Naval Sea Systems Command Subcontract - Advanced Engineering & Research Associates Inc. and ANADAC Inc.
SUBCONTRACT NO. N00024-00-C-5136-01
CONTENTS
<TABLE>
<S> <C> <C>
Article I Scope of Work .............................................. 1
Article II Subcontract Type and Quantity .............................. 1
Article III Purchasing ................................................. 1
Article IV Period of Performance ...................................... 4
Article V Compensation, Payment, and Accounting ...................... 5
Article VI Payment of Fee ............................................. 7
Article VII Contract Data and Deliverable Requirements ................. 8
Article VIII Shipping and Delivery ...................................... 8
Article IX Inspection and Acceptance .................................. 9
Article X Personnel .................................................. 9
Article XI Security Requirements ...................................... 11
Article XII Proprietary Information; Organizational Conflict of
Interest; Year 2000 Compliance ............................. 11
Article XIII Notice of Delays; Action ................................... 13
Article XIV Disputes ................................................... 14
Article XV Liability .................................................. 15
Article XVI Changes .................................................... 16
Article XVII Scope of Agreement ......................................... 16
Article XVIII Assignment ................................................. 16
Article XIX Waiver ..................................................... 16
Article XX General and Special Provisions ............................. 16
Article XXI Second Tier Subcontractors ................................. 17
Article XXII Attachments ................................................ 17
Article XXIII Order of Precedence ........................................ 17
Article XXIV Points of Contact .......................................... 17
</TABLE>
<PAGE> 2
SUBCONTRACT NO.
NO. N00024-00-C-5136-01
THIS SUBCONTRACT is effective the 25th day of August, 2000, by and between
Advanced Engineering & Research Associates, Inc., a Virginia Corporation, with
its corporate office located at 6350 Walker Lane, Suite 100, Alexandria, VA
22310 (hereafter "AERA" or "Prime Contractor"),
and
ANADAC, Inc., a Virginia corporation, with its corporate office located at 2200
Clarendon Blvd., Suite 900 , Arlington, VA, 22201 (hereafter "Subcontractor").
WITNESSETH
WHEREAS, AERA desires Subcontractor to provide non-personal services as outlined
in Attachment A, Statement of Work (SOW) in support of the Naval Sea Systems
Command as may be required in the performance of Prime Contract No.
N00024-00-C-5136 (hereafter "Program"); and
WHEREAS, Subcontractor desires to undertake the performance of said services;
NOW, THEREFORE, in consideration of the promises and covenants set forth herein,
it is agreed between the parties as follows:
ARTICLE I SCOPE OF WORK
The Subcontractor shall furnish all personnel, equipment, facilities, and
services (except as otherwise specified herein) necessary to provide support of
the Program as set forth in Attachment A, "Statement of Work Subcontractor
agrees that the performance of work and services, pursuant to the requirements
of this Subcontract, shall conform to high professional standards.
ARTICLE II SUBCONTRACT TYPE AND QUANTITY
(a) Type. This Subcontract is a Cost Plus Fixed Fee (CPFF).
(b) Quantity. The Subcontractor shall provide up to the manhour quantities
for the estimated cost and fixed fee as shown in Attachment A.
Minimum Order. The minimum order under this Subcontract is $0.00.
(1) Maximum Order. The maximum order under this Subcontract is
limited by (1) FAR 52-219-14, Limitations on Subcontracting, and (2) available
contract ceiling.
(c) Available Ceiling. Notwithstanding the foregoing, ceiling will be
available to the Subcontractor only to the extent that prime contract ceiling is
available to AERA after accounting for previous work awarded, under negotiation,
or anticipated, or otherwise restricted by FAR 52-219-14, Limitations on
Subcontracting.
ARTICLE III PURCHASING
(a) General. All services to be performed shall be set forth in individual
Purchase Orders ("POs") on a CPFF basis unless otherwise agreed. Purchase Orders
shall be executed on an as-
Page 1
<PAGE> 3
needed basis throughout the term of this Subcontract. No effort is authorized
absent a duly executed PO. Work contemplated under each PO will be work desired
by the government that AERA deems appropriate for ANADAC to accomplish in
accordance with the agreements contained herein.
(b) Purchase Order Process.
(1) AERA issues Purchase Order. AERA will promptly issue a PO to the
Subcontractor reflecting the Subcontractor's proposal to AERA as accepted by the
government, and as otherwise necessary to fulfill the obligations set forth in
the Teaming Agreement between AERA and the Subcontractor dated February 29,
2000. In the event that AERA's Prime contract is not fully funded,
Subcontractor's PO will reflect only the level of funding available to AERA for
Subcontractor's effort on the date of issue of the PO. Each PO issued shall
identify:
(A) Subcontractor's total estimated level of effort by,
estimated cost and fixed fee by CLIN, SLIN, and ACRN;
(B) Statement of Work and CDRLs; and
(C) Period of performance.
POs shall be consistent with the general scope of work set forth in this
Subcontract and shall not change the terms, conditions, or specifications
incorporated into this Subcontract.
(2) Assigned Personnel. Subcontractor is responsible for ensuring
that the personnel assigned to the PO meet the experience and training
requirements of the Prime Contract labor categories, included in Attachment A
hereto.
(3) Authorization Required. Subcontractor shall perform no work, and
AERA will make no payment, for any work performed except as authorized by a PO
signed by both Parties. However, AERA shall recognize and pay for all work
performed by Subcontractor commencing on June 30, 2000 and prior to the
execution of this subcontract as authorized in AERA's letter dated July 5, 2000
as if a PO had been effective as of June 30, 2000. Subcontractor will conform
invoices for this period to the requirements contained herein.
