AGREEMENT (SUBCONTRACT NO. USN-001)

Exhibit 10.21

 

 

[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

 

 

AGREEMENT

 

(SUBCONTRACT NO. USN-001)

 

THIS AGREEMENT (“Agreement”) made effective on the 7th day of April 2005 (“Effective Date”) by and between Hoku Scientific, Inc., a Delaware corporation, having its offices at 2153 North King Street, Suite 300, Honolulu, Hawaii 96819 (“Hoku”), and IdaTech LLC, a majority-owned subsidiary of IDACORP, Inc., having its offices at 63065 N.E. 18^th Street, Bend, Oregon 97701 (“IdaTech”).

 

BACKGROUND & PURPOSE

 

WHEREAS, Hoku has entered into Contract No. N68936-05-R-0010 (“Prime Contract”) with the United States Navy, NAWCWD (“Customer”). The objective of the Prime Contract is to provide a prototype (the “Prototype”) integrated fuel cell power plant using Hoku’s proprietary fuel cell membrane electrode assemblies that produces a minimum of 1 kilowatt of net electrical output (the “Power Plant”). The Prime Contract includes the following options (the “Options”) (1) the option to purchase an additional eleven Power Plants (“Option 1”) and the option to have ten such Power Plants operated and maintained by Hoku for a period of twelve months at a United States Navy facility (“Option 2”). The Option may be exercised at Customer’s sole discretion following the successful delivery of the Prototype.

 

WHEREAS, Hoku desires IdaTech to perform a portion of the work to be provided by Hoku to Customer under the Prime Contract, and IdaTech is willing to provide such work, under the terms and conditions of this Agreement; and

 

WHEREAS, it is the intention of Hoku and IdaTech to specify the allocation of work to be performed by IdaTech and the respective rights, duties and obligations of the parties hereto.

 

NOW, THEREFORE, in consideration of the covenants and obligations contained herein, the parties hereby agree as follows:

 

AGREEMENT

 

1. ALLOCATION OF RESPONSIBILITY. Hoku shall have primary responsibility for performing work pursuant to the Prime Contract. IdaTech shall provide the necessary personnel, facilities, equipment, materials, data, supplies and services to perform its portion of the work agreed to hereunder, as set forth in the statement of work (“Statement of Work”) attached hereto as Attachment A and incorporated herein. IdaTech shall also provide such data and support to Hoku as may be required to price and negotiate any task or subtask under the Prime Contract that pertains to work to be performed hereunder.

 

2. TERM. This Agreement shall commence as of the Effective Date and shall continue in full force and effect until all deliverables set forth in the Statement of Work have been delivered to, and accepted by, Hoku (“Term”), unless extended or earlier terminated as provided herein.

 

3. OPTION TO EXTEND. Hoku shall have the unilateral option to extend this Agreement in the event Customer exercises any option to extend the Prime Contract (including the Options). In the event the Prime Contract is extended, all of the terms, conditions, and covenants of this Agreement shall continue in full force and effect unless amended in writing by both parties and, if required under the Prime Contract approved by Customer.

 

 

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4. TASKS AND SCHEDULE. The scope of work under this Agreement is to provide expertise, labor, equipment, materials and all other resources necessary to assist Hoku in the delivery of the Power Plants to Customer. The tasking under this Agreement shall be as listed in Attachment A, Statement of Work. The scheduled delivery date for each deliverable set forth in the Statement of Work shall be as set forth on Attachment B, Master Program Schedule. Additional tasking under this Agreement, if required by Hoku, shall be directed through authorized purchase orders (PO) from Hoku to IdaTech, subject to the terms and conditions hereunder. Work performed by IdaTech shall be in accordance with the Statement of Work set forth in the pertinent PO. Deliverables shall be addressed to Hoku’s Chief Technology Officer, and shall be FOB Destination. In accordance with the Statement of Work, IdaTech shall not commence work on a Phase identified therein until all deliverables under the prior Phase have been accepted by Hoku, or upon receipt of written notice from Hoku to commence work on the next Phase.

