<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Munsingwear, Inc.
- -------------------------------------------------------------------------------
(NAME OF ISSUER)
Common Stock, $0.01 par value
- -------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
626320204
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(CUSIP NUMBER)
William J. Morgan
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, Ohio 45236
(513) 985-3200
- -------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
January 9, 1996
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ X ].
Check the following box if a fee is being paid with this statement [ X ].
<PAGE> 2
<TABLE>
<S> <C> <C> <C> <C>
CUSIP NO. 62632024 13D PAGE 2 OF PAGES
----------- ----------
- ----------------------------------------------------------------------------------------------------------------------------------
| 1 | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS |
| | |
| | Pacholder Associates, Inc. |
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| | |
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] |
| | (b) [ ] |
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| 3 | SEC USE ONLY |
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| 4 | SOURCE OF FUNDS* |
| | |
| | Inapplicable - Investment Advisor |
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| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |
| | TO ITEM 2(d) or 2(e) [ ] |
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| | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | State of Ohio |
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| | | |
| | 7 | SOLE VOTING POWER |
| | | |
| NUMBER OF | | 250,000 |
| SHARES |---------------------------------------------------------------------------------------------------------|
| BENEFICIALLY | 8 | SHARED VOTING POWER |
| OWNED BY | | |
| EACH | | -0- |
| REPORTING |---------------------------------------------------------------------------------------------------------|
| PERSON WITH | | |
| | 9 | SOLE DISPOSITIVE POWER |
| | | |
| | | 250,000 |
| |---------------------------------------------------------------------------------------------------------|
| | 10 | SHARED DISPOSITIVE POWER |
| | | |
| | | -0- |
- ----------------------------------------------------------------------------------------------------------------------------------
|11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 250,000 |
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|12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES |
| | CERTAIN SHARES* |
- ----------------------------------------------------------------------------------------------------------------------------------
|13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 12.10% |
- ----------------------------------------------------------------------------------------------------------------------------------
|14 | TYPE OF REPORTING PERSON* |
| | |
| | IA,CO |
| | |
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<FN>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</FN>
</TABLE>
327160.1
<PAGE> 3
This Schedule 13-D is filed by Pacholder Associates, Inc. ("PAI").
PAI previously filed a Schedule 13-G related to this investment on May 19,
1995.
Item 1. Security and Issuer
- ----------------------------
This Schedule 13-D relates to the common stock of Munsingwear, Inc.
(the "Company"), par value $0.01 per share. The address of the Company's
principal executive offices is 8000 West 78th Street, Minneapolis, Minnesota
55439
Item 2. Identity and Background
- --------------------------------
(a, b, c, f) PAI is a corporation organized under the laws of the
State of Ohio. It is a registered investment advisor. Its business address is
8044 Montgomery Road, Suite 382, Cincinnati, Ohio 45236. The names and
addresses of the directors and officers of PAI are set forth in the attached as
Exhibit A.
Pursuant to a contract dated April 13, 1994 between PAI and the
Pension Benefit Guaranty Corporation ("PBGC") a wholly owned United States
Government Corporation, attached as Exhibit B, PAI has full and complete
discretion for the investment in the Company, as well as voting the shares.
However, under the terms of the agreement the PBGC has the ability to terminate
this contract at its discretion.
(d) During the last five years neither PAI, nor any of its officers
and directors have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years neither PAI, nor any of its officers
and directors were a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree, or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
Item 3. Source and Amounts of Funds and Other Consideration
- ------------------------------------------------------------
See Item 4.
<PAGE> 4
Item 4. Purpose of Transaction
- -------------------------------
Since April 1, 1994, PAI has acted as financial advisor to the PBGC in
the voting, acquisition or sale of securities of the Company. The PBGC
obtained 250,000 shares of the Company in exchange for pre-petition claims held
by the PBGC in the Company, pursuant to the Plan of Reorganization filed by the
Company and approved by the Bankruptcy Court in September, 1991.
As financial advisor to the PBGC, PAI is considering various methods
by which the value of the shares it manages could be enhanced. PAI will meet
with management of the Company or other significant shareholders concerning
such matters. Any determination by PAI to take any of the actions listed in
sub (a) - (j) below will be based on various factors, including but not limited
to, the Company's financial condition, business and prospects, other
developments concerning the Company, price levels of the Company's common
stock, other opportunities available to the PBGC, general economic, monetary
and stock market conditions, and other applicable business and legal
considerations.
PAI has determined to seek representation on the Board of Directors of
the Company and to that end will meet with management of the Company, other
directors or significant shareholders as PAI deems appropriate in pursuing that
objective.
Except as set forth above, PAI has no plans or proposals which relate
to or would result in any of the following:
(a) The acquisition of securities or the disposition of securities of
the Company;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition or
control of the issuer by any person;
<PAGE> 5
(h) Causing a class of securities to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Company
- ----------------------------------------------
(a) Pursuant to the contract between the PBGC and PAI, PAI
beneficially owns, 250,000 shares, or 12.10% of all issued and outstanding
shares.
(b) As long as the contract between the PBGC and PAI is in effect,
PAI has the power to vote and dispose of all 250,000 shares held by the PBGC.
(c) None.
(d) The PBGC.
(e) Not applicable
.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
- ------------------------------------------------------------------------------
to Securities of the Issuer
- ---------------------------
Information respective to Item 6 is set forth in Item 2 above.
Item 7. Material to be Filed as Exhibits
- -----------------------------------------
<TABLE>
<CAPTION>
Exhibit Number Title of Document
------- ------ ----- -- --------
<S> <C>
A. Names and addresses of officers and
directors of PAI.
B. Contract between the PBGC and PAI.
</TABLE>
<PAGE> 6
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Pacholder Associates, Inc.
January 10, 1996
----------------------------
Date
/s/ William J. Morgan
----------------------------
Signature
President
----------------------------
Title
<PAGE> 7
EXHIBIT A
---------
Dr. Asher O. Pacholder
Chairman of the Board and Director
c/o ICO, Inc.
100 Glenborough Dr., Suite 250
Houston, TX 77067
Mr. William J. Morgan
President and Director
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. James P. Shanahan, Jr.
Executive Vice President
and General Counsel
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Thomas M. Barnhart II
Senior Vice President
and Associate General Counsel
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Robert C. Amenta
Senior Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Anthony L. Longi, Jr.
Executive Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. James E. Gibson
Senior Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
<PAGE> 8
Ms. Robin E. Pacholder
Senior Vice President
and Associates General Counsel
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Bradley L. Lutz
Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Michael J. Bennett
Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Ms. Virginia A. Miller
Assistant Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Nickolas J. Sakelos
Assistant Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Bernard M. Casey
Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
Mr. Mark H. Prenger
Assistant Vice President
Pacholder Associates, Inc.