(4) AERA modifies PO. From time to time, AERA may unilaterally
modify outstanding POs as follows:
(A) Authorize additional effort and period of performance to
reflect incremental funding provided by the Government;
(B) Change the technical scope of work and/or completion
date to reflect Prime contract modifications issued unilaterally by the
Government; or
(C) As otherwise provided by this Subcontract.
POs may otherwise be modified by mutual agreement of the parties. Changes that
have a cost impact will be submitted to Subcontractor in advance for a revised
cost proposal (as required) to serve as the basis for negotiating the change.
All POs issued hereunder are subject to the terms and conditions of this
Subcontract. In the event of any conflict between the terms of a PO and those of
this Subcontract, the Subcontract shall govern.
Page 2
<PAGE> 4
(5) Technical Instructions (April 1999) 5252.242-9115.
When necessary, technical instruction or clarification concerning the
details of specific tasks set forth in the contract shall be given through
issuance of Technical Instruction Letters (TILs) by the AERA Program Manager. As
used herein, technical instruction instructions are defined to include the
following:
(1) Instructions to the Contractor which suggest pursuit of certain
lines of inquiry, shift work emphasis, fill in details or otherwise serve to
accomplish the contractual statement of work.
(2) Guidelines to the Contractor which assist in the interpretation
of drawings, specifications or technical portions of work description.
(A) Each TIL shall be in writing and shall include, as a
minimum, the following information:
(i) Date of TIL:
(ii) Contract and TIL number;
(iii) Reference to the relevant section or item in the
statement of work;
(iv) Signature of the Program Manager.
(B) Technical instructions must be within the general scope
of work stated in the subcontract. Technical instructions may not be used to:
(1) assign additional work under the subcontract; (2) direct a change as defined
in the "CHANGES" clause of this subcontract; (3) increase or decrease the
subcontract price or estimated subcontract amount (including fee), as
applicable, the level of effort, or the time required for subcontract
performance; or (4) change any of the terms, conditions or specifications of the
subcontract.
(C) Each TIL issued hereunder is subject to the terms and
conditions of this Subcontract; and in no event shall technical Instructions
constitute an assignment of new work or changes to such nature as to justify any
adjustment to the fixed fee, estimated costs, or delivery terms under the
contract. In the event of a conflict between a TIL and this contract, the
contract shall control.
(D) When in the opinion of the Subcontractor a technical
instruction calls for effort outside the Subcontract statement of work, the
Subcontractor shall notify AERA thereof in writing, within two (2) working days
of having received the technical instruction in question. The Subcontractor
shall undertake no performance to comply with the technical instruction until
the matter has been resolved through formal Subcontract modification or other
appropriate action.
(E) Oral technical Instructions may be given by the AERA
Program Manager only in emergency circumstances, and provided that any oral
technical instruction given is reduced in writing by the AERA Program Manager
within two (2) working days of its issuance.
(F) Amendments to a TIL shall be in writing and shall
include the information set forth in paragraph (b) above. A TIL may be amended
orally only by the AERA Program Manager in emergencies; oral amendments shall be
confirmed in writing within two (2) working days from the time of the oral
communication amending the TIL by a TIL modification.
Page 3
<PAGE> 5
(G) Unless Subcontractor notifies AERA's Program Manager in
writing reasonably in advance and AERA's Program Manager agrees in writing
within a reasonable period of time, any effort undertaken by the Subcontractor
pursuant to oral or written technical instructions issued other than in
accordance with the provisions herein (including oral or written instruction
provided directly by the Government) shall be at the Subcontractor's risk of not
recovering related costs incurred and corresponding proportionate amount of
fixed fee, if any.
(6) Government Interface.
(A) Subcontractor personnel may interface directly with the
Government Technical Point of Contact ("TPOC") and other personnel in the TPOC's
organization in the course of performance of POs under this Subcontract. Such
interface is encouraged to permit free exchange of technical ideas and data to
facilitate efficient and effective Prime Contract performance.
(B) However, Subcontractor is not authorized to accept
Government instruction on behalf of AERA. Subcontractor is not authorized to
make offers, commitments, or otherwise negotiate with the Government on AERA's
behalf or its own behalf in its capacity as a subcontractor to AERA. In case of
occurrence of any such events, Subcontractor shall (i) suggest to the Government
representative that the AERA Program Manager be involved in all such
discussions, and (ii) immediately report to AERA any attempt by Government
personnel to provide such instruction or conduct such negotiations.
(C) Subcontractor's monthly contract management reports
shall list all data exchanged and shall summarize all significant technical
discussion with Government personnel during the reporting period.
(D) Under no circumstances shall the Subcontractor initiate
contact with AERA's Procuring Contracting Officer ("PCO"), Administrative
Contracting Office ("ACO"), Contracting Officer's Representative ("COR"), or
their respective support staff, with respect to any matters pertaining to this
Subcontract or the Prime Contract, without the advance consent of AERA's Program
Manager or Director of Contracts.
ARTICLE IV PERIOD OF PERFORMANCE
Unless terminated or discontinued in accordance with other requirements herein,
the period of performance for the Subcontract shall be from the effective date
of the Subcontract through the end date of the Prime Contract, including all
options exercised by the Government, as shown below. However, should the Prime
Contract period of performance be extended by the Government, the period of
performance of this Subcontract shall also be extended accordingly.
<TABLE>
<CAPTION>
SUBCONTRACT LINE ITEM (SCLIN) PERIOD OF PERFORMANCE
----------------------------- ---------------------
<S> <C>
0001 and 0003 June 30, 2000 to June 29, 2001
0005, 0006 (if exercised by the Government) Date of option exercise through twelve (12)
months thereafter
0007, 0008 (if exercised by the Government) Date of option exercise through twelve (12)
months thereafter
0009, 0010 (if exercised by the Government) Date of option exercise through twelve (12)
months thereafter
</TABLE>
Page 4
<PAGE> 6
<TABLE>
<CAPTION>
SUBCONTRACT LINE ITEM (SCLIN) PERIOD OF PERFORMANCE
----------------------------- ---------------------
<S> <C>
0011, 0012 (if exercised by the Government) Date of option exercise through twelve (12)
months thereafter
</TABLE>
AERA agrees to exercise the Subcontract option periods effective upon the
Government's exercise of the Prime Contract option periods.
