CONTRACTING PROVISIONS. 6.1 The U.S. DoD will be primarily responsible for Contracting for this Project in accordance with U.S. Contracting laws, regulations and procedures. However, the JSF PEO may request that a Participant other than the U.S. DoD issue Contracts for the Project in accordance with that Participant’s national Contracting laws, regulations, and procedures. The JSF PEO will ensure that Contracts issued on behalf of the Participants are in accordance with this MOU. The Contracting Officer for each Contract is the exclusive source for providing contractual direction and instructions to Contractors, and is responsible for ensuring that such directions and instructions are in accordance with the terms and conditions of the Contract. The Contracting Officer will, when it facilitates satisfying the objectives of this MOU, seek waivers of national procurement regulations, procedures, and practices. 6.2 Contracting for the Project will include Contracting for the common, Partially Common, and unique requirements of the Participants for their JSF Air Systems. Each Participant will delineate its national requirements for production, sustainment, and follow-on development of its JSF Air Systems in individual PPRs. To initiate the procurement of JSF Air System articles and services, the Participants will submit PPRs to the JSF Program Office in accordance with procedures proposed by the PEO and approved by the JESB, which will include the timing, format, and acceptance procedures for such requests. PPRs for propulsion systems will be submitted separately from PPRs for other JSF Air System articles and services. The following principles will apply to PPRs: 6.2.1 PPRs may contain technical requirements, statements of work, and Contract terms and conditions that are unique to a Participant. Unique terms and conditions will be consistent with the Contracting Agency’s national laws and (unless a waiver is obtained) regulations. Unique terms and condition requests may include designation of Contractors or subcontractors in order to satisfy the requirements of the Participant submitting the PPR. The costs of a Participant’s unique technical requirements and statements of work (to include associated proposal preparation costs) or a Participant’s unique Contract terms and conditions will be funded by that Participant. 6.2.2 The Participants may designate the F135, the F136, or both in their PPRs in such quantities and in accordance with such delivery schedules as they require. 6.2.2.1 If a Participant makes such a designation in its PPR, that Participant’s personnel may not thereafter participate in the procurement activities described in paragraphs 6.3, 6.6, and 6.7 of this Section as to a Contract competition between the Contractors of the F135 and the F136 pertinent to that PPR. However, the Participant’s personnel may review the model Contract included in the Request for Proposals (RFP) released to the Contractors for that competition in order to verify that the Contract will reflect the Participant’s requirements as specified in its applicable PPR. 6.2.2.2 If a Participant does not designate the F135 or the F136 for Contracts that will be competed, or if Contracts containing the F135 or the F136 requirements of a Participant are not competitively awarded, that Participant’s personnel may participate in post-PPR submission procurement activities for such Contracts in accordance with paragraphs 6.3, 6.6, and 6.7 of this Section. 6.2.3 A Participant's PBA will document JSF Air System performance based metrics, support relationships (i.e., roles and responsibilities of the JSF Program Office and Participants), and conditions for delivering sustainment articles and services applicable to unique, common, and Partially Common requirements. A Participant's PPR for sustainment articles and services will be consistent with the requirements of that Participant's PBA. Additional Participant sustainment requirements, such as spares contingency support packages and the establishment of training centers, will be delineated as separate requirements within the PPR. 6.2.4 In order to achieve economy of scale efficiencies and to ensure that capacity and capability exists to meet the Participants’ joint requirements, the JSF Program Office will combine all the requirements reflected in the PPRs into CPRs to the extent feasible. 6.2.5 If, at the time of PPR consolidation, the JSF Program Office determines that all of the PPR requirements of the Participants cannot be met, then priority among the Participants for JSF Air System procurement requirements will be determined by their contribution shares to the JSF SDD Framework MOU, unless otherwise decided by the JESB. In all cases the Participants’ JSF Air System procurement requirements will have priority over procurement requirements of Third Parties. 6.2.6 The requirements and terms and conditions contained in the JESB-approved CPRs (or, in the event a CPR is not generated, the PPRs mutually determined by the Contracting Agency and the applicable Participant to be acceptable) will be the subject of the solicitation package issued to Contractors in an RFP. 6.3 The personnel of the Participants on whose behalf a Contract will be awarded or modified may participate in the procurement planning process leading to the RFP. This process may include planning procurement actions involving requirement definitions (including development of statements of work and specifications), acceptance procedures, tentative schedule, establishment of milestones, procurement strategies, and Contract development (including terms and conditions). 6.4 The Contracting Officer will endeavor to establish Contract sustainment terms and conditions that provide incentives for the Contractor to meet the threshold sustainment requirements of all Participants rather than the threshold sustainment requirements of an individual Participant. 6.5 The Contracting Officer will use best efforts to negotiate for the procurement of requirements contained in the RFP. A Participant will be consulted in the event that the Contracting Officer is unable to obtain that Participant’s requirements as delineated in the RFP. In such event, a Participant may have its requirements deleted from the proposed RFP or may request modification of its requirements as stated in the RFP. The modified or deleted requirements will be documented in a revision to the Participant’s PPR, and the Contracting Officer will use best efforts to negotiate the inclusion of the modified requirements. 6.6 The personnel of the Participants on whose behalf a Contract will be awarded or modified will be permitted to participate in proposal evaluations. They also will be permitted to participate in Contract negotiations at the discretion of the Contracting Officer or Contracting Agency, depending upon the national laws and regulations governing the Contracting Agency. To facilitate review of a proposal for a requirement of a Participant, the Participant on whose behalf a Contract will be awarded or modified will be permitted to request cost and pricing data. The Participant will receive such cost and pricing data, unless it is proprietary to a Contractor or subcontractor. If requested, the Contracting Officer will use best efforts to obtain the written consent of that Contractor or subcontractor to provide such proprietary data to the Participant. 