3389 Section I Intro - Draft Solicitation .docx

Special Methods, Clauses, or Provisions The contract will contain and use the following provisions and clauses:

1. Stipends

a. PURPOSE: The purpose of authorizing a stipend in the Large Class Hopper Dredge (LCHD-ESS) procurement is to stimulate competition and innovation within the dredging and shipyard industry. Each Offeror, except the contract awardee, who meets the conditions listed below is eligible for an award of a firm fixed price stipend.

i. The Offeror competed in the LCHD-ESS solicitation evaluation process, remained in the competition with a valid offer (including a bid guarantee) that had not expired or been withdrawn at the time of contract award, and was unsuccessful in receiving the contract award.

ii. The Offeror’s proposal is otherwise rated acceptable in the source selection process. To receive consideration for a stipend, a rating of no less than “Acceptable” must be achieved for all non-price factors except past performance which must be rated other than “No Confidence”.

iii. The amount authorized for each stipend award is a firm fixed price of less than or equal to $1,500,000.

iv. Unsuccessful Offerors eligible to receive the stipend, shall be notified within 30 days of contract award to invoice for stipend.

v. Only one stipend will be provided to each Offeror regardless if the Offeror submitted more than one proposal for evaluation.

vi. Maximum stipend pool is $5 Million to allow for up to 3 potential $1,500,000 stipends. In the unlikely event more than 4 acceptable proposals are received (1 – Contract Awardee, 3 – Acceptable Proposals), each eligible Offeror shall receive an equal per capita share of the stipend pool ($5 Million).

2. Bonding

a. FAR 52.228 – 16 – Performance and Payment Bonds – Other than Construction (NOV 2006)

i. Definition as used in this clause

1. “Original Contract Price” means the award price of the contract or, for requirements contracts, the price payable for the estimated quantity; or, for indefinite-quantity contract, the price payable for the specified minimum quantity. Original contract price does not include the price of any options, except those options exercised at the time of contract award.

ii. The Contractor shall furnish a performance bond (Standard Form 1418) for the protection of the Government in an amount equal to 5 percent of the original contract price and a payment bond (Standard Form 1418) in an amount equal to 5 percent of the original contract price.

iii. The Contractor shall furnish all executed bonds, including any necessary reinsurance agreements, to the Contracting Officer, within 10 days, but in any event, before starting work.

iv. The Government may require additional performance and payment bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bonds or to obtain additional bonds.

v. The bonds shall be in the form of firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier's check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register or may be obtained from the U.S. Department of the Treasury, Financial Management Service, Surety Bond Branch, 3700 East West Highway, Room 6F01, Hyattsville, MD 20782. Or via the internet at http://www.fms.treas.gov/c570/.

b. FAR 52.228 – 1- Bid Guarantee (SEP 1996)

i. Failure to furnish a bid guarantee in the proper form and amount, by the time set for opening of bids, may be cause for rejection of the bid.

ii. The bidder shall furnish a bid guarantee in the form of a firm commitment, e.g. bid bond supported by good and sufficient surety or sureties acceptable to the Government, postal money order, certified check, cashier’s check, irrevocable letter of credit, or, under Treasury Department regulations, certain bonds or noted of the United States. The Contracting Officer will return bid guarantees, other than bid bonds, (1) to unsuccessful bidders as soon as practicable after the opening of bids; and (2) to the successful bidder upon execution of contractual documents and bonds (including necessary coinsurance or reinsurance agreements), as required by the bid as accepted.

iii. The amount of the bid guarantee shall be 20 percent of the bid price or $4,000,000, whichever is less

iv. If the successful bidder, upon acceptance of its bid by the Government within the period specified for acceptance, fails to execute all contractual documents or furnish executed bond(s) within 10 days after receipt of the forms by the bidder, the Contracting Officer may terminate the contract for default.

v. In the event the contract is terminated for default, the bidder is liable for any cost of acquiring the work that excessed the amount of its bid, and the bid guarantee is available to offset the difference.

3. Economic Price Adjustment

a. The Economic Price Adjustment (EPA) clause “Adjustments based on cost indexes of labor or material,” per FAR 16.203 – 4(d) and agency procedures, will be used in this acquisition to fairly allocate risk in a fixed price contract, noting the extreme fluctuation in supplier cost in real times, and the inability for a contractor to lock in cost on a long duration project. The EPA clause to be used within this procurement will promote competition, mitigate risk associated with unknown conditions at time of offer, address contract impacts, and reduce risk-related proposal price escalations.

