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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended February 28, 1995 Commission File No. 1-12248
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ICF KAISER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 54-1437073
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9300 Lee Highway, Fairfax, Virginia 22031-1207
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 934-3600
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, par value $0.01 per share
Preferred Stock Purchase Rights
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of Common Stock held by non-affiliates of the
registrant was $73.3 million based on the New York Stock Exchange closing price
of such stock ($4.375) on May 3, 1995.
On May 3, 1995, there were 20,980,960 shares of Common Stock outstanding.
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DOCUMENTS INCORPORATED BY REFERENCE
Portions of the ICF Kaiser International, Inc. Proxy Statement for the 1995
Annual Meeting of Shareholders are incorporated by reference in Part III hereof.
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PART 1
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Item 1. Business
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ICF Kaiser International, Inc., through ICF Kaiser Engineers, Inc. and its
other operating subsidiaries, is one of the nation's largest engineering,
construction, and consulting services companies, providing fully integrated
engineering, construction and consulting services to public- and private-sector
clients in the related markets of environment, infrastructure, and industry. The
"Company" or "ICF Kaiser" in this report may refer to ICF Kaiser International,
Inc. and/or any of its wholly owned operating subsidiaries. For its most recent
fiscal year ended February 28, 1995 (fiscal 1995), ICF Kaiser reported gross and
service revenue of $862 million and $460 million, respectively. Service revenue
is derived by deducting the costs of subcontracted services and direct project
costs from gross revenue and adding the Company's share of income (loss) of
joint ventures and affiliated companies. The Company estimates that of its
fiscal 1995 $460 million service revenue, approximately 58% was attributable to
environmental services and another 23% to related management & operations
services, 10% to infrastructure-related work, 6% to industrial work, and 3% to
other consulting services.
During the three years ended February 28, 1995, the Company operated
predominantly in one industry segment, in which it provided engineering,
construction, consulting, and other professional services.
<TABLE>
<CAPTION>
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Fiscal Year Ended
February 28, 1995 February 28, 1994 February 28, 1993
(in thousands)
<S> <C> <C> <C>
Gross revenue.............. $ 861,518 $ 651,657 $ 678,882
Service revenue............ $ 459,786 $ 382,708 $ 391,528
Operating income (loss).... $ 13,688 $ (5,230) $ 22,744
Assets..................... $ 281,422 $ 281,198 $ 293,076
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</TABLE>
As of February 28, 1995, the Company's contract backlog totaled
approximately $1.4 billion compared to $1.6 billion as of February 28, 1994.
Most of the Company's backlog relates to public-sector environmental projects
that span from one to five years. Approximately 44% of the $1.4 billion backlog
is expected to be worked off during the current fiscal year. See "Backlog"
section on page 9 of this Report.
In April 1995, Kaiser-Hill Company, LLC (Kaiser-Hill), a limited liability
company owned equally by the Company and CH2M Hill Companies, Ltd., was awarded
the $3.5 billion Performance Based Integrating Management contract at the U.S.
Department of Energy's (DOE) Rocky Flats Environmental Technology Site near
Denver, Colorado. This contract represents an additional approximately $460
million in backlog which will be worked off from the contract start date (July
1, 1995) to the end of fiscal 1996 (February 28, 1996). Depending on
performance, the Company can earn between approximately $1.5 and $9.0 million in
pretax profit from this contract during fiscal 1996.
The Company's headquarters is located at 9300 Lee Highway, Fairfax,
Virginia 22031-1207, and its telephone number is (703) 934-3600. The Company's
regional headquarters are located at 1800 Harrison St., Oakland, California
94612-3430, (510) 419-6000 and at Four Gateway Center, Pittsburgh, Pennsylvania
15222-1207, (412) 497-2000. Other major offices include Tempe, Arizona;
Livermore, Oakland, Rancho Cordova, San Francisco, San Rafael, and Universal
City, California; Colorado Springs, Denver, and Lakewood, Colorado; Cheshire,
Connecticut; Washington, DC; Homestead, Jacksonville, Miami, and Tampa, Florida;
Atlanta, Georgia; Chicago, Illinois; Gary, Indiana; Ruston, Louisiana; Abingdon
and Baltimore, Maryland; Boston, Massachusetts; Ely and Las Vegas, Nevada;
Woodbridge, New Jersey; New York, New York; Albuquerque and Los Alamos, New
Mexico; Raleigh, North Carolina; Cincinnati, Ohio; Houston, Texas; Port Orchard,
Richland,
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and Seattle, Washington. The Company's major international offices are located
in Perth, Australia; London, England; Paris, France; Mexico City, Mexico;
Lisbon, Portugal; Moscow, Russia; and Taipei, Taiwan. As of May 1, 1995, ICF
Kaiser employed approximately 5,700 persons.
Strategic Considerations
The following points are important to understanding the Company's business
and strategy:
Full Front-end Capability. The Company's front-end skills include policy
analysis and consulting; scientific analysis and health/risk assessments;
facility siting and environmental assessments; remedial investigations and
feasibility studies; and engineering design. By possessing these skills, the
Company's involvement at the outset of any project places it in a position to
participate in any follow-on engineering and construction work.
High Value-added Services. The Company adds high value within those markets
that relate to environmental services through specialized environmental
knowledge that (i) helps clients understand environmental threats and
opportunities and alternative ways in which each can be managed; (ii) allows
creation of customized solutions for the clients' environmental problems; and
(iii) combines problem identification, solution, and implementation.
Access to Technology. The Company has access to new technologies that play
a critical role in both the cleanup of existing waste sites and in the reduction
of waste generated by ongoing and new production processes. These key
technologies relate to reducing and monitoring emissions, bioremediation, and
industrial process technologies that can help minimize waste, reduce costs, and
improve the quality of a finished product. To assist clients better and to
increase its overall participation in clients' projects, the Company continues
to expand its access to leading environmental and process technologies through
various methods, including licensing and joint ventures.
Strategic Relationships. The Company has established business
relationships through joint ventures, marketing agreements, and direct equity
investments that extend its presence and reduce its business development risks.
These relationships are particularly important in the management of the
Company's international operations, and they help reduce the cost and risks
associated with the Company's entering new geographic regions.
Federal Programs
U.S. Department of Energy. An important DOE mission has changed over the
years--from nuclear weapons production to environmental cleanup of former
nuclear weapons production sites. To help accomplish DOE's cleanup goals
pursuant to this new mission, the Company actively supports DOE at 10 of its 18
major weapons facilities, including the Argonne National Laboratory, the
Brookhaven National Laboratory, the Idaho National Engineering Laboratory,
Lawrence Livermore National Laboratory, the Los Alamos National Laboratory, the
Mound Plant Site, the Sandia National Laboratories, the Rocky Flats
Environmental Technology Site, and the Hanford, Washington, Site (the last Sites
are described in more detail below). The services provided by the Company
include (i) conducting comprehensive assessments related to environment, safety,
and health; (ii) quality assurance; (iii) security and safeguards; and (iv)
assessing, managing, and remediating existing hazardous and solid wastes,
radioactive materials, highly volatile chemical compounds, unidentified mixed
wastes, and exploded/unexploded munitions.
During fiscal 1995, the Company, together with Colorado-based CH2M Hill
Companies, Ltd., created Kaiser-Hill Company, LLC (Kaiser-Hill) which
successfully pursued, and in April 1995 won, DOE's $3.5 billion Performance
Based Integrating Management contract at the DOE's Rocky Flats Environmental
Technology Site near Golden, Colorado. Rocky Flats is a former DOE nuclear
weapons production facility. Under the five-year contract, Kaiser-Hill (in
which the Company has a 50% interest) will oversee plutonium stabilization and
storage, environmental restoration, waste management, decontamination and
decommissioning, site safety and security, and construction activities of
subcontract companies. Principal subcontractors on the Kaiser-Hill team include
BNFL, Inc., Babcock & Wilcox Co., Morrison Knudsen Corp., Westinghouse Electric
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Corporation, DynCorp, Wackenhut Services Incorporated, and Quanterra
Environmental Services. On May 1, 1995, the Kaiser-Hill team began a transition
onto the Site under a relatively small, separate contract, and the team is
scheduled to assume management and operating responsibilities from the existing
contractor on July 1, 1995.
Under the performance-based contract signed by Kaiser-Hill, the concept
which was developed in the DOE's 1994 Contract Reform Initiative, 85% of Kaiser-
Hill's fees will be based on performance, while only 15% are fixed. Kaiser-
Hill's contract commits it to dealing with urgent risks first, and measurable
results in the following "urgent risk" areas will help determine its incentive
fee: stabilize plutonium and plutonium residues by 1998; consolidate plutonium
in a single building by 2000; and by 1998, clean up and remove all high-risk
"hot spot" contamination. Kaiser-Hill also has committed to substantial short-
term achievements in cleanup and weapons materials management, and, over the
next two years, is expected to ship highly enriched uranium off-site, release
4,100 acres of land to the public, and remediate five hazardous sites. Finally,
Kaiser-Hill is expected to reduce the 6,000 employees at the site to 3,500 in
the first 18 months of the contract, and further to 2,000 by the end of the
contract term.
Since 1987, the Company, through its wholly owned subsidiary ICF Kaiser
Hanford Company, has been assisting DOE clean up its former nuclear weapons
productions site at the Hanford Nuclear Reservation in Richland, Washington.
Under an amendment signed in fiscal 1995, ICF Kaiser Hanford Company will
continue as a management & operating contractor at the site through March 1997.
The Company estimates that the fees it will be eligible to earn under the
extension, which will be based on six-month performance reviews, are expected to
add $20 million in operating income, assuming the subsidiary's solid performance
ratings are maintained. The underlying DOE contract provides the Company with
the opportunity to earn incentive fees related to technology transfers and
efficiency savings. In connection with an October 1993 contract amendment and in
order to reduce duplication of work and to improve management control and
efficiency of operation, DOE, with the Company's concurrence, assigned
management of substantially all aspects of the contract to Westinghouse Hanford
Company, another management & operating contractor at DOE's Hanford site. Since
that time, the subsidiary has been, in effect, a subcontractor and partner of
Westinghouse Hanford. This business relationship has been extended to Rocky
Flats, where Westinghouse is a subcontractor to the Kaiser-Hill team under the
DOE contract described above.
An example of the Company's other work for DOE is its three-year contract
signed in October 1994 to conduct audits and assessments of a variety of
programs and activities at the Los Alamos National Laboratory, located in New
Mexico. Under the contract the Company conducts comprehensive assessments
related to environment, safety, and health; the assessments ensure that the
laboratory is in compliance with federal and state regulations, as well as DOE
orders. The Company also conducts environmental audits of areas ranging from
air quality to waste management and from the packaging and transportation of
hazardous materials to training and certification and safety and health
assessments ranging from aviation safety to fire protection and from facility
maintenance to industrial hygiene. The Company has been performing this type of
work at Los Alamos since 1989.
U.S. Department of Defense. DOD estimates that its environmental expense
will be directed primarily to cleaning up hundreds of military bases with
thousands of contaminated sites. There is an urgent need to ensure that the
hazardous wastes present at these sites (often located near population centers)
do not pose a threat to the surrounding population, and, in connection with the
closure of many of the bases, there is an economic incentive to make sure that
the environmental restoration enables the sites of the former bases to be
developed commercially by the private sector.
Under a five-year Environmental Services Program Support contract with the
Baltimore Corps of Engineers signed in October 1994, the Company is supporting
the Army's Installation Restoration Program, Base Closure and Realignment
Program, as well as environmental initiatives. The Company evaluates the extent
of environmental contamination at Army installations, performs remedial
investigations and feasibility studies, designs cleanup remedies (as required),
and ensures proper permitting and regulatory compliance in the Army
Environmental Center's Region 5 (Delaware, Maryland, West Virginia, Virginia,
and the District of Columbia). This contract adds to an existing contract that
the Company has been working under since 1989. Under another five-year contract
signed in fiscal year 1991, the Company is providing environmental
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services at Air Force facilities; hazardous and toxic wastes site investigations
and remediations are being or have been conducted at Andersen AFB, Guam;
Wortsmith AFB, Michigan; Kirtland AFB, New Mexico; Fairchild AFB, Washington;
Pease AFB, New Hampshire; and McClennan AFB, California.
Examples of other DOD work include evaluating environmental contamination,
performing remedial investigations and feasibility studies, and designing
remedies at Picatinny Arsenal in New Jersey, Cornhusker Army Ammunition Plant in
Nebraska, and Aberdeen Proving Ground in Maryland. Similar work is being
performed at Fort Dix in New Jersey and the Milan Army Ammunition Plan in
Tennessee where the Company designed a ground-water extraction and treatment
system for the remediation of contaminated ground water. The treatment facility
extracts contaminated ground water, removes explosives compounds and toxic
metals, and reinjects the ground water into the aquifer.
Other Federal Government Work. Under a variety of smaller contracts, the
Company provides the federal government with numerous other services. Under a
contract with the U.S. Environmental Protection Agency (EPA) awarded in fiscal
1995, the Company will continue to manage the EPA's quality assurance laboratory
in Las Vegas, Nevada, and to provide the laboratory with analytical support.
The Company has operated the laboratory since it won this analytical support
contract in 1989; the laboratory is the only laboratory designated by EPA to
provide quality assurance services to the more than 100 EPA-contracted Superfund
laboratories. Under the Superfund program, EPA designates sites that have
severe hazardous waste contamination, and oversees the sites' cleanup while
pursuing parties responsible for the contamination. The Company has provided
analytical support to this program since 1987, when it won an Environmental
Service Assistance Teams (ESAT) contract to manage and support analytical
chemistry laboratory work for the EPA's Superfund, RCRA, and other programs.
See the "Environmental Regulation" section on page 9 of this Report.
Engineering & Construction
Environmental Consulting and Engineering Services. Demand for the
Company's non-federal environmental consulting and engineering services is
driven by a number of factors: the need to improve the quality of the
environment; environmental regulation and enforcement; and increased liability
associated with pollution-related injury and damage. Significant environmental
laws have been enacted in response to public concern over the environment, and
these laws and the implementing regulations affect nearly every industrial
activity. Increasingly strict federal, state, and local government regulation
has forced private industry and state and local agencies to clean up
contaminated sites, to bring production facilities into compliance with current
environmental regulations, and to minimize waste generation on an ongoing basis.
Although growth in this private-sector market is being hampered by uncertainty
over continuing federal regulations, such as Superfund and the Clean Water Act,
the Company generates new business by increasing the types of services it sells
to existing clients, by targeting new markets for the Company's full-service
capabilities, and by expanding the types of services the Company offers.
In fiscal 1995 the Company signed a two-year contract to monitor emissions
at Shell Oil Company's Deer Park, Texas, manufacturing facility located near
Houston, under which the Company is responsible for all aspects of Shell's
equipment leak program. The Company utilizes a technology it developed in 1991
called the Fugitive Emissions Management System (FUGEMS\\sm\\), a proprietary
emissions monitoring system that identifies and tracks the sources of air
pollutant leaks. For other clients who also are required to comply with the
requirements of the Clean Air Act Amendments of 1990, the Company has developed
comprehensive computer models that simulate changes in air quality, visibility,
and population exposure which are used to examine air-quality problems. The
Company also assists other Clean Air Act clients by quantifying plant emissions,
developing strategies for complying with permit requirements, evaluating and
installing advanced control technologies, and redesigning production processes
to reduce pollutant emissions.
The Company's environmental services have progressed beyond study and
analysis to remediation. Following on its established market position in the
consulting and front-end analysis phase of environmental services, the Company
now offers alternative remediation approaches that may involve providing on-site
waste containment, on-site treatment, management of on-site/off-site
remediation, or waste removal. The Company also designs new processes (and
redesigns ongoing production processes) to minimize or eliminate the generation
of hazardous waste. Currently the Company provides environmental investigation,
risk assessment,
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community relations services, and feasibility studies to a leading industrial
corporation to investigate and remediate chrome processing ore residues in New
Jersey. The Company also has been awarded significant contracts by a Fortune
200 chemical manufacturer for environmental assessment and remediation work at
sites located in West Virginia and Massachusetts. Internationally, the Company
designed and is installing the ground-water and soil remediation system at a
former pigment manufacturing facility in a suburb of Paris; the system includes
in-situ air stripping in two NOVAC(TM) wells to remediate ground water
contaminated with tetrachloroethylene. The Company expects that application of
this technology will have broad market appeal in France. See "Potential
Environmental Liability" section on page 11 of this Report.
Industry Services. ICF Kaiser's engineering design, project management,
and construction services to the industrial market historically have involved
work with the steel, aluminum, alumina, copper, tin, and other metals
industries. In the coke, coal, and coal chemicals area, ICF Kaiser's services
have included inspection of coke plants for environmental compliance, facility
design and construction, and equipment sales and services. The Company has
provided services related to coal cleaning, handling, and environmental
controls. ICF Kaiser also designed, built, and now operates and jointly owns a
pulverized coal injection facility under a multiyear tolling agreement.
In fiscal 1995 the Company's industrial operations suffered because of the
low demand for metals and mining industries products over the past few years.
The demand cycle for these products, in the Company's opinion, bottomed out in
the last year and one-half and is now on the upswing. In October 1994 the
Company was awarded a contract to perform construction management services for
the development of the Magma Nevada Mining Company's planned $300 million copper
concentrator plant in Ely, Nevada. The Company completed detail design and
equipment procurement for the plant under a contract signed in September 1992.
After recently expanding its relationship with a number of U.S. steel
manufacturers to upgrade and improve the efficiency of existing capacity, the
Company believes that its faith in the improving economic condition of the
industry market is justified.
The international industry market is providing better opportunities for the
Company's services. In November 1994 the Company announced that it had been
awarded a four-and-one-half year contract to provide design, equipment and
materials, and limited site services for a PHOSAM ammonia recovery plant located
at Baoshan Iron and Steel Corporation in Shanghai, the People's Republic of
China. The PHOSAM process removes ammonia from coke oven gas and provides a
high-purity ammonia product; major users of ammonia include the plastics
manufacturing, fertilizer, and refrigeration industries. The Company's largest
industrial project will be a hot strip mini-mill to be completed for Nova Hut,
a.s., in the Ostrava region of the Czech Republic. In October 1994 the Company
began providing preliminary engineering services and arranging the financing for
the mini-mill that has an estimated total capital cost of $250 million. Once
financing is obtained, the Company will provide project management, process
design, and construction management services during the next phase of the
project. The mini-mill is designed to satisfy the domestic demand for hot strip
steel products in the Czech Republic.
Infrastructure Services. The Company also is helping rebuild the global
infrastructure of roads, highways, transit systems, harbors, airports,
facilities, and buildings. Budget constraints at the federal, state, and local
government levels have hindered infrastructure market growth, but the Company
remains active in major U.S. metropolitan areas. In Chicago, the Company (as
part of a joint venture) serves as program manager of the design of the Central
Area Circulator, a light rail transit system planned for downtown Chicago; the
Company has worked in Chicago infrastructure programs since 1981. In
Pittsburgh, the location of a regional headquarters of the Company, the Company
has provided services to the busway that links downtown Pittsburgh to the
Pittsburgh International Airport and has performed construction management
services for various Port Authority of Allegheny County light rail projects. In
San Francisco, the Company is preparing the conceptual design of and a draft
environmental impact statement for a commuter rail line extension. In Atlanta,
the Company (as part of a joint venture) is continuing its general engineering
consulting services to the Metropolitan Atlanta Rapid Transit Authority (MARTA).
The joint venture has served as the general engineering consultant to MARTA
since 1976, and under a contract extension signed in 1994, the joint venture
will focus on extending the system to a northern suburb. In Miami, the Company
is the leading contractor for Miami's Intermodal Transit Center, a project that
will tie together air, rail, and highway systems in South Florida.
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The major ports of many of the world's cities have serious water pollution
problems, and ICF Kaiser is part of several cities' efforts to improve the
condition of their harbors and waterways. The Company continues as the
construction manager of the cleanup of Boston Harbor, one of the largest
environmental projects in the country. Since the inception of the project in
1988, the Company has served as its construction manager, and currently manages
more than 2,200 construction workers, engineers, architects, and support
personnel working to construct the second largest wastewater treatment plant in
the United States on Deer Island in Boston Harbor. The Company believes that
after its successful years as construction manager, it is in an excellent
position to win the next three-year phase of this infrastructure project.
Another developing area for the Company in the infrastructure market
involves facilities engineering, architectural, and construction services. This
work includes such structures as retail centers, federal courthouses, wastewater
treatment plants, and maximum-security prisons. Early in 1995, the Company
announced that it would be providing design services for a new prison in
Corcoran, California, that will be the largest prison in the state and one of
the largest prisons in the U.S.
Internationally, the Company's large-scale construction infrastructure
skills are at work in Portugal where the Company (as part of a joint venture) in
1994 was awarded a project and construction management services contract for the
modification and reconstruction of the main rail link between the cities of
Lisbon and Oporto. Those skills also are at work in Taiwan where the Company
(as part of a joint venture) is helping the city of Taipei design and construct
an $18 billion, 55-mile rapid transit system.
Consulting Group
The ICF Kaiser Consulting Group draws upon the talents of its multi-
disciplinary professional staff to support customers within four primary lines
of business.
Environmental consulting services assist customers in developing plans and
policies, evaluating options for managing environmental responsibilities in the
most cost-effective manner, and identifying and employing the best available
technologies and practices. Life-cycle management strategies are emphasized.
The Group has special expertise in such areas as industrial and municipal waste
management, air pollution control, chemical accident prevention, and ground-
water and drinking water management.
Global environmental issues are also a particular area of focus within the
Group. Working with nearly every U.S. and international funding organization
and with numerous private sector organization, the Group has conducted projects
in over thirty countries, and has been actively involved in supporting virtually
every major international environmental treaty completed to date. The Group has
achieved great success in implementing technology transfer programs through the
creation of effective public-private partnerships.
Working on global change issues for the EPA since 1982, the Company
announced in November 1994 that it had been awarded a three-year contract to
support the EPA's Global Change Division, providing support related to the
reduction of methane and other greenhouse gases. Also in November 1994, the
Consulting Group announced that it had been awarded a new three-and-one-half
year contract to provide technical and regulatory support to the EPA's Office of
Solid Waste, focusing on human health and ecological risk assessment and waste
characterization.
In-career education and training programs range in subject matter from
highly technical areas to broader, skill-based and management-oriented training.
The Group's expertise in the development and delivery of workplace training,
combined with expert knowledge in a wide variety of technologies and
programmatic areas, enables it to provide high impact training that is
specifically tailored to the needs of each customer organization. Environmental
management programs cover regulation, technology, information reporting,
emergency response, and pollution prevention.
Information management programs assist clients in developing decision
support systems which facilitate the collection and use of information to track
performance, identify opportunities, and improve decision making. The Group
offers a number a number of sophisticated simulation models and proprietary
applications, such as its electric utility Integrated Planning Model. By
combining consulting expertise with
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information technology skills, the Group helps its customers deal with the
unique challenges of their business environment.
Energy and natural resource management services support the development of
corporate and technical plans for managing power resources and energy projects,
provide economic assessments of short- and long-term market conditions for
various fuels, and serve as an expert foundation in litigation and regulatory
proceedings. The Group assists its customers in identifying market
opportunities, commercializing new technologies, and developing public policy.
Its contributions involve linking an in-depth understanding of the energy
markets with an ongoing involvement with energy technology.
The ICF Kaiser Consulting Group serves customers in U.S. and international
markets, including both public- and private-sector organizations. Among its
major customers are U.S. government agencies, such as EPA, DOE, DOD, DOT, HUD,
and others; U.S. private sector organizations, particularly major energy
producers such as utilities and oil companies; and governments and businesses
around the world, as well as various multinational banks, development
organizations, and treaty organizations.
Competition and Contract Award Process
The markets in which the Company operates are very competitive. The
Company's competitors range from small local firms to large multinational
companies. The Company believes that no single firm or small number of firms
dominates its markets.
Competition for private-sector work generally is based on several factors,
including quality of work, reputation, price, and marketing approach. The
Company's objective is to establish and maintain a strong competitive position
in its areas of operations by adhering to its basic philosophy of delivering
high-quality work in a timely fashion within its clients' budget constraints.
Most of the Company's contracts with public-sector clients are awarded
through a competitive bidding process that places no limit on the number or type
of offerors. The process usually begins with a government Request for Proposal
(RFP) that delineates the size and scope of the proposed contract. Proposals are
evaluated by the government on the basis of technical merit (for example,
response to mandatory solicitation provisions, corporate and personnel
qualifications, and experience) and cost. The Company believes that its
experience and ongoing work strengthen its technical qualifications and,
thereby, enhance its ability to compete successfully for future government work.
In both the private and public sectors, the Company, acting either as a
prime contractor or as a subcontractor, may join with other firms to form a team
that competes for a single contract or submits a single proposal. Because a team
of firms almost always can offer a stronger set of qualifications than any firm
standing alone, these teaming arrangements often are very important to the
success of a particular competition or proposal. The Company maintains a large
network of business relationships with other companies and has drawn repeatedly
upon these relationships to form winning teams.
The Company's subsidiaries operate under a number of different types of
contract structures with its private- and public-sector clients, the most common
of which are Cost Plus and Fixed Price. Under Cost Plus contracts, the Company's
costs are reimbursed with a fee (either fixed or percentage of cost) and/or an
incentive or award fee offered to provide inducement for effective project
management. A variation of Cost Plus contracts are time and materials contracts
under which the Company is paid at a specified fixed hourly rate for direct
labor hours worked. Under Fixed Price contracts, the Company is paid a
predetermined amount for all services provided as detailed in the design and
performance specifications agreed to at the project's inception.
Customers
The Company's clients include: DOD, DOE, and EPA; major corporations in the
energy, transportation, chemical, steel, aluminum, mining, and manufacturing
industries; utilities; and a variety of state and local government agencies
throughout the United States. A substantial portion of the Company's work
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is repeat business from existing clients. In many cases, the Company has worked
for the same client for many years, providing different services at different
times. DOE accounted for approximately 60% of the Company's consolidated gross
revenue during fiscal 1995; DOD, EPA, and other federal agencies collectively
accounted for another approximately 13%. The federal government accounted for
approximately 73% of the Company's consolidated gross revenue in fiscal year
1995, 65% in fiscal year 1994, and 47% in fiscal year 1993.
The Company's international clients include both private firms and foreign
government agencies in such countries as Australia, France, Portugal, and
Taiwan. In fiscal year 1995, foreign operations accounted for approximately 6.3%
of the Company's consolidated gross revenue. For information concerning gross
revenue, operating income, and identifiable assets of the Company's business by
geographic area, see Note O to the Consolidated Financial Statements.
Backlog
Backlog refers to the aggregate amount of gross contract revenue remaining
to be earned pursuant to signed contracts extending beyond one year. At February
28, 1995, the Company's contract backlog was approximately $1.4 billion in gross
revenue, down from approximately $1.6 billion in gross revenue at February 28,
1994. The Company expects that approximately 44% of the backlog at February 28,
1995, will be worked off during fiscal year 1996. Because of the nature of its
contracts, the Company is unable to calculate the amount or timing of service
revenue that might be earned pursuant to these contracts. The Company believes
that backlog is not a predictor of future gross or service revenue.
As discussed above, in April 1995 Kaiser-Hill was awarded the $3.5 billion
Performance Based Integrating Management contract at the DOE Rocky Flats Site.
This contract represents an additional approximately $460 million in backlog
which will be worked off from the contract start date (July 1, 1995) to the end
of fiscal 1996 (February 28, 1996).
Differences in contracting practices between the public and private sectors
result in ICF Kaiser's backlog being weighted heavily toward contracts
associated with agencies of the federal government. Backlog under contracts with
agencies of the federal government that extend beyond the government's current
fiscal year includes the full contract amount, including in many cases amounts
anticipated to be earned in option periods and certain performance fees, even
though annual funding of the amounts under such contracts generally must be
appropriated by Congress before the agency may expend funds during any year
under such contracts. In addition, the agency must allocate the appropriated
funds to these specific contracts and thereafter authorize work or task orders
to be performed under these specific contracts. Such authorizations are
generally for periods considerably shorter than the duration of the work the
Company expects to perform under a particular contract and generally cover only
a percentage of the contract revenue. Because of these factors, the amount of
federal government contract backlog for which funds have been appropriated and
allocated, and task orders issued, at any given date is a substantially smaller
amount than the total federal government contract backlog as of that date. In
the event that option periods under any given contract are not exercised or
funds are not appropriated, allocated, or authorized to be spent under any given
contract, the amount of backlog attributable to that contract would not result
in revenue to the Company. All contracts and subcontracts with agencies of the
federal government are subject to termination, reduction, or modification at any
time at the discretion of the government agency.
Environmental Regulation
Significant environmental laws have been enacted in response to public
concern over the environment. These laws and the implementing regulations affect
nearly every industrial activity. Efforts to comply with the requirements of
these laws have increased demand for the Company's services. The principal
federal legislation having the most significant effect on the Company's business
includes the following:
The Comprehensive Environmental Response, Compensation and Liability Act.
CERCLA, as amended by the Superfund Amendments and Reauthorization Act,
established the Superfund program to clean up hazardous waste sites and provides
for penalties and punitive damages for noncompliance with EPA orders. Superfund
may impose strict liability (joint and several as well as individual) on certain
hazardous substance
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 9
Form 10-K for Fiscal Year 1995
<PAGE>
waste owners, operators, disposal "arrangers," transporters, and disposal
facility owners and operators (Potentially Responsible Parties or PRPs) for the
costs of removal or remedial action; for other necessary response costs and
damages for injury, destruction, or loss of natural resources; and for the cost
of any health effects study. Under certain circumstances federal funds may be
used to pay for the cleanup.
The Resource Conservation and Recovery Act (RCRA). RCRA, as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA), provides a comprehensive
scheme for the regulation of hazardous waste from the time of generation to its
ultimate disposal (and sometimes thereafter), as well as the regulation of
persons engaged in the treatment, storage, and disposal of hazardous waste. The
RCRA scheme includes both a permitting and a manifest tracking system and
detailed regulations on the handling, treatment, transportation, storage, and
disposal of hazardous waste. Regulations have been issued pursuant to RCRA in
the following areas (among others) of importance to the Company: permitting
remediation of releases associated with underground storage tanks; municipal
solid waste disposal; waste minimization; treatment; transportation; and
disposal of hazardous waste. HSWA has increased (to an estimated 100,000) the
number of hazardous waste generators subject to RCRA. HSWA also imposes land
disposal restrictions/bans on certain listed and characteristic hazardous wastes
that do not meet specified treatment standards.
The Clean Air Act. Under the Clean Air Act of 1970, as amended, EPA is
empowered to establish and enforce National Ambient Air Quality Standards and
limits on the emissions of various pollutants from specific types of facilities.
The Clean Air Act Amendments of 1990 require certain sources emitting an air
pollutant regulated under the Clean Air Act to obtain an operating permit, which
includes enforceable emissions limitations and compliance schedules. The Clean
Air Act also addresses substantial expanded regulation of vehicle emissions,
hazardous air pollutant emissions, stratospheric ozone protection, acid rain
minimization (through the use of limitations on sulfur dioxide and nitrogen
oxide emissions) and related enforcement issues. The use of "marketable
allowances" to establish limits on total emissions while maintaining maximum
market flexibility reflects a shift in environmental policy from command and
control management to a more flexible approach.
The Safe Drinking Water Act. Under the Safe Drinking Water Act and its
subsequent reauthorizations, EPA is empowered to set drinking water standards
for community water supply systems in the United States. The Act requires that
EPA set maximum ground-water contamination levels for specified, and previously
unregulated, toxic substances and also requires EPA to establish a priority list
every three years of contaminants that may cause adverse health effects and may
require regulation. Water supply systems are required to begin monitoring
within defined time limits following the publication of the final regulations.
The Act also requires that EPA set criteria specifying when utilities using
surface water supplies should filter their water and issue national primary
drinking water regulations requiring all utilities to disinfect their water.
The Clean Water Act. The Clean Water Act established a system of
standards, permits, and enforcement procedures for the discharge of pollutants
to surface water from industrial, municipal, and other wastewater sources. EPA
sets discharge standards for certain industrial and municipal wastewater
discharges and provides for federal grants to assist municipalities in complying
with treatment requirements. Key areas for which regulations recently have been
issued or are proposed include industrial wastewater pretreatment, surface water
toxics control, wastewater sludge disposal, and stormwater discharges. In cases
of noncompliance, EPA may assess administrative penalties and may sue for court-
ordered compliance and penalties. Under the Ocean Dumping Ban Act of 1988,
regulatory revisions to the Clean Water Act were made to eliminate ocean dumping
of sludge.
The Toxic Substance Control Act (TSCA). TSCA, enacted in 1976, establishes
requirements for identifying and controlling toxic chemical hazards to human
health and the environment. EPA has identified more than 60,000 chemical
substances (out of more than five million known chemical compounds) that were
manufactured or processed for commercial use in the United States in 1985. In
addition, more than 1,000 new chemicals are introduced each year. TSCA
authorizes EPA, in certain circumstances, to require testing of existing and new
chemicals used in commerce to determine their human health and environmental
effects. TSCA also gives EPA authority to prohibit or limit certain activities
associated with producing, distributing, and using a chemical that is found to
pose an unreasonable risk of injury to human health or the environment.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 10
Form 10-K for Fiscal Year 1995
<PAGE>
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA
focuses on the health-based risk of pesticides and requires the registration of
all pesticides, with a heavy emphasis on scientific data and risk assessment.
Under FIFRA, EPA establishes regulations that can include labeling restrictions,
use restrictions, or an outright ban of the pesticide following a risk/benefit
analysis. The 1972 amendments substantially increased the scope of the Act to
include biotechnology and to expand the authority of EPA.
Potential Environmental Liability
The assessment, analysis, remediation, handling, management, and disposal
of hazardous substances necessarily involve significant risks, including the
possibility of damages or personal injuries caused by the escape of hazardous
materials into the environment, and the possibility of fines, penalties or other
regulatory action. These risks include potentially large civil and criminal
liabilities for violations of environmental laws and regulations, and
liabilities to customers and to third parties for damages arising from
performing services for clients.
Potential Liabilities Arising Out of Environmental Laws and Regulations
All facets of the Company's business are conducted in the context of a
rapidly developing and changing statutory and regulatory framework. The
Company's operations and services are affected by and subject to regulation by a
number of federal agencies, including EPA and the Occupational Safety and Health
Administration, as well as applicable state and local regulatory agencies.
As discussed above, CERCLA addresses cleanup of sites at which there has
been a release or threatened release of hazardous substances into the
environment. Increasingly, there are efforts to expand the reach of CERCLA to
make environmental contractors responsible for cleanup costs by claiming that
environmental contractors are owners or operators of hazardous waste facilities
or that they arranged for treatment, transportation, or disposal of hazardous
substances. Several recent court decisions have accepted these claims. Should
the Company be held responsible under CERCLA for damages caused while performing
services or otherwise, it may be forced to bear such liability by itself,
notwithstanding the potential availability of contribution or indemnity from
other parties.
RCRA, also discussed above, governs hazardous waste generation, treatment,
transportation, storage, and disposal. RCRA, or EPA-approved state programs at
least as stringent, govern waste handling activities involving wastes classified
as "hazardous." Substantial fees and penalties may be imposed under RCRA and
similar state statutes for any violation of such statutes and the regulations
thereunder.
Potential Liabilities Involving Clients and Third Parties
In performing services for its clients, the Company could potentially be
liable for breach of contract, personal injury, property damage, and negligence
(including improper or negligent performance or design, failure to meet
specifications, and breaches of express or implied warranties). The damages
available to a client, should it prevail in its claims, are potentially large
and could include consequential damanges.
Environmental contractors, in connection with work performed for clients,
potentially face liabilities to third parties from various claims, including
claims for property damage or personal injury stemming from a release of
hazardous substances or otherwise. Claims for damage to third parties could
arise in a number of ways, including through a sudden and accidental release or
discharge of contaminants or pollutants during the performance of services;
through the inability, despite reasonable care, of a remedial plan to contain or
correct an ongoing seepage or release of pollutants; through the inadvertent
exacerbation of an existing contamination problem; or through reliance on
reports or recommendations prepared by the Company. Personal injury claims could
arise contemporaneously with performance of the work or long after completion of
the project as a result of alleged exposure to toxic or hazardous substances. In
addition, increasing numbers of claimants assert that companies performing
environmental remediation should be adjudged strictly liable, i.e., liable for
damages even though its services were performed using reasonable care, on the
grounds that such services involved "abnormally dangerous activities."
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 11
Form 10-K for Fiscal Year 1995
<PAGE>
Clients frequently attempt to shift various of the liabilities arising out
of remediation of their own environmental problems to contractors through
contractual indemnities. Such provisions seek to require the Company to assume
liabilities for damage or personal injury to third parties and property and for
environmental fines and penalties. The Company has endeavored to protect itself
from potential liabilities resulting from pollution or environmental damage by
obtaining indemnification from its private-sector clients and intends to
continue this practice in the future. Under most of these contracts, the Company
has been successful in obtaining such indemnification; however, such
indemnification generally is not available if such liabilities arise as a result
of breaches by the Company of specified standards of care or if the indemnifying
party has insufficient assets to cover the liability. In fiscal 1995 the
Company formed a new subsidiary, ICF Kaiser Remediation Company, through which
the Company intends to increase its remediation activities performed for public-
and private-sector clients. The Company will continue its efforts to minimize
the risks and potential liability associated with its remediation activities by
performing all remediation contracts in a professional manner and by carefully
reviewing any and all remediation contracts it signs in an effort to ensure that
its environmental clients accept responsibility for their own environmental
problems.
For EPA contracts involving field services in connection with Superfund
response actions, the Company is eligible for indemnification under Section 119
of CERCLA, for pollution and environmental damage liability resulting from
release or threatened release of hazardous substances. Some of the Company's
clients (including private clients, DOD, and DOE) are Potentially Responsible
Parties (PRPs) under CERCLA. Under the Company's contracts with these PRPs, the
Company has the right to seek contribution from these PRPs for liability imposed
on the Company in connection with its work at these clients' CERCLA sites and
generally qualifies for the limitations on liabilities under CERCLA Section
119(a). In addition, in connection with contracts involving field services at
10 of DOE's weapons facilities, including the DOE's Hanford site, the Company is
indemnified under the Price-Anderson Act, as amended, against liability claims
arising out of contractual activities involving a nuclear incident. Recently,
EPA has constricted significantly the circumstances under which it will
indemnify its contractors against liabilities incurred in connection with CERCLA
projects. There are other proposals both in Congress and at the regulatory
agencies to further restrict indemnification of contractors from third-party
claims.
As discussed above, Kaiser-Hill (a limited liability company owned equally
by the Company and CH2M Hill Companies, Ltd.) signed a $3.5 billion Performance
Based Integrating Management contract with the DOE. The terms of that contract
provide that Kaiser-Hill shall not be held responsible for, and DOE shall pay
all costs associated with, any liability (including without limitation, a claim
involving strict or absolute liability and any civil fine or penalty, expense,
or remediation cost, but limited to those of a civil nature), which may be
incurred by, imposed on, or asserted against Kaiser-Hill arising out of any act
or failure to act, condition, or exposure which occurred before Kaiser-Hill
assumed responsibility on July 1, 1995 ("pre-existing conditions"). To the
extent the acts or omissions of Kaiser-Hill constitute willful misconduct, lack
of good faith, or failure to exercise prudent business judgment on the part of
Kaiser-Hill's managerial personnel cause or add to any liability, expense, or
remediation cost resulting from pre-existing conditions, Kaiser-Hill shall be
responsible, but only for the incremental liability, expense, or remediation
caused by Kaiser-Hill.
The Kaiser-Hill contract further provides that Kaiser-Hill shall be
reimbursed for the reasonable cost of bonds and insurance allocable to the Rocky
Flats contract and for liabilities (and expenses incidental to such liabilities,
including litigation costs) to third parties not compensated by insurance or
otherwise. The exception to this reimbursement provision applies to liabilities
caused by the willful misconduct or lack of good faith of Kaiser-Hill's
managerial personnel or the failure to exercise prudent business judgment by
Kaiser-Hill's managerial personnel.
In connection with its services to its environmental, infrastructure, and
industrial clients, the Company works closely with federal and state government
environmental compliance agencies, and occasionally contests the conclusions
those agencies reach regarding the Company's compliance with permits and related
regulations. To date, the Company never has paid a fine in a material amount or
had liability imposed on it for pollution or environmental damage in connection
with its services. However, there can be no assurance that the Company will not
have substantial liability imposed on it for any such damage in the future.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 12
Form 10-K for Fiscal Year 1995
<PAGE>
Insurance
Consistent with industry experience and trends, the Company has found it
difficult to obtain pollution insurance coverage, in amounts and on terms that
are economically reasonable, against possible liabilities that may be incurred
in connection with its conduct of its environmental business. An uninsured claim
arising out of the Company's environmental activities, if successful and of
sufficient magnitude, could have a material adverse effect on the Company.
The Company has a comprehensive risk management and insurance program that
provides a structured approach to protecting the Company. Included in this
program are coverages for general, automobile, and professional liability; for
workers' compensation; and for employers and property liability. The Company
believes that the insurance it maintains, including self-insurance, is in such
amounts and protects against such risks as is customarily maintained by similar
businesses operating in comparable markets. At this time, the Company expects to
continue to be able to obtain general, automobile, and professional liability;
workers' compensation; and employers and property insurance in amounts generally
available to firms in its industry. There can be no assurance that this
situation will continue, and if insurance of these types is not available, it
could have a material adverse effect on the Company.
Regulation of the Company's Business
The Company is subject to general federal regulation with respect to its
contracting activities with the federal government. For example, the Company has
a substantial number of cost-reimbursement contracts with the U.S. government,
the costs of which are subject to audit by the U.S. government. As a result of
such audits, the federal government asserts, from time to time, that certain
costs claimed as reimbursable under government contracts either were not
allowable or not allocated in accordance with federal procurement regulations.
Management believes that the potential effect of disallowed costs, if any, for
the periods currently under audit and for periods not yet audited has been
provided for adequately and will not have a material adverse effect on the
Company's financial position, operations, or cashflows.
The Company may from time to time, either individually or in conjunction
with other government contractors operating in similar types of businesses, be
involved in U.S. government investigations for alleged violations of procurement
or other federal laws and regulations. The Company currently is the subject of
a number of U.S. government investigations and is cooperating with the
responsible government agencies involved. No charges presently are known to
have been filed against the Company by these agencies. Management does not
believe that there will be any material adverse effect on the Company's
financial position, operations, or cashflows as a result of these
investigations.
Federal agencies that are the Company's regular customers (including DOD,
DOE, and EPA) have formal policies against awarding contracts that would present
actual or potential conflicts of interest with other activities of the
contractor. Because the Company provides a broad range of services in
environmental and related fields for the federal government, state governments,
and private customers, there can be no assurance that government conflict-of-
interest policies will not restrict the Company's ability to pursue business in
the future.
Because some of the Company's subsidiaries provide the federal government
with nuclear energy and defense-related services, these subsidiaries and a
substantial number of their employees are required to have and maintain security
clearances from the federal government. These subsidiaries and their employees
have been able to obtain these security clearances in the past, and the Company
has no reason to believe that there would be any problems in this area in the
future. However, there can be no assurance that the required security clearances
will be obtained and maintained in the future. Because of its nuclear energy and
defense-related services, the Company is subject to foreign ownership, control,
and influence (FOCI) regulations imposed by the federal government and designed
to prevent the release of classified information to contractors who are under
foreign control or influence. Under these regulations, FOCI concerns may arise
as a result of a variety of factors, including foreign ownership of substantial
percentages of equity securities or debt, a high percentage of foreign revenue,
and the number of directors and officers who are not U.S. citizens. Subsidiaries
of the Company with facility security clearances or sensitive DOE contracts file
reports with DOD and DOE
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 13
Form 10-K for Fiscal Year 1995
<PAGE>
with respect to events and changes that affect the potential for FOCI. The
Company has implemented procedures designed to insulate such subsidiaries from
any FOCI that might affect the Company. There can be no assurance that such
measures will prevent FOCI policies from affecting the ability of the Company's
subsidiaries to secure and maintain certain types of DOD and DOE contracts.
Employees
As of May 1, 1995, ICF Kaiser employed approximately 5,700 persons, and the
Company believes that its relations with its employees are good. Approximately
one-half of the employees at the Company's ICF Kaiser Hanford Company subsidiary
are represented by unions, including unions under the Hanford Atomic Metals
Trades Council (HAMTC), National Building and Construction Trades (BCT), and the
Office and Professional Employees International Union (OPEIU). Collective
bargaining agreements are in place with the HAMTC, the BCT, the OPEIU, NDT/QC
Inspectors, and Escorts/International Guards Units.
================================================================================
Item 2. Properties
================================================================================
All of the Company's operations are conducted either in leased facilities
or in facilities provided by the federal government or other clients. As of
February 28, 1995, the Company leased an aggregate of approximately one million
square feet of space. The terms of these leases range from month-to-month to 15
years, and some may be renewed for additional periods. Some of the space leased
by the Company has been subleased to other entities under subleases expiring
from 1995 to 2000.
The Company's headquarters is located at 9300 Lee Highway, Fairfax,
Virginia 22031-1207, and its telephone number is (703) 934-3600. The Company's
regional headquarters are located at 1800 Harrison Street, Oakland, California
94612-3430, (510) 419-6000 and at Four Gateway Center, Pittsburgh, Pennsylvania
15222-1207, (412) 497-2000. Other major offices include Tempe, Arizona;
Livermore, Oakland, Rancho Cordova, San Francisco, San Rafael, and Universal
City, California; Colorado Springs, Denver, and Lakewood, Colorado; Cheshire,
Connecticut; Washington, DC; Homestead, Jacksonville, Miami, and Tampa, Florida;
Atlanta, Georgia; Chicago, Illinois; Gary, Indiana; Ruston, Louisiana; Abingdon
and Baltimore, Maryland; Boston, Massachusetts; Ely and Las Vegas, Nevada;
Woodbridge, New Jersey; New York, New York; Albuquerque and Los Alamos, New
Mexico; Raleigh, North Carolina; Cincinnati, Ohio; Houston, Texas; Port Orchard,
Richland, and Seattle, Washington. The Company's major international offices
are located in Perth, Australia; London, England; Paris, France; Mexico City,
Mexico; Lisbon, Portugal; Moscow, Russia; and Taipei, Taiwan. As of May 1,
1995, ICF Kaiser employed approximately 5,700 persons.
Because the Company's operations generally do not require the maintenance
of unique facilities, suitable office space is readily available for lease in
most of the areas served. The Company believes that adequate space to conduct
its operations will be available for the foreseeable future. In 1987, the
Company entered into a 15-year lease agreement for a new headquarters building
in Fairfax, Virginia, containing approximately 200,000 square feet of office
space. In 1988, the Company signed a 15-year lease agreement to occupy
approximately 100,000 square feet of office space in a new building adjacent to
the headquarters building. In connection with the acquisition of ICF Kaiser
Engineers in 1988, ICF Kaiser acquired the lease for ICF Kaiser Engineers'
headquarters building in Oakland, California. The lease provides for
approximately 142,000 square feet of office space and expires in June 2000.
================================================================================
Item 3. Legal Proceedings
================================================================================
ICF Kaiser International, Inc. is a Delaware corporation incorporated in
1987 under the name American Capital and Research Corporation. It is the
successor to ICF Incorporated, a nationwide consulting firm organized in 1969.
In 1988, the Company acquired the Kaiser Engineers business which dates from
1914.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 14
Form 10-K for Fiscal Year 1995
<PAGE>
The Company and its subsidiaries are involved in a number of lawsuits and
government regulatory proceedings arising in the ordinary course of its business
or arising in connection with the disposition of certain businesses and
investments. The Company believes that any ultimate liability resulting
therefrom will not have a material adverse effect on its financial position,
operations, or cashflows.
The Company may from time to time, either individually or in conjunction
with other government contractors operating in similar types of businesses, be
involved in U.S. government investigations for alleged violations of procurement
or other federal laws and regulations. The Company currently is the subject of a
number of U.S. government investigations and is cooperating with the responsible
government agencies involved. No charges presently are known to have been filed
against the Company by these agencies. Management does not believe there will
be any material adverse effect on the Company's financial position, operations,
or cashflows as a result of these investigations.
================================================================================
Item 4. Submission of Matters to a Vote of Security Holders
================================================================================
None
================================================================================
Item 10. Executive Officers of the Registrant
================================================================================
The names of the Company's executive officers and their ages (as of May 3,
1995), principal corporate positions, and business experience are set forth
below.
George F. Brown, Jr., 48, is President of the Company's Consulting Group.
From 1979 to 1994, Dr. Brown had worked with DRI/McGraw-Hill. As executive vice
president, a position he held with that company since 1985, Dr. Brown had
general management responsibilities for strategy and operations worldwide.
Before that, he served as group vice president, Government and Health Markets,
with overall responsibility for sales, consulting, and products for government
and healthcare industry clients. Dr. Brown graduated from Carnegie-Mellon
University (B.S., M.S., Ph. D.).
James O. Edwards, 51, has been Chairman of the Board and Chief Executive
Officer of ICF Kaiser International, Inc. since 1987. He also was President of
ICF Kaiser International, Inc. from 1987 to 1990. In 1974, he joined ICF
Incorporated, the predecessor of ICF Kaiser International, Inc. and was its
Chairman and Chief Executive Officer from 1986 until the 1987 establishment of
ICF Kaiser International, Inc. Mr. Edwards graduated from Northwestern
University (B.S.I.E.) and Harvard University (M.B.A., High Distinction, George
F. Baker Scholar).
Kenneth L. Campbell, 38, is a Senior Vice President and the Treasurer of
the Company. He has held a number of senior management positions with the
Company since 1988. From May 1993 to his recent appointment as Treasurer, Mr.
Campbell has been responsible for the project finance and acquisition activities
of the Company. Mr. Campbell first worked for the Company in the early 1980's
in a variety of economic consulting positions, rejoining the Company in 1988 to
assist with the acquisition of ICF Kaiser Engineers. Mr. Campbell graduated
from Wesleyan University (B.A.) and the University of Pennsylvania, Wharton
Graduate School of Finance (M.B.A.).
Michael K. Goldman, 43, is an Executive Vice President and the Chief
Administrative Officer of the Company. He has held senior management positions
in several of the Company's operating subsidiaries since 1980. Prior to joining
the Company, Mr. Goldman was in the private practice of law. Mr. Goldman
graduated from Harvard University (B.A., M.B.A. High Distinction, George F.
Baker Scholar) and the University of California at Berkeley (J.D.).
Stephen W. Kahane, 44, is President of the Company's Environment and Energy
Group. He has held senior management positions in several of the Company's
operating subsidiaries since 1985. From 1981 to
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 15
Form 10-K for Fiscal Year 1995
<PAGE>
1985, Dr. Kahane held a number of management positions at Jacobs Engineering
Group, Inc.; he headed Environmental and Hazardous Waste Programs and was a Vice
President when he left that firm. Dr. Kahane graduated from the University of
California (B.A., M.S.P.H., D.Env.).
Douglas W. McMinn, 47, is the President of the Company's International
Operations Group. He has held senior management positions with the Company since
1987. From 1985 to 1987 he was Assistant Secretary for Economic and Business
Affairs, U.S. Department of State. Prior to that time he was Director,
International Economic Affairs, National Security Council (1982-1985) and Deputy
Chief of Mission, Office of the United States Trade Representative, Geneva,
Switzerland (1979-1981). Mr. McMinn graduated from Gustavus Adolphus College
(B.A.), Johns Hopkins University (M.L.A.), and Johns Hopkins University School
of Advanced International Studies (M.A.).
Richard K. Nason, 53, has been an Executive Vice President and the Chief
Financial Officer of the Company since December 1994; he had been a Senior Vice
President and the Treasurer of the Company since April 1994. He joined the
Company as Senior Vice President - Internal Audit in June 1993. From 1991 to
1993, Mr. Nason was Executive Vice President and Chief Financial Officer for The
Artery Organization, Inc., a private real estate development and management
company in Bethesda, Maryland. From 1988 to 1991, Mr Nason was Senior Vice
President for Finance and Planning for Griffin Homes in California. Mr. Nason
was Senior Vice President of Marriott Corporation and its subsidiary Host
International, Inc. from 1977 to 1988. Mr. Nason graduated cum laude from
Washington and Jefferson College (B.A.) and the Wharton Graduate School of
Finance and Commerce, University of Pennsylvania (M.B.A.). He also attended the
Executive Program at The Darden School, University of Virginia.
Alvin S. Rapp, 55, has been President and Chief Executive Officer of the
Company's Engineering and Construction Group since November 1993. Prior to
joining the Company, he was a regional group vice president of Jacobs
Engineering Group, Inc., having joined Jacobs in 1981 as manager of engineering
in that company's Baton Rouge, Louisiana office. Prior to joining Jacobs, Mr.
Rapp held a variety of management positions with Ciba-Geigy Corporation, U.S.S.
Agri-Chemicals, and E.I. du Pont de Nemours & Company, Inc. Mr. Rapp graduated
from Christian Brothers College (B.S.E.E.), Memphis, Tennessee.
Marcy A. Romm, 36, has been Senior Vice President and Director of Human
Resources of the Company since 1993. She has held Human Resources positions at
ICF Kaiser since 1984. Ms. Romm graduated from George Washington University
(B.A., M.B.A.).
Marc Tipermas, 47, has been Executive Vice President and Director of
Corporate Development for ICF Kaiser International, Inc. since 1993. He has
held senior management positions in several of ICF Kaiser's operating
subsidiaries since joining the Company in 1981. From 1977 to 1981, Dr. Tipermas
was employed by the U.S. Environmental Protection Agency where he was the
Director of the Superfund Policy and Program Management Office from 1980 to
1981. Prior to joining EPA, he was Assistant Professor of Political Science at
the State University of New York at Buffalo from 1975 to 1977. Dr. Tipermas has
been a director of ICF Kaiser International, Inc. since 1993. Dr. Tipermas
graduated from the Massachusetts Institute of Technology (S.B.) and Harvard
University (A.M., Ph.D.).
Paul Weeks, II, 51, has been Senior Vice President, General Counsel,
and Secretary of ICF Kaiser International, Inc. since 1990. He joined ICF
Incorporated in May 1987 as its Vice President, General Counsel, and Secretary.
From 1973 to 1987 he was employed by Communications Satellite Corporation, where
from 1983 to 1987 he was Assistant General Counsel for Corporate Matters. Mr.
Weeks graduated from Princeton University (B.S.E.E.) and The National Law Center
of George Washington University (J.D.).
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 16
Form 10-K for Fiscal Year 1995
<PAGE>
PART II
================================================================================
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
================================================================================
Since September 14, 1993, the Common Stock has been traded on the New York
Stock Exchange (NYSE) under the symbol "ICF". Prior to that date, the Common
Stock was traded on the NASDAQ National Market System. At May 3, 1995, the
Company's record date for its 1995 Annual Meeting of Shareholders, there were
1,277 shareholders of record; the Company believes that there are approximately
7,800 beneficial owners of Common Stock.
On May 16, 1995, the closing price of the Common Stock as reported by the
NYSE was $4.375. The following table sets forth, for the periods indicated, the
high and low bid information for the Common Stock as reported on the NASDAQ
National Market System and the high and low sales prices on the NYSE:
<TABLE>
<CAPTION>
================================================================================
Common Stock Price
High Low
<S> <C> <C>
Fiscal Year Ended February 28, 1994
First Quarter............................... $6.875 $ 4.75
Second Quarter.............................. 5.50 3.75
Third Quarter (September 1 - September 13).. 4.875 4.375
Third Quarter (September 14 - November 30).. 5.375 4.00
Fourth Quarter.............................. 5.00 3.625
Fiscal Year Ended February 28, 1995
First Quarter............................... $3.875 $ 2.25
Second Quarter.............................. 2.625 2.00
Third Quarter............................... 4.125 2.375
Fourth Quarter.............................. 4.375 2.625
================================================================================
</TABLE>
The Corporation's Transfer Agent and Registrar is First Chicago Trust
Company of New York, Mail Suite 4692, P.O. Box 2534, Jersey City, NJ 07303-2534.
The Shareholder Relations telephone number is (201) 324-0498.
The Company has never paid cash dividends on its Common Stock. The Board of
Directors anticipates that no cash dividends will be paid on its Common Stock
for the foreseeable future and that the Company's earnings will be retained for
use in the business.
The Board of Directors determines the Company's Common Stock dividend
policy based on the Company's results of operations, payment of dividends on
preferred stock, financial condition, capital requirements, and other
circumstances. The Company's debt agreements allow dividends to be paid on its
capital stock provided that the Company complies with certain limitations
imposed by the terms of such agreements. See Note F to the Consolidated
Financial Statements.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 17
Form 10-K for Fiscal Year 1995
<PAGE>
================================================================================
Item 6. Selected Financial Data
================================================================================
The selected consolidated financial data set forth below should be read in
conjunction with the Company's Consolidated Financial Statements and notes
thereto included elsewhere herein.
================================================================================
<TABLE>
<CAPTION>
SELECTED CONSOLIDATED FINANCIAL DATA
(in thousands, except per share data)
Year ended February 28,
----------------------
1995 1994/(1)/ 1993 1992/(1)(3)/ 1991
-------- ---------- -------- ------------- --------
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Gross revenue.......................................... $861,518 $651,657 $678,882 $710,873 $624,976
Service revenue /(2)/.................................. 459,786 382,708 391,528 385,942 363,318
Operating income (loss)................................ 13,688 (5,230) 22,744 (43,963) 33,287
Income (loss) before income taxes...................... 1,239 (12,877) 14,894 (54,310) 24,018
Net income (loss) before extraordinary item............ (1,661) (12,528) 8,639 (40,516) 14,291
Net income (loss) /(3)/................................ (1,661) (18,497) 8,639 (40,516) 14,291
Net income (loss) available for common shareholders.... (3,815) (25,322) 3,346 (42,932) 13,434
Primary Net Income (Loss) Per Common Share:
Before extraordinary item and redemption of
redeemable preferred stock........................... $(0.18) $(0.83) $0.16 $(2.25) $0.71
Extraordinary loss on early extinguishment of debt.... --- (0.29) --- --- ---
Redemption of redeemable preferred stock.............. --- (0.09) --- --- ---
------ ------ ----- ------ -----
Total................................................ $(0.18) $(1.21) $0.16 $(2.25) $0.71
====== ====== ===== ====== =====
Fully Diluted Net Income (Loss) Per Common Share:
Before extraordinary item and redemption of
redeemable preferred stock........................... $(0.18) $(0.83) $0.16 $(2.25) $0.68
Extraordinary loss on early extinguishment of debt.... --- (0.29) --- --- ---
Redemption of redeemable preferred stock.............. --- (0.09) --- --- ---
------ ------ ----- ------ -----
Total................................................ $(0.18) $(1.21) $0.16 $(2.25) $0.68
====== ====== ===== ====== =====
Weighted average common and common equivalent
shares outstanding, assuming full dilution.......... 20,957 20,886 21,272 19,085 20,308
Balance Sheet Data (end of period):
Total assets........................................... $281,422 $281,198 $293,076 $318,947 $357,457
Working capital........................................ 92,865 90,725 87,845 66,065 74,754
Long-term liabilities.................................. 133,303 130,752 75,602 85,675 109,820
Redeemable preferred stock............................. 19,617 20,212 44,824 45,161 26,498
Shareholders' equity................................... 27,624 30,780 58,521 51,151 88,839
</TABLE>
___________________
(1) Gross revenue and service revenue for the fiscal year ended February 29,
1992, exclude businesses discontinued by the Company in fiscal year 1992;
the financial data for fiscal year 1991 includes results for the entire
Company. In fiscal year 1994, the Company adopted Statement of Financial
Accounting Standards No. 106, Employers' Accounting for Postretirement
Benefits Other than Pensions. In fiscal year 1992, the Company adopted
Statement of Financial Accounting Standards No. 109, Accounting for
Income Taxes.
(2) Service revenue is derived by deducting the costs of subcontracted
services and direct project costs from gross revenue and adding the
Company's share of the income of joint ventures and affiliated companies.
(3) Fiscal year 1992 reflects an after-tax charge of $52.4 million associated
with the disposal and restructuring of certain businesses.
================================================================================
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 18
Form 10-K for Fiscal Year 1995
<PAGE>
================================================================================
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
================================================================================
Overview
ICF Kaiser is one of the nation's largest engineering, construction, and
consulting services companies, providing fully integrated services to domestic
and foreign clients in the environmental, infrastructure, industrial, and energy
markets, in both the private and public sectors.
ICF Kaiser had operating income of $13.7 million and a net loss before
extraordinary item of $1.7 million ($0.18 net loss per share) for the year ended
February 28, 1995 (fiscal 1995) compared with an operating loss of $5.2 million
and a $12.5 million net loss before extraordinary item ($0.83 net loss per
share) for the year ended February 28, 1994 (fiscal 1994). Operating income in
fiscal 1995 was $10.2 million higher than fiscal 1994, exclusive of the unusual
items in fiscal 1994. The operating income increase in fiscal 1995 reflects
improvements in each of the Company's businesses over fiscal 1994, including an
increase in fees at the Company's operations at the U.S. Department of Energy's
Hanford, Washington, site (Hanford). These gains were somewhat offset by a high
level of marketing expense associated with proposing and bidding major
contracts, including the Company's successful pursuit through Kaiser-Hill
Company, LLC (Kaiser-Hill) of the Performance Based Integrating Management
contract at the U.S. Department of Energy's Rocky Flats Environmental Technology
Site in Colorado (Rocky Flats), more fully described below. Gains in operating
income growth were offset by substantially higher nonoperating costs, including
interest expense, due to the fiscal 1994 refinancing, and income tax expense
(see Results of Operations).
The Company's engineering and construction services had an operating loss for
fiscal 1995 of $6.5 million, which was an improvement over fiscal 1994. The
operating loss was due primarily to a decline in revenue and to delays in the
commencement of previously awarded projects. These revenue declines were not
offset fully with cost reductions.
Outlook
Management believes that it has made significant progress during fiscal 1995
toward positioning the Company for future success by stabilizing operations,
enhancing financial controls, lowering corporate overhead costs, and increasing
market development activities. Extension of the Hanford contract through March
1997 and the award of the Rocky Flats contract to Kaiser-Hill combine to provide
a stable operating income base upon which the Company can build. Management
intends to continue its investment in new business development initiatives in
order to maintain and build its backlog. Among these initiatives are continued
pursuit of major federal environmental cleanup contracts, international and
private-sector expansion of consulting services, and expansion of remediation
capabilities.
Management also will continue its focus on restoring the Company's engineering
and construction business to profitability through increased marketing efforts
combined with cost reductions, primarily personnel.
In April 1995, Kaiser-Hill, a limited liability company owned equally by ICF
Kaiser and CH2M Hill Companies, Ltd., was awarded the Rocky Flats contract. The
five-year contract, valued at $3.5 billion, is expected to generate between $1.5
million and $9.0 million in annual pretax profit to ICF Kaiser. The fee
structure for this contract will provide for a mixture of base and incentive
fees earned through the achievement of cost reductions, attainment of certain
milestones, and accomplishment of other goals.
Backlog
The Company's backlog on February 28, 1995, was $1.4 billion, down from $1.6
billion reported as of February 28, 1994. The Company estimates that the
Kaiser-Hill contract at Rocky Flats represents approximately $3.5 billion in
backlog beginning July 1, 1995.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 19
Form 10-K for Fiscal Year 1995
<PAGE>
Results of Operations
The following table summarizes key elements in the Consolidated Statements of
Operations for the years ended February 28, 1995, 1994, and 1993.
<TABLE>
<CAPTION>
1995 1994 1993
--------------------------------------------------------------------------------
(Dollars in millions)
<S> <C> <C> <C>
Gross revenue $861.5 $651.7 $678.9
Service revenue $459.8 $382.7 $391.5
Service revenue as a percentage
of gross revenue 53.4% 58.7% 57.7%
Expenses as a percentage of
service revenue:
Direct cost of services and overhead 85.5% 84.6% 80.0%
Administrative and general 9.5% 12.0% 11.2%
Depreciation and amortization 2.0% 2.5% 2.7%
Unusual items, net - 2.3% -
Cost of disposal of businesses, net - - 0.3%
Operating income (loss) 3.0% (1.4)% 5.8%
--------------------------------------------------------------------------------
</TABLE>
Gross revenue represents services provided to customers with whom the Company
has a primary contractual relationship. Included in gross revenue are costs of
certain services subcontracted to third parties and other reimbursable direct
project costs, such as materials procured by the Company on behalf of its
customers.
Service revenue is derived by deducting the costs of subcontracted services
and direct project costs from gross revenue and adding the Company's share of
the income of joint ventures and affiliated companies. ICF Kaiser believes that
it is appropriate to analyze operating margins and other ratios in relation to
service revenue because such revenue and ratios reflect the work performed
directly by the Company.
Operating profits generated by the Hanford and Kaiser-Hill contracts are based
on performance and not revenue. Consequently, a change in revenue between
periods is likely to be disproportionate to the change in operating income. As
such, changes in revenue may have an exaggerated impact on the Company's margins
as measured on a percentage basis.
Fiscal 1995 Compared to Fiscal 1994
Revenue
Gross revenue for fiscal 1995 increased 32.2% to $861.5 million, while service
revenue increased 20.1% to $459.8 million, versus fiscal 1994. These increases
were attributable to the work performed at Hanford ($208.8 million of the gross
revenue increase and $97.4 million of the service revenue increase). The
Hanford revenue increases were offset partially by a decrease in the Company's
engineering and construction revenue ($14.1 million gross revenue and $10.8
million service revenue). Service revenue as a percentage of gross revenue
decreased to 53.4% for the year ended February 28, 1995, from 58.7% for fiscal
1994, primarily because under an October 1993 amendment to the Hanford contract,
ICF Kaiser absorbed tasks utilizing a much higher proportion of subcontractors
than Company personnel.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 20
Form 10-K for Fiscal Year 1995
<PAGE>
Operating Expenses
The Company's direct cost of services and overhead was relatively flat as a
percentage of service revenue in fiscal 1995 versus fiscal 1994. Excluding
Hanford, direct cost of services and overhead decreased to 76.2% of service
revenue in fiscal 1995 from 79.2% in fiscal 1994. Administrative and general
expense decreased $2.1 million. The decrease in these costs is attributable
primarily to management cost-cutting initiatives.
A restructuring plan initiated in fiscal 1994 to respond to operating losses
included downsizing the work force, consolidating office space, renegotiating
significant leases, and restructuring certain international operations.
Management expects to complete office space consolidation plans in fiscal 1996.
All other actions have been substantially completed as of February 28, 1995.
Management will continue to focus on cost reduction and containment efforts.
Interest Expense
ICF Kaiser's interest expense net of interest income (net interest) for the
year ended February 28, 1995, increased $6.3 million from fiscal 1994 due to a
recapitalization that took place in the fourth quarter of fiscal 1994 (also see
Liquidity and Capital Resources). The increase in net interest was impacted
favorably by $1.3 million in refunds of interest from the Internal Revenue
Service (IRS) recorded in the third quarter of fiscal 1995 associated with the
Company's tax liabilities and those of an acquired company. The increase in net
interest was offset partially by a reduction in preferred stock dividends.
Income Tax Expense
ICF Kaiser's income tax provision for fiscal 1995 was $2.9 million, even
though pretax income was $1.2 million. This is due to several factors including
the repatriation of overseas funds to the United States during fiscal 1995 that
currently could not be offset by foreign tax credits and permanent differences,
such as the nondeductibility of goodwill amortization. Nondeductible permanent
differences comprise a very high percentage of pretax income. As such, the
traditional percentage relationship between income tax expense and pretax income
is not meaningful. It is anticipated that the combination of projected pretax
income levels and the current level of permanent differences will result in the
Company's effective tax rate continuing to be above traditional levels in the
near-term future.
Because of the reported fiscal 1994 losses, a $3.3 million valuation allowance
was established in fiscal 1994 for deferred tax assets. In fiscal 1995,
although pretax income increased $14.1 million to $1.2 million (with a
corresponding increase in taxable income), the Company has maintained the
valuation allowance.
As of February 28, 1995, the Company had deferred tax assets related to net
operating loss carryforwards of $2.2 million, of which $0.4 million expire in
fiscal 2004 and $1.8 million expire in 2009. Additionally, the Company has $1.1
million of tax credit carryforwards, the majority of which do not expire.
Management believes that the Company's expected levels of pretax earnings, when
adjusted for nondeductible expenses such as goodwill amortization, will generate
sufficient future taxable income to realize the $13.6 million deferred tax asset
within the next five years.
Fiscal 1994 Compared to Fiscal 1993
Revenue
Gross and service revenue declined 4.0% and 2.2%, respectively, to $651.7
million and $382.7 million in fiscal 1994 primarily due to the successful
completion of two large industrial projects during fiscal 1993 ($81.3 million
and $9.2 million, respectively); a significant decline in other engineering and
construction business ($38.1 million and $21.9 million, respectively); the sale
of a subsidiary under a fiscal 1992-1993 restructuring plan during the third
quarter of fiscal 1993 ($14.4 million and $10.3 million, respectively); a
decline in the Company's energy engineering business ($11.8 million and $9.6
million, respectively); and the
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 21
Form 10-K for Fiscal Year 1995
<PAGE>
general impact of reduced government spending, loss of business days due to
severe weather in the East and the Los Angeles earthquake, and a sluggish
economy. The decrease was offset partially by a significant increase in ICF
Kaiser's services provided at Hanford ($120.8 million and $52.4 million,
respectively). This increase was due primarily to the amendment of ICF Kaiser's
contract with the U.S. Department of Energy, which was effective October 1,
1993. Service revenue as a percentage of gross revenue increased as the Company
continued its concerted efforts to shift more non-Hanford work from
subcontractors to Company personnel. Equity in income of joint ventures and
affiliated companies, and consequently service revenue, declined due to the
successful early completion of a natural gas liquefaction project on Australia's
Northwest Shelf ($2.8 million) and the sale of the Company's interest in Acer
Group Limited ($1.6 million), partially offset by $1.1 million of income from
the Company's interest in an entity that owns a coal pulverization facility.
Operating Expenses
The Company's direct cost of services and overhead increased to 84.6% of
service revenue in fiscal 1994 from 80.0% in fiscal 1993. The relatively fixed
nature of certain of the Company's indirect costs (e.g., office rent) and the
timing of the implementation of action plans for certain operating units
developed in fiscal 1994 delayed the impact of cost reductions in the fourth
quarter. ICF Kaiser also increased its commitment to marketing in fiscal 1994,
which contributed to the overall increase in administrative and general expense.
Depreciation and amortization expense decreased $1.2 million to $9.6 million
for the year ended February 28, 1994, primarily as the result of the write-off
of certain software assets in the third quarter of fiscal 1993.
Interest Expense
ICF Kaiser's interest expense for the year ended February 28, 1994, decreased
4.8% from fiscal 1993. The decrease is attributable to both the reduced average
amount of debt outstanding and lower prevailing interest rates.
Income Tax Expense
ICF Kaiser's effective tax rate decreased to 2.7% in fiscal 1994 from 42% in
fiscal 1993 because the book loss included a high level of nondeductible
expenses, such as goodwill amortization, differences between the book and tax
basis of businesses sold, and losses from controlled foreign corporations. This
impact was magnified by the unanticipated decline in operating results in the
fourth quarter of fiscal 1994. A $3.3 million valuation allowance was
established in fiscal 1994 for deferred tax assets. The valuation allowance was
established due to the extraordinary item and recent operating results. As of
February 28, 1994, the Company had deferred tax assets related to net operating
loss carryforwards of $4.3 million, of which $0.4 million were scheduled to
expire in fiscal 2004 and $3.9 million in 2009. The Company also had recorded
$0.9 million of tax credit carryforwards, the majority of which do not expire.
Extraordinary Item
The Company completed a recapitalization program in the fourth quarter of
fiscal 1994 that resulted in a $6.0 million extraordinary charge (net of $0 tax
benefit) for the early extinguishment of debt and a $1.9 million charge to net
income available for common shareholders to repurchase the Company's Series 2C
Senior Preferred Stock. These charges reduced earnings per share by $0.38 for a
total loss of $1.21 per share in fiscal 1994 (see Liquidity and Capital
Resources).
Liquidity and Capital Resources
Cash and cash equivalents increased $2.7 million in fiscal 1995 to $28.2
million, and the Company's working capital and current ratio have improved since
fiscal 1994. Cash and working capital increased in fiscal 1995 due to an
increased focus on cash management. Additional reasons for the cash and working
capital improvements include cash from operating activities, the receipt of
proceeds from a fiscal 1994 disposition
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 22
Form 10-K for Fiscal Year 1995
<PAGE>
($2.6 million), refunds from the IRS ($3.5 million), and the use of the
Company's Credit Facility ($5.0 million). The improvement was offset partially
by cash payments for the settlement of several outstanding liabilities related
to prior dispositions.
In fiscal 1995, the U.S. Environmental Protection Agency approved the
Company's revised provisional rates for fiscal years 1991 through 1994,
authorizing the Company to invoice on a variety of cost-plus contracts with U.S.
government agencies for work performed during the approved years. The Company
expects to collect an additional $2 - $4 million in cash in fiscal 1996 from
these receivables.
The Company has a $60 million revolving credit facility (the Credit Facility)
provided by a consortium of banks (the Banks). ICF Kaiser International, Inc.
and certain of its subsidiaries, which are guarantors of the Credit Facility,
granted the Banks a security interest in their accounts receivable and certain
other assets. The Credit Facility limits the payment of cash dividends,
requires the maintenance of specified financial ratios, and has a $20 million
limitation on cash borrowings. ICF Kaiser and the Banks entered into an
amendment as of February 28, 1995, that modified financial ratios and other
terms of the Credit Facility. As of February 28, 1995, there were $5.0 million
in borrowings outstanding under the Credit Facility, in addition to $9.6 million
in letters of credit, and the Company had $30.3 million of available credit
under the Credit Facility. The Credit Facility contains Eurodollar and
alternate base interest rate alternatives with margins dependent upon the
Company's financial operating results and expires on October 31, 1996.
The Company completed a recapitalization program in the fourth quarter of
fiscal 1994 by issuing $125,000,000 of the Company's 12% Senior Subordinated
Notes due 2003 and 600,000 warrants, each to purchase one share of the Company's
common stock at $5.00 per share. The net proceeds were used, in part, to retire
the Company's 13.5% Senior Subordinated Notes due 1999 and associated warrants,
to repurchase preferred stock, and to repay the outstanding balance on the
Company's then-existing revolving credit facility.
For the past several years, the Company has had ongoing negotiations, filings,
and litigation with the IRS related to settlement of its tax liabilities and the
liabilities associated with acquired companies. As noted in the Results of
Operations, the cash and income impact has been favorable to the Company.
Further, the Company's previous tax losses and its resultant net operating loss
carryforward position, will limit federal income tax payments required in the
near future.
Management believes that current projected levels of cash flows and the
availability of financing, including borrowings under the Company's Credit
Facility, will be adequate to fund operations throughout the next 12 months.
Impact of New Accounting Standard
The Company adopted Statement of Financial Accounting Standards No. 106,
Employers' Accounting for Postretirement Benefits Other Than Pensions (SFAS No.
106), effective March 1, 1993. The Company's postretirement benefit obligation
extends to only a limited group of retirees (and their spouses) who joined ICF
Kaiser through an acquisition, and whose benefits are limited to a fixed amount
per person. SFAS No. 106 requires that companies accrue postretirement benefits
over the period benefits are earned. The Company has elected the prospective
transition method and is amortizing its $14.2 million transition obligation over
14.5 years, the average remaining life expectancy of the retirees and their
spouses. The Company's ongoing expense under SFAS No. 106 includes the interest
component and the amortization of the transition obligation.
Effects of Inflation
The majority of the Company's contracts are cost reimbursable and, therefore,
the inflation rate in the United States, as well as in other countries in which
the Company operates, generally has relatively little impact on operating
margins; however, as a professional services company, the Company is more labor-
intensive than an industrial firm. To attract and maintain the high-caliber
professional staff it needs, the Company must structure its compensation
programs competitively. The wage-demand effects of inflation, which have been
minimal in the past several years, would be felt almost immediately in the
Company's costs.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 23
Form 10-K for Fiscal Year 1995
<PAGE>
================================================================================
Item 8. Financial Statements and Supplementary Data
================================================================================
The Financial Statements and Supplementary Data appear on pages F-1 through F-
17 and S-1 hereto.
================================================================================
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures
================================================================================
None
PART III
================================================================================
Item 10. Directors and Executive Officers of the Registrant
================================================================================
Information regarding the directors of the Registrant is included under the
caption "Election of Directors" in the Company's Proxy Statement for the 1995
Annual Meeting of Shareholders (the "Proxy Statement) and is incorporated herein
by reference. Information regarding executive officers of the Registrant is
included under a separate caption in Part I hereof. Information regarding
compliance with Section 16(a) of the Exchange Act is included under the caption
"Compliance with Section 16(a) of the Securities Exchange Act" in the Company's
Proxy Statement and is incorporated herein by reference.
================================================================================
Item 11. Executive Compensation
================================================================================
Information regarding this item is included under the caption "Executive
Compensation" in the Company's Proxy Statement and is incorporated herein by
reference.
================================================================================
Item 12. Security Ownership of Certain Beneficial Owners and Management
================================================================================
Information regarding this item is included under the caption "Voting
Securities of the Company and Certain Shareholdings" in the Company's Proxy
Statement and is incorporated herein by reference.
================================================================================
Item 13. Certain Relationships and Related Transactions
================================================================================
Information regarding this item is included under the captions "Compensation
Committee Interlocks and Insider Participation," "Certain Transactions with
Certain Directors," "Agreements and Transactions with Executive Officers Named
in the Summary Compensation Table," and "Agreements and Transactions with Other
Executive Officers" in the Company's Proxy Statement and is incorporated herein
by reference.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 24
Form 10-K for Fiscal Year 1995
<PAGE>
PART IV
================================================================================
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
================================================================================
<TABLE>
<CAPTION>
(a) Documents filed as part of this Report Page
<S> <C>
1. Consolidated Financial Statements of ICF Kaiser International, Inc. and Subsidiaries
a. Report of Independent Accountants............................................................ F-1
b. Consolidated Balance Sheets as of February 28, 1995, and February 28, 1994................... F-2
c. Consolidated Statements of Operations for the years ended February 28, 1995,
February 28, 1994, and February 28, 1993..................................................... F-3
d. Consolidated Statements of Shareholders' Equity for the years ended
February 28, 1995, February 28, 1994, and February 28, 1993.................................. F-4
e. Consolidated Statements of Cash Flows for the years ended
February 28, 1995, February 28, 1994, and February 28, 1993.................................. F-5
f. Notes to Consolidated Financial Statements................................................... F-6
2. Supplemental Schedule Relating to the Consolidated Financial Statements of ICF Kaiser
International, Inc. and Subsidiaries for each of the three years in the period ended
February 28, 1995
a. Schedule II: Valuation and qualifying accounts................................................ S-1
</TABLE>
All Schedules except the one listed above have been omitted because they are
not applicable or not required or because the required information is
included elsewhere in the financial statements in this filing.
3. Exhibits (listed according to the number assigned in the table in Item 601
of Regulation S-K).
