NATIONAL TECHNOLOGY AND ENGINEERING SOLUTIONS OF SANDIA, LLC (NTESS)
SF 6432-El (12/2017)
SECTION II
STANDARD TERMS AND CONDITIONS FOR ALL COST-REIMBURSEMENT ORORDERING AGREEMENTS WITH EDUCATIONAL INSTITUTIONS
THE FOLLOWING CLAUSES APPLY TO THIS SUBCONTRACT AS INDICATED UNLESSSPECIFICALLY DELETED, OR EXCEPT TO THE EXTENT THEY ARE SPECIFICALLYSUPPLEMENTED OR AMENDED IN WRITING IN THE COVER PAGE OR SECTION I.(CTRL+CLICK ON A LINK BELOW TO ADVANCE DIRECTLY TO THAT SECTION)
ACCEPTANCE OF TERMS AND CONDITIONS (Ts&Cs)
ALLOWABLE COSTS
APPLICABLE LAW
ASSIGNMENT
COMPLIANCE WITH LAWS
SUBCONTRACTOR'S INFORMATION
CLAIM OF COSTS INCURRED
DEFINITIONS
DISCLOSING_USE_OF_FREE_LIBRE_AND_OPEN_SOURCE_SOFTWARE_(FLOSS)
DISPUTES
ESTIMATES OF COST AND LIMITATION OF OBLIGATION, IF APPLICABLE
ETHICAL CONDUCT
EXCESS FREIGHT CHARGES
EXCUSABLE DELAYS
EXPORT CONTROL
FREIGHT CHARGE
GOVERNMENT PROPERTY, MATERIAL, AND EQUIPMENT
INDEPENDENT SUBCONTRACTOR RELATIONSHIP
HANDLING_PROTECTION_AND_RELEASE_OF_INFORATION
OPERATIONAL SECURITY
ORDER OF PRECEDENCE
PAYMENTS
PERFORMANCE EVALUATION PROGRAM
PRICE-ANDERSON AMENDMENTS ACT (PAAA)
PRICING OF SUBCONTRACT MODIFICATIONS
QUALITY ASSURANCE PROGRAM
RECYCLED OR NEW MATERIALS
RELEASES VOID
REPORTS REQUIRED BY THIS SUBCONTRACT
RIGHTS IN DATA - GENERAL
RISK OF LOSS
NTESS PROVIDED INFORMATION
SOFTWARE_SERVICES_AND_INFORMATION_SYSTEMS_SECURITY_ASSURANCE
SUBCONTRACTS
SUSPECT/COUNTERFEIT ITEMS (S/CI)
PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION (PII)
TAXES
TRANSPORTATION
WRITTEN NOTICES
LICENSE FOR DATA FIRST PRODUCED IN THE PERFORMANCE OF THIS CONTRACT
APPLY TO SUBCONTRACTS OF ANY VALUE
APPLY TO SUBCONTRACTS EXCEEDING $2,500
APPLY TO SUBCONTRACTS EXCEEDING $3,000
APPLY TO SUBCONTRACTS EXCEEDING $3,500
APPLY TO SUBCONTRACTS EXCEEDING $10,000
APPLY TO SUBCONTRACTS EXCEEDING $15,000
APPLY TO SUBCONTRACTS EXCEEDING $30,000
APPLY TO SUBCONTRACTS EXCEEDING $100,000
APPLY TO SUBCONTRACTS EXCEEDING $150,000
APPLY TO SUBCONTRACTS EXCEEDING $500,000
APPLY TO SUBCONTRACTS EXCEEDING $700,000
APPLY TO SUBCONTRACTS EXCEEDING $750,000
APPLY TO SUBCONTRACTS EXCEEDING $5,000,000
APPLY TO ALL SUBCONTRACTS THAT MAY INVOLVE ACCESS TO CLASSIFIED INFORMATION
APPLY TO ALL SUBCONTRACTS WHERE ANY WORK WILL BE PERFORMED ON A GOVERNMENT SITE
APPLY TO SUBCONTRACTS TO BE PERFORMED ON A GOVERNMENT SITE WHENEVER THE WORK (1) COULD RESULT IN POTENTIAL EXPOSURE TO: (A) RADIOACTIVE MATERIALS; (B) BERYLLIUM; OR (C) ASBESTOS OR (2) INVOLVES A RISK ASSOCIATED WITH CHRONIC OR ACUTE EXPOSURE TO TOXIC CHEMICALS OR SUBSTANCES OR OTHER HAZARDOUS MATERIALS THAT CAN CAUSE ADVERSE HEALTH IMPACTS, IN ACCORDANCE WITH 10CFR PART 851
CITIZENSHIP STATUS
SUBCONTRACTOR USE OF GOVERNMENT-OWNED VEHICLES
ENVIRONMENTAL, SAFETY, AND HEALTH (ES&H) REQUIREMENTS
HAZARDOUS MATERIALS
PROTECTION OF GOVERNMENT PROPERTY
REQUIREMENTS FOR ACCESS TO GOVERNMENT SITES
VEHICLE INSURANCE
VEHICLE MARKINGS
VISITOR ACCESS TO GOVERNMENT SITES
ACCEPTANCE OF TERMS AND CONDITIONS (Ts&Cs)
