This Order is a subcontract for commercial items and/or ...
This Addendum No. EB-CF-11-C Comm Add Rev 1 (Jan 2019) (this “Addendum”) supplements Electric Boat Corporation (“EB”) commercial subcontract terms and conditions no. EB-1 (Commercial) (“EB-1”) of which this Addendum is a part. In the event of conflict between this Addendum and EB-1, the terms and conditions of this Addendum shall prevail. Any reference to “Order” or “Purchase Order” herein shall mean EB’s purchase order, subcontract and/or letter subcontract which reference this Addendum and EB-1.
This Electric Boat (EB) Purchase Order is a subcontract for commercial items and/or services (as defined in the Federal Acquisition Regulations (“FAR”) (FAR 52.202-1, Definitions)) under a specific Government prime contract that invokes FAR 52.244-6 (Jun 2010) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.244-7000 (Aug 2009).
FAR and DFARS clauses may be viewed on-line at the following web sites:
For FAR:
For DFARS:
In addition to the definitions contained in EB-1, which shall retain the same meanings in this Addendum as such meanings are set forth in EB-1, the following list of words shall have the following meanings under this Addendum and in the FAR and DFARS clauses referenced herein:
“Commercial item” means commercial item as defined in FAR subpart 2.101 on the date of this RFQ/RFP or the date of award of this order, whichever is later; and
“Commercially available off-the-shelf (COTS) item” means a COTS item as defined in FAR subpart 2.101 on the date of this RFQ/RFP or the date of award of this order, whichever is later; and
“Contract” shall mean this “Purchase Order”; and
“Contracting Officer” shall mean “Buyer; Electric Boat”; and
“Contractor” shall mean “Seller” as defined in EB-1; and
“Government” shall mean the “U.S. Government” or “EB”;
“Subcontracts” shall mean “Seller’s lower-tier subcontracts” (Note: “Subcontract” includes a transfer of commercial items between divisions, subsidiaries, or affiliates of the Contractor or subcontractor at any tier.);
“Subcontractor(s)” shall mean Seller’s lower-tier subcontractor(s),
when the words can be so reasonably interpreted, and it is not reasonably obvious that, or the context does not indicate that, the words refer to Buyer’s prime contract, or the Buyer, the Buyer’s Contracting Officer, the Government, or the Seller themselves.
FAR 52.211-15, DEFENSE PRIORITY AND ALLOCATION REQUIREMENTS (APR 2008)
This is a rated order certified for national defense, emergency preparedness, and energy program use, and the Contractor shall follow all the requirements of the Defense Priorities and Allocations System regulation (15 CFR 700).
DPAS Rating: DO-A3
Section I:
101. INCORPORATION OF APPLICABLE CLAUSES, PROVISIONS, AND OTHER REQUIREMENTS
The Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) clauses referenced herein are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable, including any notes or other language following the clause citation, to this Order.
The Contracts Disputes Act shall have no application to this Order. Any reference to a Disputes clause shall mean the disputes clause applicable to this Order as provided in EB-1.
102. AMENDMENTS REQUIRED BY PRIME OR HIGHER-TIER CONTRACT AND/OR CHANGES OF LAW, RULES, AND/OR REGULATIONS
The Seller agrees that upon the Buyer’s request, it will negotiate in good faith with the Buyer relative to amendments or supplements to this Order to incorporate additional provisions herein or to change provisions hereof, as the Buyer may reasonably deem necessary in order to comply with the provisions/clauses/requirements of the applicable prime or higher-tier contract or with the provisions of amendments to such prime or higher-tier contract.
Seller also agrees that it shall do the same if the Buyer determines that changes are necessary as a result of a change to or modification of any law(s), rule(s), and/or regulation(s).
If the Seller feels that such change(s) in clauses causes an increase or decrease in the cost of, or time required for, performance of any part of the work under this Order, the Seller shall assert its right to equitable adjustment in accordance with the appropriate changes and/or equitable adjustment clauses in EB-1.
Section II:
The Seller shall include the terms of the following clauses, as applicable, in subcontracts for commercial items awarded at any tier under this subcontract (Note: This requirement does not limit the applicability of any other clauses, terms, and/or conditions of this Order.):
As required by FAR 52.244-6 (Jun 2010) and DFARS 252.244-7000 (Aug 2009) identified below, the following apply:
(1) To the maximum extent practicable, Seller shall incorporate, and require its subcontractors at all tiers to incorporate, commercial items or non-developmental items as components of items to be supplied under this purchase order; and
(2) The following Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) mandatory flow down clauses are incorporated by reference into this Order and the terms and conditions applicable thereto with the full force and effect as if invoked in full text.
