Special Equipment Contract (Including Installation)
Federal RegisterFeb 20, 1998
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1755
RIN 0572-AB35
Special Equipment Contract (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
regulation on RUS Telecommunications Standards and Specifications for
Material, Equipment and Construction. This action codifies RUS Form
397, Special Equipment Contract (including installation) and announces
a general revision of RUS Form 397. This contract incorporates
amendments currently attached to the RUS Form 397, Special Equipment
Contract, and updates contract terms and format.
DATES: Written comments must be received by RUS or carry a postmark or
equivalent not later than April 21, 1998.
ADDRESSES: Submit written comments to Orren E. Cameron III, Director,
Telecommunications Standards Division, Rural Utilities Service, US
Department of Agriculture, STOP 1598, 1400 Independence Ave., SW,
Washington, DC 20250-1598. RUS requires a signed original and three
copies of all comments (7 CFR part 1700.30(e)). All comments received
will be made available for public inspection at Room 4034, South
Building, U.S. Department of Agriculture, Washington, DC, between 8:00
a.m. and 4:00 p.m. (7 CFR part 1.27(b)).
FOR FURTHER INFORMATION CONTACT: Gary B. Allan, Chief, Transmission
Branch, Telecommunications Standards Division, Rural Utilities Service,
U.S. Department of Agriculture, STOP 1598, 1400 Independence Ave., SW,
Washington, DC 20250-1598, telephone number (202) 720-0665.
SUPPLEMENTARY INFORMATION:
Classification
This proposed rule has been determined to be not significant for
the purposes of Executive Order 12866, Regulatory Planning and Review,
and, therefore has not been reviewed by the Office of Management and
Budget (OMB).
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. RUS has determined that this proposed rule meets
the applicable standards provided in Sec. 3. of the Executive Order.
Regulatory Flexibility Act Certification
The Administrator of RUS has determined that this proposed rule
will not have a significant economic impact on a substantial number of
small entities, as defined by the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). The RUS programs provide and finance grants and loans to
RUS borrowers at interest rates and terms that are more favorable than
those generally available form the private sector. RUS borrowers, as a
result of obtaining Federal financing, receive economic benefits which
ultimately offset any direct economic costs associated with complying
with RUS regulations and requirements.
Information Collection and Recordkeeping Requirements
The reporting and recordkeeping requirements contained in the
proposed rule were approved by OMB pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35, as amended) under control number
0572-0059.
Send questions or comments regarding this burden or any aspect of
these collections of information, including suggestions for reducing
the burden to F. Lamont Heppe, Jr., Director, Program Support and
Regulatory Analysis, Rural Utilities Service, US Department of
Agriculture, STOP 1522, Washington, DC 20250-1422, FAX: (202) 720-1422.
Unfunded Mandates
This rule contains no Federal mandates for State, local, and tribal
governments for the private section. Thus, this is not subject to the
requirements of section 202 and 205 of the Unfunded Mandates Reform
Act.
National Environmental Policy Act Certification
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 No. 10.851, Rural
Telephone Loans and Loan Guarantees; and No. 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.
Intergovernmental Review
This final rule is excluded from the scope of Executive Order
12372, Intergovernmental Consultation, which may require consultation
with State and local officials. A Notice of Final rule titled
Department Programs and Activities Excluded from Executive Order 12372
(50 FR 47034) exempts RUS and RTB loans and loan guarantees, and RTB
bank loans, to governmental and nongovernmental entities from coverage
under this Order.
Background
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 which provide for secure RUS financing. This
revision to 7 CFR part 1755 codifies RUS Form 397, Special Equipment
Contract (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 397 when purchasing and
installing special equipment financed with loan funds. Divestiture,
competition, legislation and regulation changes have made the current
RUS Form 397 outdated. Contract terms and obligations have been
modified and updated to reflect
[[Page 8583]]
present business practices as well as changes in technology, services
and equipment. The changes to the proposed RUS Form 397 include but are
not limited to the following: sealed bid requirements; bid bond
requirements; format for listing bid prices and alternatives; delivery
and installation requirements; and particular undertakings of the
bidder requirements.
List of Subjects in 7 CFR Part 1755
Loan programs-communications, Reporting and recordkeeping
requirements, Rural areas, Telecommunications.
For the reasons set forth in the preamble, RUS proposes to amend
chapter XVII of title 7 of the Code of Federal Regulations 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., 6941 et seq.
Sec. 1755.397 [Redesignated as Sec. 1755.396]
2. Section 1755.397 is redesignated as Sec. 1755.396.
3. Section 1755.397 is added to read as follows:
Sec. 1755.397 Form 397, special equipment contract (including
installation).