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236
<PAGE> 9
EXHIBIT B
<TABLE>
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
1. THIS CONTRACT IS A RATED ORDER RATING PAGE OF PAGES
AWARD/CONTRACT
UNDER DPAS (15CFR350) 1 2
- -----------------------------------------------------------------------------------------------------------------------------------
2. CONTRACT (Proc. Inst. Ident.) No. 3. EFFECTIVE DATE 4. REQUISITION/PURCHASE/PROJECT NO.
PBGCJ40436 4/1/94 PBGC01-CF4001
- -----------------------------------------------------------------------------------------------------------------------------------
5. ISSUED BY: CODE 35000 6. ADMINISTERED BY (If other than Item 5) CODE 34400
PENSION BENEFIT GUARANTY CORPORATION PENSION BENEFIT GUARANTY CORPORATION
FINANCIAL OPERATIONS DEPARTMENT CONTROLLER OPERATIONS DIVISION
1200 K STREET, N.W., SUITE 610 1200 K STREET, N.W., SUITE 640
WASHINGTON, DC 20005-4026 WASHINGTON, DC 20005-4026
MARILYN SILVERMAN CO2
202-326-4160
- -----------------------------------------------------------------------------------------------------------------------------------
7. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, Vendor ID: 00002760 8. DELIVERY
State and ZIP Code)
[ ]FOB ORIGIN [x]OTHER (See below)
Mr. William J. Morgan CEC:
Pacholder Associates, Inc. Cage Code: 9. DISCOUNT FOR PROMPT PAYMENT
Towers of Kenwood Tax ID#:
00.000% 00 Net 000
8044 Montgomery Road, Suite 382
Cincinnati, OH 45236 0. SUBMIT INVOICES ITEM
(4 copies unless otherwise
specified) TO THE ADDRESS
SHOWN IN: 12
CODE FACILITY CODE
- -----------------------------------------------------------------------------------------------------------------------------------
11. SHIP TO/MARK FOR CODE 33100 12. PAYMENT WILL BE MADE BY 33200
Pension Benefit Guaranty Corporation Pension Benefit Guaranty Corporation
Financial Operations Department Controller Operations Division
1200 K Street, N.W., Suite 610 1200 K Street, N.W., Suite 640
Washington, DC 20005-4026 Washington, DC 20005-4026
- -----------------------------------------------------------------------------------------------------------------------------------
13. AUTHORITY FOR USING OTHER HTAN FULLAND OPEN COMPETITION: 14. ACCOUNTING AND APPROPRIATION DATA
[ ] 10 U.S.C. 2304(c) ( ) [x] 41 U.S.C. 253(c) ( 10) 1-7-1100-1-33500-2512
- -----------------------------------------------------------------------------------------------------------------------------------
15A. ITEM NO. 15B. SUPPLIES/SERVICES 15C. QUANTITY 15D. UNIT PRICE 15E. UNIT 15F. AMOUNT
- -----------------------------------------------------------------------------------------------------------------------------------
Services, non-personal to provide
analytical and securities liquidation
expertise for special situation equity,
fixed income and partnership positions
which are assets of terminated and
PBGC-trusted pension plans.
- -----------------------------------------------------------------------------------------------------------------------------------
15G. TOTAL AMOUNT OF CONTRACT $300,000.00 NTE
- -----------------------------------------------------------------------------------------------------------------------------------
16. TABLE OF CONTENTS
- -----------------------------------------------------------------------------------------------------------------------------------
(X) SEC. DESCRIPTION PAGE(S) (X) SEC. DESCRIPTION PAGE(S)
- -----------------------------------------------------------------------------------------------------------------------------------
PART I - THE SCHEDULE PART II - CONTRACT CLAUSES
- -----------------------------------------------------------------------------------------------------------------------------------
X A SOLICITATION/CONTRACT FORM 1 X I CONTRACT CLAUSES
- -----------------------------------------------------------------------------------------------------------------------------------
X B SUPPLIES OR SERVICES AND PRICES/COSTS 1 PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACH.
- -----------------------------------------------------------------------------------------------------------------------------------
X C DESCRIPTION/SPECS./WORK STATEMENT J LIST OF ATTACHMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
D PACKAGING AND MARKING PART IV - REPRESENTATIONS AND INSTRUCTIONS
- -----------------------------------------------------------------------------------------------------------------------------------
X E INSPECTION AND ACCEPTANCE K REPRESENTATIONS, CERTIFICATIONS AND
OTHER STATEMENTS OF OFFERORS
- -----------------------------------------------------------------------------------------------------------------------------------
X F DELIVERIES OR PERFORMANCE
- -----------------------------------------------------------------------------------------------------------------------------------
X G CONTRACT ADMINISTRATION DATA L INTRS., CONDS., AND NOTICES OF
OFFERORS
- -----------------------------------------------------------------------------------------------------------------------------------
H SPECIAL CONTRACT REQUIREMENTS M EVALUATION FACTORS FOR AWARD
- -----------------------------------------------------------------------------------------------------------------------------------
CONTRACTING OFFICER WILL COMPLETE ITEM 17 OR 18 AS APPLICABLE
- -----------------------------------------------------------------------------------------------------------------------------------
17. [x] CONTRACTOR'S NEGOTIATED AGREEMENT (Contractor is
required to sign this document and return 3 copies to issuing 18. [ ] AWARD (Contractor is not required to sign this document.)
office.) Contractor agrees to furnish and deliver all items or Your offer on Solicitation Number , including the additions or
perform all the services set forth or otherwise identified changes made by you which additions or changes are set forth in
above and on any continuation sheets for the consideration full above, is hereby accepted as to the items listed above and on
stated herein. The rights and obligations of the parties to any continuation sheets. This award consummates the contract which
this contract shall be subject to and governed by the following consists of the following documents: (a) the Government's
documents: (a) this award/contract, (b) the solicitation, if solicitation and your offer, and (b) this award/contract. No
any, and (c) such provisions, representations, certifications, further contractual document is necessary.
and specifications, as are attached or incorporated by
reference herein. (Attachments are listed herein.)
- -----------------------------------------------------------------------------------------------------------------------------------
NAME AND TITLE OF SIGNER (Type or print) 20A. NAME OF CONTRACTING OFFICER
William J. Morgan, President Robert W. Herting A01
- -----------------------------------------------------------------------------------------------------------------------------------
19B. NAME OF CONTRACTOR 19C. DATE 20B. UNITED STATES OF AMERICA 20C. DATE SIGNED
SIGNED
BY BY _________________________________
----------------------------------------
(Signature of person authorized to sign) (Signature of Contracting Officer)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NSN 7540-01-152-8069 25-106STANDARD
FORM 26 (Rev. 4-85) PREVIOUS EDITION UNUSABLEPrescribed by GSA - FAR (48 CFR)
53.214(a) 327061.1
<PAGE> 10
SECTION B - Supplies or Services and Prices/Costs
The following fees are for the base year and each of the five (5)
option years:
A. Schedule of Fees:
<TABLE>
<CAPTION>
Hourly Rate
<S> <C>
1. Research, financial analysis
maintenance of asset
activities and administrative
duties as required -
Management $150.00
------------
Senior Staff $105.00
------------
Mid-Level Financial and/or $ 83.00
------------
Financial Research staff
Administrative and support $ 30.00
------------
Staff
Based on 2080 hours per annum
Basis Points on
Net Sale Proceeds *
2. Disposition of all or portions 40 BP
of assigned positions. -----------
<FN>
*Legal and miscellaneous fees associated with sales will be billed directly to
PBGC.
</FN>
</TABLE>
SECTION C - Description/Specification/Statement of Work
C.I Background
----------
Pension Benefit Guaranty Corporation (PBGC) is a U.S. Government
agency created under the Employee Retirement Income Security Act of 1974
(ERISA) to guarantee the defined pension benefits of insolvent companies with
underfunded plans. Liabilities and losses assumed by the Corporation are
unpredictable and are influenced by economic conditions and levels of interest
rates and securities markets.
PBGC maintains two separate investment funds. The first fund, the
Revolving Fund, (currently about $3.9 billion) receives all premium payments
and is invested solely in "book-entry" U.S. Government securities held at the
Treasury.
<PAGE> 11
- 2 -
The second fund, the Trust Fund, (approximately $3.0 billion) is
discretionary in nature. The Trust Fund, whose custodian is State Street Bank,
receives assets from terminated plans. Trust assets, which can be more
flexibly invested than Revolving Fund assets, include equities, debt
obligations, convertibles, derivatives and real estate.
The PBGC's investment policy is based upon the following objectives:
1. Minimize future premium levels and reduce the deficit by
achieving a competitive rate of return consistent with prudent
risk levels.
