B08_Attachment_7_140P8423R0009_Q-A_Amendment_Notes_0002.pdf

LAVA BEDS

NATIONAL MONUMENT

GRID TIED PV SYSTEM

LABE

PMIS NO. 173890 & 173891

TIC No.

147/177692

AMENDMENT NO. 0002

NATIONAL PARK SERVICE

PACIFIC WEST REGION

Solicitation No. 140P8423R0009, Additional Q&A and Amendment 0002 Notes

ADDITIONAL PROJECT QUESTIONS RECEIVED VIA EMAIL:

8. Question: There appears to be a disconnect between the government requirements as established by the drawings (B08 Attachment_2) and the specifications (B08 Attachment_1) of the solicitation and the contract clause requirement of 52.225-9 Buy American.

Within the Attachment 2 drawings and within the Attachment 1 specifications, the government is requesting the use of a REC brand solar module identified as REC Alpha Series REC380AA.

This product is produced entirely in Singapore and imported to the US (also it is now obsolete). Has the government already issued an exception to the BA clause to allow use of a Singapore produced product for this project. Or is it that the BA requirement of Clause 52.225-9 invalidates the use of the government preferred product?

Answer: Regarding the comment about the product being “obsolete” you are probably correct in the sense that the referenced panels are an older model. These plans were prepared over a year ago, and things change quickly. However, the REC panels listed in the plans are not the required panels per se; the models listed are shown as the “basis of design.” This means the designer indicated the stated panels would function in this application, but there are likely many more available alternative panels that would function as intended and meet the specifications.

Construction material that meets the requirements of the Buy American clause would need to be considered a domestic construction material, which in this sense means they are “manufactured in the United States, and either (1) the cost of the components mined, produced, or manufactured in the United States exceeds 60% of the cost of all components, or (2) the end product is a commercially available off-the-shelf (COTS) item.”

If the available panels you intend to utilize do not meet this definition of domestic construction materials, then refer to the instructions in FAR 52.225-10 (Notice of Buy American Requirement – Construction Materials) regarding requests for determinations of inapplicability, which states, “An offeror requesting a determination regarding the inapplicability of the Buy American statute should submit the request to the Contracting Officer in time to allow a determination before submission of offers.

The offeror shall include the information and applicable supporting data required by paragraphs (c) and (d) of the clause at FAR 52.225-9 in the request. If an offeror has not requested a determination regarding the inapplicability of the Buy American statute before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer.”

AMENDMENT ITEMS:

The bidder shall make the following changes, modifications and additions to the pertinent sheets, pages and paragraphs of the specifications and drawings, and shall take the same into consideration in the bid prices:

1. This Amendment 0002 incorporates a recent wage modification to General Decision Number CA20230007 published on June 2, 2023. As such, the list of solicitation attachments has been updated as follows:

B08_Attachment_3_140P8423R0009_Wage_Determination.pdf is replaced with B08_Attachment_3_140P8423R0009_Wage_Determination_rev02Jun2023.pdf (attached).

2. Add the following documents to Section J, List of Attachments:

B08_Attachment_3_140P8423R0009_Wage_Determination_rev02Jun2023.pdf (Date: 6/2/2023, No. of Pages: 45)

3. Update Section L of the Solicitation to remove references to the contractor state license being evaluated as part of the responsibility determination.

SECTION L IS UPDATED TO READ AS FOLLOWS:

RESPONSIBILITY DETERMINATION

1. It is the general policy of the Department of the Interior that contract shall be awarded only to contractors determined to be responsible in accordance with Part 9 of the Federal Acquisition Regulations (FAR). No contract shall be awarded to any person or firm unless the Contracting Officer first makes an affirmative determination that the prospective contractor is responsible within the meaning of FAR Part 9.

2. Before making a determination of responsibility, the Contracting Officer shall have in their possession or obtain information sufficient to satisfy themselves that a prospective contractor currently meets the minimum FAR Part 9 standards.

3. In accordance with Section 9.104 of the Federal Acquisition Regulations, award of a contract will be subject to the Contracting Officer's determination that the offeror meets the following minimum standards for performing the work:

Has adequate financial resources;

Is able to meet the required delivery or performance dates;

Has a satisfactory performance record;

Has the organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them;

Has a satisfactory record of integrity and business ethics;

Has the necessary production and technical equipment and facilities or the ability to obtain them;

Is otherwise qualified and eligible to receive an award under applicable laws and regulations.

