Orders/Delivery Orders, in all task orders and delivery orders.
Clause:
All terms and conditions of
Agreement No. ______________ [or FSS Contract No.
________________] are hereby incorporated by reference as if specifically set
forth herein, unless otherwise modified.
In case of a conflict, the order of precedence is the Agreement, the
task order and the Contractor's proposal.
________________________________________________________________
7.3.2.40 Change in Physical Location (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-40, Change in
Physical Location, in all awards.
Clause:
Contractor is required to
notify the FDIC Contracting Officer and Oversight Manager in writing of any
change in Contractor’s physical location for the Place of Performance of this
contract. A “change” includes, without
limitation, any facilities relocation and/or reconstruction activity or any
other planned event that may have an impact on the continued operation of
contractor-operated network equipment located on Contractor’s premises. The
notification must be made at least thirty (30) days in advance of a change to
allow the FDIC time to take appropriate action.
________________________________________________________________
7.3.2-41 FDIC Personnel (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-41, FDIC Personnel,
in all awards
Clause:
(a) FDIC Oversight Manager. The Oversight Manager is the person
designated in writing by the Contracting Officer to represent the FDIC for the
purpose of monitoring technical performance and accepting goods or
services. The Oversight Manager is not
authorized to issue any instructions or directions which effect any substantive
change in this
contract, including, but not limited to, an increase or decrease in the price
of this contract, or a change in the delivery date(s) or Period of
Performance. Specific areas of delegated
authority are more particularly defined in the Oversight Manager Appointment
Memorandum. The Oversight Manager is
______________________
(b) FDIC Contracting Officer. The Contracting Officer is the person with
FDIC-delegated authority to enter into, modify, administer, and terminate
contracts and orders. The Contracting
Officer is ______________________.
_______________________________________________________________
7.3.2-42 Contractor Personnel (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-42, Contractor
Personnel, in all awards
Clause:
Any
individual who is performing any part of the work under this award, and who is
a direct employee of Contractor is considered Contractor Personnel
("Contractor Personnel").
However, self-employed individuals, other independent contractors,
contract laborers, individuals who are employees of a temporary
employment/personnel agency, and the like, who perform any part of the work
under this award, do not come within the definition of Contractor Personnel and
are either subcontractors or employees of subcontractors.
7.3.2-43 Key Personnel (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-43, Key Personnel, in all awards in which the Program Office has
determined key personnel are required.
Clause:
(a) The following key personnel are essential
to the proper performance of Contractor's duties under this contract:
Name Title
_________________ ______________________
_________________ ______________________
_________________ ______________________
_________________ ______________________
(b) Contractor must make the above named key
personnel available for
performance under this contract as long as such persons are employed by
Contractor or its related entities. All
key personnel changes must be authorized in writing by the FDIC Contracting
Officer prior to the new key personnel beginning work. Contractor must give a minimum of a 14-day
advance written notice to the FDIC Contracting Officer of any proposed
substitutions of key personnel. The
notice must describe the reason for the proposed change; give the name of the
proposed substitute individual with a description of his educational and
professional background; and include a completed background investigation questionnaire.
The determination of acceptability of proposed substitute personnel is
in the sole discretion of the FDIC.
________________________________________________________________
7.3.2-44 Representations of Contractor (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-44, Representations
of Contractor, in awards over $100,000.
Clause:
Contractor represents as
follows:
(a) The execution, delivery
and performance of this contract have been duly authorized by all necessary
corporate or partnership actions of Contractor.
(b) Contractor will have in
its possession all necessary licenses, permits and approvals required to
execute, deliver and perform its duties under this contract no later than ten
(10) days after the execution of this contract; Contractor will maintain the
qualifications needed to do business imposed by all jurisdictions where
Contractor will execute, deliver and perform its duties under this contract. Contractor must deliver copies of all
licenses, permits, approvals and other qualifications to the FDIC Contracting
Officer not later than fifteen (15) days after the execution of this contract.
(c) At the time of execution
of this contract, there has been no change to any answer contained within the
representations and certifications submitted to the FDIC with its
proposal. Contractor will notify the
FDIC Contracting Officer, in writing, of any change to any representation or
certification previously given by it or any person performing services under
this contract, within ten (10) days after
Contractor discovers, learns of or is otherwise notified of the change.
________________________________________________________________
7.3.2-45 Preamble to Contractor Representations and
Certifications (November 2009)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-45, Preamble to
Contractor Representations and Certifications, in solicitations for awards
over $100,000.
Provision:
Contractor is subject to the
provisions of 12 Code of Federal Regulations Chapter III, Part 366, which may
be found at: http://www.fdic.gov/buying/goods/acquisition/index.html. The representations and certifications set
out in this solicitation must be completed by an official authorized to bind
the contractor, and must be returned with its proposal. These representations
and certifications concern matters within the jurisdiction of an agency of the
United States, and the making of a false, fictitious, or fraudulent
certification may render the contractor and certifying official subject to
prosecution under 18 United States Code §§ 1001, 1007, and 1014. (For purposes
of these certifications, the Federal Deposit Insurance Corporation (FDIC) is
considered an agency of the United States only with respect to its rights and
remedies under Title 18
of the United States Code). In
addition, any misrepresentations or false, fictitious, or fraudulent
certifications may render the contractor and the certifying official subject to
administrative remedies available to the FDIC, which include suspension and/or
exclusion from contracting, or termination
of the contract, (12 CFR 366.16; 12 CFR Part 367).
The offeror must provide
notice to the Contracting Officer within 10 business days of discovery or at
any time prior to contract award, if the contractor learns that one or more of
its representations and certifications were erroneous when submitted or have
become erroneous by reason of changed circumstances.
The signature of the offeror
on the face page of this solicitation constitutes the making of the applicable
representations and certifications. The
applicable representations and certifications will be incorporated by reference
into any contract awarded to the offeror under this solicitation.
PRIVACY ACT STATEMENT
Collection of this
information is authorized by the Federal Deposit Insurance Act, 12 U.S.C. §§1819, 1821 and Executive Order 9397. This information will be used primarily to
examine a contractor’s eligibility for potential
FDIC contract award; the information provided may be disclosed to licensing
authorities by the FDIC in examining the contractor’s eligibility.
Information may also be
disclosed to appropriate Federal, state or local agencies for law enforcement
purposes when a violation or possible violation of a civil or criminal law is
apparent; to individuals involved in judicial or administrative proceedings;
and to a Congressional office in response to an inquiry made at the
individual’s request. Information may
also be disclosed in accordance with the other routine uses set forth in the
FDIC’s Financial Information System 30-64-0012.
Furnishing the requested information is voluntary. However, failure to furnish all requested
information may preclude you from receiving an FDIC contract.
________________________________________________________________
7.3.2-46 Integrity and Fitness Representations and
Certifications (November 2009)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-46, Integrity and
Fitness Representations and Certifications, in solicitations for awards for
services over $100,000.
Provision:
Answer all questions and
fill in the information asked for.
I.
IDENTIFYING INFORMATION:
(a) Type of Organization
The contractor operates as
[ ] an individual, [ ] a State or local agency, [ ] a partnership, [ ] a joint venture, [ ] a nonprofit organization, [ ] an educational institution, [ ] a corporation organized and existing under
the laws of the state of ____________________________.
(b) Parent Information
The contractor [ ] is [
] is not owned or controlled by a parent company. If it is, complete the blanks below and
include an organizational chart of parent company:
NAME OF PARENT COMPANY ____________________________
DATA UNIVERSAL NUMBERING
SYSTEM (DUNS) NUMBER ____________________________
ADDRESS
______________________________________________
CITY ________________________ STATE
_________________
ZIP CODE ____________________
(c) Joint Venture
Information
The contractor [ ] is [
] is not a joint venture. If contractor is a joint venture, complete the
information below.
NAME OF JOINT VENTURE
PARTNER ____________________________
JV PARTNER’S DUNS NUMBER
__________________________________
JV’S DUNS NUMBER (If different) __________________________________
ADDRESS
____________________________________________________
CITY ________________________ STATE
_________________
ZIP CODE ____________________
Has a Joint Venture Agreement been
executed? [ ] Yes, [ ] No
(If yes, attach Agreement.)
(d) Subcontractor
Information
The
contractor [ ] will [ ] will not use subcontractors in the
performance of the contract. If it will, complete the information below.
NAME OF SUBCONTRACTOR ____________________________
DUNS NUMBER _________________
ADDRESS
______________________________________________
CITY ________________________ STATE
_________________
ZIP CODE ____________________
NAME OF SUBCONTRACTOR ____________________________
DUNS NUMBER _________________
ADDRESS
______________________________________________
CITY ________________________ STATE
_________________
ZIP CODE ____________________
NAME OF SUBCONTRACTOR ____________________________
DUNS NUMBER _________________
ADDRESS
______________________________________________
CITY ________________________ STATE
_________________
ZIP CODE ____________________
(If additional space is
necessary, attach separate sheets.)
II. PART
366 INTEGRITY AND FITNESS
a) Unique Terms
Unique terms used in these
representations and certifications are described in 12 CFR Part § 366 as
follows:
(1) Conflict of interest
occurs when a contractor, any entity that owns or controls a contractor, or any
entity the contractor owns or controls:
(i) Has a personal, business, or financial
interest or relationship that relates to the services performed under the
contract; or
(ii) Is a party to litigation against the FDIC, or
represents a party that is; or
(iii) Submits an offer to acquire an asset from
FDIC for which services were performed during the past three years, unless the
contract allows for the acquisition.
(2) Ownership or control:
(i) The president or chief executive officer has
control of an organization.
(ii) A partner in a small law firm has ownership or
control. A partner in a large
multinational law firm may not have ownership or control.
(iii) A general partner of a limited partnership
has control. Ownership or control exists
when there is an interest of twenty five percent (25%) or more in a limited
partnership.
(iv) Ownership or control is
evidenced by the:
1.
Power to vote, directly or indirectly, 25% or more interest of any class
of voting stock of a company;
2.
Ability to direct in any manner the election of a majority of a
company’s directors or trustees; or
3.
Ability to exercise a controlling influence over the company’s
management and policies.
(3) Default on a material
obligation occurs when a loan or advance with an outstanding balance of more
than $50,000 is or was delinquent for ninety (90) days or more.
(4) FDIC-insured depository
institution includes any bank or savings association the deposits of which are
insured by the FDIC.
(5) Management official
includes any shareholder, employee, or partner who controls a company and any
individual who directs the day-to-day operations of a company. With respect to a partnership whose
management committee or executive committee has responsibility for the
day-to-day operations of the partnership, management official includes a member
of such a committee but, if no such committee exists, management official
includes each of the general partners.
(6) Pattern or practice of
defalcation regarding
obligations:
A pattern or practice of
defalcation under 12 CFR
section 366.3(c) exists when the contractor, any person that owns or controls
the contractor, or any entity the contractor owns or controls has a legal
responsibility for the payment on at least two obligations that are:
(i) To one or more FDIC-insured depository
institutions;
(ii) More than ninety (90) days delinquent in the
payment of principal, interest, or a combination thereof; and
(iii) More than $50,000 each.
(7) Person includes an
individual, corporation, partnership or other entity with a legally independent
existence.
(8) Substantial loss to
Federal deposit insurance fund:
A substantial loss to a
Federal deposit insurance fund under 12 CFR section 366.3(d) exists when the
contractor, or any person that owns or controls the contractor, or any entity
the contractor owns or controls has:
(i) An obligation to us that is delinquent for
ninety (90) days or more and on which there is an outstanding balance of
principal, interest, or a combination thereof of more than $50,000;
(ii) An unpaid final judgment in our favor that is
in excess of $50,000, regardless of whether it becomes discharged in whole or
in part in a bankruptcy proceeding;
(iii) A deficiency balance following foreclosure of
collateral on an obligation owed to us that is in excess of $50,000, regardless
of whether it becomes discharged in whole or in part in a bankruptcy
proceeding; or
(iv) A loss to us that is in excess of $50,000
that we report on IRS Form 1099-C, Information Reporting for Discharge of
Indebtedness.
(b) Representations as to Eligibility (12 CFR
366.3)
To the best of the contractor’s knowledge:
(1) Has the contractor been
convicted of a felony?
[ ] Yes [
] No (If yes, explain below.)
(2) Has the contractor been
removed from or prohibited from participating in the affairs of an FDIC-insured
depository institution because of a Federal banking agency action?
[ ]
Yes [ ] No
(If yes, explain below.)
(3) Has the contractor
demonstrated a pattern or practice of defalcation regarding
obligations?
[ [ Yes
[ ] No (If yes, explain below.)
(4) Is the contractor
responsible for a substantial loss to a Federal deposit insurance fund?
[ ] Yes
[ ] No (if yes, explain below.)
As used herein, “pattern or
practice of defalcation” is described in 12 CFR 366.4 and “a substantial
loss to a Federal deposit insurance fund” is
described in 12 CFR 366.5 both are reproduced in Part II(a) of these
representations and certifications for your convenience.
(c) Representations as to Conflicts of Interest
(12 CFR 366.9)
Answers to the following four
(4) questions regarding conflicts of interest are provided for the contractor,
its officers, directors, any management officials, any persons that own or
control you or you own or control; and any employees, agents, or subcontractors
who will perform services under the contract:
(1) Do any such person(s)
have a personal, business, or financial interest or relationship that relates
to the services you perform under the contract?
[ ] Yes
[ ] No (if yes, explain below.)
(2) Are any such person(s) a
party to litigation against us, or represent a party that is?
[ ] Yes [
] No (if yes, explain below.)
(3) Are any such person(s)
submitting an offer to acquire an asset from us for which services were
performed during the past three years, unless the contract allows for the
acquisition?
[ ] Yes [
] No (if yes, explain below.)
(4) Does the contractor
recognize that it generally may not later purchase assets it will manage under
this contract and performance of this contract may disqualify the contractor
from follow-up work where information obtained in the performance of the
contract gives the contractor an unfair competitive advantage?
[ ] Yes [
] No (if no, explain below.)
If the contractor cannot
certify that there are no conflicts of interest, it may describe the
circumstances of any conflicts and request a waiver in accordance with CFR
366.10 or propose a method for the elimination of the conflict.
(d) Representations as to Defaults (CFR
366.14(b))
Has the contractor or any
company under the contractor’s control defaulted on a material obligation
during the five (5) years proceeding the submission of this offer?
[ ] Yes
[ ] No (If
yes, attach a description of all such instances.)
A “default on a material
obligation” occurs when a loan or advance with an outstanding balance of more
than $50,000 is or was delinquent for ninety (90) days or more.
(e) Representations as to Employees and
Subcontractors (CFR 366.14(d))
Does the contractor agree
that without a waiver, it will employ only persons who meet the requirements of
12 CFR Part 366 to perform
services on behalf of FDIC?
[ ] Yes
[ ] No (If no, explain below.)
III. RETENTION OF INFORMATION
________________________________________________________________
7.3.2-47 Additional Information - Representations,
Certifications and Other Statements of the Offeror (July 2008)
Prescription:
Per PGI 3.112 or 3.218,
insert provision 7.3.2-47, Additional
Information - Representations, Certifications and Other Statements of the
Offeror, in solicitations for
awards that will exceed $100,000.
Provision:
The offeror must complete
the Section K, Representations, Certifications and Other Statements of the
Offeror, and submit them with its proposal in a section entitled
"Additional Information". Do
not retype the Representations and Certifications; simply complete and return
the signed original and one copy. Should
there be any material change that affects the accuracy of the information in
the Representations and Certifications after they have been submitted, the
offeror must file new Representations and Certifications with the FDIC.
The offeror (prime contractor) is responsible for:
-
Obtaining
the Section K clause 7.3.2-46 Integrity
and Fitness Representations and Certifications from its subcontractors
with subcontracts valued at $100,000 or more;
-
Reviewing
them for accuracy and completeness;
-
Ensuring
no subcontracts are issued to third parties who do not meet the requirements
addressed in the representations and certifications;
-
Referring
any conflicts revealed by the certifications or that arise during the course of
performing work to the Contracting Officer;
-
Maintaining
the representations and certifications; and
-
Making the
representations and certifications available to the Contracting Officer, upon
request.
________________________________________________________________
7.3.2-48 Certification of Registration in Central
Contractor Registration (CCR) (February 2010)
Prescription:
Per PGI 3.112 or PGI 3.218, insert provision
7.3.2-48, Certification of Registration
in Central Contractor Registration (CCR), in solicitations for awards over
$100,000.
Provision:
(a) The
offeror certifies that it is registered in the Central Contractor Registration
(CCR) at www.CCR.gov,
and that all information in CCR is correct, including its socio-economic
status.
[ ] Yes
[ ] No
An offeror that marks “No” must also complete the
certification in paragraph (b).
(b) The
offeror certifies that it is in the process of registering in the Central
Contractor Registration (CCR) at www.CCR.gov, and will enter correct
information in CCR, including its socio-economic status.
[ ] Yes
[ ] No
(c) The socio-economic groups in CCR are as follows:
Women-Owned Business
Minority-Owned Business
Small Disadvantaged Business
For Minority-Owned Businesses, the ethnic/racial
categories are as follows:
Asian-Pacific American
Owned
Subcontinent Asian
(Asian-Indian) American Owned
Black American Owned
Hispanic American Owned
Native American Owned
Other than one of the
preceding
________________________________________________________________
________________________________________________________________
7.3.2-50 Certificate of Independent Price Determination (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-50, Certificate of
Independent Price Determination, in solicitations for awards over $100,000.
Provision:
(a) The offer certifies
that:
(1) The prices in this
proposal have been arrived at independently, without, for the purposes of
restricting competition, any consultation, communication, or agreement with any
other offeror or competitor relating to
(I) those prices, (ii) the
intention to submit an offer or (iii) the methods or factors used to calculate
the prices offered;
(2) The prices in this
proposal have not been and will not be knowingly disclosed by the offeror,
directly or indirectly, to any other offeror or competitor before contract
award unless otherwise required by law; and
(3) No attempt has been made
or will be made by the offeror to induce any other concern to submit or not to
submit a proposal for the purpose of restricting competition.
(b) Each signature on the
proposal is considered to be a certification by the signatory that the
signatory:
(1) Is the person in the
offeror’s organization responsible within that organization for determining the
prices being offered in this proposal, and that the signatory has not
participated and will not participate in any action contrary to (a)(1) through
(a)(3) above, or
(2) (i) Has been authorized,
in writing, to act as agent for the following principals in certifying that
those principals have not participated, and will not participate in any action
contrary to subparagraphs (a)(1) through (a)(3) above
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
(insert full name of
person(s) in the offeror’s organization responsible for determining the prices
offered in this proposal, and the title of his or her position in the offeror’s
organization);
(ii) As an authorized agent,
certifies that the principals named in subdivision (b)(2)(i) above have not
participated, and will not participate, in any action contrary to subparagraphs
(a)(1) through (a)(3) above; and
(iii) As an agent, has not
personally participated, and will not participate, in any action contrary to
subparagraphs (a)(1) through (a)(3) above.
(c) A proposal will not be
considered for award where (a)(1), (a)(3) or (b) above has been deleted or
modified. If the offeror deleted or
modifies (a)(2) above, the offeror must furnish with its proposal a signed
statement setting forth in detail the circumstances of the disclosure.
________________________________________________________________
7.3.2-51 Contingent Fee Representation (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218,
insert provision 7.3.2-51, Contingent Fee
Representation, in solicitations for awards over $100,000. This certification is not required for the
acquisition of commercial items.
Provision:
The offeror represents that
except for full-time bona fide employees working solely for the offeror, the
offeror (a) [ ] has [ ] has not employed or retained any person or
company to solicit or obtain this contract; and (b) [ ] has [
] has not paid or agreed to pay any person or company employed or
retained to solicit or obtain this contract any commission, percentage,
brokerage, or other fee contingent upon or resulting from the award of this
contract. The offeror agrees to provide information relating to this
Representation as requested by the Contracting Officer when either (a) or (b)
herein is answered affirmatively. As used herein, “bona fide employee” means a
person employed by an offeror or contractor and subject to the offeror’s or the
contractor’s supervision and control as to time, place and manner of
performance, who neither exerts nor proposes to exert improper influence to
solicit or obtain FDIC contracts nor holds out as being able to obtain any FDIC
contract or contracts through improper influence.
________________________________________________________________
7.3.2-52 Equal Opportunity Certification (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-52, Equal
Opportunity Certification, in solicitations for awards over $100,000.
Provision:
The offeror represents that
--
(a) It [ ] has [ ] has not participated in a
previous contract or subcontract subject to the Equal Opportunity clause of
this solicitation;
(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.
The offeror also represents that --
(d) 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
(e) It [ ] has not previously had contracts
subject to the written affirmative action programs requirement of the rules and
regulations of the Secretary of Labor.
________________________________________________________________
7.3.2-53 Reserved
________________________________________________________________
7.3.2-54
Cooperation with the Office of Inspector General (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-54, Cooperation with the Office of Inspector General,
in all awards.
Clause:
Contractors must comply with
FDIC Circular 12000.1, Cooperation with the Office of Inspector General, which
is available at FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
________________________________________________________________
7.3.2-55 Certification and Disclosure Regarding
Payments to Influence Certain Federal Transactions (November 2009)
Prescription:
Per PGI 3.112 or PGI 3.218
insert provision 7.3.2-55, Certification
and Disclosure Regarding Payments to Influence Certain Federal Transactions,
in solicitations for awards over $100,000, when FDIC is acting in its corporate
capacity.
Provision:
(a) Definitions. As used in this provision—“Lobbying contact”
has the meaning provided at 2 U.S.C. §1602(8). The terms “agency,”
“influencing or attempting to influence,” “officer or employee of an agency,”
“person,” “reasonable compensation,” and “regularly employed” are defined in
clause 7.3.2-58 entitled “Limitation on Payments to Influence Certain Federal
Transactions”.
(b) Prohibition. The prohibition and
exceptions contained in clause 7.3.2-58
entitled “Limitation on Payments
to Influence Certain Federal Transactions” are hereby incorporated by reference
in this provision.
(c) Certification. The offeror, by signing
its offer, hereby certifies to the best of its knowledge and belief that no
Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress on its behalf in connection with the awarding of this
contract.
(d) Disclosure. If any registrants under the
Lobbying Disclosure Act of 1995 have made a lobbying contact on behalf of the
offeror with respect to this contract, the offeror shall complete and submit,
with its offer, OMB Standard Form LLL, Disclosure of Lobbying Activities, to
provide the name of the registrants. The offeror need not report regularly
employed officers or employees of the offeror to whom payments of reasonable
compensation were made.
(e) Penalty. Submission of this certification
and disclosure is a prerequisite for making or entering into this contract
imposed by 31 U.S.C. §1352. Any person who makes an expenditure prohibited
under this provision or who fails to file or amend the disclosure required 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.
________________________________________________________________
7.3.2-56 Task Assignment Procedures (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218 insert
clause 7.3.2-56, Task Assignment
Procedures, in contracts or task order when task assignments will be
used. The Contracting Officer may tailor
the clause, as necessary.
Clause:
Task
Assignment Procedures are as follows:
(a) For each
task assignment, the Contracting Officer will request a task assignment
proposal from the Contractor. The
request for task assignment proposal will include a description of the required
services and information such as background, scope, goals/objectives, Period of
Performance, constraints, etc. The request for task assignment proposal will
also contain the required proposal submission date. If necessary, the Contractor may meet with
FDIC to discuss the requirement and address any questions.
(b) The Contractor must submit its proposal to
the Contracting Officer and the Oversight Manager in accordance with the
instructions set forth in the request for task assignment proposal. The Contractor's task assignment proposal must
include:
1. For
labor-hour and time-and-material type task assignments, a total proposed dollar
amount for the task assignment, along with the labor categories, rates, hours,
and travel costs (if applicable) used to derive the amount;
2. For
firm-fixed-price type task assignments, a total dollar amount for the task
assignment, along with pricing data that demonstrates how the amount was
derived along with information to support reasonableness;
3. Timeframe, in terms of calendar days, required to
complete task assignment;
4. Resumes, for
each proposed personnel, which demonstrate the individual is qualified to
perform at the proposed labor category; and
5. Other information, as requested by the
Contracting Officer.
(c) The Contracting Officer may accept the
proposal as submitted or may conduct negotiations prior to award of the task
assignment. All task assignments must
contain a total Not-To-Exceed (NTE) ceiling amount.
(d) The Contractor must not begin work until the
task assignment has been incorporated into the contract or task order by
modification.
(e) Task assignments are anticipated to be
awarded within _________ calendar days after the request for task assignment
proposal is sent to the Contractor. Task
assignments for complex requirements may require additional time to finalize.
(f) The Contractor must submit separate
invoices for each task
assignment. When billing for task
assignment services, the Contractor must include on each invoice the Contract
or Task Order number, in addition to the task assignment number.
________________________________________________________________
7.3.2-57 Public Release of Contract Award and Advertising and Publicity Information (January 2011)
Prescription:
Per PGI 3.112 or PGI 3.218 insert clause 7.3.2-57, Public Release of Contract Award and Advertising and Publicity Information, in all awards.
Clause:
(a) The Contractor, its affiliates, agents or
subcontractors, and their respective employees shall not issue press releases
or provide other information to the public regarding any FDIC contract award.
(b) The
Contractor, its affiliates, agents or subcontractors, and their respective
employees shall not make statements to the media or issue press releases
regarding the goods or services provided under this Contract. Requests for
information from anyone representing themselves as working for, or on the
behalf of, a media or news organization must be directed to the Contracting
Officer, who will obtain appropriate approval from the FDIC Office of Public
Affairs at 202-898-6993.
(c) Advertising or publicity materials (including
the placement of information in its website):
(1) The Contractor may include a reference to
“FDIC” or “Federal Deposit Insurance Corporation” in a list of the Contractor’s
clients, along with a short, broad description of the goods or services
provided, such as “FDIC – IT Services” or “FDIC – Security Services”. In no event may any confidential information
regarding the details of the contract or the name of the financial institutions
where work is being performed be disclosed.
(2) Without the prior written approval from the
Contracting Officer, the Contractor shall not:
(i) issue or sponsor any advertising or publicity (including the placement of information in its website) that states or implies the FDIC endorses, recommends or prefers the Contractor’s goods or services. (ii) use the FDIC’s logo or other FDIC material or refer to the FDIC in its advertising and publicity materials (including its website).
All
requests for such approvals must be submitted to the Contracting Officer at
least 30 days prior to the scheduled release of advertising or publicity
materials. The Contracting Officer will coordinate with the FDIC Office of
Public Affairs and notify the Contractor of the final decision.
(d) The prohibitions addressed in the preceding
paragraphs also apply to information placed on social networks (Twitter,
Linkedin, Facebook, blogs, etc.).
(e) The Contractor agrees to include this clause in all its subcontracts under this contract.
________________________________________________________________
7.3.2-58 Limitation on Payment to Influence Certain
Federal Transactions (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-58, Limitation on
Payments to Influence Certain Federal Transactions, in awards over
$100,000, when FDIC is acting in its corporate capacity.
Clause:
(a) Application. Section 1352 of Title 31 of the United States
Code limits the use of appropriated funds to influence or attempt to influence
certain Federal contracting and financial transactions. 31 U.S.C. §1352 is incorporated by
reference. 31 U.S.C. §1352 is available at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
(b) Agreement and
Certification. Contractor agrees not to
make any payment prohibited by 31 U.S.C. §1352. As a prerequisite to entering into or making
this contract, Contractor has submitted its certification with respect to the
limitations in 31 U.S.C. §1352. Additionally, Contractor must collect
certifications from its subcontractors where the value of a subcontract exceeds
$100,000. Contractor is required to retain in its subcontract files all
certifications filed by its subcontractors.
(c) Prohibitions and
Exceptions. 31 U.S.C. §1352, among other
things, prohibits a recipient of a Federal contract from using appropriated
funds to pay 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 (hereafter “Covered Agency or
Congressional Party”) in connection with the award of a Federal contract or the
extension, continuation, renewal, amendment, or modification of a Federal
contract.
The prohibition of 31 U.S.C.
§1352 does not apply in the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or receiving a Federal
contract if the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
31 U.S.C. §1352 does not prohibit any
reasonable payment to a person in connection with, or any payment of reasonable
compensation to an officer or employee
of a person requesting or receiving, a Federal contract or an extension,
continuation, renewal, amendment, or modification of a Federal contract if the
payment is for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal or application for
that Federal contract or for meeting requirements imposed by law as a condition
for receiving that Federal contract.
(d) Disclosures. Contractor must file a Disclosure of Lobbying
Activities - OMB standard form
LLL - if Contractor has made or has agreed to make any payment using
non-appropriated funds (this includes profits from any Federal action covered
by 31 U.S.C. §1352), which would be prohibited by 31 U.S.C. §1352 if paid for
with appropriated funds.
Thereafter, Contractor must
file a Disclosure of Lobbying Activities at the end of each calendar quarter in
which there occurs any event that materially affects the accuracy of the
information in any disclosure previously filed.
An event that materially affects the accuracy of a prior disclosure
includes—
(1) A cumulative increase of $25,000 or
more in the amount paid or expected to be paid for influencing or attempting to
influence a covered Federal action;
(2) A change in the party influencing
or attempting to influence a covered Federal action; or
(3) A change in the Covered Agency or
Congressional Party contacted for purposes of influencing or attempting to
influence a covered Federal action.
Contractor must collect from
its subcontractors their Disclosure of Lobbying Activities forms where the
value of the subcontract exceeds $100,000.
Contractor is required to submit these disclosures to the Contracting
Officer at the end of the calendar quarter in which they are received by
Contractor.
(e) Penalties. (1) Any person who makes an expenditure
prohibited by 31 U.S.C. §1352 or who fails to file the disclosures required by
31 U.S.C. §1352 is subject to the substantial civil penalties provided for in
31 U.S.C. §1352. An imposition of a
civil penalty does not prevent the FDIC from seeking any other remedy that
might apply. (2) Contractor may rely without liability on the certifications
and disclosures filed by its subcontractors.
________________________________________________________________
7.3.2-59 Warranty Concerning Contingent Fees (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-59, Warranty Concerning Contingent Fees, in awards over $100,000 except for acquisition of
commercial items .
Clause:
(a) Contractor warrants that it has not employed
or retained any person or selling agency to solicit or secure this contract
under an agreement or understanding for a commission, percentage, brokerage, or
contingent fee. Contractor’s use of its
bona fide employees, or use of the bona fide established commercial or selling
agencies the Contractor maintains for the purpose of securing business, are
accepted.
(b) For breach of this warranty by Contractor,
the FDIC has the right to annul this Contract without liability or, in its
discretion, to deduct from the contract price or consideration the full amount
of any commission, percentage, brokerage, or contingent fee paid in violation
of the warranty.
________________________________________________________________
7.3.2-60 Anti-Kickback Procedures (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-60, Anti-Kickback
Procedures, in awards over $100,000.
Clause:
(a) The Anti-Kickback Act of
1986 applies to this contract. The text
of the Act is found at 41 U.S.C. §§ 51-58,
The Act provides substantial penalties, both criminal and civil, for
violation of the prohibitions against kickbacks.
(b) The Anti-Kickback Act of
1986 prohibits both the payment and the acceptance of kickbacks,
and the inclusion of the cost of kickbacks in the price of a contract. “Kickback” means any money, fee, commission,
credit, gift, gratuity, thing of value or compensation of any kind which is
provided, directly or indirectly, to any prime contractor, prime contractor employee, subcontractor or subcontractor
employee for the purpose of improperly obtaining or rewarding favorable
treatment in connection with a prime contract or in connection with a
subcontract relating to a prime contract.
(c) Contractor, as a prime
contractor (as defined in
41 U.S.C. §52), is required to establish and follow reasonable procedures
designed to prevent and detect violations of the Anti-Kickback Act of 1986
.This requirement applies only to contracts greater than $100,000, but excludes
contracts for the acquisition of commercial goods (as defined in
41 U.S.C. §403(12)).
When Contractor has
reasonable grounds to believe that a violation of the Anti-Kickback Act of 1986
may have occurred, Contractor must report the possible violation, promptly and
in writing, either to the Inspector General of the FDIC or to the Department of
Justice. Contractor must cooperate fully with any Federal agency investigating
a suspected violation of the Anti-Kickback Act of 1986.
(d) As a remedy for
violation of the Anti-Kickback Act of 1986, the Contracting Officer either may
(1) offset the amount of the kickback against any monies owed by the FDIC under
the prime contract or (2) direct the Contractor to withhold the amount of the
kickback from sums it owes a subcontractor.
The Contracting Officer may order that monies withheld under
subparagraph (2) be paid over to the FDIC, unless the FDIC has already offset
those monies under subparagraph (1).
Contractor is required to notify the Contracting Officer when the action
withholding a kickback
from monies owed a subcontractor is taken.
(e) Contractor is required
to incorporate the substance of this clause, with the exception of the first
sentence of subparagraph (c), in all subcontracts under this contract.
________________________________________________________________
7.3.2-61 Drug-Free Workplace (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-61, Drug-Free
Workplace, in all awards of any value to an individual, and in all other
awards over $100,000, except contracts for commercial items.
Clause:
(a) This clause applies to
all contracts where Contractor is an individual (as defined below) or to any
other contracts that exceed $100,000, except contracts for commercial items.
(b) For a contract where the
Contractor is an individual, Contractor agrees not to engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in the performance of this contract.
(c) For a contract exceeding
$100,000, Contractor agrees to make a good faith effort to maintain a drug-free
workplace. To accomplish this,
Contractor is required to:
(1) Publish a statement
(i) Notifying its employees that
the unlawful manufacture, distribution, dispensing, possession or use of a
controlled substance in Contractor's workplace is prohibited,
(ii) Specifying the actions
that will be taken against employees for violations of the prohibition, and
(iii) Notifying employees that,
as a condition of continued employment on the contract, employees must abide by
the terms of the statement, and must notify Contractor in writing of any
conviction for a violation of a criminal drug statute occurring in the
workplace no later than five (5) calendar days after the conviction.
(2) Provide all employees engaged in
performance of the contract with a copy of the statement described above.
(3) Establish a drug free workplace awareness
program to inform employees about
(i) The dangers of drug abuse
in the workplace,
(ii) Contractor's policy of
maintaining a drug free workplace,
(iii) Any available drug
counseling, rehabilitation and employee assistance programs, and
(iv) The penalties that may be
imposed upon employees for drug abuse violations occurring in the workplace.
(4) Notify the Contracting Officer
within ten (10) days after receiving a notice from an employee (or notice from
another source) of his/her conviction for violation of a criminal drug statute
occurring in the workplace.
(5) Take one of the following actions,
within thirty (30) days after receiving notice of a conviction, with respect to
any employee who is convicted of a drug abuse violation occurring in the
workplace:
(i) Take an appropriate
personnel action against the employee, up to and including termination, or
(ii) Require the employee to
satisfactorily participate in a drug abuse assistance or rehabilitation program
approved by either a Federal, State or local government agency responsible for
the licensing, certification or oversight of drug programs, such as health or
law enforcement agencies.
(d) The FDIC may suspend
contract payments, terminate the contract for default, and suspend or debar
Contractor if Contractor does not comply with the requirements concerning a
drug-free workplace. These remedies are in addition
to others available to the FDIC.
(e) Definitions. As used in this clause,
(1) "Controlled substance"
means a controlled substance in schedules I through V of Section 202 of the
Controlled Substances Act (21 U.S.C. §812) and as further defined in regulation
at 21 C.F.R. §§1308.11-1308.15.
(2) "Conviction" means a
finding of guilt (including a plea of nolo contendere) or imposition of
sentence, or both, by any judicial body charged with the responsibility to
determine violations of the Federal or State criminal drug statutes.
(3) "Criminal drug statute"
means a Federal or non-Federal criminal statute involving the manufacture,
distribution, dispensing, possession or use of any controlled substance.
(4) "Drug free workplace"
means a site for the performance of work done by Contractor in connection with
a specific contract at which employees of Contractor are prohibited from
engaging in the unlawful manufacture, distribution, dispensing, possession or
use of a controlled substance.
(5) "Employee" means an
employee of a contractor directly engaged in performance of work under an FDIC
contract.
(6) "Individual" means a
contractor that has no more than one employee including the contractor.
________________________________________________________________
7.3.2-62 Equal Opportunity (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-62, Equal Opportunity,
in all awards over $10,000.
Clause:
(a) FDIC policy prohibits
discrimination by Contractor in its employment practices. If, during any
12-month period (including the 12 months preceding the award of this contract),
Contractor has been or is awarded nonexempt Federal contracts or subcontracts
that have an aggregate value in excess of $10,000, Contractor must comply with
this clause. Contractor agrees to
provide the FDIC with information it may need to determine whether this clause
applies, as FDIC may request.
(b) During the performance
of this contract Contractor agrees to:
(1) Not discriminate against any
employee or applicant for employment because of race, color, religion, sex or
national origin.
(2) Take affirmative action to ensure
that its employment decisions are made without regard to an applicant’s or
employee’s race, color, religion, sex or national origin. Employment decisions include, without limit,
the following: (i) employment, (ii) upgrading, (iii) demotion, (iv) transfer,
(v) recruitment or recruitment advertising, (vi) layoff or termination, (vii)
rates of pay or other forms of compensation, and (viii) selection for training,
including apprenticeship.
(3) Post in conspicuous places,
available to employees and applicants for employment, notices (provided by the
Contracting Officer) that explain Contractor’s equal opportunity practices.
(4) State, in all solicitations and
advertisements for employees placed by or on behalf of Contractor, that all
qualified applicants will receive consideration for employment without regard
to race, color, religion, sex or national origin.
(5) Send, to each labor union or
representative of workers with which Contractor has a collective bargaining
agreement, other contract or understanding, a notice (provided by the
Contracting Officer) advising the labor union or workers' representative of
Contractor's commitments under this clause, and post the notice in conspicuous
places where it can be seen by employees and applicants for employment.
(6) Comply with Executive Order 11246,
as amended, and the rules, regulations and relevant orders of the Secretary of
Labor.
(7) Furnish all information and reports
required by Executive Order 11246, as amended, and by the rules, regulations
and orders of the Secretary of Labor.
(8) Give the FDIC or the Office of
Federal Contract Compliance Programs access to Contractor’s books, records, and
accounts to investigate Contractor’s compliance with Executive Order 11246, as
amended, and the rules, regulations and relevant orders of the Secretary of
Labor.
(9) Include the terms and conditions of
this clause in each subcontract it awards under this contract.
(c) In the event Contractor
does not comply with this clause, or with any of the rules, regulations or
orders referred to herein, FDIC may cancel, terminate or suspend this contract,
in whole or in part.
________________________________________________________________
7.3.2-63 Affirmative Action for Workers with
Disabilities (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-63, Affirmative
Action for Workers with Disabilities, in all awards over $10,000.
Clause:
(a) General. Contractor must not discriminate against any
employee or applicant for employment because of physical or mental disability,
regarding to any position for which the employee or applicant is
qualified. Contractor agrees to take
affirmative action in all its employment practices to employ, advance in
employment, and otherwise treat qualified individuals with disabilities without
discrimination based upon their physical or mental disability. Employment practices include: hiring, recruitment, advertising, upgrading,
demotion or transfer, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship.
Contractor agrees to comply
with the rules, regulations and orders of the Secretary of Labor (Secretary)
issued under the Rehabilitation Act of 1973), as amended (29 U.S.C. §793).
(b) Postings. Contractor agrees to post notices that state
Contractor's obligation under the law to take affirmative action to employ and
advance in employment qualified individuals with disabilities and the rights of
applicants and employees under the Rehabilitation Act of 1973. Notices must be posted in conspicuous places,
available to employees and applicants, The Contracting Officer will provide the form of the
notices or direct Contractor to resources within the Office of Federal Contract
Compliance Programs in the U.S. Department of Labor.
Contractor must notify each
labor union or representative of workers with which it has a collective
bargaining agreement or other contract understanding that Contractor is bound
by the terms of section 503 of the Rehabilitation Act of 1973, and is committed
to taking affirmative action to employ and advance in employment qualified
individuals with physical or mental disabilities.
(c) Noncompliance. In the event Contractor does not comply with
the requirements of this clause, actions for noncompliance may be taken in
accordance with the rules, regulations and orders of the Secretary issued under
the Rehabilitation Act of 1973.
(d) Subcontracts. Contractor must include the terms of this
clause in every subcontract or purchase order in excess of
$10,000 to bind each subcontractor or vendor to the requirements of the clause,
unless exempted by rules, regulations, or orders of the Secretary. Contractor agrees to take action to enforce
this clause, including action for noncompliance, as specified by the Director
of the Office of Federal Contract Compliance Programs.
________________________________________________________________
7.3.2-64 Affirmative Action for Special Disabled
Veterans and Vietnam Era Veterans (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-64, Affirmative
Action for Special Disabled Veterans and Vietnam Era Veterans, in all
awards at or above $100,000.
Clause:
(a) General.
(1) The Contractor shall not
discriminate against the individual because the individual is a special
disabled veteran, a veteran of the Vietnam era, or other eligible veteran,
regarding any position for which the employee or applicant for employment is
qualified. The Contractor shall take affirmative action to employ, advance in
employment, and otherwise treat qualified special disabled veterans, veterans
of the Vietnam era, and other eligible veterans without discrimination based
upon their disability or veterans’ status in all employment practices such as-
(i) Recruitment, advertising,
and job application procedures;
(ii) Hiring, upgrading,
promotion, award of tenure, demotion, transfer, layoff, termination, right of
return from layoff and rehiring;
(iii) Rate of pay or any other form of
compensation and changes in compensation;
(iv) Job assignments, job
classifications, organizational structures, position descriptions, lines of
progression, and seniority lists;
(v) Leaves of absence, sick
leave, or any other leave;
(vi) Fringe benefits available
by virtue of employment, whether or not administered by the Contractor;
(vii) Selection and financial
support for training, including apprenticeship, and on-the-job training under
38 U.S.C. §3687, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(viii) Activities sponsored by
the Contractor including social or recreational programs; and
(ix) Any other term, condition,
or privilege of employment.
(2) The Contractor must comply with the
rules, regulations, and relevant orders of the Secretary of Labor issued under
the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (the Act), as
amended (38 U S.C. 4211 and 4212).
(b) Definitions. As used in this clause--
(1) "All employment openings"
means all positions except: executive and top management, those positions that
will be filled from within the Contractor’s organization, and positions lasting
3 days or less. This term includes full-time employment, temporary employment
of more than 3 days duration, and part-time employment.
(2) "Executive and top
management" means any employee--
(i) Whose primary duty consists
of the management of the enterprise in which the individual is employed or of a
customarily recognized department or subdivision;
(ii) Who customarily and
regularly directs the work of two or more other employees;
(iii) Who has the authority to
hire or fire other employees or whose suggestions and recommendations as to the
hiring or firing and as to the advancement and promotion or any other change of
status of other employees will be given particular weight;
(iv) Who customarily and
regularly exercises discretionary powers; and
(v) Who does not devote more
than 20 percent or, in the case of an employee of a retail or service establishment,
who does not devote more than 40 percent of total hours of work in the work
week to activities that are not directly and closely related to the performance
of the work described in paragraphs (i) through (iv) of this definition.
This paragraph (v) does not
apply in the case of an employee who is in sole charge of an establishment or a
physically separated branch establishment, or who owns at least a 20 percent
interest in the enterprise in which the individual is employed.
(3)
"Other eligible veteran" means any other veteran who served on
active duty during a war or in a campaign or expedition for which a campaign
badge has been authorized.
(4)
"Positions that will be filled from within the Contractor’s
organization" means employment openings for which the Contractor will give
no consideration to persons outside the Contractor’s organization (including
any affiliates, subsidiaries, and parent companies) and includes any openings
the Contractor proposes to fill from regularly established “recall” lists. The
exception does not apply to a particular opening once an employer decides to
consider applicants outside of its organization.
(5)
"Qualified special disabled veteran" means a special disabled
veteran who satisfies the requisite skill, experience, education, and other
job-related requirements of the employment position the veteran holds or
desires, and who, with or without reasonable accommodation, can perform the
essential functions of the position.
(6)
"Special disabled veteran" means--
(i) A veteran who is entitled
to compensation (or who but for the receipt of military retired pay would be
entitled to compensation) under laws administered by the Department of Veterans
Affairs for a disability-
(A) Rated at 30 percent
or more; or
(B) Rated at 10 or 20
percent in the case of a veteran who has been determined under 38 U.S.C. §3106
to have a serious employment handicap (i.e., a significant impairment of the
veteran’s ability to prepare for, obtain, or retain employment consistent with
the veteran’s abilities, aptitudes, and interests); or
(ii) A person who was
discharged or released from active duty because of a service-connected disability.
(7)
"Veteran of the Vietnam era" means a person who-
(i) Served on active duty for a
period of more than 180 days and was discharged or released from active duty
with other than a dishonorable discharge, if any part of such active duty
occurred-
(A) In the Republic of Vietnam
between February 28, 1961, and May 7, 1975; or
(B) Between August 5,
1964, and May 7, 1975, in all other cases; or
(ii) Was discharged or released
from active duty for a service-connected disability if any part of the active
duty was performed-
(A) In the Republic of Vietnam
between February 28, 1961, and May 7, 1975; or
(B) Between August 5,
1964, and May 7, 1975, in all other cases.
(c) Listing openings.
