This Order is a subcontract for commercial items and/or ...
This Addendum No. EB-VF4-C Comm Add Rev 3 (Oct 2018) (this “Addendum”) supplements the revision of Electric Boat Corporation (“EB”) commercial subcontract terms and conditions No. “EB-1 (Commercial)” (“EB-1”) to which it is herein incorporated and as referenced in the purchase order, if awarded, or if the purchase order has not yet been awarded, the solicitation. If no revision has been specified, the applicable revision of EB-1 (Commercial) shall be the latest revision in effect on the date of solicitation or the date of award, whichever is earlier, unless the revision has been subsequently modified by EB in writing.
In the event of conflict between the terms and conditions of this Addendum and those of 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 to 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 (Dec 2010) and the Defense Federal Acquisition Regulation Supplement (“DFARS”) 252.244-7000 (Jun 2012).
FAR and DFARS clauses may be viewed on-line at the following websites:
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 subcontract.
The Contracts Disputes Act shall have no application to this subcontract/letter contract/purchase order. Any reference to a Disputes clause shall mean the disputes clause of this subcontract/letter contract/purchase order.
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.
103. IMPORTER OF RECORD; ANTI-DUMPING WARRANTY; DUTY-FREE ENTRY (This clause applies if this Purchase Order involves in any manner an import into the customs territory of the United States.)
a. Importer of Record - All imports for which BUYER has identified that it will be the importer of record must be coordinated with the BUYER and with BUYER’s Customs Broker prior to shipment. Failure to comply may result in the shipment being rejected or refused and returned to SELLER at SELLER’s expense.
i. SELLER is required to provide a Pro forma invoice to BUYER.
ii. BUYER approval of the Pro forma invoice is required prior to shipment.
b.Anti-Dumping Warranty - If elsewhere in this purchase order, EB is indicated as the “importer of record”, SELLER agrees and warrants that all sales hereunder are or will be made at not less than fair value under the United States Anti-Dumping Laws (19 U.S.C. 1673 et seq.).
c.Duty-Free Entry (DFE) – SELLER is to coordinate all shipments under this order with the EB BUYER. If a prospective import into the United States is eligible for duty-free entry (DFE) due to its classification in the Harmonized Tariff Schedule of the U.S. (HTSUS) or due to a Trade Agreement, SELLER is to take necessary actions to allow BUYER to obtain DFE. If not, SELLER is to refer DFARS 252.225-7013, Duty-Free Entry, and is to determine with the BUYER whether the prospective import into the U.S. is eligible for DFE under the DFARS clause(s) and take necessary actions to allow BUYER to obtain DFE. Special marking, labeling, and packaging requirements apply.
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 (Dec 2010) and DFARS 252.244-7000 (Jun 2012) 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 (Dec 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 (Jan 2011) (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 $650,000 ($1,500,000 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.)
FAR 52.222-35, Equal Opportunity for Veterans (Sep 2010) (38 U.S.C. 4212(a)) (See Note 1.)
206. FAR 52.222-36, Affirmative Action for Workers with Disabilities (Oct 2010) (29 U.S.C. 793) (See Note 1.)
207. FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496), if flow down is required in accordance with paragraph (f) of FAR clause 52.222-40.
208. FAR 52.222-50, Combating Trafficking in Persons (Feb 2009)
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 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts) (Jun 2012)
211. DFARS 252.223-7008, Prohibition of Hexavalent Chromium (May 2011)
212. DFARS 252.225-7009, Restriction on the Acquisition of Certain Articles Containing Specialty Metals (10 U.S.C. 2533b) (Jun 2012) (Applies, less paragraph (d), in all subcontracts, at any tier, for articles containing “specialty metals”.)
213. DFARS 252.225-7039, Contractors Performing Private Security Functions (Jun 2012)
214. DFARS 252.227-7015, Technical Data-Commercial Items (Dec 2011), if applicable (see DFARS 227.7102-4(a))
215. DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data (Jun 2012), if applicable (see DFARS 227.7102-4(c))
216. DFARS 252.236-7013, Requirement for Competition Opportunity for American Steel Producers, Fabricators, and Manufacturers (Jan 2009)
217. DFARS 252.237-7010, Prohibition on Interrogation of Detainees by Contractor Personnel (Nov 2010)(Section 1038 of Pub.L. 111-84)
218. DFARS 252.237-7019, Training for Contractor Personnel Interacting with Detainees (Sep 2006)
219. DFARS 252.246-7003, Notification of Potential Safety Issues (Jan 2007) (Refer to clause 307 herein for clause in full text.)