(b) Exhibits
Exhibit No. 3 -- Articles of Incorporation and By-laws
3(a) Certificate of Incorporation of ICF Kaiser International, Inc. (restated
through June 26, 1993) (Incorporated by reference to Exhibit No. 3(a) to
Quarterly Report on Form 10-Q (Registration No. 1-12248) for the second
quarter of fiscal 1994 filed with the Commission on October 15, 1993)
3(b) Amended and Restated By-laws of ICF Kaiser International, Inc. (as
amended through June 29, 1992, and as further amended to reflect the
Corporation's name change on June 26, 1993) (Incorporated by reference
to Exhibit No. 3(b) to Quarterly Report on Form 10-Q (Registrant
No. 1-12248) for the second quarter of fiscal 1994 filed with the
Commission on October 15, 1993)
Exhibit No. 4 -- Instruments Defining the Rights of Security Holders, including
Indentures
4(a) Indenture dated as of January 11, 1994, between the Registrant and The
Bank of New York, as Trustee (Incorporated by reference to Exhibit No.
4(a) to Quarterly Report on Form 10-Q (Registrant No. 1-12248) for the
third quarter of fiscal 1994 filed with the Commission on January 14,
1994)
1. Supplemental Indenture No. 1 dated as of February 17, 1995.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 25
Form 10-K for Fiscal Year 1995
<PAGE>
4(b) Form of 12% Senior Subordinated Note due 2003 (Incorporated by reference
to Exhibit No. 4(b) to Quarterly Report on Form 10-Q (Registrant No. 1-
12248) for the third quarter of fiscal 1994 filed with the Commission on
January 14, 1994)
4(c) Form of Common Stock Purchase Warrant expiring May 15, 1999 (as amended
and restated through January 11, 1994) (Incorporated by reference to
Exhibit No. 4(e) to Quarterly Report on Form 10-Q (Registrant No. 1-
12248) for the third quarter of fiscal 1994 filed with the Commission on
January 14, 1994)
4(d) Credit Agreement among ICF Kaiser International, Inc., certain Banks,
and Chemical Bank (Delaware), as Agent, dated as of December 8, 1993, as
amended (see Exhibit No. 10(a))
4(e) ICF Kaiser International, Inc. Series 2D Warrant, No. 2D-2, dated
January 11, 1994 (Incorporated by reference to Exhibit No. 4(f) to
Quarterly Report on Form 10-Q for the third quarter of fiscal 1994 filed
with the Commission on January 14, 1994)
4(f) Securities Purchase Agreement by and among ICF Kaiser International,
Inc., IFINT-USA Inc., and FIMA Finance Management Inc., B.V.I. dated as
of December 20, 1990 (Incorporated by reference to Exhibit No. 4(b) to
Quarterly Report on Form 10-Q for the third quarter of fiscal 1991 filed
with the Commission on January 14, 1991)
1. Amendment No. 1 to Securities Purchase Agreement dated as of January 13,
1992 (Incorporated by reference to Exhibit No. 4(e)(1) to Quarterly
Report on Form 10-Q for the third quarter of fiscal 1992 filed with the
Commission on January 14, 1992)
2. Amendment No. 2 to Securities Purchase Agreement (Incorporated by
reference to Exhibit 4(g)(2) to Amendment No. 2 to Registration
Statement on Form S-1 (No. 33-70986) filed with the Commission on
December 23, 1993)
4(g) Amended and Restated Registration Rights Agreement dated as of January
13, 1992, between ICF Kaiser International, Inc. and FIMA Finance
Management Inc., (Incorporated by reference to Exhibit No. 4(f) to
Quarterly Report on Form 10-Q for the third quarter of fiscal 1992 filed
with the Commission on January 14, 1992)
4(h) Registration Rights Agreement, dated as of November 13, 1991, between
ICF Kaiser International, Inc. and U.S. Trust Company of California,
N.A., a national association, solely in its capacity as trustee of the
ICF Kaiser International, Inc. Retirement Plan Trust (Incorporated by
reference to Exhibit No. 4(g) to Quarterly Report on Form 10-Q for the
third quarter of fiscal 1992 filed with the Commission on January 14,
1992)
4(i) Rights Agreement dated as of January 13, 1992 between ICF Kaiser
International, Inc. and Office of the Secretary, ICF Kaiser
International, Inc. as Rights Agent, including
1. Form of Certificate of Designations of Series 4 Junior Preferred Stock
2. Form of Rights Certificate
3. Summary of Rights to Purchase Preferred Stock
(Incorporated by reference to Exhibit No. 4(h) to Quarterly Report on
Form 10-Q for the third quarter of fiscal 1992 filed with the Commission
on January 14, 1992)
4(j) Warrant Agreement dated as of January 11, 1994, between the Registrant
and The Bank of New York, as Warrant Agent (Incorporated by reference to
Exhibit No. 4(c) to Quarterly Report on Form 10-Q (Registrant No. 1-
12248) for the third quarter of fiscal 1994 filed with the Commission on
January 14, 1994)
4(k) Form of Warrant expiring December 31, 1998 (Incorporated by reference to
Exhibit No. 4(d) to Quarterly Report on Form 10-Q (Registrant No. 1-
12248) for the third quarter of fiscal 1994 filed with the Commission on
January 14, 1994)
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 26
Form 10-K for Fiscal Year 1995
<PAGE>
Exhibit No. 10 -- Material Contracts
10(a) Amended and Restated Credit Agreement dated as of December 8, 1993,
among the Registrant, the several Lenders from time to time parties
hereto, and Chemical Bank, as Agent, including Exhibits thereto
(Closing Date: January 11, 1994) (Incorporated by reference to Exhibit
No. 10(a) to Quarterly Report on Form 10-Q (Registrant No. 1-12248) for
the third quarter of fiscal 1994 filed with the Commission on January
14, 1994)
1. Waiver and First Amendment dated as of April 18, 1994 (Incorporated by
reference to Exhibit No. 10(a)(1) to Annual Report on Form 10-K filed
with the Commission on May 25, 1994.)
2. Second Amendment dated as of August 31, 1994
3. Third Amendment dated as of February 28, 1995
10(b) ICF Kaiser International, Inc. Employee Stock Purchase Plan (as amended
and restated as of June 26, 1993) (Incorporated by reference to Exhibit
No. 10(b) to Quarterly Report on Form 10-Q for the second quarter of
fiscal 1994 filed with the Commission on October 15, 1993)
10(c) Trust Agreement for ICF Kaiser Incorporated Employee Stock Ownership
Plan (adopted by ICF Kaiser International, Inc. Board of Directors in
October 1987) (Incorporated by reference to Exhibit No. 10(c) to
Quarterly Report on Form 10-Q for the third quarter of fiscal 1992
filed with the Commission on January 14, 1992)
10(d) ICF Kaiser International, Inc. Retirement Plan (as amended and restated
as of March 1, 1993) (and further amended with respect to name change
only as of June 26, 1993) (Incorporated by reference to Exhibit
No. 10(d) to Quarterly Report on Form 10-Q (Registrant No. 1-12248) for
the second quarter of fiscal 1994 filed with the Commission on October
15, 1993)
1. Amendment No. 1 dated April 24, 1995
10(e) ICF Kaiser International, Inc. Retirement Plan Trust Agreement (as
amended and restated effective as of November 13, 1991) (Incorporated
by reference to Exhibit No. 10(k) to Quarterly Report on Form 10-Q for
the third quarter of fiscal 1992 filed with the Commission on January
14, 1992)
10(f) Stock Contribution Agreement entered into on November 13, 1991, between
ICF Kaiser International, Inc. and U.S. Trust Company of California,
N.A., a national association, solely in its capacity as trustee of the
ICF Kaiser International, Inc. Retirement Plan Trust (Incorporated by
reference to Exhibit No. 10(l) to Quarterly Report on Form 10-Q for the
third quarter of fiscal 1992 filed with the Commission on January 14,
1992)
10(g) Lease Agreement between HMCE Associates (as Landlord) and ICF Kaiser
Incorporated (as Tenant), dated January 30, 1987, for the lease of the
Registrant's headquarters in Fairfax, Virginia (Incorporated by
reference to Exhibit No. 10(a) to Registration Statement on Form S-1
(No. 33-31473) filed with the Commission on October 6, 1989)
1. First Amendment entered into August 31, 1987 (Incorporated by reference
to Exhibit No. 10(a) to Registration Statement on Form S-1
(No. 33-31473) filed with the Commission on October 6, 1989)
2. Second Amendment entered into September 23, 1987 (Incorporated by
reference to Exhibit No. 10(a) to Registration Statement on Form S-1
(No.33-31473) filed with the Commission on October 6, 1989)
3. Third Amendment entered into as of February 12, 1990 (Incorporated by
reference to Exhibit No. 10(a) to Annual Report on Form 10-K filed with
the Commission on April 25, 1990)
10(h) Lease Agreement between HMCE Associates Limited Partnership (as
Landlord) and American Capital and Research Corporation (as Tenant),
dated April 27, 1988, for the lease of space in the building adjacent
to the Registrant's headquarters in Fairfax, Virginia (Incorporated by
reference
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 27
Form 10-K for Fiscal Year 1995
<PAGE>
to Exhibit No. 10(b) to Registration Statement on Form S-1
(No. 33-31473) filed with the Commission on October 6, 1989)
1. First Amendment entered into July 29, 1988. (Incorporated by reference
to Exhibit No. 10(b) to Annual Report on Form 10-K filed with the
Commission on April 25, 1990)
2. Second Amendment entered into as of February 12, 1990 (Incorporated by
reference to Exhibit No. 10(b) to Annual Report on Form 10-K filed with
the Commission on April 25, 1990)
3. Third Amendment entered into as of December 22, 1992 (Incorporated by
reference to Exhibit No. 10(h)(3) to Annual Report on Form 10-K
(Registrant No. 1-12248) for the fiscal year ended February 28, 1993
filed with the Commission on May 21, 1993)
10(i) Amended and Restated Lease Agreement by and between Kaiser Engineers,
Inc. and 1800 Harrison Limited Partnership, dated as of July 1, 1988,
for the lease of the Registrant's offices in Oakland, California
(Incorporated by reference to Exhibit No. 10(c) to Registration
Statement on Form S-1 (No. 33-31576) filed with the Commission on
October 13, 1989)
1. First Amendment made as of March 27, 1991 (Incorporated by reference to
Exhibit No. 10(a)(1) to Quarterly Report on Form 10-Q for the first
quarter of fiscal 1993 filed with the Commission on July 10, 1992)
2. Second Amendment made as of June 1992 (Incorporated by reference to
Exhibit No. 10(a)(2) to Quarterly Report on Form 10-Q for the first
quarter of fiscal 1993 filed with the Commission on July 10, 1992)
3. Third Amendment made as of April 27, 1993 (Incorporated by reference to
Exhibit No. 10(i)(3) to Annual Report on Form 10-K (Registrant No. 1-
12248) for the fiscal year ended February 28, 1993 filed with the
Commission on May 21, 1993)
10(j) Guaranty provided by American Capital and Research Corporation to 1800
Harrison Limited Partnership, dated as of March 27, 1991, and First
Amendment thereto dated as of June 1992, guaranteeing the performance
of Kaiser Engineers, Inc. under an Amended and Restated Lease Agreement
by and between Kaiser Engineers, Inc. and the California Public
Employee's Retirement System, dated as of July 1, 1988, for the lease
of the Registrant's offices in Oakland, California (Incorporated by
reference to Exhibit No. 10(b) to Quarterly Report on Form 10-Q for the
first quarter of fiscal 1993 filed with the Commission on July 10,
1992)
10(k) ICF Kaiser International, Inc. Stock Incentive Plan (as amended and
restated as of April 24, 1995)
10(l) ICF Kaiser International, Inc. Employee Stock Ownership Plan (as
amended and restated as of March 1, 1993) (and further amended with
respect to name change only as of June 26, 1993) (Incorporated by
reference to Exhibit No. 10(c) to Quarterly Report on Form 10-Q
(Registrant No. 1-12248)for the second quarter of fiscal 1994 filed
with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995
10(m) Purchase Order dated March 8, 1995 (WHC-380393, Mod. 1) issued by
Westinghouse Hanford Company to ICF Kaiser Hanford Company (DOE
Reference No. DE-AC06-87RL1930)
10(n) Assignment Agreement between the U.S. Department of Energy, Kaiser
Engineers Hanford Company, and Westinghouse Hanford Company, with an
effective date of October 1, 1993 (Contract No. DE-A06-93RL12359)
(Incorporated by reference to Exhibit No. 10(a) to Quarterly Report on
Form 10-Q (Registrant No. 1-12248) for the second quarter of fiscal
1994 filed with the Commission on October 15, 1993)
1. Modification No. 1 dated October 25, 1993 (Incorporated by reference to
Exhibit No. 10(n)(1) to Annual Report on Form 10-K filed with the
Commission on May 25, 1994.)
10(o) Massachusetts Water Resources Authority Agreement with ICF Kaiser
Engineers, Inc. through its wholly owned subsidiary of ICF Kaiser
Engineers of Massachusetts, Inc. for construction management services
for Boston Harbor Project--Deer Island Related Facilities, Contract No.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 28
Form 10-K for Fiscal Year 1995
<PAGE>
5622 (June 1990) (Incorporated by reference to Exhibit No. 10(h) to
Quarterly Report on Form 10-Q for the second quarter of fiscal 1991
filed with the Commission on October 12, 1990)
(Amendment Nos. 1-3 incorporated by reference to Exhibit No. 10(n) (1-
3) to Annual Report on Form 10-K (Registrant No. 1-12248) for the
fiscal year ended February 28, 1993 filed with the Commission on May
21, 1993)
P 1. Amendment No. 4 and Amendment No. 4A each dated December 2, 1993
[IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO.
10(o)(1) WAS FILED IN PAPER ON MAY 20, 1994, ON FORM SE PURSUANT
TO A CONTINUING HARDSHIP EXEMPTION]
P 2. Amendment No. 5 dated December 6, 1994 [IN ACCORDANCE WITH RULE
202 OF REGULATION S-T, THIS EXHIBIT NO. 10(o)(2) WAS FILED IN
PAPER ON MAY 23, 1995, ON FORM SE PURSUANT TO A CONTINUING
HARDSHIP EXEMPTION]
10(p) ICF Kaiser International, Inc. Section 401(k) Plan (as amended and
restated as of March 1, 1993) (and further amended with respect to
name change only as of June 26, 1993) (Incorporated by reference to
Exhibit No. 10(f) to Quarterly Report on Form 10-Q (Registrant No. 1-
12248) for the second quarter of fiscal 1994 filed with the Commission
on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995
10(q) ICF Kaiser International, Inc. Corporate Incentive Compensation Plan:
Annual Incentive Plan (dated as of September 29, 1993) (Incorporated
by reference to Exhibit No. 10(aa) to Quarterly Report on Form 10-Q
(Registrant No. 1-12248) for the second quarter of fiscal 1994 filed
with the Commission on October 15, 1993)
P 10(r) Contract (#DE-AC3495RF00825) between Kaiser-Hill Company, LLC, a
subsidiary of the Corporation, and the U.S. Department of Energy
dated as of April 4, 1995.
[IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO. 10(r)
WAS FILED IN PAPER ON MAY 23, 1995, ON FORM SE PURSUANT TO A
CONTINUING HARDSHIP EXEMPTION]
Exhibit No. 10 -- Material Contracts (management contracts, compensatory plans,
or arrangements.)
10(aa) Restated Executive Agreement dated as of December 20, 1990, and
Restated Compensation Agreement dated as of December 20, 1990, with
James O. Edwards (Incorporated by reference to Exhibit No. 10(p) to
Registration Statement on Form S-1 (No. 33-40628) filed with the
Commission on May 16, 1991)
1. Modification Letter dated January 13, 1992 (Incorporated by
reference to Exhibit No. 10(e) to Amendment No. 1 to Registration
Statement on Form S-1 (No. 33-44993) filed with the Commission on
February 11, 1992)
10(bb) Employment Agreement with James O. Edwards dated as of December 31,
1994.
10(cc) ICF Kaiser International, Inc. Corporate Incentive Compensation Plan:
Annual Incentive Plan (dated as of September 29, 1993) (Incorporated
by reference to Exhibit No. 10(aa) to Quarterly Report on Form 10-Q
(Registrant No. 1-12248) for the second quarter of fiscal 1994 filed
with the Commission on October 15, 1993)
10(dd) ICF Kaiser International, Inc. Non-employee Director Stock Option Plan
(as amended and restated as of June 26, 1993) (Incorporated by
reference to Exhibit No. 10(bb) to Quarterly Report on Form 10-Q
(Registrant No. 1-12248) for the second quarter of fiscal 1994 filed
with the Commission on October 15, 1993)
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 29
Form 10-K for Fiscal Year 1995
<PAGE>
10(ee) Agreement with Alvin S. Rapp, Executive Vice President of the
Registrant, dated November 1, 1993 (Incorporated by reference to
Exhibit No. 10(ll) to Amendment No. 1 to Registration Statement on
Form S-1 (No. 33-70986) filed with the Commission on November 22,
1993)
10(ff) Agreement with Douglas W. McMinn, Executive Vice President of the
Registrant, signed November 23, 1993 (Incorporated by reference to
Exhibit No. 10(mm) to Amendment No. 2 to Registration Statement on
Form S-1 (No. 33-70986) filed with the Commission on December 23,
1993)
10(gg) Employment Agreement with Marc Tipermas effective as of March 1, 1994
(Incorporated by reference to Exhibit No. 10(ll) to Annual Report on
Form 10-K filed with the Commission on May 25, 1994).
10(hh) Employment Agreement with Stephen W. Kahane effective as of March 1,
1994 (Incorporated by reference to Exhibit No. 10(mm) to Annual
Report on Form 10-K filed with the Commission on May 25, 1994).
10(ii) ICF Kaiser International, Inc. Senior Executive Officers Severance
Plan as approved by the Compensation Committee of the Board of
Directors on April 4, 1994, and adopted by the Board of Directors on
May 5, 1994 (Incorporated by reference to Exhibit No. 10(nn) to
Annual Report on Form 10-K filed with the Commission on May 25, 1994).
10(jj) Employment Agreement with Michael K. Goldman effective as of February
28, 1994.
Exhibit No. 21 -- Subsidiaries of the Registrant as of May 15, 1995
Exhibit No. 23 -- Consent of Coopers & Lybrand L.L.P. (the Registrant's
Independent Accountants)
Exhibit No. 27 -- Financial Data Schedule
(c) Reports on Form 8-K
None
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 30
Form 10-K for Fiscal Year 1995
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ICF Kaiser International, Inc.
(Registrant)
Date: May 15, 1995 By /s/ James O. Edwards
--------------------------
James O. Edwards
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
(1) Principal executive officer
Date: May 15, 1995 By /s/ James O. Edwards
--------------------------
James O. Edwards,
Chairman and Chief Executive Officer
(2) Principal financial and accounting officer
Date: May 15, 1995 By /s/ Richard K. Nason
--------------------------
Richard K. Nason,
Executive Vice President and
Chief Financial Officer
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 31
Form 10-K for Fiscal Year 1995
<PAGE>
(3) Board of Directors
Date: May 16, 1995 By /s/ Gian Andrea Botta
---------------------------
Gian Andrea Botta,
Director
Date: May 15, 1995 By /s/ Thomas Bradley
---------------------------
Thomas Bradley,
Director
Date: May 19, 1995 By /s/ Tony Coelho
---------------------------
Tony Coelho,
Director
Date: May 15, 1995 By /s/ James O. Edwards
---------------------------
James O. Edwards,
Director
Date: May 16, 1995 By /s/ Frederic V. Malek
---------------------------
Frederic V. Malek,
Director
Date: May , 1995 By
---------------------------
Rebecca P. Mark,
Director
Date: May 23, 1995 By /s/ Robert W. Page, Sr.
---------------------------
Robert W. Page, Sr.
Director
Date: May 15, 1995 By /s/ Marc Tipermas
---------------------------
Marc Tipermas,
Director
================================================================================
ICF Kaiser International, Inc. Annual Report on Page 32
Form 10-K for Fiscal Year 1995
<PAGE>
Report of Independent Accountants
---------------------------------
To the Board of Directors and Shareholders
ICF Kaiser International, Inc.
We have audited the consolidated financial statements and financial
statement schedule of ICF Kaiser International, Inc. and subsidiaries listed in
Item 14(a) of this Form 10-K. These financial statements and financial
statement schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of ICF Kaiser
International, Inc. and subsidiaries as of February 28, 1995 and 1994, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended February 28, 1995, in conformity with generally
accepted accounting principles. In addition, in our opinion, the financial
statement schedule referred to above, when considered in relation to the basic
financial statements taken as a whole, presents fairly, in all material
respects, the information required to be included therein.
COOPERS & LYBRAND L.L.P.
Washington, D.C.
April 28, 1995
===============================================================================
ICF Kaiser International, Inc. Annual Report on Page F-1
Form 10-K for Fiscal Year 1995
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
February 28, February 28,
1995 1994
---------------------------------------------------------------------------------------------------------------------
(In thousands)
ASSETS
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 28,233 $ 25,509
Contract receivables, net 139,860 128,166
Prepaid expenses and other current assets 12,097 20,451
Deferred income taxes 13,553 16,053
----------- -----------
Total Current Assets 193,743 190,179
----------- -----------
Fixed Assets
Furniture, equipment, and leasehold improvements 42,557 40,630
Less depreciation and amortization (29,648) (24,955)
----------- -----------
12,909 15,675
----------- -----------
Other Assets
Goodwill, net 47,945 49,916
Investments in and advances to affiliates 6,797 5,600
Due from officers and employees 1,826 1,830
Other 18,202 17,998
----------- -----------
74,770 75,344
----------- -----------
$ 281,422 $ 281,198
=========== ===========
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
<S> <C> <C>
Current Liabilities
Accounts payable and accrued expenses $ 46,811 $ 52,073
Accrued salaries and employee benefits 30,549 23,439
Accrued interest 2,528 2,108
Current portion of long-term debt 578 1,088
Income taxes payable 2,034 1,511
Deferred revenue 11,013 8,462
Other 7,365 10,773
----------- -----------
Total Current Liabilities 100,878 99,454
----------- -----------
Long-term Liabilities
Long-term debt, less current portion 126,733 121,954
Other 6,570 8,798
----------- -----------
133,303 130,752
----------- -----------
Commitments and Contingencies
Redeemable Preferred Stock 19,617 20,212
Common Stock, par value $.01 per share:
Authorized--90,000,000 shares
Issued and outstanding-- 21,011,369 and 20,924,588 shares 210 209
Additional Paid-in Capital 63,786 63,572
Notes Receivable Related to Common Stock (1,732) (1,732)
Retained Earnings (Deficit) (33,343) (29,528)
Cumulative Translation Adjustment (1,297) (1,741)
----------- -----------
$ 281,422 $ 281,198
=========== ===========
</TABLE>
See notes to consolidated financial statements.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-2
Form 10-K for Fiscal Year 1995
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year Ended
-----------------------------------------------
February 28, February 28, February 28,
1995 1994 1993
------------------------------------------------------------------------------------------------------------------
(In thousands, except per share amounts)
<S> <C> <C> <C>
Gross Revenue $ 861,518 $ 651,657 $ 678,882
Subcontract and direct material costs (405,819) (272,169) (293,063)
Equity in income of joint ventures
and affiliated companies 4,087 3,220 5,709
----------- ----------- -----------
Service Revenue 459,786 382,708 391,528
Operating Expenses
Direct cost of services and overhead 393,096 323,828 313,030
Administrative and general 43,770 45,842 43,702
Depreciation and amortization 9,232 9,559 10,766
Unusual items, net -- 8,709 (50)
Cost of disposal of businesses, net -- -- 1,336
----------- ----------- -----------
Operating Income (Loss) 13,688 (5,230) 22,744
Other Income (Expense)
Gain (loss) on sale of investment 551 (925) (929)
Interest income 1,799 1,490 1,708
Interest expense (14,799) (8,212) (8,629)
----------- ----------- -----------
Income (Loss) Before Income Taxes 1,239 (12,877) 14,894
Income tax provision (benefit) 2,900 (349) 6,255
----------- ----------- -----------
Net Income (Loss) Before Extraordinary Item (1,661) (12,528) 8,639
Extraordinary loss on early extinguishment of debt -- (5,969) --
----------- ----------- -----------
Net Income (Loss) (1,661) (18,497) 8,639
Preferred stock dividends and accretion 2,154 4,896 5,293
Redemption of redeemable preferred stock -- 1,929 --
----------- ----------- -----------
Net Income (Loss) Available for Common Shareholders $ (3,815) $ (25,322) $ 3,346
=========== =========== ===========
Primary and Fully Diluted Net Income (Loss)
Per Common Share:
Before extraordinary item and redemption
of redeemable preferred stock $ (0.18) $ (0.83) $ 0.16
Extraordinary loss on early extinguishment of debt -- (0.29) --
Redemption of redeemable preferred stock -- (0.09) --
----------- ----------- -----------
Total $ (0.18) $ (1.21) $ 0.16
=========== =========== ===========
Primary and Fully Diluted Weighted Average
Common and Common Equivalent
Shares Outstanding 20,957 20,886 21,272
=========== =========== ===========
</TABLE>
See notes to consolidated financial statements.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-3
Form 10-K for Fiscal Year 1995
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Series 1 Junior Notes
Convertible Preferred Receivable
Stock Common Stock Additional Related to Retained Cumulative ESOP
--------------------- ------------------ Paid-in Common Earnings Translation Guaranteed
Shares Par Value Shares Par Value Capital Stock (Deficit) Adjustment Bank Loan
------------------------------------------------------------------------------------------------------------------------------------
(In thousands, except shares)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, March 1, 1992 69 $6,900 18,270,652 $182 $64,382 ($3,387) ($7,552) ($1,041) ($8,333)
Net income 8,639
Preferred stock dividends (5,026)
Preferred stock accretion (267)
Issuance of common stock 105,740 1 619
Repurchase of common stock (44,434) 0 (354)
Conversion of Series 3 Preferred
Stock into common stock 2,971,849 30 (29)
Payments received on notes
receivable 662
Decrease in loan balance 3,333
Foreign currency translation
adjustment (660)
Tax effect from the exercise of
non-qualified stock options 559
Other (137)
--------------------- -------------------- ------- ------- ------- ---------- -------
Balance, February 28, 1993 69 6,900 21,303,807 213 65,040 (2,725) (4,206) (1,701) (5,000)
Net loss (18,497)
Preferred stock dividends (4,670)
Preferred stock accretion (226)
Redemption of redeemable
preferred stock (1,929)
Repurchase of preferred stock (69) (6,900) 2,050
Issuance of common stock 231,249 2 1,056
Repurchase of common stock (610,468) (6) (3,716)
Issuance of warrants 900
Repurchase of warrants (1,909)
Payments received on notes
receivable 993
Decrease in loan balance 5,000
Foreign currency translation
adjustment (40)
Other 151
--------------------- -------------------- ------- ------- ------- ---------- -------
Balance, February 28, 1994 -- -- 20,924,588 209 63,572 (1,732) (29,528) (1,741) --
Net loss (1,661)
Preferred stock dividends (1,950)
Preferred stock accretion (204)
Issuance of common stock 161,781 2 393
Repurchase of common stock (75,000) (1) (179)
Foreign currency translation
adjustment 444
--------------------- -------------------- ------- ------- ------- ---------- -------
Balance, February 28, 1995 -- $ -- 21,011,369 $210 $63,786 ($1,732) $33,343) ($1,297) $ --
===================== ==================== ======= ======= ======= ========== =======
</TABLE>
See notes to consolidated financial statements.
================================================================================
ICF Kaiser International Inc. Annual Report on Page F-4
Form 10-K for Fiscal Year 1995
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended
----------------------------------------------
February 28, February 28, February 28,
1995 1994 1993
------------------------------------------------------------------------------------------------------------------------------------
(In thousands)
<S> <C> <C> <C>
Operating Activities
Net income (loss) $ ($1,661) $ (18,497) $ 8,639
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Extraordinary loss on early extinguishment of debt -- 5,969 --
Depreciation and amortization 9,232 9,559 10,766
Provision for losses on accounts receivable 1,320 2,241 2,202
Provision for deferred income taxes 2,500 (714) 4,311
Earnings (in excess of) less than cash distributions from joint
ventures and affiliated companies 972 (1,708) (3,690)
(Gain) loss on sale of investment (551) 925 929
Unusual items, net of cash -- 7,786 (50)
Decrease in reserve for restructuring and disposal of
businesses, net of cash -- -- (6,426)
Changes in operating assets and liabilities related to
operating activities, net of dispositions:
Contract receivables, net (13,014) 26,292 (12,761)
Prepaid expenses and other current assets 4,471 4,614 3,750
Other assets (1,649) (745) (257)
Accounts payable and accrued expenses 2,218 (10,233) (8,622)
Income taxes payable 523 (2,478) (930)
Deferred revenue 2,551 (2,412) (11,753)
Other liabilities (5,329) (2,660) (2,505)
---------- ----------- -----------
Net Cash Provided by (Used in) Operating Activities 1,583 17,939 (16,397)
---------- ----------- -----------
Investing Activities
Investments in subsidiaries and affiliates (622) (2,755) (1,146)
Purchases of fixed assets, net (2,426) (1,388) (4,638)
Sales of subsidiaries and subsidary assets 2,600 -- 35,695
Other investing activities -- -- 387
---------- ----------- -----------
Net Cash Provided by (Used in) Investing Activities (448) (4,143) 30,298
---------- ----------- -----------
Financing Activities
Proceeds from issuance of senior subordinated notes and
related warrants -- 121,488 --
Principal payments on credit facility -- (45,000) (38,099)
Proceeds from borrowings from credit facility 5,000 10,000 30,000
Principal payments on other borrowings (1,172) (2,010) (4,866)
Proceeds from other borrowings -- -- 4,357
Reacquisition of senior subordinated notes and related warrants -- (35,809) --
Repurchase of redeemable preferred stock and related warrants (799) (27,363) (799)
Repurchase of preferred stock -- (4,850) --
Proceeds from (uses in) common stock transactions 215 (1,520) 130
Preferred stock dividends (1,950) (5,321) (3,876)
Debt issuance costs (149) (6,307) (159)
---------- ----------- -----------
Net Cash Provided by (Used in) Financing Activities 1,145 3,308 (13,312)
---------- ----------- -----------
Effect of Exchange Rate Changes on Cash 444 (40) (660)
---------- ----------- -----------
Increase (Decrease) in Cash and Cash Equivalents 2,724 17,064 (71)
Cash and Cash Equivalents at Beginning of Period 25,509 8,445 8,516
---------- ----------- -----------
Cash and Cash Equivalents at End of Period $ 28,233 $ 25,509 $ 8,445
========== =========== ===========
Supplemental Information:
Cash payments for interest $ 14,961 $ 10,565 $ 9,447
Cash payments (refunds) for income taxes (1,026) (106) (416)
Non-cash Transactions:
Decrease of ESOP guaranteed bank loan -- (5,000) (3,333)
Sale of investment 735 2,600 --
</TABLE>
See notes to consolidated financial statements.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-5
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A--ORGANIZATION
ICF Kaiser International, Inc. (ICF Kaiser or the Company) was formed on
October 19, 1987, as a holding company for the ICF Kaiser family of companies
developed since inception (1969). These companies provide engineering,
construction, and consulting services primarily to the environmental,
infrastructure, industrial, and energy markets both in the United States and
abroad.
NOTE B--SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation: The consolidated financial statements include
all majority-controlled subsidiaries of ICF Kaiser. Investments in joint
ventures and affiliated companies are accounted for using the equity method.
The difference between the carrying value of investments accounted for under the
equity method and the Company's underlying equity is amortized on a straight-
line basis over the lives of the underlying assets. All significant
intercompany accounts and transactions have been eliminated.
Revenue Recognition: Revenue is recorded on cost-type contracts as costs
are incurred. Revenue on time-and-materials contracts is recognized to the
extent of billable rates times hours delivered plus materials expense incurred.
Revenue on long-term, fixed-price contracts is recognized generally using the
percentage-of-completion method and, therefore, includes a proportion of
expected earnings based on costs incurred to total estimated costs.
Foreign Currency Translation: Results of operations for foreign entities
are translated using the average exchange rates during the period. Assets and
liabilities are translated to U.S. dollars using the exchange rate in effect at
the balance sheet date. Resulting translation adjustments are reflected in
shareholders' equity as cumulative translation adjustment.
Statement of Cash Flows: ICF Kaiser considers all highly liquid financial
instruments purchased with original maturities of three months or less to be
cash equivalents. Other assets included $600,000 of restricted cash and short-
term investments as of February 28, 1995, which supports a letter of credit for
one of ICF Kaiser's subsidiaries.
Fixed Assets: Furniture and equipment are carried at cost, or fair value
at acquisition if acquired through a purchase of a business, and are depreciated
using the straight-line method over their estimated useful lives ranging from
three to 10 years. Leasehold improvements are carried at cost and are amortized
using the straight-line method over the remaining lease term.
Goodwill: Goodwill represents the excess of cost over the fair value of
the net assets of acquired businesses and is amortized using the straight-line
method over periods ranging from five to 40 years. The Company evaluates the
recoverability of goodwill on an annual basis by examining the recoverability of
goodwill through undiscounted operating income. Accumulated amortization was
$11,148,000 and $9,178,000 at February 28, 1995 and 1994, respectively.
Income Taxes: The Company provides for deferred income taxes using the
liability method on temporary differences between financial reporting and income
tax reporting, which primarily relate to reserves for adjustments and
allowances. If necessary, management records a valuation allowance for deferred
tax assets. The most significant permanent differences between book and taxable
income are goodwill amortization, which generally is not deductible, the
repatriation of overseas funds to the United States, and differences between the
book and tax basis of businesses sold.
Postretirement Benefits: Effective March 1, 1993, ICF Kaiser adopted
Statement of Financial Accounting Standards No. 106, Employers' Accounting for
Postretirement Benefits Other Than Pensions (SFAS No. 106). Prior to the
adoption of SFAS No. 106, ICF Kaiser had been recognizing the cost of
postretirement benefits when paid. The Company elected the prospective
transition method of recognizing the transition obligation (see Note N).
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-6
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Net Income (Loss) Per Common Share: Net income (loss) per common share is
computed using net income (loss) available for common shareholders, as adjusted
under the modified treasury stock method, and the weighted average number of
common stock and common stock equivalents outstanding during the year. Common
stock equivalents include stock options and warrants and the potential
conversion of convertible preferred stock. The adjustments required by the
modified treasury stock method to net income (loss) available for common
shareholders and the impact of common stock equivalents on the weighted average
number of shares are anti-dilutive for all periods presented and, therefore, are
excluded from earnings per share computations.
Concentrations of Credit Risk: The Company maintains cash balances
primarily in overnight Eurodollar deposits, investment-grade commercial paper,
bank certificates of deposit, and U.S. government securities. ICF Kaiser grants
uncollateralized credit to its customers. Approximately one-half of ICF
Kaiser's contract receivables are from the U.S. government (see Note D). When
practical and in order to mitigate its credit risk to commercial customers, ICF
Kaiser obtains advance funding of costs for industrial construction work.
Reclassification: Certain items in the fiscal 1994 and 1993 financial
statements have been reclassified to conform to the fiscal 1995 presentation.
NOTE C--DIVESTITURES
The Company sold a 20% interest in a French subsidiary resulting in a
$551,000 pretax gain in fiscal 1995. In fiscal 1994, ICF Kaiser sold a portion
of its energy engineering business resulting in a $925,000 pretax loss. In
fiscal 1993, the Company sold its investment in Acer Group Limited resulting in
a $929,000 pretax loss.
<TABLE>
<CAPTION>
NOTE D--CONTRACT RECEIVABLES
February 28, February 28,
1995 1994
------------ ------------
(In thousands)
<S> <C> <C>
U.S. government agencies:
Currently due $ 36,752 $ 31,911
Retention 2,026 2,370
Unbilled 34,273 29,131
-------- --------
73,051 63,412
-------- --------
Commercial clients and state
and municipal governments:
Currently due 69,317 56,430
Retention 4,522 5,926
Unbilled 2,834 12,595
-------- --------
76,673 74,951
-------- --------
149,724 138,363
Less allowances for uncollectible receivables
and other adjustments 9,864 10,197
-------- --------
$139,860 $128,166
======== ========
</TABLE>
U.S. government receivables arise from U.S. government prime contracts and
subcontracts. Unbilled receivables result from revenue that has been earned
but was not billed as of the end of the year. The unbilled receivables can be
invoiced at contractually defined intervals and milestones, as well as upon
completion of the contract or the federal government cost audit. Generally,
retention is not expected to be realized within one year; consistent with
industry practice, these receivables are classified as current. Management
anticipates that the remaining unbilled receivables will be substantially billed
and collected in one year.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-7
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
NOTE E--JOINT VENTURES AND AFFILIATED COMPANIES
ICF Kaiser has ownership interests in certain corporate joint ventures and
affiliated companies that are engaged in the same general business as the
Company. ICF Kaiser's investments in and advances to these corporate joint
ventures and affiliated companies are summarized as follows (in thousands):
<TABLE>
<CAPTION>
Ownership
Interest at
February 28, February 28, February 28,
1995 1995 1994
------------- ------------ ------------
<S> <C> <C> <C>
Gary PCI Ltd. L.P. 50% $4,315 $3,325
LIFAC North America 50% 1,914 1,914
KJK Joint Venture 33% - 2,769
Other 20% to 50% 1,793 669
------ ------
8,022 8,677
Less amounts classified
within other current assets 1,225 3,077
------ ------
$6,797 $5,600
====== ======
</TABLE>
Combined summarized unaudited financial information of all of ICF Kaiser's
corporate joint ventures and affiliated companies is as follows (in thousands):
<TABLE>
<CAPTION>
February 28, February 28, February 28,
1995 1994 1993
------------ ------------ ------------
<S> <C> <C> <C>
Current assets $15,103 $ 27,041 $ 22,466
Non-current assets 12,723 6,608 20,761
Current liabilities 15,875 19,034 20,630
Non-current liabilities 55 455 -
Gross revenue 52,616 51,282 226,944
Net income 8,430 8,908 17,471
NOTE F--LONG-TERM DEBT
ICF Kaiser's long-term debt is
as follows (in thousands):
February 28, February 28,
1995 1994
------------ ------------
12% senior subordinated notes due
2003 $125,000 $125,000
Revolving credit facility (average
interest rate of
8.7% for fiscal 1995) 5,000 0
Other notes, principal, and interest
at varying
rates and installments through
February 2010 1,209 2,381
-------- --------
Total 131,209 127,381
Less unamortized discount on 12% senior
subordinated notes 3,898 4,339
-------- --------
127,311 123,042
Less current maturities 578 1,088
-------- --------
Long-term debt $126,733 $121,954
======== ========
</TABLE>
Scheduled maturities of long-term debt outstanding at February 28, 1995,
are as follows: $578,000 in fiscal 1996, $5,040,000 in fiscal 1997, $32,000 in
fiscal 1998, $25,000 in fiscal 1999, $27,000 in fiscal 2000, and $125,507,000
thereafter.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-8
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
On January 11, 1994, ICF Kaiser issued 125,000 Units, each Unit consisting
of $1,000 principal amount of the Company's 12% Senior Subordinated Notes due
2003 (12% Notes) and 4.8 warrants, each to purchase one share of the Company's
common stock at an exercise price of $5.00 per share. The warrants expire on
December 31, 1998, and additional warrants may be issued under certain anti-
dilution provisions. Of the net issue price of $121,487,500 ($125,000,000 less a
$3,512,500 discount), $900,000 was allocated to the value of the 600,000
warrants and $120,587,500 to the 12% Notes. The net proceeds were used, in part,
to retire the Company's 13.5% Senior Subordinated Notes due 1999 (13.5% Notes),
to repurchase preferred stock, to repay the outstanding balance on the Company's
then-existing revolving credit facility, and to repurchase warrants associated
with the 13.5% Notes and preferred stock. The recapitalization resulted in a
$6.0 million extraordinary charge (net of $0 tax benefit due to the
unanticipated decline in fiscal 1994's fourth-quarter results) for the early
extinguishment of debt and a $1.9 million charge to retained earnings to
repurchase the Series 2C Senior Preferred Stock.
The Company's payment obligations under the 12% Notes are subordinate to
its obligations under the Company's revolving credit facility. Interest payments
are due semiannually. The 12% Notes may not be prepaid at the Company's option
prior to December 31, 1998. Subsequent to that date, the Company may prepay the
12% Notes at a premium. In addition, the Company agreed to certain business and
financial covenants, including restrictions on indebtedness, dividends,
acquisitions, and certain types of investments and asset sales. At February 28,
1995, the fair value of the 12% Notes was approximately $110.6 million. The fair
value was computed using an average of recently quoted market prices obtained
from financial institutions. Debt issuance costs of $4.2 million and $4.6
million associated with the 12% Notes are classified as other assets at February
28, 1995 and 1994, respectively, in the accompanying balance sheets. These costs
and the discount on the 12% Notes are being amortized over the life of the
notes.
The Company has a $60 million revolving credit facility (the Credit
Facility) provided by a consortium of banks (the Banks). ICF Kaiser
International, Inc. and certain of its subsidiaries, which are guarantors of the
Credit Facility, granted the Banks a security interest in their accounts
receivable and certain other assets. The Credit Facility limits the payment of
cash dividends, requires the maintenance of specified financial ratios, and has
a $20 million limitation on cash borrowings. ICF Kaiser and the Banks entered
into an amendment as of February 28, 1995, that modified financial ratios and
other terms of the Credit Facility. As of February 28, 1995, there were $5.0
million in borrowings outstanding under the Credit Facility, in addition to
letters of credit, and the Company had $30.3 million of available credit under
the Credit Facility. The Credit Facility contains Eurodollar and alternate base
interest rate alternatives with margins dependent upon the Company's financial
operating results and expires on October 31, 1996. ICF Kaiser had outstanding
letters of credit in the amount of $9.6 million at February 28, 1995,
principally in support of performance guarantees under certain contracts.
There are 275,088 common stock warrants that were issued with the 13.5%
Notes that remain outstanding following the repurchase of the other warrants in
January 1994. The warrants expire on May 15, 1999, and are exercisable at any
time for shares of ICF Kaiser Common Stock at $6.87 per share. Additional
warrants may be issued under certain anti-dilution provisions.
NOTE G--CONTINGENCIES
Normally in the Company's business, various claims or charges are asserted
and litigation commenced against the Company arising from or related to
properties, injuries to persons, and breaches of contract, as well as claims
related to acquisitions and dispositions. Claimed amounts may not bear any
reasonable relationship to the merits of the claim or to a final court award. In
the opinion of management, an adequate reserve has been provided for final
judgments, if any, in excess of insurance coverage, that might be rendered
against the Company in such litigation.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-9
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
The Company may from time to time, either individually or in conjunction
with other government contractors operating in similar types of businesses, be
involved in U.S. government investigations for alleged violations of procurement
or other federal laws and regulations. The Company currently is the subject of
a number of U.S. government investigations and is cooperating with the
responsible government agencies involved. No charges presently are known to
have been filed against the Company by these agencies. Management does not
believe that there will be any material adverse effect on the Company's
financial position, operations, or cash flows as a result of these
investigations.
The Company has a substantial number of cost-reimbursement contracts with
the U.S. government, the costs of which are subject to audit by the U.S.
government. As a result of such audits, the government asserts, from time to
time, that certain costs claimed as reimbursable under government contracts
either were not allowable or not allocated in accordance with federal
procurement regulations. Management believes that the potential effect of
disallowed costs, if any, for the periods currently under audit and for periods
not yet audited, has been provided for adequately and will not have a material
adverse effect on the Company's financial position, operations, or cash flows.
NOTE H--INCOME TAXES
The components of income (loss) before income taxes and the related
provision (benefit) for income taxes are as follows (in thousands):
<TABLE>
<CAPTION>
Fiscal Year
1995 1994 1993
--------- ---------- ---------
<S> <C> <C> <C>
Income (loss) before income taxes:
Domestic $1,217 $(11,894) $13,362
Foreign 22 (983) 1,532
------ -------- -------
$1,239 $(12,877) $14,894
====== ======== =======
Provision (benefit) for income taxes:
Federal:
Current $ 120 $ - $ 1,074
Deferred 2,328 (652) 3,517
------ -------- -------
2,448 (652) 4,591
------ -------- -------
State:
Current 100 - 420
Deferred 172 (62) 794
------ -------- -------
272 (62) 1,214
------ -------- -------
Foreign:
Current 180 365 450
------ -------- -------
$2,900 $ (349) $ 6,255
====== ======== =======
</TABLE>
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-10
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
The tax effect of the principal temporary differences and carryforwards
that give rise to the Company's deferred tax asset is as follows (in thousands):
<TABLE>
<CAPTION>
February 28, February 28,
1995 1994
------------- -------------
<S> <C> <C>
Reserves for adjustments and allowances $ 8,507 $10,068
Vacation and incentive compensation accruals 5,443 3,053
Net operating loss carryforwards 2,247 4,321
Tax credit carryforwards 1,063 940
Other (377) 1,001
------- -------
Deferred income tax asset 16,883 19,383
Valuation allowance (3,330) (3,330)
------- -------
Deferred income tax asset, net $13,553 $16,053
======= =======
</TABLE>
Because of the reported fiscal 1994 losses, a $3.3 million valuation
allowance was established in fiscal 1994 for deferred tax assets. In fiscal
1995, although pretax income increased $14.1 million to $1.2 million, the
Company has maintained the valuation allowance. The Company has deferred tax
assets related to net operating loss carryforwards of $2.2 million, of which
$0.4 million expire in fiscal 2004 and $1.8 million expire in 2009.
Additionally, the Company has $1.1 million of tax credit carryforwards, the
majority of which do not expire.
The actual income tax provision (benefit) varied from the income tax
provision (benefit) at the federal statutory rate over the last three years
because of the following differences (in thousands):
<TABLE>
<CAPTION>
February 28, February 28, February 28,
1995 1994 1993
------------ ------------- -------------
<S> <C> <C> <C>
Income tax (benefit) computed at
federal statutory tax rate $ 421 $(4,378) $5,064
------ ------- ------
Changes in tax rate (benefit) from:
Goodwill amortization 867 1,274 793
Differences between book and tax
basis of businesses sold 92 947 (508)
State income taxes 180 (41) 801
Foreign taxes 840 615 (215)
Valuation allowance - 1,180 -
Meals and entertainment 358 185 59
Other 142 (131) 261
------ ------- ------
2,479 4,029 1,191
------ ------- ------
$2,900 $ (349) $6,255
====== ======= ======
</TABLE>
The fiscal 1995 tax provision reflects the repatriation of overseas funds
to the United States during fiscal 1995, that currently could not be offset by
foreign tax credits. During fiscal 1995, ICF Kaiser's 1989-1992 tax returns
were accepted as filed, resulting in the receipt of refunds from the Internal
Revenue Service (IRS) with interest. An agreement also was reached with the IRS
as to the amount of interest owed in connection with previously settled years
(1977-1986). The overall impact on pretax earnings was a reduction of net
interest expense of $1.3 million related to interest refunds.
In fiscal 1993, ICF Kaiser reached a favorable settlement with the IRS on
the examination of ICF Kaiser Engineers Group, Inc.'s (KEGI) income tax returns
for 1977-1986. This resolution allowed the Company to adjust a portion of the
amounts previously provided for in connection with the 1988 acquisition of KEGI
and its subsidiaries. The resolution of this pre-acquisition contingency has
been reflected in unusual items in the accompanying statement of operations for
fiscal 1993 (see Note P). The IRS previously had
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-11
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
completed its review of KEGI's 1987 and 1988 income tax returns without
adjustment. As such, all years through 1988 are closed. In fiscal 1993, ICF
Kaiser also reached an agreement with a former subsidiary to retain its net
operating losses, which favorably reduced the effect of differences between the
book and tax basis of the Company.
NOTE I--PREFERRED STOCK
Preferred Stock of the Company is as follows:
<TABLE>
<CAPTION>
February 28, February 28,
1995 1994
------------- ------------
(In thousands)
<S> <C> <C>
Redeemable Preferred Stock (of Subsidiary), par value
$0.01 per share; liquidation value $21,280,000;
authorized 3,500,000 shares;
issued and outstanding - 700,000 shares at
February 28, 1994 $ - $ 799
------- -------
Series 2D Senior Preferred Stock, par value
$0.01 per share; liquidation value $20,000,000;
200 shares designated, issued, and
outstanding 20,000 20,000
Less unamortized discount, warrant value, and issue
costs (383) (587)
------- -------
19,617 19,413
------- -------
Redeemable Preferred Stock $19,617 $20,212
======= =======
</TABLE>
Redeemable Preferred Stock (of Subsidiary): In connection with the
acquisition of KEGI, 3,500,000 shares of KEGI Series 1 Redeemable Preferred
Stock were issued to the KEGI Employee Stock Plan Trust in partial consideration
for ICF Kaiser's purchase of all of the outstanding shares of Series A and
Series P Preferred Stock of KEGI. Dividends on these shares were $0.0685 per
share per annum noncumulative, payable annually. A total of 700,000 shares were
redeemed during each of the fiscal years 1995, 1994, and 1993. The final
redemption was made on September 30, 1994.
Senior Preferred Stock: The Series 2D Senior Preferred Stock (Series 2D
Preferred Stock) together with five-year detachable warrants (Series 2D
Warrants) were issued in fiscal 1992 for a price of $20,000,000 (less a discount
of $100,000). Of the net price of $19,900,000, $400,000 was allocated to the
value of the warrants and $19,500,000 was allocated to the value of the stock.
The value of the Series 2D Preferred Stock was reduced further by issue costs.
Dividends on the Series 2D Preferred Stock are $9,750 per share per annum,
cumulative. Each of the shares has a liquidation preference of $100,000 ($20
million in the aggregate). The issue carries voting rights equal to 2,380,952
shares of ICF Kaiser Common Stock. The Series 2D Preferred Stock may be
redeemed at ICF Kaiser's option at 106.25% of the original price and is subject
to mandatory redemption at liquidation value on January 13, 1997.
The Series 2D Warrants expire in May 1997 and may be exercised for
2,680,952 shares of ICF Kaiser Common Stock at an exercise price of $6.90 per
share. In lieu of exercising the warrants, the holder may, at the holder's
option, require the Company to pay it cash or issue shares of ICF Kaiser's
Common Stock equal to the difference between the current market price of the
Company's common stock and 90% of the warrants' current exercise price.
Additional warrants may be issued under certain anti-dilution provisions.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-12
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Junior Preferred Stock: The Company has designated 200 shares of Series 1
Junior Convertible Preferred Stock, par value $0.01 per share, with a
liquidation value of $20,000,000 and 500,000 shares of Series 4 Junior Preferred
Stock, par value $0.01 per share, with a liquidation value of $500,000. There
were no shares issued or outstanding on either series as of February 28, 1995
and 1994.
NOTE J--COMMON STOCK
Notes Receivable Related to Common Stock: Notes receivable related to ICF
Kaiser Common Stock pertain to the issuance of promissory notes to certain
members of senior management in accordance with their compensation agreements
collateralized by shares of ICF Kaiser Common Stock.
Shareholder Rights Plan: The Shareholder Rights Plan (Rights Plan) is
designed to provide the Board of Directors (the Board) with the ability to
negotiate with a person or group that might, in the future, make an unsolicited
attempt to acquire control of ICF Kaiser, whether through the accumulation of
shares in the open market or through a tender offer that does not offer an
adequate price. The Rights Plan provides for one Right (Right) for each
outstanding share of ICF Kaiser Common Stock. Each Right entitles the holder to
purchase 1/100 of a share of Series 4 Junior Preferred Stock at a purchase price
of $50. The Rights generally may cause substantial dilution to a person or
group that attempts to acquire the Company on terms not approved by the Board.
The Rights should not interfere with any merger or other business combination
approved by the Board because the Board may, at its option, following the
acquisition by any person or group of 20% of the outstanding shares of ICF
Kaiser Common Stock, redeem the Rights upon payment of the redemption price of
$0.01 per Right. The Rights are not triggered by the acquisition of beneficial
ownership of more than 20% of ICF Kaiser Common Stock by the initial holder of
the Series 2D Preferred Stock. Unless redeemed earlier by the Board,
unexercised Rights expire on January 13, 2002.
NOTE K--LEASES
Future minimum payments on noncancelable operating leases for office space,
and on other noncancelable operating leases with initial or remaining terms in
excess of one year, were as follows on February 28, 1995 (in thousands):
<TABLE>
<CAPTION>
Year Ended Operating
February 28, Leases
------------ ---------
<S> <C>
1996 $ 25,070
1997 19,940
1998 14,861
1999 13,500
2000 13,367
Thereafter 27,193
--------
$113,931
========
</TABLE>
The total rental expense for all operating leases was $31,176,000,
$30,833,000, and $31,567,000 in fiscal years 1995, 1994, and 1993, respectively.
Sublease rental income was $3,944,000, $2,225,000, and $1,435,000, in fiscal
years 1995, 1994, and 1993, respectively. Minimum future sublease rentals to be
received under noncancelable subleases during fiscal 1996 are approximately
$2,916,000.
NOTE L--STOCK OPTIONS
The ICF Kaiser Stock Incentive Plan provides for the issuance of
options, stock appreciation rights, restricted shares, and restricted stock
units of up to an aggregate of 6,000,000 shares of ICF Kaiser Common Stock.
Awards are made to employees of ICF Kaiser at the discretion of the
Compensation Committee of the Board. The plan provides that the option price is
not to be less than the fair market value on the date of grant.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-13
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENT (continued)
Stock option activity under this plan and other options granted for the
last three years is as follows:
<TABLE>
<CAPTION>
Shares Option Price
------ ------------
<S> <C> <C>
Balance, March 1, 1992 1,872,000 $3.46 to $17.00
Granted 1,096,000 $5.99 to $9.59
Cancelled (653,000) $3.46 to $16.23
Expired (339,000) $6.07 to $16.23
Exercised (30,000) $8.25
---------
Balance, February 28, 1993 1,946,000 $5.99 to $17.00
Granted 390,000 $4.17 to $6.79
Cancelled (10,000) $8.25 to $12.83
Expired (30,000) $5.04 to $12.83
---------
Balance, February 28, 1994 2,296,000 $4.17 to $17.00
Granted 824,000 $2.34 to $4.41
Cancelled (453,000) $2.64 to $16.23
Expired (250,000) $4.41 to $16.23
---------
Balance, February 28, 1995 2,417,000 $2.34 to $17.00
=========
Exercisable at
February 28, 1995 1,237,000 $2.34 to $17.00
=========
</TABLE>
The number of shares available for the granting of options was 1,969,000,
2,087,000, and 2,525,000 at February 28, 1995, 1994, and 1993, respectively. At
February 28, 1995, there were 50,000 exercisable options outstanding at an
option price below the February 28, 1995, fair market value of ICF Kaiser Common
Stock. In May 1992, the Company cancelled 570,000 options granted to employees
at exercise prices of $14.32 to $16.23 and granted an equal number of options to
them at an exercise price of $8.25.
NOTE M--EMPLOYEE BENEFIT PLANS
ICF Kaiser and certain of its subsidiaries sponsor several benefit plans
covering substantially all employees who meet minimum length of service
requirements. These plans include: the ICF Kaiser International, Inc.
Retirement Plan (Retirement Plan), a defined-contribution profit sharing plan
that provides for contributions by the Company based on a percentage of covered
compensation; the ICF Kaiser International, Inc. Section 401(k) Plan (401(k)
Plan), a cash or deferred-compensation arrangement that allows employees to
defer portions of their salary, subject to certain limitations; and the ICF
Kaiser International, Inc. Employee Stock Ownership Plan (ESOP) under which the
Company made contributions based on a percentage of covered compensation.
Effective March 1, 1993, the Company began matching a percentage of eligible
employee contributions to the 401(k) Plan. In fiscal 1994, the Company made
contributions equal to 20% of the first 4% of employee contributions to the
401(k) Plan and 2% of covered compensation to the ESOP. Effective March 1,
1994, the Company increased its matching contribution to the 401(k) Plan to 50%
of the first 4% of employee contributions and discontinued contributions to the
ESOP. Total contributions to these plans for fiscal years 1995, 1994, and 1993
were $6,466,000, $8,041,000, and $10,220,000, respectively.
NOTE N--POSTRETIREMENT BENEFITS
ICF Kaiser provides certain benefits, primarily health insurance, to a
limited group of retirees (and their spouses) who joined ICF Kaiser through an
acquisition. The cost of the postretirement benefits is funded when paid and
limited to a fixed amount per retiree or spouse per month. Effective March 1,
1993, ICF Kaiser adopted SFAS No. 106.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-14
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
The Company elected the prospective transition method of recognizing the
postretirement benefit expenses. Under this method, the Company's $14.2 million
accumulated postretirement benefit obligation (APBO) at March 1, 1993, is being
amortized over 14.5 years, the average remaining life expectancy of the retirees
and their spouses. A discount rate of 7% was used to determine the APBO.
Effective January 1995, the Company reduced its APBO through a reduction in
health care costs for certain participants by offering alternative health care
options that reduced the premiums paid by both the Company and the retiree. The
health care costs for those participants is less than the Company's maximum per
person obligation. A 5% health care cost trend rate was assumed to value the
APBO at February 28, 1995, for all future years until the year 2005 when the
cost will be in excess of the Company's maximum obligation. A one-percentage-
point increase in the health care cost trend rate would increase the APBO at
February 28, 1995, by approximately 2%. Due to changes in assumptions made
during fiscal 1995, including the change in health care options, the APBO was
reduced by approximately $4 million, which will be amortized over the average
remaining life expectancy of the retirees and their spouses.
The funded status of the plan is as follows (in thousands):
<TABLE>
<CAPTION>
February 28, February 28,
1995 1994
------------- -------------
<S> <C> <C>
Accumulated postretirement benefit
obligation $ 9,537 $ 14,772
Unamortized transition obligation (12,257) (13,236)
Unrecognized net gain (loss) 4,121 (1,271)
-------- --------
Accrued postretirement benefit cost $ 1,401 $ 265
======== ========
</TABLE>
The net periodic postretirement benefit cost consisted of the following
components (in thousands):
<TABLE>
Fiscal Year
1995 1994
-------- --------
<S> <C> <C>
Interest cost $ 920 $ 938
Amortization of transition obligation 980 981
-------- --------
Net periodic postretirement benefit cost $ 1,900 $ 1,919
======== ========
</TABLE>
All service cost related to the retirees' benefits was included in the
Company's transition obligation due to the nature of the plans which prevent
additional employees from participating in them. Prior to the adoption of SFAS
No. 106, postretirement costs were recognized when paid. Postretirement costs
included in expenses in fiscal year 1993 were $1,695,000.
NOTE O--BUSINESS SEGMENT, MAJOR CUSTOMERS, AND FOREIGN OPERATIONS
Business Segment: ICF Kaiser operates predominantly in one industry
segment in which it provides engineering, construction, and consulting services.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-15
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
Major Customers: Gross revenue from major customers was as follows (in
thousands):
<TABLE>
<CAPTION>
Fiscal Year
1995 1994 1993
-------- ----------- --------
<S> <C> <C> <C>
U.S. Department of Energy $517,478 $312,889 $201,149
U.S. Environmental Protection Agency 62,783 63,109 72,382
Other U.S. government agencies 44,969 49,105 47,896
-------- -------- --------
Total U.S. government 625,230 425,103 321,427
USX Corporation and affiliates 5,408 6,880 91,032
-------- -------- --------
$630,638 $431,983 $412,459
======== ======== ========
</TABLE>
Foreign Operations: Gross revenue and operating income from foreign sales
(including sales originating in the United States) and foreign assets of all
consolidated subsidiaries and branches were as follows (in thousands):
<TABLE>
<CAPTION>
Fiscal Year
1995 1994 1993
--------- ------------ --------
<S> <C> <C> <C>
Foreign gross revenue
Europe $16,758 $11,600 $16,698
Pacific 35,189 21,997 33,709
Other 2,122 2,793 2,940
------- ------- -------
$54,069 $36,390 $53,347
======= ======= =======
Foreign operating income (loss)
Europe $ 2,600 $ 1,742 $ 682
Pacific (350) (1,899) 2,010
Other (44) (255) 158
------- ------- -------
$ 2,206 $ (412) $ 2,850
======= ======= =======
Foreign assets
Europe $ 9,950 $ 6,410 $ 4,565
Pacific 14,813 14,626 13,880
Other 182 14 29
------- ------- -------
24,945 $21,050 $18,474
======= ======= =======
</TABLE>
NOTE P--UNUSUAL ITEMS
In fiscal 1994, the Company completed a corporate reorganization, performed
a comprehensive review of its key business lines and its cost structure, and
designed and implemented action plans intended to return the Company to long-
term profitability. As a result, the Company recorded an $8.7 million pretax
charge to cover the cost of downsizing the work force, consolidating office
space, renegotiating significant leases, and restructuring certain international
operations. Management expects to complete office space consolidation plans in
fiscal 1996. All other actions have been substantially completed as of February
28, 1995.
During the year ended February 28, 1993, the Company recognized the impact
of several unusual items: a $5,000,000 reduction of pre-acquisition
contingencies (see Note H), offset by a charge to accrue the net settlement cost
and legal expenses related to a shareholder lawsuit ($1,400,000); the write-down
to net realizable value of certain software-related assets ($3,000,000); and a
charge for severance and related costs accrued as part of a cost-reduction plan
($550,000).
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-16
Form 10-K for Fiscal Year 1995
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (continued)
NOTE Q--SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
Quarterly financial information for fiscal years 1995 and 1994 is presented
in the following tables (in thousands, except per share amounts):
<TABLE>
<CAPTION>
4th Qtr 3rd Qtr 2nd Qtr 1st Qtr
---------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
1995
----
Gross revenue $206,154 $235,912 $208,961 $210,491
Service revenue $111,372 $125,345 $109,919 $113,150
Operating income $ 3,234 $ 2,962 $ 3,273 $ 4,219
Net income (loss) $ (943) $ (323) $ (613) $ 218
Primary and fully diluted
net loss per common share $ (0.07) $ (0.04) $ (0.05) $ (0.02)
Market price per share:
High $ 4.38 $ 4.13 $ 2.63 $ 3.88
Low $ 2.63 $ 2.38 $ 2.00 $ 2.25
1994
----
Gross revenue $197,588 $179,227 $146,830 $128,012
Service revenue $100,919 $103,910 $ 89,215 $ 88,664
Operating income (loss) $(13,450) $ 4,147 $ 4,006 $ 67
Net income (loss) before
extraordinary item $(14,567) $ 1,349 $ 1,347 $ (657)
Net income (loss) $(20,536) $ 1,349 $ 1,347 $ (657)
Primary and fully diluted
net income (loss) per
common share:
Before extraordinary item
and redemption of
redeemable
preferred stock $ (0.74) $ 0.00 $ 0.00 $ (0.09)
Extraordinary loss on early
extinguishment of debt (0.29) - - -
Redemption of redeemable
preferred stock (0.09) - - -
-------- -------- -------- --------
Total $ (1.12) $ 0.00 $ 0.00 $ (0.09)
======== ======== ======== ========
Market price per share:
High $ 5.00 $ 5.38 $ 5.50 $ 6.88
Low $ 3.63 $ 4.00 $ 3.75 $ 4.75
</TABLE>
At April 18, 1995, there were 20,980,960 shares of common stock outstanding
held by 1,301 holders of record.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page F-17
Form 10-K for Fiscal Year 1995
<PAGE>
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
(in thousands)
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
------------------------------------------------------------------------------------------
Additions
----------------
Balance at Charged to Balance at
beginning costs and end of
Description of period expenses Other Deductions period
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year ended February 28, 1995:
Deducted from asset account
Allowance for doubtful
accounts $10,197 $1,406 -- $1,739(1) $ 9,864
Deducted from asset account
and included in other
liabilities
Provision for future losses
on contracts 179 664 -- -- 843
------------------------------------------------------------
$10,376 $2,070 -- $1,739 $10,707
============================================================
Year ended February 28, 1994:
Deducted from asset account
Allowance for doubtful
accounts $ 8,977 $2,509 -- $1,289(2) $10,197
Included in other liabilities
Provision for future losses
on contracts 464 -- -- 285(3) 179
------------------------------------------------------------
$ 9,441 $2,509 -- $1,574 $10,376
============================================================
Year ended February 28, 1993:
Deducted from asset account
Allowance for doubtful
accounts $ 9,361 $3,085 -- $3,469(4) $ 8,977
Included in other liabilities
Provision for future losses
on contracts 2,351 564 -- 2,451(3) 464
------------------------------------------------------------
$11,712 $3,649 -- $5,920 $ 9,441
============================================================
------------------------------------------------------------------------------------------
</TABLE>
(1) Reflects amounts written off against the allowance and related accounts
receivable accounts and settlement of doubtful accounts.
(2) Reflects amounts written off against the allowance and related accounts
receivable accounts.
(3) Reflects losses charged against the provision for contract losses.
(4) Reflects amounts written off against the allowance and related accounts
receivable accounts and amounts written off to the provision for
restructuring and disposal of businesses.
================================================================================
ICF Kaiser International, Inc. Annual Report on Page S-1
Form 10-K for Fiscal Year 1995
<PAGE>
Exhibit 4(a)(1)
================================================================================
ICF KAISER INTERNATIONAL, INC., Issuer
TO
THE BANK OF NEW YORK, Trustee
---------------
First Supplemental Indenture
Dated as of February 17, 1995
---------------
12% Senior Subordinated Notes due 2003
================================================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE dated as of February 17, 1995, is entered
into by and between ICF KAISER INTERNATIONAL, INC., a Delaware corporation (the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed and delivered
an Indenture dated as of January 11, 1994 (the "Indenture") for the purpose of
issuing the Notes. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
WHEREAS, Section 10.02 of the Indenture provides that with the written
consent of the Holders of at least a majority in principal amount of the then-
outstanding Notes, the Company and the Trustee for the Notes may amend the
Indenture (such amendment hereinafter referred to as a supplemental indenture).
WHEREAS, the Company has obtained the written consent of the Holders of at
least a majority of the outstanding Notes as of February 17, 1995, to amend
Section 5.06(b)(G) and Section 5.06(b)(H) of the Indenture, with such amendment
to be effectuated by a supplemental indenture hereinafter referred to as the
First Supplemental Indenture to the Indenture.
WHEREAS, upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of the First
Supplemental Indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 10.06, the Trustee shall join with the Company in
the execution of the First Supplemental Indenture.
WHEREAS, the Trustee has accepted the trusts created by First Supplemental
Indenture and in evidence thereof has joined in the execution hereof.
NOW, THEREFORE,
This First Supplemental Indenture dated as of February 17, 1995,
WITNESSETH, that, in consideration of the premises and of acceptance by the
Trustee of the trusts created hereby and by the Indenture, and also for and in
consideration of the sum of one dollar to the Company duly paid by the Trustee
at or before the execution and delivery of this First Supplemental Indenture,
the receipt of which is hereby acknowledged, IT IS HEREBY COVENANTED AND AGREED,
by and between the Company and the Trustee, as follows:
1. Unless defined elsewhere herein, capitalized terms defined in the
Indenture dated as of January 11, 1994, are used herein as therein defined.
Page 2 of 5
<PAGE>
2. Section 5.06(b)(G) of the Indenture is hereby amended by inserting the
following language after the second semi-colon and before the word "or":
and provided, further, that prior to January 13, 1997, the Company
shall not redeem any of the outstanding shares of the Company's Series
2D Senior Preferred Stock until the Company delivers to the Trustee an
Officers' Certificate certifying that the Company's earnings before
interest and taxes for the most recent twelve (12) month period
calculated in accordance with generally accepted accounting principles
equalled or exceeded $27 million. Nothing contained in this further
proviso shall affect the Company's right to redeem the Series 2D
Senior Preferred Stock no later than January 13, 1997;
As amended, Section 5.06(b)(G) of the Indenture shall read in its entirety as
follows:
(G) the Company from redeeming for cash all (but not less than all) of
the outstanding shares of the Company's Series 2D Senior Preferred Stock;
provided, however, that such redemption shall not be at a price in excess
of the redemption price set forth in Section 17.01 of the Company's Amended
and Restated Certificate of Incorporation in effect as of the date of this
Indenture; and provided, further, that prior to January 13, 1997, the
Company shall not redeem any of the outstanding shares of the Company's
Series 2D Senior Preferred Stock until the Company delivers to the Trustee
an Officers' Certificate certifying that the Company's earnings before
interest and taxes for the most recent twelve (12) month period calculated
in accordance with generally accepted accounting principles equalled or
exceeded $27 million. Nothing contained in this further proviso shall
affect the Company's right to redeem the Series 2D Senior Preferred Stock
no later than January 13, 1997; or
3. Section 5.06(b)(H) of the Indenture is hereby amended to increase from
four (4) to six (6) the number of Series 2D Senior Preferred Stock regular
quarterly dividend payments payable under the provisions of Section 5.06(b)(H)
of the Indenture. In addition, Section 5.06(b)(H) is hereby amended to change
the word "regularly" to "regular" in order to correct a typographical error that
has been in the Indenture since January 11, 1994. As amended, Section
5.06(b)(H) of the Indenture shall read in its entirety as follows:
(H) the Company from making (1) the final redemption payment, in an
amount not to exceed $799,400, on the 700,000 outstanding shares of ICF
Kaiser Engineers Group, Inc. Series 1 Redeemable Preferred Stock on
September 30, 1994 or from paying on such date accumulated dividends on
such shares in an amount not to exceed $47,950 or (2) payments of up to six
regular quarterly dividends, each such quarterly dividend payment not to
exceed $487,500 in the aggregate or $2,437.50 per share on the outstanding
shares of the Company's Series 2D Senior Preferred Stock.
Page 3 of 5
<PAGE>
4. Miscellaneous
(a) The Trustee accepts the trusts created by the Indenture, as
amended and supplemented hereby, and agrees to perform the same upon the terms
and conditions of the Indenture.
(b) The recitals contained herein shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture.
(c) Each of the Company and the Trustee makes and reaffirms as of the
date of execution of this First Supplemental Indenture all of its respective
representations, warranties, covenants and agreements set forth in the
Indenture.
(d) All covenants and agreements in this First Supplemental Indenture
by the Company or the Trustee shall bind its respective successors and assigns,
whether so expressed or not.
(e) In case any provision in this First Supplemental Indenture shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
(f) Nothing in this First Supplemental Indenture, express or implied,
shall give to any person, other than the parties hereto and their successors
under the Indenture and the holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
(g) If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act of 1939, as may be amended from time to
time (the "Act"), that is required under such Act to be a part of and govern
this First Supplemental Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of such Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
First Supplemental Indenture as to modified or excluded, as the case may be.
(h) This First Supplemental Indenture shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to conflicts of laws provisions thereof.
(i) All provisions of this First Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as amended and supplemented by this First Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
Page 4 of 5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and the Company and the Trustee have caused their
respective corporate seals to be hereunto affixed and attested, all as of
February 17, 1995.
ICF KAISER INTERNATIONAL, INC.
By: /s/Richard K. Nason
-----------------------------------
Name: Richard K. Nason
Title: Executive Vice President and
Chief Financial Officer
[Seal}
ATTEST:
/s/Cynthia L. Hathaway
-----------------------------------
Cynthia L. Hathaway
Assistant Secretary
THE BANK OF NEW YORK
By: /s/Jim Leuzes
-----------------------------------
Title: Assistant Vice President
[Seal}
ATTEST:
/s/Marylou Miouin
-----------------------------------
Title: Assistant Vice President
Page 5 of 5
<PAGE>
Exhibit 10(a)(2)
SECOND AMENDMENT
----------------
SECOND AMENDMENT, dated as of August 31, 1994 (this "Amendment"), to the
---------
Credit Agreement, dated as of December 8, 1993 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among ICF KAISER
----------------
INTERNATIONAL, INC., a Delaware corporation ("the Company"), the lenders parties
-------
thereto ("the Lenders") and CHEMICAL BANK, a New York banking corporation, as
-------
agent (in such capacity, the "Agent").
-----
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the company, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Company has requested that the Lenders and the Agent agree
to amend certain provisions of the Credit Agreement, and the Lenders and the
Agent are agreeable to such request upon the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the Company, the Lenders and the Agent hereby agree as
follows:
1. Definitions. All terms defined in the Credit Agreement shall have
-----------
such defined meanings when used herein unless otherwise defined herein.
2. Amendment of Subsection 1.1. Subsection 1.1 of
---------------------------
the Credit Agreement is hereby amended by adding at the and of the definition of
"Consolidated Net Income" the following new proviso:
-----------------------
"; and provided, further, that, notwithstanding the foregoing proviso,
-------- -------
solely for the purpose of calculating compliance with the requirements of
subsections 7.1(a) and 7.1(b) hereof, "Consolidated Net Income" for the the
fiscal quarter of the Borrower ended August 31, 1994 shall include the
amount of the net gain directly attributable to the sale to Credit Lyonnais
of 1,998 shares of common stock of ICF Environnement, a private limited
company (Societe Anonyme), pursuant to the agreement with respect thereto
dated July 29, 1994, to the extent that such amount would be included in
determining "Consolidated Net Income" but for the provisions of clause (d) of
the preceding proviso to this definition, it being understood that such
amount to be included pursuant to this proviso is equal to approximately
$551,000."
<PAGE>
2
3. Representations; No Default. On and as of the date hereof, and
---------------------------
after giving effect to this Amendment, the Company confirms, reaffirms and
restates that the representations and warranties set forth in Section 4 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects, provided that the references to the Credit Agreement therein
--------
shall be deemed to be references to this Amendment and to the Credit Agreement
as amended by this Amendment.
4. Conditions to Effectiveness. This Amendment shall become effective
---------------------------
on and as of the date (the "Amendment Effective Date") that the Agent shall have
------------------------
received counterparts of this Amendment, duly executed and delivered by a duly
authorized officer of each of the Company, the Agent, and the Required Lenders,
along with the written consent of each Subsidiary Guarantor in the form attached
hereto.
5. Limited Amendment. Except as expressly waived and amended herein,
-----------------
the Credit Agreement shall continue to be, and shall remain, in full force and
effect. This Amendment shall not be deemed to be a waiver of, or consent to, or
a modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein, as the same may be amended from time to time.
6. Costs and Expenses. The Company agrees to pay or reimburse the
------------------
Agent for all its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, and the consummation of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of its
counsel.
7. Counterparts. This Amendment may be executed by one or more of the
------------
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemd to constitute one and the
sameinstrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
3
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ICF KAISER INTERNATIONAL, INC.
By: Rich K Nason
---------------------------
Title: Senior Vice President
and Treasurer
CHEMICAL BANK, as Agent, as
and as a Lender
By:
----------------------------
Title:
CHEMICAL BANK DELAWARE, as an
Issuing Bank
THE BANK OF TOKYO, LTD.,
NEW YORK AGENCY
By:
----------------------------
Title:
AMERICAN SECURITY BANK
By:
----------------------------
BHF-BANK
By:
----------------------------
Title:
By:
----------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------
Title:
<PAGE>
4
BANCA COMMERCIALE ITALIANA
NEW YORK BRANCH
By:
----------------------------
Title:
By:
----------------------------
Title:
THE FUJI BANK, LIMITED
By:
----------------------------
Title:
CORESTATES BANK, N.A.
By:
----------------------------
Title:
<PAGE>
5
CONSENT
Each of the undersigned Subsidiary Guarantors hereby consents and agrees
to the provisions of the foregoing Amendment, and hereby affirms that upon the
effectiveness of the foregoing Amendment, each Loan Document to which it is a
party shall continue to be, and shall remain, in full force and effect.
CLEMENT INTERNATIONAL CORPORATION
By: Rich K. Nason
----------------------------
Title: Authorized
Representative
CYGNA GROUP, INC.
By: Rich K. Nason
----------------------------
Title: Authorized
Representative
EXCELL DEVELOPMENT CONSTRUCTION,
INC.
By: Rich K. Nason
----------------------------
Title: Authorized
Representative
ICF CONSULTING ASSOCIATES, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
<PAGE>
6
ICF INCORPORATED
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF INFORMATION TECHNOLOGY, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF KAISER ENGINEERS GROUP, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF KAISER ENGINEERS, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
<PAGE>
7
ICF RESOURCES INCORPORATED
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF TECHNOLOGY INCORPORATED
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
KAISER ENGINEERS HANFORD COMPANY
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF LEASING CORPORATION, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
PHASE LINEAR SYSTEMS INCORPORATED
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
TUDOR ENGINEERING COMPANY
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
<PAGE>
8
HENRY J. KAISER COMPANY
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
ICF KAISER ENGINEERS (CALIFORNIA)
CORPORATION
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
KAISER ENGINEERS AND CONSTRUCTORS,
INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
KAISER ENGINEERS INTERNATIONAL,
INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
KE LIVERMORE, INC.
By: Rich K. Nason
-----------------------------
Title: Authorized
Representative
<PAGE>
9
ICF KAISER ENGINEERS MASSACHUSETTS,
INC.
By: Rich K. Nason
-------------------------------
Title: Authorized
Representative
ICF KAISER HOLDINGS UNLIMITED, INC.
By: Rich K. Nason
-------------------------------
Title: Authorized
Representative
ICF KAISER ENGINEERS CORPORATION
By: Rich K. Nason
------------------------------
Title: Authorized
Representative
KE SERVICES CORPORATION
By: Rich K. Nason
------------------------------
Title: Authorized
Representative
<PAGE>
1
Exhibit 10(a)(3)
THIRD AMENDMENT
---------------
THIRD AMENDMENT, dated as of February 28, 1995 (this "Amendment"), to
---------
the Credit Agreement, dated as of December 8, 1993 (as amended prior to the date
hereof and as further amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among ICF KAISER INTERNATIONAL, INC. a Delaware
----------------
corporation (the "Borrower"), the lenders parties thereto (the "Lenders") and
-------- -------
CHEMICAL BANK, a New York banking corporation, as agent (in such capacity, the
"Agent").
------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Company has requested that the Lenders and the Agent agree
to amend certain provisions of the Credit Agreement, and the Lenders and the
Agent are agreeable to such request upon the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the Company, the Lenders and the Agent hereby agree as
follows:
1. Definitions. All terms defined in the Credit Agreement shall have
-----------
such defined meanings when used herein unless otherwise defined herein.
2. Amendment of Subsection 1.1. (a) Subsection 1.1 of the Credit
---------------------------
Agreement is hereby amended by deleting therefrom the definition of "Adjusted
Consolidated Net Income" and inserting in lieu thereof the following new
definition:
'"Adjusted Consolidated Net Income": for any fiscal period,
--------------------------------
Consolidated Net Income for such fiscal period, plus, without duplication
----
and to the extent reflected as a charge in the statement of such
Consolidated Net Income, the sum of (a) income tax expense, (b) Consolidated
Interest Expense and (c) depreciation and amortization expense.'
(b) Subsection 1.1 of the Credit Agreement is hereby amended by adding,
in proper alphabetical order, the following new definitions:
'"Capital Expenditures": for any period the amount, without
--------------------
duplication, of expenditures of the Borrower and its Subsidiaries,
determined in accordance with GAAP on a consolidated basis for such period
in respect of the
<PAGE>
2
purchase or other acquisition of fixed or capital assets or additions to
equipment which should be capitalized under GAAP (including by way of the
acquisition of securities of a Person or otherwise), less the amount of the
net proceeds of sales in the ordinary course of business of such assets for
such period, it being understood that for the purposes hereof, expenditures
for "capital assets" shall not include acquisitions or investments described
in and permitted by subsection 7.10(g).'
'"Restricted Cash Amount": at any time, the aggregate amount of cash,
----------------------
Cash Equivalents and other similar short term investments, if any, of the
Borrower and its Subsidiaries on a consolidated basis (i) held in the
ordinary course of business in accounts located outside of the United States
solely because the repatriation thereof would, in the reasonable judgement
of the Borrower, result in substantial adverse tax consequences or (ii) held
in accounts for the purposes described in subsections 7.3(c) or (d), in each
case in accordance with the historical practices of the Company and its
Subsidiaries concerning working capital and cash management or payment of
Indebtedness or other obligations.'