The contract form in this section shall be used when purchasing and
installing special equipment, which includes but is not limited to
digital carrier equipment, fiber optic equipment and microwave
equipment, financed with loan funds. The RUS Form 397, special
equipment contract (including installation) follows:
Notice and Instructions to Bidders Special Equipment Project
(Including Installation)
1. Sealed Proposals for the engineering, furnishing, delivery and
installation of special telephone equipment, materials and software
(hereinafter called the ``Equipment'') 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 of the Rural Utilities Service (hereinafter called the
``Administrator'') will be received by the Owner on or before
________o'clock, ______ .M., __________,
at--------------------------------------------------------------------
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 (hereinafter called the ``Specifications''), together with all
necessary forms and other documents for Bidders, may be obtained from
the Owner or from the Engineer, at the latter's office at
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The Documents 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 of each set with the name of the Bidder
will be recorded by the Engineer. Bids will be accepted only from
original Bidders, or from some 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 ________________________________ ,
19---------------------------------------------------------------------
at __________________________________ ,
for the purpose of receiving the Bidder's Technical Proposal,
discussing details of the Project(s), 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 Agreement, 7 CFR Sec. 1753.38. The Bidder shall claim
as agreed excluded documentation only those items it may be unable to
provide to the Borrower as required by said Section (2)(xi). The
Engineer shall immediately provide a list of all items so identified to
the appropriate RUS 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. The
Licensor, as defined in the Software License Agreement, shall agree
that certain licensed software cannot be excluded from the requirements
of said Section (2)(xi), including but not limited to software that
would significantly impair the operation of the System, would
significantly impair the ability of the Owner to generate revenue, or
would, in the opinion of RUS, 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 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, the license number (if the State
requires a license to bid on a project), 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, Bidder's Proposal and Acceptance, and Contractor's Bond
attached hereto, and shall become informed as to the location and
characteristics of the proposed equipment installations, the
transportation facilities, the kind of facilities required before and
during the delivery and installation of the equipment and materials,
the general local conditions and all other matters that may affect the
cost and the time of completion of the installations. 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
[[Page 8584]]
U.S.C. 276c; 41 U.S.C. 51 et seq.) and regulations issued pursuant
thereto, and 18 U.S.C. 287, 874, 1001, as amended.
6. Each Proposal must be accompanied by a Bid Bond, RUS Form 307,
or a certified check on a bank that is a member of the Federal Deposit
Insurance Corporation, payable to the order of the Owner, in an amount
equal to ten percent (10%) of the maximum possible bid price. The
maximum possible bid price is the sum of the total base bid, spare
parts, maintenance tools and all positive amounts for alternatives.
Each Bidder agrees that, if its Proposal is one of the three low
Proposals, its Bid Bond or check shall be held by the Owner until a
Proposal is accepted and a Contractor's Bond, when required, is
furnished by the successful Bidder and such acceptance has been
approved by the Administrator, or for a period not to exceed ninety
(90) days from the date hereinbefore set for the opening of Proposals
whichever period shall be the shorter. If such Proposal is not one of
the three low Proposals, the Bid Bond or check will be returned to the
Bidder within a period of thirty (30) days.
7. The successful Bidder will be required to furnish to the Owner a
Contractor's Bond in conformance with the requirements of 7 CFR Part
1788, Subpart C, Insurance for Contractors, Engineers, and Architects.
8. Should the successful Bidder fail or refuse to furnish a
Contractor's Bond within thirty (30) days after written notification of
the award of the Contract by the Owner, the Bidder will be considered
to have abandoned the Proposal. In such event, the Owner shall be
entitled to (a) enforce the Bid Bond in accordance with its terms, or
(b) retain from the proceeds of the certified check the difference (not
exceeding the amount of the certified check) between the amount of the
Proposal and such larger amount for which the Owner may in good faith
contract with another party to construct the Project(s). The term
``successful Bidder'' shall be deemed to include any Bidder whose
Proposal is accepted after another Bidder has previously refused or has
been unable to execute the Contract or to furnish a Contractor's Bond.
9. 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.
10. 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.
11. 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. Failure to provide a Bid Bond or check as specified in
item six (6) above is not a minor irregularity.
12. The Owner reserves the right to reject any or all Proposals.
13. Equal Opportunity and Employment.
(a) The Bidder's attention is called to the ``Equal Opportunity
Clause'' and the ``Standard Federal Equal Employment Specifications''
set forth herein.