ARTICLE V COMPENSATION, PAYMENT, AND ACCOUNTING
(a) General. Reimbursement for labor and other costs incurred in the
performance of this Subcontract shall be made on a PO basis and shall in no
event exceed the not-to-exceed amounts specified for each PO without a fully
executed modification to the PO. Subcontractor shall assure that each and every
individual assigned to work under each PO meets the labor category descriptions
contained in Attachment A hereto.
(b) ODCs.
(1) In the event that Travel or Other Direct Costs (ODCs) are
required in the performance of work, the amount shall be specified in applicable
POs and payment of ODCs shall be made on the reasonable allowable and allocable
actual costs incurred, inclusive, if applicable, of DCAA approved indirect
rates. In addition, payment of allowable ODCs is subject to FAR Clauses
52.232-20, Limitation of Costs, and/or 52.232-22, Limitation of Funds, as
applicable; 52.216-7, Allowable Costs and Payment; FAR 31.2, Contract Cost
Principles and Procedure for Commercial Organizations; and the limitations
delineated in Attachment A. In no event shall Subcontractor be reimbursed for
amounts that exceed the ceiling amounts specified in the PO.
(2) Reimbursable travel costs include only that travel performed
from the Contractor's facility to the worksite, in and around the worksite, and
from the worksite to the Contractor's facility. The Contractor shall not be
reimbursed for:
(i) relocation costs and travel costs incident to relocation as defined in
FAR 31-205-35; and/or
(ii) the following daily local travel costs:
- travel at U. S. Military Installations where Government
transportation is available,
- travel performed for personal convenience/errands, including
commuting to and from work, and
- travel costs incurred in the replacement of personnel when such
replacement is accomplished for the Contractor's or employee's
convenience.
(3) The Subcontractor shall, to the extent of its ability, acquire
materials and services at the most advantageous prices available with due regard
to securing timely delivery of satisfactory materials and take all cash and
trade discounts, rebates, allowances, credits, salvage commissions, and
bonification offered to Subcontractor by vendors in pursuit of said materials
and services. Travel and per diem costs will be reimbursed based on actual
costs, not to exceed the lodging and per diem rates specified in the Joint
Travel Regulations in effect at the time travel is actually performed.
Page 5
<PAGE> 7
(c) Availability and Limitation of Funds. It is expressly understood by the
Subcontractor that this Article is subject to the Government's availability of
funds for this project, the Government's requirement for the Subcontract portion
of work, and the amount of funds obligated to the Prime Contract for performance
of work detailed in Attachment A, "Statement of Work," to this Subcontract.
(d) Invoicing.
(1) Invoices (original plus four (4) copies) shall be submitted
individually for each PO, no more frequently than once monthly. Each invoice
shall include a completed SF-1034 as a cover page. Invoices shall be submitted
to AERA's Program Manager, and shall contain at minimum the following
information:
(A) Invoice date and period covered by the invoice;
(B) Sequential invoice number;
(C) Name of Subcontractor;
(D) Prime Contract number;
(E) Subcontractor PO number;
(F) Total PO value, dollars and hours, including all
modifications;
(G) Name and address to which payment is to be sent (which
must be the same as that in the Subcontract or on a proper notice of
assignment);
(H) Name (where practicable), title, phone number and
mailing address of person to be notified in event of defective invoice;
Vessel (e.g., ship, submarine or other craft) or system which
supply/service is provided;
(I) Any other information or documentation required by other
provisions of this Subcontract or the PO;
(J) Incurred cost data:
(i) Current and cumulative manhours-to-date, by;
(ii) Current and cumulative costs-to-date, including
burdened costs by CLIN, SLIM, ACRN, and cost element (including labor,
materials, travel, etc.); and
(iii) Accrued Fixed Fee and fee withholding
computation in accordance with Article VI below.
(2) There shall be a lapse of no more than thirty (30) calendar days
between the end of the performance period and submission of an invoice, except
in the case of final invoices. In the event the Subcontractor fails to tender an
invoice within thirty (30) calendar days, AERA may request an estimate from the
Subcontractor for purposes of invoicing the Government. In no event, however,
shall the Subcontractor receive payment until it renders a proper invoice.
Invoices submitted more than forty-five (45) calendar days after completion of
the applicable performance period may be subject to an administrative handling
charge. Such administrative
Page 6
<PAGE> 8
charge shall be in addition to, and not in lieu of, any other remedies AERA may
have under this Subcontract for late invoice submission
(3) A certificate of performance and DD-250 are NOT required.
(4) The final invoice for each PO will be designated as such, and
shall list all other invoices.
(e) Payment. AERA shall include Subcontractor's PROPERLY PREPARED and
submitted invoices in AERA's next regularly scheduled invoice to the Government.
Subcontractor invoices must be received by the AERA Accounting Department by the
5th of each month to be included in AERA's regularly scheduled invoice on the
15th of that month to the government. Any incomplete or improperly prepared
invoices will be rejected and not included in that month's billing cycle. Within
fifteen (15) days of receipt of payment from the Government, AERA shall make
payment to the Subcontractor, provided that the payment includes Subcontractor's
invoice. However, in no event shall payment to the Subcontractor exceed 90 days
from the date of Subcontractor's properly tendered invoice. Payment shall be
considered made on the date which a check for such payment is mailed.