201. FAR 52.244-6, Subcontracts for Commercial Items (Jun 2010)
202. FAR 52.203-13, Contractor Code of Business Ethics and Conduct (Apr 2010) (Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)) (Applies if the subcontract exceeds $5,000,000 and has a performance period of more than 120 days.)
203. FAR 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (Jun 2010)
204. FAR 52.219-8, Utilization of Small Business Concerns (May 2004) (15 USC 637(d)(2) and (3)) Applies if this purchase order offers further subcontracting opportunities. If this purchase order (except if Seller is a small business concern) exceeds $550,000 ($1,000,000 for construction of any public facility), the Seller must include 52.219-8 in its lower-tier subcontracts that offer subcontracting opportunities.
205. FAR 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246) (See Note 1.)
206. FAR 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Sep 2006) (38 U.S.C. 4212(a)) (See Note 1.)
207. FAR 52.222-36, Affirmative Action for Workers with Disabilities (Jun 1998) (29 U.S.C. 793) (See Note 1.)
208. FAR 52.222-50, Combating Trafficking in Persons (Feb-09)
209. FAR 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx 1241 and 10 U.S.C. 2631) (flow down required in accordance with paragraph (d) of FAR clause 52.247-64).
210. DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting (OCT 2016)
211. DFARS 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts) (Aug 2009)
212. DFARS 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals (Jul 2009) (Applies, less paragraph (d), in all subcontracts, at any tier, for articles containing “specialty metals”.)
213. DFARS 252.236-7013, Requirements for the Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers (Jan 2009)
214. DFARS 252.246-7003, Notification of Potential Safety Issues (JAN 2007) (Refer to clause 307 herein for clause in full text.)
215. DFARS 252.247-7023, Transportation of Supplies by Sea (10 U.S.C. 2631) (May 2002)
(a) This clause, including paragraph (h), applies if this purchase order exceeds the simplified acquisition threshold specified in FAR Part 2; or
(b) This clause, paragraphs (a) through (e) and paragraph (h), applies if this purchase order is at or below the simplified acquisition threshold specified in FAR Part 2.
216. DFARS 252.247-7024, Notification of Transportation of Supplies by Sea (10 U.S.C. 2631) (Mar 2000)
(3) The Contractor shall include the terms of this Section II, including this paragraph (3), suitably modified to reflect the relationship of the Parties, in its lower tier subcontracts awarded under this purchase order and shall likewise include clauses from other sections, when required.
Note 1: Clauses above referring to this Note 1 do not apply for that portion of work under this Purchase Order or any subcontract hereunder that is performed outside the United States by employees who were not recruited within the United States.
Section III:
In addition to the requirements specified in Section II above, the following additional clauses 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, and 314 apply:
301. FAR 52.203-11, CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (SEPT 2007) (MODIFIED)
(Applies if this order exceeds or is expected to exceed $100,000.)
If this order exceeds or is expected to exceed $100,000, Seller (“offeror”) makes the following certification and disclosure and agrees to certify and disclose accordingly:
(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 the FAR clause of this solicitation entitled “Limitation on Payments to Influence Certain Federal Transactions” (52.203-12).
(b) Prohibition. The prohibition and exceptions contained in the FAR clause of this solicitation entitled “Limitation on Payments to Influence Certain Federal Transactions” (52.203-12) are hereby incorporated by reference in this provision.
(c) Certification. The offeror or Seller, by signing its offer or accepting this Purchase Order, 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 this solicitation; the awarding of this purchase order or Buyer’s prime 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 the Buyer’s Contracting Officer via Buyer, 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.
(f) Seller shall include the language of this certification in all subcontract awards at any tier and require that all recipients of subcontract awards in excess of $100,000 shall certify and disclose accordingly.
302. FAR 52.203-12, LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (SEPT2007)
(Applies if this order exceeds $100,000. When this clause applies, FAR 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions, also applies and Seller shall certify and disclose accordingly.)
Incorporated into this order by reference.
303. FRAUD OR FALSIFICATION
(Seller shall include all provisions of the following text including this sentence in all lower-tier subcontracts under this Purchase Order.)