(b) The goals and timetables for minority and female participation,
expressed in percentage terms for the Contractor's aggregate workforce
in each trade on all construction work in the covered area, are as
follows:
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Goals for minority Goals for female
Timetables participation for participation in
each trade each trade
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(Insert goals for (Insert goals for
each year.) each year.)
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(i) These goals 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.
(ii) The Contractor's compliance with Executive Order 11246 and the
regulations in 41 CFR Part 60-4 shall be based on its implementation of
the Equal Opportunity Clause, specific affirmative action obligations
required by the specifications set forth in 41 CFR 60-4.3(a), and its
efforts to meet the goals. The hours of minority and female employment
and training must be substantially uniform throughout the length of the
contract, and in each trade, and the Contractor shall make a good faith
effort to employ minorities and women without discrimination on each of
its projects. Transfer of minority or female employees or trainees from
Contractor to Contractor or from project to project for the sole
purpose of meeting the Contractor's goals shall be a violation of the
contract, Executive Order 11246 and the regulations in 41 CFR part 60-
4. Compliance with the goals will be measured against the total work
hours performed.
(c) The Contractor shall provide written notification to the
Director of the Office of Federal Contract Compliance Programs within
ten (10) working days of award of any construction subcontract in
excess of ten thousand dollars ($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; 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.
(d) As used in this Notice, and in the contract resulting from this
solicitation, the ``covered area'' is
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(insert description of the geographical areas where the contract is to
be performed giving the state, county and city, if any.)
Note: Paragraph 13 is applicable to the extent required by law.
If applicable, certain information needs to be inserted at
subparagraphs (b) and (d). In determining whether and how this
paragraph is applicable, reference should be made to the Department
of Labor Office of Federal Contract Compliance Programs regulations
(41 CFR Chapter 60.)
By---------------------------------------------------------------------
Owner
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Title
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Date
[[Page 8585]]
Bidder's Proposal to Engineer, Furnish, Deliver, and Install Equipment
and Materials
(Proposal shall be submitted in ink or typewritten)
To:--------------------------------------------------------------------
(Hereinafter called the ``Owner'')
The undersigned (hereinafter called the ``Bidder'') hereby proposes
to engineer, furnish, deliver, install, align and test the equipment,
materials and software (hereinafter called the ``Equipment'') 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 Equipment and the facilities over which
the Equipment is to perform, has become informed as to the kind of
facilities required before and during the delivery and installation of
the Equipment and has become acquainted with the labor conditions which
would affect the work.
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.
Article I
Section 1. Bid Price. The Bidder will engineer, furnish, deliver,
install, align and test the equipment, materials, and software
described in the Specifications for the following sums:
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Time in calendar days
------------------------------------- (10) Maintenance
(1) Location by exchange (2) Equipment (3) Cost (4) Installation (5) Base bid (7) Completion (8) Spare parts (9) Item tools
(6) Delivery of project
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................. $ $ $ ................. ................ $ a $
................. $ $ $ ................. ................ $ b $
................. $ $ $ ................. ................ $ c $
................. $ $ $ ................. ................ $ d $
................. $ $ $ ................. ................ $ e $
................. $ $ $ ................. ................ $ f $
................. $ $ $ ................. ................ $ g $
................. $ $ $ ................. ................ $ h $
................. $ $ $ ................. ................ $ i $
................. $ $ $ ................. ................ $ j $
Totals.......................... ................. $ $ XXXXXXX XXXXXXX XXXXXXX $ XX $
Total Base Bid.................. ................. ................. ................. $ XXXXXXX XXXXXXX XXXXXXX XX XXXXXXX
Alternate No. 1................. ................. $ $ $ ................. ................ $ k $
Alternate No. 2................. ................. $ $ $ ................. ................ $ l $
Alternate No. 3................. ................. $ $ $ ................. ................ $ m $
Alternate No. 4................. ................. $ $ $ ................. ................ $ n $
Alternate No. 5................. ................. $ $ $ ................. ................ $ o $
Alternate No. 6................. ................. $ $ $ ................. ................ $ p $
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Section 2. Acceptable Equipment. Unless otherwise specified by the
Owner (and agreed to in advance in writing by RUS), the Bidder agrees
to furnish under this Proposal only equipment which is currently
included in the ``List of Materials Acceptable for Use on
Telecommunications Systems of RUS Borrowers'', RUS Informational
Publication 344-2. [Note: foreign manufactured products must be covered
by a currently valid letter of technical acceptance issued by the
Chairman, Committee ``A'' (Telecommunications)]. The Bidder agrees also
to furnish only materials, equipment and software which are new and
most recent issue and manufacture as of the date of the bid opening.
