1. Commercial Item means a commercial item as defined in FAR

Transcription

1 Federal Acquisition Regulation (FAR) and Department of Defense Federal Acquisition Regulation Supplement (DFARS) Flowdown Provisions for Subcontracts/Purchase Orders Under a U.S. Government Contract This Contract is entered into by the parties in support of a U.S. Government contract. The Federal Acquisition Regulation ( FAR ) and Department of Defense Federal Acquisition Regulation Supplement ( DFARS ) clauses referenced below are incorporated herein by reference, with the same force and effect as if they were given in full text, and are applicable to this Contract. If the date or substance of any of the clauses listed below is different from the date or substance of the clause actually incorporated in the Prime Contract referenced by number herein, the date or substance of the clause incorporated by said Prime Contract shall apply instead. Seller shall include in each lower-tier subcontract the appropriate flowdown clauses as required by the FAR, DFARS and agency FAR Supplement clauses included in this Contract. As used in the FAR and DFARS clauses referenced below and otherwise in this Contract: 1. Commercial Item means a commercial item as defined in FAR Contract means this contract. 3. Contracting Officer shall mean the U.S. Government Contracting Officer for Coherent s government prime contract under which this Contract is entered. 4. Contractor and Offeror means the Seller, which is the party identified on the face of the Contract with whom Coherent is contracting, acting as the immediate subcontractor to Coherent. 5. Prime Contract means the contract between Coherent and the U.S. Government or between Coherent and its higher-tier contractor who has a contract with the U.S. Government. 6. Subcontract means any contract placed by Seller or lower-tier subcontractors under this Contract. Federal Acquisition Regulation (FAR) Clauses Clause Title Title Applicability , Alt 1 Restrictions on Subcontractor Sales to the If subcontract exceeds $150,000 Government (SEP 2006) Anti-Kickback Procedures (MAY 2014) If subcontract exceeds $150, Cancellation, Rescission, and Recovery of Funds for Illegal or Improper Activity (MAY 2014) If subcontract exceeds $150,000 and is for other than commercial items Price or Fee Adjustment for Illegal or Improper Activity (MAY 2014) If subcontract is over $150,000 and is for other than commercial items Certification and Disclosure Regarding Payments to If subcontract exceeds $150,000 Influence Certain Federal Transactions (SEP 2007) Limitation on Payments to Influence Certain Federal If subcontract over $150,000 Transactions (OCT 2010) Contractor Code of Business Ethics and Conduct If subcontract exceeds $5.5 million and has Page 1 of 11

2 Clause Title Title Applicability (OCT 2015) performance period of more than 120 days. Disclosures made under this clause shall be made directly to the Government entities identified in the clause Display of Hotline Poster(s) (OCT 2015) If subcontract exceeds $5.5 million, except when subcontract is for commercial items Whistleblower Protections Under the American If subcontract will be funded in whole or in Recovery and Reinvestment Act of 2009 (JUN 2010) Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights (APR 2014) part under Recovery Act If subcontract exceeds $150,000. Subcontract and employees working on the subcontract will be subject to the whistleblower rights, remedies and protections established at 41 U.S.C by section 828 of the National Defense Authorization Act for FY 2013 (Pub. L ) and FAR Security Requirements (AUG 1996) If the subcontract includes access to classified information, but excluding any reference to Changes clause of the prime contract Reporting Executive Compensation and First-Tier Subcontract Awards (OCT 2015) Certification Regarding Debarment, Suspension, Proposed Debarment and Other Responsibility Matters (OCT 2015) Protecting the Government s Interest When Subcontracting with Contractors Debarred, Suspended or Proposed for Debarment (OCT 2015) Defense Priority and Allocation Requirements (APR 2008) Subparagraph (d)(2) does not apply. If Seller meets the thresholds specified in paragraphs (d)(3) and (g)(2) of the clause, Seller shall report required executive compensation by posting the information to the Government s System for Award Management database for federal contractors. All information posted will be available to the general public. Applies if subcontract exceeds $35,000, but not if subcontract is for commercial off-theshelf items If order is DPAS rated order, must flow down requires to subcontractors. Copies of notices provided by Seller to the Contracting Officer shall be provided to Coherent Contract Terms and Conditions Required to Subparagraph (e) identifies mandatory Implement Statutes or Executive Orders - flowdown clauses in subcontracts for Commercial Items (JUN 2016) commercial items Audit and Records Sealed Bidding (OCT 2010) Subcontracts over $750,000 involving sealed bidding Subcontracts over $750,000 where certified cost or pricing data is required Subcontractor Cost or Pricing Data Modifications Sealed Bidding (OCT 2010) Audit and Records Negotiation (OCT 2010) Subcontracts over $150, Subcontractor Cost or Pricing Data (OCT 2010) Subcontracts over $750,000 where certified cost or pricing data is required Subcontractor Cost or Pricing Data Modifications (OCT 2010) Integrity of Unit Prices (OCT 2010) Notification of Ownership Changes (OCT 1997) Requirements for Certified Cost or Pricing Data and Subcontracts over $750,000 where certified cost or pricing data is required Page 2 of 11