This Purchase Order is a subcontract or lower-tier subcontract under a Government prime contract. As such, activities thereunder are within the jurisdiction of the U.S. Government. Any knowing and willful act to falsify, conceal, or alter a material fact, or any false, fraudulent or fictitious statement or representation in connection with the performance of work under this purchase order may be punishable in accordance with applicable Federal statutes.
Seller shall include the following statement preprinted on each Certificate of Conformance initiated by the Seller and provided to the Buyer in connection with this purchase order:
“NOTE: The recording of false, fictitious or fraudulent statements or entries on this document may be punishable as a felony under Federal Statute.”
Federal Law (18 USC 1001) provides, in part, as follows:
“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully –
(1) falsifies, conceals or covers up by any trick, scheme, or device, a material fact;
(2) makes any materially false, fictitious or fraudulent statements or representations; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry, shall be fined under this title or imprisoned not more than 5 years, or if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. …”
Seller agrees that all employees or other persons engaged in or who will be engaged in the performance of work under this Purchase Order, will be, if they have not been previously, informed in writing of the above language and that there is a risk of Federal criminal penalties associated with any knowing and willful falsification, concealment, or misrepresentation in connection with work performed under Government contracts and subcontracts such as this Purchase Order.
Seller will make employees aware of the above prior to them commencing work under this purchase order.
Any inability or unwillingness of a lower-tier supplier to comply with this provision should be documented in writing and submitted to the Purchaser.
304. COMPLIANCE WITH THE BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM
(All Purchase Order Line Items to be delivered must satisfy the requirements of DFARS 252.225-7001 specified below. Any item delivered or to be delivered that does not meet the requirements shall be promptly identified to the Buyer in writing for a determination of acceptability of the item(s).)
DFARS 252.225-7001, BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (JAN 2009)
(a) Definitions. As used in this clause(
(1) “Commercially available off-the-shelf (COTS) item”—
(i) Means any item of supply (including construction material) that is—
(A) A commercial item (as defined in paragraph (1) of the definition of “commercial item” in section 2.101 of the Federal Acquisition Regulation);
(B) Sold in substantial quantities in the commercial marketplace; and
(C) 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
(ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural products and petroleum products.
(2) “Component” means an article, material, or supply incorporated directly into an end product.
(3) “Domestic end product” means—
(i) An unmanufactured end product that has been mined or produced in the United States; or
(ii) An end product manufactured in the United States if—
(A) The cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic. A component is considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the end product in which it is incorporated is manufactured in the United States and the component is of a class or kind for which the Government has determined that—
(1) Sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States; or
(2) It is inconsistent with the public interest to apply the restrictions of the Buy American Act; or
(B) The end product is a COTS item.
(4) “End product” means those articles, materials, and supplies to be acquired under this contract for public use.
(5) “Foreign end product” means an end product other than a domestic end product.
(6) “Qualifying country” means any country set forth in subsection 225.872-1 of the Defense Federal Acquisition Regulation Supplement (DFARS).
(7) “Qualifying country component” means a component mined, produced, or manufactured in a qualifying country.
(8) “Qualifying country end product” means—
(i) An unmanufactured end product mined or produced in a qualifying country; or
(ii) An end product manufactured in a qualifying country if the cost of the following types of components exceeds 50 percent of the cost of all its components:
(A) Components mined, produced, or manufactured in a qualifying country.
(B) Components mined, produced, or manufactured in the United States.
(C) Components of foreign origin of a class or kind for which the Government has determined that sufficient and reasonably available commercial quantities of a satisfactory quality are not mined, produced, or manufactured in the United States.
(9) “United States” means the 50 States, the District of Columbia, and outlying areas.
(b) This clause implements the Buy American Act (41 U.S.C. Section 10a-d). In accordance with 41 U.S.C. 431, the component test of the Buy American Act is waived for an end product that is a COTS item (see section 12.505(a)(1) of the Federal Acquisition Regulation). Unless otherwise specified, this clause applies to all line items in the contract.
(c) The Contractor shall deliver only domestic end products unless, in its offer, it specified delivery of other end products in the Buy American Act(Balance of Payments Program Certificate provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product, the Contractor shall deliver a qualifying country end product or, at the Contractor’s option, a domestic end product.
(d) The contract price does not include duty for end products or components for which the Contractor will claim duty- free entry.
305. COMMON STANDARD FOR CONDUCTING A BACKGROUND RECORDS CHECK OF NON-GENERAL DYNAMICS EMPLOYEES
(This clause applies only if any of the conditions of applicability stated in the clause are met.)
