PROGRAM ADDENDUM 213C (04-03) ADDITIONAL GENERAL CONDITIONS - GOVERNMENT FIXED PRICE - SERVICES FOR C-5 GALAXY AIRCRAFT (PRIME CONTRACT NO. F09603-02-D-0092 AWARDED ON 13 SEPTEMBER 2002) Terms T-4 (7-00), entitled "Purchase Order Terms and Conditions, Government Fixed Price Services," require modification to comply with prime contract requirements. Any conflict between any of the terms and conditions herein and the terms and conditions in Terms T-4 (7-00) shall be resolved in favor of this document. I. CHANGES TO TERMS T-4 (7-00). Delete clause 44, entitled FAR/DFARS Provisions/Clauses, in its entirety and in its place insert the following clause: 44. FAR/DFARS/AFFARS/AFMCFARS PROVISIONS/S A. The FAR, DFARS, Air Force FARS ( AFFARS ) and Air Force Materiel Command FARS ( AFMCFARS ) clauses cited in paragraph E. below, where applicable by their terms, are incorporated herein by reference as if set forth in full text. The effective version of each clause shall be the same version as that which appears in Buyer s Prime Contract, or higher-tier subcontract under which this Order is a subcontract, unless otherwise specified. If any of the clauses are not applicable by their terms they shall be self-deleting. Whenever said clauses include a requirement for the resolution of disputes between the parties in accordance with the Disputes clause herein, the dispute shall be disposed of in accordance with the clause entitled Disputes herein. B. Except for references made to the Government s Disputes clause, any conflict or inconsistency between the provisions listed in the FAR/DFARS/AFFARS/AFMCFARS clause citations below and the clauses set forth elsewhere in these terms and conditions shall be resolved in favor of the former. C. Where necessary to derive proper meaning in a subcontract situation from these clauses, Contractor means Seller, Contracting Officer means Buyer, Contract means this Order and Government means Buyer or the Government. However, the words Government and Contracting Officer do not change: (1) when a right, act, authorization or obligation can be granted or performed only by the Government or the prime contract Contracting Officer or duly authorized representative (2) when title to property is to be transferred directly to the Government, and (3) in FAR 52.227-1, 52.227-2, 52.246-23 and DFARS 252.227-7013 and 252.227-7014. D. The full text of clauses may be accessed electronically at: http://farsite.hill.af.mil, or http://www.arnet.gov/far/. E. FAR, DFARS, AFFAR and AFMCFAR clauses: Program Addendum 213C (04-03) Page 1 of 9
FAR REFERENCE (1) FAR clauses: (1) 52.203-3 GRATUITIES NOTE: As used in this clause, Government means Buyer (except Government means Buyer or Government in the phrase to any officer or employee of the Government ), hearing means opportunity to be heard, and in any competent court, means pursuant to the Disputes clause contained herein. (2) 52.203-5 COVENANT AGAINST CONTINGENT FEES (3) 52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (4) 52.203-7 ANTI-KICKBACK PROCEDURES The substance of this clause shall be incorporated in all subcontracts issued hereunder. Seller shall immediately notify Buyer of any alleged violations involving any of Buyer s or Seller s employees. Seller shall indemnify Buyer against any loss, cost damage or liability by reason of Seller s violation of the Act including, but not limited to, any amount Buyer or its Customer is directed by the Contracting Officer to withhold from Seller. Buyer may terminate this Order for default in the event of Seller s violation of the Act in connection with this Order. Buyer s rights and remedies hereunder shall not be exclusive and are in addition to any other rights and remedies provided at law, in equity, or under this Order. In (c)(2) the following is added: Seller shall send a copy of such report to Buyer. Add the following to the end of paragraph (c)(4): In addition to any other remedies which Buyer has at law, in equity, or under this PO, Buyer shall have the right to withhold from Seller the amount, if any, that the Contracting Officer directs Buyer to withhold from