[Federal Register Volume 63, Number 238 (Friday, December 11, 1998)]
[Proposed Rules]
[Pages 68406-68415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32883]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 238 / Friday, December 11, 1998 /
Proposed Rules
[[Page 68406]]
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1755
RUS Form 545, Central Office Equipment Contract (Not Including
Installation)
AGENCY: Rural Utilities Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Rural Utilities Service (RUS) is proposing to amend its
regulations on Telecommunications Standards and Specifications for
Materials, Equipment, and Construction to add a RUS Form 545 Central
Office Equipment Contract (Not Including Installation) and to rescind
REA Form 545, Central Office Equipment Contract (Not Including
Installation). RUS is proposing this new contract form in order to
incorporate contractual and technological changes.
DATES: Written comments must be received by RUS, or bear a postmark or
equivalent, no later than February 9, 1999.
ADDRESSES: Comments should be mailed to Orren E. Cameron, III,
Director, Telecommunications Standards Division, Rural Utilities
Service, STOP 1598, United States Department of Agriculture, 1400
Independence Ave., SW, Washington, DC, 20250-1598. RUS requests an
original and three copies of all comments (7 CFR part 1700). All
comments received will be available for public inspection at Room 2835
(address as above) during regular business hours (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT: John J. Schell, Chief, Central Office
Equipment Branch, Telecommunications Standards Division, Rural
Utilities Service, STOP 1598, United States Department of Agriculture,
1400 Independence Ave., SW, Washington DC, 20250-1598, telephone number
(202) 720-0671.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and therefore has not been reviewed
by the Office of Management and Budget (OMB).
Executive Order 12372
This proposed rule is excluded from the scope of Executive Order
12372, Intergovernmental Consultation, which may require a consultation
with State and local officials. A Final Rule related Notice entitled,
``Department Programs and Activities Excluded from Executive Order
12372'' (50 FR 47034) exempts RUS loans and loan guarantees from
coverage under this Order.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. RUS has determined that this rule meets the
applicable standards provided in 3 of the Executive Order. In addition,
all state and local laws and regulations that are in conflict with this
rule will be preempted, no retroactive effort will be given to this
rule, and, in accordance with Sec. 212(c) of the Department of
Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(c)), appeal
procedures must be exhausted before an action against the Department or
its agencies may be initiated.
Regulatory Flexibility Act Certification
RUS has determined that this proposed rule will not have a
significant economic impact on a substantial number of small entities,
as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The RUS telecommunications program provides loans to borrowers at
interest rates and terms that are more favorable than those generally
available from the private sector. RUS borrowers, as a result of
obtaining federal financing, receive economic benefits that exceed any
direct economic costs associated with complying with RUS regulations
and requirements.
Information Collection and Recordkeeping Requirements
The reporting and recordkeeping burdens contained in this rule were
approved by the Office of Management and Budget (OMB) pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 35, as amended) under
control number 0572-0059.
Send questions or comment regarding this burden or any other aspect
of these collections of information, including suggestions for reducing
the burden to F. Lamont Heppe, Director, Program Development and
Regulatory Analysis, Rural Utilities Service, 1400 Independence Avenue,
SW., Room 4034-South Building, Washington, D.C. 20250-1522.
National Environmental Policy Act Certification
The Administrator of RUS has determined that this proposed rule
will not significantly affect the quality of the human environment as
defined by the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). Therefore, this action does not require an environmental
impact statement or assessment.
Catalog of Federal Domestic Assistance
The program described by this proposed rule is listed in the
Catalog of Federal Domestic Assistance Programs under number 10.851,
Rural Telephone Loans and Loan Guarantees; and number 10.852, Rural
Telephone Bank Loans. This catalog is available on a subscription basis
from the Superintendent of Documents, the United States Government
Printing Office, Washington, DC 20402-9325.
Unfunded Mandates
This rule contains no Federal mandates for State, local, and tribal
governments for the private sector. Thus, this rule is not subject to
the requirements of section 202 and 205 of the Unfunded Mandates Reform
Act.
Background
The last revision to the REA Form 545 Contract was September 1966.
Since that date, divestiture and competition legislation and regulation
have brought about many changes in the conduct of telecommunications
business. Notable advances of central office equipment technology such
as Signaling System No. (SS7), Advanced Intelligent Network (AIN), and
Integrated Services Digital Network, have made many new services
available. In order to address the above, significant changes have been
made in the way business is conducted in the telecommunications
industry.
[[Page 68407]]
The proposed RUS Form 545 Contract incorporates those changes into the
Central Office Equipment Contract. The main changes to the Contract are
new requirements that: (1) Provide for a software license, (2) provide
for patent, copyright, and trademark infringement protection, (3)
provide a cap on consequential damages, and (4) provide Equal
Employment Opportunity requirements. In addition, it revises and
updates provisions for (1) delivery of equipment, (2) inspection and
testing of the completed installations, (3) payments to the contractor,
(4) insurance, (5) liquidated damages, and (6) completion of the
project. The above actions will make it possible for RUS
telecommunications borrowers to continue to provide their subscribers
with the most modern and efficient telecommunications service,
implemented in a predictable and orderly fashion.
RUS has issued a series of 7 CFR chapter XVII parts, which serve to
implement the policies, procedures, and requirements for administering
its loan and loan guarantee programs and the loan documents and
security instruments that provide for and secure RUS financing. The
revision to 7 CFR part 1755 codifies RUS Form 545, Central Office
Equipment Contract (Not Including Installation). The 7 CFR part 1755
also describes where copies of the contract may be obtained. RUS
telecommunications borrowers are required to use the RUS Form 545
Contract where major central office facilities are being procured but
not installed under this contract. The present RUS Form 545 has become
outdated due to technological advancements and other reasons. Advanced
technology and equipment concepts have introduced new issues. Contract
terms and obligations need to be modified and updated to more
accurately reflect present business practices. Some representative
issues addressed in this proposed RUS Form 545 contract are: expansion
of patent infringement protection to include copyrights, trademarks,
etc.; software right-to-use licensing terms; warranty coverage; use of
information; consequential damages; delays in project; liquidated
damages; insurance; independent contractor provisions; and support of
discontinued products. All these additions and changes have been made
so that RUS telephone borrowers can continue to provide their
subscribers with the most up-to-date and efficient telephone service.
Following the existing practice of the RUS, this proposed rule
contemplates publication of the complete text of standard contract Form
545 in the CFR. However, interested parties are advised that RUS is
considering and anticipates publishing a proposed rule providing for an
alternative procedure for the publication of standard forms of
contracts pursuant to which the full text of the contract form will not
be set forth as codified text in the CFR. Should such alternative
procedure be adopted pursuant to applicable rulemaking procedures, the
full text of this contract, as promulgated through final rulemaking,
may not be codified in the CFR.
List of Subjects in 7 CFR Part 1755
Loan programs--communications, Reporting and recordkeeping
requirements, Rural areas, Telephone.
For the reasons set out in the preamble, Chapter XVII of Title 7 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 1755--TELECOMMUNICATIONS STANDARDS AND SPECIFICATIONS FOR
MATERIALS, EQUIPMENT, AND CONSTRUCTION
1. The authority citation for part 1755 continues to read as
follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq., 7941 et seq.
2. Section 1755.93 is amended by revising the entry for Form 545 in
the table and footnote 1 at the end of the table to read as follows:
Sec. 1755.93 List of standard forms of telecommunications contracts.
* * * * *
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Source of
RUS form No. Issue date Title Purpose copies
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* * * * * *
*
545.................... [TBD] Central Office Purchase and deliver RUS.\1\
Equipment Contract Central office
(Not Including equipment.
Installation).