Policy
General Dynamics’ policy is to make effective use of background checks and related screening procedures to protect its employees, assets, facilities, and computer networks. In order to determine suitability to access Company facilities or computer networks, covered non-employees are subject to background checks and related screening procedures in accordance with General Dynamics Policy.
Scope of Policy
1. Covered Non-Employees. The term “Covered Non-Employees” refers to all individuals who are not actively employed on the payroll of Electric Boat and includes consultants, temporary employees, visitors, and individuals employed by contractors, subcontractors, labor suppliers, personnel agencies, vendors, or any other third party, but does not include:
(a) Any individual who requires access to an Electric Boat facility or network to perform his/her duties as a civilian employee of the U. S. Government or as an officer or enlisted member of the U. S. Military; or
(b) Any employee of a contractor or subcontractor on a non-Electric Boat contract with the U. S. Government under which access to a Company facility is required in order for the contractor or subcontractor to perform the contract.
Criminal Records Checks
1. Applicability. A Federal and State criminal records check satisfying the criteria listed below must be conducted for all covered non-employees before they are allowed to have:
(a) Unescorted access to operating areas of Company facilities on a regular basis. (A “Regular Basis” is defined as a period of more than 30 days in any 365-day period.);
(b) Access to one or more of the Company’s computer networks; or
(c) Access to any other areas or information determined by the Company Security Department to require a criminal records check.
(d) Criminal history checks shall be submitted to Electric Boat Security for review and adjudication.
2. Report Requirement. A search of Federal and State criminal records (by county if statewide data is unavailable) must be conducted for each address at which the Covered Non-Employee resided or was employed at any time in the past seven (7) years. In order to ensure that all the proper jurisdictions are checked, a preliminary address check should be run (using the social security number or immigration registration number) prior to the criminal records check. If additional or different addresses are found, then criminal records checks should be done for the appropriate states/counties for the relevant time period.
3. Exception: Covered Non-Employees are excused from the criminal records check requirements as follows:
(a) Security Clearances. A criminal records check is not required for a Covered Non-Employee who holds an active U. S. Government security clearance at or above the Secret level, provided that the affected Electric Boat Business Unit’s Security Department will reexamine the cleared status of such individual at regular intervals.
(b) Certification from Trusted Contractor. A criminal records check is not required for a Covered Non-Employee employed by a Trusted Contractor that certifies to Electric Boat in writing that a federal and state criminal background check (by county if a statewide search is unavailable) for all addresses at which the subject individual either resided or worked in the preceding seven (7) years has not revealed any derogatory information about him/her (other than minor traffic offenses). Where derogatory information is found, access will not be permitted unless the responsible Electric Boat Security Department (in conjunction with Human Resources, the Legal Department or other appropriate personnel) favorably adjudicates the subject individual’s access after conducting a review of the report containing the derogatory information (with the subject’s consent and authorization).
(c) Bonded Personnel. The Electric Boat Security Director may waive the requirement of a criminal records check where the Covered Non-Employee’s employer has bonded the Non-Employee.
Credit History Checks
1. Applicability. Reports on consumer credit histories from a national credit bureau are required for Covered Non-Employees who:
(a) Have some responsibility for administration of the Company’s computer networks;
(b) Have access to non-public data regarding the Company’s financial performance; or
(c) Perform a function determined by the Security Director to require consumer credit history in order to protect the Company and its assets.
(d) Credit history checks shall be submitted to Electric Boat Security for review and adjudication.
2. Report Requirement. A search of credit history check must be conducted for each address at which the Covered Non-Employee resided or was employed at any time in the past seven (7) years. In order to ensure that all the proper jurisdictions are checked, a preliminary address check should be run (using the social security number or immigration registration number) prior to the credit history check. If additional or different addresses are found, then credit history reports should be done for the appropriate states/counties for the relevant time period.
3. Exceptions: Covered Non-Employees are excused from the credit history check requirements as follows:
(a) Security Clearances. A credit history check is not required for a Covered Non-Employee who holds an active U. S. Government security clearance at or above the Secret level, provided that the affected Business Unit’s Security Department will reexamine the cleared status of such individual at regular intervals.