'"Unrestricted Cash Amount": at any time, the aggregate amount of
------------------------
cash, Cash Equivalents and other similar short term investments, if any, of
the Borrower and its Subsidiaries on a consolidated basis other than the
Restricted Cash Amount at such time.'
3. Amendment of Subsection 2.3. Subsection 2.3 of the Credit Agreement
---------------------------
is hereby amended by deleting the second sentence thereof and inserting in lieu
thereof the following sentence:
"Each borrowing under the Commitments shall be in an amount equal to (x) in
the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then Available Commitments are less than $500,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $500,000 or a whole
multiple of $100,000 in excess thereof."
4. Amendment of Subsection 2.6. Subsection 2.6 of the Credit Agreement
---------------------------
is hereby amended by deleting the fourth sentence thereof and inserting in lieu
thereof the following sentence:
"Partial prepayments shall be in an aggregate principal amount of $500,000
or a whole multiple of $100,000 in excess thereof."
5. Amendment of Subsection 5.2. Subsection 5.2 of the Credit Agreement
---------------------------
is hereby amended by deleting paragraph (c)
<PAGE>
3
thereof and inserting in lieu thereof the following new paragraph (c):
"(c) Certificate. In the case of each Loan, the Agent shall have
-----------
received a certificate of a Responsible Officer of the Company certifying
that after giving effect to any such Loan and the application of the
proceeds thereof within two Business Days of the requested date of such
Loan, (i) the Restricted Cash Amount on such date will not be greater than
$15,000,000 and (ii) the Unrestricted Cash Amount on such date will not be
greater than $5,000,000."
6. Amendment of Subsection 7.1. (a) Subsection 7.1 of the Credit
---------------------------
Agreement is hereby amended by deleting such subsection 7.1 in its entirety and
inserting in lieu thereof the following new subsection 7.1:
"7.1 Financial Condition Covenants.
-----------------------------
(a) Fixed Charge Coverage. Permit, for each of (i) the fiscal quarters
---------------------
ending on each of February 28, 1995 and May 31, 1995, (ii) the period of two
consecutive fiscal quarters ending on August 31, 1995, (iii) the period of
three consecutive fiscal periods ending on November 30, 1995, (iv) the
period of four consecutive fiscal periods ending on February 28, 1996 and
(v) each period of four consecutive fiscal quarters ending thereafter, the
ratio of (i) the sum of (A) Adjusted Consolidated Net Income for such period
plus (B) Consolidated Lease Expense for such period minus (C) Capital
Expenditures for such period to (ii) the sum of (A) Consolidated Fixed
Charges for such period plus (B) the aggregate amount of dividends paid in
cash on shares of each class of preferred Capital Stock of the Borrower
during such period, to be less than the ratio set forth opposite such Test
Period below:
<TABLE>
<CAPTION>
Fixed Charge
Period Ending Coverage Ratio
------------------ --------------
<S> <C>
February 28, 1995 1.00:1.00
May 31, 1995 1.00:1.00
August 31, 1995 1.05:1.00
November 30, 1995 1.10:1.00
February 28, 1996 1.15:1.00
Thereafter 1.20:1.00
</TABLE>
(b) Interest Coverage. Permit, for each of (i) the fiscal quarters
-----------------
ending on each of February 28, 1995 and May 31, 1995, (ii) the period of two
consecutive fiscal quarters ending on August 31, 1995, (iii) the period of
three consecutive fiscal periods ending on November 30, 1995, (iv) the
period of four consecutive fiscal periods ending on February 28, 1996 and
(v) each period of four consecutive
<PAGE>
4
fiscal quarters ending thereafter, the ratio (the "Interest Coverage Ratio")
-----------------------
of (A) Adjusted Consolidated Net Income for such period to (B) Consolidated
Interest Expense for such period, to be less than the ratio set forth
opposite the last day of such period below:
<TABLE>
<CAPTION>
Interest
Period Ending Coverage Ratio
------------------ --------------
<S> <C>
February 28, 1995 1.40:1.00
May 31, 1995 1.45:1.00
August 31, 1995 1.50:1.00
November 30, 1995 1.60:1.00
February 28, 1996 1.80:1.00
Thereafter 2.00:1.00
</TABLE>
(c) Consolidated Funded Indebtedness to Consolidated Capital Funds.
--------------------------------------------------------------
Permit the ratio of Consolidated Funded indebtedness to Consolidated Capital
Funds on the last day of any fiscal quarter ending during any "Test Period"
set forth below to be greater than the ratio set forth opposite such period
below:
<TABLE>
<CAPTION>
Test Period Ratio
----------- --------
<S> <C>
Closing Date through May 31, 1994 .76:1.0
June 1, 1994 through November 30, 1994 .75:1.0
December 1, 1994 through August 31, 1995 .78:1.0
September 1, 1995 through November 30, 1995 .77:1.0
December 1, 1995 through February 28, 1996 .76:1.0
Thereafter .75:1.0"
</TABLE>
7. Amendment of Section 6. Section 6 of the Credit Agreement is hereby
----------------------
amended by adding at the end thereof the following new subsection:
"6.13 Restricted and Unrestricted Cash. Use its best efforts to manage
--------------------------------
its working capital and cash to ensure at all times that (i) the Restricted
Cash Amount does not exceed $15,000,000 or (ii) the Unrestricted Cash Amount
does not exceed $10,000,000, and, in the event that it becomes aware of any
such excess in existence at any time, promptly to prepay the Loans in the
amount of such excess at such time."
8. Representations; No Default. On and as of the date hereof, and
---------------------------
after giving effect to this Amendment, the Company confirms, reaffirms and
restates that the representations and warranties set forth in Section 4 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects, provided that the references to the Credit Agreement therein
--------
shall be deemed to be references to this Amendment and to the Credit Agreement
as amended by this Amendment.
<PAGE>
5
9. Conditions to Effectiveness. This Amendment shall become effective
---------------------------
on and as of the date (the "Amendment Effective Date") that:
------------------------
(a) the Agent shall have received counterparts of this Amendment, duly
executed and delivered by a duly authorized officer of each of the Company,
the Agent, and the Required Lenders, along with the written consent of each
Subsidiary Guarantor in the form attached hereto; and
(b) the Agent shall have received, for the account of each Lender, an
amendment fee in an amount equal to 3/8 of 1% of such Lender's total
Commitment.
10. Limited Amendment. Except as expressly waived and amended herein,
-----------------
the Credit Agreement shall continue to be, and shall remain, in full force and
effect. This Amendment shall not be deemed to be a waiver of, or consent to, or
a modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein, as the same may be amended from time to time.
11. Costs and Expenses. The Company agrees to pay or reimburse the
------------------
Agent for all its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Amendment, and the consummation of the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of its
counsel.
12. Counterparts. This Amendment may be executed by one or more of the
------------
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
6
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
ICF KAISER INTERNATIONAL, INC.
By:__________________________
Title:
CHEMICAL BANK, as Agent, as
and as a Lender
By:__________________________
Title:
CHEMICAL BANK DELAWARE, as an
Issuing Bank
By:__________________________
Title:
THE BANK OF TOKYO, LTD.,
NEW YORK AGENCY
By:__________________________
Title:
NATIONSBANK, N.A.
By:__________________________
Title:
BHF-BANK
By:__________________________
Title:
By:__________________________
Title:
<PAGE>
7
THE BANK OF NOVA SCOTIA
By:__________________________
Title:
BANCA COMMERCIALE ITALIANA
NEW YORK BRANCH
By:__________________________
Title:
By:__________________________
Title:
THE FUJI BANK, LIMITED
By:__________________________
Title:
CORESTATES BANK, N.A.
By:__________________________
Title:
<PAGE>
8
CONSENT
Each of the undersigned Subsidiary Guarantors hereby consents and agrees
to the provisions of the foregoing Amendment, and hereby affirms that upon the
effectiveness of the foregoing Amendment, each Loan Document to which it is a
party shall continue to be, and shall remain, in full force and effect.
CLEMENT INTERNATIONAL CORPORATION
By:__________________________
Title: Authorized
Representative
CYGNA GROUP, INC.
By:__________________________
Title: Authorized
Representative
EXCELL DEVELOPMENT CONSTRUCTION, INC.
By:__________________________
Title: Authorized
Representative
ICF CONSULTING ASSOCIATES, INC.
By:__________________________
Title: Authorized
Representative
<PAGE>
9
ICF INCORPORATED
By:__________________________
Title: Authorized
Representative
ICF INFORMATION TECHNOLOGY, INC.
By:__________________________
Title: Authorized
Representative
ICF KAISER ENGINEERS GROUP, INC.
By:__________________________
Title: Authorized
Representative
ICF KAISER ENGINEERS, INC.
By:__________________________
Title: Authorized
Representative
<PAGE>
10
ICF RESOURCES INCORPORATED
By:__________________________
Title: Authorized
Representative
ICF TECHNOLOGY INCORPORATED
By:__________________________
Title: Authorized
Representative
ICF KAISER HANFORD COMPANY
By:__________________________
Title: Authorized
Representative
ICF LEASING CORPORATION, INC.
By:__________________________
Title: Authorized
Representative
PHASE LINEAR SYSTEMS INCORPORATED
By:__________________________
Title: Authorized
Representative
TUDOR ENGINEERING COMPANY
By:__________________________
Title: Authorized
Representative
<PAGE>
11
HENRY J. KAISER COMPANY
By:__________________________
Title: Authorized
Representative
ICF KAISER ENGINEERS (CALIFORNIA)
CORPORATION
By:__________________________
Title: Authorized
Representative
KAISER ENGINEERS AND CONSTRUCTORS, INC.
By:__________________________
Title: Authorized
Representative
KAISER ENGINEERS INTERNATIONAL, INC.
By:__________________________
Title: Authorized
Representative
KE LIVERMORE, INC.
By:__________________________
Title: Authorized
Representative
<PAGE>
12
ICF KAISER ENGINEERS MASSACHUSETTS, INC.
By:__________________________
Title: Authorized
Representative
ICF KAISER HOLDINGS UNLIMITED, INC.
By:__________________________
Title: Authorized
Representative
ICF KAISER ENGINEERS CORPORATION
By:__________________________
Title: Authorized
Representative
KE SERVICES CORPORATION
By:__________________________
Title: Authorized
Representative
<PAGE>
Exhibit 10(d)(1)
Retirement Plan
Amendment No. 1 dated April 24, 1995
1. Section 8.5 of the Retirement Plan is amended effective January 1, 1993 to
add a new subsection (b)(iv) as follows:
"Effective January 1, 1993, a Participant or "distributee" may elect at any
time to have any portion of an "eligible rollover distribution" paid in a
direct rollover to the trustee or custodian of an "eligible retirement
plan" specified by the Participant or distributee, whichever is applicable.
Payment of a direct rollover in the form of a check payable to the trustee
or custodian of an eligible retirement plan, for the benefit of the
Participant or distributee, may be mailed to the Participant or
distributee. For purposes of this Section 8.5(b)(iv) the following terms
shall have the following meanings:
(1) "Distributee" means a surviving spouse or a spouse or former
spouse who is an alternate payee under a "qualified domestic relations
order."
(2) "Eligible retirement plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section
401(a) of the Code that accepts an eligible rollover distribution; provided
that if the distributee is a surviving spouse, an eligible retirement plan
means an individual retirement account or individual retirement annuity.
(3) "Eligible rollover distribution" means any distribution of all or
a portion of the Participant's Account, but does not include a distribution
(i) in installments over a period of ten years or more, or (ii) to the
extent it is required under Section 401(a)(9) of the Code."
2. Section 9.5 of the Retirement Plan is amended by deleting subsection (m) and
replacing it with a new subsection (m) as follows:
"To the extent required under Section 412 of ERISA, the Company shall
secure fidelity bonding for the fiduciaries of the Plan.
The Company or the Trustee (as directed by the Committee) shall obtain a
policy or policies of insurance for the Committee (and other fiduciaries of
the Plan) to cover liability or loss occurring by reason of the act or
omission of a fiduciary. If such insurance is purchased with Trust assets,
the policy must permit recourse by the insurer against the fiduciary in the
case of a breach of a fiduciary obligation by such fiduciary. To the
extent permitted by applicable law, applicable Certificates of
Incorporation, and the applicable By-laws, the Company shall indemnify each
member of the Committee, the Secretary of the Committee, and any agent of
the Committee who is an employee or director of the Company (to the extent
permitted by law) against any personal liability or expense resulting from
his service on or for the Committee, except such liability or expense as
may result from his own willful misconduct."
<PAGE>
Exhibit 10(k)
================================================================================
ICF KAISER INTERNATIONAL, INC. STOCK INCENTIVE PLAN
================================================================================
1. Purpose. The purpose of this plan ("Plan") is to promote the
-------
interests of ICF Kaiser International, Inc. ("ICF Kaiser") by affording its key
employees an incentive, by means of an opportunity to acquire ICF Kaiser's
Common Stock, par value $0.01 per share, and to share in the increase in the
value of the Common Stock, to remain in the employ of the Company, and to exert
their maximum efforts in its behalf.
2. Administration. The Plan shall be administered by the Compensation
--------------
Committee ("Committee") of the Board of Directors of ICF Kaiser ("Board"). In
addition to its duties with respect to the Plan stated elsewhere in the Plan,
the Committee shall have full authority, consistently with the Plan, to
interpret the Plan, to promulgate such rules and regulations with respect to the
Plan as it deems desirable, and to make all other determinations necessary or
desirable for the administration of the Plan. All decisions, determinations, and
interpretations of the Committee shall be binding upon all persons. The
Committee may delegate to the Chief Executive Officer of ICF Kaiser (the "CEO")
the discretion (a) to select Participants to whom Options shall be granted from
among the key employees of ICF Kaiser and its Subsidiaries, other than key
employees of ICF Kaiser who are required to file reports with the Securities and
Exchange Commission pursuant to Section 16(a) of the Securities Exchange Act of
1934, as amended , and (b) as set forth below in the Plan, to perform such other
functions of the Committee as are specified in this Plan with respect to
Participants other than key employees of ICF Kaiser who are required to file
reports with the Securities and Exchange Commission pursuant to Section 16(a) of
the Securities Exchange Act of 1934, as amended.
3. Shares Subject to the Plan. The aggregate combined number of shares
--------------------------
of Common Stock which may be covered by stock options ("Options"), stock
appreciation rights ("SARs"), restricted shares ("Restricted Shares"), and
restricted stock units ("Restricted Stock Units") granted pursuant to the Plan
is 6,000,000 shares, subject to adjustment under Section 8. Shares which may be
delivered on exercise or settlement of Options, SARs, Restricted Shares, or
Restricted Stock Units may be previously issued shares reacquired by ICF Kaiser
or authorized but unissued shares. Shares covered by Restricted Shares or
Restricted Stock Units that are forfeited and shares covered by Options that
expire unexercised or are cancelled (without having been surrendered upon the
exercise of SARs, whether settled in cash or Common Stock) shall again be
available for grant under the Plan.
4. Eligibility. The Committee or the CEO, as the case may be, shall from
-----------
time to time in its or his or he discretion select the employees to whom
Options, SARs, Restricted Shares, and Restricted Stock Units shall be granted
("Participants") from among the key employees of ICF Kaiser and its subsidiary
corporations ("Subsidiaries").
5. Options.
-------
(a) The Committee or the CEO, as the case may be, shall in its or his
or her discretion determine the time or times when options shall be granted and
the number of shares of Common Stock to be subject to each Option. In the case
of an incentive stock option, as defined in Section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), the aggregate fair market value
(determined as of the date the Option is granted) of the stock which for any
Options may become exercisable by a Participant for the first time by such
individual during any calendar year (under all incentive stock option plans of
ICF Kaiser and its Subsidiaries) shall not exceed $100,000. Options may be
granted under the Plan on such terms and conditions as the Committee considers
appropriate, which may differ from those provided in the Plan, where such
Options are granted in substitution for stock options held by employees of other
companies who concurrently become employees of ICF Kaiser or a Subsidiary as the
result of a merger or consolidation of the employing company with, or the
acquisition of the property or stock of the employing company by, ICF Kaiser or
a Subsidiary.
ICF Kaiser International, Inc. Page 1 of 5 As amended on April 24, 1995
Stock Incentive Plan
<PAGE>
(b) Except as provided in paragraph (d), each option shall be for
such term as the Committee or the CEO, as the case may be, shall determine, but
not more than 10 years from the date it is granted, except that the term of an
option other than an incentive stock option may extend up to 11 years from the
date the Option is granted if the Participant dies within the 10th year
following the date of grant.
(c) Except as provided in paragraphs (a) and (d), the purchase price
for each share of Common Stock subject to an Option shall be not less than the
fair market value of the Common Stock, as the case may be, on the date the
Option is granted.
(d) In the case of an incentive stock option, as defined in Section
422(b) of the Code, granted to an employee who at the time the Option is granted
owns (within the meaning of Section 422(b)(6) of the Code) stock possessing more
than 10 percent of the total combined voting power of all classes of stock of
the corporation employing such employee or of its parent corporation or a
subsidiary corporation (as defined in Sections 424(e) and 424(f), respectively,
of the Code), the purchase price for each share of Common Stock subject to the
Option shall be at 110 percent of the fair market value of the shares at the
time such Option is granted and such Option shall not be exercisable after the
expiration of five years from the date such option is granted.
(e) Exercise of an Option shall be by written notice in the form and
manner determined by the Committee. Except as otherwise determined by the
Committee or the CEO, as the case may be, no Option may be exercised to any
extent before one year from the date of grant. The Committee or the CEO, as the
case may be, in its or his or her discretion may (1) determine installment
exercise terms for an option under which it may be exercised in a series of
cumulative installments, (2) prescribe rules limiting the frequency of exercise
of options or the minimum number of shares that may be exercised at any one
time, (3) determine the form of consideration (including cash, shares of Common
Stock, or any combination thereof) which may be accepted in payment of the
purchase price of shares purchased pursuant to the exercise of an Option, and
(4) prescribe such other rules or conditions as it considers appropriate
regarding the exercise of Options granted under the Plan.
(f) In the case of incentive stock options, the instruments
evidencing such Options shall provide that if, within two years from the date of
grant of the Option or within one year after the transfer of shares of Common
Stock to the Participant on exercise of the option, the Participant makes a
disposition (as defined in Section 424(c) of the Code) of any shares of such
Common Stock, the Participant shall notify ICF Kaiser of such disposition in the
manner and within such time as the Committee in its discretion shall determine.
The Committee may direct that a legend restricting transfer in the absence of
appropriate notification be affixed to any stock certificates representing
Common Stock transferred under the Plan.
(g) Each Option shall be evidenced by a written instrument which
shall state such terms and conditions which are not inconsistent with the
provisions of the Plan as the Committee or the CEO, as the case may be, in its
or his or her discretion shall determine and approve, including terms and
conditions regarding the exercise of Options upon termination of employment.
(h) The Committee may, in its discretion, make loans available to
Participants, on reasonable terms, with funds to be provided by ICF Kaiser, to
facilitate payment by any Participant of the exercise price of, or any tax
withholding obligation incurred with respect to, any options, SARs, Restricted
Shares, or Restricted Stock Units granted under the Plan after the adoption of
this provision. The Committee or ICF Kaiser may, in their respective discretion,
take other steps to enable ICF Kaiser to facilitate the payment of such exercise
price or tax withholding obligations, including but not limited to arranging for
the provision of loans by, or other arrangements with, third parties, including
but not limited to banks or brokers, with or without a guarantee of such loans
by ICF Kaiser.
ICF Kaiser International, Inc. Page 2 of 5 As amended on April 24, 1995
Stock Incentive Plan
<PAGE>
6. Stock Appreciation Rights. The Committee may from time to time grant
-------------------------
SARs unrelated to Options or related to Options or portions of Options granted
to Participants under the Plan. Each SAR shall be evidenced by a written
instrument and shall be subject to such terms and conditions as the Committee
may determine. The Participant may exercise an SAR or portion thereof, and
thereupon shall be entitled to receive payment of an amount equal to the
aggregate appreciation in value of the shares as to which the SAR is awarded,
which may be shares of Common Stock, as measured by the difference between the
purchase price of such shares and their fair market value at the date of
exercise. Such payments may be made in cash, in shares of Common Stock valued at
fair market value as of the date of exercise, or in any combination thereof, as
the Committee may be, in its discretion shall determine.
7. Restricted Shares and Restricted Stock Units.
---------------------------------------------
(a) The Committee may from time to time, and subject to the
provisions of the Plan and such other terms and conditions as the Committee may
determine, grant Restricted Shares and Restricted Stock Units under the Plan.
Each grant of Restricted Shares and Restricted Stock Units shall be evidenced by
a written instrument which shall state the number of Restricted Shares or
Restricted Stock Units covered by the grant and the terms and conditions which
the Board shall have determined with respect to such grant. Restricted Shares
shall be shares of Common Stock. Each Restricted Stock Unit shall be equivalent
in value to a share of Common Stock.
(b) A stock certificate representing the Restricted Shares granted to
a Participant shall be registered in the Participant's name but shall be held in
custody by ICF Kaiser for the Participant's account. The Participant generally
shall have the rights and privileges of a shareholder as to such Restricted
Shares, including the right to vote or otherwise act as a shareholder with
respect to such Restricted Shares, except that the following restrictions shall
apply: (i) the Participant shall not be entitled to delivery of the certificate
until the expiration or termination of the Restriction Period (as defined
herein) and the satisfaction of any other conditions prescribed by the
Committee; (ii) none of the Restricted Shares may be sold, transferred,
assigned, pledged, or otherwise encumbered or disposed of prior to termination
of the Restriction Period; (iii) the Participant shall forfeit and immediately
transfer back to the Corporation without payment all of the Restricted Shares,
and all rights of the Participant to such Restricted Shares shall terminate
without further obligation on the part of ICF Kaiser, if and when the
Participant ceases to be either an employee or a director of ICF Kaiser or any
of its Subsidiaries prior to expiration or termination of the Restriction Period
and the satisfaction of any other conditions prescribed by the Committee
applicable to such Restricted Shares. Cash dividends, if any, with respect to
the Restricted Shares shall be paid to the Participant.
(c) Upon the expiration or termination of the Restriction Period and
the satisfaction of any other conditions prescribed by the Committee, the
restrictions applicable to the Restricted Shares shall lapse and a stock
certificate for the number of Restricted Shares with respect to which the
restrictions have lapsed shall be delivered, free of all such restrictions, to
the Participant or the Participant's beneficiary or estate, as the case may be.
ICF Kaiser shall not be required to deliver any fractional share of Common Stock
but will pay, in lieu thereof, the fair market value (determined as of the date
the restrictions lapse) of such fractional share to the Participant or the
Participant's beneficiary or estate, as the case may be. No payment will be
required from the Participant upon the issuance or delivery of any Restricted
Shares, except that any amount necessary to satisfy applicable federal, state,
or local tax requirements shall be withheld or paid promptly upon notification
of the amount due and prior to or concurrently with the issuance or delivery of
a certificate representing such shares.
ICF Kaiser International, Inc. Page 3 of 5 As amended on April 24, 1995
Stock Incentive Plan
<PAGE>
(d) Vesting of each grant of Restricted Shares and Restricted Stock
Units shall require the Participant to remain an employee or a director of ICF
Kaiser or of a Subsidiary for a prescribed period (the "Restriction Period"),
which period may be subject to acceleration upon the occurrence of certain
events, as the Committee may determine and specify in the written instrument
evidencing such grant. The Committee shall determine the Restriction Period or
Periods which shall apply to the shares of Common Stock covered by each grant of
Restricted Shares or Restricted Stock Units, provided that in no case shall the
Restriction Period be less than one year, subject to adjustment as set forth
above. All Restricted Stock Units granted to a Participant under the Plan shall
terminate without further obligation on the part of ICF Kaiser if and when the
Participant ceases to be an employee or a director of ICF Kaiser or any of its
Subsidiaries prior to expiration or termination of the Restriction Period and
the satisfaction of any other conditions prescribed by the Committee applicable
to Restricted Stock Units, and in such event the Participant shall not be
entitled to receive any payment with respect to those Restricted Stock Units,
except as provided in paragraph (f).
(e) Upon expiration of the Restriction Period or Periods applicable
to each grant of Restricted Stock Units, the Participant shall, without payment
on his or her part, be entitled to receive payment in an amount equal to the
aggregate fair market value of the shares of Common Stock covered by such grant
on the date of expiration. Such payment may be made in cash, in shares of Common
Stock equal to the number of Restricted Stock Units with respect to which such
payment is made, or in any combination thereof, as the Committee in its
discretion shall determine. Any payment in cash shall reduce the number of
shares of Common Stock which may be covered by Restricted Stock Units granted
under the Plan, as provided in Section 3, to the extent of the number of
Restricted Stock Units to which such payment relates.
(f) A Participant whose Restricted Stock Units have not previously
terminated shall be entitled to receive payment in an amount equal to each cash
dividend ICF Kaiser would have paid to such Participant during the term of those
Restricted Stock Units as if the Participant had been the owner of record of the
shares of Common Stock covered by such Restricted Stock Units on the record date
for the payment of such dividend. Payment of each such dividend equivalent shall
be made on the payment date of the cash dividend with respect to which it is
made, or as soon as practicable thereafter.
8. Adjustment Upon Changes in Capitalization. If there is a change in
-----------------------------------------
the number or kind of outstanding shares of ICF Kaiser's stock by reason of a
stock dividend, stock split, recapitalization, merger, consolidation,
combination or other similar event, or if there is a distribution to
shareholders of ICF Kaiser's Common Stock other than a cash dividend,
appropriate adjustments shall be made by the Committee to the number and kind of
shares subject to the Plan; the number and kind of shares under Options, SARs,
Restricted Shares, and Restricted Stock Units then outstanding; the maximum
number of shares available for options, SARs, Restricted Shares, and Restricted
Stock Units; the purchase price for shares of Common Stock covered by Options;
and other relevant provisions, to the extent that the Committee, in its sole
discretion, determines that such changes make such adjustments necessary to be
equitable. Similar adjustments may also be made by the Committee in its
discretion if substitute Options are granted pursuant to Section 5(a).
9. Transferability of Options, SARs, Restricted Shares, and Restricted
-------------------------------------------------------------------
Stock Units. Options that are intended to be incentive stock options, SARs,
-----------
Restricted Shares, and Restricted Stock Units shall be nonassignable and
nontransferable by the Participant other than by will or the laws of descent and
distribution, and shall be exercisable during the Participant's lifetime only by
the Participant or his guardian. Options that are designated at the time of
grant as Options that are not incentive stock options may be transferred or
assigned only to a person who is at the time of such transfer an employee of ICF
Kaiser or a Subsidiary, except that any such options held by persons subject to
the reporting obligations of Section 16(a) of the Securities Exchange Act of
1934, as amended, may not be transferred or assigned other than by will or the
laws of descent and distribution.
ICF Kaiser International, Inc. Page 4 of 5 As amended on April 24, 1995
Stock Incentive Plan
<PAGE>
10. Laws and Regulations. The Plan, the grant and exercise of Options,
--------------------
SARs, Restricted Shares, and Restricted Stock Units, and the obligation of ICF
Kaiser to sell or deliver shares of Common Stock under the Plan shall be subject
to all applicable laws, regulations, and rules.
11. No Employment Rights. Nothing in the Plan shall confer upon any
--------------------
employee of ICF Kaiser or a Subsidiary any right to continued employment or
interfere with the right of ICF Kaiser or a Subsidiary to terminate his or her
employment at any time.
12. Tax Withholding. Any payment to or settlement with a Participant in
---------------
cash, or in Common Stock, pursuant to any provision of the Plan shall be subject
to withholding of income tax, FICA tax, or other taxes to the extent ICF Kaiser
or a Subsidiary is required to make such withholding. Any required withholding
payable by a Participant with respect to any tax may be paid in cash, in whole
shares of Common Stock, or in a combination of whole shares of Common Stock and
cash, having an aggregate fair market value equal to the amount of any required
withholding obligation.
13. Termination; Amendments.
-----------------------
(a) The Board may at any time terminate the Plan. Unless the Plan
shall previously have been terminated by the Board, it shall terminate on
February 6, 1997. No Option, SAR, Restricted Share, or Restricted Stock Unit may
be granted after such termination.
(b) The Board may at any time or times amend the Plan or amend any
outstanding Options, SARs, Restricted Shares, or Restricted Stock Units for the
purpose of satisfying the requirements of any changes in applicable laws or
regulations or for any other purpose which at the time may be permitted by law,
provided that no amendment of any outstanding Options, SARs, Restricted Shares,
or Restricted Stock Units shall contain terms or conditions inconsistent with
the provisions of the Plan as determined by the Committee.
(c) Except as provided in Section 8, no such amendment shall, without
the approval of the shareholders of ICF Kaiser: (i) increase the maximum number
of shares of Common Stock for which Options, SARs, Restricted Shares or
Restricted Stock Units may be granted under the Plan; (ii) except to the extent
required or permitted under Section 5(a) in the case of substitute Options,
reduce the price at which options may be granted below the price provided for in
Section 5(c); (iii) reduce the option price of outstanding Options; (iv) extend
the period during which Options, SARs, Restricted Shares, or Restricted Stock
Units may be granted; (v) except to the extent permitted or required under
Section 5(a) in the case of substitute Options, extend the period during which
an outstanding Option may be exercised beyond the maximum period provided for in
Section 5(b); (vi) materially increase in any other way the benefits accruing to
Participants; or (vii) change the class of persons eligible to be Participants.
14. Effective Date. The Plan shall become effective upon approval by the
--------------
Board; provided, however, that the Plan shall be submitted to the shareholders
for approval, and if not approved by the shareholders within one year from the
date of approval by the Board, shall be of no force and effect. Options, SARs,
Restricted Shares, and Restricted Stock Units granted by the Committee before
approval of the Plan by the shareholders shall be granted subject to such
approval and shall not be exercisable or payable before such approval. Options,
SARs, and Restricted Stock Units may be granted by the Committee, or other
actions may be taken under or with respect to the Plan, pursuant to any Plan
amendment that is subject to shareholder approval, prior to the receipt of such
shareholder approval, provided that such Options, SARs, Restricted Shares, and
Restricted Stock Units shall not be exercisable or payable before such approval.
ICF Kaiser International, Inc. Page 5 of 5 As amended on April 24, 1995
Stock Incentive Plan
<PAGE>
Exhibit 10(l)(1)
Employee Stock Ownership Plan
Amendment No. 1 dated April 24, 1995
1. Section 3.6 of the ESOP is amended to read as follows:
"Notwithstanding any other Plan provision, a Participant shall be fully
Vested in his Account if he is employed on the date of his death or his
Total and Permanent Disability or after his Early or Normal Retirement
Date. No Forfeiture may occur thereafter.
2. Section 8.6 of the ESOP is amended effective January 1, 1993 to add a new
subsection (d) as follows:
"Effective January 1, 1993, a Participant or "distributee" may elect at
any time to have any portion of an "eligible rollover distribution" paid in
a direct rollover to the trustee or custodian of an "eligible retirement
plan" specified by the Participant or distributee, whichever is
applicable. Payment of a direct rollover in the form of a check payable to
the trustee or custodian of an eligible retirement plan, for the benefit of
the Participant or distributee, may be mailed to the Participant or
distributee. For purposes of this Section 8.6(d) the following terms shall
have the following meanings:
(1) "Distributee" means a surviving spouse or a spouse or former
spouse who is an alternate payee under a "qualified domestic relations
order."
(2) "Eligible retirement plan" means an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section
401(a) of the Code that accepts an eligible rollover distribution; provided
that if the distributee is a surviving spouse, an eligible retirement plan
means an individual retirement account or individual retirement annuity.
(3) "Eligible rollover distribution" means any distribution of all or
a portion of the Participant's Account, but does not include a distribution
(i) in installments over a period of ten years or more, or (ii) to the
extent it is required under Section 401(a)(9) of the Code."
3. Section 9.5 of the ESOP is amended by deleting subsection (m) and replacing
it with a new subsection (m) as follows:
"To the extent required under Section 412 of ERISA, the Company shall
secure fidelity bonding for the fiduciaries of the Plan.
The Company or the Trustee (as directed by the Committee) shall obtain a
policy or policies of insurance for the Committee (and other fiduciaries of
the Plan) to cover liability or loss occurring by reason of the act or
omission of a fiduciary. If such insurance is purchased with Trust assets,
the policy must permit recourse by the insurer against the fiduciary in the
case of a breach of a fiduciary obligation by such fiduciary. To the
extent permitted by applicable law, applicable Certificates of
Incorporation, and the applicable By-laws, the Company shall indemnify each
member of the Committee, the Secretary of the Committee, and any agent of
the Committee who is an employee or director of the Company (to the extent
permitted by law) against any personal liability or expense resulting from
his service on or for the Committee, except such liability or expense as
may result from his own willful misconduct."
<PAGE>
EXHIBIT 10(M)
S4-3600-161 (04/94) [LOGO OF WESTINGHOUSE Westinghouse Hanford Company
HANFORD COMPANY APPEARS A subsidiary of Westinghouse
HERE] Electric Corporation
PURCHASE ORDER P.O. Box 1970 Richland, Wa.
99352
Telephone 509/
--------------------------------------------------------------------------------
U.S. Government Contract No. DE-ACO6-87RL10930
<TABLE>
<CAPTION>
Mo/Day/Yr Page Inquiry No. This order is Certified Under Vendor Order
Priority rated D.P.A.S. Reg. Code No.
DOE-E (15CFR350)
<S> <C> <C> <C> <C> <C> <C>
03/08/95 1 DE-AC06-87RL1930 4994 WHC-380393, Mod.
1
</TABLE>
Effective date 10/01/94
Agreement date 02/17/95
ITEM QUANTITY DESCRIPTION UNIT PRICE TOTAL PRICE
--------------------------------------------------------------------------------
Subcontract WHC-380393, Part I
1. The fees for Fiscal Year 1995 shall be a base fee of $4,750,000
for the first six months and no base fee for the second six month
period and an award fee and incentive fee pool of $14,250,000 for
a total maximum available fee of $19,000,000, plus share of
savings earned in accordance with this contract.
2. Under Section B., Para. B-2, Period of Performance, delete March
31, 1996" and add in lieu thereof "March 31, 1997."
3. Delete Sections C, D, E, F, G, H, and I in their entirety and add
the enclosed Sections C, D, E, F, G, H, and I in lieu thereof.
4. In Section J, List of Attachments, add the following:
"ATTACHMENT D - PERSONAL PROPERTY MANAGEMENT CRITERIA AND
PERFORMANCE MEASURES"
and add the enclosed Attachment D to Section J.
All other terms and conditions remain unchanged as a result of this
modification. This agreement is subject to any required U.S.
Department of Energy approvals.
/s/ 3/8/95 /s/ 3/8/95
---------------------------- ------------- ----------------- ---------------
R. E. Tiller Date A. L. Trego Date
Executive President and President
Acting General Manager Westinghouse
ICF Kaiser Hanford Hanford Company
Company
<PAGE>
WHC-380393
Section B, Page i
PART I - SECTION B
SUPPLIES OR SERVICES AND PRICES/COSTS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Subsection Title Page
<S> <C> <C>
B-1 Obligation of Funds 1
B-2 Period of Performance 1
</TABLE>
<PAGE>
WHC-380393
Section B, Page 1
PART I - SECTION B
SUPPLIES OR SERVICES AND PRICES/COSTS
B-1 OBLIGATION OF FUNDS
-------------------
The total amount of funds presently obligated by WHC with respect to this
subcontract is $830,352,000. Such amount may be increased or decreased in
accordance with Clause I-66 of this subcontract.
B-2 PERIOD OF PERFORMANCE
---------------------
The period of performance for the work specified in Section C will be
performed under a subcontract with a two and one-half (2-1/2) year basic
period commencing on October 1, 1994, and continuing through March 31,
1997.
<PAGE>
WHC-380393
Section C, Page i
PART I - SECTION C
STATEMENT OF WORK - ENGINEER/CONSTRUCTOR CONTRACT
<PAGE>
WHC-380393
Section C, Page 1
PART I - SECTION C
STATEMENT OF WORK - ENGINEER/CONSTRUCTOR SUBCONTRACT
A. SUMMARY STATEMENT OF WORK
-------------------------
1. ICF KH shall furnish all labor, material, management, and supervision
necessary for the performance of construction, construction
management, maintenance, repair, and other construction related
services in a safe, cost effective manner. ICF KH shall maintain and
manage an engineering staff for the purpose of providing engineering
support and such technical services as may be specifically identified
in connection with the above stated purposes. The construction work
shall consist of two distinct types: construction and construction
management.
2. ICF KH will perform various onsite engineering services and such other
related technical services as may be required and assigned by WHC.
These engineering services will include Title I -Preliminary Design
services, Title II - Definitive Design Services, and Title III -
Engineering and Inspection during Construction. In addition, ICF KH
will perform engineering studies and conceptual design in support of
anticipated construction projects; maintain an up to date and accurate
engineering catalog file; maintain accurate and up to date Hanford
Standards and Specifications; and provide field survey services. The
work will require knowledge of and experience in, but not limited to,
nuclear process and waste management systems and research facilities
including consideration for remotely operated mechanical transfer and
maintenance devices, hot cell arrangements, shielding, remote viewing
methods, and heat removal systems.
3. ICF KH will perform work involving force account construction under
radiological and nonradiological conditions and/or during scheduled
and unscheduled plant shutdowns. These conditions often make
scheduling difficult and preparation of definitive design and
competitive subcontracting sometimes impractical. However, cost-type
work assigned to ICF KH shall, when appropriate and to the extent
possible, be subcontracted as competitive fixed-price subcontracts.
In addition to industrial grade construction, the work will include
fabrication of nuclear vessels, piping, and appurtenances which are
subject to very stringent requirements. The work entails providing
highly skilled craftsmen (electricians,
<PAGE>
WHC-380393
Section C, Page 2
pipefitters, boilermakers, millwrights, sheetmetal workers,
ironworkers, etc.) as necessary to support force account work.
4. ICF KH will perform construction management (CM) services on projects
and provide dedicated CM staff and services on major projects which
will include providing a wide range of professional services relating
to management of a project during the predesign, design, and/or
construction phases.
5. DOE and WHC will furnish ICF KH all necessary facilities, equipment,
and other property for the performance of these services.
6. ICF KH undertakes and promises to establish, maintain, and manage the
required staff to effectively and efficiently utilize facilities,
materials, and property furnished, and to perform said work and
services upon the terms and conditions herein provided and in
accordance with such direction and instructions consistent with this
subcontract which WHC may deem necessary and give to ICF KH from time
to time.
7. The preponderance of the work assigned to ICF KH may be generated via
work orders from other onsite contractors. Accordingly, for each
assigned task it will be necessary for ICF KH to work with, receive
direction and guidance from, and maintain liaison with the other
onsite contractors, as well as WHC personnel.
B. FUNCTIONS AND RESPONSIBILITIES
------------------------------
ICF KH shall be responsible for providing services as necessary for the
timely and cost effective performance of the work, including but not
necessarily limited to the following:
1. Statement of Engineering Services. ICF KH shall furnish the
---------------------------------
engineering services described in Pre-Title I, Titles I, II, and III
below, subject to such further detailed requirements as may be
appended to this subcontract by agreement of the parties and
instructions as may be issued by WHC from time to time.
(a) Pre-Title I -Engineering Studies, Functional Documentation, and
---------------------------------------------------------------
Conceptual Design
-----------------
Conduct engineering studies, support development of the
Functional Design Criteria, and prepare preliminary sketches,
drawings, layout plans, cost estimates, schedules, and reports
showing features and characteristics of various concepts proposed
to meet WHC's requirements. The designs and reports shall be
prepared in such form and furnished in such quantity as directed.
<PAGE>
WHC-380393
Section C, Page 3
(b) Title I - Preliminary Design Services
-------------------------------------
(1) Conduct or arrange for, and supervise, all necessary
topographical and other field surveys, the preparation of
maps, necessary test borings and other subsurface
investigations.
(2) Consult and collaborate with WHC or its designees to
determine the requirements which will govern design of the
project and to establish architectural and engineering
criteria for such design.
(3) Conduct preliminary studies and prepare preliminary
sketches, drawings, layout plans, outline specifications and
reports showing features and characteristics of the design
proposed to meet WHC's requirements. The drawings, plans
and outline specifications shall be prepared in such form
and furnished in such quantity as directed.
(4) Prepare or assist in the preparation of preliminary
estimates of cost and time schedules for completion of the
design, and construction.
(c) Title II - Definitive Design Services
-------------------------------------
(1) Upon approval of preliminary plans and estimates, undertake
definitive design of the project.
(2) Undertake restudy and redesign work due to minor deviations
from approved preliminary work as may be required.
(3) Prepare and furnish complete sets of working drawings,
details and specifications for construction, in such form
and quantity as may be required.
(4) Prepare or assist in the preparation of a detailed estimate
of the cost of construction based on the approved working
drawings and specifications.
(5) Assist in securing, analyzing, and evaluating construction
bids and proposals.
(6) When requested, consult with and advise WHC or its designees
on any questions which may arise in connection with the
engineering services described in this subcontract.
<PAGE>
WHC-380393
Section C, Page 4
(d) Title III - Engineering and Inspection during Construction
----------------------------------------------------------
(1) Furnish and maintain governing lines and bench marks to
provide horizontal and vertical controls to which
construction may be referred.
(2) Check and approve, or require revision of, all vendor's shop
drawings to assure conformity with the approved working
drawings and specifications.
(3) Inspect the execution of construction so as to assure
adherence to approved working drawings and specifications.
(4) Inspect construction workmanship and materials, and
equipment, and report as to their conformity or
nonconformity to the approved working drawings and
specifications.
(5) Make or procure such field or laboratory tests of
construction workmanship and materials, and equipment as
required.
(6) Assist in the preparation of estimates of reasonable amounts
of increase or decrease in subcontract price and/or
subcontract completion time for subcontract modifications,
evaluate proposals submitted by the constructor for such
subcontract adjustments and make recommendations for use in
negotiating.
(7) Prepare reports and make recommendations on status of
deliveries of materials and equipment as required.
(8) Prepare inspection reports and other reports of the progress
of construction, as may be required.
(9) Furnish reproducible "as-built" record drawings and marked
up specifications showing construction as actually
accomplished.
2. Statement of Construction Services. ICF KH shall furnish the
-----------------------------------
construction services described below, subject to such further
detailed requirements as may be appended to this subcontract by
agreement of the parties and instructions as may be issued by WHC from
time to time.
(a) Broad project planning - Provide overall project planning and
----------------------
scheduling, establish a dedicated project organization, as
required, and consult with WHC, or its designee.
<PAGE>
WHC-380393
Section C, Page 5
Planning should be performed by highest level of ICF KH's
officers, technical personnel, and project manager.
(b) Field planning - Establish and activate/deactivate necessary
--------------
field organizations in geographically separate field locations
within the Hanford Site. ICF KH shall provide detailed project
planning and scheduling for construction of facilities.
(c) Labor supervision - Provide direct supervision of manual
-----------------
employees, performed by ICF KH's staff, such as superintendents
and foremen (some salaried and some hourly rate). This includes
ICF KH's personnel to coordinate and expedite the work of
subcontractors.
(d) Force account work - Perform work covered by the Davis-Bacon Act
------------------
with its own forces, in lieu of subcontracting when the scope
cannot be sufficiently definitized for firm-fixed price
subcontracting. However, every reasonable effort should be made
to subcontract work.
(e) Quality Control - Provide those services necessary to control and
---------------
verify the features and characteristics of construction to
specified requirements.
(f) Welding - Provide welding procedures and welder qualification
-------
services.
(g) Construction Management - Provide construction management (CM)
-----------------------
services on projects and provide dedicated CM staff and services
on major projects. The required CM services include day-to-day
construction management/contract administration of competitively
bid fixed price subcontracts. Provide orientation and training
for construction subcontractors relative to policies and
requirements applicable to performing work at the Hanford Site
and assure subcontractors comply with these policies and
requirements.
3. Statement of Administrative Services - ICF KH shall furnish the
------------------------------------
administrative services described below, subject to such further
detailed requirements as may be appended to this subcontract by
agreement of the parties and instructions as may be issued by WHC from
time to time.
(a) Financial management - Including general and cost accounting,
--------------------
payroll, internal audit, and budget functions.
<PAGE>
WHC-380393
Section C, Page 6
(b) Property management - Maintain a property management program for
-------------------
personal property and equipment assigned.
(c) Shop and warehouse operations - Operate centralized shops and
-----------------------------
warehouses in support of construction by ICF KH forces.
Warehouse activities will generally be limited to receiving and
distribution in support of specific project activities.
(d) Facility custodianship -Perform maintenance and upgrading of
----------------------
facilities and equipment as required for assigned Government
furnished buildings and grounds.
(e) Project management system - Provide a project management system
-------------------------
for controlling the engineering and construction work including a
project cost and schedule control system, an estimating system,
and a scheduling system.
(f) Quality assurance - Perform those planned and systematic actions
-----------------
necessary to provide adequate confidence that a structure,
facility, system, or component will perform satisfactorily in
service. Quality assurance is to assure that components,
systems, and processes are designed, developed, constructed, and
tested according to sound engineering standards, quality
practices, and technical specifications.
(g) Safety - Maintain effective environmental, safety, health, and
------
emergency preparedness programs.
(h) Personnel management and labor relations - Provide work force
----------------------------------------
mobilization and demobilization, labor-management relations,
collective bargaining, etc. Maintenance of a qualified central
and field staff commensurate with the workload.
(i) Procurement and Subcontracting - Solicit, award, and administer
------------------------------
construction subcontracts and purchase orders, including
coordinating and expediting the work of vendors. ICF KH shall
develop and utilize a small/small disadvantaged business
subcontracting program.
(j) Value Engineering (VE) - Maintain an effective VE program and
----------------------
perform VE analyses and studies.
4. Site Operations Support Services - ICF KH will support site operations
--------------------------------
for WHC and its subcontractors at Hanford. ICF KH will perform, but
will not be limited to: maintenance, repair, and operations of the
physical site, including general purpose facilities, vehicles, roads,
railways, utilities, sewers, and
<PAGE>
WHC-380393
Section C, Page 7
water; fabrication and testing activities supporting construction and
operation of facilities and processes; crane and rigging services;
custodial operations; transportation system operations and
maintenance; excavation permits; the Hanford Site landlord projects;
design/drafting services; and Computer-Aided Design (CAD)/mapping
services.
C. RELATED SERVICES
----------------
In addition to the services specifically described elsewhere in this
Section C, ICF KH shall perform services at Hanford or elsewhere to the
extent it is able to do so without substantially interfering with its other
work under this Section C and as approved or directed in writing by WHC as
follows: (a) services incidental and related to the services described in
other provisions of this Section C, (b) services which are related to the
mission of the subcontract for other Federal agencies under interagency
agreements entered into by those agencies and DOE under the Economy Act or
other legal authority, (c) services in support of other DOE Programs at
Hanford or elsewhere when the work involved has been determined by WHC to
be within the unique capabilities of ICF KH or to be within the special
engineering and technical capabilities of ICF KH and the urgent need for
the services preclude acquiring them from another source, (d) services to
be performed under WHC's Work For Others Program where WHC has determined
that the services are related to the mission of the subcontract, or are
within the special engineering and technical capabilities of ICF KH and are
not available on a timely basis and at a reasonable cost from another
source, and (e) work to reduce costs at Hanford by economically
diversifying the Hanford regional economy, and moderating negative
outsourcing, increased competition, technology transfer, right-sizing, re-
engineering, re-inventing, and other changes to the Hanford business
environment now under way or which may develop. Work to be performed under
subsection C-2 may include, but is not necessarily limited to, security
systems, engineering support, quality assurance, engineering assistance,
and railroad support.
<PAGE>
WHC-380393
Section D, Page i
PART I - SECTION D
This section is reserved
<PAGE>
WHC-380393
Sectiion E, Page i
PART I - SECTION E
INSPECTION AND ACCEPTANCE
TABLE OF CONTENTS
Subsection Title Page
E-1 Final Inspection and Acceptance 1
<PAGE>
WHC-380393
Sectiion E, Page 1
PART I - SECTION E
INSPECTION AND ACCEPTANCE
E-1 FINAL INSPECTION AND ACCEPTANCE
-------------------------------
The Hanford Site, Richland, Washington, is designated as the point of final
inspection and acceptance by Westinghouse Hanford Company or designated
representative for all work performed under this subcontract.
(End of clause)
<PAGE>
WHC-380393
Section F, Page i
PART I - SECTION F
This section is reserved
<PAGE>
WHC-380393
Section G, Page i
PART I - SECTION G
CONTRACT ADMINISTRATION DATA
TABLE OF CONTENTS
Subsection Title Page
G-1 Representations and Certifications 1
G-2 Principal Place of Performance and Delivery 1
G-3 Modification Authority 1
<PAGE>
WHC-380393
Section G, Page 1
PART I - SECTION G
CONTRACT ADMINISTRATION DATA
G-1 REPRESENTATIONS AND CERTIFICATIONS
----------------------------------
The Representations and Certifications dated March 8, 1995 for
WHC-380393 are hereby incorporated into this subcontract.
G-2 PRINCIPAL PLACE OF PERFORMANCE AND DELIVERY
-------------------------------------------
The principal place of performance of this subcontract shall be at the
Hanford Site. All deliverable items shall be delivered to WHC or designee
unless otherwise specified.
G-3 MODIFICATION AUTHORITY
----------------------
Notwithstanding any of the other provisions of this subcontract,
A. L. Trego, President, Westinghouse Hanford Company
J. M. Knoll, Jr.; Director, Contracts and Management Services
S. R. Morgan, Acting Manager, Contracts Administration
L. M. Bogart, Contract Administrator
shall be the only individuals on behalf of WHC authorized to:
(a) Accept nonconforming work;
(b) Waive any requirement of this subcontract; or
(c) Modify any term or condition of this subcontract.
<PAGE>
WHC-380393
Section H, Page i
PART I - THE SCHEDULE
SECTION H
SPECIAL CONTRACT REQUIREMENTS
TABLE OF CONTENTS
Subsection Title Page
---------- ----- ----
H-1 BASE FEE, INCENTIVE FEES, AND AWARD FEE.......................... 1
H-2 NEGOTIATED BASE FEE, INCENTIVE FEE, AND AWARD FEE (000).......... 4
H-3 SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING
PLAN............................................................. 4
H-4 ASSIGNMENT OF CONTRACTS.......................................... 4
H-5 GOVERNMENT-OWNED PROPERTY........................................ 4
H-6 PUBLIC RELEASE OF INFORMATION.................................... 5
H-7 DOE ORDERS AND DIRECTIVES........................................ 5
H-8 OWNERSHIP OF RECORDS............................................. 6
H-9 REPORTING REQUIREMENTS........................................... 8
H-10 ENVIRONMENT, SAFETY AND HEALTH (GOVERNMENT OWNED OR LEASED)...... 8
H-11 BUSINESS UNIT.................................................... 10
H-12 SERVICES FROM CERTAIN APPROVED AFFILIATES........................ 10
H-13 WORK CONTROL SYSTEM/TECHNICAL DIRECTION.......................... 11
H-14 PRE-EXISTING CONDITIONS.......................................... 13
H-15 PERFORMANCE BASED INCENTIVES..................................... 14
H-16 RESERVED......................................................... 14
H-17 MAKE-OR-BUY, ECONOMIC TRANSITION AND OUTSOURCING PERFORMANCE
INCENTIVE........................................................ 15
H-18 RESERVED......................................................... 16
H-19 FACILITIES MANAGEMENT............................................ 16
H-20 PROJECT CONTROL SYSTEM........................................... 18
H-21 FINANCIAL MANAGEMENT SYSTEM...................................... 19
<PAGE>
WHC-380393
Section H, Page ii
H-22 INTEGRATED ACCOUNTING SYSTEM..................................... 19
H-23 WHISTLEBLOWER PROTECTION FOR SUBCONTRACTOR EMPLOYEES
(JANUARY 1993)................................................... 19
H-24 WORK FOR OTHER FUNDING AUTHORIZATION............................. 19
H-25 INCENTIVE FEE ARRANGEMENT........................................ 20
H-26 ADVANCE AGREEMENT UNDERSTANDING ON ALLOWABLE COSTS............... 20
H-27 COST, SCHEDULE, AND SAFETY PERFORMANCE INCENTIVE FOR VALIDATED
CONSTRUCTION PROJECTS............................................ 20
H-28 RESERVED......................................................... 20
H-29 INSURANCE - LITIGATION AND CLAIMS................................ 20
H-30 COSTS ASSOCIATED WITH DISCRIMINATORY EMPLOYEE ACTIONS............ 23
H-31 INCORPORATION OF REVISED DEPARTMENTAL POLICIES AND PROCEDURES.... 25
H-32 ENERGY EFFICIENCY AND WATER CONSERVATION......................... 25
H-33 SHARING OF SAVINGS, AWARD FEE, AND INCENTIVE FEE PROCESS......... 25
H-34 COST REDUCTION INITIATIVE AND INCENTIVE.......................... 26
H-35 ADDITIONAL EVALUATION CRITERIA - USE OF OBJECTIVE STANDARDS OF
PERFORMANCE...................................................... 29
H-36 SUBCONTRACTOR'S MANAGERIAL PERSONNEL............................. 30
H-37 IMPLEMENTATION OF THE HANFORD SITE STABILIZATION AGREEMENT....... 31
H-38 WORK AT THE HANFORD SITE......................................... 33
<PAGE>
WHC-380393
Section H, Page 1
SECTION H
SPECIAL CONTRACT REQUIREMENTS
H-1 BASE FEE, INCENTIVE FEES, AND AWARD FEE
(a) (Deviation) Incentive Fee and Award Fee
It is herewith agreed that incentive fees and award fees, to be
determined in accordance with the provisions of this subcontract, are
available for payment in accordance with the terms of this
subcontract.
(b) (Deviation) Fee Negotiations.
Prior to the beginning of each fiscal year under this subcontract, or
other appropriate period as mutually agreed upon, Westinghouse Hanford
Company (WHC) and ICF Kaiser Hanford Company (ICF KH) shall enter into
negotiations of a fee pool, and a base fee. This subcontract shall be
modified at the conclusion of each negotiation to reflect the
negotiated amount of the above. It is herein agreed the award fee
amount shall be assigned to evaluation periods of six (6) months in
duration. If the parties are unable to agree on reasonable fees, the
WHC Fee Determination Official (FDO) shall unilaterally determine the
fee pool and a base fee.
This determination regarding the fee pool and base fee shall be
subject to the clause of this subcontract entitled, "Disputes."
(c) Determination of Award Fee Earned.
(1) WHC, with the approval of U.S. Department of Energy (DOE),
Richland Operations Office (RL), shall, at the conclusion of each
specified evaluation period, evaluate ICF KH's performance for a
determination of award fee earned.
(2) For this subcontract, the FDO will be the President, WHC. ICF KH
agrees that the determination as to the amount of award fee
earned will be made by the WHC FDO and such determination is
binding on both parties and shall not be subject to appeal under
the "Disputes" clause or any other appeal clause.
(3) The evaluation of ICF KH's performance shall be in accordance
with the Performance Evaluation Plan described in paragraph (d)
below. ICF KH shall be promptly advised in writing of the
determination, and the reasons why the award fee was or was not
earned. While it is recognized that the basis for determination
of the fee shall be the evaluation by WHC, in accordance with the
Performance Evaluation Plan,
<PAGE>
WHC-380393
Section H, Page 2
the FDO may also consider any information available to him/her
which relates to ICF KH's performance of subcontract
requirements. In the event that the ICF KH's performance is
considered unacceptable in any areas of subcontract performance
which is specified in the Performance Evaluation Plan, even if no
weight or fee is specifically assigned to the particular
performance area, the FDO may at his/her discretion determine ICF
KH's overall performance to be unacceptable, and accordingly, may
withhold the entire award fee for the evaluation period.
(4) An award fee cycle usually consists of two (2) six-month award
fee periods in a single fiscal year. Unearned award fee may be
carried over within a single fiscal year, or other two-period fee
negotiation cycle, as may have been agreed upon. The FDO may, at
his/her sole discretion, specify in a fee determination that
award fee not earned during the first evaluation period of a two-
period fee cycle may be allocated to the second fee period in
that fee cycle. ICF KH shall not, however, be entitled to earn
any of this "carry-over" fee if its overall performance in the
latter evaluation period does not reflect an improvement over the
prior evaluation period. Overall performance evaluations in the
second period which are equal to or the same as those in the
first period shall not be considered as improvements providing
entitlement to the carry-over portion of the award fee pool. If
the single negotiation of a basic and the resulting award fee
amount (fee cycle) will be for more than two (2) evaluation
periods, unearned award fees in any one of the evaluation periods
established by that negotiation may be carried over only to the
next period covered by that negotiation. Fees unearned under one
(1) fee cycle may not be carried forward to another fee cycle.
(d) Award Fee Performance Evaluation Plan (PEP) (Deviation)
(1) WHC shall establish unilaterally a Performance Evaluation Plan
upon which the determination of the amount of award fee earned
shall be based. Such Plan shall include the criteria to be
considered under each area evaluated, the percentage of award fee
available for each area, performance based incentives (PBI), and
earnable fee attached to each PBI. ICF KH may present input,
which WHC may consider and discuss with the subcontractor as part
of the establishment of the plan. ICF KH's input must be
received at least 90 days before the start of the six month
evaluation period to be considered. A copy of the plan shall be
provided to ICF KH prior to the start of an evaluation period.
<PAGE>
WHC-380393
Section H, Page 3
(2) The Performance Evaluation Plan will set forth the criteria upon
which the Subcontractor will be evaluated for performance
relating to any technical, schedule, management, and/or cost
objectives selected for evaluation (except that for those
specific areas covered by a Performance Based or Cost Based
Incentive, it is agreed that an award fee criteria will not apply
twice to the same area of performance).
(3) The Performance Evaluation Plan may, consistent with the
subcontract Statement of Work, be revised unilaterally by WHC at
any time during the evaluation period. Notification of such
changes shall be provided to ICF KH at least thirty (30) calendar
days prior to the change. Such changes to the Performance
Evaluation Plan which occur during the evaluation period shall be
in effect for at least sixty (60) days prior to the end of the
period.
(e) ICF KH Self-Assessment.
Following each evaluation period, ICF KH shall submit a self-
assessment within seven (7) calendar days after the end of the period.
This self-assessment shall address both the strengths and weaknesses
of ICF KH's performance during the evaluation period. Where
deficiencies in performance are noted, ICF KH shall describe the
actions planned or taken to correct such deficiencies and avoid their
recurrence. The FDO will review ICF KH's self-assessment as part of
his/her evaluation of ICF KH's management during the period. An
unrealistic self-assessment will result in lower award fee
determinations. ICF KH will not be penalized for a realistic self-
assessment, although deficiencies noted by ICF KH may be reflected in
WHC's evaluation. The self-assessment itself will not be the basis
for award fee determination.
(f) Schedule for Award Determinations.
The FDO shall issue the final award fee determination in accordance
with a schedule set forth in the Performance Evaluation Plan.
However, a determination must be made within sixty (60) calendar days
after the receipt by WHC of ICF KH's self-assessment discussed in
paragraph (e) above. If the determination is delayed beyond that
date, ICF KH shall be entitled to interest on the determined award fee
amount, at the rate established by the Secretary of the Treasury under
Section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611), that
is in effect on the payment date. This rate is referred to as the
"Renegotiation Board Interest Rate," and is published in the Federal
Register semiannually on or about January 1 and July 1. The interest
on any late award fee determination amount will accrue daily and be
compounded in thirty (30)-day increments inclusive from the first day
after the scheduled determination date through the actual date
<PAGE>
WHC-380393
Section H, Page 4
the determination is issued. That is, interest accrued at the end of
any thirty (30)-day period will be added to the determined amount of
award fee and be subject to interest if not paid in the succeeding
thirty-day period.
H-2 NEGOTIATED BASE FEE, INCENTIVE FEE, AND AWARD FEE (000)
<TABLE>
<CAPTION>
Incentive Max Available
Period Base Fee* Award Fee Fees Fee
------ ------------- ---------- ---------- -------------
<S> <C> <C> <C> <C>
October 1, 1993- $7,500,000 $7,500,000 $15,000,000
September 30, 1994
October 1, 1994- $4,750,000 $5,000,000 $9,250,000 $19,000,000
September 30, 1995
October 1, 1995-
September 30, 1996
October 1, 1996-
March 31, 1997
</TABLE>
*See clause I-67, Payments and Advances, for information on payment of Base Fee.
H-3 SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING PLAN
The Small Business and Small Disadvantaged Business Subcontracting Plan is
hereby incorporated as Section J, Attachment D, Part III, and made a
material part of this subcontract.
H-4 ASSIGNMENT OF CONTRACTS
Existing contractual agreements entered into will be assigned to the
successor Subcontractor upon execution of a new subcontract and/or upon the
completion date of this subcontract extension. The contractual agreements
shall include all (a) subcontracts and purchase orders; (b) agreements with
domestic and foreign research organizations; (c) agreements with
universities and colleges; and (d) other similar agreements. The successor
Subcontractor should accept assignment of all existing contractual
agreements within sixty (60) days from the effective date of its
subcontract.
H-5 GOVERNMENT-OWNED PROPERTY
Upon subcontract execution, ICF KH accept transfer of and accountability
for all Government-owned property and equipment as identified in the
Property Management Information System and the Nuclear Material Management
and Safeguards System.
<PAGE>
WHC-380393
Section H, Page 5
H-6 PUBLIC RELEASE OF INFORMATION
(a) ICF KH will be responsible for developing, planning, and coordinating
proactive approaches to dissemination of timely information regarding
ICF KH, WHC, or DOE unclassified activities onsite or, if appropriate,
offsite. This includes but is not limited to operations (waste
management, nuclear energy reactor operations, surplus facilities
management), programs (environmental restoration, commercial waste
management, conservation, decontamination and decommissioning), and
research and development (advanced reactor research, renewable
energy). This will be accomplished through coordination with WHC
and/or DOE. Proactive communications or public affairs programs will
include or make use of a variety of tools, among them public
workshops, meetings or hearings, open houses, newsletters, press
releases and/or conferences, audio/visual presentations, speeches,
forums, and tours.
The responsibility will be carried out in such a manner that the
public, whether it is the media, citizen's groups, private citizens or
local, state, or federal government officials, has a clear
understanding of WHC or DOE activities at the Site.
(b) ICF KH will be responsible for following established WHC or DOE
procedures for clearances on all oral, written, and audio/visual
information material prepared for public use. Such responsibility
shall not apply to releases of information related solely to ICF KH
advertisement or other non-DOE related communications.
H-7 DOE ORDERS AND DIRECTIVES
Effective October 1, 1994, DOE Orders, directives and RL Implementing
Procedures (RLIP) which are transmitted to ICF KH by WHC shall be
implemented as follows:
(a) Upon receipt of the new order, directive or RLIP, or revision thereto,
ICF KH shall promptly review it for general agreement with the other
terms and conditions of the subcontract and for funding impacts, if
any.
(b) If ICF KH considers the order, directive or RLIP to be consistent with
the other terms of the subcontract, and it can be implemented within
the existing funds, ICF KH shall consider the orders, directives or
RLIP applicable, and will establish an implementation schedule and
provide this information to the WHC within thirty (30) calendar days
of receipt.
(c) If ICF KH considers the orders, directives or RLIP to be inconsistent
with the other terms of this subcontract, or the requirements cannot
be implemented within the existing funds, ICF KH shall so advise WHC
within thirty (30) calendar days of
<PAGE>
WHC-380393
Section H, Page 6
receipt. The notice shall include the basis for the inconsistency and
projected cost of implementation, if any. WHC shall review the
Subcontractor's notice and shall unilaterally direct the appropriate
course of action.
H-8 OWNERSHIP OF RECORDS
(a) DOE records.
Except as provided in paragraph (b) of this clause, all records
acquired or generated by ICF KH in its performance of this subcontract
shall be the property of DOE, and shall be delivered to WHC or
otherwise disposed of by ICF KH either as WHC may from time to time
direct during the progress of the work or, in any event, as WHC shall
direct upon completion or termination of the subcontract.
(b) ICF KH records.
The following records are considered the property of ICF KH and are
not within the scope of paragraph (a) above:
(1) Personnel and medical records and files maintained on individual
employees and applicants;
(2) Employee Assistance Program and Employee Concerns Program records
and files maintained on individual employees;
(3) Internal health and safety files;
(4) Employee relations records and files such as records and files
pertaining to:
(i) Qualifications or suitability for employment of any
employee, applicant, or former employee, subcontractor, or
subcontractor employee records;
(ii) Allegations, investigation, and resolution of employee
misconduct;
(iii) Employee discipline;
(iv) Employee charges of discrimination;
(v) Negotiations with any labor organization in connection
with any labor contract;
(vi) Internal complaints, grievance records.
(5) Records and files pertaining to wages, salaries, and benefits and
wage, salary, and benefit administration;
<PAGE>
WHC-380393
Section H, Page 7
(6) Privileged or confidential ICF KH financial and legal information
and correspondence between ICF KH and other segments of ICF
Kaiser, its financial institutions or other business segments of
ICF KH or its Parent Corporations, but excluding records required
for audit;
(7) Internal legal files or documents containing attorney-client
privileged materials or attorney work-product and which may be
otherwise exempt from disclosure under FOIA, but not including
such files or documents relating to litigation or other
proceedings approved under Clause H-29, Insurance - Litigation
and Claims."
(8) Files involving litigation against the Subcontractor with respect
to which WHC has not chosen to direct or approve the litigation
pursuant to paragraph (a) of clause H-29, Insurance-Litigation
and Claims;
(9) Records maintained pursuant to paragraph (a)(11) of clause I-109,
Technology Transfer.
In the event of completion or termination of this subcontract, copies
of any such ICF KH's own records shall be, except for numbers (6),
(7), and (8) above and unless prohibited by law, delivered to WHC,
DOE, or its designees.
(c) Inspection, copy, and audit of records.
All records acquired or generated by ICF KH under this subcontract in
the possession of ICF KH, including those described in paragraph (b)
above, except for (b)(6), (7), and (8), shall be subject to
inspection, copying, and audit by WHC and DOE at all reasonable times,
and ICF KH shall afford WHC and DOE reasonable facilities for such
inspection, copying, and audit; provided, however, that upon request
by WHC and DOE, the ICF KH shall deliver such records to a location
specified by WHC and DOE for inspection, copying, and audit.
(d) Applicability.
The provisions of paragraphs (b) and (c) of this clause apply to all
records described therein without regard to the date or origination of
any such record.
(e) Records retention standards.
Special records retention standards, described in DOE Order 1324.2A,
Records Disposition, as amended, are applicable, for the classes of
records described therein.
<PAGE>
WHC-380393
Section H, Page 8
(f) Flowdown.
ICF KH shall include the requirements of this clause in all
subcontracts that are of a cost-reimbursement type if any of the
following factors is present:
(1) The value of the subcontract is greater than $2 million, (unless
specifically waived by WHC);
(2) WHC determines that the subcontract is, or involves, a critical
task related to the subcontract, or,
(3) The subcontract includes any of the following clauses:
970.5204-2 Safety and health (Government-owned or leased
facilities).
970.5204-26 Nuclear facility safety applicability.
970.5204-41 Preservation of individual occupational radiation
exposure records.
H-9 REPORTING REQUIREMENTS
ICF KH shall continue to provide required reports.
H-10 ENVIRONMENT, SAFETY AND HEALTH (GOVERNMENT OWNED OR LEASED)
(a) It is understood that it is the goal of both the WHC, DOE and ICF KH
to conduct a responsible and comprehensive program to assure that the
Hanford Site is an environmentally acceptable installation and is
operated in a safe and healthy manner. It is WHC policy to use its
best efforts to provide the funds or other resources necessary to
achieve this purpose and to continue cooperating, along with ICF KH,
with Federal and State agencies having interest in environmental
matters to accomplish this purpose, and to maintain good relations
with such agencies.
(b) Performance of work under this subcontract shall be conducted in a
manner that is protective of the environment and the health and safety
of employees and the public. ICF KH shall comply with all applicable
environmental, safety, and health requirements (including applicable
permitting and reporting requirements) including federal, state, and
local laws and regulations and DOE requirements.
(i) WHC shall notify ICF KH , in writing of any noncompliance with
applicable requirements. After receipt of such notice, ICF KH
shall immediately take corrective action, consistent with
Subsection H-13 of this contract and availability of funds. In
the event that ICF KH fails to take corrective action, WHC may
for cause, without prejudice to any other
<PAGE>
WHC-380393
Section H, Page 9
legal or contractual rights of WHC, issue an order stopping all
or any part of the work; thereafter, a start order for resumption
of the work my be issued at the discretion of WHC. ICF KH shall
not be entitled to an extension of time or additional fee or
damages by reason of, or in connection with, any work stoppage
that was appropriately ordered in accordance with this clause.
(ii) If at any time during performance of the subcontract work, ICF
KH's acts or failure to act causes substantial harm or an
imminent danger to the health or safety of individual's or the
environment, WHC may, without prejudice to any other legal or
contractual rights of WHC, issue an order stopping such portion
of the work as is reasonably necessary to adequately respond to
such harm or danger; thereafter, a start order for resumption of
the work may be issued at the discretion of WHC. ICF KH shall
not be entitled to an extension of time or additional fee or
damages by reason of, or in connection with, any work stoppage
that was appropriately ordered in accordance with this clause.
(c) ICF KH shall submit, within 30 days after the date of award of this
subcontract modification, an environmental, safety, and health program
management and implementation plan to WHC for review and approval.
The plan shall describe the management systems to be employed to
ensure that environmental, safety and health requirements are
appropriately considered in all phases of contract activities. The
plan shall also include provisions for an internal environmental,
safety and health performance evaluation and corrective action system
to provide management with a continuing assessment of the adequacy and
implementation of the environmental, safety and health programs and
assurance that deficiencies are corrected. The results of such
evaluations shall be made available to WHC.
(d) ICF KH shall include in all of its subcontracts, involving performance
of work at the site, the provisions requiring subcontractors to comply
with ICF KH'S environmental, safety and health requirements. However,
such provisions in the subcontracts shall not relieve ICF KH of its
obligations to assure compliance with the provisions of this clause
for all aspects of the work.
(e) ICF KH shall submit for approval to the DOE, through WHC, its
policies, procedures and provisions for including reporting
requirements, in subcontracts, with respect to work to be performed
on-site at a DOE-owned or leased facility. These environmental safety
and health requirements shall be in accordance with applicable DOE
regulations, directives, and other DOE requirements. The subcontract
provisions shall provide that no claim shall be made for adjustment in
the subcontract amount or the performance schedule, or for damages, by
reason of a stop work
<PAGE>
WHC-380393
Section H, Page 10
order issued for failure to comply with environmental, safety and
health regulations or requirements of DOE. The approved subcontract
provisions shall be included in subcontract as appropriate.
H-11 BUSINESS UNIT
The work performed by ICF KH under this subcontract shall be conducted by a
separate business unit (division, segment, joint venture, etc.) separate
from any parent unit. The business unit shall report directly to a home
office, or special division as approved by WHC.
H-12 SERVICES FROM CERTAIN APPROVED AFFILIATES
1. Subcontractor may obtain services constituting home office support
from certain of its corporate affiliates. The corporate affiliates
from which such services may be obtained are referred to herein as
"Approved Affiliates." The Approved Affiliates are ICF Corporation
International, Inc., ICF Resources Incorporated, ICF Incorporated, ICF
Kaiser Engineers Group, Inc., ICF Kaiser Engineers, Inc., ICF
Technology, Inc., CYGNA Group, and Tudor Engineering Company plus
----
those that may be added from time-to-time in the future by
Subcontractor with WHC's approval.
The scope of the services include, but are not limited to, pension
plan administration, legal assistance, technical assistance, in-plant
expediting, labor relations, other personnel assistance, safety,
internal audit services, and compensation program review. The
Subcontractor shall obtain the approval of WHC on a case-by-case basis
prior to obtaining such services. Approval will normally be obtained
through the "Approval Letter" process.
With respect to the services provided by the personnel of any Approved
Affiliates to Subcontractor:
(a) If the services are performed at the providing entity's home or
branch office, reimbursement shall only include applicable
allowable costs incurred in accordance with Subpart 31.2 of the
Federal Acquisition Regulations as supplemented or modified by
Subpart 931.2 of the Department of Energy Acquisition
Regulations. Allowable costs will include direct costs and
applicable indirect costs as approved by the Defense Contract
Audit Agency (DCAA) or other cognizant Federal agency.
Any profit or fee of the providing entity on its services may not
be included as allowable costs. If the services of the Approved
Affiliate are obtained non-competitively, cost of money shall not
be an allowable cost. These limitations on profit or fee and cost
of money are not applicable to
<PAGE>
WHC-380393
Section H, Page 11
subcontracts awarded to an approved affiliate based on
competition or market/catalog price.
(b) If the services are performed by personnel on temporary
assignments (less than 12 months duration) at the Hanford Site,
or other designated locations away from the providing entity's
home or branch office, reimbursement shall be in accordance with
the foregoing Subparagraph (a) plus the travel and living
allowance policies for temporary assignments in accordance with
policies of the providing entity, not to exceed the applicable
provisions of the Federal Travel Regulations. For temporary
assignments greater than six months, indirect costs shall be
based on an offsite rate (excluding rent and utilities costs of
the office where such personnel are normally located) as approved
by DCAA or other cognizant Federal Agency. Such temporarily
assigned employees shall remain on the providing entity's
payroll.
2. Services of Officers of Approved Affiliates
Pursuant to Subparagraph (e)(25), Section I-77 of the Subcontract,
Subcontractor will be reimbursed for the services of the officers of
any Approved Affiliates, to the extent that such services are
specifically in connection with the subcontract work and approved by
WHC on a case-by-case basis. Allowable reimbursements will include
actual salaries and payroll burdens, and travel and living allowances
in accordance with the applicable Approved Affiliate's corporate
policies, not to exceed the applicable provisions of the Federal
Travel Regulations.
H-13 WORK CONTROL SYSTEM/TECHNICAL DIRECTION
(a) By June 1, preceding the start of each fiscal year, WHC shall provide
the Subcontractor a Statement of Work and Site Baseline Guidance
(Work/Guidance) in accordance with the Site Management System for that
year that conforms to the Description of Work specified in this WHC
contract, in sufficient detail to develop a forecast of estimated
costs and schedule for the performance thereof. ICF KH shall submit
to WHC or other Designated Official, Multi-Year Program Plans/Fiscal
Year Work Plans (MYPP/FYWPs) that specify the workscope, schedule, and
estimated costs to be performed in the Work/Guidance. WHC will
approve the MYPP/FYWPs and provide work authorization prior to the
start of the fiscal year.
(b) Proposed changes to the scope, schedule, or cost baselines contained
in the MYPP/FYWPs, whether initiated by ICF KH or directed by WHC,
will be documented by ICF KH via the change control process, and
approved by WHC prior to the initiation of the modified work effort.
<PAGE>
WHC-380393
Section H, Page 12
(c) Performance of the work under this subcontract shall be subject to the
technical direction of the "Contracts Administrations Representatives"
(CAR) who will be designated in writing by WHC. The term "technical
direction" is defined to include, with limitation:
(1) Directions to ICF KH which redirect the subcontract effort, shift
work emphasis between work areas or tasks, require pursuit of
certain lines of inquiry, fill in details, or otherwise serve to
accomplish the subcontractual Description of Work.
(2) Provision of written information to ICF KH which assists in the
interpretation of drawings, specifications, or technical portions
of the work description; or
(3) Review and, where required by the subcontract, approval of
technical reports, drawings, specifications, and technical
information to be delivered by ICF KH to WHC under the
subcontract.
(d) Technical direction must be within the Description of Work stated in
the subcontract. The CAR does not have the authority to and may not
issue any technical direction which:
(1) Constitutes a change in the subcontract as defined in the clause
of the subcontract entitled "Changes."
(2) Changes the base fee, incentive fee pools, and award fee, or the
performance period of the subcontract;
(3) Changes any of the express terms, conditions, or specifications
of the subcontract; or
(4) Interferes with the ICF KH's right to perform in accordance with
the subcontract.
(e) Technical direction which constitutes a change to the performance
baseline as described in the MYPP/FYWPs will be documented by ICF KH,
and approved by WHC, as noted in section (b) above.
(f) All technical directions shall be issued in writing by WHC, and ICF KH
has no obligation to perform until such written technical direction is
received by ICF KH.
(g) ICF KH shall proceed promptly with the performance of technical
directions duly issued by WHC in the manner prescribed by this clause
and within his/her authority under provision of this clause, except as
noted in section (e) above.
<PAGE>
WHC-380393
Section H, Page 13
If in the opinion of ICF KH, any instruction or direction falls within
one of the categories defined in paragraphs (d)(1) through (d)(4)
above, ICF KH shall not proceed, but shall notify WHC in writing,
within ten (10) working days, after receipt of any such instruction or
direction, and shall request WHC to modify the Work/Guidance, or the
subcontract accordingly. Upon receiving the notification from ICF KH,
WHC shall:
(1) Advise ICF KH in writing, within fifteen (15) working days, after
receipt of ICF KH's letter, that the technical direction is
within the scope of Work/Guidance or the subcontract, and does
not constitute a change under the "Changes" clause of the
contract;
(2) Inform ICF KH in writing, within fifteen (15) working days, after
receipt of ICF KH's letter, not to perform under the direction
and cancel the direction; or
(3) Advise ICF KH, within fifteen (15) working days, that WHC will
issue a written change to the Work/Guidance or the subcontract.
(h) A failure of ICF KH and WHC to agree that the technical direction is
within the Description of Work, or a failure to agree upon the
appropriate action to be taken, with respect thereto, shall be subject
to the provisions of the clause entitled "Disputes," of this
subcontract.
H-14 PRE-EXISTING CONDITIONS
The Government shall indemnify, protect, and hold ICF KH harmless from and
against any and all civil liabilities, obligations, losses, damages,
penalties, claims (including, without limitation, claims involving strict
or absolute liability), actions, suits, costs, expenses, and disbursements
(including, without limitation, legal fees and expenses) of any kind and
nature whatsoever which may be incurred by, imposed on, or asserted against
ICF KH in any way relating to or arising out of any act or failure to act
on the part of any person, and relating to any part of the facility at the
site(s) managed under this subcontract or any areas adjacent thereto which
act or failure to act occurred before ICF KH assumed responsibility for
site(s) (October 1, 1993) managed under this subcontract. For acts or
omissions of ICF KH's employees, officers, and directors during the period
March 1, 1987, to September 30, 1993, ICF KH will be indemnified and
protected or will be held responsible, as appropriate, in accordance with
the provisions of the subcontract in existence prior to October 1, 1993.
New conditions created or caused by ICF KH and coming into being after
October 1, 1993, are not considered "pre-existing conditions." To the
extent the acts or omissions constituting willful misconduct, lack of good
faith, or failure to exercise prudent business judgement of ICF KH
managerial personnel as defined in paragraph H-36, "Subcontractor
Managerial
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Personnel," acting after October 1, 1993, cause or add to any fine or
penalty resulting from a pre-existing condition (i.e., one in existence
prior to October 1, 1993), ICF KH will be responsible only for added
incremental costs in accordance with the terms and conditions of this
subcontract. This clause does not relieve ICF KH of the duty to inspect
existing facilities and identifying to the Government such pre-existing
conditions or areas of noncompliance nor does it relieve ICF KH from the
responsibility to take corrective action with respect to pre-existing
conditions as directed by WHC or as required elsewhere in this subcontract.
The provisions of this clause are subject to the availability of funds
appropriated by Congress.
