Solicitation Synopsis/Contract Requirements Data Center Colocation Cage
USAC-IT-2015-03-007
This is a combined synopsis/solicitation. This synopsis/solicitation, including all attachments and USAC’s standard terms and conditions (hereafter “Solicitation”), constitutes the only announcement and request for proposals; no separate written solicitation will be issued. The Solicitation number is USAC-IT-2015-03-007.
A. Contract Requirements and Terms:
1) USAC currently has a need for a Data Center Colocation Cage (DCCC). The facility location must be (1) located in the Richmond, VA metro area; (2) SSAE-16 certified; and (3) SOC-1 type 2 certified, at a minimum. The DCCC will house, power and cool:
(a) One private, secured cage; (b) Five 42U (minimum) racks; and (c) One user provided rack.
Alternate locations may be considered, provided they are at least 100 miles (point to point) from USAC existing data center located in Ashburn, VA 20147 (“Existing Data Center”), but are no more than 150 miles (point to point) from the Existing Data Center. USAC will provide the street address of the Existing Data Center to bona fide bidders who sign and return
USAC’s Non-Disclosure Agreement (NDA). See Attachment 1.
2) The Offeror shall provide an all-inclusive, firm fixed-price quote, see Attachment 2 – Bid Sheet, for a location that meets the foregoing geographical requirements, as well as the following data center colocation and cage requirements/standards:
a) Must meet the Uptime Institute tier III standard and provide 99.9%+ uptime. (Uptime is defined as all functions and capabilities are operating such that the colocation cage may be used by USAC for its intended purpose without interruption and in accordance with the terms of this agreement.)
b) Data Center Colocation Power. The Data Center Colocation must meet the following power requirements:
i) Electrical Capacity – at least 5.0 kVA per cabinet allowed; ii) UPS Configuration – N+1 Block Redundant System;
iii) Standby Power – Backup generators to support full operational mode, equal to power draw for the facility;
iv) Standby Power Fuel – Stored fuel to cover operations when utility provided power in not available;
v) Standby Fuel Contracts: Fuel contracts in place that guarantee replenishment of fuel before reserves are exhausted; and
vi) Standby Power Configuration – N+1.
c) Data Center Colocation Cage must meet the following power requirements: i) Six 30Amp/208V power circuits (Primary), and
ii) Six 30Amp/208V power circuits (Secondary).
d) Contractor’s facility must be able to guarantee 99.99% availability of critical systems (HVAC, Power, Network) required for operations.
e) Must have secured rack space for all infrastructures, including the following security features:
i) Physical – “Man trap” entry;
ii) Human – on-site 7x24x365 security guards;
iii) Electronic – CCTV and Recorders, Motion Detection, multi-level biometric security (such as hand geometry, iris or fingerprint readers), Fiber Vault; iv) Multiple security points to access cage; and
v) 7x24x365 user access to cage.
f) Contractor must provide technical staffing on a 7x24x365 basis for physical and environmental monitoring, including the following:
g) Facility must have data communication egress in to and out of the building with enough capacity to handle USAC’s needs, which includes:
i) Two demarcations points within the carrier-neutral facility;
ii) Two Internet Service Provider (ISP) circuits - 100Mbps each upgradable to 1Gbps.
iii) Two 1 Gbps Metro connect or equivalent circuits to Equinix campus in Ashburn, VA – which must be upgradable to 10Gbps; and
iv) Cross connects provided between telecom providers and provided cage. h) Contractor must offer USAC right of first refusal to acquire/lease space adjacent to
USAC cage for future expansion.
i) Cooling: Facility and cage must meet the following cooling requirements: i) Cooling Capacity – 5.0 kW per cabinet (17,065 BTUH);
ii) Cooling Plant – High efficiency air-cooled chillers; and iii) Two independent cooling systems, each at N+1.
j) Must provide onsite technician service support to provide USAC with remote
management, custom installations, and equipment troubleshooting assistance. Technician service support shall include, but is not limited to, 7 days a week, 24 hours a day, 365 days (“7x24x365”) a year technical assistance and troubleshooting, equipment
installation and configuration, ladder racking, server reboots, equipment power cycling, and CD insertion.
k) Must provide a web based portal for USAC to monitor current datacenter advisories, for disruptions or maintenance. The web based portal shall also allow USAC to remotely create site visits and shipment tickets, as well as request billing and access reports. B. Schedule. Contractor must be capable of providing the required data center colocation cage
no later than 30 days after contract award date. The base period of this contract is two years, with three options to extend for one-year each for a total possible term of five years (hereafter the “Term”).
C. Place(s) of Performance: Richmond, Virginia, or at alternate location as specified in section 1, above.
D. Primary Point of Contact: Becca Wray
Purchasing Specialist II
Universal Service Administrative Company 2000 L Street, NW, Suite 200
Washington, DC 20036
E. USAC Status and Procurement Regulations:
USAC is not a Federal agency, a government corporation, a government controlled
corporation or other establishment in the Executive Branch of the United States Government. USAC is not a contractor to the Federal Government. The contract awarded as a result of this RFQ will not be a subcontract under a Federal prime contract. However, USAC
conducts its procurements in accordance with the terms of a Memorandum of Understanding with the FCC, which requires USAC to adhere to the following provisions from the Code of Federal Regulations, 2 C.F.R. §§ 200.318-321, 200.323, 200.325-326 and App. II to C.F.R. Part 200 (collectively “procurement regulations). Contractor shall comply with the
procurement regulations and all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this Agreement, including USAC’s Standard Terms and Conditions. See Attachment 3.
F. Proposal Instructions:
Offeror shall complete and submit the representations included in Attachment 4. Offerors proposals should include the following:
(1) The solicitation number;
(3) The name, address, and telephone number of the offeror;
(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation, including but not limited to, the offeror’s process for handling incidents/service disruptions and the offeror’s neutral site information and experience with telecommunication carriers. This may include product literature, or other documents, if necessary;
(5) Terms of any express warranty;
(6) Price and any discounts for each contract year. Price should be provided on the Price Quote Form included as Attachment 2;
(7) Acknowledgment of solicitation amendments;
(8) Past performance information, when included as an evaluation factor, to include two recent and relevant contracts for the same or similar items, a description of the
services provided, and other relevant information (including contract numbers, points of contact with names, telephone numbers and email addresses); and
(9) A statement that Contractor will comply with all terms, conditions and provisions included in this Solicitation.