Seller. (5) 52.203-10 PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER ACTIVITY (6) 52.203-12 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS [APPLICABLE TO SUBCONTRACTS OF $100,000 OR MORE] (7) 52.204-2 SECURITY REQUIREMENTS NOTE: Delete paragraph (c) (8) 52.211-5 MATERIAL REQUIREMENTS (9) 52.211-15 DEFENSE PRIORITY AND ALLOCATION REQMTS (10) 52.215-2 AUDIT & RECORDS NEGOTIATION (11) 52.215-11 PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA MODIFICATIONS (12) 52.215-13 SUBCONTRACTOR COST OR PRICING DATA MODIFICATIONS (13) 52.215-14 INTEGRITY OF UNIT PRICES NOTE: Delete paragraph (b) (14) 52.215-19 NOTIFICATION OF OWNERSHIP CHANGES (15) 52.215-21 REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION OTHER THAN COST OR PRICING DATA MODIFICATIONS (16) 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS (17) 52.219-9 and Alternate II SMALL BUSINESS SUBCONTRACTING PLAN [APPLICABLE TO SUBCONTRACTS OF $500,000 OR MORE] Program Addendum 213C (04-03) Page 2 of 9
FAR REFERENCE (18) 52.219-16 LIQUIDATED DAMAGES SUBCONTRACTING PLAN NOTE: Delete paragraph (e) (19) 52.222-1 NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (20) 52.222-19 CHILD LABOR COOPERATION WITH AUTHORITIES AND REMEDIES (21) 52.222-20 WALSH-HEALEY PUBLIC CONTRACTS ACT (22) 52.222-24 PREAWARD ON-SITE EQUAL OPPORTUNITY COMPLIANCE EVALUATION [APPLICABLE TO FIRST-TIER SUBCONTRACTS OF $10,000,000 OR MORE] (23) 52.222-26 EQUAL OPPORTUNITY (24) 52.222-35 EQUAL OPPORTUNITY FOR SPECIAL DISABLED, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS [APPLICABLE TO SUBCONTRACTS OF $25,000 OR MORE] (25) 52.222-36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES [APPLICABLE TO SUBCONTRACTS OF $10,000 OR MORE] (26) 52.222-37 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS, VETERANS OF THE VIETNAM ERA, AND OTHER ELIGIBLE VETERANS [APPLICABLE TO SUBCONTRACTS OF $25,000 OR MORE] (27) 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (28) 52.223-7 NOTICE OF RADIOACTIVE MATERIALS (29) 52.223-11 OZONE-DEPLETING SUBSTANCES (30) 52.223-14 TOXIC CHEMICAL RELEASE REPORTING (31) 52.225-8 DUTY-FREE ENTRY Note: Contracting Officer means Buyer except in paragraphs (e) and (i). In subparagraph (c) (1) 20 days is changed to 35 days. In subparagraph (c)(2), replace the fifth word determines with has been notified. (32) 52.225-13 RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (33) 52.227-1 AUTHORIZATION AND CONSENT (34) 52.227-2 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT [APPLICABLE TO SUBCONTRACTS OF $100,000 OR MORE EXCEPT WHEN BOTH COMPLETE PERFORMANCE AND DELIVERY ARE OUTSIDE THE UNITED STATES, ITS POSSESSIONS AND PUERTO RICO, UNLESS SUPPLIES ARE ULTIMATELY TO BE SHIPPED INTO ONE OF THOSE AREAS] (35) 52.229-3 FEDERAL, STATE, AND LOCAL TAXES (36) 52.229-5 TAXES CONTRACTS PERFORMED IN U.S. POSSESSIONS OR PUERTO RICO (37) 52.232-17 INTEREST (38) 52.242-1 NOTICE OF INTENT TO DISALLOW COSTS (39) 52.242-4 CERTIFICATION OF FINAL INDIRECT COSTS (40) 52.242-13 BANKRUPTCY (41) 52.242-15 STOP WORK ORDER NOTE: The 90 day period in the first and fourth sentences of paragraph (a) is changed to 120 days. Program Addendum 213C (04-03) Page 3 of 9
FAR REFERENCE (42) 52.244-5 COMPETITION IN SUBCONTRACTING [APPLICABLE TO SUBCONTRACTS OF $100,000 OR MORE WHICH ARE NON- COMPETITIVE] (43) 52.244-6 SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (44) 52.245-2 GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS) (45) 52.245-17 SPECIAL TOOLING (DEV) (APR 1984) Note: DAR Tracking Number 99-O0012, dated 16 Sep 99, effective until FAR is revised (46) 52.248-1 VALUE ENGINEERING [APPLICABLE TO SUBCONTRACTS OF $100,000 OR MORE] DFARS REFERENCE (2) DFARS clauses: (1) 252.203-7001 PROHIBITION ON PERSONS CONVICTED OF FRAUD OR OTHER DEFENSE-CONTRACT- RELATED FELONIES [APPLICABLE TO FIRST TIER SUBCONTRACTS EXCEEDING THE SIMPLIFIED ACQUISITION THRESHOLD] (2) 252.209-7000 ACQUISITION UNDER INF TREATY [APPLICABLE TO SUBCONTRACTS OF $100,000 OR MORE] (3) 252.211-7000 ACQUISITION STREAMLINING [APPLICABLE TO SUBCONTRACTS OF $1,000,000 OR MORE] (4) 252.215-7000 PRICING ADJUSTMENTS [APPLICABLE WHEN IT IS