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WARRANTY EXCLUSION AND LIMITATION OF

DAMAGES Except as expressly set forth in writing in this agreement, or except as provided in the clause entitled, “Commitments, Warranties, and Representations," if applicable, and except for the implied warranty of merchantability, there are no warranties expressed or implied. In no event will the Contractor be liable to the Government for consequential damages as defined in the Uniform Commercial Code, Section 2–715, in effect in the District of Columbia as of January 1, 1973; i.e.:

Consequential damages resulting from the seller's breach include:

(a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) Injury to person or property proxi mately resulting from any breach of war. ranty.

(End of Clause) $14.1108–3 Contractor representation.

The following clause shall be used in * all solicitations and contracts for ADPE 5 when the Government's requirement is set forth in the form of a data system specification and the value of the contract is expected to exceed $100,000:

CONTRACTOR REPRESENTATION Unless the Contractor expressly states otherwise in his proposal, where functional requirements are expressly stated as part of

the requirements of this solicitation, the * Contractor, by responding, represents that in its opinion the system proposed is capable of meeting those requirements. However, once the functions have been demonstrated or put to use on the delivered system, Contractor responsibility under this clause ceases. In the event of any inconsistency between the detailed specifications and the functional specification contained in the solicitation, the former will control.

(End of Clause) § 1-4.1108-4 Fixed price options.

When the Government has firm requirements for ADPE, software, or mainTtenance services which exceed the basic

contract period (and/or quantity) to be awarded, but due to the unavailability of funds the option(s) cannot be exercised at the time of award of the basic contract (although there is a reasonable certainty that funds will be available thereafter to permit exercise of the options) ; realistic competition for the option periods (and quantity) may be impracticable once the

initial contract is awarded; and it is in the best interest of the Government to evaluate options in order to eliminate the possibility of a “buy-in,” the following clause shall be inserted in solicitation documents with the data required for the clause "fill-ins" suitably highlighted :

FIXED PRICE OPTIONS (a) This solicitation is being conducted on the basis that the known requirements exceed the basic contract period (and/or quantity) to be awarded, but due to the unavailability of funds the option(s) cannot be exercised at the time of award of the basic contract (although there is a reasonable certainty that funds will be available thereafter to permit exercise of the options); realistic competition for the option periods (and/or quantity) is impracticable once the initial contract is awarded; and it is in the best interest of the Government to evaluate options in order to eliminate the possibility of a “buy-in." Therefore, to safeguard the integrity of the Government's evaluation and because the Government is required to procure ADPE and related items on the basis of fulfilling system specifications at the lowest overall cost, subsequent (or additional) as well as initial requirements must be satisfied on a fixed price basis. Since the systems or items to be procured under this solicitation have an expected life of

---- months (hereafter referred to as "systems life," or "Items life," as appropriate), and since lowest systems (items) life costs are synonymous with lowest overall costs, the contract resulting from this solicitation must contain options for renewals for subsequent fiscal years throughout the projected systems (items) life at fixed prices, and, if applicable, at fixed prices for all stated optional quantities of supplies or services not included in the initial requirement. Despite the foregoing, offerors are reminded that although the evaluation which will lead to contract award will be based on systems (items) life costs, the exercise of the option(s) is dependent not only on the continued existence of the requirement and the availability of funds, but also on an affirmative determination that such exercise is in the best interest of the Government. Should the offeror desire, separate charges, if any, which will incur to the Government should the latter fail to exercise the option(s) may be stated separately. Options included in offers submitted in response to this solicitation will be evaluated as follows:

(1) To be considered responsive to this solicitation, vendors must offer fixed prices for the initial contract period for the initial systems or items being procured. Fixed prices, or prices which can be finitely determined, must be quoted for each separate option renewal period and must remain in effect

§ 1-4.1108-5

Title 41

Public Contracts, Property Management

OPTION FOR INCREASED QUANTITY The Government may increase the ques tity of items called for herein by the amom stated elsewhere in this contract and at the unit prices specified therein. The Contracting Officer may exercise this option at any within the period specified in the contre by giving written notice to the Contractor Delivery of items added by exercise of this option shall be in accordance with the delivery schedule set forth elsewhere in the contract. (Optional: Should the Govern ment fail to exercise this option for iscreased quantity, separate charges as a forth elsewhere in this contract shall inc:

(End of Clause)

throughout that period. Where optional quantities are offered, prices must be fixed or finitely determinable.