Proposals must be received by USAC no later than 4:30 PM EDT on Thursday, May 21, 2015. Proposals must be submitted to and received by Becca Wray no later than the date and time set for receipt of proposals. An electronic copy and three hard copies of the proposals are required. Proposals may be mailed or delivered to: Universal Service Administrative Company, Attn: Becca Wray, 2000 L Street, NW, Suite 200, Washington, DC 20036. Inquiries may be directed to Becca Wray by electronic mail at [email protected]; by telephone at (202) 776-0200; or by fax at (202) 776-0080.
G. Evaluation and Award Selection:
USAC will evaluate all proposals that are submitted in compliance with the requirements of this Solicitation. USAC will consider the following factors when making its award: (1) technical acceptability; (2) past performance and (3) price. The technical acceptability, experience and past performance factors are more important than price.
The technical evaluation will include consideration of the following areas: • Compliance with the Contract requirements.
• Offeror’s certifications and qualifications.
• Offeror’s neutral site information and experience with multiple telecommunication carriers
•
Offeror’s process for handling incidents/service disruptions (notification, escalation, closure), including disaster recovery plan.USAC will consider the relevance, recency and quality of performance for each of the past performance references when evaluating past performance. USAC will issue a purchase order to the responsible Offeror that offers the best value to USAC, based on a consideration of all factors and requirements set-forth in the Solicitation.
Proposals that fail to furnish required representations, information or pricing, or that reject terms and conditions of the Solicitation may be excluded from consideration.
Attachment 1
Non-Disclosure Agreement
This Agreement is made and entered into this ____ day of ______, 2015 (“Effective Date”), by and between_________________________________________________________, with offices at __________________________________________________________________ (“Recipient”) and the Universal Service Administrative Company, with offices at 2000 L St., NW, Suite 200, Washington DC 20036 (“Owner”).
WHEREAS, in connection with discussions concerning a possible business relationship (the “Potential Transaction”) between the parties, it is necessary and desirable for Owner to disclose to Recipient certain Confidential Information of Owner;
NOW, THEREFORE, in consideration of the receipt of certain Confidential Information and the mutual promises made herein, the parties agree as follows:
1. For purposes of this Agreement, “Confidential Information” shall mean all information, data, reports, analyses, configurations, specifications, techniques, records, and other materials (in whatever form maintained, whether documentary, computerized, electronic, oral or otherwise) that contain or otherwise reflect information concerning the Owner or its business or technology systems or contain or otherwise reflect information concerning the Federal Communications Commission (FCC) that is provided to Recipient in connection with evaluating the Potential Transaction, including but not limited to (a) information relating to the procedures for administering the universal service support mechanisms (including but not limited to billing systems, program operations, policies and procedures, and analytical tools), (b) information relating to internal Owner and/or FCC matters (including but not limited to personnel matters and financial information), (c) information concerning or relating to entities that contribute to or participate in the universal service support mechanisms, or otherwise provide information to or have business dealings with Owner and/or the FCC (including but not limited to telecommunications carriers, schools, libraries, rural health care companies, and service providers), (d) technical data and information provided to Recipient by or on behalf of Owner (including but not limited to computer programs and software), and (e) any other information relating to Owner or its business or technology systems or the FCC that is furnished or made available or otherwise disclosed to Recipient prior to award of the contract or during performance of the contract.
2. The restrictions on Recipient’s use and disclosure of Confidential Information set forth in this Agreement shall not apply to any Confidential Information which Recipient can demonstrate: (a) is already in the public domain at the time of disclosure by Owner to Recipient or later becomes available to the public through no breach of this Agreement by Recipient or any of its representatives, (b) is lawfully in Recipient’s possession, without an obligation of confidentiality, prior to receipt hereunder, as evidenced by written records of Recipient, or (c) is received independently by Recipient from a third party who was free to lawfully disclose such information to Recipient without restriction of confidentiality.
3. Recipient acknowledges that Confidential Information is valuable proprietary information of Owner or the FCC. Recipient shall not use any Confidential Information except in the course of evaluating the Potential Transaction. Recipient shall limit access to Confidential Information to those employees and potential subcontractors with a need to know such information in order to evaluate the Potential Transaction and only if such persons are bound by written obligations at least
Attachment 1
as restrictive as those contained herein with respect to the confidentiality and non-use of such Confidential Information. Recipient shall use all reasonable efforts to ensure that employees and potential subcontractors who are given access to Confidential Information comply with the terms of this Agreement. Recipient shall not, without the written consent of Owner, disclose, authorize, or assist anyone else to disclose or make known for its or another’s benefit any Confidential Information to any other person or entity. The Recipient will notify the Owner orally within twenty-four (24) hours, and subsequently, in writing, of any misappropriation or misuse by any person of Confidential Information which may come to its attention. The Recipient shall assume full responsibility and liability to the Owner for any unauthorized use or disclosure of any Confidential Information by the Recipient’s employees, agents or consultants.
Recipient may disclose Confidential Information that is required to be disclosed by order of a court or other regulatory body having competent jurisdiction; provided however, that except where impractical, the Recipient shall give the Owner reasonable advance notice of such disclosure requirement (which shall include a copy of any applicable subpoena or order) and shall afford the Owner an opportunity to oppose, limit or secure confidential treatment for such required disclosure. In the event of any such required disclosure, the Recipient shall disclose only that portion of the Confidential Information that is legally required to disclose.
4. Within three business days of a written request by Owner, Recipient shall return all Confidential Information, and all copies, reproductions, or electronic versions thereof, that are in its possession; provided that Recipient shall have the option to destroy Confidential Information, and any copies, reproductions, or electronic versions thereof, in its possession with the written consent of Owner. Upon request by Owner, an officer or other appropriate representative of Recipient shall provide a certificate signed by an officer of the Recipient-company, which shall confirm that the foregoing has taken place.
5. Recipient acknowledges that a breach or threatened breach of any of the terms and/or conditions set forth in this Agreement will cause irreparable harm to Owner or the FCC. Accordingly, Recipient agrees that Owner shall in addition to any other remedies available to Owner at law or in equity be entitled to injunctive relief to enforce the terms of this Agreement.
6. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the District of Columbia, without giving effect to the conflict of law principles thereof. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the District of Columbia or of the United States of America located in the District of Columbia. Each of the parties hereto accepts the jurisdiction of such courts and irrevocably consents to the service of process of any of such courts in any such legal action or proceeding.
7. In the event Recipient breaches this Agreement, Recipient shall pay all of Owner’s costs and expenses incurred in enforcing this Agreement, including legal fees and expenses. Recipient agrees to defend, indemnify, and hold harmless Owner, and its officers, agents and employees, from any and all claims, suits, demands, awards and judgments resulting from any disclosure of information by Recipient or by Recipient’s agents or employees to any third party in violation of the terms of this Agreement.
8. Recipient’s obligations under this Agreement shall survive termination of the evaluation of the Potential Transaction.
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9. This Agreement does not obligate the parties to enter into any further agreement or to consummate any transaction, including without limitation the Potential Transaction.
10. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No waiver, alteration, or modification of this Agreement shall be binding unless in writing and signed by an authorized representative of each party. Each provision of this Agreement shall be considered separable and if for any reason any provision is determined to be invalid or contrary to any existing or future law, such invalidity shall not impair the operation of or affect those provisions that are valid. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. A signature sent via facsimile or PDF shall be as effective as if it was an original signature. The rights and obligations of Owner under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Owner. Recipient shall not assign its rights or obligations under this Agreement.
11. All notices, requests, and consents under this Agreement shall be in writing, shall be addressed to the receiving party’s address set forth above or to such other address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) made by facsimile transmission, with written confirmation of receipt (c) sent by overnight courier, or (d) sent by registered mail, return receipt requested.
The parties have caused this Agreement to be executed by their duly authorized representatives as of the day and year set forth above.
RECIPIENT USAC (OWNER)
By: By:
Print: Print: ____________________ Title: Title:
ATTACHMENT 2
Price Quote
This Quote is submitted by the undersigned company (“Company”) and is valid for 120 days from the date set forth below.
Company agrees to provide the items at the prices set forth in this Quote, in accordance with the terms and conditions of Contract No. USAC-IT-2015-03-007. Submitted by: Company Name: ________________________________________________ By Authorized Representative: ___________________________________ Signature:______________________________________________________ Print Name:____________________________________________________ Title:__________________________________________________________ Date:__________________________________________________________
Item No. Schedule of Supplies / Services Quantity Unit Unit Price Extended Price
1 Data Center Colocation Cage - Year One 1 Year 2 Data Center Colocation Cage - Year Two 1 Year 3 First Option Year 1 Year 4 Second Option Year 1 Year 5 Third Option Year 1 Year
Accepted by USAC:
Signature: Print Name: Title:
Contract Effective Date:
Total
Total Firm-Fixed Price Lead time from date of purchase
Other (describe) Shipping (if applicable)
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CONTRACT TERMS AND CONDITIONS
1. Inspection/Acceptance. Contractor shall only tender for acceptance those items that conform to the requirements of this Contract. USAC reserves the right to inspect or test any supplies or services that have been tendered for acceptance. USAC may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, USAC may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. USAC must exercise its post-acceptance right:
(a) Within a reasonable time after the defect was discovered or should have been discovered; and
(b) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.
2. Assignment. With the exception of the assignment of rights to receive payment, neither this Contract, nor any right or interest hereunder, shall be assigned or delegated by Contractor without the prior written agreement of USAC. Any purported assignment or delegation that violates this section is void. Contractor or its assignee may assign its rights to receive payment due as a result of performance of this Contract to a bank, trust company, or other financing institution, including any Federal lending agency upon submitting a notice of assignment in a form acceptable to USAC signed by an authorized officer of Contractor and accompanied by a true copy of the instrument of assignment executed by Contractor and the assignee. In the event USAC’s participation in administering the USF support mechanisms should end, USAC may, at no additional cost, assign this Contract to the FCC or other entity that assumes responsibility for administration of the Fund.
3. Changes. Changes in the terms and conditions of this Contract may be made only by written agreement of the parties.
4. Applicable Laws. Contractor shall comply with the Procurement Regulations to the extent applicable to this Contract, and with all applicable Federal, State and local laws, executive orders, rules and regulations.
5. Definitions
(a) Unless otherwise defined herein or in any attachment hereto, terms capitalized for other than grammatical purposes and used herein or in any attachment hereto shall have the meanings set forth below.
(b) “Contract” means the legally binding, written agreement between USAC and Contractor that shall consist of, in order of precedence and priority in case of any inconsistencies, the Contract Requirements document, the signed Price Quote
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Form (Attachment 2), the Contract Terms and Conditions (Attachment 3), Offeror’s Certifications and Representations (Attachment 4) and, if provided, Contractor quote on company letterhead.
(c) “Contracting Officer” means the authorized USAC representative designated to serve as the Contracting Officer for this procurement: Jim Cosson. USAC may change its designated Contracting Officer by written notice to Contractor. (d) “Contractor Software” means Software used by Contractor for which Contractor
has previously acquired all ownership rights. Contractor Software does not include Third-party Software or USAC Software.
(e) “Data” means recorded information, regardless of form or the media on which it may be recorded. The term includes, but is not limited to, technical data and computer software.
(f) “Disabling Code” means Software code that is included in software to permit the owner of the software to disable the operations performed by the software at the remote command of such owner, or at a predetermined time or upon
predetermined circumstances.
(g) “Effective Date” means the date identified as the “Contract Effective Date,” in Attachment 2, which is the date upon which USAC accepts Contractor’s Bid (h) “Electronic Format” means deliverables and data created, by means other than
scanning, using an industry standard, commercially available software program. (i) “Including” shall mean including without limitation. This term is as defined,
whether or not capitalized in this Contract
(j) “Malicious Code” means Software code such as computer viruses, worms, trojan horses that is inserted into software and that is deliberately designed to damage data, provide unauthorized access to USAC Information, or produce an
unexpected and unwanted result or computer operation.
(k) “Offeror” means the entity submitting a proposal in response to the Solicitation. (l) “Services” means the services, functions and responsibilities described in this
Contract as they may be supplemented, enhanced, modified or replaced.
(m)“Software” means computer programs that allow or cause a computer to perform a specific operation or series of operations, together with all modifications to, or enhancements (derivative works) thereof.
(n) “Subcontractor” means any partner, joint venture, subcontractor, teaming member or partner, or any affiliated or unaffiliated company that has an agreement of any
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kind with Contractor and that will perform any services or provide any Supplies required by the Contract.
