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EXHIBIT 10.10
CON-8608
July 28, 2000
Environmax
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx Xxxxxxxxx
Subject: Subcontract Agreement No. PSS-1129
Dear Xx. Xxxxxxxxx:
The enclosed subcontract agreement has been signed by an authorized
representative of AverStar and is forwarded to you for your files.
Should you have any questions or require any additional information, please call
me at (000) 000-0000, extension 4508.
Sincerely,
AVERSTAR, INC.
/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Senior Contract Administrator
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Agreement #PSS-1129
SUBCONTRACT AGREEMENT
This Agreement is entered into effective this 28th day of July, 2000 by and
between AverStar, Inc. with address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter "AverStar" or "Prime"), and Environmax, with
address at 0000 X. Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter
"Subcontractor").
WHEREAS, AverStar has been awarded Contract No. GS07T00BGD0031, herein referred
to as the General Services Administration (GSA) Millennia Lite Contract to
provide a broad scope of High-End Information Technology Engineering Life Cycle
Services to include (but is not limited to): system engineering and integration;
scientific and engineering applications development; and database application
development for embedded systems.
WHEREAS, Subcontractor is in the business of providing these Services; and
WHEREAS, AverStar from time to time may desire to purchase these services; and,
WHEREAS, Subcontractor and AverStar wish to enter into an agreement pursuant to
which Subcontractor will arrange for the sale and delivery of these services to
AverStar, all in the manner as set forth herein;
In consideration of the mutual covenants and promises contained herein, the
parties hereto agree as follows:
Article 1. Superseding Effect
This Subcontract supersedes all written or oral agreements, if any, and
constitutes the entire agreement between the parties hereto with respect to this
Subcontract.
All work performed by Subcontractor, actions taken, and payments made, if any,
under any other prior written or oral agreements, with respect to this
Subcontract, shall be deemed to have been work performed, actions taken, or
payments made under this Subcontract.
Article 2. Subcontract Type
This Subcontract is an Indefinite Delivery/Indefinite Quantity Type Agreement
which provides for Subcontractor to perform Task Orders as described in Article
5 herein for the procurement of products and services on a Cost Plus, Time and
Materials, or a Firm Fixed Price basis. The Subcontract is subject to the terms,
conditions, and provisions included herein or incorporated as Attachments hereto
and made a part hereof.
AverStar cannot predict accurately the types and quantities of services needed
for any period of time. This Subcontract therefore does not guarantee a minimum
quantity of services. The services will be ordered on specific Task Orders in
response to specific requirements.
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Subcontractor shall provide services to AverStar as described herein. Task Order
Services will be funded only via Purchase Order(s) which will be issued upon
successful award of a Task Order. Subcontractor Task Order services shall be
performed on a schedule as mutually agreed to by AverStar and Subcontractor.
Article 3. Term/Period of Performance
The term of this Agreement is from award date of April 21, 2000 to April 20,
2003 (for three years with optional one year periods for up to a maximum term of
10 years) unless terminated or extended by the mutual written agreement of the
parties. Task Orders may extend beyond the end of the Subcontract period of
performance. If that occurs, the terms and conditions shall remain in effect for
that particular Task Order until completion of same.
Article 4. Ordering Procedures
Any services to be furnished under the Prime Contract and subsequently this
subcontract will be ordered by issuance of written Task Orders. Prime Task
Orders will be issued in accordance with FAR 16.505.
AverStar, in fulfilling its obligations under the Prime Contract may issue Task
orders to Subcontractor under this Subcontract. Efforts awarded under the Prime
Contract shall be allocated in accordance with Attachment 1., Teaming Agreement
Exhibit A: Statement of Work. The following describes the procedures to be used
for the requesting of proposals and issuing Task Orders against this
Subcontract.
1. AverStar may submit a written Request for Proposal (RFP) with attachment
Statement of Work to Subcontractor. The RFP/SOW shall include, as
appropriate:
a. A description of the specified effort required (Statement of
Work)
b. Delivery schedule.
c. Inspection and acceptance details.
d. Period and place of performance specific to the task.
e. Any other relevant information deemed necessary.
