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IN THE UNITED STATES COURTOF FEDE1L~ CLAIMS

AMERICAN TELECOM CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

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No. 03-1627C ( Judge Hewitt

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DEFENDANT'S ANSWERAND AFFIRMATIVE DEFENSES TO PLAINTWI~'S AMENDED COMPLAINT AND COUNTERCLAIMFOR DAMAGES For its answerto the amended complaint, defendant admits, denies, and alleges as follows: JURISDICTIONAL STATEMENT 1. Theallegations contained in paragraph 1 constitute conclusions of law and

plaintiffs characterization of its case, to whichno answeris required; to the extent that they may be deemed allegations of fact, they are denied. 2. Admitsthe allegation comained paragraph 2 that plaintiff is AmericanTelecom in

Corporation; denies all other allegations contained in paragraph2 for lack of knowledge or information sufficient to forma belief as to their truth. 3. Admits.

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COUNTI 4. Admitsthe allegations contained in paragraph4 only to the extent supported by

the contract documents cited, whichare the best evidenceof their contents; otherwisedenies those allegations. 5. Admitsthe allegation contained in paragraph5 only to the extent supported by the

contract documents cited, whichare the best evidenceof their contents; otherwisedenies those allegations. 6. Admitsthe allegation contained in paragraph 6 that AmericanTelecom

commenced performanceshortly after the Albanycontract was awarded; denies all other allegations containedin paragraph6. 7. 8. 9. Denies. Denies. Admitsthe allegations contained in paragraph 9 only to the extent supported by

the document cited, whichis the best evidenceof its contents; otherwisedenies those allegations. 10. Admitsthe allegations contained in paragraph 10 only to the extent supported by the document cited, whichis the best evidenceof its contents; otherwisedenies those allegations. 11. Admitsthe allegation contained in paragraph 11 that, on or about October 29, 1999, the Government terminated AmericanTelecomon the Albany contract for default; denies all other allegations containedin paragraph11, including the allegation that the termination of AmericanTelecomon the Albany contract was wrongful.

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12. Admitsthe allegations contained in paragraph 12 only to the extent supported by the contract document cited, whichis the best evidenceof its contents; otherwise denies those allegations. 13. Admitsthe allegations contained in paragraph 13 only to the extent supported by the document cited, whichis the best evidenceof its contents; otherwisedenies those allegations. 14. Denies the allegations contained in paragraph t4. Denies that plaintiff is entitled to the relief requested in the "Wherefore" paragraph immediatelyfollowing paragraph 14 of the amendedcomplaint. COUNT II 15-19. Defendant on this date filed a motionfor partial dismissal with respect to has Count~ and, therefore, is not required at this time to plead any answeror affirmative defenses as to the allegations in this Count. For the reasons stated in our motion, defendantdenies that plaintiff is entitled to the relief requested in the "Wherefore" paragraphimmediately following paragraph 19 of the amendedcomplaint. COUNT]~ 20. Defendant's responses to paragraphs 1 through 19 of the amendedcomplaint are incorporated by reference. 21. Theallegations contained in the first sentence of paragraph21 are conclusionsof

law to whichno responseis required; to the extent that they maybe deemed allegations of fact, they are denied. Theallegations contained in the second sentence of paragraph21 are denied for lack of knowledge informationsufficient to forma belief as to their truth. or

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22. Denies the allegations contained in paragraph 22. Denies that plaintiff is entitled to the relief requested in the "Wherefore"paragraphimmediatelyfollowing paragraph 22 of the amendedcomplaint. COUNT IV 23. Defendant's responses to paragraphs 1 through 22 of the amendedcomplaint are incorporated by reference. 24. Admitsthe allegations contained in paragraph 24 only to the extent supported by the contract documents cited, whichare the best evidenceof their contents; otherwise denies those allegations. 25. Admitsthe allegations contained in paragraph 25 only to the extent supported by the contract documents cited, whichare the best evidenceof their contents; otherwise denies those allegations. 26. Admitsthe allegation contained in paragraph 26 that the Government accepted

American Telecom's workin completionof the Bath project; denies fl~e allegation that the Government accepted AmericanTelecom's work on July 3, 2000. 27. Admits the allegation contained in paragraph 27 that the Government not pay did parts of someAmericanTelecominvoices based upon the Government's offset to reprocure the services required to completethe Albanyproject; otherwise denies all remainingallegations in paragraph 27. 28. Admitsthe allegations contained in paragraph 28 only to the extent supported by the document cited, whichis fl~e best evidenceof its contents; otherwisedenies those allegations.