CONTEMPLATED THAT COST OR PRICING DATA WILL BE REQUIRED] (5) 252.219-7003 SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS SUBCONTRACTING PLAN (DOD CONTRACTS) [APPLICABLE TO ANY SUBCONTRACT ANTICIPATED TO BE VALUED AT $500,000 OR MORE] Note: Paragraph (g) is deleted. (6) 252.223-7001 HAZARD WARNING LABELS (7) 252.225-7001 BUY AMERICAN ACT AND BALANCE OF PAYMENTS PROGRAM (8) 252.225-7002 QUALIFYING COUNTRY SOURCES AS SUBCONTRACTORS [APPLICABLE TO SUBCONTRACTS EXCEEDING THE SIMILIFIED ACQUISITION THRESHOLD] (9) 252.225-7007 BUY AMERICAN ACT TRADE AGREEMENTS BALANCE OF PAYMENTS PROGRAM (10) 252.225-7008 SUPPLIES TO BE ACCORDED DUTY-FREE ENTRY Note: The blanks in the clause are completed with the following: None. (11) 252.225-7009 DUTY FREE ENTRY QUALIFYING COUNTRY (END PRODUCTS AND COMPONENTS) (12) 252.225-7010 DUTY-FREE ENTRY ADDITIONAL PROVISIONS Program Addendum 213C (04-03) Page 4 of 9
DFARS REFERENCE (13) 252.225-7012 PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES [APPLICABLE TO ORDERS VALUED AT $100,000 OR MORE] (14) 252.225-7016 RESTRICTION ON ACQUISITION OF BALL AND ROLLER BEARINGS (15) 252.225-7025 RESTRICTION ON ACQUISITION OF FORGINGS (16) 252.225-7026 REPORTING OF CONTRACT PERFORMANCE OUTSIDE OF THE UNITED STATES (17) 252.225-7037 DUTY-FREE ENTRY ELIGIBLE END PRODUCTS (18) 252.225-7043 ANTITERRORISM/FORCE PROTECTION POLICY FOR DEFENSE CONTRACTORS OUTSIDE THE UNITED STATES (19) 252.226-7001 UTILIZATION OF INDIAN ORGANIZATIONS AND INDIAN-OWNED ECONOMIC ENTERPRISES DOD CONTRACTS (20) 252.227-7013 RIGHTS IN TECHNICAL DATA NONCOMMERCIAL ITEMS (21) 252.227-7014 RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION (22) 252.227-7015 TECHNICAL DATA COMMERCIAL ITEMS (23) 252.227-7016 RIGHTS IN BID OR PROPOSAL INFORMATION (24) 252.227-7030 TECHNICAL DATA WITHHOLDING OF PAYMENT (25) 252.227-7036 DECLARATION OF TECHNICAL DATA CONFORMITY (26) 252.227-7037 VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (27) 252.243-7001 PRICING OF CONTRACT MODIFICATIONS (28) 252.243-7002 REQUESTS FOR EQUITABLE ADJUSTMENT [APPLICABLE TO ORDERS EXCEEDING $100,000] (29) 252.244-7000 SUBCONTRACTS FOR COMMERCIAL ITEMS AND COMMERCIAL COMPONENTS (DOD CONTRACTS) (30) 252.247-7023 TRANSPORTATION OF SUPPLIES BY SEA NOTE: This entire clause, paragraphs (a) through (h), applies to Orders in excess of $100,000. In Orders of $100,000 or less, paragraphs (a) through (e) and paragraph (h) apply. In paragraph (c), the second sentence is modified to read Seller and its subcontractors may request that Buyer obtain Government authorization for shipment 45 is changed to 60 days in paragraph (d) and 30 to 25 in paragraph (e). In paragraph (e) and the Maritime Administration, Office of Cargo Preference, U.S. Department of Transportation, 400 Seventh Street SW, Washington, DC 20590, is deleted. In paragraph (g) for the purposes of the Prompt Payment clause of this contract is deleted. (31) 252.247-7024 NOTIFICATION OF TRANSPORTATION OF SUPPLIES BY SEA (3) AFFARS clause: AFFARS REFERENCE (1) 5352.223-9000 ELIMINATION OF USE OF CLASS I OZONE DEPLETING SUBSTANCES (ODS) NOTE: In paragraph (d), Air Force means Buyer. The list in paragraph (d) is None. Program Addendum 213C (04-03) Page 5 of 9
AFMCFARS REFERENCE (4) AFMCFARS clauses: (1) 5352.227-9000 EXPORT-CONTROLLED DATA RESTRICTIONS (AFMC) [DOES NOT APPLY TO COMMERCIAL OFF-THE-SHELF ITEMS (I.E., PREVIOUSLY DEVELOPED ITEMS)] (2) 5352.228-9001 INSURANCE IMPLEMENTATION (AFMC) [APPLIES IF THIS ORDER REQUIRES WORK ON A GOVERNMENT INSTALLATION] II. ADDITIONS TO TERMS T-4 (7-00): 45. AUDIT (applicable if this Order exceeds $100,000) A. Seller shall maintain books, records, documents and other evidence and accounting procedures and practices, sufficient to properly reflect all direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred in the performance of the work hereunder. B. Seller's books, records, documents and other supporting data shall be made available to the U.S. Government, for inspection and audit as reasonably required by Buyer in conjunction with negotiation of any changes hereunder, including termination claims, or in the event Buyer