Section 3. Changes in Project. The Owner, with the approval of the
Administrator, may from time to time during the performance of the
Contract, make reasonable changes, additions to or subtractions from
the Specifications which are part of the Proposal as conditions
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 therefore 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 add-on will be
considered unless the Bidder shall have made a written request to the
Owner prior to the commencement of work in connection with such change
or addition. The Delivery or Completion of Project time in calendar
days specified under Columns 6, ``Delivery'', and 7, ``Completion of
Project'', 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 the
Equipment to be incorporated in the Project(s). If any such tax is
applicable to the sale, purchase or use of the Equipment thereunder,
the amount thereof shall be stated separately on all invoices and paid
by the Owner.
Article II
Delivery and Installation
Section 1. Time of Completion of Installation. The time of delivery
of the
[[Page 8586]]
Equipment and of Completion of Project is of the essence of this
Contract. The Bidder shall deliver the Equipment within the number of
calendar days specified under Column 6, ``Delivery'', in Article I,
Section 1, after the Administrator shall have approved this contract in
writing and shall complete the installation of Equipment in accordance
with the terms of this Contract and Specifications to the satisfaction
of the Owner and the Administrator within the number of calendar days
specified under Column 7, ``Completion of Project'', in Article I,
Section 1. The time for such ``Delivery'' or ``Completion of Project''
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 twenty (20) 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'',
``Completion of Project'', or in the progress of the work 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. Supervision and Inspection. The Bidder shall give
adequate supervision to the work at the site of the Project(s), using
the Bidder's best skill and attention. The Bidder shall carefully study
and compare all drawings, specifications, and other instructions and
shall promptly report to the Owner any error, inconsistency or omission
which Bidder may discover. The Bidder shall keep on the Project(s)
during its progress a competent superintendent (hereinafter called the
``Superintendent'') and any necessary qualified assistants, all
satisfactory to the Owner. The Superintendent shall represent the
Bidder and all directions given to the Superintendent by the Owner
shall be as binding as if given to the Bidder. When requested, such
directions shall be confirmed in writing.
The Owner shall make available during installation a competent
representative to coordinate installation activities with the Bidder,
including coordination with any connecting company.
Section 3. Alignment, Inspection and Tests. The Bidder shall
install, adjust and align the Equipment in accordance with the
Specifications. The Bidder shall notify the Owner in writing upon
completion of installation and alignment of each Project. In addition,
the Bidder shall provide the necessary test equipment and perform the
inspections and tests specified in the Specifications under the direct
supervision of the Owner or its Engineer. The Owner shall receive a
copy of the results of all tests conducted by the Bidder. All Equipment
furnished for Project(s) shall be subject to the inspection, test and
approval of the Owner and Administrator. 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 the Project(s). The
Owner shall provide all reasonable facilities necessary for such
inspection and tests. Failure of the Owner to make inspections shall
not release the Bidder from performances required hereunder.
(a) The Owner shall make inspections and determine if results of
the tests for each Project are in compliance with the Specifications.
The Owner must notify the Bidder, within thirty (30) days after the
written notification of Completion of Project from the Bidder, of any
deficiencies or corrective measures necessary and whether these
corrections shall be made by the Owner or the Bidder.
(b) If, at the request of the Owner, the Bidder shall have
commenced work prior to the completion of facilities over which the
equipment is to operate or if arrangements with connecting companies
for joint testing have not been completed and the Bidder shall have
incurred additional expenses because of delays or additional work
resulting from lack of completion of such facilities or arrangements,
the Owner shall pay the Bidder for such reasonable additional expense.
The Owner shall also pay the Bidder for such reasonable additional
expenses for the corrections, realignment and retesting the Bidder is
required to perform due to the above conditions, including, if
necessary, the added expense of returning to the Project. If tests
subsequent to this are made necessary by the Bidder's failure to
satisfactorily resolve all such deficiencies or corrective measures,
the Bidder shall pay the Owner for the cost incurred by the Owner for
all such subsequent tests.
Section 4. Delivery of Possession and Control to the Owner. The
Bidder shall deliver to the Owner, and the Owner shall accept, full
possession and control of each Project on the date of Completion of the
Project or on an earlier date if agreed under Article IV, Section 2.
Section 5. Employees. The Owner shall have the right to require the
removal of any employee of the Bidder from the Project site if in the
judgment of the Owner such removal is necessary in order to protect the
interests of the Owner.
Section 6. Defective Workmanship, Materials or Software. Throughout
the warranty period defined below, the Bidder shall, within thirty (30)
days of written notification 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, workmanship or
installation, or not in conformity with the Specification. This is
subject to the following definitions and conditions:
(a) The warranty start date for the Project is the date of delivery
of possession and control by the Bidder to the Owner of that Project
included in the Contract. Refer to Article II, Section 4. The warranty
period is twelve (12) months from the warranty start date, or six (6)
months from Completion of Project, whichever results in the longer
period of coverage.