2. Constrain the impact on the deficit (surplus) arising from a
mismatch of assets against existing and contingent
liabilities.
3. Ensure that funds are available to meet pension payment
obligations.
Most of PBGC's assets are invested in high quality, fixed income
securities which are dollar duration matched with the Corporation's
liabilities. The balance is expected to add value through investment in both
active and indexed equities and a small portion in real estate.
C.II Statement of Work:
o MANAGER RESPONSIBILITIES:
The Special Situations Manager has the responsibility for accepting
certain pension plan assets which have been trusteed to the Pension Benefit
Guaranty Corporation (PBGC), pursuant to the authority of the Employees
Retirement Income Security Act of 1974, as amended (ERISA). These assets, by
their nature or because of regulatory constraints, are illiquid or difficult to
market. Examples of these positions could be: SEC 144 Stock; equity positions
with little or no trading activity; or, equity positions with trading
restrictions and/or limitations. The primary characteristic of these positions
would be the need for development of a "work out" strategy and the
implementation of a defined liquidation format or plan.
These positions, whether equity, fixed income, or partnership
interests, are not intended to be held as long term positions by the manager.
However, it is recognized that because of the illiquid nature of these
holdings, they may remain in the portfolio for extended periods of time (or to
maturity) if efforts to
<PAGE> 12
- 3 -
prudently market and liquidate the positions are not successful. In addition,
the liquidation proceeds generated from the successful sale of these positions
will not remain with the manager, but will be wire transferred to the PBGC
Custodian Bank immediately upon settlement. It is not intended that any
liquidation proceeds will be retained for the acquisition of new positions
selected by the manager or any other authorized PBGC personnel.
The manager will be in a fiduciary relationship with respect to the
assets assigned to it, and to the PBGC; will have full and complete discretion
with regard to the positions assigned and independent voting authority for
those positions for which proxy voting is required; and, be registered as an
Investment Advisor under the Investment Advisors Act of 1940. The manager will
be required to submit written confirmation of that registration to PBGC prior
to contract award.
The development of liquidation and marketing strategies will require
an extensive knowledge and understanding of securities laws and regulations;
securities marketing techniques; and, experience with institutional investment
companies, pension plans, and secondary markets. Further, the manager will be
required to maintain a close relationship with the Investment Management
Division staff, and primarily, the Contracting Officer's Technical
Representative (COTR) who will be identified in the contract Special
Provisions.
Within the scope of the contract, and in recognition of the increased
analytical and negotiation skills required by the large percentage ownership
positions of restricted or illiquid positions, certain specific assignments
will be required of the manager. These are:
o to locate and negotiate with management of issuing companies
or institutional investors for the purpose of liquidating
large equity or fixed income positions, which may be
restricted under Rule 144, or by PBGC Settlement Agreement;
o the preparation of specific strategies for the sale of
positions with small daily trading volumes, in instances
where, were the PBGC position marketed imprudently, the sale
would severely depress the PBGC trade price;
o to coordinate directly with legal counsel; transfer agents;
and, banks to assure the timely settlement of trades, without
the need for extensions or "buy ins", when the PBGC is unable
to deliver the liquidated position. These situations are more
likely to occur in
<PAGE> 13
- 4 -
liquidated ions associated with the equity and fixed income
positions assigned under this contract; but, may occur in
partnership interest transactions.
The manager may also be called upon to assist the PBGC staff in
negotiating employer liability settlements or to act as an expert on securities
valuation matters; and, to coordinate administrative and securities settlement
and delivery matters with the PBGC Custodian Bank. Certain periodic written
reports will also be required, as indicated in the Reports section of the
contract Special Provisions.
- -- MANAGER AGENCY AND PROXY VOTING AUTHORITY:
The incumbent will act as PBGC's agent in connection with the assets
assigned and will have full proxy voting discretion with respect to all assets
held by the PBGC, pursuant to plan termination and PBGC, pursuant to plan
termination and PBGC-trusteeship, that are not specifically held in the
portfolios of other PBGC money managers.
Pursuant to this proxy voting discretion, the manager will develop and
implement proxy policies and procedures which will be used during the
performance of the contract; and, develop a report format that will be used to
report to the PBGC on a quarterly basis.
The manager will discuss all specific company positions regarding its
proxy voting policies, such as social, environmental, or political matters,
which could affect their voting positions on proxy proposals. The manager may
be requested to explain votes which are inconsistent with managers general
policy.
At a minimum, the quarterly report shall include:
<TABLE>
<S> <C> <C> <C>
Company Proposal Management Manager Vote
Recommendation
------- -------- -------------- ------------
</TABLE>
This report shall be separate and distinct from the quarterly report
on the activity in the specific positions held by the manager. The manager may
be required, from time to time, to explain the basis for a particular vote.
C-III. Reporting Requirement
Reporting Requirements. The following written reports will be
prepared for receipt at Investment Management Division not later
<PAGE> 14
- 5 -
than the 10th day of the month or quarter required. Those reports are:
<TABLE>
<CAPTION>
Report Name Description To Be Submitted
----------- ----------- ---------------
<S> <C> <C>
1. Reconciliation To reconcile month-end market values Monthly
Report between the manager and the Custodian
Bank (as shown in Custodian Account
#3803).
2. Proxy Report The Manager shall submit Company Proxy Quarterly
Policy with the technical proposal and
shall advise, on a quarterly basis, any
deviations from that policy. The
Manager may be requested to support the
reasoning for a specific vote or votes.
3. Quarterly To advise PBGC of the activities Quarterly
Report associated with each position, by the
manager and the issuing Company, to
include marketing strategies; earnings
and market projections; and any other
pertinent information.
</TABLE>
** SAMPLE FORMATS WILL BE PROVIDED UPON REQUEST
SECTION E
INSPECTION AND ACCEPTANCE
E.1 52.252-1
SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (JUN 1988)
This solicitation incorporates on or more solicitation provision by
reference, with the same force and effect as if they were given in full text
available.
E.1 52.246-4
INSPECTION OF SERVICES--FIXED PRICE (FEB 1992)
<PAGE> 15
- 6 -
(Reference 46.304)
SECTION F
DELIVERIES OR PERFORMANCE
F.1 52.252-1
SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (JUN 1988)
This solicitation incorporates one or more solicitation provisions by
reference, with the same force and effect as if they were given in full text.
Upon request, the Contracting Officer will make their full text available.
F.2 52.212-13
STOP-WORK ORDER (AUG 1989)
(Reference 12.505)
F.3 52.212-15
GOVERNMENT DELAY OF WORK (APR 1984)
(Reference 12.505)
F.4 Period of Performance
---------------------
This contract shall extend from the date of award through September
30, 1994. There will be five (5) single one (1) year option periods to be
exercised at the discretion of PBGC.
F.5 Option to Extend the Term of the Contract
-----------------------------------------
This contract is renewable, at the option of the Government, by the
Contracting Officer giving written notice of renewal to the Contractor within
the period specified in the schedule, provided that the Contracting Officer
shall have given preliminary notice of the Government's intention to renew at
least sixty (60) days before this contract is to expire. (Such a preliminary
notice will not be deemed to commit the Government to renewals). If the
renewed shall be deemed to include this option provision. However, the total
duration of this contract, including the exercise of any options, under this
clause, shall not exceed six (6) years.
F.6 Contract Type
-------------
This contract shall be considered a fixed rate contract.
SECTION G - CONTRACT ADMINISTRATION DATA
G - 1. Payment Due Date
----------------
(a) Payments under this contract will be due on the 30th
calendar day after the later of:
<PAGE> 16
- 7 -
1. The date of actual receipt of a proper invoice in the office
designated to receive the invoice, or
2. The date the supplies or services are accepted by the
Government.