(b) Certification from Trusted Contractor. A credit history check is not required for a Covered Non- Employee employed by a Trusted Contractor that certifies in writing that a timely credit check has been performed and has not disclosed any derogatory information. Where derogatory information is found, access will not be permitted unless the responsible Security Department (in conjunction with Human Resources, the Legal Department or other appropriate personnel) favorably adjudicates the subject individual’s access after conducting a review of the report containing the derogatory information (with the subject’s consent and authorization).
(c) Bonded Personnel. The Electric Boat Security Director may waive the requirement of a credit history check where the Covered Non-Employee’s employer has bonded the Non-Employee.
Review Process as Follows:
Step I – Background Checks
The Contractor will conduct criminal records checks and/or credit history checks for “Covered Non-Employees” as set forth herein. Such information will be provided to an individual designated by Electric Boat.
Step II – Adjudication
Adjudication: An adjudication team from Electric Boat will then deliberate and make decisions regarding derogatory information received through the background check process.
Reporting Procedure: Trusted Contractors will provide a screen print of the background checks via e-mail. The following address is to be used exclusively when reporting background information: ebbackgroundcheck@.
Any questions regarding background check requirements and the process for becoming a “Trusted Contractor” should be referred to Electric Boat Security at 860-433-1552 or may be submitted by e-mail to ebbackgroundcheck@.
306. RESERVED
307. DFARS 252.246-7003, NOTIFICATION OF POTENTIAL SAFETY ISSUES (JAN 2007)
(Applicability: (a) This clause applies to this subcontract and to all lower-tier subcontracts at any tier meeting the requirements described in the clause below. Buyer will identify parts identified as “critical safety items”, if any, upon Seller’s request. Seller is responsible for providing the notifications required below to EB in writing for itself and for its lower-tier subcontractors at any tier.)
Incorporated into this order by reference.
308. DFARS 252.237-7023, CONTINUATION OF MISSION ESSENTIAL FUNCTIONS (MAR 2010)
(This clause applies if it is specifically identified as applicable in the solicitation, fax award, subcontract, letter contract, or purchase order. When applicable, it will apply to those services that are to be provided by or on behalf of the Seller and/or its subcontractors in accordance with the requirements of the clause.)
Incorporated into this order by reference.
309. FAR 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS (DEC 2010)
(Applies in every subcontract that exceeds $10,000 and will be performed wholly or partially in the United States, unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order 13496 of January 30, 2009, so that such provisions will be binding upon each subcontractor.)
Incorporated into this order by reference.
The Seller shall not procure supplies or services in a way designed to avoid the applicability of Executive Order 13496 or this clause. The Seller shall take such action with respect to any such subcontract as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for noncompliance.
310. FAR 52.204-9, PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (SEP 2007)
(This clause applies to this subcontract when the subcontractor (“Contractor” as used below refers to the Seller/subcontractor) is required to have routine access to a Federally-controlled facility and/or routine access to a Federally-controlled information system. Further flow down may be required.)
Incorporated into this order by reference.
311. BUSINESS ETHICS AND CONDUCT
(Refer also to the clauses herein entitled “Fraud and Falsification” and “FAR 52.203-13, Contractor Code of Business Ethics and Conduct”.)
The Purchaser has implemented a comprehensive Business Ethics and Conduct Program which is summarized in the General Dynamics Handbook entitled “General Dynamics Standards of Business Ethics and Conduct” which is available for viewing online at EB’s Web Site: (click on “Suppliers”, click on “Doing Business with EB”.)
The Seller shall be familiar with this handbook and abide by its principles; in particular, Seller shall not offer any gift or gratuity to Purchaser's employees, their families, customers or their representatives in a manner inconsistent with the guidance provided in this handbook.
Seller agrees that it will adhere to similar standards of ethical behavior including developing a suitable system for identifying and reporting possible violations and agrees that it will invoke similar requirements on its lower-tier subcontractors.
Furthermore, any falsification, concealment, or alteration of any material fact, or any false, fraudulent or fictitious statement or representation in connection with the work under a Purchase Order within the jurisdiction of the Federal Government is not only prohibited by the Purchaser's policy, but may also be punishable under Federal Law. You may also refer to EB’s annual holiday letter to active suppliers which reinforces our policies.
312. RESERVED
313. DFARS 252.204-7008, REQUIREMENTS FOR CONTRACTS INVOLVING EXPORT-CONTROLLED ITEMS (APR 2010) (Modified to read as shown below.)