 

5. SUBCONTRACT TYPE AND VALUE. This is a Firm Fixed Price subcontract with an initial value of $[ * ]. The value of Option 1, if exercised by the Customer in its sole discretion, is $[ * ]; and the value of Option 2, if exercised by the Customer in its sole and absolute discretion, is $[ * ]. Individual PO’s will be issued against this Agreement and shall act as the funding document(s). Payments shall be made upon the submission of invoices for deliverables accepted by Hoku pursuant to Section 8.

 

6. INVOICES. When deliverables set forth in the Statement of Work are approved by Hoku, IdaTech shall submit invoices to Hoku, Attention: VP Business Development. The invoice must identify the milestone and/or deliverables met. The invoice should cite the particular PO number.

 

7. PAYMENT SCHEDULE. Subsequent to Hoku’s receipt of the invoice and acceptance of deliverables in accordance with Section 8 herein, Hoku shall pay IdaTech within [ * ] days of receipt of the approved invoice.

 

8. INSPECTION AND ACCEPTANCE. IdaTech shall grant to Hoku or the Customer quality control access to IdaTech’s plant or manufacturing facilities, including the freedom to witness and audit all phases of services provided to Hoku. The failure of Hoku to inspect the services shall not be deemed to constitute acceptance of any services that do not conform to the specifications, or to waive any of Hoku’s rights or remedies arising by virtue of such defects or non-conformance. If any goods are found to be defective or otherwise not in conformity with the requirements of the Statement of Work or each issued PO, as the case may be, Hoku may, in addition to its other rights and remedies, reject such goods and require their prompt correction or their replacement at IdaTech’s expense, including shipping and packaging charges.

 

9. TECHNICAL DATA AND INFORMATION (NAVAIR) (FEB 1995) (DFARS § 5252.247-9505) Technical Data and Information shall be delivered directly to Hoku, attention Chief Technology Officer, in accordance with the requirements of the Contract Data Requirements List, DD Form 1423, Attachment C, attached hereto, except as noted below, and the following:

 

(a) IdaTech shall not deliver the Technical Data and Information directly to the Customer without the prior written authorization of Hoku.

 

(b) Partial delivery of data is not acceptable unless specifically authorized on the DD Form 1423, or unless approved in writing by Hoku.

 

(c) The Customer review period provided on the DD Form 1423 for each item commences upon receipt of all required data by the technical activity designated in Block 6.

 

 

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(d) A copy of all other correspondence addressed to Hoku relating to data item requirements (i.e., status of delivery) shall also be provided to the codes reflected above and the technical activity responsible for the data item per Block 6, if not one of the activities listed above.

 

(e) Hoku reserves the right to issue unilateral modifications to change the destination codes and addresses for all technical data and information at no additional cost to Hoku.

 

(f) Unless otherwise specified in writing, rejected data items shall be resubmitted within thirty (30) days after receipt of notice of rejection.

 

(g) DID DI-MCCR-81344 – Design Specification: IdaTech will provide a design specification for the deliverable fuel cell power plant. Industry proprietary data will not be included in the specification. A statement of the security policy is not applicable to this project as there are no components of the project that are subject to security classification. The TCB is not applicable to this project. The intent of the Design Specification will be met as described by the DID (i.e. format of the system-level specification will comply with Section 10.2.

 

(h) DID DI-CMAN-80776 – Technical Data Package. IdaTech will provide a Technical Data Package in the form of a Preliminary Design Review package, and a Final Design Review package. The TDP will apply to the system-level fuel cell power plant, and will include only product drawings consistent with the intent of the DID. Section 10.2 a, c, d, e, f, and g do not apply to this acquisition.

 

(i) DID DI-NTDI-80566 – Test Plan. The Test Plan will apply to the deliverable system-level fuel cell system Factory Acceptance Test (FAT). The FAT will include test components associated with the performance of the fuel cell system, and any associated Human Factors components (e.g. operator and system safety requirements). The Flow Diagram (Section 10.3.3), and Special Tests (Section 10.3.9.4), Special test equipment (Section 10.3.9.9), Government test facilities (Section 10.3.9.13) are not applicable to this project.

 

(j) DID DI-NTDI-80809B – Test/Inspection Report. The Test/Inspection Report will apply the deliverable system-level fuel cell system FAT. Security classification does not apply. National stock number and Production item specification do not apply to this project, as the fuel cell system is a developmental item.