elects to exercise an option for the purchase of additional Services or to request a price quotation for follow-on orders for the same or similar Services. C. In any of the events set forth in paragraph B above, Seller shall, upon request by Buyer, furnish a statement of related historical cost experience by cost element, or in such form as stipulated by Buyer, together with applicable projections and supporting data. Such statements shall be based on current, accurate and complete cost information and so certified by a responsible officer of Seller. D. Seller shall cause a like provision to be included in all lower-tier subcontracts valued over $100,000. E. Buyer's audit rights shall be limited to the audit of direct cost and projections used in connection with the work hereunder. Buyer and Seller shall have the right to receive applicable Government audit reports." 46. PURCHASE OF ADDITIONAL SERVICES A. Seller hereby grants Buyer the right to purchase, under the terms and conditions of this Order, additional quantities of the Services described herein, as such Services may change from time-to-time pursuant to the Changes clause hereof. B. The prices for such follow-on Services will be established by negotiation between Buyer and Seller and will be based on extrapolation of actual recurring costs experienced by Seller in performing the Services (or like or similar Services) previously performed for Buyer and on standard and projected recurring costs of the Services (or like or similar Services) scheduled for future performance for Buyer under this Order or future orders between the Parties. Such prices will be established for the additional of Services, delivery or performance rates, and delivery or performance schedules that will be specified by Buyer. Program Addendum 213C (04-03) Page 6 of 9
C. Seller shall furnish its price proposal, including a statement of actual costs previously incurred, within thirty (30) days after such request by Buyer, or at such earlier time as may be mutually agreed upon. Seller's cost statement, cost estimates and projections shall be segregated by cost element for labor, material, and overhead costs, sustaining engineering, manufacturing support and profit. Such information shall be in such reasonable detail, but, in no event, in less detail than in Seller's original pricing proposal for the Services performed, to allow Buyer to evaluate Seller's pricing proposal on the basis of actual cost trends. The proposed prices shall not include any allowance for unrecovered nonrecurring or recurring costs from previously performed Services under this Order or under other orders between the Parties. D. Within sixty (60) days after receipt of Seller's price proposal, or at such other times as may be mutually agreed upon, Buyer and Seller shall negotiate, in good faith, the final fixed prices for the additional follow-on Services to be performed hereunder. During such period of time, Seller agrees to proceed with performance to meet Buyer's needs for such follow-on Services pending completion of price negotiations. E. If performance of additional Service occurs prior to completion of price negotiations, Seller shall be paid, on receipt of proper invoices, eighty percent (80%) of the not-toexceed or of the price of the latest Service for which firm prices have been established. In the event the new negotiated price is less than the eighty percent (80%) price, then any resulting overpayment by Buyer for Services shall be paid within 30 days by Seller to Buyer, or at Buyer's option, credited against existing unpaid billing. Conversely, if the new negotiated price is greater than the eighty percent (80%) price, then any resulting underpayment by Buyer for Services shall be paid by Buyer within thirty (30) days after receipt of Seller's invoice therefor. F. In addition to the above, Seller shall, at any time or times deemed desirable by Buyer for the purpose of pricing its products for future delivery, furnish price quotations for such follow-on Service, or derivative versions thereof, as may be requested by Buyer. Prices quoted in response to such requests shall be ceiling prices subject to downward negotiation only and consistent with, and reconcilable to, Seller's costs, as reported pursuant to other provisions hereof. Final prices will be established and negotiated in accordance with the provisions of this clause." Program Addendum 213C (04-03) Page 7 of 9