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29. Admitsthe allegations contained in paragraph 29 only to the extent supported by the document cited, whichis the best evidenceof its contents; otherwisedenies those allegations. 30. The allegations contained in paragraph 30 that Invoice No. 11 was "properly submitted" and that "the Government wrongfully refused to makepaymentin the amountof has $113,804.77, plus interest and PromptPayment interest" are conclusions of law to which no Act response is required; to the extent that they may deemed be allegations of fact, they are denied. Admitsthe allegations contained in paragraph30 that Invoice No. t 1 was submitted to the Government payment and that the Government not makepaymenton Invoice No. 11; for did otherwise denies the remainingallegations in paragraph30. 31. Denies. 32. Denies the allegations contained in paragraph 32. Denies that plaintiff is entitled to the relief requested in the "Wherefore"paragraphimmediatelyfollowing paragraph 32 of the amendedcomplaint. COUNT V 33. Defendant's responses to paragraphs 1 through 32 of the amendedcomplaint are incorporated by reference. 34. The allegations in paragraph 34 that plaintiff "encountered changedconditions for whichit incurred additional costs" and that the workplaintiffperformed identified in subparagraphsa. through f. of paragraph34 "wasnot in plaintiffs ori~nal scope or bid price for the Bath Contract" are conclusionsof law to whichno response is required; to the extent that they

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maybe deemed allegations of fact, they are denied. Theallegation in paragraph34 that plaintiff "submitted changeproposal numbers7, 8, 9, 11, 12, and 13" is admitted. 35. Admitsthe allegations contained in paragraph 35 only to the extent supported by the documents cited, whichare the best evidenceof their contents; otherwise denies those allegations. 36. 37. Admits. Theallegations contained in paragraph37 that "changeorder numbers 8, 9, 11, 7,

12, and 13 were properly submitted" to the Government that "the Government and has wrongfully refused to makepaymentin the amountof $205,503.87, plus interest and Prompt Payment interest" are conclusionsof law to whichno response is required; to the extent that Act they maybe deemed allegations of fact, they are denied. 38. Denies. 39. Denies the allegations contained in paragraph39. Denies that plaintiff is entitled to the relief requested in the "Wherefore" paragraph immediatelyfollowing paragraph 39 of the amendedcomplaint. 40. Denies each and every allegation not previously admitted or otherwise qualified. 41. Deniesthat plaintiff is entitled to the relief requestedin its prayers for relief or to any relief whatsoever.

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AFFIRMATIVE DEFENSES 1. Plaintiffs claims in Counts1Vare barred, at least in part, becausethe Government

properly terminated plaintiff for default on the Albanycontract and offset $87,815.26of allegedly owedpayments. 2. Oninformation and belief, plaintiffs claims in Counts1Vand V are barred, at

least in part, by accordand satisfaction. COUNTERCLAIM 1. OnJanuary 13, 1999, the DOInon-competitively awardedContract No. 1435-01AmericanTelecomCorp. ("AmericanTelecom").

99-30978, the Albanycontract to plaintiff,

Under this contract, the DOIawardedtwo delivery orders, Nos. RC30978/82115, awarded January 29, 1999, and 1435-01-99-RC30982/82140, awarded January 13, 1999, to American Telecom workin renovating certain telephone and data systemsat the Albanyproject. for 2. 3. On July 14, 1999, DOIissued a Cure Notice to AmericanTelecom. OnOctober 4, 1999, DOIissued a ShowCause Notice to American Telecom,

notifying AmericanTelecomthat DOIwas considering terminating the Albany contract under the contract's termination for cause provisions. 4. On October 29, 1999, DOIterminated AmericanTelecomfor cause on both

delivery orders to the Albanycontract. 5. Onor about March17, 2000, DOIawardeda reprocurement contract to

Communications Products, Inc. to complete the workon the Albany project that American Telecomhad failed to complete.

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6. 7.

The Albany project was completed by Communications Products, Inc. DOIhas offset the amountof $87,815.26 that wouldotherwise be due to

AmericanTelecomunder Contract No. 1435-01-99-RC-30982, contract for work in renovating a certain telephone and data systems for at the Bath, New YorkVAMedicalCenter (the "Bath project"). 8. OnOctober 8, 2003, DOIassessed reprocurement costs against American

Telecomin the amountof $699,115. 9. The assessed reprocurement costs of $699,115assessed against American

Telecom represent the excess cost of completingthe workon the terminated portion of the delivery orders to the Albany contract after credit for the offset of $87,815.26 with respect to the Bathproject. WHEI~FOI~, United States requests that the Court enter judgment in favor of the the UnitedStates in the amount $699,115,deny all relief sought by plaintiff in its amended of complaint, order that plaintiffs amended complaint be dismissed, and grant the United States such other and further relief as the Court maydeem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director s/Robert E. Kirschman,Jr. ROBERTE. KIRSCHMAN, JR. Assistant Director