2. Subcontractor shall provide AverStar with an estimate to perform a Task
Order in accordance with the Schedule in the Request of Proposal.
Subcontractor estimate to perform shall include the following:
a. Estimate of the required number of hours and labor
category/categories applicable for either Time and Materials,
Cost Plus Fixed Fee, or Fixed-price Task Orders. Labor
Categories shall be consistent with and in accordance with the
labor Category Descriptions set forth in attachments.
b. Proposed completion and/or delivery schedule.
c. Estimate of cost required for any task-related direct material
and/or other direct costs.
d. Travel Costs in accordance with FAF31.205-46.
e. Technical Proposal.
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3. The Government envisions issuing Task Orders to its Contractors using
one of the two methods as described in Prime Contractor Section G.5.2
which is incorporated as an attachment herein. Subcontractor may be
required to assist AverStar in the preparation and presentation of
proposals in response to Government issued Task Order Request (TOR). The
cost of this assistance will not be a direct charge under this agreement
and AverStar will not be liable for reimbursement of such costs.
4. Upon acceptance of Subcontractor's proposal and receipt of a Government
funded order, AverStar will issue a Task Order as specified in Article
5.
5. All Task Orders are subject to the terms and conditions of this
subcontract.
Article 5. Task Orders
Subcontractor's services shall be acquired only through AverStar's issuance of
Task Orders. Task Orders placed under this Subcontract shall contain, at a
minimum, the following information, which shall be consistent with the
Subcontract terms:
1. Date of Order.
2. Subcontract Number and Task Order Number;
3. Contract Line Item Numbers (CLINS), if applicable, description, labor
category hours, and Task Order Ceiling hours and/or price;
4. Period of Performance;
5. Place of Performance;
6. Statement of Work;
7. Deliverables, if applicable;
8. Any other pertinent information.
It shall be the responsibility of the Subcontractor to deliver the services
specified in the Task Order(s) strictly in accordance with the terms and
conditions of this Subcontract. To the extent of any inconsistency between terms
of this Subcontract and the task Order, this Subcontract will prevail. In no
event is AverStar liable to the Subcontractor for any cost or expenses other
than for items ordered under each AverStar Task Order.
When, in the opinion of the Subcontractor, a Task Order calls for effort outside
the existing scope of the Prime Contract Statement of Work (SOW) and/or Task
Order SOW, Subcontractor shall so notify AverStar in writing within two (2)
days, and no action shall be taken by Subcontractor under such Task Order until
directed to do so by a written order signed by AverStar.
Article 6. Key Personnel
For purposes of this clause, "Key Personnel" is defined as those individuals who
are mutually recognized by AverStar and Subcontractor as essential to the
successful completion and execution of this Subcontract.
Any Subcontractor personnel designated as key to Subcontractor's performance
under a Task Order shall be specified on the Task Order itself.
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Personnel designated as "Key Personnel" shall be assigned to the extent
necessary for the timely completion of the task to which assigned. Any
substitution or reassignment involving Subcontractor's "key personnel" assigned
to this work shall be made only with persons of equal abilities and
qualifications and is subject to prior approval of AverStar, in writing. No key
personnel substitutions will be permitted unless such substitutions are
necessitated by an individual's sudden illness, death or termination of
employment. All requests for substitutions must provide a detailed explanation
of the circumstances necessitating the proposed substitution, a complete resume
for the proposed substitute, and any other information needed by the Prime
Contractor's Program Manager to approve or disapprove the proposed substitution.
All substitutes must have qualifications that are equal to or higher than the
qualifications of the person to be replaced. The request must be received by
AverStar no less than ten (10) calendar days prior to the proposed substitution.
