Inactive Total Small Business Set-Aside (FAR 19.5)

DEPARTMENT OF THE AIR FORCE AIR FORCE LIFE CYCLE MANAGEMENT CENTER (AFLCMC) HANSCOM AIR FORCE BASE MASSACHUSETTS 17 June 2019 Combined Synopsis/Solicitation for Panasonic Toughbooks and Equipment Cont... DEPARTMENT OF THE AIR FORCE AIR FORCE LIFE CYCLE MANAGEMENT CENTER (AFLCMC) HANSCOM AIR FORCE BASE MASSACHUSETTS 17 June 2019 Combined Synopsis/Solicitation for Panasonic Toughbooks and Equipment Contract Specialist: Jim Fenter PCO: Lt Jerred Sevold •1. This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued. •2. Solicitation Number: FA8730-19-P-0015 •3. This combined Synopsis/Solicitation is issued as a Request for Quotation (RFQ) •4. Provisions and clauses in effect through Federal Acquisition Circular FAC 2019-03 •5. A notice regarding any set-aside: 100% Total Small Business Set-Aside •6. NAICS Code: 334111 •7. Small Business Size Standard: 1,250 employees •8. Contract Line Item Number(s) (CLINs) and items, quantities and units of measure: CONTRACT LINE ITEM NO. (CLIN) SUPPLIES/SERVICE QTY UNIT SUPPLIES 0001 Panasonic Toughbooks & Support Equipment 4 Lot 0002 Pelican 1555 Air Case 4 Lot •9. Description of requirements for the items to be acquired: All items/quantities listed on the attached "List of Materials (LOM) 6_17_19." *Note: Only the Brand Name commercial items listed on the LOM will be accepted. See the attached "REDACTED-BNJ Toughbooks (17 Jun 19)." •10. Date of delivery / Period of Performance: Deliver all items on the LOM within 20 days from contract award •11. Place of Delivery and Acceptance: Attn: TSgt Matthew Patton 552 OSS/IN 7513 Sentry Blvd, Bldg. 282 Tinker AFB OK 73145 •12. FOB Point: DESTINATION •13. Attachments: •a) REDACTED-BNJ Toughbooks (17 Jun 19) •b) List of Materials (LOM) 6_17_19 •c) Reference Only - Custom Cut Foam Guide (17 June 19) •14. The name and telephone number of the individual to contact for information regarding the solicitation: James Fenter (Contract Specialist) at james.fenter@us.af.mil or (781) 225-4510 Lt Jerred Sevold (Contracting Officer) at jerred.sevold@us.af.mil or (781) 225-6890 •15. Additional Information: Be advised that all interested parties must be registered in the System for Award Management (SAM) Database in order to receive an award. If you are not registered you may make a request through the SAM website at http://www.sam.gov. Be advised that all interested parties must be registered as a small business in the Small Business Administration (SBA) Dynamic Business Search Database under the proper NAICS Code in order to receive an award. If you are not registered, you may self-certify through the SBA website at http://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm. IAW DFARS 252.232-7003(b) all invoices shall be submitted via Wide Area Work Flow (WAWF) located at https://wawf.eb.mil/. (Procedures and POC's specific to this contract will be added to the contract). •16. The provision at FAR 52.212-1 Instructions to Offerors and 52.212-2 Evaluation - Commercial Items apply to this acquisition. Addendum to FAR 52.212-1, Instructions to Offerors The following is to be added to FAR 52.212-1 paragraph (b): •1. All quotes shall be submitted using the bid schedule outlined in Section 8. Please provide your priced quote separately. •2. The quote in its entirety shall not exceed fifteen (15) pages, double sided. •3. Offers are due before 3:00 PM Eastern Time, Friday, 21 June 2019. •4. Offers shall be emailed to james.fenter@us.af.mil and jerred.sevold@us.af.mil Do not post offers to FedBizOpps. •5. Please request read receipt on all submitted quotes. All questions are due before 3:00 PM Eastern Time, Wednesday, 19 June 2019, and should be emailed james.fenter@us.af.mil and jerred.sevold@us.af.mil; answers will be posted to FedBizOpps NLT 4:00 PM EST Thursday, 20 June 2019. •6. There will not be a site visit for this acquisition. •7. Vendors shall include a completed copy of the provision at FAR 52.212-3 Alt 1, Offeror Representations and Certifications -- Commercial Items. A vendor shall complete only paragraph (b) of this provision if the vendor has completed the annual representations and certificates electronically at http://www.sam.gov. If any vendor has not completed the annual representations and certifications electronically at the SAM website, the vendor shall complete only paragraphs (c) through (o) of this provision. (End of Provision) •17. The Following Provisions Are Incorporated By Full Text: FAR 52.212-2 Evaluation - Commercial Items (Oct 2014) •(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers: •(i) price •(ii) technical acceptability A Technically acceptable quote will include the following: •1. The contractor shall provide all requirements IAW the attached List of Materials (LOM). •2. The contractor will have a current SAM registration with a Small Business certification. Award will be made on the basis of the price and other factors in accordance with FAR 13.106-2. •(b) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer's specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award. (End of Provision) Section I - Contract Clauses: Provisions by Full Text: FAR 52.209-5 - Certification Regarding Responsibility Matters (Oct 2015) (a)(1) The Offeror certifies, to the best of its knowledge and belief, that -- (i) The Offeror and/or any of its Principals -- •(A) Are [_] are not [_] presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; •(B) Have [_] have not [_], within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) contract or subcontract; violation of Federal or State antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property (if offeror checks "have", the offeror shall also see 52.209-7, if included in this solicitation); and •(C) Are [_] are not [_] presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in paragraph (a)(1)(i)(B) of this provision; and •(D) Have [_], have not [_], within a three-year period preceding this offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. •(1) Federal taxes are considered delinquent if both of the following criteria apply: •(i) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted. •(ii) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded. •(2) Examples. •(i) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. •(ii) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights. •(iii) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment. •(iv) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code). (ii) The Offeror has [[_] has not [_], within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency. (2) "Principal," for the purposes of this certification, means an officer; director; owner; partner; or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions). This Certification Concerns a Matter Within the Jurisdiction of an Agency of the United States and the Making of a False, Fictitious, or Fraudulent Certification May Render the Maker Subject to Prosecution Under Section 1001, Title 18, United States Code. •(b) The Offeror shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. •(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily result in withholding of an award under this solicitation. However, the certification will be considered in connection with a determination of the Offeror's responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Offeror nonresponsible. •(d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. •(e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default. (End of Provision) Clauses by Full Text: FAR 52.203-6 -- Restrictions on Subcontractor Sales to the Government (Sep 2006) •(a) Except as provided in (b) of this clause, the Contractor shall not enter into any agreement with an actual or prospective subcontractor, nor otherwise act in any manner, which has or may have the effect of restricting sales by such subcontractors directly to the Government of any item or process (including computer software) made or furnished by the subcontractor under this contract or under any follow-on production contract. •(b) The prohibition in (a) of this clause does not preclude the Contractor from asserting rights that are otherwise authorized by law or regulation. •(c) The Contractor agrees to incorporate the substance of this clause, including this paragraph (c), in all subcontracts under this contract which exceed the simplified acquisition threshold. (End of Clause) FAR 52.203-17 -- Contractor Employee Whistleblower Rights and Requirement To Inform Employees of Whistleblower Rights (Apr 2014) •(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the pilot program on Contractor employee whistleblower protections established at 41 U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and FAR 3.908. •(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. 