G - 2. Submission of Invoices and Method of Payment
--------------------------------------------
A monthly invoice shall be submitted in an original and (1) copy for
work performed hereunder to:
Pension Benefit Guaranty Corporation
Controller Operations Division/General
Accounting Branch - Suite 640
1200 K Street, N.W. Washington, D.C. 20005
To constitute a proper invoice, the invoice must include the
following information and/or attached documentation:
1. Name of the business concern and invoice
date.
2. Contract Number
3. Description, price, and quantity of property and
services actually performed or delivered, including
- Total charges for the reporting period.
- Expenditures and hours of effort expended by
individual during the reporting period.
- Cumulative expenditures and hours of effort
through the reporting period from inception
of contract.
4. Shipping and payment terms (if applicable).
For each invoice covering travel expenses incurred,
mileage records and copies of receipts from
actual transportation costs and accommodations shall
be included as supportive material for each invoice.
NOTE: PBGC authorization must be obtained prior to
incurring any travel expense for which the Contractor
request reimbursement (refer to section G-7).
<PAGE> 17
- 8 -
G - 3. Interest on Overdue Payments
----------------------------
A. The Prompt Payment Act, Public Law 97-177 (96
Stat. 85, 31 USC 1801) is applicable to
payments under this contract and requires the
payment to the contractor of interest on
overdue payments and improperly taken
discounts.
B. Determinations of interest due will be made
in accordance with the provisions of the
Prompt Payment Act and Office of Management
and Budget Circular A-125.
G - 4. "Order of Precedence (JANUARY 1986)
-----------------------------------
Any inconsistency in this solicitation or contract
shall be resolved by giving precedence in the
following order: (a) the Schedule (excluding the
specifications); (b) representations and other
instructions; (c) contract clauses; (d) other
documents, exhibits, and attachments; and (e) the
specifications. FAR 52.215-33"
G - 6. Incorporation of Contractor's Proposal
--------------------------------------
It is understood and agreed that the Contractor
shall, in meeting the requirements of this contract,
perform in accordance with his or her technical
proposal to the PBGC under Solicitation No. 93-12
dated as amended.
However, to the extent that any provisions of the
articles set forth herein are in conflict or
inconsistent with any provisions of said proposal,
the provisions of the articles of this contract shall
be controlling and shall supersede the provisions of
said proposals.
G - 6. Contract Administration
-----------------------
The Contracting Officer or his authorized
representative located at Pension Benefit Guaranty
Corporation, 1200 K Street, N.W. Suite 510,
Washington, D.C. 20005 will be the contract
administrator of the contract. Telephone:
(202)326-4160.
<PAGE> 18
- 9 -
G - 7. Travel and Per Diem
-------------------
A. Travel and Per Diem authorized under this
contract shall be reimbursed in
accordance with the Government Travel
Regulations currently in effect.
B. Travel requirements under this contract shall
be met using the most economical form of
transportation available. If economy class
transportation is not available, the request
for payment voucher must be submitted with
justification for use of higher class travel
indicating dates, times, and flight numbers.
All travel shall be scheduled sufficiently in
advance to take advantage of offered discount
rates, unless authorized by the Contracting
Officer.
C. The contractor may be reimbursed for the cost
of travel performed by its personnel in their
privately owned automobiles at the current
Government Travel Regulation mileage rate,
not to exceed the cost by the most direct
economy air route between the points so
traveled. If more than one person travels in
such automobiles, no additional charge will
be made by the contractor for such travel.
<PAGE> 19
- 10 -
G - 8. Contracting Officer's Technical Representative
----------------------------------------------
The Contracting Officer's Technical Representatives
(COTR) is Robert Perlstein. The COTR is authorized
to assist in monitoring the work under this contract.
The COTR is responsible for the technical
administration of the contract and technical liaison
with the contractor. The COTR IS NOT authorized to
change the scope of work or specifications as stated
in the contract, to make any commitments or otherwise
obligate the Government or authorize any changes
which affect the contract price, delivery schedule,
period of performance or other terms or conditions.
The Contracting Officer is the only individual who
can legally commit or obligate the Government for the
expenditure of public funds. The technical
administration of this contract shall not be
construed to authorize the revision of the terms and
conditions of this contract. Any such revision shall
be authorized in writing by the Contracting Officer.
The COTR is authorized to review and recommend approval of:
A. Technical matters not involving a change in scope, price,
terms and conditions of the contract
B. Progress reports
C. Inspection and acceptance of services and deliverable
products and
D. Invoices.
The COTR is not authorized to sign any contractual instruments or to direct any
action that results in a change in the scope, price, terms or condition of the
contract.
<PAGE> 20
- 11 -
G - 9. Key Personnel
-------------
The Corporation has identified the following individual as a "key member"(s) of
the Contractor's technical team who will be considered essential to the ongoing
conduct of the project and will assure consistent management control and
direction.
Pacholder Associates, Inc.
--------------------------
William J. Morgan Managing Director
Anthony L. Longi, Jr. Senior Vice President
Warbura, Pincus Counsellors, Inc.
---------------------------------
Elizabeth Dater Managing Director
Lynn Steppacher Martin Vice President
A. The personnel specified above will be considered to
be essential to the work being performed hereunder.
These key personnel shall be currently employed by
the contractor and NOT reassigned for the first six
months of this contract. Prior to removing any of
the specified individuals from performance of this
contract, the Contractor shall provide 30 days
advance notification to the Contracting officer and
shall submit justification (including proposed
resumes/substitutions) in sufficient detail to permit
evaluation of the impact on the Program. No
diversion shall be made by the Contractor without the
written consent of the Contracting Officer.
NOTE: PBGC reserves the right to review
resumes and to interview personnel as a result of
staffing changes.
B. GENERAL APPROVAL - All Contractor personnel assigned
to this contract will be subject to Government
review. Contractor personnel found unacceptable by
the Government at any time shall be removed from
performing under this contract as soon as possible
after notification. Such notification shall be
delivered, in writing, by the Contracting officer's
Technical Representative to the Contractor.
C. HOLIDAYS - The Contractor shall establish a standard
holiday schedule, for personnel performing
<PAGE> 21
- 12 -
under this contract, that exactly coincides
with the Government's schedule. Holidays peculiar to
or dynamically declared by the Government shall be
considered as holidays for Contractor personnel and
are not billable unless work is actually performed on
these days. No work will be performed by Contractor
personnel on Government holidays without prior
approval of the Contracting Officer's Technical
Representative. Work performed on holidays shall be
billable at the regular rate.
Government holidays are (1) New Year's Day, (2)
Martin Luther King, Jr. Day, (3) Washington's
Birthday, (4) Memorial Day, (5) 4th of July, (6)
Labor Day, (7) Columbus Day, (8) Veteran's Day, (9)
Thanksgiving Day and (10) Christmas Day.
<PAGE> 22
- 13 -
G-10. AGREEMENT FOR RESTRICTIONS AGAINST DISCLOSURE OF INFORMATION
------------------------------------------------------------
PURSUANT TO CONTRACT
--------------------
This Contract, by and between the Pension Benefit Guaranty Corporation
(PBGC) and PACHOLDER ASSOCIATES, INC. (the Contractor), shall be
effective as of the last date executed.
1. The PBGC is a wholly owned government corporation created
by the Employee Retirement Income Security Act of 1974,
29 U.S.C. Section 1001 et seq. (1990).
2. The Contractor is PACHOLDER ASSOCIATES, INC.
3. The PBGC desires to have the work to be performed
pursuant to contract number J-4-0436 to be conducted in
the strictest confidence.
NOW THEREFORE, it is hereby agreed by and between the parties as follows:
1. The Contractor agrees that it will take such measures as
are necessary to restrict access to plan records and any
information related to work to be performed pursuant to the
contract while such information is in its possession, to those
employees and/or subcontractors of the Contractor needing such
information to perform the work required thereunder, i.e., on
a "need-to-know" basis.