If the proposed substitute personnel are unacceptable, or if the reduction of
effort would be so substantial as to impair the successful performance of the
Task Order work, the Subcontractor may be subject to default actions as
prescribed in FAR 52.249-6 Termination (Cost Reimbursement) or FAR 52.249-8,
Default (Fixed-Price Supply and Service). Subcontractor may be required, at no
additional cost, to provide substitute key personnel a one (1) day orientation
to the effort with no change in the delivery schedule.
Article 7. Staffing and Conduct of Subcontractor Personnel
All Subcontractor personnel will meet or exceed the labor qualifications for the
Millennia Lite Procurement as incorporated in this Agreement as an attachment.
Further, the Subcontractor shall adhere to the same professional and ethnical
standards of conduct required of Government client personnel. The Prime
Contractor's Program Manager, after due consultant with Subcontractor, may
request Subcontractor to remove any employee of Subcontractor whose performance
and/or conduct is deemed unacceptable. Reasons for removal, include, but are not
limited to:
a. Discuss with unauthorized persons any information obtained in the
performance of work under this Subcontract;
b. Conduct business, other than that which is covered by this Subcontract,
during periods paid for by AverStar and/or the Government;
c. Conduct business not directly related to this Subcontract on AverStar
and/or Government premises;
d. Use computer systems and/or other AverStar and/or Government facilities
for company or personal business;
e. Recruit on Government premises or otherwise act to disrupt official
Government business;
f. Unethical conduct;
g. Security reasons;
h. Lack of required skills; or
i. AverStar is instructed by the Government client.
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If Subcontractor is requested to remove any of Subcontractor's personnel from
further performance under this Subcontract, Subcontractor shall bar all costs
associated with such removal including the costs for the replacement of any
personnel so removed. AverStar reserves the right to request and receive
satisfactory personnel replacement within ten (10) days of receipt by
Subcontractor of written request. Substitute personnel must have qualifications
that 1) meet or exceed the GSA Millennia Lite qualifications and 2) that are
equal to or higher than the qualifications of the person(s) to be replaced.
Article 8. Hiring of Employees
Except as otherwise agreed to in writing during he period that this Subcontract
is in effect, including any extensions thereto, Subcontractor and AverStar shall
not actively recruit or otherwise induce the other party's employees assigned in
connection with the effort hereunder to accept a position with the other party.
This clause however shall not restrict in any way the right of either party to
solicit generally in the media for personnel. Furthermore, this clause does not
restrict employees of either party from pursuing, on their own initiative,
employment opportunities with the other party.
Article 9. Assignments
This Subcontract cannot be assigned by Subcontractor to a 3rd party without he
prior written consent of AverStar. Further, Subcontractor agrees to obtain
AverStar approval before subcontracting any order or any substantial portion
thereof; provided, however, that this limitation shall not apply to the purchase
of standard commercial supplies or materials.
Notwithstanding the above, this Subcontract may be assigned to a successor of
all or substantially all of the business and assets of the assigning party
pertaining to this Agreement, whether by merger, sale of assets, sale of stock
or otherwise. This Subcontract shall be binding upon and inure to the benefit of
the heirs, successors, assigns, and delegates of the parties hereto.
Article 10. Limitation of Liability
Neither party shall be liable to the other pursuant to this Subcontract for any
indirect, incidental, consequential, or punitive damages to the other party,
including but not limited to loss of data, loss of profits, or loss of business
or for costs of procurement of alternative goods, even if either party knew or
should have known of the likelihood of such loss.
Article 11. Notices and Administration
Any notice in connection with the subject matter of this Subcontract shall be in
writing and shall be effective when delivered to the party for whom intended, or
five (5) days following deposit of the same into the United States mail,
overnight courier, certified mail, return receipt requested, addressed to such
party at the address set forth below its signature to this Subcontract. Either
party may designate a different address by notice to the other given in
accordance herewith.
All administrative matters for this subcontract will be handled by the following
individuals:
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AverStar, Inc.