3 Clause Title Title Applicability Data Other Than Certified Cost or Pricing Data (OCT 2010) Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data - Modifications (OCT 2010) Utilization of Small Business Concerns (OCT 2014) If subcontract exceeds $150, Small Business Subcontracting Plan (OCT 2015) If subcontract offers subcontracting possibilities and is expected to exceed $700,000; not applicable is subcontractor is a small business concern Liquidated Damages - Subcontracting Plan (JAN 1999) Included in subcontracts where applies Convict Labor (JUN 2003) Implements E.O Contract Work Hours and Safety Standards Act Paragraphs (a) through (d) apply Overtime Compensation (MAY 2014) Construction Wage Rate Requirements (MAY 2014) If construction contract involved Nondisplacement of Qualified Workers (MAY 2014) Implements E.O Child Labor - Cooperation with Authorities and Remedies (FEB 2016) Prohibition of Segregated Facilities (APR 2015) Previous Contracts and Compliance Reports (FEB 1999) If Seller represents that it has participated in a previous contract or subcontract subject to FAR Affirmative Action Compliance (APR 1984) Included when FAR applies Equal Opportunity (APR 2015) If subcontract exceeds $50,000 and subcontractor has 50 or more employees Equal Opportunity for Veterans (OCT 2015) If subcontract exceeds $150, Equal Opportunity for Workers with Disabilities If subcontract exceeds $15,000 (JUL 2014) Employment Reports on Veterans (FB 2016) If FAR applies Notification of Employee Rights Under the National If subcontract exceeds $10,000 Labor Relations Act (DEC 2010) Service Contract Labor Standards (MAY 2014) If subcontract is for services covered by the Service Contract Act. This clause does not apply if this Contract has been administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 356, as interpreted in Subpart C of 29 CFR Part 4) Combating Trafficking in Persons (MAR 2015) Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment - Requirements (MAY 2014) Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services - Requirements (MAY 2014) Employment Eligibility Verification (OCT 2015) If subcontract exceeds $3,500 except for commercial services that are part of the purchase of a COTS item, or an item that would be a COTS item but for minor modifications, performed by the COTS provider, and are normally provided for that COTS item Page 3 of 11