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OF COUNSEL: ALTONE. WOODS,ESQ. Assistant Solicitor Office of the Solicitor Department the Interior of JEANNE A. ANDERSON,ESQ. Attorney Advisor Office of the Solicitor Department the Interior of

s/James M. Meister JAMES M. MEISTER Trial Attorney CommercialLitigation Branch Civil Division Departmentof Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, DC20530 Tel: (202) 305-3079 Fax: (202) 307-0972 Date: April 16, 2004

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CERTIFICATEOF FILING I hereby certify that on this 16th day of March,2004, a copy of the foregoing "DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT COUNTERCLAIM DAMAGES" filed AND FOR was electronically. I AMENDED

understand that notice of this filing will be sent to all parties by operationof the Court's electronic filing system. Parties may access this filing through the Court's system.

s/James M. Meister

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S~| CITATION ONTRACT/L IC ~ir-F OFFEROR TO COMPLETE BLOCKS 12, 435-01-99-RC-30982 7. FOR SOLICITATION INFORMATIONCALL:

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N/A

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Departmentof the Interior Minerals ManagementService Procurement Operations Branch 381 E]den Street, Mail Slop 2500 Hemdon, VA 20170

Net 30 D-ay~ 13~.TH~S COh'T'RACT R,~TED tS A OP, LWDER { 15CFR DER I>P,IS 7¢Q

15. OELINrER TO

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To be specified on individual Delivery Orders

s~c: 4813 S~zE STANO~.R~ empl. 1500 I¢. AOMINISTER~:..O BY ContracIing Officer Ad&ess is ~e s~e ~ in Block above 9

Prime: U.S. Small Business Adminisrralion Subcontractor: American Telecom Corporation "n~u,~,-~o~E~o. (336) 852-2091

Send Invoices to the Con~actingOfficer Addressis the same as in Block 9 above.

"['ne Contra :for shall provide all equipment,supplies and personnelto perf rm in accorda ace wi h the attached Smtenent of Work. C onlractor shall commence upon the issuance of individua ! DeliveryOr! ors iss ~cd hereunder. work This contr: ct is issued under Direct Authority from SBA,reference A Requiremd No ~ 460-99-900621. ~t 25.ACCOU~FFINGAJ>PftOP~ILATK3N .&NO DATA TObe provided on Individual Delivery Orders

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*SSU~NG OFFICE.

CONTFLACTOR AGNES TO FURNISH AND OEUVE.R ALL FCEMS i'l

DATED --

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YOUR OFFE~ ON SOUCITATION

{BLOCK S

[] P~CEfVEO INSPE--CTEO ACCEPTED, CONFORMS [] [] CONTRACT, AND ASNOTED EXCEPT TOTHE

STANDAR FORM 1449

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TABLE OF CONTENTS This contract contains the following: Section I II Standard Form 1449 Addendum Schedule of Supplies/Services to Federal Acquisition Regulation 52.212-4, Contract Terms and Conditions--Commercial Items (APR. 1998) Addendum Federal Acquisition Regulation 52.212-4, Contract to Terms and Conditions--Commercial Items (APR1998) V Federal Acquisition Regulation 52.212-5, Contract Termsand Conditions Required to ImplementStatutes or Executive Orders-Commercial Items (OCT1998) Contract Documents,Exhibits and Attachments 1 1-2 1-4

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--~ontract ~DENDUM TO SCHEDULE I. SCOPE

1"4o. 1435-0i-99-RC-30982

OF SUPPLIES/SERVICES

Tkis is a firm-fixed-price, indefinite quantity, indefinite delivery order contract issued under the fi-anchise authority of the Department of the Interior, Minerals Management Service. Under the francbSse authority, Minerals Management Service provides acquisition support to other federal agencies. This particular contract will provide support in modernizing the existing telecommunications in.fr~tmcmre within the Veterans Health Administration (VHA). The contractor shall deliver integrated voice, data and video-transmission telecornrnunications media and shall perform the required site preparation improvementsto support the installation and facility requirements. The governmentanticipates that this work will be perforriaed ?~ V!-L,( ~ospitals and health clinics located nationwide. All work shall be performed in accordance with the General Statement of Workcontained under Section VI of this contract and with the specification design for the particular medical center facility attached to each Delivery Order issued against this contract. It is anticipated that this contract will be used primarily for the VAMC Bath, NewYork. at 2. bI1NIMUM AND MA~MUM THRESHOLDS

During the life of this contract, the governmentis not obligated to purchase services at any specified monetary minimum. Both the government and the contractor agree that minimum~consideration" under this contract is the contractor's benefit in holding this contract and the opportunity to perform as a contractor source for services identified in the General Statement of Work. The total amount of this contract shall not exceed a maximum amount of $2,990,000. 3, PERIOD OF PERFORNIA.NCE The term of this contract is thirty-six (36) months from the date of award or until the aggregate total all Delivery Orders issued against this contract equals the maximum dollar t~eshold cited above, whichever shall come first. The contractor shall complete the work associated with each Delivery Order in accordance with the completion time specified on the order. 4. LABOR CATEGORIES AND ILATES

The contractor's labor category proposal dated December07, 1998 is hereby incorporated into this contract by reference. The following labor categories and loaded labor rates shall be incorporated into any Delivery Order issued against this contract.