Name: Xxxxx X. Xxxxxx
Title: Senior Contract Administrator
Address: 00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxxxxxx@xxxx.xxxxxxxx.xxx
Subcontractor
Company Name: EnvironMax
Name: Xxxx Xxxxxxxxx
Title: VP Contracts
Address: 000 Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
E-Mail: xxxxxxxxxx@xxxxxxxxxx.xxx
Article 12. Consideration
In consideration of the services performed hereunder AverStar will pay
Subcontractor at the price(s) negotiated for a specific Task Order and
designated on the AverStar Purchase Order Form.
For any services proposed in accordance with Ordering Procedures, Subcontractor
shall propose rates that are in accordance with the labor category Descriptions
incorporated as an attachment and that do not exceed the direct labor category
ceiling rates awarded to AverStar incorporated in Attachment II. Upon issuance
of a Task Order, awarded rates shall remain valid, regardless of Subcontractor's
experience, for the term of the Task Order, including such extensions of the
term as may occur. Such labor rates are inclusive of wages, overhead, and
general and administrative expenses and profit.
Per Section H.30, Economic Price Adjustment, of the Prime Contract incorporated
herein, the initial prices in the subcontract will be in effect for three years
from date of award. Subsequently, any annual adjustments cannot exceed the
percentage change from the Xxxxxx IT Survey rates.
Article 13. Invoice and Payments
Expenses shall be paid on a monthly basis within thirty (30) days of receipt of
an acceptable typewritten invoice from Subcontractor. Each Task Order shall be
invoiced separately. Invoices shall contain the following information:
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a. An invoice date and number; task order description, purchase
order number and job name;
b. A description of the services performed to include percentage of
effort completed in performance of those services with breakdown
by tasks, if applicable;
x. Xxxx of services;
d. Place of services;
e. Hours expended by Labor Category, total charges by Category for
current period and cumulative charges for preceding periods;
f. Travel and other expenses with breakdown by task; supported by
receipts;
g. Other Direct Costs detail and supporting documentation;
h. Total Charges;
i. Identify Federal Taxpayer ID number on all invoices and specify
a remittance address; and,
j. Add the following signed certificate to each invoice:
"I do hereby certify the foregoing to be a true and accurate
statement of amounts due, time spent and expenses incurred in
performance hereunder, and it is understood that this invoice
may form the basis for a claim for payment against the U.S.
Government by AverStar."
NOTE: Invoices not prepared in strict accordance with the above instructions
will be promptly rejected and returned for correction.
Invoices, in the original plus two (2) copies, shall be directed to the "Xxxx
To" address as specified on individual task orders.
Subcontractor shall provide detailed expenses incurred as backup to AverStar on
its travel invoice. AverStar shall be obligated to reimburse Subcontractor only
for those reasonable expense, as defined herein, that are sufficiently supported
by receipts and are allowable pursuant to the Federal Acquisition Regulations
and which are paid by the end customer.
All taxes applicable to the payments made to Subcontractor hereunder are the
sole liability of Subcontractor, and AverStar shall not withhold or pay any
amounts for federal, state or municipal income tax, social security,
unemployment, workers' compensation or like taxes.
Article 14. Funding
Funding shall be provided solely through the issuance of a Purchase Order Form
on a Task Order by Task Order basis. The Subcontractor will be funded
incrementally for services by contract year or as provided in the Task Order.
The Subcontractor shall not invoice AverStar any amount greater than the funded
value. The Subcontractor shall complete all services described herein for the
consideration stated. Funding limitation(s) may be increased or decreased from
time to time upon written notice by AverStar.
Article 15. Inspection & Acceptance
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Inspection and acceptance will be in accordance with Section E., paragraphs 3, 4
& 5 of the Prime Contract and attached hereto. Where inspection and acceptance
is not specified in a specific order, AverStar and Subcontractor will work
together to establish mutually acceptable inspection and acceptance criteria
which will be added to the task order.
