FY24 NGAP Solicitation 47PA0724R0003 FINAL.pdf

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RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

NGAP - FY24 FY24 COMPETITIVE NATURAL GAS SUPPLY

INTERNAL

TABLE OF CONTENTS

SECTION A: SCOPE OF WORK 2

A.1 GENERAL 2

A.2 DELIVERY POINT 2

A.3 NOMINATING AND BALANCING RESPONSIBILITIES 2

A.4 CREDIT FOR DEFAULT SUPPLY SERVICE 3

A.5 RISK OF LOSS 3

A.6 PROTECTION OF CONTRACT INFORMATION 3

A.7 PAYMENT AND BILLING 3

A.8 TERM 4

A.9 REQUESTS FOR EXTENSION 4

A.10 QUALITY AND MEASUREMENT 5

A.11 ADDING AND DELETING ACCOUNTS TO THIS CONTRACT 5

A.12 LINE LOSSES 5

A.13 SERVICE INTERRUPTION 5

A.14 LOAD CHANGES DURING THE TERM OF THE CONTRACT 6

A.15 NATURAL GAS REGULATORY CHANGES 6

A.16 CONTRACT ADMINISTRATION 7

A.17 AUCTION PROCESS FOR PRICING USING ENEL X 7

A.18 ENEL X FEE 7

A.19 DAMAGES FOR MISSING CONTRACT START DATE 7

A.20 MATERIAL CHANGE 8

A.21 PRICING PRODUCT DESCRIPTIONS 8

SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES 11

SECTION C: SUBMISSION REQUIREMENTS 36

C.1 EVIDENCE OF TECHNICAL ACCEPTABILITY 36

C.2 PRICE PROPOSAL 37

C.3 SUBMISSION OF PROPOSALS 38

SECTION D: EVALUATION FACTORS FOR AWARD 40

D.1 EVALUATION 40

D.2 BASIS FOR AWARD 40

SECTION E: REPRESENTATIONS AND CERTIFICATION 41

TECHNICAL PROPOSAL CHECKLIST 60

ATTACHMENT 1: CONTRACTOR INFORMATION 61

ATTACHMENT 2: PRICE COMPONENT CONFIRMATION TABLE 62

ATTACHMENT 3: OFFEROR LDC BIDDER CONFIRMATION 63

ATTACHMENT 4: SAMPLE FEDERAL CONTRACTOR VETERANS’ EMPLOYMENT REPORT VETS-4212 FORM 64

ATTACHMENT 5: SUBCONTRACTING PLANS 70

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

NOTE: ALL QUESTIONS MUST BE SUBMITTED IN WRITING TO ebony.atkinson@gsa.gov, nilka.diaz@gsa.gov and david.hague@gsa.gov.

SECTION A: SCOPE OF WORK

A.1 GENERAL

The U.S. General Services Administration’s (GSA) Clean Energy Division is issuing this solicitation for the supply of natural gas for accounts located behind various utility service territories. The accounts and their respective usage are expressed in the Exhibit 1 file. The Contractor shall supply the full natural gas requirements of the accounts for a term of up to sixty (60) full monthly billing cycles. Multiple awards are contemplated for this solicitation. Each contract will be administered by the contracting officers, and account managers of GSA’s Natural Gas Acquisition

Program (NGAP). The contracting officer responsible for contract administration will be identified in each contract awarded as a result of the solicitation.

GSA desires to secure the lowest price, technically acceptable solution for natural gas supply and gas transportation to the accounts utilizing the most direct pipeline into the included utility service territories (hereafter referred to as the LDCs). NGAP utilizes a transaction platform provided by Enel X to collect pricing through an internet based reverse auction. The Government has organized its requirements for this solicitation in an Exhibit 1 excel spreadsheet. The service start date for all accounts shall begin with the first utility meter read date as specified by the applicable utility for the start month specified in the Exhibit 1 file. The monthly volumes provided in the Exhibit

1 file for each account are burnertip volumes and will be the contract volumes for any awarded contract(s). GSA will only be providing monthly data in the Exhibit 1 file and will not be providing daily or hourly volumes for any of the included accounts.

The terms and conditions of this agreement will govern both firm and interruptible (IT) accounts, as specified by the LDC rate class designations listed in the Exhibit 1 file.