Subcontractor, by signing thissubcontract and/or delivering item or services ordered under this subcontract, agrees to comply with all theTs&Cs and all specifications and other documents that this subcontract incorporated by reference orattachment. NTESS hereby objects to any Ts&Cs contained in any acknowledgment of this subcontractthat are different from or in addition to those mentioned in this document. Failure of NTESS orSubcontractor to enforce any of the provisions of this subcontract shall not be construed as evidence tointerpret the requirements of this subcontract, nor a waiver of any requirement, nor of the right of NTESSor Subcontractor to enforce each and every provision. All rights and obligations shall survive finalperformance of this subcontract.
ALLOWABLE COSTS
(a)Payment for allowable cost as hereinafter defined shallconstitute full and complete compensation for the performance of the work under this subcontract.
(b)"Allowable cost" of performing the work under this subcontract shall be the costs and expenses that areactually incurred by the Subcontractor, which are applicable and properly chargeable, either as directlyincident or as allocable through appropriate distribution or apportionment, to the performance of thesubcontract work in accordance with its terms, and are determined by the Subcontracting Professional (SP) to be allowable pursuant to this subcontract, including the additional provisions, ifany, contained elsewhere in this subcontract relating to Advance Understanding on Particular Cost Items,and pursuant to Federal Acquisition Regulation (FAR) Part 31 as supplemented by Department ofEnergy Acquisition Regulations (DEAR) Part 931 on the effective date of this subcontractand OMB Circular A21, subject to the following:
- With respect to billing for indirect cost,Subcontractor shall bill for indirect cost at rates as close as possible to costs being experienced duringsubcontract performance. Subcontractor understands that subcontract overruns, due to under recovered indirectcost, may not be reimbursed by NTESS; and, over recoveries of indirect cost shall be payable upondemand, at any time, by NTESS. Subcontractor may, with the SP's approval, bill at predeterminedoverhead and General and Administrative (G&A) rates applied to bases agreed upon by anygovernment agency, which are determined in accordance with FAR Part 31 as supplemented by theDEAR in effect on the effective date of this subcontract; provided, however, that the Subcontractor shalladjust the indirect billing to conform to actual cost within sixty (60) days or the Subcontractor's normalmonthly accounting cycle, whichever is earlier.
- In the absence of predetermined overhead rates asprovided for in subparagraph (1) above, if at any time prior to the final determination of costshereunder there exists a rate or rates established by any government agency, based on audit of actualcosts for the period of performance of the work hereunder or any substantial portion thereof, such rateor rates may, at the SP's option, be used (after adjustment by NTESS if deemed appropriate, toreflect the application of cost principles contained in this Allowable Costs Clause and the DEAR andFAR subparts referred to above) in determining allowable indirect costs hereunder.