Article 16. Year 2000 Warranty
The Subcontractor warrants that each non-commercial item(s) of hardware,
software, and firmware delivered or developed under this subcontractor shall be
able to accurately process date data (including, but not limited to,
calculating, comparing, and sequencing) from into and between the twentieth and
twenty-first centuries, and the year 1999 and the year 2000 and leap-year
calculations, when used in accordance with the item documentation provided by
the subcontractor, provided that all listed or unlisted items (e.g. hardware,
software, and firmware) used in combination with such listed item property
exchanged date data with it. Remedies available to the Government and/or
AverStar under this warranty shall include repair or replacement of any lists
whose non-compliance is discovered. Nothing in this warranty shall be construed
to limit any rights or remedies that may otherwise be available under this
contract.
Article 17. Identification and Assertion of Use, Release or Disclosure
Restrictions
Nondisclosure Provisions
Subcontractor may, in the performance of services hereunder, be provided access
too information which is considered proprietary and company private to AverStar
and/or its customers and suppliers. Such information may include by way of
example but not of limitation: information concerning technical, operational,
managerial, financial or marketing activities, research developments,
specifications, processes, marketing plans and strategies, cost and pricing
data, customer lists, proposals, contracts, computer software and related
documentation, engineering concepts and computer programming techniques.
Subcontractor agrees to hold all such information in strict confidence, use the
same solely for purposes consistent with this Agreement and not disclose such
information to anyone. Subcontractor shall return all such information and any
and all copies thereof upon AverStar's request or, in any event and without such
request, upon the termination or expiration of this Agreement. Subcontractor's
obligations hereunder shall not apply to data and information which, according
to tangible evidence, has been rightfully received by Subcontractor from a third
party without restriction on disclosure or use or which is in the public domain
through no fault of Subcontractor or which is required by law or court order to
be disclosed. The provisions of this Subsection shall survive the termination,
expiration or cancellation of this Agreement for a period of three (3) years.
Liability.
Subcontractor agrees to accept the responsibility for claims for injury or
damage to any persons or property that arise solely out of Subcontractor's
negligent acts or omissions in connection with this project. Subcontractor
further agrees that AverStar shall not be liable for damages arising solely from
injuries or damages sustained by any person or persons or property resulting
from the negligent performance or omission by Subcontractor of this Agreement.
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General Indemnification
Subcontractor will defend, hold harmless and indemnify Prime Contractor, Prime
Contractor Personnel and Customer against third party claims that arise or are
alleged to have arisen as a result of acts or omissions of Subcontractor or
Subcontractor Personnel or breach by Subcontractor of any terms of this
Agreement.
Intellectual Property Indemnification.
Subcontractor will defend, hold harmless and indemnify Prime Contractor, Prime
Contractor Personnel, and Customer from liability and loss resulting from claims
that Subcontractor's Deliverables and Services infringe the intellectual
property rights of a third party. If such claim is or is likely to be made,
Subcontractor will, at its own expense, exercise the first of the following
remedies that is practicable: (1) obtain from Prime Contractor and Customer the
right to continue to use, sell and license the Deliverables and services
consistent with this Agreement; (2) modify Deliverables and Services so that
they are not infringing and in compliance with this Agreement; (3) replace the
Deliverables and Services with non-infringing ones that comply with this
Agreement; or (4) accept the cancellation of infringing Services and the return
of infringing Deliverables and refund any amounts paid.
Technical Data.
See Section H.18 of Prime Contract attached hereto for language regarding rights
in Technical Data.
Work Product.
Inventions arising out of this contract effort that are solely conceived or
reduced to practice by one of the parties hereto shall remain the property of
the originating party. Inventions arising out of this contract effort that are
jointly conceived or jointly reduced to practice by the parties hereto shall be
subject to further negotiations between the parties in order to establish their
respective rights. This understanding is subject to the rights of the U.S.
Government, if any.
Article 18. Default
AverStar may, by written notice of default to the Subcontractor, terminate this
Agreement in whole or in part for any one of the following circumstances.