6.7 Prior to Contract award, the personnel of the Participants on whose behalf a Contract will be awarded will be permitted to review the proposed Contract. Such personnel will be permitted to also review proposed modifications to the Contract. The Contracting Participant will not award such a Contract or award such a modification without the prior approval of the benefiting Participant to the amount that may become payable by that Participant under the Contract or modified Contract. The benefiting Participant will have ten of the benefiting Participant’s working days after that Participant’s receipt of the proposed Contract or proposed modification to give its approval, and if such approval has not been received within the designated period, the benefiting Participant may, at the discretion of the Contracting Participant, be considered to have withdrawn its requirements from the Contract or modification. 6.8 Contracting Officers will insert into prospective Contracts (and require its Contractors to insert in subcontracts) provisions to satisfy the requirements of this MOU, including Section VII (Industrial Participation), Section IX (Disclosure and Use of Project Information), Section X (Controlled Unclassified Information), Section XII (Security), Section XIII (Third Party Sales and Transfers), and Section XIX (Amendment, Withdrawal, Termination, Entry into Effect, and Duration), including the export control provisions in accordance with this MOU, in particular paragraphs 6.10 and 6.11 of this Section. During the Contracting process, Contracting Officers will advise Prospective Contractors of their responsibility to immediately notify the Contracting Agency, before Contract award, if they are subject to any license or agreement that will restrict their freedom to disclose Information or permit its use. Contracting Officers will also advise Prospective Contractors to employ their best efforts not to enter into any new agreement or arrangement that will result in restrictions. 6.9 Contracting Officers will negotiate to obtain the rights to use and disclose Project Information required by Section IX (Disclosure and Use of Project Information). In the event the Contracting Officer is unable to secure adequate rights to use and disclose Project Information as required by Section IX (Disclosure and Use of Project Information), or is notified by Contractors or Prospective Contractors of any restrictions on the disclosure and use of Information, the matter will be referred to the JESB for resolution. 6.10 Each Participant will legally bind its Contractors to a requirement that the Contractor will not retransfer or otherwise use export-controlled Information furnished by another Participant for any purpose other than the purposes authorized under this MOU. The Contractor will also be legally bound not to retransfer the export-controlled Information to another Contractor or subcontractor unless that Contractor or subcontractor has been legally bound to limit use of the Information to the purposes authorized under this MOU. Export- controlled Information furnished by one Participant under this MOU may only be retransferred by another Participant to its Contractors if the legal arrangements required by this paragraph have been established. 6.11 Each Participant will legally bind its Prospective Contractors to a requirement that the Prospective Contractor will not retransfer or otherwise use export-controlled Information furnished by another Participant for any purpose other than responding to a solicitation issued in furtherance of the purposes authorized under this MOU. Prospective Contractors will not be authorized use for any other purpose if they are not awarded a Contract. The Prospective Contractors will also be legally bound not to retransfer the export-controlled Information to a prospective subcontractor unless that prospective subcontractor has been legally bound to limit use of the export-controlled Information for the purpose of responding to the solicitation. Export-controlled Information furnished by one Participant under this MOU may only be retransferred by another Participant to its Prospective Contractors if the legal arrangements required by this paragraph have been established. Upon request by the furnishing Participant, the receiving Participant will identify its Prospective Contractors and prospective subcontractors receiving such export-controlled Information. 6.12 The Contracting Agency will, upon request from a Participant on whose behalf a Contract has been awarded, terminate the portion of the Contract relating to the requirements of that Participant. The Participant requesting such termination will be responsible for all Contract costs for such termination that would not have been incurred but for its request to terminate. 6.13 The personnel of the Participants on whose behalf a Contract has been awarded may participate in Contract administration as determined in writing by the Contracting Officer. In addition, such personnel may participate in acceptance procedures for major articles acquired on their behalf, subject to national disclosure policies. Designation of major articles will be made during the procurement planning process in accordance with paragraph 6.3. 6.14 During Contract administration, the JSF PEO will ensure that he is immediately advised of any cost growth, schedule change, or performance problems (including problems identified by a Participant) of any Contractor, as well as the intended measures for managing and resolving such issues, including any contemplated Contract terminations, in the best interest of all affected Participants. The JSF PEO will keep the National Deputies advised of the foregoing Information and will advise the JESB of all major issues (including proposed Contract terminations). The Contracting Officer will act in the best interests of all affected Participants in Contract administration decisions. 6.15 Participants on whose behalf a Contract has been awarded may provide written award or incentive fee recommendations to the award fee board, in accordance with the applicable Contracting Agency’s award or incentive fee process and procedures, regarding the level of Contractor achievement related to their articles and services that have been placed on Contract on an incentive or award fee basis. Representatives of the Participants may be members of an award fee board when the award fee under discussion only addresses the unique requirements of the applicable Participants. Participants may observe award or incentive fee deliberations for Contracts that relate to their common or Partially Common requirements. 6.16 When contracting on behalf of the other Participants, a Contracting Participant will protect the interests of the other Participants. The Contracting Participant will investigate, in a timely manner, concerns that a Contractor is not meeting contractual requirements, and, upon verification of the validity of such concerns, will pursue contractual remedies and utilize Contract disputes processes to the same extent as that Contracting Participant would in protecting its own interests. The Contracting Participant will keep the affected Participants informed during this process and will take their views into full consideration.
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Sources: Memorandum of Understanding, Memorandum of Understanding