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Revised: 19 January 2005 (USE FOR P.O.'S UNDER PRIMES AWARDED AFTER 10/10/97) LOCKHEED MARTIN CORPORATION SUPPLEMENTAL TERMS AND
CONDITIONS APPLICABLE TO CONTRACTS 33. Lockheed Martin Material Management Center, Palmdale, California, "Contract Terms and Conditions", form BASTC, is modified as follows: (a) Clause 13. "RESPONSIBILITY FOR PROPERTY": Add the following as subparagraph (e) at the end of this clause: "(e) FAR 52.245-2 is incorporated by reference as though fully set forth herein." (b) Clause 18. "DEFAULT" is deleted in its entirety and FAR 52.249-8 is incorporated by reference as though fully set forth herein. (c) Clause 19. "TERMINATION FOR CONVENIENCE" is deleted in its entirety and FAR 52.249-2 is incorporated by reference as though fully set forth herein. (d) Clause 22. "GRATUITIES/KICKBACKS": Add the following paragraph at the end of this clause: "By accepting this Contract, Seller certifies and represents that it has not made or solicited and will not make or solicit kickbacks in violation of FAR 52.203-7 or the Anti-Kickback Act of 1986 (41 USC 51-58), both of which are incorporated herein by reference as though fully set forth herein." (e) Clause 29. "DISPUTES": Between the first and second sentence, add the following: "Any provision or clause in this Contract that is (i) incorporated in full text or by reference from the Federal Acquisition Regulations (FAR) or (ii) incorporated in full text or by reference from any agency regulation that implements or supplements the FAR or (iii) that is substantially based on any such agency regulation or FAR provision, shall be construed and interpreted according to the federal common law of government contracts as enunciated and applied by federal judicial bodies, Boards of Contracts Appeals, and quasi-judicial agencies of the federal Government." At the end of the first paragraph, add the following paragraph: "Any provision in the FAR clauses specified in this Contract referring to a "Disputes Clause", or which provide that a failure to agree shall be a dispute within the meaning of the FAR clause entitled "Disputes"", shall not apply and shall be of no force or effect." 34. Add the following additional clauses: (a) APPLICABLE LAWS: Seller agrees to comply with all applicable laws, orders, rules, regulations, and ordinances. If the Government reduces Buyer’s contract, or if a fine or penalty is assessed by a government agency, as a result of any violation of Public Law or federal, state, or local regulation by Seller or Seller’s subcontractors or lower-tier subcontractors, Buyer may reduce the amount of this Contract by the same amount. If Buyer has already paid Seller, Seller shall, upon demand from Buyer, promptly repay to Buyer the amount of the offset. Exercise of Buyer’s right under this clause shall not be a waiver of any rights Buyer has under any other clause or provision of this Contract." (b) CONTRACT DIRECTION: (i) Buyer, through its Contracts Department, shall be solely responsible for all liaison and coordination with the Buyer’s customer, including the U.S. Government, as it affects the applicable prime contract, this contract, and any related contract. Seller shall be responsible for immediately notifying the Buyer by telephone or electronic message should the prime contracting agency or anyone other than the Seller’s suppliers communicate in any manner directly with Seller regarding performance of this Contract. All such communications shall be referred to the Buyer. (ii) Unless otherwise directed in writing by the Buyer’s Authorized Representative, all documentation requiring submittal to, or action by, the Government or the Contracting Officer shall be routed to, or through, the Buyer’s Authorized Representative. (c) PRIORITY RATING: If so identified, this Contract is a "rated order" certified for national defense use, and the Seller shall follow all the requirements of the Defense Priorities and Allocation System Regulation (15. C.F.R. Part 700). 35. CERTIFICATIONS AND REPRESENTATIONS: This clause contains certifications and representations that are material representations of fact upon which Buyer will rely in making awards to Seller. By submitting its written offer, or providing oral offers/quotations at the request of Buyer, or accepting any Contract, including verbal orders from a Buyer Authorized Representative, Seller represents and certifies as set forth below in this clause. Seller shall immediately notify Buyer of any change of status with regard to these certifications. I. Equal Employment Opportunity Certifications: (a) 52.222-21 Certification of Nonsegregated Facilities. (Applicable to solicitations and purchase orders exceeding $10,000 which are not exempt from the requirements of the Equal Opportunity clause, FAR 52.222-26). (i) "Segregated facilities" as used in this provision, means any waiting rooms, work areas, rest rooms and wash rooms, 