* * * * * *
*
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\1\ A limited number of copies of the publication will be furnished by RUS upon request. As this document is
produced by the Federal Government and is, therefore, in the public domain, additional copies may be
duplicated locally by any user as desired. Requests for copies should be sent to Program Development and
Regulatory Analysis United States Department of Agriculture, Rural Utilities Service, Washington, DC 20250-
1522. The telephone number is (202) 720-8674.
* * * * *
3. Section 1755.545 is added to read as follows:
Sec. 1755. 545, Form 545, central office equipment contract (not
including installation.)
RUS Form 545, Central Office Equipment Contract (Not Including
Installation), as contained in this section shall be used for all
purchases of central office equipment (other than such purchases of
special equipment using Form 397) using RUS financial assistance when
the equipment is supplied but not installed by the seller as explained
in 7 CFR part 1753, subparts E and H. RUS Form 545 Central Office
Equipment Contract follows:
Central Office Equipment Contract (Not Including Installation)
Notice and Instructions to Bidders;
Central Office Equipment Project (Not Including Installation)
1. Sealed proposals for the engineering, furnishing, and
delivery, of central office equipment, materials, and software for
the
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(hereinafter called the ``Owner'') which is to be part of the system
known as
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to be financed pursuant to a loan contract between the Owner and the
United States of America (hereinafter called the ``Government'') by
the Administrator (hereinafter called the ``Administrator'') of the
Rural Utilities Service (hereafter called ``RUS'') will be received
by the Owner on or before ______ o'clock, ________.M.,
____________________,
at---------------------------------------------------------------------
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at which time and place the proposals will be publicly opened and
read. The Rural Telephone Bank may also be a party to the loan
contract.
2. The Bid Documents (composed of plans, specifications, and
drawings), together with
[[Page 68408]]
all necessary forms and other documents for bidders, may be obtained
from the Owner or from the Owner's Engineer, (hereinafter called the
``Engineer'') at the latter's office at ____________________
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The Specifications may be examined at the office of the Owner or at
the office of the Engineer. A copy of the loan contract between the
Owner and the Government may be examined at the office of the Owner.
Each set of Bid Documents will have a serial number, assigned by
the Engineer, and the number with the name of the bidder will be
recorded by the Engineer. Bids will be accepted only from original
bidders, or other qualified bidder to whom such a set has been
transferred by the original bidder with the approval of the Engineer
prior to the pre-bid technical session.
3. A pre-bid technical session will be held with each bidder
during the week of ____________________, (year), at
.---------------------------------------------------------------------
for the purpose of receiving the bidder's technical proposal,
discussing details of the Project, and considering suggestions from
bidders. The Owner shall attach to this Notice a list of the
information required in the bidder's technical proposal. Each bidder
will be given a specific time period for the pre-bid technical
session. At the pre-bid technical session, the bidder shall fully
describe to the Owner any exceptions to the Specifications the
bidder may request. In addition, the bidder shall identify all
features and capabilities that are not fully developed or do not
have a verifiable satisfactory field performance record. If the
Owner decides to incorporate any changes into the Specifications,
the Owner shall furnish all prospective bidders a copy of the
Specifications containing such revisions (the ``Revised
Specifications'') and all bids shall be made on the basis of the
Revised Specifications. At this session, the bidder shall identify
all documentation and materials that it claims constitute agreed
excluded documentation under Section (2)(xi) of the Software
License. The bidder shall claim only those items it may be unable to
provide to the Owner as required by said (2)(xi). The Engineer shall
immediately provide a list of all items so identified to the
[appropriate RUS Area office]. The Engineer shall inform the bidder
at least ______ days before the scheduled bid opening whether either
the Engineer or [RUS] will reject the bid because of items so
identified. Licensor agrees that certain Licensed Software cannot be
excluded from the requirements of section (2)(xi), including but not
limited to, software, the absence or improper operation of which
would significantly impair the operation of the system, would
significantly impair the ability of the Owner to generate revenue,
or would pose a risk to RUS loan security. If allowed, the agreed
excluded documentation shall be individually identified in an
attachment to the bid. No bid shall be accepted from a bidder who
fails to attend the pre-bid technical session or fails to
demonstrate to the Owner that its equipment meets the requirements
of the Plans and Specifications.
4. Proposals shall be submitted on the forms furnished by the
Owner and must be delivered in a sealed envelope addressed to the
Owner. The name and address of the bidder, its license number, if a
license is required for bidding on a project by the State, and the
date and hour of the opening of bids must appear on the envelope in
which the proposal is submitted. Proposals must be in ink or
typewritten. No alterations or interlineations will be permitted,
unless made, initialed, and dated before submission.
5. Prior to the submission of the proposal, the bidder shall
make and shall be deemed to have made a careful examination of the
Specifications, forms of bidder's proposal and acceptance, and shall
become informed as to the location and characteristics of the
proposed central office and remote terminal features and services,
the transportation facilities, the kind of facilities required
before and during the delivery of the equipment and materials, the
general local conditions and all other matters that may affect the
cost. Bidders will be required to comply with all applicable
statutes, codes, and regulations, including those pertaining to the
licensing of contractors and the ``Anti Kick-Back Acts,'' as
amended, (40 U.S.C. 276c; 41 U.S.C. 51 et seq.) and regulations
issued pursuant thereto, and 18 U.S.C. 287, 874, 1001.
6. If requested by the Owner or the Administrator, the bidder
shall furnish evidence, satisfactory to the Owner and the
Administrator, that the bidder has the necessary facilities,
ability, and financial resources to perform the Contract.
7. The Contract, when executed, shall be deemed to include the
entire agreement between the parties thereto and neither party shall
claim any modification thereof resulting from any representation or
promise made at any time by any officer, agent, or employee of the
other or by any other person.
8. The Owner reserves the right to waive minor irregularities or
minor errors in any proposal, if it appears to the Owner that such
irregularities or errors were made through inadvertence. Any such
irregularities or errors so waived must be corrected on the proposal
in which they occur prior to the execution of any Contract, which
may be awarded thereon.
9. The Owner reserves the right to reject any or all proposals.
10. The equipment to be furnished for all central offices and
remote switching terminals included in the proposal is to be of the
same basic design. A proposal submitted on any other basis will not
be considered.
11. Equal Opportunity and Employment.
(a) The Offeror's or Bidder's attention is called to the ``Equal
Opportunity Clause'' and the ``Standard Federal Equal Employment
Specifications'' contained herein.
(b) The goals and timetables for minority and female
participation are available from the Office of Federal Contract
Compliance Programs (OFCCP) which has the sole responsibility for
enforcing Executive Order 11246, as amended.
The goals set forth in Executive Order 11246, as amended, are
applicable to all the Contractor's construction work (whether or not
it is federal or federally assisted) performed in the covered area.
If the Contractor performs construction work in a geographical area
located outside of the covered area, it shall apply the goals
established for such geographical area where work is actually
performed. With regard to this second area, the Contractor also is
subject to the goals for both its federally involved and
nonfederally involved construction.
The Contractor's compliance with Executive Order 11246, as
amended, and the implementing regulations at 41 CFR Part 60-4 shall
be based on its implementation of the Equal Opportunity Clause.
(c) The Contractor shall provide written notification to the
Director of the Office of Federal Contract Compliance Programs
within 10 working days of award of any construction subcontract in
excess of $10,000 at any tier for construction work under the
contract resulting from this solicitation. The notification shall
list the name, address, and telephone number of the subcontractor;
employer identification number of the subcontractor; estimated
dollar amount of the subcontract; estimated starting and completion
dates of the subcontract; and, the geographical area in which the
subcontract is to be performed.