(f) Final Financial Report. Within twenty days after completion of the work
under each PO, the Subcontractor shall submit the following information
directly, in writing, to the AERA Contracts administrator, with a copy to the
AERA Program Manager:
(1) The total number of man-hours of direct labor, including
subcontract labor, expended and a breakdown of this total showing the number of
man-hours expended in each direct labor classification, including the
identification of the key employees utilized;
(2) The Contractor's estimate of the total allowable cost incurred
under the PO; and
(3) In the case of a cost underrun, the amount by which the
estimated cost of the Purchase Order may be reduced to recover excess funds.
(g) Expediting Contract Closeout. As part of the negotiated fixed price or
total estimated amount of this contract, both AERA and the Subcontractor have
agreed to waive any entitlement that otherwise might accrue to either party in
any residual dollar amount of $500 or less at the time of final contract
closeout. The term "residual dollar amount" shall include all money that would
otherwise be owed to either party at the end of the contract, except that,
amounts connected in any way with taxation, allegations of fraud and/or
antitrust violations shall be excluded. For purposes of determining residual
dollar amounts, offsets of money owed by one party against money that would
otherwise be paid by that party may be considered to the extent permitted by
law. This agreement to waive entitlement to residual dollar amounts has been
considered by both parties. It is agreed that the administrative costs for
either party associated with collecting such small dollar amounts could exceed
the amount to be recovered.
ARTICLE VI PAYMENT OF FEE
(a) Allocating Fixed Fee. For each PO issued to Subcontractor, Fixed Fee
shall be allocated at seven (7) percent of Subcontractor's total estimated cost
for the PO.
Page 7
<PAGE> 9
(b) Invoicing Fee. Fixed Fee may be invoiced at seven (7) percent of total
cost shown in each invoice. After payment of 85 percent of the fixed fee, AERA
may withhold further payment of fee not to exceed 15 percent of the total fixed
fee or $100,000 whichever is less.
(c) Incrementally Funded Orders In the event of discontinuance of the work
in accordance with the FAR 52.232.22, Limitation of Funds, the fixed fee shall
be redetermined by mutual agreement equitably to reflect the reduction of the
work performed. The amount by which such fixed fee is less than or exceeds
payments previously made on account of fee, shall be paid to (or repaid by) the
Subcontractor.
(d) Disposition of Withheld Fee. Fee withheld pursuant to paragraph (b)
above and pursuant to 52.216-8, Fixed Fee, incorporated herein by reference,
will be paid to Subcontractor as follows:
(1) Fee withheld pursuant to paragraph (b) above shall be paid to
Subcontractor when the Subcontractor affirmatively certifies that it has met the
level of effort requirements of the PO. If the Subcontractor has not met its
level of effort requirement, the fee withheld pursuant to paragraph (b) above
shall be paid only if and when the Government affirmatively elects not to
equitably reduce AERA's Fixed Fee pursuant to Prime Contract Clause
5252.216-9122, LEVEL OF EFFORT (JULY 1986). Otherwise, fee withheld shall be
retained by AERA to liquidate AERA's obligation to the Government.
(2) Fee withheld pursuant to FAR 52.216-8, Fixed Fee, will be paid
to Subcontractor within ten (10) calendar days of the date when the Government
pays AERA its Fixed Fee withheld under the Prime Contract -pursuant to pursuant
to FAR 52.216-8.
ARTICLE VII CONTRACT DATA AND DELIVERABLE REQUIREMENTS
(a) Contract management reports (progress reports) as described in POs shall
be submitted to AERA's Program Manager or designee no later than the fifth of
the month following the reporting period.
(b) The Subcontractor shall submit other deliverables specified in to AERA's
Program Manager at least five (5) calendar days in advance of the due date to
the Government, or as otherwise directed by POs. In general, all deliverables
shall be submitted to the AERA Program Manager or his designee for transmittal
to the Government or incorporation into AERA deliverables, as appropriate.
Individual POs may authorize direct transmittal to the Government.
ARTICLE VIII SHIPPING AND DELIVERY
(a) Packaging. Preservation, packing, and packaging for shipment of all
items delivered/shipped hereunder shall be in accordance with best commercial
practices and adequate to ensure acceptance by common carrier and safe
transportation and delivery. Time is of the essence in this Subcontract.
(b) Classified reports, data, and documentation shall be prepared for
shipment in accordance with National Industrial Security Program Operating
Manual (NISPOM), DOD 5220.22-M dated January 1995.
Page 8
<PAGE> 10
(c) Marking. All reports and data delivered by the Subcontractor under this
Subcontract shall be delivered to an address designated by the AERA Program
manager. However, all reports and data delivered by the Subcontractor under this
Subcontract shall prominently show on the cover of the report or data:
(1) Name and business address of AERA:
Advanced Engineering & Research Associates, Inc.
6350 Walker Lane, Suite 100
Alexandria, VA 22310
(2) AERA Prime Contract Number
(3) Subcontract number
(4) Subcontractor name and address
(5) The statement, "This Contract was competitively awarded."
(6) Name, activity, office, and location of the Government sponsor.
(d) ADDITIONAL MARKING REQUIREMENTS FOR FMS ITEMS (NAVSEA) (SEP 1992); The
following identifying marks shall appear on the outside of each box, parcel
and/or crate and all shipping papers included in each shipment:
______ NAVY
FMS CASE ______
REQUISITION NO
ITEM DESCRIPTION
- If a consolidated shipment of several items in one container is forwarded,
add to the above information "CONSOLIDATED SHIPMENT, CONTAINS _________
ITEMS".
- The inscription "UNITED STATES OF AMERICA" shall be affixed in a suitable
size indelible stencil, label or printed form on all external shipping
containers or the exterior surface of uncrated items.
- All invoices, correspondence, reports and other documents shall be
identified with the appropriate FMS case designator, requisition
number(s), and item description(s).