(o) “Third-party Software” means Software that is provided under license or lease by a third party to Contractor or USAC. Third-party Software includes any
Subcontractor Software that is not USAC Software.
(p) “USAC Confidential Information” has the meaning set forth in section 26, below. (q) “USAC Information” means all written, electronically, magnetically or optically
stored, or printed material, provided to Contractor by USAC for use in the
performance of this Contract, including without limitation, business and company personnel information (not including information relating only to Contractor’s or any subcontractor’s business or operations) that is created, modified, reproduced or maintained by USAC. “USAC Information” also includes information
concerning USAC’s business, employees or operations that is collected, developed or recorded by Contractor in the performance of the Contract, including without limitation, program procedures and program specific information that is provided to Contractor by USAC or a Stakeholder in the course of performance of the Contract or that is created or derived from such information. USAC Information is Confidential Information.
(r) “USAC Software” means (1) Software developed by USAC or title to which was acquired by USAC from a third party, or (2) Software first produced in the performance of this Contract.
(s) “Work Made for Hire” has the meaning set forth in 17 U.S.C. § 101.
6. Excusable delays. Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of USAC, acts of the United States Government in its sovereign capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common carriers. Contractor shall notify USAC in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to USAC of the cessation of such occurrence.
7. Invoice
(a) Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include:
(i) Name and address of Contractor; (ii) Invoice date;
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(iii) Contract number, contract line item number and, if applicable, the order number;
(iv) Description of the services and/or deliverables for which payment is sought; (v) Terms of any discount for prompt payment offered;
(vi) Name and address of official to whom payment is to be sent;
(vii) Name, title, and phone number of person to notify in event of defective invoice; and
(viii) Taxpayer Identification Number (TIN). Contractor shall include its TIN on the invoice only if required elsewhere in this contract.
(ix) Electronic funds transfer (EFT) banking information. Contractor shall include EFT banking information on the first invoice. USAC shall not be liable for uncompleted or erroneous transfers which occur as a result of Contractor’s providing incorrect or out of date EFT information.
(b) Contractor may submit invoices for payments due in accordance with Section 8(a) below, once every thirty days during the Term of this Contract, but in no event shall Contractor submit its first invoice sooner than thirty (30) days after it becomes entitled to payment pursuant to Section 8(a) below. .
8. Payment.
(a) Items and services accepted. Payment shall be made after Contractor’s delivery and USAC acceptance of the colocation and cage, provided that the Contractor has submitted an invoice that complies with the Invoices clause (section 7).
(b) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an
electronic funds transfer payment is made with prompt payment. USAC will pay for accepted items and services within 30 calendar days of receipt of Contractor’s invoice provided such invoice is proper and submitted in accordance with terms set forth herein.
(c) Other Costs. Unless specified in this section 8, any other direct or indirect costs incurred by Contractor in the performance of this Contract will not be paid by USAC.
9. Termination for USAC’s convenience. USAC reserves the right to terminate this Contract, or any part hereof for its sole convenience. Subject to the terms of this
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Contract, the Contractor shall be paid a percentage of the Contract price, as applicable, reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges Contractor can demonstrate to the satisfaction of USAC using its standard record keeping system, have resulted from the termination. Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided. In the event of a partial termination for cause or for convenience, Contractor shall continue the work not terminated.
10. Stop Work. Upon receipt of a notice of termination (for cause or convenience), unless otherwise directed by USAC, Contractor shall: (A) stop work, and cause its, subcontractors, consultants or agents to stop work, to the extent specified in said notice; and (B) subject to the prior written approval of USAC, transfer title to USAC and deliver to USAC, or as directed by USAC, all USAC owned materials, Data, work in process, completed work and other USAC Information or material produced in connection with, or acquired for, the work terminated.
11. Termination for cause. Either party may terminate this Contract, or any part hereof for cause in the event of any default by the defaulting party, or if the defaulting party fails to comply with any Contract terms and conditions, or if Contractor fails to provide USAC, upon request, with adequate assurances of future performance. In the event of termination for cause, USAC shall not be liable to Contractor for any amount for supplies or services not accepted. The terminating party shall have any and all rights and remedies provided by law and the defaulting party shall be liable to the non-defaulting party for damages arising out of the default. If it is determined that USAC improperly terminated this Contract for cause, such termination shall be deemed a termination for convenience.
(a) If USAC terminates this Contract for cause in whole or in part, it may acquire, under commercially reasonable terms and conditions, the terminated supplies and/or services from another source and Contractor will be liable to USAC for any reasonable excess costs incurred by USAC together with any other damages incurred because of the termination.
(b) To the extent requested in writing by USAC on partial or complete termination for cause, Contractor will, to the extent permitted by the terms of the subcontract, assist with transition and assignment to USAC of any subcontract between Contractor and any subcontractor that is dedicated to providing the terminated supplies/Services to USAC.
12. Limitation of liability. Except as otherwise stated in this Contract and except in cases of gross negligence or willful misconduct, in no event: (1) shall either party be liable for special, indirect, incidental, or consequential damages, including, without limitation, lost profits, even if it has been advised of the possibility of such damages; and (2) shall either party’s liability to the other party for all matters arising out of the Contract exceeds two times the total fixed price of the Contract, except to the extent such damages are covered by Contractor’s insurance.
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13. Record Retention. Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until three years after final payment under this Contract.
14. Proprietary Rights and Software
(a) Data First Produced in Performance of this Contract. USAC shall have exclusive ownership of all Data first produced in the performance of this Contract and, with regard to such Data, USAC shall have the rights 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. Notwithstanding any provision in this Contract that states otherwise, Contractor hereby assigns to USAC the copyrights in all Data first produced by Contractor in the performance of this Contract, including, but not limited to, any Stakeholder information, including but not limited to reports, notes, or other deliverables. Contractor agrees to execute any additional documents which may be necessary to vest ownership of all such copyrights in USAC. USAC’s rights in Data first produced in performance of this Contract are transferrable to any future USF administrator or the FCC at no cost in the event USAC’s participation in administering the USF ends. Except as otherwise specifically provided for in this Contract, the Contractor shall not use, release, reproduce, distribute, or publish any Data first produced in the performance of this Contract, nor authorize others to do so, without prior written permission of USAC.
