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more than 10 percent must be approved by the Contracting Director.

**The Contracting Officer should insert a lower percent than the maximum percentage stated in paragraph (b) of the clause.

[55 FR 39279, Sept. 26, 1990]

552.216-73 Placement of orders.

As prescribed in 516.505, insert the following clause:

PLACEMENT OF ORDERS (DEC 1990)

(a) Orders will be placed by: [Contracting Officer insert names of Federal agencies].

(b) When mutually agreeable to the ordering agency and the contractor, delivery orders may be placed electronically using American National Standards Institute (ANSI) X12 Standard for Electronic Data Interchange (EDI) procedures.

(c) When EDI procedures are to be used to place delivery orders, the Contractor shall enter into one or more Trading Partner Agreements (TPA) with each Federal agency placing orders electronically in order to ensure mutual understanding by the parties of certain electronic transaction conventions and to recognize the rights and responsibilities of the parties as they apply to this method of placing delivery orders. The TPA shall identify, among other things, the third party provider(s) through which electronic orders are placed, the transaction sets used, security procedures, and guidelines for implementation.

(d) The Contractor shall be responsible for providing its own hardware and software necessary to transmit and receive data electronically under the framework of the TPA. Additionally, each party to the TPA shall be responsible for the costs associated with its use of third party provider services.

(e) Nothing in the TPA will invalidate any part of this contract between the Contractor and the General Services Administration. All terms and conditions of this contract that otherwise would be applicable to a mailed delivery order shall apply to the electronic order.

(f) The basic content and format of the TPA will be provided by: General Services Administration, Systems Inventory and Operations Management Center (FCS), Washington, DC 20406, Telephone: [Contracting Officer insert FAX: appropriate telephone numbers].

(End of Clause)

Alternate 1 (Dec 1990). As prescribed in 516.505, substitute the following paragraphs (a), (b), and (c) for paragraphs (a), (b), and (c) of the basic clause:

(a) All orders under this contract will be placed by the General Services Administration (GSA). The Contractor is not authorized to accept orders from any other agency. Vio

lation of this restriction may result in termination of the contract pursuant to the default clause of this contract.

(b) When mutually agreeable to GSA and the Contractor, delivery orders may be placed electronically using American National Standards Institute (ANSI) X12 Standard for Electronic Data Interchange (EDI) procedures.

(c) When EDI procedures are to be used to place delivery orders, the Contractor shall enter into a Trading Partner Agreement (TPA) with GSA. The TPA shall identify, among other things, the third party provider(s) through which electronic orders are placed, the transaction sets used, security procedures, and guidelines for implementation.

Alternate II (Dec 1990). As prescribed in 516.505, substitute the following paragraph (a) for paragraph (a) of the basic clause:

(a) Delivery orders under this contract may be placed by either the using Federal agencies or GSA.

[56 FR 376, Jan. 4, 1991]

552.217-70 Evaluation of Options.

As prescribed in 517.208, insert the following provision:

EVALUATION OF OPTIONS (AUG 1990)

(a) The Government will evaluate offers for award purposes by determining the lowest base period price. When option year pricing is based on a formula (e.g., changes in the Producer Price Index or other common standard); option year pricing is automatically considered when evaluating the base year price, as any change in price will be uniformly related to changes in market conditions. All options are therefore considered to be evaluated. Evaluation of options will not obligate the Government to exercise the option(s).

(b) The Government will reject the offer if exceptions are taken to the price provisions of the Economic Price Adjustment clause, unless the exception results in a lower maximum option year price. Such offers will be evaluated without regard to the lower option year(s) maximum. However, if the offeror offering a lower maximum is awarded a contract, the award will reflect the lower maximum.

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NOTICE REGARDING OPTION(S) (NOV 1992)

The General Services Administration (GSA) has included an option to [Insert "purchase additional quantities of supplies or services" or "extend the term of this contract" or "purchase additional quantities of supplies or services and to extend the term of this contract"] in order to demonstrate the value it places on quality performance by providing a mechanism for continuing a contractual relationship with a successful Offeror that performs at a level which meets or exceeds GSA's quality performance expectations as communicated to the Contractor, in writing, by the Contracting Officer or designated representative. When deciding

whether to exercise the option, the Contracting Officer will consider the quality of the contractor's past performance under this contract in accordance with 48 CFR 517.207. (End of Provision)

[57 FR 59939, Dec. 17, 1992]

552.219-1 Small business concern rep

resentation.