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---~ontract No. 1435-01'99-R~'--3(~982 LABOR CATEGORY Project Manager Electrician Technician III Technician II Technician I LABOR RATE $44.10 $32.43 $27.24 $23.35 $19.46

All travel under this contract shall be in accordance with the Federal Travel Regulations and shah bear no fee. The contractor shall seek competitive bids for all lots of equipment and/or supplies exceeding $2,500 and provide them to the government as b:icku~' docui~entation to support price reasonability in the award of a Task Order. As an alternative to seeking competitive bids, the contractor mayshow that the proposed pricing is at or below the General Services Administration's Federal Supply Schedule Contract price for the same type of item. PLACE OF PER.FOILMANCE Thespecific place of performance vail be identified on each delivery order issued against this contract.

6. ISSUANCE OF DELIVERY ORDERS AND CONTRACT ADMINISTRATION Thefolio'wing individual will issue all Delivery Ordersagainst this contract and performcontract administration: Contracting Officer Procurement Operations Branch 38t Elden S~eet, MS2500 Hemdon,Virginia 20170-4817 Copies of all correspondenceconcerning this contract must be provided to the Contracting Officer at the address stated above. 7. INWOICING Contractor shall submit invoices to the ContractingOfficer at the address indicated abovein accordancewith FAR 52.212-4(g) Invoice (see section III of this contract):

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--12ontyact No. 1435-0i-99-R}2--36982 52.212-4 CONTRACTTERMS AND CONDITIONS-COMMERCIALITEMS (APR 1998) (a) Inspection~Acceptance.The Contractor shall only tender for acceptance those items that conformto the requirementsof this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for accephance. The Government require repair or may replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. TheGovernment must exercise its post-acceptance rights (l) within a reasonable time aIter the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the item, unless the changeis due to the defect in the item. ~o) Assignraent. The Contractor or its assignee's rights to be paid amounts as a result of due performance this contract, maybe assigned to a bank, trust company, other financing institution, of or including any Federal lending agency in accordance with the Assignmentof Claims Act (31 U.S.C. 3727). (c) Changes.Changesin the terms and conditions of this contract maybe madeonly by written agreementof the parties. (d) Disputes. This contract is subject to the Contract Dispute Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreementon any request for equitable adjustment,claims, 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-l, Disputes, whichis incorporated herein by reference. The Contractor shall proceed diligently with performance this contract, pendingfinal of resolution of any dispute arising under the contract. (e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. (f) Excusabledelays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyondthe reasonable control of the Contractor and without its faults or negligence such as, acts of Godor the public enemy,acts of the Government either its sovereign or in contractual capacity, fires, floods, epidemics,quarantinerestrictions, strikes, unusuallysevere weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonablypossible after the commencementany excusable delay, setting forth the full of particulars in cormectiontherewith, shall remedysuch occurrence with all reasonable dispatch, and shall promptlygive written notice to the ContractingOfficer of the cessation of such occurrence. (g) Invoice¯ TheContractorshaIl submitan original invoice and tl-tree copies (or e[ectrovSc invoice, if authorized,) to the address designated in the contract to receive invoices. Aninvoice must include-(1) Name~and address of the Contract~-;. . .:.~ .~,~:. . ..."....~ ..,...- .--...-: :.~ ].t,,,, ."-. .~ -..: ... ... .-. .. .... . ¯ ¯ ¯ :- .. .. ;, ¯ " ...... " ", ~-2)-.I oi~.e.da~ ";:.':. -. ,>"-.:;.-;.; : . .PI~,; ~ .- ..... ... ~, . :.. ..: " "" (3) Contract nuiriber, contract line item number and, if applicable, the order number;