(2) Offers will be evaluated for purposes of award by adding the total price of all optional periods and, if applicable, all stated optional quantities to the total price for the initial contract period, covering the initial systems or items. These prices will be adjusted by the appropriate discount factors. Separate charges, if any, which will incur to the Government should the latter fall to exercise the options, will not be considered in the evaluation, except as stated in (3) below.

(3) An offer which is unbalanced as to prices for the basic and optional quantities may be rejected. An unbalanced offer is one which is based on prices significantly less than cost for some systems and/or items and prices which are significantly overstated for the other systems and/or items. In determining whether an offer is unbalanced as to prices, the Government will evaluate separate charges, if any, which the Government will incur for failure to exercise the options.

(b) Evaluation of options will not obligate the Government to exercise the options. Offers which do not include fixed or determinable systems (items) life prices cannot be evaluated for the total requirement and will be rejected. Offers which meet the mandatory requirements will be evaluated on the basis of lowest overall cost to the Government, including all stated options. The above notwithstanding, award will be made subject to the type of funds available. Accordingly, the following applicable provisions shall be included in any contract resulting from this solicitation: OPTION TO EXTEND THE TERM OF

THE CONTRACT This contract is renewable, at the option of the Government, by the Contracting offcer giving written notice of renewal to the Contractor by the first day of each fiscal year or within 30 days after funds for that fiscal year become available, whichever date is the later; provided that the Contracting Officer shall have given preliminary notice of the Government's intention to renew at least

days before this contract is to expire. Such a preliminary notice shall not be deemed to commit the Government to renewals. If the Government exercises this option for renewal, the contract as renewed shall be deemed to include this option provision. However, the total duration of this contract, including the exercise of any options under this clause, shall not exceed

--- months. (Optional: Should the Government fail to exercise this option to extend the term of the contract, separate charges, as set forth elsewhere in this contract, shall incur.)

$ 1-4.1108-5 Standard clauses for in

plementation of FIPS PUBS. (a) Scope. The standard terminology as set forth in Subpart 101-32.13 of th: FPMR shall be included in the solicitation for each Federal Information Proessing Standards Publication (FIPE PUB) that is applicable to a procura ment under this Subpart 14.11. Subpart 101–32.13 provides standard termnology for use in purchase agreements solicitations, and offers for acquisition of ADP equipment (ADPE), related software, services, and communications equipment to give effect to Federa Standards announced in FIPS PUBS Subpart 101–32.13 is also applicable where particular FIPS PUBS apply, to equipment acquired under Part 101-5 of the FPMR. FIPS PUBS are issued by the National Bureau of Standards and collectively constitute the Federal Information Processing Standards Register. FIPS PUBS are available as sei forth in $ 101-32.1302 of the FPMR.

(b) Applicability. The provisions Subpart 101–32.13 are applicable to all Federal agencies unless the agencies are otherwise excepted. Waiver proces dures and exceptions are prescribed in the applicable FIPS PUBS.

PART 1-5-SPECIAL AND DIRECTED

SOURCES OF SUPPLY
Subpart 1-5.1-(Reservod)

Subpart 1-5.2_ (Reserved) Subpart 1-5.3—Excess Personal Property Sec. 1-5.300 Scope of subpart. 1-8.301 Definition of excess personal prop

arty.

312

Sec.
1-6.302 Policy.
1-6.303 Implementation of policy.
1-5.304 Assistance by General Services Ad-

ministration in Alling requiro-
ments from excess.

Subpart 1–5.9–Use of GSA Supply Sources by

Contractors Performing Cost-Reimbursement

Type Contracts Sec. 1-6.900 Scope of subpart. 1-6.901 Policy. 1-5.902 Authorization to contractors. 1-6.903 Procedure for placing orders. 1-6.903-1 Orders under Federal Supply

Schedule contracts. 1-8.909–2 Orders for GSA stores stock. 1-5.904 Furnishing information to con

tractors. 1-5.905 Payment for GSA stores stock.

Subpart 1-5.10 [Reserved] AUTHORITY: The provisions of this Part 1-5 IsBuod under sec. 205(0), 68 Stat. 390; 40 0.8.C. 486(C).

Subpart 1-5.4—Procurement of Prison-Made

Products 1-5.400 Scope of subpart. 1-5.401 General. 1-5.402 Mandatory procurement of prison

made products. 1-5.403 Preferences in the choice of pro

curement sources. 1-5.404 Schedule of products and services. 1-5.405 Non-mandatory procurement of

prison-made products. 1-5.406 Procurement procedures. 1-5.406–1 Carload quantities and items not

stock by the General Services

Administration (GSA). 1-5.406–2 GSA stocked items.