(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 twelve
(12) months from the warranty start date defined in the Contract, 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 or
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 alteration provided to
satisfy the obligations of this Section 6. If a deficiency is detected
or a correction made within the final ninety (90) days of the warranty,
the warranty shall be
[[Page 8587]]
extended to a date ninety (90) days after the deficiency has been
corrected.
(c) This warranty is not diminished by the acceptance of
workmanship, materials, equipment or software, or by the issuing of any
certificate with respect to the Completion of the Project.
(d) This 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.
(e) 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 and Releases of Lien
Section 1. Payment to Bidder. (a) The Owner shall pay the Bidder
upon the basis of written estimates of the Equipment delivered at the
site of the Project, presented by the Bidder, and approved by the
Owner, the following percentages of the price of the materials,
equipment and software for each Project set forth under Column 3,
``Cost'', in Article I, Section 1, as and if revised:
(i) Forty-five percent (45%) when fifty percent (50%) of the
materials, equipment and software for each Project has been delivered
at the site of the Project(s), and
(ii) Ninety percent (90%) when all of the materials, equipment and
software required to place each Project into operation has been
delivered at the site of the Project(s).
(b) Upon the Completion of Project, 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 inspect the work performed thereunder
and if the work shall be found to be in accordance with the
Specifications and all provisions thereunder, the Owner shall certify
as to that fact and as to the amount of the balance found to be due to
the Bidder. No later than thirty (30) days after Completion of
Contract, as defined in Article VII, Section 1, ``Definitions'' the
Owner shall submit such final certificate to the Administrator for
approval and when such approval has been given, the Owner shall pay to
the Bidder all unpaid amounts to which the Bidder shall be entitled
thereunder; provided, however, such final payments shall be made not
later than sixty (60) days after Completion of the Contract unless
approval by the Administrator shall be withheld or delayed due to
Bidder's actions or failure to act.
(c) 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\%) 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.
(d) Acceptance by the Owner of equipment, materials, workmanship 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
thereunder including, without limitation, any right to liquidated
damages the Owner may have by virtue of Article V, Section 2.
Section 2. Release of Liens. Upon the Completion of Project by the
Bidder, but prior to the payment to the Bidder of any amount in excess
of ninety percent (90%) of the Total Contract Price, the Bidder shall
deliver to the Owner, (a) two (2) original Waiver and Release of Lien,
in the form attached hereto, from manufacturers, material suppliers and
subcontractors who have furnished materials or services for the work,
and (b) two (2) original Certificate of Contractor, in the form
attached hereto, to the effect that all labor has been paid and that
all such releases have been submitted to the Owner; and the Owner shall
deliver to the Administrator for approval one of the originals of each
such release and certificate.
(a) In lieu of releases of liens where the Bidder is the equipment
manufacturer, the Bidder may deliver to the Owner, in duplicate, (1) a
Certificate of Contractor and Indemnity Agreement stating that all
manufacturers, material suppliers and subcontractors who have furnished
materials or services for the Project(s) have been paid in full, and
(2) an agreement to indemnify the Owner harmless against any liens
arising out of the Bidder's performance thereunder which may have been
or may be filed against the Owner.
(b) In this Article III ``manufacturer'' shall mean a Bidder who
makes, produces or manufactures the equipment and whose interest,
including non-contracted installation, represent more than fifty
percent (50%) of the value of the Total Contract Price.
Article IV
Particular Undertakings of the Bidder
Section 1. Protection to Persons and Property. At all times when
equipment and materials are being delivered and installed, the Bidder
shall exercise reasonable precautions for the safety of employees on
the job and of the public, and shall comply with all applicable
provisions of Federal, State and Municipal safety, building and
construction codes. All machinery and equipment and other physical
hazards shall be guarded in accordance with the ``Manual of Accident
Prevention in Construction'' of the Associated General Contractors of
America, unless such instructions are incompatible with Federal, State
or Municipal laws or regulations. The following provisions shall not
limit the generality of the above requirements:
(a) The Bidder shall at all times keep the premises free from
accumulations of waste material or rubbish caused by its employees or
work, and at the completion of the work, the Bidder shall remove all
rubbish from and about the Project(s) and all tools, scaffolding and
surplus materials and shall leave its work ``broom clean.''