(1)
The Contractor shall immediately list all employment openings that exist
at the time of the execution of this contract and those which occur during the
performance of this contract, including those not generated by this contract
and those occurring at an establishment of the Contractor other than the one
where the contract is being performed, but excluding those of independently
operated corporate affiliates, at an appropriate local public employment
service office of the State wherein the opening occurs. Listing employment
openings with the U.S. Department of Labor’s America’s Job Bank shall satisfy
the requirement to list jobs with the local employment service office.
(2)
The Contractor shall make the listing of employment openings with the
local employment service office at least concurrently with using any other
recruitment source or effort and shall involve the normal obligations of
placing a bona fide job order, including accepting referrals of veterans and
non-veterans. This listing of employment openings does not require hiring any
particular job applicant or hiring from any particular group of job applicants
and is not intended to relieve the Contractor from any requirements of
Executive orders or regulations concerning nondiscrimination in employment.
(3)
At the time the Contractor becomes contractually bound to the listing
terms of this clause, it shall advise the State public employment agency in
each State where it has establishments of the name and location of each of its
hiring locations in the State. As long as the Contractor is contractually bound
to these terms and has so advised the State agency, it need not advise the
State agency of subsequent contracts. The Contractor may advise the State
agency when it is no longer bound by this contract clause.
(d) Application.
This clause does not apply to the listing of employment openings that
occur and are filled outside the 50 States, the District of Columbia, the Commonwealth
of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American
Samoa, Guam, the Virgin Islands of the United States, and Wake Island.
(e) Postings.
(1)
The Contractor must post employment notices in conspicuous places that
are available to employees and applicants for employment.
(2)
The employment notices must-
(i) State the rights of
applicants and employees, as well as the Contractor’s obligation under the law
to take affirmative action to employ and advance in employment qualified
employees and applicants who are special disabled veterans, veterans of the
Vietnam era, and other eligible veterans; and
(ii) Be in a form prescribed by
the Deputy Assistant Secretary for Federal Contract Compliance Programs,
Department of Labor (Deputy Assistant Secretary of Labor), and provided by or
through the Contracting Officer.
(3)
The Contractor must ensure that applicants or employees who are special
disabled veterans are informed of the contents of the notice (e.g., the
Contractor may have the notice read to a visually disabled veteran, or may post
the notice where it can be read by a person in a wheelchair).
(4)
The Contractor must notify each labor union or representative of workers
with which it has a collective bargaining agreement or other contract
understanding, that the Contractor is bound by the terms of the Act and is
committed to take affirmative action to employ, and advance in employment, qualified
special disabled veterans, veterans of the Vietnam era, and other eligible
veterans.
(f) Noncompliance. If the Contractor does not comply with the
requirements of this clause, the Government may take appropriate actions under
the rules, regulations, and relevant orders of the Secretary of Labor issued
pursuant to the Act.
(g) Subcontracts.
The Contractor is required to insert the terms of this clause in all
subcontracts or purchase orders of $100,000 or
more unless exempted by rules, regulations, or orders of the Secretary of
Labor. The Contractor shall act as specified by the Deputy Assistant Secretary
of Labor to enforce the terms, including action for noncompliance.
________________________________________________________________
7.3.2-65 Employment Reports on Special Disabled
Veterans and Vietnam Era Veterans (July
2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-65, Employment
Reports on Special Disabled Veterans and Vietnam Era Veterans, in all awards
at or above $100,000..
Clause:
(a) Unless the Contractor is a State or local
government agency, the Contractor is obligated to report at least annually, as
required by the Secretary of Labor, on—
(1) The number of special disabled
veterans, the number of veterans of the Vietnam era, and other eligible
veterans in the workforce of the Contractor by job category and hiring
location;
(2) The total number of new employees
hired during the period covered by the report, and of the total, the number of
special disabled veterans, the number of veterans of the Vietnam era, and the
number of other eligible veterans; and
(3) The maximum number and the minimum
number of employees of the Contractor during the period covered by the report.
(b) The Contractor reports the above items by completing the
Form VETS-100, entitled Federal Contractor Veterans” Employment Report
(VETS-too Report)”.
(c) The Contractor is obligated to submit
VETS-100 Reports no later than September 30 of each year beginning September
30, 1988.
(d) The employment activity report required by
paragraph (a)(2) of this clause must reflect total hires during the most recent
12-month period as of the ending date selected for the employment profile
report required by paragraph (a)(1) of this clause. Contractor may select an
ending date--
(1) As of the end of any pay period
between July 1 and August 31 of the year the report is due; or
(2) As of December 31, if the
Contractor has prior written approval from the Equal Employment Opportunity
Commission to do so for purposes of submitting the Employer Information Report
EEO-1 (Standard Form 100).
(e) The Contractor is to base the count of
veterans reported on the employment profile report required by this clause on
voluntary disclosure. Each Contractor subject to the reporting requirements at
38 U.S.C. §4212 shall invite all special disabled veterans, veterans of the
Vietnam era, and other eligible veterans who wish to benefit under the affirmative
action program at 38 U.S.C. §4212 to identify themselves to the Contractor. The
invitation shall state that—
(1) The information is voluntarily
provided;
(2) The information will be kept
confidential;
(3) Disclosure or refusal to provide
the information will not subject the applicant or employee to any adverse
treatment; and
(4) The information will be used only
in accordance with the regulations promulgated under 38 U.S.C. §4212.
(f) The Contractor must insert the terms of this
clause in all subcontracts or purchase orders of $100,000 or
more, unless exempted by rules, regulations, or orders of the Secretary of
Labor.
(g) The terms "special disabled veterans,
"veterans of the Vietnam era" and " other eligible
veterans" are defined in clause ___(187)___.
________________________________________________________________
7.3.2-66 Ozone-Depleting Substances (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-66, Ozone Depleting
Substances, in awards for supplies
that may
contain or be manufactured with ozone-depleting substances, or construction awards that may involve the use of ozone-depleting
substances.
Clause:
(a) Contractor must label
products which contain or are manufactured with ozone-depleting substances in
the manner and to the extent required by 42 U.S.C. §7671j (b), (c), and (d),
and 40 C.F.R. Part 82, Subpart E, as follows:
WARNING: Contains (or
manufactured with, if applicable) ______*______, a substance(s) which harm(s)
public health and environment by destroying ozone in the upper atmosphere.(*
insert the name of the substance(s)).
(b) Definitions. Ozone-depleting substance, as used in this
clause, means: (1) Any substance
designated as Class I by the Environmental Protection Agency (EPA) (40 C.F.R.
Part 82), including, but not limited to, chlorofluorocarbons, halons, carbon
tetrachloride, and methyl chloroform; or(2) Any substance designated as Class
II by EPA (40 C.F.R. Part 82), including, but not limited to, hydro
chlorofluorocarbons.
________________________________________________________________
________________________________________________________________
7.3.2-68 Refrigeration Equipment and Air
Conditioners (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-68, Refrigeration
Equipment and Air Conditioners, in awards for services that include the
maintenance, repair, or disposal of any equipment or appliance using
ozone-depleting substances as a refrigerant, such as air conditioners,
including motor vehicles, refrigerators, chillers, or freezers.
Clause:
Contractor must comply with
air pollution prevention and control laws governing the servicing of motor
vehicle air conditioners -42 U.S.C. §7671g – and the national recycling and
emission reduction program – 42 U.S.C. § 7671h,- as each apply to this
contract.
________________________________________________________________
7.3.2-69 Joint and Several Liability (July 2008)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-69, Joint and Several
Liability, in all awards.
Clause:
If Contractor is organized
as a joint venture, the liability of the members of the joint venture in
connection with all duties, obligations and liabilities under this contract is
joint and several.
________________________________________________________________
7.3.2-70 Legal Representation (March 2010)
Prescription:
Per PGI 3.112 or PGI 3.218 insert clause 7.3.2-70, Legal Representation, in RBOAs and other receivership contracts where the
Legal Division (the branch/section that supports DRR) gives a contractor
limited delegated authority to handle legal matters arising out of assets being
managed under the RBOA or other receivership contract.
Clause:
(a) Relationship of Contractor and FDIC Legal
Division
The Contractor is hereby designated as a limited agent of
the FDIC Legal Division for the sole purpose of assisting the FDIC Legal
Division in providing legal services relating to this Contract and ancillary to
the performance of the Contractor’s duties under this Contract. This
designation is in addition to other designations created elsewhere in this
Contract and is not intended to supplant the relationships with FDIC personnel
created elsewhere in this Contract.
(1) The FDIC shall designate an FDIC
Legal Division Attorney to serve as the Contractor’s primary point of contact
with the FDIC Legal Division.
(2)
Contractor shall designate one member of its staff to serve as the FDIC
Legal Division’s primary point of contact with Contractor.
(c) Contractor’s
Authority
(1)
Subject to the provisions of this Clause, Contractor has the
limited authority to select, direct, monitor and pay outside counsel for
necessary legal services, including initiating litigation, on legal matters
arising from Contractor’s obligations under this Contract when:
(i) The estimated legal fees do not
exceed $50,000; and
(ii) The value of the transaction or the
amount of the claims involved in the matter is not greater than $500,000.
For all other legal matters, the Contractor must obtain prior
written approval from the FDIC Legal Division to retain outside counsel.
Notwithstanding this limited grant of authority, the FDIC reserves
the right to direct and control any legal matter and to modify these
procedures, in its discretion.
(2) The Contractor shall
not commence any litigation or other legal proceedings, or continue any
pre-existing litigation or other legal proceedings:
(i) Involving the foreclosure
of a mortgage or deed of trust on single family residential property;
(ii) Against any financial
institution identified by the FDIC in writing to the Contractor;
(iii) Against any insured depository
institution that is in conservatorship or receivership;
(iv) Against any financial institution
identified to the Contractor by the FDIC in which the FDIC, in any capacity,
has existing obligations to provide assistance or indemnities;
(v) In connection with any matter
involving one or more of the Special Issues listed in paragraph (h) below; or
(vi) Against any state or
federal banking regulator,
without
the prior written approval of the FDIC Legal Division.
(3) Contractor shall notify the FDIC
Legal Division about legal matters that are not within the general authority
granted to the Contractor and shall coordinate with FDIC Legal Division the
selection, retention, direction and monitoring of outside counsel, to the
extent and in the manner it requests. To the extent that Contractor is required
to obtain approval from the FDIC Division of Resolutions and Receiverships on
particular matters or cases, which require the concurrence of the FDIC Legal
Division under the delegations of authority, then Contractor shall obtain said
concurrence from the FDIC Legal Division.
(4) The FDIC may direct and control any
legal action (including litigation, arbitration, or alternative dispute
resolution procedure) relating to any matter, upon written notice to the
Contractor. Upon receipt of notice, the Contractor shall promptly provide the
FDIC Legal Division with copies of all pleadings and other pertinent documents
and correspondence. The Contractor shall
continue to direct the legal action and protect the FDIC’s interests, and shall
continue to process payments to outside counsel, until the FDIC Legal Division
actually takes control of the action.
(5) The FDIC Legal Division has sole
authority to determine outside counsel conflicts-of-interest. If the Contractor perceives or is notified of
any actual, apparent or potential conflicts-of-interest involving outside
counsel, Contractor shall notify the FDIC Legal Division immediately.
(6) The Contractor is prohibited from
hiring any law firm (or any employee, partner or shareholder thereof) which has
any financial interest in the Contractor without the prior written approval of
the FDIC Legal Division. Financial
interest includes, but is not limited to, ownership interest. The prohibition
applies to the entire law firm regardless of whether an individual other than
the employee, partner or shareholder with the financial interest in the
Contractor is expected to perform the legal services.
(1) The Contractor shall consult with the
FDIC Legal Division concerning pleadings, case strategies, or the performance
of outside counsel, as necessary or as the FDIC Legal Division may request, and
shall provide any information it requests.
(2)
The Contractor shall immediately notify the FDIC Legal Division of any
adverse judgment entered in connection with any matter under this Contract.
(3)
The Contractor shall obtain the prior written approval of the FDIC Legal
Division before filing an appeal of any judgment entered in connection with any
matter under this Contract.
(4) The Contractor shall immediately
notify the Legal Division if the Contractor learns that a third party has
attempted to attach an involuntary lien (i.e. tax lien, mechanic’s and
materialman’s lien, or any other type of non-consensual lien) to any of the
FDIC’s real property or interest in real property. Upon request of the Contractor, the Legal
Division will provide to the Contractor approved language that conforms to the
statute and FDIC policies that may be used in a notification to such lien
holders. Except for the use of the approved language provided by the Legal
Division, the Contractor shall not assert the FDIC’s powers under 12 U.S.C.
§1825(b), regardless of whether legal counsel is retained, without prior
consent of the Legal Division.
(5) The Contractor must seek prior
written consent from the Legal Division of any form of letter sent to borrowers
regarding unfunded commitments.
(6) The FDIC and the Contractor
acknowledge that the parties have a common interest in the conduct of legal
affairs in support of the Contractor’s liquidation and servicing activities
under the Contract. They further
acknowledge that the sharing of confidential and privileged information is
sometimes necessary to the performance of the duties of the Contractor. The
Contractor shall preserve the confidentiality of all information and documents
it receives from the FDIC, FDIC in-house attorneys or outside counsel retained
by or on behalf of the FDIC. The
Contractor is authorized and required to take all actions necessary to protect
all privileges available to the FDIC including, but not limited to, the
attorney-client and work product privileges. Contractor agrees to supply FDIC
with information and documents needed to protect FDIC’s interests in the
matters subject to this Contract.
(7) The Contractor is not an authorized
agent of the FDIC for acceptance of service of process on the FDIC in any
capacity, or on any other regulatory agency or financial institution. If the Contractor is served with a summons,
complaint, subpoena or any other legal document that concerns the FDIC, the
Contractor shall immediately notify the FDIC Legal Division and comply with its
instructions regarding the handling of the documents.
(e) Procedures for Selection of Outside
Counsel and Payment of Legal Fees
The Contractor shall:
(1) Only select firms to perform legal services from the FDIC List
of Counsel Available (the “LCA”), except
for the following limited matters: clear
title actions and similar routine legal proceedings frequently used in
connection with single-family-mortgage loan servicing. For these limited
matters, Contractor may select firms that are not LCA firms, including
inherited firms – firms that performed legal work for the failed financial
institution prior to its failure - but these firms must still comply with the
integrity and fitness requirements of 12 CFR Part 366 and must have no
conflicts-of-interest with FDIC (see paragraph (c)(5)). Information about Part
366 and conflicts-of-interest is available at http://www.fdic.gov/buying/legal/outside/chap2.html.
The Legal Division will supply Contractor with a copy of the LCA.
(2) Use the following factors as
selection criteria: the firm’s capacity, cost, subject matter expertise,
geographic location and reputation, and whether any conflicts-of-interest
exist.
(3) Document the selection of a law firm,
using the criteria in (2) above, to perform the legal services.
(4) Send a referral letter retaining the
law firm to perform the legal services, and retain a copy of the referral
letter in the case file.
(5) Monitor legal expenses to determine
when estimated legal fees and expenses are expected to meet or exceed the
$50,000 limit referenced in paragraph (c)(1)(i) above; establish a budget for
each matter upon initiating a new matter or electing to continue a pre-existing
matter, and retain copies of all budgets
and estimates of legal fees in the case files.
(6) Direct outside counsel to send its
fee bills to Contractor in a timely manner.
(7) Review outside counsel fee bills and
make adjustments, as appropriate, before payment.
(i) Contractor is expected to make
prudent business decisions in authorizing use of legal counsel and reviewing
fee bills for payment. Fees charged by an LCA firm must be in accord with the
fee schedule established in its legal services agreement with the FDIC.
Contractor must provide written certification on the invoices it submits to
FDIC that the legal services were authorized, the legal work was performed, and
that the fees are reasonable and appropriate for payment. Markup of legal fees by Contractor is not
permitted.
(ii) Contractor will make timely payment
directly to outside counsel, unless directed otherwise by FDIC Legal Division.
FDIC Legal Division may direct that fee bills related to specific matters or
fee bills exceeding certain amounts must be reviewed and approved by FDIC Legal
Division prior to payment by the Contractor.
(iii) Unless provided otherwise in the
Contract, the legal fees paid by Contractor for legal services obtained under
the terms of this Contract are a reimbursable expense under the payment clause
of this Contract.
(iv) The FDIC Legal Division always
retains the right to audit fee bills and to disallow or recover any fees or
expenses.
(8) Notify the FDIC Legal Division
immediately, in the event that a dispute relating to law firm performance or
fees and expenses claimed by outside counsel arises. The FDIC Legal Division,
working in conjunction with the Contractor, will resolve the dispute pursuant
to Legal Division policies and procedures.
(f) Use of Minority-Owned and Women-Owned Law
Firms
The FDIC Legal
Division has engaged certain minority-owned and women-owned law firms under
legal services agreements to perform legal services for the FDIC. These law firms are identified on the LCA for
easy reference. The FDIC has a strong
commitment to equal opportunity under the law. The FDIC Legal Division actively
encourages the consideration of these law firms to perform legal services.
The Contractor shall provide the following monthly reports to the
FDIC Legal Division and the Oversight Manager on the 15th of each
month:
(1) New Matters Referred. This report lists each new matter referred to
outside counsel during the reporting period.
This report should identify the law firm retained, the nature of the
work, the asset involved, the amount in controversy, a description of the
matter and the estimated legal fees.
(2) Activity Report. This report lists each active matter for the
reporting period. This report should
identify the case name, the matter type, the amount in controversy, the
jurisdiction (for litigation matters, the court; for non-litigation matters,
the county and state), and the law firm handling the matter.
The FDIC Legal
Division will prescribe the format of these reports and any additional
information it may require.
(3) The FDIC Legal Division, in its discretion, may
request more frequent reports, particularly as to new matters, as well as
occasional ad hoc reports. The
Contractor shall comply with these requests for additional reports in a timely
manner.
The Special
Issues List, which is provided for illustrative purposes, includes without limitation:
·
Actions
involving the Federal Deposit Insurance Corporation and another state or
federal financial institution regulator or state or federal agency (e.g. State
Attorney General enforcing foreclosure forbearance/ restrictions/ moratorium)
·
Agency
status of FDIC
·
Agricultural
and Small Business Administration loans
·
Bankruptcy
proceedings involving a special issue from this list
·
Bridge
banks
·
Challenges
to FDIC conservatorship, receivership or corporate powers
·
Challenges
to or novel applications of the FDIC claims procedure
·
Challenges
to and interpretations of FDIC or RTC regulations or policy statements
·
Conflicts
between insolvent institutions
·
Constitutional
challenges to actions taken by FDIC officials
·
Constitutionality
of statutes affecting the FDIC or RTC
·
Consumer
Protection Financial Regulations/Violations (including federal statutes such as
HOEPA and the Truth in Lending Act (TILA),
and state consumer protection statutes
·
Contracts
using legal services/counsel (i.e. existing contracts, such as Loan/Asset
Servicing Contracts, which allow use of outside counsel/legal services)
·
Crime
Control Act of 1990 ("CCA")
·
Directors
and officers liability
·
D'Oench Duhme doctrine, and 12 U.S.C. § 1823(e)
·
Emergency
Economic Stabilization Act of 2008
·
Employee
benefit litigation
·
Environmental
issues including, but not limited to: CERCLA, RCRA, USTs, asbestos, lead-based
paints, wetlands, endangered species, and NEPA
·
ERISA
·
Executory
contracts and leases
·
Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
·
Federal
Home Loan Bank Board/FSLIC; especially challenges to powers
·
Federal
Trade Commission Act
·
Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
("FlRREA"); especially retroactivity of provisions
·
Freedom
of Information Act
·
FSLIC
Resolution Fund
·
Guaranteed
loans
·
Historic
properties preservation
·
Indemnification
of employees, officers or directors of failed institutions
·
Jurisdiction,
removal, or venue
·
Least-Cost
test; 12 U.S.C. §1823(c) (4)
·
Lender
liability
·
Letters
of Credit
·
Loan
participations
·
Multi-receivership
sales initiatives (securitizations, auctions)
·
Mutual
to stock conversions
·
National
depositor preference
·
National
impact: issues that may have national impact
·
Privacy
Act
·
Professional
liability causes of action
·
Pro-rata
vs. pro tanto settlement bar rule
·
Prudential
mootness
·
Publicity:
any case likely to generate publicity
·
Punitive
damages
·
Purchase
and Assumption documentation
·
Qualified
Financial Contracts; including derivatives, repurchase agreements, and swaps
·
Racketeer
Influenced and Corrupt Organizations Act
·
Removal
of state court appeals
·
Repudiation
of Contracts where measure of damages, notice, timing or reasonableness may be
at issue
·
Retroactivity
involving FlRREA, CCA or FDICIA
·
Section
1821 (j) of the FDI Act
·
Section
1825(b) of the FDI Act
·
Securities
acts: Securities Act of 1933 and Securities Exchange Act of 1934
·
Senior
Executives: Lawsuits involving agency executives whether as named parties,
deponents or witnesses
·
Subsidiaries
of failed insured depository institutions
·
Tax
matters – both income tax and property tax
·
Termination
of pension plans
·
Termination
of receiverships
·
Tort
claims that may implicate the Federal Tort Claims Act
·
Trust
departments.
________________________________________________________________
7.3.2-71 FDIC Contracting Capacity - BOAs/RBOAs/BPAs (July 2009)
Prescription:
Per PGI 3.112 or PGI 3.218, insert clause 7.3.2-71, FDIC Contracting Capacity- BOAs/RBOAs/BPAs, in all awards for BOAs, RBOAs, or BPAs.
Clause:
Each order issued under this
[BOA, RBOA, BPA] will identify one of the following contracting capacities in
which the FDIC will be acting for the period of performance of the order.
- Corporate capacity
- Receivership capacity for various institutions
- Conservatorship capacity
________________________________________________________________
7.3.2-72 FDIC Contracting Capacity - Contracts/Task Orders/Delivery Orders (July 2009)
Prescription:
Per PGI 3.112 or PGI 3.218, insert clause 7.3.2-72, FDIC Contracting Capacity - Contracts/Task Orders/Delivery Orders, in all awards for contracts, task orders, or delivery orders.
Clause:
FDIC is [acting in its corporate capacity] [acting as receiver
for various institutions] [acting in its conservatorship capacity] for
this award and will execute it in this capacity throughout the period of
performance.
________________________________________________________________
7.3.2-73
Compliance with 12 CFR Part 366 and Application of
12 CFR Part 367 (September 2009)
Prescription:
Per PGI 3.112 or PGI 3.218
insert clause 7.3.2-73, Compliance with 12 CFR Part 366 and
Application of 12 CFR Part 367,
in all awards.
Clause:
(a) The Contractor must comply with the Minimum
Standards of Integrity and Fitness for an FDIC Contractor set out in
12 CFR Part 366.
(b) The FDIC’s regulations governing the
suspension and exclusion of contractors – titled Suspension and Exclusion of
Contractor and Termination of Contracts - apply to this contract and are found at 12 CFR
Part 367.
(c) 12 CFR Parts 366 and 367 may be found on the
following webpage: www.fdic.gov/buying/goods/acquisition/index.html.
________________________________________________________________
7.3.3-1 Copy of Contractor’s General Services
Administration Schedule Contract (July 2008)
Prescription:
Per PGI 3.306, insert
provision 7.3.3-1, Copy of Contractor's
General Services Administration (GSA) Schedule
Contract, in solicitations for
orders against GSA Schedules.
Provision:
Offeror must provide a copy
of its entire current GSA Schedule contract. Offeror must highlight the areas of the GSA
Schedule contract that demonstrate the services required by FDIC are within the
scope of the GSA Schedule contract.
Offerors must highlight the Period of Performance of the GSA Schedule
contract.
________________________________________________________________
7.3.3-2 Contractor Use of AbilityOne - Mandatory Source of
Goods or Services (July 2009)
Prescription:
Per PGI 3.306, insert clause
7.3.3-2 Contractor Use of AbilityOne - Mandatory Source of Goods or Services in awards for goods or services where
some of the goods or services to be procured are on the AbilityOne Procurement
List (maintained by the Committee for Purchase from People Who are Blind or Severely
Disabled), a mandatory source of procurement for the FDIC.
Clause:
Certain goods or services to
be provided under this award are required by law to be obtained from nonprofit
agencies participating in the AbilityOne program, a program operated by the
Committee for Purchase From People Who Are Blind or Severely Disabled (the
Committee) under the Javits-Wagner-O’Day Act (41 U.S.C. §48).
The Contractor must obtain mandatory goods or services it will provide to the
FDIC under this award from the specific sources indicated in the schedule
attached to the award.
The Contractor must immediately
notify the Contracting Officer if a mandatory source is unable to provide the
goods or services within the required time frame, or if the quality of goods or
services provided by the mandatory source is unsatisfactory. The Contractor
cannot purchase the goods or services from other sources until the Contracting
Officer has notified the Contractor that the Committee or an AbilityOne central
nonprofit agency has authorized purchase from other sources.
Points of contact for
AbilityOne central nonprofit agencies are:
(1) National Industries for
the Blind (2) NISH
1310 Braddock Place 8401 Old Courthouse Road
Alexandria, VA 22314-1691 Vienna, VA 22182
(703) 310-0500 (571) 226-4660
________________________________________________________________
7.3.5-1 Emergency Preparedness (July 2008)
Prescription:
Per PGI 3.513, insert clause
7.3.5-1, Emergency Preparedness, in
awards when the Program Office has determined the requirement to be critical or
essential to FDIC.
Clause:
(a) If the contractor, at any time during the
performance of this contract/order, is determined by the FDIC (at its sole discretion)
to provide services essential or critical to the FDIC mission (based on the
nature of an actual or threatened emergency situation as declared by any
competent federal, state or local authority), then upon such notice to the
contractor by the FDIC contracting officer; the contractor shall take immediate
and effective measures to ensure the availability or use of back-up or
redundant services and/or system(s) support to deal with such emergency, and to
ensure uninterrupted support of the services or system(s) support under the
contract/order so identified.
(b) Any back-up or redundant services and/or
system(s) support required under this provision (whether subject to
reimbursement by FDIC or not, as described below) must be provided for as long
as the actual or threatened emergency situation exists.
(c) Any costs associated with providing back-up
or redundant services and/or system(s) support provided by the contractor under
this section must be reimbursed at a rate that must not exceed the current prices
or hourly rates provided for in the contract/order, unless such back-up or
redundant services and/or system(s) support was a requirement of the
contract/order in question and the costs for providing such back-up or
redundant services and/or system(s) support was included in the contract/order
price. In this case, the contract/order requiring back-up or redundant services
and/or system(s) support must be
provided by the vendor as required at no additional cost to FDIC during the
term of the contract/order, and must be subject to reimbursement only for the
time the back-up or redundant services and/or system(s) support is provided
beyond the expiration of the contract/order, if so required by FDIC.
7.4.2-1 Security and Privacy Compliance for IT Services (July 2008)
Prescription:
Per PGI 4.205, insert clause
7.4.2-1, Security and Privacy Compliance
for IT Services, in all awards for services in which contractor or its
subcontractors may develop or maintain information technology (IT) applications
or implement or operate other IT resources.
Clause:
(a) Security and Privacy
Compliance. The Contractor is responsible for Information Technology (IT)
security for Contractor Personnel and subcontractor personnel granted access to
the FDIC network, and for their use of systems connected to the FDIC network,
and for those systems developed, maintained, implemented or operated by the
Contractor for FDIC. All IT products and services provided by the Contractor
shall comply with all FDIC information security and privacy directives,
policies and requirements unless Contractor obtains a written waiver from FDIC
Information Security/Privacy staff.
(b) Laws and Standards. All
IT products and services provided by the Contractor must comply with Federal
laws and standards addressing information security. These include:
(1) The Privacy Act of 1974 (5 U.S.C. §
552a) as amended (if incorporated in the contract);
(2) Office of Management and Budget (OMB) Circular A-130, Management of Federal Information
Resources (Transmittal Memorandum No. 4) including Appendices;
(3) E-Government Act of 2002 (P. L.
107-347) including Title II, Section 208 - Privacy Provisions and Title III -
Federal Information Security Management Act of 2002 (FISMA), and related OMB
guidance; and
(4) National Institute of Standards and
Technology (NIST) Federal Information Processing Standards (FIPS) and Special
Publications.
(c) FDIC Policy and
Guidance. All IT products and services provided by the Contractor shall address
information security and privacy requirements throughout their design,
development, implementation, maintenance, operation, and termination as
provided in FDIC system development life cycle policy and guidance. This includes completing or providing the
necessary information for the FDIC to complete privacy impact assessments, security
assessments, risk assessments, security plans, contingency plans, and other
security and privacy artifacts as required.
(d) Subcontracts.
Contractor must include this clause in all its subcontracts to which the
conditions and requirements described in this clause would apply. Contractor also must require its
subcontractors (first-tier) to include this clause in any of their subcontracts
(second-tier) to which the conditions and requirements of this clause would
apply.
________________________________________________________________
7.4.2-2 Off-site Processing and Storing of FDIC
Information (June 2010)
Prescription:
Per PGI 4.205, insert clause
7.4.2-2, Processing and Storing of FDIC
Information, in all awards in which FDIC information (electronic or paper
form) may be processed or stored off site in a non-FDIC facility (e.g.,
contractor personnel work from their company office, a service provider
processes FDIC information at its location).
Clause:
(a) Protection of
Information. The Contractor shall implement adequate administrative, technical,
physical and procedural security controls to ensure that all FDIC information
in its possession or under its control is adequately protected from loss,
misuse, and unauthorized access or modification. The collection, use, transmission, and
disclosure of FDIC information shall comply with all federal and state privacy
laws and FDIC rules and regulations regarding privacy. The Contractor shall
further ensure that FDIC PII is separated
both physically and logically from Contractor's data. The Contractor shall not use any FDIC
information except to the extent necessary to carry out its obligations under
the contract. Contractor shall not
disclose FDIC information to any third party unless disclosure is authorized in
the contract or Contractor obtains the prior written consent of the Contracting
Officer.
(b) Control of Information.
All FDIC information remains the property of FDIC. At any time, upon request of the Contracting
Officer, Contractor shall promptly retrieve and deliver to FDIC all FDIC
information, or any portion of information as specified by FDIC, under the
Contractor’s control or in its possession.
Information shall be provided in a format and on media as agreed by both
parties. The Contractor shall not, and
shall not permit any other person, to access, transmit, maintain, store, use or
disclose the Confidential Information [Sensitive information] outside of the United
States. Upon completion or termination
of the contract, or at any time the Contracting Officer requests it in writing,
Contractor shall return, erase, or destroy all FDIC information on any
media under its control or in its possession, as FDIC directs.
(c) Security Plan. The
Contractor shall implement and maintain the approved IT Security Plan,
Physical/Environmental Security Plan, or the approved security audit or review,
which is hereby incorporated into the contract, for the duration of the
contract. The Contractor must
demonstrate its continued compliance with the controls, processes and
procedures described in the Security Plan (or the security audit or review)
throughout the term of the contract, as FDIC may request.
(d) Inspections/Assessments.
The Contractor shall allow and cooperate with both scheduled and unannounced
inspections and assessments of its facilities, personnel, hardware, software
and its security and privacy practices by either the FDIC information
technology staff, the FDIC Inspector General, or the U.S. General Accountability
Office (GAO). These inspections may be
conducted either by phone, electronically or in-person, on both a pre-award
basis and throughout the term of the contract or task order, to ensure and
verify compliance with FDIC IT security and privacy requirements.
(e) Monitoring and Incident
Response. The Contractor shall monitor its facility and premises for security
and privacy incidents and provide the capability to respond to and resolve them
effectively and in a timely manner. All
security and privacy incidents that involve FDIC information must be
immediately reported to FDIC’s Computer Security Incident Response Team
(CSIRT).
(f) Contact Information. The
Contractor shall provide a point of contact (name, telephone number, e-mail
address) with whom the Contracting Officer, Oversight Manager, and FDIC
Information Security and Privacy Staff may
communicate throughout the duration of the contract about information security
and privacy issues.
________________________________________________________________
7.4.2-3 Data Connection (July 2008)
Prescription:
Per PGI 4.205, insert clause
7.4.2-3, Data Connection, in all
awards in which a data connection may be established between the FDIC network
and the contractor located at a non-FDIC facility.
Clause:
(a) Pre-connection
Requirements. Prior to the establishment of data connections, Contractor shall
allow and cooperate with FDIC to conduct physical review(s) of Contractor
premises and facilities. The Contractor
shall execute an Interconnection Security Agreement/Memorandum of Understanding
with FDIC prior to establishing any data connection between the FDIC network
and Contractor facility.
(b) FDIC Network Segments.
If the FDIC network is extended into the Contractor’s facility, the Contractor
shall connect only FDIC-provided or FDIC-approved hardware containing
FDIC-provided software to that FDIC-network segment unless prior written waiver
and approval of the FDIC Oversight Manager and FDIC information technology
staff has been received. Vendor-issued
security patches shall be applied promptly to operating system and other
software running on network-attached hardware. The Contractor shall keep all
FDIC network equipment located in Contractor’s facilities in a secured area
with controlled access. The Contractor,
at all times, shall isolate all FDIC-network segments and associated equipment
located at the Contractor’s facility from any non-FDIC networks located at the
same facility. FDIC-network segments
shall not be connected to non-FDIC network segments. Equipment (desktops, laptops, printers, etc.)
shall not be simultaneously connected to both FDIC and non-FDIC networks.
________________________________________________________________
7.4.2-4
Privacy Requirements for External Web Applications and Content (July 2008)
Prescription:
Per PGI 4.205, insert the
clause 7.4.2-4, Privacy Requirements for
External Web Applications and Content in all awards in which the contractor
may develop or maintain applications or content located on an FDIC-web site
accessed by the public.
Clause:
(a) The Contractor shall ensure that each
publicly accessible web site that is developed or maintained for FDIC under
this contract conforms to the privacy requirements of the E-Government Act of
2002 (44 U.S.C. Ch. 36). The web site
shall not use persistent cookies or other persistent tracking devices, although
session cookies may be used. The home
page, all major entry points into the web site, and all web pages that collect
personal information shall include a hyperlink labeled “Privacy Policy” that
links to the FDIC’s privacy policy located on FDIC.gov.
(b) The Contractor shall provide access to FDIC
for the purpose of performing scans or conducting other verification techniques
to ensure the above requirements are met.
________________________________________________________________
7.4.3-1 Commencement, Prosecution and Completion of
Work (July 2008)
Prescription:
Per PGI 4.304 insert clause
7.4.3-1, Commencement, Prosecution and
Completion of Work, in construction awards.
Clause:
Contractor is required to
(a) commence work under this contract within __________ ( ) calendar days after
[award of this contract] [the date Contractor receives a notice to proceed from
the FDIC], (b) prosecute the work diligently, and (c) complete the entire work
ready for use not later than ________________.
The time stated for completion includes final cleanup of premises.
________________________________________________________________
7.4.3-2 Location(s) for Services (July 2008)
Prescription:
Per PGI 4.304 insert clause
7.4.3-2, Location(s) for Services, in
construction contracts
Clause:
The locations of the
buildings in which the services are to be performed are as follows:
(a)
(b)
(c)
(d)
________________________________________________________________
7.4.3-3 Contractor’s Project Manager (July 2008)
Prescription:
Per PGI 4.304 insert clause
7.4.3-3, Contractor's Project Manager,
in construction contracts.
Clause:
Contractor must designate,
as a key personnel, a Project Manager who will be Contractor’s
authorized supervisor for technical and administrative performance of all work
hereunder. Contractor's Project Manager
must provide the single point of contact between Contractor and the FDIC
Oversight Manager under this award.
Contractor's Project Manager must receive and execute, on behalf of
Contractor, such technical direction as the FDIC Oversight Manager may issue
within the terms and conditions of this award.
________________________________________________________________
7.4.3-4 Specifications and Drawings (July 2008)
Prescription:
Per PGI 4.304 insert clause
7.4.3-4 Specifications and Drawings,
in awards over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in awards below $100,000, at Contracting
Officer's discretion.)
Clause:
Contractor must keep on the
work site a copy of the drawings and specifications and must at all times give
the Contracting Officer access thereto.
Anything mentioned in the specifications and not shown on the drawings,
or shown on the drawings and not mentioned in the specifications, must be of
like effect as if shown or mentioned in both.
In case of difference between drawings and specifications, the
specifications must govern. In case of
discrepancy either in the figures, in the drawings, or in the specifications,
the matter must be promptly submitted to the Contracting Officer, who must
promptly make a determination in writing.
Any adjustment by Contractor without such a determination must be at its
own risk and expense. The Contracting Officer
must furnish from time to time such detail drawings and other information as he
may consider necessary, unless otherwise provided.
________________________________________________________________
7.4.3-5 Differing Site Conditions (July 2008)
Prescription:
Per PGI 4.304 insert clause
7.4.3-5, Differing Site Conditions,
in awards over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in awards
at or below $100,000, at Contracting Officer's discretion.)
Clause:
(a) Contractor must
promptly, and before such conditions are disturbed, notify the Contracting
Officer in writing of: (1) Subsurface or
latent physical conditions at the site differing materially from those indicated
in this contract, or (2) unknown physical conditions at the site, of an unusual
nature, differing materially from those ordinarily encountered and generally
recognized as inherent in work of the character provided for in this
contract. The Contracting Officer must
promptly investigate the conditions and, if he finds that such conditions do
materially so differ and cause an increase or decrease in Contractor's cost of,
or the time required for, performance of any part of the work under this
contract, whether or not changed as a result of such conditions, an equitable
adjustment must be made and the contract modified in writing
accordingly.
(b) No claim of Contractor
under this clause must be allowed unless Contractor has given the notice required
in (a) above; provided, however, the time prescribed therefore may be extended
by the FDIC.
(c)
No claim by Contractor
for an equitable adjustment hereunder must be allowed if asserted after final
payment under this contract.
7.4.3-6 Material and Workmanship (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-6, Material and Workmanship, in
all construction awards.
Clause:
(a) Unless otherwise
specifically provided in this contract, all equipment, material, and articles
incorporated in the work covered by this contract are to be new and of the most
suitable grade for the purpose intended.
Unless otherwise specifically provided in this contract, reference to
any equipment, material, article, or patented process, by trade name, make, or
catalog number, must be regarded as establishing a standard of quality and
shall not be construed as limiting competition, and Contractor may, at its
option, use any equipment, material, article, or process,
which, in the judgment of the Contracting Officer, is equal to that named. Contractor must furnish to the Contracting
Officer for his approval the name of the manufacturer, the model number, and
other identifying data and information respecting the performance, capacity,
nature, and rating of the machinery and mechanical and other equipment which
Contractor contemplates incorporating in the work. When required by this contract or when called
for by the Contracting Officer, Contractor must furnish the Contracting Officer
for approval full information concerning the material or articles which he
contemplates incorporating in the work.
When so directed, samples must be submitted for approval at Contractor's
expense, with all shipping charges prepaid.
Machinery, equipment, material, and articles installed or used without
required approval must be at the risk of subsequent rejection.
(b) All work under this
contract must be performed in a skillful and workmanlike manner. The Contracting Officer may, in writing,
require Contractor to remove from the work any employee the Contracting Officer
deems incompetent, careless or otherwise objectionable.
________________________________________________________________
7.4.3-7 Superintendence by Contractor (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-7, Superintendence by Contractor,
in awards over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in awards at or below $100,000, at Contracting
Officer's discretion.)
Clause:
Contractor, at all times
during performance and until the work is completed and accepted, shall give its
personal superintendence to the work or have on the work a competent
superintendent, satisfactory to the Contracting Officer and with authority to
act for Contractor.
________________________________________________________________
7.4.3-8 Permits and Responsibilities (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-8, Permits and Responsibilities,
in awards for construction or dismantling,
demolition, or removal of improvements.
Clause:
Contractor must, without
additional expense to the FDIC, be responsible for obtaining any necessary
licenses and permits, and for complying with any applicable Federal, State, and
municipal laws, codes, and regulations, in connection with the prosecution of
the work. Contractor shall be similarly
responsible for all damages to persons or property that occurs as a result of
its fault or negligence. Contractor must
take proper safety and health precautions to protect the work, the workers, the
public, and the property of others.
Contractor must also be responsible for all materials delivered and work
performed until completion and acceptance of the entire
construction work, except for any completed unit of construction thereof which
may have been accepted.
________________________________________________________________
7.4.3-9 Conditions Affecting the Work (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-9, Conditions Affecting the Work,
in awards over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in awards at or below $100,000, at Contracting
Officer's discretion.)
Clause:
Contractor must be
responsible for having taken steps reasonably necessary to ascertain the nature
and location of the work, and the general and local conditions which can affect
the work or the cost thereof. Any
failure by Contractor to do so will not relieve him from responsibility for
successfully performing the work without additional expense to the FDIC. The FDIC assumes no responsibility for any
understanding or representations concerning conditions made by any of its
officers or agents prior to the execution of this contract, unless such
understanding or representations by the FDIC are expressly stated in the
contract.
________________________________________________________________
7.4.3-10 Other Contracts (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-10, Other Contracts, in awards
over $100,000 for construction or dismantling, demolition, or removal of
improvements. (Also, insert in awards at or below $100,000, at Contracting
Officer's discretion.)
Clause:
The FDIC may undertake or
award other contracts for additional work, and Contractor must fully cooperate
with such other contractors and FDIC employees and carefully fit its own work
to such additional work as may be directed by the Contracting Officer. Contractor must not commit or permit any act
which will interfere with the performance of work by any other contractor or by
FDIC employees.
________________________________________________________________
7.4.3-11 Shop Drawings (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-11, Shop Drawings, in contracts
over $100,000 for construction or dismantling, demolition, or removal of
improvements. (Also, insert in contracts
at or below $100,000, at Contracting Officer's discretion.)
Clause:
(a) The term "shop
drawings" includes drawings, diagrams, layouts, schematics, descriptive
literature, illustrations, schedules, performance and test data, and similar
materials furnished by Contractor to explain in detail specific portions of the
work required by the contract.
(b) If this contract
requires shop drawings, Contractor must coordinate all such drawings, and
review them for accuracy, completeness, and compliance with contract
requirements and must indicate its approval thereon as evidence of such
coordination and review. Shop drawings
submitted to the Contracting Officer without evidence of Contractor's approval
may be returned for resubmission. The
Contracting Officer will indicate his approval or disapproval of the shop
drawings and, if not approved as submitted, must indicate his reasons
therefore. Any work done prior to such
approval must be at Contractor’s risk.
Approval by the Contracting Officer must not relieve Contractor from
responsibility for any errors or omissions in such drawings or from
responsibility for complying with the requirements of this contract, except
with respect to variations described and approved in accordance with (c) below.
(c) If shop drawings show
variations from the contract requirements, Contractor must describe such
variations in writing separate from the drawings, at the time of
submission. If the Contracting Officer
approves any such variation(s), they must issue an appropriate contract
modification, except that, if the variation is minor and does not
involve a change in price or in time of performance, a modification need not be
issued.
________________________________________________________________
7.4.3-12 Use and Possession Prior to Completion (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-12, Use and Possession Prior to
Completion, in awards over $100,000 for construction or dismantling,
demolition, or removal of improvements.
(Also, insert in awards at or below $100,000, at Contracting Officer's
discretion.)
Clause:
The FDIC must have the right
to take possession of or use any completed or partially completed part of the
work. Prior to such possession or use,
the Contracting Officer must furnish Contractor an itemized list of work
remaining to be performed or corrected on such portions of the project as are
to be possessed or used by the FDIC, provided that failure to list any item of
work must not relieve Contractor of responsibility for compliance with the
terms of the contract. Such possession
or use must not be deemed an acceptance of any work
under the contract. While the FDIC has
such possession or use, Contractor, notwithstanding the provisions of the
clause of this contract entitled "Permits and Responsibilities," must
be relieved of the responsibility for the loss or damage to the work resulting
from the FDIC's possession or use. If
such prior possession or use by the FDIC delays the progress of the work or
causes additional expense to Contractor, an equitable adjustment in the
contract price or the time of completion will be made and the contract must be
modified in writing accordingly.
________________________________________________________________
7.4.3-13 Measurements
(July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-13, Measurements, in
construction awards.
Clause:
All
dimensions shown of existing work, and all dimensions required for work that is
to connect with work now in place, must be verified by Contractor by actual
measurement of the existing work. Any
discrepancies between the contract requirements and the existing conditions
must be referred to the Contracting Officer before any work affected thereby
has been performed.
________________________________________________________________
7.4.3-14 Layout of Work (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-14, Layout of Work, in
construction awards where there is a need for accurate work layout and site
verification during work performance.
Clause:
Contractor must lay out its
work from FDIC established baselines and benchmarks indicated on the drawings,
and must be responsible for all measurements in connection with the
layout. Contractor must furnish, at its
own expense, all stakes, templates, platforms, equipment, tools, materials, and
labor required to lay out any part of the work.
Contractor must be responsible for executing the work to the lines and
grades that may be established or indicated by the Contracting Officer. Contractor must also be responsible for
maintaining and preserving all stakes and other marks established by the
Contracting Officer until authorized to remove them. If such marks are destroyed by Contractor or
through its negligence before their removal is authorized, the Contracting
Officer may replace them and deduct the expense of the replacement from any
amounts due or to become due to Contractor.
________________________________________________________________
7.4.3-15 Availability and Use of Utility
Services (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-15, Availability and Use of Utility
Services, in awards for construction or dismantling, demolition, or removal
of improvements.