(a) If Subcontractor fails to make progress in the work so as to endanger
performance; or
(b) If Subcontractor fails to perform any of the other provisions of this
Subcontract in accordance with its terms, and in either of these two
circumstances does not cure such failure within a period of 10 business
days (or such longer period as AverStar may authorize in writing) after
receipt of notice from AverStar specifying such failure; or
(c) Subcontractor becomes insolvent or the subject of proceedings under any
law relating to bankruptcy or the relief of debtors or admits in writing
its inability to pay its debts as they become due.
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Subcontractor shall not be liable for damages resulting from default due to
causes beyond the Subcontractor's control and without Subcontractor's fault or
negligence in accordance with FAR Clause 52.249-14 "Excusable Delays."
Article 19. General Relationship
Subcontractor agrees that in all matters relating to this Subcontract it shall
be acting as an independent contractor and shall assume and pay all liabilities
and perform all obligations imposed with respect to the performance of this
Subcontract. Subcontract shall have no right, power or authority to create any
obligation, express or implied, on behalf of AverStar and/or the Government and
shall have no authority to represent AverStar as an agent.
Article 20. Insurance
In accordance with Prime Contract Section H.20, Required Insurance,
Subcontractor agrees to maintain appropriate minimum insurance as stated and
attached hereto. Subcontractor will provide an annual Certificate of Insurance
to AverStar depicting the required insurance coverage stated in H.20.
Article 21. Compliance With Laws and Regulations
The attached contract clauses, specifically Xxxxxxx X, X, X, X, X, X-0 and J-10,
as contained in the Prime Contract re hereby incorporated into this Agreement by
reference. As used therein, the terms "Government" and "Contracting Officer"
shall mean "AverStar" where applicable. "Contractor" shall mean "Subcontractor"
and "Contract" shall mean "this Agreement" unless the context of the clause
requires otherwise:
Subcontractor shall complete the Representations and Certifications, Section K,
attached hereto and return to the AverStar Business Manager specified below.
Changes in status to Representations and Certifications shall be provided to
AverStar Subcontract Manager at time of change in status. Such changes will be
made known in writing.
Article 22. Disputes
a. Notwithstanding any provisions herein to the contrary:
(1) If a decision relating to the Prime Contract be made by the Contracting
Officer and such decision is also related to this Subcontract and/or any
resulting Task Order, said decision, if binding upon the Prime
Contractor under the Prime Contract shall in turn be binding upon
Subcontractor with respect to such matter; provided, however, that if
Subcontractor disagrees with any such decision made by the Contracting
Officer and Prime Contractor elects not to appeal such decision,
Subcontractor shall have the right reserved to Prime Contractor under
the Prime Contract with the Government to prosecute a timely appeal in
the name of the Prime Contractor, as permitted by the contract or by
law. Subcontractor is to bear its own legal and other costs. If Prime
Contractor elects not to appeal any such decision, Subcontractor shall
have the right reserved to Prime Contractor under the Prime Contract
with the Government to prosecute a timely appeal in the name of the
Prime
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Contractor, as permitted by the contract or by law. Subcontractor is to
bear its own legal and other costs. If Prime Contractor elects not to
appeal any such decision, Prime Contractor agrees to notify
Subcontractor in a timely fashion after receipt of such decision and to
assist Subcontractor in its prosecution of any such appeal in every
reasonable manner. If Prime Contractor elects to appeal any such
decision of the Contracting Officer, Prime Contractor agrees to furnish
Subcontractor promptly with a copy of such appeal. Any decision upon
appeal, if binding upon the Prime Contractor, shall in turn be binding
upon Subcontractor. Pending the making of any decision, either by the
Contracting Officer or on appeal, Subcontractor shall proceed diligently
with performance of the Order.