Multiple awards are contemplated for this solicitation. Contractor(s) selected will be responsible for the following duties:

a) Supply of firm or interruptible natural gas supply for delivery to facility accounts including LDC, interstate and intrastate pipeline losses;

b) Manage, nominate and schedule transportation service to the LDC citygate and manage the gas to the burnertip for each account;

c) Communicate directly with the LDC to balance scheduled and actual receipt and delivery of each account’s gas pursuant to the LDC’s Transportation Service Agreement and this contract;

d) Coordinate its actions with the LDC and the GSA point of contact; and

e) Perform all other incidentals necessary to execute the duties set forth in subsections (a), (b), (c) and (d) above.

A.2 DELIVERY POINT

The “Natural Gas Delivery Point”, as specified in Exhibit 1, for such natural gas shall be that point on the distribution system at which the LDC takes possession and ownership of the natural gas supply (citygate) for final delivery to each account’s meter (i.e., burnertip).

A.3 NOMINATING AND BALANCING RESPONSIBILITIES

It is the Contractor’s responsibility to conduct all required nominations on behalf of the accounts specified herein.

The Contractor shall be fully familiar with the LDC and pipeline tariff provisions including operational and billing requirements such as imbalance policies, interstate/intrastate transmission losses of the LDC and other interstate/intrastate transmission companies. The Contractor shall include any costs or penalties associated with mailto:ebony.atkinson@gsa.gov mailto:nilka.diaz@gsa.gov mailto:david.hague@gsa.gov

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

activities upstream of the Delivery Point in its price (e.g., charges for balancing, nominating, storage, pooling costs, upstream and capacity requirements, billing charges).

The Government will not be responsible for any penalties or other costs caused by the Contractor. Any utility assets including natural gas banks assigned to and paid for by the account(s) included in this contract for transport or supply will be used solely for the transport of natural gas purchased for the account(s) included in this contract.

A.4 CREDIT FOR DEFAULT SUPPLY SERVICE

If at any time, unless as a result of an Excusable Delay (see FAR 52.212-4(f)), an account covered by this contract is forced to accept default supply service from the LDC serving in its capacity as the utility supplier of last resort as a result of action/inaction by the Contractor, the Contractor shall be responsible for payment of additional costs, if any, incurred.

A.5 RISK OF LOSS

Risk of loss of natural gas supplied under this contract shall remain with the Contractor prior to the Delivery Point and shall pass to the Government at and after the Delivery Point.

A.6 PROTECTION OF CONTRACT INFORMATION

The Government will take the necessary and usual steps to maintain the confidentiality of information submitted by offerors. The Contractor is advised that the Government will make all contract prices publicly available for the full contract period.

A.7 PAYMENT AND BILLING

The Contractor expressly agrees and acknowledges that each Government facility to which supplies and services are provided pursuant to this contract will be separately responsible for and liable to pay for any such supplies or services. For the avoidance of doubt, GSA will be the responsible party for purposes of making payments for the accounts only where GSA is listed as the Agency in the Exhibit 1 file.

The Contractor will submit a monthly invoice to each Government facility for supplies and services rendered the previous month in accordance with the applicable LDC’s dual billing procedures. The Contractor shall base all invoicing on metered quantities at the customer meter and all bills must be in dth or mmbtu volumes. Pricing shall be to the burnertip for each account and Contractor billed volumes must match burnertip volumes at the meter.

However, if actual usage is not available, the Contractor shall use the projected usage from Exhibit 1 and shall adjust all Exhibit 1 usage values to actual metered consumption levels no later than one (1) month after actual usage volumes are provided by the LDC. Contractors will be required to include any price components on the invoice other than the awarded price as itemized line items. The Contractor must establish a unique supplier account number for each end-use Government account and provide the corresponding LDU account number on each monthly bill.

Contractors are also required to include the LDC name, full service address and LDC account number on each invoice rendered. Additionally, any past due or outstanding balances must be included on monthly invoices and any associated late payment or finance charges must be clearly identified. The Contractor also expressly agrees and acknowledges they will be required to submit invoices in accordance with each end use agency’s billing requirements and systems which can include requirements for invoices to be submitted through online systems.