Clause:
(a) The FDIC must make all
reasonably required amounts of utilities available to Contractor from existing
outlets and supplies, as specified in the contract. Unless otherwise provided in the contract,
the amount of each utility service consumed must be charged to or paid for by
Contractor at prevailing rates charged to the FDIC, where the utility is
produced by the Government, at reasonable rates determined by the Contracting
Officer. Contractor must carefully
conserve any utilities furnished without charge.
(b) Contractor, at its
expense and in a workmanlike manner satisfactory to the Contracting Officer,
must install and maintain all necessary temporary connections and distribution
lines, and all meters required to measure the amount of each utility used for
the purpose of determining charges.
Before final acceptance of the work by
the FDIC, Contractor must remove all the temporary connections, distribution
lines, meters, and associated paraphernalia.
________________________________________________________________
7.4.3-16 Use of Premises (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-16, Use of Premises, in all
construction awards.
Clause:
(a) If the premises are
occupied, Contractor, or any subcontractors, and their employees must comply
with the regulations governing access to, operation of, and conduct while in or
on the premises and must perform the work required under this contract in such
a manner as not to unreasonably interrupt or interfere with the conduct of
FDIC, or other tenant, business.
(b) Any request received by
Contractor from occupants of existing buildings to change the sequence of work
shall be referred to the Contracting Officer for determination.
(c) If the premises are
occupied, Contractor, any subcontractors and their employees must not have
access to or be admitted into any building outside the scope of this contract
except with official permission.
________________________________________________________________
7.4.3-17 Operation and Storage Areas (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-17, Operations and Storage Areas,
in awards over $100,000 for construction or dismantling, demolition, or removal
of improvements. (Also, insert in awards
at or below $100,000, at Contracting Officer's discretion.)
Clause:
(a) Contractor must confine
all operations (including storage of materials) on FDIC premises to areas
authorized or approved by the Contracting Officer. Contractor must hold and save the FDIC, its
officers and agents, free and harmless from liability of any nature occasioned
by Contractor's performance.
(b) Temporary structures
(e.g., storage sheds, shops, offices) and utilities may be erected by
Contractor only with the approval of the Contracting Officer and must be built
with labor and materials furnished by Contractor without expense to the
FDIC. The temporary buildings and
utilities must remain the property of Contractor and must be removed by
Contractor at its expense upon completion of the work. With the written consent of the Contracting
Officer, the buildings and utilities may be abandoned and need not be removed.
(c) Contractor must, under
regulations prescribed by the Contracting Officer, use only established
roadways, or use temporary roadways constructed by Contractor, when and as
authorized by the Contracting Officer.
When materials are transported in prosecuting the work, vehicles must
not be loaded beyond the loading capacity recommended by the manufacturer of
the vehicle or prescribed by any Federal, State, or local law or
regulation. When it is necessary to
cross curbs or sidewalks, Contractor must protect them from damage. Contractor must repair or pay for the repair
of any damaged curbs, sidewalks, or roads.
________________________________________________________________
Prescription:
Per PGI 4.304, insert clause
7.4.3-18, Heat, in construction
awards.
Clause:
Unless otherwise specified
or unless already provided by the FDIC, Contractor must:
(a) Provide heat as
necessary to protect all work, materials, and equipment against injury from
dampness and cold;
(b) Protect, cover and/or
heat as may be necessary to produce and maintain a temperature of not less than
fifty (50) degrees Fahrenheit (1) in the concrete during the placing, setting
and curing of concrete, and (2) in the plaster during the application, setting
and curing of plaster; and
(c) Provide heat as
necessary in the area where work is to be done to provide the minimum
temperature recommended by the supplier or manufacturer of the material, but in
no case less than fifty (50) degrees Fahrenheit, for a period beginning ten
(10) days before placing of interior finishes and finish materials and
continuing until completion or beneficial occupancy of the area, whichever is
earlier.
________________________________________________________________
7.4.3-19 Protection of Existing Vegetation,
Structures, Equipment, Utilities, and Improvement (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-19, Protection of Existing
Vegetation, Structures, Equipment, Utilities and Improvement, in awards
over $100,000 for construction or dismantling, demolition, or removal of
improvements. (Also, insert in awards
below $100,000, at Contracting Officer's discretion.)
Clause:
(a) Contractor must preserve
and protect all structures, equipment, and vegetation (such as trees, shrubs,
and grass) on or adjacent to the work site, which is not to be removed and
which does not unreasonably interfere with the work required under this
contract. Contractor must only remove
trees when specifically authorized to do so, and must avoid damaging vegetation
that will remain in place. If any limbs
or branches of trees are broken during contract performance, or by the careless
operation of equipment, or by workmen, Contractor must trim those limbs or
branches with a clean cut and paint the tree with a tree pruning compound as
directed by the Contracting Officer.
(b) Contractor must protect
from damage all existing improvements and utilities (1) at or near the work
site, and (2) on adjacent property of a third party, the locations of which are
made known to or should be known by Contractor.
Contractor must repair any damage to those facilities, including those
that are the property of a third party, resulting from failure to comply with
the requirements of this contract or failure to exercise reasonable care in
performing the work. If Contractor fails
or refuses to repair the damage promptly, the Contracting Officer may have the
necessary work performed and charge the cost to Contractor.
________________________________________________________________
7.4.3-20 Health and Safety (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-20, Health and Safety, in
construction awards.
Clause:
In performing this contract,
Contractor must provide for protecting the lives and health of employees and
other persons; preventing damage to property, materials, supplies, and
equipment; and avoiding work interruptions.
Contractor must be responsible for its subcontractors' compliance with
this clause.
________________________________________________________________
Prescription:
Per PGI 4.304, insert clause
7.4.3-21, Cleanup, in awards for
construction or dismantling, demolition, or removal of improvements that are
other than simplified procurements.
Clause:
Contractor must at all times
comply with all applicable fire safety codes and must keep the work area,
including storage areas, free from accumulations of waste materials. Before completing the work, Contractor must
remove from the work and premises any rubbish, tools, scaffolding, equipment,
and materials that are not the property of the FDIC. Upon completing the work, Contractor must
leave the work area in a clean, neat, and orderly condition satisfactory to the
Contracting Officer.
________________________________________________________________
7.4.3-22 Use of Equipment by the FDIC (July 2008)
Prescription:
Per PGI 4.304, insert clause
7.4.3-22, Use of Equipment by the FDIC,
in construction awards.
Clause:
(a) The FDIC may take over
and operate, with FDIC employees, such equipment as is necessary for heating or
cooling such areas of the building as require the service, as soon as the
installation is sufficiently complete.
(b) The Contracting Officer
will advise Contractor by letter, prior to the use of equipment, which items of
equipment will be operated, and the date and time such operation will begin.
(c) FDIC operation of
equipment will not relieve Contractor of the one (1) year guarantee on
materials and workmanship elsewhere provided for in this contract.
(d) The guarantee period,
elsewhere provided for in this contract, for each piece of equipment must be in
accordance with the "Guarantees" clause of this contract.
________________________________________________________________
7.5.1-1 Privacy Act
(July 2008)
Prescription:
Per PGI 5.108, insert clause
7.5.1-1, Privacy Act, in all awards that require the design, development,
or operation of a system of records on individuals.
Clause:
(a) NOTICE. The Contractor will be required to design,
develop, or operate a system of records on individuals, to accomplish an FDIC
function subject to the PRIVACY ACT OF 1974 (“THE ACT”), PUBLIC LAW 93-579,
DECEMBER 31, 1974 (5 U.S.C. 552a) and applicable FDIC regulations. Violation of
THE ACT may involve the imposition of criminal penalties.
(b) The Contractor agrees
to:
(1) Comply with THE ACT and the FDIC
rules and regulations issued under THE ACT in the design, development, or
operation of any system of records on individuals to accomplish an agency
function when the contract specifically identifies:
(i)
The systems of
records; and
(ii)
The design,
development, or operation work that the contractor is to perform;
(2) Include the Privacy Act notification
contained in this contract in every solicitation and resulting subcontract and
in every subcontract awarded without a solicitation, when the work statement in
the proposed subcontract requires the design, development, or operation of a
system of records on individuals that is subject to THE ACT; and
(3) Include this clause - including
this subparagraph (3) - in all subcontracts awarded under this contract which
require the design, development, or operation of such a system of records.
(c) In the event of
violations of THE ACT, a civil action may be brought against the FDIC when the
violation concerns the design, development, or operation of a system of records
on individuals to accomplish an FDIC function, and criminal penalties may be imposed
upon the officers or employees of the FDIC when the violation concerns the
operation of a system of records on individuals to accomplish an FDIC
function. For purposes of THE ACT, when
the contract is for the operation of a system of records on individuals to
accomplish an FDIC function, the Contractor and any employee of the Contractor
is considered to be an employee of the FDIC.
(d) DEFINITIONS. As used in this clause:
(1) "Operation of a
system of records" means performance of any of the activities associated
with maintaining the system of records, including the collection, use, and dissemination
of records.
(2) "Record" means
any item, collection, or grouping of information about an individual that is
maintained by an agency, including, but not limited to, education, financial
transactions, medical history, and criminal or employment history and that
contains the person's name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a fingerprint or
voiceprint or a photograph.
(3) "System of records
on individuals" means a group of any records under the control of any
agency from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular assigned to
the individual.
________________________________________________________________
7.5.1-2 Protecting Sensitive Information (September 2010)
Prescription:
Per PGI 5.108, insert clause 7.5.1-2, Protecting Sensitive Information, in all awards in which the Contractor, its
personnel or its subcontractors may have access to FDIC facilities or systems,
or otherwise may have access to FDIC sensitive information. Add the two versions of the confidentiality
agreement as attachments
to the contract when including this clause.
Clause:
(a) Protecting Sensitive
Information. Contractor, all Contractor
Personnel, subcontractors and subcontractor personnel shall comply with FDIC
Circular 1360.9, Protecting
Sensitive Information, and protect the confidentiality, integrity and
availability of sensitive information, including personally identifiable
information (PII), to which they have access. FDIC Circular 1360.9 is
available at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
(b) Controlling Sensitive Information. All sensitive information, electronic and
paper copy, remains the property of FDIC. If Contractor or Contractor
Personnel moves or copies sensitive information to Contractor’s facilities or
equipment, they must maintain and store it separately, both physically and
logically, from all non-FDIC information. Upon completion or termination
of the contract, or at any time the Contracting Officer requests it in writing,
Contractor must return, erase, or destroy all sensitive information on any
media under its control or in its possession, as FDIC directs.
FDIC may perform
both scheduled and unannounced inspections of Contractor’s facilities and equipment
to ensure and verify compliance with FDIC security and privacy requirements.
(c) Sensitive
Information Defined. Sensitive
information is any information, the loss, misuse, or unauthorized access to or
modification of which could adversely impact the interests of FDIC in carrying
out its programs or the privacy to which individuals are entitled. It includes the following:
(1) Information that is exempt from disclosure
under the Freedom of Information Act, such as trade secrets and commercial or financial
information, information compiled for law enforcement purposes, personnel and
medical files, and information contained in bank examination reports;
(2) Information under the control of FDIC contained
in a Privacy Act system of
record that is retrieved using an individual’s name or by other criteria that
identifies an individual;
(3) PII about
individuals maintained by FDIC that if released for unauthorized use may result
in financial or personal damage to the individual to whom such information
relates. Sensitive PII, a subset of PII,
may be comprised of a single item of information (e.g., SSN) or a combination of two or more items (e.g., full
name along with, financial, medical, criminal, or employment information). Sensitive PII presents the highest risk of being misused for identity theft or
fraud; and
(4) Information about insurance assessments,
resolution and receivership activities, as well as
enforcement, legal, and contracting activities.
(d) Confidentiality
Agreement. The
Contractor, all key personnel and, at the
discretion of FDIC, any designated non-key personnel working on the contract
each must sign a confidentiality agreement. When FDIC determines non-key
personnel are required to sign confidentiality agreements, the Oversight
Manager shall provide the Contractor with a written notice of such and shall
identify whether the requirement extends to all categories of non-key personnel
or selected categories of non-key personnel.
FDIC Form 3700/46, Confidentiality
Agreement (for Contractor) and FDIC Form 3700/46A, Confidentiality
Agreement (for Contractor Personnel) are included as attachments to
this contract. The company-level
confidentiality agreement must be signed by an authorized representative of the
Contractor and delivered to the Contracting Officer at the time of award, with
the signed contract. Confidentiality
agreements for key personnel and designated non-key personnel must be delivered
to FDIC no later than five (5) business days after starting performance and
prior to receiving any sensitive information. The Contractor must deliver the
confidentiality agreements signed by key
personnel to the Contracting Officer and those signed by designated non-key
personnel to the Oversight Manager. Key
personnel and designated non-Key Personnel who do not sign a confidentiality
agreement will not be permitted to perform work on the contract.
(e) Subcontracts. Contractor must include this
clause in all its subcontracts to which the conditions and requirements
described in this clause would apply.
Contractor also must require its subcontractors (first-tier) to include
this clause in any of their subcontracts (second-tier) to which the conditions
and requirements of this clause would apply.
7.5.1-3 Access to FDIC Information Systems (June 2010)
Prescription:
Per PGI 5.108, insert clause
7.5.1-3, Access to FDIC Information Systems,
in awards for services in which contractor personnel or subcontractor personnel
may have access to FDIC's network and/or information systems.
Clause:
(a) Contractor, all
Contractor Personnel, subcontractors and subcontractor personnel granted access
to FDIC’s network/systems must comply with these FDIC directives:
(1) Information Security and Privacy Awareness
Training. FDIC Circular 1360.16 Mandatory
Information Security Awareness Training, which requires the completion of
on-line FDIC- information security and privacy awareness training and
electronic certification of completion within five (5) business days of
receiving an FDIC network ID, and annually thereafter until such time as the
access is terminated. Failure to
complete this training and provide electronic certification within the required
timeframes will result in revocation of network/system access privileges and
possible removal of contractor personnel from the contract.
(2) Acceptable Use of
Information Technology Resources. FDIC
Circular 1300.4 Acceptable Use Policy for
Information Technology Resources, which outlines the permitted and
prohibited uses of FDIC hardware, software, and information technology
services.
(3) Passwords. FDIC Circular
1360.10 Corporate Password Standards
for password configuration and maintenance requirements, which requires the use
of strong passwords, changing passwords at prescribed intervals and the
protection of passwords.
(4) Access Control. FDIC
Circular 1360.15 Access Control for
Information Technology Resources, which governs the granting and revocation
of access to information technology
resources, including the
initial approval, continued review, and eventual termination of access. Contractor shall promptly notify Oversight
Manager and Contracting Officer when personnel join or leave the contract so
access may be granted or revoked without delay.
(5) Reporting Security
Incidents. FDIC Circular 1360.12 Reporting
Computer Security Incidents, which requires reporting to FDIC’s Computer
Security Incident Response Team (CSIRT) of all suspected or actual security or
privacy incidents involving unauthorized access, misuse, tampering, bypassing
security controls, alteration, disclosure or theft of information technology
resources, data, and passwords .
(b) Subcontracts. Contractor must include this clause in all
its subcontracts to which the conditions and requirements described in this
clause would apply. Contractor also must
require its subcontractors (first-tier) to include this clause in any of their
subcontracts (second-tier) to which the conditions and requirements of this
clause would apply.
(c) The FDIC Circulars
identified in this clause are available on the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
________________________________________________________________
7.5.2-1 Background Investigation Questionnaires (July 2008)
Prescription:
Per PGI 5.204, insert
provision 7.5.2-1, Background
Investigation Questionnaires, in
all solicitations for awards for services greater than $100,000 or in which any
Contractor Personnel or subcontractor personnel will be required to undergo a
background investigation, namely when the contract requires they work on-site
and have unescorted access to FDIC offices or facilities, or have access to
FDIC networks/systems.
Provision:
Background Investigation
Questionnaires.
Pre-Award
Offeror shall submit the following document,
signed by an authorized representative:
• Background Investigation Questionnaire for
Contractors (FDIC 1600/7).
In addition, offeror shall
submit these documents, completed and signed by all Key Personnel:
• Background Investigation Questionnaire for Contract
Personnel and Subcontractors (FDIC 1600/4); and
• Notice and Authorization Pertaining to Consumer
Reports (FDIC 1600/10).
All three of the above
documents are available at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
The offeror shall submit
these documents in the volume of its proposal entitled "Background
Investigation Questionnaires". The
information submitted on these forms must be accurate and complete so as not to
delay the investigation and evaluation process.
Post-Award
The successful offeror must comply with additional background investigation requirements, as set forth in clause 7.5.2-3, Background Investigations.
________________________________________________________________
________________________________________________________________
7.5.2-3
Background Investigations (July
2008)
Prescription:
Per PGI 5.204, insert clause 7.5.2-3, Background Investigations, in: 1) all awards for services over $100,000, 2) awards at any dollar amount when Contractor Personnel or subcontractor personnel will work on-site and have unescorted access to FDIC offices or facilities, or have access to FDIC networks/systems, or 3) in any other contract where the Program Office has described a need for background investigations. (Use Alternate 1 when a waiver to FDIC Circular 1610.2 has been granted allowing the $100,000 threshold to apply separately to the value of the contract and the value of any subcontract.)
Clause:
a) Any Contractor Personnel
or subcontractor personnel who:
must undergo a background investigation, in accordance with FDIC Circular 1610.2. In addition,
background investigations are conducted
on all Contractor Personnel and subcontractor personnel on contracts and other
awards for services with a value greater than $100,000, or on any contract or
award at the discretion of the FDIC. The
extent of the background investigation conducted will be in direct relation to
the risk level assigned either in clause 7.2.2-9, Risk Level Designation – Entire Contract or in clause 7.5.2-10, Risk Level Designation – Labor Category. FDIC Circular 1610.2 is available at the FDIC
website: www.fdic.gov/buying/goods/acquisition/index.html
b) Prior to obtaining an
FDIC identification/access badge and commencing work under the contract,
Contractor Personnel and subcontractor personnel are required to undergo both a
fingerprint and a credit check. In
addition, Contractor Personnel and subcontractor personnel may be subject to an
OPM background
investigation, based on the risk level assigned to the contract or
to the labor categories. No Contractor Personnel or subcontractor personnel,
including any new personnel added at any time during the term of the contract,
shall be permitted to begin work until the fingerprint and the credit check
processes have been completed and FDIC has rendered a favorable determination,
and the paperwork for any further OPM background
investigations has been
submitted.
c) Contractor must provide
the Oversight Manager with the following documents for all Contractor Personnel
and subcontractor personnel subject to the background investigation requirement:
1) An executed Background
Investigation Questionnaire for Contractor Personnel and Subcontractors
(FDIC 1600/04);
2) An executed Notice
and Authorization Pertaining to Consumer Reports (FDIC 1600/10);
3) A
Fingerprint Card (The contractor must
submit FD Form 258 Fingerprint Card or coordinate with the Oversight Manager to
schedule fingerprinting by the Security and Emergency Preparedness Section of FDIC.)
FDIC
Forms 1600/04 and 1600/10 are available at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
In addition, where the assigned risk level
of the contract mandates background investigations by the Office
of Personnel Management, the Contractor must provide the Oversight Manager
with the completed paperwork for Contractor Personnel and subcontractor
personnel needed to initiate an OPM background
investigation. The
Oversight Manager will notify the Contractor of the method by which to submit
the paperwork - either manually, using Standard Form 85P Questionnaire for Public Trust Positions, or via e-QIP (the OPM Electronic-
Questionnaires-for-Investigations-Processing system). If any Contractor Personnel or subcontractor
personnel have received a background investigation-clearance from another
federal agency within the last 5 years, at the same or a higher risk level as
that assigned to this contract, the Contractor may also provide the following
to the OM:
A
Certificate of Investigation or a Letter of Consent or other documentation from
a government agency, verifying the date
of the investigation, the investigating agency, the type of investigation
completed and the clearance given.
d) Any Contractor Personnel
or subcontractor personnel, whose background investigation reveals an
adverse finding, may be excluded from working on the contract at the discretion
of the Contracting Officer. Contractor
is obligated to replace any personnel so excluded with personnel acceptable to
FDIC. Replacement of personnel shall be
made at no additional cost to the FDIC and without relieving Contractor of
performance and delivery requirements of the contract.
e) Contractor must comply
with Homeland Security Presidential Directive-12 (HSPD-12) and Federal
Information Processing Standard Publication 201 (FIPS 201) entitled “Personal Identification Verification for
Federal Employees and Contractors”.
Contractor Personnel and subcontractor personnel must present two forms
of identification in original form prior to badge issuance; at least one
document must be a valid State or federal government-issued picture ID. Acceptable forms of identification are listed
in Form I-9, OMB No.,
1615-0047, “Employment Eligibility
Verification.” In addition,
Contractor Personnel and subcontractor personnel must appear in person at least
once before an FDIC official who is responsible for checking the identification
documents. FDIC will not issue
identification/access badges to Contractor Personnel and subcontractor
personnel until proof-of-identity has been established.
f) Subcontracts. Contractor must include this clause in all
its subcontracts to which the conditions and requirements described in this
clause would apply. Contractor also must
require it subcontractors (first-tier) to include this clause in any of their
subcontracts (second-tier) to which the conditions and requirements of this
clause would apply.
________________________________________________________________
7.5.2-3 Alternate 1 (May 2009)
Prescription:
Per PGI 5.204, insert
7.5.2-3 Alternate 1 in awards when a waiver to FDIC Circular 1610.2 has been
granted which allows the $100,000 threshold for requiring background
investigations to apply separately to the value of the contract and the value
of any subcontract.
Clause:
Substitute the following paragraph (a) for paragraph (a) of the basic
clause
7.5.2-3.
a) Any Contractor Personnel or subcontractor personnel who:
must undergo a
background investigation, in accordance with FDIC Circular 1610.2. In
addition, background investigations are conducted on all:
· Contractor Personnel on contracts and other awards for services with a value greater than $100,000, and
·
subcontractor
personnel on subcontracts for services with a value greater than $100,000.
Background investigations
may be done on any contract or award at the discretion of the FDIC. The extent of the background investigation
conducted will be in direct relation to the risk level assigned either in clause
7.5.2-9, Risk Level Designation – Entire Contract or in clause 7.5.2-10,
Risk Level Designation – Labor Category. FDIC Circular 1610.2 is
available at the FDIC website: www.fdic.gov/buying/goods/acquisition/index.html
________________________________________________________________
________________________________________________________________
________________________________________________________________
7.5.2-6 RESERVED ________________________________________________________________
7.5.2-7 RESERVED ________________________________________________________________
________________________________________________________________
7.5.2-9 Risk
Level Designation (Entire Contract)
(July 2008)
Prescription:
Per PGI 5.204, insert clause
7.5.2-9, Risk Level Designation - Entire Contract, in all awards for services
over $100,000 or awards at any dollar amount when the Program Office has
designated a risk level for the contract, per the policy set out in Circular
1610.2. Under this clause, the risk
level applies to the entire contract and all labor categories that perform on
the contract.
Clause:
The risk level for this
contract is: ___________. The post-award
background investigations for this
contract will be done at this risk level.
________________________________________________________________
7.5.2-10 Risk
Level Designation (Labor Category) (July
2008)
Prescription:
Per PGI 5.204, insert clause
7.5.2-10, Risk Level Designation - Labor Category, in all awards for services
over $100,000 or at any dollar amount when the Program Office has designated a
risk level for the labor categories in the contract, per the policy set out in
Circular 1610.2. Under this clause, the
risk levels have been established for each labor category; not for the contract
as a whole.
Clause:
The risk levels for the labor categories in this
Contract are:
Labor Category Risk
Level
a.
b.
c.
The post-award background investigations for these labor
categories will be done at these risk levels.
________________________________________________________________
7.5.2-11
Identification/Access Badges
(July 2008)
Prescription:
Per PGI 5.204, insert the
clause 7.5.2-11, Identification/Access
Badge, in awards for services in which the Contractor may work on-site at
FDIC and require unescorted access to FDIC facilities.
Clause:
All contractor and
subcontractor employees regularly working on-site at an FDIC facility must be
issued an identification/access control badge.
Such employees will not be granted on-site access until receiving the
badge. Renewal of the badges is required
semiannually.
________________________________________________________________
________________________________________________________________
7.5.2-13 Use of FDIC Premises by Contractor
Personnel (July 2008)
Prescription:
Per PGI 5.204, insert clause
7.5.2-13, Use of Premises by Contractor
Personnel, in all awards in which the Contractor may access FDIC offices or
facilities.
Clause:
Contractor shall comply with
the FDIC directives governing access to and operations at FDIC offices and
facilities, while on FDIC premises. The directives are available at the FDIC
website: www.fdic.gov/buying/goods/acquisition/index.html,
or may be obtained from the Oversight Manager.
Contractor is responsible for assuring that its personnel understand and
observe these directives. Contractor shall perform its contract activities in a
manner which does not interrupt or interfere with the business conducted at
FDIC.
Subcontracts. Contractor must include this clause in all
its subcontracts to which the conditions and requirements described in this
clause would apply. Contractor also must
require it subcontractors (first-tier) to include this clause in any of their
subcontracts (second-tier) to which the conditions and requirements of this
clause would apply.
________________________________________________________________
7.5.3-1 Section 508, Electronic and Information
Technology (EIT) -
(BOA/RBOA/BPA) (July 2008)
Prescription:
Per PGI 5.304, insert
clause7.5.3-1, Section 508, Electronic
and Information Technology - (BOA/RBOA/BPA), in all BOAs, RBOAs and BPAs where
electronic and information technology is being
developed, purchased or maintained.
Clause:
Electronic and information
technology developed,
purchased or maintained under any task order issued hereunder must conform to
and be in compliance with the applicable Standards of Section 508 of the
Rehabilitation Act and the
Architectural and Transportation Barriers Compliance Board’s (Access Board’s)
Electronic and Information Technology Accessibility Standards (36 CFR Part
1194) at the time of delivery. The specific Standards will be contained in each
task order, as required.
Under any maintenance
agreement, Contractor agrees to maintain compliance with habilitation Act of
1973 for all
hardware/software.
________________________________________________________________
7.5.3-2 Section 508, Electronic and Information
Technology (EIT) -
(Contract or Task Order) (July 2008)
Prescription:
Per PGI 5.304, insert clause
7.5.3-2, Section 508, Electronic and
Information Technology - (Contract or Task Order), in all awards other than
BOAs, RBOAs and BPAs where
electronic and information technology is being
developed, purchased or maintained. FDIC must fill in the blanks next to the
standards that apply to the award.
Clause:
Electronic and information
technology (EIT) purchased, developed or maintained under this
contract or task order must conform to and be in compliance with the applicable
provisions of the Architectural and Transportation Barriers Compliance Board’s
(Access Board’s) Electronic and Information Technology Accessibility Standards
(Subpart B, 36 CFR Part 1194) at the time of delivery.
The applicable Standard(s)
for this contract [is] [are]:
[ ] 1194.21
[ ] 1194.22
[ ] 1194.23
[ ] 1194.24
[ ] 1194.25
[ ] 1194.26
Contractor shall also comply
with Subpart C, 36 CFR §1194.31 – Functional Performance Criteria and Subpart
D, 36 CFR §1194.41 – Information, Documentation, and Support.
Under any maintenance
agreement, Contractor agrees to maintain compliance with Section 508 of the Rehabilitation Act of 1973 for all hardware/software.
________________________________________________________________
7.5.4-1 Authorization and Consent (July 2008)
Prescription:
Per PGI 5.405, insert clause
7.5.4-1, Authorization and Consent,
in all construction awards and any awards involving the application of
patentable business methods, such as online auction services.
Clause:
(a) The FDIC authorizes and
consents to all use and manufacture, in performing this contract or any
subcontract at any tier, of any invention described in and covered by a United
States patent (1) embodied in the structure or composition of any article the
delivery of which is accepted by the FDIC under this contract or (2) used in
machinery, tools, or methods whose use necessarily results from compliance by
the Contractor or a subcontractor with (i) specifications or written provisions
forming a part of this contract or (ii) specific written instructions given by
the Contracting Officer directing the manner of performance. The entire
liability to the FDIC for infringement of a patent of the United States shall
be determined solely by the provisions of the indemnity clause, if any,
included in this contract or any subcontract hereunder (including any
lower-tier subcontract), and the FDIC assumes liability for all other
infringement to the extent of the authorization and consent hereinabove
granted.
(b) The Contractor agrees to include, and
require inclusion of, this clause, suitably modified to identify the parties,
in all subcontracts at any tier for supplies or services (including construction,
architect-engineer services, and materials, supplies, models, samples, and
design or testing services expected to exceed $100,000); however, omission of
this clause from any subcontract, including those at or below $100,000, does
not affect this authorization and consent.
________________________________________________________________
7.5.4-2 Notice and Assistance Regarding Patent and
Copyright Infringement (July 2008)
Prescription:
Per PGI 5.405, insert clause
7.5.4-2, Notice and Assistance Regarding
Patent and Copyright Infringement, in all construction awards; awards in
which original data is transferred or developed by a Contractor for use by the
FDIC; awards in which educational or training materials are developed by a
Contractor for the use by the FDIC; and awards involving the licensing of any
intellectual property.
Clause:
(a) The Contractor shall report to the
Contracting Officer, promptly and in reasonable written detail, each notice or
claim of patent or
copyright infringement based on the performance of this contract of which the
Contractor has knowledge.
(b) In the event of any claim or suit
against the FDIC on account of any alleged patent or copyright infringement arising
out of the performance of this contract or out of the use of any supplies
furnished or work or services performed under this contract, the Contractor
shall furnish to the FDIC, when requested by the Contracting Officer, all
evidence and information in possession of the Contractor pertaining to such
suit or claim. Such evidence and information shall be furnished at the expense
of the FDIC except where the Contractor has agreed to indemnify the Government.
(c) The Contractor agrees to include, and require
inclusion of, this clause in all subcontracts at any tier for supplies or
services (including construction and architect-engineer subcontracts and those
for material, supplies, models, samples, or design or testing services).
________________________________________________________________
7.5.4-3 Patent Indemnity (July 2008)
Prescription:
Per PGI 5.405, insert clause
7.5.4-3, Patent Indemnity, in all
construction awards and any award involving the application of patentable
business methods, such as online auction services.
Clause:
(a) The Contractor shall
indemnify the FDIC and its officers, agents, and employees against liability,
including costs, for infringement of any United States patent (except a patent
issued upon an application that is now or may hereafter be withheld from issue
pursuant to a Secrecy Order under 35 U.S.C 181) arising out of the manufacture
or delivery of supplies, the performance of services, or the construction,
alteration, modification, or repair of real property (hereinafter referred to
as “construction work”) under this contract, or out of the use or disposal by
or for the account of the FDIC of such supplies or construction work.
(b) This indemnity shall not apply unless the
Contractor shall have been informed as soon as practicable by the FDIC of the
suit or action alleging such infringement and shall have been given such
opportunity as is afforded by applicable laws, rules, or regulations to
participate in its defense. Further, this indemnity shall not apply to—
(1) An infringement resulting from compliance with specific written
instructions of the Contracting Officer directing a change in the supplies to
be delivered or in the materials or equipment to be used, or directing a manner
of performance of the contract not normally used by the Contractor;
(2) An infringement resulting from
addition to or change in supplies or components furnished or construction work
performed that was made subsequent to delivery or performance; or
(3) A claimed infringement that is
unreasonably settled without the consent of the Contractor, unless required by
final decree of a court of competent jurisdiction.
________________________________________________________________
7.5.4-4 Patent Rights-Retention by the
Contractor (July 2008)
Prescription:
Per PGI 5.405, Insert clause
7.5.2-4, Patent Rights—Retention by the
Contractor, in awards in which use of an invention developed by the
Contractor under the contract is a core component of the services provided by
the Contractor. This clause is to be used when patent rights are to be retained
by the Contractor instead of the FDIC.
Clause:
(a) Definitions.
(1) “Invention” means any invention or
discovery which is or may be patentable or otherwise protectable under Title 35
of the United States Code.
(2) “Made” when used in relation to any
invention means the conception or first actual reduction to practice of such
invention.
(3) “Practical application” means to
manufacture, in the case of a composition of product; to practice, in the case
of a process or method, or to operate, in the case of a machine or system; and,
in each case, under such conditions as to establish that the invention is being
utilized and that is benefits are, to the extent permitted by law or Government
regulations, available to the public on reasonable terms.
(4) “Subject invention” means any
invention of the contractor conceived or first actually reduced to practice in
the performance of work under this contract.
(b) Allocation of principal
rights. The Contractor may retain the entire right, title, and interest
throughout the world to each subject invention subject to the provisions of
this clause and 35 U.S.C 203. With respect to any subject invention in which
the Contractor retains title, the FDIC shall have a nonexclusive,
nontransferable, irrevocable, paid-up license to practice or have practiced for
or on behalf of the United States the subject invention throughout the world.
(c) Invention disclosure,
election of title, and filing of patent application by Contractor.
(1) The Contractor will disclose each
subject invention to the FDIC within 2 months after the inventor discloses it
in writing to Contractor personnel responsible for patent matters. The
disclosure to the FDIC shall be in the form of a written report and shall
identify the contract under which the invention was made and the inventor(s).
It shall be sufficiently complete in technical detail to convey a clear
understanding to the extent known at the time of the disclosure, of the nature,
purpose, operation, and the physical, chemical, biological or electrical
characteristics of the invention. The disclosure shall also identify any
publication, on sale or public use of the invention and whether a manuscript
describing the invention has been submitted for publication and, if so, whether
it has been accepted for publication at the time of disclosure. In addition,
after disclosure to the FDIC, the Contractor will promptly notify the FDIC of the
acceptance of any
manuscript describing the invention for publication or of any on sale or public
use planned by the Contractor.
(2) The Contractor will elect in
writing whether or not to retain title to any such invention by notifying the
FDIC within 2 years of disclosure to the FDIC. However, in any case where
publication, on sale or public use has initiated the 1-year statutory period
wherein valid patent protection can still be obtained in the United States, the
period for election of title may be shortened by the agency to a date that is
no more than 60 days prior to the end of the statutory period.
(3) The Contractor will file its
initial patent application on a subject invention to which it elects to retain
title within 1 year after election of title or, if earlier, prior to the end of
any statutory period wherein valid patent protection can be obtained in the
United States after a publication, on sale, or public use. The Contractor will
file patent applications in additional countries or international patent
offices within either 10 months of the corresponding initial patent application
or 6 months from the date permission is granted by the Commissioner of Patents
and Trademarks to file foreign patent applications where such filing has been
prohibited by a Secrecy Order.
(4) Requests for extension of the time
for disclosure election, and filing under paragraphs (c)(1), (2), and (3) of
this clause may, at the discretion of the agency, be granted.
(d) Conditions when the FDIC
may obtain title. The Contractor will convey to the FDIC, upon written request,
title to any subject invention—
(1) If the Contractor fails to disclose
or elect title to the subject invention within the times specified in paragraph
(c) of this clause, or elects not to retain title; provided, that the agency
may only request title within 60 days after learning of the failure of the
Contractor to disclose or elect within the specified times.
(2) In those countries in which the
Contractor fails to file patent applications within the times specified in
paragraph (c) of this clause; provided, however, that if the Contractor has
filed a patent application in a country after the times specified in paragraph
(c) of this clause, but prior to its receipt of the written request of the
FDIC, the Contractor shall continue to retain title in that country.
(3) In any country in which the
Contractor decides not to continue the prosecution of any application for, to
pay the maintenance fees on, or defend in reexamination or opposition
proceeding on, a patent on a subject invention.
(e) Minimum rights to
Contractor and protection of the Contractor right to file.
(1) The Contractor will retain a
nonexclusive royalty-free license throughout the world in each subject
invention to which the FDIC obtains title, except if the Contractor fails to
disclose the invention within the times specified in paragraph (c) of this
clause. The Contractor’s license extends to its domestic subsidiary and
affiliates, if any, within the corporate structure of which the Contractor is a
party and includes the right to grant sublicenses of the same scope to the
extent the Contractor was legally obligated to do so at the time the contract
was awarded. The license is transferable only with the approval of the FDIC,
except when transferred to the successor of that part of the Contractor’s
business to which the invention pertains.
(2) The Contractor’s domestic license
may be revoked or modified by the FDIC to the extent necessary to achieve
expeditious practical application of subject invention pursuant to an
application for an exclusive license submitted in accordance with applicable
provisions at 37 CFR Part 404. This license will not be revoked in that field
of use or the geographical areas in which the Contractor has achieved practical
application and continues to make the benefits of the invention reasonably
accessible to the public. The license in any foreign country may be revoked or
modified at the discretion of the FDIC to the extent the Contractor, its
licensees, or the domestic subsidiaries or affiliates have failed to achieve
practical application in that foreign country.
(3) Before revocation or modification of
the license, the FDIC will furnish the Contractor a written notice of its
intention to revoke or modify the license, and the Contractor will be allowed
30 days (or such other time as may be authorized by the FDIC for good cause
shown by the Contractor) after the notice to show cause why the license should
not be revoked or modified. The Contractor has the right to appeal, in accordance with applicable regulations in 37 CFR
Part 404 and agency regulations, if any, concerning the licensing of
Government-owned inventions, any decision concerning the revocation or
modification of the license.
(f) Contractor action to
protect the FDIC’s interest.
(1) The Contractor agrees to execute or
to have executed and promptly deliver to the FDIC all instruments necessary to—
(i) Establish or confirm the
rights the FDIC has throughout the world in those subject inventions to which
the Contractor elects to retain title; and
(ii) Convey title to the FDIC
when requested under paragraph (d) of this clause and to enable the FDIC to
obtain patent protection throughout the world in that subject invention.
(2) The Contractor agrees to require,
by written agreement, its employees, other than clerical and nontechnical
employees, to disclose promptly in writing to personnel identified as
responsible for the administration of patent matters and in a format suggested
by the Contractor each subject invention made under contract in order that the
Contractor can comply with the disclosure provisions of paragraph (c) of this
clause, and to execute all papers necessary to file patent applications on
subject inventions and to establish the FDIC’s rights in the subject
inventions. This disclosure format should require, as a minimum, the
information required by paragraph (c)(1) of this clause. The Contractor shall
instruct such employees, through employee agreements or other suitable
educational programs, on the importance of reporting inventions in sufficient
time to permit the filing of patent applications prior to U.S. or foreign
statutory bars.
(3) The Contractor will notify the FDIC
of any decisions not to continue the prosecution of a patent application, pay
maintenance fees, or defend in a reexamination or opposition proceeding on a
patent, in any country, not less than 30 days before the expiration of the
response period required by the relevant patent office.
(4) The Contractor agrees to include,
within the specification of any United States patent application and any patent
issuing thereon covering a subject invention, the following statement, “This
invention was made with FDIC support under (identify the contract) awarded by
the FDIC. The United States Government has certain rights in the invention.”
(g) Subcontracts.
(1) The Contractor will include this
clause, suitably modified to identify the parties, in all subcontracts,
regardless of tier, for experimental, developmental, or research work to be
performed by a small business firm or domestic nonprofit organization. The
subcontractor will retain all rights provided for the Contractor in this
clause, and the Contractor will not, as part of the consideration for awarding
the subcontract, obtain rights in the subcontractor’s subject inventions.
(2) The Contractor will include in all
other subcontracts, regardless of tier, for experimental, developmental, or
research work the patent rights clause required by this clause.
(3) In the case of subcontracts, at any
tier, the agency, subcontractor, and the Contractor agree that the mutual
obligations of the parties created by this clause constitute a contract between
the subcontractor and the FDIC with respect to the matters covered by the
clause.
(h) Reporting on utilization
of subject inventions. The Contractor agrees to submit, on request, periodic
reports no more frequently than annually on the utilization of a subject
invention or on efforts at obtaining such utilization that are being made by
the Contractor or its licensees or assignees. Such reports shall include
information regarding the status of development, date of first commercial sale
or use, gross royalties received by the Contractor, and such other data and
information as the agency may reasonably specify. The Contractor also agrees to
provide additional reports as may be requested by the agency in connection with
any march-in proceeding undertaken by the agency in accordance with paragraph
(j) of this clause. As required by 35 U.S.C. 202(c)(5), the FDIC agrees it will
not disclose such information to persons outside the Government without
permission of the Contractor.
(i) Preference for United
States industry. Notwithstanding any other provision of this clause, the
Contractor agrees that neither it nor any assignee will grant to any person the
exclusive right to use or sell any subject invention in the United States
unless such person agrees that any product embodying the subject invention or
produced through the use of the subject invention will be manufactured
substantially in the United States. However, in individual cases, the
requirement for such an agreement may be waived by the FDIC upon a showing by
the Contractor or its assignee that reasonable but unsuccessful efforts have
been made to grant licenses on similar terms to potential licensees that would
be likely to manufacture substantially in the United States or that under the
circumstances domestic manufacture is not commercially feasible.
(j) March-in rights. The
Contractor agrees that, with respect to any subject invention in which it has
acquired title, the FDIC has the right in accordance with the procedures in 37
CFR 401.6 and any supplemental regulations of the agency to require the
Contractor, an assignee or exclusive licensee of a subject invention to grant a
nonexclusive, partially exclusive, or exclusive license in any field of use to
a responsible applicant or applicants, upon terms that are reasonable under the
circumstances, and if the Contractor, assignee, or exclusive licensee refuses
such a request the FDIC has the right to grant such a license itself if the
FDIC determines that—
(1) Such action is necessary because
the Contractor or assignee has not taken, or is not expected to take within a
reasonable time, effective steps to achieve practical application of the
subject invention in such field of use;
(2) Such action is necessary to
alleviate health or safety needs which are not reasonably satisfied by the
Contractor, assignee, or their licensees;
(3) Such action is necessary to meet
requirements for public use specified by Federal regulations and such
requirements are not reasonably satisfied by the Contractor, assignee, or
licensees; or
(4) Such action is necessary because
the agreement required by paragraph (i) of this clause has not been obtained or
waived or because a licensee of the exclusive right to use or sell any subject
invention in the United States is in breach of such agreement.
(k) Special provisions for
contracts with nonprofit organizations. If the Contractor is a nonprofit
organization, it agrees that—
(1) Rights to a subject invention in
the United States may not be assigned without the approval of the FDIC, except
where such assignment is made to an organization which has as one of its primary
functions the management of inventions; provided, that such assignee will be
subject to the same provisions as the Contractor;
(2) The Contractor will share royalties
collected on a subject invention with the inventor, including Federal employee
co-inventors when the subject invention is assigned in accordance with 35
U.S.C. 202(e) and 37 CFR 401.10;
(3) The balance of any royalties or
income earned by the Contractor with respect to subject inventions, after
payment of expenses (including payments to inventors) incidental to the
administration of subject inventions will be utilized for the support of
scientific research or education; and
(4) As used in this clause, “Nonprofit
organization” means a domestic university or other institution of higher
education or an organization of the type described in section 501(c)(3) of the
Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from taxation under
section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit
scientific or educational organization qualified under a state nonprofit
organization statute.
________________________________________________________________
7.5.4-5 Patent Rights-Acquisition by the FDIC (July 2008)
Prescription:
Per PGI 5.405, Insert clause
7.5.4-5, Patent Rights—Acquisition by the
FDIC in awards in which use of an invention developed by the Contractor
under the contract is a core component of the services provided by the
Contractor. This clause is to be used
when patent rights are to be transferred to the FDIC.
Clause:
(a) Definitions.
“Invention,” as used in this clause, means any invention or discovery which is
or may be patentable or otherwise protectable under Title 35 of the United
States Code.
“Practical application,” as used in this
clause, means to manufacture, in the case of a composition or product; to
practice, in the case of a process or method; or to operate, in the case of a
machine or system; and, in each case, under such conditions as to establish
that the invention is being utilized and that its benefits are, to the extent
permitted by law or Government regulations, available to the public on
reasonable terms.
“Subject invention,” as used in this clause,
means any invention of the Contractor conceived or first actually reduced to
practice in the performance of work under this contract
(b) Allocations of principal
rights— The Contractor agrees to assign to the FDIC the entire right, title,
and interest throughout the world in and to each subject invention.
________________________________________________________________
7.5.4-6 FDIC Rights in Data-General (July 2008)
Prescription:
Per PGI 5.405, insert clause
7.5.4-6, FDIC Rights in Data—General,
in awards in which original data or software applications are transferred or
developed by a Contractor for use by the FDIC; contracts in which educational
or training materials are developed by a Contractor for use by the FDIC; and
contracts involving the licensing of any intellectual property by the
Contractor to the FDIC.
Clause:
(a) Definitions. “Computer
software,” as used in this clause, means computer programs, computer data
bases, and documentation thereof.
“Data,” as used in this
clause, means recorded information, regardless of form or the media on which it
may be recorded. The term includes technical data and computer software. The
term does not include information incidental to contract administration, such
as financial, administrative, cost or pricing, or management information.
“Form, fit, and function
data,” as used in this clause, means data relating to items, components, or
processes that are sufficient to enable physical and functional
interchangeability, as well as data identifying source, size, configuration,
mating, and attachment characteristics, functional characteristics, and
performance requirements; except that for computer software it means data
identifying source, functional characteristics, and performance requirements
but specifically excludes the source code, algorithm, process, formulae, and
flow charts of the software.
“Limited rights,” as used in
this clause, means the rights of the FDIC in limited rights data as set forth
in the Limited Rights Notice of paragraph (g)(2) if included in this clause.