4. Update Sections L and M of the Solicitation to add the contractor state license as an evaluation factor.

SECTION L (INSTRUCTIONS FOR THE SUBMISSION OF OFFERS AND OTHER

INFORMATION – COMPETITIVE SOURCE SELECTION), PART E, IS UPDATED TO

REQUEST THE FOLLOWING INFORMATION:

FACTOR 3 – CALIFORNIA CONTRACTOR STATE LICENSE

Submit a copy of the current California Contractor State License classification such as C-10 (Electrical Contractor), C-46 (Solar Contractor), “A” (General Engineering Contractor), or other classification that is applicable to the work the Offeror, and any proposed subcontractor(s), will be performing on this project (describe in detail in your proposal). There is no preprinted form for this submittal.

SECTION M (EVALUATION FACTORS FOR AWARD), PART (C) (2), IS UPDATED TO

INCLUDE THE FOLOWING ADDITIONAL EVALUATION FACTOR:

FACTOR 3 – CALIFORNIA CONTRACTOR LICENSE: The presence and current validity of the Offeror’s and any proposed subcontractor’s applicable California Contractor State License will be reviewed at the website:

https://www.cslb.ca.gov/onlineservices/checklicenseII/checklicense.aspx. Offerors (and any proposed subcontractors) who possess a current and valid State License applicable to the work they will be performing on this project will be more favorably rated.

5. Section I is updated as follows:

Add new clause FAR 52.204–27, Prohibition on a ByteDance Covered Application (JUN 2023) – this clause is incorporated by reference; full text of clause is available at https://www.acquisition.gov/browse/index/far

Update FAR 52.244-6, Subcontracts for Commercial Items and Commercial Services (JUN 2023) – this clause is incorporated by reference; full text of clause is available at https://www.acquisition.gov/browse/index/far

Update FAR 52.225-9, Buy American—Construction Materials (OCT 2022) – full text of updated clause is provided below.

52.225-9 BUY AMERICAN—CONSTRUCTION MATERIALS (OCT 2022)

(a) Definitions. As used in this clause—

Commercially available off-the-shelf (COTS) item—

(1) Means any item of supply (including construction material) that is–

(i) A commercial product (as defined in paragraph (1) of the definition of “commercial product” at Federal Acquisition Regulation (FAR) 2.101);

(ii) Sold in substantial quantities in the commercial marketplace; and

(iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and

(2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), such as agricultural products and petroleum products.

"Construction material" means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

Cost of components means—

(1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the construction material (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or

(2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the construction material.

Critical component means a component that is mined, produced, or manufactured in the United States and deemed critical to the U.S. supply chain. The list of critical components is at FAR 25.105.

Critical item means a domestic construction material or domestic end product that is deemed critical to U.S.

supply chain resiliency. The list of critical items is at FAR 25.105.

Domestic construction material means—

(1) For construction material that does not consist wholly or predominantly of iron or steel or a combination of both-

(i) An unmanufactured construction material mined or produced in the United States; or

(ii) A construction material manufactured in the United States, if–

(A)The cost of its components mined, produced, or manufactured in the United States exceeds 60 percent of the cost of all its components, except that the percentage will be 65 percent for items delivered in calendar years 2024 through 2028 and 75 percent for items delivered starting in calendar year 2029. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic. Components of unknown origin are treated as foreign; or

(B) The construction material is a COTS item; or

(2) For construction material that consists wholly or predominantly of iron or steel or a combination of both, a construction material manufactured in the United States if the cost of foreign iron and steel constitutes less than 5 percent of the cost of all components used in such construction material. The cost of foreign iron and steel includes but is not limited to the cost of foreign iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the construction material and a good faith estimate of the cost of all foreign iron or steel components excluding COTS fasteners. Iron or steel components of unknown origin are treated as foreign. If the construction material contains multiple components, the cost of all the materials used in such construction material is calculated in accordance with the definition of "cost of components".

Fastener means a hardware device that mechanically joins or affixes two or more objects together.

Examples of fasteners are nuts, bolts, pins, rivets, nails, clips, and screws.

Foreign construction material means a construction material other than a domestic construction material.

Foreign iron and steel means iron or steel products not produced in the United States. Produced in the United States means that all manufacturing processes of the iron or steel must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving refinement of steel additives. The origin of the elements of the iron or steel is not relevant to the determination of whether it is domestic or foreign.

Predominantly of iron or steel or a combination of both means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components excluding COTS fasteners.

Steel means an alloy that includes at least 50 percent iron, between 0.02 and 2 percent carbon, and may include other elements.