Additionally, any liability, obligation, loss, damage, claim (including
without limitation, a claim involving strict or absolute liability or an
accountability event/claim by DOE), action, suit, fine or penalty, cost,
expense or disbursement, which may be incurred or imposed, or asserted by
any party and arising out of any act or failure to act which occurred
before October 1, 1994, in conjunction with the performance of this
contract, shall be deemed incurred under the contractual terms and
conditions in effect at the time of the action or occurrence in question.
H-15 PERFORMANCE BASED INCENTIVES
WHC may, at its sole discretion, establish Performance Based Incentives
(PBI) which will be described and provided to ICF KH in writing annually or
at other times as determined by WHC. ICF KH may present input, which WHC
may consider and discuss with ICF KH as part of the establishment of the
PBIs. ICF KH's input must be received by July 1 of each year. PBIs will
provide for ICF KH to earn or forfeit fee as described in the Performance
Evaluation Plan (PEP) from an incentive fee pool. While ICF KH may earn or
forfeit fee as a result of performance on the individual incentives
described, the net fee earned from the pool cannot be less than zero.
Changes in work scope or changes in the prioritization of work scope during
the performance period may present opportunities for the addition of
new/revised Performance Based Incentives. ICF KH may present proposals for
modification of, or additions to the PBIs. Upon mutual agreement between
the parties, new or revised PBIs will be established in writing, providing
for the earning or forfeiture of fee as described above. Fees earned by
way of the addition of new or revised PBIs will be payable out of the
unearned PBI fee pool established for the year; however, if ICF KH has
failed to satisfy the requirements for a PBI award, then the PBI dollars
associated with that award are permanently lost and are not subject to
reallocation. From time to time, WHC may add PBIs in response to changing
priorities. In these cases incentive funding may be shifted from the award
fee pool.
H-16 RESERVED
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H-17 MAKE-OR-BUY, ECONOMIC TRANSITION AND OUTSOURCING PERFORMANCE INCENTIVE
(a) Make-or-Buy. ICF KH shall perform make-or-buy analyses in accordance
with a Make-or-Buy Plan prepared by ICF KH and participate in WHC's
Make-or-Buy review process. A copy of the ICF KH plan shall be
submitted to WHC for approval by February 15th, of each year. ICF KH
is authorized to subcontract all work designated as "buy" in the
approved plan, or as directed by the WHC Make-or-Buy Review Board.
Authorization will be granted only if determined to be advantageous to
WHC or DOE in consideration of overall site business strategy and
consistent with the Site Economic Transition program.
If ICF KH proposes to change the plan by adding or deleting scopes of
work to the list of outsourcing targets, ICF KH shall, no less than 30
days prior to the issuance of a solicitation for such an outsourcing
subcontract: (1) request approval of WHC in writing and (2) submit
justification in sufficient detail to permit evaluation. Modification
of the Make-or-Buy Plan shall be effective upon appropriate
coordination and concurrence by the RL-STI Office and approval of WHC.
In the absence of a Make-or-Buy Plan, ICF KH shall obtain approval of
WHC prior to the award of any subcontract for work historically
performed by in-house work forces.
ICF KH is permitted and encouraged to add additional work scopes to
the outsourcing target list.
(b) Make-or-Buy Process and Special Considerations. ICF KH shall evaluate
scopes of work historically performed by in-house work forces and
conduct evaluations consistent with a Make-or-Buy Review Board
Handbook produced and maintained by ICF KH.
In its deliberations, ICF KH will fully consider bargaining unit
issues and will not proceed with outsourcing actions that are unfair
or inconsistent with the collective bargaining agreements. ICF KH's
Labor Relations specialists shall participate in the review process as
advisors and shall have authority to ensure that actions are
consistent with the provisions of the collective bargaining
agreements.
ICF KH recommendations shall be documented and will address factors
such as:
1. Total Cost and a comparison of in-house costs, including residual
in-house cost, with estimated subcontract costs.
2. Socio-Economic Factors and Regional Economic Diversification
3. Diversity in subcontracting (high priority)
4. Availability and Reliability of Alternative Source(s) and
Schedule Implications
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5. Security and Quality Requirements
6. Maintenance of Core Competencies
7. Complexity of Work and Anticipated Changes
8. Fair Treatment of Bargaining Unit and Non-Bargaining Unit
Personnel
ICF KH may involve or consider suggestions from external resources in
its Make-or-Buy deliberations but is not obligated to do so.
(c) Outsourcing Incentive. ICF KH shall be entitled to an outsourcing
incentive of 15 percent of the savings realized from the outsourcing
for the first twelve (12) month period. Savings for the purpose of
calculating fee shall be defined as the difference between the
historical cost of in-house performance and the subcontract cost less
the incremental cost of ICF KH incident to the Make-or-Buy review
process.
The 15 percent incentive above shall be realized from savings at the
time of subcontract award for fixed price or fixed unit priced
subcontracts, as compared to historically incurred in-house costs.
For cost reimbursement type subcontracts, the 15 percent fee will be
paid at the conclusion of the 12 month period following award, after
actual costs are compared to historically incurred in-house costs. No
additional funds will be added to the contract value, nor will funds
from the incentive pools be used to pay the 15 percent inventive.
ICF KH shall track administrative costs of this Make-or-Buy program.
ICF KH is also required to submit cost or pricing data (as defined
under FAR 15.804) to substantiate the in-house costs. For savings
that exceed $100,000, subcontractor is required to certify the
accuracy and completeness of the data in accordance with FAR 15.804-4.
For fixed price of fixed unit price subcontracts, cost or pricing data
must be submitted prior to award. For cost reimbursement type
subcontracts, cost or pricing data must be submitted 12 months
following award to assist in determining the savings (if any) actually
achieved. Only those Make-or-Buy savings applicable to FY 1995 can
count toward the Cost Base Incentive cost reduction target described
in this contract but such savings shall not entitle ICF KH to an
additional fee beyond the 15 percent payable under this provision.
H-18 RESERVED
H-19 FACILITIES MANAGEMENT
(a) Site development.
WHC shall provide to ICF KH site development guidance for the
facilities and lands for which ICF KH is responsible under the terms
and conditions of this subcontract. Based upon this
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Section H, Page 17
guidance, ICF KH shall prepare, and maintain through annual updates, a
Long-Range Site Development Plan (Plan) to reflect those actions
necessary to keep the development of these facilities current with the
needs of WHC and allow ICF KH to successfully accomplish the work
required under this subcontract. In developing this Plan, ICF KH
shall follow the procedural guidance set forth in the DOE directive
entitled Site Development Planning. ICF KH shall use the Plan to
manage and control the development of facilities and lands. All plans
and revisions shall be approved by WHC.
(b) General design criteria.
The general design criteria which shall be utilized by ICF KH in
managing the site for which it is responsible under this subcontract
are those specified in the DOE directive entitled General Design
Criteria. ICF KH shall comply with these mandatory, minimally
acceptable requirements for all facility designs with regard to any
building acquisition, new facility, facility addition or alteration,
or facility lease undertaken as part of the site development
activities of paragraph (a) above. This includes onsite constructed
buildings, pre-engineered buildings, plan-fabricated modular
buildings, and temporary facilities. For existing facilities,
original design criteria apply to the structure in general; however,
additions or modifications shall comply with this directive and the
associated latest editions of the references therein. An exception
may be granted for offsite office space being leased by ICF KH on a
temporary basis.
(c) Maintenance management.
In its management of property, on the site for which it is responsible
under this subcontract, ICF KH shall comply with the provisions of the
DOE Directive entitled Maintenance Management Programs, requiring the
establishment and execution of a maintenance management program for
all property under ICF KH's control. ICF KH shall maintain property
for which it is accountable in a manner which promotes operational
safety, environmental protection and compliance, property
preservation, and cost effectiveness. ICF KH shall maintain property
to enhance the property's ability, throughout its life, to meet the
requirements for which it was designed. This will include periodic
examination of the property to determine any deterioration or
technical obsolescence which may threaten performance or safety.
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(d) Energy management.
ICF KH shall manage the facilities for which it is responsible under
the terms and conditions of this subcontract in an energy efficient
manner in accordance with the DOE directive entitled In-House Energy
Management. ICF KH shall develop a ten (10)-year energy management
plan for each site with annual reviews and revisions. ICF KH shall
submit an annual report on progress toward achieving the goals of the
ten (10)-year plan for each individual site, and an energy
conservation analysis report for each new building or building
addition project. Any acquisition of utility services by ICF KH shall
be conducted in accordance with 970.0803.
(e) Capital assets management.
ICF KH shall manage the planning, programming, and budgeting for the
capital assets of the site for which ICF KH is responsible under the
terms and conditions of this subcontract according to, and consistent
with, the requirements of the DOE directive entitled Capital Assets
Management Process. ICF KH shall prepare and submit to WHC all
appropriate data and documents required by the directive for that
site.
(f) Subcontract requirements.
To the extent ICF KH subcontracts performance of any of the
responsibilities discussed in this clause, the subcontract shall
contain the requirements of this clause relative to the subcontracted
responsibilities.
H-20 PROJECT CONTROL SYSTEM
(a) In the performance of this subcontract, ICF KH shall establish,
maintain and use a project control system meeting the requirements
specified in the subcontract, in DOE Notice 4700.5, "Project Control
System Guidelines" and any other system requirements defined by WHC.
ICF KH may use a pre-existing project control system if such system
satisfies the requirements of DOE Notice 4700.5. ICF KH shall not
make any significant changes to the approved system without the prior
written approval of WHC.
(b) ICF KH shall provide WHC or his authorized representative with access
to all pertinent records, data, plans for the purposes of initial
approval, approval of proposed changes, and the operation of the
project control system.
(c) ICF KH shall set forth applicable project control system requirements
in those subcontracts identified by WHC. ICF KH shall incorporate in
the identified subcontracts provisions for
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Section H, Page 19
review and surveillance of the subcontractor's systems. The review
will be conducted by WHC, unless the Government, ICF KH, or
subcontractor requests Government review.
H-21 FINANCIAL MANAGEMENT SYSTEM
To the extent that ICF KH is not utilizing WHC Financial Management
Systems, ICF KH shall maintain and administer a financial management system
that includes an integrated accounting system and (1) is suitable to
provide proper accounting in accordance with DOE requirements for assets,
liabilities, and collections accruing to ICF KH in connection with the work
under this subcontract, expenditures, costs, and encumbrances; (2) permits
the preparation of accounts and accurate, reliable financial and
statistical reports; and (3) assures that accountability for the assets can
be maintained. ICF KH shall submit to WHC for written approval an annual
plan for new financial management systems and/or subsystems and major
enhancements and/or upgrades to the currently existing financial systems
and/or subsystems. Any deviations from this plan must have prior written
WHC approval.
H-22 INTEGRATED ACCOUNTING SYSTEM
The integrated accounting procedures are required for use under this
subcontract. ICF KH's financial management system shall include an
integrated accounting system which is linked to DOE's accounts through the
use of reciprocal accounts and which has electronic capability to transmit
periodic self-balancing trial balances, as a minimum monthly and at year
end, to the Department's Primary Accounting System for reporting financial
activity under this subcontract in accordance with DOE's Financial
Accounting Directives."
H-23 WHISTLEBLOWER PROTECTION FOR SUBCONTRACTOR EMPLOYEES (JANUARY 1993)
(a) ICF KH shall comply with the requirements of the "DOE Contractor
Employee Protection Program" at 10 CFR Part 708.
(b) ICF KH shall insert or have inserted the substance of this clause,
including this paragraph (b), in subcontracts, at all tiers, with
respect to work performed onsite at a DOE-owned or leased facility, as
provided for at 10 CFR Part 708.
H-24 WORK FOR OTHER FUNDING AUTHORIZATION
ICF KH is permitted to provide advance payment utilizing ICF KH private
funds for reimbursable work to be performed by ICF KH for non-federal
entities in instances where advance payment from that entity is required
pursuant to DOE policy and such advance cannot be obtained. ICF KH is also
permitted to advance continuation funding utilizing ICF KH private funds
for Federal entities when the term, or the funds on a federal interagency
agreement have elapsed. Any uncollectible receivables resulting from ICF
KH utilizing its own funding shall be the
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WHC-380393
Section H, Page 20
responsibility of ICF KH and neither WHC or the United States Government
shall not have any liability to ICF KH therefor.
H-25 INCENTIVE FEE ARRANGEMENT
It is understood that the incentive fee arrangements under this subcontract
include the incentive types (both cost and performance), number of
incentives, amount available under the incentives as well as the method for
determining fees earned and method of payment are applicable to the
existing work scope only. At a reasonable time prior to entering into
negotiations for the annual fee negotiations, WHC will examine the benefits
received, if any, from the existing incentive fee arrangement and the
mechanisms for implementation for effectiveness and ease of administration.
WHC shall unilaterally determine if any or all of the incentive fees should
continue at all, in part, or in their present form. At that time WHC will
enter into discussions with ICF KH to determine new or changed fee
arrangements.
H-26 ADVANCE AGREEMENT UNDERSTANDING ON ALLOWABLE COSTS
In recognition of the potential liabilities arising from the work, the
parties agree, in accordance with FAR 31.109, that the following agreement
and understanding shall prevail in any claims involving questions of
reasonableness, allocability, or other questions of allowability, fault or
no-fault:
No provision to this subcontract pertaining to indemnification or
liabilities to third parties is intended to supersede or diminish or
otherwise affect the indemnification provided by the Price-Anderson Act, as
amended, for activities covered by the Act.
H-27 COST, SCHEDULE, AND SAFETY PERFORMANCE INCENTIVE FOR VALIDATED CONSTRUCTION
PROJECTS
WHC and the Subcontractor are identifying incentive fee arrangements to
apply to validated construction projects. When negotiations are completed,
a modification to this subcontract will incorporate the incentive fee
arrangement.
H-28 RESERVED
H-29 INSURANCE - LITIGATION AND CLAIMS
(a) ICF KH may, with the prior written authorization of WHC, and shall,
upon the request of WHC, initiate litigation against third parties,
including proceedings before administrative agencies, in connection
with this subcontract. ICF KH shall proceed with such litigation in
good faith and as directed from time to time by WHC and in accordance
with DOE approved Subcontractor litigation management procedures.
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Section H, Page 21
(b) ICF KH shall give WHC immediate notice in writing of any action,
including any proceeding before an administrative agency, filed
against ICF KH arising out of the performance of this subcontract.
Except as otherwise directed by WHC, in writing, ICF KH shall furnish
immediately to WHC copies of all pertinent papers received by ICF KH
with respect to such action.
(c) (1) Except as provided in subparagraph (2) immediately following, ICF
KH shall provide and maintain workers' compensation, employer's
liability, comprehensive general liability (bodily injury),
comprehensive automobile liability (bodily injury and property
damage) insurance, and such other bonds and insurance required by
law, this subcontract, or by the written direction of WHC.
(2) ICF KH may, with the approval of WHC, maintain a self-insurance
program; provided that, with respect to workers' compensation,
ICF KH is qualified pursuant to statutory authority.
(3) All bonds and insurance required by this clause shall be in a
form and amount and for those periods as WHC may require or
approve and with sureties and insurers approved by WHC.
(d) ICF KH agrees to submit for WHC's approval, to the extent and in the
manner required by WHC, any other bonds and insurance that is
maintained by ICF KH in connection with the performance of this
subcontract and for which ICF KH seeks reimbursement.
(e) Except as provided in subparagraphs (g) and (h) of this clause, ICF KH
shall be reimbursed--
(1) For that portion of the reasonable cost of bonds and insurance
allocable to this contract required in accordance with
subcontract terms or approved under this clause; and
(2) For certain liabilities (and expenses incidental to such
liabilities) to third persons not compensated by insurance or
otherwise without regard to and as an exception to the clause of
this subcontract entitled, "DEAR 970.5204-15," Obligation of
Funds (Feb 1993)." These liabilities must arise out of the
performance of this subcontract, whether or not caused by the
negligence of ICF KH or of ICF KH's agents, servants, or
employees, and must be represented by final judgments or
settlements approved in writing by WHC. These liabilities are
for--
(i) Loss of or damage to property;
(ii) Losses, damages, or judgments of a type for which written
approval by WHC has been provided (e.g.,
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Section H, Page 22
medical malpractice, errors or omissions, and
comprehensive general liability); or
(iii) Death or bodily injury.
(f) WHC's liability under paragraph (e) of this clause is subject to the
availability of appropriated funds at the time a contingency occurs.
Nothing in this subcontract shall be construed as implying that the
Congress will, at a later date, appropriate funds sufficient to meet
deficiencies.
(g) ICF KH shall not be reimbursed for liabilities (and expenses
incidental to such liabilities)--
(1) For which ICF KH is otherwise responsible by law or the
provisions of this subcontract.
(2) For which ICF KH has failed to insure or to maintain insurance as
required by law or by written direction of WHC.
(h) (1) Notwithstanding any other provision of this subcontract, ICF KH's
liabilities to third persons are not allowable unless ICF KH
demonstrates to WHC that such liabilities were not caused by
either (i) the willful misconduct or lack of good faith of ICF
KH's managerial personnel, or (ii) the failure of ICF KH's
managerial personnel to exercise prudent business judgment.
(2) Punitive damages are not allowable unless ICF KH establishes to
the reasonable satisfaction of WHC that they were incurred as a
result of compliance with specific terms and conditions of the
subcontract or written instructions from WHC.
(3) The cost of insurance procured by ICF KH to cover the third-party
liabilities referenced in subparagraph (g)(1) of this clause is
not allowable.
(4) The term subcontractor's "managerial personnel" as used in
subparagraph (h)(1) of this clause is defined in Paragraph H-36,
"Subcontractor's Managerial Personnel."
(i) ICF KH may at its own expense and not as an allowable cost procure for
its own protection insurance to compensate ICF KH for any unallowable
or nonreimbursable costs incurred in connection with subcontract
performance.
(j) If any suit or action is filed or any claim is made against ICF KH,
the cost and expense of which may be reimbursable to ICF KH under this
subcontract, and the risk of which is then uninsured or is insured for
less than the amount claimed, ICF KH shall--
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Section H, Page 23
(1) Immediately notify WHC and promptly furnish copies of all
pertinent papers received;
(2) Authorize WHC representatives to collaborate with (i) in-house or
approved outside counsel in settling or defending the claim, or
(ii) counsel for the insurance carrier in settling or defending
the claim when the amount of the liability claimed exceeds the
amount of coverage, unless precluded by the terms of the
insurance subcontract; and
(3) Authorize WHC representatives to settle or defend the claim and
to represent ICF KH in or to take charge of any litigation, if
required by WHC, when the liability is not insured or covered by
bond. ICF KH may, at its own expense, be associated with the
Government representatives in any such claim or litigation.
H-30 COSTS ASSOCIATED WITH DISCRIMINATORY EMPLOYEE ACTIONS
(a) DEFINITIONS
(1) "Costs" include any costs or expenses relating to an employee
action, as defined below, incurred after the commencement of the
employee action, including but not limited to back pay, damages
or other award in the form of relief to the employee;
administrative and clerical expenses; the cost of legal services
whether provided by ICF KH or procured from outside sources; the
costs of services of accountants, consultants or other experts
retained by ICF KH; all elements of related compensation, costs
and expenses of employees, officers and directors who are
personally and substantially involved in the alleged
discrimination or discriminatory acts, as defined below, forming
the basis for the employee action; and any similar costs.
(2) "Discrimination or Discriminatory Acts" means(s) discharge,
demotion, reduction in pay, coercion, restraint, threats,
intimidation or other similar negative action taken against an
employee by ICF KH, as a result of activities protected by the
statutes enumerated in 29 C.F.R. (S) 24.1(a).
(3) "Employee Action" means an action filed in federal or state court
for redress of discrimination or discriminatory action by ICF KH,
an employee action brought under 29 C.F.R. Part 24. Expressly
excluded from this definition are actions filed by individuals
who are not employees of ICF KH or actions filed under 10 C.F.R.
Part 708.
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Section H, Page 24
(b) Costs incurred in the investigation and/or defense of an employee
action under this section shall be differentiated and accounted for by
ICF KH so as to be separately identifiable. Such costs may not be
paid from the advance funding provided pursuant to this subcontract,
whether that funding be in the form of a special bank account or a
letter of credit. Notwithstanding the foregoing, WHC may, in
appropriate circumstances, provide for conditional payment upon
provision of adequate security, or other adequate assurance, and
agreements by ICF KH to repay all unallowable costs, plus interest, if
the costs are subsequently determined to be unallowable. The
allowance of such costs, notwithstanding any other provision of the
subcontract, will be determined in accordance with this Clause.
(c) All costs incurred in connection with a settlement directed by WHC and
otherwise allowable under the subcontract, are allowable.
(d) Costs incurred by ICF KH in connection with an employee action are not
allowable if the employee action results in one of the following
outcomes:
(1) A judgment or other determination of liability against ICF KH and
in favor of the employee in a civil proceeding in state or
federal court, which has not been appealed by either ICF KH or
the employee.
(2) A final determination under 29 C.F.R. Part 24, which has not been
appealed by either ICF KH or the employee, that ICF KH has
violated the employee protection provisions of the statutes for
which the Secretary of Labor has been assigned enforcement
responsibility under Part 24; or
(3) Except as provided in (c) above and (f) below, a voluntary
settlement entered into by ICF KH, without the direction of WHC,
under which the employee is awarded compensation or equitable
relief such as reinstatement.
(e) Costs incurred by ICF KH in a case where the ICF KH receives a court
judgment or final administrative determination of liability favorable
to ICF KH are allowable.
(f) Costs incurred as a result of discrimination or discriminatory acts
that resulted from compliance with either (A) specific terms and
conditions of the subcontract or (B) written instructions from WHC
shall be allowable.
(g) The provisions of this Clause shall not apply to the defense of suits
by employees or ex-employees of ICF KH under Section 2 of the Major
Fraud Act of 1988 as amended. (See the Clause of this subcontract
entitled "Cost Prohibitions Related to Legal and Other Proceedings.)
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(h) This clause shall be effective and shall apply only to those employee
actions where the operative facts giving rise to the claim of the
employee occur on or after the effective date of the modification of
the subcontract incorporating this clause and the action is filed on
or after the effective date of the modification of this subcontract
incorporating this clause.
H-31 INCORPORATION OF REVISED DEPARTMENTAL POLICIES AND PROCEDURES
(a) The parties acknowledge that the Department of Energy has issued a
report of its Contract Reform Team in February 1994, which includes a
number of recommendations to improve the subcontracting activities of
WHC and DOE. This Report may result in additions or revisions to
existing contract clauses, or other DOE regulations, orders,
directives, or practices, which are made effective after the date of
this subcontract, and which could conflict with, or supersede, or
require changes to certain aspects of this subcontract. It is the
intent of WHC to modify this subcontract, as necessary, to incorporate
these new or revised clauses, regulations, orders, directives, or
practices.
(b) At such time as additions or revisions are issued in final form or
otherwise made effective by WHC, ICF KH and WHC will promptly attempt
to agree to a bilateral modification of this subcontract to
incorporate the new or revised clauses, regulations, orders,
directives, or practices. If the parties are unable to reach timely
agreement on a bilateral modification, WHC shall have the right to
terminate this subcontract for convenience pursuant to the clause
entitled "Termination."
H-32 ENERGY EFFICIENCY AND WATER CONSERVATION
In addition to the energy management requirements set forth in the
Facilities Management clause of this subcontract, ICF KH will comply with
the requirements in Sections 301 to 308 and 507 of Executive Order 12902,
Energy Efficiency and Water Conservation at Federal Facilities. ICF KH
shall comply with energy and water management goals communicated by the WHC
in writing.
H-33 SHARING OF SAVINGS, AWARD FEE, AND INCENTIVE FEE PROCESS
As a part of the process in determining the amount of award and incentive
fee pools, determination of amount of sharing of savings and award and
incentive fees earned, and the payment of sharing of savings and award and
incentive fees, the FDO shall have the right, which shall not be subject to
the clause of this subcontract entitled, "Disputes" to:
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(a) Unilaterally determine the fee distribution among various award and
incentive fee components at the beginning of each fiscal year. If WHC
determines that changes to the fee distribution (excluding Base Fee)
are necessary, good faith discussions will be held with ICF KH and
appropriate adjustments (if any) will be made if determined by WHC to
be fair and reasonable.
(b) Unilaterally determine whether, for cause, ICF KH is entitled to all,
a portion, or none of the share of savings, award, or incentive fee
component.
(c) Make payment of all share of savings and award and incentive fees
earned.
(d) Consider any information available which relates to ICF KH's
performance of subcontract requirements, notwithstanding the
methodology provided in Subsection H-1, H-15, H-16, H-17, H-27, H-28,
and H-34, for the determination of award fee, incentive fee, and share
of savings. The FDO may at his/her discretion, determine the ICF KH's
performance in a particular incentivized pool or a share of savings
pool to be unacceptable and may withhold all or any portion of the fee
otherwise earned that is associated with that particular pool for the
six month evaluation period and require a refund in accordance with
Clause I-67, "Payment and Advances," or any associated award,
incentive fee, or share of savings previously paid during the six
month evaluation period. The FDO may also, in extraordinary cases
where he/she determines the unacceptable performance has reduced ICF
KH's overall contract performance to a less than satisfactory level
for purposes of award fee determination, withhold all or any portion
of the entire award fee and all or any portion of any incentive fees
and share of savings available under the contract for the six month
evaluation period and require a refund in accordance with Clause I-67,
"Payment and Advances," of all or a portion of any award, incentive
fee or share of savings previously paid during the six month
evaluation period.
If WHC's determination as specified in (a) through (d) involves an
event of joint liability between WHC and ICF KH, then any
determination of ICF KH's share or allocation of fault in that event
by WHC shall be subject to the clause of the subcontract entitled
"Disputes" in the event the parties are not able to reach agreement
with regard to share of responsibility or fault.
H-34 COST REDUCTION INITIATIVE AND INCENTIVE
(a) Objective:
----------
In the interest of making substantial cost reductions at Hanford,
meeting the Federal obligation to reduce cleanup costs, and
accelerating site cleanup, ICF Kaiser Hanford Company (ICF KH) has
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WHC-380393
Section H, Page 27
the opportunity to earn cost based incentive (CBI) fee. The CBI
initiative covered in this clause describes this opportunity.
(b) Incentive Arrangement:
----------------------
As a part of ICF KH's total incentive fee pool, developed in
accordance with Department of Energy Acquisition Regulation (DEAR)
915.971-5 and DEAR 970.1509, ICF KH's cost based incentive fee shall
be earned at the rate of 7.386 percent for all qualifying cost savings
up to a total of $3.25 million in paid CBI fees.
In addition to the CBI fees paid from the incentive fee pool developed
in accordance with DEAR 915.971-5 and DEAR 970.1509, ICF KH may also
earn additional cost based incentive fee if both of the following
occur:
i. ICF KH achieves more than $44 million in qualifying cost savings
and
ii. More than $170 million in savings is achieved within the WHC
prime contract which qualify for WHC's Challenge 170 incentive
fee.
In the case where ICF KH achieves more than $44 million in qualifying
cost savings but the $170 million in overall savings is not achieved
within the WHC prime contract, significant acknowledgement and
specific credit will be given to ICF KH through the award fee
evaluation process.
This special additional CBI shall be earned at the rate of 15 percent
and be paid exclusively from the funds generated through the savings
actions themselves.
A qualifying cost reduction for either the CBI or the special 15
percent CBI fee must be an actual hard dollar cost reduction realized
during FY 1995 in accordance with paragraph (d) below.
The parties agree that the ICF KH shall not be entitled to payment of
both a CBI incentive fee and any other form of incentive fee
associated with the same cost saving initiative or action.
(c) Return of Savings to WHC's Management Reserve.
----------------------------------------------
ICF KH is assigned a cost reduction objective of at least $44 million
in hard dollar savings. Cost savings, must be visible through
underruns or be accompanied by baseline change control and satisfy a
WHC audit assurance that claimed savings are verified hard dollars
savings. To qualify, such saved funds must be concurred to by WHC
Financial Program Office and returned to the WHC Director, Contracts
and Management Services for further disposition, application, or
return to the Government.
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WHC-380393
Section H, Page 28
(d) Achievement of Qualifying Cost Reductions
-----------------------------------------
WHC's approved programmatic Multi-Year Program Plans (MYPP) and
changes through approved change control are the baseline for measuring
and determining qualifying cost reductions. Evidence of savings
achieved by ICF KH in either of two ways:
i. When a positive cost variance exists in a cost account controlled
by ICF KH SSPP as measured by the difference between the Budgeted
Cost of Work Performed (BCWP) and the Actual Cost of Work
Performed (ACWP). The Site Management System (SMS) or the
Financial Data System's monthly reports will be the official
source of data.
ii. When savings have been documented in either of the following
ways:
a) the elimination or reduction of "low value" work activities
that do not affect committed deliverables or outcomes, or
b) the revision of program strategies that permit the
elimination or reduction of workscope or process steps--
formerly thought to be necessary to the accomplishment of
program objectives--without affecting committed deliverables
or outcomes.
Variance, both positive and negative, from items i and ii above, will
be summed to determine net productivity or cost savings achieved.
The documentation will consist of WHC-approved Productivity
Achievement Reports (PAR), funds transfer and/or change control, where
appropriate, with year end analysis of SMS Performance and FDS
financial reports.
(e) Limitations and Certifications.
-------------------------------
ICF KH shall not be eligible for a CBI fee in a particular cost
account if it sacrifices its Environmental, Safety and Health (ES&H)
performance to achieve qualifying cost reductions or if it reduces its
costs merely by deferring work. Accordingly, all change request
documents must be submitted to WHC's Director, Contracts and
Management Services for review and audit and ICF KH is required to
certify and demonstrate the following in its request for CBI fee:
i. No required work, directly associated with the CBI, is overdue or
deferred;
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WHC-380393
Section H, Page 29
ii. No safety incidents (exclusive of first aid) can be attributed to
the actions or results of a CBI proposal and the Level 3
organization responsible for those savings must have a
satisfactory safety record as determined by the FDO.
iii. No violations in any ES&H law, regulation or directive has been
committed (without approved waiver) by ICF KH or its
subcontractors in achieving the claimed savings.
(f) Payment of Cost Based Incentive Fees.
-------------------------------------
On a quarterly basis, WHC will conduct a thorough evaluation of the
SMS reports, FDS reports, and applicable change requests and determine
productivity or cost reductions achieved, if any. To the extent that
cost reductions claimed by ICF KH are deemed valid by WHC's
Contracting Officer, ICF KH will be paid a CBI fee by WHC in
accordance with paragraph (b) above.
To the extent that a payment made after a quarter is subsequently
offset by a later overrun or in netting out all overruns against
underruns and excess CBI payments have been made, ICF KH agrees to
repay all such excess fees with interest in accordance with the
internal rates prescribed in WHC's prime contract for excess payments.
(g) Maximum Earnable Cost Based Incentive Fees.
-------------------------------------------
The maximum payable regular CBI fee allocated from the incentive fee
pool developed in accordance with DEAR 915.971-5 and DEAR 970.1509, is
$3.25 million but a special CBI fee may be earned without limit when
ICF KH has saved more than $44 million in qualifying savings, the
Challenge 170 objective of $170 million in prime contract savings has
been realized, and resulting savings can generate the payment of the
special CBI fee.
H-35 ADDITIONAL EVALUATION CRITERIA - USE OF OBJECTIVE STANDARDS OF PERFORMANCE
(a) Except to the extent that ICF KH is using management control systems
maintained by WHC, ICF KH shall be responsible for maintaining, as an
integral part of its organization, effective systems of management
controls for its administrative, managerial and programmatic
functions. The system of controls shall be documented and
satisfactory to WHC and will be approved in writing by WHC. Such
systems will relate to and support the performance based management
system of this subcontract.
(b) In addition to other performance criteria and measures, as referenced
or set forth elsewhere in this contract, WHC will utilize a
performance based management system for Subcontractor oversight. The
performance based management system will include
<PAGE>
WHC-380393
Section H, Page 30
the use of clear and reasonable objective performance measures agreed
to in advance as standards against which ICF KH's overall performance
of programmatic, administrative and managerial obligations under this
subcontract will be assessed. These measures are set forth in
Attachment D of this contract.
(c) WHC will conduct an ongoing assessment of ICF KH's programmatic,
administrative and managerial operations, including consideration of
self assessments accomplished by ICF KH, as the principle means by
which to evaluate compliance with the performance measures contained
in Attachment D hereto. In addition to the Award Fee Evaluation and
other incentive mechanisms set forth in the contract, ICF KH's overall
performance of programmatic, administrative and managerial
responsibilities under this subcontract will be determined by the
evaluation of demonstrated performance against the criteria and
measurements contained in Attachment D.
(d) The evaluation of performance against measures contained in Attachment
D will be consideration (1) in the development of fee awards, if any,
and (2) as a primary consideration in the WHC approval of ICF KH
salary requests, salary adjustments, and awards for the General
Manager and Chief Financial Officer and Manager of Administration of
the ICF Kaiser Hanford Company. Clause (2) of this paragraph applies
only if ICF KH receives written notice from the President of
Westinghouse Hanford Company has determined that such clause is
applicable.
(e) Bi-annually, or otherwise in accordance with the terms and conditions
of this subcontract, WHC shall provide a written assessment of ICF
KH's performance, which shall be based on the DOE appraisal program
and the Contracting Officer's evaluation of ICF KH's self assessment
findings and conclusions. ICF KH agrees to comply with direction or
respond with corrective action resulting from performance deficiencies
identified as part of WHC's evaluation of demonstrated performance
against the criteria and measurements contained in Attachment D.
H-36 SUBCONTRACTOR'S MANAGERIAL PERSONNEL
Managerial personnel shall include key employees as set forth in the key
employees clause of this subcontract plus all Level I Managers. Level I
Managers are those management employees of ICF KH who are members of the
senior staff (the President/General Manager and all his/her direct
reports).
<PAGE>
WHC-380393
Section H, Page 31
H-37 IMPLEMENTATION OF THE HANFORD SITE STABILIZATION AGREEMENT
1. The Hanford Site Stabilization Agreement for all construction work for
the DOE at the Hanford Site, which is referenced in this Subsection H-
37, consists of a Basic Agreement dated September 10, 1984, plus
Appendix A.
2. This Subsection H-37 applies to employees performing work, under
subcontracts (or subcontracts thereunder) the U.S. Department of
Energy, Richland Operations Officer, Richland (RL), which are subject
to the Davis-Bacon Act, in the classifications set forth in the
Hanford Site Stabilization Agreement for work performed at the Hanford
Site.
3. Contractors and subcontractors at all tiers who are parties to an
agreement(s) for construction work with a Local Union having
jurisdiction over RL construction work performed at the Hanford Site,
or who are parties to a national labor agreement for such construction
work, shall become signatory to the Hanford Site Stabilization
Agreement and shall abide by all of its provisions, including its
Appendix A. Subcontractors at all tiers who have subcontracts with a
signatory contractor or subcontractor shall become signatory to the
Hanford Site Stabilization Agreement and shall abide by all of its
provisions, including its Appendix A.
4. Contractors and subcontractors at all tiers who are not signatory to
the Hanford Site Stabilization Agreement and who are not required
under paragraph (3) above to become signatory to the Agreement, shall
pay not less and no more than the wages, fringe benefits, and other
employee compensation set forth in Appendix A thereto and shall
adhere, except as otherwise directed by the Contracting Officer, to
the following provisions of the Agreement:
(a) Article VII Employment, Section 2 only
---------
(b) Article XII Non-Signatory Contractor Requirements
(c) Article XIII Hours of Work, Shifts, and Overtime
(d) Article XIV Holidays
(e) Article XV Wage Scales and Fringe Benefits, Sections 1 and
--------------
2 only
-
(f) Article XVII Payment of Wages-Checking In & Out, Section 3 only
---------
(g) Article XX General Working Conditions
(h) Article XXI Safety and Health
5. ICF KH agrees to make no contributions in connection with this
subcontract to Industry Promotion Funds, or similar funds, except with
the prior approval of WHC.
<PAGE>
WHC-380393
Section H, Page 32
6. The obligation of ICF KH and its subcontractors to pay fringe benefits
shall be discharged by making payments required by this Subcontract in
accordance with the provisions of the amendments to the Davis-Bacon
Act contained in the Act of July 2, 1964 (Public Law 88-349-78 Stat.
238-239), and the Department of Labor regulations in implementation
thereof (29 CFR, Parts 1, 5).
7. WHC may, from time to time, direct ICF KH to pay amounts for wages,
fringe benefits, and other employee compensation as the Hanford Site
Stabilization Agreement, including its Appendix A, may be modified by
the parties thereto from time to time.
8. (a) In the event of failure to comply with paragraphs 3, 4, 5,
6, and 7 above, or failure to perform any of the obligations
imposed upon ICF KH and its subcontractors hereunder, WHC may
withhold any payments due to ICF KH and may terminate the
Subcontract for default.
(b) The rights and remedies of the Government and WHC provided in
this Subsection H-37 shall not be exclusive and are in addition
to any other rights and remedies of the Government provided by
law or under this Subcontract.
9. The requirements of this Subsection H-37 are in addition to, and shall
not relieve ICF KH any obligation imposed by other Clauses of this
Subcontract, including those entitled "Davis-Bacon Act", "Contract
Work Hours and Safety Standards Act - Overtime Compensation",
"Payrolls and Basic Records", "Compliance with Copeland Act
Requirement", "Withholding of Funds", and "Contract Termination -
Debarment".
10. ICF KH agrees to maintain its bid or proposal records showing rates
and amounts used for computing wages and other compensation, and its
payroll and personnel records during the course of work subject to
this Subsection H-37, and to preserve such records for a period of
three years thereafter, for all employees performing such work. Such
records will contain the name and address of each such employee, his
correct classification, rate of pay, daily and weekly number of hours
worked, and dates and hours of the day within which work was
performed, deductions made, and amounts for wages and other
compensation covered by paragraphs (3), (4), (5), (6), and (7) hereof.
ICF KH agrees to make these records available for inspection by the
Contracting Officer and will permit him to interview employees during
working hours on the job.
11. ICF KH agrees to insert the provisions of this Subsection H-37,
including this paragraph (11), in all subcontracts for the performance
of work subject to the Davis-Bacon Act.
<PAGE>
WHC-380393
Section H, Page 33
H-38 WORK AT THE HANFORD SITE
Except where approved by WHC in writing, ICF KH its affiliates, and its
subsidiaries may not, during the term of this subcontract and for one year
thereafter, participate in other DOE contracts, subcontracts, or proposals
therefor involving work at the Hanford Site. WHC will approve such
participation unless, in the opinion of WHC, it would create an
Organizational Conflict of Interest, as defined in DEAR 909.570, the
appearance of such an Organizational Conflict of Interest, or otherwise
violate any law or regulation. The determination by WHC shall be final and
conclusive and shall not be subject to appeal under the Disputes clause of
this subcontract or on any other basis.
In no event shall ICF KH its affiliates and its subsidiaries be allowed to
compete for competitively procured construction work where ICF KH either
participated in the definitive design of the work or where ICF KH will be
awarding the work or acting as Construction manager.
<PAGE>
Section I
Page i
PART I - SECTION I
TABLE OF CONTENTS
I-1 DEFINITIONS (APR 1984)................................................ 1
I-2 OFFICIALS NOT TO BENEFIT (APR 1984)................................... 1
I-3 GRATUITIES (APR 1984)................................................. 1
I-4 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1985)...... 2
I-5 COVENANT AGAINST CONTINGENT FEES (APR 1984)........................... 2
I-6 SECURITY (OCT 1987)................................................... 3
I-7 CLASSIFICATION (APR 1993)............................................. 5
I-8 SENSITIVE FOREIGN NATIONAL CONTROLS (APR 1984)........................ 6
I-9 FOREIGN OWNERSHIP, CONTROL, OR INFLUENCE OVER SUBCONTRACTOR
(APR 1984)............................................................ 6
I-10 REQUIRED SOURCES FOR JEWEL BEARINGS AND RELATED ITEMS (APR 1984)...... 8
I-11 ORGANIZATIONAL CONFLICTS OF INTEREST-SPECIAL CLAUSE (APR 1984)........ 9
I-12 STOP-WORK ORDER (APR 1984)............................................ 13
I-13 RESERVED.............................................................. 14
I-14 EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (APR 1984).............. 14
I-15 RESERVED.............................................................. 14
I-16 ACQUISITION OF REAL PROPERTY (APR 1984)............................... 14
I-17 UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED
BUSINESS.............................................................. 15
I-18 SMALL BUSINESS AND SMALL DISADVANTAGE BUSINESS SUBCONTRACTING PLAN.... 16
I-19 UTILIZATION OF WOMEN-OWNED SMALL BUSINESSES (AUG 1986)................ 21
I-20 UTILIZATION OF LABOR SURPLUS AREA CONCERNS (APR 1984)................. 21
I-21 LABOR SURPLUS AREA SUBCONTRACTING PROGRAM (APR 1984).................. 22
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Section I
Page ii
I-22 CONVICT LABOR (APR 1984).............................................. 23
I-23 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME COMPENSATION
(MAR 1986)............................................................ 23
I-24 RESERVED.............................................................. 25
I-25 EQUAL OPPORTUNITY (APR 1984).......................................... 25
I-26 EQUAL OPPORTUNITY PREAWARD CLEARANCE OF SUBCONTRACTS
(APR 1984)............................................................ 27
I-27 AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA VETERANS
(APR 1984)............................................................ 27
I-28 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)................. 30
I-29 CLEAN AIR AND WATER (APR 1984)........................................ 32
I-30 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA.
(NOV 1991)............................................................ 33
I-31 PRESERVATION OF INDIVIDUAL OCCUPATIONAL
RADIATION EXPOSURE RECORDS (APR 1984)................................. 36
I-32 PRIVACY ACT NOTIFICATION (APR 1984)................................... 36
I-33 PRIVACY ACT (APR 1984)................................................ 36
I-34 PAPERWORK REDUCTION ACT (APR 1984).................................... 37
I-35 RESERVED.............................................................. 38
I-36 DUTY-FREE ENTRY....................................................... 38
I-37 AUTHORIZATION AND CONSENT (APR 1984).................................. 40
I-38 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT..... 40
I-39 REPORTING OF ROYALTIES................................................ 41
I-40 CLASSIFIED INVENTIONS................................................. 41
I-41 PATENT RIGHTS-FACILITY - (DEVIATION).................................. 41
I-42 RESERVED.............................................................. 55
I-43 RIGHTS TO PROPOSAL DATA............................................... 55
I-44 WORKERS' COMPENSATION................................................. 55
<PAGE>
Section I
Page iii
I-45 COST ACCOUNTING STANDARDS (APR 1991).................................. 56
I-46 ADMINISTRATION OF COST ACCOUNTING STANDARDS (SEPT 1987)............... 58
I-47 LIABILITY WITH RESPECT TO "COST ACCOUNTING STANDARDS"................. 60
I-48 DISPUTES.............................................................. 61
I-49 PROTEST AFTER AWARD. (AUG 1989) --ALTERNATE I (JUN 1985)............. 61
I-50 CONTINUITY OF SERVICES (JAN 1991)..................................... 62
I-51 NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)......................... 63
I-52 COMPETITION IN SUBCONTRACTING (APR 1984).............................. 63
I-53 LIMITATION OF LIABILITY-SERVICES (APR 1984)........................... 63
I-54 PREFERENCE FOR U. S. - FLAG AIR CARRIERS (APR 1984)................... 64
I-55 PREFERENCE FOR PRIVATELY OWNED U.S. FLAG COMMERCIAL VESSELS
(APR 1984)............................................................ 65
I-56 FOREIGN TRAVEL (APR 1984)............................................. 67
I-57 DELETED............................................................... 67
I-58 NUCLEAR HAZARDS INDEMNITY AGREEMENT. (NOV 1991)....................... 67
I-59 GOVERNMENT SUPPLY SOURCES (APR 1984).................................. 72
I-60 INTERAGENCY FLEET MANAGEMENT SYSTEM VEHICLES AND RELATED SERVICES..... 72
I-61 DELETED............................................................... 73
I-62 ACCOUNTS, RECORDS, AND INSPECTION (FEB 1993 REVISED).................. 73
I-63 CHANGES (APR 1984).................................................... 74
I-64 CONTRACTOR'S ORGANIZATION (APR 1984).................................. 75
I-65 ALLOWABLE COSTS, BASE FEE, AND AWARD FEE and INCENTIVE FEES........... 76
I-66 OBLIGATION OF FUNDS (FEB 1993 REVISED................................. 87
I-67 PAYMENTS AND ADVANCES (FEB 1993 REVISED).............................. 89
I-68 PRINTING (APR 1984)................................................... 93
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Section I
Page iv
I-69 PROPERTY (JULY 1991)................................................. 93
I-70 SUBCONTRACTOR PURCHASING SYSTEM. (OCT 1990).......................... 98
I-71 STATE AND LOCAL TAXES (APR 1984)..................................... 99
I-72 SUBCONTRACTOR COST OR PRICING DATA (APR 1984)........................ 100
I-73 WORKMANSHIP AND MATERIALS (APR 1984)................................. 102
I-74 RESERVED............................................................. 103
I-75 RESERVED............................................................. 103
I-76 CONSULTANT OR OTHER COMPARABLE EMPLOYMENT SERVICES (MAY 1989)........ 103
I-77 ASSIGNMENT (APR 1984)................................................ 104
I-78 PERMITS OR LICENSES (APR 1984)....................................... 104
I-79 NOTICE OF LABOR DISPUTES (APR 1984).................................. 104
I-80 REIMBURSEMENT FOR PRIME CONTRACTOR LEGAL AND OTHER PROCEEDINGS COSTS. 104
I-81 DELETED.............................................................. 105
I-82 PRIORITIES AND ALLOCATIONS. (JUN 1987)............................... 105
I-83 KEY PERSONNEL (APR 1984)............................................. 105
I-84 OTHER GOVERNMENT SUBCONTRACTORS (APR 1984)........................... 106
I-85 TERMINATION (APR 1984)............................................... 106
I-86 PATENT INDEMNITY (MODIFIED).......................................... 108
I-87 ANTI-KICKBACK PROCEDURES. (OCT 1988)................................. 108
I-88 RESERVED............................................................. 110
I-89 RESERVED............................................................. 110
I-90 RESERVED............................................................. 110
I-91 RESERVED............................................................. 110
I-92 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS AND VETERANS OF THE
VIETNAM ERA (JAN 1988)............................................... 111
<PAGE>
Section I
Page v
I-93 LEGISLATIVE LOBBYING COST PROHIBITION (JUNE 1988).................... 112
I-94 DRUG-FREE WORKPLACE (JULY 1990)...................................... 114
I-95 SUBCONTRACTOR EMPLOYEE TRAVEL DISCOUNTS. (APR 1989).................. 116
I-96 LIQUIDATED DAMAGES - SMALL BUSINESS SUBCONTRACTING PLAN. (AUG 1989).. 117
I-97 ENVIRONMENTAL PROTECTION (MAR 1994).................................. 118
I-98 MANAGEMENT CONTROLS (FEB 1993 REVISED)............................... 122
I-99 DELETED.............................................................. 122
I-100 DELETED.............................................................. 122
I-101 WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES (AUG 1992)........... 122
I-102 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY-MODIFICATION
(NOV 1990)........................................................... 123
I-103 PRICE OR FEE ADJUSTMENT OF ILLEGAL OR IMPROPER ACTIVITY (SEP 1990)... 125
I-104 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(JAN 1990)........................................................... 127
I-105 PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH
CONTRACTORS DEBARRED,SUSPENDED, OR PROPOSED FOR DEBARMENT.
(JUN 1991)........................................................... 134
I-106 RESERVED............................................................. 135
I-107 RESERVED............................................................. 135
I-108 RESERVED............................................................. 135
I-109 TECHNOLOGY TRANSFER.................................................. 135
I-110 PAYMENT FOR OVERTIME PREMIUMS. (JUL 1990)........................... 146
I-111 DAVIS-BACON ACT. (FEB 1988)......................................... 147
I-112 WITHHOLDING OF FUNDS. (FEB 1988).................................... 150
I-113 PAYROLLS AND BASIC RECORDS. (FEB 1988).............................. 150
I-114 APPRENTICES AND TRAINEES. (FEB 1988)................................ 152
<PAGE>
Section I
Page vi
I-115 COMPLIANCE WITH COPELAND ACT REQUIREMENTS.(FEB 1988)................. 154
I-116 SUBCONTRACTS (LABOR STANDARDS). (FEB 1988)........................... 154
I-117 CONTRACT TERMINATION - DEBARMENT. (FEB 1988)......................... 154
I-118 COMPLIANCE WITH DAVIS-BACON AND RELATED ACT REGULATIONS.
(FEB 1988).......................................................... 155
I-119 DISPUTES CONCERNING LABOR STANDARDS. (FEB 1988)...................... 155
I-120 CERTIFICATION OF ELIGIBILITY. (FEB 1988)............................. 155
I-121 APPROVAL OF WAGE RATES. (FEB 1988)................................... 155
I-122 LABOR STANDARDS FOR CONSTRUCTION WORK - FACILITIES SUBCONTRACTS.
(FEB 1988)........................................................... 156
I-123 AFFIRMATIVE ACTION COMPLIANCE REQUIREMENTS FOR CONSTRUCTION
(APR 1984).......................................................... 157
I-124 BUY AMERICAN ACT-CONSTRUCTION MATERIALS (APR 1984)................... 163
I-125 RESTRICTIONS ON CONTRACTING WITH SANCTIONED PERSONS. (APR 1991)...... 164
I-127 COST ACCOUNTING STANDARDS PENALTIES.................................. 181
I-128 INDEMNITY ASSURANCE TO ARCHITECT-ENGINEER OR SUPPLIER PRIOR TO
OPERATION............................................................ 181
I-129 COST AND SCHEDULE CONTROL SYSTEMS (APR 1984)......................... 182
<PAGE>
WHC-380393
Section I, Page 1
I-1 DEFINITIONS (APR 1984)
(a) "Head of Agency" or "Secretary" means the Secretary, Deputy Secretary
or Under Secretary of the Department of Energy.
(b) "Contracting Officer" means the Government Official executing the
prime contract between WHC and DOE and includes any appointed
successor or authorized representative thereof.
(c) "Government" means the United States of America.
(d) "DOE" means the U.S. Department of Energy or any duly authorized
representative thereof, including any successor or predecessor agency
thereof, including the Contracting Officer.
(e) "WHC" or "Contractor" means the Westinghouse Hanford Company.
(f) "Seller," "ICF KH" or "Subcontractor" means ICF Kaiser Hanford
Company.
I-2 OFFICIALS NOT TO BENEFIT (APR 1984)
No member of or delegate to Congress, or resident commissioner, shall be
admitted to any share or part of this subcontract, or to any benefit
arising from it. However, this clause does not apply to this subcontract
to the extent that this subcontract is made with a corporation for the
corporation's general benefit.
I-3 GRATUITIES (APR 1984)
(a) The right of ICF Kaiser Hanford Company (ICF KH) to proceed may be
terminated by written notice if, after notice and hearing, WHC
determines that ICF KH, its agent, or another representative -
1) Offered or gave a gratuity (e.g., an entertainment or gift) to an
officer, official, or employee of the Government; and
2) Intended, by the gratuity, to obtain a subcontract or favorable
treatment under a subcontract.
(b) The facts supporting this determination may be reviewed by any court
having lawful jurisdiction.
(c) If this subcontract is terminated under paragraph (a) above, WHC and
the Government are entitled to pursue the same remedies as in a breach
of the subcontract.
<PAGE>
WHC-380393
Section I, Page 2
(d) The rights and remedies of WHC and the Government provided in this
clause shall not be exclusive and are in addition to any other rights
and remedies provided by law or under this subcontract.
I-4 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT (JUL 1985)
(a) Except as provided in (b) below, ICF KH shall not enter into any
agreement with an actual or prospective lower-tier subcontractor, nor
otherwise act in any manner, which has or may have the effect of
restricting sales by such lower-tier subcontractors directly to WHC of
any item or process (including computer software) made or furnished by
the lower-tier subcontractor under this subcontract or under any
follow-on production subcontract.
(b) The prohibition in (a) above does not preclude ICF KH from asserting
rights that are otherwise authorized by law or regulation.
(c) ICF KH agrees to incorporate the substance of this clause, including
this paragraph (c), in all lower-tier subcontracts under this
subcontract.
I-5 COVENANT AGAINST CONTINGENT FEES (APR 1984)
(a) ICF KH warrants that no person or agency has been employed or retained
to solicit or obtain this subcontract upon an agreement or
understanding for a contingent fee, except a bona fide employee or
agency. For breach or violation of this warranty, WHC and the
Government shall have the right to annul this subcontract without
liability or, in its discretion, to deduct from the subcontract price
or consideration, or otherwise recover, the full amount of the
contingent fee.
(b) "Bona fide agency," as used in this clause, means an established
commercial or selling agency, maintained by ICF KH for the purpose of
securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Government contracts nor holds itself
out as being able to obtain any Government contract or contracts
through improper influence.
"Bona fide employee," as used in this clause, means a person, employed
by ICF KH and subject to ICF KH's supervision and control as to time,
place, and manner of performance, who neither exerts nor proposes to
exert improper influence to solicit or obtain Government contracts or
holds out as being able to obtain any Government contract or contracts
through improper influence.
<PAGE>
WHC-380393
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"Contingent fee," as used in this clause, means any commission,
percentage, brokerage, or other fee that is contingent upon the
success that a person or concern has in securing a WHC subcontract.
"Improper influence," as used in this clause, means any influence that
induces or tends to induce a WHC employee or officer to give
consideration or to act regarding a WHC subcontract on any basis other
than the merits of the matter.
(c) Subcontracts and purchase orders. Unless otherwise authorized by WHC
in writing, ICF KH shall cause provisions similar to the foregoing to
be inserted in all lower-tier subcontracts and purchase orders entered
into under this subcontract.
I-6 SECURITY (OCT 1987)
(a) Responsibility.
It is ICF KH's duty to safeguard all classified information, special
nuclear material, and other DOE property. ICF KH shall, in accordance
with DOE security and counterintelligence regulations and
requirements, be responsible for safeguarding all classified
information, and protecting against sabotage, espionage, loss and
theft of the classified, unclassified sensitive, or proprietary matter
in ICF KH's possession in connection with the performance of work
under this subcontract. Except as otherwise expressly provided in
this subcontract, ICF KH shall, upon completion or termination of this
subcontract, transmit to WHC any classified, unclassified sensitive,
or proprietary matter in the possession of ICF KH or any person under
ICF KH's control in connection with performance of this subcontract.
If retention by ICF KH of any classified, unclassified sensitive, or
proprietary matter in ICF KH's possession is required after the
completion or termination of the subcontract and such retention is
approved by WHC, ICF KH will complete a certificate of possession to
be furnished to WHC specifying the classified, unclassified sensitive,
or proprietary matter in ICF KH's possession to be retained. The
certification shall identify the items and types or categories of
matter retained, the conditions governing the retention of the matter,
and the period of retention, if known. If the retention is approved
by WHC, the security provisions of the subcontract shall continue to
be applicable to the matter retained. Special nuclear materials shall
not be retained after the completion or termination of the
subcontract.
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Section I, Page 4
(b) Regulations.
ICF KH agrees to comply with all security and counterintelligence
regulations and requirements of WHC in effect at the date of award.
(c) Definition of classified information.
The term "classified information" means Restricted Data, Formerly
Restricted Data or National Security Information.
(d) Definition of restricted data.
The term "Restricted Data" means all data concerning (1) design,
manufacture, or utilization of atomic weapons; (2) the production of
special nuclear material; or (3) the use of special nuclear material
in the production of energy, but shall not include data declassified
or removed from the Restricted Data category pursuant to Section 142
of the Atomic Energy Act of 1954, as amended.
(e) Definition of formerly restricted data.
The term "Formerly Restricted Data" means all data removed from the
Restricted Data category under section 142 d. of the Atomic Energy Act
of 1954, as amended.
(f) Definition of National Security Information.
The term "National Security Information" means any information or
material, regardless of its physical form or characteristics, that is
owned by, produced for or by, or is under the control of the United
States Government, that has been determined pursuant to Executive
Order 12356 or prior Orders to require protection against unauthorized
disclosure, and which is so designated.
(g) Definition of Special Nuclear Material (SNM).
SNM means: (1) Plutonium, uranium enriched in the isotope 233 or in
the isotope 235, and any other material which pursuant to the
provisions of Section 51 of the Atomic Energy Act of 1954, as amended,
has been determined to be special nuclear material, but does not
include source material; or (2) any material artificially enriched by
any of the foregoing, but does not include source material.
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WHC-380393
Section I, Page 5
(h) Security clearance of personnel.
ICF KH shall not permit any individual to have access to any
classified information, except in accordance with the Atomic Energy
Act of 1954, as amended, Executive Order 12356, and the DOE's
regulations or requirement applicable to the particular level and
category of classified information to which access is required.
(i) Criminal liability.
It is understood that disclosure of any classified information
relating to the work or services ordered hereunder to any person not
entitled to receive it, or failure to safeguard any classified
information that may come to ICF KH or any person under the
Subcontractor's control in connection with work under this
subcontract, may subject ICF KH, its agents, employees, or
subcontractors to criminal liability under the laws of the United
States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C.
2011 et seq; 18 U.S.C. 793 and 794; and Executive Order 12356.)
(j) Subcontracts and purchase orders.
Except as otherwise authorized in writing by WHC, the ICF KH shall
insert provisions similar to the foregoing in all subcontracts and
purchase orders under this subcontract.
I-7 CLASSIFICATION (APR 1993)
In the performance of the work under this subcontract, ICF KH shall ensure
that all information and equipment originated or generated under the
subcontract in a classified or potentially classified subject area are
reviewed by a Federal Government Original Classifier or a Federal
Government or Contractor Derivative Classifier shall in accordance with
classification regulations (e.g., internal agency directives) and guidance
furnished to ICF KH by WHC or the DOE. Every lower-tier subcontract and
purchase order issued hereunder involving the origination or generation of
classified information or equipment shall require that, in the performance
of such lower-tier subcontract or purchase order, the lower-tier
subcontractor or supplier shall ensure that all such information or
equipment in a classified or potentially classified subject area are
reviewed by a Federal Government Original Classifier or a Federal
Government or Contractor Derivative Classifier in accordance with
classification regulations (e.g., internal agency directives) and guidance
furnished to such lower-tier subcontractor or supplier by ICF KH.
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Section I, Page 6
I-8 SENSITIVE FOREIGN NATIONAL CONTROLS (APR 1984)
(a) In connection with any activities in the performance of this
subcontract, ICF KH agrees to comply with the "Sensitive Foreign
Nationals Controls" requirements relating to those countries, which
may from time to time, be identified to ICF KH by WHC. ICF KH shall
have the right to terminate its performance under this subcontract
upon at least 60 days prior written notice to WHC if ICF KH determines
that it is unable, without substantially interfering with its policies
or without adversely effecting its performance to continue performance
of the work under this subcontract as a result of such notification.
If ICF KH elects to terminate performance, the provisions of this
subcontract regarding termination for the convenience of WHC shall
apply.
(b) The provisions of this clause shall be included in any lower-tier
subcontracts.
I-9 FOREIGN OWNERSHIP, CONTROL, OR INFLUENCE OVER SUBCONTRACTOR (APR 1984)
(a) For purposes of this clause, a foreign interest is defined as any of
the following:
1) A foreign government or foreign government agency;
2) any form of business enterprise organized under the laws of any
country other than the United States or its possessions;
3) any form of business enterprise organized or incorporated under
the laws of the U. S., or a State or other jurisdiction within
the U. S., which is owned, controlled, or influenced by a foreign
government, agency, firm, corporation or person; or
4) any person who is not a U. S. citizen.
(b) Foreign Ownership, Control, or Influence (FOCI) means the situation
where the degree of ownership, control, or influence over ICF KH by a
foreign interest is such that a reasonable basis exists for concluding
that compromise of classified information, special nuclear material as
defined in 10 CFR Part 710, may result.
(c) For purposes of this clause, subcontractor means any subcontractor at
any tier and the term "contracting officer" shall mean WHC. When this
clause is included in a subcontract, the term "contractor" shall mean
subcontractor and the term "contract" shall mean subcontract.
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WHC-380393
Section I, Page 7
(d) ICF KH shall immediately provide WHC written notice of any changes in
the extent and nature of FOCI over ICF KH which would affect the
answers to the questions presented in DEAR 952.204-73. Further,
notice of changes in ownership or control which are required to be
reported to the Securities and Exchange Commission, the Federal Trade
Commission, or the Department of Justice shall also be furnished
concurrently to WHC.
(e) In those cases where ICF KH has changes involving FOCI, WHC must
determine whether the changes will pose an undue risk to the common
defense and security. In making this determination, WHC shall
consider proposals made by ICF KH to avoid or mitigate foreign
influences.
(f) If WHC at any time determines that ICF KH, is, or is potentially,
subject to FOCI, ICF KH shall comply with such instructions as WHC
shall provide in writing to safeguard any classified information or
significant quantity of special nuclear material.
(g) ICF KH agrees to insert terms that conform substantially to the
language of this clause including this paragraph (g) in all lower-tier
subcontractors under this subcontract that will require access to
classified information or a significant quantity of special nuclear
material. Additionally, ICF KH shall require such lower-tier
subcontractors to submit a completed certification required in DEAR
952.204-73 prior to award of a lower-tier subcontract. Information to
be provided by a lower-tier subcontractor pursuant to this clause may
be submitted directly to WHC.
(h) Information submitted by ICF KH or any affected lower-tier
subcontractor as required pursuant to this clause shall be treated by
WHC to the extent permitted by law, as business or financial
information submitted in confidence to be used solely for purposes of
evaluating FOCI.
(i) The requirements of this clause are in addition to the requirement
that ICF KH obtain and retain the security clearances required by the
subcontract. This clause shall not operate as a limitation on WHC
rights, including its rights to terminate this subcontract.
(j) WHC may terminate this subcontract for default either if ICF KH fails
to meet obligations imposed by this clause, e.g., provide the
information required by this clause, comply with WHC instructions
about safeguarding classified information, or make this clause
applicable to lower-tier subcontractors, or if, in WHC's judgment, ICF
KH creates an FOCI situation in order to avoid performance of a
termination for default. WHC may terminate this subcontract for
convenience if ICF KH becomes subject to FOCI and
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WHC-380393
Section I, Page 8
for reasons other than avoidance of performance of the subcontract,
cannot, or chooses not to, avoid or mitigate the FOCI problem.
I-10 REQUIRED SOURCES FOR JEWEL BEARINGS AND RELATED ITEMS (APR 1984)
(a) This clause applies only if supplies furnished under this subcontract
contain jewel bearings or related items.
(b) "Jewel bearing," as used in this clause, means a piece of synthetic
corundum (sapphire or ruby) of any shape, except a phonograph needle,
that has one or more polished surfaces to provide supporting surfaces
or low-friction subcontract areas for revolving, oscillating, or
sliding parts in an instrument, mechanism, subassembly, or part. A
jewel bearing may be unmounted or may be mounted into a ring or
bushing. Examples are watch holes-olive, watch holes-straight, pallet
stones, roller jewels (jewel pins), endstones (caps), vee (cone)
jewels, instrument rings, cups, and double cups.
"Plant," as used in this clause, means the Government-owned,
contractor-operated William Langer Plant, Rolla, North Dakota 58367
(Phone: 701-477-3193).
"Price list," as used in this clause, means the U.S. Government Jewel
Bearing Price List, published periodically by the General Services
Administration for jewel bearings produced by the Plant.
"Related item," as used in this clause, means a piece of synthetic
corundum (sapphire or ruby), other than a jewel bearing, that (1) is
made from material produced by the Verneuil flame fusion process, (2)
has a geometric shape up to a maximum of 1 inch in any dimension, (3)
requires extremely close tolerances and highly polished surfaces
identical to those involved in manufacturing jewel bearings, and (4)
is either mounted in a retaining or supporting structure or unmounted.
Examples are window, nozzle, guide, knife edge, knife edge plate,
insulator domed pin, slotted insulator, sphere, ring gauge, spacer,
disc, valve seat, rod, vee groove, D-shaped insulator, and notched
plate.
(c) All jewel bearings and related items required for the supplies to be
furnished under this subcontract (or an equal quantity of the same
type, size, and tolerances) shall be acquired from the following
sources: jewel bearings from the Plant, unless the Plant declines or
rejects the order; and related items from domestic manufacturers,
including the Plant, if the items can be obtained from those sources.
Sources other than the foregoing may be used if the foregoing sources
decline or reject the order.
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WHC-380393
Section I, Page 9
(1) Orders may be placed with the Plant for individual contracts, for
a combination of contracts, or for stock. If the order is for an
individual contract, the prime contract number shall be placed on
it.
(2) Orders, and any supplements to orders, for items listed in the
price list shall refer to the most recent price list and its
date.
(3) Requests for quotations for items not listed in the price list
should be accompanied by drawings and forwarded to the Plant and
soon as possible to ensure prompt quotation or rejection of the
order.
(d) At its option, the Plant may decline or reject all or part of ICF KH's
or subcontractor's order. If the order is declined or rejected, ICF
KH shall notify WHC contract administration office cognizant of this
subcontract promptly in writing, enclosing copy of the rejection
notice. Unless the declination or rejection has been caused by
current excessive and overdue ICF KH indebtedness to the Plant as
determined by the Plant, WHC shall evaluate the impact and make an
equitable adjustment in the contract price, in the delivery schedule,
or in both, if one is warranted. This procedure shall also apply to
orders for related items rejected by any other domestic manufacturer.
(e) ICF KH agrees to insert this clause, including this paragraph (e), and
the subcontract number in every subcontract unless ICF KH has positive
knowledge that the subassembly, component, or part being purchased
does not contain jewel bearings or related items.
I-11 ORGANIZATIONAL CONFLICTS OF INTEREST-SPECIAL CLAUSE (APR 1984)
(a) Purpose.
The primary purpose of this clause is to aid in ensuring that ICF KH
(1) is not biased because of its past, present, or currently planned
interests (financial, contractual, organizational, or otherwise) which
relate to the work under this subcontract, and (2) does not obtain any
unfair competitive advantage over other parties by virtue of its
performance of this subcontract.
(b) Scope.
The restrictions described herein shall apply to performance or
participation by ICF KH and any of its affiliates or their successors
in interest (hereinafter collectively referred to as "ICF KH") in the
activities covered by this clause, as a prime
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WHC-380393
Section I, Page 10
contractor, subcontractor, cosponsor, joint venturer, consultant, or
in any similar capacity.
(1) Technical Consulting and Management Support Services
(i) Except as approved by WHC on a case-by-case basis, ICF KH
shall be ineligible to participate in any capacity in WHC
or DOE contracts, subcontracts, or proposals therefore
(solicited or unsolicited) which stem directly from ICF
KH's performance of work under this subcontract.
Furthermore, unless so directed in writing by WHC, ICF KH
shall not perform any technical consulting or management
support services work under this subcontract on any of its
products or services or the products or services of another
firm if ICF KH is or has been substantially involved in
their development or marketing. Nothing in this
subparagraph shall preclude ICF KH from competing for
follow-on subcontracts for technical consulting and
management support services.
(ii) If ICF KH under this subcontract prepares a complete or
essentially complete statement of work or specifications to
be used in competitive acquisitions, ICF KH shall be
ineligible to perform or participate in any capacity in any
subcontractual effort which is based on such statement of
work or specifications. ICF KH shall not incorporate its
products or services in such statement of work or
specifications unless so directed in writing by WHC, in
which case the restrictions in this subparagraph shall not
apply.
(iii) Nothing in this paragraph shall preclude ICF KH from
offering or selling its standard commercial items to WHC or
the Government.
(2) Access To and Use of Information.
(i) If ICF KH, in the performance of this subcontract, obtains
access to information, such as Department plans, policies,
reports, studies, financial plans, internal data protected
by the Privacy Act of 1974 (Pub. L. 93-579), or data which
has not been released or otherwise made available to the
public, ICF KH agrees that without prior written approval
of WHC it shall not: (a) use such information for any
private purpose unless the information has been released or
otherwise made available to the public; (b) compete for
work for DOE based on such information for a
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WHC-380393
Section I, Page 11
period of six (6) months after either the completion of
this subcontract or until such information is released or
otherwise made available to the public, whichever is first;
(c) submit an unsolicited proposal to the Government which
is based on such information until one year after such
information is released or otherwise made available to the
public; and (d) release such information unless such
information has previously been released or otherwise made
available to the public by DOE.
(ii) In addition, ICF KH agrees that to the extent it receives
or is given access to proprietary data, data protected by
the Privacy Act of 1974 (Pub. L 93-579), or other
confidential or privileged technical, business, or
financial information under this subcontract, it shall
treat such information in accordance with any restrictions
imposed on such information.
(iii) ICF KH shall have, subject to patent, data, and security
provisions of this subcontract, the right to use technical
data it first produces under this subcontract for its
private purposes provided that, as of the date of such use,
all reporting requirements of this subcontract have been
met or ICF KH has reported such information or data in
writing to WHC.
(c) Disclosure After Award
(1) ICF KH agrees that if after award it discovers an organizational
conflict of interest with respect to this subcontract, an
immediate and full disclosure shall be made in writing to WHC
which shall include a description of the action which ICF KH has
taken or proposes to take to avoid or mitigate such conflicts.
WHC may, however, terminate the subcontract for convenience if it
deems such termination to be in the best interests of the
Government.
(2) In the event that ICF KH was aware of an organizational conflict
of interest prior to the award of this subcontract and did not
disclose the conflict to WHC, WHC may terminate the subcontract
for default.
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WHC-380393
Section I, Page 12
(d) Subcontracts.
(1) ICF KH shall include the Standard Organizational Conflict of
Interest clause of DEAR 952.209-72, in subcontracts of any tier
which involve performance or work of the type specified in (b)(1)
above or access to information of the type covered in (b)(2)
above. The terms "contract," "Contractor," and "Contracting
Officer," shall be appropriately modified to preserve WHC and the
Government's rights.
(2) If a subcontract is to be issued for evaluation services or
activities, technical consulting or management support services
work as defined at 909.570, ICF KH shall obtain for WHC, a
disclosure statement or representation, in accordance with DOE
regulations in effect at the time, from each intended
subcontractor or consultant. ICF KH shall not enter into any
subcontract nor engage any consultant unless any organizational
conflict of interest requirements applicable to the subcontract
or consultant have been met.
(e) Remedies.
For breach of any of the above restrictions or for nondisclosure or
misrepresentation of any relevant facts required to be disclosed
concerning this subcontract, WHC may terminate the subcontract for
default, disqualify ICF KH for subsequent related subcontractual
efforts and pursue such other remedies as may be permitted by law or
this subcontract.
(f) Waiver.
Requests for waiver under this clause shall be directed in writing to
WHC and shall include a full description of the requested waiver and
the reasons in support thereof. If it is determined to be in the best
interests of WHC, WHC shall grant such a waiver in writing.
(g) Modifications.
Prior to a subcontract modification when the statement of work is
modified to add new work, the period of performance is significantly
increased, or the parties to the subcontract are changed, WHC will
request and ICF KH is required to submit either an organizational
conflict of interest disclosure or representation or an update of the
previously submitted disclosure or representation.
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WHC-380393
Section I, Page 13
(h) WHC and ICF KH agree to cooperate in applying this clause in such a
manner as to permit other business units of ICF KH appropriate
opportunity to compete for work resulting directly or indirectly from
this subcontract.
(i) ICF KH will use its best efforts to control access of ICF KH personnel
not engaged in the performance of this subcontract to facilities in
which performance of this subcontract is in progress on the same basis
as the access of U.S. citizens employed by U.S. organizations is
controlled. Subcontractor's headquarters staff and executives of the
rank of Corporate Director, Vice President, Executive Vice President,
President, and Trustee, will be deemed to be engaged in the
performance of this subcontract.
I-12 STOP-WORK ORDER (APR 1984)
(a) WHC may, at any time, by written order to ICF KH, require ICF KH to
stop all, or any part, of the work called for by this subcontract for
a period of 90 days after the order is delivered to ICF KH, 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, ICF KH 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 order is
delivered to ICF KH, or within any extension of that period to which
the parties shall have agreed, WHC 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 WHC, clause of
this subcontract.
(b) If stop-work order issued under this clause is canceled or the period
of the order or any extension thereof expires, ICF KH shall resume
work. WHC shall make an equitable adjustment in the delivery schedule
or subcontract price, or both, and the subcontract shall be modified,
in writing, accordingly, if:
(1) The stop-work order results in an increase in the time required
for, or in ICF KH's cost properly allocable to, the performance
of any part of this subcontract; and
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WHC-380393
Section I, Page 14
(2) ICF KH asserts its right to the adjustment within 30 days after
the end of the period of work stoppage; provided, that, if WHC
decides the facts justify the action, WHC may receive and act
upon a claim submitted at any time before final payment under
this subcontract.
(c) If a stop-work order is not canceled and the work covered by the order
is terminated for the convenience of WHC, WHC 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, WHC shall allow, by equitable adjustment or
otherwise, reasonable costs resulting from the stop-work order.
I-13 RESERVED
I-14 EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (APR 1984)
(a) This clause applies if this subcontract exceeds $10,000 and was
entered into by negotiation.
(b) The Comptroller General of the United States or a duly authorized
representative from the General Accounting Office (GAO), shall, until
three years after final payment under this subcontract or for any
shorter period specified in Federal Acquisition Regulation (FAR)
Subpart 4.7, Contractor Records Retention, have access to and the
right to examine any of ICF KH's directly pertinent books, documents,
papers, or other records involving transactions related to this
subcontract.
(c) The periods of access and examination described in paragraphs (b)
above for records relating to (1) appeals under the Disputes clause,
(2) litigation or settlement of claims arising from the performance of
this subcontract, or (3) costs and expenses of this subcontract to
which the Comptroller General or a duly authorized representative from
the GAO has taken exception shall continue until such appeals,
litigation, claims, or exceptions are disposed of.
(d) Nothing in this subcontract shall be deemed to preclude an audit by
the GAO of any transaction under this subcontract.
I-15 RESERVED
I-16 ACQUISITION OF REAL PROPERTY (APR 1984)
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WHC-380393
Section I, Page 15
(a) Notwithstanding any other provision of the subcontract, the prior
approval of WHC shall be obtained when, in performance of this
subcontract, ICF KH acquires or proposes to acquire use of real
property by:
(1) Purchase, on the Government's behalf or in ICF KH's own name,
with title eventually vesting in the Government.
(2) Lease, and the Government assumes liability for, or will
otherwise pay for the obligation under the lease as a
reimbursable subcontract cost.
(3) Acquisition of temporary interest through easement, license or
permit, and the Government funds the entire cost of the temporary
interest.
(b) Justification of and execution of any real property acquisitions shall
be in accordance and compliance with directions provided by WHC.
(c) The substance of this clause, including this paragraph (c), shall be
included in any subcontract occasioned by this subcontract under which
property described in paragraph (a) of this clause shall be acquired.
I-17 UTILIZATION OF SMALL BUSINESS CONCERNS AND SMALL DISADVANTAGED BUSINESS
CONCERNS. (FEB 1990)
(a) It is the policy of the United States that small business concerns and
small business concerns owned and controlled by socially and
economically disadvantaged individuals shall have the maximum
practicable opportunity to participate in performing subcontracts let
by any Federal agency, including subcontracts and subcontracts for
subsystems, assemblies, components, and related services for major
systems. It is further the policy of the United States that its
subcontractors establish procedures to ensure the timely payment of
amounts due pursuant to the terms of their subcontracts with small
business concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals.
(b) ICF KH hereby agrees to carry out this policy in the awarding of
subcontracts to the fullest extent consistent with efficient
subcontract performance. The subcontractor further agrees to
cooperate in any studies or surveys as may be conducted by the United
States Small Business Administration or the awarding agency of the
United States as may be necessary to determine the extent of the
subcontractor's compliance with this clause.
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WHC-380393
Section I, Page 16
(c) As used in this subcontract, the term "small business concern" shall
mean a small business as defined pursuant to section 3 of the Small
Business Act and relevant regulations promulgated pursuant thereto.
The term small business concern owned and controlled by socially and
economically disadvantaged individuals shall mean a small business
concern (1) which is at least 51 percent unconditionally owned by one
or more socially and economically disadvantaged individuals; or, in
the case of any publicly owned business, at least 51 per cent of the
stock of which is unconditionally owned by one or more socially and
economically disadvantaged individuals; and (2) whose management and
daily business operations are controlled by one or more of such
individuals. This term also means a small business concern that is at
least 51 percent unconditionally owned by an economically
disadvantaged Indian tribe or Native Hawaiian Organization, or a
publicly owned business having at least 51 percent of its stock
unconditionally owned by one of these entities which has its
management and daily business controlled by members of an economically
disadvantaged Indian tribe or Native Hawaiian Organization, and which
meets the requirements of 13 CFR part 124. The subcontractor shall
presume that socially and economically disadvantaged individuals
include Black Americans, Hispanic Americans, Native Americans, Asian-
Pacific Americans, Subcontinent Asian Americans, and other minorities,
or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small Business Act.
The subcontractor shall presume that socially and economically
disadvantaged entities also include Indian Tribes and Native Hawaiian
Organizations.
(d) Contractors acting in good faith may rely on written representations
by their subcontractors regarding their status as either a small
business concern or a small business concern owned and controlled by
socially and economically disadvantaged individuals.
I-18 SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING PLAN. (JAN
1991)
(a) This clause does not apply to small business concerns.
(b) "Commercial product," as used in this clause, means a product in
regular production that is sold in substantial quantities to the
general public and/or industry at established catalog or market
prices. It also means a product which, in the opinion of WHC, differs
only insignificantly from the ICF KH'S commercial product.
"Subcontract," as used in this clause, means any agreement (other than
one involving an employer-employee relationship) entered into
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WHC-380393
Section I, Page 17
by a Federal Government prime contractor or subcontractor calling for
supplies or services required for performance of the contract or
subcontract.
(c) ICF KH, upon request by WHC, shall submit and negotiate a
subcontracting plan, where applicable, which separately addresses
subcontracting with small business concerns and with small
disadvantaged business concerns. If ICF KH is submitting an
individual contract plan, the plan must separately address
subcontracting with small business concerns and with small
disadvantaged business concerns with a separate part for the basic
contract and separate parts for each option (if any). The plan shall
be included in and made a part of the resultant contract. The
subcontracting plan shall be negotiated within the time specified by
WHC. Failure to submit and negotiate the subcontracting plan shall
make ICF KH ineligible for award of a subcontract.
(d) ICF KH's subcontracting plan shall include the following:
(1) Goals, expressed in terms of percentages of total planned
subcontracting dollars, for the use of small business concerns
and small disadvantaged business concerns as subcontractors. ICF
KH shall include all subcontracts that contribute to subcontract
performance, and may include a proportionate share of products
and services that are normally allocated as indirect costs.
(2) A statement of -
(i) Total dollars planned to be subcontracted;
(ii) Total dollars planned to be subcontracted to small business
concerns; and
(iii) Total dollars planned to be subcontracted to small
disadvantaged business concerns.
(3) A description of the principal types of supplies and services to
be subcontracted, and an identification of the types planned for
subcontracting to (i) small business concerns and (ii) small
disadvantaged business concerns.
(4) A description of the method used to develop the subcontracting
goals in (1) above.
(5) A description of the method used to identify potential sources
for solicitation purposes (e.g., existing company source lists,
the Procurement Automated Source System (PASS)
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Section I, Page 18
of the Small Business Administration, the National Minority
Purchasing Council Vendor Information Service, the Research and
Information Division of the Minority Business Development Agency
in the Department of Commerce, or small and small disadvantaged
business concerns trade associations).