1-5.407 (Reserved] s 1-5.408 Clearances.

Subpart 1-5.5—Interagency Motor Pool Vehicles

and Related Services Available to Government

Contractors 1-5.600 Scope of subpart. 1-6.501 Policy. 1-5.502 Authorization. 1-5.503 Means of obtaining servico. 1-8.604 Use of services.

Subpart 1-5.6—(Reserved)

Subpart 1-5.1-[Reserved)

Subpart 1-5.2-[Reserved] Subpart 1-5.3-Excess Personal

Property SOURCE: The provisions of this Subpart 1-5.8 appear at 29 F.R. 10187, July 24, 1964, unless otherwise noted. 8 1-5.300 Scope of subpart.

This subpart sets forth policies and related material regarding the use of excess personal property as a source of supply. This subpart does not include, modify, or supersede instructions concerning the reassignment of personal property within executive agencies and the transfer of excess, or other instructions concerning the utilization of Government-owned personal property, which are contained in Part 101-43 of the Federal Property Management Reg. ulations. (30 F.R. 16111, Dec. 28, 1965) 8 1-5.301 Definition of excess personal

property. "Excess personal property" means any personal property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities, as determined by the head thereof. 8 1-5.302 Policy.

To the fullest extent practicable, agencies shall use excess persunal property as the Arst source of supply in fulfilling their requirements and requirements of their cost-type contractors.

Subpart-1-5.7—(Reserved)
Subpart 1-5.8—Procurement of Products of the

Blind and Other Severely Handicapped 1-5.800

Scope of subpart. 1-5.801

General. 1-5.802

Definitions. 1-5.803

Policy. 1-5.803-1

Mandatory procurement of prod.

ucts and services. 1-5.803-2

Preferences between workshops

for the blind and workshops
for the other severely handi-

capped.
cell 1-5.803-3 Optional procurement of prod-

ucts and services 1-5.804

Central nonprofit agencies. 1-5.804-1

Responsibilities. 1-5.804-2

Names and addresses. 1-5.805

Procurement procedures. 1-5.805-1

General. 1-5.805–2

Allocation and orders.

Purchase exceptions. 1-5.8054

Shipping and packing.
Payments.
Adjustment and cancellation of

orders. 1-5.805–7

Quality of merchandise. 1-5.805-8

Quality complaints. 1-5.805-9

Specification changes. 1-5.805–10 Pricing policies.

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This subpart prescribes the policies and for blind and other severely handi- lots of com ment of products and services produced de from FPI, they shall be procured are purchas or performed by Federal Prison Industw the workshops for blind and other now operaies under the authority of 11 when products or services are and administered by a board of sixt 1680A Schedule of products and

(b) The corporation is self-supporting 6), and (c) of this § 1-5.403. tion is to provide training and emplo dle is restricted by law to depart- which are ment for prisoners confined in Feden and agencies of the Federal Gov- clearances m substantial part of the earnings of we are listed in the Schedule. corporation is expended in carrying 1405 Non-mandatory procurement the prisoners receive occupational trair a product is not listed on the Sched

Meral penal and correctional institu- available.
hes, agencies are encouraged to solicit

til to determine the feasibility of adding cause of lowe
of prison workshops or activities and L 406-1 Carload quantities and
there is minimum competition with long not stocked by the General

Orders for (a) carload lots, and (b) tests which are not stocked by GSA

be prepared in accordance with the

endures contained in the Schedule Services, and United States shall purchase the pan Industries, Inc., C.S. Department resentatives.

lewarded in duplicate to Federal of Manageme ucts which are produced by Flettine, Washington, DC 20537. listed in their "Schedule of Produ

ublic Contracts, Property Management

Made in Federal Penal and Correctional § 1-5.406–2 United States which generate the largest

institutions" (hereinafter called the

Less than amounts of excess, are screening and of

Schedule") to the extent that such fering for Government use nonreported excess personal property as it becomes presente available and meet the stona SaSA

in accordan {1-5403 Preferences in the choice of

agency proc (29 F.R. 10187, July 24, 1964, as amended at 30 F.R. 16111, Dec. 28, 1965]

procurement sources.

§ 1-5.407

A) Suitable Government used or ex- $ 1-5.408
Subpart 1-5.4Procurement of Prison
made Products

nes property is the first source of supply
| 1-1.302-1).

(a) A cle SOURCE: 39 FR 41710, Dec. 2, 1974, unless

b) Where similar products are pro

before proc otherwise noted.

deed both by Federal penal and cor

sources whi etimal institutions and by workshops

except: § 1-5.400 Scope of subpart.