 

(k) DID DI-MISC-80508A – Technical Report – Study Services. Key studies regarding the fuel cell system MEA and/or fuel cell power module will be reported in accordance with this DID. All other components of the fuel cell system are COTS designated. Security classification does not apply to this DID.

 

(l) DID DI-ILSS-81225 – Maintenance Support Plan. The minimum life cycle cost (LCC) is not applicable to this project, as the fuel cell system is a development item. The criteria for repair, Section 10.2 Part b, applies to the fuel cell system repair level only. BDAR, BIT, BITE, testability, reliability, maintainability, nuclear hardening, support equipment requirements, manpower skills and facility requirements do not apply to this fuel cell system (reference Section 10.2, part B). Section 10.2, Parts g, h, i, j, k, and l do not apply to this project.

 

(m) If the Options are exercised, Technical Data and Information shall be delivered in accordance with the requirements of the Contract Data Requirements List, DD Form 1423, Attachment D, attached hereto, except as noted above.

 

 

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10. CHANGES. Changes or modifications to this Agreement, within the general scope of this Agreement, may occur, as mutually agreed upon by both parties and authorized in writing by an officer of Hoku and IdaTech. If any authorized change causes an increase or decrease in the price, or the time required for performance of any part of the work under this Agreement, Hoku shall make an equitable adjustment in the (1) price, (2) delivery schedule, and/or (3) other affected terms, and shall modify this Agreement accordingly.

 

11. NOTICE OF DELAYS. In the event IdaTech encounters difficulty in meeting performance requirements, or anticipates difficulty in complying with the delivery schedules or completion dates, or if IdaTech has knowledge that any actual or potential situation is delaying or threatens to delay the timely performance of this Agreement, IdaTech shall notify Hoku immediately, in writing, identifying what work may be delayed and for how long, the corrective action that will be taken to prevent further delays, and the proposed new delivery schedule or completion date; provided, however, that such notice shall be informational only in character and shall not be construed as a waiver by Hoku of any delivery schedule or completion date, material breach, or any rights or remedies provided by law or under this Agreement.

 

12. DISALLOWANCE OF PAYMENT. If any amount paid by Hoku to IdaTech is disallowed under the Prime Contract, or if Hoku is required, due to any action by Customer, to refund or credit to Customer any amount with respect to a cost item which Hoku has paid IdaTech, IdaTech shall, upon receipt of written notice from Hoku, promptly repay Hoku the disallowed amount; provided, however, if Hoku shall recover any disallowed amount, or any part thereof, Hoku shall reimburse such amount to IdaTech. This provision is not applicable if the basis for the disallowance is determined to be solely related to the performance of Hoku’s membrane electrode assembly. If such disallowance affects both parties, Hoku and IdaTech shall jointly determine whether such disallowance shall be appealed as an allowable cost under the Prime Contract. In the event Hoku and IdaTech jointly decide to file such appeal, IdaTech shall reasonably assist and cooperate with Hoku by furnishing all materials in IdaTech’s possession and requested by Hoku in seeking a reversal of the disallowance. Each party shall pay their respective legal and other expenses related to such appeal. In the event such disallowance does not affect Hoku, Hoku shall notify IdaTech in writing.

 

13. PROPRIETARY INFORMATION. The Parties acknowledge that they are bound by the terms of a Confidentiality Agreement dated as of December 9, 2002 (the “Confidentiality Agreement”), and that all communications between the Parties in connection with this Agreement shall be subject to the terms of the Confidentiality Agreement.

 

14. PRODUCT OWNERSHIP. Hoku shall retain all rights, privileges, title and interest in and to all products, work products and reports pursuant to this Agreement, and shall flow to Customer the appropriate rights to the work products and reports, based upon the Prime Contract. Notwithstanding the foregoing, Hoku does not acquire any right, title or interest in the patents, trademarks, copyrights or other intellectual property rights of IdaTech pursuant to this Agreement. IdaTech, as recipient of Hoku’s proprietary membrane and membrane electrode assemblies pursuant to this Agreement, does not acquire any right, title or interest in such products. All Hoku products delivered to IdaTech shall be used solely for the purposes of this Agreement. Any Hoku products not incorporated into a Power Plant pursuant to this Agreement shall be returned to Hoku immediately upon Hoku’s request to IdaTech.