4. FAR 52.246 – 18 – Warranty of Supplies of a Complex Nature (MAY 2001)

a. Definitions

i. Acceptance means the act of an authorized representative of the Government by which the Government assumes for itself, or as an agent of another, ownership of existing and identified supplies, or approves specific services rendered, as partial or complete performance of the contract.

ii. Supplies means the end items furnished by the Contractor and related services required under this contract. The word does not include "data."

b. Contractor’s obligations.

i. The Contractor warrants that for 365 calendar days from final acceptance of the vessel all supplies furnished under this contract will be free from defects in material and workmanship and will conform with all requirements of this contract; provided, however, that with respect to Government-furnished property, the Contractor’s warranty shall extend only to its proper installation, unless the Contractor performs some modification or other work on the property, in which case the Contractor’s warranty shall extend to the modification or other work.

ii. Any supplies or parts thereof connected or furnished in replacement shall be subject to the conditions of this clause to the same extent of supplies initially delivered. This warranty shall be equal in duration to that set forth in paragraph (b)(1) of this clause and shall run from the date of delivery of the corrected or replaced supplies.

iii. The Contractor shall not be obligated to correct or replace supplies if the facilities, tooling, drawings, or other equipment or supplies necessary to accomplish the correction or replacement have been made unavailable to the Contractor by action of the Government. In the vent that correction or replacement has been directed, the Contractor shall promptly notify the Contracting Officer, in writing, of the nonavailability.

iv. The Contractor shall also prepare and furnish to the Government data and reports applicable to any correction required (including revision and updating of all affected data called for under this contract) at no increase in the contract price.

v. When supplies are returned to the Contractor, the Contractor shall bear the transportation costs from the place of delivery specified in the contract (irrespective of the f.o.b. point or the point of acceptance) to the Contractor’s plant and return.

vi. All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained in this contract.

c. Remedies available to the Government

i. In the event of a breach of the Contractor’s warranty in paragraph (b)(1) of this clause, the Government may, at no increase in contract price.

1. Require the Contractor, at the place of delivery specified in the contract (irrespective of the f.o.b. point or the point of acceptance) or at the Contractor’s plant, to repair or replace, at the Contractor’s election, defective or nonconforming supplies; or

2. Require the Contractor to furnish at the Contractor’s plant the materials or parts and installation instructions required to successfully accomplish the correction.

ii. If the Contracting Officer does not require correction or replacement of defective or nonconforming supplies or the Contractor is not obligated to correct or replace under paragraph (b)(3) of this clause, the Government shall be entitled to an equitable reduction in the contract price.

iii. The Contracting Officer shall notify the Contractor in writing of any breach of the warranty in paragraph (b) of this clause within 45 days after discovery of the defect. The Contractor shall submit to the Contracting Officer a written recommendation within 10 days as to the corrective action required to remedy the breach. After the notice of breach, but not later than 30 days after receipt of the Contractor’s recommendation for corrective action, the Contracting Officer may, in writing, direct correction or replacement as in paragraph (c)(1) of this clause, and the Contractor shall, notwithstanding any disagreement regarding the existence of a breach of warranty, comply with this direction. If it is later determined that the Contractor did not breach the warranty in paragraph (b)(1) of this clause, the contract price will be equitably adjusted.

iv. If supplies are corrected or replaced, the period for notification of a breach of the Contractor’s warranty in paragraph (c)(3) of this clause shall be 45 days from the furnishing or return by the Contractor to the Government of the corrected or replaced supplies or parts thereof, or, if correction or replacement is effected by the Contractor at a Government or other activity, for 45 days thereafter.

v. The rights and remedies of the Government provided in this clause are in addition to and do not limit any rights afforded to the Government by any other clause of the contract.

5. Progress Payments & Payable Event Schedule

a. The use of progress payments and payable events is described in Section H21. Payable events will be used to determine progress payments to ensure the Contractor can remain in a “cash neutral” state.

6. Liquidated Damages

a. The use of liquidated damages is described in Section F04.

7. FAR 52.225 – 2 Buy American Certificate (OCT 2022)

a. This FAR clause will be used throughout this procurement.