4 Clause Title Title Applicability Minimum Wages Under Executive Order (DEC 2015) If subcontract is for services covered by the Service Contract Labor Standards Hazardous Material Identification and Material Safety Data (JAN 1997) If contract requires delivery of hazardous materials, defined in FAR Notice of Radioactive Materials (JAN 1997) Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (JUN 2016) If the product was manufactured with or contains ozone-depleting substances Maintenance, Service, Repair or Disposal of Refrigeration Equipment and Air Conditioners (JUN 2016) If subcontract is for services involving maintenance, repair or disposal of any equipment or appliance using ozonedepleting substances Energy Efficiency in Energy-Consuming Products (DEC 2007) Applies if subcontract requires energyconsuming products listed in the ENERGY STAR Program or Federal Energy Management Program to be delivered; acquired by subcontractor for use in performing services at Federally-controlled facility; furnished for use by the Government; or specified in the design of a building or work, or incorporated during its construction, renovation or maintenance Acquisition of EPEAT -Registered Personal Computer Products (OCT 2015) Included in contracts for personal computer products, service that require furnishing personal computer products for use by the Government, or contractor operation of Government owned facilities Encouraging Contractor Policies to Ban Text If subcontract exceeds $3,500 Messaging While Driving (AUG 2011) Privacy Act (APR 1984) Buy American Act Supplies (MAY 2014) Buy American Act Free Trade Agreements Israeli Trade Act (MAY 2014) Trade Agreements (FEB 2016) Trade Agreements Certificate (MAY 2014) Duty-Free Entry (OCT 2010) Restrictions on Certain Foreign Purchases (JUN 2008) Contractors Performing Private Security Functions Outside the United States (JUL 2013) Promoting Excess Food Donation to Nonprofit Flow down required pursuant to (e) Organizations (MAY 2014) Authorization and Consent (DEC 2007) If subcontract exceeds $150, Notice and Assistance Regarding Patent and If subcontract exceeds $150,000 Copyright Infringement (DEC 2007) Refund of Royalties (APR 1984) Filing of Patent Applications Classified Subject Matter (DEC 2007) Patent Rights Ownership by the Contractor (MAY 2014) Patent Rights Ownership by the Government (DEC 2007) Rights in Data General (MAY 2014) Additional Data Requirements (JUN 1987) Page 4 of 11

5 Clause Title Title Applicability Rights in Data Special Works (DEC 2007) Rights in Data Existing Works (DEC 2007) Commercial Computer Software License (DEC 2007) Workers Compensation Insurance (Defense Base Act) (JUL 2014) Workers Compensation and War-Hazard Insurance Overseas (APR 1984) If Defense Base Act applies When the contract will be a public-work contract performed outside the United States and the Secretary of Labor waives the applicability of the Defense Base Act Insurance Work on a Government Installation (JAN 1997) Federal, State, and Local Taxes (FEB 2013) If fixed-price contract exceeds $150, State of New Mexico Gross Receipts and Compensating Tax (APR 2003) Progress Payments (APR 2012) Unenforceability of Unauthorized Obligations (JUN 2013) Providing Accelerated Payments to Small Business Subcontractors (DEC 2013) If any supply or service acquired under the subcontract is subject to any End User License Agreement (EULA), Terms of Service (TOS) or similar legal instrument or agreement If flow down required in accordance with (c). This clause does not apply if Coherent does not receive accelerated payments under the prime contract. Not all agencies provide accelerated payments Disputes(MAY 2014) Industrial Resources Developed Under Defense Production Act Title III (DEC 1994) Accident Prevention (NOV 1991) Suspension of Work (APR 1984) Applies to fixed-price construction or architect-engineer contract is contemplated Stop-Work Order (AUG 1989) Applies to solicitations and contracts for supplies, services or research and development Government Delay of Work (APR 1984) Changes-Fixed Price (AUG 1987) 30 days in paragraph (c) is changed to 20 days Subcontracts for Commercial Items (JUN 2016) Government Property (APR 2012) If Government property is involved Government Property Installation Operation Services If Government property is involved (APR 2012) Contractor Inspection Requirements (APR 1984) Required when contract is $150,000 or less and clause is necessary to ensure explicit understanding of contractor s inspection responsibilities Inspection of Supplies Fixed-Price (AUG 1996) Inspection of Supplies Cost Reimbursement (MAY 2001) Inspection of Services Fixed-Price (AUG 1996) Inspection of Services Cost Reimbursement (APR 1984) Page 5 of 11