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(4) Description, quantity, unit of measure,umt price and extendedprice of the items delivered; (5) Shipping number8xad date of shipment including the bill of lading numberand weight of shipment if shipped on Government bill of lading; (6) Termsof any prompt paymentdiscount offered; and paymentis to be sent; and (7) Name address of official to whom Name, title, and phonenumber person to be notified in event of defective of (8) invoice. Invoices will be handled in accordance with the Prompt PaymentAct (31 U.S.C. 3903) and Office of Management Budget (OMB) and Circular A-125, Prompt Payment. Contractors are encouragedto assign an identification number each invoice. to (h) Patent Indemnity. The Contractor shall indemnifythe Govermnent its offeror's, and employees agents against liabiliLy, including costs, for actual or alleged direct or and contributory infringement of, or inducement infringe, any UnitedStates or foreign patent, to trademarkor copyright, arising out of the performance his contract, providedthe Contractor is of reasonably notified of such claims and proceedings. (I) Payment. Paymentshall be madefor items accepted by the Government that have been delivered to the delivery destinations set forth in this contract. TheGoven'wnent make will payment in accordance with the Prompt PaymentAct (31 U.S.C. 3903) and Office Management and Budget (OMB)Circular A-125, Prompt Payment. Unless otherwise provided by an addendum this contract, the Government to shall makepaymentin accordance with the clause at FAR 52.232-33, MandatoryInformation for Electronic Funds Transfer Payment, which is incorporated herein by reference. In connectionv,Sth any discount offered for early payment, time shall be computedfrom the date of the invoice. For the purpose of computingthe discount earned, paymentshall be considered to have been madeon the date which appears on the paymentcheck or the specified paymentdate if an electronic funds transfer paymentis made. CI) Risk of loss. Unlessthe contract specifically provides otherwise,risk of loss or damage the supplies provided under this contract shall remainwith the Contractor until, and to shall pass to the Government upon: (i) Deliveryof the supplies to a carrier, if transportationis f.o.b, origin; or at (2) Delivery of the supplies to the Government the destination specified in the contract, if transportationis f.o.b, destination. (k) Taxes. The contract price includes all applicable Federal, State, and local taxes and

(1) Terminationfor the Government's convenience¯ The Gov6vn.ment reserves the right to III-2

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Contract No. 1435-01-99-RC-30982 terminate this contract, or any part hereof, for its sole convenience. the event of such In termination, the Contractor shall immediately~top all workhereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work.Subject to the terms of this contract, the Contractorshall be paid a percentageof the contract price reflecting the percentage of the workperformedprior to the notice of termination, plus reasonable charges the Contractor can demonstrateto the satisfaction of the Government using its standard record keeping system, have resulted from the termination. TheContractor shall not be required to complywith the cost accountingstandards or contract cost principles for this purpose. This paragraphdoes not give the Goverra~ent right to audit the Contractor's records. TheContractor sh~l not be paid for any any workperformed or costs incurred which reasonably could have been avoided. (m) Termination for cause. The Government terminate this contract, or any part may hereof, for cause in the event of any default by the Contractor, or if the Cbntrac~rr fails to complywith any contract terms and conditions, or fails to provide the Government, upon request, vdth adequate assurances of furore performance.In the event of termination for cause, the Government shall not be liable to the Contractor for any amountfor supplies or services not accepted, and the Contractor shall be liable to the Government any and all rights and for remedies provided by law. If it is determinedthat the Government improperly terminated this contract for default, such termination shall be deemed termination for convenience. a (n) Title. Urdessspecified elsewherein this contract, title to items furnished under this contract shall pass to the Government uponacceptance, regardless of whenor where the Government takes physical possession. The Contractor wan'ants and implies that the items delivered hereunder are merchantable fit for use for the particular purposedescribedin this contract. and
(o) Warranty.

(p) Limitation of liability. Except as otherwise providedby an express or implied wancanty,the Contractor will not be liable to the Government consequential damages for resulting from any defect or deficiencies in accepteditems. (q) Other compliances.The Contractor shall complywith all applicable Federal, State, and local laws, executive orders, rules and regulations applicable to its performance under tiffs contract. (r) Compliance with laws unique to Government contracts. The Contractor agrees tO complywith 31 U.S.C. 1352relating to limitations on the use of appropriated funds to influence certain Federalcontracts; 18 U.S.C.431relating to officials not to benefit; 40 U.S.C.327, et seq., Contract WorkHours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and.10 .U.S,C. 24~.9 r~latin.g to whistleblowerproteetiop_s; and 49 U.S.C.. 401 I'8, i ," ,. . " ¯ Fly~er~Cgn. ;~ar~d(4-~ ,S..~:4"23.ret~in~-.~'.W.O,~ure~e.i'i't. .U. ~h.t~fi~:'.[,L":- '" .: ~."?.- ": ". ',:)t.:-.?..-...: .~.::-.: .... [[":.2 (s) Orderof precedence,Anyinconsistencies in this solicitation or contract shall be t1I-3

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- -~ontrac~. No. 1435-01 ~99-RC-30982 resolved by giving precedencein the following order: (1) the schedule of supplies/services; (2) the Assignments, Disputes, Payments, Invoice, Other Compliances, and Compliancewith Laws Uniqueto Government Contracts paragraphsof this clause; (3) the clause at 52.212-5; (4) addendato this solicitation or contract, including any license agreements computersoftware; for (5) solicitation provisionsif this is a solicitation; (6) other paragraphs this clause; (7) of Standard Form1449; (8) other documents,exJgbits, and attachments; and (9) the specification. (End ofctause