(6) A statement as to whether or not ICF KH included indirect costs
in establishing subcontracting goals, and a description of the
method used to determine the proportionate share of indirect
costs to be incurred with (i) small business concerns and (ii)
small disadvantaged business concerns.
(7) The name of the individual employed by ICF KH who will administer
ICF KH's subcontracting program, and a description of the duties
of the individual.
(8) A description of the efforts ICF KH will make to assure that
small business concerns and small disadvantaged business concerns
have an equitable opportunity to compete for subcontracts.
(9) Assurances that ICF KH will include the clause in this
subcontract entitled "Utilization of Small Business Concerns and
Small Disadvantaged Business Concerns" in all subcontracts that
offer further subcontracting opportunities, and that ICF KH will
require all subcontractors (except small business concerns) who
receive subcontracts in excess of $500,000 ($1,000,000 for
construction of any public facility), to adopt a plan similar to
the plan agreed to by ICF KH.
(10) Assurances that ICF KH will (i) cooperate in any studies or
surveys as may be required, (ii) submit periodic reports in order
to allow the Government to determine the extent of compliance by
ICF KH with the subcontracting plan, (iii) submit, not later than
the 25th day of the succeeding month, Standard Form (SF) 294
only, (DOE contractors need not submit SF 295) on a quarterly
basis current as of the last day of March, June, September and
December, and upon subcontract completion, in accordance with the
instructions on the form, except the report shall be submitted
quarterly rather than semiannually and additionally shall
indicate at the remarks block the number and dollar amount of
awards made to labor surplus area concerns to the extent such
reporting is required by the terms of their contract, and (iv)
ensure that its subcontractors agree to submit SF 294 in
accordance with the instructions at (iii) above.
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Section I, Page 19
(11) A recitation of the types of records ICF KH will maintain to
demonstrate procedures that have been adopted to comply with the
requirements and goals in the plan, including establishing source
lists; and a description of its efforts to locate small and small
disadvantaged business concerns and award subcontracts to them.
The records shall include at least the following (on a plant-wide
or company-wide basis, unless otherwise indicated):
(i) Source lists, guides, and other data that identify small and
small disadvantaged business concerns.
(ii) Organizations contacted in an attempt to locate sources that
are small or small disadvantaged business concerns.
(iii) Records on each subcontract solicitation resulting in an
award of more than $100,000, indicating (A) whether small
business concerns were solicited and if not, why not, (B)
whether small disadvantaged business concerns were solicited
and if not, why not, and (C) if applicable, the reason award
was not made to a small business concern.
(iv) Records of any outreach efforts to contact (A) trade
associations, (B) business development organizations, and
(C) conferences and trade fairs to locate small and small
disadvantaged business sources.
(v) Records of internal guidance and encouragement provided to
buyers through (A) workshops, seminars, training, etc., and
(B) monitoring performance to evaluate compliance with the
programs's requirements.
(vi) On a contract-by-contract basis, records to support award
data submitted by ICF KH to WHC, including the name,
address, and business size of each subcontractor.
Subcontractors having company or division-wide annual plans
need not comply with this requirement.
(e) In order to effectively implement this plan to the extent consistent
with efficient subcontract performance, ICF KH shall perform the
following functions:
(1) Assist small business and small disadvantaged business concerns
by arranging solicitations, time for the preparation of bids,
quantities, specifications, and delivery schedules so as to
facilitate the participation by
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WHC-380393
Section I, Page 20
such concerns. Where ICF KH's lists of potential small business
and small disadvantaged subcontractors are excessively long,
reasonable effort shall be made to give all such small business
concerns an opportunity to compete over a period of time.
(2) Provide adequate and timely consideration of the potentialities
of small business and small disadvantaged business concerns in
all "make-or-buy" decisions.
(3) Counsel and discuss subcontracting opportunities with
representatives of small and small disadvantaged business firms.
(4) Provide notice to subcontractors concerning penalties and
remedies for misrepresentations of business status as small
business or small disadvantaged business for the purpose of
obtaining a subcontract that is to be included as part or all of
a goal contained in ICF KH's subcontracting plan.
(f) A master subcontracting plan on a plant or division-wide basis which
contains all the elements required by (d) above, except goals, may be
incorporated by reference as a part of the subcontracting plan
required of ICF KH by this clause; provided, (1) the master plan has
been approved, (2) ICF KH provides copies of the approved master plan
and evidence of its approval to WHC, and (3) goals and any deviations
from the master plan deemed necessary by WHC to satisfy the
requirements of this subcontract are set forth in the individual
subcontracting plan.
(g) (1) If a commercial product is offered, the subcontracting plan
required by this clause may relate to ICF KH's production
generally, for both commercial and noncommercial products, rather
than solely to the Government subcontract. In these cases, ICF
KH shall, with the concurrence of WHC, submit one company-wide or
division-wide annual plan.
(2) The annual plan shall be reviewed for approval by the agency
awarding ICF KH its first subcontract requiring a subcontracting
plan during the fiscal year, or by an agency satisfactory to WHC.
(3) The approved plan shall remain in effect during ICF KH's fiscal
year for all of ICF KH's commercial products.
(h) Prior compliance of ICF KH with other such subcontracting plans under
previous subcontracts will be considered by WHC in determining the
responsibility of ICF KH for award of the subcontract.
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Section I, Page 21
(i) The failure of ICF KH or subcontractor to comply in good faith with
(1) the clause of this subcontract entitled "Utilization of Small
Business Concerns and Small Disadvantaged Business Concerns," or (2)
an approved plan required by this clause, shall be a material breach
of the subcontract.
I-19 UTILIZATION OF WOMEN-OWNED SMALL BUSINESSES. (AUG 1986)
(a) "Women-owned businesses," as used in this clause, means small business
concerns that are at least 51 percent owned by women who are United
States citizens and who also control and operate the business.
"Control," as used in this clause, means exercising the power to make
policy decisions.
"Operate," as used in this clause, means being actively involved in
the day-to-day management of the business.
"Small business concern," as used in this clause, means a concern
including its affiliates, that is independently owned and operated,
not dominant in the field of operation in which it is bidding on
Government subcontracts, and qualified as a small business under the
criteria and size standards in 13 CFR 121.
(b) It is the policy of the United States that women-owned small
businesses shall have the maximum practicable opportunity to
participate in performing contracts awarded by any Federal agency.
(c) ICF KH agrees to use its best efforts to give women-owned small
businesses the maximum practicable opportunity to participate in the
subcontracts it awards to the fullest extent consistent with the
efficient performance of its subcontract.
(d) ICF KH may rely on written representations by its subcontractors
regarding their status as women-owned small businesses.
I-20 UTILIZATION OF LABOR SURPLUS AREA CONCERNS (APR 1984)
(a) Applicability.
This clause is applicable if this subcontract exceeds the appropriate
small purchase limitation in Part 13 of the Federal Acquisition
Regulation.
(b) Policy.
It is the policy of the Government to award subcontracts to concerns
that agree to perform substantially in labor surplus
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WHC-380393
Section I, Page 22
areas (LSA's) when this can be done consistent with the efficient
performance of the subcontract and at prices no higher than are
obtainable elsewhere. ICF KH agrees to use its best efforts to place
subcontracts in accordance with this policy.
(c) Order of preference.
In complying with paragraph (b) above and with paragraph (c) of the
clause of this subcontract entitled "Utilization of Small Business
Concerns and Small Disadvantaged Business Concerns," ICF KH shall
observe the following order of preference in awarding subcontracts:
(1) small business concerns that are LSA concerns, (2) other small
business concerns, and (3) other LSA concerns.
(d) Definitions.
"Labor surplus area," as used in this clause, means a geographical
area identified by the Department of Labor in accordance with 20 CFR
654, Subpart A, as an area of concentrated unemployment or
underemployment or an area of labor surplus.
"Labor surplus area concern," as used in this clause, means a concern
that together with its first-tier subcontractors will perform
substantially in labor surplus areas. Performance is substantially in
labor surplus areas if the costs incurred under the subcontract on
account of manufacturing, production, or performance of appropriate
services in labor surplus areas exceed 50 percent of the subcontract
price.
I-21 LABOR SURPLUS AREA SUBCONTRACTING PROGRAM (APR 1984)
(a) See the Utilization of Labor Surplus Area Concerns clause of this
subcontract for applicable definitions.
(b) ICF KH agrees to establish and conduct a program to encourage labor
surplus area (LSA) concerns to compete for subcontracts within their
capabilities when the subcontracts are consistent with the efficient
performance of the subcontract at prices no higher than obtainable
elsewhere. ICF KH shall-
(1) Designate a liaison officer who will (i) maintain liaison with
authorized representatives of WHC on LSA matters, (ii) supervise
compliance with the Utilization of Labor Surplus Area Concerns
clause, and (iii) administer the subcontractor's labor surplus
area subcontracting program;
(2) Provide adequate and timely consideration of the potentialities
of LSA concerns in all make-or-buy decisions;
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WHC-380393
Section I, Page 23
(3) Ensure that LSA concerns have an equitable opportunity to compete
for subcontracts, particularly by arranging solicitations, time
for the preparation of offers, quantities, specifications, and
delivery schedules so as to facilitate the participation of LSA
concerns;
(4) Include the Utilization of Labor Surplus Area Concerns clause in
subcontracts that offer substantial LSA subcontracting
opportunities; and
(5) Maintain records showing (i) the procedures adopted, and (ii) the
subcontractor's performance, to comply with this clause. The
records will be kept available for review by WHC or DOE until the
expiration of 1 year after the award of this subcontract, or for
such longer period as may be required by any other clause of this
subcontract or by applicable law or regulations.
(c) ICF KH further agrees to insert in any related subcontract that may
exceed $500,000 and that contains the Utilization of Labor Surplus
Area Concerns clause, terms that conform substantially to the language
of this clause, including this paragraph (c), and to notify WHC of the
names of subcontractors.
I-22 CONVICT LABOR (APR 1984)
ICF KH agrees not to employ any person undergoing sentence of imprisonment
in performing this subcontract except as provided by 18 U.S.C. 4082(c)(2)
and Executive Order 11755, December 29, 1973.
I-23 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME COMPENSATION (MAR
1986)
(a) Overtime requirements.
Neither ICF KH or its lower-tier subcontractors contracting for any
part of the subcontract work which may require or involve the
employment of laborers or mechanics (see Federal Acquisition
Regulation (FAR) 22.300) shall require or permit any such laborers or
mechanics in any workweek in which the individual is employed on such
work to work in excess of 40 hours in such workweek unless such
laborer or mechanic receives compensation at a rate not less than one
and one-half times the basic rate of pay for all hours worked in
excess of 40 hours in such workweek.
(b) Violation, liability for unpaid wages, and liquidated damages.
In the event of any violation of the provisions set forth in paragraph
(a) of this clause, ICF KH and any lower-tier
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WHC-380393
Section I, Page 24
subcontractor responsible therefore shall be liable for the unpaid
wages. In addition ICF KH and such lower-tier subcontractor shall be
liable to the United States for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer or
mechanic employed in violation of the provisions set forth in
paragraph (a) of this clause in the sum of $10 for each calendar day
on which such individual was required or permitted to work in excess
of the standard workweek of 40 hours without payment of the overtime
wages required by provisions set forth in paragraph (a) of this
clause.
(c) Withholding for unpaid wages and liquidated damages.
WHC shall, upon their own action or upon written request of an
authorized representative of the Department of Labor, withhold or
cause to be withheld, from any moneys payable on account of work
performed by ICF KH or its lower-tier subcontractor under any such
subcontract or any other Federal contract with the same Prime
Contractor, or any other Federally-assisted contract subject to the
Contract Work Hours and Safety Standards Act which is held by the same
Prime Contractor, such sums as may be determined to be necessary to
satisfy any liabilities of ICF KH or its lower-tier subcontractor for
unpaid wages and liquidated damages as provided in the provisions set
forth in paragraph (b) of this clause.
(d) Payrolls and basic records.
(1) ICF KH or its lower-tier subcontractor shall maintain payrolls
and basic payroll records during the course of subcontract work
and shall preserve them for a period of three years from the
completion of the subcontract for all laborers and mechanics
working on the subcontract. Such records shall contain the name
and address of each such employee, social security number,
correct classifications, hourly rates of wages paid, daily and
weekly number of hours worked, deductions made, and actual wages
paid. Nothing in this paragraph shall require the duplication of
records required to be maintained for construction work by
Department of Labor regulations at 29 CFR 5.5(a) (3) implementing
the Davis-Bacon Act.
(2) The records to be maintained under paragraph (d)(1) of this
clause shall be made available by ICF KH or its lower-tier
subcontractor for inspection, copying, or transcription by
authorized representatives of WHC or the Department of Labor.
ICF KH or its lower-tier subcontractor shall permit such
representatives to interview employees during working hours on
the job.
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WHC-380393
Section I, Page 25
(e) Lower-tier Subcontracts.
ICF KH or its lower-tier subcontractor shall insert in any lower-tier
subcontracts the provisions set forth in paragraphs (a) through (e) of
this clause and also a clause requiring the lower-tier subcontractors
to include these provisions in any lower-tier subcontracts.
I-24 RESERVED
I-25 EQUAL OPPORTUNITY (APR 1984)
(a) If, during any 12-month period (including the 12 months preceding the
award of this subcontract), ICF KH has been or is awarded nonexempt
Federal contracts and/or subcontracts that have an aggregate value in
excess of $10,000, ICF KH shall comply with subparagraphs (b)(1)
through (11) below. Upon request, ICF KH shall provide information
necessary to determine the applicability of this clause.
(b) While performing this subcontract, ICF KH agrees as follows:
(1) ICF KH shall not discriminate against any employee or applicant
for employment because of race, color, religion, sex, or national
origin.
(2) ICF KH shall take affirmative action to ensure that applicants
are employed, and that employees are treated during employment,
without regard to their 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) rates of pay or other forms of compensation,
and (viii) selection for training, including apprenticeship.
(3) ICF KH shall post in conspicuous places available to employees
and applicants for employment the notices that explain this
clause.
(4) ICF KH shall, in all solicitations or advertisement for employees
placed by or on behalf of ICF KH, state that all qualified
applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
(5) ICF KH shall send, to each labor union or representative of
workers with which it has a collective bargaining agreement or
other subcontract or understanding, the notice advising
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WHC-380393
Section I, Page 26
the labor union or workers' representative of ICF KH's
commitments under this clause, and post copies of the notice in
conspicuous places available to employees and applicants for
employment.
(6) ICF KH shall comply with Executive Order 11246, as amended, and
the rules, regulations, and orders of the Secretary of Labor.
(7) ICF KH shall furnish to WHC all information required by Executive
Order 11246, as amended, and by the rules, regulations, and
orders of the Secretary of Labor. Standard Form 100 (EEO-1), or
any successor form, is the prescribed form to be filed within 30
days following the award, unless filed within 12 months preceding
the date of award.
(8) ICF KH shall permit access to its books, records, and accounts by
WHC, DOE or the Office of Federal Contract Compliance Programs
(OFCCP) for the purposes of investigation to ascertain ICF KH's
compliance with the applicable rules, regulations, and orders.
(9) If the OFCCP determines that ICF KH is not in compliance with
this clause or any rule, regulation, or order of the Secretary of
Labor, this subcontract may be canceled, terminated, or suspended
in whole or in part and ICF KH may be declared ineligible for
further WHC-related subcontracts, under the procedures authorized
in Executive Order 11246, as amended. In addition, sanctions may
be imposed and remedies invoked against the ICF KH 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) ICF KH shall include the terms and conditions of subparagraph
(b)(1) through (11) of this clause in every lower-tier
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 lower-tier subcontractor or
vendor.
(11) ICF KH shall take such action with respect to any lower-tier
subcontract or purchase order as WHC may direct as a means of
enforcing these terms and conditions, including sanctions for
noncompliance; provided, that if ICF KH becomes involved in, or
is threatened with, litigation with a lower-tier subcontractor or
vendor as a result of any direction, ICF KH may request the
United States to enter into the litigation to protect the
interests of the United States.
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WHC-380393
Section I, Page 27
(c) Notwithstanding any other clause in this subcontract, disputes
relative to this clause will be governed by the procedures in 41 CFR
60-1.1.
I-26 EQUAL OPPORTUNITY PREAWARD CLEARANCE OF SUBCONTRACTS (APR 1984)
Notwithstanding the clause of this subcontract entitled "Subcontracts," ICF
KH shall not enter into a first-tier subcontract for an estimated or actual
amount of $1 million or more without obtaining in writing from WHC, a
clearance that the proposed subcontractor is in compliance with equal
opportunity requirements and therefore is eligible for award.
I-27 AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA VETERANS (APR 1984)
(a) Definitions.
"Appropriate office of the State employment service system," as used
in this clause, means the local office of the Federal-State national
system of public employment offices assigned to serve the area where
the employment opening is to be filled, including the District of
Columbia, Guam, Puerto Rico, Virgin Islands, American Samoa, and the
Trust Territory of the Pacific Islands.
"Openings that ICF KH proposes to fill from within its own
organization," as used in this clause, means employment openings for
which no one outside ICF KH's or WHC's organization (including any
affiliates, subsidiaries, and the parent companies) will be considered
and includes any openings that ICF KH proposes to fill from regularly
established "recall" lists.
"Openings that ICF KH proposes to fill under a customary and
traditional employer-union hiring arrangement," as used in this
clause, means employment openings that ICF KH proposes to fill from
union halls, under their customary and traditional employer-union
hiring relationship.
"Suitable employment openings," as used in this clause -
(1) Includes, but is not limited to, openings that occur in jobs
categorized as:
(i) Production and nonproduction;
(ii) Plant and office;
(iii) Laborers and mechanics;
(iv) Supervisory and nonsupervisory
(v) Technical; and
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WHC-380393
Section I, Page 28
(vi) Executive, administrative, and professional positions
compensated on a salary basis of less than $25,000 a year;
and
(2) Includes full-time employment temporary employment of over three
days, and part-time employment, but not openings that ICF KH
proposes to fill from within ICF KH or under a customary and
traditional employer-union hiring arrangement, nor openings in an
educational institution that are restricted to students of that
institution.
(b) General
(1) Regarding any position for which the employee or applicant for
employment is qualified, ICF KH shall not discriminate against
the individual because the individual is a special disabled or
Vietnam Era veteran. ICF KH agrees to take affirmative action to
employ, advance in employment, and otherwise treat qualified
special disabled and Vietnam Era veterans without discrimination
based upon their disability or veterans' status in all employment
practices such as:
(i) Employment;
(ii) Upgrading;
(iii) Demotion or transfer;
(iv) Recruitment;
(v) Advertising;
(vi) Layoff or termination;
(vii) Rates of pay or other forms of compensation; and
(viii) Selection for training, including apprenticeship.
(2) ICF KH agrees to comply with the rules, regulations, and relevant
orders of the Secretary of Labor (Secretary) issued under the
Vietnam Era Veterans' Readjustment Assistance Act of 1972 (the
Act), as amended.
(c) Listing Openings.
(1) ICF KH agrees to list all suitable employment openings existing
at subcontract award or occurring during subcontract performance,
at an appropriate office of the State employment service system
in the locality where the opening occurs. These openings include
those occurring at any ICF KH facility, including one not
connected with performing this subcontract. An independent
corporate affiliate is exempt from this requirement.
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WHC-380393
Section I, Page 29
(2) State and local government agencies holding Federal contracts of
$10,000 or more shall also list all their suitable openings with
the appropriate office of the State employment service.
(3) The listing of suitable employment openings with the State
employment service system is required at least concurrently with
using any other recruitment source or effort and involves the
obligations of placing a bona fide job order, including accepting
referrals of veterans and nonveterans. This listing does not
require hiring any particular job applicant or hiring of any
particular group of job applicants and is not intended to relieve
ICF KH of any requirements of Executive Orders or regulations
concerning nondiscrimination in employment.
(4) Whenever ICF KH becomes contractually bound to the listing terms
of this clause, it shall advise the State employment service
system, in each State where it has establishments, of the name
and location of each hiring location in the State. As long as
ICF KH is contractually bound to these terms and has so advised
the State system, it need not advise the State system of
subsequent subcontracts. ICF KH may advise the State system when
it is no longer bound by this subcontract clause.
(5) Under the most compelling circumstances, an employment opening
may not be suitable for listing, including situations when (i)
the Government's needs cannot reasonably be supplied, (ii)
listing could be contrary to national security, or (iii) the
requirement of listing would not be in the Government's interest.
(d) Applicability
(1) This clause does not apply to the listing of employment openings
which occur and are filled outside the 50 states, the District of
Columbia, Puerto Rico, Guam, Virgin Islands, American Samoa, and
the Trust Territory of the Pacific Islands.
(2) The terms of paragraph (c) above do not apply to openings that
ICF KH proposes to fill from within its own organization or under
a customary and traditional employer-union hiring arrangement.
This exclusion does not apply to a particular opening once an
employer decides to consider applicants outside of its own
organization or employer-union arrangement for that opening.
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Section I, Page 30
(e) Postings
(1) ICF KH agrees to post employment notices stating (i) ICF KH's
obligation under the law to take affirmative action to employ and
advance in employment qualified special disabled veterans of the
Vietnam Era, and (ii) the rights of applicants and employees.
(2) These notices shall be posted in conspicuous places that are
available to employees and applicants for employment. They shall
be in a form prescribed by the Director, Office of Federal
Contract Compliance Programs, Department of Labor (Director), and
provided by or through WHC.
(3) ICF KH shall notify each labor union or representative of workers
with which it has a collective bargaining agreement or other
subcontract understanding, that ICF KH is bound by the terms of
the Act, and is committed to take affirmative action to employ,
and advance in employment, qualified special disabled and Vietnam
Era veterans.
(f) Noncompliance. If ICF KH does not comply with the requirements of
this clause, appropriate actions may be taken under the rules,
regulations, and relevant orders of the Secretary issued pursuant to
the Act.
(g) Lower-tier Subcontracts. ICF KH shall include the terms of this
clause in every lower-tier subcontract or purchase order of $10,000 or
more unless exempted by rules, regulations, or orders of the
Secretary. ICF KH shall act as specified by the Director to enforce
the terms, including action for noncompliance.
I-28 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)
(a) General
(1) Regarding any position for which the employee or applicant for
employment is qualified, ICF KH shall not discriminate against
any employee or applicant because of physical or mental handicap.
ICF KH agrees to take affirmative action to employ, advance in
employment, and otherwise treat qualified handicapped individuals
without discrimination based upon their physical or mental
handicap in all employment practices such as:
(i) Employment;
(ii) Upgrading;
(iii) Demotion or transfer;
(iv) Recruitment;
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WHC-380393
Section I, Page 31
(v) Advertising;
(vi) Layoff or termination;
(vii) Rates of pay or other forms of compensation; and
(viii) Selection for training, including apprenticeship.
(2) ICF KH agrees to comply with the rules, regulations, and relevant
orders of the Secretary of Labor (Secretary) issued under the
Rehabilitation Act of 1973 (29 U. S. C. 793) (the Act), as
amended.
(b) Postings
(1) ICF KH agrees to post employment notices stating (i) ICF KH's
obligation under the law to take affirmative action to employ and
advance in employment qualified handicapped individuals, and (ii)
the rights of applicants and employees.
(2) These notices shall be posted in conspicuous places that are
available to employees and applicants for employment. They shall
be in a form prescribed by the Director, Office of Federal
Contract Compliance Programs, Department of Labor (Director), and
provided by or through WHC.
(3) ICF KH shall notify each labor union or representative of workers
with which it has a collective bargaining agreement or other
subcontract understanding, that ICF KH is bound by the terms of
Section 503 of the Act and is committed to take affirmative
action to employ, and advance in employment, qualified physically
and mentally handicapped individuals.
(c) Noncompliance.
If ICF KH does not comply with the requirements of this clause,
appropriate actions may be taken under the rules, regulations, and
relevant orders of the Secretary issued pursuant to the Act.
(d) Lower-tier Subcontracts.
ICF KH shall include the terms of this clause in every lower-tier
subcontract or purchase order in excess of $2,500 unless exempted by
rules, regulations, or orders of the Secretary. ICF KH shall act as
specified by the Director to enforce the terms, including action for
noncompliance.
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Section I, Page 32
I-29 CLEAN AIR AND WATER (APR 1984)
(a) "Air Act," as used in this clause, means the Clean Air Act (42 U.S.C.
7401 et seq.).
"Clean air standards," as used in this clause, means -
(1) Any enforceable rules, regulations, guidelines, standards,
limitations, orders, controls, prohibitions, work practices, or
other requirements contained in, issued under, or otherwise
adopted under the Air Act or Executive Order 11738;
(2) An applicable implementation plan as described in section 110(d)
of the Air Act (42 U.S.C. 7410(d));
(3) An approved implementation procedure or plan under section 111(c)
or section 111(d) of the Air Act (42 U.S.C. 7411(c) or (d); or
(4) An approved implementation procedure under section 112(d) of the
Air Act (42 U.S.C. 7412(d)). "Clean water standards," as used in
this clause, means any enforceable limitation, control,
condition, prohibition, standard, or other requirement
promulgated under the Water Act or contained in a permit issued
to a discharger by the Environmental Protection Agency or by a
State under an approved program, as authorized by section 402 of
the Water Act (33 U.S.C. 1342), or by local government to ensure
compliance with pretreatment regulations as required by section
307 of the Water Act (33 U.S.C. 1317).
"Compliance," as used in this clause, means compliance with-
(i) Clean air or water standards; or
(ii) A schedule or plan ordered or approved by a court of
competent jurisdiction, the Environmental Protection Agency,
or an air or water pollution control agency under the
requirements of the Air Act or Water Act and related
regulations.
"Facility," as used in this clause, means any building, plant,
installation, structure, mine, vessel or other floating craft,
location, or site of operations, owned, leased, or supervised by
a contractor or subcontractor, used in the performance of a
subcontract. When a location or site of operations includes more
than one building, plant, installation, or structure, the entire
location or site
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WHC-380393
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shall be deemed a facility except when the Administrator, or a
designee, of the Environmental Protection Agency, determines that
independent facilities are collocated in one geographical area.
"Water Act," as used in this clause, means Clean Water Act (33
U.S.C. 1251 et seq.).
(b) ICF KH agrees -
(1) To comply with all the requirements of section 114 of the Clean
Air Act (42 U.S.C. 7414) and section 308 of the Clean Water Act
(33 U.S.C. 1318) relating to inspection, monitoring, entry,
reports, and information, as well as other requirements specified
in section 114 and section 308 of the Air Act and the Water Act,
and all regulations and guidelines issued to implement those acts
before the award of this subcontract;
(2) That no portion of the work required by this subcontract will be
performed in a facility listed on the Environmental Protection
Agency List of Violating Facilities on the date when this
subcontract was awarded unless and until the EPA eliminates the
name of the facility from the listing;
(3) To use best efforts to comply with clean air standards and clean
water standards at the facility in which the subcontract is being
performed; and
(4) To insert the substance of this clause into any nonexempt, lower-
tier subcontract, including this subparagraph (b)(4).
I-30 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA. (NOV 1991) --
ALTERNATE I (NOV 1991)
(a) "Hazardous material," as used in this clause, includes any material
defined as hazardous under the latest version of Federal Standard No.
313 (including revisions adopted during the term of the contract).
(b) ICF KH must list any hazardous material, as defined in paragraph (a)
of this clause, to be delivered under this contract. The hazardous
material shall be properly identified and include any applicable
identification number, such as National Stock Number or Special Item
Number. This information shall also be included on the Material
Safety Data Sheet submitted under this contract.
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Material (if none, insert "None")
______________________________________________________________
______________________________________________________________
______________________________________________________________
Identification No.
______________________________________________________________
______________________________________________________________
______________________________________________________________
(c) ICF KH, by acceptance of the subcontract, certifies that the list in
paragraph (b) of this clause is complete. This list must be updated
during the performance of the contract whenever ICF KH determines that
any other material to be delivered under this subcontract is
hazardous.
(d) ICF KH agrees to submit, for each item as required prior to award, a
Material Safety Data Sheet, meeting the requirements of 29 CFR
1910.1200(g) and the latest version of Federal Standard No. 313, for
all hazardous material identified in paragraph (b) of this clause.
Data shall be submitted in accordance with Federal Standard No. 313,
whether or not ICF KH is the actual manufacturer of these items.
Failure to submit the Material Safety Data Sheet prior to award may
result ICF KH being considered nonresponsible and ineligible for
award.
(e) If, after award, there is a change in the composition of the item(s)
or a revision to Federal Standard No.313, which renders incomplete or
inaccurate the data submitted under paragraph (d) of this clause or
the certification submitted under paragraph (c) of this clause, ICF KH
shall promptly notify WHC and resubmit the data.
(f) Neither the requirements of this clause nor any act or failure to act
by WHC shall relieve ICF KH of any responsibility or liability for the
safety of Government, WHC, or ICF KH personnel or property.
(g) Nothing contained in this clause shall relieve ICF KH from complying
with applicable Federal, State, or local laws, codes, ordinances, and
regulations (including the obtaining of licenses and permits) in
connection with hazardous material.
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WHC-380393
Section I, Page 35
(h) WHC's rights in data furnished under this contract with respect to
hazardous material are as follows:
(1) To use, duplicate and disclose any data to which this clause is
applicable. The purposes of this right are to --
(i) Apprise personnel of the hazards to which they may be
exposed in using, handling, packaging, transporting, or
disposing of hazardous materials;
(ii) Obtain medical treatment for those affected by the
material; and
(iii) Have others use, duplicate, and disclose the data for
the Government for these purposes.
(2) To use, duplicate, and disclose data furnished under this clause,
in accordance with subparagraph (h)(1) of this clause, in
precedence over any other clause of this subcontract providing
for rights in data.
(3) WHC is not precluded from using similar or identical data
acquired from other sources.
(i) Except as provided in paragraph (i)(2) ICF KH shall prepare
and submit a sufficient number of Material Safety Data
Sheets (MSDS's), meeting the requirements of 29 CFR
1910.1200(g) and the latest version of Federal Standard No.
313, for all hazardous materials identified in paragraph (b)
of this clause.
(1) For items shipped to consignees, ICF KH shall include a copy of
the MSDS with the packing list or other suitable shipping
document which accompanies each shipment. Alternatively, ICF KH
is permitted to mail MSDS's to consignees in advance of receipt
of shipments by consignees, if authorized in writing by WHC.
(2) For items shipped to consignees identified by mailing address as
agency depots, distribution centers or customer supply centers,
ICF KH shall provide one copy of the MSDS's in or on each
shipping container, the MSDS must be placed in a weather
resistant envelope.
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Section I, Page 36
I-31 PRESERVATION OF INDIVIDUAL OCCUPATIONAL RADIATION EXPOSURE RECORDS
(APR 1984)
Individual occupational radiation exposure records generated in the
performance of work under this subcontract shall be subject to inspection
by WHC and shall be preserved by ICF KH until disposal is authorized by WHC
or at the option of ICF KH delivered to WHC upon completion or termination
of the subcontract. If ICF KH exercises the foregoing option, title to
such records shall vest in WHC upon delivery.
I-32 PRIVACY ACT NOTIFICATION (APR 1984)
ICF KH will be required to design, develop, or operate a system of records
on individuals, to accomplish an agency function subject to the Privacy Act
of 1974, Public Law 93-579, December 31, 1974 (5 U.S.C. 552a) and
applicable agency regulations. Violation of the Act may involve the
imposition of criminal penalties.
I-33 PRIVACY ACT (APR 1984)
(a) ICF KH agrees to -
(1) Comply with the Privacy Act of 1974 (the Act) and the agency
rules and regulations issued under the Act in the design,
development, or operation of any system of records on individuals
to accomplish an agency function when the subcontract
specifically identifies -
(i) The systems of records; and
(ii) The design, development, or operation work that ICF KH is to
perform.
(2) Include the Privacy Act notification contained in this
subcontract in every solicitation and resulting lower-tier
subcontract and in every lower-tier subcontract awarded without a
solicitation, when the work statement in the proposed subcontract
requires the design, development, or operation of a system of
records on individuals that is subject to the Act;
(3) Include this clause, including this subparagraph (3), in all
lower-tier subcontracts awarded under this subcontract which
requires the design, development, or operation of such a system
of records.
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(b) In the event of violations of the Act, a civil action may be brought
against the agency involved when the violation concerns the design,
development, or operation of a system of records on individuals to
accomplish an agency function, and criminal penalties may be imposed
upon the officers or employees of the agency when the violation
concerns the operation of a system of records on individuals to
accomplish an agency function, and criminal penalties may be imposed
upon the officers or employees of the agency when the violation
concerns the operation of a system of records on individuals to
accomplish an agency function. For purposes of the Act, when the
subcontract is for the operation of a system of records on individuals
to accomplish an agency function, ICF KH and any employee of ICF KH is
considered to be an employee of the agency.
(c) (1) "Operation of a system of records," as used in this clause, means
performance of any of the activities associated with maintaining
the system of records, including the collection, use, and
dissemination of records.
(2) "Record," as used in this clause, means any item, collection, or
grouping of information about an individual that is maintained by
an agency, including, but not limited to, education, financial
transactions, medical history, and criminal or employment history
and that contains the person's name, or the identifying number,
symbol, or other identifying particular assigned to the
individual, such as a fingerprint or voiceprint or a photograph.
(3) "System of records on individuals," as used in this clause means
a group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular
assigned to the individual.
I-34 PAPERWORK REDUCTION ACT (APR 1984)
(a) In the event that it subsequently becomes a subcontractual requirement
to collect or record information calling either for answer to
identical questions from ten or more persons other than Federal
employees, or information from Federal employees which is to be used
for statistical compilations of general public interest, the Federal
Reports Act will apply to this subcontract.
No plan, questionnaire, interview guide, or other similar device for
collecting information (whether repetitive or single-time) may be used
without first obtaining clearance from the Office of Management and
Budget (OMB).
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WHC-380393
Section I, Page 38
(b) ICF KH shall request the required OMB clearance from WHC before
expending any funds or making public contacts for the collection of
data. The authority to expend funds and to proceed with the
collection of data shall be in writing by WHC. ICF KH must plan at
least 90 days for OMB clearance. Excessive delay caused by WHC or the
Government which arises out of causes beyond the control and without
the fault or negligence of ICF KH will be considered in accordance
with the clause entitled "Excusable Delays," if such clause is
applicable. If not, the period of performance may be extended
pursuant to this clause if approved by WHC.
I-35 RESERVED
I-36 DUTY-FREE ENTRY
(a) Except as otherwise approved by the WHC, no amount is or will be
included in the contract price for any duties on supplies specifically
identified in the Schedule to be accorded duty-free entry.
(b) Except for supplies listed in the Schedule to be accorded duty-free
entry, and except as provided under any other clause of this
subcontract or in paragraph (c) below, the following procedures apply:
(1) ICF KH shall notify WHC in writing of any purchase of foreign
supplies (including, without limitation, raw materials,
components, and intermediate assemblies) in excess of $10,000
that are to be imported into the customs territory of the United
States for delivery to the Government or for incorporation into
end items to be delivered under this contract. The notice shall
be furnished to WHC at least 20 days before the importation and
shall identify (i) the foreign supplies, (ii) the estimated
amount of duty, and (iii) the country of origin.
(2) If WHC determines that these supplies should be entered duty-
free, WHC shall notify ICF KH within 10 days.
(3) Except as otherwise approved by the WHC, the contract price shall
be reduced by (or the allowable cost shall not include) the
amount of duty that would be payable if the supplies were not
entered duty-free.
(c) Paragraph (b) above shall not apply to purchases of foreign supplies
if (1) they are identical in nature with items purchased by ICF KH or
any subcontractor in connection with its commercial business and (2)
segregation of these supplies to ensure use only
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WHC-380393
Section I, Page 39
on Government contracts containing duty-free entry provisions is not
economical or feasible.
(d) ICF KH warrants that all supplies for which duty-free entry is to be
claimed are intended to be delivered to the Government or incorporated
into the end items to be delivered under this subcontract, and that
duty shall be paid to the extent that these supplies, or any portion
of them, are diverted to non-Governmental use, other than as scrap or
salvage or as a result of a competitive sale authorized by the WHC.
(e) The Government agrees to execute any required duty-free entry
certificates for items specified in this subcontract or approved by
WHC and to assist ICF KH in obtaining duty-free entry of the supplies.
(f) All shipping documents covering the supplies to be entered duty-free
shall consign the shipments to the contracting agency in care of ICF
KH and shall include the delivery address of ICF KH (or contracting
agency, if appropriate). The documents shall bear the following
information:
(1) Government prime contract number.
(2) Identification of carrier.
(3) The notation "UNITED STATES GOVERNMENT, ____________[agency]
_____________, Duty-free entry to be claimed pursuant to Item
No(s) _________ [from Tariff Schedules] ______________, Tariff
Schedules of the United States (19 U.S.C. 1202). Upon arrival of
shipment at port of entry, District Director of Customs, please
release shipment under 19 CFR 142 and notify
______________________[cognizant contract
administration office] ______________ for execution of Customs
Forms 7501 and 7501-A and any required duty-free entry
certificates."
(4) Gross weight in pounds (if freight is based on space tonnage,
state cubic feet in addition to gross shipping weight).
(5) Estimated value in United States dollars.
(g) ICF KH agrees to instruct the foreign supplier to consign the shipment
as specified in (f) above, to mark all packages with the words "UNITED
STATES GOVERNMENT" and the title of the contracting agency, and to
accompany the shipment with at least two copies of the bill of lading
(or other shipping document) for use by the District Director of
Customs at the port of entry.
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WHC-380393
Section I, Page 40
(h) ICF KH agrees to notify in writing the cognizant contract
administration office immediately upon notification from WHC that
duty-free entry will be accorded (or, if the duty-free supplies were
listed in the contract Schedule, upon award by the Contractor to the
overseas supplier). The notice shall identify (1) the foreign
supplies, (2) the country of origin, (3) the contract number, and (4)
the scheduled delivery date(s).
(i) ICF KH agrees to insert the substance of this clause in any
subcontract under which-
(1) There will be imported into the customs territory of the United
States supplies identified in the Schedule as supplies to be
accorded duty-free entry; or
(2) Other foreign supplies in excess of $10,000 may be imported into
the customs territory of the United States.
I-37 AUTHORIZATION AND CONSENT (APR 1984)
The Government hereby gives its authorization and consent for all use and
manufacture of any invention described in and covered by a patent of the
United States in the performance of this subcontract or any part hereof or
any amendment hereto or any ICF KH subcontract hereunder (including all
lower-tier subcontracts).
I-38 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT
The provisions of this clause shall be applicable only if the amount of
this subcontract exceeds $10,000.
(a) ICF KH shall report to WHC, promptly and in reasonable written detail,
each notice or claim of patent or copyright infringement based on the
performance of this subcontract of which ICF KH has knowledge.
(b) In the event of any claim or suit against WHC or the Government on
account of any alleged patent or copyright infringement arising out of
the performance of this subcontract or out of the use of any supplies
furnished or work or services performed hereunder, ICF KH shall
furnish to WHC and the Government, when requested by WHC, all evidence
and information in possession of ICF KH pertaining to such suit or
claim. Such evidence and information shall be furnished at the
expense of the Government except where ICF KH has agreed to indemnify
WHC and the Government.
(c) This clause shall be included in all lower-tier subcontracts.
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WHC-380393
Section I, Page 41
I-39 REPORTING OF ROYALTIES
If this subcontract is in an amount which exceeds $10,000, and if any
royalty payments are directly involved in the subcontract or are reflected
in the subcontract price to WHC, ICF KH agrees to report in writing to the
Patent Counsel (with notification by Patent Counsel to WHC) during the
performance of this subcontract and prior to its completion or final
settlement the amount of any royalties or other payments paid or to be paid
by it directly to others in connection with the performance of this
subcontract together with the names and addresses of licensors to whom such
payments are made and either the patent numbers involved or such other
information as will permit identification of the patents or other basis on
which the royalties are to be paid. The approval of WHC of any individual
payments or royalties shall not stop WHC or the Government at any time from
contesting the enforceability, validity or scope of, or title to, any
patent under which a royalty or payments are made.
I-40 CLASSIFIED INVENTIONS
(a) ICF KH shall not file or cause to be filed on any invention or
discovery conceived or first actually reduced to practice in the
course of or under this subcontract in any country other than the
United States, an application or registration for a patent without
first obtaining written approval of the WHC.
(b) When filing a patent application in the United States on any invention
or discovery conceived of or first actually reduced to practice in the
course of or under this subcontract, the subject matter of which is
classified for reasons of security, ICF KH shall observe all
applicable security regulations covering the transmission of
classified subject matter. When transmitting the patent application
to the United States Patent and Trademark Office, ICF KH shall by
separate letter identify by agency and number, subcontract(s) which
require security classification markings to be placed on the
application.
(c) The substance of this clause shall be included in subcontracts which
cover or are likely to cover classified subject matter.
I-41 PATENT RIGHTS-FACILITY - (DEVIATION)
(a) Definitions.
(1) "Subject Invention" means any invention or discovery of ICF KH
conceived or first actually reduced to practice in the course or
under this contract, and includes any art, method, process,
machine, manufacture, design, or composition of matter, or any
new and useful improvement thereof, or any
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WHC-380393
Section I, Page 42
variety of plants, whether patented or unpatented under the
Patent Laws of the United States of America or any foreign
country.
(2) "Contract" means any contract, grant, agreement, understanding,
or other arrangement, which includes research, development, or
demonstration work, and includes any assignment or substitution
of parties.
(3) "States and domestic municipal governments" means the States of
the United States, the District of Columbia, Puerto Rico, the
Virgin Islands, American Samoa, Guam, the Trust Territory of the
Pacific Islands, and any political subdivision and agencies
thereof.
(4) "Government agency" includes an executive department, independent
commission, board, office, agency, administration, authority,
Government corporation, or other Government establishment of the
Executive Branch of the Government of the United States of
America.
(5) "To the point of practical application" means to manufacture in
the case of a composition or product, to practice in the case of
a process, or to operate in the case of a machine and under such
conditions as to establish that the invention is being worked and
that its benefits are reasonably accessible to the public.
(6) "Patent Counsel" means the DOE Patent Counsel assisting the
procuring activity.
(b) Allocation of Principal Rights
(1) Assignment to the Government. ICF KH agrees to assign to the
Government the entire right, title, and interest throughout the
world in and to each Subject Invention, except to the extent that
rights are retained by ICF KH under Paragraphs (b)(2) and (c) of
this clause.
(2) Greater Rights Determinations. ICF KH or the employee-inventor
with authorization of ICF KH may request greater rights than the
nonexclusive license and the foreign patent rights provided in
Paragraph (c) of this clause on identified inventions in
accordance with 41 CFR 9-9.109-6(d). Such requests must be
submitted to Patent Counsel (with notification by Patent Counsel
to the WHC) at the time of the first disclosure pursuant to
Paragraph (e)(2) of this clause, or not later than nine months
after conception or first actual reduction to practice, whichever
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WHC-380393
Section I, Page 43
occurs first, or such longer period as may be authorized by
Patent Counsel (with notification by Patent Counsel to WHC) for
good cause shown in writing by ICF KH.
(c) Minimum Rights to ICF KH.
(1) Contractor License. ICF KH may reserve upon request a revocable,
nonexclusive, paid-up license in each patent application filed in
any country on a Subject Invention and any resulting patent in
which the Government acquires title. The license shall extend to
ICF KH's domestic subsidiaries and affiliates, if any, within the
corporate structure of which ICF KH is a part and shall include
the right to grant sublicenses of the same scope to the extent
ICF KH was legally obligated to do so at the time the contract
was awarded. The license shall be transferable only with
approval of DOE except when transferred to the successor of that
part of ICF KH's business to which the invention pertains.
(2) Revocation Limitations. ICF KH's nonexclusive license retained
pursuant to Paragraph (c)(1) of this clause and sublicenses
granted thereunder may be revoked or modified by DOE, either in
whole or in part, only to the extent necessary to achieve
expeditious practical application of the Subject Invention under
DOE's published licensing regulations (10 CFR 781), and only to
the extent an exclusive license is actually granted. This
license shall not be revoked in that field of use and/or the
geographical areas in which ICF KH, or its sublicensee, has
brought the invention to the point of practical application and
continues to make the benefits of the invention reasonably
accessible to the public, or is expected to do so within a
reasonable time.
(3) Revocation Procedures. Before modification or revocation of the
license or sublicense, pursuant to Paragraph (c)(2) of this
clause, DOE shall furnish ICF KH a written notice of its
intention to modify or revoke the license and any sublicense
thereunder, and ICF KH shall be allowed 30 days or such longer
period as may be authorized by the patent Counsel (with
notification by the Patent Counsel to WHC) for good cause shown
in writing by ICF KH, after such notice to such cause why the
license or any sublicense should not be modified or revoked. ICF
KH shall have the right to appeal, in accordance with 10 CFR 781,
any decision concerning the modification or revocation of his
license or any sublicense.
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(4) Foreign Patent Rights. Upon written request to Patent Counsel
(with notification in writing by Patent Counsel to WHC), and
subject to DOE security regulations and requirements, there shall
be reserved to ICF KH, or the employee-inventor with
authorization of ICF KH, the patent rights to a Subject Invention
in any foreign country where the Government has elected not to
secure any rights provided:
(i) The recipient of such rights, when specifically requested by
DOE and three years after issuance of a foreign patent
disclosing said Subject Invention, shall furnish DOE a
report setting forth:
(A) The commercial use that is being made, or is intended
to be made, of said invention, and
(B) The steps taken to bring the invention to the point of
practical application or to make the invention
available for licensing.
(ii) The Government shall retain at least an irrevocable,
nonexclusive, paid-up license to make, use, and sell the
invention throughout the world by or on behalf of the
Government (including any Government agency) and States and
domestic municipal governments, unless the head of the
agency or his designee determines that it would not be in
the public interest to acquire the license for the States
and domestic municipal governments.
(iii) Subject to the rights granted in (c)(1), (c)(2), and (c)(3)
of this clause, the Head of the Agency or his designee shall
have the right to terminate the foreign patent rights
granted in this Paragraph (c)(4) in whole or in part unless
the recipient of such rights demonstrates to the
satisfaction of the head of the Agency or his designee that
effective steps necessary to accomplish substantial
utilization of the invention have been taken or within a
reasonable time will be taken.
(iv) Subject to the rights granted in (c)(1), (c)(2), and (c)(3)
of this clause, the Head of the Agency or his designee shall
have the right, commencing four years after foreign patent
rights are accorded under this Paragraph (c)(4), to require
the granting of a nonexclusive or partially exclusive
license to a responsible applicant or applicants, upon terms
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WHC-380393
Section I, Page 45
reasonable under the circumstances and in appropriate
circumstances to terminate said foreign patent rights in
whole or in part, following a hearing upon notice thereof to
the public, upon a petition by an interested person
justifying such hearing:
(A) If the head of the Agency or his designee determines,
upon review of such material as he deems relevant, and
after the recipient of such rights, or other interested
person, has had the opportunity to provide such
relevant and material information as the head of the
Agency or his designee may require, that such foreign
patent rights have tended substantially to lessen
competition or the result in undue market concentration
in any section of the United States in any line of
commerce to which the technology relates; or
(B) Unless the recipient of such rights demonstrates to the
satisfaction of the Head of the Agency or his designee
at such hearing that the recipient has taken effective
steps, or within a reasonable time thereafter is
expected to take such steps, necessary to accomplish
substantial utilization of the invention.
(d) Filing of Patent Applications
(1) With respect to each Subject Invention in which ICF KH or the
inventor requests foreign patent rights in accordance with
Paragraph (c)(4) of this clause, a request may also be made for
the right to file and prosecute the U.S. application on behalf of
the U.S. Government. If such request is granted, ICF KH or
inventor shall file a domestic patent application on the
invention within six months after the request for foreign patent
rights is granted, or such longer period of time as may be
approved by Patent Counsel for good cause shown in writing by the
requester. With respect to the invention, the requester shall
promptly notify the Patent Counsel (with notification by the
Patent Counsel to WHC) of any decision not to file an
application.
(2) For each Subject Invention on which a domestic patent application
is filed by ICF KH or inventor, ICF KH or inventor shall:
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WHC-380393
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(i) Within two months after filing or within two months after
submission of the invention disclosure if the patent
application has been filed previously, deliver to the
Patent Counsel a copy of the application as filed
including the filing date and serial number;
(ii) Within six months after filing the application or within
six months after submitting the invention disclosure if
the application has been filed previously, deliver to the
Patent Counsel a duly executed and approved Assignment to
the Government, on a form specified by the Government;
(iii) Provide the Patent Counsel with the original patent grant
promptly after a patent is issued on the application; and
(iv) Not less than 30 days before the expiration of the
response period for any action required by the Patent and
Trademark Office, notify the Patent Counsel of any
decision not to continue prosecution of the application.
(3) With respect to each Subject Invention in which ICF KH or
inventor has requested foreign patent rights, ICF KH or inventor
shall file a patent application on the invention in each foreign
country in which such request is granted in accordance with
applicable statutes and regulations and within one of the
following periods:
(i) Eight months from the date of filing a corresponding
United States application, or if such an application is
not filed, six months from the date the request was
granted;
(ii) Six months from the date a license is granted by the
Commissioner of Patents and Trademarks to file the foreign
patent application, where such filing has been prohibited
by security reasons; or
(iii) Such longer periods as may be approved by the Patent
Counsel for good cause shown in writing by ICF KH or
inventor.
(4) Subject to the license specified in Paragraphs (c)(1), (c)(2),
and (c)(3) of this clause, ICF KH or inventor agrees to convey to
the Government, upon request, the entire right, title, and
interest in any foreign country in which ICF KH or inventor fails
to have a patent application filed in
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accordance with Paragraph (d)(3) of this clause, or decides not
to continue prosecution or to pay any maintenance fees covering
the invention. To avoid forfeiture of the patent application or
patent ICF KH or inventor shall, not less than 60 days before the
expiration period for any action required by any Patent Office,
notify the Patent Counsel of such failure or decision, and
deliver to the Patent counsel the executed instruments necessary
for the conveyance specified in this paragraph.
(e) Invention Identification, Disclosures, and Reports
(1) ICF KH shall establish and maintain active and effective
procedures to ensure that Subject Inventions are promptly
identified and timely disclosed. These procedures shall include
the maintenance of laboratory notebooks or equivalent records and
any other records that are reasonably necessary to document the
conception and/or the first actual reduction to practice of
Subject Inventions, and records which show that the procedures
for identifying and disclosing the inventions are followed. Upon
request, ICF KH shall furnish WHC a description of these
procedures so that he may evaluate and determine their
effectiveness.
(2) ICF KH shall furnish the Patent Counsel (with notification by the
Patent Counsel to WHC) on a WHC approved form:
(i) A written report containing full and complete technical
information concerning each Subject Invention within six
months after conception or first actual reduction to
practice, whichever occurs first, in the course of or under
this subcontract, but in any event prior to any sale, public
use or public disclosure of such invention known to ICF KH.
The report shall identify the subcontract and inventor and
shall be sufficiently complete in technical detail and
appropriately illustrated by sketch or diagram to convey to
one skilled in the art to which the invention pertains a
clear understanding of the nature, purpose, operation, and
to the extent known, the physical, chemical, biological, or
electrical characteristics of the invention. The report
should also include any request for foreign patent rights
under Paragraph (c)(4) of this clause and any request to
file a domestic patent application under (d)(1) of this
clause. However, such requests shall be made within the
period set forth in Paragraph (b)(2) of this clause. When
an invention is reported under this Paragraph (e)(2)(i), it
shall be presumed to have been
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WHC-380393
Section I, Page 48
conceived or first actually reduced to practice in the
course of or under the subcontract unless ICF KH contends it
was not so made in accordance with Paragraph (g)(2)(ii) of
this clause.
(ii) Upon request, but not more than annually, interim reports on
a WHC-approved form listing Subject Inventions and
subcontracts awarded containing a Patent Rights clause for
that period and certifying that:
(A) ICF KH's procedures for identifying and disclosing
Subject Inventions as required by this Paragraph (e)
have been followed throughout the reporting period;
(B) All Subject Inventions have been disclosed or that
there are no such inventions; and
(C) All subcontracts containing Patent Rights clause have
been reported or that no such subcontracts have been
awarded;
(iii) A final report on a DOE-approved form within three months
after completion of the subcontract work listing all Subject
Inventions and all subcontracts awarded containing a Patent
Rights clause and certifying that:
(A) All Subject Inventions have been disclosed or that
there were no such inventions; and
(B) All subcontracts containing a Patent Rights clause have
been reported or that no such subcontracts have been
awarded.
(3) ICF KH shall obtain patent agreements to effectuate the
provisions of this clause from all person in its employ who
perform any part of the work under this subcontract except
nontechnical personnel, such as clerical employees and manual
laborers.
(4) ICF KH agrees that the Government may duplicate and disclose
Subject Invention disclosures and all other reports and papers
furnished or required to be furnished pursuant to this clause.
If ICF KH is to file a foreign patent application on a Subject
Invention, the Government agrees, upon written request, to use
its best efforts to withhold publication of such invention
disclosures until the
<PAGE>
WHC-380393
Section I, Page 49
expiration of the time period specified in Paragraph (d)(1) of
this clause, but in no event shall the Government or its
employees be liable for any publication thereof.
(f) Publication
It is recognized that during the course of the work under this
subcontract, ICF KH or its employees may from time to time desire to
release or publish information regarding scientific or technical
developments conceived or first actually reduced to practice in the
course of or under this subcontract. In order that public disclosure
of such information will not adversely affect the patent interests of
WHC, DOE, or ICF KH, patent approval for release or publication shall
be secured from Patent counsel prior to any such release or
publication.
(g) Forfeiture of Rights in Unreported Subject Inventions
(1) ICF KH shall forfeit to the Government, at the request of the
Head of the Agency or his designee, all rights in any Subject
Invention which ICF KH fails to report to the Patent Counsel
(with notification by the Patent Counsel to WHC) within six
months after the time ICF KH:
(i) Files or causes to be filed a United States or foreign
patent application thereon; or
(ii) Submits the final report required by Paragraph (e)(2)(iii)
of this clause, whichever is later.
(2) However, ICF KH shall not forfeit rights in a Subject Invention
if, within the time specified in (1)(i) or (1)(ii) of this
Paragraph (g), ICF KH:
(i) Prepared a written decision based upon a review of the
record that the invention was neither conceived nor first
actually reduced to practice in the course of or under the
subcontract and delivers the same to Patent Counsel (with
notification by the Patent Counsel to WHC); or
(ii) Contending that the invention is not a Subject Invention
ICF KH nevertheless discloses the invention and all facts
pertinent to this contention to the Patent Counsel (with
notification by the Patent Counsel to WHC); or
(iii) Establishes that the failure to disclose did not result
from ICF KH's fault or negligence.
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WHC-380393
Section I, Page 50
(3) Pending written assignment of the patent applications and patents
on a Subject Invention determined by the Head of the Agency or
his designee to be forfeited (such determination to be a final
decision under the Disputes Article of this subcontract), ICF KH
shall be deemed to hold the invention and the patent applications
and patents pertaining thereto in trust for the Government. The
forfeiture provision of this Paragraph (g) shall be in addition
to and shall not supersede other rights and remedies which the
Government may have with respect to Subject Inventions.
(h) Examination of Records Relating to Inventions
(1) WHC, DOE or their authorized representative, until the expiration
of 3 years after final payment under this subcontract, shall have
the right to examine any books (including laboratory notebooks),
records, documents, and other supporting data of ICF KH which WHC
or his authorized representative reasonably deem pertinent to the
discovery or identification of Subject Inventions or to determine
compliance with the requirements of this clause.
(2) WHC, DOE or their authorized representative shall have the right
to examine all books (including laboratory notebooks), records
and documents of ICF KH relating to the conception or first
actual reduction to practice of inventions in the same field of
technology as the work under this subcontract to determine
whether any such inventions are Subject Inventions, if ICF KH
refuses or fails to:
(i) Establish the procedures of Paragraph (e)(1) of this
clause; or
(ii) Maintain and follow such procedures; or
(iii) Correct or eliminate any material deficiency in the
procedures within thirty (30) days after WHC notifies ICF
KH of such a deficiency.
(iv) Withholding of Payment (Not applicable to subcontracts)
(1) Any time before final payment of the amount of this subcontract,
WHC may, if he deems such action warranted, withhold payment
until a reserve not exceeding $50,000 or five percent of the
amount of this subcontract, whichever is less, shall have been
set aside if in his opinion ICF KH fails to:
<PAGE>
WHC-380393
Section I, Page 51
(i) Establish, maintain and follow effective procedures for
identifying and disclosing Subject Inventions pursuant to
Paragraph (e)(1) of this clause; or
(ii) Disclose any Subject Invention pursuant to Paragraph
(e)(2)(i) of this clause; or
(iii) Deliver the interim report pursuant to Paragraph (e)(2)
(ii) of this clause; or
(iv) Provide the information regarding subcontracts pursuant to
Paragraph (j)(5) of this clause; or
(v) Convey to the Government in a WHC-approved form, the title
and/or rights of the Government in each Subject
Invention as required by this clause.
(2) The reserve or balance shall be withheld until WHC has determined
that ICF KH has rectified whatever deficiencies exist and has
delivered all reports, disclosures, and other information
required by this clause.
(3) Final payment under this subcontract shall not be made by WHC
before ICF KH delivers to Patent Counsel all disclosures of
Subject Inventions and other information required by (e)(2)(i) of
this clause, the final report required by (e)(2)(iii) of this
clause, and Patent Counsel has issued a patent clearance
certification to WHC.
(4) WHC may, in his discretion, decrease or increase the sums
withheld up to the maximum authorized above. If ICF KH is a
nonprofit organization, the maximum amount that may be withheld
under this paragraph shall not exceed $50,000 or one percent of
the amount of this subcontract, whichever is less. No amount
shall be withheld under this paragraph while the amount specified
by this paragraph is being withheld under other provisions of the
subcontract. The withholding of any amount or subsequent payment
thereof shall not be construed as a waiver of any rights accruing
to the Government under this subcontract.
(j) Subcontracts
(1) For the purpose of this clause the term "Contractor" means the
party awarding a subcontract and the term "Subcontractor" means
the party being awarded a subcontract, regardless of tier.
<PAGE>
WHC-380393
Section I, Page 52
(2) ICF KH will include the clause at 952.227-71 "Patent Rights-Small
Business Firms or Nonprofit Organizations" of the Department of
Energy Acquisition Regulation 48 CFR Part 952 suitably modified
to identify the parties, in all subcontracts regardless of tier,
for experimental, developmental, demonstration or research work
to be performed by a small business firm or domestic nonprofit
organization. In all other subcontracts, regardless of tier, for
experimental, developmental, demonstration, or research work, ICF
KH will include the Patent Rights clause of 41 CFR 9-9.107-5(a)
or 41 9-9.107-6 as appropriate, modified to identify the parties.
In the event of refusal by a Subcontractor to accept this clause,
or if in the opinion of ICF KH this clause is inconsistent with
DOE's patent policies, ICF KH:
(i) Shall promptly submit written notice to WHC setting forth
reasons for ICF KH refusal and other pertinent information
which may expedite disposition of the matter; and
(ii) Shall not proceed with the subcontracting without the
written authorization of WHC.
(3) Except as may be otherwise provided in this clause, ICF KH shall
not, in any subcontract or by using a subcontract as
consideration therefor, acquire any rights in its Subcontractor's
Subject Invention for ICF KH's own use (as distinguished from
such rights as may be required solely to fulfill ICF KH's
subcontract obligations to the Government in the performance of
this subcontract).
(4) All invention disclosures, reports, instruments, and other
information required to be furnished by ICF KH to DOE, under the
provisions of a Patent Rights clause in any subcontract hereunder
may, in the discretion of WHC, be furnished to ICF KH for
transmission to DOE.
(5) ICF KH shall promptly notify WHC in writing upon award of any
subcontract containing a Patent Rights clause by identifying ICF
KH, the work to be performed under this subcontract, and the
dates of award and estimated completion. Upon request of WHC ICF
KH shall furnish a copy of the subcontract.
<PAGE>
WHC-380393
Section I, Page 53
(6) ICF KH shall identify all Subject Inventions of ICF KH of which
it acquires knowledge in the performance of this contact and
shall notify the Patent Counsel (with notification by Patent
counsel to WHC) promptly upon the identification of the
inventions.
(7) It is understood that the Government is a third party beneficiary
of any subcontract clause granting rights to the Government in
Subject Inventions, and ICF KH hereby assigns to the Government
all rights that ICF KH would have to enforce ICF KH's obligations
for the benefit of the Government with respect to Subject
Inventions. ICF KH shall not be obligated to enforce the
agreements of any Subcontractor hereunder relating to the
obligations of ICF KH to the Government regarding Subject
Inventions.
(k) Background Patents
(1) "Background Patent" means a domestic patent covering an invention
or discovery which is not a Subject Invention and which is owned
or controlled by ICF KH at any time through the completion of
this subcontract:
(i) Which ICF KH, but not the Government, has the right to
license to others without obligation to pay royalties
thereon; and
(ii) Infringement of which cannot reasonably be avoided upon the
practice of any specific process, method, machine,
manufacture or composition of matter (including relatively
minor modifications thereof) which is a subject of the
research, development, or demonstration work performed under
this subcontract.
(2) ICF KH agrees to and does hereby grant to the Government a
royalty-free, nonexclusive license under any Background Patent
for purposes of practicing a subject of this subcontract by or
for the Government in research, development, and demonstration
work only.
(3) ICF KH also agrees that upon written application by DOE, it will
grant to responsible parties for purposes of practicing a subject
of this subcontract, nonexclusive license under any Background
Patent on terms that are reasonable under the circumstances. If,
however, ICF KH believes that exclusive or partially exclusive
rights are necessary to achieve expeditious commercial
development or utilization, then a request may be made to DOE for
WHC approval of such licensing by ICF KH.
<PAGE>
WHC-380393
Section I, Page 54
(4) Not withstanding the foregoing Paragraph (k)(3), ICF KH shall not
be obligated to license any Background Patent if ICF KH
demonstrates to the satisfaction of the Head of the Agency or
designee that:
(i) A competitive alternative to the subject matter covered by
said Background Patent is commercially available or readily
introducible from one or more other sources; or
(ii) ICF KH or its licensees are supplying the subject matter
covered by said Background Patent in sufficient quantity and
at reasonable prices to satisfy market needs, or have taken
effective steps or within a reasonable time are expected to
take effective steps to so supply the subject.
(l) Atomic Energy
(1) No claim for pecuniary award or compensation under the provisions
of the Atomic Energy Act of 1954, as amended, shall be asserted
by ICF KH or its employees with respect to any invention or
discovery made or conceived in the course of or under this
subcontract.
(2) Except as otherwise authorized in writing by WHC, ICF KH will
obtain patent agreements to effectuate the provisions of
Paragraph (l)(1) of this clause from all persons who perform any
part of the work under this subcontract, except nontechnical
personnel, such as clerical employees and manual laborers.
(m) Limitation of Rights
Nothing contained in this Patent Rights clause shall be deemed to give
the Government any rights with respect to any invention other than a
subject invention except as set forth in the Patent Rights clause of
this subcontract with respect of Background Patents and if included
the Facilities License.
(n) Facilities License
In addition to the rights of the parties with respect to inventions or
discoveries conceived or first actually reduced to practice in the
course of or under this subcontract, ICF KH agrees to and does hereby
grant to the Government an irrevocable, nonexclusive paid-up license
in and to any inventions or discoveries regardless of when conceived
or actually reduced to practice or acquired by ICF KH, which are owned
or controlled by
<PAGE>
WHC-380393
Section I, Page 55
ICF KH at any time through completion of this subcontract and which
are incorporated or embodied in the construction of the facility or
which are utilized in the operation of the facility or which cover
articles, materials, or products manufactured at the facility (1) to
practice or to have practiced by or for the Government at the facility
and for (2) to transfer such license with the transfer of that
facility. The acceptance or exercise by the Government of the
aforesaid rights and license shall not prevent the Government at any
time from contesting the enforceability, validity, or scope of, or
title to, any rights or patents herein licensed.
I-42 RESERVED
I-43 RIGHTS TO PROPOSAL DATA
WHC and the Government shall have the right to use, duplicate, disclose and
have others do so for any purpose whatsoever, the technical data contained
in the proposal upon which this subcontract is based.
I-44 WORKERS' COMPENSATION
The coverage afforded by the workers' compensation statutes of the State of
Washington (Title 51, Revised Code of Washington) shall, for performance of
work under this subcontract at the Hanford Site, including work
subcontracted, except work performed under certain lump-sum subcontracts as
determined by the Contracting Officer, be subject to the following:
1) Except as provided above and in paragraph (6) below, ICF KH shall be
relieved of all obligation to pay premiums for such coverage, DOE
having agreed, under the terms of a contract with the Department of
Labor and Industries of the State of Washington (herein after called
the "Department") to bear the actual cost of such coverage.
2) ICF KH shall submit to WHC, for transmittal by DOE to the Department,
such payroll records as are required by the said statutes, except as
provided above and in paragraph (6) below.
3) ICF KH shall, for coverage of each individual employer or any member
or officer of any corporate employer provided for by Section 51.32.030
of the Revised Code of Washington, submit to WHC for transmittal by
DOE to the Department the written notice required by that section.
4) ICF KH shall submit to WHC, for transmittal by DOE to the Department,
the accident reports provided for by Section 51.28.010 of the Revised
Code of Washington.
<PAGE>
WHC-380393
Section I, Page 56
5) ICF KH shall take such action, and only such action, as WHC or DOE
requests in connection with any such accident reports, including
assistance in the investigation and disposition of any claim
thereunder and, subject to the direction and control of WHC or DOE,
the conduct of litigation in ICF KH's own name in connection
therewith.
6) ICF KH shall be responsible for making all payments and submitting all
reports required by Title 51, Section 51.32.073, Revised Code of
Washington.
I-45 COST ACCOUNTING STANDARDS (APR 1991)
(a) Unless ICF KH is exempt under 9903.201-1 and 9903.201-2, the
provisions of 9903 are incorporated herein by reference and ICF KH in
connection with this subcontract, shall -
(1) (CAS-covered Contracts Only) By submission of a Disclosure
Statement, disclose in writing ICF KH's cost accounting practices
as required by 9903.202-1 through 9903.202-5 including methods of
distinguishing direct costs from indirect costs and the basis
used for allocating indirect costs. The practices disclosed for
this subcontract shall be the same as the practices currently
disclosed and applied on all other contracts and subcontracts
being performed by ICF KH and which contain a Cost Accounting
Standards (CAS) clause. If ICF KH has notified WHC that the
Disclosure Statement contains trade secrets, and commercial or
financial information which is privileged and confidential, the
Disclosure Statement shall be protected and shall not be released
outside of the Government.
(2) Follow consistently ICF KH's cost accounting practices in
accumulating and reporting subcontract performance cost data
concerning this subcontract. If any change in cost accounting
practices is made for the purposes of any contract or subcontract
subject to CAS requirements, the change must be applied
prospectively to this subcontract and the Disclosure Statement
must be amended accordingly. If the subcontract price or cost
allowance of this subcontract is affected by such changes,
adjustment shall be made in accordance with subparagraph (a)(4)
or (a)(5) of this clause, as appropriate.
(3) Comply with all CAS, including any modifications and
interpretations indicated thereto contained in part 9904, in
effect on the date of award of this subcontract or, if ICF KH has
submitted cost or pricing data, on the date of final agreement on
price as shown on ICF KH's signed certificate
<PAGE>
WHC-380393
Section I, Page 57
of current cost or pricing data. ICF KH shall also comply with
any CAS (or modifications to CAS) which hereafter become
applicable to a contract or subcontract of ICF KH. Such
compliance shall be required prospectively from the date of
applicability to such contract or subcontract.
(4) (i) Agree to an equitable adjustment as provided in the Changes
clause of this subcontract if the subcontract cost is
affected by a change which, pursuant to subparagraph (a)(3)
of this clause, ICF KH is required to make to ICF KH's
established cost accounting practices.
(ii) Negotiate with WHC to determine the terms and conditions
under which a change may be made to a cost accounting
practice, other than a change made under other provisions
of subparagraph (a)(4) of this clause; provided that no
agreement may be made under this provision that will
increase costs paid by the United States.
(iii) When the parties agree to a change to a cost accounting
practice, other than a change under subdivision (a)(4)(i)
of this clause, negotiate an equitable adjustment as
provided in the Changes clause of this subcontract.
(5) Agree to an adjustment of the subcontract price or cost
allowance, as appropriate, if ICF KH or a lower tier
subcontractor fails to comply with an applicable Cost Accounting
Standard, or to follow any cost accounting practice consistently
and such failure results in any increased costs paid by the
United States. Such adjustment shall provide for recovery of the
increased costs to the United States, together with interest
thereon computed at the annual rate established under section
6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621) for
such period, from the time the payment by the United States was
made to the time the adjustment is effected. In no case shall
the Government recover costs greater than the increased cost to
the Government, in the aggregate, on the relevant subcontracts
subject to the price adjustment, unless the Subcontractor made a
change in its cost accounting practices of which it was aware or
should have been aware at the time of price negotiations and
which it failed to disclose to the Government.
<PAGE>
WHC-380393
Section I, Page 58
(b) If the parties fail to agree whether ICF KH or a subcontractor has
complied with an applicable CAS in part 9904 or a CAS rule or
regulation in part 9903 and as to any cost adjustment demanded by the
United States, such failure to agree will constitute a dispute under
the Contract Disputes Act (41 U.S.C. 601).
(c) ICF KH shall permit any authorized representatives of the Government
to examine and make copies of any documents, papers, or records
relating to compliance with the requirements of this clause.
(d) ICF KH shall include in all negotiated subcontracts which ICF KH
enters into, the substance of this clause, except paragraph (b), and
shall require such inclusion in all other subcontracts, of any tier,
including the obligation to comply with all CAS in effect on the
subcontract's award date or if the subcontractor has submitted cost or
pricing data, on the date of final agreement on price as shown on the
subcontractor's signed Certificate of Current Cost or Pricing Data.
This requirement shall apply only to negotiated subcontracts in excess
of $100,000 where the price negotiated is not based on:
(1) Established catalog or market prices of commercial items sold in
substantial quantities to the general public; or
(2) Prices set by law or regulation, and except that the requirement
shall not apply to negotiated subcontracts otherwise exempt from
the requirement to include a CAS clause as specified in 9903.201-
1.
I-46 ADMINISTRATION OF COST ACCOUNTING STANDARDS (SEPT 1987)
For the purpose of administering the Cost Accounting Standards (CAS)
requirements under this subcontract, the Subcontractor shall take the steps
outlined in paragraphs (a) through (f) of this clause:
(a) Submit to the cognizant WHC organization a description of any
accounting change, the potential impact of the change on contracts
containing a CAS clause, and if not obviously immaterial, a general
dollar magnitude cost impact analysis of the change which displays the
potential shift of costs between CAS-covered contracts by contract
type (i.e., firm-fixed-price, incentive, cost-plus-fixed-fee, etc.)
and other Subcontractor business activity. As related to CAS-covered
subcontracts, the analysis should display the potential impact of
funds of the various Agencies/Departments (i.e., Department of Energy,
National Aeronautics and Space Administration, Army, Navy, Air Force,
other Department of Defense, other Government) as follows:
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WHC-380393
Section I, Page 59
(1) For any change in cost accounting practices required to comply
with a new CAS in accordance with subparagraph (a)(3) and
subdivision (a)(4)(i) of the CAS clause, within sixty (60) days
(or such other date as may be mutually agreed to) after award of
a subcontract requiring this change.
(2) For any change in cost accounting practices proposed in
accordance with subdivision (a)(4)(ii) or (a)(4)(iii) of the CAS
clause or with subparagraph (a)(3) of the Disclosure and
Consistency of Cost Accounting Practices clause, not less than
sixty (60) days (or such other date as may be mutually agreed to)
before the effective date of the proposed change.
(3) For any failure to comply with an applicable CAS or to follow a
disclosed practice as contemplated by subparagraph (a)(5) of the
CAS clause or by subparagraph (a)(4) of the Disclosure and
Consistency of Cost Accounting Practices clause, within sixty
(60) days (or such other date as may be mutually agreed to) after
the date of agreement of noncompliance by ICF KH.
(b) Submit a cost impact proposal in the form and manner specified by the
cognizant WHC organization within sixty (60) days (or such other date
as may be mutually agreed to) after the date of determination of the
adequacy and compliance of a change submitted pursuant to paragraph
(a) of this clause. If the cost impact proposal is not submitted
within the specified time, or any extension granted by the cognizant
WHC organization, an amount not to exceed 10 percent of each payment
made after that date may be withheld until such time as a proposal has
been provided in the form and manner specified by the cognizant WHC
organization.
(c) Agree to appropriate contract and subcontract amendments to reflect
adjustments established in accordance with subparagraphs (a)(4) and
(a)(5) of the CAS clause or with subparagraphs (a)(3) or (a)(4) of the
CAS Disclosure and Consistency of Cost Accounting Practices clause.
(d) For all subcontracts subject either to the CAS clause or to the
Disclosure and Consistency of Cost Accounting Practices clause -(1) so
state in the body of the subcontract, in the letter of award, or in
both (self-deleting clauses shall not be used); and (2) include the
substance of this clause in all negotiated subcontracts. In addition,
within thirty (30) days after award of the subcontract, submit the
following information to ICF KH's cognizant contract administration
office for transmittal to the contract administration office cognizant
of the subcontractor's facility:
<PAGE>
WHC-380393
Section I, Page 60
(1) Subcontractor's name and subcontract number.
(2) Dollar amount and date of award.
(3) Name of Subcontractor making the award.
(4) Any changes the subcontractor has made or proposes to make to
accounting practices that affect prime contracts or subcontracts
containing the CAS clause or Disclosure and Consistency of Cost
Accounting Practices clause, unless these changes have already
been reported. If award of the subcontract results in making one
or more CAS effective for the first time, this fact shall also be
reported.
(e) Notify WHC in writing of any adjustments required to subcontracts
under this subcontract and agree to an adjustment, based on them, to
this Subcontractor's price or estimated cost and fee. This notice is
due within thirty (30) days after proposed subcontract adjustments are
received and shall include a proposal for adjusting the higher tier
subcontract or the prime contract appropriately.
(f) For subcontracts containing the CAS clause, require the subcontractor
to comply with all Standards in effect on the date of award or of
final agreement on price, as shown on the subcontractor's signed
Certificate of Current Cost or Pricing Data, whichever is earlier.
I-47 LIABILITY WITH RESPECT TO "COST ACCOUNTING STANDARDS"
(a) ICF KH is not liable to WHC for increased costs or interest resulting
from its failure to comply with the clauses of this subcontract
entitled "Cost Accounting Standards" and "Administration of Cost
Accounting Standards" if its failure to comply with the clauses is
caused by ICF KH's compliance with DOE accounting practices and
procedures.
(b) ICF KH is not liable to WHC for increased costs or interest resulting
from its subcontractors' failure to comply with the clauses at FAR
52.230-2, "Cost Accounting Standards," and FAR 52.230-5,
"Administration of Cost Accounting Standards," if (1) ICF KH includes
each covered subcontract a clause making the subcontractor liable to
the WHC for increased costs or interest resulting from the
subcontractor's failure to comply with clauses; and (2) ICF KH seeks
the subcontract price adjustment and cooperates with WHC in WHC's
attempts to recover from the subcontractor.
<PAGE>
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Section I, Page 61
I-48 DISPUTES
(a) It is the intent of the parties to resolve all problems or
disagreements at the lowest level practicable. If it cannot be
resolved, it shall be referred through the respective management chain
to the President of WHC and the President of ICF KH for appropriate
consideration and resolution. If, after due consideration by them the
problem is not resolved, either may refer the problem to the Board of
Directors, WHC. Alternative disputes resolution measures including
arbitration, mediation, etc., should be considered carefully prior to
elevating the problem or initiation of judicial proceeding.
(b) Except as otherwise provided or agreed, any dispute relating to this
subcontract which is not disposed of by agreement shall be decided by
litigation in a court of competent jurisdiction upon filing of a legal
action by the aggrieved party. It is further agreed by ICF KH that
litigation shall be limited and confined exclusively to the
appropriate State or Federal court located within the State of
Washington. Determination of any substantive issue of law shall be
based upon application of federal law. During the pendency of any
dispute, ICF KH shall proceed diligently with the performance of the
subcontract, and in accordance with the direction of WHC.
I-49 PROTEST AFTER AWARD. (AUG 1989) --ALTERNATE I (JUN 1985)
(a) Upon receipt of a notice of protest (as defined in 33.101 of the FAR)
WHC may, by written order to ICF KH, direct ICF KH to stop performance
of the work called for by this subcontract. The order shall be
specifically identified as a stop-work order issued under this clause.
Upon receipt of the order, ICF KH 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, WHC
shall either -
(1) Cancel the stop-work order; or
(2) Terminate the work covered by the order as provided in the
Termination clause of this subcontract.
(b) If a stop-work order issued under this clause is canceled either
before or after a final decision in the protest, ICF KH shall resume
work. WHC shall make an equitable adjustment in the delivery
schedule, the estimated cost, the fee, or a combination thereof, and
in any other terms of the subcontract that may be affected, and the
subcontract shall be modified, in writing, accordingly, if -
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(1) The stop-work order results in an increase in the time required
for, or in ICF KH's cost properly allocable to, the performance
of any part of this subcontract; and
(2) ICF KH asserts its right to an adjustment within 30 days after
the end of the period of work stoppage; provided, that if WHC
decides the facts justify the action, WHC may receive and act
upon a proposal submitted at any time before final payment under
this subcontract.
(c) If a stop-work order is not canceled and the work covered by the order
is terminated for the convenience of WHC, WHC 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, WHC shall allow, by equitable adjustment or
otherwise, reasonable costs resulting from the stop-work order.
(e) WHC's rights to terminate this subcontract at any time are not
affected by action taken under this clause.
I-50 CONTINUITY OF SERVICES (JAN 1991)
(a) ICF KH recognizes that the services under this subcontract are vital
to the Government and must be continued without interruption and that,
upon subcontract expiration, a successor, either the Government or
another subcontractor, may continue them. ICF KH agrees to (1)
furnish phase-in training and (2) exercise its best efforts and
cooperation to effect an orderly and efficient transition to a
successor.
(b) ICF KH shall, upon WHC's written notice, (1) furnish phase-in, phase-
out services for up to ninety (90) days after this subcontract expires
and (2) negotiate in good faith a plan with a successor to determine
the nature and extent of phase-in, phase-out services required. The
plan shall specify a training program and a date for transferring
responsibilities for each division of work described in the plan, and
shall be subject to WHC's approval. ICF KH shall provide sufficient
experienced personnel during the phase-in, phase-out period to ensure
that the services called for by this subcontract are maintained at the
required level of proficiency.
(c) ICF KH shall allow as many personnel as practicable to remain on the
job to help the successor maintain the continuity and consistency of
the services required by this subcontract. ICF KH also shall disclose
necessary personnel records and allow the
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successor to conduct onsite interviews with these employees. If
selected employees are agreeable to the change, ICF KH shall release
them at a mutually agreeable date and negotiate transfer of their
earned fringe benefits to the successor.
(d) ICF KH shall be reimbursed for all reasonable phase-in, phase-out
costs (i.e., costs incurred within the agreed period after subcontract
expiration that result from phase-in, phase-out operations) and a fee
(profit) not to exceed a pro rata portion of the fee (profit) under
this subcontract.
I-51 NOTICE OF INTENT TO DISALLOW COSTS (APR 1984)
(a) Notwithstanding any other clause of this subcontract -
(1) WHC may at any time issue to ICF KH a written notice of intent to
disallow specified costs incurred or planned for incurrence under
this subcontract that have been determined not to be allowable
under the subcontract terms; and
(2) ICF KH may, after receiving a notice under subparagraph (1)
above, submit a written response to WHC, with justification for
allowance of the costs. If ICF KH does respond within 60 days,
WHC shall, within 60 days of receiving the response, either make
a written withdrawal of the notice or issue a written decision.