(e) F.O.B. Point. Materials furnished pursuant to this Subcontract shall be
shipped F.O.B. destination with all shipping and transportation costs prepaid.
ARTICLE IX INSPECTION AND ACCEPTANCE
The AERA Program Manager will inspect all items and accept all work and effort
to be provided and delivered under this Subcontract.
ARTICLE X PERSONNEL
(a) Addition or Substitution of Personnel (Services) (Mar 1999)
5252.237-9501 (Modified).
Page 9
<PAGE> 11
(1) A requirement of this Subcontract is to maintain stability of
personnel proposed in order to provide quality services. The Subcontractor
agrees to assign only those key personnel whose resumes were submitted and
approved, and who are necessary to fulfill the requirements of the effort. The
Subcontractor agrees to assign to any effort requiring non-key personnel only
personnel who meet or exceed the applicable labor category descriptions. No
substitution or addition of key personnel shall be made except in accordance
with this clause.
(2) If key personnel for whatever reason become unavailable for work
under the Subcontract, or are expected to devote substantially less effort to
the work than indicated in the proposal, the Subcontractor shall propose a
substitution to such key personnel, in accordance with paragraph (4) below.
(3) The Subcontractor agrees that during the term of the contract no
key personnel substitutions or additions will be made unless necessitated by
compelling reasons including, but not limited to, an individual's illness,
death, termination of employment, declining an offer of employment (for those
individuals proposed as contingent hires), or maternity leave. In such an event,
the Subcontractor must promptly provide the information required by paragraph
(4) below to AERA for approval prior to the substitution or addition of key
personnel.
(4) All proposed key personnel substitutions shall be submitted, in
writing, to AERA immediately upon Subcontractor's knowledge of the need for a
proposed substitution. Whenever reasonably possible, proposed substitutions
shall be submitted at least sixty (60) days (one hundred twenty (120) days if a
security clearance must be obtained) prior to the proposed substitution. Each
request shall provide a detailed explanation of the circumstances necessitating
the proposed substitution, a complete resume for the proposed substitute,
information regarding the full financial impact of the change, and any other
information requested by AERA as required by the Government Contracting Officer
to approve or disapprove the proposed substitution. All proposed substitutes (no
matter when they are proposed during the performance period) shall have
qualifications that are equal to or higher than the qualifications of the person
being replaced.
(5) AERA shall evaluate requests for substitution and addition of
key personnel, forward such requests to the Government Contracting Officer, and
promptly notify the Subcontractor, in writing, of whether the request is
approved or disapproved once it has been notified by the government.
(6) If AERA determines that suitable and timely replacement of
personnel who have been reassigned, terminated or have otherwise become
unavailable to perform under the contract is not reasonably forthcoming within
thirty (30) days, or that the resultant reduction of productive effort would
impair the successful completion of the prime contract, AERA may, at its
discretion, replace the personnel with its own personnel and unilaterally reduce
the Subcontractor's PO level of effort, estimated cost, fixed fee, and technical
scope accordingly.
(7) Noncompliance with the provisions of this clause will be
considered a material breach of the terms and conditions of this Subcontract for
which AERA may seek any and all appropriate remedies including Termination for
Default pursuant to FAR Clause 52.249-6, Alt IV, "Termination
(Cost-Reimbursement)."
Page 10
<PAGE> 12
(b) Removal. AERA reserves the right to require that the Subcontractor
remove from this program any person, whether key or not, whose performance, in
the opinion of AERA Program Manager, jeopardizes performance of the Prime
Contract. Should such a determination be made, the Subcontractor shall be
notified in writing and be given a reasonable opportunity to replace the person
removed. In the case of removal of a Key Personnel, the Subcontractor shall be
required to propose a qualified replacement within twenty-five (25) days in
accordance with paragraph (a)(4) of this Article. If such request is made,
Subcontractor will remove said person or people from the Program within the time
limit set forth in said request.
(c) Solicitation of Employees. Because the success and performance of this
Agreement and any resultant Contract and Subcontract depends on the continuity
of work forces of the Parties, and the loss of employees from either of the
Parties may detrimentally effect the performance of the Prime Contract or
Subcontract, the Parties agree that:
(1) During the term of this Subcontract, neither Party shall,
directly or indirectly, solicit for employment any of the employees of the other
who are substantially involved in the performance of the Prime Contract or
Subcontract.
(2) Notwithstanding paragraph (1) above, the Parties shall be
allowed to engage in normal advertising for personnel in newspapers and other
standard commercial publications.
(3) This provision shall survive the termination of this Subcontract
for a period of one (1) year.
ARTICLE XI SECURITY REQUIREMENTS
(a) Performance under this Subcontract may involve access to classified
material, work in a security area, or both. If required, AERA will provide a
Subcontract Security Classification Specification, DD Form 254, by subcontract
modification, which will define the basis for access and control of all
classified information, be provided if required.
(b) The Subcontractor shall conduct an industrial security program in
accordance with DoD Industrial Security Manual for Safeguarding Classified
Information.
(c) AERA shall assist Subcontractor to obtain personnel building passes to
the Naval Sea Systems Command Headquarters buildings in Arlington, Virginia.
ARTICLE XII PROPRIETARY INFORMATION; ORGANIZATIONAL CONFLICT OF INTEREST;
YEAR 2000 COMPLIANCE
(a) Proprietary Data. The Parties contemplate exchanging Proprietary Data to
fulfill their obligations under this Subcontract. All such data shall be
exchanged and handled pursuant to Attachment D hereto.
(b) Organizational Conflicts of Interest (Services) (July 1998)
5252.209-9510 (Modified)
(1) purpose. The primary purpose of this clause is to ensure that
the Subcontractor (1) does not obtain an unfair competitive advantage over other
parties by virtue of its performance of this subcontract, and (2) is not biased
because of its current or planned interests (financial, contractual,
organizational or otherwise) which relate to the work under this subcontract.