Bidder's proposal to Engineer, Furnish, and Deliver Equipment,
Materials and Software
(Proposal shall be submitted in ink or typewritten)
To:--------------------------------------------------------------------
(HEREINAFTER CALLED THE ``OWNER'')
The undersigned (hereinafter called the ``Bidder'') hereby
proposes to engineer, furnish, and deliver, and install the
equipment, materials and software for each Project listed under
Column 1, ``Project,'' in Article I, 1, and described in the plans,
specifications and drawings (hereinafter called the
``Specifications'') prepared by the Owner and attached hereto and
made a part hereof, financed by a loan to the Owner made or
guaranteed by the United States of America, acting through the
Administrator of the Rural Utilities Service (hereinafter called the
``Administrator''), or by loans to the Owner by the United States of
America and by the Rural Telephone Bank, and designated
____________________.
The Bidder has become informed as to the location and
characteristics of the proposed Project, has become informed as to
the kind of facilities required before and during the delivery and
installation of the equipment, material, and software and has become
acquainted with all other matters that may affect the cost and time
of delivery of the Project.
The Bidder agrees that if its bid is accepted the following
terms and conditions shall govern.
If, in submitting this proposal, the Bidder has taken any
exception to the form of proposal furnished by the Owner, the Bidder
understands that the Owner and the Administrator may evaluate the
effect of such change as they see fit and they may exclude the
proposal from consideration in determining the award of the
Contract.
[[Page 68409]]
Article I.--Section 1. Bid Price. The Bidder Will Engineer, Furnish, and Deliver to the Delivery Points Specified Below the Equipment Described in the
Specifications for the Following Sums
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Completion of
Project (see notes 1, 2 and 3) Base bid Delivery point Delivery (see the project Spare parts Item Maintenance
note 4) (see note 5) tools
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(1) (2)............. (3)............. (4)............. (5)............ (6)............ (7)............ (8)
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$ $ a $
$ $ b $
$ $ c $
$ $ d $
$ $ e $
$ $ f $
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Totals..................... $ XXXXXXXX XXXXXXXX XXXXXXXX $ XXXXXXXX $
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Total Base Bid............. $ XXXXXXXX XXXXXXXX XXXXXXXX XXXXXXXX XXXXXXXX XXXXXXXX
Alternate 1.................... $ $ g $
Alternate 2.................... $ $ h $
Alternate 3.................... $ $ i $
Alternate 4.................... $ $ j $
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Note 1: If a remote switching terminal, so designate and list after host office.
Note 2: All items included in a Project shall have the same completion schedule.
Note 3: Each Project shall be separated by a blank line.
Note 4: Delivery time in calendar days.
Note 5: Time in calendar days for Completion of the Project shall be no later than 90 days after the time established for Delivery.
Section 2. Acceptable Equipment. Unless otherwise specified by
the Owner (and with advance written agreement by RUS), the Bidder
agrees to furnish under this proposal only equipment which is
currently listed in RUS Information Publication 344-2 or covered by
a letter of technical acceptance issued by the Chairman, Technical
Standards Committee ``A'' (Telecommunications). The Bidder agrees
also to furnish only materials, equipment, and software which are
new and of most recent issue and manufacture, as of the date of the
bid opening, or of near future release for which the Bidder can
assure timely delivery.
Section 3. Changes in Project. The Owner, with the approval of
the Administrator, may from time to time prior to the delivery of
equipment or software under this Contract effected by the acceptance
of this proposal, make reasonable changes, additions to or
subtractions from the Specifications which are part of the proposal
as conditions may warrant. However, if substantial changes in the
Project shall require an extension of time, a reasonable extension
will be granted if the Bidder shall make a written request therefor
to the Owner within thirty (30) days after any such change is made.
Further, if the cost to the Bidder shall be increased or decreased
by any such change or addition, the Contract price shall be
increased or decreased by a reasonable amount in accordance with a
contract amendment signed by the Owner and the Bidder and approved
by the Administrator. No claim for additional compensation for any
such change or addition will be considered unless the Bidder shall
have made a written request therefor to the Owner prior to the
commencement of work in connection with such change or addition. The
delivery times specified under Column 4, ``Delivery'', in Article I,
Section 1, can only be changed by a Contract amendment approved by
the Bidder, the Owner and RUS.
Section 4. Taxes. The bid prices herein set forth do not include
any amounts payable by the Bidder or the Owner on account of taxes
imposed by any taxing authority upon the sale, purchase, or use of
materials, supplies, equipment, or software to be incorporated in
the Project(s). If any such tax is applicable to the sale, purchase,
or use of materials, supplies, equipment, or software hereunder, the
amount thereof shall be stated separately on all invoices and paid
by the Owner.
Article II
Delivery
Section 1. Time of delivery. The time of delivery of materials,
equipment, and software is of the essence in this Contract. The
Bidder shall deliver the materials, equipment, and software required
hereunder for each Project upon the time intervals established under
Column 4, ``Delivery,'' in Article I, 1, after the Administrator
shall have approved this Contract in writing. The times for such
delivery shall be extended for the period of any reasonable delay
due exclusively to causes beyond the control and without the fault
of the Bidder, including, but not limited to, acts of God, fires,
strikes, floods, changes in the Specifications as herein provided,
and acts or omissions of the Owner with respect to matters for which
the Owner is solely responsible. However, no such extension of time
shall be granted the Bidder unless within thirty (30) days after
Bidder becomes aware of the happening of any event relied upon by
the Bidder for such an extension of time the Bidder shall have made
a request therefor in writing to the Owner. Further, no delay in
such time for delivery of materials, equipment, and software shall
result in any liability on the part of the Owner, except that the
Owner shall be responsible for and shall pay the Bidder on demand
all additional, supportable costs, and expenses incurred by the
Bidder due to delays to the extent such delays are caused by the
Owner's failure to perform its obligations under this Contract
unless the Owner's failure to perform is caused by forces beyond its
control.
Section 2. Sequence of Delivery. All Projects shall be delivered
in the sequence in which they are listed under Column 1,
``Project,'' in Article I, Section 1.
Section 3. Inspection and Tests. All materials, equipment, and
software used therein shall be subject to the inspection, test, and
approval of the Owner and Administrator, in accordance with the
Specifications. The Bidder shall furnish all pertinent information
required concerning the nature or source of materials. The Owner and
the Administrator shall have the right to inspect pertinent records
(other than manufacturing cost information) of the Bidder and of any
subcontractor relevant to this Project(s). The Bidder shall provide
all reasonable facilities necessary for such inspection and tests,
except that the Bidder is not required to provide test equipment for
the Owner's tests unless specifically required in the
Specifications. Failure of the Owner to make inspections shall not
release the Bidder from performance required hereunder.
The Owner shall make inspections and tests of each Project for
compliance with the Specifications and provide the Bidder the
results of such inspections and tests in writing. If the Owner has
not completed its inspections and tests and provided the
[[Page 68410]]
Bidder the results within thirty sixty (60) days after the date of
delivery as set forth under Column 4,'' delivery'' in Article I, 1,
the Owner shall (1) pay to the Bidder the costs incurred by the
Bidder as a result of this delay, and (2) grant an extension of time
for the Completion of the Project equal to the number of days from
the date of the end of the sixty (60) day period until the date the
Owner provides such results to the Bidder. A longer period of time
for inspection and tests can be allowed if agreed to in writing by
the Bidder and the Owner.
Within thirty (30) days of receipt of the results of the
inspections and tests from the Owner, the Bidder shall correct all
deficiencies, if any, listed on the test results summary and notify
the Owner in writing of such corrections, at which time a final
Owner's inspection and test of each Project shall be conducted. If
tests subsequent to this are made necessary by the Bidder's failure
to satisfactorily resolve all such deficiencies as previously
listed, the Bidder shall pay the Owner for the cost incurred by the
Owner for all such subsequent tests.