(b) Software Not First Produced in the Performance of this Contract. Contractor represents and warrants that all Software that is not first produced in the performance of this Contract and that is acquired or delivered by Contractor under this Contract, or incorporated in any USAC Software, USAC web sites, USAC databases shall be licensed directly to USAC and such license shall allow the Software to be:
(i) Used or copied for use by USAC with the computer(s) for which it was acquired, including use at any USAC installation to which the computer(s) may be transferred;
(ii) Used or copied by USAC for use with a backup computer if any computer for which it was acquired is inoperative;
(iii) Reproduced by USAC for safekeeping (archives) or backup purposes; (iv) Modified, adapted, or combined with other computer software, provided that
the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, commercial computer software shall be subject to same restrictions set forth in this Contract;
(v) Disclosed to and reproduced for use by support service contractors or their subcontractors, subject to the same restrictions set forth in this contract;
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(vi) Used or copied for use with a replacement computer, and
(vii) Transferred to any future USF administrator or the FCC at no cost in the event USAC’s participation in administering the USF ends.
(c) Data Not First Produced in the Performance of this Contract. The Contractor shall not, without the 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 unless the Contractor: (i) Identifies the Data; and (ii) Grants to USAC, or acquires on USAC’s behalf, a license of the same scope as set forth in paragraph (a) of this section.
(d) Third-party Software supplied by USAC. USAC grants to Contractor or, at Contractor’s request, to one of its subcontractors, to the extent authorized by the Third-party Software license, the same rights of access and use during the term of the Third-party Software held by USAC, for the sole purpose of performing the Contract.
(e) Software Developed by Contractor. All software developed by Contractor under this Contract, whether developed solely by the Contractor or its Subcontractors, or jointly by the Contractor, its Subcontractors or other third parties, shall be
considered Works Made for Hire under 17 U.S.C. § 101 and shall include: (i) all modifications to, or enhancements (derivative works) of, Software first developed during performance of this Contract by Contractor or its Subcontractors; and (ii) any customization and configuration of Third-Party Software. To the extent any of the software developed by Contractor or its Subcontractors is not deemed a Work Made for Hire by operation of law, Contractor hereby irrevocably assigns, transfers and conveys to USAC without further consideration all of its rights, title and interest in such software, including all rights of patent, copyright, trade secret or other proprietary rights in such materials. Contractor acknowledges that USAC and the assigns of USAC shall have the right to obtain and hold in their own name any intellectual property rights in and to such work product. Contractor shall reasonably and diligently assist USAC, at no additional cost to USAC, in
perfecting such ownership rights. Except as otherwise specifically provided for in this Contract, the Contractor shall not use, release, reproduce, distribute, or
publish any Software first developed in the performance of this contract, nor authorize others to do so, without written permission of the Contracting Office (f) Malicious Code. Contractor represents and warrants that it shall prevent the
introduction and proliferation of any Malicious Code into USAC’s computer environment. In the event any Malicious Code is found in USAC’s computer environment and such Malicious Code originated in equipment, Software, or services provided by Contractor or originated from any person for whom Contractor is responsible, Contractor shall at its own expense take all necessary efforts to: (a) promptly remove such Malicious Code and restore or recover lost or damaged USAC Information to the extent possible, caused by such Malicious
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Code using generally accepted data restoration techniques including the use of the most recently available backup unaffected by the Malicious Code and (b)
eliminate, or reduce to the greatest extent possible the effects of, the Malicious Code.
(g) Disabling Code. Contractor shall not introduce into any Software operating in USAC’s computer environment, or permit to be invoked, any Disabling Code. (h) Contractor shall obtain from its subcontractors all Software and Data, and all
rights therein, necessary to fulfill Contractor’s obligations to USAC under this Contract.
(i) Residual Knowledge. Nothing contained in this Contract shall restrict either party from the use of any ideas, concepts, know-how, or techniques relating to the services which either party, individually or jointly, develops or discloses under this Contract, provided that in doing so such party does not breach its obligations confidentiality or security or infringe the intellectual property rights of the other party or third parties who have licensed or provided materials to the other party. However, neither this Contract nor any disclosure made hereunder grants any license to either party under any patents or copyrights of the other party 15. Insurance
(a) All insurance policies required shall be maintained in full force until all services under this Contract are completed. Contractor shall provide 30 days’ prior written notice to USAC in the event of cancellation of or material change in the policy. (b) Upon the Effective Date, Contractor shall furnish USAC with insurance
certificates evidencing that the required coverage is in force. USAC shall not be liable for the payment of any premiums.
(c) The insurance companies indicated in the certificates shall have an AM Bestrating of A or better and a surplus rating of 7.
(d) Compliance with the insurance requirements set forth herein shall not release Contractor of full responsibility for any and all liability that may arise under this Contract.
(e) The minimum requirements of insurance to be carried by Contractor shall be as follows:
(i) Workers’ Compensation and Employer’s Liability Insurance:
A) Coverage A, Workers’ Compensation - Statutory benefits as required by the Workers’ Compensation Laws of all appropriate jurisdictions and reference to such compliance made on all certificates of insurance.
B) Coverage B, Employer’s Liability - One Million Dollars ($1,000,000), or as otherwise required by law.
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(ii) Commercial General Liability Insurance in an amount not less than One Million Dollars ($1,000,000) combined single limit, or the equivalent, as respects Bodily and Personal Injury and Property Damage in any one occurrence/Three Million Dollars ($3,000,000) aggregate, and
(iii) Contractual Liability Insurance to include coverage for the liabilities assumed under this contract in an amount not less than One Million Dollars ($1,000,000). Acceptance of coverage in this amount by USAC does not release Contractor of full responsibility for any and all liability that may arise under this Contract.
(iv) Professional Liability Insurance in an amount not less than One Million Dollars ($1,000,000) per occurrence and TwoMillion Dollars ($2,000,000) aggregate for claims arising out of Professional Services provisions under this Contract. Upon termination of Contractor’s Contract, Contractor shall present evidence of an extended reporting period to provide coverage for claims for a period of three years from the date of termination.
(v) Property and Hazard Insurance in an amount customarily carried by
companies or persons owning real property in the geographically area where Contractor’s facility is located, and that/who engage in the same or similar line of business as Contractor.