Page 11
<PAGE> 13
(2) Scope. The restrictions described herein shall apply to
performance or participation by the Subcontractor and any of its affiliate
organizations or their successors in interest (hereinafter referred to
collectively as the "Subcontractor") in the activities covered by this clause as
a prime contractor, subcontractor, co-sponsor, joint venturer, consultant, or in
any similar capacity.
(A) The financial, contractual, organizational and other
interests of Subcontractor personnel performing work under this subcontract
shall be deemed to be the interests of the Subcontractor for the purposes of
determining the existence of an Organizational Conflict of Interest. Any
subcontractor which performs any work relative to this subcontract shall be
subject to this clause. The Subcontractor agrees to place in each subcontract
affected by these provisions the necessary language contained in this clause.
(B). OF PRIMARY CONCERN ARE THOSE CONTRACTUAL ARRANGEMENTS IN
WHICH THE OFFEROR PROVIDES SUPPORT TO PROGRAM EXECUTIVE OFFICE THEATER SURFACE
COMBATANTS, OR RELATED LABORATORIES (IF APPLICABLE), IN SUPPORT OF OPERATION OF
THE OFFICE OR ANY OF ITS PROGRAMS. GENERAL GUIDANCE MAY BE FOUND IN FAR 9.505
(3) Remedies. In the event the Subcontractor fails to comply with
the provisions of this clause, such noncompliance shall be deemed a material
breach of the provisions of this subcontract. If such noncompliance is the
result of conflicting financial interest involving Subcontractor personnel
performing work under this subcontract, AERA may require the Subcontractor to
remove such personnel from performance of work under this subcontract. Further,
AERA may elect to exercise its right to terminate for default in the event of
such noncompliance. Nothing herein shall prevent AERA from electing any other
appropriate remedies afforded by other provisions of this subcontract, by
applicable statutes or by applicable regulations.
(4) Warranty Against Existing Conflict of Interest. The
Subcontractor warrants that it does not have any contracts or subcontracts which
create an Organizational Conflicts of Interest in relation to its performance of
this effort. During the term of this the Subcontractor agrees to disclose to
AERA and the Government information concerning any contract or subcontract that
may create or appear to create an Organizational Conflict of interest between
the Subcontractor and its affiliates and any other party relative to this
effort. Such information must include:
(A) the name, address, phone and fax of the other party;
(B) A copy of the relevant work authorization creating the
Conflict of Interest
(C) a description of the work to be performed under the
contract or subcontract with the other party;
(D) the dollar amount of the contract or interest;
(E) the period of performance.
(F) any additional information the Contracting Officer
should consider in making a determination of whether a conflict of interest
exists.
The Government and/or prime contractor may independently verify the information
received from the offeror. Notwithstanding the above, the Government and/or
Prime Contractor reserves the right to determine whether a conflict of interest
exists based on any information received from any source
Page 12
<PAGE> 14
(c) YEAR 2000 COMPLIANCE REQUIREMENT -- INFORMATION TECHNOLOGY (FEB 1999)
(1) All information technology (IT), whether commercial or
noncommercial, delivered under this subcontract that will be required to perform
date/time processing involving dates subsequent to December 31, 1999, shall be
Year 2000 compliant if properly installed, operated, and maintained in
accordance with the prime contract specifications and applicable documentation.
If the prime contract requires that specific deliverables operate together as a
system, this requirement shall apply to those deliverables as a system.
(2) "Information Technology" or "IT," as used in this requirement,
means "information technology" as that term is defined at FAR 2.101, and further
including those items that would otherwise be excluded by paragraph (c) of that
definition. "Year 2000 compliant" (as defined at FAR 39.002) means that the IT
accurately processes date/time data (including), but not limited to,
calculating, comparing, and sequencing) from, into, and between the twentieth
and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations, to the extent that other IT, used in combination with the IT being
delivered, properly exchanges date/time data with it. The "proper exchange" of
date/time data shall be in accordance with the interface requirements
specification(s) of the prime contract.
(3) For line item deliverables which are commercial items (as
defined at FAR 2.101), and which include commercial IT, the terms and conditions
of the standard commercial warranty covering such commercial IT shall apply in
addition to, and to the extent such terms and conditions are consistent with,
this requirement. Any applicable commercial warranty shall be incorporated into
this subcontract by attachment.
(4) Notwithstanding any provision to the contrary in any other
warranty of this subcontract, or in the absence of any such warranty(ies), the
remedies available to the Prime Contractor and the Government under this
requirement shall include those provided in the Inspection clause(s) of this
subcontract. Nothing in this requirement shall be construed to limit any rights
or remedies the Prime contractor or Government may otherwise have under this
subcontract.
(5) Unless specified elsewhere in the subcontract, the Subcontractor
will also deliver to the Prime Contractor a report summarizing any Year 2000
compliance testing that was performed and the results thereof.
(6) The remedies available to the Prime Contractor and the
Government for noncompliance with this requirement shall remain available until
31 January 2001, or one hundred eighty (180) days after acceptance of the last
deliverable IT item by the Government under this subcontract (including any
option exercised hereunder), whichever is later.
ARTICLE XIII NOTICE OF DELAYS; ACTION
(a) Notice. In the event the Subcontractor encounters difficulty in meeting
performance requirements, or when it anticipates difficulty in complying with
the Subcontract or PO delivery schedule or date, or whenever the Subcontractor
has knowledge that any actual or potential situation is delaying or threatens to
delay the timely performance of this Subcontract, the Subcontractor shall
immediately notify the AERA Program Manager, in writing, giving pertinent
details. However, this Notice shall be informational only in character and this
provision shall not
Page 13
<PAGE> 15
be construed as a waiver by AERA of any delivery schedule or data, or any rights
or remedies under this Subcontract.