 

15. NO ANALYSIS. IdaTech agrees not to make or have made any analysis, observation of the chemical composition and/or physical characteristics or to perform any experiment on any Hoku products, except as provided in the Statement of Work.

 

 

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16. TERMINATION.

 

(a) For cause. If any work performed is deemed unacceptable by Hoku due to IdaTech fault, whether by commission or omission, Hoku shall notify IdaTech, in writing, identifying the deficiencies. IdaTech shall correct such deficiencies within a reasonable period mutually agreed by the parties, but not to exceed ninety (90) days from the date of such notice. If IdaTech fails to correct such deficiencies within such period, Hoku may terminate this Agreement immediately and shall be released from any further obligation to IdaTech.

 

(b) Upon termination of Prime Contract. This Agreement shall be terminated immediately upon any termination of the Prime Contract by the Customer. IdaTech shall submit to Hoku a report on the work accomplished up to the date of termination. Payment for costs incurred up until the date of termination shall be made to IdaTech within ninety (90) days of the termination date; provided, however that if Hoku receives payment from the Customer prior to the end of such 90-day period after the termination date for work performed by IdaTech, then Hoku shall remit such payment to IdaTech within 20 days of receipt of same from the Customer.

 

17. STOP-WORK ORDERS.

 

(a) Hoku may, at any time, by written order to IdaTech, require IdaTech to stop all, or any part, of the work called for by this Agreement for a period of 90 days after the order is delivered to IdaTech, and for any further period to which the parties may agree. The order shall be specifically identified as a stop-work order issued under this clause. Upon receipt of the order, IdaTech shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop-work is delivered to IdaTech, or within any extension of that period to which the parties shall have agreed, Hoku shall either—

 

(1) Cancel the stop-work order; or

 

(2) Terminate the work covered by the order as provided in Section 16 of this Agreement.

 

(b) If a stop-work order issued under this clause is canceled or the period of the order or any extension thereof expires, IdaTech shall resume work. Hoku shall make an equitable adjustment in the delivery schedule or Agreement price, or both as mutually agreed upon by the parties, and the Agreement shall be modified, in writing, accordingly, if—

 

(1) The stop-work order results in an increase in the time required for, or in IdaTech’s cost properly allocable to, the performance of any part of this Agreement; and

 

(2) IdaTech asserts its right to the adjustment within thirty (30) days after the end of the period of work stoppage; provided, that, if Hoku decides the facts justify the action, Hoku may receive and act upon the claim within thirty (30) days of the assertion submitted at any time before final payment under this contract.

 

(c) If a stop-work order is not canceled and the work covered by the order is terminated by Hoku pursuant to Section 16(b), Hoku shall allow reasonable costs resulting from the stop-work order in arriving at the termination settlement.

 

(d) If a stop-work order is not canceled and the work covered by the order is terminated for cause, Hoku shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the stop-work order.

 

 

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18. Co-Branding. The Prototype and each Power Plant shall be branded with the names, product logos and/or trademarks of both Hoku and IdaTech, subject to the concurrence of the Parties regarding the final location and size of the brands.

 

19. [Reserved.]

 

20. REMEDIES. All remedies available to either party for breach of this Agreement by the other party are and shall be deemed cumulative and may be exercised separately or concurrently. The exercise of a remedy shall not be an election of such remedy to the exclusion of other remedies available at law or in equity.

 

21. INDEMNIFICATION. Each party shall defend, indemnify and hold harmless the other party from any penalty, liability, damage, expense, or forfeiture, including court costs and reasonable attorney’s fees (“Additional Expense”), in the event such party incurs any Additional Expense due to the other party’s material breach of this Agreement. Both parties shall defend, indemnify and hold harmless the other party from any and all liability, claims, and expenses of whatever kind and nature for injury to or death of any person or persons and for loss of or damage to any property occurring in connection with or in any way incident to or arising out of either party’s occupancy, use, operation, or performance of work hereunder, resulting in whole or in part from the acts or omissions of either party or its Personnel. Nothing in this Section shall preclude either party or Customer from receiving the benefits of the other party’s insurance which provides indemnification for any loss of or damage to such party or Customer property in the custody and/or care of the other party. Neither party shall do anything to prejudice any right of recovery by the other party or Customer against third parties for any loss of or damage to such party’s or Customer’s property. Each party shall furnish to the other party and Customer all reasonable assistance and cooperation in obtaining such recovery, including but not limited to the prosecution of a suit and the execution of instruments of assignment in favor of such party or Customer.