“Limited rights data,” as
used in this clause, means data (other than computer software) that embody
trade secrets or are commercial or financial and confidential or privileged, to
the extent that such data pertain to items, components, or processes developed
at private expense, including minor modifications thereof.
“Restricted computer
software,” as used in this clause, means computer software developed at private
expense and that is a trade secret; is commercial or financial and is
confidential or privileged; or is published copyrighted computer software,
including minor modifications of such computer software.
“Restricted rights,” as used
in this clause, means the rights of the FDIC in restricted computer software,
as set forth in a Restricted Rights Notice of paragraph (g)(3) if included in
this clause, or as otherwise may be provided in a collateral agreement
incorporated in and made part of this contract, including minor modifications
of such computer software.
“Technical data,” as used in
this clause, means data (other than computer software) which are of a
scientific or technical nature.
“Unlimited rights,” as used
in this clause, means the right of the FDIC to use, disclose, reproduce,
prepare derivative works, distribute copies to the public, and perform publicly
and display publicly, in any manner and for any purpose, and to have or permit
others to do so.
(b) Allocation of rights.
(1) Except as provided in paragraph (c)
of this clause regarding copyright, the FDIC shall have unlimited rights in—
(i) Data first produced in the
performance of this contract;
(ii) Form, fit, and function
data delivered under this contract;
(iii) Data delivered under this
contract (except for restricted computer software) that constitute manuals or
instructional and training material for installation, operation, or routine
maintenance and repair of items, components, or processes delivered or
furnished for use under this contract; and
(iv) All other data delivered
under this contract unless provided otherwise for limited rights data or
restricted computer software in accordance with paragraph (g) of this clause.
(2) The Contractor shall have the right
to—
(i) Use, release to others,
reproduce, distribute, or publish any data first produced or specifically used
by the Contractor in the performance of this contract, unless provided
otherwise in paragraph (d) of this clause;
(ii) Protect from unauthorized
disclosure and use those data which are limited rights data or restricted
computer software to the extent provided in paragraph (g) of this clause;
(iii) Substantiate use of, add
or correct limited rights, restricted rights, or copyright notices and to take
other appropriate action, in accordance with paragraphs (e) and (f) of this
clause; and
(iv) Establish claim to copyright
subsisting in data first produced in the performance of this contract to the extent
provided in paragraph (c)(1) of this clause.
(c) Copyright—
(1) Data first produced in the
performance of this contract. Unless provided otherwise in paragraph (d) of
this clause, the Contractor may establish, without prior approval of the
Contracting Officer, claim to copyright
subsisting in scientific and technical articles based on or containing data
first produced in the performance of this contract and published in academic,
technical or professional journals, symposia proceedings or similar works. The
prior, express written permission of the Contracting Officer is required to
establish claim to copyright subsisting in all other data first produced in the
performance of this contract. When claim to copyright is made, the Contractor
shall affix the applicable copyright notices of 17 U.S.C. 401 or 402 and
acknowledgment of FDIC sponsorship (including contract number) to the data when
such data are delivered to the FDIC, as well as when the data are published or
deposited for registration as a published work in the U.S. Copyright Office.
For data other than computer software the Contractor grants to the FDIC, and
others acting on its behalf, a paid-up, nonexclusive, irrevocable worldwide
license in such copyrighted data to reproduce, prepare derivative works,
distribute copies to the public, and perform publicly and display publicly, by
or on behalf of the FDI. For computer software, the Contractor grants to the
Government and others acting in its behalf, a paid-up nonexclusive, irrevocable
worldwide license in such copyrighted computer software to reproduce, prepare
derivative works, and perform publicly and display publicly by or on behalf of
the FDIC.
(2) Data not first produced in the
performance of this contract. The Contractor shall not, without prior written
permission of the Contracting Officer, incorporate in data delivered under this
contract any data not first produced in the performance of this contract and
which contains the copyright notice of 17 U.S.C. 401 or 402, unless the
Contractor identifies such data and grants to the FDIC, or acquires on its
behalf, a license of the same scope as set forth in paragraph (c)(1) of this
clause; provided, however, that if such data are computer software the FDIC
shall acquire a copyright license as set forth in paragraph (g)(3) of this
clause if included in this contract or as otherwise may be provided in a
collateral agreement incorporated in or made part of this contract.
(3) Removal of copyright notices. The
FDIC agrees not to remove any copyright notices placed on data pursuant to this
paragraph (c), and to include such notices on all reproductions of the data.
(d) Release, publication and
use of data.
(1) The Contractor shall have the right
to use, release to others, reproduce, distribute, or publish any data first
produced or specifically used by the Contractor in the performance of this
contract, except to the extent such data may be subject to the Federal export
control or national security laws or regulations, or unless otherwise provided
in this paragraph of this clause or expressly set forth in this contract.
(2) The Contractor agrees that to the
extent it receives or is given access to data necessary for the performance of
this contract which contain restrictive markings, the Contractor shall treat
the data in accordance with such markings unless otherwise specifically
authorized in writing by the Contracting Officer.
(e) Unauthorized marking of
data.
(1) Notwithstanding any other
provisions of this contract concerning inspection or acceptance, if any data delivered under this contract are
marked with the notices specified in paragraph (g)(2) or (g)(3) of this clause
and use of such is not authorized by this clause, or if such data bears any
other restrictive or limiting markings not authorized by this contract, the
Contracting Officer may at any time either return the data to the Contractor,
or cancel or ignore the markings. However, the following procedures shall apply
prior to canceling or ignoring the markings.
(i) The Contracting Officer
shall make written inquiry to the Contractor affording the Contractor 30 days
from receipt of the inquiry to provide written justification to substantiate
the propriety of the markings;
(ii) If the Contractor fails to
respond or fails to provide written justification to substantiate the propriety
of the markings within the 30-day period (or a longer time not exceeding 90
days approved in writing by the Contracting Officer for good cause shown), the
FDIC shall have the right to cancel or ignore the markings at any time after
said period and the data will no longer be made subject to any disclosure
prohibitions.
(iii) If the Contractor provides
written justification to substantiate the propriety of the markings within the
period set in subdivision (e)(1)(i) of this clause, the Contracting Officer
shall consider such written justification and determine whether or not the
markings are to be cancelled or ignored. If the Contracting Officer determines
that the markings are authorized, the Contractor shall be so notified in
writing. If the Contracting Officer determines, with concurrence of the head of
the contracting activity, that the markings are not authorized, the Contracting
Officer shall furnish the Contractor a written determination, which
determination shall become the final agency decision regarding the
appropriateness of the markings unless the Contractor files suit in a court of
competent jurisdiction within 90 days of receipt of the Contracting Officer’s
decision. The Government shall continue to abide by the markings under this
subdivision (e)(1)(iii) until final resolution of the matter either by the
Contracting Officer’s determination becoming final (in which instance the
Government shall thereafter have the right to cancel or ignore the markings at
any time and the data will no longer be made subject to any disclosure
prohibitions), or by final disposition of the matter by court decision if suit
is filed.
(2) The time limits in the procedures
set forth in paragraph (e)(1) of this clause may be modified in accordance with
agency regulations implementing the Freedom of Information Act (5 U.S.C. 552)
if necessary to respond to a request there under.
(f) Omitted or incorrect
markings.
(1) Data delivered to the FDIC without
either the limited rights or restricted rights notice as authorized by
paragraph (g) of this clause, or the copyright notice required by paragraph (c)
of this clause, shall be deemed to have been furnished with unlimited rights,
and the FDIC assumes no liability for the disclosure, use, or reproduction of
such data. However, to the extent the data has not been disclosed without
restriction outside the Government, the Contractor may request, within 6 months
(or a longer time approved by the Contracting Officer for good cause shown)
after delivery of such data, permission to have notices placed on qualifying
data at the Contractor’s expense, and the Contracting Officer may agree to do
so if the Contractor—
(i) Identifies the data to
which the omitted notice is to be applied;
(ii) Demonstrates that the
omission of the notice was inadvertent;
(iii) Establishes that the use
of the proposed notice is authorized; and
(iv) Acknowledges that the FDIC
has no liability with respect to the disclosure, use, or reproduction of any
such data made prior to the addition of the notice or resulting from the
omission of the notice.
(2) The Contracting Officer may also
(i) permit correction at the Contractor’s expense of incorrect notices if the
Contractor identifies the data on which correction of the notice is to be made,
and demonstrates that the correct notice is authorized, or (ii) correct any
incorrect notices.
(g) Protection of limited
rights data and restricted computer software.
(1) When data other than that listed in
subdivisions (b)(1)(i), (ii), and (iii) of this clause are specified to be
delivered under this contract and qualify as either limited rights data or
restricted computer software, if the Contractor desires to continue protection
of such data, the Contractor shall withhold such data and not furnish them to
the Government under this contract. As a condition to this withholding, the Contractor shall identify the data being
withheld and furnish form, fit, and function data in lieu thereof. Limited
rights data that are formatted as a computer data base for delivery to the
Government are to be treated as limited rights data and not restricted computer
software.
(h) Subcontracting. The
Contractor has the responsibility to obtain from its subcontractors all data
and rights therein necessary to fulfill the Contractor’s obligations to the
FDIC under this contract. If a subcontractor refuses to accept terms affording
the FDIC such rights, the Contractor shall promptly bring such refusal to the
attention of the Contracting Officer and not proceed with subcontract award
without further authorization.
(i) Relationship to patents.
Nothing contained in this clause shall imply a license to the FDIC under any
patent or be construed as affecting the scope of any license or other right
otherwise granted to the FDIC.
________________________________________________________________
7.5.4-7 Rights in Data-Special Works (January 2010)
Prescription:
Per PGI 5.405, insert clause
7.5.4-7, Rights in Data—Special Works,
in awards involving specially commissioned copyrightable works in which the
Contractor should not acquire any copyright in the works unless specifically
approved by the Contracting Officer.
Clause:
(a) Definitions.
“Data,” as used in this
clause, means any and all documents, information, and records collected,
produced, used, and/or recorded in the performance of this contract, regardless
of the form or media on which it may be recorded, including but not limited to
work products, notes, analyses, results, forms, reports, and data. The term includes shopping scenarios,
scripts, profiles, questionnaires, training materials, and computer software,
databases, and reports.
“Unlimited rights,” as used
in this clause, means the right of the FDIC to use, disclose, reproduce,
prepare derivative works, distribute copies to the public, and perform publicly
and display publicly, in any manner and for any purpose whatsoever, and to have
or permit others to do so.
(b) Allocation of Rights.
(1) The FDIC shall have—
(i) Unlimited rights in all
data delivered under this contract, and in all data first produced in the
performance of this contract, except as provided in paragraph (c) of this
clause for copyright.
(ii) The right to limit
exercise of claim to copyright
in data first produced in the performance of this contract, and to obtain
assignment of copyright in such data, in accordance with paragraph (c)(1)(ii)
of this clause.
(2) The Contractor shall have, to the
extent permission is granted in accordance with paragraph (c)(1) of this
clause, the right to establish claim to copyright
subsisting in data first produced in the performance of this contract.
(c) Copyright—
(1) Data first produced in the
performance of this contract.
(i) The Contractor agrees not
to assert, establish, or authorize others to assert or establish, any claim to copyright
subsisting in any data first produced in the performance of this contract
without prior written permission of the Contracting Officer. When claim to
copyright is made, the Contractor shall affix the appropriate copyright notice
of 17 U.S.C. 401 or 402 and acknowledgment
of FDIC sponsorship (including contract number) to such data when delivered to
the FDIC, as well as when the data are published or deposited for registration
as a published work in the U.S. Copyright Office. The Contractor grants to the
FDIC, and others acting on its behalf, a paid-up nonexclusive, irrevocable,
worldwide license for all such data to reproduce, prepare derivative works,
distribute copies to the public, and perform publicly and display publicly, by
or on behalf of the FDIC.
(ii) If the FDIC desires to obtain copyright
in data first produced in the performance of this contract and permission has
not been granted as set forth in subdivision (c)(1)(i) for the Contractor to
claim copyright, the Contractor shall assign and transfer any right to
copyright such data first produced simultaneously with it registration of such
copyright for the FDIC in the U.S. Copyright Office.
______________________________________________________________
7.5.4-8 Rights in Data-Existing Works (January 2010)
Prescription:
Per PGI 5.405, insert clause
7.5.4-8, Rights in Data—Existing Works,
in awards in which pre-existing copyrighted materials are used by the
Contractor in the performance of the contract.
Clause:
(a) Except as otherwise
provided in this contract, the Contractor grants to the FDIC, and others acting
on its behalf, a paid-up nonexclusive, irrevocable, worldwide license to
reproduce, prepare derivative works, and perform publicly and display publicly,
by or on behalf of the FDIC,for all the material or subject matter called for
under this contract, or for which this clause is specifically made applicable.
(b) The Contractor shall
indemnify the FDIC and its officers, agents, and employees acting for the FDIC
against any liability, including costs and expenses, incurred as the result of
(1) the violation of trade secrets, copyrights, or right of privacy or
publicity, arising out of the creation, delivery, publication or use of any
data furnished under this contract; or (2) any libelous or other unlawful
matter contained in such data. The provisions of this paragraph do not apply
unless the FDIC provides notice to the Contractor as soon as practicable of any
claim or suit,
affords the Contractor an opportunity under applicable laws, rules, or
regulations to participate in the defense thereof, and obtains the Contractor’s
consent to the settlement of any suit or
claim other than as required by final decree of a court of competent
jurisdiction; and do not apply to material furnished to the Contractor by the
FDIC and incorporated in data to which this clause applies.
________________________________________________________________
7.5.4-9 Commercial Computer Software-Restricted
Rights (July 2008)
Prescription:
Per PGI 5.405, insert clause
7.5.4-9, Commercial Computer
Software—Restricted Rights, in awards which include the acquisition of
commercial computer software, except orders under GSA's Multiple Award Schedules.
Clause:
(a) As used in this clause,
“restricted computer software” means any computer program, computer data base,
or documentation thereof, that has been developed at private expense and either
is a trade secret, is commercial or financial and confidential or privileged,
or is published and copyrighted.
(b) Notwithstanding any
provisions to the contrary contained in any Contractor’s standard commercial
license or lease agreement pertaining to any restricted computer software
delivered under this purchase order/contract, and irrespective of whether any such
agreement has been proposed prior to or after issuance of this purchase
order/contract or of the fact that such agreement may be affixed to or
accompany the restricted computer software upon delivery, vendor agrees that
the FDIC shall have the rights that are
set forth in paragraph (c) of this clause to use, duplicate or disclose any
restricted computer software delivered under this purchase order/contract. The
terms and provisions of this contract, including any commercial lease or
license agreement, shall be subject to paragraph (c) of this clause and shall
comply with Federal laws.
(c) (1) The restricted computer software
delivered under this contract may not be used, reproduced or disclosed by the
FDIC except as provided in paragraph (c)(2) of this clause or as expressly
stated otherwise in this contract.
(2) The restricted computer software
may be—
(i) Used or copied for use in
or with the computer or computers for which it was acquired, including use at
any FDIC installation to which such computer or computers may be transferred;
(ii) Used or copied for use in
or with backup computer if any computer for which it was acquired is
inoperative;
(iii) Reproduced for
safekeeping (archives) or backup purposes;
(iv) Modified, adapted, or
combined with other computer software, provided that the modified, combined, or
adapted portions of the derivative software incorporating any of the delivered,
restricted computer software shall be subject to same restrictions set forth in
this purchase order/contract;
(v) Disclosed to and reproduced
for use by support service Contractors or their subcontractors, subject to the
same restrictions set forth in this purchase order/contract; and
(vi) Used or copied for use in
or transferred to a replacement computer.
(3) If the restricted computer software
delivered under this purchase order/contract is published and copyrighted, it is
licensed to the FDICt, without disclosure prohibitions, with the rights set
forth in paragraph (c)(2) of this clause unless expressly stated otherwise in
this purchase order/ contract.
(4) To the extent feasible the
Contractor shall affix a Notice substantially as follows to any restricted
computer software delivered under this purchase order/contract; or, if the vendor
does not, the FDIC has the right to do so:
NOTICE—Notwithstanding any
other lease or license agreement that may pertain to, or accompany the delivery
of, this computer software, the rights of the FDIC regarding its use, reproduction and
disclosure are as set forth in FDIC contract (or Purchase Order) No. _____.
(d) If any restricted
computer software is delivered under this contract with the copyright notice of
17 U.S.C. 401, it will be presumed to be
published and copyrighted and licensed to the FDIC in accordance with paragraph
(c)(3) of this clause, unless a statement substantially as follows accompanies
such copyright notice:
Unpublished—rights reserved
under the copyright laws of the United States.
________________________________________________________________
7.5.5-1 Option Period
(July 2008)
Prescription:
Per PGI 5.504, insert
clause7.5.5-1, Option Period, in awards which include option periods.
Clause:
The Period of Performance
may be extended, at the discretion of the FDIC, for [_____ ( )] ( "Option Period(s)"). Except where specifically indicated
otherwise, "Period of Performance" as used hereafter in this contract
refers both to the initial Period of Performance and to any Option Period which may be exercised.
________________________________________________________________
7.5.5-2 Notice of Exercise of Option (July 2008)
Prescription:
Per PGI 5.504, insert clause
7.5.5-2, Notice of Exercise of Option, in awards which include option periods.
Clause:
If the FDIC desires to
exercise the option to extend the
Period of Performance, the FDIC must notify Contractor, in writing, of its
intent not less than _______ (__) days before the expiration of the current
Period of Performance.
________________________________________________________________
7.5.6-1 Prohibition on Subcontracting (July 2008)
Prescription:
Per PGI 5.605, insert clause
7.5.6-1, Prohibition on Subcontracting,
in solicitations when subcontracting will not be permitted.
Clause:
Subcontracting is not
permitted under the contract.
________________________________________________________________
7.5.6-2 Subcontracting Reporting (January 2011)
Prescription:
Per PGI 5.605, insert clause
7.5.6-2, Subcontracting Reporting, in awards when subcontracting is approved.
Clause:
If subcontracting is approved under this award, the Contractor must submit a subcontracting report, on a quarterly basis, addressing the following for each subcontractor:
a. Subcontractor’s Name, Address, and DUNS number.
b. Subcontractor’s type of
business concern [Minority Owned (including ethnicity), Women Owned, Small
Disadvantaged Business, Veteran Owned, and/or Service Disabled Veteran Owned
Business].
c. Estimated percentage of
the contract work to be performed by the subcontractor. (Applicable only to
awards with Subcontracting Plans.)
d. Description of work performed by subcontractor during the report period and dates, or range of dates, performance was accomplished.
e. Compensation paid to
subcontractor during reporting period.
*f. Total compensation paid to subcontractor cumulative to date.
*g. Percentage completion toward Subcontracting Plan goals. (Applicable only to awards with Subcontracting Plans.)
The Contractor must provide
the subcontracting report to FDIC using the FDIC Subcontracting Reporting
System (SRS). The SRS is a web-based
system that is accessible via the internet at https://www2.fdic.gov/SRSweb/. Contractor may access a copy of the SRS Prime
Contractor User Guide in the Miscellaneous section of the following webpage: http://www.fdic.gov/buying/goods/acquisition/index.html.
The subcontracting report
must be submitted within 15 days after the end of each quarter (i.e., by April
15th for Quarter 1 ending March 31st , by July 15th
for Quarter 2 ending June 30th, by October 15th for
Quarter 3 ending September 30th, and by January 15th for
Quarter 4 ending December 31st.
*(Note: Contractor will not be able to enter into SRS
the information required under paragraphs f and g until SRS undergoes a
modification/upgrade. Contractor shall
nevertheless collect the information so they can complete these requirements
once SRS has been modified/upgraded.)
________________________________________________________________
7.5.6-3 Subcontracting Reporting (BOAs/RBOAs/BPAs) (January 2011)
Prescription:
Per PGI 5.605, insert clause
7.5.6-3, Subcontracting Reporting (BOAs/RBOAs/BPAs), in BOAs, RBOAs or BPAs if subcontracting is approved.
Clause:
If subcontracting is approved at the task order level, the Contractor must submit a subcontracting report, on a quarterly basis, by task order, addressing the following for each subcontractor:
a. Subcontractor’s Name, Address, and DUNS number.
b. Subcontractor’s type of business concern [Minority Owned (including ethnicity), Women Owned, Small Disadvantaged Business Veteran Owned and/or Service Disabled Veteran Owned Business].
c. Estimated percentage of
the task order work to be performed by the subcontractor. (Applicable only to awards with
Subcontracting Plans.)
d. Description of work
performed by subcontractor during the report period and dates, or range of
dates, performance was accomplished.
e. Compensation paid to
subcontractor during reporting period.
*f. Total compensation paid to subcontractor cumulative to date.
*g. Percentage completion toward Subcontracting Plan goals. (Applicable only to awards with Subcontracting Plans.)
The Contractor must provide
the subcontracting report to FDIC using the FDIC Subcontracting Reporting
System (SRS). The SRS is a web-based
system that is accessible via the internet at https://www2.fdic.gov/SRSweb/. Contractor may access a copy of the SRS Prime
Contractor User Guide in the Miscellaneous section of the following webpage: http://www.fdic.gov/buying/goods/acquisition/index.html.
The subcontracting report
must be submitted within 15 days after the end of each quarter (i.e., by April
15th for Quarter 1 ending March 31st , by July 15th
for Quarter 2 ending June 30th, by October 15th for
Quarter 3 ending September 30th, and by January 15th for
Quarter 4 ending December 31st.
*(Note: Contractor will not be able to enter into SRS
the information required under paragraphs f and g until SRS undergoes a
modification/upgrade. Contractor shall
nevertheless collect the information so they can complete these requirements
once SRS has been modified/upgraded.)
________________________________________________________________
7.5.6-4 Approved Subcontractors and Consent to
Subcontract (February 2010)
Prescription:
Per PGI 5.605, insert clause
7.5.6-4, Approved Subcontractors and
Consent to Subcontract in all awards, with the following exception: use
Alternate 1 when a waiver to the APM requirement for approval of subcontractors
has been granted for subcontracts valued at $100,000 and under.
Clause:
Contractor must not engage
subcontractors to perform any of its responsibilities without the prior written
approval of the FDIC. Subcontractors identified
in Contractor’s proposal prior to award are deemed approved. Contractor must notify the FDIC of any
changes in subcontracting arrangements.
If Contractor proposes to add a subcontractor after award, Contractor
must obtain consent from the Contracting Officer. Contractor must send a written request to the
Contracting Officer, along with a Subcontracting Plan, or amended Subcontracting Plan, as applicable, which sets forth the following:
(1)
Name,
address and DUNS number of the subcontractor;
(2)
Summary of capabilities of the subcontractor;
(3)
Description
of roles of Key Personnel of
the subcontractor;
(4)
Estimated
percentage of work to be performed by the subcontractor;
(5)
Description
of work to be performed by the subcontractor;
(6)
Minority or Women-Owned Business (MWOB) designation of
the subcontractor, i.e., Women-Owned, Minority-Owned. If Minority-Owned, also provide the
subcontractor’s ethnic/racial category from the following list:
Asian-Pacific American
Subcontinent Asian (Asian-Indian)
American
Black American
Hispanic American
Native American
Other than one of the preceding
(7)
SDB certification, if any, of subcontractor; and
(8)
Rationale
and the offeror’s policy for subcontracting, including a description of how the
subcontracting commitments will be met.
In the case of time and
material or labor hour contracts, the
contractor must provide pricing support for the reasonableness of the proposed
labor rates. If markup on the
subcontractor rates has been approved by the Contracting Officer, any proposed
markup rates must be identified in the pricing support.
Subcontractor must not begin
work until the contractor receives written approval by the FDIC Contracting
Officer.
The following subcontractors
are approved for performance under this contract:
___________________
____________________
____________________
Consent by the FDIC to any
proposed subcontractor must not: (1)
constitute a determination of the acceptability of any subcontract terms or
conditions; or (2) constitute a determination of the acceptability of any amount
paid under any subcontract; or (3) relieve Contractor of any of its
responsibilities under the award.
Contractor must notify the FDIC Contracting Officer of any changes in
subcontracting arrangements.
________________________________________________________________
7.5.6-4 Alternate 1 (May 2009)
Prescription:
Per PGI 5.605, insert
7.5.6-4 Alternate 1 in awards when a waiver to the APM requirement for approval
of subcontractors has been granted for subcontracts valued at $100,000 and
under.
Clause:
Insert the following paragraph as the first paragraph of the basic clause 7.5.6-4.
The requirements of this clause only apply to subcontractors with subcontract amounts greater than $100,000.
________________________________________________________________
7.5.6-5 Subcontracting Plan Compliance
(July 2008)
Prescription:
Per PGI 5.605, insert clause
7.5.6-5, Subcontracting Plan Compliance, in awards where subcontracting has been approved.
Clause:
If subcontracting is
approved under this award, the Subcontracting Plan must be
considered a material part of the contract.
The Contractor’s failure to comply with and make progress under the
Subcontracting Plan may be considered a breach of contract. In addition, failure to achieve the stated
subcontracting goals may result in the issuance of a cure notice or show cause
letter for purposes of termination for default and/or have a
negative and adverse impact on the Contractor’s past performance record to be considered during
proposal evaluation on future solicitations.
________________________________________________________________
7.5.8-1 Liability Insurance (April 2010)
Prescription:
Per PGI 5.807, insert clause
7.5.8-1, Liability Insurance, in
awards over $100,000.
Clause:
Contractor, before
commencing work or permitting any subcontractor to commence work, shall procure
and maintain the following insurance or, should such insurance be cancelled, the FDIC
shall have the right to procure such insurance and the cost thereof shall be
deducted from monies then due or which thereafter become due to
Contractor. Contractor may carry any
additional insurance as it may deem necessary.
Contractor shall not be deemed to be relieved of any responsibility by
the fact that Contractor carries insurance.
The FDIC shall require any contractor of the FDIC performing work on
FDIC premises to carry and maintain, at no expense to the FDIC:
(a) Worker's Compensation
and Employer's Liability Insurance in accordance with the applicable laws of
the state in which the work is to be performed or of the state in which
Contractor is obligated to pay compensation to employees engaged in the
performance of the work. The policy
limit under the Employer's Liability Insurance section shall not be less than
One Hundred Thousand Dollars ($100,000) for any one accident; and
(b) Comprehensive Bodily Injury
and Property Damage Liability Insurance covering the work, the performance of
the work and everything incidental thereto, with Bodily Injury (including
death) and Property Damage limits of not less than Five Million Dollars
($5,000,000) per occurrence combined single limit. This policy shall be endorsed to cover: Contractual liability coverage, completed
operations coverage, and broad form property damage endorsement; and
(c) Automobile Public
Liability and Property Damage Insurance, including coverage on owned, hired,
and non-owned automobiles and other vehicles, if used in connection with the
performance of the work, with Bodily Injury and Property Damage limits of not
less than One Million Dollars ($1,000,000) per occurrence combined single limit;
and
(d) Such other insurance as may be
required elsewhere in the Agreement documents.
The FDIC shall be named as
Additional Insured under Contractor's Comprehensive Bodily Injury and Property
Damage Liability Insurance, and Automobile Public Liability and Property Damage
Insurance coverage. Contractor's insurance shall be
primary.
________________________________________________________________
7.5.8-2 Certificates of Insurance (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-2, Certificates of Insurance,
in awards over $100,000.
Clause:
Contractor must provide to
the Contracting Officer, no later than ten (10) calendar days after the date of
execution, a Certificate of Insurance, identifying the required types of
insurance and dollar
limits. The Certificate of Insurance
must include the following FDIC mailing address and reference the contract
number:
Federal Deposit Insurance
Corporation
Attention: _____________________________
_____________________________________
_____________________________________
Reference: Contract No. __________________
Contractor must have its
insurance carrier or
carriers certify to the FDIC that all insurance required is in force, such
certificates to stipulate that the insurance will not be cancelled or
substantially changed without thirty (30) days prior notice by Certified Mail
to the FDIC Contracting Officer.
Upon request of the
Contracting Officer, Contractor must provide the FDIC with a binder or a copy
of the original insurance policy.
________________________________________________________________
7.5.8-3 Insurance for Equipment/Tools (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-3, Insurance for Equipment/Tools,
in construction awards and other awards in which the Contractor will use its
equipment, tools, supplies, or materials on FDIC premises.
Clause:
Contractor is responsible
for insurance coverage on
its equipment, tools, supplies and any other materials which it may use or
store in the course of the work on FDIC premises. The FDIC is not liable for any loss or damage
to the equipment and tools of Contractor or its employees or its
subcontractors.
________________________________________________________________
7.5.8-4 Notice to the FDIC on Damages (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-4, Notice to the FDIC on Damages,
in awards over $100,000.
Clause:
Contractor must promptly notify
the Contracting Officer of all damages to property of the FDIC or of others, or
injuries incurred by persons other than employees of Contractor in any manner
relating, either directly or indirectly, to the work.
________________________________________________________________
7.5.8-5 Cost of Insurance (July 2008)
Prescription:
Per PGI 5.807 insert clause
7.5.8-5 Cost of Insurance, in awards
over $100,000.
Clause:
Contractor's expenses in
fulfilling the insurance requirements
must not be reimbursed by the FDIC.
________________________________________________________________
7.5.8-6 Payment and/or Performance Bonds (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-6, Payment and/or Performance Bonds,
in construction awards valued at or above $100,000.
Clause:
(a) A "bond," as used herein, means a written instrument
executed by Contractor and a surety to assure
fulfillment of Contractor's obligations to the FDIC. A "surety" means an individual or
corporation legally liable for the debt, default, or failure of Contractor to
satisfy the contractual obligation. The
"penal amount" means the amount of money specified in the
bond as the maximum payment for which the surety is obligated. See also clause 4.1.29, Pledges of Assets,
concerning individual sureties. The acceptance of a bond and
of a surety is totally within the discretion of the FDIC.
(b) Contractor must provide
to the Contracting Officer, prior to commencing performance of the
contract: (1) a payment bond which assures
payments, as required by law, to all persons supplying labor or material in the
prosecution of work provided for in the contract and which carries a penal
amount of fifty
percent (50%) of the original contract amount and (2) a performance bond which
secures performance and fulfillment of Contractor's obligations under the
contract and which carries a penal amount of one hundred percent (100%) of the
original contract amount.
(c) If any surety furnishing a
performance or payment bond in connection
with the contract becomes unacceptable to FDIC or fails to furnish reports on
its financial condition as requested by the Contracting Officer, or if the
contract price increases to the point where the security furnished becomes
inadequate in the Contracting Officer's opinion, the contractor must promptly
furnish additional security as required to protect the interests of FDIC and of
persons supplying labor or materials in performance of a contract.
7.5.8-7 Fidelity Bond Coverage (April 2010)
Prescription:
Per PGI 5.807, insert clause
7.5.8-7, Fidelity Bond Coverage, in
all awards when the program office informs the Contracting Officer that
coverage is necessary.
Clause:
Contractor must maintain
fidelity bond coverage of at
least _______________ Dollars ($____________) at all times during the Period of
Performance of the contract. Fidelity
bond coverage must be with a responsible carrier or bonding company with a
financial rating of at least B+ VI from A.M. Best or an equivalent rating
agency. The fidelity bond must cover all
of Contractor's employees, partners, trustees, brokers, subcontractors, agents,
affiliates or other representatives involved in the day-to-day performance of
the contract, and must protect the FDIC against losses, including, without
limitation, those arising from theft, embezzlement, fraud, or misplacement of funds,
money, or documents. The FDIC must be
named as "loss payee" on Contractor's fidelity bond. Contractor may,
in lieu of a fidelity bond, deliver an unconditional, irrevocable letter of
credit for the dollar amount required for fidelity bond coverage, issued in the
FDIC's favor by a financial institution acceptable to the FDIC. The expiration date of the letter of credit
must not be any earlier than sixty (60) days after the expiration date of the
contract, as that date may be extended under the Option provision of the
contract.
Contractor must provide the
FDIC with evidence of its fidelity bond coverage,
either in the form of a binder or a copy of the fidelity bond, or provide its letter of credit no later than ten
(10) days after the date of execution of the contract. Contractor agrees to notify the FDIC
Contracting Officer in writing within five (5) business days of any notice or
proposal of cancellation, termination or modification of fidelity bond coverage
that Contractor receives.
________________________________________________________________
_______________________________________________________________
7.5.8-9 Errors and Omissions Insurance (August 2009)
Prescription:
Per PGI 5.807, insert clause
7.5.8-9, Errors and Omissions Insurance,
in awards when the program office informs the Contracting Officer that coverage
is necessary.
Clause:
Contractor must maintain at
all times during the Period of Performance of the contract, at its own expense,
errors and omissions insurance coverage in
the amount of at least _________________ Dollars ($____________). Contractor must provide the FDIC, no later
than ten (10) calendar days after the date of execution of the contract, evidence
of errors and omissions coverage. Such
evidence may be (1) a binder or (2) a copy of the original policy. Contractor
must also provide, no later than ten (10) calendar days after the date of
execution, a Certificate of Insurance which must reference the contract Number
and include the FDIC's mailing address, as specified on the award cover
sheet.
Contractor must obtain and
maintain such coverage with a responsible carrier with at least a financial
rating of B+ VI from A.M. Best or equivalent rating agency. Contractor agrees to notify the FDIC
Contracting Officer in writing within five (5) business days of the first
notice or proposal of cancellation, termination or modification of coverage
which Contractor receives.
Contractor may, in lieu of
insurance coverage,
obtain and deliver to the FDIC an unconditional, irrevocable letter of credit
issued in the FDIC's favor by a financial institution acceptable to the FDIC
for the dollar amount required for insurance coverage. The letter of credit must have an expiration
date no earlier than sixty (60) days after the termination or expiration of the
contract, as the contract may be extended.
The issuer, policy terms and
forms and amounts of any errors and omissions insurance coverage, including
applicable deductibles, must be satisfactory to the FDIC.
________________________________________________________________
________________________________________________________________
7.5.8-11 Liability to Third Persons (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-11, Liability to Third Persons,
in all awards.
Clause:
The FDIC does not assume any
liability to third persons for loss due to death, bodily injury, or damage to
property resulting from the performance of this contract or any subcontract,
nor will the FDIC reimburse Contractor for its liability to third persons.
________________________________________________________________
7.5.8-12 Pledge of Assets (July 2008)
Prescription:
Per PGI 5.807, insert clause
7.5.8-12 Pledges of Assets, in all
awards when an individual surety is required as
a term of the contract.
Clause:
(a) Offerors shall obtain
from each person acting as an individual surety on a bid guarantee,
a performance bond, or a payment bond--
(1) Pledge of assets; and
(2) Standard Form 28, Affidavit of
Individual Surety.
(b) Pledges of assets from
each person acting as an individual surety shall be in the
form of--
(1) Evidence of an escrow account
containing cash, certificates of deposit, commercial or Government securities,
and/or;
(2) A recorded lien on real
estate. The offeror will be required to
provide:
(i) Evidence of title in the
form of a certificate of title prepared by a title insurance company
approved by the United States Department of Justice. This title evidence must show fee simple
title vested in the surety along with any
concurrent owners; whether any real estate taxes are due and
payable; and any recorded encumbrances against the property, including the lien
filed in favor of the FDIC;
(ii) Evidence of the amount due
under any encumbrance shown in the evidence of title;
(iii) A copy of the current
real estate tax assessment of the property or a current appraisal dated no
earlier than six (6) months prior to the date of the bond, prepared by a professional appraiser who certifies
that the appraisal has been conducted in accordance with the generally accepted
appraisal standards as reflected in the Uniform Standards of Professional
Appraisal Practice as promulgated by the Appraisal Foundation.
________________________________________________________________
7.5.9-1 FDIC Exempt from Federal, State, and Local
Taxes (July 2008)
Prescription:
Per PGI 5.904 and 5.1306,
insert clause 7.5.9-1 FDIC Exempt from
Federal, State, and Local Taxes, in all awards.
Clause:
FDIC is a Federal Government
corporation and is exempt from State and local sales taxes. Therefore,
it will not pay state and local sales tax on invoices submitted to
it and if included, the amounts will be deducted from the total amount
invoiced. Since most taxing
jurisdictions charge taxes on goods and sometimes services purchased by
contractors in the performance of federal contracts, FDIC will pay those costs
if included in the contractor’s proposal. FDIC will furnish evidence of its
exemption from any Federal, State, or local tax at the Contractor’s request, if
there is a basis for claiming exemption.
________________________________________________________________
7.5.10-1 Warranty of Construction (July 2008)
Prescription:
Per PGI 5.1008, insert
clause 7.5.10-1, Warranty of Construction, in all construction awards.
Clause:
(a) In addition to any other
warranties in this
contract, Contractor warrants, except as provided in paragraph (j) of this
clause, that work performed under this contract conforms to the contract
requirements and is free of any defect in equipment, material, or design
furnished, or workmanship performed by Contractor or any subcontractor or
supplier at any tier.
(b) This warranty must continue
for a period of one (1) year from the date of final acceptance of the
work. If the FDIC takes possession of
any part of the work before final acceptance, this warranty must continue for a
period of one (1) year from the date the FDIC takes possession.
(c)
Contractor must remedy at Contractor's expense any failure to conform, or any
defect. In addition, Contractor must
remedy at Contractor’s expense any damage to FDIC owned or controlled real or
personal property, when that damage is the result of
(1) Contractor's failure to conform to
contract requirements; or
(2) Any defect of equipment, material,
workmanship, or design furnished.
(d) Contractor must restore
any work damaged in fulfilling the terms and conditions of this clause. Contractor's warranty with respect
to work repaired or replaced will run for one (1) year from the date of repair
or replacement.
(e) The Contracting Officer
must notify Contractor, in writing, within a reasonable time after the
discovery of any failure, defect, or damage.
(f) If Contractor fails to
remedy any failure, defect, or damage within a reasonable time after receipt of
notice, the FDIC must have the right to replace, repair, or otherwise remedy
the failure, defect, or damage at Contractor's expense.
(g) With respect to all
warranties, express or implied, from subcontractors,
manufacturers, or suppliers for work performed and materials furnished under
this contract, Contractor must
(1) Obtain all warranties that would be
given in normal commercial practice;
(2) Require all warranties to be
executed, in writing, for the benefit of the FDIC, if directed by the
Contracting Officer; and
(3) Enforce all warranties for the
benefit of the FDIC, if directed by the Contracting officer.
(h) In the event
Contractor's warranty under
paragraph (b) of this clause has expired, the FDIC may bring suit at its
expense to enforce a subcontractor's, manufacturer's, or supplier's warranty.
(i) Unless a defect is
caused by the negligence of Contractor or any subcontractor or supplier at any
tier, Contractor is not liable for the repair of any defects of material or
design furnished by the FDIC or for the repair of any damage that results from
any defect in FDIC-furnished material or design.
(j) This warranty does not limit
the FDIC's rights under the "Inspection and acceptance" clause of this contract with respect to latent
defects, gross mistakes, or fraud.
(k) Defects in design or
manufacture of equipment specified by the FDIC on a "brand name and
model" basis shall not be included in this warranty. In this
event, Contractor shall require any subcontractors, manufacturers, or suppliers
thereof to execute their warranties, in writing, directly to the FDIC.
________________________________________________________________
7.5.10-2 Guarantees
(July 2008)
Prescription:
Per PGI 5.1008, insert
clause 7.5.10-2, Guarantees, in all
construction awards.
Clause:
(a) Unless otherwise
provided in the specifications, Contractor guarantees all work to be in
accordance with contract requirements and free from defective or inferior
materials, equipment, and workmanship for one (1) year after the date of final
acceptance or the date
the equipment or work was placed in use by the FDIC, whichever occurs first.
(b) If, within any guarantee
period, the Contracting Officer finds that guaranteed work requires repair or
change because of defective or inferior materials, equipment, or workmanship or
is not in accordance with the contract requirements, the Contracting Officer
must notify Contractor in writing.
Contractor must promptly, and without additional expense to the FDIC,
correct:
(1) All guaranteed work;
(2) All damage to equipment, the site,
the building or its contents resulting from the unsatisfactory guaranteed work;
and
(3) Any work, materials, and equipment
that are disturbed in fulfilling the guarantee.
(c) Any special guarantees
that may be required under the contract will be subject to paragraphs (a) and
(b), insofar as they do not conflict with special guarantees.
(d) Contractor must furnish
to the FDIC: (1) each transferable
guarantee or warranty of equipment,
materials, or installation furnished by any manufacturer, supplier, or
installer in the ordinary course of business; (2) all information required to
make such guarantee or warranty legally binding and effective; and (3) the
information in the guarantee or warranty in sufficient time to permit the FDIC
to meet any time limit specified in the guarantee or warranty or, if no time
limit is specified, prior to completion and acceptance of all work
under this contract.
______________________________________________________________
7.5.11-1 Service Contract Act of 1965
(July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-1, Service Contract Act of
1965, in service contracts over $2,500
entered into by FDIC in its corporate capacity where the principal
purpose of the contract is to furnish services through "service employees", as defined in subparagraph (k) of the clause.
Clause:
(a) Application. The Service Contract Act of 1965, as amended – 41 U.S.C.
§351 et seq. – (“SCA”) applies to this contract. The
regulations of the Secretary of Labor, found at 29 C.F.R. Part 4, apply as
well.
(b) Compensation.
(1) Wages and Fringe Benefits. Each service employee (defined in
subparagraph K) employed in the performance of this contract by Contractor or
any subcontractor is to be paid not less than the minimum monetary wages and is
to be furnished the fringe benefits, as determined by the Secretary of Labor or
authorized representative, and as specified in any wage determination attached
to this contract.
(2) Conforming Classes of Service
Employees.
(i) If a wage determination is
attached to this contract, Contractor must classify any class of service
employee not listed
therein, which is to be employed to perform work under the contract, so as to
provide a reasonable relationship (i.e., an appropriate level of skill
comparison) between unlisted classifications and the classifications listed in
the wage determination. Contractor is
required to pay the monetary wages and to furnish the fringe benefits, as
determined under the procedures in this paragraph, to this conformed class of
employees.
(ii) This conforming procedure
is initiated by Contractor prior to the performance of contract work by an
unlisted class of employees. Contractor
must submit a written report of the proposed conforming action - including
information regarding the agreement or disagreement of the authorized representative
of the employees involved or, where there is no authorized representative, the
employees themselves - to the Contracting Officer no later than thirty (30)
days after an unlisted class of employees performs any contract work. The Contracting Officer will review the
proposed action and promptly submit a report of the action, together with the
FDIC's recommendation and all pertinent information - including the position of
Contractor and the employees - to the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, for review. The Wage and Hour Division will approve,
modify, or disapprove the action, or render a final determination in the event
of disagreement, within thirty (30) days of receipt or will notify
the Contracting Officer within thirty (30) days of receipt that additional time
is necessary.
(iii) The final determination
by the Wage and Hour Division will be transmitted to the Contracting Officer
who will promptly notify Contractor of the action taken. Contractor must furnish each affected
employee with a written copy of the determination or post it as a part of the
wage determination.
(iv) No Single Formula.
(A) The process of
establishing wage and fringe benefit rates that bear a reasonable relationship
to those listed in a wage determination cannot be reduced to any single
formula. The approach used may vary from
wage determination to wage determination depending on the circumstances. Standard wage and salary administration
practices which rank various job factors, for example, may be relied upon. Guidance may also be obtained from the way
different jobs are rated under Federal pay systems (Federal Wage Board Pay
System and the General Schedule) or from other wage determinations issued in
the same locality. Basic to the
establishment of any conformable wage rate is the concept that a pay
relationship should be maintained between job classifications based on the
skill required and the duties performed.
(B) In the case of a contract modification,
an exercise of an option or extension
of an existing contract, or in any other case where a contractor succeeds to a
contract under which the classification in question was previously conformed pursuant
to this paragraph, a new conformed wage rate and fringe benefits may be
assigned to the conformed classification by indexing (i.e., adjusting) the
previous conformed rate and fringe benefits, where appropriate, between the
wages and fringe benefits specified for all wage determinations and those
specified for the corresponding classifications in the previous wage
determination. Where conforming actions
are accomplished in accordance with this
paragraph prior to the performance of the contract work by the unlisted class
of employees, Contractor must advise the Contacting Officer of the action
taken, but the other procedures in subparagraph (b)(2)(ii) need not be
followed.
(C) In any event, no
employee engaged in performing work on this
contract shall be paid less than the currently applicable minimum wage
specified under section 6(a)(1) of the Fair Labor Standards Act of 1938, as
amended.
(v) The Contractor is required
to pay all employees performing in a classification
the wage rate and fringe benefits determined pursuant to subparagraph (b)(2) of
this clause from the first day on which contract work is performed. Failure to pay unlisted employees
compensation at the determined wage rate, retroactive to the date the class of
employees commenced contract work, is a violation of the SCA and this
contract.
(vi) Upon discovery of a
Contractor’s failure to comply with subparagraph (b)(2) of this clause, the
Wage and Hour Division will make a final determination of conformed
classification, wage rate and fringe benefits which will be applied
retroactively to the date the class of employees commenced work.
(3) Adjustment of Compensation. If the term of this contract is more than one
(1) year, the minimum monetary wages and fringe benefits Contractor is required
to pay or furnish to service employees under this contract is subject to
adjustment after one (1) year and not less often than once every two (2) years,
under wage determinations issued by the Wage and Hour Division.