(b) Failure to issue a notice under this Notice of Intent to Disallow
Costs clause shall not affect WHC's or the Government's rights to take
exception to incurred costs.
I-52 COMPETITION IN SUBCONTRACTING (APR 1984)
ICF KH shall select subcontractors (including suppliers) on a competitive
basis to the maximum practical extent consistent with the objectives and
requirements of the subcontract.
I-53 LIMITATION OF LIABILITY-SERVICES (APR 1984)
(a) Except as provided in paragraphs (b) and (c) below, and except to the
extent that ICF KH is expressly responsible under this subcontract for
deficiencies in the services required to be performed under it
(including any materials furnished in conjunction with those
services), ICF KH shall not be liable for loss of or damage to
property of the Government or WHC that (1) occurs after WHC acceptance
of services performed under this subcontract and (2) results from any
defects or deficiencies in the services performed or materials
furnished.
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(b) The limitation of liability under paragraph (a) above shall not apply
when a defect or deficiency in, or the Government's acceptance of,
services performed or materials furnished results from willful
misconduct or lack of good faith on the part of any of the
Subcontractor managerial personnel. The term "Subcontractor's
managerial personnel," as used in this clause is defined in clause
H-36, Subcontractor's Managerial Personnel.
(c) If ICF KH carries insurance, or has established a reserve for self-
insurance, covering liability for loss or damage suffered by WHC or by
the Government through ICF KH's performance of services or furnishing
of materials under this subcontract, ICF KH shall be liable to WHC or
the Government, to the extent of such insurance or reserve, for loss
of or damage to property of the Government or WHC occurring after WHC
acceptance of, and resulting from any defects and deficiencies in,
services performed or materials furnished under this subcontract.
(d) ICF KH shall include this clause, including this paragraph (d),
supplemented as necessary to reflect the relationship of the
contracting parties, in all lower-tier subcontracts over $25,000.
I-54 PREFERENCE FOR U. S. - FLAG AIR CARRIERS (APR 1984)
(a) "International air transportation," as used in this clause, means
transportation by air between a place in the United States and a place
outside the United States or between two places both of which are
outside the United States.
"United States," as used in this clause, means the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, and possessions
of the United States.
"U.S.-Flag air carrier," as used in this clause, means an air carrier
holding a certificate under section 401 of the Federal Aviation Act of
1958 (49 U.S.C. 1371).
(b) Section 5 of the International Air Transportation Fair Competitive
Practices Act of 1974 (40 U.S.C. 1517) (Fly American Act) requires
that all Federal agencies and Government contractors and
subcontractors use U.S.-flag air carriers for U.S. Government-financed
international air transportation of personnel (and their personal
effects) or property, to the extent that service by those carriers is
available. It requires the Comptroller General of the United States,
in the absence of satisfactory proof of the necessity for foreign-flag
air transportation, to disallow expenditures from funds, appropriated
or otherwise established for the account of the United States, for
international air
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transportation secured aboard a foreign-flag air carrier if a U.S.-
flag air carrier is available to provide such services.
(c) ICF KH agrees, in performing work under this subcontract, to use U.S.-
flag air carriers for international air transportation of personnel
(and their personal effects) or property to the extent that service by
those carriers is available.
(d) In the event that ICF KH selects a carrier other than a U.S.-flag air
carrier for international air transportation, ICF KH shall include a
certification on vouchers involving such transportation essentially as
follows:
CERTIFICATION OF UNAVAILABILITY OF U.S.-FLAG AIR CARRIERS
I hereby certify that international air transportation of persons (and
their personal effects) or property by U.S.-flag air carrier was not
available or it was necessary to use foreign-flag air carrier service
for the following reasons (see section 47.403 of the Federal
Acquisition Regulation): [State reasons]:___________
_________________________________________________________________
_________________________________________________________________
(e) ICF KH shall include the substance of this clause, including this
paragraph (e), in each of its lower-tier subcontracts or purchases
under this subcontract that may involve international air
transportation.
I-55 PREFERENCE FOR PRIVATELY OWNED U.S. FLAG COMMERCIAL VESSELS (APR 1984)
(a) The Cargo Preference Act of 1954 (46 U.S.C. 1241(b)), requires that
Federal departments and agencies shall transport in privately owned
U.S.-flag commercial vessels at least 50 percent of the gross tonnage
of equipment, materials, or commodities that may be transported in
ocean vessels (computed separately for dry bulk carriers, dry cargo
liners, and tankers). Such transportation shall be accomplished when
any equipment, materials, or commodities, located within or outside
the United States, that may be transported by ocean vessel are --
(1) Acquired for a U.S. Government agency account;
(2) Furnished to or for the account of, any foreign nation without
provision for reimbursement.
(3) Furnished for the account of a foreign nation in connection with
which the United States advances funds or credits, or guarantees
that convertability of foreign currencies; or
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(4) Acquired with advance of funds, loans,or guarantees made by or on
behalf of the United States.
(b) ICF KH shall use privately owned United States-flag commercial vessels
to ship at least 50 percent of the gross tonnage involved under this
subcontract (computed separately for dry bulk carriers, dry cargo
liners, and tankers) whenever shipping any equipment, material, or
commodities under the conditions set forth in paragraph (a) above, to
the extent such vessels are available at rates that are fair and
reasonable for privately owned United States-flag commercial vessels.
(c) (1) ICF KH shall submit to WHC one legible copy of a rated on-board
ocean bill of lading for each shipment.
(2) ICF KH shall furnish these bill of lading copies (i) within 20
working days of the date of loading for shipment originating in
the United States, or (ii) within 30 working days for shipments
originating outside the United States. Each bill of lading copy
shall contain the following information:
(A) Sponsoring U. S. Government agency
(B) Name of vessel
(C) Vessel flag of registry
(D) Date of loading
(E) Port of loading
(F) Port of final discharge
(G) Description of commodity
(H) Gross weight in pounds and cubic feet if available
(I) Total ocean freight revenue in U.S. dollars
(d) Except for small purchases as described in 48 CFR 13, ICF KH shall
insert the substance of this article, including this paragraph (d), in
all lower-tier subcontracts or purchase orders under this subcontract.
(e) The requirement in paragraph (a) does not apply to --
(1) Small purchases as defined in 48 CFR 13;
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(2) Cargoes carried in vessels of the Panama Canal Commission or as
required or authorized by law or treaty;
(3) Ocean transportation between foreign countries of supplies
purchased with foreign currencies made available, or derived from
funds that are made available, under the Foreign Assistance Act
of 1961 (22 U.S.C. 2353); and
(4) Shipments of classified supplies when the classification
prohibits the use of non-Government vessels.
(f) Guidance regarding fair and reasonable rates for privately owned U.S.-
flag commercial vessels may be obtained from the Division of National
Cargo, Office of Market Development, Maritime Administration, U.S.
Department of Transportation, Washington DC 20590, phone (202) 426-
4610.
I-56 FOREIGN TRAVEL (APR 1984)
(a) Foreign travel, when charged directly, shall be subject to the prior
approval of WHC for each separate trip regardless of whether funds for
such travel are contained in an approved budget. Foreign travel is
defined as any travel outside of Canada and the United States and its
territories and possessions.
(b) Request for approval shall be submitted at least 60 days prior to the
planned departure date, be on a Request for Approval of Foreign Travel
form, and when applicable, include a notification of proposed Soviet-
bloc travel.
I-57 DELETED
I-58 NUCLEAR HAZARDS INDEMNITY AGREEMENT. (NOV 1991)
(a) Authority.
This clause is incorporated into this subcontract pursuant to the
authority contained in subsection 170d. of the Atomic Energy Act of
1954, as amended (hereinafter called the Act.)
(b) Definitions.
The definitions set out in the Act shall apply to this clause.
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(c) Financial protection.
Except as hereafter permitted or required in writing by WHC, ICF KH
will not be required to provide or maintain, and will not provide or
maintain at WHC expense, any form of financial protection to cover
public liability, as described in paragraph (d)(2) below. WHC may,
however, at any time require in writing that ICF KH provide and
maintain financial protection of such a type and in such amount as WHC
shall determine to be appropriate to cover such public liability,
provided that the costs of such financial protection are reimbursed to
ICF KH by WHC.
(d) Indemnification.
(1) To the extent that ICF KH and other persons indemnified are not
compensated by any financial protection permitted or required by
DOE, DOE will indemnify WHC, and in turn selected subcontractor,
such as ICF KH and other persons indemnified against (i) claims
for public liability as described in subparagraph (d)(2) of this
clause; and (ii) such legal costs of ICF KH and other persons
indemnified as are approved by WHC, provided that WHC's
liability, including such legal costs, shall not exceed the
amount set forth in section 170e.(1)(B) of the Act in the
aggregate for each nuclear incident or precautionary evacuation
occurring within the United States or $100 million in the
aggregate for each nuclear incident occurring outside the United
States, irrespective of the number of persons indemnified in
connection with this subcontract.
(2) The public liability referred to in subparagraph (d)(1) of this
clause is public liability as defined in the Act which (i) arises
out of or in connection with the activities under this
subcontract, including transportation; and (ii) arises out of or
results from a nuclear incident or precautionary evacuation, as
those terms are defined in the Act.
(e) Waiver of Defenses.
(1) In the event of a nuclear incident, as defined in the Act,
arising out of nuclear waste activities, as defined in the Act,
ICF KH, on behalf of itself and other persons indemnified, agrees
to waive any issue or defense as to charitable or governmental
immunity.
(2) In the event of an extraordinary nuclear occurrence which:
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Section I, Page 69
(i) Arises out of, results from, or occurs in the course of the
construction, possession, or operation of a production or
utilization facility; or
(ii) Arises out of, results from, or occurs in the course of
transportation of source material, by-product material, or
special nuclear material to or from a production or
utilization facility; or
(iii) Arises out of or results from the possession,
operation, or use by ICF KH or a subcontractor of a device
utilizing special nuclear material or by-product material,
during the course of the subcontract activity; or
(iv) Arises out of, results from, or occurs in the course of
nuclear waste activities, ICF KH, on behalf of itself and
other persons indemnified, agrees to waive:
(A) Any issue or defense as to the conduct of the claimant
(including the conduct of persons through whom the
claimant derives its cause of action) or fault of
persons indemnified, including, but not limited to:
1. Negligence;
2. Contributory negligence;
3. Assumption of risk; or
4. Unforeseeable intervening causes, whether
involving the conduct of a third person or an act
of God;
(B) Any issue or defense as to charitable or governmental
immunity; and
(C) Any issue or defense based on any statute of
limitations, if suit is instituted within 3 years from
the date on which the claimant first knew, or
reasonably could have know, of his injury or change
and the cause thereof. The waiver of any such issue or
defense shall be effective regardless of whether such
issue or defense may otherwise be deemed
jurisdictional or relating to an element in the cause
of action. The waiver shall be judicially enforceable
in accordance with its terms by the claimant against
the person indemnified.
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(v) The term "extraordinary nuclear occurrence" means an event
which WHC has determined to be an extraordinary nuclear
occurrence as defined in the Act. A determination of
whether or not there has been an extraordinary nuclear
occurrence will be made in accordance with the procedures
in 10 CFR part 840.
(vi) For the purposes of that determination, "offsite" as that
term is used in 10 CFR part 840 means away from "the
subcontract location" which phrase means any WHC facility,
installation, or site at which subcontractual activity
under this subcontract is being carried on, and any
subcontractor-owned or controlled facility, installation,
or site at which ICF KH is engaged in the performance of
subcontractual activity under this subcontract.
(3) The waivers set forth above:
(i) Shall be effective regardless of whether such issue or
defense may otherwise be deemed jurisdictional or relating
to an element in the clause of action;
(ii) Shall be judicially enforceable in accordance with its
terms by the claimant against the person indemnified;
(iii) Shall not preclude a defense based upon a failure to take
reasonable steps to mitigate damages;
(iv) Shall not apply to injury or damage to a claimant or to a
claimant's property which is intentionally sustained by the
claimant or which results from a nuclear incident
intentionally and wrongfully caused by the claimant;
(v) Shall not apply to injury to a claimant who is employed at
the site of and in connection with the activity where the
extraordinary nuclear occurrence takes place, if benefits
therefor are either payable or required to be provided
under any workmen's compensation or occupational disease
law;
(vi) Shall not apply to any claim resulting from a nuclear
incident occurring outside the United States;
(vii) Shall be effective only with respect to those obligations
set forth in this clause and in insurance policies,
subcontracts or other proof of financial protection; and
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(viii) Shall not apply to, or prejudice the prosecution or defense
of, any claim or portion of claim which is not within the
protection afforded under (A) the limit of liability
provisions under subsection 170e. of the Act, and (B) the
terms of this agreement and the terms of insurance
policies, subcontracts, or other proof of financial
protection.
(f) Notification and litigation of claims.
ICF KH shall give immediate written notice to WHC of any known action
or claim filed or made against ICF KH or other person indemnified for
public liability as defined in paragraph (d)(2). Except as otherwise
directed by WHC, ICF KH shall furnish promptly to WHC, copies of all
pertinent papers received by ICF KH or filed with respect to such
actions or claims. WHC shall have the right to, and may collaborate
with, ICF KH and any other person indemnified in the settlement or
defense of any action or claim and shall have the right to (1) require
the prior approval of WHC for the payment of any claim that WHC be
required to indemnify hereunder; and (2) appear through the Attorney
General on behalf of ICF KH or other person indemnified in any action
brought upon any claim that WHC may be required to indemnify
hereunder; take charge of such action, and settle or defend any such
action. If the settlement or defense of any such action or claim is
undertaken by WHC, ICF KH or other person indemnified shall furnish
all reasonable assistance in effecting a settlement or asserting a
defense.
(g) Continuity of WHC obligations.
The obligations of WHC under this clause shall not be affected by any
failure on the part of ICF KH to fulfill its obligation under this
subcontract and shall be unaffected by the death, disability, or
termination of existence of ICF KH, or by the completion, termination
or expiration of this subcontract.
(h) Effect of other clauses.
The provisions of this clause shall not be limited in any way by, and
shall be interpreted without reference to any, other clause of this
subcontract, including the clause entitled subcontract Disputes
provided, however, that this clause shall be subject to the clauses
entitled Covenant Against Contingent Fees, Officials Not to Benefit,
and Examination of Records by the Comptroller General, and any
provisions that are later added to this subcontract as required by
applicable Federal law, including statutes, executive orders and
regulations, to be included in Nuclear Hazards Indemnity Agreements.
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(i) Civil penalties.
ICF KH and its subcontractors and suppliers who are indemnified under
the provisions of this clause are subject to civil penalties, pursuant
to 234A of the Act, for violations of applicable WHC nuclear-safety
related rules, regulations, or orders.
(j) Criminal penalties.
Any individual director, officer, or employee of ICF KH or of its
subcontractors and suppliers who are indemnified under the provisions
of this clause are subject to criminal penalties, pursuant to 223(c)
of the Act, for knowing and willful violation of the Atomic Energy Act
of 1954, as amended, and applicable WHC nuclear safety-related rules,
regulations or orders which violation results in, or, if undetected,
would have resulted in a nuclear incident.
(k) Inclusion in subcontracts.
ICF KH shall insert this clause in any subcontract which may involve
the risk of public liability, as the term is defined in the Act and
further described in paragraph (d)(2) above. However, this clause
shall not be included in subcontracts in which ICF KH is subject to
Nuclear Regulatory Commission (NRC) financial protection requirements
under section 170b. of the Act or NRC agreements of indemnification
under section 170c. or k. of the Act for the activities under the
subcontract.
I-59 GOVERNMENT SUPPLY SOURCES (APR 1984)
WHC may issue ICF KH an authorization to use Government supply sources in
the performance of this subcontract. Title to all property acquired by ICF
KH under such an authorization shall vest in the Government unless
otherwise specified in the subcontract. Such property shall not be
considered to be "Government-furnished property," as distinguished from
"Government Property."
I-60 INTERAGENCY FLEET MANAGEMENT SYSTEM VEHICLES AND RELATED SERVICES.
(JAN 1991)
WHC may issue ICF KH an authorization to obtain interagency fleet
management system vehicles and related services for use in the performance
of this subcontract. The use, service, and maintenance of interagency
motor pool vehicles and the use of related services by ICF KH shall be in
accordance with 41 CFR 101-39 and 41 CFR 101-38.301-1.
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I-61 DELETED
I-62 ACCOUNTS, RECORDS, AND INSPECTION (FEB 1993 REVISED)
(a) Accounts.
As set forth in Section H, clause H-9, ICF KH shall maintain a
separate and distinct set of accounts, records, documents, and other
evidence showing and supporting (1) all allowable costs incurred, (2)
collections accruing to ICF KH in connection with the work under this
subcontract, other applicable credits, and fee accruals under this
subcontract, and (3) the receipt, use, and disposition of all
Government property coming into the possession of ICF KH under this
subcontract. The system of accounts employed by ICF KH shall be
satisfactory to DOE and in accordance with generally accepted
accounting principles consistently applied.
(b) Inspection and audit of accounts and records.
All books of account and records relating to this subcontract shall be
subject to inspection and audit by DOE or its authorized
representative at all reasonable times, before and during the period
of retention provided for in (d) below, and ICF KH shall afford DOE
proper facilities for such inspection and audit.
(c) Audit of subcontractors' records.
ICF KH also agrees, with respect to any subcontracts (including fixed-
price or unit-price subcontracts or purchase orders) where, under the
terms of the subcontract, costs incurred are a factor in determining
the amount payable to the subcontractor of any tier, to either conduct
an audit of the subcontractor's costs or arrange for such an audit to
be performed by the cognizant government audit agency through WHC.
(d) Disposition of records.
Except as agreed upon by WHC and ICF KH, all financial and cost
reports, books of account and supporting documents, system files,
databases, and other data evidencing costs allowable, collections
accruing to ICF KH in connection with the work under this subcontract,
other applicable credits, and fee accruals under this subcontract,
shall be the property of WHC, and shall be delivered to WHC or
otherwise disposed of by ICF KH either as WHC may from time to time
direct during the progress of the work or, in any event, as WHC shall
direct upon completion or termination of this subcontract and final
audit of accounts hereunder. Except as provided in this subcontract,
all other records in the possession of ICF KH relating to this
contract shall be preserved by ICF KH
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for a period of three (3) years after final payment under this
subcontract or otherwise disposed of in such manner as may be agreed
upon by WHC and ICF KH.
(e) Reports.
ICF KH shall furnish such progress reports and schedules, financial
and cost reports, and other reports concerning the work under this
subcontract as WHC may from time to time require.
(f) Inspections.
WHC shall have the right to inspect the work and activities of ICF KH
under this subcontract at such times in such manner as it shall deem
appropriate.
(g) Subcontracts.
ICF KH further agrees to require the inclusion of provisions similar
to those in paragraphs (a) through this paragraph (g) of this clause
in all subcontracts (including fixed-price of unit-price subcontracts
or purchase orders) of any tier entered into hereunder where, under
the terms of the subcontract, costs incurred are a factor in
determining the amount payable to the subcontractor.
(h) Internal audit.
ICF KH agrees to conduct an internal audit and examination
satisfactory to WHC of the records, operations, expenses, and the
transactions with respect to costs claimed to be allowable under this
subcontract annually and at such other times as may be mutually agreed
upon. The results of such audit, including the working papers, shall
be submitted or made available to WHC.
I-63 CHANGES (APR 1984)
(a) Changes and adjustment of fee.
WHC may at any time and without notice to the sureties, if any, issue
written directions within the general scope of this subcontract
requiring additional work or directing the omission of, or variation
in, work covered by this subcontract. If any such direction results
in a material increase or decrease in the level of ICF KH's management
effort an equitable adjustment of the fee, if any, shall be made in
accordance with the agreement of the parties and the subcontract shall
be modified in writing accordingly. Any claim by ICF KH for an
adjustment under this clause must be asserted in writing within thirty
(30) days from
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the date of receipt by ICF KH of the notification of change; provided,
however, that WHC, if it decides that the facts justify such action,
may receive and act upon any such claim asserted at any time prior to
final payment under this subcontract. A failure to agree on an
equitable adjustment under this clause shall be deemed to be a dispute
within the meaning of the clause entitled "Disputes."
(b) Work to continue.
Nothing contained in this clause shall excuse ICF KH from proceeding
with the prosecution of the work in accordance with the requirements
of any direction hereunder.
(c) ICF KH shall not be entitled to an equitable adjustment under this
clause for changes issued under any other Changes clause of this
subcontract.
I-64 CONTRACTOR'S ORGANIZATION (APR 1984)
(a) Organization chart.
As promptly as possible after the execution of this subcontract, ICF
KH shall furnish to WHC a chart showing the names, duties, and
organization of management personnel to be employed in connection with
the work, and shall furnish from time to time supplementary
information reflecting changes therein.
(b) Supervisory representative of ICF KH.
Unless otherwise directed by WHC, a competent full-time resident
supervisory representative of ICF KH satisfactory to WHC shall be in
charge of the work at the site at all times. This also applies to
offsite work.
c) ICF KH shall be responsible for maintaining satisfactory standards of
employee competency, conduct, and integrity and shall be responsible
for taking such disciplinary action with respect to its employees as
may be necessary. ICF KH shall establish such standards and
procedures as are necessary to implement effectively the provisions
set forth in DEAR Section 970.2272, and such standards and procedures
shall be subject to the approval of WHC.
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I-65 ALLOWABLE COSTS, BASE FEE, AND AWARD FEE and INCENTIVE FEES
(a) (Modified) Compensation for Subcontractor's services
Payment for the allowable costs as hereinafter defined, and of the
fees, if any, as hereinafter provided, shall constitute full and
complete compensation for the performance of the work under this
subcontract.
(b) (Modified) Fee
The fees that may be payable, in accordance with other provisions of
the subcontract for the performance of work authorized under this
subcontract shall be comprised of base fee, award fee, and multiple
incentive fees. The available fee during each fiscal year is set for
in Section H of the Schedule. The amount of fees actually to be paid
to ICF KH shall be determined in accordance with the subcontract
clause in Section H. There shall be no adjustment in the amount of
ICF KH's base fee by reason of differences between and estimate of
cost for performance of the work under this subcontract and the actual
costs for the performance of work.
(c) Allowable costs. (DEVIATION)
The allowable cost of performing the work under this subcontract shall
be the costs and expenses that are actually incurred by ICF KH in the
performance of the subcontract work in accordance with its terms, that
are necessary or incident thereto, and are determined to be allowable
pursuant to this paragraph (c). The determination of the allowability
of cost hereunder shall be based on:
(1) Reasonableness, including the exercise of prudent business
judgment;
(2) Consistent application of generally accepted accounting
principles and practices that result in equitable charges to the
subcontract work; and
(3) Recognition of all exclusions and limitations set forth in this
clause or elsewhere in this subcontract as to types, amounts, or
allocability of items of cost. Allowable costs shall not include
the cost of any item described as unallowable in paragraph (e) of
this clause except as indicated therein. Failure to mention an
item of cost specifically in paragraph (d) or paragraph (e) shall
not imply either that it is allowable or that it is unallowable.
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(d) Items of allowable cost.
Subject to the other provisions of this clause, the following items of
cost of work done under this subcontract shall be allowable to the
extent indicated:
(1) (MODIFIED) Bonds and insurance, including self-insurance, as
provided in the clause entitled "Insurance - Litigation and
Claims."
(2) Communication costs, including telephone services, local and
long-distance calls, telegrams, cablegrams, postage, and similar
items.
(3) Consulting services (including legal and accounting), and related
expenses, as approved by WHC, except as made unallowable by
paragraphs (e)(16) and (e)(26).
(4) Except as provided in the clause of this contract entitled DEAR
970.5204-61, "Cost Prohibitions Related to Legal and Other
Proceedings," litigation expenses, including reasonable counsel
fees, incurred in accordance with the clause of the contract
entitled "Insurance-Litigations and Claims."
(5) Losses and expenses (including settlements made with the consent
of WHC) sustained by ICF KH in the performance of this
subcontract and certified in writing by WHC to be reasonable,
except the losses and expenses expressly made unallowable under
other provisions of this subcontract.
(6) Materials, supplies, and equipment, including freight
transportation, material handling, inspection, storage, salvage,
and other usual expenses incident to the procurement, use and
disposition thereof, subject to approvals required under other
provisions of this subcontract.
(7) Patents, purchased design, and royalty payments to the extent
expressly provided for under other provisions in this subcontract
or as approved by WHC, and preparation of invention disclosures,
reports and related documents, and searching the art to the
extent necessary to make such invention disclosures in accordance
with any "Patent Rights" clause of this subcontract.
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Section I, Page 78
(8) Personnel costs and related expenses incurred in accordance with
the personnel appendix which is hereby incorporated by reference
and made a part of this subcontract. It is specifically
understood and agreed that said personnel appendix sets forth in
detail personnel costs and related expenses to be allowable under
this subcontract and is intended to document those personnel
policies, practices and plans which have been found acceptable by
WHC. It is further understood and agreed that ICF KH will advise
WHC of any proposed changes in any matters covered by said
policies, practices or plans which relate to this item of cost,
and that the personnel appendix may be modified from time-to-time
in writing by mutual agreement of ICF KH and WHC without
execution of an amendment to this subcontract for the purpose of
effectuating any such changes in, or additions to, the personnel
appendix as may be agreed upon by the parties. Such
modifications shall be evidenced by execution of written numbered
approval letters from WHC or its representative. Types of
personnel costs and related expenses to be incorporated into the
personnel appendix, or amendments thereto, are as follows:
(i) Salaries and wages; bonuses and incentive compensation;
overtime, shift differential, holiday, and other premium pay
for time worked; nonwork time, including vacations,
holidays, sick, funeral, military, jury, witness, and voting
leave; salaries and wages to employees in their capacity as
union stewards and committeemen for time spent in handling
grievances, or serving on labor management (subcontractor)
committees, provided, however, that WHC's approval is
required in each instance of total compensation to an
individual employee at an annual rate of $80,000 or more,
when it is proposed that a total of 50 percent or more of
such compensation be reimbursed under cost-type
subcontracts. Total compensation, as used here, includes
only the employee's base salary, bonus, and incentive
compensation payments;
(ii) Legally required contributions to old-age and survivors'
insurance, unemployment compensation plans, and workers
compensation plans, (whether or not covered by insurance);
voluntary or agree-upon plans providing benefits for
retirement, separation, life insurance, hospitalization,
medical-surgical and unemployment (whether or not such plans
are covered by insurance);
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(iii) Travel (except foreign travel, which requires specific
approval by DOE on a case-by-case basis); incidental
subsistence and other allowances of ICF KH employees, in
connection with performance of work under this subcontract
(including new employees reporting for work and transfer of
employees, the transfer of their household goods and
effects and the travel and subsistence of their
dependents);
(iv) Employee relations, welfare, morale, etc.; programs
including incentive or suggestion awards; employee
counseling services, health or first-aid clinics; house or
employee publications;
(v) Personnel training (except special education and training
courses and research assignments calling for attendance at
educational institutions which require specific approval by
WHC on a case-by-case basis); including apprenticeship
training programs designed to improve efficiency and
productivity of subcontract operations, to develop needed
skills, and to develop scientific and technical personnel
in specialized fields required in the subcontract work;
(vi) Recruitment of personnel (including help-wanted
advertisement), including service of employment agencies at
rates not in excess of standard commercial rates,
employment office, travel of prospective employees at the
request of ICF KH for employment interviews; and
(vii) Net cost of operating plant-site cafeteria, dining rooms,
and canteens attributable to the performance of the
subcontract.
(9) Repairs, maintenance, inspection, replacement, and disposal of
Government-owned property and the restoration or cleanup of site
and facilities to the extent directed or approved by WHC and as
allowable under subparagraph (f) of the clause of this
subcontract entitled Property.
(10) Subcontracts and purchase orders, including procurements from ICF
KH-controlled sources, subject to approvals required by other
provisions of this subcontract.
(11) Subscriptions to trade, business, technical, and professional
periodicals, as approved by WHC.
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(12) Taxes, fees, and charges levied by public agencies which ICF KH
is required by law to pay, except those which are expressly made
unallowable under other provisions of this subcontract.
(13) Utility services, including electricity, gas, water, and
sewerage.
(14) Indemnification of the Pension Benefit Guaranty Corporation,
pursuant to the Employee Retirement Income Security Act of 1974,
in accordance with FAR 31.205-6(j)(3)(iv).
(15) Establishment and maintenance of bank accounts in connection with
the work hereunder, including, but not limited to, service
charges, the cost of disbursing cash, necessary guards, cashiers,
and paymasters. If payments are made by check, facilities and
arrangements for cashing checks may be provided without expense
to the employees, subject to the approval of WHC.
(16) Camp operations, to the extent approved by WHC.
(17) Maintenance, inspection, repair, replacement, and transportation
of construction plant and equipment to the extent not covered by
rentals or insurance and as provided in rental agreements
approved by WHC.
(18) Rental for (i) construction plant and equipment rented by ICF KH
from others at rates and underwritten agreements approved by WHC,
and (ii) construction plant and equipment owned and furnished by
ICF KH under this subcontract.
(19) All costs incurred by the ICF KH related to environmental
activities, including costs incurred with respect to
investigation, removal, redial action, ground and surface water
or other clean-up of hazardous, toxic or contaminated
material(s), except for those costs made unallowable by other
provisions of this subcontract.
(e) Items of unallowable costs.
The following items of costs are unallowable under this subcontract to
the extent indicated:
(1) Advertising and public relations costs designed to promote ICF KH
or its products, including the costs of promotional items and
memorabilia such as models, gifts and souvenirs, and the cost of
memberships in civic and community
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Section I, Page 81
organizations; except those advertising and public relations
costs:
(i) Specifically required by the subcontract;
(ii) Approved in advance by WHC as clearly in furtherance of
work performed under the subcontract;
(iii) That arise from requirements of the subcontract and that
are exclusively for recruiting personnel, acquiring scarce
items for subcontract performance, disposing of scrap or
surplus materials, the transfer of federally owned or
originated technology to state and local governments and to
the private sector, or acquisition of subcontract-required
supplies and services; or
(iv) Where the primary purpose of the activity is to facilitate
ICF KH performance in support of the WHC mission.
(2) Bad debts (including expenses of collection) and provisions for
bad debts arising out of other business of ICF KH.
(3) Proposal expenses and costs of proposals.
(4) Bonuses and similar compensation under any other name, which:
(i) Are not pursuant to an agreement between ICF KH and
employee prior to the rendering of the services or an
established plan consistently followed by the subcontract;
(ii) Are in excess of those costs which are allowable by the
Internal Revenue Code and regulations thereunder; or
(iii) Provide total compensation to an employee in excess of
reasonable compensation for the services rendered.
(5) Central and branch office expenses of ICF KH, except as
specifically set forth in the subcontract.
(6) Commissions, bonuses, and fees (under whatever name) in
connection with obtaining or negotiating for a WHC subcontract or
a modification thereto, except when paid to bona fide employees
or bona fide established selling
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WHC-380393
Section I, Page 82
organizations maintained by ICF KH for the purpose of obtaining
WHC business.
(7) Contingency reserves, provisions for.
(8) Contributions and donations, including cash, subcontractor-owned
property and services, regardless of the recipient.
(9) Depreciation in excess of that calculated by application of
methods approved for use by the Internal Revenue Code of 1954, as
amended, including the straight-line declining balance (using a
rate not exceeding twice the rate which would have been used had
the depreciation been computed under the straight-line method),
or sum-of-the-years digits method, on the basis of expected
useful life, to the cost of acquisition of the related fixed
assets less estimated salvage or residual value at the end of the
expected useful life.
(10) Dividend provisions or payments and, in the case of sole
proprietors and partners, distributions of profit.
(11) Entertainment including costs of amusement, diversion, social
activities; and directly associated costs, such as tickets to
shows or sports events, meals, lodging, rentals, transportation,
and gratuities; costs of membership in any social, dining or
country club or organization, except the costs of such
recreational activities for onsite employees as may be approved
by WHC or provided for elsewhere in the subcontract.
(12) (DEVIATION) Fines and penalties; unless with respect to civil
fines and penalties only, ICF KH demonstrates to WHC:
(i) They are incurred as a result of compliance with specific
terms and conditions of the subcontract or written
instructions from WHC; or
(ii) They were imposed without regard to whether ICF KH was at
fault or exercised due care and could not have been avoided
by the exercised due care and could not have been avoided by
the exercise of due care by ICF KH or its employees. Civil
or criminal penalties assessed under the Price-Anderson
Amendments Act of 1988, 42 U.S.C. 2273, 2282, and the costs
of litigation resulting from such assessments are also
unallowable except as may be specifically provided in
regulations implementing those civil or criminal penalty
provisions.
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WHC-380393
Section I, Page 83
(13) Government-furnished property, except to the extent that cash
payment therefor is required pursuant to procedures of WHC
applicable to transfers of such property to ICF KH from others.
(14) (MODIFIED) Insurance (including any provisions of a self-
insurance reserve) on any person where ICF KH under the insurance
policy is the beneficiary, directly or indirectly, and insurance
against loss of or damage to Government property unless
authorized by the clause of this subcontract entitled "Insurance
- Litigation and Claims."
(15) Interest, however represented [except (i) Interest incurred in
compliance with the subcontract clause entitled "State and Local
Taxes" or, (ii) inputed interest costs relating to leases
classified and accounted for as capital leases under generally
accepted accounting principles (GAAP), provided that the decision
to enter into a capital leasing arrangement has been specifically
authorized and approved by WHC in accordance with applicable
procedures and such interest costs are recorded in an
appropriately specified WHC account established for such
purpose], bond discounts and expenses, and costs of financing and
refinancing operations.
(16) (MODIFIED) Legal, accounting, and consulting services and related
costs incurred in connection with the preparation and issuance of
stock, rights, organization or reorganization, prosecution or
defense of antitrust suits, prosecution of claims against the
United States, contesting proposed actions of the United States,
and prosecution or defense of patent infringement litigation
(except where incurred pursuant to ICF KH's performance of
government-funded technology transfer mission and in accordance
with the clause of this subcontract entitled "Insurance -
Litigations and Claims.")
(17) (DEVIATION) Losses (including litigation expenses, Counsel fees,
judgements, and settlements) on, or arising from the sale,
exchange, or abandonment of capital assets, including
investments; losses on other subcontracts, including ICF KH's
contributed portion under cost-sharing subcontracts; losses in
connection with price reductions to and discount purchases by
employees and others from any source; and losses where such
losses or expenses:
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WHC-380393
Section I, Page 84
(i) Are compensated for by insurance or otherwise or which
would have been compensated by insurance required by law or
by written direction of WHC but which ICF KH failed to
procure or maintain through its own fault or negligence;
(ii) Result from willful misconduct or lack of good faith or
failure to exercise prudent business judgment on the part
of any of ICF KH's managerial personnel as defined in the
clause of this subcontract entitled "Subcontractor's
Managerial Personnel." ICF KH shall have the burden of
demonstrating to WHC that willful misconduct, lack of good
faith, or failure to exercise prudent business judgement
was not the cause of the loss.
(iii) Represent liabilities to third persons for which ICF KH
has expressly accepted responsibility under other terms of
this subcontract.
(18) Maintenance, depreciation, and other costs incidental to ICF KH's
idle or excess facilities (including machinery and equipment),
other than reasonable standby facilities.
(19) Membership in trade, business, and professional organizations,
except as approved by WHC.
(20) Presubcontract costs, except as expressly made allowable under
other provisions in this subcontract.
(21) Research and development costs, unless specifically provided for
elsewhere in this subcontract.
(22) Selling cost, except to the extent they are determined to be
reasonable and to be allocable to the subcontract. Allocability
of selling costs to the subcontract will be determined in the
light of reasonable benefit to the agency program arising from
such activities as technical, consulting, demonstration, and
other services performed for such purposes as applying or
adapting ICF KH's product for agency use.
(23) Storage of records pertaining to this subcontract after
completion of operations under this subcontract, irrespective of
contractual or statutory requirement for the preservation of
records.
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WHC-380393
Section I, Page 85
(24) Taxes, fees, and charges in connection with financing,
refinancing, or refunding operations, including listing of
securities on exchanges, taxes which are paid contrary to the
clause entitled "State and Local Taxes," federal taxes on net
income and excess profits, special assessments on land which
represent capital improvement and taxes on accumulated funding
deficiencies of, or prohibited transactions involving, employee
deferred compensation plans pursuant to Section 4971 or Section
4975 of the Internal Revenue Code of 1954, as amended,
respectively.
(25) Travel expenses of the officers, proprietors, executives,
administrative heads and other employees of ICF KH's central
office or branch office organizations concerned with the general
management, supervision, and conduct of ICF KH's business as a
whole, except to the extent that particular travel is in
connection with the subcontract and approved by WHC.
(26) Salary or other compensation (and expenses related thereto) of
any individual employed under this subcontract as a consultant or
in another comparable employment capacity who is an employee of
another organizational and concurrently performing work on a
full-time annual basis for that organization under a cost-type
subcontract with WHC, except to the extent that cash payment
therefor is required pursuant to the provisions of this
subcontract or procedure of WHC applicable to the borrowing of
such an individual from another cost-type Subcontractor.
(27) Travel by commercial aircraft or travel by other than common
carrier that is not necessary for the performance of this
subcontract or the cost of which exceeds the lesser of the lowest
available commercial discount airfare, Government contract
airfare, or customary standard (coach or equivalent) commercial
airfare. Airfare costs in excess of the lowest such airfare are
unallowable, except when such accommodations: Require circuitous
routing; require travel during unreasonable hours; excessively
prolong travel; result in increased cost that would offset
transportation savings; would offer accommodations not reasonably
adequate for the physical or medical needs of the traveler; or
are not reasonably available to meet necessary mission
requirements. Individual ICF KH determinations of
nonavailability of commercial discount airfare or Government
contract airfare will not be contested by WHC when the
subcontractor can reasonably demonstrate such nonavailability or,
on an overall basis, that established policies and procedures
result in the routine use of the
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WHC-380393
Section I, Page 86
lowest available airfare. However, in order for air travel costs
in excess of customary standard airfare to be allowable, ICF KH
must justify and document the applicable condition(s) set forth
above.
(28) Special construction industry "funds" financed by employer
contributions for such purposes as methods and materials
research, public and industry relations, market development, and
disaster relief, except as specifically provided elsewhere in
this subcontract.
(29) Late premium payment charges related to employee deferred
compensation plan insurance.
(30) Facilities capital cost of money (CAS 414 and CAS 417).
(31) Cost incurred to influence (directly or indirectly) legislative
action on any matter pending before Congress or a State
legislature as delineated in the clause titled "Legislative
Lobbying Cost Prohibition" incorporated elsewhere in this
subcontract.
(32) Commercial automobile rental expenses unless approved by WHC.
This does not include rental of automobile when on official
travel.
(33) (Modified)
Costs incurred in connection with any civil or administrative
proceeding or similar proceeding by the Federal Government or a
state, local, or foreign government, as provided in the clause
titled "Cost Prohibitions Related to Legal and Other Proceedings"
incorporated elsewhere in this subcontract.
(34) Costs of alcoholic beverages.
(35) ICF KH employee travel costs incurred for lodging, meals and
incidental expenses which exceed on a daily basis the applicable
maximum per diem rates in effect for federal civilian employees
at the time of travel. When the applicable maximum per diem
rates is inadequate due to special or unusual situations, ICF KH
may pay employees for actual expenses in excess of such per diem
rate limitation. To be allowable, however, such payments must be
properly authorized by an officer or appropriate official of ICF
KH and shall not exceed the higher amounts that may be authorized
for federal civilian employees in a similar situation.
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Section I, Page 87
(36) (DEVIATION) Notwithstanding any other provision of this
subcontract, the costs of bonds and insurance are unallowable to
the extent they are incurred to protect and indemnify ICF KH
and/or subcontractor against otherwise unallowable costs, unless
such insurance or bond is required by law, the express terms of
this subcontract, or the specific written direction of WHC.
I-66 OBLIGATION OF FUNDS (FEB 1993 REVISED)
(a) Obligation of funds.
The amount presently obligated by WHC with respect to this subcontract
is set forth in Section B of the Schedule. Such amount may be
increased unilaterally by WHC by written notice to ICF KH and may be
increased or decreased by written agreement of the parties (whether or
not by formal modification of this subcontract). Estimated
collections from others for work and services to be performed under
this subcontract are included in the amount presently obligated. Such
collections, to the extent actually received by ICF KH shall be
processed and accounted for in accordance with applicable requirements
specified in the Baseline List of Required Financial Management
Compliance Documents, which is an appendix to this subcontract.
Nothing in this paragraph (a) is to be construed as authorizing ICF KH
to exceed limitations stated in financial plans established by DOE and
furnished to ICF KH from time to time under this subcontract.
(b) Limitation on payment by the Government.
Except as otherwise provided in this subcontract and except for costs
which may be incurred by ICF KH pursuant to the clause entitled
"Termination," or costs of claims allowable under the subcontract
accruing after completion or termination and not released by ICF KH at
the time of financial settlement of the subcontract in accordance with
the clause entitled "Payments and Advances," payment by WHC under this
subcontract on account of allowable costs shall not, in the aggregate,
exceed the amount obligated with respect to this subcontract, less ICF
KH's fee. Unless expressly negated in this subcontract, payment on
account of those costs excepted in the preceding sentence which are in
excess of the amount obligated with respect to this subcontract shall
be subject to the availability of (1) collections accruing to ICF KH
in connection with the work under this subcontract and processed and
accounted for in accordance with applicable requirements specified in
the Baseline List of Required Financial Management Compliance
Documents, which is an appendix to this subcontract, and (2) other
funds which DOE may legally use for such purpose, provided DOE and WHC
will use their best efforts to
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WHC-380393
Section I, Page 88
obtain the appropriation of funds for this purpose if not otherwise
available.
(c) Notices-Subcontractor excused from further performance.
ICF KH shall notify WHC in writing whenever the unexpended balance of
funds (including collections available under paragraph (a) above),
plus ICF KH's best estimate of collections to be received during the
7-day period hereinafter specified, is in ICF KH's best judgment
sufficient to continue subcontract operations at the programmed rate
for only seven (7) days and to cover ICF KH's unpaid fee, and
outstanding encumbrances and liabilities on account of costs allowable
under the subcontract at the end of such period. Whenever the
unexpended balance of funds (including collections available under
paragraph (a) above), less the amount of ICF KH's fee then earned but
not paid, is in ICF KH's best judgment either sufficient only to
liquidate outstanding encumbrances and liabilities on account of costs
allowable under this subcontract, ICF KH shall immediately notify WHC
and shall make no further encumbrances or expenditures (except to
liquidate existing encumbrances and liabilities), and, unless the
parties otherwise agree, ICF KH shall be excused from further
performance (except such performance as may become necessary in
connection with termination by WHC) and the performance of all work
hereunder will be deemed to have been terminated for the convenience
of WHC in accordance with the provisions of the clause entitled
"Termination."
(d) Financial plans; cost and commitment limitations.
In addition to the limitations provided for elsewhere in this
subcontract, WHC may, through financial plans, such as Approved
Funding Programs, or other directives issued to ICF KH establish
controls on the costs to be incurred and encumbrances to be made in
the performance of the subcontract work. Such plans and instruction
may be amended or supplemented from time to time by WHC. ICF KH
hereby agrees (1) to comply with the specific limitations (ceilings)
on costs and encumbrances set forth in such plans and directives, (2)
to use its best efforts to comply with other requirements of such
plans and directives, and (3) to promptly notify WHC in writing,
whenever it has reason to believe that any limitation on costs and
encumbrances will be exceeded or substantially underrun.
(e) WHC's right to terminate not affected.
The giving of any notice under this clause shall not be construed to
waive or impair any right of WHC to terminate the subcontract under
the provisions of the clause entitled "Termination."
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I-67 PAYMENTS AND ADVANCES (FEB 1993 REVISED)
(a) (Modified) Payment of Fee and Cost Sharing Obligations
(i) Payment of Base and Award Fee.
The base fee shall become due and payable in equal monthly
installments and may, after written approval of WHC, be drawn
down no earlier than the first working day after the calendar
month in which the fee is earned. Award fees earned shall become
due and payable following the issuance by the FDO of a
Determination of Award Fee Earned, in accordance with the clause
of this subcontract entitled "Base Fee, Incentive Fee, and Award
Fee."
(ii) Payment of Incentive Fees.
An incentive fee may be due ICF KH for work performed under this
subcontract. Such fee will be payable to ICF KH upon
accomplishment of certain milestones as identified elsewhere in
this subcontract and after approval of payment by WHC. Upon
written approval of WHC, ICF KH shall be entitled to withdraw
any approved incentive fee from the Special Financial
Institution Account. If payment is not made within thirty (90)
days of the date of the satisfactory completion of the criteria
as determined by WHC, ICF KH shall be entitled to interest on
any such fees earned at the rate established by the Secretary of
the Treasury under Section 12 of the Contract Disputes Act of
1978 (41 U.S.C. 611) that is in effect on the payment date. This
rate is referred to as the "Renegotiation Board Interest Rate"
and is published in the Federal Register semiannually on or
about January 1 and July 1. The interest in any late fee
determination amount will accrue daily and shall be compounded
in 30-day increments inclusive from the first day after the
satisfactory completion of the acceptance criteria as determined
by WHC through the actual date the payment is made.
(iii) (Modified) With respect to all fees earned by ICF KH other than
base or award fee, the parties recognize that ICF KH will be
paid in the manner described in paragraph (ii) above and may
result in an overpayment to ICF KH. If overpayment is disputed
and repayment is delayed pending outcome of disputes resolution,
ICF KH will within 30 days of resolution pay to WHC the disputed
amount including interest. Interest on any such overpayment
shall be earned at the rate established by the Secretary of the
Treasury under Section 12 of the Contract Disputes Act of 1978
(41
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Section I, Page 90
U.S.C. 611) that is in effect on the payment date. This rate is
referred to as the "Renegotiation Board Interest Rate" and is
published in the Federal Register semiannually on or about
January 1 and July 1. The interest on any overpayment amount
will accrue daily and shall be compounded in 30-day increments
inclusive from the first day after the notification of the
overpayment by WHC is received by ICF KH through the actual date
the payment is made. WHC may offset against any award or
incentive fee payments, plus share of shavings, owed during the
fiscal year, amounts owed to WHC by ICF KH, including any
amounts owed for disallowed costs under this subcontract.
(b) Payments on Account of Allowable Costs.
WHC and ICF KH shall agree as to the extent to which payment for
allowable costs or payments for other items specifically approved in
writing by WHC shall be made from advances of Government funds. When
pension contributions are paid by ICF KH to the retirement fund less
frequently than quarterly, accrued costs therefor shall be excluded
from costs for payment purposes until such costs are paid. If pension
contribution are paid on a quarterly or more frequent basis, accrual
therefor may be included in costs for payment purposes, provided that
they are paid to the fund within 30 days after the close of the period
covered. If payments are not made to the fund within such 30-day
period, pension contribution costs shall be excluded from cost for
payment purposes until payment has been made.
(c) Special bank account - use.
All advances of Government funds shall be withdrawn pursuant to a
letter of credit in favor of the bank or, in the option of the
Government, shall be made by check payable to ICF KH, and shall be
deposited only in the Special Bank Account referred to in the
Agreement for Special Bank Account, which is attached hereto and
incorporated into this subcontract as an appendix. ICF KH shall
likewise deposit in the Special Bank Account any other revenues
received by ICF KH in connection with the work under this subcontract.
No part of the funds in the Special Bank Account shall be (1) mingled
with any funds of ICF KH or (2) used for a purpose other than that of
making payments for costs allowable under this subcontract or payments
for other items specifically approved in writing by WHC. If WHC shall
at any time determine that the balance on such bank account exceeds
ICF KH's current needs, ICF KH shall promptly make such disposition of
the excess as WHC may direct.
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(d) Title to funds advanced.
Title to the unexpended balance of any funds advanced and of any bank
account established pursuant to this clause shall remain in the
Government and be superior to any claim or lien of the bank of deposit
or others. It is understood that an advance to ICF KH hereunder is
not a loan to ICF KH, and will not require the payment of interest by
ICF KH, and that ICF KH acquires no right, title or interest in or to
such advance other than the right to make expenditures therefrom, as
provided in this clause.
(e) Review and approval of costs incurred.
ICF KH shall prepare and submit annually as of September 30, a voucher
for the total of net expenditures accrued (i.e., net costs incurred)
for the period covered by the voucher, and WHC, after audit and
appropriate adjustment, will approve such voucher. This approval by
WHC will constitute an acknowledgment by WHC that the net costs
incurred are allowable under the subcontract and that they have been
recorded in the accounts maintained by ICF KH in accordance with WHC
accounting policies, but will not relieve ICF KH of responsibility for
DOE's assets in its care, for appropriate subsequent adjustments, or
for errors later becoming known to WHC.
(f) Financial settlement.
WHC shall promptly pay to ICF KH the unpaid balance of allowable costs
and fixed fee upon termination of the work, expiration of the term of
the subcontract, or completion of the work and its acceptance by WHC
after (1) compliance by ICF KH with DOE's patent clearance
requirements, and (2) the furnishing by ICF KH of:
(i) An assignment of ICF KH's rights to any refunds, rebates,
allowances, accounts receivable, collections accruing to ICF KH
in connection with the work under this subcontract, or other
credits applicable to allowable costs under the subcontract;
(ii) A closing financial statement;
(iii) The accounting for Government-owned property required by the
clause entitled "Property;" and
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WHC-380393
Section I, Page 92
(iv) A release discharging the WHC, its officers, agents, and
employees from all liabilities, obligations, and claims arising
out of or under this subcontract subject only to the following
exceptions:
(A) Specified claims in stated amounts or in estimated amounts
where the amounts are not susceptible to exact statement by
ICF KH;
(B) Claims, together with reasonable expenses incidental
thereto, based upon liabilities of ICF KH to third parties
arising out of the performance of this subcontract;
provided that such claims are not known to ICF KH on the
date of the execution of the release; and provided further
that ICF KH gives notice of such claims in writing to WHC
promptly, but not more than one (1) year after ICF KH's
right of action first accrues. In addition, ICF KH should
provide prompt notice to WHC of all potential claims under
this clause, whether in litigation or not (see also
Subcontract Clause [H-29], DEAR 970.5204-31, "Litigation
and Claims"); and
(C) Claims for reimbursement of costs (other than expenses of
ICF KH by reason of any indemnification of WHC against
patent liability), including reasonable expenses incidental
thereto, incurred by ICF KH under the provisions of this
subcontract relating to patents.
(c) Claims.
Claims for payment shall be accompanied by such supporting documents
and justification as WHC shall prescribe.
(d) Discounts.
ICF KH shall take and afford WHC the advantage of all known and
available cash and trade discounts, rebates, allowances, credits,
salvage, and commissions unless WHC finds that action is not in the
best interest of WHC.
(e) Collections.
All collections accruing to ICF KH in connection with the work under
this subcontract, except for ICF KH's fee and royalties or other
income accruing to ICF KH from technology transfer activities in
accordance with this subcontract, shall be Government property and
shall be processed and accounted for in
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WHC-380393
Section I, Page 93
accordance with the requirements specified in DOE Accounting
Directives.
(f) Direct payment of charges.
WHC reserves the right, upon ten (10) days written notice from WHC to
ICF KH, to pay directly to the persons concerned, all amounts due
which otherwise would be allowable under this subcontract. Any
payment so made shall discharge WHC of all liability to ICF KH
thereof.
I-68 PRINTING (APR 1984)
(a) To the extent that duplicating or printing services may be required in
the performance of the subcontract, ICF KH shall provide or secure
such services in accordance with the Government Printing and Binding
Regulations, Title 44 of the U.S. Code, and DOE Directives relative
thereto.
(b) The term "Printing" includes the following processes: composition,
platemaking, presswork, binding, microform publishing, or the end
items produced by such processes. Provided, however, that performance
of a requirement under this subcontract involving the duplication of
less than 5,000 copies of a single page, or no more than 25,000 units
in the aggregate of multiple pages, will not be deemed to be printing.
(c) Printing services not obtained in compliance with this guidance shall
result in the cost of such printing being disallowed.
(d) In all lower-tier subcontracts hereunder which require printing (as
that term is defined in Title I of the U.S. Government Printing and
Binding Regulation), shall include a provision substantially the same
as this clause.
I-69 PROPERTY (JULY 1991)
(a) Furnishing of Government property.
WHC reserves the right to furnish any property or services required
for the performance of the work under this subcontract.
(b) Title to property.
Except as otherwise provided by WHC, title to all materials,
equipment, supplies and tangible personal property of every kind and
description purchased by ICF KH, for the cost of which ICF KH is
entitled to be reimbursed as a direct item of cost under this
subcontract, shall pass directly from the vendor to the Government.
The Government reserves the right to inspect, and to
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WHC-380393
Section I, Page 94
accept or reject, any item of such property. ICF KH shall make such
disposition of rejected items as WHC shall direct. Title to other
property, the cost of which is reimbursable to ICF KH under this
subcontract, shall pass to and vest in the Government upon (1)
issuance for use of such property in the performance of this
subcontract, (2) commencement of processing or use of such property in
the performance of this subcontract, or (3) reimbursement of the cost
thereof by WHC, whichever first occurs. Property furnished by WHC and
property purchased or furnished by ICF KH, title to which vests in the
Government, under this paragraph are hereinafter referred to as
Government property. Title to Government property shall not be
affected by the incorporation of the property into or the attachment
of it to any property not owned by the Government, nor shall such
Government property or any part thereof, be or become a fixture or
lose its identity as personalty by reason of affixation to any realty.
(c) Identification.
To the extent directed by WHC, ICF KH shall identify Government
property coming into ICF KH's possession or custody, by marking and
segregating in such a way, satisfactory to WHC, as shall indicate its
ownership by the Government.
(d) Disposition.
The Contractor shall make such disposition of Government property
which has come into the possession or custody of the Contractor under
this contract as the Contracting Officer may direct during the
progress of the work or upon completion or termination of this
contract. The Contractor may, upon such terms and conditions as the
Contracting Officer may approve, sell, or exchange such property, or
acquire such property at a price agreed upon by the Contracting
Officer and the Contractor as the fair value thereof. The amount
received by the Contractor as the result of any disposition, or the
agreed fair value of any such property allowable under this contract
or shall be otherwise credited to account to the Government, as the
Contracting Officer may direct. Upon completion of the work or the
termination of this contract, the Contractor shall render an
accounting, as prescribed by the Contracting Officer, of all
government property which had come into the possession or custody of
the Contractor under this contract.
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Section I, Page 95
(e) Protection of Government property - classified materials.
ICF KH shall take all reasonable precautions, as directed by WHC, or
in the absence of such direction in accordance with sound business
judgement, to safeguard and protect Government property in ICF KH's
possession or custody. Special measures shall be taken by ICF KH in
the protection of and accounting for any classified or special
materials involved in the performance of this subcontract, in
accordance with the regulations and requirements of DOE.
(f) Risk of loss of Government property.
(1) ICF KH shall be responsible for the loss or destruction of, or
damage to, Government property unless ICF KH demonstrates to WHC
that such loss, damage or destruction was not caused by any of
the following:
(i) Willful misconduct or lack of good faith on the part of ICF
KH's managerial personnel, or
(ii) Failure of ICF KH to manage Government property in
accordance with sound industrial practice, or
(iii) Failure of ICF KH to comply with any appropriate written
direction of WHC to safeguard such property under
subparagraph (e) of this clause, or
(iv) Failure of ICF KH to establish or maintain an approved
property management system in accordance with subparagraph
(i) of this clause.
(2) For purpose subparagraph (1) immediately preceding, the value of
Government property shall be determined as follows:
(i) For damaged property the value of the property shall be the
cost of repairing such damaged property, together with any
costs incurred for temporary replacement of the damaged
property. However, the value of repair cost shall not
exceed the fair market value of the damaged property. If a
fair market value of the property does not exist, WHC shall
determine the value of such property, consistent with all
relevant facts and circumstances.
(ii) For destroyed or lost property, the value of the property
shall be the fair market value of such property at the time
of such loss or destruction, together with any costs
associated with the
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WHC-380393
Section I, Page 96
disposition of destroyed property. If a fair market value
does not exist, WHC shall determine the value of such
property, consistent with all relevant facts and
circumstances.
(3) The cost of insurance obtained by ICF KH to cover the risk of
loss referred to in subparagraph (f)(1) of this clause is not
allowable.
(g) Steps to be taken in event of loss. (MODIFIED)
Upon the happening of any damage, destruction, or loss to Government
property in the possession or custody of ICF KH, ICF KH shall
immediately inform WHC of the occasion and extent thereof, shall take
all reasonable steps to protect the property remaining, and shall
repair or replace the lost, damaged, or destroyed, property in
accordance with the written direction of WHC, but shall take no action
prejudicial to the right of the Government recover therefore and shall
furnish to the Government, on request, all reasonable assistance in
obtaining recovery.
(h) Government Property for Government Use Only.
"Government property shall be used only for the performance of this
subcontract, except the loan of scientific and other property
including the use of Government-owned or leased facilities including
those leased by ICF KH, as may be determined by WHC, to educational
institutions involved in educational partnerships with WHC and in such
other instances as may be deemed appropriate by WHC."
(i) Property Management.
1) To the extent that ICF KH is not utilizing WHC Property
Management Systems, ICF KH shall maintain and administer a
property management system, subject to the approval of WHC, of
accounting for and control, utilization, maintenance, repair,
protection and preservation of Government property in its
possession under the subcontract. ICF KH's property management
system shall be maintained and administered in accordance with
sound business practice, and in accordance with Department of
Energy Property Management Regulations and such directives or
instructions which WHC may from time to time prescribe. ICF KH's
performance will be evaluated on meeting or exceeding agreed-upon
expectations in accordance with H-35, Additional Evaluation
Criteria, Use of Objective Standards of Performance, set forth
elsewhere in this subcontract.
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WHC-380393
Section I, Page 97
2) In order for a property management system to be approved, ICF KH
shall be obligated to employ and maintain a property management
system that incorporates the best commercial practices and
methods and which also meets the following objectives:
(i) have comprehensive coverage from requirement
identification, through its life cycle to final
disposition,
(ii) clearly establish and maintain employee personal
responsibility and corporate liability for Government-owned
property,
(iii) establish the liability of the outgoing subcontractor and
the baseline for the measurement of the incoming
subcontractor,
(iv) be fully integrated into WHC's other administrative and
financial systems, and
(v) maintain a reliable method for implementing continuous
improvement established by "best in class" performers.
3) In the event ICF KH fails to establish or maintain an approved
property management system, or fails to administer its property
management program in accordance with the approved property
management system, any damage, loss, or destruction to property
which occurs thirty (30) calendar days after ICF KH receives
written notification of such fact by WHC (by certified mail,
return receipt requested, addressed to one of ICF KH's managerial
personnel), shall be presumed to have occurred as a result of
willful misconduct or lack of good faith on the part of ICF KH's
managerial personnel, unless ICF KH can establish by clear and
convincing evidence that such damage, destruction, or loss (i)
did not result from ICF KH's failure to establish, maintain or
administer an approved property management system, or (ii)
occurred while an approved program or system was maintained by
ICF KH.
(j) (DEVIATION) The term "Contractor's managerial personnel" as used in
this clause is defined in the clause entitled, "Subcontractor's
Managerial Personnel."
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WHC-380393
Section I, Page 98
I-70 SUBCONTRACTOR PURCHASING SYSTEM. (OCT 1990)
(a) ICF KH shall develop and implement formal policies, practices, and
procedures to be used in the award of subcontracts, which purchasing
system and methods shall be fully documented and acceptable to WHC, in
accordance with the policies set forth in DEAR 970.71. WHC reserves
the right at any time to require that ICF KH submit for approval any
or all purchases under this subcontract. ICF KH shall not purchase
any item or service the purchase of which is expressly prohibited by
the written direction of WHC and shall use such special and directed
sources as may be expressly required by WHC.
(b) The obligations of ICF KH under paragraph (a) above, including the
development of the purchasing system and methods, and purchases made
pursuant thereto, shall not relieve ICF KH of any obligation under
this subcontract (including, among other things, the obligation to
properly supervise, administer, and coordinate the work of
subcontractors). Subcontracts shall be in the name of ICF KH, and
shall not bind or purport to bind the WHC or the Government.
(c) In addition to, and without derogation of any rights under paragraph
(a) of this clause and any other provision in this subcontract, ICF KH
shall require all subcontractors to furnish cost or pricing data under
those conditions and in accordance with the requirements set forth in
FAR 15.804, and shall include in such subcontracts the appropriate
clause set forth in 970.5204-24 except as otherwise directed or
approved by WHC.
(d) Purchase or transfer of equipment, materials, supplies, or services
from a subcontractor-affiliated source shall be treated in accordance
with DEAR 970.7105.
(e) Proposed awards to firms or individuals on either the GSA Consolidated
List of Debarred, Suspended, and Ineligible subcontractors or the WHC
Consolidated list of Debarred, Suspended, Ineligible, and Voluntarily
Excluded Awardees shall be forwarded to WHC for approval
notwithstanding any prior purchasing system acceptance.
(f) ICF KH shall provide advance notice of proposed subcontract awards in
accordance with DEAR 970.7109; shall document purchases in writing;
and shall establish and maintain subcontract files which present an
accurate and adequate record of all purchasing transactions.
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WHC-380393
Section I, Page 99
(g) ICF KH shall not enter into any lease for property, plant or equipment
when the lease must be classified and accounted for as capital lease
under generally accepted accounting principles, unless the decision to
enter into a capital leasing arrangement is specifically authorized
and approved in advance by WHC.
I-71 STATE AND LOCAL TAXES (APR 1984)
(a) ICF KH agrees to notify WHC of any State or local tax, fee, or charge
levied or purported to be levied on or collected from ICF KH with
respect to the subcontract work, any transaction thereunder, or
property in the custody or control of ICF KH and constituting an
allowable item of cost if due and payable, but which ICF KH has reason
to believe, or WHC has advised ICF KH is or may be inapplicable or
invalid; and ICF KH further agrees to refrain from paying any such
tax, fee, or charge unless authorized in writing by WHC. Any State or
local tax, fee, or charge paid with the approval of WHC or on the
basis of advice from WHC that such tax, fee, or charge is applicable
and valid, and which would otherwise be an allowable item of cost,
shall not be disallowed as an item of cost by reason of any subsequent
ruling or determination that such tax, fee, or charge was in fact
inapplicable or invalid.
(b) ICF KH agrees to take such action as may be required or approved by
WHC to cause any State or local tax, fee, or charge which would be an
allowable cost to be paid under protest; and to take such action as
may be required or approved by WHC to seek recovery of any payments
made, including assignment to WHC, the government, or its designee of
all rights to an abatement or refund thereof, and granting permission
for WHC and the Government to join with ICF KH in any proceedings for
the recovery thereof or to sue for recovery in the name of ICF KH. If
WHC directs ICF KH to institute litigation to enjoin the collection of
or to recover payment of any such tax, fee, or charge referred to
above, or if a claim or suit is filed against ICF KH for a tax, fee,
or charge it has refrained from paying in accordance with this clause,
the procedures and requirements of the clause entitled "Insurance -
Litigation and Claims" shall apply and the costs and expenses incurred
by ICF KH shall be allowable items of costs, as provided in this
subcontract, together with the amount of any judgment rendered against
ICF KH.
(c) WHC and the Government shall hold ICF KH harmless from penalties and
interest incurred through compliance with this clause. All recoveries
or credits in respect of the foregoing taxes, fees, and charges
(including interest) shall inure to and be for the sole benefit of the
Government.
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WHC-380393
Section I, Page 100
I-72 SUBCONTRACTOR COST OR PRICING DATA (APR 1984)
(a) The following clause shall be inserted in all subcontracts where such
subcontracts are over $100,000 and any modification over $100,000 to
such subcontracts, even though the original amount of the subcontract
is $100,000 or less:
Certified Cost or Pricing Data (Apr 1984)
(a) (1) ICF KH shall require under the situations described in (2) below,
unless exempted under the exceptions set forth in (3) below, each
subcontractor under this subcontract to submit cost or pricing
data and to certify that, to the best of his knowledge and
belief, such cost or pricing data are accurate, complete and
current.
(2) Except as provided in (3) below, certified cost or pricing data
shall be submitted prior to (i) the award of each subcontract,
the price of which is expected to exceed $100,000, and (ii) the
negotiation of the price of each change or modification to a
subcontract under this subcontract for which the price adjustment
is expected to exceed $100,000.
(3) Certified cost or pricing data need not be furnished pursuant to
this paragraph (a) where (i) ICF KH has not been required to
furnish cost or pricing data; or (ii) the price adjustment is
based on adequate price competition, established catalog or
market prices of commercial items sold in substantial quantities
to the general public, or the prices are set by law or
regulation; and ICF KH states in writing the basis for applying
this exception.
(4) In submitting the cost or pricing data, ICF KH shall use the form
of certificate set forth in paragraph (b) below and shall certify
that the data are accurate, complete, and current. Such
certificate and data (actual or identified, as provided in the
certificate prescribed below) shall be submitted by
subcontractors to the next higher-tier subcontractor or ICF KH as
applicable, for retention.
(b) The certificates required by this clause shall be in the form set
forth below.
ICF KH's Certificate of Current Cost or Pricing Data
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WHC-380393
Section I, Page 101
This is to certify that, to the best of my knowledge and belief, cost
or pricing data submitted in writing, or specifically identified in
writing if actual submission of the data is impracticable (see FAR
15.804-6(d)), to ICF KH in support of _____________________* are
accurate, complete and current as of _____________________**.
Firm
Name
Title
Date of execution***
*Identify the proposal, quotation, request for price adjustment, or
other submission involved.
**Insert the day, month, and year when price negotiations were
concluded and price agreement was reached.
***Insert the day, month, and year of signing, which should be as
close as practicable to the date when the price negotiations were
concluded and the subcontract price was agreed to.
(c) For purposes of verifying that certified cost or pricing data
submitted in conjunction with the negotiation of this subcontract
change or other modification involving an amount in excess of $100,000
were accurate, complete, and current, WHC shall, until the expiration
of 3 years from the date of final payment under this subcontract, have
the right to examine those books, records, documents, papers, and
other supporting data which involve transactions related to this
subcontract or which will permit adequate evaluation of the cost or
pricing data submitted, along with the computations and projections
used therein.
(d) If the original price of this subcontract exceeds $100,000 or the
price of any change or other modification to this subcontract is
expected to exceed $100,000, ICF KH agrees to furnish WHC certified
cost or pricing data, using the certificate set forth in paragraph (b)
above, unless the price is based on adequate price competition,
established catalog or market prices of commercial items sold in
substantial quantities to the general public, or prices set by law or
regulation.
(e) The requirement for submission of certified cost or pricing data with
respect to any change or other modification does not apply to any
subcontract change or other modification, at any tier, where the
subcontract is firm fixed-price or fixed-price with escalation unless
such change or other modification result from a change or modification
to the subcontract, nor does it apply to a subcontract change or
modification, at any tier, where the
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WHC-380393
Section I, Page 102
subcontract is not firm fixed-price or fixed-price with escalation
unless the price for such change or other modification becomes
reimbursable under the subcontract.
(f) ICF KH agrees to insert paragraph (c) without change and the substance
of paragraphs (a),(b),(d),(e), and (f) of this clause in each
subcontract hereunder in excess of $100,000 and in each subcontract of
$100,000 or less, at the time of making a change or other modification
thereto in excess of $100,000.
(g) If ICF KH determines that any price, including profit or fee,
negotiated in connection with this subcontract or any cost
reimbursable under this subcontract was increased by any significant
sums because ICF KH or any subcontractor pursuant to this clause or
any subcontract clause herein required, furnished incomplete or
inaccurate cost or pricing data or data not current as certified in
ICF KH's certificate of current cost or pricing data, then such price
or cost shall be reduced accordingly and the subcontract shall be
modified in writing to reflect such reduction.
(h) Failure of WHC and ICF KH to agree on any of the matters in paragraph
(g) above shall be a dispute concerning a question of fact subject to
the Disputes provisions of this subcontract.
NOTE-Since the subcontract is subject to reduction under this clause
by reason of defective cost or pricing data submitted in connection
with certain sub-subcontracts, it is expected that ICF KH may wish to
include a clause in each such subcontract requiring the subcontractor
to appropriately indemnify ICF KH. It is also expected that any
subcontractor subject to such indemnification will generally require
substantially similar indemnification for defective cost or pricing
data required to be submitted by its lower-tier subcontractors.
I-73 WORKMANSHIP AND MATERIALS (APR 1984)
(a) Grade of Workmanship and Materials.
Unless otherwise directed by WHC or expressly provided for by
specifications issued under this subcontract:
(1) All workmanship shall be first class; and
(2) All articles, equipment and materials incorporated in the work
are to be:
(i) New and of the most suitable grade of their respective
kinds for the purpose;
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WHC-380393
Section I, Page 103
(ii) In accordance with any applicable drawings and
specifications; and
(iii) Installed to the satisfaction and with the approval of
WHC.
Where equipment, materials, or articles are referred to in the
specifications as "equal to" any particular standard, WHC shall decide
the question of equality.
(b) Samples and Test Results.
If WHC so requires, ICF KH shall submit for approval samples of or
test results on any materials proposed to be incorporated in the work
before making any commitment for the purchase of such materials.
I-74 RESERVED
I-75 RESERVED
I-76 CONSULTANT OR OTHER COMPARABLE EMPLOYMENT SERVICES (MAY 1989)
(a) ICF KH shall require all employees who are employed full-time (an
individual who performs work under the cost-type subcontract on a
full-time annual basis) or part-time (50 percent or more of regular
annual compensation received under terms of a Subcontract with WHC) on
the subcontract work to disclose to ICF KH all consultant or other
comparable employment services which the employees propose to
undertake for others. ICF KH shall transmit to WHC all information
obtained from such disclosures. ICF KH will require any employee who
will be employed full-time on the Subcontract work to agree, as a
condition of his participation in such work, that he will not perform
consultant or other comparable employment services for another DOE
Contractor in the same or related energy field or another organization
except with the prior approval of the Subcontractor. If ICF KH
believes, with respect to any employee who is employed full-time on
the Subcontract work, that any proposed consultant or other comparable
employment service for an organization in the atomic energy field
other than a cost-type subcontractor may involve:
(1) A rate of remuneration significantly in excess of the employee's
regular rate of remuneration;
(2) A significant question concerning possible conflict with DOE
policies regarding conduct of employees of WHC Subcontractors;
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WHC-380393
Section I, Page 104
(3) ICF KH's responsibility to report fully and promptly to WHC all
significant research and development information; or
(4) The patent provisions of ICF KH's subcontract with WHC, ICF KH
shall obtain the prior approval of WHC for such consultant or
other comparable employment service.
I-77 ASSIGNMENT (APR 1984)
Neither this subcontract nor any interest therein nor claim thereunder
shall be assigned or transferred by ICF KH except as expressly authorized
in writing by WHC.
I-78 PERMITS OR LICENSES (APR 1984)
Except as otherwise directed by WHC, ICF KH shall procure all necessary
permits or licenses and abide by all applicable laws, regulations, and
ordinances of the United States and of the state, territory and political
subdivision in which the work under this subcontract is performed.
I-79 NOTICE OF LABOR DISPUTES (APR 1984)
(a) If ICF KH has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance
of this subcontract, ICF KH shall immediately give notice
including all relevant information, to WHC.
(b) ICF KH agrees to insert the substance of this clause, including
this paragraph (b), in any subcontract to which a labor dispute
may delay the timely performance of this subcontract; except that
each subcontract shall provide that in the event its timely
performance is delayed or threatened by delay by any actual or
potential labor dispute, the subcontractor shall immediately
notify the next higher tier subcontractor or ICF KH, as the case
may be, of all the relevant information concerning the dispute.
I-80 REIMBURSEMENT FOR PRIME CONTRACTOR LEGAL AND OTHER PROCEEDINGS COSTS
Under the terms of the WHC prime contract in clause I-80 entitled COST
PROHIBITIONS RELATED TO LEGAL AND OTHER PROCEEDINGS, costs, as that term is
used and defined in said clause, incurred by WHC in connection with any
criminal, civil or administrative proceeding, as those terms are used and
defined in said clause, commenced by the Federal, state, local or foreign
government, may not be allowable costs to WHC under the conditions set
forth in said clause.
If the subcontractor's acts or omissions are the primary cause for the
initiation of any such proceeding, to the extent that the
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WHC-380393
Section I, Page 105
subcontractor's violation(s) and failure(s) are the primary causes for WHC
to incur such costs, the subcontractor agrees to reimburse WHC for those
reasonably incurred costs made unallowable under the Major Fraud Act up to
the following limitation:
In no event shall the subcontractor be liable for costs incurred by
WHC if there is an ultimate finding in such proceeding against WHC and
in favor of the subcontractor.
Nothing in this clause shall alter or reduce the allowability of legal and
other proceedings costs set forth elsewhere in this subcontract.
I-81 DELETED
I-82 PRIORITIES AND ALLOCATIONS. (JUN 1987)
ICF KH shall follow the rules and procedures of the Defense Priorities and
Allocations System (DPAS) regulation (15 CFR Part 350) in obtaining
controlled materials and other products and materials needed for
subcontract performance.
I-83 KEY PERSONNEL (APR 1984)
The personnel specified below are considered to be essential to the work
being performed hereunder. Prior to diverting any of the specified
individuals to other programs, ICF KH shall notify WHC reasonably in
advance and shall submit justification (including proposed substitutions)
in sufficient detail to permit evaluation of the impact on the program. No
diversion shall be made by ICF KH without the written consent of WHC.
Provided, that WHC may ratify in writing such diversion and such
ratification shall constitute the consent of WHC required by this clause.
The list below may be amended from time-to-time during the course of the
contract to either add or delete personnel, as appropriate.
KEY PERSONNEL
K. B. Adamson Manager, Administration
C. E. Anderson Manager, Engineering & Technical Support Services
R. L. Benedetti Deputy General Manager
K. J. Dempsey Manager, TWRS Engineering & Construction Services
S. E. Dieterle Manager, Utilities
D. J. Foucault Manager, Construction Services
G. A. Harvey Manager, Infrastructure Programs
G. D. O'Brien General Manager
D. L. Rittenhouse Manager, PNL Landlord, Engineering & Construction
Services
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WHC-380393
Section I, Page 106
R. M. Tanner, Jr. Manager, Facilities & Site Services
R. E. Tiller Executive Vice President & Acting General Manager
M. E. Witherspoon Manager, Transition Projects & Site Engineering &
Construction Services
I-84 OTHER GOVERNMENT SUBCONTRACTORS (APR 1984)
WHC or the Government may undertake or award contracts or subcontracts for
work or services. ICF KH agrees to fully cooperate with such other
subcontractors and Government or WHC employees and carefully fit its own
work to such other work as may be directed by WHC. ICF KH shall not commit
or permit any act which will interfere with the performance of work by any
other subcontractor or by Government or WHC employees.
I-85 TERMINATION (APR 1984)
(a) This subcontract shall continue until March 31, 1997 unless sooner
terminated in accordance with the provisions which follow:
(1) The performance of work under this subcontract may be terminated
by WHC in whole, or from time to time in part, (i) whenever ICF
KH shall default in performance, and shall fail to cure the fault
or failure within such period as WHC may allow after receipt from
WHC or a notice specifying the fault or failure, or (ii)
whenever, for any reason, WHC shall determine any such
termination is for the best interest of the Government.
Termination of the work hereunder shall be effected by delivery
of a notice of termination specifying whether termination is for
default of ICF KH or for the convenience of WHC, the extent to
which performance of work under the subcontract shall be
terminated, and the date upon which such termination shall become
effective. Any such termination shall be without prejudice to
any claim which either party may have against the other. If,
after notice of termination under the provisions of (a)(1)(i)
above, it is determined for any reason that ICF KH was not in
default, such notice of default shall be deemed to have been
issued pursuant to (a)(1)(ii) above, and the rights and
obligations of the parties hereto shall in such event be governed
accordingly.
(2) Upon receipt of notice of termination, in accordance with (1)
above, ICF KH shall, to the extent directed in writing by WHC,
discontinue the terminated work and the placing of orders for
materials, facilities, supplies, and services in connection
therewith, and shall proceed, if, and to the extent required by
WHC, to cancel promptly and settle with the approval of WHC,
existing orders, lower-tier
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subcontracts, and commitments insofar as such orders, lower-tier
subcontracts, and commitments pertain to this subcontract.
(b) Upon the termination of this subcontract, full and complete settlement
of all claims of ICF KH and of WHC arising out of this subcontract
shall be made as follows:
(1) WHC or the Government shall have the right in its discretion to
assume sole responsibility for any or all obligations,
commitments, and claims that ICF KH may have undertaken or
incurred, the cost of which are allowable in accordance with the
provisions of this subcontract; and ICF KH shall, as a condition
of receiving the payments mentioned in this clause, execute and
deliver all such papers and; take all such steps as WHC may
require for the purpose of fully vesting in WHC or the Government
any rights and benefits ICF KH may have under or in connection
with such obligations, commitments, or claims.
(2) WHC shall treat as allowable costs all expenditures made in
accordance with and allowable under the clause entitled
"Allowable Costs, Basic Fee, Award Fee" not previously so allowed
or otherwise credited for work performed prior to the effective
date of termination, together with expenditures as may be
incurred for a reasonable time thereafter with the approval of,
or as directed by, WHC.
(3) WHC shall treat as allowable costs, to the extent not included in
(b)(2) above, the costs of settling and paying claims arising out
of the termination of work under orders, lower-tier subcontracts,
and commitments as provided in (a)(2) above.
(4) WHC shall treat as allowable costs the reasonable costs of
settlement, including accounting, legal, clerical, and other
expenses reasonably necessary for the preparation of settlement
claims and supporting data with respect to the termination of the
subcontract and for the termination and settlement of orders and
lower-tier subcontracts thereunder, together with such further
expenditures made by ICF KH after the date of termination for the
protection or disposition of Government property as are approved
or required by WHC; provided, however, that if the termination is
for default of ICF KH, there shall not be included any amount for
preparation of ICF KH's settlement proposal.
(5) If performance of work under this subcontract is terminated in
whole by WHC, the fee of ICF KH shall be prorated to and
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include the effective date of such termination. In addition, if
the termination is for the convenience of WHC, ICF KH shall be
paid a fee in an amount to be agreed upon as compensation for its
services in closing out the work under this subcontract after the
effective date of such termination. The additional fee is to be
negotiated as soon as practicable after service of notice of
termination, shall take into account the estimate of the cost of
the services and managerial effort to be rendered under this
clause after the effective date of termination, and shall be
provided for in a supplement or amendment to this subcontract
prior to final settlement hereunder. Pending agreement as to the
amount of such fee, ICF KH shall diligently proceed with the
performance of the services required under this clause. No
additional fee will be paid if the subcontract is terminated due
to the default of ICF KH. In the event of a partial termination
by WHC, an equitable adjustment shall be made in the fee if such
termination results in a material decrease in the level of ICF
KH's management effort. Any failure to agree on the right to or
the amount of any adjustment shall be deemed a dispute within the
purview of the clause hereof entitled "Disputes."
(6) The obligation of WHC to make any of the payments required by
this clause or any other provisions of this subcontract shall be
subject to any unsettled claims in connection with this
subcontract which the Government or WHC may have against ICF KH.