- In the absenceof predetermined overhead rates as provided for in subparagraph (1) above and in the absence of arate or rates acceptable to NTESS as provided for in subparagraph (2) above, indirect cost shall bedetermined in accordance with FAR Part 31 as supplemented by DEAR Part 931 by a NTESS audit.
- No overtime premium costs, shift differential, holiday, or other premium pay for time worked ondirect labor are authorized as direct charges to this subcontract except when paid for work: necessary tocope with emergencies such as those resulting from accidents, natural disasters, breakdowns ofproduction equipment, or occasional production bottlenecks of a sporadic nature; by indirect laboremployees such as those performing duties in connection with administration, protection,transportation, maintenance, standby plant protection, operation of utilities, or accounting; in theperformance of tests, industrial processes, laboratory procedures, loading or unloading oftransportation media, and operations in flight or afloat, which are continuous in nature and cannotreasonably be interrupted or otherwise completed; or which will result in lower cost to NTESS.
- Asused in FAR Part 31 and DEAR Part 931 the words: "Contracting Officer" or "Field Office Manager"shall mean the SP, "Department of Energy/National Nuclear Security Administration(DOE/NNSA)" or "Sponsoring Agency" shall mean NTESS; "Federal Government" or "government,"in connection with government agencies or government property, shall mean the United States ofAmerica.
- Each individual Subcontractor employee salary amounting to $100,000 or more annually issubject to advance approval of the SP where fifty percent (50%) or more of such salary is to bereimbursed under DOE/NNSA cost-type subcontracts for on-site (NTESS/DOE/NNSA premises)services.
APPLICABLE LAW
The rights and obligations of the parties hereto shall be governed bythis subcontract and construed in accordance with the law of the state of delivery, except for FAR andFAR supplement clauses, which shall be in accordance with federal law. The parties agree tojurisdiction in the Federal District Court, with venue in the district closest to the delivery point of theitems or services giving rise to the claim. In the event the requirements for jurisdiction in FederalDistrict Court are not present, such litigation shall be brought in the State Court closest to the delivery
point of the item or services giving rise to the claim.
ASSIGNMENT
Subcontractor shall not assign rights or obligations to third parties without theprior written consent of NTESS.When the Subcontractor becomes aware that a change in its ownership has occurred, or is likely to occur, the Subcontractor shall notify the SP within 30 days. However, the Subcontractor may assign rights to be paid amounts due orto become due if NTESS is promptly furnished an executed Assignment of Payments form.Administration of this subcontract may be transferred from NTESS to DOE/NNSA or its designee, and incase of such transfer and notice thereof to the Subcontractor, NTESS shall have no further responsibilitieshereunder.
COMPLIANCE WITH LAWS
Subcontractor shall procure all necessary permits or licensesand abide by all applicable foreign, federal, state, and local laws, ordinances, or regulations, in whichany work under this subcontract is performed which are in any way applicable to the Statement of Work(SOW) of this subcontract.
SUBCONTRACTOR'S INFORMATION
No specifications, drawings, sketches, models,samples, tools, technical information, or data, written, oral or otherwise, furnished by Subcontractor toNTESS hereunder, or in contemplation hereof, shall be considered to be proprietary information ofSubcontractor.
CLAIM OF COSTS INCURRED
Subcontractor shall provide a claim of costs incurred (Electronic Cost Claim or “ECC”) to the NTESSContract Audit Department annually within ninety (90) days after end of the subcontractor’s fiscal year. An ECC is prepared by the Subcontractor and provided to theContract Audit Department in preparation for an audit of the costs incurred and claimed by the Subcontractor. It is used to compare and reconcile previously billed and paid amounts that are shown in NTESS' accounting system. It also provides the Subcontractor with an additional opportunity to review previous billings to ensure there have not been omissions or errors. The ECC shall include all costs incurred on this subcontract during the fiscal year just ended. Additionally, an ECC shall be submitted for any adjustment to any previously reported cost for any prior year within 90 days of the date the adjustment is made. The Subcontractor may obtain templates and instructions for submission of the ECC from the Contract Audit Department upon request the following website: With the agreement of the NTESS Auditor assigned to perform the audit, the Subcontractor may provide the required information in a different manner or format.