220. 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.
221. DFARS 252.247-7024, Notification of Transportation of Supplies by Sea (10 U.S.C. 2631) (Mar 2000)
222. FAR 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Aug 2012)
(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 and 310 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 (OCT 2010)
(Applies if this order exceeds $150,000. 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. DFARS 252.225-7001, BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (Jun 2012)
(All Purchase Order Line Items to be delivered must satisfy the requirements of DFARS 252.225-7001. 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).)
Incorporated into this order by reference.
305. 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.
306. FAR 52.204-9, PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (JAN 2011)
(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.
307. 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.
308. DFARS 252.225-7013 Duty Free Entry-Basic (Jun 2012)
When a shipment is eligible for duty-free entry under this clause, SELLER is to request in writing duty-free entry eligibility via BUYER and to request that BUYER provide the information required by the clause to allow SELLER to comply. BUYER will, upon approval to disclose, provide SELLER with the information required. Special marking, labeling, and packaging apply. Further flow down may be required.
In addition, when this clause applies, SELLER is to include the BUYER's prime contract number on all shipping documents submitted to U.S. Customs for which duty-free entry is being claimed pursuant to this clause.
309. SUPPORT OF EB REPORTING REQUIREMENTS UNDER FAR 52.204-10, “REPORTING EXECUTIVE COMPENSATION AND FIRST-TIER SUBCONTRACT AWARDS” (Jul 2013)
(This clause applies if this solicitation or purchase order is, or is expected to be, ≥$25,000.)
Seller shall complete and submit EB Form 84-01-0751 (“Offeror Certifications and Representations”), including the section entitled “FAR 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards”, to EB in order to support the Buyer’s reporting requirements under FAR 52.204-10 pertaining to first-tier subcontractors.
Seller shall also provide an updated certification to Buyer whenever there is a change in the reported information during the period of the performance of this Purchase Order.
These Seller certifications form a part of this Purchase Order.
310. EXTENSION OF COMMERCIAL WARRANTY (NAVSEA) (Nov 1996) (Modified)
(This clause applies where an item to be provided is subject to a standard commercial warranty.)
The Seller shall extend to the Buyer the full coverage of any standard commercial warranty normally offered in a similar commercial sale, provided that such warranty is available at no additional cost to the Buyer, Buyer’s Customer and/or U.S. Government. The Seller shall provide a copy of the standard commercial warranty with the item(s) to be delivered. Notwithstanding any provisions herein to the contrary, these warranties shall inure to the benefit of Buyer’s successor in interest, Buyer’s Customer, and/or the U.S. Government.
311. WORK IN THE UNITED STATES
Unless advance Buyer written approval has been obtained, Seller shall perform all work in the United States and shall have all items to be delivered to Buyer manufactured in the United States. Components and subcomponents of such deliverables shall also be manufactured in the United States only, unless the components or subcomponents are (1) commercially available off-the-shelf (COTS) items as defined in FAR 2.101, and (2) are not restricted under U.S. Export Laws and Regulations, and (3) are not designed or modified for the Buyer or the Government of the United States. For purposes of this clause, “work” and “manufacture” are defined as: the process of converting or assembling raw materials, components, or parts into finished or partially finished goods that meet Seller’s or Buyer’s stated specifications or requirements.
Seller may submit to the Buyer a written request for Buyer approval to perform work outside the United States or to supply items manufactured outside the United States. The request must name all countries where work would be performed or items manufactured. If granted, each approval shall be limited to a specific original purchase order
or purchase order supplement and shall not constitute an approval for other purchase orders or purchase order supplements.
Seller shall exclude from its sources of supply any items manufactured in International Traffic in Arms Regulations (ITAR) 126.1 proscribed or embargoed countries, including but not limited to Belarus, Burma, China (PR), Cuba, Eritrea, Iran, North Korea, the Republic of the Sudan, Syria, and Venezuela. A current list of proscribed countries is available on the U.S. State Department Directorate of Defense Trade Controls website: .
The requirements of this clause are in addition to any other requirements in the terms and conditions of this order for Buyer approval to transmit technical data or equipment outside the United States.
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