2. The Contractor agrees to keep the information contained in the
project and/or plan records furnished by the PBGC and as
modified and accumulated pursuant to work done in performance
of contract number J-4-0436 in the strictest confidence, said
information being the sole property of the PBGC. The
Contractor also agrees not to publish, reproduce or otherwise
divulge such information in whole or in part, in any manner or
form, nor to authorize or permit others to do so, taking such
reasonable measures as are necessary to restrict access to
such information, while in its possession, to those employees
and/or subcontractors needing such information to perform the
work required thereunder, i. e., on a "need-to-know" basis.
PBGC records shall be made available only at the discretion of
the PBGC and subject to any restriction under the Freedom of
Information Act 5 U.S.C. Sec. 552, as amended and the Privacy
Act, 5 U.S.C. Sec. 552a, as amended.
<PAGE> 23
- 14 -
Further, the Contractor shall notify the PBGC of the
transfer to subcontractors of any records. Notification shall
be prior to any such transfer. Upon completion of the
Contractor obligations, the Contractor shall return or destroy
all copies of data furnished by PBGC or created by the
Contractor and any subcontractor.
3. The Contractor agrees to immediately notify the PBGC, in
writing, in the event that the Contractor determines or has
reason to suspect a breach of any provision of this Agreement.
4. The Contractor agrees to immediately notify the PBGC in
writing, of any request received from any individual who is
not a party to this Agreement, for access to records
accumulated pursuant to Contract number J-4-0436. Those
requests will be directed to PBGC's Disclosure Officer for
processing under the provision of the Freedom of Information
Act. This paragraph does not apply to a request by an
individual for access to information contained in records
pertaining to that particular individual. However, if the
individual wants copies of the actual records pertaining to
him, he first must contact PBGC's Disclosure Officer
5. The Contractor agrees that it will not knowingly violate any
statutory or regulatory restrictions against the disclosure of
government records, including 5 U.S.C Sec. 552 a, as amended,
5 U.S.C. Sec. 552, as amended, 18 U.S.C. Sec 1905 and
implementing regulations. The Contractor also agrees that it
will take steps to ensure that any subcontractors will also
adhere to these restrictions.
6. The Contractor is bound by Section (m) of the Privacy Act, 5
U.S.C. Sec. 552a(m) and as such is considered under the act to
be an employee of the agency. Accordingly, the Contractor and
any of its employees are subject to the criminal penalties of
the Privacy Act, 5 U.S.C. Sec. 552a(i).
7. Contractor will designate and identify an individual who shall
be responsible for the notifications required under sections
2, 3 and 4 of this agreement and who shall receive all
appropriate responses from the Contract Officer's Technical
Representative or from PBGC's Disclosure Officer.
<PAGE> 24
- 15 -
SECTION I
CONTRACT CLAUSES
I.1 52.252-1
SOLICITATION PROVISIONS INCORPORATED BY REFERENCE (JUN 1988)
This solicitation incorporates one or more solicitation
provisions by reference, with the same force and effect as if they
were given in full text. Upon request, the Contracting Officer will
make their full text available.
I.2 52.000
PART 52 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES
(Reference)
I.3 52.202-1
DEFINITIONS (SEPT 1991)
(Reference 2.201)
I.4 52.203-1
OFFICIALS NOT TO BENEFIT (APR 1984)
(Reference 3.102-2
I.5 52,293-3
GRATUITIES (APR 1984)
(Reference 3.202)
I.6 52.203-5
COVENANT AGAINST CONTINGENT FEES (APR 1984)
(Reference 3.404)
I.7 52.203-6
RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1985)
(Reference 3.503-2)
I.8 52.203-7
RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1985)
I.9 52.203-10
PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER ACTIVITY (SEP 1990)
I.10 52.203-12
LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS (JAN
1990)
<PAGE> 25
- 16 -
I.11 52.203-13
PROCUREMENT INTEGRITY--SERVICE CONTRACTING (SEP 1990)
(Reference 3.104-10)
I.12 52.215-1
EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (FEB 1993)
(Reference 15.106-1)
I.13 52.215-2
AUDIT--NEGOTIATION (FEB 1993)
(Reference 15.106-2)
I.14 52.215-26
INTEGRITY OF UNIT PRICES (APR 1991)
(Reference 15.812-2)
I.15 52.215-27
TERMINATION OF DEFINED BENEFIT PENSION PLANS (SEP 1989)
(Reference 15.804-8)
I.16 52.215-33
ORDER OF PRECEDENCE (JAN 1986)
(Reference 15.406-3)
I.17 52.222-4
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT--OVERTIME COMPENSATION
I.18 52.222-18
RESERVED
(MAY 1992)
(Reference)
[input I.19 to I.27 rest of document scanned]
I.19 52.222-43
FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT--PRICE ADJUSTMENT
(MULTIPLE YEAR AND OPTION CONTRACTS) (MAY 1989) (Reference 22.1006)
I.20 52.223-6
DRUG-FREE WORKPLACE (JUL 1990)
(Reference 23.505)
I.21 52-227-14
RIGHTS IN DATA--GENERAL (JUN 1987)
(Reference 27.409)
I.22 52.229-3
<PAGE> 26
- 17 -
FEDERAL, STATE AND LOCAL TAXES (JAN 1991)
(Reference 29.401-3)
I.23 52.232-17
INTEREST (JAN 1991)
(Reference 32.617)
I.24 52.233-1
DISPUTES (DEC 1991)
(Reference 33.215)
I.25 52.237-2
PROTECTION OF GOVERNMENT BUILDINGS, EQUIPMENT, AND VEGETATION
(APR 1984) (Reference 37.110)
I.26 52.237-3
CONTINUITY OF SERVICE (JAN. 1991)
(Reference 37.110)
I.27 52.243-1 I
CHANGES--FIXED-PRICE (AUG 1987)--ALTERNATE I (APR 1984)
(Reference 43.205)
<PAGE> 27
- 18 -
I.28 52.245.2
GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS) (DEC 1989)
(Reference 45.106)
I.29 52.249-8
DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (APR 1984)
(Reference 49.504)
1.30 52.203-9
REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY. -MODIFICATION
(NOV 1990)
(a) Definitions. The definitions bet forth in FAR
3.104-4 are hereby incorporated in this clause.
(b) The Contractor agrees that it will execute the
certification set forth in paragraph (c) of this clause when requested
by the Contracting Officer in connection with the execution of any
modification of this contract.
(c) Certification. As required in paragraph (b) of this
clause, the officer or employee responsible for the modification
proposal shall execute the following certification:
CERTIFICATE OF PROCUREMENT INTEGRITY- -MODIFICATION
(NOV 1990)
(1) I, ________________________[Name of certifier] am the
officer or employee responsible for the preparation of this
modification proposal and hereby certify that, to the best of my
knowledge and belief, with the exception of any information described
in this certification, I have no information concerning a violation or
possible violation of subsection 27(a), (b), (d) or (f) of the Office
of Federal Procurement Policy Act, as amended+ (41 U.S.C. 423),
(hereinafter referred to as the Act"), as implemented in the FAR,
occurring during the conduct of this procurement ____________________
(contract and modification number),
(2) As required by subsection 27(e)(l)(B) of the Act, I
further certify that to the best of my knowledge and belief, each
officer, employee, agent, representative, and consultant of
_______________________[Name of Offeror] who has participated
personally and substantially in the preparation or submission of this
proposal has certified that he or she is familiar with, and will
comply with, the requirements of subsection 27(a) of the Act, as
implemented in the FAR, and will report immediately to me any
information concerning a violation or possible violation of
subsections 27(a), (b), (d), or (f) of the Act, as implemented in the
FAR, pertaining to this procurement.