(b) The work, from its commencement to completion, or to such
earlier 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 to be used therein, shall be borne by
the Bidder. The Bidder shall make good and fully repair all damages to
the Equipment under the control of the Bidder by reasons of any act of
God, or any other casualty of cause whether or not the same shall have
occurred by reason of the Bidder's negligence. The Bidder shall hold
the Owner harmless from any and all claims for injuries to persons or
for damage to property happening by the reason of any negligence on the
part of the Bidder or any of the Bidder's agents, subcontractors or
employees during the control by the Bidder of the Project(s) or any
part thereof. The Owner shall promptly notify the Bidder in writing of
any such claims received and, except where the Owner is the claimant,
shall give to the Bidder full authority and opportunity to settle such
claims, and reasonably cooperate with the Bidder in obtaining
information relative to such claims.
(c) Monthly reports of all accidents shall be promptly submitted by
the Bidder, giving such data as may be prescribed by the Owner.
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 Completion of the
Project. However, at any time after payment by the Owner to the Bidder
of ninety percent (90%) of the Total Base Bid plus accepted
[[Page 8588]]
alternatives for that Project, but prior to Completion of the Project,
the Owner and Bidder may agree in writing to an earlier date of
delivery of possession and control. Upon such delivery of the
possession and control of any Project, the risks and obligations of the
Bidder, as set forth in Article IV, Section 1(b), pertaining to such
Project shall be terminated; provided, however, that nothing herein
contained shall relieve the Bidder of its obligation for full
performance any liability with respect to defective workmanship or
materials as specified in Article II, Section 6, hereof. The equipment
shall not be placed in service until transfer of possession and control
to the Owner has been accomplished, as set forth above.
Section 3. Insurance. During the Bidder's performance hereunder,
the Bidder shall take out and maintain fully paid insurance providing
not less than the minimum coverage required by 7 CFR Part 1788, Subpart
C.
(a) The Owner shall have the right to require public liability
insurance and property damage liability insurance greater than the
amounts specified in 7 CFR Part 1788, Subpart C. If this requirement is
included in the Specifications used for bidding, the added costs shall
be included in the Bid Price. If the requirement is added after the
Contract is approved, the additional premium or premiums payable solely
as the result of such additional insurance shall be added to the
Contract price, by Contract amendment.
(b) Upon request by the Administrator, the Bidder shall furnish to
the Administrator a certificate in such form as the Administrator may
prescribe evidencing compliance with the foregoing requirements.
Section 4. Purchase of Materials. The Bidder shall purchase all
materials and supplies outright and not subject them to any conditional
sales agreements, bailment lease or other agreement reserving unto the
Bidder any right, title or interest therein. Materials and supplies
shall become the property of the Owner as the Owner makes payments
therefor to the Bidder in accordance with Article III, Section 1(a).
Unless otherwise specified, all materials shall be new.
Section 5. Assignment of Guarantees. All guarantees of materials,
equipment, software and workmanship running in favor of the Bidder
shall be transferred and assigned to the Owner on 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 6. This provision may be modified with respect to a
particular warranty if the Bidder 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 all claims, suits, and proceedings for the infringement of any
patent, copyright, trademark or violation of trade secrets covering any
equipment, materials, software, supplies or installation methods 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. This shall be in addition to any other rights or claims
which the Owner may have. The Bidder shall, at its own cost, (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 or
regulations pertaining to the work. The Bidder acknowledges that it is
familiar with the Rural Electrification Act of 1936, as amended (7
U.S.C. 901-950b), 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 understands that the obligations of the
parties hereunder are subject to the applicable regulations and orders
of the Governmental agencies having jurisdiction in the premises.
(a) 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.
(b) 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.
Section 8. Software License. The software licensing agreement, if
required, covering the rights, terms and conditions of the use and
assignability of all software integral to the operation of the
Project(s), shall adhere to 7 CFR part 1753, Subpart E, RUS software
licensing requirements. The warranty period for all software under this
contract shall be in accordance with Article II, section (6)(b).