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, that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin because of habit, local customer, or otherwise. (ii) Seller certifies that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. Seller agrees that a breach of this certification is a violation of the Equal Opportunity clause in the contract. (iii) Seller further agrees that (except where it has obtained identical certifications from proposed lower-tier subcontractors for specific time periods) Seller will: (a) obtain identical certifications from proposed lower-tier subcontractors before the award of subcontracts under which the subcontractor will be subject to the Equal Opportunity clause; (b) retain the certifications in the files; and (c) forward the following notice to the proposed lower-tier subcontractors (except if the proposed subcontractors have submitted identical certifications for specific time periods): NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES. A certification of Nonsegregated Facilities must be submitted before the award of a lower-tier subcontract under which the subcontractor will be subject to the Equal Opportunity clause. The certification may be submitted either for each subcontractor or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). NOTE: The penalty for making false statements in offers is prescribed in 18 U.D.C. 1001. (b) 52.222-22 Previous Contracts and Compliance Reports. Seller represents that, if Seller has participated in a previous contract or subcontract subject either to the Equal Opportunity clause (FAR 52.222-26) of this solicitation, the clause originally contained in Section 310 of Executive Order No. 10925, or the clause contained in Section 201 of Executive Order No. 11114, that Seller has (i) filed all required compliance reports and (ii) that representations indicating submission of required compliance reports, signed by proposed subcontractors, will be obtained before subcontract awards (c) 52.222-25 Affirmative Action Compliance. (Applicable if (i) the Seller has 50 or more employees, (ii) is not exempt from the requirements of the Equal Opportunity clause (FAR 52.222-26) and (iii) the value of the Contract exceeds $50,000.) Seller represents: (i) that it has developed and has on file at each establishment, affirmative action programs required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and 60-2), or (ii) that in the event such program does not presently exist Seller will develop and place in operation such a written Affirmative Action Compliance Program within 120 days from the award of this Contract. (iv) Seller shall include this clause in any lower-tier order of $50,000 or more if the lower-tier supplier has 50 or more employees and is not exempt from the requirements of the Equal Opportunity clause (FAR 52.222-26). II. 52.203-11 Certification and Disclosure Regarding Payment to Influence Certain Federal Transactions (Applicable to solicitations/Contracts/purchase orders that exceed $100,000). (a) The definitions and prohibitions contained in the clause, at FAR 52.203-12, Limitation on Payments to Influence Certain Federal Transactions, included in this solicitation or Contract are hereby incorporated by reference in paragraph (b) of this certification. (b) Seller, by signing his or her offer or by acceptance of this Contract, hereby certifies to the best of his or her knowledge and belief that on or after December 23, 1989, (1) No Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds (including profit or fee received under a covered Federal transaction) have been paid, or will be paid, to any person, for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with this solicitation or Contract, Seller shall complete and submit, with its offer, OMB standard from LLL, Disclosure of Lobbying Activities, to Buyer; and (3) He or she will include the language of this certification in all lower tier subcontracts awards at any tier and require that all recipients of subcontract awards in excess of $100,000 shall certify and disclose accordingly. (c) Submission of this certification and disclosure is a prerequisite for making or entering into this Contract imposed by section 1352, Title 31, United States Code. Any person who makes an expenditure prohibited under this provision or who fails to file or amend the disclosure form to be filed or amended by this provision, shall be subject to a civil penalty of not less than $10,000 nor more than $100,000 for each such failure. III. FAR 52.209-6 Certification Regarding Debarment, Suspension, Proposed Debarment, And Other Responsibility Matters. (Applicable to solicitations/Contracts/purchase orders in excess of $25,000). (a)(1) Seller certifies, to the best of its knowledge and belief, that- (i) Seller and/or any of its Principals- (A) Are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal Agency. (B) Have not, within a three-year period preceding this offer