(3) Violations or possible violations: (Continue on
plain bond paper if necessary and label Certificate of
<PAGE> 28
- 19 -
Procurement Integrity--Modification (Continuation Sheet), ENTER
"NONE" IF NONE EXISTS)
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
[Signature of the officer or employee responsible, for the
modification proposal and date]
______________________________________________________________
[Typed name of the officer or employee responsible for the
modification proposal]
+ Subsections 27(a), (b), and (d) are effective on December l,
1990. Subsection 27(f) is effective on June l, 1991. THIS
CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN AGENCY OF
THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT
CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER TITLE
18, UNITED STATES CODE, SECTION 1001.
(d) In making the certification in paragraph (2) of the
certificate, the officer or employee of the competing Contractor
responsible for the offer or bid, may rely upon a one-time
certification from each individual required to submit a certification
to the competing Contractor, supplemented by periodic training. These
certifications shall be obtained at the earliest possible date after
an individual required to certify begins employment or association
with the Contractor. If a Contractor decides to rely on a
certification executed prior to the suspension of section 27 (i.e.,
prior to December 1, 1989), the Contractor shall ensure that an
individual who has so certified is notified that section 27 has been
reinstated. These certifications shall be maintained by the
Contractor for a period of 6 years from the date a certifying
employee's employment with the company ends or, for an agency,
representative, or consultant, 6 years from the date such individual
ceases to act on behalf of the Contractor.
(e) The certification required by paragraph (c) of this
clause is a material representation of fact upon which reliance will
be placed in executing this modification.
1.31 52.209.6
FAC 90-13
PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH
CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT (NOV 1992)
<PAGE> 29
- 20 -
(a) The Government suspends or debars Contractors to
protect the Government's interest. The Contractor shall not enter
into any subcontract in excess of the small purchase limitation at FAR
13.000 with a Contractor that is debarred, suspended, or proposed for
debarment unless there is a compelling reason to do so.
(b) The Contractor shall require each proposed first-tier
subcontractor, whose subcontract will exceed the small purchase
limitation at FAR 13.000, to disclose to the Contractor, in writing,
whether as of the time of award of the subcontract, the subcontractor,
or its principals, is or is not debarred, suspended. or proposed for
debarment by the Federal Government.
(c) A corporate officer or a designee of the Contractor
shall notify the Contracting Officer, in writing, before entering into
a subcontract with a party that is debarred, suspended, or proposed
for debarment (see FAR 9.404 for information on the List of Parties
Excluded for: Procurement Programs). The notice must include the
following:
(1) The name of the subcontractor.
(2) The Contractor's knowledge of the reasons for
the subcontractor being on the List of Parties Excluded for:
Procurement Progrw.
(3) The compelling reason(s) for doing business
with the subcontractor notwithstanding its inclusion, on the
List of Parties Excluded from Procurement Programs.
(4) The systems and procedures the Contractor has
established to ensure that it is fully protecting the
Government's interests when dealing with such subcontractor in
view of the specific basis for the party's debarment,
suspension, or proposed debarment.
1.32 52.209-7
UPDATE 53
ORGANIZATIONAL CONFLICTS OF INTEREST CERTIFICATE--MARKETING
CONSULTANTS (NOV 1991)
(a) Definitions.
(1) "Marketing consultant" means any independent
Contractor who furnishes advice, information, direction, or
assistance to an Offeror or any other Contractor in support of
the preparation or submission of an offer for a Government
contract by that Offeror. An independent Contractor is not a
marketing consultant when rendering--
(i) Services excluded in FAR 37.204;
(ii) Routine engineering and technical
services (such as installation, operation, or
<PAGE> 30
- 21 -
maintenance of systems, equipment, software,
components, or facilities);
(iii) Routine legal, actuarial, auditing, and
accounting services; or
(iv) Training services.
(2) Organizational conflict of interest means
that because of other activities or relationships with other
persons, a person is unable or potentially unable to render
impartial assistance or advice to the Government, or the
person's objectivity in performing the contract work is or
might be otherwise impaired, or a person has an unfair
competitive advantage.
(b) An individual or firm that employs, retains, or
engages contractually one or more marketing consultants in
connection with a contract, shall submit to the Contracting
Officer, with respect to each marketing consultant, the
certificates described below, if the individual or firm is
notified that it is the apparent successful Offeror.
(c) The certificate must contain the following:
(1) The name of the agency and the number of the
solicitation in question.
(2) The name, address, telephone number, and Federal
taxpayer identification number of the marketing consultant.
(3) The name, address, and telephone number of a
responsible officer or employee of the marketing
consultant who has personal knowledge of the marketing
consultants involvement in the contract.
(4) A description of the nature of the services rendered
by or to be rendered by the marketing consultant.
(5) The name, address, and telephone number of the client
or clients, and the name of a responsible officer or employee
of the marketing consultant who is knowledgeable about the
services provided to such client(s), and a description of the
nature of the services rendered to such client(s), if, based
on information provided to the Contractor by the marketing
consultant, any marketing consultant is rendering or, in the
__________ months preceding the date of the certificate, has
rendered services respecting the same subject matter of the
instant solicitation, or directly relating to such subject
matter, to the Government or any other client (including any
foreign government or person).
(6) A statement that the person who signs the certificate
for the prime Contractor has informed the marketing consultant
of the existence of Subpart 9.5 and Office of Federal
Procurement Policy Letter 89-1.
<PAGE> 31
- 22 -
(7) The signature, name, title, employer's name,
address, and telephone number of the persons who signed the
certificates for both the apparent successful Offeror and the
marketing consultant.
(d) In addition, the apparent successful Offeror shall
forward to the Contracting Officer a certificate signed by the
marketing consultant that the marketing consultant has been
told of the existence of Subpart 9.5 and Office of Federal
Procurement Policy Letter 89-1, and the marketing consultant
has made inquiry, and to the best of the consultant's
knowledge and belief, the consultant has provided no unfair
competitive advantage to the prime Contractor with respect to
the services rendered or to be rendered in connection with the
solicitation, or that any unfair competitive advantage that,
to the best of the consultant's knowledge and belief, does or
may exist, has been disclosed to the Offeror.
(e) Failure of the Offeror to provide the certifications
may result in the Offeror being determined ineligible for
award. Misrepresentation of any fact may result in the
assessment of penalties associated with false certifications
or such other provisions provided for by law or regulation.
I.33 52.222-3
CONVICT LABOR (APR 1984)
The Contractor agrees not to employ any person undergoing
sentence of imprisonment in performing this contract except as
provided by 18 U.S.C. 4082(c)(2) and Executive Order 11755, December
29, 1973.
I.34 52.222-21
CERTIFICATION OF NONSEGREGATED FACILITIES (APR 1984)
(a) "Segregated facilities," as used in this provision, means
any waiting rooms, work areas, rest rooms and wash rooms, restaurants
and other eating areas, time clocks, locker rooms and other storage or
dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided
for employees, that are segregated by explicit directive or are in
fact segregated on the basis of race, color, religion, or national
origin because of habit, local custom, or otherwise.
(b) By the submission of this offer, the offeror certifies
that it does not and will not maintain or provide for its employees
any segregated facilities at any of its establish-
<PAGE> 32
- 23 -
ments, and that it does not and will not permit its employees
to perform their services at any location under its control where
segregated facilities are maintained. The offeror agrees that a
breach of this certification is a violation of the Equal Opportunity
clause in the contract.