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- --ContractNo.1435-01 99 - R-C-'~3 (~982 ADDENDUM TO FEDERAL ACQUISITION REGULATION 52,212-4 CONTRACTTERMS AND CONDITIONS-COM-N[ERCIAL ITEMS (APR 1998) 1. FAR52.216-18, ORDER-h-NG (OCT 1995)

¯ (a) Anysupplies and services to be furnished under this contract shall be ordered issuance of delivery orders or task orders by the individuals or activities designatedin the schedule. Suchorders maybe issued from the date of contract awardthrough a period of thirtysix (36) monthsor until the Maximum Amount stipulated in Section II.2 of this contract is met. (b) All delivery orders or task orders are subject to the termsand conditions of this contract. In the event of conflict between delivery order or task order and this contract, the a contract shall control. ~' ~(c) If mailed, a delivery order or task order is considered "issued" whenthe Government deposits :he order in the mail. Ordersmaybe issued orally or by v,TitTen telecommunications only if authorized in the Schedule. 2. FAR 52.216-19, ORJ)ER LIMITATION(OCT 1995)

(a) Minimum Order. When the Government requires supplies or services covered by this contract in an amount less than $I0.00, the Goverm-nent not obligated to purchase, nor is :he of is Contractor obligated to furnish those supplies or services under the contract. (5) ?,,Iaximum Order. Delivery Ordersissued against this contract will not be restricted to a maximum order limitation provided that the Maximum Dollar Threshold cited in 2. NffNhMUM M,'LXIMUM AND THRESHOLDS page II-i is not exceeded. on 3. FAR 52.216-22, INDEFINITE QUAaNTITY (OCT 1995)

(a) This is an indefinite-quantity contract for services or supplies specified, and effective for the period stated in the Schedule.Thequantities of supplies and services specified in the Scheduleare estimates only and are not purchasedby this contract. (b) Delivery or performanceshall be madeordy as authorized by orders issued accordance with the Ordering clause. The Contractor shall furnish to the Goverament,whenand if ordered, the supplies or services specified in the Scheduleup to and including the quantity designated in the Schedule as the "maximum." Government The shall order at least the quantiD" of supplies or services designated in the Scheduleas the "minimum."

Schedule, there is no limit on the numberof orders that maybe issued. The Government may issue orders requiring delivery to multiple destinations or performance multiple locations. at IV-I

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(d) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor's and Government's fights and obligations with respect to that order to the same extent as if the order were completed during the contyact's effective pedod, (End of clause) 4. CONTR.4CTOR COMMITMENTS, WARRANTIES AND REPRESENTATIONS

Any written ¢omynitmentby the Contractor within the scope of this contract shall be binding upon the Contractor. Failure of the Contractor to fulfill any such commitmentshall render the Contractor liable under the terms of this contract. For the purpose of this, a written commitmentby the Contractor is limited to the proposal submitted by the Contractor, and to specific written modifications to the proposal. Written commitmentsby the Contractor are further defined as including: (1) any warranty representation madeby the Contractor in a proposal as to hardware or so f'v,vare performance, total systems performance and other physical, design or functioning characteristics of a hardware or software package or system or installation date, (2) any warranty madeby the Contractor concerning the characteristics or items described in (1) above madein any publications specifications accompanyingor referred to in a proposal, and (3) any modification of affirmation or representation as to the above which is made by the Contractor. The warranty shall not apply to repair required due to the fault or negligence of the Government; however, in the event of any dispute regarding the fixing of responsibility, the Contractor shall not delay the necessary repair. 5. COMMERCIAL WARRANTY

The Contractor shall provide a standard commercial warranty on all supplies and equipment furnished. 6. WARRAaNTY EXCLUSIONS A~D LIMITATION OF DAMAGES

Except as expressly set forth in ~vdting in this agreement, there are no warranties expressed or implied. In no event will the contractor be liable to the Governmentfor consequential damages as defined in the Uniform Commercial Code, section 2-715. Consequential damages resulting from the seller's breach include: ¯.. . . . ..¯ Anytoss res.ulting from general or pa_~ic..ular ~equk_e.rrken~ ,~..~d.fiee~i).f w,N~bl:h~ " ..... .;. seller at ~e tlrne of contracting had reason to l~ow and which could not be prevented " by cover or other'wise; and ¯. . -

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--~2ontract ¯

No. 1435-01299-R~-~d982

Injury to person or property proximately resuking from any breach of warranty. WARRANTY

7. YEAR 2000

The Contractor warrants that each product delivered under this contract will be able to accurately process date from, into, and betweenthe 20th and 21 st centuries. 8. FAR 52.228-5, (JAN 1997) INSURANCE- WORKON A GOVERNTvlENT INSTALLATION