Section 4. Defective Workmanship, Materials Equipment, or
Software. Throughout the warranty period defined below the Bidder
shall, within thirty (30) days of written notice from the Owner, and
without charge to the Owner, at the Bidder's option, either remedy
or replace any materials, equipment, or software found to be
defective in material, or workmanship, or not in conformity with the
Specification. This is subject to the following definitions and
conditions:
(a) The warranty start date for a Project is the scheduled date
of Completion of the Project as set forth under Column 5,
``Completion of the Project,'' in Article I, 1, or such earlier date
that such Project is certified complete. The warranty period is
twelve (12) months from the warranty start date. If circumstances or
events under the control of the Bidder cause a delay beyond the
scheduled date of Completion of the Project, the warranty period is
twelve (12) months from the actual date of Completion of the
Project, as defined in Article VII, 1. The warranty period shall not
be extended due to delays caused by the Owner.
(b) Without regard to the expiration of the warranty period set
forth above, the Bidder warrants to the Owner that any Software
furnished under this Contract shall function, for a period of five
(5) years from the warranty start date defined in subsection (a)
above, in accordance with the specifications and any written or
printed technical material provided by the Bidder to explain the
operation of the Software and aid in its use. The Bidder shall
correct all deficiencies within thirty (30) days from the date of
receipt by the Bidder of written notice of such deficiencies from
the Owner. An extension of this thirty (30) day period may be
allowed only if agreed upon by the Owner. It shall be the Bidder's
obligation to insert and thoroughly test, at no charge to the Owner,
any software amendment or alteration provided to satisfy the
obligations of this 6. If a deficiency is detected or a correction
made within the final ninety (90) days of the warranty, the warranty
shall be extended to a date ninety (90) days after the deficiency
has been corrected.
(c) The Owner shall pay the Bidder for any use of the Bidder's
technical assistance center except for usage to diagnose defects as
provided in this 4.
(d) The warranty continues in full force and effect whether or
not the Owner has accepted the materials, equipment, or software, or
by the issuing of any certificate with respect to Completion of the
Project.
(e) The warranty does not cover defects in materials, equipment,
or software that are caused by modifications to or abuse of
materials, equipment, or software by the Owner or the Owner's
agents, including but not limited to, the Firm contracted by the
Owner to install the materials, equipment, and software.
(f) The Owner shall bear the cost and risk of shipping defective
components to the Bidder's designated repair center. The Bidder
shall bear the cost and risk of shipping new or repaired replacement
components to the Owner.
Article III
Payments
Section 1. Payment of 90 percent.
The Bidder shall provide the Owner with written estimates,
including the prices, of the materials, equipment, and software
delivered to the site of each Project listed under column 2, in
Article I, section 1. If the Owner approves these estimates, the
Owner will pay the Bidder 90 percent of the estimates when all
materials, equipment, and software required to put each Project into
operation have been delivered to the site of such Project.
Section 2. Payment of balance. Upon completion of installation
(by others) of the equipment, but prior to the payment to the Bidder
of any amount in excess of ninety percent (90%) of the Total
Contract Price, the Owner shall make a final inspection of the
materials, equipment, and software provided hereunder as set forth
under Article II, 3, Inspections and Tests. If the materials,
equipment, and software shall be found to be in accordance with the
Specifications and all provisions hereunder, the owner shall certify
such fact to the Administrator for approval and as to the amount of
the balance found to be due to the bidder. When such approval has
been given, the Owner shall pay to the Bidder all unpaid amounts to
which the Bidder shall be entitled hereunder. However, such final
payments shall be made not later than one hundred twenty (120) days
after delivery as set forth under Column 4, ``Delivery'' in Article
I, section 1, unless approval by the Administrator shall be withheld
or delayed due to Bidder's actions or failure to act.
Section 3. Interest on unpaid amounts. Payment on undisputed
invoices submitted by the Bidder shall be due thirty (30) days after
receipt. Any amounts of these invoices not paid when due shall
accrue interest at a rate one and one-half percent (1 1/2%) per year
higher than the ``Prime Rate'' published in the Wall Street Journal
in its first issue of the month in which payment becomes due and
changing each subsequent month with the first issue published in the
respective month.
Section 4. Acceptance not waiver. Acceptance by the Owner of
equipment, materials, or software while the Bidder is in default
under any provision of this Contract shall not be construed as a
waiver by the Owner of any right hereunder including, without
limitation, any right to liquidated damages the Owner may have by
virtue of Article V, section 2.
Article IV
Particular Undertakings of the Bidder
Section 1. Possession and Control. The equipment, materials, and
software purchased under this Contract, until such date or dates
when the Owner may take possession and control, shall be under the
charge and control of the Bidder and during such period of control
by the Bidder all risks in connection therewith, and in connection
with the equipment, materials, and software to be used therein,
shall be borne by the Bidder. The Bidder shall make good and fully
repair all damages to the equipment, materials, and software under
the control of the Bidder by reasons of any act of God, or any other
casualty or cause whether or not the same shall have occurred by
reason of the Bidder's negligence.
Section 2. Termination of Bidder's Risks and Obligations. The
Bidder shall deliver to the Owner, and the Owner shall accept, full
possession and control of each Project on the date of delivery. Upon
such delivery of possession and control of any Project the Bidder's
risks and obligations as set forth above pertaining to such Project
shall be terminated; provided, however, that nothing herein
contained shall relieve the Bidder of its obligation for full
performance under the Specifications, or its liability with respect
to defective materials, equipment, or software as specified in
Article II, section 4, hereof. The equipment shall not be installed
until delivery of possession and control to the Owner has been
accomplished, as set forth above.
Section 3. Purchase of Materials. The Bidder shall purchase all
materials and supplies except software outright and not subject to
any conditional sales agreements, bailment lease or other agreement
reserving unto the seller any right, title, or interest therein.
Materials and supplies other than software shall become the property
of the Owner as the Owner makes payments therefor to the Bidder in
accordance with Article III, section 1(a).
Section 4. Software License. If the Bidder requires a software
license agreement covering the rights, terms, and conditions of the
use and assignability of all software integral to the operation of
the Project, the license shall be in the form of Addendum 1 to this
Contract (See 7 CFR 1753.38(c)).
Section 5. Assignment of Guarantees. All guarantees of
materials, equipment, workmanship, and software running in favor of
the Bidder shall be transferred and assigned to the Owner upon
Completion of the Project and at such time as the Bidder receives
final payment. Any such guarantees shall be in addition to the
Bidder's warranty defined in Article II, section 4. This provision
may be modified with respect to a particular warranty if the Bidder
[[Page 68411]]
demonstrates to the satisfaction of RUS and the Owner that a
transfer is not possible.
Section 6. Patent, Copyright, Trademark, and Trade Secret
Infringement. The Bidder shall hold harmless and indemnify the Owner
from any and all claims, suits, and proceedings for the infringement
of any patent, copyright, trademark, or violation of trade secrets
covering any equipment or software used in the work, except for
items of the Owner's design or selection. If the Owner's use of
equipment or software is enjoined, the Bidder shall promptly, at its
own expense, modify or replace the infringing equipment or software
so that it no longer infringes but remains functionally equivalent,
or obtain for the Owner a license or other right to use the
equipment or software. This shall be in addition to any other rights
or claims, which the Owner may have. The Bidder shall, at its own
expense, (and the Owner agrees to permit Bidder to do so,) defend
any suits which may be instituted by any party against the Owner for
alleged infringement of patents, copyright, trademark, or violation
of trade secrets relative to the Bidder's performance hereunder.
Either party shall notify the other promptly of any such claims, and
the Owner shall give to the Bidder full authority and opportunity to
settle such claims, and shall reasonably cooperate with the Bidder
in obtaining information relative to such claims.
Section 7. Compliance with Statutes and Regulations. The Bidder
shall comply with all applicable laws, statutes, ordinances, rules,
and regulations. The Bidder acknowledges that it is familiar with
the Rural Electrification Act of 1936, as amended (7 U.S.C. 901 et
seq.), the Anti-Kickback Acts, as amended (40 U.S.C. 276c; 41 U.S.C.