6 Clause Title Title Applicability Inspection--Time-and-Material and Labor-Hour (MAY 2001) Responsibility for Supplies (APR 1984) Preference for U.S.-Flag Air Carriers (JUN 2003) If international air transportation of personnel or property will be required Preference for Privately Owned U.S.-Flag Commercial Vessels (FEB 2006) Value Engineering (OCT 2010) If subcontract exceeds $150, Termination for Convenience of the Government (Fixed-Price)(APR 2012) Department of Defense FAR Supplement (DFARS) Clauses Prohibition on Persons Convicted of Fraud or Other If subcontract exceeds $150,000 Defense-Contract Related Felonies (DEC 2008) Requirement to Inform Employees of Whistleblower Rights (SEP 2013) Agency Office of the Inspector General (DEC 2012) Display of Hotline Posters (OCT 2015) If subcontract exceeds $5.5million, except when subcontract is for commercial items Limitations on the Use and Disclosure of Third-Party Contractor Reported Cyber Incident Information (DEC 2015) Safeguarding Covered Defense Information and Cyber Incident Reporting (DEC 2015) In the case of a reportable cyber incident, the Seller shall report cyber incidents within 72 hours to Coherent s authorized representative and to the Department of Defense at Limitation on the Use or of Information by Litigation Support Contractors (MAY 2016) Notice of Authorized Disclosure of Information for Litigation Support (MAY 2016) Item Unique Identification and Valuation (DEC 2013 When order involves goods for which unique item identification is required in accordance with paragraph (c)(1) Small Business Subcontracting Plan (DOD Contracts) - Basic (MAR 2016) Applies when FAR applies and order exceeds $700,000; does not apply to international suppliers when work is performed outside the United States Restrictions on the Use of Mandatory Arbitration Agreements (DEC 2010) Representation Regarding Trafficking in Persons (JAN 2015) Hazard Warning Labels (DEC 1991) Applies if this subcontract requires the delivery of hazardous materials Safety Precautions for Ammunition and Explosives (MAY 1994) Applies only if the articles furnished under this subcontract contain ammunition or explosives, including liquid and solid propellants Change in Place of Performance - Ammunition and Explosives (DEC 1991) Applies if DFARS applies to this subcontract Prohibition of Hexavalent Chromium (JUN 2013) When order is for supplies, maintenance or repair services Page 6 of 11

7 Buy American Act - Balance of Payments Program Certificate - BASIC (NOV 2014) Buy American Act - Balance of Payments Program (NOV 2014) Prohibition on Acquisition of United States Munitions List Items from Communist Chinese Military Companies (SEP 2006) Restriction on Acquisition of Certain Articles Containing Specialty Metals (OCT 2014) Commercial Derivative Military Article - Specialty Metals Compliance Certificate (JUL 2009) Applies in lieu of FAR Applies in lieu of FAR Applies if Seller is supplying items on the U.S. Munitions List Applies if Seller is supplying products that contain specialty metals. Note: Use of exceptions not permitted without advance notification by Seller and prior approval by Coherent. Paragraph (d) is excluded. If Seller is providing commercial derivative military articles, as defined in DFARS , Restriction on Acquisition of Certain Articles Containing Specialty Metals, Seller shall complete this certification and comply with specified specialty metal restrictions Preference for Certain Domestic Commodities (FEB 2013) Duty-Free Entry (MAY 2016) DOD contracts only; applies in lieu of FAR Trade Agreements - Basic (OCT 2015) Applies in lieu of FAR Buy American Act - Free Trade Agreements - Balance of Payments Program Certificate - BASIC (NOV 2014) Applies when DFARS applies and in lieu of FAR Buy American Act - Free Trade Agreements - Applies in lieu of FAR Balance of Payments Program - BASIC (NOV 2014) Restriction on Acquisition of Air Circuit Breakers (JUN 2005) Applies if order will involve air circuit breakers Export Controlled Items (JUN 2013) Yes Prohibition on Contracting with the Enemy in the United States Applies to subcontracts with estimated value of $50,000 or more if DFARS Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business Concerns (SEP 2004) Rights in Technical Data - Noncommercial Items (FEB 2014) Rights in Noncommercial Computer Software and Noncommercial Computer Software Documents (FEB 2014 is included in Coherent s prime contract Applies if subcontract exceeds $500,000 Applies in lieu of FAR Applies when Seller is required to deliver computer software or computer software documentation Technical Data - Commercial Items (FEB Validation of Asserted Restrictions - Computer Software (SEP 2011) Validation of Restrictive Markings on Technical Data (JUN 2013) Subcontracts for Commercial Items (JUN 2013) Included in all subcontracts for commercial items at any tier Notification of Potential Safety Issues (JUN 2013) Applies if subcontract is for (i) parts identified as critical safety items; (ii) systems and subsystems, assemblies, and subassemblies integral to a system; or (iii) repair, maintenance, logistics support, or Page 7 of 11