(b) Action. In the event of a delay as described above and after AERA has
provided Subcontractor a reasonable opportunity to remedy said delay, AERA may
unilaterally modify the Subcontractor's PO to reduce the technical scope and/or
Level of Effort, and/or modify the schedule to permit AERA to remedy the delay.
ARTICLE XIV DISPUTES
(a) Disputes Involving the Prime Contract and/or the Government
(1) In the event of (i) a claim by the Subcontractor against the
Government, (ii) a claim by the Government against the Subcontractor, (iii) a
claim by the Government against AERA, (iv) a claim by AERA against the
Government, or (v) an appealable finding of fact or law or judgment by the
Government or a Court, to the extent that such claim, finding, or judgment
arises from or is related to the Prime Contract and materially affects the
Subcontractor's interests, AERA will promptly notify the Subcontractor and, at
its option, as permitted by the terms of the Prime Contract, follow one of the
following procedures.
(A) AERA will prosecute, defend, or appeal on behalf of the
Subcontractor to the extent of the Subcontractor's interests. The Subcontractor
will assist AERA in every reasonable manner, including but not limited to
furnishing all documents, statements, witnesses as may be in its employ, and
other pertinent information, as required by AERA. Wherever possible, AERA will
in good faith consult with respect to, and allow the Subcontractor reasonable
opportunity to participate in, such prosecution, defense, or appeal.
(B) AERA will authorize the Subcontractor to prosecute,
defend, or appeal in AERA's name, to the extent of the Subcontractor's interest.
(2) Effect of Decisions.
(A) All preliminary and final decisions and judgments issued
by the Government or a Court pursuant to claims or appeals within the scope of
paragraph A.1 of this Article shall be binding upon the Subcontractor to the
extent binding on AERA, whether or not Subcontractor was a party to the
prosecution, defense, or appeal.
(B) If, as the result of any decision or judgment which is
binding upon AERA and the Subcontractor, AERA is unable to obtain reimbursement
from the Government under the Prime Contract for, or is required to refund or
credit to the Government any amount with respect to any item of cost or fee for
which AERA has reimbursed the Subcontractor, the Subcontractor shall, on demand,
promptly repay such amount to AERA.
(b) Other Disputes. Any dispute which is not within the scope of paragraph
(a)(1) of this Article and which is not disposed of by agreement between AERA
and the Subcontractor is reserved to each parties' legal remedies.
Page 14
<PAGE> 16
(c) Choice of Law and Jurisdiction. The parties agree (1) that this
subcontract and any claim or controversy arising out of or related to this
subcontract will be governed by the laws of the Commonwealth of Virginia or
Federal law, as applicable; (2) to submit to personal jurisdiction in the
Commonwealth of Virginia for resolution of any such controversy or claim; and
(3) to bring any legal action arising therefrom in a court of competent
jurisdiction in the Commonwealth of Virginia.
(d) Costs.
(1) For any prosecution, defense, or appeal by AERA pursuant to
paragraph (a)(1)(A) of this Article undertaken solely at the Subcontractor's
request or due solely to the Subcontractor's acts or omissions, and any
prosecution, defense, or appeal pursuant to paragraph (a)(1)(B) of this Article,
Subcontractor shall bear its own costs and attorney's fees and shall pay AERA
for all reasonable costs and attorney's fees accrued in connection therewith.
(2) For any other prosecution, defense, or appeal under paragraph
(a)(1)(A) of this Article, AERA and the Subcontractor shall share costs as
mutually agreed at the outset of the proceeding. Generally, AERA and the
Subcontractor shall bear their own costs to the extent that their own interests
may be affected.
(3) In the event of any litigation between AERA and the
Subcontractor to resolve any controversy or claim arising out of or related to
this subcontract, pursuant to paragraph B of this Article, the parties agree
that the losing party in such litigation will bear all reasonable attorney's
fees and costs for both parties.
(e) Pending resolution of any dispute, the Subcontractor shall proceed as
reasonably directed by AERA in writing.
(f) The rights and obligations provided in this Article shall survive
completion of, and final payment under, this Subcontract.
ARTICLE XV LIABILITY
Notwithstanding any other provision of this Subcontract, the
Subcontractor accepts, with respect to its work, the same obligation,
liabilities, and responsibilities that AERA accepts under the Prime Contract. In
the event that provisions from the Prime Contract were inadvertently omitted
from the Subcontract; the Government unilaterally updates, modifies, or adds
provisions to the Prime Contract; and/or the Government unilaterally imposes
mandatory provisions on AERA that require flow down to Subcontractors, such
provisions shall be added unilaterally to the Subcontract by modification. If
the Subcontractor declines to accept any such provision, AERA may terminate the
Subcontract.
The Parties agree to defend, indemnify, and hold each other harmless
from any and all claims, injuries, damages, or other liability arising under
statute, in tort, or breach of contract and resulting directly or indirectly
from any intentional or negligent (including grossly negligent) acts or failure
to act by the indemnifying party's principals, officers, agents, or employees,
arising in favor of any person or entity.
Subcontractor shall be liable to AERA for all costs not reimbursed by
the Government which AERA incurs as a result of the Subcontractor's failure to
perform satisfactorily its portion of work in accordance with the Subcontract
terms. Subcontractor liability shall include but not be limited
Page 15
<PAGE> 17
to increased costs resulting from the Subcontractor-caused delays or improper
Subcontractor-related costs.