16. Notices
(a) Except as otherwise specified in this Contract, any notice, demand for information, consent, approval or documents required or authorized by this Contract to be given to a party shall be given in writing and shall be: (i) personally delivered, (ii) mailed by registered or certified mail (return receipt requested) postage prepaid, (iii) sent by overnight delivery service (with a receipt for delivery), (iv) sent by facsimile with a signed acknowledgement of receipt by return facsimile, or (v) sent by electronic mail with a confirmation of receipt returned by recipient’s electronic mail server to such party at the following address.
For USAC For Contractor
Jim Cosson
Manager of Purchasing
Universal Service Administrative Company 2000 L Street, NW
Suite 200
Washington, DC 20035 (202) 776-0200
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David A. Capozzi
General Counsel
Universal Service Administrative Company 2000 L Street, NW Suite 200 Washington, DC 20036 Telefax: 202-776-0080 Telephone: 202-776-0200 [email protected]
With a copy to:
(b) Each party’s designation of such person and/or address may be changed at any time by such party upon written notice given pursuant to the requirements of this section. A notice served by mail shall be effective upon receipt.
17. Patent indemnity. Contractor shall indemnify and defend USAC and its officers, employees and agents against any and all claims and liability, including attorney’s fees and other costs, for actual or alleged direct or contributory infringement of, or
inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this Contract, provided USAC notifies Contractor of such claims and proceedings.
18. Gratuities. USAC may terminate the Contractor’s right to proceed, and pursue any remedy available in equity or law, if the USAC Contracting Officer determines that Contractor, its agent, or another representative offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of USAC; and intended, by the gratuity, to obtain a contract or favorable treatment under a contract.
19. Extension of Contract Term. USAC may require continued performance of any Contract services within the limits and at the rates specified in the Contract. USAC may extend the services more than once, but the total extension of performance hereunder shall not exceed six months. The Contracting Officer may exercise the option by written notice to the Contractor within 10 days prior to expiration of the then current term.
20. Subcontracting with Debarred or Suspended Companies. The Federal Government suspends or debars companies to protect the Government’s interests. Contractor shall not enter into any subcontract with a company or entity that is debarred, suspended, or proposed for debarment or suspension by any Federal executive agency unless there is a compelling reason to do so. Contractor shall review the System for Award Management (SAM) for suspension or debarment status of proposed
subcontractors. See https://www.sam.gov.
21. Choice of Law/Consent to Jurisdiction
(a) This Contract shall be governed by and construed in accordance with the laws of the District of Columbia without regard to any otherwise applicable principle of
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conflicts of laws. Contractor agrees that all actions or proceedings arising in connection with this Contract shall be litigated exclusively in the State and Federal courts located in the District of Columbia. The choice of venue is intended by the parties to be mandatory, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Contract in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right to assert the doctrine of forum non conveniens or similar doctrine or to object to venue and agrees that the courts in the District of Columbia shall have in personam jurisdiction over each of them for the purpose of disputes relating to this Contract.
(b) Contractor shall submit all requests for equitable adjustment, claims or other disputes to the Contracting Officer for informal resolution prior to initiating any action in a court of appropriate jurisdiction. The parties shall use good faith efforts to resolve all disputes informally without the need for litigation. Failure of the parties to this Contract to reach agreement on any request for equitable
adjustment, claim, appeal or action arising under or relating to this Contract shall be resolved in the courts of appropriate jurisdiction sitting in the District of Columbia. Contractor shall proceed diligently with performance of this Contract, pending final resolution of any dispute arising under the Contract.
22. Invalidity of any Provision. It is the intent of the parties that the provisions of this Contract will be enforced to the fullest extent permissible, but that the unenforceability of any provision will not render unenforceable or impair the remainder of this Contract, which will be deemed amended to delete or modify, as necessary, the invalid or
unenforceable provisions. The parties further agree to negotiate replacement provisions for any unenforceable term that are as close as possible to the original term and to change such original term only to the extent necessary to render the same valid and enforceable.
23. Waiver. The waiver by either party hereto of a breach of any provision of this Contract shall not operate or be construed as a waiver of any subsequent breach by either party.
24. Public Statements. Neither Contractor nor its subcontractors shall issue any public statement relating to or in any way disclosing any aspect of this Contract without the prior written consent of USAC. Both Contractor and any subcontractors must refrain from advocating policy positions with respect to federal universal service matters.
25. Shipment/Delivery. Terms of shipping are F.O.B. at USAC's delivery location unless otherwise noted in this Contract. If, in order to comply with the required delivery date, Contractor must ship by a more expensive means than that specified in this
Contract, Contractor shall bear the increased transportation costs resulting therefrom unless the necessity for such shipment change has been caused by USAC. If any
Supplies are not delivered by the date specified herein, USAC reserves the right, without liability, to charge Contractor for any loss incurred. Contractor shall notify USAC in writing promptly of any actual or potential delays (however caused) which may delay the timely performance of this Contract. The risk of loss or damage to the Supplies provided
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under this Contract shall remain with Contractor until, and shall pass to USAC upon delivery of the supplies to USAC at the destination specified in the Contract.
26. Confidential Information
(a) Confidential Information. Confidential Information includes information, Data, material, or communications in any form or format, whether tangible or intangible (collectively referred to hereafter as "Information"), that contains, reflects, or is derived from or based upon, or is related to: (1) Personally Identifiable
Information (PII), as defined by NIST Special Publication 800-122; (2)
Management, business or financial Information of USAC or a USF stakeholder, including proprietary Information, trade secrets or commercial Information, that has not previously been disclosed; (3) Source Selection Information as defined by FAR § 2.101, including Information related to the development of statements of work or evaluation criteria for USAC or FCC procurements; (4) Information prohibited by any law or regulation from disclosure, including any copyrighted or trademarked information; (5) Information concerning USAC relationships with financial institutions; (6) Information regarding or submitted in connection with an audit or investigation of a USF stakeholder, USAC, a USAC employee or contractor; (7) Information to which USAC, the FCC, or any other government agency might assert a claim of privilege or confidentiality, including but not limited to attorney-client communications and work product; (8) Information marked to indicate disclosure limitations such as “Confidential Information,” “proprietary," "privileged," "not for public disclosure," etc.; and (9) Information received from, or submitted to, the FCC in connection with the performance of the Contract.