As prescribed in 519.304(a), insert the following provision:

SMALL BUSINESS CONCERN REPRESENTATION (MAY 1991) (Deviation FAR 52.219-1)

(a) Representation. The offeror represents and certifies as part of its offer that it is,

is not a small business concern. (b) Definition. Small business concern, as used in this provision, means a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on Government contracts, and qualified as a small business under the criteria and size standards in this solicitation.

(c) Notice. Under 15 U.S.C. 645(d), any person who misrepresents a firm's status as a small business concern in order to obtain a contract to be awarded under the preference programs established pursuant to sections 8(a), 8(d), 9, or 15 of the Small Business Act or any other provision of Federal law that specifically references section 8(d) for a definition of program eligibility shall (1) Be punished by imposition of a fine, imprisonment, or both; (2) be subject to administrative remedies including suspension and debarment; and (3) be ineligible for participation in programs conducted under the authority of the Act.

(End of Provision)

[55 FR 8954, Mar. 9, 1990, as amended at 56 FR 47006, Sept. 17, 1991]

552.219-71 Allocation of orders-partially set-aside items.

As prescribed in 519.508, insert the following clause:

ALLOCATION OF ORDERS-PARTIALLY SET

ASIDE ITEMS (JUNE 1986)

Where the set-aside portion of an item or group of items is awarded to a Contractor other than the one receiving the award on the corresponding non-set-aside portion, the Government will divide the requirements to be ordered between the two contractors with the objective of achieving, as nearly as possible, a 50/50 division of the total value of orders placed after the award of the set-aside portion. In no case will this division vary by more than a 60/40 division (with either the non-set-aside or set-aside Contractor receiving the larger portion) from the time of the award of the set-aside portion.

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[54 FR 26558, June 23, 1989, as amended at 54 FR 40060, Sept. 29, 1989; 56 FR 64214, Dec. 9. 1991]

552.219-73 Preparation and Submis-
sion of Subcontracting Plans.
As prescribed in 519.708(b), insert the
following provision:

PREPARATION AND SUBMISSION OF
SUBCONTRACTING PLANS (Nov 1991)

(a) This solicitation requires the submission of a subcontracting plan in the format described in FAR 52.219-9 by all offerors that are not small business concerns. In preparing its subcontracting plan, the offeror shall

take into consideration local economic conditions and the availability of small and small disadvantaged business concerns. The subcontracting plan should reflect the maximum utilization of small and small disadvantaged business concerns consistent with efficient contract performance (FAR 52.219-8).

(b) The subcontracting plan will be negotiated concurrently with cost and any required technical and management proposals. Consequently, failure to submit the subcontracting plan and/or correct deficiencies in the plan within the time specified by the Contracting Officer shall make the offeror ineligible for award.

(End of Provision)

[56 FR 64214, Dec. 9, 1991]

552.222-82 Preface for labor standards—state or political subdivision contracts.

As prescribed in 522.407 insert the following clause:

PREFACE FOR LABOR STANDARDS-STATE OR POLITICAL SUBDI:ISION CONTRACTS (APR 1984)

The Contractor shall comply with the requirements of the Contract Work Hours Safety Standards Act and shall insert the following clauses in all subcontracts under this contract with private persons or firms.

(End of Clause)

552.223-70 Hazardous substances. As prescribed in 523.303(a), insert the following clause:

HAZARDOUS SUBSTANCES (MAY 1989)

(a) If the packaged items to be delivered under this contract are of a hazardous substance and ordinarily are intended or considered to be for use as a household item, this contract is subject to the Federal Hazardous Substances Act, as amended (15 U.S.C. 12611276), implementing regulations thereof (16 CFR Chapter II), and Federal Standard No. 123, Marking for Shipment (Civil Agencies), issue in effect on the date of this solicitation.

(b) The packaged items to be delivered under this contract are subject to the preparation of shipping documents, the preparation of items for transportation, shipping container construction, package making, package labeling, when required, shipper's certification of compliance, and transport vehicle placarding in accordance with Parts 171 through 178 of 49 CFR and the Hazardous Materials Transportation Act.