In addition to tendering original invoices to the authorized facility agency payment or finance office, it is also the

Contractor's responsibility to ensure an electronic copy of each monthly billing invoice for each account is sent to gsa-ngap@gsa.gov within seven days of the original invoices being sent to the authorized agency payment or finance office. The invoices must not be password protected. It is the Contractor’s responsibility to submit an electronic copy to the email address listed above, and not the Government’s responsibility to pull invoices from the

Contractor’s billing system or to use that system to direct invoices to the email address listed above.

mailto:gsa-ngap@gsa.gov

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

For utilities that utilize gas cash out methodologies in relation to gas marketer supply pools, GSA requires that

Contractors minimize the impact to end-use Federal accounts to the extent possible. Any volumes billed to end-use

Federal accounts that are a result of utility gas pool cash outs must be clearly identified on the Contractor’s bills.

These volumes and associated costs must be itemized and supported by appropriate documentation from the utility confirming the total dollar amount resulting from the utility required cash out.

If the Contractor is unable to allocate gas volumes that remain in their pool at the end of the contract term to other customers, the responsible Government agency or agencies for the account or accounts, as specified in Exhibit 1, will be responsible for paying for any gas volumes that remain in the supplier’s pool at the end of the contract term.

Any costs owed by the Government associated with gas remaining in the Contractor's gas pools shall be supported by documentation which must be reviewed and approved by the Government prior to a final invoice being issued for the gas volumes.

It shall be the Contractor’s responsibility to understand the specific details regarding the LDC’s requirements for billing, reporting, and coordinating. Payment shall be in accordance with FAR 32.9 (Prompt Payment). If payment is to be made by electronic funds transfer, the provisions of FAR 32.11 (ELECTRONIC FUNDS

TRANSFER), including the clause at 52.232-33 shall apply.

Contractor’s invoices must match the company name as specified in Attachment 1 and payment information for the Contractor in relation to invoices rendered must match the SAM.gov Unique Entity ID, Tax Identification

Number and Cage Code specified in Attachment 1.

A.8 TERM

The initial term of this contract shall be for the number of full billing cycles specified in the Exhibit 1 file for each pricing group. The service start and end dates shall be established by either the date specified in the auction schedule included in the Exhibit 1 file or the next meter read date immediately following the date specified in the auction schedule pursuant to specific LDC enrollment procedures. It will be the Contractor’s responsibility to ensure that the delivery start date complies with these terms and any penalties resulting from missing the required service start date(s) shall be borne by the Contractor.

A.9 REQUESTS FOR EXTENSION

The Government may request extension of performance, one or more times, in accordance with the existing contract terms and conditions, so long as the total additional performance period does not exceed twelve (12) months.

Pricing for the extension term will be in accordance with market movement comparing market prices on the day of contract award with settlement prices for the previous trading day to the day the Government requests a contract extension.

For purposes of this solicitation, the comparison will be based on New York Mercantile Exchange (NYMEX) settlement prices and term awarded for each pricing group on the day of the auction and settlement prices for the previous trading day to the day an extension price is requested by the Government for the same pricing group or groups.

The auction day settlement prices will be load weighted with the applicable monthly contract volumes included in the Exhibit 1 for each pricing group the Government requests an extension for. The Government will provide a copy of the NYMEX settlement prices and monthly volumes for each pricing group in the fully executed contract.

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

The settlement prices will be load weighted with the applicable extension volumes provided by the Government for each pricing group at the time of extension request.

Pricing for the extension term shall be determined by calculating the percentage difference between the load weighted auction day and settlement prices for the previous day to the day an extension price is requested and applying that percentage difference to the original auction price under the awarded contract.

If the Contractor declines to extend, the contract will expire with the current performance period for the associated pricing group(s).

Notice of request for extension will be furnished to the Contractor not later than thirty (30) days prior to the expiration of the contract or any extension thereof. However, nothing precludes the Contractor from agreeing to an extension of the contract if the Government fails to issue the notice prior to the thirty (30) days.

Notice of request for extension of this contract shall be considered to have been accomplished at the time the

Government sends notice via email to the Contractor.

A.10 QUALITY AND MEASUREMENT

The Contractor is solely responsible for the quality of gas upstream of the citygate. Measurement, testing, heating value, delivery pressure, and quality of natural gas supply delivered shall be in accordance with the applicable interstate/intrastate pipeline specifications. Accounts shall not be obligated to purchase or pay for natural gas that either the LDC or the interstate pipeline has refused to accept due to non-conformance with its specifications.