4712, as described in section 3.908 of the Federal Acquisition Regulation. •(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold. (End of clause) FAR 52.212-4 -- Contract Terms and Conditions -- Commercial Items (Jan 2017) •(a) Inspection/Acceptance. The Contractor shall only tender for acceptance 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. If repair/replacement or reperformance will not correct the defects or is not possible, the government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights -- •(1) Within a reasonable 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. •(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C.3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract. •(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties. •(d) Disputes. This contract is subject to 41 U.S.C. chapter 71,Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract. •(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. •(f) 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. •(g) Invoice. •(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include -- •(i) Name and address of the Contractor; •(ii) Invoice date and number; •(iii) Contract number, line item number and, if applicable, the order number; •(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered; •(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading; •(vi) Terms of any discount for prompt payment offered; •(vii) Name and address of official to whom payment is to be sent; •(viii) Name, title, and phone number of person to notify in event of defective invoice; and •(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract. •(x) Electronic funds transfer (EFT) banking information. •(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract. •(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer- System for Award Management, or 52.232-34, Payment by Electronic Funds Transfer- Other Than System for Award Management), or applicable agency procedures. •(C) EFT banking information is not required if the Government waived the requirement to pay by EFT. •(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315. •(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings. •(i) Payment. •(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract. •(2) Prompt Payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315. •(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause. •(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made. •(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall- •(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the- •(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment); •(B) Affected contract number and delivery order number, if applicable; •(C) Affected line item or subline item, if applicable; and •(D) Contractor point of contact. •(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer. •(6) Interest. •(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period at fixed by the Secretary until the amount is paid. •(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract. •(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if- •(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days; •(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or •(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2). •(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment. •(v) Amounts shall be due at the earliest of the following dates: •(A) The date fixed under this contract. •(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination. •(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on- •(A) The date on which the designated office receives payment from the Contractor; •(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or •(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor. •(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract. •(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the Government upon: •(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or •(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination. •(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties. •(l) 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 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 which reasonably could have been avoided. •(m) 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. •(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession. •(o) 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. •(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items. •(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract. •(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C. chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity. •(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order: •(1) The schedule of supplies/services. •(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, and Unauthorized Obligations paragraphs of this clause. •(3) The clause at 52.212-5. •(4) Addenda to this solicitation or contract, including any license agreements for computer software. •(5) Solicitation provisions if this is a solicitation. •(6) Other paragraphs of this clause. •(7) The Standard Form 1449. •(8) Other documents, exhibits, and attachments. •(9) The specification. •(t) System for Award Management (SAM). •(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the SAM database, and for any liability resulting from the Government's reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document. •(2) •(i) If a Contractor has legally changed its business name, "doing business as" name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to: •(A) Change the name in the SAM database; •(B) Comply with the requirements of Subpart 42.12 of the FAR; •(C) Agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name. •(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the SAM information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the "Suspension of Payment" paragraph of the electronic funds transfer (EFT) clause of this contract. •(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the SAM database. Information provided to the Contractor's SAM record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the "Suspension of payment" paragraph of the EFT clause of this contract. •(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via SAM accessed through . •(u) Unauthorized Obligations. •(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti- Deficiency Act violation (31 U.S.C. 1341), the following shall govern: •(i) Any such clause is unenforceable against the Government. •(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an "I agree" click box or other comparable mechanism (e.g., "click-wrap" or "browse-wrap" agreements), execution does not bind the Government or any Government authorized end user to such clause. •(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement. •(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures. •(v) Incorporation by reference. The Contractor's representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract. (End of Clause) FAR 52.212-5 -- Contract Terms and Conditions Required to Implement Statutes or Executive Orders (Jan 2017) •(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items: •(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or S...