 

22. DISPUTES. This Section shall not be construed as granting privity of contract between IdaTech and Customer. IdaTech has no right to directly appeal adverse decisions of the government contracting officer (“Contracting Officer”) identified in the Prime Contract. Pending final determination of any dispute hereunder, IdaTech agrees to proceed diligently with the performance of this Agreement and shall not delay the progress or completion of the work performed hereunder.

 

(a) Appeal of Contracting Officer Decision. If the Contracting Officer issues a decision affecting any question, claim or dispute regarding this Agreement, such decision shall be conclusive and binding on both parties. However, if the Disputes clause of the Prime Contract provides a right of appeal from the Contracting Officer’s decision, Hoku may file an appeal on behalf of IdaTech with the associated expense to paid as agreed upon by the Parties. IdaTech shall cooperate with Hoku on matters concerning such appeal and shall furnish to Hoku any requested documents, statements, and/or witnesses. Hoku reserves the right to terminate immediately such appeal if IdaTech fails to provide such documents, statements or witnesses, whereupon IdaTech shall be conclusively bound by the decision of the Contracting Officer, and the rights and liabilities of IdaTech shall be governed accordingly.

 

(b) Appeal of Board Decision. If the Board of Contract Appeals (“Board”) issues a decision affecting any question, claim or dispute with respect to this Agreement, such decision shall be conclusive and binding on both parties, provided however, the parties may invoke available judicial review of such decision in any court of competent jurisdiction.

 

(c) Dispute between Hoku and IdaTech. In the event the Contracting Officer or the Board has no jurisdiction over the question, claim or dispute between the parties, such question, claim or dispute shall be settled by mutual agreement of the parties. If an agreement is not reached within a

 

 

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reasonable time, either party may pursue any right or remedy available at law or in equity in any court of competent jurisdiction.

 

23. ASSIGNMENT. IdaTech shall not assign or otherwise transfer this Agreement or any rights, duties or obligations under this Agreement (including any transfer or assignment by operation of law) without the prior written consent of Hoku. The obligations of IdaTech shall not terminate upon any assignment attempted without such prior written consent.

 

24. WAIVER. Any delay or failure by either party to insist upon strict performance of any obligation hereunder or exercise any right or remedy provided hereunder shall not be a waiver of such party’s right to demand strict compliance in the future, irrespective of the length of time for which such delay or failure continues. No term or condition of this Agreement shall be waived and no breach excused unless such waiver or excuse of a breach has been put in writing and signed by the party claimed to have waived or excused. No consent or waiver to or of any right, remedy or breach shall constitute a consent or waiver to or of any other right, remedy or breach in the performance of the same or any other obligation hereunder.

 

25. NOTICES. Unless otherwise specified herein, all notices, requests, or consents required under this Agreement to be given in writing shall be hand delivered or mailed, first class, postage prepaid to the person indicated below, unless either party shall notify the other, in writing, of a change in the addressee:

 

 

26. CORRESPONDENCE WITH CUSTOMER. Hoku shall be responsible for direct correspondence with Customer pertaining to this Agreement and work performed hereunder. Except where this Agreement or applicable law specifically requires IdaTech to communicate directly with the Customer, no correspondence shall be submitted by IdaTech to Customer without the prior written consent of Hoku. IdaTech shall provide copies to Hoku of all permissible written communications between IdaTech and the Customer.

 

27. PUBLICITY. Any scientific publications, manuscripts, proceedings, abstracts, news release, public announcement, advertisement, or publicity to be released by either party concerning its efforts or performance under this Agreement shall give full consideration to the role and contribution of the other party. IdaTech shall obtain the prior written concurrence of Hoku before releasing such publicity.

 

28. INDEPENDENT PARTIES. This Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, partnership or business organization of any kind. Hoku and IdaTech are independent parties and neither shall act as an agent for or partner of the other for any purpose, and the employees of one shall not be deemed the employees of the other. Any work, not included in this Agreement, being independently performed for Customer by either party shall remain as such.