(a) Definition. “Export-controlled items,” as used in this clause, means items subject to the U.S. Export Administration Regulations (EAR) (15 CFR Parts 730-774) or the U.S. International Traffic in Arms Regulations (22 CFR Parts 120-130).
The term includes:
(1) “Defense items,” defined in the U.S. Arms Export Control Act, 22 U.S.C. 2778(j)(4)(A), as defense articles, defense services, and related technical data, and further defined in the ITAR, 22 CFR Part 120.
(2) “Items,” defined in the EAR as “commodities”, “software”, and “technology,” terms that are also defined in the EAR, 15 CFR 772.1.
(b) The Seller shall comply with all applicable laws and regulations regarding export-controlled items, including, but not limited to, the requirement for contractors and subcontractors to register with the Department of State in accordance with the ITAR. The Seller shall consult with the Department of State regarding any questions relating to compliance with the ITAR and with the Department of Commerce regarding any questions relating to compliance with the EAR.
(c) The Seller’s responsibility to comply with all applicable laws and regulations regarding export-controlled items exists independent of, and is not established or limited by, the information provided by this clause.
(d) Nothing in the terms of this subcontract adds, changes, supersedes, or waives any of the requirements of applicable Federal laws, Executive orders, and regulations, including but not limited to—
(1) The Export Administration Act of 1979, as amended (50 U.S.C. App. 2401, et seq.);
(2) The Arms Export Control Act of 1976 (22 U.S.C. 2751, et seq.);
(3) The International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.);
(4) The Export Administration Regulations (15 CFR Parts 730-774);
(5) The International Traffic in Arms Regulations (22 CFR Parts 120-130);
(6) Executive Order 13222, as extended.
(e) The Seller shall include the substance of this clause, including this paragraph (e), in all subcontracts.
314. COUNTERFEIT PARTS/COUNTERFEIT WORK PROHIBITION
(a) Definitions and Acronyms – For purposes of performance and this clause, as used hereunder:
(i) “Authentic” shall mean: (A) genuine; (B) from the legitimate source claimed or implied by the marking and design of the product offered; and (C) manufactured by, or at the behest and to the standards of, the manufacturer that has lawfully applied its name and trademark for that model/version of the material.
(ii) “Counterfeit Parts” shall mean a part, component, module, or assembly whose origin, material, source of manufacture, performance, or characteristics are misrepresented. This term includes, but is not limited to, (A) parts that have been (re)marked to disguise them or falsely represent the identity of the manufacturer, (B) defective parts and/or surplus material scrapped by the original manufacturer, and (C) previously used parts pulled or reclaimed and provided as “new”.
(iii) “Counterfeit Work” - For purposes of this clause, Work consists of those parts delivered under this contract that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). “Counterfeit Work” means Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
(iv) “Independent Distributor” shall mean a person, business, or firm that is neither authorized nor franchised by an Original Component Manufacturer (“OCM”) to sell or distribute the OCM’s products but which purports to sell, broker, and/or distribute such OCM products. Independent Distributors are also referred to as unfranchised distributors, unauthorized distributors, and/or brokers.
(v) “OCMs” means Original Component Manufacturers.
(vi) “OEMs” means Original Equipment Manufacturers.
(b) New and Authentic - The Seller represents and warrants that only new and authentic components, subcomponents, parts, material and supplies are procured, used, incorporated into, and/or delivered in performance of this order. No other material, part, or component other than a new and authentic part is to be used unless approved in advance in writing by EB.
Except, used, reconditioned, or remanufactured supplies, or unused former Government surplus property, that is authentic may be used in this subcontract performance if the Seller has proposed in writing the use of such supplies, and then only if EB and EB’s Contracting Officer or higher-tier contractor has authorized their use in writing.
SELLER must present complete and compelling support for its request and include in its request all actions to ensure the parts/components thus procured are legitimate parts. EB’s approval of Seller’s request(s) does not relieve Seller’s responsibility to comply with all order requirements, including the representations and warranties in this clause and stated elsewhere.
(c) Prohibition on Counterfeits; Purchase from OEMs/OCMs - Seller agrees and shall ensure that Counterfeit Parts or Counterfeit Work are not delivered to or incorporated into Electric Boat (“EB”) or to EB’s designee and that the Work contains no Counterfeit Parts or Counterfeit Work.
The intentional or unintentional use, incorporation, or delivery of Counterfeit Parts or Counterfeit Work is strictly PROHIBITED.
This includes it being provided either as an end item deliverable or as a component or subcomponent of an end item deliverable under this subcontract/purchase order/letter contract.