51 et seq.), and any rules and regulations issued pursuant thereto,
and 18 U.S.C. 201, 286, 287, 641, 666, 874, 1001, 1361 and 1366, as
amended.
The Bidder represents that to the extent required by Executive
Orders 12549 (3 CFR, 1985-1988 Comp., p. 189) and 12689 (3 CFR, 1989
Comp., p. 235), Debarment and Suspension, and 7 CFR part 3017, it
has submitted to the Owner a duly executed certification in the form
prescribed in 7 CFR part 3017.
The Bidder represents that, to the extent required, it has
complied with the requirements of Pub. L. 101-121, section 319, 103
Stat. 701, 750-765 (31 U.S.C. 1352), entitled ``Limitation on use of
appropriated funds to influence certain Federal contracting and
financial transactions,'' and any rules and regulations issued
pursuant thereto.
Article V
Remedies
Section 1. Completion on Bidder's Default. If default shall be
made by the Bidder in the material, equipment, or software furnished
hereunder, the Owner, without in any manner limiting its legal and
equitable remedies in the circumstances, may serve upon the Bidder a
written notice requiring the Bidder to cause such default to be
corrected forthwith. Unless within thirty (30) days after the
service of such notice upon the Bidder such default shall be
corrected or arrangements for the correction thereof, satisfactory
to both the Owner and the Administrator, shall have been made by the
Bidder, the Owner may take over the performance of the Bidder's
obligations hereunder and prosecute the same to completion by
contract or otherwise for the account and at the expense of the
Bidder, and the Bidder shall be liable to the Owner for any
supportable cost or expense in excess of the bid price occasioned
thereby. The Owner, in such contingency, may exercise any rights,
claims, or demands which the Bidder may have against third persons
in connection herewith and for such purpose the Bidder does hereby
assign, transfer, and set over unto the Owner all such rights,
claims, and demands.
Section 2. Liquidated Damages. Should the Bidder fail to
complete any Project as shown under Column 5, ``Completion of the
Project,'' in Article I, section 1, due to circumstances or events
under control of the Bidder, within the time herein agreed upon,
after giving effect to extensions of time, if any, herein provided,
then, in that event and in view of the difficulty of estimating with
exactness damages caused by such delay, the Owner shall, so long as
the subject Project shall not have been placed in service, have the
right to deduct from and retain out of such moneys which may be then
due, or which may become due and payable to the Bidder, the sum of:
____________________ dollars ($____________) for
----------------------------------------------------------------------
(Project)
____________________ dollars ($____________) for
----------------------------------------------------------------------
(Project)
____________________ dollars ($____________) for
----------------------------------------------------------------------
(Project)
per day for each and every day that such completion is delayed
beyond the scheduled time for Completion of the Project, as
liquidated damages and not as a penalty, up to the amount of the
respective Base Bid plus accepted alternates for the affected
Project; provided, however, that the Owner shall promptly notify the
Bidder in writing of the manner in which the amount claimed as
liquidated damages was computed. The Bidder shall pay to the Owner
the amount necessary to effect such payment in full. Such payment is
not to be reduced by the value of any partial performance by the
Bidder.
At the technical sessions, each Bidder shall identify all
features and capabilities that are not fully developed or do not
have a verifiable satisfactory field performance record. If the
Owner allows these features to be bid as separate Projects, then
they are to be individually listed under Columns 1 through 8, in
Article I, section 1. These unproven features and capabilities are
to be individually listed in this section 2 also, with liquidated
damages amounts determined by the Owner and stated for each. If a
Bidder neglects to identify any such feature at the technical
session, delay in providing the feature is considered a delay in
completing the associated Project and the Owner may assess
liquidated damages listed for that Project regardless of whether the
Project is placed in service.
Section 3. Consequential Damages. In no event shall the Bidder's
liability for incidental or consequential loss or damage, except for
personal injury or tangible property damage, exceed the amount of 10
times the total contract price, as amended.
Section 4. Enforcement of Remedies by Administrator. The
Administrator may on behalf of the Owner exercise any right or
enforce any remedy, which the Owner may exercise or enforce
hereunder.
Section 5. Cumulative Remedies. Every right or remedy herein
conferred upon or reserved to the Owner or the Administrator shall
be cumulative and shall be in addition to every right and remedy now
or hereafter existing at law or in equity or by statute and the
pursuit of any right or remedy shall not be construed as an
election; provided, however, that the provisions of section 2 of
this Article V shall be the exclusive measure of damages for failure
by the Bidder to have effected the Completion of Project within the
time herein agreed upon.
Article VI
Equal Employment
Section 1. The Bidder.
(a) The Bidder represents that:
(1) It has, ____________ does not have ____________, 100 or more
employees, and if it has, that
(2) It has ____________, has not ____________, furnished the
Equal Employment Opportunity Employers Information Report EEO-1,
Standard Form 100, required of employers with 100 or more employees
pursuant to Executive Order 11246, as amended, and Title VII of the
Civil Rights Act of 1964.
(b) The Bidder agrees that it will obtain, prior to the award of
any subcontract for more than $10,000 hereunder to a subcontractor
with 100 or more employees, a statement, signed by the proposed
subcontractor, that the proposed subcontractor has filed a current
report on Standard Form 100.
(c) The Bidder agrees that if it has 100 or more employees and
has not submitted a report on Standard Form 100 for the current
reporting year and that if this contract will amount to more than
$10,000, the Bidder will file such report, as required by law, and
notify the Owner in writing of such filing prior to the Owner's
acceptance of this proposal.
(d) The Bidder certifies that it does not maintain or provide
for its employees any segregated facilities at any of its
establishments, and that it does not permit its employees to perform
their services at any location, under its control, where segregated
facilities are maintained. The Bidder certifies further that it will
not maintain or provide for its employees any segregated facilities
at any of its establishments, and that it will not permit its
employees to perform their services at any location, under its
control, where segregated facilities are maintained. The Bidder
agrees that a breach of this certification is a violation of the
Equal
[[Page 68412]]
Opportunity Clause in this contract. As used in this certification,
the term ``segregated facilities'' means any waiting rooms, work
areas, restrooms and washrooms, restaurants and other eating areas,
timeclocks, locker rooms and other storage or dressing areas,
parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing facilities provided for employees which
are segregated by explicit directive or are in fact segregated on
the basis of race, color, religion, or national origin, because of
habit, local custom, or otherwise. The Bidder agrees that (except
where it has obtained identical certifications from proposed
subcontractors for specific time periods) it will obtain identical
certifications from proposed subcontractors prior to the award of
subcontracts exceeding $10,000 which are not exempt from the
provisions of the Equal Opportunity Clause, and that it will retain
such certifications in its files.
Section 2. During the performance of this contract, the
Contractor agrees as follows:
(a) The Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. The Contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated
during employment without regard to their race, color, religion,
sex, or national origin. Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Contractor
agrees to post in conspicuous places available to employees and
applicants for employment, notices to be provided setting forth the
provisions of this nondiscrimination clause.
(b) The Contractor will, in all solicitations or advertisements
for employees placed by or on behalf of the Contractor, state that
all qualified applicants shall receive consideration for employment
without regard to race, color, religion, sex, or national origin.
(c) The Contractor will send to each labor union or
representative of workers with which the Bidder has a collective
bargaining agreement or other contract or understanding, a notice to
be provided advising the said labor union or workers' representative
of the Contractor's commitments under this section, and shall post
copies of the notice in conspicuous places available to employees
and applicants for employment.
(d) The Contractor will comply with all provisions of Executive
Order 11246 and of the rules, regulations, and relevant orders of
the Secretary of Labor.
(e) The Contractor will furnish all information and reports
required by Executive Order 11246 and by rules, regulations, and
orders of the Secretary of Labor, or pursuant thereto, and will
permit access to the Contractor's books, records, and accounts by
the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations,
and orders.