The Contractor shall furnish all labor, materials, tools, equipment, and incidentals to supply and deliver direct supply natural gas to the LDC citygate(s). The Contractor shall adhere at all times to applicable LDC tariff, agreements, rules and regulations.

A.11 ADDING AND DELETING ACCOUNTS TO THIS CONTRACT

It is possible that additional accounts not included in Exhibit 1 may be added to the resultant contract. In that event, the Government will provide the Contractor with the facility’s natural gas requirement (if available) and the two parties shall enter into good faith negotiations to determine a price. A bilateral modification will be executed adding the line item on the Standard Form 30, Amendment of Solicitation/Modification of Award.

If the Government removes any accounts listed in Exhibit 1, the Government shall provide the Contractor with a written notice 45 business days before any such removal. The Government may unilaterally remove any facilities from the contract in its discretion. If accounts are removed, the methodology provided in FAR 52.212-4(l)

Termination for the Government’s Convenience in Section B below shall be used to calculate the early termination charges, if any. The provisions of this paragraph shall not apply to accounts with early end dates noted in Exhibit

1 at the time of contract award.

A.12 LINE LOSSES

The Exhibit 1 volumes are burnertip volumes. Pipeline and LDC Line losses are to be included in the pricing submitted, as Contractor billed volumes must match burnertip volumes at the meter. Line losses are not included as part of any usage variance provision. The Contractor is responsible for analyzing all account data available to ensure adequate burnertip volumes are delivered

A.13 SERVICE INTERRUPTION

The Contractor is to notify the GSA Contracting Officer, GSA account manager and facility account Point of

Contact upon notification of an LDC-issued interruption, LDC-issued supply curtailment, or LDC- issued operation flow order occurring. This notification must be provided in writing via e-mail with the starting date and times of the restrictions. Contractors will need to follow the utilities’ direction on how to deliver gas to accounts during an

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

LDC-issued interruption, supply curtailment or operational flow order.

The Contractor is to notify the GSA Contracting Officer, GSA account manager and facility account Point of

Contact upon notification of a pipeline-issued interruption or pipeline issued supply curtailment occurring. This notification must be provided in writing via e-mail with the starting date and times of the restrictions. Contractors will need to follow the pipeline’s direction on how to deliver gas to accounts during a pipeline-issued interruption or supply curtailment.

Once the GSA Contracting Officer, GSA account manager and facility account Point of Contact have been notified by the Contractor; interruptible (IT) designated accounts, as specified in Exhibit 1, are required to curtail usage to the greatest extent possible during the period of time the restrictions are in place.

Any claimed costs owed by the Government associated with gas delivered during the time the LDC-issued interruption, LDC-issued supply curtailment, or LDC- issued operation flow is in place must be supported by proof of gas purchases during the event. All such costs must be itemized and supported by appropriate proofs of payment or settlement statements confirming the total dollar amount. Contractors shall provide the GSA

Contracting Officer; GSA account manager and facility account Point of Contact all cost or credit related calculations and backup information within seven (7) days of the event ending.

If an Excusable Delay (see FAR 52.212-4(f)) occurs and penalty gas is delivered to an end-use facility, any resulting charges for penalty gas will be calculated based on the daily volumes delivered during the applicable period and daily pricing for the applicable pricing point. Any costs owed by the Government associated with penalty gas shall be supported by documentation from the Contractor. The Contractor shall provide all cost related calculations and backup information to the GSA Contracting Officer, GSA account manager and facility account Point of Contact within three (3) months of the event ending.

A.14 LOAD CHANGES DURING THE TERM OF THE CONTRACT

The Federal Government will not be penalized in any way for pursuing any projects that reduce natural gas load requirements except as expressly detailed under this contract.

A.15 NATURAL GAS REGULATORY CHANGES

(a) The contract price includes all applicable Federal, State, and local regulations expected to be in effect and applicable to this contract at the time of contract award.

(b)(1) After-imposed Charges. After-imposed charges are new or increased charges that the Contractor is required to pay or bear as the result of legislative, judicial, regulatory or administrative action (whether Federal, State, or local) taking effect after the contract award date.

