ex101settlmntagreement






    SETTLEMENT AGREEMENT    This Settlement Agreement is between the General Services Administration (the “GSA”  or the “Government”) represented by its contracting officers, Mary Ann Swearingen and  Jonathan Woodcock, and FARO Technologies, Inc. (“FARO”), represented by Michael Burger,  President and Chief Executive Officer.  The Government and FARO will collectively be referred  to as the “Parties.”  WHEREAS, on or about July 12, 2012, the GSA awarded Multiple Award Schedule 66,  Scientific Equipment and Services, Contract No. GS-24F-0044M, to FARO.  The period of  performance runs through July 11, 2022, and the contracting officer is Mary Ann Swearingen;  WHEREAS, on or about September 29, 2017, GSA awarded Multiple Award Schedule  84, Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue,  Clothing, Marine Craft and Emergency/Disaster Response, Contract No. GS-07F-197GA, to  FARO.  The period of performance runs through September 28, 2022, and the contracting officer  is Jonathan Woodcock;     WHEREAS, pursuant to the terms of FARO’s Contract Nos. GS-24F-0044M and GS- 07F-197GA (collectively referred to hereinafter as the “Contracts”), FARO was obligated to  comply with the Price Reductions Clause (“PRC”), GSAR 552.238-75, the Price Adjustment  Clause (“PAC”), GSAR 552.215-72, the Trade Agreements Act (“TAA”), and laws and  regulations related to small businesses;    WHEREAS, FARO discovered that for orders placed under the Contracts from July 12,  2012 through December 31, 2018, it was not in compliance with certain of the aforementioned  clauses, laws and regulations, which resulted in inadvertent overpayments by the Government,  sales of products from non-TAA compliant countries, the fulfillment of orders to FARO that  





 






     2      were set-aside for small businesses and the reporting of inaccurate information concerning  FARO’s fulfillment of its small business subcontracting goals (hereinafter collectively referred  to as the “Covered Conduct”);   WHEREAS, FARO voluntarily made a Preliminary Disclosure of the Covered Conduct  to the GSA Office of Inspector General (“OIG”) on February 14, 2019 and a Final Disclosure  Report on July 15, 2019 (hereinafter collectively referred to as “Contractor Disclosure No.  201902150745-Multiple”);   WHEREAS, the GSA OIG performed a review and evaluated the facts relating to  Contractor Disclosure No. 201902150745-Multiple, and FARO fully cooperated with the review  by producing documents and data in response to multiple GSA OIG Requests for Information;   WHEREAS, on December 3, 2020, the GSA OIG referred the matter to the responsible  GSA contracting officers with a recommendation to resolve contractually the matters stated in  Contractor Disclosure No. 201902150745-Multiple;   WHEREAS, the Parties have determined that it is in their best interests to settle all  matters relating to the Covered Conduct in Contractor Disclosure No. 201902150745-Multiple;  and   WHEREAS, the GSA OIG intends to close its review of the Covered Conduct stated in  Contractor Disclosure No. 201902150745-Multiple after the Parties have executed the  Settlement Agreement and the Government has received payment from FARO.  NOW THEREFORE, in consideration of the promises set forth herein and for good and  valuable consideration, the Parties mutually agree as follows:  1. Settlement Amount and Payment:  FARO agrees to pay the Government twelve  million, three hundred and twenty-four thousand, seven hundred and seventy dollars and sixty- 





 






     3      one cents ($12,324,770.61) in full and final satisfaction of any and all claims, causes of actions,  appeals and the like, including damages, costs, attorney’s fees and interest arising under or  related to Contractor Disclosure No. 201902150745-Multiple.    2. The Parties' Responsibilities:   A. FARO:  1.  Agrees to pay the Government the total amount of $12,324,770.61.   2. Agrees to make the payment under this Agreement within thirty (30) calendar  days from the receipt of the demand letter, payable and sent to the following:    General Services Administration  Miscellaneous Receipt for Non-Federal Claims  Claim No. XXXXXXXX   GSA Lockbox 979009  PO Box 979009  Saint Louis, MO 63197-9009    Please ensure the claim number from the demand letter is on the check or the  remittance with the check.    or    by Automated Clearing House (“ACH”). If you are paying via ACH, please  contact GSA for payment instructions if needed.    3. Agrees to forward to Contracting Officers Mary Ann Swearingen and  Jonathan Woodcock a copy of FARO’s check or receipt when payment has  been made in full.  B. The Government:  1. Agrees to accept the sum of $12,324,770.61 as an accord and satisfaction of  all of its claims, causes of actions, appeals and the like, including damages,  costs, attorney’s fees and interest arising under or related to Contractor  Disclosure No. 201902150745-Multiple.  2. Agrees to issue a demand letter within ten (10) calendar days of execution of  this Agreement.  