(a) The Conu'actorshall, at its ownexpense, provide and maintain during the entire performance of this contract, at least the kinds and minimum amountsof insurance requ, ired in the Scheduleor ¯ elsewhere the contract. in (b) Before commencing workunder this contract, the Contractor shall notify the Contracting Officer in writing that the required insurance has been obtained. Thepolicies evidencingrequired insurance shall contain an endorsement the effect that any cancellation or any material, change to adversely affecting the Government's interest shall not be effective (1) for such period as the laws of the State in whichthis contract is to be performed prescribe, or (2) until 30 days after the insurer or the Contractor gives writ-ten notice to the ContractingOfficer, whicheverperiod is longer. (c) TheContractorshall insert the substanceof this clause, including this paragraph(c), subcontracts under this contract that require workon a Government installation and shall require subcontractors to provide and maintain the insurance required in the Scheduleor elsewherein the contract. TheContractor shall maintain a copyof all subcontractors' proofs of required insurance, and shall makecopies available to the Contracting Officer uponrequest. 9. INSURANCE AMOUNTS With respect to Clause 52.228-5 above, the contractor shall acquire and maintain the following amountsof Insurance. (a) Workmans' compensationinsurance, or equivalent coverage, as required or prescribed law, with minimum employerliability limit orS100,000 accidental bodily injury' or death, or for for occupational disease. (b) Comprehensive general liability with minimum limits of $500,000per occurrence.

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Contract No. 1435-01-98-RC-30982 10. FAR52.219-70XX, SECTION 8(a) DIRECT AWARDS

(a) This contract is issued as a direct awardbetweenthe contracting activity and the 8(a) contractor pursuant to the Memorandum Understanding between the Small Business of Administration (SBA)and the Departmentof the Interior. SBA does retain responsibility for 8(a) certification, 8(a) eligibility determinationsand related issues, and providingcounseling assistance to the 8(a) contractor under the 8(a) program.Thecognizant SBA district office Charlotte, North Carofina. (b) T~econtracting activity is responsible for administering the contract and taking any action on behalf of the Government under the terms and conditions of the contract. However,the contracting activity shall give advancednotice to the SBA before it issues a final notice terminating performance, either in wholeor ha part, under the contrat:t. Thecont,:acting activity shall also coordinate with SBA prior to processing any novation agreement. The contracting activity mayassign contract administration functions to a contract administration office. (c) Thecontractor agrees: (l) to notify the ContractingOfficer, simultaneouswith its notification to SBA (as required by SBA's8(a) regulations), whenthe ownerof ownersupon whom 8(a) eligibility based, plan to relinquish ownershipor control of the concern. Consistent with 15 U.S.C. 637 (a) (21), transfer of ownership control shall result in termination of the contract for convenience, or unless SBA waives the requirementfor termination prior to the actual relinquishing of ownership and control. (2) it ,,viii adhere to the requirementsof 52.219-14,Limitations on Subcontracting. (End of clause)

1 1.

PREVAILING DEPARTMIENT OF LABOR WAGEDETERMINATION

This contract is issued pursuant to the Service Contract Act of 1965, as amended.A wage determination has been issued for this requirementand is contained under Section VI of this contract.

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Contract No. 1435-01-98-RC-30982 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIREDTO IMPLEMENT STATUTES OR EXECUTIVE ORDERS--COMMeRCIALITEMS (OCT 1998)

(a) The Contractor agrees to complywith the following FAR clauses, which are incorporated in this contract by reference, to implement provisions of law or executive orders applicable to acquisition of commercial items. (1) 52.222-3, Convict Labor (E.O. 11755); (2) 52.233-3, Protest After Award U.S,C, 3553). (31 (b) The Contractor agrees to complywith the FAR clause in this paragraph Co) which ContractingOfficer has indicated as being incorporatedin this contra'ct b~, 'referer~ce to implementprovisions of law or executive orders applicable to acquisitions of commercial items or components: I._NXl(I) 52.203-6, Restrictions on Subcontractor Sales to the Government, with Alternate I (41 U.S.C. 253g and 10 U.S.C. 2402) [Reserved] 52.219-8, Utilization of Small Business Concerns and Small Disadvantaged Business Concerns(15 U.S.C. 637(d)(2) and

I~1

(2)

I_NX[(3)

t ~_~XI4) 52.219-9, Small, Small Disadvantaged and Women-Owned ( Small Business Subcontracting Plan (15 U.S.C. 637(d)(4)) I__Xl (5) 52.219-14, Limitation on Subcontracting (15 U.S.C. 637(a)(14)) I _I (6)(I) 52.219-23, Notice of Price Evaluation Adjustmentfor Small Disadvantaged Business Concerns(Pub.L. 103-355, section 7102, and t0 U.S.C. 2323) (if offeror elects to waivethe adjustment,it shall so indicate in its offer). (ii) Alternate I of 52.219-23. 52.222-26, Equal Opportunity (E.O. 11246)

,_1

!_X_'[(7) I~X] (8)