(2) If, as a result of any decision or judgment which is binding upon
Subcontractor and Prime Contractor, as provided above, the Prime
Contractor is unable to obtain payment or 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 or matter
for which Prime Contractor has reimbursed or paid Subcontractor,
Subcontractor, shall, on demand, promptly repay such amount to Prime
Contractor. Additionally, pending the final conclusion of any appeal
hereunder, Subcontractor shall, on demand, promptly repay any such
amount to Prime Contractor. Prime Contractor's maximum liability for any
matter connected with or related to the order which was properly the
subject of a claim against the Government under the Prime Contract shall
not exceed the amount of Prime Contractor's recovery from the
Government.
b. Any dispute not to disposed of in accordance with (a.) above, if any,
shall be determined in the following manner:
(1) Subcontractor and AverStar agree to enter into Negotiation to resolve
any dispute. Any parties agree to negotiate in good faith to reach a
mutually agreeable settlement within a reasonable amount of time.
(2) If negotiations are unsuccessful, Prime Contractor and Subcontractor
agree to enter into binding Arbitration. The American Arbitration
Association (AAA) Commercial Arbitration Rules (most recent edition) are
to govern this Arbitration. The Arbitration shall take place the
Commonwealth of Massachusetts. The Arbitrator shall be bound to follow
the applicable subcontract provisions and Massachusetts law in
adjudicating the dispute. It is greed by both parties that the
Arbitrator's decision is final, and that no party may take any action,
judicial or administrative, to overturn this decision. The judgment
rendered by the Arbitrator may be entered in any court having
jurisdiction thereof.
Pending any decision, appeal or judgment referred to in this provision or the
settlement of any arising dispute under this Subcontract, Subcontractor shall
proceed diligently with the performance of this Subcontract.
Article 23. Termination
Either party may terminate this Agreement, without any cancellation charge, for
a material breach of the Agreement by the other party or if the other party
becomes insolvent or files or has filed against it a petition in bankruptcy
("cause"), to the extent permitted by law.
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Either party may terminate this Agreement without cause when there are not
outstanding Task Orders. The Prime Contractor may, by written notice of default
to the Subcontractor, terminate the whole or any part of this Subcontract in any
one of the following circumstances: (i) if Subcontractor fails to make progress
in the work so as to endanger performance or (ii) if Subcontractor fails to
perform any of the other provisions of this Subcontract in accordance with its
terms, and in either of these two circumstances does not cure such failure
within a period of ten (10) days (or such longer period as Prime Contractor may
authorize in writing) after receipt of notice from the Buyer specifying such
failure; or (iii) Subcontractor becomes insolvent or the subject of proceedings
under any law relating to bankruptcy or the relief of debtors or admits in
writing its inability to pay its debts as they become due.
Article 24. Non-Waiver of Rights
The failure of AverStar to insist upon strict performance of any of the terms
and conditions in the Subcontract, or to exercise any rights or remedies, shall
not be construed as a waiver of its rights to assert any of the same or to rely
on any such terms or conditions at any time thereafter. The invalidity in whole
or in part of any term or condition of this subcontract shall not affect the
validity of other parts hereof.
Article 25. Order of Precedence
The documents listed below are hereby incorporated by reference. In the event of
an inconsistency or conflict between or among the provisions of this
Subcontract, the inconsistency shall be resolved by giving precedence in the
following order:
This Agreement, with all supporting Attachments
Task Order with supporting Statement of Work and Schedule
Subcontractors Technical and Price Proposal; and,
Representations & Certifications
Article 26. Entire Agreement
This Agreement, including all attachments, the Order From and Exhibits attached
hereto, supersedes all prior understandings and agreements between the parties
and is intended by the parties to be the complete and exclusive statement of the
agreement between the parties with respect to subject matter. Except as
specifically provided for otherwise in this Agreement, no modification of this
Agreement shall be binding on either party unless it is in writing and signed by
both parties.
IN WITNESS WHEREOF, THE DULY AUTHORIZED REPRESENTATIVES OF PRIME CONTRACTOR AND
SUBCONTRACTOR HAVE EXECUTED THIS SUBCONTRACT ON THE DATES SHOWN:
AverStar, Inc. Xxxxxxxxxx.Xxx.Xxx.