(b) Non-Disclosure/Use/Irreparable Harm. During performance of this Contract and at all times thereafter, one the parties may disclose Confidential Information to the other party (“Recipient”). The Recipient shall maintain the confidentiality of all Confidential Information and prevent its unauthorized disclosure, publication, dissemination, destruction, loss, or alteration. Recipient shall only use
Confidential Information for a legitimate business purpose of USAC and in the performance of this Contract. Recipient acknowledges that the misappropriation, unauthorized use, or disclosure of Confidential Information would cause
irreparable harm to party disclosing the Confidential Information and the entities affiliated with USAC programs.
(c) Employee Access to Confidential Information. Recipient agrees that it will disclose Confidential Information to employees and subcontractors only as
necessary for the performance of this Contract, and only to the extent necessary to discharge their duties as required by this Contract. As a pre-condition to access to Confidential Information, Recipient shall require each of its employees and subcontractors, and the employees of any subcontractor, to sign a non-disclosure or confidentiality agreement containing terms no less restrictive than those set forth herein. The disclosing party may enforce such agreements, if necessary, as a third-party beneficiary. Upon the termination of any employee, Recipient, and
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any subcontractor(s), shall remind their employees in writing of their continuing confidentiality obligations to USAC.
(d) Contractor Enforcement of Confidentiality Requirements. Contractors agrees that any breach or violation of the confidentiality requirements set forth herein (by Contractor or its employees) shall be reported to the USAC General Counsel, or the USAC General Counsel’s designee, immediately upon becoming aware of the breach or violation. Any report in connection with a breach or violation of the terms of the Confidential Information provisions set forth herein, must contain a complete account of the nature and extent of the violation, the identity and positions of the individuals participating in the violation, the steps taken to recover any improperly disclosed USAC Confidential Information, the extent to which such recovery was accomplished, and the steps being taken to prevent future occurrences of a similar nature.
(e) Exclusions. Contractor shall not be considered to have breached its obligations for disclosing USAC Confidential Information as required to satisfy any legal requirement of a competent government body, provided that, promptly upon receiving any such request and to the extent that it may legally do so, Contractor advises USAC of the USAC Confidential Information to be disclosed and the third party requiring such disclosure, in order that USAC may interpose an objection to such disclosure, take action to assure confidential handling of the USAC Confidential Information, or take such other action as it deems appropriate to protect the USAC Confidential Information. Notwithstanding anything in the Contract to the contrary, USAC may provide this Contract, including Contractor’s proposal information to the FCC or other governmental or judicial body, and to publicly disclose basic information regarding this Contract, e.g., name of Contractor, price, basis for selection and description of services/deliverables.
27. Information Security. In addition to the specific system and data security requirements of this Contract, Contractor shall establish and maintain safeguards to protect the confidentiality, integrity, and restricted availability of USAC Confidential Information, including PII, in its possession according to industry best practice standards. This includes all information that is sent to and received from USAC and USAC
Stakeholders. Contractor and its subcontractors shall ensure that their respective local area networks, servers, and personal computers are secure from unauthorized access from within or outside their respective organizations.
28. USAC Information. USAC Information is provided to Contractor solely for the purpose of performing this Contract, and USAC Information or any part thereof shall not be sold, assigned, leased, or otherwise transferred to any third party by Contractor (except as required to perform the Contract services or as otherwise authorized in this Contract), commingled with non-USAC Information, or commercially exploited by or on behalf of Contractor, or its employees or agents. Promptly upon the expiration of the term of this Contract, or such earlier time as USAC may direct, Contractor shall, at the direction of USAC, and at no additional cost to USAC, return or destroy all copies of USAC
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subcontractors or their employees. Contractor shall not withhold any USAC Information as a means of resolving any dispute. To the extent that there is a dispute between
Contractor and USAC, Contractor may make a copy of such USAC Information as is necessary and relevant to resolution of the dispute. Any such copies shall promptly be destroyed upon resolution of the dispute.
29. Conflict of Interest
(a) USAC is the appointed neutral administrator of the USF and the Universal Support Mechanisms. USAC is governed by a Board of Directors comprised of various stakeholders in the universal service programs, and is forbidden from advocating positions on universal service policy matters.1 Because of USAC’s unique role as neutral administrator, it is essential that any Contractor providing assistance to USAC in administering the universal service programs and the USF maintain the same neutrality, both in fact and in appearance. Moreover, because the USF constitutes public funds, it is essential that Contractor avoid strictly any conflict of interest or even the appearance of a conflict of interest relating to the performance of this Contract. For example, to the extent that Contractor or any Subcontractor has clients, membership, financial and/or any other material affiliation with entities that participate in the federal USF in any respect
(including but not limited to receiving universal service support, contributing to the universal service programs, advocating policy positions on matters related to the programs), there may be actual, potential and/or apparent conflict(s) of interest associated with providing services related to the administration of the USF. An actual or potential conflict of interest, or the appearance of a conflict of interest, may also arise from any planned future or current employment or
consultation arrangement involving the Contractor or any subcontractor and USAC or the FCC employees, or from the existence of any planned future or current ownership or control of the Contractor or any subcontractor by an FCC or USAC employee.
(b) During the term of this Contract, Contractor shall take all necessary actions to ensure that Contractor employees and Subcontractor employees providing services under the Contract do not participate in the federal universal service programs in any respect (including but not limited to receiving universal service support, contributing to the universal service programs, advocating policy positions on matters related to the programs or providing services to entities participating in the universal service programs or the USF). A failure of
Contractor employees or Subcontractor employees to comply with the aforesaid requirements shall be deemed a conflict of interest on the part of Contractor. (c) During the term of this Contract, Contractor shall promptly notify USAC of any
actual or potential conflicts of interest involving Contractor or any Subcontractor, or any circumstances that give rise to the appearance of a conflict of interest, and the means by which it proposes to avoid, neutralize, or mitigate such conflicts.
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Contractor’s notification to USAC shall be in writing, shall provide detailed information regarding the nature of the conflict, and shall include a detailed proposal on how Contractor intends to avoid, neutralize, or mitigate the actual or potential conflict of interest.
(d) Failure to avoid, neutralize or mitigate any actual or potential conflict of interest, or the appearance of a conflict of interest, to USAC’s satisfaction may result in termination of this Contract.
(e) Contractor and any Subcontractors must refrain from advocating policy positions with respect to federal universal service matters.