(c) Prior to final settlement, ICF KH shall furnish a release as required
in the clause entitled "Payments and Advances" and account for
Government-owned property as may be required by WHC; provided,
however, that unless WHC requires an inventory, the maintenance and
disposition of the records of Government-owned property in accordance
with the clause entitled "Accounts, Records and Inspection" shall be
accepted by WHC as full compliance with all requirements of this
subcontract pertaining to an accounting for such property.
I-86 PATENT INDEMNITY (MODIFIED)
Except as otherwise authorized by WHC, ICF KH shall obtain indemnification
of the Government and its officers, agents, and employees against
liability, including costs, for infringement of copyrights and U.S. Letters
Patent (except U.S. Letters Patent issued upon an application which is now
or may hereafter be kept secret or otherwise withheld from issue by order
of the Government) from ICF KH's subcontractors in accordance with 41 CFR
9-9.103.
I-87 ANTI-KICKBACK PROCEDURES. (OCT 1988)
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(a) Definitions.
"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 Prime Contractor,
Prime Contractor employee, subcontractor, or subcontractor 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 Contract," as used in this clause, means a contract or
contractual action entered into by the United States for the purpose
of obtaining supplies, materials, equipment, or services of any kind.
"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 subcontract or
subcontractual 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;
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Section I, Page 110
(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) ICF KH 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 ICF KH has reasonable grounds to believe that a violation
described in paragraph (b) of this clause may have occurred, ICF
KH 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) ICF KH shall cooperate fully with any Federal agency
investigating a possible violation described in paragraph (b) of
this clause.
(4) WHC 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 WHC withhold, from sums owed ICF KH under the
subcontract, the amount of any kickback. WHC may order the
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, ICF KH shall notify WHC when the monies are
withheld.
(5) ICF KH agrees to incorporate the substance of this clause,
including this subparagraph (c)(5) but excepting subparagraph
(c)(1), in all subcontracts under this subcontract.
I-88 RESERVED
I-89 RESERVED
I-90 RESERVED
I-91 RESERVED
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Section I, Page 111
I-92 EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS AND VETERANS OF THE VIETNAM
ERA. (JAN 1988)
(a) The ICF KH shall report at least annually, as required by the
Secretary of Labor, on:
(1) The number of special disabled veterans and the number of
veterans of the Vietnam era in the workplace of ICF KH by job
category and hiring location; and
(2) The total number of new employees hired during the period covered
by the report, and of that total, the number of special disabled
veterans, and the number of veterans of the Vietnam era.
(b) The above items shall be reported by completing the form entitled
"FederaL Contractor Veterans' Employment Report VETS-100."
(c) Reports shall be submitted no later than March 31 of each year
beginning March 31, 1988.
(d) The employment activity report required by paragraph (a)(2) of this
clause shall reflect total hires during the most recent 12-month
period as of the ending date selected for the employment profile
report required by paragraph (a)(1) of this clause. ICF KH may select
an ending date: (1) As of the end of any pay period during the period
January through March 1 of the year the report is due, or (2) as of
December 31, if ICF KH has previous written approval from the Equal
Employment Opportunity Commission to do so for purposes of submitting
the Employer Information Report EEO-1 (Standard Form 100).
(e) The count of veterans reported according to paragraph (a) of this
clause shall be based on voluntary disclosure. Each subcontractor
subject to the reporting requirements at 38 U.S.C. 2012(d) shall
invite all special disabled veterans and veterans of the Vietnam era
who wish to benefit under the affirmative action program at 38 U.S.C.
2012 to identify themselves to the subcontractor. The invitation
shall state that the information is voluntarily provided, that the
information will be kept confidential, that disclosure or refusal to
provide the information will not subject the applicant or employee to
any adverse treatment and that the information will be used only in
accordance with the regulations promulgated under 38 U.S.C. 2012.
(f) Subcontracts. ICF KH shall include the terms of this clause in every
subcontract or purchase order of $10,000 or more unless exempted by
rules, regulations, or orders of the Secretary.
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Section I, Page 112
I-93 LEGISLATIVE LOBBYING COST PROHIBITION (JUNE 1988)
(a) Pursuant to the allowable cost provisions established elsewhere under
the subcontract, costs associated with the following activities are
not reimbursable under the subcontract:
(1) Attempts to influence the outcome of any Federal, State, or local
election, referendum, initiative, or similar procedure, through
in-kind or cash contributions, endorsements, publicity, or
similar activities;
(2) Establishing, administering, contributing to, or paying the
expenses of a political party, campaign, political action
committee, or other organization established for the purpose of
influencing the outcomes of elections;
(3) Any attempts to influence (i) the introduction of Federal or
State legislation, or (ii) the enactment or modification of any
pending Federal or State legislation through communication with
any member or employee of the Congress or State legislature
(including efforts to influence state or local officials to
engage in similar lobbying activity), or with any government
official or employee in connection with a decision to sign or
veto enrolled legislation;
(4) Any attempt to influence (i) the introduction of Federal or State
legislation, or (ii) the enactment or modification of any pending
Federal or State legislation by preparing, distributing or using
publicity or propaganda, or by urging members of the general
public or any segment thereof to contribute to or participate in
any mass demonstration, march, rally, fund raising drive,
lobbying campaign or letter writing or telephone campaign; or
(5) Legislative liaison activities, including attendance at
legislative session or committee hearings, gathering information
regarding legislation, and analyzing the effect of legislation,
when such activities are carried on in support of or in knowing
preparation for an effort to engage in unallowable activities.
(b) Costs of the following activities are exempted from the coverage of
(a) above; provided that the resultant subcontract costs are
reasonable and otherwise comply with the allowable cost provisions of
the subcontract:
(1) Providing Members of Congress, State legislatures or subdivisions
thereof, or their staff members or staff of cognizant legislative
committees, in response to a request
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Section I, Page 113
(written or oral, prior or contemporaneous, including a
Congressional Record Notice requesting testimony or statements
for the record at a regularly scheduled hearing) from Members of
Congress, State legislatures or subdivisions thereof, or their
staff members or staff of cognizant legislative committees,
information or expert advice of a factual, technical, or
scientific nature, with respect to topics directly related to the
performance of the subcontract or proposed legislation.
Reasonable costs for transportation, lodging, or meals incurred
by WHC employees for the purpose of providing such information or
advice shall also be reimbursable; provided such costs also
comply with the allowable cost provisions of the subcontract.
(2) Any lobbying made unallowable under subparagraph (a)(3) above to
influence State legislation in order to directly reduce
subcontract cost, or to avoid material impairment of WHC's
authority to perform the subcontract if authorized by WHC.
(3) Any activity specifically authorized by statute to be undertaken
with funds from the subcontract.
(c) Unallowable lobbying costs incurred, if any, shall not be charged to
WHC, paid for with WHC funds or recorded as allowable cost in WHC's
system of accounts.
(d) ICF KH's annual certification, submitted as part of its annual claim
(i.e., Voucher Accounting for Net Expenditures Accrued required under
the clause titled "Payments and Advances") or cost incurred statement,
that the costs claimed are allowable under the subcontract, shall also
serve as ICF KH's certification that the requirements and standards of
this clause have been complied with.
(e) WHC shall maintain adequate records to demonstrate that the annual
certifications of claimed costs as being allowable comply with the
requirements of this clause.
(f) Time logs, calendars, or similar records shall not be created for
purposes of complying with this clause during any particular calendar
month when: (1) an employee engages in legislative liaison activities
(as delineated in paragraphs (a) and (b) above 25 percent or less of
the employee's compensated hours of employment during that calendar
month, and (2) within the preceding five-year period, WHC has not
materially misstated allowable or unallowable costs of any nature,
including legislative liaison costs. When conditions (f)(1) and (2)
of this paragraph are met, WHC is not required to establish records to
support the allowability of claimed costs in addition
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WHC-380393
Section I, Page 114
to records already required or maintained. Also, when conditions
(f)(1) and (2) of this paragraph are met, the absence time logs,
calendars, or similar records will not serve as a basis for
disallowing costs by contesting estimates of legislative liaison
activity time spent by employees during any calendar month.
(g) During subcontract performance, WHC should resolve, in advance, any
significant questions or disagreements between the Subcontractor and
WHC concerning compliance with this clause.
I-94 DRUG-FREE WORKPLACE (JULY 1990)
(a) Definitions. As used in this clause, "Controlled substance" means a
controlled substance in schedules I through V of section 202 of the
Controlled Substances Act (21 U.S.C. 812) and as further defined in
regulation at 21 CFR 1308.11 - 1308.15.
"Conviction" means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes.
"Criminal drug statute" means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing,
possession, or use of any controlled substance.
"Drug-free workplace" means a site for the performance of work done in
connection with a specific subcontract at which employees of the
Subcontractor are prohibited from engaging in the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance.
"Employee" means an employee of a Subcontractor directly engaged in
performance of work under a WHC subcontract.
"Individual" means an offeror/subcontractor that has no more than one
employee including the offeror/subcontractor.
(b) WHC, if other than an individual, shall:
(1) Publish a statement notifying its employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in WHC's workplace and
specifying the actions that will be taken against employees for
violations of such prohibition;
(2) Establish a drug-free awareness program to inform such employees
about:
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Section I, Page 115
(i) The dangers of drug abuse in the workplace;
(ii) WHC's policy of maintaining a drug-free workplace;
(iii) Any available drug counseling, rehabilitation, and
employee assistance programs; and
(iv) The penalties that may be imposed upon employees for drug
abuse violations occurring in the workplace.
(3) Provide all employees engaged in performance of the subcontract
with a copy of the statement required by subparagraph (b)(1) of
this clause;
(4) Notify such employees in the statement required by subparagraph
(b)(1) of this clause, that as a condition of continued
employment on this subcontract, the employee will:
(i) Abide by the terms of the statement; and
(ii) Notify the employer of any criminal drug statute conviction
for a violation occurring in the workplace no later than
five (5) days after such conviction.
(5) Notify WHC within ten (10) days after receiving notice under
subdivision (b)(4)(ii) of this clause, from an employee or
otherwise receiving actual notice of such conviction;
(6) Within thirty (30) days after receiving notice under subdivision
(b)(4)(ii) of this clause of a conviction, impose the following
sanctions or remedial measures on any employee who is convicted
of drug abuse violations occurring in the workplace;
(i) Taking appropriate personnel action against such employee,
up to and including termination; or
(ii) Require such employee to satisfactorily participate in drug
abuse assistance or rehabilitation program approved for
such purposes by a Federal, State, or local health, law
enforcement, or other appropriate agency.
(7) Make a good faith effort to maintain a drug-free workplace
through implementation of subparagraphs (b)(1) through (b)(6) of
this clause.
(c) WHC, if an individual, agrees by award of the subcontract or
acceptance of a purchase order, not to engage in the unlawful
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WHC-380393
Section I, Page 116
manufacture, distribution, dispensing, possession, or use of a
controlled substance in the performance of this subcontract.
(d) In addition to other remedies available to WHC, the Subcontractor's
failure to comply with the requirements of paragraphs (b) and (c) of
this clause may, pursuant to FAR 23.506, render the subcontractor
subject to suspension of subcontract payments, termination of the
subcontract for default, and suspension or debarment.
I-95 SUBCONTRACTOR EMPLOYEE TRAVEL DISCOUNTS. (APR 1989)
Consistent with subcontract-authorized travel requirements, ICF KH
employees shall make use of the travel discounts offered to Federal
travelers, through use of contracted airlines discount air fares, hotels
and motels lodging rates and car rental companies, when use of such
discounts would result in lower overall trip costs and the discounted
services are reasonably available to ICF KH employees performing official
Government subcontract business. Vendors providing these services may
require that ICF KH employee traveling on Government business be furnished
with a letter of identification signed by WHC.
(a) Contracted airlines. Airlines participating in travel discounts are
listed in the Federal Travel Directory (FTD), published monthly by the
General Services Administration (GSA). Regulations governing the use
of contracted airlines are contained in the Federal Property
Management Regulation (FPMR), Temporary Regulation A-30, Temporary
Regulation A-30 stipulates that cost-reimbursable subcontract
employees may obtain discount air fares by use of a Government
Transportation Request (GTR), Standard Form 1169, cash or personal
credit cards. When the GTR is used, WHC may issue a blanket GTR for a
period of not less than two weeks nor more than one month. In unusual
circumstances, such as prolonged or international travel, WHC may
extend the period for which a blanket GTR is effective to a maximum of
three months. Subcontractors will ensure that their employees
traveling under GTR's provide the GTR number to the contracted
airlines for entry on individual tickets and on month-end billings to
ICF KH.
(b) Hotels/motels. Participating hotels and motels which extend discounts
are listed in the FTD, which shows rates, facilities, and identifies
by code those which offer reduced rates to cost-reimbursable
subcontractor employees while traveling on official subcontract
business.
(c) Car rentals. The Military Traffic Management Command (MTMC)
Department of Defense, negotiates rate agreements with car rental
companies for special flat rates and unlimited mileage. Participating
car rental companies which offer these terms on to
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Section I, Page 117
cost-reimbursable subcontractor employees while traveling on official
subcontract business are listed in the FTD.
(d) Procedures for obtaining service. (1) Identification and method of
payment requirements for participating Federal contracted airlines are
listed in the FTR. Travel discount air fares may be ordered by the
issuance of a GTR either directly to ICF KH, or to a Scheduled Airline
Travel Office (SATO) or Federal Travel Management Center (FTMC),
provided the letter of identification signed by the cognizant WHC CAR
accompanies the order. In appropriate instances, such as geographical
proximity, subcontractors may obtain discount air fares through a WHC
office of a cooperating local travel agency when neither a SATO or
FTMC is available. Some airlines allow the purchase of discounted air
fares with cash or credit card. (2) In the case of hotel and motel
accommodations, reservations may be made by an ICF KH employee
directly with the hotel or motel but the employee must display, on
arrival, the letter of identification and any other identification
required by the hotel or motel proprietorship. (3) For car rentals,
generally the same procedures as in (d)(2) above will be followed in
arranging reservations and obtaining discounts.
(e) Standard letter of identification. ICF KH shall prepare for WHC a
letter of identification based on the following format:
Format for Government subcontractors to Qualify for Travel Discounts
(To be typed on agency official letterhead)
To: [(Source of ticketing, accommodations or rental)]
Subject: Official Travel of Government Subcontractor
[Full name of traveler], bearer of this letter, is an employee of
[company name] which is under subcontract to this agency under the
Government subcontract [contract number]. During the period of the
subcontract [give dates], the employee is eligible and authorized to
use available discount rates for subcontract-related travel in
accordance with your subcontract and/or agreement with the Federal
Government.
[Signature, title and telephone number of WHC]
I-96 LIQUIDATED DAMAGES - SMALL BUSINESS SUBCONTRACTING PLAN. (AUG 1989)
(a) "Failure to make a good faith effort to comply with the subcontracting
plan," as used in this clause, means a willful or intentional failure
to perform in accordance with the requirements of the subcontracting
plan approved under the clause in this
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subcontract entitled Small Business and Small Disadvantaged Business
Subcontracting Plan, or willful or intentional action to frustrate the
plan.
(b) If, at subcontract completion, or in the case of a commercial products
plan, at the close of the fiscal year for which the plan is
applicable, ICF KH has failed to meet its subcontracting goals and WHC
decides in accordance with paragraph (c) of this clause that ICF KH
failed to make a good faith effort to comply with its subcontracting
plan, established in accordance with the clause in this subcontract
entitled Small and Small Disadvantaged Business Subcontracting Plans,
ICF KH shall pay WHC or the Government liquidated damages in an amount
stated. The amount of damages attributable to ICF KH's failure to
comply shall be an amount equal to the actual dollar amount by which
ICF KH failed to achieve each subcontract goal or, in the case of a
commercial products plan, that portion of the dollar amount allocable
to WHC or the Government contracts by which ICF KH failed to achieve
each subcontract goal.
(c) Before WHC or the Government makes a final decision that ICF KH has
failed to make such good faith effort, WHC shall give ICF KH written
notice specifying the failure and permitting ICF KH to demonstrate
what good faith efforts have been made. Failure to respond to the
notice may be taken as an admission that no valid explanation exists.
If, after consideration of all the pertinent data, WHC finds that ICF
KH failed to make a good faith effort to comply with the
subcontracting plan, WHC shall issue a final decision to that effect
and require that ICF KH pay WHC or the Government liquidated damages
as provided in paragraph (b) of this clause.
(d) With respect to commercial products plans, i.e., company-wide or
division-wide subcontracting plans approved under paragraph (g) of the
clause in this subcontract entitled, Small Business and Small
Disadvantaged Business Subcontracting Plan, WHC or the agency that
originally approved the plan will exercise the functions of WHC under
this clause on behalf of all agencies that awarded contracts covered
by that commercial products plan.
(e) ICF KH shall have the right of appeal, under the clause in this
subcontract entitled Disputes, from any final decision of WHC.
(f) Liquidated damages shall be in addition to any other remedies that WHC
or the Government may leave.
I-97 ENVIRONMENTAL PROTECTION (MAR 1994).
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Section I, Page 119
(a) In addition to complying with the requirements set forth in the "Clean
Air and Water" clause, in the performance of this subcontract ICF KH
shall comply, as applicable, with the following, which list is not
represented to be free of omission:
(1) The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et
seq.);
(2) The Department of Energy Organization Act (42 U.S.C. 7101 et
seq.);
(3) The Energy Reorganization Act of 1974 (42 U.S.C. 5801 et seq.);
(4) The Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. 6901 et seq.);
(5) The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.);
(6) The Safe Drinking Water Act, as amended (42 U.S.C. 300 et seq.);
(7) The Toxic Substances Control Act, as amended (15 U.S.C. 2601 et
seq.);
(8) The Federal Insecticide, Fungicide, and Rodenticide Act, as
amended (7 U.S.C. 136 et seq.);
(9) The Marine Protection, Research, and Sanctuaries Act of 1972, as
amended (33 U.S.C. 1401 et seq.);
(10) The Coastal Zone Management Act of 1972, as amended (16 U.S.C.
1451 et seq.);
(11) The Coastal Barrier Resource Act of 1982 (16 U.S.C. 3501 et
seq,);
(12) The Nuclear Waste Policy Act of 1982, as amended (42 U.S.C.
10101 et seq.);
(13) The Low-Level Radioactive Waste Policy Act, as amended (42 U.S.C.
2021 et seq.);
(14) The Uranium Mill Tailings Radiation Control Act of 1978, as
amended (42 U.S.C. 7901 et seq.);
(15) Pollution Prevention Act of 1990, as amended (42 U.S.C. 13101 et
seq.);
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Section I, Page 120
(16) Emergency Planning and Community Right-to-Know Act, as amended
(42 U.S.C. 11001 et seq.);
(17) Motor Vehicle Information and Cost Savings Act, as amended (15
U.S.C. 1901 et seq.);
(18) Energy Policy Act of 1992 (Public Law 102-486 and 3 U.S.C. 301);
(19) Energy Policy and Conservation Act (42 U.S.C. 6201 et seq);
(20) Code of Federal Regulations, Title 10 (Energy), parts involving
environmental protection and related requirements for
Contractors;
(21) DOE Directives (i.e., Orders and Notices) numbered in the series
between 1540 and 1541 (Materials), between 5000.2 and 5000.4
(Unusual Occurrence Reporting), in the series between 5400 and
5500 (Environmental Quality and Impact), and between 5820.1 and
5820.3 (Radioactive Waste Management), and involving requirements
for Contractors; except for those Directives which are issued
after the effective date of this modification and for which the
Contractor has not been directed by the Contracting Officer to
comply with, or for which the Contractor has received a waiver;
and
(22) Other, Federal and non-Federal, environmental protection laws,
codes, ordinances, Executive Orders, regulations, and
requirements in DOE Directives, as identified in writing by WHC.
Errors in or omissions from the list of laws above, or failure to
identify a requirement having the force and effect of law, shall
not be construed as waiving a requirement for ICF KH to comply
with such law or requirement nor shall they form the basis for a
defense by ICF KH in an administrative, civil, or criminal
proceeding, including providing a basis for a claim for the
allowability of a fine, penalty, or other cost associated with
failure to comply with such law or requirement.
(b) ICF KH shall assist the U.S. Department of Energy in complying, as
applicable, with the following:
(1) The National Environmental Policy Act of 1969, as amended (42
U.S.C. 4321 et seq.);
(2) The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.);
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Section I, Page 121
(3) The Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661
et seq.);
(4) The Noise Control Act of 1972, as amended (42 U.S.C. 4901 et
seq.);
(5) The National Historic Preservation Act of 1966, as amended (16
U.S.C. 470 et seq.);
(6) The Wild and Scenic Rivers Act, as amended (16 U.S.C. 1273 et
seq.);
(7) Farmland Protection Policy Act of 1981 (7 U.S.C. 4201 et seq.);
(8) Executive Order 11988 of May 24, 1977, Floodplain Management;
(9) Executive Order 11990, of May 24, 1977, Protection of Wetlands;
(10) Executive Order 12088 of October 13, 1978, Federal Compliance
with Pollution Control Standards;
(11) Executive Order 12580 of January 23, 1987, Superfund
Implementation;
(12) Executive Order 12843 of April 23, 1993, Procurement
Requirements and Policies for Ozone-Depleting Substances;
(13) Executive Order 12845 of April 23, 1993, Requiring Agencies to
Purchase Energy Efficient Computer Equipment;
(14) Office of Management and Budget (OMB) Circular No. A-106 of
December 31, 1974, Reporting Requirements in Connection with the
Prevention, Control, and Abatement of Environmental Pollution of
Existing Federal Facilities; and
(15) Other, Federal and non-Federal, environmental protection laws,
codes, ordinances, regulations, and DOE Directives, as identified
in writing by WHC.
(c) ICF KH shall, with regard to the environmental protection laws, codes,
ordinances, Executive Orders, regulations and directives included in
or covered by paragraphs (a) and (b) of this clause, set forth
appropriate environmental protection requirements in subcontracts with
respect to work to be performed on-site at a DOE-owned or -leased
facility."
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Section I, Page 122
I-98 MANAGEMENT CONTROLS (FEB 1993 REVISED)
(a) ICF KH shall be responsible for maintaining, as an integral part of
its organization, effective systems of management controls for both
administrative and programmatic functions. Management controls
comprise the plan of organization, methods and procedures adopted by
management to reasonably ensure that: The mission and functions
assigned to ICF KH are properly executed; efficient and effective
operations are promoted; resources are safeguarded against theft,
fraud, waste, and unauthorized use; all encumbrances and costs that
are incurred and fees that are earned under the subcontract (including
ICF KH's fixed fee) are in compliance with applicable clauses and
other current terms, conditions, and intended purposes; all
collections accruing to ICF KH in connection with work under this
subcontract, expenditures, and all other transactions and assets are
properly recorded, managed, and reported; and financial statistical,
and other reports necessary to maintain accountability and managerial
control are accurate, reliable, and timely. The systems of controls
employed by ICF KH shall be documented and satisfactory to WHC. Such
systems shall be an integral part of ICF KH's management functions,
including defining specific roles and responsibilities for each level
of management, and holding employees accountable for the adequacy of
the management systems and internal controls in their areas of
assigned responsibility.
(b) ICF KH shall be responsible for maintaining, as a part of its
operational responsibilities, a baseline quality assurance program
that implements documented performance, quality standards, and control
and assessment techniques.
I-99 DELETED
I-100 DELETED
I-101 WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES (AUG 1992)
(a) WHC represents that there is included in its prime contract with DOE
a workplace substance abuse provision, a copy of which may be
obtained from WHC. WHC will administer this program within the
guidelines referenced in clause H-9, Division of Administrative
Functions.
(b) Remedies.
In addition to any other remedies available to WHC, ICF KH's failure
to comply with the requirements of the Workplace Substance Abuse
Program or to perform in a manner consistent with its approved program
may render ICF KH subject to the suspension of
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WHC-380393
Section I, Page 123
subcontract payments or, where applicable, a reduction in award fee;
termination for default; and suspension or debarment.
(c) Subcontracts.
(1) ICF KH agrees to notify WHC reasonably in advance of, but not
later than 30 days prior to, the award of any subcontract ICF KH
believes may be subject to the requirements of 10 CFR part 707.
(2) WHC shall require all subcontracts subject to the provision of 10
CFR part 707 to agree to develop and implement a workplace
substance abuse program that complies with the requirements of 10
CFR part 707, Workplace Substance Abuse Programs at DOE Sites, as
a condition for award of the subcontract. WHC shall review and
approve ICF KH's program, and shall periodically monitor each
subcontractor's implementation of the program effectiveness and
compliance with 10 CFR part 707.
(3) ICF KH agrees to include, and require the inclusion of, the
requirements of this clause in all subcontracts, at any tier,
that are subject to the provisions of 10 CFR part 707.
I-102 REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY-MODIFICATION (NOV
1990)
(a) Definitions. The definitions set forth in FAR 3.104-4 are hereby
incorporated in this clause.
(b) ICF KH agrees that it will execute the certification set forth in
paragraph (c) of this clause when requested by WHC in connection with
the execution of any modification of this subcontract.
(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
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WHC-380393
Section I, Page 124
the FAR, occurring during the conduct of this procurement
_______________________ (subcontract and modification number).
(2) As required by subsection 27(e)(1)(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 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 1, 1990. Subsection 27(f) is effective on June 1, 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.
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Section I, Page 125
(End of certification)
(d) In making the certification in paragraph (2) of the certificate, the
officer or employee of the competing Subcontractor responsible for the
offer or bid, may rely upon a one-time certification from each
individual required to submit a certification to the competing
Subcontractor, 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 Subcontractor. If a Subcontractor decides to rely on a
certification executed prior to the suspension of section 27 (i.e.,
prior to December 1, 1989), the Subcontractor shall ensure that an
individual who has so certified is notified that section 27 has been
reinstated. These certifications shall be maintained by the
Subcontractor for a period of six (6) years from the date a certifying
employee's employment with the company ends or, for an agency,
representative, or consultant, six (6) years from the date such
individual ceases to act on behalf of the Subcontractor.
(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.
I-103 PRICE OR FEE ADJUSTMENT OF ILLEGAL OR IMPROPER ACTIVITY (SEP 1990)
(a) WHC, at its election, may reduce the price of a fixed-price type
subcontract or subcontract modification and the total cost and fee
under a cost-type subcontract or subcontract modification by the
amount of profit or fee determined as set forth in paragraph (b) of
this clause if the head of the contracting activity or his/her
designee determines that there was a violation of subsection 27(a) of
the Office of Federal Procurement Policy Act, as amended (41 U.S.C.
423), as implemented in the FAR. In the case of a subcontract
modification, the fee subject to reduction is the fee specified in the
particular subcontract modification at the time of execution, except
as provided in subparagraph (b)(5) of this clause.
(b) The price or fee reduction referred to in paragraph (a) of this clause
shall be -
(1) For cost-plus-fixed-fee subcontracts, the amount of the fee
specified in the subcontract at the time of award;
(2) For cost-plus-incentive-fee subcontracts, the target fee
specified in the subcontract at the time of award,
notwithstanding any minimum fee or "fee floor" specified in the
subcontract.
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WHC-380393
Section I, Page 126
(3) For cost-plus-award-fee subcontracts -
(i) The base fee established in the subcontract at the time of
subcontract award;
(ii) If no base fee is specified in the subcontract, 30 percent
of the amount of each award fee otherwise payable to the
Subcontractor for each award fee evaluation period or at
each award fee determination point.
(4) For fixed-price-incentive subcontracts, WHC may -
(i) Reduce the subcontract target price and subcontract target
profit both by an amount equal to the initial target profit
specified in the subcontract at the time of subcontract
award; or
(ii) If an immediate adjustment to the subcontract target price
and subcontract target profit would have a significant
adverse impact on the incentive price revision relationship
under the subcontract, or adversely affect the subcontract
financing provisions, WHC may defer such adjustment until
establishment of the total final price of the subcontract.
The total final price established in accordance with the
incentive price revision provisions of the subcontract shall
be reduced by an amount equal to the initial target profit
specified in the subcontract at the time of subcontract
award and such reduced price shall be the total final
subcontract price.
(5) For firm-fixed-price subcontracts or subcontract modifications,
by 10 percent of the initial subcontract price; 10 percent of the
subcontract modification price; or a profit amount determined by
WHC from records or documents in existence prior to the date of
the subcontract award or modification.
(c) WHC, at its election, reduce a subcontractor's price or fee in
accordance with the procedures of paragraph (b) of this clause for
violations of the Act by its subcontractors by an amount not to exceed
the amount of profit or fee reflected in the subcontract at the time
the subcontract was first definitively priced.
(d) In addition to the remedies in paragraphs (a) and (c) of this clause,
WHC may terminate this subcontract for default. The rights and
remedies of WHC specified herein are not exclusive, and
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WHC-380393
Section I, Page 127
are in addition to any other rights and remedies provided by law or
under this subcontract.
I-104 LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(JAN 1990)
(a) Definitions.
"Agency," as used in this clause, means executive agency as defined in
2.101.
"Covered Federal action," as used in this clause, means any of the
following Federal actions:
(1) The awarding of any Federal subcontract.
(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 subcontract, grant, loan, or cooperative
agreement.
"Indian tribe" and "tribal organization," as used in this clause, 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 clause,
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 clause, 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 other instrumentality of a local government.
"Officer or employee of an agency," as used in this clause, includes
the following individuals who are employed by an agency:
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WHC-380393
Section I, Page 128
(1) An individual who is appointed to a position in the Government
under title 5, United States Code, including a position under a
temporary appointment.
(2) A member of the uniformed services, as defined in subsection
101(3), title 37, United States Code.
(3) A special Government employee, as defined in section 202, title
18, United States Code.
(4) 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 clause, 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.
"Reasonable compensation," as used in this clause, 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 clause, 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 clause, includes ICF KH and all
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 clause, means, with respect to
an officer or employee of a person requesting or receiving a Federal
subcontract, an officer or employee who is employed by such person for
at least 130 working days within one (1) year immediately preceding
the date of the submission that initiates agency consideration of such
person for receipt of such subcontract. An officer or employee who is
employed by such person for less than 130 working days within one (1)
year immediately preceding the date of the submission that initiates
agency consideration of such person shall be considered to be
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WHC-380393
Section I, Page 129
regularly employed as soon as he or she is employed by such person for
130 working days.
"State," as used in this clause, means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, a territory
or possession 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 subcontract, 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 covered Federal actions:
the awarding of any Federal subcontract; the making of any
Federal grant; the making of any Federal loan; the entering into
of any cooperative agreement; or the modification of any Federal
subcontract, grant, loan, or cooperative agreement.
(2) The Act also requires Subcontractors to furnish a disclosure 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 in connection with a Federal
subcontract, grant, loan, or cooperative agreement.
(3) The prohibitions of the Act do not apply under the following
conditions:
(i) Agency and legislative liaison by own employees.
(A) The prohibition on the use of appropriated funds, in
subparagraph (b)(1) of this clause, does not apply in
the case of a payment of reasonable compensation made
to an officer or employee of a person requesting or
receiving a covered Federal action if the payment is
for agency and legislative liaison activities not
directly related to a covered Federal action.
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WHC-380393
Section I, Page 130
(B) For purposes of subdivision (b)(3)(i)(A) of this
clause, providing any information specifically
requested by an agency or Congress is permitted at any
time.
(C) The following agency and legislative liaison activities
are permitted at any time where they are not related to
a specific solicitation for any covered Federal action:
(1) Discussing with an agency the qualities and
characteristics (including individual
demonstrations) of the person's products or
services, conditions or terms of sale, and service
capabilities.
(2) Technical discussions and other activities
regarding the application or adaptation of the
person's products or services for an agency's use.
(D) The following agency and legislative liaison activities
are permitted where they are prior to formal
solicitation of any covered Federal action -
(1) Providing any information not specifically
requested but necessary for an agency to make an
informed decision about initiation of a covered
Federal action;
(2) Technical discussions regarding the preparation of
an unsolicited proposal prior to its official
submission; and
(3) Capability presentations by persons seeking awards
from an agency pursuant to the provisions of the
Small Business Act, as amended by Pub. L. 95-507,
and subsequent amendments.
(E) Only those services expressly authorized by subdivision
(b)(3)(i)(A) of this clause are permitted under this
clause.
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WHC-380393
Section I, Page 131
(ii) Professional and technical services.
(A) The prohibition on the use of appropriated funds, in
subparagraph (b)(1) of this clause, does not apply in
the case of -
(1) A payment of reasonable compensation made to an
officer or employee of a person requesting or
receiving a covered Federal action or an
extension, continuation, renewal, amendment, or
modification of a covered Federal action, if
payment is for professional or technical services
rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or
application for that Federal action or for meeting
requirements imposed by or pursuant to law as a
condition for receiving that Federal action.
(2) Any reasonable payment to a person, other than an
officer or employee of a person requesting or
receiving a covered Federal action or an
extension, continuation, renewal, amendment, or
modification of a covered Federal action if the
payment is for professional or technical services
rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or
application for that Federal action or for meeting
requirements imposed by or pursuant to law as a
condition for receiving that Federal action.
Persons other than officers or employees of a
person requesting or receiving a covered Federal
action include consultants and trade associations.
(B) For purposes of subdivision (b)(3)(ii)(A) of this
clause, professional and technical services shall be
limited to advice and analysis directly applying any
professional or technical discipline. For example,
drafting of a legal document accompanying a bid or
proposal by a lawyer is allowable.
Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of
equipment rendered
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WHC-380393
Section I, Page 132
directly in the negotiation of a subcontract is
allowable. However, communications with the intent to
influence made by a professional (such as a licensed
lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless
they provide advice and analysis directly applying
their professional or technical expertise and unless
the advice or analysis is rendered directly and solely
in the preparation, submission or negotiation of a
covered Federal action. Thus, for example,
communications with the intent to influence made by a
lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his
or her clients's proposal, but generally advocate one
proposal over another are not allowable under this
section because the lawyer is not providing
professional legal services. Similarly, communications
with the intent to influence made by an engineer
providing an engineering analysis prior to the
preparation or submission or a bid or proposal are not
allowable under this section since the engineer is
providing technical services but not directly in the
preparation, submission or negotiation of a covered
Federal action.
(C) Requirements imposed by or pursuant to law as a
condition for receiving a covered Federal award include
those required by law or regulation and any other
requirements in the actual award documents.
(D) Only those services expressly authorized by
subdivisions (b)(3)(ii)(A)(1) and (2) of this clause
are permitted under this clause.
(E) The reporting requirements of FAR 3.803(a) shall not
apply with respect to payments of reasonable
compensation made to regularly employed officers or
employees of a person.
(c) Disclosure.
(1) The Subcontractor who requests or receives from an agency a
Federal subcontract shall file with that agency a disclosure
form, OMB standard form LLL, Disclosure of Lobbying Activities,
if such person has made or has agreed to make
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WHC-380393
Section I, Page 133
any payment using nonappropriated funds (to include profits from
any covered Federal action), which would be prohibited under
subparagraph (b)(1) of this clause, if paid for with appropriated
funds.
(2) The Subcontractor shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that materially
affects the accuracy of the information contained in any
disclosure form previously filed by such person under
subparagraph (c)(1) of this clause. An event that materially
affects the accuracy of the information reported includes -
(i) A cumulative increase of $25,000 or more in the amount paid
or expected to be paid for influencing or attempting to
influence a covered Federal action; or
(ii) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal Action; or
(iii) A change in the officer(s), employee(s), or Member(s)
contacted to influence or attempt to influence a covered
Federal action.
(3) The Subcontractor shall require the submittal of a certification,
and if required, a disclosure form by any person who requests or
received any subcontract exceeding $100,000 under the Federal
subcontract.
(4) All subcontractor disclosure forms (but not certifications) shall
be forwarded from tier to tier until received by ICF KH. ICF KH
shall submit all disclosures to WHC at the end of the calendar
quarter in which the disclosure form is submitted by the
subcontractor. Each subcontractor certification shall be
retained in the subcontract file of the awarding contractor.
(d) Agreement. ICF KH agrees not to make any payment prohibited by this
clause.
(e) Penalties.
(1) Any person who makes an expenditure prohibited under paragraph
(a) of this clause or who fails to file or amend the disclosure
form to be filed or amended by paragraph (b) of this clause shall
be subject to civil penalties as provided for by 31 U.S.C. 1352.
An imposition of a civil
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WHC-380393
Section I, Page 134
penalty does not prevent the Government from seeking any other
remedy that may be applicable.
(2) WHC may rely without liability on the representation made by
their subcontractors in the certification and disclosure form.
(f) Cost allowability. Nothing in this clause makes allowable or
reasonable any costs which would otherwise be unallowable or
unreasonable. Conversely, costs made specifically unallowable by the
requirements in this clause will not be made allowable under any other
provision.
I-105 PROTECTING THE GOVERNMENT'S INTEREST WHEN SUBCONTRACTING WITH CONTRACTORS
DEBARRED, SUSPENDED, OR PROPOSED FOR DEBARMENT. (JUN 1991)
(a) WHC or the Government suspends or debars subcontractors to protect
WHC's or the Government's interests. ICF KH shall not enter into any
subcontract in excess of the small purchase limitation at FAR 13.000
with a subcontractor that has been debarred, suspended, or proposed
for debarment unless there is a compelling reason to do so.
(b) ICF KH shall require each proposed first-tier subcontractor, whose
subcontract will exceed the small purchase limitation at FAR 13.000,
to disclose to ICF KH, in writing, whether as of the time of award of
the subcontract, ICF KH, or its principles, is or is not debarred,
suspended, or proposed for debarment by the Federal Government.
(c) A corporate officer or a designee of ICF KH shall notify WHC, 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 from Procurement
Programs). The notice must include the following:
(1) The name of the subcontractor.
(2) ICF KH's knowledge of the reasons for the subcontractor being on
the List of Parties Excluded from Procurement Programs.
(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 ICF KH has established to ensure that
it is fully protecting WHC or the Government's interests when
dealing with such subcontractor in view of
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the specific basis for the party's debarment, suspension, or
proposed debarment.
I-106 RESERVED
I-107 RESERVED
I-108 RESERVED
I-109 TECHNOLOGY TRANSFER
ICF KH should use the WHC Technology Transfer Program. The following
clause listing requirements, was adapted from the WHC Prime Contract.
This clause has as its purpose, implementation of the National
Competitiveness Technology Transfer Act of 1989 (Sections 3131, 3132,
3133, and 3159 of P.L. 101-189) and takes precedence over any other
provisions of this Contract to the contrary.
(a) Technology transfer.
(1) Definitions.
(i) Contractor's Laboratory Director means the individual who
has supervision over all or substantially all of
Contractor's operations at the Laboratory.
(ii) Intellectual Property means patents, trademarks,
copyrights, mask works, and other forms of comparable
property rights protected by Federal Law.
(iii) Cooperative Research and Development Agreements (CRADAs)
mean any agreement entered into between one or more Federal
laboratories and one or more non-Federal parties under
which the Government, through its laboratories, provides
personnel, services, facilities, equipment, and other
resources with or without reimbursement (but not funds to
non-Federal parties) and the non-Federal parties provide
funds, personnel, services, facilities, equipment, or other
resources toward the conduct of specified research or
development efforts which are consistent with the missions
of the Laboratory; except that such term does not include a
procurement contract, grant, or cooperative agreement as
those terms are used in Sections 6303, 6304, and 6305 of
Title 31 of the United States Code.
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Section I, Page 136
(iv) Joint Work Statement (JWS) means a proposal for a CRADA
prepared by the Contractor, signed by the Contractor's
Laboratory Director or designee which describes the
following:
(A) Purpose;
(B) Scope of Work which delineates the rights and
responsibilities of the Government, the Contractor and
Third Parties, one of which must be a non-Federal
party;
(C) Schedule for the work; and
(D) Cost and resource contributions of the parties
associated with the work and the schedule.
(2) Authority.
(i) In order to ensure the full use of the results of research
and development efforts of, and the capabilities of, the
Laboratory, technology transfer, including CRADAs, is
established as a mission of the Laboratory consistent with
the policy, principles, and purposes of Sections 11(a)(1)
and 12(g) of the Stevenson-Wydler Technology Innovation Act
of 1980 as amended (15 U.S.C. 3710a); Section 3132(b) of
P.L. 101-189 and of Chapter 38 of the Patent Laws (35
U.S.C. 200 et seq.); Section 152 of the Atomic Energy Act
of 1954 as amended (42 U.S.C. 2182); Section 9 of the
Federal Non-Nuclear Act of 1974 (42 U.S.C. 5908); and
Executive Order 12591 of April 10, 1987.
(ii) ICF KH shall conduct technology transfer activities with
the clear intent of providing benefit from Federal research
to U.S. industrial competitiveness.
(iii) In pursuing the technology transfer mission, ICF KH is
empowered to conduct the following activities: identify and
protect Intellectual Property, negotiate licensing
agreements for Intellectual Property that ICF KH controls
or owns, enter into CRADAs, provide technical consulting
and personnel exchanges, conduct science education
activities and reimbursed Work For Others (WFO), provide
information exchanges and make available Laboratory user
facilities. It is fully expected that ICF KH shall use all
of the mechanisms available to them to accomplish this
technology
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transfer mission, including, but not limited to, user
facilities, WFO, science education activities, consulting,
personnel exchanges, and licensing in accordance with this
clause.
(3) Allowable costs (Applies to Contractors performing technology
transfer activities under this clause and from which all income
is returned to the Laboratory for use under the Contract).
(i) ICF KH shall establish and carry out its technology
transfer efforts through appropriate organizational
elements consistent with the requirements for an Office of
Research and Technology Applications (ORTA) pursuant to
paragraphs (b) and (c) of Section 11 of the Stevenson-
Wydler Technology Innovation Act of 1980 as amended (15
U.S.C. 3710). The costs associated with the conduct of
technology transfer through the ORTA, including activities
associated with obtaining, maintaining, and licensing
Intellectual Property rights, increasing the potential for
the transfer of technology, and the widespread notice of
technology transfer opportunities, shall be deemed
allowable provided that such costs meet the other
requirements of the allowable costs provisions of this
subcontract. These costs in any fiscal year shall not
exceed an amount equal to 0.5 percent of the Federal
research and development budget (operating including Work
For Others) of the Laboratory for that fiscal year, without
written approval of WHC, in addition to any separately
designated funds.
(ii) ICF KH's participation in litigation to enforce or defend
Intellectual Property claims associated with its technology
transfer efforts shall be as provided in the clause
entitled "Insurance - Litigation and Claims" of this
subcontract.
(4) Conflicts of interest - technology transfer.
ICF KH shall develop implementing procedures that seek to avoid
employee and organizational conflicts of interest, or the
appearance of conflicts of interest, in the conduct of its
technology transfer activities. Such implementing procedures
shall be provided to WHC for review and approval within sixty
(60) days after execution of this clause. WHC will have thirty
(30) days thereafter to approve or require specific changes to
such procedures. Such implementing procedures shall include
procedures to:
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(i) Ensure employee competency, conduct, and integrity, in
connection with the CRADA activity in accordance with the
provisions of paragraph (b)(5) of this clause.
(ii) Review and approve employee activities so as to avoid
conflicts of interest arising from commercial utilization
activities relating to subcontractor-developed
Intellectual Property.
(iii) Conduct work performed using royalties so as to avoid
interference with or adverse effects on ongoing WHC or
DOE projects and programs.
(iv) Conduct activities relating to commercial utilization of
subcontractor-developed Intellectual Property so as to
avoid interference with or adverse effects on user
facility or WFO activities of ICF KH.
(v) Conduct DOE funded projects and programs so as to avoid
the appearance of conflicts of interest or actual
conflicts of interest with non-Government funded work.
(vi) Notify WHC with respect to any new work to be performed
or proposed to be performed under the subcontract for DOE
or other Federal agencies where the new work or proposal
involves Intellectual Property in which ICF KH has
obtained or intends to request or elect title.
(vii) Except as provided elsewhere in this subcontract, obtain
the approval of WHC for any licensing of or assignment of
title to Intellectual Property rights by ICF KH to any
business or corporate affiliate of ICF KH.
(viii) Obtain the approval of WHC prior to any assignment,
exclusive licensing, or option for exclusive licensing,
of Intellectual Property to any current or former
Laboratory employee or consultant.
(ix) Notify non-Federal sponsors of WFO activities, or non-
Federal users of user facilities, of any relevant
Intellectual Property interest of ICF KH prior to
execution of WFOs or user agreements.
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(5) Fairness of opportunity.
In conducting its technology transfer activities, ICF KH shall
prepare procedures and take all reasonable measures to ensure
widespread notice of availability of technologies suited for
transfer and opportunities for exclusive licensing and joint
research arrangements. The requirement to widely disseminate the
availability of technology transfer opportunities does not apply
to a specific application originated outside of the Laboratory.
(6) U.S. Industrial Competitiveness.
(i) In the interest of enhancing U.S. Industrial
Competitiveness, ICF KH shall, in its licensing and
assignments of Intellectual Property, give preference in
such a manner as to enhance the accrual of economic and
technological benefits to the U.S. domestic economy. ICF
KH shall consider the following factors in all of its
licensing and assignment decisions:
(A) Whether any resulting design and development will be
performed in the United States and whether resulting
products, embodying parts, including components
thereof, will be substantially manufactured in the
United States; or
(B) 1 Whether the proposed licensee or assignee has a
-
business unit located in the United States and
whether significant economic and technical
benefits will flow to the United States as a
result of the license or assignment agreement; and
further,
2 Whether in licensing any entity subject to the
-
control of a foreign company or government, such
foreign government permits United States agencies,
organizations, or other persons to enter into
cooperative research and development agreements
and licensing agreements, and have policies to
protect United States intellectual property
rights.
If ICF KH determines that neither of the above two sets of
conditions is likely to be fulfilled, ICF KH,
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WHC-380393
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to entering into such an agreement, must obtain the
approval of WHC. WHC shall act on any such requests for
approval within thirty (30) days.
(ii) ICF KH agrees to be bound by the provision of 35 U.S.C.
204.
(7) Indemnity - product liability.
In conducting technology transfer activities, including, but not
limited to, licensing activities or CRADAs, ICF KH agrees to
include in such agreements a requirement that ICF KH and the U.S.
Government be indemnified for all damages, costs, and expenses,
including attorneys' fees, arising from the commercialization and
utilization of such technologies, including, but not limited to,
the making, using, selling, or exporting of products, processes,
or services derived from the transferred technology.
(8) Disposition of income (Applies to ICF KH conducting technology
transfer activities under this clause and from which all income
is returned to the Laboratory for use under the Subcontract).
(i) Royalties or other income earned or retained by ICF KH as a
result of performance of authorized technology transfer
activities herein shall be used by ICF KH for scientific
research, development and education at the Laboratory,
consistent with the research and development mission and
objectives of the Laboratory and subject to Section
12(b)(5) of The Stevenson-Wydler Technology Innovation Act
of 1980, as amended [15 U.S.C. 3710a(b)(5)] and Chapter 38
of the Patent Laws (35 U.S.C. 200 et seq.) as amended
through the effective date of this modification. If the
amounts of such royalties and income received during any
fiscal year exceed 5 percent of the Laboratory's budget for
the fiscal year, 75 percent of such excess amounts shall be
paid to the Treasury of the United States, and the
remaining amount of such excess shall be used by ICF KH for
the purposes as described above in this paragraph. Any
inventions arising out of such scientific research and
development activities shall be deemed to be "Subject
Inventions" under the Subcontract.
(ii) ICF KH shall include as part of its annual Laboratory
Institutional Plan or other such annual document a plan
setting out those uses to which royalties and
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WHC-380393
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other income received as a result of performance of
authorized technology transfer activities herein, will be
applied at the Laboratory, and at the end of the year,
provide a separate accounting for how the funds were
actually used. Under no circumstances shall these
royalties and income be used for an illegal augmentation of
funds furnished by the U.S. Government.
(iii) ICF KH shall establish a policy for making awards or
sharing of royalties with ICF KH employees, other
coinventors and coauthors including, when deemed
appropriate by WHC, Federal employee coinventors.
(9) Transfer to successor Contractor.
In the event of termination or expiration of this Subcontract,
any unexpended balance of income received for use at the
Laboratory shall be transferred, at WHC's request, to a successor
Contractor, or in the absence of a successor Contractor, to such
other entity as designated by WHC. ICF KH shall transfer title,
as one package, in all patents and patent applications, licenses,
accounts containing royalty revenues from such license
agreements, including equity positions in third party entities,
and other Intellectual Property rights which arose at the
Laboratory, to the successor Contractor or to the Government as
directed by WHC.
(10) Technology transfer affecting the national security.
(i) ICF KH shall notify and obtain the written approval of WHC,
prior to entering into any technology transfer arrangement,
when such technology or any part of such technology is
classified or sensitive under Section 148 of the Atomic
Energy Act (42 U.S.C. 2168). Such notification shall
include sufficient information to enable DOE to determine
the extent that commercialization of such technology would
enhance or diminish security interests of the United
States, or diminish communications within DOE's nuclear
weapons production complex. WHC or DOE shall use their
best efforts to complete its determination within sixty
(60) days of ICF KH's notification, and provision of any
supporting information, and DOE or shall promptly notify
ICF KH as to whether the technology is transferable.
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Section I, Page 142
(ii) ICF KH shall include in all of its technology transfer
agreements with third parties, including, but not limited
to, CRADAs, licensing agreements and assignments, notice to
such third parties that the export of goods and/or
Technical Data from the United States may require some form
of export control license from the U.S. Government and
that, failure to obtain such export control license, may
result in criminal liability under U.S. laws.
(iii) For other than fundamental research as defined in National
Security Directive 189, ICF KH is responsible to conduct
internal export control reviews and assure that technology
is transferred, in accordance with applicable law.
(11) Records.
ICF KH shall maintain records of its technology transfer
activities, in a manner and to the extent satisfactory to WHC or
DOE, and specifically including, but not limited to, the
licensing agreements, assignments and the records required to
implement the requirements of paragraphs (5), (6), and (8) herein
and shall provide reports to WHC to enable DOE to maintain the
recording requirements of Section 12(c)(6) of the Stevenson-
Wydler Technology Innovation Act of 1980 as amended (15 U.S.C.
3710a(c)(6)). Such reports shall be made annually in a format to
be agreed upon between ICF KH and WHC and in such a format which
will serve to adequately inform WHC or DOE of ICF KH's technology
transfer activities while protecting any data not subject to
disclosure under the Rights in Technical Data clause and
paragraph (b) herein. Such records shall be made available in
accordance with the clauses of this Subcontract pertaining to
inspection, audit, and examination of records.
(12) Reports to Congress.
To facilitate DOE's reporting to Congress, ICF KH is required to
annually submit to DOE a technology transfer plan for conducting
its technology transfer function for the upcoming year, including
plans for securing Intellectual Property rights in Laboratory
innovations with commercial promise and plans for managing such
innovations so as to benefit the competitiveness of United States
industry. This plan shall be provided to WHC on or before
October 1 of each year.
(13) Oversight and appraisal.
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ICF KH is responsible for developing and implementing effective
internal controls for all technology transfer activities
consistent with the audit and record requirements of this
Subcontract. Laboratory Contractor performance in implementing
the technology transfer mission and the effectiveness of ICF KH's
procedures will be evaluated by WHC as part of the annual
appraisal process, with input from the cognizant Secretarial
Officer or program office.
(b) Technology transfer through cooperative research and development
agreements.
Upon approval of WHC and as provided in a DOE- approved Joint Work
Statement (JWS), the Laboratory Director or his designee may enter
into CRADAs on behalf of the DOE subject to the requirements set forth
herein.
(1) Review and approval of CRADAs.
(i) Each JWS shall be submitted to WHC or DOE for approval.
ICF KH's Laboratory Director shall provide a program
mission impact statement and shall include an impact
statement regarding related Intellectual Property rights
owned by the Government to assist WHC in his approval
determination.
(ii) ICF KH shall also include (specific to the proposed CRADA)
a statement of compliance with the Fairness of Opportunity
requirements of paragraph (a)(5) above.
(iii) Within ninety (90) days after submission of a JWS, WHC
shall approve, disapprove, or request modification to the
JWS. If a modification is required, WHC shall approve or
disapprove any resubmission of the JWS within thirty (30)
days of its resubmission, or ninety (90) days from the date
of the original submission, whichever is later. WHC shall
provide an explanation to ICF KH's Laboratory Director of
any disapproval or requirement for modification of a JWS.
(iv) Upon approval of a JWS, ICF KH's Laboratory Director may
submit a CRADA, based upon the approved JWS, to WHC. WHC,
within thirty (30) days of receipt of the CRADA, shall
approve or request modification of the CRADA. If WHC
requests a modification of the CRADA, an explanation of
such request shall be provided to the Laboratory Director.
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WHC-380393
Section I, Page 144
(v) ICF KH shall not enter into, or begin work on, a CRADA
until approval of the CRADA has been granted by WHC. ICF
KH may submit its proposed CRADA to WHC at the time of
submitting its proposed JWS or any time thereafter.
However, WHC is not obligated to respond under subparagraph
(iv) above until within thirty (30) days after approval of
the JWS or thirty (30) days after submittal of the CRADA,
whichever is later.
(2) Selection of participants.
ICF KH's Laboratory Director, in deciding what CRADA to enter
into shall:
(i) Give special consideration to small business firms, and
consortia involving small business firms;
(ii) Grant U.S. preference in accordance with the licensing and
assignment requirements of paragraph (a)(6) above;
(iii) Provide Fairness of Opportunity in accordance with the
requirements of paragraph (a)(5) above; and
(iv) Give consideration to the Conflict of Interest requirements
of paragraph (a)(4) above.
(3) Withholding of data.
(i) ICF KH may provide for appropriate protection against
dissemination of data produced as a result of research and
development activities conducted under the CRADA, for a
period of up to five (5) years from the time the data is
first produced. Such data must be data that would be a
trade secret or commercial or financial data that would be
privileged or confidential, if such data had been obtained
from a non-Federal Third Party. Since such data is exempt
from disclosure under the Freedom of Information Act, the
DOE shall cooperate with the Contractor in withholding such
data.
(ii) Unless otherwise expressly approved by WHC in advance for a
specific CRADA, ICF KH agrees, at the request of WHC, to
transmit such data to other DOE facilities for use by DOE
or its Contractors by or on behalf of the Government. Upon
transmitting such data, ICF KH shall clearly mark the data
with a legend setting out
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WHC-380393
Section I, Page 145
the restrictions against private use and further
dissemination, along with the expiration data of such
restrictions.
(iii) In addition to its authority to license Intellectual
Property, ICF KH may enter into licensing agreements with
third parties for data developed by ICF KH under a CRADA
subject to other provisions of this Subcontract. However,
the Contractor shall neither use the protection against
dissemination nor the licensing of data as an alternative
to obtaining patent protection of any invention contained
in such data.
(4) Work for others and user facility programs.
(i) The WFO and User Facility Agreements (UFAs) are not
considered CRADAs and will be available for use by ICF KH
in addition to CRADAs for achieving utilization of employee
expertise and unique facilities for maximizing technology
transfer. ICF KH agrees to inform prospective CRADA
participants, which are intending to substantially pay full
cost recovery for the effort under the CRADA, of WFO and
UFA opportunities, including Class Waiver provisions
associated therewith.
(ii) Where ICF KH believes that the transfer of technology to
the U.S. domestic economy will benefit from, or other
equity considerations dictate, an arrangement other than
the Class Waiver of patent rights to the sponsor in WFO and
UFAs, a request may be made to WHC for an exception to the
Class Waivers.
(5) Conflicts of interest.
(i) Except as provided in subparagraph (iii) below, ICF KH
shall assure that no employee of ICF KH shall have a
substantial role (including an advisory role) in the
preparation, negotiation, or approval of a CRADA, if, to
such employee's knowledge:
(A) Such employee, or the spouse, child, parent, sibling,
or partner of such employee, or an organization (other
than the Subcontractor) in which such employee serves
as an officer, director, trustee, partner, or employee;
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WHC-380393
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1 Holds financial interest in any entity,
- other than ICF KH, that has a substantial
interest in the preparation, negotiation, or
approval of the CRADA;
2 Receives a gift of gratuity from any entity,
- other than ICF KH, that has a substantial
interest in the preparation, negotiation, or
approval of the CRADA; or
(B) A financial interest in any entity, other than ICF KH,
that has a substantial interest in the preparation,
negotiation, or approval of the CRADA, is held by any
person or organization with whom such employee is
negotiating or has any arrangement concerning
prospective employment.
(ii) ICF KH shall require that each employee of ICF KH who has a
substantial role (including an advisory role) in the
preparation, negotiation, or approval of a CRADA certify to
WHC that the circumstances described in subparagraph (i)
above do not apply to that employee.
(iii) The requirements of subparagraphs (i) and (ii) above shall
not apply in a case where an employee, described therein,
advises through ICF KH, WHC in advance of his/her
participation in the preparation, negotiation, or approval
of a CRADA of the nature of and extent of any financial
interest described in subparagraph (i), and WHC determines
that such financial interest is not so substantial as to be
considered likely to affect the integrity of ICF KH
employee's participation in the process of preparing,
negotiating, or approving the cooperative agreement.
(c) Technology transfer in other cost sharing agreements.
In conducting research and development activities in cost shared
agreements not covered by paragraph (b) above, ICF KH, with written
permission of WHC, may provide for the withholding of data produced
thereunder in accordance with the applicable provisions of paragraph
(b)(3) herein.
I-110 PAYMENT FOR OVERTIME PREMIUMS. (JUL 1990)
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WHC-380393
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(a) The use of overtime is authorized under this subcontract if the
overtime premium cost does not exceed the amount stated in Appendix A
of this subcontract or the overtime premium is paid for work -
(1) Necessary to cope with emergencies such as those resulting from
accidents, natural disasters, breakdowns of production equipment,
or occasional production bottlenecks of a sporadic nature;
(2) By indirect-labor employees such as those performing duties in
connection with administration, protection, transportation,
maintenance, standby plant protection, operation of utilities, or
accounting;
(3) To perform tests, industrial processes, laboratory procedures,
loading or unloading of transportation conveyances, and
operations in flight or afloat that are continuous in nature and
cannot reasonably be interrupted or completed otherwise; or
(4) That will result in lower overall costs to WHC or the Government.
(b) Any request for estimated overtime premiums that exceeds the amount
specified above shall include all estimated overtime for subcontract
completion and shall -
(1) Identify the work unit; e.g., department or section in which the
requested overtime will be used, together with present workload,
staffing, and other data of the affected unit sufficient to
permit WHC to evaluate the necessity for the overtime;
(2) Demonstrate the effect that denial of the request will have on
the subcontract delivery or performance schedule;
(3) Identify the extent to which approval of overtime would affect
the performance or payments in connection with other WHC or
Government subcontracts, together with identification of each
affected subcontract; and
(4) Provide reasons why the required work cannot be performed by
using multi-shift operations or by employing additional
personnel.
I-111 DAVIS-BACON ACT. (FEB 1988)
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Section I, Page 148
(a) All laborers and mechanics employed or working upon the site of the
work will be paid unconditionally and not less often than once a week,
and without subsequent deduction or rebate on any account (except such
payroll deductions as are permitted by regulations issued by the
Secretary of Labor under the Copeland Act (29 CFR part 3)), the full
amount of wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less than those
contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between ICF KH and such
laborers and mechanics. Contributions made or costs reasonably
anticipated for bona fide fringe benefits under section 1(b)(2) of the
Davis-Bacon Act on behalf of laborers or mechanics are considered
wages paid to such laborers or mechanics, subject to the provisions of
paragraph (d) of this clause; also, regular contributions made or
costs incurred for more than a weekly period (but not less often than
quarterly) under plans, funds, or programs which cover the particular
weekly period, are deemed to be constructively made or incurred during
such period. Such laborers and mechanics shall be paid not less than
the appropriate wage rate and fringe benefits in the wage
determination for the classification of work actually performed,
without regard to skill, except as provided in the clause entitled
Apprentices and Trainees. Laborers or mechanics performing work in
more than one classification may be compensated at the rate specified
for each classification for the time actually worked therein;
provided, that the employer's payroll records accurately set forth the
time spent in each classification in which work is performed. The
wage determination (including any additional classifications and wage
rates conformed under paragraph (b) of this clause) and the Davis-
Bacon poster (WH-1321) shall be posted at all times by ICF KH and its
subcontractors at the site of the work in a prominent and accessible
place where it can be easily seen by the workers.
(b) (1) WHC shall require that any class of laborers or mechanics which
is not listed in the wage determination and which is to be
employed under the contract shall be classified in conformance
with the wage determination. WHC shall approve an additional
classification and wage rate and fringe benefits therefor only
when all the following criteria have been met:
(i) The work to be performed by the classification requested is
not performed by a classification in the wage
determination.
(ii) The classification is utilized in the area by the
construction industry.
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WHC-380393
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(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(2) If ICF KH and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and WHC
agree on the classification and wage rate (including the amount
designated for fringe benefits, where appropriate), a report of
the action taken shall be sent by WHC to the Administrator of the
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Washington, DC 20210. The Administrator or
an authorized representative will approve, modify, or disapprove
every additional classification action within 30 days of receipt
and so advise WHC or will notify WHC within the 30-day period
that additional time is necessary.
(3) In the event ICF KH, the laborers or mechanics to be employed in
the classification, or their representatives, and WHC do not
agree on the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate), WHC
shall refer the questions, including the views of all interested
parties and the recommendation of WHC, to the Administrator of
the Wage and Hour Division for Determination. The Administrator,
or an authorized representative, will issue a determination
within 30 days of receipt and so advise WHC or will notify WHC
within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits, where appropriate)
determined pursuant to subparagraphs (b)(2) and (b)(3) of this
clause shall be paid to all workers performing work in the
classification under this contract from the first day on which
work is performed in the classification.
(c) Whenever the minimum wage rate prescribed in the contract for a class
of laborers or mechanics includes a fringe benefit which is not
expressed as an hourly rate, ICF KH shall either pay the benefit as
stated in the wage determination or shall pay another bona fide fringe
benefit or an hourly cash equivalent thereof.
(d) If ICF KH does not make payments to a trustee or other third person,
ICF KH may consider as part of the wages of any laborer or mechanic
the amount of any costs reasonably anticipated in providing bona fide
fringe benefits under a plan or program; provided, that the Secretary
of Labor has found, upon the written request of ICF KH, that the
applicable standards of the Davis-Bacon Act have been met. The
Secretary of Labor may require
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ICF KH to set aside in a separate account assets for the meeting of
obligations under the plan or program.
I-112 WITHHOLDING OF FUNDS. (FEB 1988)
WHC shall, upon his or her own action or upon written request of an
authorized representative of the Department of Labor, withhold or cause to
be withheld from ICF KH under this subcontract or any other Federal
contract with the same Prime Contractor, or any other federally assisted
contract subject to Davis-Bacon prevailing wage requirements, which is held
by the same Prime Contractor, so much of the accrued payments or advances
as may be considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed by ICF KH or any subcontractor
the full amount of wages required by the contract. In the event of failure
to pay any laborer or mechanic, including any apprentice, trainee, or
helper, employed or working on the site of the work, all or part of the
wages required by the contract, WHC may, after written notice to ICF KH,
take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations have ceased.
I-113 PAYROLLS AND BASIC RECORDS. (FEB 1988)
(a) Payrolls and basic records relating thereto shall be maintained by ICF
KH during the course of the work and preserved for a period of three
years thereafter for all laborers and mechanics working at the site of
the work. Such records shall contain the name, address, and social
security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or
cash equivalents thereof of the types described in section 1(b)(2)(B)
of the Davis-Bacon Act), daily and weekly number of hours worked,
deductions made, and actual wages paid. Whenever the Secretary of
Labor has found, under paragraph (d) of the clause entitled Davis-
Bacon Act, that the wages of any laborer or mechanic include the
amount of any costs reasonably anticipated in providing benefits under
a plan or program described in section 1(b)(2)(B) of the Davis-Bacon
Act, ICF KH shall maintain records which show that the commitment to
provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and
records which show the costs anticipated or the actual cost incurred
in providing such benefits. ICF KH employing apprentices or trainees
under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the
ratios and wage rates prescribed in the applicable programs.
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(b) (1) ICF KH shall submit weekly for each week in which any subcontract
work is performed a copy of all payrolls to WHC. The payrolls
submitted shall set out accurately and completely all of the
information required to be maintained under paragraph (a) of this
clause. This information may be submitted in any form desired.
Optional Form WH-347 (Federal Stock Number 029-005-00014-1) is
available for this purpose and may be purchased from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402. WHC is responsible for the submission of
copies of payrolls by all subcontractors.
(2) Each payroll submitted shall be accompanied by a Statement of
Compliance, signed by ICF KH or subcontractor or his or her agent
who pays or supervises the payment of the persons employed under
the subcontract and shall certify -
(i) That the payroll for the payroll period contains the
information required to be maintained under paragraph (a)
of this clause and that such information is correct and
complete;
(ii) That each laborer or mechanic (including each helper,
apprentice, and trainee) employed on the subcontract during
the payroll period has been paid the full weekly wages
earned, without rebate, either directly or indirectly, and
that no deductions have been made either directly or
indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations, 29
CFR part 3; and
(iii) That each laborer or mechanic has been paid not less than
the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as
specified in the applicable wage determination incorporated
into the subcontract.
(3) The weekly submission of a properly executed certification set
forth on the reverse side of Optional Form WH-347 shall satisfy
the requirement for submission of the Statement of Compliance
required by subparagraph (b)(2) of this clause.
(4) The falsification of any of the certifications in this clause may
subject ICF KH or subcontractor to civil or criminal prosecution
under Section 1001 of Title 18 and Section 3729 of Title 31 of
the United States Code.
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Section I, Page 152
(c) ICF KH or subcontractor shall make the records required under
paragraph (a) of this clause available for inspection, copying, or
transcription by WHC or authorized representatives of WHC or the
Department of Labor. ICF KH or subcontractor shall permit WHC or
representatives of WHC or the Department of Labor to interview
employees during working hours on the job. If ICF KH or subcontractor
fails to submit required records or to make them available, WHC may,
after written notice to ICF KH, take such action as may be necessary
to cause the suspension of any further payment. Furthermore, failure
to submit the required records upon request or to make such records
available may be grounds for debarment action pursuant to 29 CFR 5.12.
I-114 APPRENTICES AND TRAINEES. (FEB 1988)
(a) Apprentices.
Apprentices will be permitted to work at less than the predetermined
rate for the work they performed when they are employed pursuant to
and individually registered in a bona fide apprenticeship program
registered with the U.S. Department of Labor, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
Apprenticeship Agency recognized by the Bureau, or if a person is
employed in his or her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually
registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice. The allowable ratio of apprentices to journeymen on the
job site in any craft classification shall not be greater than the
ratio permitted to ICF KH as to the entire work force under the
registered program. Any worker listed on a payroll at an apprentice
wage rate, who is not registered or otherwise employed as stated in
this paragraph, shall be paid not less than the applicable wage
determination for the classification of work actually performed. In
addition, any apprentice performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not
less than the applicable wage rate on the wage determination for the
work actually performed. Where ICF KH is performing construction on a
project in a locality other than that in which its program is
registered, the ratios and wage rates (expressed in percentages of the
journeyman's hourly rate) specified in ICF KH's or subcontractor's
registered program shall be observed. Every apprentice must be paid
at not less than the rate specified in the registered program for the
apprentice's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the
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provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be paid the
full amount of fringe benefits listed on the wage determination for
the applicable classification. If the Administrator determines that a
different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination. In the event the Bureau of Apprenticeship and
Training, or a State Apprenticeship Agency recognized by the Bureau,
withdraws approval of an apprenticeship program, ICF KH will no longer
be permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable program
is approved.
(b) Trainees.
Except as provided in 29 CFR 5.16, trainees will not be permitted to
work at less than the predetermined rate for the work performed unless
they are employed pursuant to and individually registered in a program
which has received prior approval, evidenced by formal certification
by the U.S. Department of Labor, Employment and Training
Administration. The ratio of trainees to journeymen on the job site
shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at
not less than the rate specified in the approved program for the
trainee's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination.
Trainees shall be paid fringe benefits in accordance with the
provisions of the trainee program. If the trainee program does not
mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed in the wage determination unless the
Administrator of the Wage and Hour Division determines that there is
an apprenticeship program associated with the corresponding journeyman
wage rate in the wage determination which provides for less than full
fringe benefits for apprentices. Any employee listed on the payroll
at a trainee rate who is not registered and participating in a
training plan approved by the Employment and Training Administration
shall be paid not less than the applicable wage rate in the wage
determination for the classification of work actually performed. In
addition, any trainee performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less
than the applicable wage rate in the wage determination for the work
actually performed. In the event the Employment and Training
Administration withdraws approval of a training program, ICF KH will
no longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program
is approved.
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(c) Equal employment opportunity.
The utilization of apprentices, trainees, and journeymen under this
clause shall be in conformity with the equal employment opportunity
requirements of Executive Order 11246, and 29 CFR part 30.
I-115 COMPLIANCE WITH COPELAND ACT REQUIREMENTS. (FEB 1988)
ICF KH shall comply with the requirements of 29 CFR part 3, which are
hereby incorporated by reference in this contract.
I-116 SUBCONTRACTS (LABOR STANDARDS). (FEB 1988)
(a) ICF KH or subcontractor shall insert in any subcontracts the clauses
entitled Davis-Bacon Act, Contract Work Hours and Safety Standards Act
- Overtime Compensation, Apprentices and Trainees, Payrolls and Basic
Records, Compliance with Copeland Act Requirements, Withholding of
Funds, Subcontracts (Labor Standards), Contract Termination -
Debarment, Disputes Concerning Labor Standards, Compliance with Davis-
Bacon and Related Act Regulations, and Certification of Eligibility,
and such other clauses as WHC may, by appropriate instructions,
require, and also a clause requiring subcontractors to include these
clauses in any lower tier subcontracts. WHC shall be responsible for
compliance by any subcontractor or lower tier subcontractor with all
the subcontract clauses cited in this paragraph.
(b) (1) Within 14 days after award of the subcontract, ICF KH shall
deliver to WHC a completed Statement and Acknowledgment Form (SF
1413) for each subcontract, including ICF KH's signed and dated
acknowledgment that the clauses set forth in paragraph (a) of
this clause have been included in the subcontract.
(2) Within 14 days after the award of any subsequently awarded
subcontract ICF KH shall deliver to WHC an updated completed SF
1413 for such additional subcontract.
I-117 CONTRACT TERMINATION - DEBARMENT. (FEB 1988)
A breach of the subcontract clauses entitled Davis-Bacon Act, Contract Work
Hours and Safety Standards Act - Overtime Compensation, Apprentices and
Trainees, Payrolls and Basic Records, Compliance with Copeland Act
Requirements, Subcontracts (Labor Standards), Compliance With Davis-Bacon
and Related Act Regulations, or Certification of Eligibility may be grounds
for termination of the subcontract, and for debarment as a Contractor and
subcontractor as provided in 29 CFR 5.12.
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I-118 COMPLIANCE WITH DAVIS-BACON AND RELATED ACT REGULATIONS. (FEB 1988)
All rulings and interpretations of the Davis-Bacon and Related Acts
contained in 29 CFR parts 1, 3, and, 5 are hereby incorporated by
reference in this subcontract.
I-119 DISPUTES CONCERNING LABOR STANDARDS. (FEB 1988)
The United States Department of Labor has set forth in 29 CFR parts 5, 6,
and 7 procedures for resolving disputes concerning labor standards
requirements. Such disputes shall be resolved in accordance with those
procedures and not the Disputes clause of this subcontract. Disputes
within the meaning of this clause include disputes between ICF KH (or any
of its subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
I-120 CERTIFICATION OF ELIGIBILITY. (FEB 1988)
(a) By entering into this subcontract, ICF KH certifies that neither it
(nor he or she) nor any person or firm who has an interest in ICF
KH's firm is a person or firm ineligible to be awarded Government
contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR
5.12(a)(1).
(b) No part of this subcontract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(c) The penalty for making false statements is prescribed in the U.S.
Criminal Code, 18 U.S.C. 1001.
I-121 APPROVAL OF WAGE RATES. (FEB 1988)
All straight time wage rates, and overtime rates based thereon, for
laborers and mechanics engaged in work under this subcontract must be
submitted for approval in writing by the head of the ICF KH activity or a
representative expressly designated for this purpose, if the straight time
wages exceed the rates for corresponding classifications contained in the
applicable Davis-Bacon Act minimum wage determination included in the
subcontract. Any amount paid by ICF KH to any laborer or mechanic in
excess of the agency approved wage rate shall be at the expense of ICF KH
and shall not be reimbursed by the WHC or the Government. If WHC or the
Government refuses to authorize the use of the overtime, ICF KH is not
released from the obligation to pay employees at the required overtime
rates for any overtime actually worked.
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I-122 LABOR STANDARDS FOR CONSTRUCTION WORK - FACILITIES SUBCONTRACTS. (FEB
1988)
(a) In the event that construction, alteration, or repair (including
painting and decorating) of public buildings or public works is to be
performed hereunder, ICF KH shall comply with the following listed
clauses of the Federal Acquisition Regulation in performance of such
work:
(1) Contract Work Hours and Safety Standards Act - Overtime
Compensation at 52.222-4.
(2) Davis-Bacon Act at 52.222-6.
(3) Withholding of Funds at 52.222-7.
(4) Payrolls and Basic Records at 52.222-8.
(5) Apprentices and Trainees at 52.222-9.
(6) Compliance With Copeland Act Requirements at 52.222-10.
(7) Subcontracts (Labor Standards) at 52.222-11.
(8) Contract Termination - Debarment at 52.222-12.
(9) Compliance with Davis-Bacon and Related Act Regulations at
52.222-13.
(10) Disputes Concerning Labor Standards at 52.222-14.
(11) Certification of Eligibility at 52.222-15.
(b) Upon determination by WHC that the Davis-Bacon Act is applicable to
any item of work to be performed hereunder, a determination of the
prevailing wage rates shall be incorporated into the subcontract by
modification.
(c) No construction, alteration, or repair (including painting and
decorating) of public buildings or public works shall be performed
under this subcontract without incorporation of the wage
determination unless WHC authorizes the start of work because of
unusual or emergency situations, in which case the wage determination
shall be incorporated as soon as possible and made retroactive to the
start of the work.
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I-123 AFFIRMATIVE ACTION COMPLIANCE REQUIREMENTS FOR CONSTRUCTION (APR 1984)
(a) Definitions.
"Covered area," as used in this clause, means the geographical area
described in the solicitation for this subcontract.
"Director," as used in this clause, means Director, Office of Federal
subcontract Compliance Programs (OFCCP), United States Department of
Labor, or any person to whom the Director delegates authority.
"Employer identification number," as used in this clause, means the
Federal Social Security number used on the employer's quarterly
federal tax return, U.S. Treasury Department Form 941.
"Minority," as used in this clause, means -
(1) American Indian or Alaskan Native (all persons having origins in
any of the original peoples of North America and maintaining
identifiable tribal affiliations through membership and
participation or community identification).
(2) Asian and Pacific Islander (all persons having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands); and
(3) Black (all persons having origins in any of the black African
racial groups not of Hispanic origin);
(4) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish culture or origin, regardless of
race);
(b) If ICF KH, or a subcontractor at any tier, subcontracts a portion of
the work involving any construction trade, each such subcontract in
excess of $10,000 shall include this clause and the Notice containing
the goals for minority and female participation stated in the
solicitation for this subcontract.
(c) If ICF KH is participating in a Hometown Plan (41 CFR 60-4) approved
by the U.S. Department of Labor in a covered area, either individually
or through an association, its affirmative action obligations on all
work in the plan area (including goals) shall comply with the plan for
those trades that have unions participating in the plan.
Subcontractors must be able to demonstrate participation in, and
compliance with, the provisions of the plan. ICF KH or each
subcontractor participating in an approved plan is also required to
comply with its obligations under the Equal Opportunity clause, and to
make a good faith
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WHC-380393
Section I, Page 158
effort to achieve each goal under the plan in each trade in which it
has employees. The overall good-faith performance by ICF KH or other
subcontractors toward a goal in an approved plan does not excuse any
ICF KH's or subcontractor's failure to make good-faith efforts to
achieve the plan's goals.
(d) ICF KH shall implement the affirmative action procedures in
subparagraphs(g)(1) through (16) of this clause. The goals stated in
the solicitation for this subcontract are expressed as percentages of
the total hours of employment and training of minority and female
utilization that ICF KH should reasonably be able to achieve in each
construction trade in which it has employees in the covered area. If
ICF KH performs construction work in a geographical area located
outside of the covered area, it shall apply the goals established for
the geographical area where that work is actually performed. ICF KH
is expected to make substantially uniform progress toward its goals in
each craft.
(e) Neither the terms and conditions of any collective bargaining
agreement, nor the failure by a union with which ICF KH has a
collective bargaining agreement, to refer minorities or women shall
excuse ICF KH's obligations under this clause, Executive Order 11246,
as amended, or the regulations thereunder.
(f) In order for the nonworking training hours of apprentices and trainees
to be counted in meeting the goals, apprentices and trainees must be
employed by ICF KH during the training period, and ICF KH must have
made a commitment to employ the apprentices and trainees at the
completion of their training, subject to the availability of
employment opportunities. Trainees must be trained pursuant to
training programs approved by the U.S. Department of Labor.
(g) ICF KH shall take affirmative action to ensure equal employment
opportunity. The evaluation of ICF KH's compliance with this clause
shall be based upon its effort to achieve maximum results from its
actions. ICF KH shall document these efforts fully and implement
affirmative action steps at least as extensive as the following:
(1) Ensure a working environment free of harassment, intimidation,
and coercion at all sites and in all facilities where ICF KH's
employees are assigned to work. ICF KH, if possible, will assign
two or more women to each construction project. ICF KH shall
ensure that foremen, superintendents, and other onsite
supervisory personnel are aware of and carry out ICF KH's
obligation to maintain such a working environment, with specific
attention to minority or female individuals working at these
sites or facilities.
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(2) Establish and maintain a current list of sources for minority and
female recruitment. Provide written notification to minority and
female recruitment sources and community organization when ICF KH
or its unions have employment opportunities available, and
maintain a record of the organizations' responses.
(3) Establish and maintain a current file of the names, addresses,
and telephone numbers of each minority and female off-the- street
applicant, referrals of minorities or females from unions,
recruitment sources, or community organizations, and the action
taken with respect to each individual. If an individual was sent
to the union hiring hall for referral and not referred back to
ICF KH by the union or, if referred back, not employed by ICF KH,
this shall be documented in the file, along with whatever
additional actions ICF KH may have taken
(4) Immediately notify the Director when the union or unions with
which ICF KH has a collective bargaining agreement has not
referred back to ICF KH a minority or women sent by ICF KH, or
when ICF KH has other information that the union referral process
has impeded ICF KH's efforts to meet its obligations.
(5) Develop on-the-job training opportunities and/or participate in
training programs for the area that expressly include minorities
and women, including upgrading programs and apprenticeship and
trainee programs relevant to ICF KH's employment needs,
especially those program funded or approved by the Department of
Labor. ICF KH shall provide notice of these programs to the
sources compiled under subparagraph (g)(2) above.
(6) Disseminate ICF KH's equal employment policy by -
(i) Providing notice of the policy to unions and to training,
recruitment, and outreach programs, and requesting their
cooperation in assisting ICF KH in meeting its subcontract
obligations;
(ii) Including the policy in any policy manual and in collective
bargaining agreements;
(iii) Publicizing the policy in the company newspaper, annual
report, etc.;
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(iv) Reviewing the policy with all management personnel and with
all minority and female employees at least once a year; and
(v) Posting the policy on bulletin boards accessible to
employees at each location where construction work is
performed.
(7) Review, at least annually, ICF KH's equal employment policy and
affirmative action obligations with all employees having
responsibility for hiring, assignment, layoff, termination, or
other employment decisions. Conduct review of this policy with
all onsite supervisory personnel before initiating construction
work at a job site. A written record shall be made and
maintained identifying the time and place of these meetings,
persons attending, subject matter discussed, and disposition of
the subject matter.