Article V
Remedies
Section 1. Completion on Bidder's Default. If default shall be made
by the Bidder or by any subcontractor in the performance of any of the
work hereunder, the Owner, without in any manner limiting its legal and
equitable remedies in the circumstances, may serve upon the Bidder and
the surety or sureties upon the Bidder's Bond or Bonds, if any, 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 be made by the Bidder or its surety or
sureties, 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 and its surety or sureties shall be liable to the Owner for any
cost or expense in excess of the Bid Price occasioned thereby. In such
event, the Owner may take possession of and utilize, in completing the
Project(s), any tools, supplies, equipment, appliances and plant
belonging to the Bidder which may be situated at the site of the
Project(s). The Owner, in such contingency, may exercise any rights,
claims or demands which the Bidder may have against third persons in
connections 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 neglect, refuse or
fail to complete any Project as shown under Column 7, ``Completion of
Project'' in Article I, Section 1, within the time herein agreed upon,
after giving effect to extensions of time, if any, herein provided,
then, in that event and in
[[Page 8589]]
view of the difficulty of estimating with exactness damages caused by
such delay, the Owner shall 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 ($________)
for--------------------------------------------------------------------
(Project)
----------------------------------------------------------------------
dollars ($________)
for--------------------------------------------------------------------
(Project)
----------------------------------------------------------------------
dollars ($________)
for--------------------------------------------------------------------
(Project)
per day for each and every day that such completion is delayed beyond
the specified time for Completion of the Project, as liquidated damages
and not as a penalty; if the amount due and to become due from the
Owner to the Bidder is insufficient to pay in full any such liquidated
damages, the Bidder shall pay to the Owner the amount necessary to
effect such payment in full: provided, however, that the Owner shall
promptly notify the Bidder in writing of the manner in which the amount
retained, or 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 10, 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 ten
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 the 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:
(i) It has ____, does not have ____, 100 or more employees, and if
it has, that
(ii) It has ____, has not ____, submitted the Equal Employment
Opportunity Employers Information Report EEO-1, Standard Form 100,
required of employees with 100 or more employees pursuant to Executive
Order 11246 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 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, time clocks, 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 Bidder
agrees as follows:
(a) The Bidder will not discriminate against any employee or
applicant for employment because of race, creed, color or national
origin. The Bidder 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, national
origin, or disability. 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 Bidder agrees to pose in conspicuous
places, available to employees and applicants for employment, notices
to be provided setting forth the provisions of this nondiscrimination
clause.
(b) The Bidder will, in all solicitations or advertisements for
employees placed by or on behalf of the Bidder, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, national origin or disability.
[[Page 8590]]
(c) The Bidder will send to each labor union or representative of
workers with which he 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 Bidder's commitments
under this section, and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
(d) The Bidder will comply with all provisions of Executive Order
11246 of September 24, 1965, and of the rules, regulations and relevant
orders of the Secretary of Labor.
(e) The Bidder will furnish all information and reports required by
Executive Order 11246 of September 24, 1965, and of the rules,
regulations and relevant orders of the Secretary of Labor, or pursuant
thereto, and will permit access to the Bidder'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 Bidder'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 Bidder may be declared
ineligible for further Government contracts or federally assisted
construction contracts in accordance with procedures authorized in
Executive Order 11246 of September 24, 1965, and such other sanctions
may be imposed and remedies invoked as provided in the said Executive
Order, or by rule, regulation or order of the Secretary of Labor, or as
otherwise provided by law.
(g) The Bidder will include 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 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor. The
Bidder 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 sanctions for noncompliance;
provided, however, that in the event a Bidder becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a
result of such direction by the administering agency, the Bidder 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:
(i) ``Covered area'' means the geographical area described in the
solicitation from this contract;
(ii) ``Director'' means Director, Office of Federal Contract
Compliance Programs, United States Department of Labor, or any person
to whom the Director delegates authority;
(iii) ``Employer identification number'' means the Federal Social
Security number used on the Employer's Quarterly Federal Tax Return,
United States Treasury Department Form 941; and
(iv) ``Minority'' includes:
(1) Black (all persons having origins in any of the Black African
racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central
or South American or other Spanish Culture or origin, regardless of
race);
(3) 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
(4) 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 United States 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 for 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 (xv) 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 whom 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 Department of
Labor.
(g) The Contractor shall take specific affirmative actions to
ensure equal employment opportunity. The evaluation of the Contractor's
compliance with these specifications shall be based upon its effort to
achieve
[[Page 8591]]
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
Contractors 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, 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 lease 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, 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 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 all facilities and company activities are
nonsegrated except that separate or single-user toilet and necessary
changing facilities shall be provided to assure privacy between the
sexes.
(xiv) Document and maintain a record of all solicitations of offers
or subcontracts from minority and female construction contractors and
suppliers, including circulation of solicitations to minority and
female contractor associations and other business associations.
(xv) 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 under (g) (i) through (xv). 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 (xv) 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
[[Page 8592]]
11246 if a particular group is employed in a substantially disparate
manner (for example, even though 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, national origin or disability.
(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, as amended, 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, as amended.
(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 results from its efforts
to ensure equal employment opportunity. If the Contractor fails to
comply with the requirements of Executive Order 11246, the implementing
regulations, or these specifications, the Director shall proceed in
accordance with 41 CFR part 60-4.8.
