CLAUSE GROUP TWO (2) - CLAUSES APPLICABLE TO NON-COMMERCIAL ITEM OPEN
MARKET

ORAL PURCHASES (Between \$3,000 and \$100,000)

**1. *FAR Clause No. 52.213-4 Terms and Conditions -Simplified
Acquisitions (Other Than Commercial Items)(DEC 2008)***

\(a\) The Contractor shall comply with the following Federal Acquisition
Regulation (FAR) clauses that are incorporated by reference:

\(1\) The clauses listed below implement provisions of law or Executive
order:

> \(i\) 52.222-3, Convict Labor (June 2003) (E.O. 11755).
>
> \(ii\) 52.222-21, Prohibition of Segregated Facilities (Feb 1999)
> (E.O. 11246).
>
> \(iii\) 52.222-26, Equal Opportunity (Mar 2007) (E.O. 11246).
>
> \(iv\) 52.225-13, Restrictions on Certain Foreign Purchases (Feb 2006)
> (E.O.\'s, proclamations, and statutes administered by the Office of
> Foreign Assets Control of the Department of the Treasury).
>
> \(v\) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).
>
> \(vi\) 52.233-4, Applicable Law for Breach of Contract Claims (Oct
> 2004) (Pub. L. 108-77, 108-78).

\(2\) Listed below are additional clauses that apply:

> \(i\) 52.232-1, Payments (Apr 1984).
>
> \(ii\) 52.232-8, Discounts for Prompt Payment (FEB 2002).
>
> \(iii\) 52.232-11, Extras (Apr 1984).
>
> \(iv\) 52.232-25, Prompt Payment (Oct 2008).
>
> \(v\) 52.233-1, Disputes (July 2002).
>
> \(vi\) 52.244-6, Subcontracts for Commercial Items (DEC 2008).
>
> \(vii\) 52.253-1, Computer Generated Forms (Jan 1991).

\(b\) The Contractor shall comply with the following FAR clauses,
incorporated by reference, unless the circumstances do not apply:

\(1\) The clauses listed below implement provisions of law or Executive
order:

> \(i\) 52.222-19, Child Labor - Cooperation with Authorities and
> Remedies (FEB 2008) (E.O. 13126). (*Applies to contracts for supplies
> exceeding the micro-purchase threshold*.)
>
> \(ii\) 52.222-20, Walsh-Healey Public Contracts Act (Dec 1996)(41
> U.S.C. 35-45) (*Applies to supply contracts over \$10,000 in the
> United States, Puerto Rico, or the U.S. Virgin Islands*).
>
> \(iii\) 52.222-35, Equal Opportunity for Special Disabled Veterans,
> Veterans of the Vietnam Era, and Other Eligible Veterans (Sep 2006)
> (38 U.S.C. 4212) (*Applies to contracts of \$100,,000 or more*).
>
> \(iv\) 52.222-36, Affirmative Action for Workers with Disabilities
> (Jun 1998) (29 U.S.C. 793) (*Applies to contracts over \$10,000,
> unless the work is to be performed outside the United States*.) (For
> purposes of this clause, *United States* includes the 50 States, the
> District of Columbia, Puerto Rico, the Northern Mariana Islands,
> American Samoa, Guam, the U.S. Virgin Islands, and Wake Islands.)
>
> \(v\) 52.222-37, Employment Reports on Special Disabled Veterans,
> Veterans of the Vietnam Era, and Other Eligible Veterans (Sep 2006)
> (38 U.S.C. 4212) (*Applies to contracts over \$100,000*).
>
> \(vi\) 52.222-41, Service Contract Act of 1965 (Nov 2007) (41 U.S.C.
> 351, et seq.) (*Applies to service contracts over \$2,500 that are
> subject to the Service Contract Act and will be performed in the
> United States, District of Columbia, Puerto Rico, the Northern Mariana
> Islands, American Samoa, Guam, The U.S. Virgin Islands, Johnston
> Island, Wake Island, or the outer continental shelf lands*).
>
> \(vii\) 52.223-5, Pollution Prevention and Right-to-Know Information
> (Aug 2003) (E.O. 13148) (*Applies to services performed on Federal
> facilities*).
>
> \(viii\) 52.223--15, Energy Efficiency in Energy-Consuming Products
> (DEC 2007) (42 U.S.C. 8259b) (Unless exempt pursuant to 23.204,
> applies to contracts when energy-consuming products listed in the
> ENERGY STAR® Program or Federal Energy Management Program (FEMP) will
> be---
>
> \(A\) Delivered;
>
> \(B\) Acquired by the Contractor for use in performing services at a
> Federally-controlled facility;
>
> \(C\) Furnished by the Contractor for use by the Government; or
>
> \(D\) Specified in the design of a building or work, or incorporated
> during its construction, renovation, or maintenance.)
>
> \(ix\) 52.225-1, Buy American Act - Supplies (June 2003) (41 U.S.C.
> 10a - 10d) (*Applies to contracts for supplies, ([other than
> information technology that is a commercial item]{.underline}) and to
> contracts for services involving the furnishing of supplies, for use
> within the United States if the value of the supply contract or supply
> portion of a service contract exceeds the micro-purchase threshold and
> the acquisition -*
>
> *(A) Is set aside for small business concerns; or*
>
> *(B) Cannot be set aside for small business concerns (see 19.502-2),
> and does not exceed \$25,000*).
>
> \(x\) 52.232-33, Payment by Electronic Funds Transfer - Central
> Contractor Registration (Oct 2003). (*Applies when the payment will be
> made by electronic funds transfer (EFT) and the payment office uses
> the Central Contractor Registration (CCR) database as its source of
> EFT information*.)
>
> \(xi\) 52.232-34, Payment by Electronic Funds Transfer - Other than
> Central Contractor Registration (May 1999). (*Applies when the payment
> will be made by EFT and the payment office does not use the CCR
> database as its source of EFT information*.)
>
> \(xii\) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial
> Vessels (FEB 2006) (46 U.S.C. 1241). (*Applies to supplies transported
> by ocean vessels, except for the types of subcontracts listed at
> 47.504(d)*).