(c) The offeror further agrees that (except where it has
obtained identical certifications from proposed subcontractors for
specific time periods) it will--
(1) Obtain identical certifications from proposed
subcontractors before the award of subcontracts under which
the subcontractor will be subject to the Equal Opportunity
clause;
(2) Retain the certifications in the files; and
(3) Forward the following notice to the proposed
subcontractors (except if the proposed subcontractors have
submitted identical certifications for specific time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR
CERTIFICATIONS OF NONSEGREGATED FACILITIES.
A Certification of Nonsegregated Facilities must be submitted before
the award of a subcontract under which the subcontractor will be
subject to the Equal Opportunity clause. The certification may be
submitted either for each subcontract or for all subcontracts during a
period (i.e., quarterly, semiannually, or annually). NOTE: The
penalty for making false statements in offers is prescribed in I8
U.S.C. 1001.
I.35 52.222-26
EQUAL OPPORTUNITY (APR 1984)
(a) If, during any 12-month period (including the 12 months
preceding the award of this contract), the Contractor has been or is
awarded nonexempt Federal contracts and/or subcontracts that have an
aggregate value in excess of $10,000, the Contractor shall comply with
subparagraphs (b)(1) through (11) below. Upon request, the Contractor
shall provide information necessary to determine the applicability of
this clause.
(b) During performing this contract, the Contractor
agrees as follows:
(1) The Contractor shall not discriminate against
any employee or applicant for employment because of race,
color, religion, sex, or national origin.
(2) The Contractor shall take affirmative action
to ensure that applicants are employed, and that employees are
treated during employment, without regard to their
<PAGE> 33
- 24 -
race, color, religion, sex, or national origin. This
shall include, but not be limited to, (i) employment,
(ii) upgrading, (iii) demotion, (iv) transfer, (v) recruitment
or recruitment advertising, (vi) layoff or termination, (vii)
rites of pay or other forms of compensation, and (viii)
selection for training, including apprenticeship.
(3) The Contractor shall post in conspicuous
places available to employees and applicants for employment
the notices to be provided by the Contracting Officer that
explain this clause.
(4) The Contractor shall, in all solicitations or
advertisements for employees placed by or on behalf of the
Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color,
religion, sex, or national origin.
(5) The Contractor shall send, to each labor
union or representative of workers with which, it has a
collective bargaining agreement or other contract or
understanding, the notice to be provided by the Contracting
Officer advising the labor union or workers' representative of
the Contractor's commitments under this clause, and post
copies of the notice in conspicuous places available to
employees and applicants for employment.
(6) The Contractor shall comply with Executive
Order 11246, as amended, and the rules, regulations, and
orders of the Secretary of Labor.
(7) The Contractor shall furnish to the
contracting agency all information required by Executive Order
11246, as amended, and by the rules, regulations, and orders
of the Secretary of Labor. Standard Form lOO (EEO-1), or any
successor form, is the prescribed form to be filed within 3O
days following the award, unless filed within 12 months
preceding the date of award.
(8) The Contractor shall permit access to its
books, records, and accounts by the contracting agency or the
Office of Federal Contract Compliance Programs (OFCCP) for the
purposes of investigation to ascertain the Contractor's
compliance with the applicable rules, regulations, and orders.
(9) If the OFCCP determines that the Contractor
is not in compliance with this clause or any rule, regulation,
or order of the Secretary of Labor, this contract may be
canceled, terminated, or suspended in whole or in part and the
Contractor may be declared ineligible for further Government
contracts, under the procedures authorized in Executive Order
11246, as amended. In addition, sanctions may be imposed and
<PAGE> 34
- 25 -
remedies invoked against the Contractor as provided in
Executive Order 11246, as amended, the rules, regulations, and
orders of the Secretary of Labor, or as otherwise provided by
law.
(10) The Contractor shall include the terms and
conditions of subparagraph (b)(1) through (11) of this clause
in every subcontract or purchase order that is not exempted by
the rules, regulations, or orders of the Secretary of Labor
issued under Executive Order 11246, as amended, so that these
terms and conditions will be binding upon each subcontractor
or vendor.
(11) The Contractor shall take such action with
respect to any subcontract or purchase order as the
contracting agency may direct as a means of enforcing these
terms and conditions, including sanctions for noncompliance;
provided, that if the Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as
a result of any direction, the Contractor may request the
United States to enter into the litigation to protect the
interests of the United States.
(c) Notwithstanding any other clause in this contract,
disputes relative to this clause will be governed by the
procedures in 41 CFR 60-1.1
I.36 52.233-2
SERVICE OF PROTEST (NOV 1988)
(a) Protests, as defined in section 33.101 of the Federal
Acquisition Regulation, that are filed directly with an agency, and
copies of any protests that are filed with the General Accounting
Office (GAO) or the General Services Administration Board of Contract
Appeals (GSBCA), shall be served on the Contracting Officer (addressed
as follows) by obtaining written and dated acknowledgment of receipt
from
(b) The copy of any protest shall be received in the
office designated above on the same day a protest is filed with the
GSBCA or within one day of filing a protest with the GAO.
1.37 52.233-3
PROTEST AFTER AWARD (AUG 1989)
(a) Upon receipt of a notice of protest (as defined in
33.101 of the FAR) the Contracting Officer may, by written order to
the Contractor, direct the Contractor to stop performance of the work
called for by this contract. The order shall be specifically
identified as a stop-work order
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issued under this clause. Upon receipt of the order, the
Contractor 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. Upon
receipt of the final decision in the protest, the Contracting Officer
shall either--
(1) Cancel the stop-work order; or
(2) Terminate the work covered by the order as
provided in the Default, or the Termination for Convenience of
the Government, clause of this contract.
(b) If a stop-work order issued under this clause is
canceled either before or after a final decision in the protest, the
Contractor shall resume work. The Contracting Officer shall make an
equitable adjustment in the delivery schedule or contract price, or
both, and the contract shall be modifIed, in writing,
accordingly, if--
(1) The stop-work order results in an increase in
the time required for, or in the Contractor's cost properly
allocable to, the performance of any part of this contract;
and
(2) The Contractor asserts its right to an
adjustment within 30 days after the end of the period of work
stoppage; provided, that if the Contracting Officer decides
the facts justify the action, the Contracting Officer may
receive and act upon a proposal 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 for the convenience of the
Government, the Contracting Officer 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 default, the Contracting
Officer shall allow, by equitable adjustment or otherwise, reasonable
costs resulting from the stop-work order.
(e) The Government's rights to terminate this contract at
any time are not affected by action taken under this clause.
I.38 52.249-2
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE)
(APR 1984)
(a) The Government may terminate performance of work
under this contract in whole or, from time to time, in part if the
Contracting Officer determines that a termination is in the
Government's interest. The Contracting Officer shall
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terminate by delivering to the Contractor a Notice of
Termination specifying the extent of termination and the effective
date.
(b) After receipt of a Notice of Termination, and except
as directed by the Contracting Officer, the Contractor shall
immediately proceed with the following obligations, regardless of any
delay In determining or adjusting any amounts due under this clause:
(1) Stop work as specified in the notice.
(2) Place no further subcontracts or orders
(referred to as subcontracts in this clause) for materials,
services, or facilities, except as necessary to complete the
continued portion of the contract.
(3) Terminate all subcontracts to the extent they
relate to the work terminated.
(4) Assign to the Government, as directed by the
Contracting Officer, all right, title, and interest of the
Contractor under the subcontracts terminated, in which case
the Government shall have the right to settle or to pay any
termination settlement proposal arising out of those
terminations.
(5) With approval or ratification to the extent
required by the Contracting Officer, settle all outstanding
liabilities and termination settlement proposals arising from
the termination of subcontracts; the approval or ratification
will be final for purposes of this clause.
(6) As directed by the Contracting Officer,
transfer title and deliver to the Government (i) the
fabricated or unfabricated parts, work in process, completed
work, supplies, and other material produced or acquired for
the work terminated, and (ii) the completed or partially
completed plans, drawings, information, and other property
that, if the contract had been completed, would be required to
be furnished to the Government.