or acceptance of this Contract, 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, or receiving stolen property; and (C) Are not presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in subdivision (a)(1)(I)(B) of this provision. (ii) The Seller has not, within a three-year period preceding this offer or Contract acceptance had one or more contracts terminated for default by any Federal agency. (2) "Principals", for the purposes of this certification, means officers, directors, owners, partner, and persons having primary management or supervisory responsibilities within a business entity (e.g. general manager, plant manager, head of a subsidiary, 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) Seller shall provide immediate written notice to Buyer if, at any time prior to Contract award, Seller learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. V. FAR 52.223-13 Certification of Toxic Chemical Release Reporting. (Applicable to competitive solicitations/Contracts/purchase orders which exceed $100,000) (a) Submission of this certification is a prerequisite for making or entering into this Contract imposed by Executive Order 12969, August 8, 1995. (b) By submission of its offer or acceptance of this Contract, Seller certifies that- (1) As the owner or operator of facilities that will be used in the performance of this Contract that are subject to the filing and reporting requirements described in section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11023) and section 6607 of the Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13106), Seller will file and continue to file for such facilities for the life of this Contract the Toxic Chemical Release Inventory Form (Form R) as described in sections 313(a) and (g) of EPCRA and section 6607 of PPA; or - (2) None of its owned or operated facilities to be used in the performance of this Contract is subject to the Form R filing and reporting requirements because each such facility is exempt for at least one of the following reasons: (i) The facility does not manufacture, process or otherwise use any toxic chemicals listed under section 313 (c) of EPCRA, 42 U.S.C. 11023(c); (ii) The facility does not have 10 or more full-time employees as specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A); (iii) The facility does not meet the reporting thresholds of toxic chemicals established under section 313(f) of EPCRA, 42 U.S.C. 11023(f) (including the alternate thresholds at 40 CFR 372.27, provided an appropriate certification form has been filed with EPA); (iv) The facility does not fall with Standard Industrial Classification Code (SIC) designation 20 through 39 as set forth in FAR section 19.102 of the Federal Acquisition Regulation; or (v) The facility is not located within any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, or any other territory or possession over which the United States has jurisdiction. 36. GOVERNMENT CLAUSES (a) Either a Government contract number or Inventory/Government (Invt/Govt) appears on the face of this Contract. Therefore, this Contract is subject to the Federal Acquisition Regulation (FAR). The above provisions and this provision 36. shall apply in addition to the Contract Terms and Conditions, Provisions 1 through 32. In the event of any inconsistencies between the clauses in provisions 1 through 32 and 33 through 37, provisions 33 through 37 shall take precedence. (b) Except as otherwise indicated on the face of this order, the FAR and Department of Defense Federal Acquisition Regulation Supplement (DFARS) clauses specified in this Article are incorporated herein by reference. As used in the FAR and DFARS clauses specified in this Article, "Government" and "Contracting Officer" mean Buyer. "Contractor" means "Seller, "Contract" means this Order unless the context of the clause requires otherwise, and "subcontract" means "Seller's purchase order or subcontract issued pursuant to this Order."
37. INDEMNIFICATION FOR DEFECTIVE PRICING If Buyer is subject to any liability as a result of a failure of the Seller to comply with the requirements of FAR 52.215-22 and 52.215-23, Seller agrees to indemnify and hold Buyer harmless to the full extent of any amount claimed by the Government, from and against any loss, damage, expense or liability resulting from such failure. Furthermore, Seller agrees that in any action brought hereunder, the Federal Statute of Limitation shall apply. NOTE TO BUYERS: The prime contract is CAS-covered. You must determine, based on the applicability rules set forth in the Cyber Guide (http://legal.lmaero.lmco.com/cyberguide/Default.htm), which of the applicable FAR clauses covering this area should be incorporated in any particular subcontract to which these terms and conditions apply. The relevant clauses are now found beginning at 52.230-1 of the current version of the FAR. See also FAR Subpart 30.1 as in effect at the time of award of the prime contract. |