47. WORK LOCATION Seller shall not transfer any major portion of the work it is performing hereunder to another location without the prior written approval of Buyer. If Seller awards a lower-tier subcontract to any non-u.s. supplier, Seller shall coordinate with Buyer in advance of the work transfer to ensure Seller obtains any necessary export licenses prior to Seller s transfer to the non-u.s. supplier of technical data required for performance of the work." 48. TOXIC SUBSTANCE CONTROL ACT Seller warrants that each chemical substance constituting or contained in products sold or otherwise transferred to Buyer hereunder is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to The Toxic Substance Control Act (15 U.S.C. Sec. 2601 et seq.) as amended. 49. AMENDMENTS REQUIRED BY PRIME CONTRACT Seller agrees that upon Buyer s request, it will from time to time enter into amendments of the Order to incorporate additional provisions herein or to change the provisions hereof, as Buyer may reasonably deem necessary in order to comply with provisions of the prime contract(s) or with the provisions of amendments to the prime contract(s) under which this Order is issued. If any such amendment to this Order causes an increase or decrease in the cost of this Order, or the time required for performance of this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, in accordance with the provisions of the Changes clause. 50. TECHNICAL SURVEILLANCE Buyer and authorized representatives of Buyer s customers and the U.S. Government shall have direct access to all areas of Seller s and Seller s subcontractor s plants where work under this Order is being performed, to conduct preliminary inspections and tests of Services, Products and work-in-process and to review quality problems that might occur during performance of this Order and to audit compliance with quality requirements. Seller shall include a similar provision, giving Buyer and Buyer s customer the right to enter the plants of Seller s subcontractors and suppliers, in its orders issued in connection with this Order. Access shall be subject to U.S. Government regulations, when applicable. Buyer shall be entitled, at Buyer s option, to station representatives at Seller s plant on a full-time basis. Program Addendum 213C (04-03) Page 8 of 9
"51. REMEDIES FOR OFFICE OF FEDERAL PROCUREMENT POLICY ( OFPP ) PROCUREMENT INTEGRITY VIOLATIONS A. Seller shall reimburse Buyer for any and all profit or fee amounts paid to or otherwise recovered by the Government or a higher tier customer pursuant to paragraph (c) of FAR 52.203-10, Price or Fee Adjustment for Illegal or Improper Activity (JAN 1997), arising out of or resulting from any action or omission to act in violation or alleged violation of the Act by Seller, any director, officer, employee, agent, other representative, consultant, or subcontractor at any tier of Seller, or any such person or entity acting for or on behalf of any of them. Seller s liability pursuant to this clause shall extend to and include profit or fee amounts determined as provided in paragraph (c) of FAR 52.203-10 for any such violations or alleged violations which, together with violations or alleged violations by any other person or entity, result in payment to or other recoveries by the Government from Buyer or Buyer s customer. B. For purposes of this clause, the Act refers to the Office of Federal Procurement Policy ( OFPP ) Act Amendments of 1988 (41 U.S.C. 423), as implemented in the FAR, and the term prime contractor as used in paragraph (c) of FAR 52.203-10 shall mean Buyer or higher tier Customer. C. The rights and remedies provided in this clause are not exclusive, but are in addition to any other rights and remedies provided by law or under this Order." Program Addendum 213C (04-03) Page 9 of 9