(7) Complete performance of the work not
terminated.
(8) Take any action that may be necessary, or
that the Contracting Officer may direct, for the protection
and preservation of the Property related to this contract that
is in the possession of the Contractor and in which the
Government has or may acquire an interest.
(9) Use its best efforts to sell, as directed or
authorized by the Contracting Officer, any property of the
types referred to in subparagraph (6) above; provided,
however, that the Contractor (i) is not required to extend
credit to any purchaser and (ii) may acquire the property
under the conditions prescribed by, and at prices approved by,
the Contracting Officer. The
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proceeds of any transfer or disposition will be applied
to reduce any payments to be made by the Government under this
contract, credited to the price or cost of the work, or paid
in any other manner directed by the Contracting Officer.
(c) After expiration of the plant clearance period as
defined in Subpart 45.6 of the Federal Acquisition Regulation, the
Contractor may submit to the Contracting Officer a list, certified as
to quantity and quality, of termination inventory not previously
disposed of, excluding items authorized for disposition by the
Contracting Officer. The Contractor may request the Government to
remove those items or enter into an agreement for their storage.
Within 15 days, the Government will accept title to those items and
remove them or enter into a storage agreement. The Contracting
Officer may verify the list upon removal of the items, or if stored,
within 45 days from submission of the list, and shall correct the
list, as necessary, before final settlement.
(d) After termination, the Contractor shall submit a
final termination settlement proposal to the Contracting Officer in
the form and with the certification prescribed by the Contracting
Officer. The Contractor shall submit the proposal promptly, but no
later than 1 year from the effective date of termination, unless
extended in writing by the Contracting Officer upon written request of
the Contractor within this 1 year Period. However, if the Contracting
Officer determines that the facts justify it, a termination settlement
proposal may be received and acted on after 1 year or any extension.
If the Contractor fails to submit the proposal within the time
allowed, the Contracting Officer may determine, on the basis of
information available, the amount, if any, due the Contractor because
of the termination and shall pay the amount determined.
(e) Subject to paragraph (d) above, the Contractor and
the Contracting Officer may agree upon the whole or any part of the
amount to be paid because of the termination. The amount may include
a reasonable allowance for profit on work done. However, the agreed
amount, whether under this paragraph (e) or paragraph (f) below,
exclusive of costs shown in subparagraph (f)(3) below, may not exceed
the total contract price as reduced by (1) the amount of payments
previously made and (2) the contract price of work not terminated.
The contract shall be amended, and the Contractor paid the agreed
amount. Paragraph (f) below shall not limit, restrict, or affect the
amount that may be agreed upon to be paid under this paragraph.
(f) If the Contractor and the Contracting Officer fail to
agree on the whole amount to be paid because of the
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termination of work, the Contracting Officer shall pay the Contractor
the amounts determined by the Contracting Officer as follows, but
without duplication of any amounts agreed on under paragraph
(a) above:
(1) The contract price for completed supplies or
services accepted by the Government (or sold or acquired under
subparagraph (b)(9) above) not previously paid for, adjusted
for any saving of freight and other charges.
(2) The total of--
(i) The costs incurred in the
performance of the work terminated, including initial
costs and preparatory expense allocable thereto, but
excluding any costs attributable to supplies or
services paid or to be paid under subparagraph (f)(l)
above;
(ii) The cost of settling and paying
termination settlement proposals under terminated
subcontracts that are properly chargeable to the
terminated portion of the contract if not included in
subdivision (i) above; and
(iii) A sum, as profit on subdivision (i)
above, determined by the Contracting Officer under
49.202 of the Federal Acquisition Regulation, in
effect on the date of this contract, to be fair and
reasonable; however, if it appears that the
Contractor would have sustained a loss on the entire
contract had it been completed, the Contracting
Officer shall allow no profit under this subdivision
(iii) and shall reduce the settlement to reflect the
indicated rate of loss.
(3) The reasonable costs of settlement of the
work terminated, including--
(i) Accounting, legal, clerical, and
other expenses reasonably necessary for the
preparation of termination settlement proposals and
supporting data;
(ii) The termination and settlement of
subcontracts (excluding the amounts of such
settlements); and (iii) Storage,
transportation, and other costs incurred,
reasonably necessary for the preservation,
protection, or disposition of the termination
inventory.
(g) Except for normal spoilage, and except to the extent
that the Government expressly assumed the risk of loss, the
Contracting Officer shall exclude from the amounts payable to the
Contractor under paragraph (f) above, the fair value, as determined by
the Contracting Officer, of Property that
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is destroyed, lost, stolen, or damaged so as to become
undeliverable to the Government or to a buyer.
(h) The cost principles and procedures of Part 31 of the
Federal Acquisition Regulation, in effect on the date of this
contract, shall govern all costs claimed, agreed to, or determined
under this clause.
(i) The Contractor shall have the right of appeal, under
the Disputes clause, from any determination made by the Contracting
Officer under paragraph (d), (f), or (k), except that if the
Contractor failed to submit the termination settlement proposal within
the time provided in Paragraph (d) or (k), and failed to request a
time extension, there is no right of appeal. If the Contracting
Officer has made a determination of the amount due under paragraph
(d), (f), or (k), the Government shall pay the Contractor (1) the
amount determined by the Contracting Officer if there is no right of
appeal or if no timely appeal has been taken, or (2) the amount
finally determined on an appeal.
(j) In arriving at the amount due the Contractor under this
clause, there shall be deducted--
(1) All unliquidated advance or other payments to the
Contractor under the terminated portion of this contract;
(2) Any claim which the Government has against the
Contractor under this contract; and
(3) The agreed price for, or the proceeds of sale of,
materials, supplies, or other things acquired by the
Contractor or sold under the provisions of this clause and not
recovered by or credited to the Government.
(k) If the termination is partial, the Contractor may file a
proposal with the Contracting Officer for an equitable adjustment of
the price(s) of the continued portion of the contract. The Contracting
Officer shall make any equitable adjustment agreed upon. Any proposal
by the Contractor for - equitable adjustment under this clause shall
be requested within 90 days from the effective date of termination
unless extended in writing by the Contracting Officer.
(l)(1) The Government may, under the terms and conditions it
prescribes, make partial payments and payments against costs
incurred by the Contractor for the terminated portion of the
contract, if the Contracting Officer believes the total of
these payments will not exceed the amount to which the
Contractor will be entitled.
(2) If the total payments exceed the amount finally
determined to be due, the Contractor shall repay the
excess to the Government upon demand, together with interest
computed at the rate established by the Secretary of the
Treasury under 50 U.S.C. App, 1215(b)(2). Interest shall be
computed for the period from the date
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the excess payment is received by the Contractor to the
date the excess is repaid. Interest shall not be charged on
any excess payment due to a reduction in the Contractor's
termination settlement proposal because of retention or other
disposition of termination inventory until 10 days after the
date of the retention or disposition, or a later date
determined by the Contracting Officer because of the
circumstances.
(m) Unless otherwise provided in this contract or by statute,
the Contractor shall maintain all records and documents relating to
the terminated portion of this contract for 3 years after final
settlement. This includes all books and other evidence bearing on the
Contractor's costs and expenses under this contract. The Contractor
shall make these records and documents available to the Government, at
the Contractor's office, at all reasonable times, without any direct
charge. If approved by the Contracting Officer, photographs,
microphotographs, or other authentic reproductions may be maintained
instead of original records and documents.
I.39 52.252-2
CLAUSES INCORPORATED BY REFERENCE (JUN 1988)
This contract incorporates one or more clauses by reference,
with the same force and effect as if they were given in full text.
Upon request, the Contracting Officer will make their full text
available.