(c) Obligation to Furnish
Fringe Benefits. Contractor or the
subcontractor may discharge the obligation to furnish fringe benefits, as
specified in the wage determination attached to the contract or as determined
under subparagraph (b)(2)(ii) of this clause, by furnishing any equivalent
combination of bona fide fringe benefits or by making equivalent or
differential cash payments only, in accordance with the rules set forth in
Subpart D of 29 C.F.R. Part 4.
(d) Minimum Wage and
Predecessor Contracts Subject to Collective Bargaining Agreements.
(1) In the absence of a wage
determination attachment for this contract, Contractor and any subcontractor
under this contract are obligated to pay any person performing work under this
contract (regardless of whether the person is a service employee) no less than the minimum wage specified by section
6(a)(1) of the Fair Labor Standards Act of 1938, as amended. Nothing in this clause relieves Contractor or
any subcontractor of any other obligation under law or contract for payment of
a higher wage to any employee.
(2)
If this contract succeeds a contract subject to the SCA, under which substantially the same services were
furnished in the same locality and service employees were paid wages and fringe
benefits provided for in a collective bargaining agreement, and if there is no
wage determination attachment for this contract setting forth collectively
bargained wage rates and fringe benefits, then
Contractor and any subcontractor under this contract are obligated to
pay any service employee performing any of the contract work (regardless of
whether or not the employee was employed under the predecessor contract) no
less than the wages and fringe benefits provided for in the collective
bargaining agreement This includes
accrued wages and fringe benefits and any prospective increase in wages and
fringe benefits provided for under the agreement.
No contractor or
subcontractor under this contract may be relieved of the foregoing obligation
unless the limitations of 29 C.F.R. §4.1b(b) apply or unless the
Secretary of Labor or the Secretary's authorized representative either:
• finds, after hearing as
provided in 29 C.F.R. §4.10, that the wages or fringe benefits provided
for in the collective bargaining agreement are substantially at variance with
those that prevail for services of a similar character in the locality, or
• determines, as provided in
29 C.F.R. §4.11, that the collective bargaining agreement, which
applied to service employees employed under the predecessor
contract, was not entered into as a result of arm's length negotiations.
Where one of the two
situations described above is found, then the Department of Labor will issue a
new or revised wage determination of the applicable wage rates and fringe
benefits. This determination is made
part of the contract or subcontract, in accordance with the decision of the
Administrator, the Administrative Law Judge, or the Board of Service Contract
Appeals, as the case may be, irrespective of whether its issuance occurs prior
to or after the award of a contract or subcontract (See 53 Comp. Gen. 401
(1973)). A wage determination issued
solely as a result of a finding of substantial variance is effective as of the
date of the final administrative decision.
(e) Notification to
Employees. Contractor and any
subcontractor under this contract either must notify each service employee commencing
work on this contract of the minimum monetary wage paid and any fringe benefits
furnished pursuant to this contract or post the wage determination attached to
this contract. The poster provided by
the Department of Labor (Publication WH 1313) must be posted in a prominent and
accessible place at the work site. Failure to comply with this requirement is a
violation of section 2(a)(4) of the SCA and this
contract.
(f) Safe and Sanitary
Working Conditions. Contractor and any
subcontractor are obligated to comply with the safety and health standards
applied under 29 C.F.R. Part 1925. No
part of the services under this contract is to be performed in buildings or
surroundings or under working conditions (provided for by, or under the control
or supervision of, Contractor or any subcontractor) that are unsanitary,
hazardous or dangerous to the health or safety of the service employees.
(g) Records.
(1) Contractor and each subcontractor
performing work subject to the SCA must make
records containing the information specified below for each employee subject to
the SCA, and maintain them for three (3) years from the
completion of the work:
(i) Name and address and social security
number;
(ii) Correct work
classification(s), rate(s) of monetary wages paid and fringe benefits provided,
rate(s) of payments in lieu of fringe benefits, and total daily and weekly
compensation;
(iii) Daily and weekly hours
worked;
(iv) Any deductions, rebates,
or refunds from an employee’s total daily or weekly compensation;
(v) A list of monetary wages
and fringe benefits for those classes of service employees not included in the wage
determination attached to this contract, wage rates or fringe benefits
determined by the interested parties or by the Administrator
or authorized representative under the labor standards clause in paragraph (b)
of this clause (a copy of the report required by paragraph (b)(2)(ii) will
fulfill this requirement); and
(vi) Any list of the
predecessor contractor's employees furnished to Contractor, as prescribed by 29
C.F.R. §4.6(l)(2).
Records must be made available for inspection and
transcription by authorized representatives of the Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor.
(2) Contractor is obligated to make a
copy of this contract available to authorized representatives of the Wage and
Hour Division for inspection and
transcription.
(3) Failure to make or maintain records
or to make them available for inspection and
transcription is a violation of the regulations and this contract. In the case of failure to produce records for
inspection or transcription, the Contracting Officer, upon direction of the
Department of Labor and notice to the Contractor, will take action to suspend
any further payment or advance of funds to Contractor until the violation
ceases.
(4) Contractor is required to permit
authorized representatives of the Wage and Hour Division to conduct interviews
with employees at the work site during normal working hours.
(h) Pay Periods. Contractor must unconditionally pay to each
employee subject to the SCA all wages due,
free and clear and without subsequent deduction (except as otherwise provided
by law or regulations, 29 C.F.R. Part 4), rebate or kickback on any
account. Wages must be paid no later
than one pay period following the end of the regular pay period in which the
wages were earned or accrued. A pay
period under the SCA may not be of any duration longer
than semi-monthly.
(i) Withholding of Payments
and Termination of contract. The
Contracting Officer will withhold or cause to be withheld from the FDIC prime
Contractor under this
contract, or any other FDIC contract with the prime Contractor, such sums as an appropriate official of the
Department of Labor requests withheld or such sums as the Contracting Officer
decides may be necessary to pay underpaid employees employed by Contractor or
the subcontractor. In the event
Contractor or any subcontractor fails to pay any employees subject to the SCA all or part of
the wages or fringe benefits due under the SCA, the FDIC may, after authorization or by direction
of the Department of Labor and written notification to Contractor, take action
to cause suspension of any further payment or advance of funds to Contractor
until violations have ceased.
Additionally, any failure to comply with the requirements of the
contract relating to the SCA, may be grounds for termination of the right to
proceed with the contract work. In this
event, the FDIC may enter into other contracts or arrangements for completion
of the work and may charge Contractor in default with any additional cost to
the FDIC.
(j) Subcontracts. Contractor agrees to insert this clause
relating to the Service Contract Act of 1965, as amended, in all
subcontracts subject to the SCA.
(k) Service Employee. As used in this clause, the term “service
employee” means any person engaged in the performance of this
contract other than any person employed in a bona fide executive,
administrative, or professional capacity, as those terms are defined in 29
C.F.R. Part 541, as of July 30, 1976, and any subsequent revision of those
regulations. The term “service employee”
includes all persons described above, regardless of any contractual
relationship that may be alleged to exist between the Contractor or
subcontractor and any of these persons.
(l) Collective Bargaining
Agreements Applicable to Service Employees; Seniority List.
(1) If wages to be paid or fringe
benefits to be furnished any service employees employed by the FDIC prime
Contractor or any
subcontractor under the contract are provided for in a collective bargaining
agreement, which is or will be effective during any period in which the
contract is being performed, the FDIC prime Contractor is obligated
to:
•
report this fact to the Contracting Officer;
• include full information as to the
application and accrual of the wages and fringe benefits, including any
prospective increase, to service employees engaged in work on the contract;
and
• provide a copy of the collective
bargaining agreement.
The report is to be made
upon commencing performance of the contract, in the case of collective
bargaining agreements effective at
the time performance commences. In the case of collective bargaining
agreements, select provisions thereof or amendments thereto effective at a
later time during the period of contract performance, the report is to be made
promptly after their negotiation.
(2)
In the case where a contract is being performed at a Federal facility
and the service employees may be
retained by a successor contractor and may be subject to a wage determination
which contains vacation or other benefit provisions based upon length of
service with other contractors (See 29 C.F.R. § 4.173), the incumbent prime
Contractor must furnish
the Contracting Officer with a certified list of the names of all service
employees on Contractor's or any subcontractor's payroll during the last month
of contract performance The list must
contain each service employees’ anniversary dates of employment on the contract
either with the current or predecessor contractors. The list must be delivered
to the Contracting Officer not less than ten (10) days before the contract
ends. The Contracting Officer will turn over the list to the successor
contractor at the commencement of the new contract.
(m) Rulings and
Interpretations. Rulings and
interpretations of the SCA are contained in 29 C.F.R. Part
4.
(n) Contractor's
Certification.
(1) By entering into this contract,
Contractor (and officials thereof) certifies that neither it (nor he or she)
nor any person or firm who has a substantial interest in Contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue of the
sanctions by section 5 of the SCA.
(2) No part of this contract can be
subcontracted to any person or firm ineligible for award of a Government
contract under section 5 of the SCA.
(3) The penalty for making false
statements is prescribed in the U.S. Criminal Code, 18 U.S.C. §1001.
(o) Variances, Tolerances
and Exemptions Involving Employment.
Notwithstanding any of the provisions in paragraphs (b) through (l) of
this clause, the following employees may be employed in accordance with the
variations, tolerances, and exemptions, which the Secretary of Labor, pursuant
to section 4(b) of the SCA prior to its amendment by Public
Law 92 473, found to be necessary and proper in the public interest or to avoid
serious impairment of the conduct of Government business:
(1) Apprentices, student learners, and
workers whose earning capacity is impaired by age, physical, or mental
deficiency or injury may be employed at wages lower than the minimum wages
otherwise required by section 2(a)(1) or 2(b)(1) of the SCA, without diminishing any fringe benefits or cash
payments in lieu thereof required under section 2(a)(2) of the SCA, in
accordance with the conditions and procedures prescribed for the
employment of apprentices, student learners, handicapped persons and
handicapped clients of sheltered workshops under section 14 of the Fair Labor
Standards Act of 1938, in the
regulations issued by the Administrator (29 C.F.R. Parts 520, 521, 524
and 525).
(2) The Administrator will issue
certificates under the SCA for the employment of
apprentices, student-learners, handicapped persons or handicapped clients of
sheltered workshops not subject to the Fair Labor Standards Act of 1938, or
subject to different minimum rates of pay under the two acts, authorizing
appropriate rates of minimum wages (but without changing requirements
concerning fringe benefits or supplementary cash payments in lieu thereof),
applying procedures prescribed by the applicable regulations issued under the
Fair Labor Standards Act of 1938 (29 C.F.R. Parts 520, 521, 524 and 525).
(3) The Administrator will also
withdraw, annul or cancel certificates in accordance with the regulations in 29
C.F.R. Parts 525 and 528.
(p) Apprentices. Apprentices will be permitted to work at less
than the predetermined rate for the work they perform when they are employed
and individually registered in a bona fide apprenticeship program registered
with a State Apprenticeship Agency, which is recognized by the U.S. Department
of Labor or, if no such recognized agency exists in a State, under a program
registered with the Bureau of Apprenticeship and Training, Employment and
Training Administration, U.S. Department of Labor. Any employee who is not registered as an
apprentice in an approved program must be paid the wage rate and fringe
benefits contained in the applicable wage determination for the journeyman
classification of work actually performed.
The wage rates paid apprentices cannot be less than the wage rate for
their level of progress set forth in the registered program, expressed as the
appropriate percentage of the journeyman's rate contained in the applicable
wage determination. The allowable ratio
of apprentices to journeymen employed on the contract work in any craft classification
cannot be greater than the ratio permitted to Contractor as to his entire work
force under the registered program.
(q) Tips.
An employee engaged in an occupation in which he or she customarily and
regularly receives more than $30 a month in tips may have the amount of tips
credited by the employer against the minimum wage required by section 2(a)(1)
or section 2(b)(1) of the SCA to the extent
permitted by section 3(m) of the Fair Labor Standards Act and Regulations, 29
C.F.R. Part 531. To use this provision—
(1) The employer must inform tipped
employees about this tip credit allowance before the credit is utilized;
(2) The employees must be allowed to
retain all tips (individually or through a pooling arrangement and regardless
of whether the employer elects to take a credit for tips received);
(3) The employer must be able to show
by records that the employee receives at least the applicable Service Contract
Act minimum wage
through the combination of direct wages and tip credit; and
(4) The use of such tip credit must
have been permitted under any predecessor collective bargaining agreement
applicable by virtue of section 4(c) of the SCA.
(r) Disputes Concerning Labor Standards. The U.S. Department of Labor has set forth in
29 C.F.R. Parts 4, 6, and 8 procedures for resolving disputes concerning labor
standards requirements. Labor standards
disputes will be resolved in accordance with those procedures and not the
"Disputes" clause of this contract. Disputes within the meaning of this
provision include disputes between Contractor (or any of its subcontractors)
and the FDIC, the U.S. Department of Labor, or the employees or their
representatives.
________________________________________________________________
7.5.11-2 Davis Bacon Act (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-2, Davis Bacon Act, in
awards over $ 2,000 for construction, alterations, or repair (including
painting and decorating) of public buildings or public works within the United
States.
Clause:
(a) All laborers and
mechanics employed or working upon the site of the work will be paid
unconditionally and not less often than once a week, and without subsequent
deduction or rebate on any account (except such payroll deductions as are
permitted by regulations issued by the Secretary of Labor under the Copeland
Act (29 CFR Part 3), the full amount of wages and bona fide fringe benefits (or
cash equivalents thereof) due at time of payment computed at rates not less
than those contained in the wage determination of the Secretary of Labor which
is attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between Contractor and such laborers
and mechanics. Contributions made or
costs reasonably anticipated for bona fide fringe benefits under section
1(b)(2) of the Davis Bacon Act on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject to the provisions
of paragraph (d) of this clause; also, regular contributions made or costs
incurred for more than a weekly period (but not less often than quarterly)
under plans, funds, or programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such period. Such laborers and mechanics shall be paid not
less than the appropriate wage rate and fringe benefits in the wage
determination for the classification of work actually performed, without regard
to skill, except as provided in the clause entitled "Apprentices and
Trainees." Laborers or mechanics
performing work in more than one classification may be compensated at the rate
specified for each classification for the time actually worked therein;
provided, that the employer's payroll records accurately set forth the time
spent in each classification in which work is performed. The wage determination (including any
additional classifications and wage rates conformed under paragraph (b) of this
clause) and the Davis Bacon poster (WH 1321) shall be posted at all times by Contractor and any subcontractors at the site
of the work in a prominent and accessible place where it can be easily seen by
the workers.
(b) (1) The Contracting Officer shall require
that any class of laborers or mechanics, which is not listed in the wage
determination and which is to be employed under the contract, shall be
classified in conformance with the wage determination. The Contracting Officer shall approve an
additional classification and wage rate and fringe benefits therefore only when
all the following criteria have been met:
(i) The work to be performed by the
classification requested is not performed by a classification in the wage
determination.
(ii) The classification is
utilized in the area by the construction industry.
(iii) The proposed wage rate,
including any bona fide fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
(iv) With respect to helpers,
such a classification prevails in the area in which the work is performed.
(2) If Contractor and the laborers and
mechanics to be employed in the
classification (if known), or their representatives, and the Contracting
Officer agree on the classification and wage rate (including the amount
designated for fringe benefits, where appropriate), a report of the action
taken shall be sent by the Contracting Officer to the Administrator of the Wage
and Hour Division, Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20210. The
Administrator or an authorized representative will approve, modify, or
disapprove every additional classification action within thirty (30) days of
receipt and so advise the Contracting Officer or will notify the Contracting
Officer within the thirty (30) day period that additional time is necessary.
(3) In the event Contractor, the
laborers or mechanics to be employed in the classification, or their
representatives, and the Contracting Officer do not agree on the proposed
classification and wage rate (including the amount designated for fringe
benefits, where appropriate), the Contracting Officer shall refer the
questions, including the views of all interested parties and the
recommendation of the Contracting Officer, to the Administrator of the Wage and
Hour Division for Determination. The
Administrator, or an authorized representative, will issue a determination
within thirty (30) days of receipt and so advise the Contracting Officer or
will notify the Contracting Officer within the thirty (30) day period that
additional time is necessary.
(4) The wage rate (including fringe
benefits, where appropriate) determined pursuant to subparagraphs (b)(2) and
(b)(3) of this clause shall be paid to all workers performing work in the
classification under this contract from the first day on which work is
performed in the classification.
(c) Whenever the minimum
wage rate prescribed in the contract for a class of laborers or mechanics
includes a fringe benefit which is not expressed as an hourly rate, Contractor
shall either pay the benefit as stated in the wage determination or shall pay
another bona fide fringe benefit or an hourly cash equivalent thereof.
(d) If Contractor does not
make payments to a trustee or other third person, Contractor may consider as
part of the wages of any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or program;
provided, that the Secretary of Labor has found, upon the written request of Contractor,
that the applicable standards of the Davis Bacon Act have been met. The Secretary of Labor may require Contractor
to set aside in a separate account assets for the meeting of obligations under
the plan or program.
________________________________________________________________
7.5.11-3 Contract Work Hours and Safety Standards Act Overtime Compensation (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-3, Contract Work Hours and
Safety Standards Act Overtime Compensation, in all construction contracts over $100,000, and
any other contract over $100,000 where laborers and mechanics are used.
Clause:
(a) Overtime requirements. No
Contractor or subcontractor contracting for any part of the contract work which
may require or involve the employment of laborers or mechanics shall require or
permit any such laborers or mechanics in any workweek in which the individual
is employed on such work to work in excess of 40 hours in such workweek unless
such laborer or mechanic receives compensation at a rate not less than 1 1/2
times the basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
(b) Violation; liability for
unpaid wages; liquidated damages. In the event of any violation of the
provisions set forth in paragraph (a) of this clause, the Contractor and any
subcontractor responsible therefore shall be liable for the unpaid wages. In
addition, such Contractor and subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or
a territory, to such District or to such territory), for liquidated damages.
Such liquidated damages shall be computed with respect to each individual
laborer or mechanic employed in violation of the provisions set forth in
paragraph (a) of this clause in the sum of $10 for each calendar day on which
such individual was required or permitted to work in excess of the standard
workweek of 40 hours without payment of the overtime wages required by
provisions set forth in paragraph (a) of this clause.
(c) Withholding for unpaid wages and liquidated
damages. The Contracting Officer shall upon his or her own action or upon
written request of an authorized representative of the Department of Labor
withhold or cause to be withheld, from any moneys payable on account of work
performed by the Contractor or subcontractor under any such contract or any
other Federal contract with the same Prime Contractor, or any other federally assisted contract subject to
the Contract Work Hours and Safety Standards Act which is held
by the same Prime Contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such Contractor or subcontractor for unpaid wages
and liquidated damages as provided in the provisions set forth in paragraph (b)
of this clause.
(d) Payrolls and basic
records.
(1) The Contractor or subcontractor shall
maintain payrolls and basic payroll records during the course of contract work
and shall preserve them for a period of 3 years from the completion of the
contract for all laborers and mechanics working on the contract. Such records
shall contain the name and address of each such employee, social security
number, correct classifications, hourly rates of wages
paid, daily and weekly number of hours worked, deductions made, and actual
wages paid. Nothing in this paragraph
shall require the duplication of records required to be maintained for
construction work by Department of Labor regulations at 29 CFR 5.5(a)(3)
implementing the Davis-Bacon Act.
(2) The records to be maintained under
paragraph (d)(1) of this clause shall be made available by the Contractor or
subcontractor for inspection, copying, or transcription by authorized representatives
of the Contracting Officer or the Department of Labor. The Contractor or
subcontractor shall permit such representatives to interview employees during
working hours on the job.
(e) Subcontracts. The
Contractor or subcontractor shall insert in any subcontracts exceeding $100,000
the provisions set forth in paragraphs (a) through (e) of this clause and also
a clause requiring the subcontractors to include these provisions in any lower
tier subcontracts. The Prime Contractor shall be
responsible for compliance by any subcontractor or lower tier subcontractor
with the provisions set forth in paragraphs (a) through (e) of this clause.
________________________________________________________________
7.5.11-4 Payrolls and Basic Records (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-4, Payrolls and Basic
Records, in all construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, (a) Payrolls and basic records relating thereto
shall be maintained by Contractor during the course of the work and preserved
for a period of three (3) years thereafter for all laborers and mechanics
working at the site of the work. Such records shall contain the name, address,
and social security number of each such
worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe
benefits or cash equivalents thereof of the types described in section
1(b)(2)(B) of the Davis Bacon Act), daily and weekly number of hours worked,
deductions made, and actual wages paid.
Whenever the Secretary of Labor has found, under paragraph (d) of the clause
entitled "Davis Bacon Act" that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing benefits
under a plan or program described in section 1(b)(2)(B) of the Davis Bacon Act,
Contractor shall maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is financially
responsible, and that the plan or program has been communicated in writing to
the laborers or mechanics affected, and records which show the costs
anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees
under approved programs shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee programs, the registration
of the apprentices and trainees, and the ratios and wage rates prescribed in
the applicable programs.
(b) (1) Contractor shall submit weekly, for
each week in which any contract work is performed, a copy of all payrolls to
the Contracting Officer. The payrolls
submitted shall set out accurately and completely all of the information
required to be maintained under paragraph (a) of this clause. This information may be submitted in any form
desired. Optional Form WH 347 (Federal
Stock Number 029 005 00014 1) is available for this purpose and may be
purchased from the Superintendent of Documents, U.S. Government Printing
Office, Washington, DC 20402. Contractor
is responsible for the submission of copies of payrolls by all subcontractors.
(2) Each payroll submitted shall be
accompanied by a "Statement of Compliance," signed by Contractor or
any subcontractor or its or their agent who pays or supervises the payment of
the persons employed under the contract and shall certify
(i) That the payroll for the
payroll period contains the information required to be maintained under
paragraph (a) of this clause and that such information is correct and complete;
(ii) That each laborer or
mechanic (including each helper, apprentice, and trainee) employed on the
contract during the payroll period has been paid the full weekly wages earned,
without rebate, either directly or indirectly, and that no deductions have been
made either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations, 29 CFR Part 3; and
(iii) That each laborer or
mechanic has been paid not less than the applicable wage rates and fringe
benefits or cash equivalents for the classification of work performed, as
specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly
executed certification set forth on the reverse side of Optional Form WH 347
shall satisfy the requirement for submission of the "Statement of
Compliance" required by subparagraph (b)(2) of this clause.
(4) The falsification of any of the
certifications in this clause may subject Contractor or any subcontractor to
civil or criminal prosecution under Section 1001 of Title 18 and Section 3729
of Title 31 of the United States Code.
(c) Contractor or any
subcontractor shall make the records required under paragraph (a) of this
clause available for inspection, copying, or transcription by the Contracting
Officer or authorized representatives of the Contracting Officer or the
Department of Labor. Contractor or any
subcontractor shall permit the Contracting Officer or representatives of the
Contracting Officer or the Department of Labor to interview employees during
working hours on the job. If Contractor
or any subcontractor fails to submit required records or to make them
available, the Contracting Officer may, after written notice to Contractor, take
such action as may be necessary to cause the suspension of any further
payment. Furthermore, failure to submit
the required records upon request or to make such records available may be
grounds for debarment action pursuant to 29 CFR 5.12.
________________________________________________________________
7.5.11-5 Apprentices and Trainees (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-5, Apprentices and Trainees,
in all construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, (a) Apprentices will be permitted to work at less
than the predetermined rate for the work they performed when they are employed
pursuant to and individually registered in a bona fide apprenticeship program
registered with the U.S. Department of Labor, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
Apprenticeship Agency recognized by the Bureau, or if a person is employed in
his or her first ninety (90) days of probationary employment as an apprentice
in such an apprenticeship program, who is not individually registered in the
program, but who has been certified by the Bureau of Apprenticeship and
Training or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice. The allowable ratio of apprentices to
journeymen on the job site in any craft classification shall not be greater
than the ratio permitted to Contractor as to the entire work force under the
registered program. Any worker listed on
a payroll at an apprentice wage rate, who is not registered or otherwise
employed as stated in this paragraph, shall be paid not less than the
applicable wage determination for the classification of work actually
performed. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under the
registered program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed. Where a contractor is performing construction
on a project in a locality other than that in which its program is registered,
the ratios and wage rates (expressed in percentages of the journeyman's hourly
rate) specified in Contractor's or subcontractor's registered program shall be
observed. Every apprentice must be paid
at not less than the rate specified in the registered program for the
apprentice's level of progress, expressed as a percentage of the journeyman
hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in
accordance with the provisions of the apprenticeship program. If the apprenticeship program does not
specify fringe benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable
classification. If the Administrator
determines that a different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination. In the event the Bureau
of Apprenticeship and Training, or a State Apprenticeship Agency recognized by
the Bureau, withdraws approval of an apprenticeship program, Contractor will no
longer be permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable program is
approved.
b) Trainees. Except as provided in 29 CFR 5.16, trainees
will not be permitted to work at less than the predetermined rate for the work
performed unless they are employed pursuant to and individually registered in a
program which has received prior approval, evidenced by formal certification by
the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the
job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the
approved program for the trainee's level of progress, expressed as a percentage
of the journeyman hourly rate specified in the applicable wage
determination. Trainees shall be paid
fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention
fringe benefits, trainees shall be paid the full amount of fringe benefits
listed in the wage determination unless the Administrator of the Wage and Hour
Division determines that there is an apprenticeship program associated with the
corresponding journeyman wage rate in the wage determination which provides for
less than full fringe benefits for apprentices.
Any employee listed on the payroll at a trainee rate who is not
registered and participating in a training plan approved by the Employment and
Training Administration shall be paid not less than the applicable wage rate in
the wage determination for the classification of work actually performed. In addition, any trainee performing work on
the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate in the wage determination
for the work actually performed. In the
event the Employment and Training Administration withdraws approval of a
training program, Contractor will no longer be permitted to utilize trainees at
less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(c) Equal employment
opportunity. The utilization of
apprentices, trainees, and journeymen under this clause shall be in conformity
with the equal employment opportunity requirements of Executive Order 11246 and
29 CFR Part 30.
________________________________________________________________
7.5.11-6 Compliance with Copeland Act
Requirements (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-6, Compliance with Copeland
Act Requirements, in all construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, the Contractor shall comply with the requirements
of 29 CFR Part 3, which are hereby incorporated by reference in this contract.
________________________________________________________________
7.5.11-7 Subcontracts (Labor Standards) (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-7, Subcontracts (Labor
Standards), in construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, (a) Contractor or any subcontractor shall insert in
any subcontracts the clauses entitled "Davis Bacon Act,"
"Contract Work Hours and Safety Standards Act Overtime
Compensation," "Apprentices and Trainees," "Payrolls and Basic
Records," "Compliance with Copeland Act Requirements,"
"Withholding of
Funds," "Subcontracts (Labor Standards)," "Contract
Termination-
Debarment," "Disputes Concerning Labor Standards,"
"Compliance with Davis-Bacon and Related Act Regulations," and
"Certification of Eligibility," and such other clauses as the
Contracting Officer may, by appropriate instructions, require, and also a
clause requiring subcontractors to include these clauses in any lower tier
subcontracts. Contractor shall be
responsible for compliance by any subcontractor or lower tier subcontractor
with all the contract clauses cited in this paragraph.
(b) (1) Within fourteen (14) days after award
of the contract, Contractor shall deliver to the Contracting Officer a
completed Statement and Acknowledgment Form (SF 1413) for each subcontract,
including the subcontractor's signed and dated acknowledgment that the clauses
set forth in paragraph (a) of this clause have been included in the
subcontract.
(2) Within fourteen (14) days after the
award of any subsequently awarded subcontract, Contractor shall deliver to the
Contracting Officer an updated completed SF 1413 for such additional
subcontract.
________________________________________________________________
7.5.11-8 Contract Termination - Debarment
(July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-8, Contract Termination –
Debarment, in construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, a breach of the contract clauses entitled
"Davis Bacon Act," "Contract Work Hours and Safety Standards Act Overtime
Compensation," "Apprentices and Trainees," "Payrolls and
Basic Records," "Compliance with Copeland Act Requirements,"
"Subcontracts (Labor Standards)," "Compliance With Davis-Bacon
and Related Act Regulations," or "Certification of Eligibility"
may be grounds for termination of the contract, and for debarment as a
contractor and subcontractor as provided in 29 CFR 5.12.
________________________________________________________________
7.5.11-9 Compliance with Davis-Bacon and Related Act
Regulations (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-9, Compliance with
Davis-Bacon and Related Act Regulations, in construction awards over
$2,000.
Clause:
If this contract is for an
amount in excess of $2,000, all rulings and interpretations of the Davis-Bacon
and Related Acts contained in 29 CFR Parts 1, 3, and 5 are hereby incorporated
by reference in this contract.
________________________________________________________________
7.5.11-10 Disputes Concerning Labor Standards (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-10, Disputes Concerning Labor Standards, in construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000, the United States Department of Labor has set forth
in 29 CFR Parts 5, 6, and 7 procedures for resolving disputes concerning labor
standards requirements. Such disputes
shall be resolved in accordance with those procedures and not the
"Disputes" clause of this contract. Disputes within the meaning of this clause
include disputes between Contractor (or any of its subcontractors) and the
FDIC, the U.S. Department of Labor, or the employees or their representatives.
________________________________________________________________
7.5.11-11 Certification of Eligibility (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-11, Certificate of
Eligibility, in construction awards over $2,000.
Clause:
If this contract is for an
amount in excess of $2,000,
(a) By entering into this
contract, Contractor certifies that neither it (nor he or she) nor any person
or firm who has an interest in Contractor's firm is a person or firm ineligible
to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon
Act or 29 CFR
5.12(a)(1).
(b) No part of this contract
shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(c) The penalty for making
false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
________________________________________________________________
7.5.11-12 Withholding of Funds
(July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-12, Withholding of Funds, in construction awards over $ 2,000.
Clause:
If this contract is for an
amount in excess of $2,000,
The Contracting Officer
must, upon his or her own action or upon written request of an authorized
representative of the Department of Labor, withhold or cause to be withheld
from the Contractor under this contract or any other Federal contract with the
same Prime Contractor, or any other federally assisted contract subject to
Davis-Bacon prevailing wage requirements,
which is held by the same Prime Contractor, so much of the accrued payments or
advances as may be considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the Contractor or any
subcontractor the full amount of wages required by the contract. In the event
of failure to pay any laborer or mechanic, including any apprentice, trainee,
or helper, employed or working on the site of the work, all or part of the
wages required by the contract, the Contracting Officer may, after written
notice to the Contractor, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds until such
violations have ceased.
________________________________________________________________
7.5.11-13 Notice to the FDIC of Labor Disputes (July 2008)
Prescription:
Per PGI 5.1105, insert
clause 7.5.11-13, Notice to the FDIC of
Labor Disputes, in all construction awards.
Clause:
(a) If Contractor has
knowledge that any actual or potential labor dispute is delaying or threatens
to delay the timely performance of this contract, Contractor must immediately
give notice, including all relevant information, to the Contracting Officer.
(b) Contractor agrees to
insert the substance of this clause, including this paragraph (b), in any
subcontract to which a labor dispute may delay the timely performance of this
contract, except that each subcontract must provide that in the event its
timely performance is delayed or threatened by delay by any actual or potential
labor dispute, the subcontractor shall immediately notify the next higher tier
subcontractor or Contractor, as the case may be, of all relevant information
concerning the dispute.
________________________________________________________________
________________________________________________________________
7.5.12-1 Buy American Act - Supplies
(October 2009)
Prescription:
Per PGI 5.1206, insert
clause 7.5.12-1, Buy American Act - Supplies, in all solicitations and awards [Corporate Capacity only] for supplies over $3,000
(micro purchase threshold) but not exceeding $25,000; and in solicitations and
awards over $25,000 if neither of
the clauses at 7.5.12-3 and 7.5.12-5 apply.
Do not insert the clause if an exception to the Buy American Act applies (e.g., non-availability,
public interest or information technology that is a commercial item).
Clause:
(a) Definitions. As used in
this clause—
“Commercially available off-the-shelf (COTS) item” —
(1) Means any item of supply (including
construction material) that is—
(ii) Sold in substantial quantities in the
commercial marketplace; and
(iii) Offered to the Government, under a contract
or subcontract at any tier, without modification, in the same form in which it
is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3
of the Shipping Act of 1984 (46 U.S.C. App. 1702),
such as agricultural products and petroleum products.
“Component”
means an article, material, or supply incorporated directly into an end
product.
“Cost of components” means—
(1) For components purchased
by the Contractor, the acquisition cost, including transportation costs to the
place of incorporation into the end product (whether or not such costs are paid
to a domestic firm), and any applicable duty (whether or not a duty-free entry
certificate is issued); or
(2) For components
manufactured by the Contractor, all costs associated with the manufacture of
the component, including transportation costs as described in paragraph (1) of
this definition, plus allocable overhead costs, but excluding profit. Cost of
components does not include any costs associated with the manufacture of the
end product.
“Domestic end product” means—
(1) An unmanufactured end
product mined or produced in the United States; or
(2) An end product
manufactured in the United States, if -
(i) The cost of its
components mined, produced, or manufactured in the United States exceeds 50
percent of the cost of all its components. Components of foreign origin of the
same class or kind as those that the agency determines are not mined, produced,
or manufactured in sufficient and reasonably available commercial quantities of
a satisfactory quality are treated as domestic. Scrap generated, collected, and
prepared for processing in the United States is considered domestic; or
(ii) The end product is a
COTS item.
“End product” means those articles, materials, and supplies to be acquired under the
contract for public use.
“Foreign end product” means an end product other than a domestic end
product.
“United States” means the 50 States, the District of Columbia, and outlying areas.
(b) The Buy American Act (41 U.S.C. 10a - 10d) provides a
preference for domestic end products for supplies acquired for use in the United
States. The component test of the Buy
American Act is waived for an end product that is a COTS item.
(c) Offerors may obtain from
the Contracting Officer a list of foreign articles that the Contracting Officer
will treat as domestic for this contract.
(d) The Contractor shall
deliver only domestic end products except to the extent that it specified
delivery of foreign end products in the provision of the solicitation entitled
“Buy American Act Certificate.”
________________________________________________________________
7.5.12-2 Buy American Act Certificate
(October 2009)
Prescription:
Per PGI 5.1206, insert
provision 7.5.12-2, Buy American Act Certificate, in solicitations containing the clause at 7.5.12-1.
Provision:
(a) The offeror certifies
that each end product, except those listed in paragraph (b) of this provision,
is a domestic end product and that, for other than COTS items, the offeror has
considered components of unknown origin to have been mined, produced, or
manufactured outside the United States. The offeror shall list as foreign end
products those end products manufactured in the United States that do not
qualify as domestic end products, i.e., an end product that is not a COTS item
and does not meet the component test in paragraph (2) of the definition of “domestic
end product.” The terms "commercially available off-the-shelf (COTS)
item," “component,” “domestic end product,” “end product,” “foreign end
product,” and “United States” are defined in the clause of this solicitation
entitled “Buy American Act—Supplies.”
(b) Foreign End Products:
LINE ITEM NO. COUNTRY OF ORIGIN
______________ _________________
______________ _________________
______________ _________________
[List as necessary]
(c) The FDIC will evaluate
offers in accordance with the policies and procedures of the Buy American Act.
________________________________________________________________
7.5.12-3 Buy American Act-Free Trade
Agreements-Israeli Trade Act (October
2009)
Prescription:
Per PGI 5.1206, insert
clause 7.5.12-3, Buy American Act - Free Trade Agreements - Israeli Trade Act, in all solicitations and awards [Corporate Capacity only] for supplies, or for
services involving the furnishing of supplies, in which the acquisition value
is $25,000 or more but is less than $203,000, except if the acquisition is for information technology that is a
commercial item.
Clause:
(a) Definitions. As used in
this clause—
“Bahrainian, Moroccan, Omani, or
Peruvian end product” means an article that—
(1) Is wholly the growth, product, or manufacture of Bahrain, Morocco, Oman
or Peru; or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in Bahrain,
Morocco, Oman, or Peru into a new and different article of commerce with a
name, character, or use distinct from that of the article or articles from
which it was transformed. The term refers to a product offered for purchase
under a supply contract, but for purposes of calculating the value of the end
product includes services (except transportation services) incidental to the
article, provided that the value of those incidental services does not exceed
that of the article itself.
“Commercially available
off-the-shelf (COTS) item” –
(1) Means any
item of supply (including construction material) that is—
(i) A commercial
item;
(ii) Sold in
substantial quantities in the commercial marketplace; and
(iii) Offered to the Government, under a contract or subcontract at any
tier, without modification, in the same form in which it is sold in the
commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the Shipping
Act of 1984 (46 U.S.C. App. 1702), such
as agricultural products and petroleum products.
“Component” means an article,
material, or supply incorporated directly into an end product.
“Cost of components” means—
(1) For components purchased by the Contractor, the acquisition cost,
including transportation costs to the place of incorporation into the end
product (whether or not such costs are paid to a domestic firm), and any
applicable duty (whether or not a duty-free entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs associated
with the manufacture of the component, including transportation costs as
described in paragraph (1) of this definition, plus allocable overhead
costs, but excluding profit. Cost of components does not include any costs
associated with the manufacture of the end product.
“Domestic end product” means—
(1) An unmanufactured end product mined or produced in the United States;
or
(2) An end product manufactured in the United States, if –
(i) The cost of its components mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. Components of
foreign origin of the same class or kind as those that the agency determines
are not mined, produced, or manufactured in sufficient and reasonably available
commercial quantities of a satisfactory quality are treated as domestic. Scrap
generated, collected, and prepared for processing in the United States is
considered domestic; or
(ii) The end product is a COTS item.
“End product” means those
articles, materials, and supplies to be acquired under the contract for public
use.
“Foreign end product” means an
end product other than a domestic end product.
“Free Trade Agreement country”
means Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Morocco,
Nicaragua, Oman, Peru or Singapore.
“Free Trade Agreement country end
product” means an article that—
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement
country; or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in a Free
Trade Agreement country into a new and different article of commerce with a
name, character, or use distinct from that of the article or articles from
which it was transformed. The term refers to a product offered for purchase
under a supply contract, but for purposes of calculating the value of the end
product includes services (except transportation services) incidental to the
article, provided that the value of those incidental services does not exceed
that of the article itself.
“Israeli end product” means an
article that—
(1) Is wholly the growth, product, or manufacture of Israel; or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in Israel
into a new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was transformed.
“United States” means the 50 States, the District of Columbia, and outlying
areas.
(b) Components of foreign origin.
Offerors may obtain from the Contracting Officer a list of foreign articles
that the Contracting Officer will treat as domestic for this contract.
(c) Delivery of end
products. The Buy American Act provides a preference for domestic end products
for supplies acquired for use in the United States. The component test of the Buy American Act is
waived for an end product that is a COTS item.
In addition, the Contracting Officer has determined that FTAs (except
the Bahrain, Morocco, Oman and Peru FTAs) and the Israeli Trade Act apply to
this acquisition. Unless otherwise specified, these trade agreements apply to
all items in the Schedule. The Contractor shall deliver under this contract
only domestic end products except to the extent that, in its offer, it
specified delivery of foreign end products in the provision entitled “Buy
American Act—Free Trade Agreements—Israeli Trade Act
Certificate.” If the Contractor specified in its offer that the Contractor
would supply a Free Trade Agreement country end product (other than a
Bahrainian, Moroccan, Omani or Peruvian end product) or an Israeli end product,
then the Contractor shall supply a Free Trade Agreement country end product
(other than a Bahrainian, Moroccan, Omani or Peruvian end product), an Israeli
end product or, at the Contractor’s option, a domestic end product.
ALTERNATE I . SUBSTITUTE THE
FOLLOWING PARAGRAPH (c) FOR PARAGRAPH (c) OF THE BASIC CLAUSE IF THE
ACQUISITION VALUE IS $25,000 OR MORE BUT LESS THAN $50,000:
(c) Delivery of end products. The
Contracting Officer has determined that NAFTA applies to this acquisition.
Unless otherwise specified, NAFTA applies to all items in the
Schedule. The Contractor shall deliver under this contract only domestic end
products except to the extent that, in its offer, it specified delivery of
foreign end products in the provision entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate.” If the Contractor
specified in its offer that the Contractor would supply a Canadian end product,
then the Contractor shall supply a Canadian end product or, at the Contractor's
option, a domestic end product.
ALTERNATE II. SUBSTITUTE THE FOLLOWING PARAGRAPH (c) FOR
PARAGRAPH (c) OF THE BASIC CLAUSE IF THE ACQUISITION VALUE IS $50,000 OR MORE
BUT LESS THAN $ 67,826:
(c) Delivery of end products. The Contracting
Officer has determined that NAFTA and the Israeli Trade Act apply
to this acquisition. Unless otherwise specified, these trade agreements apply
to all items in the Schedule. The Contractor shall deliver under this contract
only domestic end products except to the extent that, in its offer, it
specified delivery of foreign end products in the provision entitled “Buy
American Act—Free Trade Agreements—Israeli Trade Act
Certificate.” If the Contractor specified in its offer that the Contractor
would supply a Canadian end product or an Israeli end product, then the
Contractor shall supply a Canadian end product, an Israeli end product or, at
the Contractor's option, a domestic end product.
________________________________________________________________
7.5.12-4 Buy American Act – Free Trade Agreements- Israeli Trade Act
Certificate (October 2009)
Prescription:
Per PGI 5.1206, insert
provision 7.5.12-4, Buy American Act - Free Trade Agreements - Israeli Trade Act
Certificate, in all solicitations
containing the clause at 7.5.12-3.
Provision:
(a) The offeror certifies
that each end product, except those listed in paragraph (b) or (c) of this
provision, is a domestic end product and that the offeror has considered
components of unknown origin to have been mined, produced, or manufactured
outside the United States. The terms “ Bahrainian, Moroccan, Omani, or Peruvian
end product,” “commercially available off-the-shelf (COTS) items”, “component,”
“domestic end product,” “end product,” “foreign end product,” “Free Trade
Agreement country,” “Free Trade Agreement country end product,” “Israeli end
product,” and “United States” are defined in the clause of this solicitation
entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act.”
(b) The offeror certifies
that the following supplies are Free Trade Agreement country end products
(other than Bahrainian, Moroccan, Omani, or Peruvain end products) or Israeli
end products as defined in the clause of this solicitation entitled “Buy
American Act-Free Trade Agreements-Israeli Trade Act”:
Free Trade Agreement Country
End Products (Other than Bahrainian, Moroccan, Ormani, or Peruvian End
Products) or Israeli End Products:
LINE ITEM NO. COUNTRY OF ORIGIN
______________ _________________
______________ _________________
______________ _________________
[List as necessary]
(c) The offeror shall list
those supplies that are foreign end products (other than those listed in
paragraph (b) of this provision) as defined in the clause of this solicitation
entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act.” The
offeror shall list as other foreign end products those end products
manufactured in the United States that do not qualify as domestic end products.
i.e. an end product that is
not a COTS item and does not meet the component test in paragraph (2) of the
definition of “domestic end product.”
Other Foreign End Products:
LINE ITEM NO. COUNTRY OF ORIGIN
______________ _________________
______________ _________________
______________ _________________
[List as necessary]
(d) The FDIC will evaluate
offers in accordance with the policies and procedures of of the Buy American
Act.
(End of provision)
ALTERNATE I.: SUBSTITUTE THE FOLLOWING PARAGRAPH (b) FOR
PARAGRAPH (b) OF THE BASIC PROVISION IF THE ACQUISITION VALUE IS $25,000 OR
MORE BUT LESS THAN $50,000:
(b) The offeror certifies
that the following supplies are Canadian end products as defined in the clause
of this solicitation entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act”:
Canadian End Products:
LINE ITEM NO.
____________________________________________
____________________________________________
____________________________________________
[List as necessary]
ALTERNATE II: , SUBSTITUTE
THE FOLLOWING PARAGRAPH (b) FOR PARAGRAPH (b) OF THE BASIC PROVISION IF THE
ACQUISITION VALUE IS $50,000 OR MORE BUT LESS THAN $ 67,826:
(b) The offeror certifies
that the following supplies are Canadian end products or Israeli end products
as defined in the clause of this solicitation entitled “Buy American Act—Free Trade Agreements—Israeli Trade Act”:
Canadian or Israeli end
products:
LINE ITEM NO. COUNTRY OF ORIGIN
______________ _________________
______________ _________________
______________ _________________
[List as necessary]
________________________________________________________________
7.5.12-5 Trade Agreements (October 2009)
Prescription:
Per PGI 5.1206, insert
clause 7.5.12-5, Trade Agreements, in
all solicitations and awards [Corporate Capacity only] valued at $203,000 or more,
if the acquisition is covered by the World Trade Organization-Government
Procurement Agreement.
Clause:
(a) Definitions. As used in
this clause—
“Caribbean Basin country end product”—
(1) Means an article that—
(i)(A) Is wholly the growth,
product, or manufacture of a Caribbean Basin country; or
(B) In the case of an
article that consists in whole or in part of materials from another country,
has been substantially transformed in a Caribbean Basin country into a new and
different article of commerce with a name, character, or use distinct from that
of the article or articles from which it was transformed; and
(ii) Is not excluded from
duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b).