"United States" means the 50 States, the District of Columbia, and outlying areas.

(b) Domestic preference.

(1) This clause implements 41 U.S.C.chapter 83, Buy American, by providing a preference for domestic construction material. In accordance with 41 U.S.C. 1907, the domestic content test of the Buy American statute is waived for construction material that is a COTS item, except that for construction material that consists wholly or predominantly of iron or steel or a combination of both, the domestic content test is applied only to the iron and steel content of the construction materials, excluding COTS fasteners. (See FAR 12.505(a)(2)). The Contractor shall use only domestic construction material in performing this contract, except as provided in paragraphs (b)(2) and (b)(3) of this clause.

(2) This requirement does not apply to information technology that is a commercial product or to the construction materials or components listed by the Government as follows:

“none”

(3) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(2) of this clause if the Government determines that-

(i)The cost of domestic construction material would be unreasonable.

(A) For domestic construction material that is not a critical item or does not contain critical components.

(1)The cost of a particular domestic construction material subject to the requirements of the Buy American statute is unreasonable when the cost of such material exceeds the cost of foreign material by more than 20 percent;

(2)For construction material that is not a COTS item and does not consist wholly or predominantly of iron or steel or a combination of both, if the cost of a particular domestic construction material is determined to be unreasonable or there is no domestic offer received, and the low offer is for foreign construction material that is manufactured in the United States and does not exceed 55 percent domestic content, the Contracting Officer will treat the lowest offer of foreign construction material that exceeds 55 percent domestic content as a domestic offer and determine whether the cost of that offer is unreasonable by applying the evaluation factor listed in paragraph (b)(3)(i)(A)(1) of this clause.

(3)The procedures in paragraph (b)(3)(i)(A)(2) of this clause will no longer apply as of January 1, 2030.

(B) For domestic construction material that is a critical item or contains critical components.

(1)The cost of a particular domestic construction material that is a critical item or contains critical components, subject to the requirements of the Buy American statute, is unreasonable when the cost of such material exceeds the cost of foreign material by more than 20 percent plus the additional preference factor identified for the critical item or construction material containing critical components listed at

FAR 25.105.

(2)For construction material that does not consist wholly or predominantly of iron or steel or a combination of both, if the cost of a particular domestic construction material is determined to be unreasonable or there is no domestic offer received, and the low offer is for foreign construction material that does not exceed 55 percent domestic content, the Contracting Officer will treat the lowest foreign offer of construction material that is manufactured in the United States and exceeds 55 percent domestic content as a domestic offer, and determine whether the cost of that offer is unreasonable by applying the evaluation factor listed in paragraph (b)(3)(i)(B)(1) of this clause.

(3)The procedures in paragraph (b)(3)(i)(B)(2) of this clause will no longer apply as of January 1, 2030.

(ii) The application of the restriction of the Buy American statute to a particular construction material would be impracticable or inconsistent with the public interest; or

(iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(c) Request for determination of inapplicability of the Buy American statute.

(1)

(i) Any Contractor request to use foreign construction material in accordance with paragraph (b)(3) of this clause shall include adequate information for Government evaluation of the request, including-

(A) A description of the foreign and domestic construction materials;

(B) Unit of measure;

(C) Quantity;

(D) Price;

(E) Time of delivery or availability;

(F) Location of the construction project;

(G) Name and address of the proposed supplier; and

(H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause.

(ii) A request based on unreasonable cost shall include a reasonable survey of the market and a completed price comparison table in the format in paragraph (d) of this clause.

(iii) The price of construction material shall include all delivery costs to the construction site and any applicable duty (whether or not a duty-free certificate may be issued).

(iv) Any Contractor request for a determination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such determination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination.

(2) If the Government determines after contract award that an exception to the Buy American statute applies and the Contracting Officer and the Contractor negotiate adequate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the unreasonable price of a domestic construction material, adequate consideration is not less than the differential established in paragraph (b)(3)(i) of this clause.

(3) Unless the Government determines that an exception to the Buy American statute applies, use of foreign construction material is noncompliant with the Buy American statute.

(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall include the following information and any applicable supporting data based on the survey of suppliers:

Foreign and Domestic Construction Materials Price Comparison

Construction material description Unit of measure Quantity Price (dollars) *

Item 1

Foreign construction material

Domestic construction material

Item 2

Foreign construction material

Domestic construction material

[*Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued).]

[List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary.]

[Include other applicable supporting information.]

(End of clause)