(f) In the event of the Contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of the said
rules, regulations, or orders, this contract may be canceled,
terminated, or suspended in whole or in part and the Contractor may
be declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures
authorized in Executive Order 11246 and such other sanctions as may
be imposed and remedies invoked as provided in the said Executive
Order 11246 or by rule, regulation or order of the Secretary of
Labor, or as otherwise provided by law.
(g) The Contractor will include the portion of the sentence
immediately preceding paragraph (a) and the provisions of paragraphs
(a) through (g) in every subcontract or purchase order unless
exempted by rules, regulations, or orders of the Secretary of Labor
issued pursuant to section 204 of Executive Order 11246 so that such
provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontract or
purchase order as the administering agency may direct as a means of
enforcing such provisions, including actions for noncompliance;
provided, however, that in the event a contractor becomes involved
in, or is threatened with, litigation with a subcontractor or vendor
as a result of such direction by the administering agency, the
Contractor may request the United States to enter into such
litigation to protect the interests of the United States.
Section 3. Equal Employment Opportunity Specifications.
(a) As used in these specifications:
``Covered area'' means the geographical area described in the
solicitation from which this contract resulted;
``Director'' means Director, Office of Federal Contract
Compliance Programs, United States Department of Labor, or any
person to whom the Director delegates authority;
``Employer identification number'' means the Federal Social
Security number used on the Employer's Quarterly Federal Tax Return,
U.S. Treasury Department Form 941; and
``Minority'' includes:
(i) Black (all persons having origins in any of the Black
African racial groups not of Hispanic origin);
(ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban,
Central or South American or other Spanish Culture or origin,
regardless of race);
(iii) Asian and Pacific Islander (all persons having origins in
any of the original peoples of the Far East, Southeast Asia, the
Indian Subcontinent, or the Pacific Islands); and
(iv) American Indian or Alaskan Native (all persons having
origins in any of the original peoples of North America and
maintaining identifiable tribal affiliations through membership and
participation or community identification).
(b) Whenever the Contractor, or any subcontractor at any tier,
subcontracts a portion of the work involving any construction trade,
it shall physically include in each subcontract in excess of $10,000
the provisions of these specifications and the Notice which contains
the applicable goals for minority and female participation and which
is set forth in the solicitations from which this contract resulted.
(c) If the Contractor is participating (pursuant to 41 CFR 60-
4.5) in a Hometown Plan approved by the U.S. Department of Labor in
the covered area either individually or through an association, its
affirmative action obligations on all work in the Plan area
(including goals and timetables) shall be in accordance with that
Plan for those trades which have unions participating in the Plan.
Contractors must be able to demonstrate their participation in and
compliance with the provisions of any such Hometown Plan. Each
Contractor or Subcontractor participating in an approved Plan is
individually required to comply with its obligations under the EEO
clause, and to make a good faith effort to achieve each goal under
the Plan in each trade in which it has employees. The overall good
faith performance by other contractors or subcontractors toward a
goal in an approved Plan does not excuse any covered contractor's or
subcontractor's failure to take good faith efforts to achieve the
Plan goals and timetables.
(d) The Contractor shall implement the specific affirmative
action standards provided in paragraphs (g) (i) through (xvi) of
these specifications. The goals set forth in the solicitation from
which this contract resulted are expressed as percentages of the
total hours of employment and training of minority and female
utilization the Contractor should reasonably be able to achieve in
each construction trade in which it has employees in the covered
area. Covered construction contractors performing construction work
in geographical areas where they do not have a federal or federally
assisted construction contract shall apply the minority and female
goals established for the geographical area where the work is being
performed. Goals are published periodically in the Federal Register
in notice form, and such notices may be obtained from any Office of
Federal Contract Compliance Programs office or from Federal
procurement contracting officers. The Contractor is expected to make
substantially uniform progress in meeting its goals in each craft
during the period specified.
(e) Neither the provisions of any collective bargaining
agreement, nor the failure by a union with which the Contractor has
a collective bargaining agreement, to refer either minorities or
women shall excuse the Contractor's obligations under these
specifications, Executive Order 11246 or the regulations promulgated
pursuant thereto.
(f) In order for the nonworking training hours of apprentices
and trainees to be counted in meeting the goals, such apprentices
and trainees must be employed by the Contractor during the training
period, and the Contractor must have made a commitment to employ the
apprentices and trainees at the completion of their training,
subject to the availability of employment opportunities. Trainees
must be trained pursuant to training programs approved by the U.S.
Department of Labor.
(g) The Contractor shall take specific affirmative actions to
ensure equal
[[Page 68413]]
employment opportunity. The evaluation of the Contractor's
compliance with these specifications shall be based upon its effort
to achieve maximum results from its actions. The Contractor shall
document these efforts fully, and shall implement affirmative action
steps at least as extensive as the following:
(i) Ensure and maintain a working environment free of
harassment, intimidation, and coercion at all sites, and in all
facilities at which the Contractor's employees are assigned to work.
The Contractor, where possible, will assign two or more women to
each construction project. The Contractor shall specifically ensure
that all foremen, superintendents, and other on-site supervisory
personnel are aware of and carry out the Contractor's obligation to
maintain such a working environment, with specific attention to
minority or female individuals working at such sites or in such
facilities.
(ii) Establish and maintain a current list of minority and
female recruitment sources, provide written notification to minority
and female recruitment sources and to community organizations when
the Contractor or its unions have employment opportunities
available, and maintain a record of the organizations' responses.
(iii) Maintain a current file of the names, addresses and
telephone numbers of each minority and female off-the-street
applicant and minority or female referral from a union, a
recruitment source or community organization and of what action was
taken with respect to each such individual. If such individual was
sent to the union hiring hall for referral and was not referred back
to the Contractor by the union or, if referred, not employed by the
Contractor, this shall be documented in the file with the reason
therefore, along with whatever additional actions the Contractor may
have taken.
(iv) Provide immediate written notification to the Director when
the union or unions with which the Contractor has a collective
bargaining agreement has not referred to the Contractor a minority
person or woman sent by the Contractor, or when the Contractor has
other information that the union referral process has impeded the
Contractor's efforts to meet its obligations.
(v) Develop on-the-job training opportunities and/or participate
in training programs for the area which expressly include minorities
and women, including upgrading programs and apprenticeship and
trainee programs relevant to the Contractor's employment needs,
especially those programs funded or approved by the Department of
Labor. The Contractor shall provide notice of these programs to the
sources compiled under (g)(ii) above.
(vi) Disseminate the Contractor's EEO policy by providing notice
of the policy to unions and training programs and requesting their
cooperation in assisting the Contractor in meeting its EEO
obligations; by including it in any policy manual and collective
bargaining agreement; by publicizing it in the company newspaper,
annual report, etc.; by specific review of the policy with all
management personnel and with all minority and female employees at
least once a year; and by posting the company EEO policy on bulletin
boards accessible to all employees at each location where
construction work is performed.
(vii) Review, at least annually, the company's EEO policy and
affirmative action obligations under these specifications with all
employees having any responsibility for hiring, assignment, layoff,
termination, or other employment decisions including specific review
of these items with onsite supervisory personnel such as
Superintendents, General Foremen, etc., prior to the initiation of
construction work at any job site. A written record shall be made
and maintained identifying the time and place of these meetings,
persons attending, subject matter discussed, and disposition of the
subject matter.
(viii) Disseminate the Contractor's EEO policy externally by
including it in any advertising in the news media, specifically
including minority and female news media, and providing written
notification to and discussing the Contractor's EEO policy with
other contractors and subcontractors with whom the Contractor does
or anticipates doing business.