(c) The minimum packaging acceptable for packaging Department of Transportation regulated hazardous materials shall be those in 49 CFR 173.

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552.223-72 Nonconforming hazardous materials.

As prescribed in 523.303(b), insert the following clause:

NONCONFORMING HAZARDOUS MATERIALS (MAR 1992)

(a) Nonconforming supplies that contain hazardous material or that may expose persons who handle or transport the supplies to hazardous material and which require replacement under the inspection and/or warranty clauses of this contract shall be reshipped to the Contractor at the Contractor's expense. The Contractor agrees to accept return of these nonconforming supplies and to pay all costs occasioned by their return.

(b) Hazardous materials, as used in this clause, includes any material defined as hazardous under the latest version of Federal Standard No. 313 (including revisions adopted during the term of the contract).

(c) If the Contractor fails to provide acceptable disposition instructions for the nonconforming supplies within 10 days from the date of the Government's request (or such longer period as may be agreed to between the Contracting Officer and the Contractor), or fails to accept return of the reshipped nonconforming supplies, such failure: (1) May be interpreted as a willful failure to perform, (2) may result in termination of the contract for default and (3) shall be considered by the Contracting Officer in determining the responsibility of the Contractor for any future award (see FAR 9.104-3(c) and 9.406-2).

(d) Pending final resolution of any dispute, the Contractor shall promptly comply with the decision of the Contracting Officer.

(End of Clause)

[56 FR 1741, Jan. 17, 1991, as amended at 57 FR 14649, Apr. 22, 1992]

552.225-8 Trade Agreements Act Certificate.

As prescribed in 525.407(a), insert the following provision:

TRADE AGREEMENTS ACT CERTIFICATE (AUG 1992) (DEVIATION FAR 52.225-8)

(a) The Offeror, by signing this offer, certifies that each end product to be delivered under this contract is a U.S.-made end product, a designated country end product, or a Caribbean Basin country end product as defined in the clause entitled "Trade Agreements Act" at 48 CFR 552.225-9.

(b) Offers will be evaluated in accordance with subpart 25.4 of the Federal Acquisition Regulation except that offers of U.S.-made end products shall be evaluated without the restrictions of the Buy American Act or the Balance of Payments Program.

(End of Provision)

[57 FR 42709, Sept. 16, 1992]

552.225-9 Trade Agreements Act.

As prescribed in 525.407(a), insert the following clause:

TRADE AGREEMENTS ACT (AUG 1992)
(DEVIATION FAR 52.225–9)

(a) This clause implements the Trade Agreements Act of 1979 (19 U.S.C. 2501-2582) by providing a preference for U.S.-made end products, designated country end products, and Caribbean Basin country end products over other products.

Caribbean Basin country end products, as used in this clause, means an article that: (1) Is wholly the growth, product, or manufacture of a Caribbean Basin country (as defined in section 25.401 of the Federal Acquisition Regulation (FAR)), or (2) in the case of an article which consists in whole or in part of materials from another country or instrumentality, has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term includes service (except transportation services) incidental to its supply provided that the value of those incidental services does not exceed that of the product itself. It does not include service contracts as such. The term excludes products that are excluded from duty-free treatment from Caribbean countries under the Caribbean Basin Eco

nomic Recovery Act (19 U.S.C. 2703(b)). These exclusions presently consist of (1) textiles and apparel articles that are subject to textile agreements; (ii) footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel not designated as eligible articles for the purpose of the Generalized System of Preference under title V of the Trade Act of 1974; (iii) tuna, prepared or preserved in any manner in airtight containers; (iv) petroleum, or any product derived from petroleum; and (v) watches and watch parts (including cases, bracelets and straps) of whatever type including, but not limited to, mechanical, quartz digital or quartz analog, if such watches or watch parts contain any material that is the product of any country to which the Tariff Schedule of the United States (TSUS) column 2 rates of duty apply.

Designated country end product, as used in this clause, means an article that (1) is wholly the growth, product, or manufacture of the designated country (as defined in section 25.401 of the Federal Acquisition Regulation (FAR)), or (2) in the case of an article which consists in whole or in part of materials from another country or instrumentality, has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term includes services (except transportation services) incidental to its supply provided that the value of those incidental services does not exceed that of the product itself. It does not include service contracts as such.