(n) The Contractor shall designate a responsible official monitor
for 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 and 3 of this Article are
applicable to the extent required by law. In determining whether these
Sections are applicable, reference should be made to the Department of
Labor Office of Federal Contract Compliance Programs regulations (41
CFR Part 60).
Article VII
Miscellaneous
Section 1. Definitions.
(a) The term ``Completion of the Contract'' shall mean
accomplishment of Completion of the Project for all equipment materials
and services listed under Column 2, ``Equipment'', in Article I,
Section 1, and all alternatives accepted by the Owner, on the Owner's
Acceptance.
(b) The ``Completion of the Project'' shall mean full performance
by the Bidder of the Bidder's obligations under the Contract and all
amendments and revisions thereof. 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 (i) all documents listed in
Article III, Section 2, (ii) other final documents, and (iii) written
notification that all deficiencies have been corrected, provided that
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 the Owner. 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 in
Article I, Section 1.
(c) The ``Contract'' shall consist of the Notice and Instructions
to Bidders, the Bidder's Proposal and the Owner's Acceptance, the
Contractor's Bond and the Specifications.
(d) 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 borrower determines whether
an error or irregularity is ``minor.''
(e) The term ``placed in service'' shall mean used by the Owner to
earn revenue.
(f) The term ``Project'' shall mean any special equipment,
including but not limited to carrier, lightwave or wireless systems,
and all associated terminals (if any), which is listed under Column 2,
``Equipment,'' in Article I, Section 1. A Project will have a single
completion schedule listed under Column 7, ``Completion of 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.
(g) 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 specific
special equipment to perform path diagnostic and recovery routines,
control call processing, and perform peripheral control, and perform
operations, administration, maintenance and provisioning functions; as
well as associated documentation used to describe, maintain and use the
programs provided under the Contract.
(h) The term ``days'' shall mean calendar days.
(i) The term ``Specifications'' shall mean the minimum performance
requirements of the Owner as contained in the documents listed below,
which are either attached or become a part of the Contract by
reference, as amended by specific written exceptions contained in the
Bidder's proposal and accepted by the Owner and the Administrator:
RUS Form __________________________ , dated----------------------------
RUS Form __________________________ , dated----------------------------
RUS Form __________________________ , dated----------------------------
RUS Form __________________________ , dated----------------------------
[[Page 8593]]
-----------------------------------------------------------------------
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 and software furnished pursuant to the
Agreement. Such repair service or repair parts shall be available for
as long as the Bidder is manufacturing or stocking such equipment and
software, or for no less than five (5) years after the Bidder has
ceased manufacturing or offering for sale such equipment and software.
Section 3. Materials and Supplies. In the performance of this
contract there shall be furnished 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 the articles,
materials, or supplies may be used in the event and to the extent that
the Administrator shall expressly in writing authorize such use
pursuant to the provisions of the Rural Electrification Act of 1938, as
amended. 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 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 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 or 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. License. The Bidder shall comply with all applicable
construction codes. (Check one.)
____ The Bidder warrants that it possesses contractor's license
number __________ issued to him by the State of ____________ in which
the Project(s) is located, and said license expires on __________, 19
____.
____ The Bidder warrants that no license is required in the State
in which the Project(s) is located.
Section 10. Nonassignment of Contract. The Bidder will 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. However, the Bidder may subcontract the
whole or any part of the installation work to be performed at the
installation site, (as distinguished from furnishing and delivery of
equipment and materials), provided that: (a) the Bidder shall be
responsible for the performance thereof and (b) the Bidder shall obtain
the consent of the surety to such subcontract. A copy of such consent
shall be submitted to the Owner and the Administrator.
Section 11. 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 12. 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 one other than President, a Vice-President, a partner
or the individual owner, a power of attorney or other legally
acceptable document authorizing execution shall accompany
[[Page 8594]]
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:
Space 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
Specifications
Special Telephone Equipment
The Specifications listed below can be attached and made a part of
this Contract. (The Owner will check the applicable Specification.)
____ RUS Form 397b, Trunk Carrier System Specifications
____ RUS Form 397c, Subscriber Carrier Specifications
____ RUS Form 397d, Design Specifications for Point-to-Point Microwave
Radio Systems
____ RUS Form 397g, Performance Specifications for Line Concentrators
____ RUS Form 397h, Design Specifications for Digital Lightwave
Transmission Systems
[End of clause]
Dated: February 9, 1998.
Inga Smulkstys,
Acting Under Secretary, Rural Development.
[FR Doc. 98-4320 Filed 2-19-98; 8:45 am]
BILLING CODE 3410-15-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.