DEFINITIONS
The following terms shall have the meanings set forth below for all purposesof this subcontract:
(a)SUBCONTRACT means Purchase Order (PO), Subcontract, Price Agreement, Lower-tier Subcontract, OrderingAgreement (OA), or modifications thereof.
(b)SUBCONTRACTOR means the person or organization that has entered into this subcontract to sellsomething to NTESS.
(c)SUBCONTRACTOR-DIRECTED WORK means work under a subcontract for which the Subcontractoris accountable for the outcome of the work performed and routinely provides work direction to theSubcontractor's work force.
(d)GOVERNMENT means the United States of America and includes the U.S. Department ofEnergy (DOE)/National Nuclear Security Administration (NNSA) or any duly authorizedrepresentative thereof.
(e)ITEM means commercial items, commercial services, and commercial components as defined inFAR 52.202-1.
(f)NTESS means NTESS, the Management and Operating (M&O) Subcontractor for theSandia National Laboratories under Prime Contract No. DE-NA0003525 with the U.S. Department of Energy/National Nuclear Security Administration
(g)NTESS-DIRECTED WORK means work under a subcontract for which NTESS retainsaccountability for the outcome of the work performed and routinely provides work direction to theSubcontractor's work force.
(h)SP means Subcontracting Professional, the only person authorized to execute and/oradminister this contractsubcontract for NTESS.
(i)SDR means Sandia Delegated Representative. The SP may delegate personnel as authorizedrepresentatives for such purposes as and to the extent specified in the delegation. Such delegationshall be in writing to the Subcontractor, and shall designate by name the personnel so delegated asauthorized representatives. The SDR shall exercise no supervision over the Subcontractor's employees.THE SDR's AUTHORITY IS LIMITED SOLELY TO THE AUTHORITY ENUMERATEDIN SUCH WRITTEN DELEGATION. THE SDR HAS NO AUTHORITY TO CHANGE ANYTERM OR CONDITION CONTAINED IN THIS SUBCONTRACT.
DISCLOSING USE OF FREE, LIBRE & OPEN SOURCE SOFTWARE (FLOSS)
Thisclauseappliesto contracts that includethedeliveryofsoftware(includingsoftwareresidingonhardware).
Subcontractor shall disclose in writing, and obtain NTESS written consent, before using any FLOSS licenses or delivering any FLOSS in connection with this subcontract. Send written disclosures to the Subcontracting Professional listed on this first page of this contract. NTESS may withhold written consent for use or delivery of FLOSS at its sole discretion.
DEFINITIONS
FLOSS. FLOSS refers to software that incorporates, embeds, uses, bundles, or otherwise associates with any of the following:
- Open source, publicly available, or "free" software, library or documentation;
- Software licensed under a FLOSS License;
- Software provided under a license that (a) subjects the delivered software to any FLOSS License, or (b) requires the delivered software to be licensed for the purpose of making derivative works or be redistributable at no charge.
FLOSS License(s). Include any Free Software, Open Source and Public License(s). FLOSS License also refers to: the General Public License (GPL), Lesser/Library GPL (LGPL), the Affero GPL (APL), the Apache license, the Berkeley Software Distribution (“BSD”) license, the MIT license, the Artistic License (e.g., PERL), the Mozilla Public License (MPL), or variations thereof.
DISPUTES
Subcontractor and NTESS agree to use the NTESS Acquisition Conflict ResolutionProcess set forth at: for resolving any and all disputes arising from this subcontract. NTESS Acquisition Conflict Resolution Process available in “Policies” tab.
ESTIMATES OF COST AND LIMITATION OF OBLIGATION, IF APPLICABLE
(a)Initial Estimate of Cost and Obligation of Funds. The presently estimated cost and theobligation of funds for the work under this Subcontract are set forth in Section 1, if applicable.
(b)Revised Estimates of Cost. The presently estimated cost for the work under this subcontract may beincreased unilaterally by the SP by written notice to the Subcontractor and may be increased ordecreased by written agreement of the parties.