End products, as used in this clause, means those articles, materials, and supplies to be acquired under this contract for public use.

U.S.-made end product, as used in this clause, means an article which (1) is wholly the growth, product, or manufacture of the United States, or (2) in the case of an article which consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.

Nondesignated country end products, as used in this clause, means any end product which is not a U.S.-made end product or designated country end product.

United States, as used in this clause, means the United States, its possessions, Puerto Rico, and any other place which is subject to its jurisdiction, but does not include leased bases or trust territories.

(b) The Contractor agrees to deliver under this contract only U.S. made end products, designated country end products, Caribbean Basin country end products, or, if a national interest waiver is granted under section 302 of the Trade Agreements Act of 1979, nondesignated country end products. Only if

such waiver is granted may a nondesignated country end product be delivered under this contract(s).

(c) Offers will be evaluated in accordance with the policies and procedures of part 25 of the FAR except that offers of U.S. made end products shall be evaluated without the restrictions of the Buy American Act or the Balance of Payments Program. (End of Clause)

[57 FR 42709, Sept. 16, 1992]

552.225-70 Buy American Act-hand or measuring tools or stainless steel flatware.

As prescribed in 525.105-70(d), insert the following provision:

BUY AMERICAN ACT-HAND OR MEASURING TOOLS OR STAINLESS STEEL FLATWARE (MAY 1989)

Offers of foreign end products will be evaluated in accordance with GSAR 525.105-70(c) (48 CFR 525.105–70(c)). Offerors that intend to supply foreign end products must specify below or on an attachment to this offer the amount of duty (a) applicable if a duty-free entry certificate was not issued (for Canadian end products only) or (b) included in each offered price (for all other offers of foreign end products). If no duty is specified, the differential in GSAR 525.105-70(c)(2)(i) will be applied to the offered price.

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552.225-71 Notice of procurement re

striction-hand or measuring tools or stainless steel flatware.

As prescribed in 525.105-71(c), insert the following clause:

NOTICE OF PROCUREMENT RESTRICTION-HAND OR MEASURING TOOLS OR STAINLESS STEEL FLATWARE (MAY 1989)

(a) Awards under this solicitation will only be made to offerors that will furnish hand or measuring tools or stainless steel flatware that are domestic end products. Pursuant to the requirements of the current Department of Defense Appropriations Act, GSA has determined, in accordance with section 6-104.4 of the Armed Services Procurement Regula

tion (6/15/70) (32 CFR 6-104.4), that it is in the national interest to reject foreign products. As used in this clause, a "domestic end product" is

(1) Any hand or measuring tool, except for an electric or air-motor driven hand tool, or stainless steel flatware, wholly produced or manufactured, including all components, in the United States or its possessions; or

(2) Any electric or air-motor driven hand tool if the cost of its components produced or manufactured in the United States exceeds 75 percent of the cost of all its compo

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ELIGIBLE PRODUCTS FROM NONDESIGNATED COUNTRIES-WAIVER (AUG 1992)

(a) In accordance with the Trade Agreements Act of 1979 and 48 CFR 25.402(b), no eligible product that originates in a nondesignated country may be purchased by a Federal agency. However, this restriction may be waived before award when it is deter. mined to be in the national interest. Accordingly, offers to furnish products originating in a nondesignated country identified in paragraph (c) below, may be submitted in response to this solicitation and will be considered for award if a waiver is obtained from the U.S. Trade Representative or a designee (19 U.S.C. 2512) on the basis that:

(1) No responsive bid or technically acceptable offer from a responsible Offeror is received offering U.S. or designated country end products as defined in the clause entitled "Trade Agreements Act" in this solicitation;

or

(2) Responsible offerors do not offer a sufficient quantity to meet the Government's requirements.

(b) The determination to seek a waiver is at the sole discretion of the acquiring activity, and the granting of such waiver will be at the sole discretion of the U.S. Trade Representative or designee (48 CFR 525.402).

(c) The Offeror certifies that the following product(s) is an end product other than an end product of the United States, a designated country or a Caribbean Basin coun

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