(1) For p procedures to be followed in the procurement, but the products are not avail

Schedule A

Service of G tries, Inc. (FPI).

(2) When

formance is § 1-5.401 General.

(3) When (a) Federal Prison Industries, Inc. I a wholly owned government corporation of the District of Columbia which was established in 1934 by Act of Congres and an Executive order. The corporation U.S.C. 4121-4128.

prarely handicapped before utilizing
(mmercial sources.

el Services shall be procured from
vokshops for blind and other severely ernment pro
handicapped to the extent they are avail-

(4) Wher bile belore such services are procured and used ou IronPler commercial sources.

(5) When 0 Other sources of supply may be listed items

signs, or fui wat ereilable as provided in paragraphs or .

(6) When amounting delivery wit

vidual sectic Products manufactured by Federal Val and correctional Institutions are

cial clearance motored in strict conformance with

a particular telelor other applicable specifications.

(b) Form will be issue

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3 in ca:2-5,405 Non-mandatory procurement
ational of prison-made products.
bear 5.406 Procurement procedures.

procur ducts which are not stocked by GSA ts, agen cedures contained in the Schedule Purchase ison Industries, Inc., C.S. Department

Made in Federal Penal and Correctional § 1-5.406–2 GSA stocked items.
Institutions" (hereinafter called the

Less than carload lots of common use "Schedule") to the extent that such

items shall be ordered direct from reproducts are available and meet the

gional GSA supply distribution facilities requirements of the ordering office.

in accordance with established ordering § 1-5.403 Preferences in the choice of agency procedures. procurement sources.

8 1-5.407 [Reserved) (a) Suitable Government used or ex § 1-5.408 Clearances. cess property is the first source of supply (a) A clearance by FPI is required (see § 1-1.302–1).

before procuring products from other (b) Where similar products are pro

sources which are available from FPI, duced both by Federal penal and cor

except: 1. rectional institutions and by workshops (1) For purchases of less than carload for blind and other severely handi

lots of common use items, as listed in capped, but the products are not avail

Schedule A of the Schedule, when they able from FPI, they shall be procured

are purchased from the Federal Supply Fices from the workshops for blind and other

Service of GSA; Prist severely handicapped before utilizing (2) When immediate delivery or percommercial sources.

formance is required by public exigency: (c) Services shall be procured from

(3) When suitable used or excess Govworkshops for blind and other severely ernment property can be secured; Custok handicapped to the extent they are avail (4) When the products are procured ent cable before such services are procured and used outside the United States; _bis from FPI or commercial sources.

(5) When requirements are for unactor (d) Other sources of supply may be listed items other than canvas itmes, The ca utilized when products or services are signs, or furniture costing $100 or less;

not available as provided in paragraphs or &), (b), and (c) of this $ 1-5.403.

(6) When orders are for listed items Doard 1-5.404 Schedule of products and

amounting to $25 or less that require services.

delivery within 10 days (refer to indi

vidual sections of the Schedule for spetion. Products manufactured by Federal cial clearance instructions pertaining to Dor, &Penal and correctional Institutions are a particular class of product). the Droduced in strict conformance with (b) Formal clearance on FPI Form 34 orner Cederal or other applicable specifications. will be issued promptly for all products

of the heir sale is restricted by law to depart which are not available. Telegraphic ang artients and agencies of the Federal Gov clearances may be issued in emergencies,

nment. The products and services but clearances cannot be issued subseį insti-railable are listed in the Schedule. quent to purchase. Clearances should be

attached to the initial voucher to prevent an exception being taken by the General

Accounting Office. more tes If a product is not listed on the Sched (c) General or blanket clearances may cupatiria but is of a type normally produced by be issued when classes of products are not

deral penal and correctional institu available. vitles ons, agencies are encouraged to solicit (d) Purchases from other sources be

I to determine the feasibility of adding cause of lower prices are not authorized, ucts ab item to its Schedule.

and no clearances may be issued on this basis.

(e) Disputes regarding price, quality, -5.406-1 Carload quantities and

character, or suitability of products proitems not stocked by the General duced by FPI are subject to arbitration Services Administration (GSA).

as specified in 18 U.S.C. 4124. The statute Orders for (a) carload lots, and (b)

provides that the arbitration shall be

conducted by a board consisting of the ll be prepared in accordance with the

Comptroller General of the United

States, the Administrator of General forwarded in duplicate to Federal

Services, and the Director of the Office of Management and Budget, or their rep

resentatives. The decisions of the board Justice, Washington, DC 20537.

are final and binding on all parties.

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