To further mitigate the possibility of the inadvertent use of Counterfeit Parts or Counterfeit Work, Seller shall only purchase authentic parts/components/products to be delivered or incorporated as Work to Buyer directly from the OCM/OEM, or through an OCM/OEM authorized distributor chain. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by Buyer.
Seller must make available to EB, at EB’s request, OEM/OCM documentation that authenticates traceability of the components to that applicable OEM/OCM.
(d) Traceability - The Seller shall maintain a system or method of item traceability that ensures tracking of the supply chain back to the manufacturer of all Electrical, Electronic, and Electromechanical (EEE) assemblies and subassemblies being delivered per this order.
(e) Conforming Material Requirement - Unless EB specifically agrees otherwise in writing (e.g., P.O. supplement; VIR disposition; etc.), the Seller shall tender to EB (or to EB’s designee) for acceptance only material, parts and supplies that have been inspected in accordance with the inspection system and have been found by the Seller to conform with all of the requirements of this subcontract/purchase order.
Counterfeit Parts and Counterfeit Work are NONCONFORMING regardless of their otherwise acceptable condition, quality, performance, functionality, and/or suitability for purpose.
(f) Termination - Providing Counterfeit Parts or Counterfeit Work shall constitute a material breach of this contract and Buyer may, at Buyer’s sole option, terminate this order for the default of the Seller.
(g) Replacement - In the event that Work delivered under this order constitutes or includes Counterfeit Parts or Counterfeit Work, Seller shall, at its expense, promptly replace such Counterfeit Work or Counterfeit Parts with genuine Work or genuine Parts conforming to the requirements of this order.
Notwithstanding any other provision in this Contract, Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation the Buyer’s costs of removing Counterfeit Work, of reinserting replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged.
(h) Product Impoundment and Reporting – Counterfeit Parts or Counterfeit Work identified as such and items suspected of being counterfeit shall be impounded pending reporting to the appropriate authorities and final disposition of the items. The Seller shall be liable for all costs relating to impoundment, removal, and replacement. Electric Boat may turn such items over to the appropriate authorities (e.g., without limitation, Office of Inspector General, Defense Criminal Investigative Service, Federal Bureau of Investigation, etc.) for investigation and reserves the right to withhold payment for the items pending the results of the investigation and any proceedings related to the matter. Notwithstanding any other provision of this order, the Buyer shall be under no obligation to pay for any of such items determined to be counterfeit or unacceptable.
(i) Notification Requirement –
(i) Seller shall immediately notify EB in writing with the pertinent facts if Seller becomes aware or suspects that it has furnished Counterfeit Parts or Counterfeit Work. When requested by EB Seller shall provide OCM/OEM documentation that authenticates traceability of the affected items to the applicable OCM/OEM.
(ii) Seller shall immediately notify EB in writing if it cannot purchase or acquire authentic components, subcomponents, parts, material and supplies directly from the OCM/OEM or through an OCM/OEM authorized distributor chain.
(iii) Seller shall also immediately notify EB in writing if it or its subcontractors at any tier cannot maintain tracking of the supply chain back to the OCM/OEM.
(j) Rights and Remedies - This clause applies in addition to any quality provision, specification, statement of work or other provision included in this order addressing the authenticity of Work. To the extent such provisions conflict with this clause, this clause prevails. The remedies contained in this clause are in addition to any other rights and remedies the Buyer may have at law, equity or under other provisions hereunder.
(k) Survivability – This clause shall survive the completion, expiration, or termination of this order.
(l) Penalties – This purchase order and activities hereunder are within the jurisdiction of the United States Government. Any knowing and willful act to falsify, conceal or alter a material fact, or any false, fraudulent or fictitious statement or representation in connection with the performance of work under this purchase order may be punishable in accordance with applicable Federal statutes.
(m) Indemnification - Seller agrees to indemnify EB and to hold EB harmless to the full extent of any loss, damage, or expense (including reasonable attorney’s fees), including, but not limited to, any amount withheld from EB resulting from a violation of these requirements by Seller or its subcontractors at any tier. Notwithstanding anything to the contrary stated or implied elsewhere, Seller agrees that this indemnification is NOT subject to any limitation of Seller’s liability.
(n) Flow Down Requirement - Seller shall flow the requirements of this clause or substantially equivalent requirements to its subcontractors and suppliers at any tier for the performance of this contract.
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