(c)Limitation of Obligation. Payments on account of costs shall not in the aggregate exceed theamount of funds presently obligated hereunder.
(d)Notice of Costs Approaching Funds Obligated - Subcontractor Excused Pending IncreaseWhen Obligation is Reached. Whenever the Subcontractor has reason to believe that the total cost ofthe work under this subcontract will be greater or substantially less than the presently estimated cost ofthe work, the Subcontractor shall promptly notify the SP in writing. The Subcontractor shall also notifythe SP in writing when the aggregate of expenditures, liabilities, and outstanding commitmentsallowable under this subcontract is equal to seventy-five percent (75%) (or such other percentage as theSP may from time-to-time establish by notice to the Subcontractor) of the amount of funds presentlyobligated hereunder. When such expenditures and outstanding commitments equal one hundredpercent (100%) of such amount, the Subcontractor shall make no further commitments or expenditures(except to meet existing commitments) and shall be excused from further performance of the workunless and until the SP thereafter shall have notified the Subcontractor in writing that such amount hasbeen increased. No notice, communication or representation in any other form or from any personother than the SP or the person delegated in this subcontract shall affect the estimated cost or fundsobligated hereunder. In the absence of the specified notice, NTESS shall not be obligated to reimbursethe Subcontractor for any costs in excess of the funds obligated hereunder, whether those excess costswere incurred during the course of the subcontract or as a result of termination. In the event theSubcontractor incurs cost in excess of the funds obligated hereunder without receiving a prior noticefrom the SP increasing such funds, the funds obligated hereunder may be increased at the solediscretion of the SP to permit the Subcontractor to be reimbursed for all or a portion of such costs. However, the SP is not obligated to increase funding due to an after-the-fact indirect rate adjustmentdetermined by a government audit agency. When and to the extent that the funds obligated hereunderhave been increased, any costs incurred by the Subcontractor in excess of the funds obligated hereunderprior to such increase shall be allowable to the same extent as if such costs had been incurred aftersuch increase, unless the SP issues a termination notice and directs that the increase is solely for thepurpose of covering termination expenses. In the event this subcontract is terminated or the fundsobligated hereunder are not increased enough to cover all costs, the government shall be entitled to allproperty produced or purchased under the subcontract except that property which the Subcontractor shalldemonstrate to have been produced or purchased solely with Subcontractor's funds in excess of the fundsobligated hereunder and which can be severed from the government property without damage thereto.
(e)NTESS' Right to Terminate Not Affected. The giving of any notice by either party under thisclause shall not be construed to waive or impair any right of NTESS to terminate this subcontract underthe provisions of the clause entitled "Termination."
(f)Cost Information. The Subcontractor shall maintain current actual cost information adequate toreflect the cost of performing the work under this subcontract at all times while the work is in progress,and shall prepare and furnish to NTESS such written estimates of cost and information in supportthereof as the SP may request.
(g)Correctness of Estimates Not Guaranteed. Neither NTESS nor the Subcontractor guarantees thecorrectness of any estimate of cost for performance of the work under this subcontract, and Subcontractorshall invoice NTESS at actual cost unless Section I of this subcontract provides otherwise.
EXCESS FREIGHT CHARGES
When NTESS pays any amounts for freight charges inconnection with this subcontract, Subcontractor is responsible for and shall pay to NTESS the amount of anyexcess freight charges if the routing specified in writing by the SP is not used. If the specifiedrouting cannot be used, Subcontractor shall promptly notify the SP before shipment, and obtain newrouting directions from the SP.
ETHICAL CONDUCT
The Subcontractor, including any officers, employees or lower tier subcontractors while engaged in work related to this subcontract shall:
(a)Comply with all applicable laws, regulations and the terms of the subcontract
(b)Conduct themselves with the highest degree of ethics, integrity and honesty
(c)Treat others with respect and dignity, and create an environment free from discrimination, harassment, threats, violence, bullying, intimidating conduct or other similar behavior