By: Xxxxx X. Xxxx By: Xxxx Xxxxxxx
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Name: Xxxxx X. Xxxx Name: Xxxx Xxxxxxx
Title: Manager, Contract Administration Title: President/GM
Date: 7/28/00 Date: 7/24/00
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Attachment 1
EXHIBIT A: STATEMENT OF WORK
1. Background: AverStar and Subcontractor understand that the US General
Services Agency plans to issue a procurement currently identified as
Millennia Lite. The Millennia Lite contacts will provide a wide variety
of professional, information technology support for the General Services
Agency (GSA) and other Federal government agencies for whom GSA is
acting as agent through Interagency Support Agreements. It is expected
that the Millennia Lite Statement of Work will include four broad
Function Areas. The AverStar team will be submitting a prime proposal
for Function Area 2 - High-End Information Technology Services (HITS).
2. Participation in the Contract: AverStar intends to manage this contract
and engage ____________________________ as a Subcontractor in
performance of required services for task orders issued under this
contract using two approaches, as appropriate for the opportunity.
o An integrated project team approach, whereby AverStar and its
subcontractor(s) provide technical services and AverStar leads and
manages technical performance, as well as contract management and
administration. This approach will generally be used for requirements
that are generated by the Millennia Lite Program Office for response by
the AverStar Team (including all subcontractors). AverStar reserves the
right to select those Team members best qualified and positioned to
respond to the specific task order requirements and meet Small and Small
Disadvantaged Business participation goals (where applicable) and
maximize AverStar's probability of winning task order proposal. Criteria
for selection includes, but is not limited to, past performance,
availability of key personnel, price, and demonstrated qualifications to
support the proposed tasking.
o A subcontractor right of first refusal project approach, whereby the
subcontractor possesses complete management and technical responsibility
for the task order under AverStar's overall program quality assurance
management. This approach will be used in instances that requirements
are identified through a subcontractor's sole marketing efforts and
delivered through an awarded task order under the provisions of the
Millennia Lite contract. It may also be used in those situations where
the Government directs work to the specified or government intended
AverStar Team member. In these instances, AverStar will not impose any
management and administrative hours onto the task order, unless
specifically requested and agreed to by the subcontractor.
AverStar intends to work responsively and collaboratively with its
Subcontractors to maximize opportunities and business capture of agency
work procured under the Millennia Lite contract vehicle. AverStar will
endeavor to provide timely notification to all AverStar Team members of
any competitive Millennia Lite tasking opportunities in order to promote
and encourage the widest possible participation in competing for and
performing on task orders.
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3. Subcontracting: AverStar anticipates negotiating a subcontract with
_____________________ that will incorporate provisions consistent with
the terms and conditions specified in AverStar's prime contract with
GSA. AverStar will apply handling fee and profit to the costs of work
performed by Seller under this subcontract; the total percentage of
which will not exceed nine and one-half percent (9.5%). At AverStar's
discretion, a lower percentage can be applied for competitive and other
business considerations, with such a decrease offset by the assignment
of an appropriate quantity of AverStar labor so as to achieve an
acceptable level of return approximately equivalent to the standard 9.5%
combined handling and profit fee.
4. Proposal Requirements: ______________________ shall provide AverStar the
following types of support related to generating a proposal in response
to the anticipated Millennia Lite RFP.
o Pre-RFP market intelligence, participation in development of proposal
strategy and preparation of qualifications and background information,
as requested.
o Qualifying past performances. Each past performance shall conform to
format instructions provided by AverStar.
o Participation at the various proposal reviews.
o Cost and pricing data in accordance with the RFP instructions and
AverStar subcontractor pricing direction.
o Participation in post-submission activities including Orals and BAFO
preparations and submissions.
o Certifications, representations and such other procurement-related
forms, documentation and information, in such form as AverStar may
require, necessary to obtain Treasury consent and to award a subcontract
in accordance with AverStar's Government-approved Purchasing System.
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