(8) Disseminate ICF KH's equal employment policy externally by
including it in any advertising in the news media, specifically
including minority and female news media. Provide written
notification to, and discuss this policy with, other contractors
and subcontractors with which ICF KH does or anticipates doing
business.
(9) Direct recruitment efforts, both oral and written, to minority,
female, and community organizations, to schools with minority and
female students, and to minority and female recruitment and
training organizations serving ICF KH's recruitment area and
employment needs. Not later than one month before the date for
acceptance of applications for apprenticeship or training by any
recruitment source, send written notification to organizations
such as the above, describing the openings, screening procedures,
and tests to be used in the selection process.
(10) Encourages present minority and female employees to recruit
minority persons and women. Where reasonable, provide after-
school, summer, and vacation employment to minority and female
youth both on the site and in other areas of ICF KH's workforce.
(11) Validate all tests and other selection requirements where
required under 41 CFR 60-3.
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(12) Conduct, at least annually, an inventory and evaluation at least
of all minority and female personnel for promotional
opportunities. Encourage these employees to seek or to prepare
for, through appropriate training, etc., opportunities for
promotion.
(13) Ensure that seniority practices job classifications, work
assignments, and other personnel practices do not have a
discriminatory effect by continually monitoring all personnel and
employment-related activities to ensure that ICF KH's obligations
under this subcontract are being carried out.
(14) Ensure that all facilities and company activities are
nonsegregated except that separate or single-user toilet and
necessary changing facilities shall be provided to assure privacy
between the sexes.
(15) Maintain a record of solicitations for subcontracts for minority
and female construction subcontractors and suppliers, including
circulation of solicitations to minority and female subcontractor
associations and other business associations.
(16) Conduct a review, at least annually, of all supervisors'
adherence to and performance under ICF KH's equal employment
policy and affirmative action obligations.
(h) ICF KH is encouraged to participate in voluntary associations that may
assist in fulfilling one or more of the affirmative action obligations
contained in subparagraph (g)(1) through (16). The efforts of a
subcontractor association, joint subcontractor-union, subcontractor-
community, or similar group of which ICF KH is a member and
participant may be asserted as fulfilling one or more of its
obligations under subparagraph (g)(1) through (16), provided ICF KH -
(1) Actively participates in the group;
(2) Makes every effort to ensure that the group has a positive impact
on the employment of minorities and women in the industry;
(3) Ensures that concrete benefits of the program are reflected in
ICF KH's minority and female workforce participation;
(4) Makes a good-faith effort to meet its individual goals and
timetables; and
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(5) Can provide access to documentation that demonstrates the
effectiveness of actions taken on behalf of ICF KH. The
obligation to comply is ICF KH's, and failure of such a group to
fulfill an obligation shall not be a defense for ICF KH's
noncompliance.
(i) A single goal for minorities and a separate single goal for women
shall be established. ICF KH is required to provide equal employment
opportunity and to take affirmative action for all minority groups,
both male and female, and all women, both minority and nonminority.
Consequently, ICF KH may be in violation of Executive Order 11246, as
amended, if a particular group is employed in a substantially
disparate manner.
(j) ICF KH shall not use goals or affirmative action standards to
discriminate against any person because of race, color, religion, sex,
or national origin.
(k) ICF KH shall not enter into any subcontract with any person or firm
debarred from Government subcontracts under Executive Order 11246, as
amended.
(l) ICF KH shall carry out such sanctions and penalties for violation of
this clause and of the Equal Opportunity clause, including suspension,
termination, and cancellation of existing subcontracts, as may be
imposed or ordered under Executive Order 11246, as amended, and its
implementing regulations, by the OFCCP. Any failure to carry out
these sanctions and penalties as ordered shall be a violation of this
clause and Executive Order 11246, as amended.
(m) ICF KH in fulfilling its obligations under this clause shall implement
affirmative action procedures at least as extensive as those
prescribed in paragraph (g) above, so as to achieve maximum results
from its efforts to ensure equal employment opportunity. If ICF KH
fails to comply with the requirements of Executive Order 11246, as
amended, the implementing regulations, or this clause, the Director
shall take action as prescribed in 41 CFR 60-4.8
(n) ICF KH shall designate a responsible official to -
(1) Monitor all employment-related activity to ensure that ICF KH's
equal employment policy is being carried out;
(2) Submit reports as may be required by WHC and
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(3) Keep records that shall at least include for each employee the
name, address, telephone number, construction trade, union
affiliation (if any), employee identification number, social
security number, race, sex, status (e.g., mechanic, apprentice,
trainee, helper, or laborer), dates of changes in status, hours
worked per week in the indicated trade, rate of pay, and
locations at which the work was performed. Records shall be
maintained in an easily understandable and retrievable form;
however, to the degree that existing records satisfy this
requirement, separate records are not required to be maintained.
(o) Nothing contained herein shall be construed as a limitation upon the
application of other laws that establish different standards of
compliance or upon the requirements for the hiring of local or other
area residents (e.g., those under the Public Works Employment Act of
1977 and the Community Development Block Grant Program).
I-124 BUY AMERICAN ACT-CONSTRUCTION MATERIALS (APR 1984)
(a) The Buy American Act (41 U.S.C. 10) provides that the Government give
preference to domestic construction material.
"Components," as used in this clause, means those articles, materials,
and supplies incorporated directly into construction materials.
"Construction materials," as used in this clause, means articles,
materials, and supplies brought to the construction site for
incorporation into the building or work.
"Domestic construction material," as used in this clause, means (1) an
unmanufactured construction material mined or produced in the United
States, or (2) a construction material manufactured in the United
States, if the cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind as
the construction materials determined to be unavailable pursuant to
subparagraph 25.202(a)(3) of the Federal Acquisition Regulation (FAR)
shall be treated as domestic.
(b) ICF KH agrees that only domestic construction material will be used by
ICF KH, subcontractors, materialmen, and suppliers in the performance
of this subcontract, except for foreign construction materials, if
any, listed in this subcontract.
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(The foregoing requirements are administered in accordance with
Executive Order No. 10582, dated December 17, 1954, as amended, and
Subpart 25.2 of the FAR.)
I-125 RESTRICTIONS ON CONTRACTING WITH SANCTIONED PERSONS. (APR 1991)
(a) Definitions.
(1) "Component part," means any article which is not usable for its
intended functions without being imbedded or integrated into any
other product and which, if used in production of a finished
product, would be substantially transformed in that process.
(2) "Finished product," means any article which is usable for its
intended function without being imbedded in, or integrated into,
any other product.
(3) "Sanctioned person," means a company or other foreign person upon
whom prohibitions have been imposed.
(4) "Substantially transformed," when referring to a component part
or finished product, means that the part or product has been
subjected to a substantial manufacturing or processing operation
by which the part or product is converted or combined into a new
and different article of commerce having a new name, character,
and use.
(b) General.
Section 2443 of the Multilateral Export Control Enhancement Amendments
Act (Pub. L. 100-418) and Executive Order 12661, effective December
28, 1988, impose, for a period of three years, with certain
exceptions, a prohibition on contracting with, or procuring (including
rental and lease/purchase) directly or indirectly the products or
services of (1) Toshiba Machine Company, (2) Kongsberg Trading
Company, (3) Toshiba Corporation, or (4) Kongsberg Vaapenfabrikk. The
Act and Executive Order also prohibit, for the same three-year period,
the importation into the United States of all products produced by
Toshiba Machine Company and Kongsberg Trading Company. These
prohibitions also apply to subsidiaries, successor entities or joint
ventures of Toshiba Machine Company or Kongsberg Trading Company.
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(c) Restriction.
Unless listed by ICF KH in its offer in the solicitation provision
entitled Notice of Restrictions on Contracting with Sanctioned Persons
and unless approved by WHC or one of the exceptions in paragraph (d)
of this clause applies, ICF KH agrees that no products or services
delivered to WHC or the Government, under this subcontract will be
products or services of a sanctioned person.
(d) Exceptions.
The restrictions do not apply -
(1) To finished products of nonsanctioned persons containing
components of a sanctioned person if these components have been
substantially transformed during the manufacture of the finished
product.
(2) To products or services of a sanctioned person provided -
(i) The products are designed to the specifications of a
nonsanctioned person marketed under the trademark, brand or
name of the nonsanctioned person;
(ii) The business relationship between the nonsanctioned person
and the sanctioned person clearly existed prior to June 30,
1987; and
(iii) The nonsanctioned person is not directly or indirectly
owned by a sanctioned person.
(3) If a determination has been made in accordance with FAR 25.1003
(a) or (b).
(e) Award.
Award of any subcontract resulting from this solicitation will not
affect ICF KH's obligation to comply with importation regulations of
the Secretary of the Treasury.
I-126 ACQ. LTR. 88-1 RIGHTS IN TECHNICAL DATA-FACILITY (MAY 1988)
(a) Definitions.
(1) "Technical data" means recorded information, regardless of form
or characteristic, of a scientific or technical nature. It may,
for example, document research, experimental, developmental, or
demonstration, or engineering work or be
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usable or used to define a design or process or to procure,
produce, support, maintain, or operate material. The data may be
graphic or pictorial delineations in media such as drawings or
photographs, text in specifications or related performance or
design-type documents, or computer software (including computer
programs, computer software data bases and computer software
documentation). Examples of technical data include research and
engineering data, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical
reports, catalog item identification, and related information.
Technical data as used herein does not include financial reports,
cost analyses, and other information incidental to subcontract
administration.
(2) "Proprietary data" means technical data which embody trade
secrets developed at private expense, such as design procedures
or techniques, chemical composition of materials, or
manufacturing methods, processes, or treatments, including minor
modifications thereof, provided that such data:
(i) Are not generally known or available from other sources
without obligation concerning their confidentiality;
(ii) Have not been made available by the owner to others without
obligation concerning their confidentiality; and
(iii) Are not already available to the Government without
obligation concerning their confidentiality.
(3) "Unlimited rights" means rights to use, duplicate, or disclose
technical data, in whole or in part, in any manner and for any
purpose whatsoever, and to permit others to do so.
(b) Allocation of rights.
(1) The Government shall have:
(i) Ownership in all technical data first produced in the
performance of the subcontract;
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(ii) The right to inspect technical data first produced or
specifically used in the performance of the subcontract at
all reasonable times (for which inspection the proper
facilities shall be afforded DOE by the subcontractor and
its subcontractors);
(iii) The right to have all technical data first produced or
specifically used in the performance of the subcontract
delivered to the Government or otherwise disposed of by the
subcontractor, either as the subcontracting officer may
from time to time direct during the progress of the work or
in any event as the subcontracting officer shall direct
upon completion or termination of this subcontract,
provided that nothing contained in this paragraph shall
require the subcontractor to actually deliver any technical
data, the delivery of which is excused by this Rights in
Technical Data clause;
(iv) Unlimited rights in technical data specifically used in the
performance of this subcontract, except technical data
pertaining to items of standard commercial design; the
subcontractor agrees to leave a copy of such technical data
at the facility or plant to which such data relate, and to
make available for access or to deliver to the Government
such data upon request by the subcontracting officer;
provided, that if such data are proprietary, the rights of
the Government in such data shall be governed solely by the
provisions of optional paragraph (e) hereof-"Limited Rights
in Proprietary data;"
(v) The right to remove, cancel, correct, or ignore any marking
not authorized by the terms of this subcontract on any
technical data furnished hereunder if, in response to a
written inquiry by DOE concerning the propriety of the
markings, the subcontractor fails to respond thereto within
60 days or fails to substantiate the propriety of the
markings. In either case DOE will notify the subcontractor
of the action taken.
(2) The subcontractor shall have:
(i) The right to withhold its proprietary data in accordance
with the provisions of this clause; and
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(ii) The right to use for its private purposes, subject to
patent, security or other provisions of this subcontract,
technical data it first produces in the performance of this
subcontract, provided the data requirements of this
subcontract have been met as of the date of the private use
of such data. The subcontractor agrees that to the extent
it receives or is given access to proprietary data or other
technical, business or financial data in the form of
recorded information from DOE or a DOE subcontractor or
subcontractor, the subcontractor shall treat such data in
accordance with any restrictive legend contained thereon,
unless use is specifically authorized by prior written
approval of the subcontracting officer.
Nothing contained in this clause shall imply a license to
the Government under any patent or be construed as
affecting the scope of any licenses or other rights
otherwise granted to the Government under any patent.
(c) Copyrighted material (other than computer software).
(1) The subcontractor may establish, without prior approval of the
subcontracting officer, claim to copyright subsisting in
scientific and technical articles based on or containing data
first produced in the performance of this subcontract, and
published in academic, technical or professional journals,
symposia proceedings or similar works. When claim to copyright
is made, the subcontractor shall affix the applicable copyright
notice of 17 USC 401 or 402 and acknowledgement of Government
sponsorship (including subcontract number) in the data when such
data are delivered to the Government as well as when the data are
published or deposited for registration as a published work in
the U.S. Copyright Office. The subcontractor grants to the
Government, and others acting on its behalf, a paid-up,
nonexclusive, irrevocable worldwide license in such copyrighted
data to reproduce, prepare derivative works, distribute copies to
the public, and perform publicly and display publicly, by or on
behalf of the Government.
(2) The subcontractor agrees not to include in the technical data
delivered under the subcontract any material copyrighted by the
subcontractor and not to knowingly include any material
copyrighted by others without first granting or obtaining at no
cost a license therein for the benefit of the Government of the
same scope as set forth in
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paragraph (c)(1) above. If the subcontractor believes that such
copyrighted material for which the license cannot be obtained
must be included in the technical data to be delivered, rather
than merely incorporated therein by reference, the subcontractor
shall obtain the written authorization of the subcontracting
officer to include such material in the technical data prior to
its delivery.
(d) Copyrighted material (computer software).
(1) The subcontractor shall have the right to establish claim to
copyright in computer software first produced by the
subcontractor in performance of the subcontract subject to the
following:
(i) Notification by subcontractor of Its Intent to Copyright.
(A) The subcontractor shall notify the Patent Counsel in
writing (3 copies) of its intent to copyright computer
software pursuant to this clause. Each notification by
the subcontractor to be complete must identify (1) the
subject computer software by name and function, (2) the
program under which it was funded, (3) whether the data
is subject to an international treaty or agreement, (4)
whether data is subject to export control, (5) the
subcontractor's plans for commercializing the software
including the information of paragraph (iii)(I) herein,
and (6) whether the subcontractor elects to retain
copyright subject to a broad or limited Government
license pursuant to paragraph (iii)(C). For software
that is developed using other funding sources in
addition to DOE funding, approval of release to secure
statutory copyright protection in accordance with this
clause must also be obtained by the subcontractor from
all other funding sources prior to the subcontractor's
notification to the Patent Counsel. Such notification
shall include the subcontractor's certification or
other documentation acceptable to the Patent Counsel
demonstrating such approval has been obtained.
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(B) The right of the subcontractor to establish a claim to
statutory copyright in excepted categories of computer
software as determined by DOE is expressly withheld.
Such excepted categories currently include computer
software whose release (1) would be detrimental to
national security, i.e., involves classified
information or data or sensitive information under
Section 148 of the Atomic Energy Act of 1954, as
amended, or is subject to export control for
nonproliferation and other nuclear-related national
security purposes, (2) would not enhance the
appropriate transfer or dissemination and
commercialization of such software, (3) would have a
negative impact on U.S. industrial competitiveness, or
(4) would prevent DOE from meeting its obligations
under international treaties and agreements. Where
computer software is determined to be under an export
control restriction, the subcontractor may still secure
copyrights to such restricted computer software for
purposes of limited commercialization within the
constraints provided by the export control authorities
subject to the provisions of this clause. However,
notwithstanding any other provisions of this
subcontract, all computer software packages developed
with Naval Reactors funding and those that are
classified fall within the above excepted categories
and the right to copyright will not be granted by DOE.
Additionally, the right of the subcontractor to
establish a claim to statutory copyright in computer
software is subject to the disposition of data rights
in the treaties and international agreements identified
under this subcontract as well as those additional
treaties and international agreements which DOE may
from time to time identify by unilateral amendment to
the subcontract pursuant to Clause I-41, Patent Rights
Facility, such added treaties are effective only for
software for which notification of intent to copyright
is made after the date of such amendment.
(ii) DOE Review and Response to subcontractor's Notification.
(A) The Patent Counsel shall respond in writing within 90
days of receipt of a complete
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notification by the subcontractor of its intent to
copyright computer software pursuant to this clause.
Such response shall indicate whether the software falls
within one or more of the excepted categories
preventing the subcontractor from claiming copyright in
the software, release the right to assert copyright in
the software to the subcontractor, or advise the
subcontractor that DOE needs additional time to respond
and the reasons therefor. The 90-day period for DOE to
respond shall not begin until DOE has received a
complete notification from the subcontractor addressing
each of the factors enumerated in paragraph (i)(A)
above.
(B) If the Patent Counsel does not respond or request
additional time within the foregoing time period, the
subcontractor may then establish claim to copyright,
except that for software funded by Defense Programs,
Civilian Radioactive Waste Management and Nuclear
Energy Programs, the subcontractor shall not proceed to
establish copyright protection or begin licensing the
software before receiving the Patent Counsel's written
response that the software does not fall within an
excepted category.
(iii) Releasing the Right to Copyright Computer Software to the
subcontractor.
(A) The subcontractor shall furnish: (1) the source code
for each software program released in printed and
machine readable form and, (2) at least the minimum
documentation needed by a technically competent user to
understand and use the software, to the National Energy
Software Center (NESC) at the time claim to copyright
can be established under paragraph (ii)(B) above. The
subcontractor shall also send to NESC copies of all
related additional material (updates, additional
documentation) and of all derivative works created by
the subcontractor under its subcontract or furnished to
the subcontractor by licensees pursuant to paragraph J
below, upon creation or receipt. Subcontractor
acknowledges that NESC may provide a technical
description of the software in an announcement
identifying its availability from the copyright holder,
and NESC
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may provide a copy of the printed version of the basic
program for licensing in accordance with subparagraph
(D) below with subcontractor's copyright notice when
requested to do so by another party.
(B) The software shall normally be licensed to the user
public on a nonexclusive basis. The subcontractor may
exclusively license or assign the software to a
software distribution organization which will be
subject to those same conditions. Any other situations
in which some form of exclusivity may be justified,
such as where the software is used with licensed
patented processes or equipment, shall be approved in
advance by the Assistant General Counsel for Patents.
(C) At the time of notification of intent to establish
claim to copyright, the subcontractor shall elect
whether to retain copyright subject to:
(a) a broad Government license as follows:
The Government retains for itself and others
acting on its behalf a paid-up, nonexclusive,
irrevocable worldwide license to reproduce,
distribute to the public, prepare derivative
works, perform publicly and display publicly, and
to permit others to do so; or
(b) a limited Government license as follows:
The Government retains a paid-up nonexclusive,
irrevocable worldwide license to reproduce,
prepare derivative works, perform publicly and
display publicly by or for the Government,
including the right to distribute to other
Government subcontractors.
(D) With respect to the printed version of the basic
program, the Government retains a paid-up,
nonexclusive, irrevocable worldwide license to
reproduce and distribute to the public human readable
copies only and to permit others to do so. The rights
of the recipient shall be those
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of a licensee only and ownership of any copies of the
program shall remain the property of the Government.
The recipient-licensee shall not reproduce or make
copies of the program or authorize others to do so.
(E) If the limited Government license is elected, it shall
revert to the broad Government license after a period
of one year from the time claim to copyright can be
established under paragraph (C)(b) above if WHC
determines that the subcontractor has not taken
reasonable steps to actively seek licenses of the
software or two years from the time claim to copyright
can be established under paragraph (C)(b) above if WHC
determines the subcontractor has not licensed the
software. The subcontractor shall provide WHC with a
report of its licensing efforts in accordance with this
paragraph at the expiration of said one and two year
periods, respectively, unless otherwise provided by
WHC. Failure to provide these reports will be
considered as acknowledgement by the subcontractor of
license reversion.
(F) If the limited Government license is elected, the
software shall be offered to the user public at a
reasonable license royalty rate established to ensure
widespread commercialization and substantial
dissemination of the software. In establishing the
reasonable royalty, the subcontractor may take
cognizance of the rate based on recovery of full cost
of materials and services as set forth in 10 CFR 1009.
The subcontractor may include the cost (including
Government and private costs) of writing, testing,
debugging and validating experimentally or otherwise
the computer program and enhancements thereto, writing
the documentation, compiling and entering data bases,
and licensing the software.
(G) Whenever the subcontractor is permitted to establish
claim to copyright in software, the subcontractor shall
affix the applicable copyright notices of 17 U.S.C. 401
or 402 and also an acknowledgement of Government
sponsorship and license rights on each software package
and derivative work. Such action shall
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be taken when the software is delivered to the
Government, published, licensed, or deposited for
registration as a published work in the U. S. Copyright
Office. The acknowledgement of Government sponsorship
and license rights shall be as follows:
This material resulted from work developed under a
Government contract and is subject to the following
license: (insert license elected under para.
(iii)(C)(a) or para. (iii)(C)(b) above, when
applicable). Neither the United States nor the United
States Department of Energy, nor any of their
employees, makes any warranty, express or implied, or
assumes any legal liability or responsibility for the
accuracy, completeness, or usefulness of any
information, apparatus, product, or process disclosed,
or represents that its use would not infringe privately
owned rights.
(H) The contractor shall use copyright license terms and
conditions which are consistent with this contract
clause and shall make the basic terms and conditions,
exclusive of matters considered by the licensee to be
business and financial information which is considered
to be privileged, available to Patent Counsel upon
request.
(I) The commercialization plan submitted by the contractor
should identify whether derivative works will result
from commercialization and who will control such works,
who will maintain the software, and who will provide
the funding for any of these activities. The plan
should also identify, when appropriate, whether any
reduced licensing fees or other consideration is
factored into the proposed arrangements and the impact
of the proposed license arrangements upon U.S.
industrial competitiveness. Appropriate consideration
should be given to licensing the software in a manner
which will benefit U.S. industry.
(J) The contractor should include in its licensing
agreements a limited Government license right as
described above for enhancements, derivative works and
documentation developed at private
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expense where (1) the costs incurred by the Government
in developing the software are substantial compared to
that incurred by the licensee or contractor at private
expense, and (2) the intended use by the Government or
its contractors is sufficient to warrant such rights.
Further, the licensing agreement shall provide that the
Secretary may require the contractor, assignee, or
exclusive licensee of the copyrighted software to grant
a nonexclusive, partially exclusive, or exclusive
license to a responsible applicant upon terms that are
reasonable under the circumstances, and, if the
contractor, assignee, or exclusive licensee fails to
grant such a license, the Secretary may grant the
license, if the Secretary determines the action is
necessary:
(a) Because the contractor, assignee or exclusive
licensee has not taken, or is not expected to take
within a reasonable time, effective steps to
achieve practical application of the copyrighted
software;
(b) To alleviate health, safety, or energy needs that
are not reasonably satisfied by the contractor,
assignee, or exclusive licensee; and
(c) To meet requirement for public use specified by
Federal regulations and the requirements are not
reasonably satisfied by the contractor, assignee,
or exclusive licensee.
(K) No costs under this contract are allowable as direct or
indirect costs for the preparation, filing or
prosecution of copyright applications or the payment of
related fees or licensing and marketing costs where the
contractor establishes claim to copyright in computer
software pursuant to this clause except as may be
otherwise provided in this paragraph. Nor shall any
costs be allowable for maintenance of the copyrighted
software, except as expressly provided for in writing
by the contracting officer. The contractor may use its
net royalty income to effect such maintenance costs.
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(L) At the termination or expiration of this contract, the
following terms and conditions shall apply to
copyrights for computer software and licenses and
royalties generated therefrom:
(a) For any license executed prior to termination or
expiration of this contract for copyrighted
software, the distribution of net royalties or
income therefrom shall remain the same as prior to
contract termination or expiration and shall
continue for the duration of such license. The
percentage of such royalties or income being used
at the Facility shall go to the successor
contractor at the Facility pursuant to its
contract or, in the absence of a successor
contractor, to such other entity designated by the
Government.
(b) For any assignment executed to a party other than
an affiliate of the contractor, prior to
termination or expiration of this contract, for
copyrighted software, the distribution of net
royalties or income therefrom shall remain as
prior to contract termination or expiration and
shall continue for the duration of such
assignment. The percentage of such royalties or
income being used at the Facility shall go to the
successor contractor at the Facility for use at
the Facility pursuant to its contract or, in the
absence of a successor contractor, to such other
entity designated by the Government.
(c) Where title to a copyright for computer software
has been retained by the contractor or an
affiliate of the contractor, the contractor and
Government shall enter negotiations prior to such
termination or expiration with respect to
retention of the title to the copyright by the
contractor or its affiliate or transfer of such
title to WHC or the successor contractor operator
of the Facility depending on whether
commercialization of the software is being
performed principally by the contractor or
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affiliate at the Facility or at a separate
location. Such negotiations shall also consider
the equities of the parties with respect to each
copyright and shall take into consideration the
presence of private investment, potential
commercial use, assumption of copyright related
liabilities, effective technology transfer and the
need to market the technology.
(d) Where title to a copyright for computer software
is to be retained by the contractor or its
affiliate subsequent to termination or expiration
of the contract, the contractor and the Government
shall enter negotiations prior to such termination
or expiration with respect to net royalties or
income generated from assignments or licenses of
such copyright effected subsequent to termination
or expiration of the contract and the distribution
thereof between the contractor and successor
contractor at the Facility for use at the Facility
pursuant to its contract or, in the absence of a
successor contractor, to such other entity
designated by the Government. Such negotiations
shall consider the equities of the parties and
other conditions as set forth in paragraph (c)
above. However, the net royalty or income
distribution to the Facility for use by a
successor contractor or other Government-
designated entity shall in no event be less than
twenty-five percent (25%) of such net royalties or
income.
(M) Five percent (5%) of gross royalty revenues will be set
aside for WHC use or for third party use at the
direction of WHC during the five years following each
election by the contractor to assert copyright in
computer software. Unless otherwise instructed by the
WHC, the 5% royalty revenues shall be made payable
quarterly to the National Energy Software Center and
sent to the Director, National Energy Software Center,
9700 South Cass Avenue, Argonne, Illinois 60439. WHC
shall be notified when such payments are made.
Additionally, at least fifty-one percent (51%)
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of the net royalty revenues shall be used at the
Facility by the contractor for scientific research,
development and educational purposes.
Under the authority of Section 646(a) of the DOE
Organization Act, the subcontractor and WHC hereby
agree to cooperatively establish and co-fund a program
of technology transfer consistent with this and other
articles of this contract. DOE's contribution to this
program is the allowable costs for overall technology
transfer activities. The contractor's contribution to
this program shall be derived from royalties received.
Further, it is understood that the contractor may under
the authority of Section 646(a) of the DOE Organization
Act, utilize its royalty funds in other cooperative
agreements with WHC for scientific research,
development and education purposes. However, under no
circumstances shall the royalties be used for the
augmentation of general WHC program funds.
The contractor shall include as a part of its annual
Facility Institutional Plan or other annual document an
auditable detailed plan setting out those uses to which
such royalty funds will be applied at the Facility and,
detailed statement of how the funds were actually used.
Such uses shall be consistent with the mission and
objectives of the Facility and shall be subject to
prior WHC approval. The contractor's use of the
royalties shall be evaluated as part of the annual
appraisal process.
For purposes of this clause, net royalty revenues
comprise gross royalty revenues or its equivalent less
licensing costs, awards to software creators, the cost
of modifications to the software made at private
expense and any costs of software support of
maintenance services furnished licensees, if separately
itemized and accounted for. Upon payment of the
foregoing, any remaining income from licensing may be
considered the property of the contractor.
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In the event of termination or expiration of this
contract, any unexpended balance of net royalties
received for use at the Facility shall be transferred,
at DOE's request to a successor contractor, or in the
absence of a successor contractor, to such other entity
designated by the Government.
(N) The contractor may establish, subject to the approval
of the WHC, a policy for the sharing of royalties with
creators of computer software, principally based on
gross revenues.
Where the contractor has a corporate policy for
incentive awards including sharing royalties with
software creators or the contractor is a subsidiary or
affiliate and its parent corporation has an incentive
and royalty sharing policy, the corporate sharing
policy may be approved by WHC for use at the Facility.
Whenever any annual incentive awards or annual royalty
to a software creator exceeds ten percent (10%) of the
software creator's annual base salary, the contractor
shall:
(a) Identify all such software creators to the WHC.
(b) Provide an accounting of time spent by each such
creator on private consultations, work for others
projects and WHC mission work.
(c) Provide a review of WHC mission work and ensure
that no conflict or apparent conflict of interest
exists with respect thereto for such creators.
(O) The contractor will develop administrative procedures
to avoid actual or apparent conflicts of interest
relating to the contractor's claims to copyrights in
computer software. Such procedures shall be
substantially the same as those for subject inventions
elected by the contractor pursuant to the Patent Rights
article of this contract, and, further, shall include
procedures to insure compliance with DOE orders
covering scientific and technical computer
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software pertaining to unclassified scientific,
technical, and technology-related computer software
programs developed for or on behalf of DOE. Such
administrative procedures are subject to approval of
the WHC, who may request a report of such procedures
not more than annually.
(P) The contractor may assert and establish a trademark or
service mark incorporating and identifying name
developed under this contract for computer software
copyrighted pursuant to this clause on the same terms
and conditions as set forth for establishing and
maintaining claim to copyright.
(Q) The extent of dissemination and commercialization of
released copyrighted software achieved by the
contractor will be evaluated as part of the annual
appraisal process.
(2) The contractor agrees not to include in the technical data
delivered under the contract any material copyrighted by the
contractor and not to knowingly include any material copyrighted
by others without first granting or obtaining at no cost a
license therein for the benefit of the Government of the same
scope as set forth in paragraph (d)(1) above. If the contractor
believes that such copyrighted material for which the license
cannot be obtained must be included in the technical data to be
delivered, rather than merely incorporated therein by reference,
the contractor shall obtain the written authorization of WHC to
include such material in the technical data prior to its
delivery.
(e) Subcontracting.
(1) Unless otherwise directed by the WHC, the contractor agrees to
use in subcontracts having as a purpose the conduct of research,
development, and demonstration work or in subcontracts for
supplies, the contractor clause provisions in 48 CFR 952.227-75
in accordance with the policy and procedures of 48 CFR 927.402-1,
927.402-2 and 927.402-3.
(2) It is the responsibility of the contractor to obtain from its
subcontractors technical data and rights therein, on behalf of
the Government, necessary to fulfill the contractor's obligations
to the Government with respect to such data. In the event of
refusal by a subcontractor to
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accept a clause affording the Government such rights, the
contractor shall:
(i) Promptly submit written notice to WHC setting forth reasons
for the subcontractor's refusal and other pertinent
information which may expedite disposition of the matter;
and
(ii) Not proceed with the subcontract without the written
authorization of the WHC.
I-127 COST ACCOUNTING STANDARDS PENALTIES
Reference is made to Clause I-39, Cost Accounting Standards, and Clause
I-40 Administration of Cost Accounting Standards. Notwithstanding the
provisions of those Clauses, the Contractor shall not be liable to the
Government for any increased costs or interest thereon, resulting from any
failure of the Contractor, with respect to activities carried on at the
site of the work, or of a Subcontractor to comply with applicable cost
accounting standards or to follow any practices disclosed pursuant to the
requirements of such Clause: Provided, that the Contractor shall include
in each covered subcontract an article making the subcontractor liable for
any increased costs or interest thereon resulting from any failure of the
subcontractor to comply with prescribed standards or disclosed practices.
I-128 INDEMNITY ASSURANCE TO ARCHITECT-ENGINEER OR SUPPLIER PRIOR TO OPERATION
OF A PRODUCTION OR UTILIZATION FACILITY (APR 1984)
(a) (1) The definitions set out in the Atomic Energy Act of 1954, as
amended (hereinafter called the Act), shall apply to this clause.
(2) The services or supplies furnished under this agreement are
intended to be used in connection with the construction and/or
operation of a production or utilization facility.
(3) WHC will use its best efforts to include in any subcontract for
the operation of such facility, an agreement based on the then
current approved form of indemnity agreement under section 170(d)
of the Atomic Energy Act of 1954, as amended, whereby WHC will
indemnify all persons indemnified, including the subcontractor,
against public liability for nuclear incidents arising out of or
in connection with subcontractual activities under the
subcontract for the operation of said facility in accordance with
the authority provided in subsection 170(d) of the Act.
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(4) (i) WHC will enter into an indemnity agreement in accordance
with the authority provided in subsection 170(d) of the Act
with the subcontractor, without further consideration from
the subcontractor, at any time all of the following
circumstances are present:
I-129 COST AND SCHEDULE CONTROL SYSTEMS (APR 1984)
(a) To the extent directed by WHC, the subcontractor shall establish,
maintain, and use cost and schedule control systems (management
control system) meeting the criteria set forth in the subcontract and
as described in detail in "Cost and Schedule Control Systems Criteria
for subcontract Performance Measurement-Implementation Guide," annexed
hereto and hereinafter referred to as the "Guide." Prior to
acceptance by WHC and within 60 calendar days after subcontract award,
the subcontractor shall be prepared to demonstrate systems operation
to the Government to verify that the proposed systems meet the
designated criteria. As a part of the review procedures, the
subcontractor shall furnish the Government a description of the cost
and schedule control systems applicable to this subcontract in such
form and detail as indicated by the Guide, or as required by WHC. The
subcontractor agrees to provide access to all pertinent records, data,
and plans as requested by representatives of the Government for the
conduct of systems review.
(b) The description of the management control systems accepted by WHC,
identified by title and date, shall be referenced in the subcontract.
Such systems shall be maintained and used by the subcontractor in the
performance of this subcontract.
(c) Contractor changes to the reviewed systems shall be submitted for
review and approval as required by WHC. When subcontracting Officer
approval is required, WHC shall advise the subcontractor of the
acceptability of such changes within sixty (60) days after receipt
from the subcontractor. When systems existing at the time of
subcontract award do not comply with the designated criteria,
adjustments necessary to assure compliance will be made at no change
in subcontract price or fee.
(d) The subcontractor agrees to provide access to all pertinent records
and data requested by WHC, or duly authorized representative, for the
purpose of permitting Government surveillance to ensure continuing
application of the accepted systems to this subcontract. Deviations
from the systems description identified during subcontract performance
shall be corrected as directed by WHC.
<PAGE>
WHC-380393
Section I, Page 183
(e) The subcontractor shall require that each selected subcontractor, as
mutually agreed to between the Government and the subcontractor and as
set forth in the schedule of this subcontract, meet the criteria for
cost and schedule control systems as set forth in subcontract and
shall incorporate in all such subcontracts adequate provisions for
review and surveillance of subcontractor's systems to be carried out
by the subcontractor, or by the Government when requested by either
the prime or subcontractor.
<PAGE>
WHC-380393
Attachment D, Page i
Mod. 1, 10/01/94
Attachment D
Real and Personal Property Management
<PAGE>
WHC-380393
Attachment D, Page 1
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
GENERIC
Criteria Measurements
-------- ------------
1) Complies with all applicable laws, 1)a Zero incidence of non-compliance
regulations, orders, directives, and with applicable laws.
requirements. The following list is
representative of examples of laws, 1)b Continued progress toward
regulations, orders, etc., and is not compliance with applicable
intended to be all inclusive: regulations, orders, directives, and
requirements. Goal is 100 percent
For Personal Property: compliance (except when deviations
Federal Property Management and/or waivers were previously
Regulations approved by the Contracting Officer).
DOE Property Management Regulations
DOE Acquisition Regulation (DEAR)
DOE Order 2200.6A Financial
Accounting
Money and Finance (Pub.LAW 97-258
2) Internal & External Reviews and 2)a Response to all findings and
Audits recommendations from audits, and
reviews, will be accomplished to an
agreed upon schedule and plan.
2)b. A goal of zero incidence of
repeated findings identified from
previous audits and reviews.
3) Maintain a training program for 3)a A minimum of 25 percent of
personal property. personnel working with personal
property are provided with related
training annually.
4) The Contractor has current 4)a DOE has received for approval
written policies, procedures, and/or policies and procedures within
practices which cover personal agreed upon time-frames.
property.
1
<PAGE>
WHC-380393
Attachment D, Page 2
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
-ACQUISITION-
Criteria Measurements
-------- ------------
1) Internal and external sources of 1)a New personal property
excess are screened for availability procurement will be screened and
prior to new procurement. documented as provided in approved
procedures and trended toward a goal
of 100 percent.
2) Contractor identifies, controls 2)a Subcontractors initial reviews
and maintains records on will be conducted within one year of
subcontractors with government award, and every two years thereafter.
personal property (Government
Furnished Property, Subcontractor 2)b Annual subcontractor property
acquired Property) and has a system reports will be received not later
to manage such property. than 45 days after the end of the
fiscal period.
2)c Subcontractor physical
inventories are conducted as
required and reported to the prime
contractor within 45 days after the
date of completion.
3) Contractor will perform 3)a Baseline/acceptance inventories
baseline/acceptance inventories. of accountable property will be
performed within six months of
contract award.
2
<PAGE>
WHC-380393
Attachment D, Page 3
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
-ACCOUNTING AND CONTROL-
Criteria Measurements
-------- ------------
1) Contractor has personal property 1)a Inventory of capital equipment
management systems in place to is conducted every two years and
account for and control personal statement of completion reported to
property including tagging, records, DOE within 10 days.
physical inventories, etc.
1)a.1. Inventory variances will be
trended toward zero, with a baseline
to be established by individual
contractors.
1)b Physical inventory of sensitive
items and stores items will be
conducted annually and statement of
completion reported to DOE within 10
days.
1)b.1. Inventory variances will be
trended toward zero with a baseline
to be established by individual
contractors.
1)c 100 percent precious metal
inventories will be conducted
annually and reported to the DOE
Contracting Officer/Property
Administrator within 45 days after
review.
1)c.1 A zero percent variance rate
will be maintained; consumption,
calibration, and measurement
differences will be documented.
1)d Contractor will reconcile
inventory results to determine final
variances within 80 days after
notification of inventory completion.
3
<PAGE>
WHC-380393
Attachment D, Page 4
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
-ACCOUNTING AND CONTROL-
Criteria Measurements
-------- ------------
1)e Variances will be subjected to
root cause analysis and a corrective
action plan will be submitted to the
DOE Contracting Officer/Property
Administrator within 30 days.
1)e.1 All corrective actions are to
be completed prior to the next
inventory cycle unless approved in
advance by the DOE Contracting
Officer/Property
Administrator within 30 days.
1)f Number of variance incidents
reported from prior inventory period
are to be trended toward zero with a
baseline established with DOE
Contracting Officer/Property
Administrator approval.
1)g Personal property records will
be trended toward a goal of 100
percent accuracy.
2) Reporting of lost and missing 2)a Lost or missing property, other
property. than physical inventory variances, is
identified, investigated, and reported
to the DOE Contracting
Officer/Property Administrator with
5 days. Complete written reports
are provided within 10 days.
2)b The value of lost or missing
property will be trended toward zero
percent with baseline established
for individual contractors.
3) Materials inventories, except 3) Material inventories, except
spares, are maintained at optimal spares, achieve a turnover rate of at
levels to support mission least two per year. Exceptions must be
requirements. justified and documented
4
<PAGE>
WHC-380393
Attachment D, Page 5
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
-ACCOUNTING AND CONTROL-
Criteria Measurements
-------- ------------
3)b Utilization reviews will be
conducted annually and unjustified
inventory items identified and
reported as excess within 90 days.
3)c 25 percent of material being
procured under Just-In-Time systems
or Systems Contracting will be
reviewed annually to determine under
agreed upon criteria whether any such
items should be maintained in
inventory.
5
<PAGE>
WHC-380393
Attachment D, Page 6
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
UTILIZATION
Criteria Measurements
-------- ------------
1) A formalized walk-through program 1)a Walk-throughs will be scheduled
is required. and conducted of all operating and
storage areas every two years and
results documented.
2) An effective utilization program 2)a Contractor will maintain an
is in place for motor vehicles/other approved utilization rate measured
motor equipment, and other capital against a defined, site-specific
items. standard.
Goal: 100 percent
2)b Utilization reviews will be
conducted annually for motor
vehicles and heavy equipment and
reports provided to DOE within 30
days.
3) A personal property Maintenance 3)a Maintenance plans will be
management Program is required. developed and maintenance performed
in accordance with these plans.
3)b No lost time, injuries,
illnesses, fatalities or
environmental incidents will occur
due to non-performance of
maintenance.
Variance = Zero percent
4) An effective Equipment Held for 4)a Annual review of EHFFP will be
Future Projects (EHFFP) program is performed and appropriate
required. justifications/approvals for
retention documented.
6
<PAGE>
WHC-380393
Attachment D, Page 7
Mod. 1, 10/01/94
REAL AND PERSONAL PROPERTY MANAGEMENT
Criteria and Performance Measurements
-------------------------------------
PERSONAL PROPERTY
-DISPOSITION-
Criteria Measurements
-------- ------------
1) Contractor has a program for 1)a Excess property will be disposed
disposition of excess/surplus of within 9 months after excess
property. determination, trending toward a goal
of six months.
1)b Documentation exists for 100
percent of all disposition actions.
1)c Close-out/termination inventory
will be current as of the date of
contract completion or termination.
7
<PAGE>
EXHIBIT 10(o)(2)
Massachusetts Water Resources Authority Agreement with ICF Kaiser Engineers,
Inc. through its wholly owned subsidiary of ICF Kaiser Engineers of
Massachusetts, Inc. for construction management services for Boston Harbor
Project--Deer Island
Related Facilities, Contract No. 5622 (June 1990)
P 2. Amendment No. 5 dated December 6, 1994
[IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO. 10(o)(2)
FILED IN PAPER ON MAY 23, 1995, ON FORM SE
PURSUANT TO A CONTINUING HARDSHIP EXEMPTION]
<PAGE>
Exhibit 10(p)(1)
Section 401(k) Plan
Amendment No. 1 dated April 24, 1995
1. Section 8.3(b) of the 401(k) Plan is amended effective January 1, 1993,
to add the following to the end thereof:
"Effective January 1, 1993, a Participant or "distributee" may elect
at any time to have any portion of an "eligible rollover distribution"
paid in a direct rollover to the trustee or custodian of an "eligible
retirement plan" specified by the Participant or distributee,
whichever is applicable. Payment of a direct rollover in the form of
a check payable to the trustee or custodian of an eligible retirement
plan, for the benefit of the Participant or distributee, may be mailed
to the Participant or distributee. For purposes of this Section
8.3(b) the following terms shall have the following meanings:
(i) "Distributee" means a surviving spouse or a spouse or
former spouse who is an alternate payee under a "qualified domestic
relations order."
(ii) "Eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an annuity
plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code that accepts an eligible
rollover distribution; provided that if the distributee is a surviving
spouse, an eligible retirement plan means an individual retirement
account or individual retirement annuity.
(iii) "Eligible rollover distribution" means any distribution of
all or a portion of the Participant's Account, but does not include a
distribution (i) in installments over a period of ten years or more,
or (ii) to the extent it is required under Section 401(a)(9) of the
Code."
2. Section 9.5 of the 401(k) Plan is amended by deleting subsection (m)
and replacing it with a new subsection (m) as follows:
"To the extent required under Section 412 of ERISA, the Company
shall secure fidelity bonding for the fiduciaries of the Plan.
The Company or the Trustee (as directed by the Committee) shall obtain
a policy or policies of insurance for the Committee (and other
fiduciaries of the Plan) to cover liability or loss occurring by
reason of the act or omission of a fiduciary. If such insurance is
purchased with Trust assets, the policy must permit recourse by the
insurer against the fiduciary in the case of a breach of a fiduciary
obligation by such fiduciary. To the extent permitted by applicable
law, applicable Certificates of Incorporation, and the applicable By-
laws, the Company shall indemnify each member of the Committee, the
Secretary of the Committee, and any agent of the Committee who is an
employee or director of the Company (to the extent permitted by law)
against any personal liability or expense resulting from his service
on or for the Committee, except such liability or expense as may
result from his own willful misconduct."
<PAGE>
EXHIBIT 10(r)
Contract (#DE-AC3495RF00825) between Kaiser-Hill Company, LLC, a subsidiary of
the Corporation, and the U.S. Department of Energy dated as of April 4, 1995
[IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO. 10(r)
FILED IN PAPER ON MAY 23, 1995, ON FORM SE PURSUANT TO A CONTINUING HARDSHIP
EXEMPTION]
<PAGE>
Exhibit 10(bb)
[ICF Kaiser Logo]
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, VA 22031-1207
703/934-3600 Fax 703/934-9740
December 31, 1994
James O. Edwards
Chairman and Chief Executive Officer
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, VA 22031-1207
Re: Employment Arrangements
-----------------------
Dear Jim:
The purpose of this letter is to set forth our agreement with respect to
your employment by ICF Kaiser International, Inc. (the "Company"). The "ICF
Kaiser International, Inc. Standard Terms and Conditions of Employment for
Executive Personnel" attached hereto as Exhibit A and the "Senior Executive
Officers Severance Plan" (the "SEOSP") attached hereto as Exhibit B are
incorporated herein by reference to the extent not inconsistent with this
letter. This letter and Exhibits A and B are sometimes hereinafter collectively
referred to as this "Agreement."
1. Employment Period; Duties.
-------------------------
(a) Employment and Employment Period. The Company shall employ you to
--------------------------------
serve as Chairman and Chief Executive Officer of the Company for a period of
three years commencing December 31, 1994 (the "Employment Period").
(b) Offices, Duties and Responsibilities. You shall be a member of,
------------------------------------
and report to, the Board of Directors of the Company. As Chief Executive
Officer of the Company, you shall have general and active management of the
business of the Company and shall see that all orders and resolutions of the
Board of Directors are carried into effect. Without limiting the generality of
the foregoing, you shall have such powers and duties in the management of the
Company as generally pertain to the office of Chief Executive Officer, subject
to the overview and control of the Board of Directors.
2. Compensation and Fringe Benefits.
--------------------------------
(a) Base Compensation. The Company shall pay you a base salary at the
-----------------
rate of $325,000 per year through February 28, 1995, which shall increase by not
less than $25,000 beginning on March 1, 1995, paid in installments in accordance
with the
<PAGE>
James O. Edwards
December 31, 1994
Page 2
Company's regular practice for compensating executive personnel. Increases in
your base salary for periods during the Employment Period beginning on and after
March 1, 1995 beyond the $25,000 increase beginning on March 1, 1995 shall be
determined by the Compensation Committee of the Company's Board of Directors.
(b) Non-Qualified Salary Deferral Plan. You will be eligible for
----------------------------------
participation in the Company's Deferred Compensation Plan if and when that plan
is implemented.
(c) Bonus Compensation. You shall be entitled to receive bonuses as
------------------
determined by the Compensation Committee of the Company's Board of Directors in
accordance with the provisions of the Senior Officers Bonus Plan. The amounts
of such bonuses shall be determined by the Compensation Committee of the Board
of Directors.
(d) Fringe Benefits. You will receive such fringe benefits as are
---------------
generally made available by the Company to executive personnel. Such benefits
shall (i) include participation in the Company's defined contribution retirement
plan, 401(k) Plan, and health, term life and disability insurance programs and
reimbursement of reasonable expenses incurred in connection with travel and
entertainment related to the Company's business and affairs and (ii) be paid by
the Company in a manner, and to the extent, consistent with past practice. In
addition, after termination you will continue to receive coverage under the
Company's health and disability insurance programs, at the Company's expense,
for the greater of (i) the period during which you are entitled to severance
benefits under the SEOSP, or (ii) the period provided by applicable laws.
(e) Carryover Cash Payment. On May 15, 1995, the Company will pay you
----------------------
the special cash payment promised under your previous Executive Agreement in the
amount of $100,000 less such deductions as may be required to be withheld by
applicable law and regulation. That amount shall be paid regardless of any
termination of this Agreement prior to May 15, 1995 by the Company.
(f) Restructuring of Indebtedness. Effective on the date hereof, your
-----------------------------
indebtedness to the Company will be restructured as provided in an amended and
restated promissory note in the form attached hereto as Exhibit C. Subject to
that Exhibit C, such indebtedness shall be secured as provided in, and be
entitled to the benefits of, the Stock Pledge Agreements between you and the
Company referred to in Exhibit C.
<PAGE>
James O. Edwards
December 31, 1994
Page 3
3. Stock Options.
-------------
(a) Cancellation of Certain Existing Options. In contemplation of
----------------------------------------
this Agreement, effective on September 1, 1994, you agreed that the following
stock options would be cancelled, and of no further force and effect:
<TABLE>
<CAPTION>
Number of Exercise
Options Grant Date Number Vested Price
---------- ---------- ------------- --------
<S> <C> <C> <C>
35,000 05/14/90 35,000 $ 9.51
32,000 12/20/90 16,000 11.12
8,000 12/20/90 8,000 11.12
22,000 05/06/91 22,000 16.23
</TABLE>
(b) New Options. In contemplation of this Agreement, effective on
-----------
September 1, 1994, the Company granted to you non-statutory stock options under
the Company's Stock Incentive Plan to purchase 150,000 shares of the Company's
common stock, par value $0.01 per share ("Common Stock"), at a purchase price
equal to the average of the closing prices of the Common Stock on the New York
Stock Exchange on the 20 trading days ending on September 1, 1994. Such options
will be represented by a Stock Option Agreement in the form customarily used by
the Company for such agreements, containing the following provisions:
(i) Option Term. The options will expire on November 15, 1999,
-----------
subject to termination 180 days after you cease being employed by the
Company for any reason.
(ii) Vesting. Twenty-five percent (25%) of the options will vest
-------
on each of the first four anniversaries of May 15, 1994, except that
if you terminate employment for "good reason" or ICF Kaiser terminates
you without "cause," as those two terms are defined in the SEOSP, any
and all then unvested stock options will vest in full on the effective
date of such termination and not expire until 180 days thereafter.
4. Non-Competition. You agree that for a period commencing as of the
---------------
date hereof and ending (i) on the date of termination of your employment (x) by
the Company for reasons that do not constitute "cause" as defined in the SEOSP
or (y) by you for "good reason" as defined in the SEOSP, and (ii) one year
following termination of your employment (x) by the Company for "cause" or (y)
by you for reasons that do not
<PAGE>
James O. Edwards
December 31, 1994
Page 4
constitute "good reason," provided that the Company is not in material breach of
--------
this Agreement (the "Non-Competition Period"), you will not, except as otherwise
provided herein, engage or participate, directly or indirectly, as principal,
agent, employee, employer, consultant, stockholder, partner or in any other
individual capacity whatsoever, in the conduct or management of, or own any
stock or any other equity investment in or debt of, any business (other than
through a sole proprietorship of which you are the only principal) which is
competitive with any business conducted by the Company.
For the purpose of this Agreement, a business shall be considered to be
competitive with the business of the Company only if such business is engaged in
providing services (i) similar to (x) any service currently provided by the
Company or provided by the Company during the Employment Period; (y) any service
which in the ordinary course of business during the Non-Competition Period
evolves from or results from enhancements to the services provided by the
Company as of the date hereof or during the Employment Period; or (z) any future
service of the Company as to which you materially and substantially participated
in the design or enhancement, and (ii) to customers and clients of the type
served by the Company during the Non-Competition Period.
(a) Non-Solicitation of Employees. During the Non-Competition Period,
-----------------------------
you will not (for your own benefit or for the benefit of any person or entity
other than the Company) solicit, or assist any person or entity other than the
Company to solicit, any officer, director, executive or employee of the Company
or its affiliates to leave his or her employment.
(b) Reasonableness. You acknowledge that (i) the markets served by
--------------
the Company are national and international and are not dependent on the
geographic location of executive personnel or the businesses by which they are
employed, (ii) the length of the Non-Competition Period is related to the length
of the Employment Period and the Company's agreement to provide severance
benefits as set forth in Section 5(b) of Exhibit A and in Exhibit B that, under
certain circumstances, will provide additional compensation to you upon the
termination of this Agreement; and (iii) the above covenants are reasonable on
their face, and the parties expressly agree that such restrictions have been
designed to be reasonable and no greater than is required for the protection of
the Company.
(c) Investments. Nothing in this Agreement shall be deemed to
-----------
prohibit you from owning equity or debt investments in any corporation,
partnership or other entity which is competitive with the Company, provided that
--------
such investments (i) are passive investments and constitute one percent (1%) or
less of the outstanding equity securities of such an entity the equity
securities of which are traded on a national securities exchange or other public
market, (ii) are approved by the Company, or (iii) consist of your investment in
a sole proprietorship of which you are the only principal.
<PAGE>
James O. Edwards
December 31, 1994
Page 5
5. Termination of Prior Agreements. Effective on the date hereof, all
-------------------------------
other agreements between you and the Company relating to the terms of your
employment, including, without limitation, the Restated Executive Agreement
dated as of December 20, 1990, the Restated Compensation Agreement dated as of
December 20, 1990 and the Letter Agreement dated November 17, 1989, each as
amended through the date hereof, are terminated and shall be of no further force
and effect.
If you find the terms of your employment, as set forth above and in
Exhibits A and B, acceptable, please sign a copy of this letter and an Amended
and Restated Promissory Note in the form of Exhibit C and return them to Paul
Weeks, II. Upon such acceptance and delivery, this letter, together with
Exhibits A and B, will constitute your employment agreement with the Company.
Very truly yours,
ICF KAISER INTERNATIONAL, INC.
By:
-----------------------------------
For the Compensation Committee
of the Board of Directors
Accepted and Agreed:
-------------------------
James O. Edwards
<PAGE>
Exhibit A
ICF Kaiser International, Inc.
Standard Terms and Conditions
of Employment for Executive Personnel
Exhibit A to the Employment Agreement (the "Base Agreement") dated December
31, 1994, between ICF Kaiser International, Inc. (the "Company") and James O.
Edwards (the "Executive"). This Exhibit A, the Senior Executive Officers
Severance Plan (the "SEOSP," attached as Exhibit B to the Base Agreement) and
the Base Agreement are collectively referred to as this "Agreement."
1. Devotion to Interests of the Company. Except as expressly authorized
------------------------------------
by the Company's Board of Directors, until the effective date of notice of
termination of this Agreement by either the Executive or the Company, with or
without cause, the Executive shall render his business services solely in the
performance of his duties under this Agreement. The Executive shall use his
best efforts to promote the interests and welfare of the Company.
2. Trade Secrets. The Executive shall not use or disclose to third
-------------
parties any of the Company's trade secrets or other confidential information.
The term "trade secrets or other confidential information" includes, by way of
example, matters of a technical nature, such as scientific, trade and
engineering secrets, "know-how," formulae, secret processes or machines,
inventions, computer programs (including documentation of such programs) and
research projects, and matters of a business nature, such as proprietary
information about costs, profits, markets, sales, lists of customers, and other
information of a similar nature to the extent not available to the public, and
plans for future development. After termination of this Agreement, the
Executive shall not use or disclose trade secrets or other confidential
information unless such information becomes a part of the public domain other
than through a breach of this Agreement or is disclosed to the Executive by a
third party who is entitled to receive and disclose such information.
3. Return of Documents and Property. Upon the effective date of notice
--------------------------------
of the Executive's or the Company's election to terminate this Agreement, or at
any time upon the request of the Company, the Executive (or his heirs or
personal representatives) shall deliver to the Company (a) all documents and
materials containing trade secrets or other confidential information relating to
the Company's business and affairs, and (b) all documents, materials and other
property belonging to the Company, which in either case are in the possession or
under the control of the Executive (or his heirs or personal representatives).
4. Discoveries and Works. All discoveries and works made or conceived by
---------------------
the Executive during his employment by the Company, jointly or with others, that
relate to the Company's activities shall be owned by the Company. The term
"discoveries and works" includes, by way of example, inventions, computer
programs (including documentation of such programs), technical improvements,
processes, drawings and works of authorship. The Executive shall (a) promptly
notify, make full disclosure to, and execute and deliver any documents requested
by, the Company to evidence or better assure title to such discoveries and works
in the Company, (b) assist the Company in
A-1
<PAGE>
Exhibit A
ICF Kaiser International, Inc.
Standard Terms and Conditions
obtaining or maintaining for itself at its own expense United States and foreign
patents, copyrights, trade secret protection or other protection of any and all
such discoveries and works, and (c) promptly execute, whether during his
employment by the Company or thereafter, all applications or other endorsements
necessary or appropriate to maintain patents and other rights for the Company
and to protect its title thereto. Any discoveries and works which, within six
months after the termination of the Executive's employment by the Company, are
made, disclosed, reduced to a tangible or written form or description, or are
reduced to practice by the Executive and which pertain to the business carried
on or products or services being sold or developed by the Company at the time of
such termination shall, as between the Executive and the Company, be presumed to
have been made during the Executive's employment by the Company. Set forth on
Schedule I attached hereto is a list of inventions, patented or unpatented,
including a brief description thereof, which are owned by the Executive, which
the Executive conceived or made prior to his employment by the Company and its
affiliates and which are excluded from this Agreement.
5. Termination.
-----------
(a) The Company may terminate this Agreement, with or without "cause,"
upon 90 days' prior written notice; and the Executive may terminate this
Agreement, with or without "good reason," upon 90 days' prior written notice.
Throughout this Agreement, the terms "cause" and "good reason" shall have the
meanings as set forth in the SEOSP, dated as of April 4, 1994. For purposes of
the SEOSP, your date of hire shall be September 1, 1974.
(b) In the event the Company elects to terminate this Agreement
without "cause," or the Executive elects to terminate this Agreement for "good
reason," the Company shall pay to the Executive, in addition to any amounts paid
or payable under other provisions of this Agreement or any other agreements
between the Company and the Executive, (i) a severance payment in accordance
with the provisions of the SEOSP dated as of April 4, 1994, and (ii) an amount
determined in writing by the Compensation Committee of the Board of Directors to
be the pro-rated portion of the bonus that would be due to the Executive for the
fiscal year during which the termination takes place, such pro-rated portion of
bonus to be paid in a cash lump sum with deduction of such amounts as may be
required to be withheld under applicable law and regulations. In addition, in
the event the Company elects to terminate this Agreement without "cause" or the
Executive elects to terminate this Agreement for "good reason," all unvested
stock options will vest in full on the effective date of termination and expire
180 days thereafter. All other compensation and benefits provided for in this
Agreement shall cease upon such termination and payment, except that the Company
shall continue the Executive's then existing health insurance benefits, paid by
the Company in a manner, and to the extent, consistent with past practice in
effect at the time of termination, for a period of 180 days after the effective
date of such termination.
A-2
<PAGE>
Exhibit A
ICF Kaiser International, Inc.
Standard Terms and Conditions
(c) In the event the Company terminates this Agreement for "cause" or
the Executive terminates this Agreement without "good reason," the Executive's
rights under this Agreement shall cease as of the effective date of such
termination, except that any stock options that are vested on the effective date
of such termination shall be exercisable for a period of 180 days after such
date. All stock options that are not vested on the effective date of such
termination shall terminate on such date.
(d) If, prior to the expiration or termination of the Employment
Period, the Executive shall be unable to perform the essential functions of his
employment position under the Base Agreement, with or without reasonable
accommodation, by reason of disability or impairment of health for at least six
consecutive calendar months, the Company shall have the right to terminate this
Agreement by giving written notice to the Executive to that effect, but only if
at the time such notice is given such disability or impairment is still
continuing. After giving such notice, the Employment Period shall terminate
with the payment of the Executive's base compensation for the month in which
notice is given, and the Company shall have no further obligations under this
Agreement, except that (i) any stock options that are vested on the effective
date of such termination shall be exercisable for a period of 180 days after
such date and (ii) the Company shall pay to the Executive, within five business
days of the effective date of the termination, an amount determined in writing
by the Compensation Committee of the Board of Directors to be the pro-rated
portion of the bonus that would be due to the Executive for the fiscal year
during which the termination takes place, such pro-rated portion of bonus to be
paid in a cash lump sum with deduction of such amounts as may be required to be
withheld under applicable law and regulations. In the event of a dispute as to
whether the Executive is unable to perform the essential functions of his
employment position under the Base Agreement, with or without reasonable
accommodation, either party may from time to time request a medical examination
of the Executive by a doctor appointed by the Chief of Staff of a hospital
selected by mutual agreement of the parties, or as the parties may otherwise
agree, and the written medical opinion of such doctor shall be conclusive and
binding upon the parties as to whether the Executive has become disabled and the
date when such disability arose. The cost of any such medical examinations
shall be borne by the Company.
(e) If, prior to the expiration or termination of the Employment
Period, the Executive shall die, the Company shall pay to the Executive's estate
his base compensation through the end of the month in which the Executive's
death occurred, at which time the Employment Period shall terminate without
further notice and the Company shall have no further obligations under this
Agreement, except that (i) any stock options that are vested on the date of such
termination of the Employment Period shall be exercisable by the Executive's
estate for a period of 180 days after such date and (ii) the Company shall pay
to the Executive (or his estate), within five business days of the effective
date of the termination, an amount determined in writing by the Compensation
Committee of the Board of Directors to be the pro-rated portion of the bonus
that would be due to the Executive for the fiscal year during which the
termination takes place, such pro-rated portion of bonus to be paid in a cash
lump sum with
A-3
<PAGE>
Exhibit A
ICF Kaiser International, Inc.
Standard Terms and Conditions
deduction of such amounts as may be required to be withheld under applicable law
and regulations.
(f) Nothing contained in Sections 5(d) or 5(e) shall impair or
otherwise affect any rights and interests of the Executive under any
compensation plan or arrangement of the Company which may be adopted by the
Board of Directors, or the Compensation Committee of the Board of Directors, of
the Company.
6. Severability. Should any provision of this Agreement be determined to
------------
be unenforceable or prohibited by any applicable law, such provision shall be
ineffective to the extent, and only to the extent, of such unenforceability or
prohibition without invalidating the balance of such provision or any other
provision of this Agreement, and any such unenforceability or prohibition in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7. Assignment. The Executive's rights and obligations under this
----------
Agreement shall not be assignable by the Executive. The Company's rights and
obligations under this Agreement shall not be assignable by the Company except
as incident to the transfer, by merger or otherwise, of all or substantially all
of the business of the Company. In the event of any such assignment by the
Company, all rights of the Company under this Agreement shall inure to the
benefit of the assignee.
8. Miscellaneous. The Base Agreement and Exhibits A and B constitute the
-------------
entire agreement, and supersede all prior agreements, of the parties hereto
relating to the subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained herein. The
validity, interpretation, performance and enforcement of the Base Agreement,
this Exhibit A and Exhibit B to the Base Agreement shall be governed by the laws
of the Commonwealth of Virginia. The headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
A-4
<PAGE>
Schedule I
INVENTIONS OWNED BY THE EXECUTIVE
NONE
<PAGE>
Exhibit B
SEOSP
B-1
<PAGE>
Exhibit C
AMENDED AND RESTATED PROMISSORY NOTE
$1,028,066.27 December 31, 1994
FOR VALUE RECEIVED, the undersigned promises to pay on December 31, 1997,
to the order of ICF Kaiser International, Inc., a Delaware corporation, its
successors and assigns ("ICF Kaiser"), at 9300 Lee Highway, Fairfax, Virginia
22031-1207, or at such other place as the holder hereof may from time to time
designate in writing, the principal sum of $1,028,066.27 plus accrued interest
on such principal sum from the date hereof. Interest shall accrue on the unpaid
principal balance hereof from time to time outstanding after the date hereof at
the rate of 6.34% per annum. Interest shall be calculated on the basis of a
365-day year for the actual number of days elapsed. This Note may be prepaid,
in whole or in part, at any time.
This Note is a continuation of the Promissory Notes dated January 14, 1991,
August 22, 1991, and January 24, 1992, in the respective principal amounts of
$622,740, $50,000, and $150,000 (collectively, the "Predecessor Notes"), the
principal amount hereof represents the aggregate principal of and accrued
interest on the Predecessor Notes as of the date hereof, and this Note shall
constitute the "Obligations" referred to in, and is entitled to the benefits of,
those certain Pledge Agreements dated February, 28, 1991, August 22, 1991, and
January 24, 1992 between the undersigned and ICF Kaiser (the "Pledge
Agreements"), pursuant to which an aggregate of 130,665 shares of ICF Kaiser
Common Stock (the "Pledged Shares") are pledged as collateral security for the
indebtedness evidenced hereby. Except for recourse to the Pledged Shares as
provided in the Pledge Agreements, this Note is non-recourse to the undersigned.
If ICF Kaiser is the holder hereof as of December 31, 1995, in addition to
its rights under the Pledge Agreements, ICF Kaiser shall have the right, at its
option upon 60 days' prior written notice (the "Notice Period") given to the
undersigned at any time after November 1, 1995, to cancel this Note and the
indebtedness evidenced hereby in exchange for such number of the Pledged Shares
as have an aggregate Market Value (as defined below) as of the date of
cancellation equal to the amount of indebtedness represented hereby as of such
date, provided, however, that the undersigned shall have the right, at any time
-------- -------
during the Notice Period, to prevent such exchange by prepaying this Note,
including accrued interest to the date of prepayment, prior to the expiration of
the Notice Period. Upon the exchange contemplated by the immediately preceding
sentence, the undersigned shall convey the Pledged Shares to be exchanged in
cancellation of this Note to ICF Kaiser free and clear of all liens and
encumbrances, and upon any such exchange or any prepayment of this Note as
contemplated by the proviso to the immediately preceding sentence, ICF Kaiser
shall return to the undersigned this Note marked "canceled" and any Pledged
Shares not exchanged in cancellation of this Note, and the Pledge Agreements
shall terminate.
As used herein, the term "Market Value" means, on any date specified herein
for the determination hereof, the average daily Market Price of ICF Kaiser
Common Stock during the period of 20 days, ending on such date, on which the
national securities exchanges were open for trading, and the term "Market Price"
means, per share of ICF Kaiser Common Stock on any date specified herein, (a)
the last sale price of the ICF
C-1
<PAGE>
Kaiser Common Stock on such date or, if no such sale takes place on such date,
the average of the closing bid and asked prices on such date, in each case as
officially reported on the principal national securities exchange on which ICF
Kaiser Common Stock is then listed or admitted to trading, or (b) if ICF Kaiser
Common Stock is not then listed or admitted to trading on any national
securities exchange, but is designated as a national market system security by
the NASD, the last trading price of ICF Kaiser Common Stock on such date, or (c)
if there shall have been no trading on such date or if ICF Kaiser Common Stock
is not so designated, the average of the reported closing bid and asked prices
of ICF Kaiser Common Stock on such date as shown by NASDAQ and reported by any
member firm of the New York Stock Exchange selected by ICF Kaiser, or (d) if
neither (a), (b) nor (c) is applicable in respect of ICF Kaiser Common Stock, a
market price per share determined at ICF Kaiser's expense by an appraiser chosen
by ICF Kaiser.
The undersigned expressly waives presentment, demand, protest and other
notice of any kind.
The undersigned hereby agrees that any suit, action or proceeding against
the undersigned arising out of or relating to this Note shall be brought in any
Federal or state court located in the Commonwealth of Virginia, and the
undersigned hereby submits to the exclusive jurisdiction of such court for the
purpose of any such suit, action or proceeding. A final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
To the extent that service or process by mail is permitted by applicable law,
the undersigned hereby irrevocably consents to the service of process in any
such suit, action or proceeding in such courts by the mailing of such process by
registered or certified mail, postage pre-paid, at his address for notices
provided for in the Pledge Agreements. The undersigned hereby irrevocably
agrees not to assert (a) any objection he may ever have to the laying of venue
of any such suit, action or proceeding in any Federal or state court located in
the Commonwealth of Virginia and (b) any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
The undersigned hereby waives the right to trial by jury in any judicial
proceeding related to this Note.
C-2
<PAGE>
This Note shall be governed in all respects by the laws, excluding laws
relating to conflicts of laws, of the Commonwealth of Virginia and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
----------------------------
James O. Edwards
Accepted and Agreed:
ICF KAISER INTERNATIONAL, INC.
By:
-----------------------------------
For the Compensation Committee
of the Board of Directors
C-3
<PAGE>
Exhibit 10 (jj)
[ICF Kaiser Logo]
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, VA 22031-1207
703/934-3600 Fax 703/934-9740
April 19, 1994
Michael K. Goldman
Executive Vice President
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, VA 22031-1207
Re: Employment Arrangements
-----------------------
Dear Michael:
The purpose of this letter is to set forth our agreement with respect to
your employment by ICF Kaiser International, Inc. and its subsidiaries and
affiliates (the "Company") as follows:
1. As we discussed last month, the Company (with the concurrence of IFINT-USA,
Inc.) has determined that it was in the best interests of the Company to: i)
terminate your Executive Agreement dated as of December 20, 1990 as subsequently
amended, effective as of February 28, 1994; and ii) terminate your Compensation
Agreement dated as of December 20, 1990 as subsequently amended, effective as of
February 28, 1994 (together, the December Agreements).
2. The Company shall make the $50,000 1994 Special Cash Payment provided for
in the December Agreements to you on or before May 15, 1994, such payment not to
be considered as part of your salary or your FY 1995 or any other year's bonus.
3. On or before May 15, 1994, you shall make the May 15, 1994 interest payment
in respect of your outstanding loan made under the provisions of Section 4 of
the Compensation Agreement referred to above. The current amount of the loan is
$191,647.
4. Effective May 16, 1994, the terms of the loan shall be amended to provide
that: a) the principal shall be due upon demand by the Company, but no later
than February 28, 1999; b) interest from May 16, 1994, shall accrue on the
outstanding principal at 6% per annum; c) payment of interest shall be deferred
until such time as the principal is due and no interest shall accrue or be
payable on such deferred interest; and d) if, at the time of demand (February
28, 1999, if no demand is earlier made), the value of the stock you have pledged
under your Stock Pledge Agreement dated February 28, 1991 is less than the then
outstanding amount of principal and interest, the Company will retire the
principal and interest in a tax advantageous way to you. By tax advantageous, I
mean that you will be considered to have sold your pledged shares at the highest
price permitted by the Company's agreements and covenants relating to its debt
and equity instruments and the Company shall attempt
<PAGE>
Michael K. Goldman
April 19, 1994
Page 2
to minimize the amount of ordinary income attributed to you. In any event, the
principal and interest under the note shall remain non-recourse to you.
5. Indemnification pursuant to the December Agreements shall continue for acts
or omissions during the term of the December Agreements (December 20, 1990,
through February 28, 1994); indemnification for acts or omissions during other
time periods shall be that generally available under the Articles of
Incorporation/By-laws of the various companies to officers and employees of each
such company.
6. All of your outstanding options that have not yet vested are now vested as
of March 1, 1994, and all of your other options remain vested and exercisable in
accordance with their terms.
7. All other obligations and benefits of the December Agreements will
terminate as of February 28, 1994.
8. You will serve as an at will employee of the Company at a salary of
$175,000 per year and with other benefits equal to those provided to other
senior managers of the Company, and you will continue to be an Executive Vice
President of ICF Kaiser International, Inc. You will participate in the
Company's incentive compensation plan and have senior management
responsibilities in the finance and administration areas.
9. You are hereby designated a participant in the Senior Executive Officers
Severance Plan (SEOSP), a copy of which is attached, or any successor plan, and
entitled to the benefits thereunder, provided that a change of title to Senior
Vice President of ICF Kaiser International, Inc. or equivalent will not be
considered "good reason" under the SEOSP, nor will it affect your participation
in, or benefits or rights under, the SEOSP. Any other change in title without
your express written consent will be considered "good reason" under the SEOSP.
10. In consideration for the payments and agreements set forth above, you, on
behalf of yourself, your successors and assigns, hereby release and forever
discharge the Company and any and all of its respective current, former or
future affiliated entities, subsidiaries, departments, officers, directors,
employees, representatives, agents, attorneys, successors and assigns, from any
and all claims and cases of action (whether known or unknown) which you have, or
may in the future have, against them in law or equity, under Federal, state,
District of Columbia or other local law, relating to or arising out of the
December Agreements.
11. In consideration for the payments and agreements set forth above, the
Company, on behalf of itself and any and all of its respective current, former
or future affiliated entities, subsidiaries, departments, officers, directors,
employees, representatives, agents, attorneys, successors and assigns, hereby
releases and forever discharges you from any and all claims and causes of action
(whether known or unknown) which they have, or may in the future have, against
you in law or equity, under Federal, state, District of Columbia or other local
law, relating to or arising out of the December Agreements.
<PAGE>
Michael K. Goldman
April 19, 1994
Page 3
12. You will be considered for any position within the Company for which you
are qualified and, if you are offered any such position, the compensation
offered will not be adversely affected by your salary or bonus range as
established pursuant to this agreement.
Please indicate your agreement with and acceptance of these actions by
signing below.
Very truly yours,
/s/
_______________________________________
James O. Edwards
Chairman and Chief Executive Officer
I agree with and accept these actions
/s/
_______________________________________
Michael K. Goldman, April 19, 1994
<PAGE>
Exhibit 21
ICF KAISER INTERNATIONAL, INC.
9300 Lee Highway
Fairfax, Virginia 22031
(703) 934-3600
<TABLE>
<CAPTION>
Jurisdiction
Wholly Owned Subsidiaries: of Formation:
-------------------------- -------------
<S> <C>
I. Clement International Corporation Delaware
I. Cygna Group, Inc. Delaware
II. Liability Risk Management, Inc. California
I. Global Trade & Investment, Inc. Delaware
I. ICF Cannon Associates, Inc. Delaware
I. ICF Consulting Associates, Inc. Delaware
I. ICF Incorporated Delaware
I. ICF Information Technology, Inc. Delaware
II. Phase Linear Systems Incorporated Delaware
I. ICF Kaiser Engineers Massachusetts, Inc. Delaware
I. ICF Kaiser Government Programs, Inc. Delaware
I. ICF Kaiser Hanford Company Delaware
I. ICF Kaiser Holdings Unlimited, Inc. Delaware
II. Cygna Consulting Engineers and Project Management, Inc. California
II. Excell Development Construction, Inc. Delaware
III. International Systems, Inc. Colorado
II. ICF Kaiser Engineers Eastern Europe, Inc. Delaware
II. ICF Leasing Corporation, Inc. Delaware
I. ICF Resources Incorporated Delaware
II. ICF R G.P. No. 1, Inc. Delaware
II. HBG Hawaii, Inc. Delaware
II. HBG International, Inc. Delaware
I. Kaiser Engineers Pacific, Inc. Nevada
I. Monument Select Insurance Company Vermont
I. Tudor Engineering Company Delaware
</TABLE>
- Page 1 of 2 - Current as of May 15, 1995
<PAGE>
ICF KAISER INTERNATIONAL, INC.
<TABLE>
<CAPTION>
Jurisdiction
Wholly Owned Subsidiaries:(continued): of Formation:
-------------------------------------- -------------
<S> <C>
I. ICF Kaiser Engineers Group, Inc. Delaware
II. Henry J. Kaiser Company Nevada
II. ICF Florida First, Inc. Delaware
II. ICF Kaiser Engineers, Inc. Ohio
III. ICF Kaiser Engineers (California) Corporation Delaware
III. ICF Kaiser Engineers Corporation New York
III. ICF Kaiser Engineers of Michigan, Inc. Michigan
III. ICF Kaiser International Planning & Design, Inc. Pennsylvania
III. ICF Kaiser Remediation Company Delaware
III. Kaiser Engineers Australia Pty. Limited (50%) Australia
IV. Kaiser Engineers (NZ) Ltd (99%) New Zealand
III. Kaiser Engineers and Constructors, Inc. Nevada
IV. ICF Pty. Ltd. (50%) Australia
IV. Kaiser Engineers Limited (0.02%) U.K.
IV. Kaiser Engineers Australia Pty. Limited (50%) Australia
IV. Kaiser Engenharia de Portugal Limitada (50%) Portugal
IV. Kaiser Engineers (NZ) Ltd (1%) New Zealand
IV. Kaiser Engineers Pty. Ltd. (50%) Australia
IV. Kaiser Ingenieria de Chile Limitada (51%) Chile
III. Kaiser Engineers International, Inc. Nevada
IV. ICF Pty. Ltd. (50%) Australia
IV. Kaiser Engenharia de Portugal Limitada (50%) Portugal
IV. Kaiser Engineers Pty. Ltd. (50%) Australia
IV. Kaiser Ingenieria de Chile Limitada (49%) Chile
III. Kaiser Engineers Limited (99.98%) U.K.
IV. Kaiser Engineers Technical Services Limited
(75%) Cyprus
IV. Kaiser Engineers (UK) Limited (50%) U.K.
III. Kaiser Engineers (UK) Limited (50%) U.K.
IV. Kaiser Engineers Technical Services Limited
(25%) Cyprus
III. Kaiser Engenharia e Constructoes Limitada Brazil
III. KE, Inc. Philippines
III. KE, Inc. (dba in Massachusetts: Kaiser Engineers
Co.) Delaware
III. KE Services Corporation Delaware
III. La Compagnie Henry J. Kaiser Company (Canada)
Ltee. Canada
III. Overseas Constructors & Engineers, Inc. Delaware
III. PCI Operating Company, Inc. Delaware
III. Temporary Engineering Services, Inc. Delaware
II. ICF Technology Incorporated Delaware
II. International Waste Energy Systems, Inc. Delaware
II. KE Livermore, Inc. Delaware
</TABLE>
- Page 2 of 2 - Current as of May 15, 1995
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements
of ICF Kaiser International, Inc. (the Company) on Forms S-8 [Registration Nos.
33-42677 (Non-employee Directors Stock Option Plan), 33-42678 (Stock Incentive
Plan), 33-51460 (Section 401(k) Plan), and 33-51812 (Employee Stock Purchase
Plan)] and on Form S-3 [Registration No. 33-51677 (600,000 Warrants)] of our
report dated April 21, 1995, on our audits of the consolidated financial
statements and financial statement schedules of ICF Kaiser International, Inc.
as of February 28, 1995 and February 28, 1994, and for the three years ended
February 28, 1995, which report is included in the Company's Annual Report on
Form 10-K.
Coopers & Lybrand L.L.P.
Washington, D.C.
May 22, 1995
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> FEB-28-1995
<PERIOD-START> MAR-01-1994
<PERIOD-END> FEB-28-1995
<EXCHANGE-RATE> 1
<CASH> 28,233,000
<SECURITIES> 0
<RECEIVABLES> 149,724,000
<ALLOWANCES> 9,864,000
<INVENTORY> 0
<CURRENT-ASSETS> 193,743,000
<PP&E> 42,557,000
<DEPRECIATION> 29,648,000
<TOTAL-ASSETS> 281,422,000
<CURRENT-LIABILITIES> 100,878,000
<BONDS> 126,733,000<F1>
<COMMON> 210,000
19,617,000
0
<OTHER-SE> 27,414,000
<TOTAL-LIABILITY-AND-EQUITY> 281,422,000
<SALES> 0
<TOTAL-REVENUES> 861,518,000<F2>
<CGS> 0
<TOTAL-COSTS> 393,096,000<F3>
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,320,000
<INTEREST-EXPENSE> 14,799,000
<INCOME-PRETAX> 1,239,000
<INCOME-TAX> 2,900,000
<INCOME-CONTINUING> (1,661,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,661,000)
<EPS-PRIMARY> (0.18)
<EPS-DILUTED> (0.18)
<FN>
<F1>Excludes current portion of bonds, mortgages, and similar debt.
<F2>Represents gross revenue which includes costs of certain services subcontracted
to third parties and other reimbursable direct project costs, such as materials
procured by the Company on behalf of its customers.
<F3>Excludes subcontract and direct material costs of $405,819,000.
</FN>
</TABLE>