(ix) Direct its recruitment efforts, both oral and written, to
minority, female, and community organizations, to schools with
minority and female students and to minority and female recruitment
and training organizations serving the Contractor's recruitment area
and employment needs. Not later than one month prior to the date for
the acceptance of applications for apprenticeship or other training
by any recruitment source, the Contractor shall send written
notification to organizations such as the above, describing the
openings, screening procedures, and tests to be used in the
selection process.
(x) Encourage present minority and female employees to recruit
other minority persons and women and, where reasonable, provide
after school, summer, and vacation employment to minority and female
youth both on the site and in other areas of a Contractor's work
force.
(xi) Validate all tests and other selection requirements where
there is an obligation to do so under 41 CFR Part 60-3.
(xii) Conduct, at least annually, an inventory and evaluation at
least of all minority and female personnel for promotional
opportunities and encourage these employees to seek or to prepare
for, through appropriate training, etc., such opportunities.
(xiii) Ensure that seniority practices, job classifications,
work assignments and other personnel practices, do not have a
discriminatory effect by continually monitoring all personnel and
employment related activities to ensure that the EEO policy and the
Contractor's obligations under these specifications are being
carried out.
(xiv) Ensure that all facilities and company activities are
nonsegregated except that separate or single-user toilet and
necessary changing facilities shall be provided to assure privacy
between the sexes.
(xv) Document and maintain a record of all solicitations of
offers for subcontracts from minority and female construction
contractors and suppliers, including circulation of solicitations to
minority and female contractor associations and other business
associations.
(xvi) Conduct a review, at least annually, of all supervisors'
adherence to and performance under the Contractor's EEO policies and
affirmative action obligations.
(h) Contractors are encouraged to participate in voluntary
associations, which assist in fulfilling one or more of their
affirmative action obligations (g)(i) through (xvi). The efforts of
a contractor association, joint contractor-union, contractor-
community, or other similar group of which the Contractor is a
member and participant, may be asserted as fulfilling any one or
more of its obligations under (g)(i) through (xvi) of these
specifications provided that the Contractor actively participates in
the group, makes every effort to assure that the group has a
positive impact on the employment of minorities and women in the
industry, ensures that the concrete benefits of the program are
reflected in the Contractor's minority and female workforce
participation, makes a good faith effort to meet its individual
goals and timetables, and can provide access to documentation which
demonstrates the effectiveness of actions taken on behalf of the
Contractor. The obligation to comply, however, is the Contractor's
and failure of such a group to fulfill an obligation shall not be a
defense for the Contractor's noncompliance.
(i) A single goal for minorities and a separate single goal for
women have been established. The Contractor, however, is required to
provide equal employment opportunity and to take affirmative action
for all minority groups, both male and female, and all women, both
minority and non-minority. Consequently, the Contractor may be in
violation of Executive Order if a particular group is employed in a
substantially disparate manner (for example, even though the
Contractor has achieved its goals for women generally, the
Contractor may be in violation of Executive Order 11246 if a
specific minority group of women is underutilized).
(j) The Contractor shall not use the goals and timetables or
affirmative action standards to discriminate against any person
because of race, color, religion, sex, or national origin.
(k) The Contractor shall not enter into any subcontract with any
person or firm debarred from Government contracts pursuant to
Executive Order 11246.
(l) The Contractor shall carry out such sanctions and penalties
for violation of these specifications and of the Equal Opportunity
Clause, including suspension, termination, and cancellation of
existing subcontracts as may be imposed or ordered pursuant to
Executive Order 11246 and its implementing regulations, by the
Office of Federal Contract Compliance Programs. Any Contractor who
fails to carry out such sanctions and penalties shall be in
violation of these specifications and Executive Order 11246.
(m) The Contractor, in fulfilling its obligations under these
specifications, shall implement specific affirmative action steps,
at least as extensive as those standards prescribed in paragraph (g)
of these specifications, so as to achieve maximum
[[Page 68414]]
results from its efforts to ensure equal employment opportunity. If
the Contractor fails to comply with the requirements of Executive
Order 11246, as amended, the implementing regulations, or these
specifications, the Director shall proceed in accordance with 41 CFR
60-4.8.
(n) The Contractor shall designate a responsible official to
monitor all employment related activity to ensure that the company
EEO policy is being carried out, to submit reports relating to the
provisions hereof as may be required by the Government and to keep
records. Records shall at least include for each employee the name,
address, telephone numbers, construction trade, union affiliation if
any, employee identification number when assigned, social security
number, race, sex, status (e.g., mechanic, apprentice, trainee,
helper, or laborer), dates of changes in status, hours worked per
week in the indicated trade, rate of pay, and locations at which the
work was performed. Records shall be maintained in an easily
understandable and retrievable form; however, to the degree that
existing records satisfy this requirement, contractors shall not be
required to maintain separate records.
(o) Nothing herein provided shall be construed as a limitation
upon the application of other laws which establish different
standards of compliance or upon the application of requirements for
the hiring of local or other area residents (e.g. those under the
Public Works Employment Act of 1977 and the Community Development
Block Grant Program).
Section 4. In this Article VI.
(a) The term ``Contractor'' shall also mean ``Bidder'' or
``Subcontractor'' as applicable.
(b) The provisions of sections 2 & 3 are applicable to the
extent required by law. In determining whether these sections are
applicable, reference should be made to Office of Federal Contract
Compliance Programs regulations (41 CFR Part 60).
Article VII
Miscellaneous
Section 1. Definitions.
The term ``Completion of the Contract'' shall mean
accomplishment of completion of the Project for all central offices
(and associated remote switching terminals), features and services
listed under Column 1, ``Project,'' in Article I, section 1, and all
alternates accepted by the Owner, on the Owner's acceptance.
The term ``Completion of the Project'' shall mean full
performance by the Bidder of the Bidder's obligations herein set out
and all amendments and revisions thereof for a central office (and
all associated remote switching terminals), feature or service. The
scheduled date for completion of the Project is ninety (90) days
after delivery as specified under Column 4, ``Delivery,'' in Article
I, section 1, as amended or adjusted under Article II, section 1,
and section 3. The scheduled date for Completion of the Project is
the date from which liquidated damages are computed. The actual date
of completion of the Project shall be the date of the receipt by the
Owner from the Bidder of written notification that all deficiencies
listed on the results of acceptance tests have been corrected;
provided, that the final inspection and tests by the Owner finds the
deficiencies satisfactorily resolved. If the deficiencies have not
been satisfactorily resolved, the actual date of completion of the
Project shall be the date that the deficiencies are fully and
satisfactorily resolved as determined by subsequent Owner's tests.
The Certificate of Completion approved and signed by the Owner and
approved in writing by the Administrator shall be conclusive
evidence as to the fact of Completion of the Project and the date
thereof. Full compliance with the procedure for ``Completion of the
Project'' and an individual Certificate of Completion is required
for each Project listed under Column 1, ``Project,'' in Article I,
section 1.
The ``Contract'' shall consist of the Notice and Instructions to
Bidders, the Bidder's proposal and the Owner's acceptance, and the
Specifications.
The term ``days'' shall mean calendar days.
The term ``minor errors or irregularities'' shall mean a defect
or variation in a Bidder's bid that is a matter of form and not of
substance. Errors or irregularities are ``minor'' if they can be
corrected or waived without being prejudicial to other Bidders and
when they do not affect the price, quantity, quality, or timeliness
of construction. Unless otherwise noted, the Owner determines
whether an error or irregularity is ``minor.''
The term ``placed in service'' shall mean used by the Owner to
earn revenue.
The term ``Project'' shall mean a central office and all
associated remote switching terminals (if any), a remote switching
terminal if purchased without a supporting central office, a feature
(or group of features), or a service (or group of services), which
is listed under Column 1, ``Project,'' in Article I, section 1. The
only instance in which a remote switching terminal can constitute a
separate Project is where such remote switching terminal is
purchased with associated modifications to its supporting host
switch but no other modifications to the host switch are specified.