 






     4      3. Agrees to deem repayment from FARO as being both reasonable and timely.  No additional interest shall be assessed to FARO if payment under this  Agreement is made in full to the GSA by the time set forth in Section A.    3. Releases: Subject to the exception contained in this Settlement Agreement at paragraph 5  (below), FARO hereby releases, remises, waives and forever discharges GSA from any and all  claims, rights, demands, damages, lawsuits, or causes of action, actual or perceived, known or  unknown, arising under or related to Contractor Disclosure No. 201902150745-Multiple.  FARO  remises, releases, and discharges the Government, its officers, agents, and employees of and  from all civil liabilities, obligations, claims, appeals and demands arising under or related to  Contractor Disclosure No. 201902150745-Multiple which it now has or hereafter may have,  whether known or unknown, administrative or judicial, legal or equitable, to include all claims  for interest.  Subject to the exception contained in this Settlement Agreement at paragraph 5  (below), effective upon execution of this Settlement Agreement, the Government hereby  releases, remises, waives and forever discharges FARO, its officers, agents, and employees of  and from any and all claims, rights, demands, damages, law suits, appeals, causes of action, and  demands which it now has or hereafter may have, whether known or unknown, foreseeable or  unforeseeable, administrative, contractual, judicial, legal, or equitable, arising under or in any  way related to Contractor Disclosure No. 201902150745-Multiple. Nothing contained in this  Agreement is intended to limit the Parties’ contractual rights (including, with respect to the  Government, audit rights and any non-monetary administrative remedies) or obligations beyond  the issues under or relating to the subject matter of Contractor Disclosure No. 201902150745- Multiple.  





 






     5      4. Subcontractor and Suppliers: FARO agrees that it will not authorize any of its  subcontractors and/or suppliers on the Contracts to file an appeal on its behalf, for it, or in its  name and will object to the prosecution of any such appeal in FARO’s name for matters known  up to the date of final execution of this Settlement Agreement.  If such objection is not filed by  FARO within ten (10) calendar days after a subcontractor files any such appeal, the Government  may move to dismiss the appeal with prejudice, using this Settlement Agreement as evidence of  the lack of the subcontractor’s authority to file the subcontractor’s appeal and FARO’s objection  to the same.   5. Reservation: Notwithstanding any terms of this Settlement Agreement, specifically  reserved and excluded from the scope and terms of this Settlement Agreement as to any entity or  person (including FARO) is any liability outside the scope of either Contracting Officer’s  authority to release, including: (a) any civil, criminal, or administrative liability arising under  Title 26, U.S. Code (Internal Revenue Code); (b) any criminal liability; (c) any liability for fraud  or under the False Claims Act; (d) any liability for personal injury, property, or liability to third  parties; and (e) the suspension and debarment rights of any federal agency.  The undersigned  represent that he/she is unaware of any facts that would form the basis for any of the above  claims.  Further, the Parties reserve and exclude from this Settlement Agreement any liability based  upon such obligations as are created by this Settlement Agreement.   6. Cooperation: The Parties agree to take any and all further action reasonably necessary or  appropriate to fully effect the provisions of this Settlement Agreement, including but not limited to  executing any additional documents necessary to effectuate the provisions of this Settlement  Agreement.  