AERA shall have the right to terminate this Subcontract and Purchase
Orders hereunder for default, in whole or in part, on the same terms as set
forth in General Provisions clauses, FAR Subpart 52.249-6 Termination -(Cost
Reimbursement). Prior to termination of this Subcontract for default, AERA shall
notify the Subcontractor in writing of the basis for its intention to terminate
and provide the Subcontractor with a reasonable opportunity to remedy the
deficiencies. In the event AERA terminates this Subcontract for default in
accordance with the paragraphs above, AERA reserves the right to complete any
portion, in whole or in part, of the Subcontractor's effort and invoice the
Government for such efforts.
Notwithstanding any other provisions of this Subcontract, AERA may not terminate
this Subcontract for its own convenience, in whole or in part, unless the Prime
Contract shall first have been correspondingly terminated for convenience by the
Government, in whole or in part.
ARTICLE XVI CHANGES
Any changes to the expressed terms, conditions, or specifications of this
Subcontract shall be ineffective unless and until reduced to writing and signed
by both parties, unless otherwise specifically provided for herein. The failure
of either Party to enforce this Article shall not be construed as a waiver of
this Article.
ARTICLE XVII SCOPE OF AGREEMENT
This Subcontract constitutes the entire agreement between AERA and the
Subcontractor and rescinds all communications, oral or written, including any
prior Subcontracting agreements to the extent applicable to this Subcontract,
between AERA and the Subcontractor in relation to the subject matter of this
Subcontract. No other agreement or understanding exists between AERA and the
Subcontractor except as set forth in this Subcontract. These terms and
conditions shall prevail notwithstanding any additional or different terms and
conditions of any order accepted by the Subcontractor with respect to the
services to be provided hereunder.
ARTICLE XVIII ASSIGNMENT
This Subcontract may not be assigned or delegated, in whole or part, by either
Party without the prior written consent of the other Party, which consent shall
not be unreasonably withheld. Absent such consent, any assignment shall be void.
This Subcontract shall inure to the benefit of, and shall be binding upon, the
Parties' successors and assigns.
ARTICLE XIX WAIVER
The failure of either Party at any time to enforce or require performance of any
of the provisions of this Agreement shall not be construed as a waiver of such
provision, shall not affect the validity of this Agreement or any of its
Provisions, and shall not affect the right of either Party thereafter to enforce
each and every provision.
ARTICLE XX GENERAL AND SPECIAL PROVISIONS
This Subcontract incorporates by reference the Federal Acquisition Regulation
(FAR), Defense Federal Acquisition Regulation Supplement (DFARS), and other
Prime Contract provisions listed in Attachment E, "General Provisions." The
General Provisions are hereby incorporated by
Page 16
<PAGE> 18
reference with the same force and effect as if set forth in full text. Special
Provisions are included in Attachment F hereto.
ARTICLE XXI SECOND TIER SUBCONTRACTORS
Second tier Subcontractors are prohibited unless authorized by AERA in writing.
Unless approved in advance, costs incurred for unauthorized second tier
Subcontractors are unallowable under this Subcontract. Consultants are allowable
and are not subject to this Article.
ARTICLE XXII ATTACHMENTS
Attachment A Statement of Work
Attachment B Reserved
Attachment C DD Form 254
Attachment D Proprietary Data
Attachment E General Provisions
Attachment F Special Provisions
ARTICLE XXIII ORDER OF PRECEDENCE
Any conflict within this Subcontract or between or among this Subcontract, its
Attachments, and the Prime Contract shall be resolved by giving precedence as
follows:
(a) Attachment F, Special Provisions
(b) Subcontract Articles I through XXIII
(c) Attachment E, General Provisions
(d) Other Attachments
Article XXIV POINTS OF CONTACT
Except as specifically stated elsewhere in this Subcontract, all communication
under this Subcontract shall not be considered received by AERA unless in
writing and addressed to AERA's Director of Contracts.
<TABLE>
<CAPTION>
AERA Subcontractor
---- -------------
<S> <C>
Program Manager: Program Manager:
James Fenner David Cabrinha
AERA, Inc.
TBD
TBD (703) 741-7234
PH: TBD, FAX TBD
</TABLE>
Page 17
<PAGE> 19
<TABLE>
<CAPTION>
Contracts: Contracts:
<S> <C>
Director of Contracts or
Diana Filling, Contracts Administrator Chris Wolf
AERA, Inc. Anadac, Inc.
6350 Walker Lane, Suite 100 2345 Crystal Drive, Suite 708
Alexandria, VA 22310 Arlington, VA 22201
(703) 922-4760 FAX (703) 922-0831 703-741-7075 FAX 703-413-4823
--------------------------------------------------------------------------------
Controller: Invoicing/Payment:
Kenny Pedro David Mai
AERA, Inc.
6350 Walker Lane, Suite 100 (703) 741-7046
Alexandria, VA 22310
(703) 922-4765 FAX (703) 922-0831
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized officers as of the date first written above.
ADVANCED ENGINEERING & RESEARCH ANADAC, INC.
ASSOCIATES, INC.
BY: /s/ JOSEPH A. STEELE BY: /s/ CHRISTOPHER WOLF
------------------------------ ------------------------------
Christopher Wolf
Name: Joseph A. Steele
---------------------------- ---------------------------------
Vice President, Contracts &
Title: Director of Contracts Procurement
--------------------------- ---------------------------------
Date: 8/25/2000 8/25/00
---------------------------- ---------------------------------
</TABLE>
Page 18
<PAGE> 20
ATTACHMENT A
STATEMENT OF WORK
<PAGE> 21
ATTACHMENT B
RESERVED
<PAGE> 22
ATTACHMENT C
DD FORM 254
To be provided by subcontract modification when/if required.
<PAGE> 23
ATTACHMENT D
PROPRIETARY DATA
<PAGE> 24
ATTACHMENT E
GENERAL PROVISIONS
<PAGE> 25
ATTACHMENT F
SPECIAL PROVISIONS
1. NONE.