RUS Form 545, Central Office Equipment Contract (Not Including Installation)

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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* * * * * *

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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

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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