(A) For this reason, the
following articles are not Caribbean Basin country end products:
(1) Tuna, prepared or
preserved in any manner in airtight containers;
(2) Petroleum, or any
product derived from petroleum;
(3) Watches and watch parts
(including cases, bracelets, and straps) of whatever type including, but not
limited to, mechanical, quartz digital, or quartz analog, if such watches or
watch parts contain any material that is the product of any country to which
the Harmonized Tariff Schedule of the United States (HTSUS) column 2 rates of
duty apply (i.e., Afghanistan, Cuba, Laos, North Korea, and Vietnam); and
(4) Certain of the
following: textiles and apparel articles; footwear, handbags, luggage, flat
goods, work gloves, and leather wearing apparel; or handloomed, handmade, and
folklore articles;
(B) Access to the HTSUS to
determine duty-free status of articles of these types is available at
http://www.usitc.gov/tata/hts/. In particular, see the following:
(1) General Note 3(c),
Products Eligible for Special Tariff treatment.
(2) General Note 17,
Products of Countries Designated as Beneficiary Countries under the United
States-Caribbean Basin Trade Partnership Act of 2000.
(3) Section XXII, Chapter
98, Subchapter II, Articles Exported and Returned, Advanced or Improved Abroad,
U.S. Note 7(b).
(4) Section XXII, Chapter
98, Subchapter XX, Goods Eligible for Special Tariff Benefits under the United
States-Caribbean Basin Trade Partnership Act; and
(2) Refers to a product
offered for purchase under a supply contract, but for purposes of calculating
the value of the acquisition, includes services (except transportation
services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
“Designated country” means any of the following countries:
(1) A World Trade Organization
Government Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria,
Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea
(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade
Organization as "the Separate Customs Territory of Taiwan, Penghu, Kinmen
and Matsu (Chinese Taipei))" or
United Kingdom);
(2) A Free Trade Agreement
country (Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El
Salvador, Guatemala, Honduras, Mexico, Morocco, Nicaragua, Oman, Peru or
Singapore);
(3) A least developed
country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi,
Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of
Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,
Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi,
Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome
and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo,
Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or
(4) A Caribbean Basin
country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin
Islands, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands
Antilles, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or
Trinidad and Tobago).
“Designated country end product” means a WTO GPA country end product, an FTA country
end product, a least developed country end product, or a Caribbean Basin
country end product.
“End product” means those articles, materials, and supplies to be acquired under the
contract for public use.
“Free Trade Agreement country end product” means an article that—
(1) Is wholly the growth,
product, or manufacture of a Free Trade Agreement (FTA) country; or
(2) In the case of an
article that consists in whole or in part of materials from another country,
has been substantially transformed in an FTA country into a new and different
article of commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers to a product
offered for purchase under a supply contract, but for purposes of calculating
the value of the end product includes services (except transportation services)
incidental to the article, provided that the value of those incidental services
does not exceed that of the article itself.
“Least developed country end product” means an article that—
(1) Is wholly the growth,
product, or manufacture of a least developed country; or
(2) In the case of an
article that consists in whole or in part of materials from another country,
has been substantially transformed in a least developed country into a new and
different article of commerce with a name, character, or use distinct from that
of the article or articles from which it was transformed. The term refers to a
product offered for purchase under a supply contract, but for purposes of
calculating the value of the end product, includes services (except
transportation services) incidental to the article, provided that the value of
those incidental services does not exceed that of the article itself.
“United States” means the 50 States, the District of Columbia, and outlying areas.
“U.S.-made end product” means an article that is mined, produced, or manufactured
in the United States or that is substantially transformed in the United States
into a new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was transformed.
“WTO GPA country end product” means an article that—
(1) Is wholly the growth,
product, or manufacture of a WTO GPA country; or
(2) In the case of an
article that consists in whole or in part of materials from another country,
has been substantially transformed in a WTO GPA country into a new and
different article of commerce with a name, character, or use distinct from that
of the article or articles from which it was transformed. The term refers to a
product offered for purchase under a supply contract, but for purposes of
calculating the value of the end product includes services, (except
transportation services) incidental to the article, provided that the value of
those incidental services does not exceed that of the article itself.
(b) Delivery of end products. The Contracting
Officer has determined that the WTO GPA and FTAs apply to this acquisition.
Unless otherwise specified, these trade agreements apply to all items in the
Schedule. The Contractor shall deliver under this contract only U.S.-made or
designated country end products except to the extent that, in its offer, it
specified delivery of other end products in the provision entitled “Trade
Agreements Certificate.”
________________________________________________________________
7.5.12-6 Trade Agreements Certificate (July 2008)
Prescription:
Per PGI 5.1206, insert
clause 7.5.12-6, Trade Agreements
Certificate, in all solicitations containing the clause at 7.5.12-5.
Provision:
(a) The offeror certifies
that each end product, except those listed in paragraph (b) of this provision,
is a U.S.-made or designated country end product, as defined in the clause of
this solicitation entitled “Trade Agreements.”
(b) The offeror shall list
as other end products those supplies that are not U.S.-made or designated
country end products.
Other End Products:
LINE ITEM NO. COUNTRY OF ORIGIN
______________ _________________
______________ _________________
______________ _________________
[List as necessary]
(c) The FDIC will evaluate
offers in accordance with the policies and procedures of the Trade Agreements
Act. For line items covered by the WTO GPA, the
Government will evaluate offers of U.S.-made or designated country end products
without regard to the restrictions of the Buy American Act. The Government will consider for award only offers of U.S.-made or
designated country end products unless the Contracting Officer determines that
there are no offers for such products or that the offers for those products are
insufficient to fulfill the requirements of this solicitation.
_______________________________________________________________
7.5.12-7 Restrictions on Certain Foreign
Purchases (July 2008)
Prescription:
Per PGI 5.1206, insert the
clause 7.5.12-7, Restrictions on Certain
Foreign Purchases, in awards by FDIC in its coporate capacity, unless an
exception applies.
Clause:
(a) Except as authorized by
the Office of Foreign Assets Control (OFAC) in the Department of the Treasury,
the Contractor shall not acquire, for use in the performance of this contract,
any supplies or services if any proclamation, Executive order, or statute
administered by OFAC, or if OFAC’s implementing regulations at 31 CFR Chapter
V, would prohibit such a transaction by a person subject to the jurisdiction of
the United States.
(b) Except as authorized by
OFAC, most transactions involving Cuba, Iran, and Sudan are prohibited, as are
most imports from North Korea, into the United States or its outlying areas.
Lists of entities and individuals subject to economic sanctions are included in
OFAC’s List of Specially Designated Nationals and Blocked Persons at
http://www.treas.gov/offices/enforcement/ofac/sdn. More information about these
restrictions, as well as updates, is available in the OFAC’s regulations at 31
CFR Chapter V and/or on OFAC’s website at
http://www.treas.gov/offices/enforcement/ofac.
(c) The Contractor shall
insert this clause, including this paragraph (c), in all subcontracts.
________________________________________________________________
7.5.13-1 Method of Payment – Electronic Fund Transfer (EFT) (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-1, Method of Payment - EFT, in all awards.
Clause:
(a) Payment methods. Payments by the FDIC may be made by check or
electronic funds transfer (EFT), or by a third party in lieu of payment directly
from the FDIC, at the option of the FDIC.
If the FDIC makes payment by EFT, the FDIC may, at its option, also forward the
associated payment information by electronic transfer. Any third party payments will be made by the
FDIC’s commercial purchase card issuer.
In the event Contractor certifies in writing to the payment office that
Contractor does not have an account with a financial institution or an
authorized payment agent, the FDIC would make payments by other than EFT.
(b) Contractor Payment
Requests. If the FDIC elects for third
party payments to be made, Contractor shall make payment requests through a
charge to the FDIC purchase card with the third party, at the time and for the
amount due in accordance with the terms of this contract. Contractor and the third party shall agree
that payments due under this contract shall be made upon submittal of payment
requests to the third party in accordance with the terms and conditions of an
agreement between Contractor, the Contractor’s financial agent (if any), and
the third party and its agents (if any).
No payment shall be due the Contractor until such agreement is
made. Payments made or due by the third
party are not subject to the Prompt Payment Act or any
implementation thereof in this contract.
Documentation of each charge against the FDIC’s purchase card shall be
provided to the Contracting Officer upon request.
Contractor is required, as a
condition to any payment, to maintain current information in the Central
Contractor Registration (CCR) database.
Any invoice submitted with
incorrect EFT information
shall be deemed not to be a proper invoice as defined in
the Prompt Payment Act clause herein.
________________________________________________________________
7.5.13-2 Method of Payment – Third Party (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-2, Method of Payment -
Third Party, in awards where the CO determines payments will be made by a
FDIC Purchase Card Issuer.
Clause:
Payments by the FDIC will be
made by a third party in lieu of payment directly from the FDIC. Any third party payments will be made by the
FDIC’s commercial purchase card issuer requests. Contractor shall make payment requests
through a charge to the FDIC purchase card with the third party, at the time
and for the amount due in accordance with the terms of this award. Contractor and the third party shall agree
that payments due under this award shall be made upon submittal of payment
requests to the third party in accordance with the terms and conditions of an
agreement between Contractor, the Contractor’s financial agent (if any), and
the third party and its agents (if any).
No payment shall be due the Contractor until such agreement is made. Payments made or due by the third party are
not subject to the Prompt Payment Act or any
implementation thereof in this award.
Documentation of each charge against the FDIC’s purchase card shall be
provided to the Oversight Manager.
________________________________________________________________
7.5.13-3 Payments Under Labor-Hour Awards (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-3, Payments Under
Labor-Hour Awards, in Labor-Hour awards.
Clause:
For satisfactory performance
of this award, the FDIC will compensate Contractor at the hourly rates
specified in the Pricing Schedule attached to this award for actual productive
work hours exclusive of travel time, vacation, holiday, sick leave and other
absences. Contractor’s hourly rates include
any and all wages, overhead, general and administrative expenses and profit or
fee.
________________________________________________________________
7.5.13-4 Payments Under Time and Material Awards
(July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-4, Payments Under Time and
Material Awards, in Time and Material awards.
Clause:
(a) Hourly rates: For satisfactory performance of this award,
the FDIC will compensate Contractor at the hourly rates specified in the
Pricing Schedule attached to this award for actual productive work hours
exclusive of travel time, vacation, holiday, sick leave and other
absences. Contractor’s hourly rates include
any and all wages, overhead, general and administrative expenses and profit or
fee.
(b) Material:
The FDIC will pay reasonable amounts Contractor has been invoiced for
the materials or other reimbursable expenses listed below, purchased
specifically for performing under this award.
The price of the materials or other reimbursable expenses must be
approved in advance by the FDIC Contracting Officer unless such
materials/reimbursable expenses were set out in Contractor's Proposal which was
accepted by the FDIC at the time of award or modification. The price of materials or other reimbursable
expenses must be adjusted by Contractor to deduct any credits, trade discounts,
rebates or allowances received by, or credited to, Contractor. If these materials or other reimbursable
expenses are regularly sold by Contractor to the general public in the normal
course of its business, the FDIC will not pay more than the price paid by
Contractor's most favored customers for like items in similar quantities.
Materials:
__________________________
__________________________
__________________________
________________________________________________________________
7.5.13-5 Payment Under Fixed Price Awards (June 2009)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-5, Payment Under Fixed
Price Awards, in awards where the Contractor is paid on a fixed price basis
for goods or services.
Clause:
For satisfactory performance
of this award, the FDIC will pay Contractor the agreed-upon fixed prices
specified in Section B or in a pricing schedule attached to this award. Contractor's fixed prices include any and all
of Contractor's costs and expenses, direct and indirect, as well as any profit,
fee, or any markups of any nature.
________________________________________________________________
7.5.13-6 Compensation Ceiling - Contract or Task
Order (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-6, Compensation Ceiling -
Contract or Task Order, in awards for contracts or task orders using labor
hour, time & material, and/or fixed-unit-price
pricing arrangements.
Clause:
Not-to-Exceed
Period of Performance Ceiling Amount
Initial Period: $________________
Option Period 1: $________________
Option Period 2: $________________
Option Period 3: $________________
Total (if all option periods are
exercised): $________________
In no event will total FDIC
compensation to Contractor, including any reimbursed costs and expenses, exceed
the sum of ________________ Dollars ($__________) for the entire Period of
Performance, including the initial period and all options, if any.
Contractor must notify the Contracting Officer, in writing, when
Contractor has incurred charges amounting to seventy-five percent (75%) of the
ceiling amount for each performance period.
________________________________________________________________
7.5.13-7 Compensation Ceiling – BOA (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-7, Compensation Ceiling -
BOA, in all BOA awards.
Clause:
In no event will total FDIC
compensation to Contractor for any and all task orders issued under this Basic
Ordering Agreement (BOA), exceed
the sum of ________________ Dollars ($__________) for the entire Period of
Performance, including the initial period and all options, if any.
Contractor must notify the Contracting Officer, in writing, when
Contractor has incurred charges to the FDIC of seventy-five percent (75%) of
the total compensation ceiling amount stated above. and also each individual
task order.
________________________________________________________________
7.5.13-8 Invoice Preparation and Submission (Center for Financial Research-Visiting Scholars Program) (October 2008)
Prescription:
Per PGI 5.1306, insert clause 7.5.13-8, Invoice Preparation and Submission (Center for Financial Research-Visiting Scholars Program), in awards issued to support the DIR Center for Financial Research-Visiting Scholars Program.
Clause:
The invoice preparation and submission instructions for contracts in support of the Center for Financial Research-Visiting Scholars Program are as follows:
(a) Contractor may submit an
invoice by either fax or by mail.
Submission by fax is preferred.
(i) Invoices
submitted by fax must be sent to the Administrative Program Management Section
of the FDIC’s Division of Insurance and Research (DIR) - Center for Financial
Research at 703-812-7492.
(ii) Invoices
submitted by mail must be sent to:
Administrative
Program Management Section
Division
of Insurance and Research - Center for Financial Research
Federal
Deposit Insurance Corporation
550
17th Street, NW, Room 4029
Washington,
DC 20429
Contractor must use only one
method to submit an invoice, either fax or mail; do not submit an invoice by
both fax and by mail. Invoices must be
submitted to DIR only; do not send invoices to the Division of
Finance/Disbursement Operations Unit (DOF/DOU) or to the Contracting Officer.
(b) Invoices sent by fax must be sent as one
document in a single fax, and not in multiple faxes. Submitting the
entire invoice, including attachments, in one fax permits the FDIC to
automatically convert the invoice into a pdf document and upload it as a
single, complete document into a database, thereby facilitating prompt
payment.
(c) For purposes of the Prompt Payment Act, the counting of days begins on the date the invoice is received by the DIR’s Administrative Program Management Section. Invoices received after 4:00 p.m. are deemed received on the next business day. Business days are Monday through Friday, excluding Federal holidays and other days FDIC facilities are closed by the Federal Government.
________________________________________________________________
7.5.13-9 Travel Expenses (Non-Reimbursable) (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-9, Travel Expenses
(Non-Reimbursable), for awards in which travel expenses will NOT be
reimbursed.
Clause:
Contractor will not be
reimbursed for any travel expenses it incurs in performing under this award.
________________________________________________________________
7.5.13-10 Travel Expenses (Reimbursable) (July 2008)
Prescription:
Per PGI 5.1306, insert clause
7.5.13-10, Travel Expenses (Reimbursable),
in awards in which travel expenses will be reimbursed.
Clause:
The FDIC will reimburse
Contractor for necessary travel and per diem expenses ("Travel
Expenses"), which include subcontractor travel expenses, if any, that do
not exceed amounts allowable under the FDIC Contractor Travel Reimbursement
Guidelines, a copy of which can be found at http://www.fdic.gov/buying/goods/acquisition/index.html
and are incorporated herein by reference.
All travel must be approved in advance, in writing, by the Contracting
Officer or Oversight Manager unless such travel was set out in Contractor's
Proposal which was accepted by the FDIC at the time of award or
modification. In no event will the FDIC
separately reimburse Contractor, outside of the pricing set out in this award
for any other costs or expenses it incurs in connection with its performance
under this award, including fees for labor hours incurred while
traveling to the work site.
________________________________________________________________
7.5.13-11 Fees and Expenses of Subcontractors (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-11, Fees and Expenses of
Subcontractors, in awards where subcontractor fees and expenses WILL BE
reimbursed.
Clause:
The FDIC may pay amounts
Contractor has been invoiced for labor hours actually
worked, exclusive of travel time, vacation, holiday, sick leave and other
absences, by its approved subcontractors in performing under this award
provided that its approved subcontractors' hourly rates, labor hours and any
subcontractor mark-up percentage have been approved in advance by the FDIC
Contracting Officer. Contractor is
responsible for payment of all subcontractor invoices.
________________________________________________________________
7.5.13-12 Schedule for Invoicing (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-12, Schedule for Invoicing,
in all awards.
Clause:
CONTRACTING OFFICER MUST
SPECIFY THE TERMS IN WHICH THE INVOICE(S) MUST BE SUBMITTED (e.g., within 10 days after the end
of each month.)
For Labor-Hour or
Time-and-Material, Contractor must submit invoices within
______________(_____) days after the end of each month.
For
Firm-Fixed-Price, Contractor must submit invoice upon
completion of the service or delivery of the goods.
________________________________________________________________
7.5.13-13 Content of Invoice (September 2010)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-13, Contents of Invoice,
in all awards.
Clause:
Contractor’s invoices must include
the following items in order to be processed for payment:
(a) Contractor name, address
and phone number.
(b) Invoice date. (Contractors must date invoices as close as
possible to the date of electronic transmission to FDIC.)
(c) Invoice number.
(d) Contract Number (e.g., Contract Number, Task
Order Number, Delivery Order Number, etc.)
(e) Line Item Number(s), as
identified in the contract, and the amount invoiced for each Line Item Number.
(f) Allocation of all hours
and expenses to Financial Institution Number (FIN) and Asset Name/Number, if
applicable.
(g) Description, quantity,
unit of measure, unit price, extended price of goods delivered or services
performed.
(h) Total invoice amount.
(i) Payment terms (discount for prompt payment
terms).
(j) Remittance address.
(k) Billing Point of Contact (e.g., name (where
practicable), title, phone number, and mailing address of person to notify if
there are questions regarding the invoice).
(l) Shipping information (e.g., shipment number,
date of shipment, bill of lading number and weight of shipment. Shipping charges, if any, must be shown as a
separate item on the invoice.
(m) For time and material or labor hour awards, copies
of time sheets in support of direct labor charges.
(n) If travel expenses are reimbursable under the
award, Contractor must submit travel documentation, receipts and other proof of
expenses as required by the FDIC Contractor Travel Reimbursement Guidelines.
(o) If subcontractor expenses are reimbursable
under a labor-hour or time-and-material award, Contractor must:
(1) identify subcontractor expenses and
costs separate from prime contractor expenses and
costs on the invoice it submits to
FDIC;
(2) submit with its invoice, as supporting documentation, a copy of its
subcontractor’s invoice when seeking reimbursement of subcontractor expenses.
(p) Pass through costs - If expenses or costs are
reimbursable under the terms of the award, a description of each shall be
provided in the invoice along with the quantity, unit amount, and total
amount. Also, if amounts are derived
from application of any formula, calculation, percentage, etc., such
application must be clearly evident in the supporting documentation provided
with the invoice.
(q) The following
certification statement, signed by an authorized company representative:
“This is to certify that the
services set forth herein [goods described herein] were performed [delivered]
during the period stated.
_________________________________ __________
Contractor’s Authorized
Representative Date”
(r) Any other information or
supporting documentation required by the award.
If an invoice does not
contain the above required information; contains errors; or exceeds the total
compensation ceiling limit for this award, the invoice will be returned to
Contractor and processing of the invoice for payment will be delayed until the
deficiency is corrected.
In addition, the FDIC
requires Contractors to maintain current information in the Central Contractor
Registration (CCR) database.
FDIC may reject any invoice received from Contractor where processing of
the invoice cannot be
completed because Contractor has failed to maintain its registration, including
electronic funds transfer (EFT) information, in the CCR database.
________________________________________________________________
7.5.13-14 Electronic Invoice Preparation and
Submission (CORHQ Business Unit)
(July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-14, Electronic Invoice
Preparation and Submission ((CORHQ
Business Unit), Include this clause in awards issued under the CORHQ
business unit.
Clause:
Contractor must follow the
FDIC’s electronic invoice preparation
and submission instructions stated below:
(a) Contractor must email
electronic invoices to the FDIC’s
Division of Finance/Accounts Payable (DOF/AP) at the following address: DOFAPInvoice@fdic.gov
(b) Contractor must only
email their invoices to the above
DOF/AP email address and not the Oversight Manager (OM)
or Contracting Officer. The FDIC will
not accept hand-delivered invoices or invoices sent to any other address (i.e.,
FDIC street address or any other email addresses).
(c) Contractor must submit
the electronic invoice as a single
file document, in pdf format. The file
should include the exact same information that has been submitted physically
via mail in the past. (FDIC only wants
one electronic file because we will be uploading the single pdf into a database
and we only want one file associated with an invoice. However, if the size of a single pdf file
exceeds 30 MB, the invoice may either be submitted as two pdf files, with
neither pdf file exceeding 30 MB, or it may be submitted as a zip file that
does not exceed 30 MB. If two pdf files
are used, each email must clearly identify that the invoice has been separated
into two pdf files to accommodate the size limitation. If a zip file is used, the individual files
inside the zip file must be kept to a minimum and each must have a descriptive
file name, such as "Invoice cover page", "Timesheets", etc.)
(d) Contractor must not
include more than one electronic invoice in the same
email. (For example, if a Contractor
has four task orders, a separate email with a single invoice must be submitted
for each of the four task orders.)
(e) Contractor must name the
pdf file or zip file in the following format (with invoice date shown as year/month/date
followed by a space and the invoice number):
Invoice date and invoice number (e.g.,
2008-01-31 1067876)
(f) Contractor’s email
subject line must include the words, “Contractor Invoice”, followed by a hyphen
and the Contract Number (or Task Order Number, or Delivery Order Number, as
applicable), as shown in the example below:
"Contractor Invoice –
CORHQ-08-C-0000"
(g) Task Assignments: For contracts and task orders containing
provisions for Task Assignments, a separate invoice must be
submitted via a separate email for each Task Assignment.
(h) The counting of days for
Prompt Payment begins on the date the invoice is received in
the inbox of the DOF/AP email address, until 4PM.
Invoices received after 4PM will be counted as being received the
following FDIC workday.
________________________________________________________________
7.5.13-15 Electronic Invoice Preparation and
Submission (CORFD/RECVR/SUBSD)
(July 2010)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-15, Electronic Invoice
Preparation and Submission (CORFD/RECVR/SUBSD),
in awards assigned a CORFD, RECVR, or SUBSD business unit.
Clause:
Contractor must follow the
FDIC’s electronic invoice preparation
and submission instructions stated below:
(a) Contractor must email
electronic invoices to the
following address: APDL@fdic.gov
(b) Contractor must only email their invoices to the above email address and not the Oversight Manager (OM) or Contracting Officer. The FDIC will not accept hand-delivered invoices or invoices sent to any other address (i.e., FDIC street address or any other email addresses).
(c) Contractor must submit the electronic invoice as a single file document, in Portable Document Format (pdf). The file should include the exact same information that has been submitted physically via mail in the past. (FDIC only wants one electronic file because we will be uploading the single pdf into a database and we only want one file associated with an invoice. However, if the size of a single pdf file exceeds 30 MB, the invoice may either be submitted as two pdf files, with neither pdf file exceeding 30 MB, or it may be submitted as a zip file that does not exceed 30 MB. If two pdf files are used, each email must clearly identify that the invoice has been separated into two pdf files to accommodate the size limitation. If a zip file is used, the individual files inside the zip file must be kept to a minimum and each must have a descriptive file name, such as "Invoice cover page", "Timesheets", etc.)
(d) Contractor must not include more than one electronic invoice in the same email. (For example, if a Contractor has four task orders, a separate email with a single invoice must be submitted for each of the four task orders.)
(e) Contractor must name the pdf file or zip file in the following format (with invoice date shown as year/month/date followed by a space and the invoice number):
Invoice date and invoice number (e.g., 2008-01-31 1067876)
(f) Contractor’s email subject line must include the words, “Contractor Invoice”, followed by a hyphen and the Contract Number (or Task Order Number, or Delivery Order Number, as applicable), as shown in the example below:
"Contractor Invoice – CORHQ-08-C-0000"
(g) Task Assignments: For contracts and task orders containing provisions for Task Assignments, a separate invoice must be submitted via a separate email for each Task Assignment.
(h) The counting of days for Prompt Payment begins on the date the invoice is received in the inbox of the above email address, until 4PM. Invoices received after 4PM will be counted as being received the following FDIC workday.
(i) Contractor may check on the status of an invoice by
sending an email to the following address:
APDLINQUIRY@FDIC.GOV, or by calling
the Dallas Accounts Payable Unit directly at (972) 761-8098. If payment has not been received within the
time frame of the contract terms, the Contractor is advised to contact the FDIC
to make sure the invoice was received and processed. FDIC will research and
provide the Contractor with the status."
________________________________________________________________
7.5.13-16
Central Contractor Registration (CCR) (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-16, Central Contractor
Registration, in all awards.
Clause:
FDIC awards procurements
only to businesses that are registered in the Central Contractor Registration (CCR) database.
Contractor must register its firm in the CCR database,
complete the annual renewal process, and maintain current information on its
firm in the CCR database in
order to receive timely invoice payments.
FDIC may reject any invoice from
Contractor where processing of the invoice cannot be completed because
Contractor has failed to maintain its registration in the CCR database.
________________________________________________________________
7.5.13-17 Right to Offset Contract Payment Against Delinquent Obligations (July 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-17, Right to Offset
Contract Payments Against Delinquent Obligations, in all awards.
Clause:
(a) General. The FDIC has the right to offset any payments
due the contractor under this contract against any Delinquent Obligation
(defined below) which contractor owes the FDIC.
(b) Definition. "Delinquent Obligation" means:
(1) A delinquency of ninety (90) days
or more in the payment of principal or
interest on a loan or advance from the FDIC, in any of its various capacities,
or any predecessor or successor thereto;
(2)
The amount of debt forgiven by FDIC in a compromise settlement of any loan
obligation of contractor to the FDIC, in any of its various capacities, in
cases where the contractor failed to recognize as income for Federal income tax
purposes the amount of the debt forgiven; or
(3)
A failure to comply with the terms and conditions of any contract with
the FDIC, in any of its various capacities, or any predecessor thereto.
(c) Description of the
FDIC's Right to Offset Against Payments Under this contract. The FDIC may exercise its right of offset for
any Delinquent Obligation which arises prior to or during the term of this
contract. The Delinquent Obligation may
be deducted from the contract until the Delinquent Obligation has been paid in
full. However, if the total amount of
the Delinquent Obligation exceeds fifteen (15) percent of the total amount of
the consideration owed under the contract resulting from this RFP, the FDIC will offset a minimum of fifteen (15)
percent of the contract price, and the parties will negotiate the additional
amount, up to 100 percent of the contract price, which the FDIC will withhold
to apply towards satisfaction of the Delinquent Obligation.
The right of offset does not
apply when a Delinquent Obligation is subject to (1) litigation instituted by
either party to this contract; or (2) a petition filed on behalf of or against
contractor seeking any arrangement, reorganization, composition, readjustment,
liquidation or dissolution under bankruptcy, insolvency or other debt relief
laws.
The FDIC must give
contractor thirty (30) days written notice of its intent to exercise the right
of offset. Contractor has ten (10) days
from the date it receives notice to provide the FDIC with written evidence disputing
any portion of the amount to be offset from payments due under this
contract.
The exercise by the FDIC of
the right of offset does not under release contractor from any duties,
obligations or responsibilities under this contract.
The right of offset is in
addition to every other right or remedy available to the FDIC at law or in
equity.
________________________________________________________________
7.5.13-18 Prompt Payment (December 2008)
Prescription:
Per PGI 5.1306, insert
clause 7.5.13-18, Prompt Payment, in
awards by FDIC in its corporate capacity.
Clause:
(a) Application. This clause applies to contracts entered into
by the FDIC in its corporate capacity. The FDIC will make
invoice payments under
the terms and conditions specified in this clause. The FDIC considers payment as being made on
the day a check is dated or the date of an electronic funds transfer.
(b) Invoice Payments – Due
Date.
(1) The due date for making invoice payments by
the payment office designated in the contract is the later of the following two
events:
(i) The 30th day after the
designated payment office receives a proper invoice from
contractor
(ii) The 30th day after FDIC
accepts supplies delivered or services
performed by contractor. For a
final invoice, when the payment amount is subject to contract
settlement actions,
acceptance is deemed to
have occurred on the effective date of the contract settlement.
(2) If the designated payment office
fails to annotate the invoice with the actual date of receipt, the invoice payment due
date is the 30th day after the date of Contractor's invoice, provided the
designated payment office receives a proper invoice and there is
no disagreement over quantity,
quality, or contractor compliance with contract requirements.
(3) If the contract does not require
submission of an invoice for payment
(e.g., periodic lease payments), the payment due date is the date specified in
the contract.
(c) Contractor’s Invoice. Contractor must submit invoices to the
payment office specified in the contract.
A proper invoice must include
all the items listed in 7.5.13-13, Contents
of Invoice. If the invoice does not
comply with these requirements, the designated payment office will return it
within seven (7) days of receipt with the reasons why it is not a proper
invoice. The FDIC will take into account untimely
notification when computing any interest penalty owed
contractor.
(d) Interest Penalty. The designated payment office will pay an interest
penalty automatically, without request from contractor, if payment is not made
by the due date and the conditions listed below are met, as applicable.
(1) The designated payment office
received a proper invoice.
(2) The FDIC processed a receiving
report or other documentation authorizing payment and there was no disagreement over quantity, quality, or
contractor compliance with any contract term or condition.
(3) In the case of a final invoice for any
balance of funds due contractor for supplies delivered or services performed,
the amount was not subject to further contract settlement actions
between the FDIC and contractor.
(e) Computing Penalty
Amount. The FDIC will compute the
interest penalty in accordance
with the Office of Management and Budget’s prompt payment regulations at 5 C.F.R. Part 1315
(1) For the sole purpose of computing
an interest penalty that might be
due contractor, FDIC acceptance is deemed to
occur constructively on the 7th day - unless otherwise specified in the
contract - after contractor delivers the supplies or performs the services in
accordance with the terms and conditions of the contract, unless there is a
disagreement over quantity,
quality, or contractor compliance with a contract provision. If actual acceptance occurs within the
constructive acceptance period, the FDIC will base the determination of an
interest penalty on the actual date of acceptance. The constructive acceptance requirement does
not, however, compel FDIC officials to accept supplies or services, perform
contract administration functions, or
make payment prior to fulfilling their responsibilities.
(2) Interest penalties will not
continue to accrue for more than one (1) year or after the filing of a claim for penalties
under this contract. Interest penalties
of less than $1.00 will not be paid.
(3) Interest penalties will not be
paid on payment delays due to disagreement between the FDIC and contractor
over the payment amount or other issues involving contract compliance or on
amounts temporarily withheld or retained in accordance with the terms of the
contract.
(f) Discounts for Prompt
Payment. The designated payment office
will pay an interest penalty automatically,
without request from contractor, if the FDIC takes a discount for prompt
payment improperly. The interest penalty
will be calculated as described in subparagraph (e) above.
(g) Additional Interest
Penalty. The
designated payment office will pay a penalty amount, calculated in accordance
with regulations referenced in subparagraph (e) above in addition to the
interest penalty amount only
if:
(1) The FDIC owes an interest penalty of $1 or more;
(2) The designated payment office does
not pay the interest penalty within ten
(10) days after the date the invoice amount is
paid; and
(3) the contractor makes a written
demand to the designated payment office for additional penalty amount, not
later than forty (40) days after the date the invoice amount is
paid, that the FDIC pay such a penalty.
________________________________________________________________
Prescription:
Per PGI 5.1405, insert clause
7.5.14-1, Disputes, in all awards.
Clause:
Except as otherwise provided
in this award, any factual dispute arising under this award, which is not
disposed of by agreement, will be decided by the Contracting Officer. The Contracting Officer must, within 60 days,
decide the claim or notify the
contractor of the date by which the decision will be made. The Contracting Officer will furnish the contractor
with a copy of the written decision.
The decision of the Contracting
Officer is final and conclusive unless the contractor submits a written request
for appeal of the
decision to the Division of Administration, Acquisition Services Branch (ASB), Associate Director,
within 60 days from receipt of the Contracting Officer decision. The ASB Associate Director must, within
30 days, decide the claim or notify the
contractor of the date by which the decision will be made. The
decision of the ASB Associate Director is final and conclusive unless a court
of competent jurisdiction finds the decision fraudulent, arbitrary and
capricious, so grossly erroneous as to imply bad faith, or not supported by
substantial evidence. The contractor has
180 days from the date of the ASB Associate Director's decision to appeal to a
court of competent jurisdiction.
Contractor will be afforded
an opportunity to be heard and to offer evidence in support of its appeal, if it requests. Pending final decision of a dispute,
Contractor remains obligated to proceed diligently with the performance of the
contract, in accordance with the Contracting Officer's decision.
Questions of law may be
considered in deciding disputes under the
process described above. However,
consideration of questions of law by any administrative official,
representative or board is not a final decision, and is not to be construed as one.
________________________________________________________________
7.5.14-2 Notice and Certification of Claims (July 2008)
Prescription:
Per PGI 5.1405, insert
clause 7.5.14-2, Notice and Certification
of Claims, in all awards.
Clause:
Contractor agrees that it
will provide the Contracting Officer written notice of any claim it may have
against the FDIC arising under or in connection with this award and that it
will promptly meet with the FDIC after providing notice in a good faith effort
to resolve the claim. The written notice of the claim must be accompanied by a
certificate signed by an officer or general partner or senior official of
Contractor that:
(a) The claim is made in
good faith;
(b) Supporting data are
accurate and complete to the best of Contractor's knowledge and belief; and
(c) The amount requested
accurately reflects the contract adjustment for which contractor believes the
FDIC is liable.
Contractor is advised that
receivership claims fall
under sections 11(d)(3)-(13) of the Federal Deposit Insurance Act, as amended (12 U.S.C. §1821(d)(3)-(13)).
________________________________________________________________
7.6.3-1 Place of Manufacture (July 2008)
Prescription:
Per PGI 6.304, insert
provision 7.6.3-1, Place of Manufacture, in solicitations [Corporate Capacity only] that are predominantly for the
acquisition of manufactured end products, (i.e.,
the estimated value of the manufactured end products exceeds the estimated
value of other items to be acquired as a result of the solicitation).
Provision:
(a) Definitions. As used in this provision—
“Manufactured end product”
means any end product in Federal Supply Classes (FSC) 1000-9999, except—
(1) FSC 5510, Lumber and
Related Basic Wood Materials;
(2) Federal Supply Group
(FSG) 87, Agricultural Supplies;
(3) FSG 88, Live Animals;
(4) FSG 89, Food and Related
Consumables;
(5) FSC 9410, Crude Grades
of Plant Materials;
(6) FSC 9430, Miscellaneous
Crude Animal Products, Inedible;
(7) FSC 9440, Miscellaneous
Crude Agricultural and Forestry Products;
(8) FSC 9610, Ores;
(9) FSC 9620, Minerals,
Natural and Synthetic; and
(10) FSC 9630, Additive Metal Materials.
“Place of manufacture” means the place where
an end product is assembled out of components, or otherwise made or processed
from raw materials into the finished product that is to be provided to the
Government. If a product is disassembled
and reassembled, the place of reassembly is not the place of manufacture.
(b) For statistical purposes
only, the offeror shall indicate whether the place of manufacture of the end
products it expects to provide in response to this solicitation is
predominantly—
(1) In the United States (Check this
box if the total anticipated price of offered end products manufactured in the
United States exceeds the total anticipated price of offered end products manufactured
outside the United States); or
(2) Outside the United States.
________________________________________________________________
7.6.4-1 Inspection and Acceptance
(July 2008)
Prescription:
Per PGI 6.410, insert clause
7.6.4-1, Inspection and Acceptance, in all awards except construction awards.
Clause:
(a) All goods and services
shall be subject to inspection and test by
the FDIC Oversight Manager, to the extent practicable, at all times and places
during the term of the award. All inspections
by the FDIC shall be made in such a manner as not to unduly delay the work.
(b) The FDIC shall have
[FILL IN NUMBER] business days from the date of Contractor's delivery to
determine if such goods and services are in compliance with the requirements of
the contract. If any services performed
or goods delivered hereunder are not in conformity with the requirements of
this Award, the FDIC shall have the right to require Contractor to reperform
the services or redeliver the goods in conformity with the requirements of the
Award, at no additional increase in total contract amount. When the services to be performed are of such
a nature that the defect cannot be corrected by reperformance of the services,
the FDIC shall have the right to (1) require Contractor immediately to take all
necessary steps to ensure future performance of the services in conformity with
the requirements of the contract; and (2) reduce the contract price to reflect
the reduced value of the services performed.
In the event Contractor fails promptly to reperform the services or
redeliver the goods, or to take necessary steps to ensure future performance of
the services or delivery of the goods in conformity with the requirements of
the Award, the FDIC shall have the right to either (1) by contract or
otherwise, have the services performed or the goods delivered in conformity
with the contract requirements and charge to Contractor any cost occasioned to
the FDIC that is directly related to the performance of such services or the delivery
of such goods; or (2) terminate this Award for default as provided in 7.6.6-2,
Termination for Default.
(c) Contractor shall provide
and maintain an inspection system
acceptable to the FDIC covering the goods or services to be delivered or
performed hereunder. Records of all
inspection work by Contractor shall be kept complete and available to the FDIC
during the term of this Award and for such longer period as may be specified
elsewhere in this Award.
________________________________________________________________
7.6.4-2 Inspection and Acceptance (Construction) (July 2008)
Prescription:
Per PGI 6.410, insert clause
7.6.4-2, Inspection and Acceptance (Construction), in all construction awards.
Clause:
(a) All work (which term
includes but is not restricted to materials, workmanship, and manufacture and
fabrication of components) shall be subject to inspection and test by
the FDIC at all reasonable times and at all places prior to acceptance. Any such
inspection and test is for the sole benefit of the FDIC and shall not relieve
Contractor of the responsibility of providing quality control measures to
assure that the work strictly complies with the contract requirements. No inspection or test by the FDIC shall be
construed as constituting or implying acceptance. Inspection or test shall not relieve
Contractor of responsibility for damage to or loss of the material prior to
acceptance or in any way affect the continuing rights of the FDIC after
acceptance of the completed work under the terms of paragraph (f) of this
clause, except as hereinabove provided.
(b) Contractor shall give
written notice to the Contracting Officer at least ten (10) calendar days
before the date the work will be completed and ready for final inspection and
tests. Final inspection and tests will
begin within ten (10) calendar days after the date specified in Contractor's
notice unless the Contracting Office determines that the work is not ready for
final inspection and so informs Contractor.
(c) Contractor shall,
without charge, replace any material or correct any workmanship found by the
FDIC not to conform to the contract requirements, unless in the public interest
the FDIC consents to accept such material or workmanship with an appropriate
adjustment in contract price. Contractor
shall promptly segregate and remove rejected material from the premises at its
own expense.
(d) If Contractor does not
promptly replace rejected material or correct rejected workmanship, the FDIC
may (1) by contract or otherwise, replace such material or correct such
workmanship and charge the cost thereof to Contractor, or (2) terminate
Contractor's right to proceed in accordance with the clause of this contract
entitled "Termination for Default Damages."
(e) Contractor shall furnish
promptly, without additional charge, all facilities, labor, and material
reasonably needed for performing such safe and convenient inspection and test as
may be required by the Contracting Officer.
All inspection and test by the FDIC shall be performed in such manner as
not unnecessarily to delay the work.
Special, full size, and performance tests shall be performed as
described in this contract. The FDIC
reserves the right to charge to Contractor any additional cost of inspection
and test when material or workmanship is not ready at the time specified by
Contractor for inspection or test or when reinspection or retest is
necessitated by prior rejection.
(f) Should it be considered
necessary or advisable by the FDIC at any time before acceptance of the entire
work to make an examination of work already completed, by removing or tearing
out same, Contractor shall, on request, promptly furnish all necessary
facilities, labor, and material. If such
work is found to be defective or nonconforming in any material respect, due to
the fault of Contractor or any subcontractors, Contractor shall defray all the
expenses of such examination and of satisfactory reconstruction. If, however, such work is found to meet the
requirements of the contract, an equitable adjustment shall be made in the
contract price to compensate Contractor for the additional services involved in
such examination and reconstruction and, if completion of the work has been
delayed thereby, he shall, in addition, be granted a suitable extension of
time.
(g) Unless otherwise
provided in this contract, acceptance by the FDIC
shall be made as promptly as practicable after completion and inspection of all work
required by this contract, or that portion of the work that the Contracting
Officer determines can be accepted separately.
Acceptance shall be final and conclusive except as regards latent
defects, fraud, or such gross mistakes as may amount to fraud, or as regards
the FDIC's rights under any warranty or guarantee.
________________________________________________________________
7.6.4-3 Risk of Loss or Damage (July 2008)
Prescription:
Per PGI 6.410, insert clause
7.6.4-3, Risk of Loss or Damage, in
all awards.
Clause:
Contractor must retain title
to all materials and equipment until receipt of the FDIC's written acceptance and payment
after final inspection of the
finished installation. Title may
transfer at an earlier date but only upon written notice to contractor by the
Contracting Officer. Risks of loss or
damage by fire or other causes to material or property ordered by contractor
shall be the sole responsibility of contractor until acceptance by the FDIC. Contractor shall be liable to the FDIC for
any and all damage to FDIC-owned and FDIC-leased property as a result of this
work.
________________________________________________________________
Prescription:
Per PGI 6.509, insert clause
7.6.5-1, Changes, in all awards
except for construction.
Clause:
(a) The Contracting Officer,
by written change order, may make changes within the general scope of this
contract in the:
(1) Description of services to be
performed,
(2) Time of performance (i.e., hours of
the day, days of the week),
(3) Place of performance of services,
(4) Drawings, designs or specifications
of supplies specially manufactured for the FDIC,
(5) Method of shipment or packing of
supplies,
(6) Place of delivery.
These changes may be made at
any time and without notice to sureties.
(b) When a change occurs the
Contracting Officer will adjust the contract price or the delivery schedule, or
both, if the change causes an increase or decrease in the cost of or time for
performance of any part of the work under this contract, and will modify the
contract accordingly.
(c) Contractor must assert a
right to an adjustment of the contract price or delivery schedule under this
clause within thirty (30) days from the date it receives a written change
order. The Contracting Officer has the
discretion to receive and act upon a proposed adjustment submitted by the
Contractor anytime before final payment of the contract, if the Contracting
Officer decides the facts justify consideration of a late submission.
(d) If Contractor's proposed
adjustment includes the cost of property that was made obsolete by or became
excess because of the change, the Contracting Officer has the right to
prescribe the manner of disposition of the property.
(e) An adjustment to which
the parties cannot agree is treated as a dispute under the "Disputes" clause of this contract. Failure to reach agreement on an
adjustment does not excuse Contractor from performing the contract as changed.
________________________________________________________________
7.6.5-2 Changes (Construction) (July 2008)
Prescription:
Per PGI 6.509, insert clause
7.6.5-2 Changes (Construction), in
all awards for construction.
Clause:
(a) The Contracting Officer
may, at any time, without notice to the sureties, by written order designated
or indicated to be a change order, make any change in the work within the
general scope of the contract, including but not limited to changes:
(i) In the specifications
(including drawings and designs);
(ii) In the method or manner of
performance of the work;
(iii) In the FDIC furnished facilities, equipment, materials, services,
or site; or
(iv) Directing acceleration in
the performance of the work.
(b) Any other written or oral order, including
any direction, instruction interpretation or determination, from the
Contracting Officer which causes any such change, shall be treated as a change
order under this clause if Contractor gives the Contracting Officer written
notice stating the date, circumstances, and source of the order and that
Contractor regards the order as a change order.
(c) Except as herein provided, no order,
statement, or conduct of the Contracting Officer shall be treated as a change
under this clause or entitle Contractor to an equitable adjustment hereunder.
(d) If any change under this clause causes an
increase or decrease in Contractor's
cost of, or the time required for, the performance of any part of the work
under this contract, whether or not changed by any order, an equitable
adjustment shall be made and the contract modified in writing
accordingly; provided, however, that
except for claims based on defective specifications, no claim for any change
under (b) above shall be allowed for any costs incurred more than twenty (20)
days before Contractor gives written notice as therein required. And further provided that, in the case of
defective specifications for which the FDIC is responsible, the equitable
adjustment shall include any increased cost reasonably incurred by Contractor
in attempting to comply with such defective specifications.
(e) If Contractor intends to
assert a claim for an
equitable adjustment under this clause, he must, within thirty (30) days after
receipt of a written change order under (a) above or the furnishing of written
notice under (b) above, submit to the Contracting Officer a written statement
setting forth the general nature and monetary extent of such claim, unless this
period is extended by the FDIC. The
statement of claim hereunder may be included in the notice under (b) above.
(f) No claim by Contractor
for an equitable adjustment hereunder shall be allowed if asserted after final
payment under this contract.