52.222-35, Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (38 U.S.C. 4212) ": " - - .." " ...... " " ¯ .' . . .... :..".:'~...~.~.7.,:...7...' . (9) - 52:222-36, Affirma{ive Actmn for Workersw~ff~D~sabllmes U.S.C.' 793) (29

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--~2ontract No. 1435-01-98-R~2--J0982 Reports on Disabled Veterans and Veterans of the (10) 52.222-37, Employment Vietnam Era (38 U.S.C. 4212)

(1 I) 52.225-3, BuyAmericanAct-Supplies (41 U.S.C. (12) 52.225-9, Buy American Act-Trade Agreements Act-Balance of Payments Program (41 U.S.C. 10, 19 U.S.C. 2501-2582) (13) [Reserved]

I_[
[_1

(14) 52.225-18, EuropeanUnion Sanction for End Products (E.O. 12849) (15) 52.225-19, EuropeanUnion Sanction for Services (E.O. 12849) (16) (I) 52.225-21, Buy AmericanAct-North AmericanFree Trade Agreement Implementation Act-Balance of PaymentsProgram(41 U.S.C. 10, Pub.L. 103-187)

121 LI I_1

(ii) Alternate I of 52.225-21 (17) 52.239-I, Privacy or Security Safeguards (5 U.S.C. 552a) (18) 52.247-64, Preference for Privately O;,medU.S.-Flag Commercial Vessels (46 U.S.C. 1241)

(c) TheContractor agrees to comply v,'ith the FAR clauses in this paragraph(c), applicable to commercial services, whichthe Contracting Officer has indicated as being incorporated in tl-ds contract by reference to implement provisions of law or executive orders applicable to acquisitions of corrtmercial items or components: IX___I 52.222-41, Service Contract Act of 1965, as amended U.S.C. 351, et seq.) (I) (41 (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (29 U.S.C. 206 and 41 U.S.C. 351, et seq.) 52.222-43, Fair Labor Standards Act and Service Contract Act-Prlce Adjustment(Multiple Year and Option Contracts) (29 U.S.C. 206 and
.,....:.~.~... ". .... . " . . . ". , .;..

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Contract No. 1435-01-98-RC-30982

(4)

52.222-44, Fair Labor Standards Act and Service Contract Act-Price Adjustment(29 U.S.C. 206 and 41 U.S.C. 351, et seq.) 52.222-47, SCAMirtimumWagesand Fringe Benefits Applicable to Successor Coatract Pursuant to Predecessor Contractor Collective Bargaining Agreement(CBA)(41 U.S.C. 351, et seq.)

(5)

(d) Comptroller General Examinationof Record. The Contractor agrees to complywith the provisions of this paragraph(d) if this contract wasawarded using other than sealed bid, is excess of the simplified acquisition threshold, and does not contain the clause at 52.215-2, Audit and Negotiation. (1) TheCor~ptroller Generalof the UnitedStates, or an authorized representative of the ComptrollerGeneral, shall have access to and right to examineany of the Contractor's directly pertinent records involving transactions related to ~s contract. (2) Contractorshall make The available at its offices at all reasonabletimes the records, materials, and other evidencefor examination,audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR Subpart 4.7, Contractor RecordsRetention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the workterminated shall be madeavailable for 3 years after any resulting final termination settlement. Recordsrelating to appeals under the disputes clause or to litigation or to the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved. (3) As used in this clause, records include books, documents,accounting proceduresand practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of la~v. (e) Notwithstanding requirements the clauses in paragraphs(a), (b), (c), or the of this clause, the Contractoris not required to include any FAR clause, other than those listed below (and as maybe required by an addendato this paragraph to establish the reasonableness of prices under Part 15), in a subcontract for commercialitems or commercialcomponents-(I) 52.222-26, Equal Opportunity (E.O. 11246);

.... -....

(2) 52.222-35, Affirmative Action for Disabled Veterans and Veterans of the "" " " ' " :" ... .. - .................. . "~'ie,tnamEra ($.8.U.S.C. .4212); . ....... :< : .....:. ,.,....: .... :- .:..,,..-......,,..-...-. -. , . "~.":~/.ii~,+).:~ :. '5 :. . :" ( +"" (3) 52.222-36, Affirmative Action for Workerswith Disabilities (29 U.S.C. 793) V-3

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.... Contract No. 1435-0[-98-RC-30982

(4)

52.247-64, Preference for Privately Owned U.S.-Flag CommercialVessels (46 U.S.C. 1241) (flow downnot required for subcontracts awarded begirming May1, 1996). (End of clause)

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-(~bntract CONTRACT DOCUMENTS, EXHIBITS

No. 1435-01-98-RC-30982

AND ATTACFLViENTS

The following documents attached and madepart of t.Ns contract. are

1, Statement of Work 2. Department of Labor- WageDetermination