 






     6      7.  Severability: If any provision of this Settlement Agreement or the application thereof is held  invalid or unenforceable, that invalidity shall not affect other provisions of this Settlement  Agreement that can be given effect without the invalid provisions or application, and to this end, the  provisions of this Settlement Agreement are declared to be severable. This Settlement Agreement  may be executed in separate counterparts all of which, when taken together, shall constitute the entire  agreement.  8. Waiver: The waiver of any breach of any term, covenant, or condition herein  contained shall not be deemed to be a waiver of any other term, covenant or condition or any  subsequent breach of the same or any other term, covenant or condition contained herein.  9. Authority: The Parties represent and warrant that they have entered into this Settlement  Agreement voluntarily, with proper authority, and without reservation.  The only consideration  for this Settlement Agreement is expressly set forth within this Settlement Agreement, and no  further inducements or representations, written or oral, have been exchanged in connection  herewith.  Each Party acknowledges that it has had adequate time to reflect upon and consider  the terms of this Settlement Agreement; agrees that neither this Settlement Agreement, nor the  settlement set forth herein, is the result of fraud, duress, coercion, or undue influence on the part  of either Party; acknowledges that each has received all information and documents necessary to  permit the Party to make fully informed decisions with respect to all aspects of this Agreement;  and expressly understands that this Settlement Agreement represents the final agreement  between the Parties and may not be contradicted by evidence of prior, contemporaneous, or  subsequent oral agreements or understandings between the Parties.  10. Binding on the Parties in Interest: This Settlement Agreement, upon complete  execution, is binding upon, and shall inure to the benefit of, the Parties hereto and their  





 






     7      respective agents, employees, representatives, officers, directors, subsidiaries, assigns, heirs and  successors in interest.   11. Execution in Counterparts: This Agreement may be executed in two or more  counterparts, each of which shall be deemed an original, but all of which together shall constitute  one and the same instrument.  The Parties agree that electronic facsimile or .pdf signatures shall  have full force and effect of original signatures.  12.  Entire Agreement: This Settlement Agreement constitutes the entire agreement and  understanding between the Parties concerning the subject matter hereof, and supersedes and  replaces all prior negotiations, proposed agreements and agreements, written and oral, relating  thereto, and the obligations set forth hereunder may not be altered, amended or modified in any  respect unless in writing, and duly executed by the Parties. There are no collateral agreements,  reservations, or understandings between the Government and FARO, express or implied, oral or  written, except as specifically set forth herein. No modification to this Settlement Agreement  shall be binding unless it is reduced to writing and signed by the Parties to this Settlement  Agreement.  13. Governing Law: This Settlement Agreement is to be governed in accordance with  Federal law, including the Contract Disputes Act of 1978.  Nothing in this Agreement is intended  to conflict with current law or regulation or the directives of the GSA.  If a term of this  Agreement is inconsistent with such authority, then that term shall be invalid, but the remaining  terms and conditions will remain in full force and effect.  14. Effective Date: The effective date of this Agreement shall be the latest of  execution by any signatory thereof.  





 






     8      15. No Admission of Liability: This Settlement Agreement does not constitute an admission  of liability by either the Government or FARO.  Rather, this settlement is merely a negotiated  settlement between the Parties.   16. Jurisdiction: The exclusive jurisdiction and venue for any dispute relating to this  Agreement is the United States District Court for the District of Columbia unless that Court  determines that venue or jurisdiction is lacking over any such dispute.      FOR THE GOVERNMENT:   FOR CONTRACTOR:    _______________________    _______________________  Mary Ann Swearingen    Michael Burger   Contracting Officer     President and Chief Executive Officer  General Services Administration    FARO Technologies, Inc.  United States of America        Dated:_________________    Dated: February 19, 2021    _______________________      Jonathan Woodcock         Contracting Officer   General Services Administration       United States of America        Dated:_________________            2-23-21 JONATHAN  WOODCOC K Digitally signed by  JONATHAN  WOODCOCK  Date: 2021.02.23  15:52:28 -06'00' MARY  SWEARINGEN Digitally signed by MARY  SWEARINGEN  Date: 2021.02.25 06:30:02  -06'00' 





 






     9      _____________________________  Amy Cook  Assistant Regional Counsel (7L)    Dated: _______________________    AMY COOK Digitally signed by AMY  COOK  Date: 2021.02.25  08:07:05 -06'00'