________________________________________________________________
7.6.5-3 Stop Work Order (July 2008)
Prescription:
Per PGI 6.509, insert clause
7.6.5-3, Stop Work Order, in all
awards except construction.
Clause:
The FDIC may issue an order
directing Contractor to stop work on this contract, if the Contracting Officer
determines this action is in the best interests of the FDIC ("Stop Work
Order"). Upon receipt of a Stop
Work Order, Contractor must immediately comply with its terms and take all
reasonable steps to minimize costs associated with the contract during the
period of the Stop Work Order.
The maximum length of a Stop
Work Order is ninety (90) days, unless the Contractor and the FDIC agree to
extend the period. Within ninety (90)
days of Contractor’s receipt of the Stop Work Order, or any agreed extension
thereof, the Contracting Officer must either:
(a) Cancel the Stop Work
Order; or
(b) Terminate the contract
in whole or in part, as appropriate, following the procedures in the
termination clauses of this contract.
If the contract is
terminated, the FDIC will consider the necessary, unavoidable and reasonable
costs to Contractor caused by the Stop Work Order during the period from its
issuance until the date of termination of the contract.
If the Stop Work Order is
canceled or otherwise expires, Contractor must immediately resume work. If Contractor is notified during the period
of a Stop Work Order that the contract will be terminated, Contractor must not
resume work, unless otherwise directed to do so in the termination notice.
The FDIC will adjust the
performance schedule, the contract amount, or both, and modify the contract if:
(a) The Stop Work Order
causes an increase in the time required to perform the work or the costs to do
the work or both; and
(b) Contractor asserts its
rights to an adjustment, in writing to the Contracting Officer, within thirty
(30) days following the end of the Stop Work Order period.
________________________________________________________________
7.6.5-4 Suspension of Work (July 2008)
Prescription:
Per PGI 6.509, insert clause
7.6.5-4, Suspension of Work, in all
awards for construction.
Clause:
(a) The Contracting Officer
may order Contractor, in writing, to suspend, delay, or interrupt all or any
part of the work of this contract for the period of time that the Contracting
Officer determines appropriate for the convenience of the FDIC.
(b) If the performance of
all or any part of the work is, for an unreasonable period of time, suspended,
delayed, or interrupted (1) by an act of the Contracting Officer in the
administration of this contract, or (2) by the Contracting Officer's failure to
act within the time specified in this contract (or within a reasonable time if
not specified), an adjustment shall be made for any increase in the cost of
performance of this contract (excluding profit) necessarily caused by the
unreasonable suspension, delay, or interruption, and the contract modified in writing
accordingly. However, no adjustment
shall be made under this clause for any suspension, delay, or interruption to
the extent that performance would have been so suspended, delayed, or
interrupted by any other cause, including the fault or negligence of
Contractor, where an equitable adjustment is provided for or excluded under any
other term or condition of this contract.
(c) A claim under this
clause shall not be allowed (1) for any costs incurred more than twenty (20)
days before Contractor shall have notified the Contracting Officer in writing
of the act or failure to act involved (but this requirement shall not apply as
to a claim resulting from a suspension order), and (2) unless the claim, in an
amount stated, is asserted in writing as soon as practicable after the
termination of the suspension, delay, or interruption, but not later than the
date of final payment under the contract.
________________________________________________________________
7.6.5-5 Assignment of Claims (July 2008)
Prescription:
Per PGI 6.507, insert clause
7.6.5-5, Assignment of Claims, in all awards.
Clause:
Contractor may assign its
claims for monies due or to become due under this contract to an institution
providing financing to it, such as a bank, trust company or Federal lending
agency. Reassignment for the same
purpose is permitted, as well. Any assignment or reassignment must be for the entire
remaining amount payable under the contract.
An assignment may be made to one party only; if more than one
party provides financing, payment may be made to an agent or trustee for the
parties participating in the financing.
The assignee must provide the Contracting Officer with a written notice
of the assignment and a copy of the assignment document.
______________________________________________________________________
7.6.6-1 Termination for Convenience of the FDIC
(July 2008)
Prescription:
Per PGI 6.606, insert clause
7.6.6-1, Termination for Convenience of the FDIC, in all awards.
Clause:
(a)
The FDIC may terminate this contract or any task order, in whole or in part, at
any time and in its sole discretion, if the Contracting Officer determines
termination is in the best interests of the FDIC. The FDIC will deliver to Contractor a notice
of termination for the convenience of the FDIC, specifying the extent of
termination and the effective date.
FDIC must deliver the notice of termination to Contractor at least
thirty (30) days before its effective date.
Contractor must take whatever action is necessary for an orderly and
timely discontinuation of the contract.
Contractor must deliver to the FDIC all contract deliverables, completed
or partially completed, including any plans, drawings, information, data,
materials or equipment in Contractor’s possession. The FDIC is not liable for
any fees, charges, penalties or damages related to the terminated work,
incurred after the effective date of the termination.
(b)
If the termination is partial, Contractor may file a proposal with the
Contracting Officer for an adjustment of the price(s) of the portion of the
contract or task order that is not terminated.
Any proposal by Contractor for a price adjustment must be made within
ninety (90) days from the effective date of partial termination unless the
Contracting Officer agrees in writing to an extension of the proposal period.
The contract will be modified to reflect any price adjustment to which the
parties agree.
7.6.6-2 Termination for Default (July 2008)
Prescription:
Per PGI 6.606, insert clause
7.6.6-2, Termination for Default, in all awards except construction awards.
Clause:
(a) Time is of the essence
in Contractor's performance of its duties under the contract. The FDIC may
terminate the contract in whole or in part, subject to paragraphs (c) and (d)
below, by written notice of default to Contractor, if Contractor fails to--
(1) Deliver the goods or perform the
services within the time specified in the contract, or any extension;
(2) Make progress, so as to endanger
performance of the contract (subject to the right to cure described below); or
(3) Perform any of the other provisions
of the contract (subject to the right to cure described below).
Contractor may cure a
default under subparagraphs (a)(2) or (a)(3) if it does so within ten (10) days
after receiving the notice of default from the Contracting Officer. The cure period may be extended by the
Contracting Officer in writing. Failure
to cure the default will result in termination.
(b) If the FDIC terminates
the contract in whole or in part for default, the FDIC may acquire from another
source goods or services similar to those Contractor should have provided.
Contractor is liable for any additional costs the FDIC incurs in obtaining
goods or services in substitution for those Contractor failed to provide. If a partial termination of the
contract occurs, Contractor remains obligated to perform those parts of the
contract that are not terminated.
(c) Contractor is not liable
for the additional costs described in paragraph b above, if the failure to
perform the contract arises from causes beyond the control, and without the
fault or negligence, of Contractor.
Examples of such causes include: (1) acts of God or of the public enemy, (2)
acts of the FDIC, (3) fires, (4) floods, (5) epidemics, (6) quarantine
restrictions, (7) strikes, (8) freight embargoes and (9) unusually severe
weather.
(d) If the failure to
perform is caused by the default of a subcontractor at any tier, and if the
cause of the default is beyond the control of both Contractor and the
subcontractor, and without the fault or negligence of either, Contractor is not
liable for the additional costs caused by its failure to perform, unless the
Contractor could have obtained the subcontracted goods or services from other
sources in sufficient time for Contractor to meet the delivery schedule.
(e) If the contract is
terminated for default, the FDIC may require Contractor to transfer title and
deliver to the FDIC any contract deliverables that have been completed, either
in whole or in part, and any goods or products that Contractor has specifically
produced or acquired for the contract.
Contractor also must protect and preserve property in its possession in
which the FDIC has an interest.
(f) The FDIC will pay the
contract price for contract deliverables delivered and accepted. Contractor and the Contracting Officer will
agree on the amount of payment by FDIC to Contractor for goods or products
specifically produced or acquired by Contractor for the contract, delivered to
and accepted by FDIC, and for costs associated with the protection and
preservation of property. Failure to
agree will be a dispute as defined in the “Disputes” clause of the contract. The
FDIC may withhold from amounts owed
Contractor any sum the Contracting Officer determines necessary to protect the
FDIC against loss arising from claims of lien holders to the goods or products
in question.
(g) If after termination of
the contract, it is determined that Contractor was not in default or that the
default was excusable, the termination will be treated as a termination for
convenience under the clause Termination
for Convenience of the FDIC, and the rights and obligations of the parties will be governed
accordingly.
(h) The rights and remedies of the FDIC
set out in this clause are in addition to any other rights and remedies
provided by law or elsewhere in the contract.
________________________________________________________________
7.6.6-3 Termination for Default Damages
(July 2008)
Prescription:
Per PGI 6.606, insert clause
7.6.6-3, Termination for Default Damages, in all awards for construction or
dismantling, demolition, or removal of improvements.
Clause:
(a) If Contractor refuses or
fails to prosecute the work, or any separable part thereof, with such diligence
as will insure its completion within the time specified in this contract, or
any extension thereof, or fails to complete said work within such time, the
FDIC may, by written notice to Contractor, terminate Contractor's right to
proceed with the work or such part of the work as to which there has been
delay. In such event, the FDIC may take
over the work and prosecute the same to completion, by contract or otherwise,
and may take possession of and utilize in completing the work such materials,
appliances, and plant as may be on the site of the work and necessary
therefore. Whether or not Contractor’s
right to proceed with the work is terminated, it and its sureties shall be
liable for any damage to the FDIC resulting from Contractor's refusal or
failure to complete the work within the specified time.
(b) If fixed and agreed
liquidated damages are provided in the contract and if the FDIC so terminates
Contractor’s right to proceed, the resulting damage will consist of such liquidated
damages until such reasonable time as may be required for final completion of
the work, together with any increased costs occasioned the FDIC in completing
the work.
(c) If fixed and agreed
liquidated damages are provided in the contract and if the FDIC does not so
terminate Contractor’s right to proceed, the resulting damage will consist of
such liquidated damages until the work is completed or accepted.
(d) Contractor's right to
proceed shall not be so terminated nor Contractor charged with resulting damage
if:
(1) The delay in the completion of the
work arises from unforeseeable causes beyond the control and without the fault
or negligence of Contractor, including but not restricted to acts of God, acts
of the public enemy, acts of the FDIC in either its sovereign or contractual
capacity, acts of another contractor in the performance of a contract with the
FDIC, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes, unusually severe weather, or delays of subcontractors or suppliers
arising from unforeseeable causes beyond the control and without the fault or
negligence of both Contractor and such subcontractors or suppliers; and
(2) Contractor, within ten (10) days
from the beginning of any such delay (unless the Contracting Officer grants a
further period of time before the date of final payment under the contract),
notifies the Contracting Officer in writing of the causes of delay. The Contracting Officer shall ascertain the
facts and the extent of the delay and extend the time for completing the work
when, in his judgment, the findings of fact justify such an extension, and his
findings of fact shall be final and conclusive on the parties, subject only to
appeal as provided in
the "Disputes" clause.
(e) If, after notice of
termination of Contractor's right to proceed under the provisions of this
clause, it is determined for any reason that Contractor was not in default
under the provisions of this clause, or that the delay was excusable under the
provisions of this clause, the rights and obligations of the parties shall, if
the contract contains a clause providing for termination for convenience of the FDIC, be the same as if
the notice of termination had been issued pursuant to such clause. If, in the foregoing circumstances, this
contract does not contain a clause providing for termination for convenience of
the FDIC, the contract shall be equitably adjusted to compensate for such
termination and the contract modified accordingly;
failure to agree to any such adjustment shall be a dispute concerning a
question of fact within the meaning of the clause of this contract entitled
"Disputes."
(f) The rights and remedies of the FDIC
provided in this clause are in addition to any other rights and remedies
provided by law or under this contract.
(g) As used in paragraph
(d)(1) of this clause, the term "subcontractors or suppliers" means
subcontractors or suppliers at any tier.
________________________________________________________________
7.6.6-4 Excusable Delays (July 2008)
Prescription:
Per PGI 6.606, insert clause
7.6.6-4, Excusable Delays, in all
awards.
Clause:
Failure to perform this
contract according to its terms is excusable and not an event of default if the
failure to perform is caused by events beyond the control of Contractor, and
through no fault or negligence of Contractor.
Events beyond the control of Contractor include acts of God or of the
public enemy, acts of the FDIC, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, unusually severe weather, and the
like.
If the failure to perform is
caused by the failure of a subcontractor (at any tier) to perform, and if the
failure is caused by events beyond the control of both Contractor and the
subcontractor, and through no fault or negligence of either, Contractor will
not be in default, unless (a) Contractor reasonably could have obtained from other sources the supplies or services
the subcontractor was to have furnished, (b) the Contracting Officer directed Contractor in writing to procure the
supplies or services from the other sources, and (c) Contractor failed to
comply with the order.
The delivery schedule for
the contract will be revised at the request of Contractor, if the Contracting
Officer determines that a failure to perform this contract was caused by an
event beyond the control of Contractor.
Excusable delay has no bearing on the FDIC’s right to terminate the
contract for convenience under the clause Termination
for Convenience of the FDIC.
________________________________________________________________
7.6.7-1 FDIC Property
(July 2010)
Prescription:
Per PGI 6.708, insert clause
7.6.7-1, FDIC Property, in awards where FDIC property may be
furnished to Contractor.
Clause:
(a) Application. This clause applies to contracts entered into
by the FDIC in which the FDIC furnishes property to the Contractor to be used
in performance of the contract. All
communications under this clause must be in writing.
(b) Delivery and Condition
of Property.
(1) The FDIC will deliver property to
the Contractor of the type (item, quantity, and description) provided for in
the contract, at the specified time. If
no delivery time is specified, the FDIC will deliver the property in sufficient
time to enable Contractor to meet the contract's delivery or performance dates.
(2) If Contractor receives property
from the FDIC in a condition not suitable for the intended use, Contractor must
notify the Contracting Officer of the deficiencies, and request a price
adjustment to the contract, if warranted. The Contracting Officer will direct
the Contractor either to repair, modify, return or otherwise dispose of the
property, at the FDIC’s expense, and will make a price adjustment to the
contract, if warranted, in accord with paragraph (g) below.
(3) If FDIC does not deliver property
to Contractor on time, the Contracting Officer, upon Contractor's timely
request, will determine the affect of the delay on Contractor’s ability to
perform and will make a price adjustment to the contract, if warranted, in
accord with paragraph (g) below.
(c) Property Substitutions.
(1) The Contracting Officer may
decrease the property provided by the FDIC or substitute other property, upon
giving notice to the Contractor. The
notice may direct the Contractor in the removal, shipment or disposal of FDIC
property previously
supplied; Contractor must promptly comply with the directions given.
(2) If the FDIC decreases the property
or substitutes other property, the Contracting Officer, upon Contractor’s
timely request, will make a price adjustment to the contract, if warranted, in
accord with paragraph (g) below.
(d) Title in FDIC Property.
(1) The FDIC retains title to all property
it supplies to Contractor.
(2) The title to FDIC property remains in the
FDIC regardless of its incorporation into or attachment to property not owned
by the FDIC. FDIC property does not become a fixture or lose its identity as
personal property by being attached to real property.
(3) Title to property acquired by
Contractor for the FDIC under this contract vests in the FDIC when either it is
first used in performance of this contract or the FDIC has paid for it,
whichever occurs first.
(4) If this contract contains a
provision directing Contractor to purchase material for which the FDIC will
reimburse Contractor as a direct item of cost under this contract, then:
(i) Title to material purchased
from a vendor passes to and vests in the FDIC upon the vendor's delivery of the
material; and
(ii) Title to all other
material passes to and vests in the FDIC upon
(A) Issuance of the
material for use in contract performance;
(B) Commencement of
processing of the material or its use in contract performance; or
(C) Reimbursement of
the cost of the material by the FDIC, whichever occurs first.
(e) Risk of Loss. Unless otherwise provided in this contract,
Contractor assumes the risk of loss for any loss or destruction of, or damage
to, FDIC property upon its
delivery to Contractor or upon passage of title to the FDIC under paragraph (d).
Contractor is not responsible for reasonable wear and tear to FDIC property or
for FDIC property consumed in performing this contract.
(f) Property Administration.
(1) Contractor is accountable for all
FDIC property provided under
this contract.
(2) The FDIC property is for use in
performing work for the FDIC under this contract only, unless the contract or
the Contracting Officer permits otherwise. Contractor must maintain, repair,
protect, and preserve FDIC property in its possession.
(3) If damage occurs to FDIC property for which FDIC
has assumed the risk of loss, the FDIC will replace the items or direct
Contractor to make repairs. If
Contractor cannot effect repairs within the time specified, The Contracting
Officer will direct Contractor on disposal of the property. The Contracting Officer will make a price
adjustment in accord with paragraph (g) below, when the Contractor replaces or
repairs any property for which the FDIC is responsible.
(4) Contractor represents that the
contract price does not include any amount for replacement or repair of
property for which the FDIC is responsible.
(5) Contractor grants FDIC access,
during business hours, to the premises in which FDIC property is located for
the purpose of inspecting FDIC property.
(g) Price Adjustment. The right to a price adjustment is
Contractor's exclusive remedy under this clause. The FDIC is not liable for breach of contract
for:
(1) Any delay in delivery of FDIC
property;
(2) Delivery of FDIC property in a
condition not suitable for its intended use;
(3) A decrease in or substitution of
FDIC property, or
(4) Failure to repair or replace FDIC
property for which the FDIC is responsible.
The procedures for price
adjustments are those set out in the "Changes" clause. When appropriate, the Contracting Officer may
initiate a price adjustment in favor of the FDIC.
(h) Final Accounting and
Disposition of FDIC Property. Contractor
must submit an inventory, in a format specified by the Contracting Officer, of
all FDIC property (including any
resulting scrap) not consumed in performing this contract or delivered back to
the FDIC at completion of this contract, if required by the Contracting
Officer.
Contractor must ship,
deliver or dispose of FDIC property as directed by
the Contracting Officer. The net
proceeds from any disposal of FDIC property will be either credited to the
contract price or paid to the FDIC, as the Contracting Officer directs.
FOR CONSTRUCTION CONTRACTS,
PARAGRAPH (i) ALSO APPLIES:
(i) The FDIC will furnish to
Contractor the property, if any, identified in the Contract to be incorporated
or installed into the work or used in performing the contract. The listed property will be furnished F.O.B.
railroad cars at the place specified in the contract Schedule or F.O.B. truck
at the project site. Contractor is
required to accept delivery, pay any damage or detention charges, and unload
and transport the property to the job site at its own expense. When the property is delivered, Contractor
shall verify its quantity and condition and acknowledge receipt in writing to
the Contracting Officer. Contractor
shall also report in writing to the Contracting Officer within twenty-four (24)
hours of delivery any damage or shortage of the property as received. All such property shall be installed or
incorporated into the work at the expense of Contractor, unless otherwise
indicated in this contract.
The matrix below contains information as stated in PGI 7.102(c).
use
|
Provision
or Clause Title |
Editing required? |
Clause
Section* |
Provision |
Prescribed
in PGI |
Incorporated
by Reference |
Request
for Quotation |
Request
for Proposal |
Contracts |
Basic
Ordering Agreement (BOA) |
Blanket
Purchase Agreement (BPA) |
GSA Awards=
FSS |
Consultant
Agreements |
Simplified
Procurement Order |
Construction
Contract |
Task
Order (Services) |
Delivery
Order (Goods) |
Interagency
Agreement |
Request
for Task Order Proposal |
Solicitation
Provision Incorporated by Reference |
N |
L |
P |
|
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
|
Clauses
Incorporated by Reference |
N |
I |
C |
|
N |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
|
Post-Government
Employment Certification (Pre-Award) |
N |
L |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Post-Government
Employment Certification (Post-Award) |
N |
H |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Disposition
of Submitted Material |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Central
Contractor Registration |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Restriction
on Disclosure of Information |
N |
K |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
|
||
Solicitation
Requirements, Terms and Conditions |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Price
Only Evaluation Method |
N |
M |
P |
Y |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Identification
and Delivery of Proposals |
Y |
L |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Proprietary
Information |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Amendments,
Extensions, and Cancellations |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Delivery
Schedule |
Y |
F |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
A |
||
Place
of Delivery or Performance |
Y |
F |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
||
|
Deliverables |
N |
F |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
Period
of Performance |
Y |
F |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
||
OIG
Fraud Hotline |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Order
of Precedence |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Governing
Law |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Description
of Goods or Services |
Y |
L |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
References
to Time |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Outreach
Program: SDB, Minority-Owned and Women-Owned Business Concerns |
N |
L |
P |
Y |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Site
Visit |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Offerors’
Conference |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Questions
Regarding Solicitation |
Y |
L |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Submission
of Offers in the English Language and in U.S. Currency |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Award
of Contract - Competitive |
N |
L |
P |
Y |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
General
Proposal Instructions |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
General Proposal Instructions – Oral
Presentation |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Pricing
Proposal (Firm-Fixed-Price) |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Pricing
Proposal (Time and Material or Labor Hour) |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Effective
Period of Offer |
Y |
L |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Non-Responsive
Proposals |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Mission
Capability - Proposal Instructions |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Past
Performance - Proposal Instructions |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Best
Value Evaluation Process |
Y |
M |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Evaluation
of Mission Capability |
Y |
M |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Evaluation
of Past Performance |
N |
M |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Description/Specifications/Work
Statement |
Y |
C |
C |
3.11.2 or 3.218 |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
Evaluation
of Pricing |
Y |
M |
P |
N |
R |
R |
|
|
|
|
|
|
|
|
|
|
R |
||
Evaluation
of Financial Capability |
N |
M |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Technical
Approach |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Management
Plan |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Key
Personnel |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Oral
Presentation |
Y |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Late
Proposals, Modifications of Proposals, and Withdrawals of Proposals |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
|
||
Award
- Best Value |
N |
M |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Rejecting
Proposals/Waiving Informalities |
N |
L |
P |
Y |
R |
R |
|
|
|
|
|
|
|
|
|
|
A |
||
Pre-Award
Site Visit |
N |
L |
P |
Y |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Compliance
with Presidential $1 Coin Act of 2005 |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Independent
Contractors |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Duty
to Deliver or Perform |
N |
C |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
R |
R |
||
Calendar
Days |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Task
Order |
Y |
H |
C |
N |
|
|
|
R |
R |
|
|
|
|
|
|
|
|
||
Audit
of Records |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Scope
of Service - Task Orders |
Y |
C |
C |
N |
|
|
|
|
|
|
|
|
|
R |
|
|
|
||
Incorporation
of Terms and Conditions |
Y |
I |
C |
Y |
|
|
|
R |
R |
R |
|
|
|
R |
R |
|
|
||
Change
in Physical Location |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
FDIC
Personnel |
Y |
G |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Contractor
Personnel |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Key
Personnel |
Y |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Representations
of Contractor |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Preamble
to Contractor Representations and Certifications |
N |
K |
C |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Integrity
and Fitness Representations and Certifications |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Additional
Information - Representations, Certifications and Other Statements of the
Offeror |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Certification
of Registration in Central Contract Registration (CCR) |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certificate
of Independent Price Determination |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Contingent
Fee Representation |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Equal
Opportunity Certification |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cooperation
with the Office of Inspector General |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Certification
and Disclosure Regarding Payments to Influence Certain Federal Transactions |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Task
Assignment Procedures |
Y |
H |
C |
N |
|
|
|
A |
A |
|
|
|
|
A |
|
|
|
||
Public
Release of Contract Award and Advertising and Publicity Information |
N |
I |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
||
Limitation
on Payment to Influence Certain Federal Transactions |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Warranty Concerning Contingent Fees |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Anti-Kickback
Procedures |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Drug-Free
Workplace |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Equal
Opportunity |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Affirmative
Action for Workers with Disabilities |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Affirmative
Action for Special Disabled Veterans and Vietnam Era Veterans |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Employment
Reports on Special Disabled Veterans and Vietnam Era Veterans |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Ozone-Depleting
Substances |
N |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Refrigeration
Equipment and Air Conditioners |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
||
Joint
and Several Liability |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Legal
Representation |
N |
H |
C |
N |
|
|
A |
A |
A |
|
|
|
|
|
|
|
|
||
FDIC
Contracting Capacity – BOAs/RBOAs/ BPAs |
Y |
I |
C |
N |
|
|
|
R |
R |
R |
|
|
|
|
|
|
|
||
FDIC
Contracting Capacity – Contracts/Task Orders/Delivery Orders |
Y |
I |
C |
N |
|
|
R |
|
|
|
|
|
|
R |
R |
|
|
||
Compliance
with 12 CFR Part 366 and Application of 12 CFR 367 |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
|
|
|
|
|
||
Copy
of Contractor's General Services Administration Schedule Contract |
N |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
Contractor
Use of AbilityOne – Mandatory Source of Goods or Services |
N |
I |
C |
3.306 |
Y |
|
|
A |
A |
A |
A |
A |
|
|
|
|
|
|
|
Emergency
Preparedness |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Security
and Privacy Compliance for IT Services |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Off-site
Processing and Storing of FDIC Information |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Data
Connection |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Privacy
Requirements for External Web Applications and Content |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Commencement,
Prosecution and Completion of Work |
Y |
F |
C |
N |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Location(s)
for Services |
Y |
F |
C |
N |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Contractor's
Project Manager |
N |
H |
C |
N |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Specifications
and Drawings |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Differing
Site Conditions |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Material
and Workmanship |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Superintendence
by Contractor |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Permits
and Responsibilities |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Conditions
Affecting the Work |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Other
Contracts |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Shop
Drawings |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Use
and Possession Prior to Completion |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Measurements |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Layout
of Work |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Availability
and Use of Utility Services |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Use
of Premises |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Operations
and Storage Areas |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Heat |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Protection
of Existing Vegetation, Structures, Equipment, Utilities, and Improvement |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Health
and Safety |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Cleanup |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
A |
|
|
|
|
||
Use
of Equipment by the FDIC |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Privacy
Act |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
|
A |
|
|
|
||
Protecting
Sensitive Information |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
|
|
|
||
Access
to FDIC Information Systems |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Background
Investigation Questionnaires |
N |
L |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
A |
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Background
Investigations |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
7.5.2-03 Alternate 1 |
Background
Investigations |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
|
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Risk
Level Designation (Entire Contract) |
Y |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Risk
Level Designation (Labor Category) |
Y |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Identification/Access
Badges |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Use
of FDIC Premises by Contractor Personnel |
N |
H |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Section
508, Electronic and Information Technology (EIT) - (BOA/RBOA/BPA) |
N |
I |
C |
Y |
|
|
|
A |
|
|
|
|
|
|
|
|
|
||
Section
508, Electronic and Information Technology (EIT) - (Contract or Task Order) |
Y |
I |
C |
N |
|
|
A |
|
|
|
|
A |
|
|
|
|
|
||
Authorization
and Consent |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
R |
|
|
|
|
||
Notice
and Assistance Regarding Patent and Copyright Infringement |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
R |
|
|
|
|
||
Patent
Indemnity |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
R |
|
|
|
|
||
Patent
Rights—Retention by the Contractor |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
A |
|
|
|
|
||
Patent
Rights—Acquisition by the FDIC |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
A |
|
|
|
|
||
FDIC
Rights in Data—General |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
A |
|
|
|
|
||
Rights
in Data—Special Works |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
A |
|
|
|
|
||
Rights
in Data—Existing Works |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
|
A |
A |
|
|
|
|
||
Commercial
Computer Software—Restricted Rights |
N |
I |
C |
Y |
|
|
A |
A |
A |
|
|
A |
|
|
|
|
|
||
Option Period |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Notice
of Exercise of Option |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Prohibition
on Subcontracting |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Subcontracting
Reporting |
Y |
I |
C |
N |
|
|
A |
|
|
|
A |
A |
A |
A |
A |
|
|
||
Subcontracting
Reporting (BOAsRBOAs or BPAs) |
Y |
I |
C |
N |
|
|
|
A |
A |
|
|
|
|
|
|
|
|
||
Approved
Subcontractors and Consent to Subcontract |
Y |
I |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
7.5.6-04 Alternate 1 |
Approved
Subcontractors and Consent to Subcontract |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
|
Subcontracting
Plan Compliance |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Liability
Insurance |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Certificates
of Insurance |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Insurance
for Equipment/Tools |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Notice
to the FDIC on Damage |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Cost
of Insurance |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Payment
and/or Performance Bonds |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
R |
|
|
|
A |
||
Fidelity
Bond Coverage |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
Errors
and Omissions Insurance |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
RESERVED |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability
to Third Persons |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Pledges
of Assets |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
FDIC
Exempt from Federal, State, and Local Taxes |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Warranty of Construction |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Guarantees |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Service
Contract Act of 1965 |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Davis
Bacon Act |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Contract
Work Hours and Safety Standards Act Overtime Compensation |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
R |
|
|
|
|
||
Payrolls
and Basic Records |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Apprentices
and Trainees |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Compliance
With Copeland Act Requirements |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Subcontracts
(Labor Standards) |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Contract
Termination - Debarment |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Compliance
With Davis-Bacon and Related Act Regulations |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Disputes Concerning Labor Standards |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Certification
of Eligibility |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Withholding of Funds |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Notice
to the FDIC of Labor Disputes |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
RESERVED
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Buy
American Act - Supplies |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Buy
American Act Certificate |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Buy
American Act—Free Trade
Agreements—Israeli Trade Act |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Buy
American Act — Free Trade Agreements — Israeli Trade Act
Certificate |
Y |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Trade
Agreements |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Trade
Agreements Certificate |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Restrictions
on Certain Foreign Purchases |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Method
of Payment - Electronic Fund Transfer (EFT) |
N |
G |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Method
of Payment-Third Party |
N |
G |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Payments
Under Labor-Hour Awards |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Payment
Under Time and Materials Awards |
Y |
I |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Payments
Under Fixed Price Awards |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Compensation
Ceiling - Contract or Task Order |
Y |
G |
C |
N |
|
|
A |
A |
A |
A |
A |
|
|
|
|
|
|
||
Compensation
Ceiling – BOA |
Y |
G |
C |
N |
|
|
|
A |
|
|
|
|
|
|
|
|
|
||
Invoice
Preparation and Submission (Center for Financial Research-Visiting Scholars
Program) |
N |
G |
C |
|
|
|
A |
A |
A |
A |
A |
A |
|
|
|
|
|
||
Travel
Expenses (Non-Reimbursable) |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Travel
Expenses (Reimbursable) |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Fees
and Expenses of Subcontractors |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Schedule
for Invoicing |
Y |
G |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Content
of Invoice |
Y |
G |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Electronic
Invoice Preparation and Submission (CORHQ Business Unit) |
Y |
G |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Electronic
Invoice Preparation and Submission (CORFD/RECVR/SUBSD) |
Y |
G |
C |
N |
|
|
A |
A |
A |
A |
A |
A |
A |
A |
A |
|
|
||
Central
Contractor Registration |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Right
to Offset Contract Payments Against Delinquent Obligations |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Prompt
Payment |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
Disputes |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Notice
and Certification of Claims |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Place
of Manufacture |
N |
K |
P |
N |
A |
A |
|
|
|
|
|
|
|
|
|
|
|
||
Inspection and Acceptance |
Y |
E |
C |
N |
|
|
R |
R |
R |
R |
R |
R |
|
R |
R |
R |
|
||
Inspection and Acceptance (Construction) |
Y |
E |
C |
|
N |
|
|
|
|
|
|
|
|
R |
|
|
|
|
|
Risk
of Loss or Damage |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Changes |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
|
R |
R |
|
|
||
Changes
(Construction) |
Y |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Stop
Work Order |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
|
R |
R |
|
|
||
Suspension
of Work |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Assignment
of Claims |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
|
|
|
|
||
Termination
for Convenience of the FDIC |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
Termination
for Default |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
|
R |
R |
|
|
||
Termination
For Default Damages |
N |
I |
C |
Y |
|
|
|
|
|
|
|
|
R |
|
|
|
|
||
Excusable
Delays |
N |
I |
C |
Y |
|
|
R |
R |
R |
R |
R |
R |
R |
R |
R |
|
|
||
FDIC
Property |
N |
I |
C |
Y |
|
|
A |
A |
A |
A |
A |
A |
A |
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ADP |
Automatic Data Processing |
AGC-CLO |
Assistant General Counsel of the Corporate and Legal Operations |
AO |
Approving
Official |
APC |
Agency
Program Coordinator |
APM |
Acquisition Policy Manual |
APS |
Automated Procurement System |
ASB |
Acquisition Services Branch |
BAA |
Buy American Act |
BAFO |
Best and Final Offer |
BOA |
Basic Ordering Agreement |
BPA |
Blanket Purchase Agreement |
CAA |
Clean Air Act |
CAFTA |
Central American Free Trade Agreement |
CBA |
Collective Bargaining Agreement |
CCR |
|
CD |
Compact Disc |
CEC |
Corporation Ethics Committee |
CFR |
Code of Federal Regulation |
CLU |
Contracting Law Unit |
CMP |
Contract Management Plan |
CPC |
Central Product Classification |
CSB |
Corporate
Services Branch |
CWA |
Clean Water Act |
D/OC |
Division/Office
Coordinator |
DBA |
Davis-Bacon Act |
DIT |
Division of Information Technology |
DIT ISPS |
Division of Information Technology Information Security and
Privacy Staff |
DOA |
Division of Administration |
DOF |
Division of Finance |
DOF/AP |
Division of Finance/Accounts Payable |
DOL |
Department of Labor |
DRR |
Division of Resolutions and Receivership |
DUNS |
Data Universal Numbering System |
EAS |
Electronic Access System |
EIT |
Electronic and Information Technology |
EO |
Executive Order |
EVM |
Earned Value Management |
FAR |
Federal Acquisition Regulation |
FDI Act |
Federal Deposit Insurance Act |
FDIC |
Federal Deposit Insurance Corporation |
FDL |
FDIC Digital Library |
FFP |
Firm Fixed Price |
FOIA |
Freedom of Information Act |
FOIA-PA |
Freedom of Information Act-Privacy Act |
FPI |
Federal Prison Industries |
FSS |
Federal Supply Schedule |
FTA |
Free Trade Agreement |
GPA |
Government Procurement Agreement |
GSA |
General Services Administration |
IAA |
Inter-Agency Agreement |
ID |
Identification |
ISM |
Information Security Manager |
ISPS |
Information Security and Privacy Staff |
IT |
Information Technology |
JNCP |
Justification for Non-Competitive Procurement |
JWOD |
Javits-Wagner-O'Day Act |
MCC |
Merchant Category Code |
MOU |
Memoranda of Understanding |
MWOB |
Minority and Women-Owned Business |
NAFTA |
North American Free Trade Agreement |
NFE |
New Financial Environment |
NIST |
National Institute of Standards and Technology |
OMWI |
Office of Minority and Women Inclusion |
OIG |
Office of Inspector General |
OMB |
Office of Management and Budget |
OPM |
Office of Personnel Management |
PA |
Privacy Act |
PBA |
Performance-Based Acquisition |
PBM |
Performance-Based Management |
P-Card |
Purchase Card |
PEM |
Price Evaluation Memorandum |
PGI |
Procedures, Guidance and Information |
PII |
Personally Identifiable Information |
PMO |
Program Management Office |
PPA |
Prompt Payment Act |
PR |
Procurement Requisition |
PTA |
Privacy Threshold Analysis |
PWS |
Performance Work Statement |
QAP |
Quality Assurance Plan |
QASP |
Quality Assurance Surveillance Plan |
RBOA |
Receivership Basic Ordering Agreement |
RFP |
Request for Proposal |
RFQ |
Request for Quotation |
RUP |
Rational Unified Process |
SAA |
Subsidiary Agency Agreement |
SCA |
Service Contract Act |
SDB |
Small Disadvantaged Business |
SEPS |
Security and Emergency Preparedness Section |
SOO |
Statements of Objectives |
SOW |
Statement of Work |
SRR |
Selection Recommendation Report |
SSL |
Secure Socket Layer |
SSN |
Social Security Number |
SSP |
Source Selection Plan |
T&M |
Time and Materials |
TAA |
Trade Agreements Act |
TDO |
Term Determining Official |
TEO |
Technical Evaluation Official |
TEP |
Technical Evaluation Panel |
U.S.C. |
United States Code |
USPS |
United States Postal Service |
VFMG |
Vendor File Maintenance Group |
VPAT |
Voluntary Product Accessibility Template |
WDOL |
Wage Determinations OnLine |
WTO GPA |
World Trade Organization’s Government Procurement Agreement |
Document/Action |
Threshold |
Preparer |
Concurrence |
Approval
Authority |
||||||||||||
See General and specific notes on Pages
2 and 3 |
|
PM/OM |
CS/CO |
PM/OM |
OMWI |
LEGAL |
ASB Asst Dir |
ASB Associate Dir |
CO |
ASB Asst Dir |
ASB Associate Dir |
PM |
Program Deputy Division/Office Director |
Program Division/Office Director |
Deputy to the Chairman |
Board of Directors |
>$1M - <$5M |
X |
X |
|
X |
X |
|
|
|
X |
|
|
|
|
|
|
|
>$5M |
X |
X |
|
X |
X |
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Justification for Non-Competitive
Procurement (JNCP) |
>$5000 to <$100,000 (MTF) |
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$100,000 to <$500,000 |
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
|
>$500,000 to <$1M |
X |
X |
|
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$1M to <$2M |
X |
X |
|
|
|
X |
|
|
|
X |
|
|
X |
|
|
|
>$2M |
X |
X |
|
|
|
X |
|
|
|
X |
|
|
X |
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
>$100,000 |
X |
X |
|
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Solicitation (RFP/RFQ) |
<$1M |
|
X |
X |
|
|
|
|
X |
|
|
|
|
|
|
|
>$1M |
|
X |
X |
|
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
>$100,000 to <$1M |
X |
X |
|
|
|
|
|
X |
|
|
|
|
|
|
|
|
>$1M to <$5M |
X |
X |
|
X |
X |
|
|
|
X |
|
|
|
|
|
|
|
>$5M |
X |
X |
|
X |
X |
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selection Recommendation Report
(SRR)
Ref: FDIC COO/CFO Memo dtd 2/20/07;
APM 3.214/ PGI 3.214 |
>$100,000 to <$500,000 |
|
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$500,000 to <$1M |
|
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$1M to <$2M |
|
X |
X |
|
|
X |
|
|
|
X |
|
|
X |
|
|
|
>$2M |
|
X |
X |
|
|
X |
|
|
|
X |
|
|
X |
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Price Evaluation Memorandum (PEM)
for a negotiated amount >15% of that in an approved JNCP. (2) |
>$100,000 to <$500,000 |
|
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$500K to <$1M |
|
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$1M to <$2M |
|
X |
X |
|
|
X |
|
|
|
X |
|
|
X |
|
|
|
>$2M |
|
X |
X |
|
|
X |
|
|
|
X |
|
|
X |
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PEM for a negotiated amount <
15% of that in an approved
JNCP. (3) Ref FDIC COO/CFO Memo dtd 2/20/2007; PGI 3.204 |
>$100,000 to <$500,000 |
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
>$500K |
X |
X |
|
|
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PEM for Simplified Procurements |
>$5000 to <$100,000 |
X |
X |
|
|
|
|
|
X |
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contract Awards (4) / Modifications (5) |
All Dollars |
|
X |
|
|
X |
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Board Approval - for new awards or
a modification that increases contract value above the threshold (6) |
>$20M |
X |
X |
|
|
|
X |
X |
|
|
|
|
|
|
|
X |
Board Approval - for a negotiated
amount greater than that previously approved by Board (6) |
>15% increase in previous board approved amount/period |
X |
X |
|
|
|
X |
X |
|
|
|
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratification of Unauthorized
Contractual Commitments (Recommendation Report) |
<$10,000 |
|
X |
|
|
X |
|
|
|
X |
|
|
|
|
|
|
>$10,000 |
|
X |
|
|
X |
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All |
|
X |
|
|
X |
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contracting Officer Final Decision
- Protest or Claim Ref: APM 5.14/PGI 5.14 |
All |
|
X |
X |
|
X |
X |
X |
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Determine Offeror Non-Responsive |
All |
|
X |
X |
|
X |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All |
|
X |
X |
|
X |
|
|
|
X |
|
|
|
|
|
|
General Guidance: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A.
Approval thresholds are aggregate with the exception of modifications
which are approved at the dollar level of the mod itself, unless the mod will individually or
cumulatively increase the total contract value by more than 15% of the
original contract value. |
||||||||||||||||
B. See Division/Office Delegations on the
Legal Division Web site at: Legal:
Corporate Delegations of Authority.
Some Divisions/Offices have instituted more restrictive approval
thresholds. |
||||||||||||||||
C.
The signature page of each document shall only contain the names of
the preparer(s) with the appropriate recommendation, and those of the
appropriate Approval Authorities.
Concurrence shall be noted by signing/initialing the route sheet. |
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D. The respective ASB Assistant
Director must review/concur on all document that will be submitted to the ASB
Associate Director. |
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E. ASB Associate Director must
review/concur on all documents that will be submitted to the DOA Division or
Deputy Director |
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Specific Footnotes: |
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(1) A separate Source Selection
Plan is not required, IF the selection procedures are clearly
described in the acquisition plan. If
an acquisition plan is not required, or if the acquisition plan does not
suffciently address source selection planning, then a separate source
selection plan is required. |
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(2) For modifications, the
thresholds apply to the cumulative amount of the contract. |
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(3) For modifications, the
thresholds apply to the amount of the increase, not the cumulative amount of
the contract. |
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(4) Contract awards do not require
legal review, unless substantial changes occur after legal review of the
solicitation. |
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(5) Contract modifications do not
require legal review, unless they involve an action listed in APM 5.1503(b) |
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(6) Board Approval shall be
obtained before award or before issuance of modification. All Board Cases shall be supported by the
new or revised acquisition plan, and the approved JNCP for non-competitive
requirements. Ref: FDIC COO/CFO Memo
dtd 2/20/2007 |
Additional Thresholds: |
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Subject: |
APM
Reference |
PGI
Reference |
Threshold |
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Background Investigations |
See APM/PGI |
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Buy American Act |
>$3,000 (Micro-Purchase Threshold) |
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Commercial Goods/Services using
Simplified Procurement Procedures |
<$5,000,000 |
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Competition Requirements |
>$5,000 |
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Contract Bundling |
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>$2,000,000 |
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Contract Management Plan |
>$1,000,000 |
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Contractor Performance Evaluation |
>$1,000,000 |
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Davis Bacon Act |
>$2,000 |
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Earned Value Management |
>$3,000,000 (CIRC) |
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Financial Capability Review |
>$1,000,000 |
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Insurance Requirements |
See APM/PGI |
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Integrity and fitness
representations and certifications |
>$100,000 |
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OM/TM Nomination/Appointment |
>$100,000 |
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Performance Based Acquisitions
(when appropriate) |
>$1,000,000 |
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Requirements Package Checklist |
>$100,000 |
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Service Contract Act |
>$2,500 |
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Simplified Procurement Threshold
in Emergency Situations |
$250,000/$10,000,000 |
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Simplified Procurements |
< $100,000 |
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Solicitation List |
>$5,000 |
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Subcontracting Plan (when
subcontracting permitted) |
>$500,000 |
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Trade Agreements Act |
See APM/PGI |
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Federal Deposit
Insurance Corporation
FDIC Purchase Card (P-Card) Guide
AUGUST 2008
Table of Contents
Chapter
1- Purchase Card Overview, Scope, and Goals. 30
1.7 Roles and Responsibilities
1.701 Agency Program Coordinator
1.702 Division/Office Coordinator
1.9 Misuse/Unauthorized Use – Consequences and Penalties
Chapter
2 - Appointment, Authority and Administration.. 30
2.101 Requests for Purchase Card
Accounts and Convenience Checks
2.201 Cardholder Appointment
Memorandum
2.202 Purchase Card/Convenience
Check Limitations
2.301 Establishing the Account
2.302 Requests for Changes to
Purchase Limits
2.303 Changes to Account Information
2.304 Resignation or Reassignment of
Purchase Card Personnel
2.305 Designation of Alternate
Approving Official
2.306 Lost or Stolen Purchase Cards
or Convenience Checks
Chapter
3 - Operational Guidance and Procedures
3.1 Permissible, Prohibited and Restricted Use
3.201 Purchase of Goods and Services
of $5,000 or Less
3.202 Purchase of Goods and Services
above $5,000
3.204 Applicability of Statutory
Requirements
3.207 Justification for
Non-Competitive Procurement
3.3 Other Purchase Card Procurement Considerations
3.302 Shipping and Handling Fees,
Including Return Fees
3.4 Purchasing Methods and Sources
3.401 Over-the-Counter Purchases
3.402 Telephone, Internet and Mail
Orders
3.501 Documenting the Transaction
3.6 Billing and Payment Procedures
3.601 Monthly Statement of Account
3.602 Cardholder and Approving
Official Review of Statement
3.7 Returned, Damaged or Unacceptable Items
3.8 Disputed or Questioned Items
3.802 Convenience Check Disputes
The
Federal Deposit Insurance Corporation (FDIC) Purchase Card (P-Card) Program is
established in compliance with the General Services Administration (GSA)
SmartPay Program. This guide includes definitions, roles and responsibilities,
and processes to address the operation of the FDIC P-Card Program.
The
policies and procedures in this guide apply to all purchases made using the
P-Card in Headquarters, regional offices and field offices. The P-Card may be
used by authorized FDIC employees to make official purchases, only for the
corporation, in both the corporate and receivership capacities. The P-Card
program includes the use of convenience checks. Any reference to the term
P-Card throughout this guide includes all products under the FDIC P-Card
Program.