\(2\) Listed below are additional clauses that may apply:

> \(i\) 52.209-6, Protecting the Government\'s Interest When
> Subcontracting with Contractors Debarred, Suspended, or Proposed for
> Debarment (Sep 2006) (*Applies to contracts over \$30,000*).
>
> \(ii\) 52.211-17, Delivery of Excess Quantities (Sept 1989) (*Applies
> to fixed-price supplies*).
>
> \(iii\) 52.247-29, F.o.b. Origin (Feb 2006) (*Applies to supplies if
> delivery is f.o.b. origin*).
>
> \(iv\) 52.247-34, F.o.b. Destination (Nov 1991) (*Applies to supplies
> if delivery is f.o.b. destination*).
>
> \(v\) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (42
> U.S.C. 5150) (AUG 2006) *(Applies if CO has indicated that
> solicitation is set-aside for a Disaster or Emergency Area under the
> Stafford Act Preference, (P.L. 109-218)).*
>
> \(vi\) 52.226-5, Restrictions on Subcontracting Outside Disaster or
> Emergency Area (AUG 2006) *(Applies if CO has indicated that
> solicitation is set-aside for a Disaster or Emergency Area under the
> Stafford Act Preference, (P.L. 109-218)).*

\(c\) *FAR 52.252-2, Clauses Incorporated by Reference (Feb 1998*). This
contract incorporates one or more clauses by reference, with the same
force and effect as if they were given in full text. Upon request, the
Contracting Officer will make their full text available. Also, the full
text of a clause may be accessed electronically at this/these
address(es): <http://acquisition.gov/far/index.html>.

\(d\) *Inspection/Acceptance*. The Contractor shall tender for
acceptance only those items that conform to the requirements of this
contract. The Government reserves the right to inspect or test any
supplies or services that have been tendered for acceptance. The
Government may require repair or replacement of nonconforming supplies
or reperformance of nonconforming services at no increase in contract
price. The Government must exercise its post acceptance rights -

> \(1\) Within a reasonable period of time after the defect was
> discovered or should have been discovered; and
>
> \(2\) Before any substantial change occurs in the condition of the
> item, unless the change is due to the defect in the item.

\(e\) *Excusable delays*. The Contractor shall be liable for default
unless nonperformance is caused by an occurrence beyond the reasonable
control of the Contractor and without its fault or negligence, such as
acts of God or the public enemy, acts of the Government in either its
sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common
carriers. The Contractor shall notify the Contracting Officer in writing
as soon as it is reasonably possible after the commencement of any
excusable delay, setting forth the full particulars in connection
therewith, shall remedy such occurrence with all reasonable dispatch,
and shall promptly give written notice to the Contracting Officer of the
cessation of such occurrence.

\(f\) *Termination for the Government\'s convenience*. The Government
reserves the right to terminate this contract, or any part hereof, for
its sole convenience. In the event of such termination, the Contractor
shall immediately stop all work hereunder and shall immediately cause
any and all of its suppliers and subcontractors to cease work. Subject
to the terms of this contract, the Contractor shall be paid a percentage
of the contract price reflecting the percentage of the work performed
prior to the notice of termination, plus reasonable charges that the
Contractor can demonstrate to the satisfaction of the Government, using
its standard record keeping system, have resulted from the termination.
The Contractor shall not be required to comply with the cost accounting
standards or contract cost principles for this purpose. This paragraph
does not give the Government any right to audit the Contractor\'s
records. The Contractor shall not be paid for any work performed or
costs incurred that reasonably could have been avoided.

\(g\) *Termination for cause*. The Government may terminate this
contract, or any part hereof, for cause in the event of any default by
the Contractor, or if the Contractor fails to comply with any contract
terms and conditions, or fails to provide the Government, upon request,
with adequate assurances of future performance. In the event of
termination for cause, the Government shall not be liable to the
Contractor for any amount for supplies or services not accepted, and the
Contractor shall be liable to the Government for any and all rights and
remedies provided by law. If it is determined that the Government
improperly terminated this contract for default, such termination shall
be deemed a termination for convenience.

\(h\) *Warranty*. The Contractor warrants and implies that the items
delivered hereunder are merchantable and fit for use for the particular
purpose described in this contract.

(End of Clause)

**2. *The Contractor shall also comply with the following terms and
conditions, unless they do not apply.***

a\. [Virus Free Maintenance Services]{.underline}

The Contractor shall be responsible for ensuring that any and all
diskettes, backups, loaner equipment, replacement hard drives, systems,
etc., used in performing maintenance under this contract are virus free.
In the event that it is determined by the Government that a virus
infection is the result of maintenance service performed by the
Contractor under this contract, the Contractor shall, at no cost to the
Government perform the following:

1\. Eliminate the virus from all identified processors;

2\. Reload backup copies of any lost or damaged software; and,

3\. Scan all equipment subjected to previous maintenance calls within
the last 30 days. If the Contractor finds a virus on any computer system
(Government or Contractor-owned) at SSA, the project officer shall be
notified immediately.

b\. The Government\'s order number (including the NSN, FSN, ICN, if any)
should be indicated on the outside of each carton delivered.

Updated 12/12/08 through FAC 2005-28