8 Contractor Counterfeit Electronic Part Detection and Avoidance System (MAY 2014) Transportation of Supplies by Sea - BASIC (APR 2014) Notification of Transportation of Supplies by Sea (MAR 2000) Notification of Anticipated Contract Termination or Reduction (OCT 2015) overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system. Seller shall provide notifications to Coherent and the contracting officer identified to Seller Applies if prime contractor is subject to Cost Accounting Standards. Applies to subcontracts exceeding $150,000 Page 8 of 11

9 Flowdown Provisions for Subcontracts Issued Under Federally-funded Grants 2 CFR Part 200 Office of Management and Budget, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards Appendix II to 2 CFR Part 200 Equal Employment Opportunity Copeland Anti- Kickback Act (18 U.S.C. 874 and 40 U.S.C. 276c) Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7) Contract Provisions for Non-Federal Entity Contracts Under Federal Awards All contracts must contain a provision requiring compliance with Executive Order 11246, Equal Employment Opportunity, as amended by E.O , Amending Executive Order Relating to Equal Employment Opportunity, and as supplemented by regulations at 41 CFR Part 60 - Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients must include a provision for compliance with the Copeland Anti-Kickback Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR Part 3 - Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal awarding agency. When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2,000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR Part 5 - Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage Applies to subawards and contracts issued under federal grant awards Contract provisions apply to all contracts made by a non-federal entity under a federal grant award in addition to other provisions required by the Federal grant agency or the non-federal entity Yes (if construction contract involved) Yes (if construction contract involved) Yes (if construction contract involved) Page 9 of 11

10 Contract Work Hours and Safety Standards Act (40 U.S.C ) Rights to Inventions Made Under a Contract or Agreement Clean Air Act (42 U.S.C et seq.) and the Federal Water Pollution Control Act (33 U.S. C et seq.), as amended Byrd Anti Lobbying Amendment (31 U.S.C. 1352) determination. The recipient shall report all suspected or reported violations to the Federal awarding agency. Where applicable, all contracts awarded by recipients in excess of $2,000 for construction contracts and in excess of $2,500 for other contracts that involve the employment of mechanics or laborers must include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act(40 U.S.C ), as supplemented by Department of Labor regulations (29 CFR Part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. Contracts or agreements for the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR Part 401--Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements, and any implementing regulations issued by the awarding agency. Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C et seq.) and the Federal Water Pollution Control Act as amended(33 U.S. C et seq.). Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress Yes (if construction contract involved) Yes ( if contract for the performance of experimental, developmental, or research work) Yes Yes Page 10 of 11

11 Debarment and Suspension (E.O and E.O ) Access to Records (OMB Uniform Administrative Regulation, 2 CFR ) in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any Federal award. The disclosures are forwarded from tier-to-tier up to the recipient. No contract may be made to parties listed on the General Services Administration's Excluded Parties List (List of Parties Excluded from Federal Procurement or Nonprocurement Programs) in accordance with E.O and E.O Debarment and Suspension. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O Contractors with awards that exceed the small purchase threshold must provide the required certification regarding its exclusion status and that of its principal employees. All negotiated contracts (except for those less than the small purchase threshold) awarded by recipients shall include a provision to the effect that the recipient, the Federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the contractor which are directly pertinent to specific program for the purpose of making audits, examination, excerpts and transcriptions. Yes Yes Page 11 of 11