A Project will have a single completion schedule listed under Column
5 ``Completion of the Project,'' in Article I, section 1, and a
single liquidated damages amount shown in Article V, section 2. The
Contract may consist of one or more Projects.
The term ``Software'' shall mean computer programs contained on
a tape, disc, semiconductor device or other memory device or system
memory consisting of logic instructions and instruction sequences in
machine-readable object code, which manipulate data in the central
processor, control and perform input/output operations, perform
error diagnostic and recovery routines, control call processing, and
perform peripheral control, and administrative and maintenance
functions; as well as associated documentation, excluding source
code, used to describe, maintain, and use the programs provided
under the Contract.
The term ``Specifications'' shall mean the minimum performance
requirements of the Owner as contained in the documents listed
below, and attached to this agreement:
RUS Form---------------------------------------------------------------
dated------------------------------------------------------------------
RUS Form---------------------------------------------------------------
dated------------------------------------------------------------------
RUS Form---------------------------------------------------------------
dated------------------------------------------------------------------
RUS Form---------------------------------------------------------------
dated------------------------------------------------------------------
requirements may have been amended by specific written exceptions in
the Bidder's proposal which have been agreed to by the Owner and
accepted by the Administrator.
Section 2. Continuing Equipment Support--Parts, Service, and
Software. In addition to warranty repairs and replacement, the
Bidder shall offer repair service and repair parts to the Owner in
accordance with the Bidder's practices and terms then in effect, for
the Bidder's manufactured equipment furnished pursuant to this
Agreement. Such repair service or repair parts shall be available
for as long as the Bidder is manufacturing or stocking such
equipment, or for no less than eight (8) years after the Bidder has
ceased manufacturing or offering such equipment for sale. The Bidder
shall also offer software support services to the Owner in
accordance with the Bidder's practices, terms, and charges then in
effect, but in any event for no less than five (5) years after the
Bidder has ceased manufacturing or offering for sale such software.
Section 3. Materials and Supplies. The Bidder shall use only
such unmanufactured articles, materials, and supplies as have been
mined or produced in the United States, or in any eligible country,
and only such manufactured articles, materials, and supplies as have
been manufactured in the United States, or in any eligible country,
substantially all from articles, materials, or supplies mined,
produced or manufactured, as the case may be, in the United States,
or in any eligible country, provided that other articles, materials,
or supplies may be used in the event and to the extent that the
Administrator shall expressly authorize in writing such use pursuant
to the provisions of the Rural Electrification Act of 1938, being
Title IV of Public Resolution No. 122, 75th Congress, approved June
21, 1938. For purposes of this section, an ``eligible country'' is
any country that applies with respect to the United States an
agreement ensuring reciprocal access for United States products and
services and United States suppliers to the markets of that country,
as determined by the United States Trade Representative. The Bidder
agrees to submit to the Owner such certificate or certificates,
signed by the Bidder and all subcontractors, with respect to
compliance with the foregoing provision as the Administrator from
time to time may require.
Section 4. Confidentiality. All information supplied by the
Bidder to the Owner which bears a legend or notice restricting its
use, copying, or dissemination, except insofar as it may be in the
public domain through no acts attributable to the Owner, shall be
treated by the Owner as confidential information, and the Owner
shall not reproduce any such information except for its own internal
use and as authorized by this Contract, and shall use any
information only for archival backup, in-house training, operating,
maintenance, and administrative
[[Page 68415]]
purposes and in conjunction with its use of the equipment,
materials, and software furnished hereunder. All information
supplied to the Bidder by the Owner which bears a legend or notice
restricting its use, copying, or dissemination, except insofar as it
may be in the public domain through no acts attributable to the
Bidder, shall be treated by the Bidder as confidential information,
and shall not be used by the Bidder for any purpose adverse to the
interests of the Owner, and shall not be reproduced or distributed
by the Bidder except for the Bidder's use in its performance under
this Contract. The foregoing confidentiality obligations do not
apply to information which is independently developed by the
receiving party or which is lawfully received by the receiving party
free of restriction from another source having a right to so furnish
such information, or is already known to the receiving party at the
time of disclosure free of restriction. If the Bidder has failed to
provide continuing equipment support as described in Article VII,
section 2, the Owner is released from this obligation. This
provision does not restrict release of information by the United
States of America pursuant to the Freedom of Information Act or
other legal process.
Section 5. Entire Agreement. The terms and conditions of this
Contract as approved by RUS supersede all prior oral or written
understandings between the parties. There are no understandings or
representations, expressed or implied, not expressly set forth
herein.
Section 6. Survival of Obligations. The rights and obligations
of the parties, which by their nature, would continue beyond the
termination, cancellation, or expiration of this Contract, shall
survive such termination or expiration.
Section 7. Non-Waiver. No waiver of any terms or conditions of
this Contract, or the failure of either party to enforce strictly
any such term or condition on one or more occasions, shall be
construed as a waiver of the same or of any other terms or
conditions of this Contract on any other occasion.
Section 8. Releases Void. Neither party shall require releases
or waivers of any personal rights from representatives or employees
of the other in connection with visits to its premises, nor shall
such parties plead such releases or waivers in any action or
proceeding.
Section 9. Nonassignment of Contract. The Bidder shall not
assign the Contract, effected by acceptance of this proposal, or any
part hereof, or enter into any contract with any person, firm or
corporation, for the performance of the Bidder's obligations
hereunder, or any part hereof, without the approval in writing of
the Owner, the Surety, and the Administrator.
Section 10. Choice of Law. The rights and obligations of the
parties and all interpretations and performance of this Contract
shall be governed in all respects by the laws of the State of
____________________ except for its rules with respect to the
conflict of laws.
Section 11. Approval of the Administrator. The acceptance of
this proposal by the Owner shall not create a contract unless such
acceptance shall be approved in writing by the Administrator within
ninety (90) days after the date hereof:
By---------------------------------------------------------------------
(Signature of Bidder)
----------------------------------------------------------------------
(Name--Type or Print)
----------------------------------------------------------------------
(Title)
----------------------------------------------------------------------
(Company Name of Bidder)
----------------------------------------------------------------------
----------------------------------------------------------------------
(Address of Bidder)
Attest:
----------------------------------------------------------------------
(Secretary)
----------------------------------------------------------------------
(Date)
The proposal must be signed with the full name of the Bidder. In
the case of a partnership, the proposal must be signed in the firm
name by each partner. In the case of a corporation, the proposal
must be signed in the corporate name by a duly authorized officer
and the Corporate seal affixed and attested by the Secretary of the
Corporation.
(If executed by other than the President, a Vice-President, the
partners or the individual owner, a power of attorney or other
legally acceptable document authorizing execution shall accompany
this contract, unless such power of attorney is on file with RUS.)
Acceptance
Subject to the approval of the Administrator, the Owner hereby
accepts the proposal of
----------------------------------------------------------------------
----------------------------------------------------------------------
for the Project(s) herein described for the Total Base Bid of
$________________ and
Alternate For
Spare Parts, Item(s)........................ $
Maintenance Tools, Item(s).................. $
Alternate No. 1 add (deduct)................ $
Alternate No. 2 add (deduct)................ $
Alternate No. 3 add (deduct)................ $
Alternate No. 4 add (deduct)................ $
Alternate No. 5 add (deduct)................ $
Alternate No. 6 add (deduct)................ $
The total contract price is............. $
By---------------------------------------------------------------------
Owner
----------------------------------------------------------------------
President
Attest:
----------------------------------------------------------------------
Secretary
----------------------------------------------------------------------
Date Of Acceptance
Dated: December, 7, 1998.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 98-32883 Filed 12-10-98; 8:45 am]
BILLING CODE 3410-15-P