(f) Contractor shall include the requirements of this section 29, including this flow down requirement, in all subcontracts and consultant agreements.
30. Binding Effect. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legatees, personal representatives and other legal representatives, successors, and assigns.
31. Survival. All clauses that logically ought to survive termination of the Contract shall survive.
32. Entire Agreement. This Contract constitutes the entire agreement between the parties on the subject matter hereof, and there are no representations, warranties, covenants, or obligations except as set forth herein. This Contract supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, written or oral, of the parties hereto relating to the subject matter of this Contract. Except as otherwise specifically provided herein, nothing in this Contract is intended or shall be construed to confer upon or to give any person other than the parties hereto any rights or remedies under or by reason of this Contract.
33. Corporate Authorizations. Each party represents and warrants to the other that: (a) It has the requisite corporate power and authority to enter into this Contract
and to carry out the transactions contemplated by this Contract; and (b) The execution, delivery and performance of this Contract and the
consummation of the transactions contemplated by this Contract have been duly authorized by the requisite corporate action on the part of such party.
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Offeror Representations and Certifications
Offeror shall complete the representations and certifications set forth below and return with its proposal.
(a) Certification Regarding Responsibility Matters. The Offeror certifies, to the best of its knowledge and belief, that the Offeror and/or any of its principals, and any proposed subcontractors:
(1) __ Are, __ are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;
(2) __ Have, __ have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property;
(3) __ Are, __ are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses enumerated in
paragraph (a)(2) of this clause; and
(4) __ Have, __ have not, within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,000 for which the liability remains unsatisfied.
i. Taxes are considered delinquent if both of the following criteria apply:
(A) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending
administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.
(B) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.
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(A) The taxpayer has received a statutory notice of deficiency, under I.R.C. § 6212, which entitles the taxpayer to seek Tax Court review of a proposed tax
deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(B) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. § 6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(C) The taxpayer has entered into an installment agreement pursuant to I.R.C. § 6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.
(D) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. § 362 (the
(b) Taxpayer Identification Number (TIN). (Not applicable if the Offeror is required to provide this information to the SAM database to be eligible for award.)
(1) All Offerors must submit the information required in paragraphs (b)(2) through (b)(4) of this provision.
(2) Taxpayer Identification Number (TIN). __ TIN: ________________________________. __ TIN has been applied for.
__ TIN is not required because:
__ Offeror is a nonresident alien, foreign corporation, or foreign partnership that does not have income effectively connected with the conduct of a trade or business in the United States and does not have an office or place of business or a fiscal paying agent in the United States;
__ Offeror is an agency or instrumentality of a foreign government; __ Offeror is an agency or instrumentality of the Federal Government. (3) Type of organization.
__ Sole proprietorship; __ Partnership;
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__ Corporate entity (not tax-exempt); __ Corporate entity (tax-exempt);
__ Government entity (Federal, State, or local); __ Foreign government;
__ International organization per 26 CFR 1.6049-4; __ Other ________________________________.
(4) Common parent.
__ Offeror is not owned or controlled by a common parent;
__ Name of common parent: ________________________________.
(c) Prohibition Against Obtaining Source Selection Information or Contractor Bid or Proposal Information
(1) Definitions. As used in this provision:
“Contractor bid or proposal information” means any of the following information submitted to USAC as part of or in connection with a bid or proposal to enter into a USAC procurement contract, if that information has not been previously made available to the public or disclosed publicly:
(A)Cost or pricing data (as defined in FAR § 2.101). (B)Indirect costs and direct labor rates.
(C)Proprietary information about manufacturing processes, operations, or techniques marked by the contractor in accordance with applicable law or regulation. (D)Information marked by the contractor as “contractor bid or proposal information”
in accordance with applicable law or regulation.
(E)Information marked by the contractor as confidential, provided such information meets the definition of Confidential Information in Attachment 3, section 26(a). “Source selection information” means any of the following information that is prepared for use by USAC for the purpose of evaluating a bid or proposal to enter into a USAC procurement contract, if that information has not been previously made available to the public or disclosed publicly:
(A)Bid prices submitted in response to a USAC invitation for bids, or lists of those bid prices before bid opening.
(B)Proposed costs or prices submitted in response to a USAC solicitation, or lists of those proposed costs or prices.
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(C)Source selection plans. (D)Technical evaluation plans.
(E)Technical evaluations of proposals. (F)Cost or price evaluations of proposals. (G)Competitive range determinations.
(H)Rankings of bids, proposals, or competitors.
(I) Reports and evaluations of source selection panels, boards, or advisory councils. (J) Other information marked as “Source Selection Information”
(2) Representation. The Offeror represents, by submission of this offer, that it has not knowingly obtained, and will not knowingly obtain, contractor bid or proposal
information or source selection information before the award of a USAC procurement to which the information relates.
(d) Prohibition Against Contractor Gratuities to USAC Personnel The Offeror represents, by submission of this offer that it has not:
i. Offered or given a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of USAC; and
ii. Intended, by the gratuity, to obtain a contract or favorable treatment under a contract.
(e) Payments to Influence USAC Transactions
By submission of its quote, the Offeror certifies to the best of its knowledge and belief that no Federal appropriated funds (including USF funds) have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of USAC or the Federal
Communications Commission, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress on his or her behalf in connection with the award of any resultant contract.
(f) Certificate of Independent Price Determination
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i. The prices proposed have been arrived at independently, without consultation,
communication, or agreement, for the purpose of restricting competition, as to any matter relating to the prices with any other Offeror or with any competitor;
ii. Unless otherwise required by law, the prices proposed have not been and will not be knowingly disclosed by the Offeror before award of a contract, directly or indirectly to any other Offeror or to any competitor; and
iii. No attempt has been made or will be made by the Offeror to induce any other person or firm to submit or not submit a proposal for the purpose of restricting competition.
(g) Anti-Kickback Certification
The Offeror by signing this proposal hereby certifies that Offeror has not: solicited, accepted, or attempted to accept any kickback from any subcontractor(s) included in its proposal; or included, directly or indirectly, the amount of any kickback in any prices stated in its pricing proposal. For purposes of this representation, “kickback” means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to Offeror, or any Offeror employee, subcontractor, or subcontractor employee, for the purpose of improperly obtaining or rewarding favorable treatment in connection with a contract awarded by USAC or in connection with a Subcontract relating to a contract awarded by USAC.