 

 

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29. COMMITMENTS. Nothing in this Agreement shall grant to either party any right to make commitments of any kind for or on behalf of the other without prior written consent of the other party.

 

30. SEVERABILITY. If any term or condition of this Agreement or the application thereof to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such remaining terms or conditions to the party or circumstances, other than those as to which it is so determined to be invalid or unenforceable, shall not be affected thereby, and each remaining term and condition hereof shall be valid and enforced to the fullest extent permitted by law. In the event such determination prevents the accomplishment of the purpose of this Agreement, the invalid provision shall be restated to conform with applicable law and to reflect as nearly as possible the original intention of the parties.

 

31. HEADINGS. The headings used in this Agreement are merely for reference and impose no obligation nor have any substantive significance.

 

32. GOVERNING LAW AND VENUE. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the law of U.S. Government contracts as set forth by statute and applicable regulations and decisions by the appropriate courts and the Board of Contract Appeals. To the extent that the law referred to in the foregoing sentence is not determinative of an issue arising out of the clauses of this Agreement, recourse shall be to the laws of the State of Hawaii, without reference to the principles of conflict of laws. Suit under this Agreement shall only be brought in a court of competent jurisdiction in the State of Hawaii.

 

33. SUBCONTRACTOR ELIGIBILITY. IdaTech represents and certifies, to Hoku, upon executing this Agreement, that IdaTech is eligible to perform government contracts and IdaTech shall not take any action or fail to take appropriate action, when necessary, which would jeopardize its eligibility. In the event IdaTech should become ineligible to perform under this Agreement or the Prime Contract, IdaTech shall immediately notify Hoku, in writing, of such ineligibility.

 

34. DEFINITIONS. Terms not otherwise defined herein shall have the meaning set forth in the Federal Acquisition Regulation (“FAR”) or the Defense Federal Acquisition Regulation Supplement (“DFARS”), as applicable, issued by the General Services Administration, Department of Defense.

 

35. RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1995) [FAR § 52.203-6]

 

(a) Except as provided in (b) of this clause, IdaTech shall not enter into any agreement with an actual or prospective subcontractor, nor otherwise act in any manner, which has or may have the effect of restricting sales by such subcontractors directly to the Government of any item or process (including computer software) made or furnished by the subcontractor under this Agreement or under any follow-on production contract.

 

(b) The prohibition in (a) of this clause does not preclude IdaTech from asserting rights that are otherwise authorized by law or regulation.

 

(c) IdaTech agrees to incorporate the substance of this clause, including this paragraph (c), in all subcontracts under this Agreement which exceed $100,000.

 

36. ANTI-KICKBACK PROCEDURES (JUL 1995) [FAR § 52.203-7]

 

(a) Definitions.

 

 

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“Kickback,” as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any contractor, or contractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract.

 

“Person,” as used in this clause, means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.

 

“Prime contractor” as used in this clause, means a person who has entered into a prime contract with the United States.

 

“Prime contractor employee,” as used in this clause, means any officer, partner, employee, or agent of a prime contractor.

 

“Subcontract,” as used in this clause, means a contract or contractual action entered into by a prime contractor or subcontractor for the purpose of obtaining supplies, materials, equipment, or services of any kind under a prime contract.

 

“Subcontractor,” as used in this clause, (1) means any person, other than the prime contractor, who offers to furnish or furnishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with such prime contract, and (2) includes any person who offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.

 

“Subcontractor employee,” as used in this clause, means any officer, partner, employee, or agent of a subcontractor.

 

(b) The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) (the Act), prohibits any person from—

 

(1) Providing or attempting to provide or offering to provide any kickback;

 

(2) Soliciting, accepting, or attempting to accept any kickback; or

 

(3) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime contractor to the United States or in the contract price charged by a subcontractor to a prime contractor or higher tier subcontractor.

 

(c)

 

(1) IdaTech shall have in place and follow reasonable procedures designed to prevent and detect possible violations described in paragraph (b) of this clause in its own operations and direct business relationships.

 

(2) When IdaTech has reasonable grounds to believe that a violation described in paragraph (b) of this clause may have occurred, IdaTech shall promptly report in writing the possible violation. Such reports shall be made to the inspector general of the contracting agency, the head of the contracting agency if the agency does not have an inspector general, or the Department of Justice.