The
goals of the P-Card program are to achieve savings in administrative time,
reduce paperwork, and quickly purchase and receive goods and services needed
for mission support. Electronic reports are available from the issuing bank to
facilitate approvals and internal controls. The program achieves its goals by
facilitating cash management practices through consolidating payments, reducing
petty cash funds, and strengthening internal controls.
Convenience Check - A paper check associated
with a cardholder account.
Merchant Category Code
(MCC) – A coding mechanism used by
the banking industry, VISA, and MasterCard to categorize the nature of the
business of each merchant. These codes are used to restrict and/or manage the
types of business concerns with which FDIC may do business under the P-Card
program.
The governmentwide
commercial P-Card is the preferred method for purchasing and paying for goods
and services valued at $5,000 or less. The P-Card
may also be used to procure commercially available goods and services valued
above $5,000, provided the cardholder complies with all other areas of this
guide and appropriate sections of the
Acquisition Policy Manual and Procedures,
Guidance and Information (PGI). Recurring purchase are allowed, providing
the cumulative total of any recurring requirement does not exceed $100,000 in a
twelve (12) month period. Cardholders with recurring requirements anticipated
to exceed this threshold must contact the Agency Program Coordinator (APC) for
further guidance.
FDIC policy
and procedures for use of the P-Card are contained in this guide. Whereas most government agencies
participating in the GSA SmartPay contract are subject to the Federal
Acquisition Regulation, FDIC is not. In using the GSA SmartPay contract to obtain
P-Card services, FDIC is bound by the terms and conditions of the GSA contract
and the FDIC order against it. The Acquisition Services Branch (ASB), Policy
and Operations Section, is responsible for the overall management and integrity
of the .FDIC P-Card Program, including the development and implementation of
policy and training, and the appointment of cardholders with authority above
$5,000,
Four roles
are associated with the successful operation of the P-Card program:
1)
APC;
2)
Division/Office Coordinator (D/OC);
3)
Approving Official (AO); and
4)
Cardholder
The APC
serves as the primary liaison between the card issuer and GSA, and is
responsible for:
(6)
Issuing
Cardholder Appointment Letters at $5,000 or less;
(7)
Serving
as the issuing bank’s point of contact;
(8)
Day-to-day
administrative responsibilities involved in operating the program, such as
developing and maintaining controls on P-Card accounts, (i.e., monthly
spending, individual transaction and budget limits and MCCs);
(9)
Monitoring
and reporting program activities to FDIC management;
(10)
Assisting
the ASB Assistant Director, Policy and Operations Section, with the development
and maintenance of P-Card policy;
(11)
Providing
necessary clarification and guidance to program participants;
(12)
Overseeing
all aspects of the billing process associated with the program;
(13)
Ensuring
regular review and audit of the P-Card program; and
(14)
Representing
FDIC, along with the ASB Assistant Director, Policy and Operations Section, at
interagency and issuing bank meetings and conferences pertaining to the
program.
A D/OC must
be appointed by each participating division or office as a liaison with the ASB
Division of Administration (DOA). The D/OC functions at the organizational
level for coordination of APC requests to the division or office, and for
internal control purposes.
Functions to be performed by the D/OC include:
(1)
Ensuring
that the ASB-provided list of cardholders and AOs is current and ASB is
notified immediately of any changes;
(2)
Ensuring
the hierarchy structure of the program is correct (cardholders approved by the
correct AOs);
(3)
Acting
as the primary ASB point of contact for disseminating information about the
program;
(4)
Ensuring
that the cardholder and AO have verified and approved monthly all transactions
within the time frame established by ASB;
(5)
Ensuring
that all cardholders/AOs within the division/office have received appropriate
training in P-Card use, reconciliation of statements, use of the bank’s
electronic access system (EAS),and the New Financial Environment (NFE);
(6)
Ensuring
that all convenience check data is submitted monthly to the APC within the
timeframes established by ASB;
(7)
Requesting
the establishment or cancellation of cardholder accounts, including changes to
the AO of record;
(8)
Requesting
revised P-Card spending limits as appropriate; and
(9)
Reporting
suspected P-Card misuse to the APC immediately upon becoming aware of possible
misuse.
The AO is
the individual responsible for the oversight and monitoring of one or more
designated cardholder’s compliance with established regulations and
procedures. AOs are at the division or
office level and review and approve all purchases or charges incurred by the
cardholders in their division or office. AOs may not be subordinate to any
cardholder under their authority. AOs are responsible for:
(1)
Ensuring
cardholders fulfill their responsibilities;
(2)
Review
of all cardholder transactions. AO review of cardholder statements is critical
to the control and success of the P-Card program;
(3)
Ensuring
all charges are allocated to the correct chartfield (accounting code) in NFE;
(4)
Ensuring
the cardholder reconciliation and AO approval are completed in the bank’s EAS
or NFE within the established time frames;
(5)
Ensuring
cardholders under their authority receive P-Card training on and understand all
P-Card policies and procedures;
(6)
Assuring
all cardholder statement charges are supported by a vendor receipt or other
evidence of FDIC receipt of goods or services;
(7)
Verifying
cardholder documentation to ensure purchases are adequately justified in
accordance with this guide;
(8)
Reporting
suspected P-Card or convenience check misuse to both the D/OC and APC;
(9)
Requesting
increases or decreases in cardholder single or monthly purchase limits when
appropriate;
(10)
Ensuring
cardholders maintain complete and accurate records and logs;
(11)
Ensuring
that goods or services charged to the account are inspected and accepted;
(12)
Reconciling
the cardholder’s statement when the cardholder is unavailable;
(13)
Requesting
waivers to merchant category codes, if necessary;
(14)
Monitoring
resolution of disputes; and
(15)
Working
with division/office budget personnel as appropriate, to ensure that
end-of-fiscal-year accruals related to open P-Card obligations are completed in
order to account for unexpended funds in a timely manner.
Cardholders
are FDIC employees designated by their AO or D/OC, and appointed by the ASB
Assistant Director, Policy and Operations Section, or the APC. Cardholders may
use the P-Card to purchase goods and services for official use only. All
transactions must comply with this guide and any restrictions cited in the
Cardholder Appointment Memorandum. Only FDIC employees may be appointed as
cardholders. Use of the P-Card by a person other than the employee whose name
is embossed on the card is prohibited. Cardholders may also serve as AOs,
however, they may not approve their own transactions. Primary cardholder
responsibilities are:
(1)
Ensuring
all purchases are proper, legal, and reasonable, and satisfy a bona fide FDIC
need;
(2)
Understanding
and complying with FDIC P-Card policies and procedures;
(3)
Safeguarding
the physical security of their P-Card, and the account number;
(4)
Ensuring
that their P-Card or P-Card account number is not used by anyone else;
(5)
Ensuring
that their P-Card is used solely for official business;
(6)
Ensuring
that the prices obtained for all purchases are fair and reasonable, reflect
appropriate discounts, and do not include sales tax;
(7)
Ensuring
all charges are allocated to the correct chartfield (accounting code) in NFE;
and
(8)
Reconciling
their monthly transaction statement in the bank’s EAS and in NFE in the time
frames specified by the APC.
Key functions
such as certifying availability of funds (financial and resource managers),
making purchases (cardholders), verifying and approving cardholder purchases
(AOs), and certifying P-Card invoices for payment (billing/financial officer),
must not be accomplished by the same person on any one transaction. Additionally, AOs must not be subordinate to
any cardholder within their approval hierarchy.
All individuals associated with the FDIC P-Card program
are responsible for safeguarding FDIC from misuse and/or unauthorized usage of
the P-Card or other products provided by the issuing bank. The FDIC P-Card
process includes controls to avoid and detect situations of intentional misuse
and unauthorized use. Individuals who detect apparent misuse of the P-Card must
immediately notify the APC of the possibility of misuse/unauthorized use. Examples of P-Card misuse include, but are
not limited to:
(1)
Purchases
of unauthorized goods or services;
(2)
Purchases
for personal use;
(3)
Purchases
by individuals other than the authorized cardholder;
(4)
Use
of the P-Card account number by other than the authorized cardholder;
(5)
Purchases
by contractors; and
(6)
Returns
for cash or credit vouchers, which are not submitted to FDIC.
The nature and severity of the misuse
determines the corrective actions taken by FDIC, which may range from:
(1)
Counseling
and retraining;
(2)
Cancellation
of the P-Card;
(3)
Notation
in the employee performance evaluation;
(4)
Formal
reprimand;
(5)
Suspension
of employment;
(6)
Termination
of employment; and
(7)
Possible
criminal prosecution.
The GSA SmartPay master contract clearly defines
liability for P-Card transactions. Financial liability for authorized
transactions made by authorized cardholders rests with FDIC. If an authorized
cardholder uses the P-Card to make an unauthorized purchase, FDIC is liable for
payment and is responsible for taking appropriate action against the
cardholder.
FDIC P-Cards, convenience checks, or
other bank offered products may only be issued to FDIC employees that have
completed the requirements specified in section 2.1. Once these requirements have been completed,
the ASB Assistant Director, Policy
and Operations Section, or APC, may appoint the individual as a cardholder.
Once appointed the cardholder is authorized to purchase good and services for
FDIC.
All
requests for new cardholder accounts and convenience checks must be submitted
by the AO or D/OC to the APC. The request must include the following:
(1)
Cardholder
name, business address, email address and phone number;
(2)
A
copy of the P-Card training certificate or other evidence of completion of
training. If training has not yet been completed, the request must specify when
training will be completed. The cardholder must, at a minimum, have completed
the web-based P-Card course before a P-Card is issued;
(3)
The
requested single and monthly purchase limits;
(4)
The
AO’s name, business address, email address and phone number;
(5)
A
brief rationale to support the need for a card; and
(6)
Whether
convenience checks are required. If so, the dollar limit per check is the
same as the single
purchase limit unless otherwise requested.
If convenience checks are not initially
requested, the AO or D/OC may submit a written request to the APC to issue
convenience checks to a cardholder. The request must include the cardholder’s
name, quantity of checks desired, and the check denomination. Not-to-exceed
amounts are printed on the checks. The denomination may not exceed the
cardholder's single purchase limit. Once a cardholder account is set up
to obtain convenience checks, the cardholder may place subsequent orders
directly with the bank. Cardholders do not have the authority to alter check
denominations or quantities when placing subsequent orders for checks.
Training for
all participants in the FDIC P-Card Program is essential to prevent purchasing
process errors and to prevent fraud, waste and abuse within the program.
Cardholders,
AOs, and D/OCs must complete the training below before beginning their duties
under the program:
1)
Cardholders
and AOs for cardholders with single purchase limits of $5,000 or less, must
complete the FDIC on-line P-Card training available through the Corporate University;
2)
Cardholders
and AOs for cardholders with single purchase limits above $5,000 must attend
classroom training specific to transactions above $5,000;
3)
D/OCs
must attend the training addressed above, based upon the dollar levels
delegated to cardholders within their division or office. In addition, all
D/OCs must attend ASB-provided D/OC training before beginning their duties; and
4)
All
cardholders must complete refresher training every two (2) years in order to
maintain their appointment.
Requests for
waivers to the training requirements above must be submitted to the APC, and
are only granted in unusual or extenuating circumstances.
After the
requirements of 2.1 have been met, the
ASB Assistant Director, Policy and Operations Section, or the APC, issue
the Cardholder Appointment Memorandum delegating the cardholder the authority
to make authorized purchases for FDIC. The memorandum specifies purchase limits
and any specific restrictions placed on the use of the card or convenience
checks.
The ASB
Assistant Director, Policy and Operations Section, and the APC, establish the
maximum dollar thresholds for each account. No other official has this
authority, unless specifically delegated by the ASB Assistant Director, Policy
and Operations Section. The limits associated with cardholder accounts are as
follows.
2.202(a) Single Purchase Limit
The single
purchase limit is the maximum amount a cardholder may charge for any single
purchase. Neither cardholders nor merchants are permitted to split a single
purchase into smaller amounts in order to avoid exceeding the single purchase
threshold. The single purchase limit for cardholders is generally $5,000,
unless a higher limit is warranted due to organization requirements. All
cardholders are subject to the specific limitations set forth in the Cardholder
Appointment Memorandum.
2.202(b)
Convenience Checks Limits
The
convenience check limit is the maximum amount for any convenience check
transaction. Check transactions are posted against the cardholder's P-Card
account and the cardholder's authorized spending limits. Cardholders must
remain within the authorized spending limits and are responsible for monitoring
and reconciling cleared convenience checks against their authorized monthly
limit.
2.202(c) Monthly Purchase Limit
The monthly
purchase limit is the maximum cumulative amount a cardholder may charge in any
single monthly billing cycle. All cardholders are subject to the specific
limitations set forth in their Cardholder Appointment Memorandum.
2.202(d) Merchant Category Code Limits
MCC
restrictions may be assigned to a specific cardholder’s account, based upon
required usage. The APC also maintains a list of FDIC-wide blocked codes. It is
the responsibility of the AO to request waivers to MCC restrictions, when
required.
The
APC approves all requests for new P-Cards and processes the application through
the bank’s EAS. The card and associated convenience checks (if applicable) are
mailed directly to the cardholder at the business address specified during
account set-up. The cardholder must contact the bank and follow the bank’s
instructions for card activation. The ASB Assistant Director, Policy and Operations Section, or APC, issues the
Cardholder Appointment Memorandum to the employee and provides other materials
associated with the program.
Requests
for changes to purchase limits must be submitted in writing to the APC by the
responsible D/OC or AO. The request must provide justification for the
requested change in the P-Card or convenience check limit.
Changes
to a cardholder's or AO's name or address must be immediately reported to the
APC. The APC notifies the card issuer of the changes.
The
APC must be notified immediately if any P-Card personnel are planning to resign
from the agency or if they are going to be reassigned to another location
within FDIC. The notice must be in
writing and must include the effective date of the change.
In
the event a D/OC resigns or is reassigned to another division/office, the D/OC
must notify the APC prior to departure so that a new D/OC can be trained and
appointed to the position. The D/OC must transition all P-Card material and
documentation to the newly appointed D/OC or to the APC if a new D/OC has not
been appointed, prior to departure or reassignment.
In
the event of an AO departure or move to another division/office, the AO must
notify the D/OC and APC prior to departure so that a new AO may be assigned for
the oversight of P-Card accounts.
In
the event that a cardholder resigns, the following steps must be taken in
support of the resignation:
(1)
Pre-exit
clearance procedures must be followed;
(2)
The
cardholder notifies the AO of the pending departure and they jointly destroy
the P-Card and convenience checks;
(3)
The
cardholder provides all cardholder files to the AO, including receipts for
outstanding charges;
(4)
The
AO notifies the APC, who then cancels the cardholder account and submits
written confirmation of the cancellation to the AO; and
(5)
The
AO or the D/OC must retain the cardholder file with any outstanding receipts,
supporting documentation, and the written confirmation of account cancellation.
In the event the cardholder is reassigned to
another division/office:
(1)
Pre-exit
clearance procedures must be followed;
(2)
The
cardholder notifies the AO of the pending reassignment and provides all
cardholder files to the AO, including receipts for outstanding charges; and
(3)
The
AO notifies the APC, who then transfers the assigned accounts to the new AO and
division/office, or a new P-Card may be requested by the newly assigned
division/office (See Section
2.1)
In
instances where the designated AO is not available to review and approve
cardholder purchases, another AO from the same division or office can perform
the function. However, the designated AO must first notify the APC in writing
(may be via email notification), before the alternate AO can assume
responsibility.
Cardholders
must promptly report lost or stolen P-Cards to the card issuer. Additionally,
the cardholder must notify the designated AO and APC. Cardholders must also
contact these officials if they believe that their account number has been
compromised or used in a fraudulent manner. When reporting loss or theft to the
card issuer, the cardholder may be asked to provide some personal identifying
information. This information is to help the card issuer identify any
fraudulent purchase attempts, and is the only time personal information
is requested under the program. Once the bank
confirms the information, it commences the process to re-issue a new P-Card to
the cardholder. P-Cards reported lost or
stolen are immediately blocked from additional transactions. If charges are
made before the account is blocked, the cardholder must dispute any
unauthorized charges.
When
convenience checks are lost or stolen, the cardholder must immediately notify
the issuing bank by phone and notify the APC in writing. Generally, if only one
or two convenience checks are missing, a "stop payment" request on
the lost or stolen checks may be the most appropriate resolution. If more than
two convenience checks are lost or stolen, the account must be closed and a new
account established. However, the APC,
and/or the card issuer, determines the appropriate action to take regarding the
lost, stolen and remaining convenience checks.
If it is determined to close an account, any unused checks must be
promptly destroyed.
If a check
is stolen, issued, and clears without the cardholder's knowledge, the
cardholder must immediately report the unauthorized transaction to the P-Card
issuing bank. The bank then investigates the incident and reverses the charge.
The use of
P-Cards or convenience checks is authorized strictly for the purchase of goods
or services for official FDIC business. To differentiate the P-Card from a
personal credit card, the P-Card is specifically designed to show the Great
Seal of the United States and the words “United States of America.”
All requirements within a cardholders single purchase
limit that are not specifically prohibited or restricted by law, FDIC
directive, Cardholder Appointment
Memorandum, MCC or this guide may be procured from any establishment at which
the P-Card is accepted as a form of payment. It is the cardholder’s
responsibility to ensure that all purchases are compliant with all applicable
guidelines, and to document the P-Card file with any required justifications or
other supporting documentation.
Some
examples of goods and services that are considered appropriate for P-Card use
are:
(1)
Advertisements,
including newspaper;
(2)
Corporate
vehicle repair and other services;
(3)
Catering
services, when authorized in accordance with FDIC Circular 3400.1, Request for Catering
Services for Official Business Meetings and Functions
(http://fdic01/division/doa/adminservices/records/directives/3000/3400-1.doc);
(4)
Expressions
of sympathy or other acknowledgment of personal events (flowers, etc), when
authorized and approved in accordance with FDIC Circular 2800.1, Expressions of Sympathy and Acknowledgment
of Personal Events (http://fdic01/division/doa/adminservices/records/directives/2000/2800-1.doc);
(5)
External
training courses for authorized cardholders once approved on FDIC Training
Registration Form 2610.12, as defined in FDIC Circular 2600.1, FDIC Training and Development Policy (http://fdic01/division/doa/adminservices/records/directives/2000/2600-1.doc);
(6)
FDIC-owned
vehicle fueling and service;
(7)
Meals
and beverages (Including alcoholic beverages), when authorized and approved in
accordance with FDIC Circular 2410.9, Policies Governing the Purchase
of Food and Alcoholic Beverages Using Corporate Funds (http://fdic01/division/doa/adminservices/records/directives/2000/2410-9.doc).
(8)
Non-monetary awards, as
defined and approved in FDIC Circular 2420.1,
Rewards and Recognitions Program (http://fdic01/division/doa/adminservices/records/directives/2000/2420-1.doc). The
cardholder must identify, on the invoice or elsewhere in the P-Card file, which items are being purchased as non-monetary awards; and
(9)
Off-site
conference and meeting rooms with conference support, including related telecommunications costs.
The
P-Card or convenience checks must not be used for:
(1)
Official
travel expenses (transportation expenses, lodging, meals, or vehicle rentals)
for which the current travel card is used;
(2)
Long
term rental or lease of land or buildings;
(3)
Telecommunications
(telephone) services, unless specifically authorized by the Division of
Information Technology (DIT);
(4)
Membership
fees and association dues (see Professional Dues Reimbursement Program at
http://fdic01.prod.fdic.gov/division/dof/inside/esps/professional.html;
(5)
Cash
advances from bank tellers or automated teller machines; or
(6)
Payments to FDIC employees.
Only
specifically designated cardholders are authorized to purchase the goods or
services described in this section, unless special approval is obtained from
the responsible office or division.
3.103(a)
Information Technology Goods or Services
Only
designated DIT cardholders are authorized to procure information technology
(IT) goods or services, including maintenance agreements
and extended warranties. Requestors from divisions outside of DIT must contact
DIT to obtain IT-related goods or services.
3.103(b)
Software License Agreements
All software
license agreements must be reviewed and approved by the Legal
Division, Contracting Law Unit, prior to purchase by an
authorized cardholder.
In
accordance with FDIC Circular 3600.1 FDIC
Office Supplies Program, (http://fdic01/division/doa/adminservices/records/directives/3000/3600-1.doc), cardholders may only purchase items that are not
stocked or available through the FDIC supplies contractor. Prior to purchasing
the item at retail cost, cardholders must contact the DOA supply staff to
ensure the item is not obtainable at the FDIC discount. If the item is not
available, the cardholder may purchase it using the P-Card, and charge the
centralized Corporate Services Branch (CSB) office supply budget in accordance
with CSB supplies purchasing policies.
3.103(d)
Facilities
Management Requirements
Only designated cardholders in the DOA/CSB Facilities Section are authorized to purchase items associated with facilities management. Examples of facilities management requirements include:
(1)
Office
furniture, artwork, and related goods or services;
(2)
Building
repairs, carpet repair, reconfiguration of work stations;
(3)
Locksmith
services or duplicate keys; and
(4)
Equipment
purchase, maintenance, and repairs.
3.103(e)
Periodicals, Books, and Subscription Services
Only designated cardholders in the CSB Library and
Public Information Center Unit are authorized to purchase periodicals or
subscription-related goods or services. Requestors outside of DOA/CSB must
contact a designated CSB library cardholder to purchase the periodical or
subscription on their behalf. See FDIC Circular 3020.2, Ordering Videos, Books and Periodical/Newspaper Subscriptions in Print
and/or Non-print Format (http://fdic01/division/doa/adminservices/records/directives/3000/3020-2.doc) and FDIC Circular 1330.2, Requesting Commercially Available On‑line Information Services
(http://fdic01/division/doa/adminservices/records/directives/1000/1330-2.doc) for more a detailed
description of periodicals or subscription services purchasing requirements.
The purchase of outside counsel services
is restricted to cardholders in the Office of General Counsel, Legal Division.
The Legal Division is the only office with the authority to acquire outside
legal counsel services.
3.103(g)
Management/Disposition of Assets
Designated
cardholders in the Division of Resolutions and Receiverships (DRR), DOA,
specifically assigned officials from other FDIC Divisions, and FDIC Contracting
Officers are authorized to use the P-Card to purchase goods or services related
to:
(1)
Incidental
goods or services for assets in receivership (e.g., locksmiths, building
repairs, etc.);
(2)
The
management and disposition of assets held by FDIC in its receivership capacity;
(3)
Former
receivership assets which have been obtained via corporate purchase;
(4)
Receivership
assets which may have been “assigned” to FDIC in its corporate capacity; or
(5)
Asset
liquidation activities performed by DRR. Examples of such receivership
purchases include, but are not limited to, appraisals, surveys, environmental assessments,
phase one (1) environmental services, brokerage services, title policies or
commitments, asset searches, or similar goods or services.
Before making a purchase, the cardholder must
determine:
(1)
If
FDIC has awarded a contract for the required goods or services;
(2)
If
the purchase is authorized in accordance with applicable directives and this
guide;
(3)
Whether
or not additional documentation is required by FDIC directives or guidance;
(4)
If
the purchase is within the limits authorized for the cardholder;
(5)
Whether one of the mandatory
sources applies to the purchase:
§
Contractor’s
AbilityOne Program, formally Javits-Wagner-O’Day (JWOD)
§
Federal
Prison Industries (FPI), and
(6)
Whether
a statutory mandate, e.g., Section 508 of the Rehabilitation Act, Davis-Bacon
Act (DBA), Service Contract Act (SCA), or Buy American Act (BAA)/Trade
Agreements Act (TAA), applies to the purchase.
To determine the applicability of a specific
statutory requirement (Section 508 of the Rehabilitation Act, DBA, SCA or
BAA/TAA), see the procedures in PGI 3.204.
To determine
the applicability of mandatory sources the cardholder must review the purchase
threshold as discussed below.
3.201 Purchase of Goods and Services of $5,000 or Less
The
AbilityOne Program is the only mandatory source for goods and services of
$5,000 or less. If the goods or services can be purchased from the mandatory
source (AbilityOne), then the cardholder must make the purchase from them and
document the file accordingly. See paragraph 3.203 for further guidance.
The
AbilityOne Program and FPI have been designated as mandatory sources for goods
and services above $5,000. If the goods or services can be purchased from
either of the mandatory sources (AbilityOne or FPI), then the cardholder must
make the purchase utilizing the mandatory source and document the file
accordingly. See paragraphs 3.203 for further guidance.
If the goods
and services cannot be satisfied by AbilityOne or FPI, the cardholder must
document the file as addressed in Section 3.203, specifying that the mandatory
sources did not carry the same or similar products, and proceed to acquire the
goods or services from optional sources such as GSA Federal Supply Schedule
(FSS) contracts or commercial contractors. See paragraph 3.205 for additional
information.
3.203(a)
AbilityOne Program
The AbilityOne Program, formerly known as the JWOD Program, is a unique federal
procurement program that generates employment and training opportunities for
people who are blind or have other severe disabilities. The program is a
mandatory source of supply for FDIC (41 USC §46 et seq.).
The AbilityOne Program provides products such as
office and general supplies; cleaners, hardware, paints and other industrial
items; clothing and textile products; and services such as administrative
services (temporary or full-time), janitorial/custodial, grounds maintenance,
switchboard or mailroom operation, warehousing and distribution, food services,
and laundry services. Information on
available products may be found at http://www.abilityone.gov.
Cardholders may not purchase products that are the same,
or essentially the same, as those available from the AbilityOne Program from
other sources, unless AbilityOne has provided a purchase exception. Services
that are available from AbilityOne industries are only mandatory if FDIC has
purchased them before, and the service has been added to the AbilityOne
Procurement List.
Products may be ordered with the P-Card at http://www.jwod.com. The list of products and services, additional
sources for AbilityOne products, and ordering instructions may also be found at
http://www.abilityone.gov.
The cardholder must annotate in the P-Card file that
AbilityOne has been considered, and whether goods or services will be ordered
from AbilityOne.
3.203(b)
Federal Prison Industries
FDIC is subject to the requirements of Title 18 USC
4124, and therefore must consider FPI when purchasing goods above $5,000.
However, cardholders are not obligated to purchase goods from FPI that do not meet
the requirements of FDIC, are not currently available, or are not available at
fair market prices.
Prior to
ordering goods listed in the FPI schedule (http://www.unicor.gov), the cardholder must conduct market research to
determine whether the FPI item is comparable to the goods available from the
private sector that best meet FDIC needs in terms of price, quality, and time
of delivery.
If the FPI
item is acceptable to FDIC in terms of price, quality and time of delivery, the
cardholder must purchase the item from FPI following the ordering procedures at
http://www.unicor.gov/. Cardholders must feel comfortable that they are
paying a fair price for the FPI item, and may request assistance from ASB in
the event the price does not seem reasonable.
If the FPI
item is not comparable to goods available from commercial sources in terms of
price, quality, and time of delivery, the cardholder may then acquire the item
using the procedures in paragraph 3.205 below. The cardholder must include the
reasons for not using FPI in the P-Card file.
The
cardholder is responsible for compliance with certain statutory mandates when
purchasing goods and services. These requirements are also linked to the dollar
value of the procurement. Applicable statutory requirements include:
3.204 (a) Section 508 of the Rehabilitation Act
All purchases of Electronic Information Technology
(EIT) conducted using the FDIC P-Card, regardless of the dollar value of the
purchase, must conform to guidance on Section 508 of the Rehabilitation Act of
1973. EIT is defined in FDIC Circular 2711.1 and in chapter 5.3 of the FDIC PGI
as:
Electronic and information technology (EIT) – Any
equipment or interconnected system or subsystem of equipment that is used in
the creation, conversion, or duplication of data or information. EIT includes, but is not limited to,
software, operating systems, desktop and portable computers, telecommunication
products (such as telephones and teleconferencing services), information kiosks
and transaction machines, worldwide websites, multimedia (e.g., video
production and webcasting services), and office equipment (e.g., copiers and
fax machines).
P-Card holders must comply with the applicable
accessibility standards to the maximum extent practicable. Exceptions to the
application of Section 508 to EIT P-Card purchases are limited to the
following:
(1)
Compliance
would impose an undue burden, defined as "significant difficulty or
expense;"
(2)
A
product or components of the product cannot be made accessible without
"fundamental alteration" of their nature; or
(3)
Products
are acquired by a contractor incidental to a development contract and are
neither used nor accessed by federal employees or by members of the
public.
When
determining whether compliance with all or part of the applicable accessibility
standards in 36 CFR Part 1194 would be an undue burden, an agency
must consider:
(1)
The
difficulty or expense of compliance; and
(2)
Agency
resources available to its program or component for which the supply or service
is being acquired.
The
P-Card holder must document in writing the basis for an undue burden decision
and retain the documentation in the official P-Card transaction file. When
acquiring commercial items, an undue burden determination is not required to
address individual standards that cannot be met with supplies or service
available in the commercial marketplace in time to meet the agency delivery
requirements.
There are various tools available to assist the
Contracting Officer and Program Office in ensuring that FDIC-purchased EIT is
Section 508 compliant:
(1)
FDICnet:
Guidance on Section 508 roles and responsibilities is found on the “Section 508
at FDIC” website at
http://fdic01.prod.fdic.gov/division/omwi/section508.html;
(2)
GSA’s Website:
This website provides best practices, free training on various 508-related
subjects, and frequently asked questions at www.section508.gov;
(3)
GSA’s Buy Accessible Wizard Website:
The Wizard is a tool for conducting and documenting market research and is found
at www.buyaccessible.gov; and
(4)
Access Board Accessibility Standards:
This website provides detailed information on accessibility standards and
provides training. See
http://www.access-board.gov/508.htm.
Further
procedures, guidance and information are provided at PGI 5.3. The
cardholder may contact the ASB, Policy and Operations Section, for assistance with
Section 508 questions.
3.204(b) Davis-Bacon Act and Service Contract
Act
P-Card
purchases for services over $2,500 are subject to the SCA, and purchases for
construction projects over $2,000 are subject to the requirements of the DBA. The SCA was
enacted to ensure that government contractors compensate their blue-collar
service workers and some white-collar service workers fairly. It does not cover
bona fide executive, administrative, or professional employees. For purposes of the DBA, construction includes alteration or
repair of public buildings and public works.
Prior to the purchase of services
subject to the DBA or SCA, the cardholder must obtain a Department of Labor
(DOL) wage determination. This can be obtained from the DOL website, http://www.wdol.gov/. The cardholder either downloads the wage determination or
submits an electronic Form 98 to request the wage determination from the DOL.
Once the appropriate wage determination is acquired, the cardholder must notify
the vendor providing the services that DBA or SCA apply and provide the vendor
with the specific wage determination number, revision number and
the date of the revision. A template for
vendor notification is found on the ASB website at http://fdic01/division/DOA/buying/CreditCard/index.html. The cardholder must
place a copy of the wage determination in the P-Card file.
3.204(c) Buy American Act and Trade Agreements
Act
The BAA requires FDIC to buy American-made goods when
it procures goods for use in the United States. The BAA applies to contracts
with a value greater than the micro-purchase threshold[1], currently
$3,000, and applies to contracts entered into by FDIC in its corporate capacity
only. It also applies to contracts for services when these involve furnishing
goods. The BAA does not apply to FDIC contracts procuring construction or IT
that is a commercial item. The BAA restricts the purchase of supplies that are
not domestic end products. For manufactured end products, the BAA uses a two-part
test to define a domestic end product:
(1)
The
article must be manufactured in the United States; and
(2)
The
cost of domestic components must exceed fifty (50) percent of the cost of all
the components.
In order to determine the applicability
of the BAA, the cardholder must ask the contractor to identify the place of
manufacture and the cost of domestic components. If the item fits the criteria
above, the cardholder may proceed with the purchase. If the criteria are not
met, the cardholder may not procure the item unless an exception to the BAA
exists, or an evaluation has been performed in accordance with the guidance
provided in PGI 5.12.
Although rare, the TAA may also be
applicable to P-Card buys over $25,000. Further information may be found at PGI
5.12. The provisions of the BAA and TAA have already been covered by
GSA during their contracting process. Therefore, cardholders may wish to
consider using GSA contracts when there are questions regarding the
applicability of these laws. The cardholder may contact ASB, Policy and
Operations Section, for assistance with BAA/TAA questions.
If it is determined that the goods or services cannot
be acquired from mandatory sources, the cardholder may consider optional
government sources such as GSA FSS or commercial sources.
3.205(a)
Federal Supply Schedule
GSA has determined the prices of goods and
fixed-price services under schedule contracts to be fair and reasonable.
Therefore, cardholders may place orders with the schedule contractor that can
provide the goods or service that represents the best value to the government
when considering price and other factors, providing the following procedures
are followed.
(1)
Placing Orders:
Cardholders may place orders less than $5,000 with any schedule contractor that
provides the required goods or services. To place an order over $5,000, but
less than the maximum order threshold for goods or services that do not require
a statement of work with a GSA contractor, the cardholder must consider
reasonably available information about the goods or service offered under
Multiple Award Schedule contracts. This
may be accomplished by surveying at least three schedule contractors through
the GSA Advantage! online shopping service at http://www.gsaadvantage.gov,
or by reviewing the catalogs or pricelists of at least three schedule
contractors. Review of product information, including pricing and availability,
allows the cardholder to determine which contractor represents the best value
to FDIC. This decision must then be documented in the P-Card file.
(2)
Justification for Limited Sources or
Brand Name Items: In the event the cardholder determines
that only one GSA contract source should be considered, or when an item
peculiar to only one manufacturer (e.g., a particular brand name, product, or a
feature of a product, peculiar to one manufacturer) is required, the P-Card
file must be documented with the reason for limited sources. A brand name item,
whether available on one or more schedule contracts, is an item peculiar to one
manufacturer. Brand name specifications must not be used unless the particular
brand name, product, or feature is essential to FDIC requirements, and market research
indicates other companies’ similar products, or products lacking the particular
feature, do not meet, or cannot be modified to meet, FDIC needs. Circumstances
that may justify limiting sources, include:
§
Only
one source is capable of responding due to the unique or specialized nature of
the work;
§
The
new work is a logical follow-on to an original FSS order, provided that the
original order was placed in accordance with the applicable FSS ordering
procedures. The original order must not have been previously issued under sole
source or limited source procedures; or
§
An
urgent and compelling need exists, and following the ordering procedures would
result in unacceptable delays.
The cardholder must document in the P-Card file the
basis for the best value decision (e.g., price, delivery, quality of
product/service, etc.) or in the event it is determined that only one company’s
product satisfies FDIC needs, the rationale for limiting consideration to only
one contractor.
3.205(b) Commercial Sources
When FDIC needs cannot be met through the mandatory
or optional sources discussed above, the cardholder may consider commercial
sources.
P-Card
purchases of $5,000 or below may be made with any merchant who can provide the
required goods or services. Cardholders must make attempts to rotate awards
among qualified merchants, when possible. Through this process, the cardholder
may find new sources for existing purchases, broadening the merchant base and
likely resulting in better pricing.
Purchases
above $5,000 generally require competition. By competing requirements among
qualified suppliers, the cardholder is better assured of paying a fair and
reasonable price for the goods or services being procured. Price quotes must be
requested from at least three contractors who can reasonably be expected to
provide the required goods or services. The cardholder must ask contractors to
provide a quote, inclusive of shipping when possible. The cost of shipping,
when billed separately, must be considered when evaluating contractor price
quotes. The cardholder then places the
order with the contractor that offers the lowest price for the required goods
or services, or otherwise provides the best value to FDIC.
Although
competition is generally preferred for purchases above $5,000, instances may
arise where the cardholder may determine that soliciting only one source is in
the best interest of FDIC. For purchases between $5,000 and $100,000, the cardholder
must prepare a memorandum to file explaining why competition is limited.
Purchases above $100,000 require a Justification for Non-Competitive
Procurement (JNCP). The JNCP template is found at http://fdic01/division/DOA/buying/acquisitiondocuments/acqdocs.html. Situations that may
require limiting competition include, but are not limited to:
(1)
When
the need for the goods or services is of such an unusual and compelling urgency
that delay would adversely affect the corporation;
(2)
When,
after adequate investigation, only one firm is identified that can meet the
specific needs of FDIC; or
(3)
When
an existing contractor offers the benefits of historical expertise or systems or
software compatibility, which other contractors could not provide as
cost-effectively or as timely.
The cardholder may use the following tools to
identify potential sources: the Program Office, the Office of Minority and
Women Inclusion (OMWI), the Central Contractor Registration database (http://www.ccr.gov), trade publications, GSA schedules, FedBizOpps,
etc., once it has been determined that one of the mandatory sources is not a
viable choice for the goods or services.
Cardholders are encouraged to contact minority and
women-owned businesses (MWOBs) and small disadvantaged businesses (SDBs) when
locating sources to fulfill FDIC requirements. The FDIC OMWI may be contacted
for assistance in locating MWOB or SDB firms that may be able to provide
required goods or services.
The cardholder must always be able to document that
the price being charged is a fair and reasonable price. This assurance is
usually obtained through competition.
However, if quotes are requested or received from only one contractor,
or if the prices were not similar enough to be considered competitive, the
cardholder must use some other method to ensure that a fair price is being
paid. This may include personal knowledge, comparison to advertising in the
newspaper or on the internet, contractor catalogs demonstrating that the price
quoted is the same as quoted to other individuals or organizations, or use of
other similar techniques. Regardless of the method being used, the cardholder
must document the P-Card file with the quotes received, the basis for
determining which contractor should be utilized, and the basis for determining
the prices are fair and reasonable.
Purchases
for official United States Government purposes are not subject to state or
local sales tax. The P-Card and convenience checks are designed to enable
merchants to readily identify FDIC tax-exempt status by including the phrase
"U.S.GOVT TAX EXEMPT." Further, the P-Card account number is the tax
exemption number recognized by most states.
3.301(a)
Informing the Merchant
To
avoid being charged sales tax, the merchant must be informed of the tax exempt
status of the transaction before completion of the sale. As a general rule, if
the merchant does not accept instructions to waive the sales tax, the
cardholder must make an attempt to buy the goods or services from another
merchant who does not charge sales tax.
The
cardholder is authorized to proceed with a purchase and pay the sales tax only
if time is of the essence in making the purchase, and there are no other
merchants readily available. In such cases, the circumstances for paying sales
tax must be documented by the cardholder and kept with the purchase receipts.
3.301(c)
Erroneous Sales Tax Charges
In
the event that a cardholder is erroneously charged sales tax, the cardholder
must contact the merchant and ask that the charge be reversed and re-run
without the sales tax. If the merchant refuses, the agency pays the tax. Sales
tax may not be treated as a "disputed item."
Cardholders must check shipping and handling fees and
factor these into their evaluation and the total cost of the order. They must
choose the delivery option that best meets their needs and must track their
purchases.
Some vendors have different return policies for items
purchased over the Internet versus items purchased on-site at store locations.
Cardholders must make sure that the vendor’s return policy is favorable.
Over-the-counter
purchases are those made in person by the cardholder. Before making the
purchase, the cardholder must notify the merchant that the purchase is for
official United States Government purposes and therefore not subject to sales
tax. Electronic encoding on the card
verifies that the purchase is within the cardholder’s single, monthly, and
office dollar limits and that the purchase is being made at a business that is
not excluded due to its MCC.
Upon
authorization of the charge, the merchant must present the cardholder with a
sales draft for signature. Before signing the draft, the cardholder verifies
that the amount is correct, and that sales tax has not been included. The
cardholder maintains a file containing all receipts issued for over-the-counter
purchases (including cash register receipts). During the statement verification
process, these receipts are used to verify and support the charges on the
cardholder’s monthly statement of account.
When
placing a telephone, Internet, or mail order for goods or services, the
cardholder must:
(1)
Notify
the merchant that the purchase is for official United States Government
purposes and is tax exempt;
(2)
Verify
with the merchant that the P-Card will not be charged until the item(s) are
shipped;
(3)
Verify
any applicable shipping or handling charges with the merchant, and confirm the
amount to be billed; and
(4)
For
Internet orders, verify that the site is secure. A secure website uses
encryption and authentication standards to protect the confidentiality of information
sent during web transactions. Most web browsers are configured by default
to use a secure socket layer (SSL) for secure sites and to warn you when you
enter or leave a site using SSL. Most browsers also display a security icon,
usually a small locked padlock, when you are on a secure
website. Cardholders should also check the URL (website address) to make
sure the site is secure. Secure websites start with https://, instead of
just http://.
The
use of convenience checks is the least preferred means of acquiring goods and
services and must only be used when the P-Card is not accepted. When using
convenience checks, the cardholder must document that the contractor does not
accept the P-Card. This information may be included in the P-Card log or
elsewhere in the P-Card file.
The
cardholder must also be mindful that there is a special service charge levied
on each convenience check. Due to the cost associated with convenience checks,
the number of checks written should be kept to a minimum. MCCs and spending
limits cannot be blocked for convenience checks; therefore extra precaution
must be exercised in their use.
Cardholders must document purchase information for
each transaction made using the P-Card or convenience checks. This information
may be maintained in an electronic or manual log, or otherwise be documented in
the P-Card file. At a minimum, the following information must be maintained:
(1)
Item
description;
(2)
Mandatory
source review/justification;
(3)
Merchant
name;
(4)
Merchant
representative name;
(5)
Date
purchased;
(6)
Total
purchase amount for each transaction;
(7)
Date
received;
(8)
Receiver’s
name, office, and phone number; and
(9)
Documentation
to support restricted purchases/
This
record or log is required for the statement review and verification process.
Cardholders may use the FDIC Purchase Card Order Log sample found on the ASB website ( http://fdic01/division/DOA/buying/CreditCard/index.html ), the card provider’s EAS, or
any other means of documenting transactions.
The
cardholder must maintain separate data for convenience check usage. This data
is required for IRS reporting. The information may be maintained in a
convenience check log as found at http://fdic01/division/DOA/buying/CreditCard/index.html. The convenience check log must be submitted to the
APC within established timeframes.
As
P-Card transactions are simplified procurements, as addressed in PGI 3.1, all
D/OC, AO, and cardholder files supporting transactions must be maintained for a
period of three (3) years. All administrative records and correspondence
relating to the P-Card program that are maintained by the APC must be retained
for five (5) years. See FDIC Circular 1210.1, Records Retention and Disposition Schedule
at http://fdic01/division/doa/adminservices/records/directives/1000/1210-1.doc.
The
card issuer sends a monthly statement of account (monthly billing statement) to
all cardholders who have P-Card activity on their account during the billing
period. Cardholders, who do not receive a monthly billing statement when they
have incurred charges or credits during the billing cycle, must notify the APC
promptly to follow-up with the bank. Cardholder may also access their monthly
charges through NFE.
Cardholders
must review and verify all transactions in NFE promptly after receipt of notice
that transactions have been posted to NFE. The AO must promptly approve
transactions that have been verified by cardholders. The cardholder and AO
verification and approval must be accomplished within ten (10) business days
after the statement has been posted to NFE, or as otherwise directed by the
APC.
The
APC notifies all cardholders and AOs when the statement is available for
review. The APC authorizes payment of
the master invoice in NFE upon verification and approval of the transactions by
the cardholders and AOs.
Cardholders
must promptly return damaged or unacceptable goods, and work with the merchant
to obtain proper credit for the items. Cardholders must also obtain some proof
(receipt, certified mail receipt, or credit voucher) that the item was
returned. The condition of the item(s) must be documented in the cardholder’s
file.
Upon
receipt of the monthly billing statement, the cardholder must verify that the
return was properly credited to the account, and must attach the credit slip to
the statement for retention in the files. If the merchant is unwilling to
accept returned items, or prepare a credit voucher, cardholders follow the
procedures outlined in Disputed or Questioned Items, paragraph 3.8 below.
Before disputing a charge, the cardholder must first
attempt to resolve any billing or condition of goods discrepancies with the
merchant. This includes charges for an item not received, an incorrect price, unacceptable goods or services, or other unresolved
discrepancy on the monthly billing statement. If the merchant agrees to reverse
the charge or take corrective action, the cardholder should not file the dispute
until it can be verified on the next statement that the credit or corrective
action was not taken, but this must be no later than within sixty (60) days of
the end of the billing cycle statement on which the disputed transaction
appears. If the merchant refuses to reverse the charge or take other corrective
action, the cardholder must dispute the item in writing immediately. In no case
should the cardholder fail to file the disputed items form within the sixty
(60) day limit, as the FDIC will lose all rights to a settlement. The disputed
item form can be found at http://fdic01/division/DOA/buying/CreditCard/index.html
under “Billing and Payment Procedures.” The
cardholder must fax this form to the issuing bank and fax a copy to ASB with a
copy of the monthly statement of account on which the disputed action
appears. Sales tax is not a disputable
charge.
Convenience
check charges may not be disputed under the P-Card program. If a cardholder
makes a mistake in issuing a convenience check, or if the item purchased with
the check is not delivered or is unacceptable, the cardholder has no recourse
with the bank. Instead, the cardholder must work directly with the contractor
to obtain credit. If this does not work,
FDIC is liable for the full amount of the check. Fees for convenience checks
are also not subject to dispute.
[1] Micro-purchase threshold: The micro-purchase threshold is defined at 41 USC 428(f). In accordance with Section 807 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375), the micro-purchase threshold is currently designated at $3,000.00.