 

(3) IdaTech shall cooperate fully with any Federal agency investigating a possible violation described in paragraph (b) of this clause.

 

 

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(4) The Contracting Officer may (i) offset the amount of the kickback against any monies owed by the United States under the prime contract and/or (ii) direct that the Prime contractor withhold from sums owed a subcontractor under the prime contract the amount of the kickback. The Contracting Officer may order that monies withheld under subdivision (c)(4)(ii) of this clause be paid over to the Government unless the Government has already offset those monies under subdivision (c)(4)(i) of this clause. In either case, the Prime contractor shall notify the Contracting Officer when the monies are withheld.

 

(5) IdaTech agrees to incorporate the substance of this clause, including paragraph (c)(5) but excepting paragraph (c)(1), in all subcontracts under this Agreement which exceed $100,000.

 

37. CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (APR 1991) [FAR § 52.203-11]

 

(a) The definitions and prohibitions contained in Section 38 below, are hereby incorporated by reference in paragraph (b) of this Section 37.

 

(b) IdaTech, by signing this Agreement, hereby certifies to the best of its knowledge and belief that on or after December 23, 1989—

 

(1) No Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement;

 

(2) If any funds other than Federal appropriated funds (including profit or fee received under a covered Federal transaction) have been paid, or will be paid, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on its behalf in connection with this Agreement, IdaTech shall complete and submit, with this Agreement, OMB standard form LLL, Disclosure of Lobbying Activities, to the Contracting Officer; and

 

(3) IdaTech will include the language of this certification in all subcontract awards at any tier and require that all recipients of subcontract awards in excess of $100,000 shall certify and disclose accordingly.

 

(c) Submission of this certification and disclosure is a prerequisite for making or entering into this Agreement imposed by section 1352, title 31, United States Code. Any person who makes an expenditure prohibited under this provision or who fails to file or amend the disclosure form to be filed or amended by this provision, shall be subject to a civil penalty of not less than $10,000, and not more than $100,000, for each such failure.

 

38. LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JUNE 2003) [FAR § 52.203-12]

 

(a) Definitions.

 

 

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[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

 

“Agency,” as used in this Section 38, means executive agency as defined in FAR Section 2.101.

 

“Covered Federal action,” as used in this Section 38, means any of the following Federal actions:

 

(1) The awarding of any Federal contract.

 

(2) The making of any Federal grant.

 

(3) The making of any Federal loan.

 

(4) The entering into of any cooperative agreement.

 

(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

 

“Indian tribe” and “tribal organization,” as used in this Section 38, have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B) and include Alaskan Natives.

 

“Influencing or attempting to influence,” as used in this Section 38, means making, with the intent to influence, any communication to or appearance before an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal action.

 

“Local government,” as used in this Section 38, means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government.

 

“Officer or employee of an agency,” as used in this Section 38, includes the following individuals who are employed by an agency:

 

(6) An individual who is appointed to a position in the Government under Title 5, United States Code, including a position under a temporary appointment.

 

(7) A member of the uniformed services, as defined in subsection 101(3), Title 37, United States Code.

 

(8) A special Government employee, as defined in section 202, Title 18, United States Code.

 

(9) An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, Title 5, United States Code, appendix 2.

 

“Person,” as used in this Section 38, means an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit, or not for profit. This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

 

 

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[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

 

“Reasonable compensation,” as used in this Section 38, means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government.

 

“Reasonable payment,” as used in this Section 38, means, with respect to professional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector.

 

“Recipient,” as used in this Section 38, includes IdaTech and all of its subcontractors. This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

 

“Regularly employed,” as used in this Section 38, means, with respect to an officer or employee of a person requesting or receiving a Federal contract, an officer or employee who is employed by such person for at least 130 working days within 1 year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract. An officer or employee who is employed by such person for less than 130 working days within 1 year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days.

 

“State,” as used in this Section 38, means a State of the United States, the District of Columbia, or an outlying area of the United States, an agency or instrumentality of a State, and multi-State, regional, or interstate entity having governmental duties and powers.

 

(b) Prohibitions.

 

(1) Section 1352 of Title 31, United States Code, among other things, prohibits a recipient of a Federal contract, grant, loan, or cooperative agreement from using appropriated funds to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following co