(2) After-relieved Charges. After-relieved charges are charges the Contractor is no longer required to pay or bear, or for which the Contractor obtains a refund or reduction, as the result of legislative, judicial, regulatory or administrative action (whether Federal, State, or local) taking effect after the contract award date.

(c) The contract price shall be increased by the amount of any after-imposed charges, provided the Contractor warrants in writing that no amount for such newly imposed Federal, State, and local regulation or rate increase was included in the contract price, as a contingency reserve or otherwise, and that the Contractor provides sufficient documentation to support the increase.

(d) The contract price shall be decreased by the amount of any after-relieved charges.

(e) Any increases or decreases in the contract price as a result of paragraphs (c) and (d) above shall be accomplished by a bilateral contract modification. In the event that the Government and the Contractor cannot agree to an

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

acceptable contract adjustment, the Government will unilaterally adjust the contract price via modification subject to the Disputes provisions of FAR 52.212-4(d) incorporated in the contract.

A.16 CONTRACT ADMINISTRATION

After award, this contract shall be administered by the General Services Administration’s Clean Energy Division

(PMPB).

The Contracting Officers (COs) for the administration of contracts awarded as a result of this solicitation are:

Ebony N. Atkinson

Energy Procurement Branch - Clean Energy Division

U.S. General Services Administration, Public Buildings Service

1800 F Street, NW

Washington, DC 20405

(202) 501-2763

Ebony.atkinson@gsa.gov

Or

Nilka Diaz

Energy Procurement Branch – Clean Energy Division

U.S. General Services Administration, Public Buildings Service

1800 F Street, NW

Washington, DC 20405

(917) 494-4009

Nilka.diaz@gsa.gov

The Account Manager for the day-to-day administration will be identified in the award notification provided to each

Contractor at the time of award.

A.17 AUCTION PROCESS FOR PRICING USING ENEL X

The Government shall use an internet-based transaction platform provided by Enel X, the Government’s third-party contractor, to obtain pricing for this procurement. The offeror shall submit pricing to GSA using the Enel X platform in accordance with the instructions in Section C and the Enel X website. All prices submitted to the Enel

X transaction platform shall be in accordance with the provisions of the solicitation. It shall be the responsibility of the offeror to understand both the rules and the mechanics of the Enel X transaction platform.

A.18 ENEL X FEE

The Contractor hereby agrees to pay a fee in the amount of $0.05 per dth for all usage billed under this contract.

The Contractor shall pay the fee directly to Enel X in accordance with the agreement, if any, executed between the Contractor and Enel X. The Contractor expressly recognizes and understands that the Government is not responsible for paying the fee to Enel X. To the extent a dispute occurs between the Contractor and Enel X regarding the fee, any such dispute shall be handled in accordance with the agreement executed between the

Contractor and Enel X.

A.19 DAMAGES FOR MISSING CONTRACT START DATE

The Contractor will be responsible for enrolling new accounts with the LDC and/or switching Government accounts from the current natural gas supplier (LDC or third-party supplier) to Contractor and fulfilling any obligations with the LDC to that end. The Government will make its best effort to ensure that all accounts included under this Solicitation and the resulting auctions are transportable. However, it is the Contractor’s mailto:Ebony.atkinson@gsa.gov

RFP 47PA0724R003 GENERAL SERVICES ADMINISTRATION

ultimate responsibility to verify that both new and existing accounts are transportable and will continue to be over the life of the term awarded. All costs associated with a Contractor not being able to service an account based on non-transportability issues will be borne by the Contractor and not the Government. Post-award, Contractors will be responsible for notifying the Contracting Officer of any discrepancies associated with the number of meters associated with each LDC account awarded to them.

A.20 MATERIAL CHANGE

The Contracting Officer will notify the Contractor if the Government anticipates an annual change of plus or minus 25% or more to the total published volumes in Exhibit 1 (a “Material Change”) for accounts awarded under

Pricing Product II. The first annual change period will begin with the meter read start date for the contract and end with the meter read date the same month the following year. The same methodology will apply to the annual change periods for subsequent contract years. For any contracts awarded with a term not equal to twelve, twenty-four, thirty-six, forty-eight or sixty months; the final annual change period will apply to the remaining months that total less than twelve. If a six-month contract is awarded, the annual change will apply to the six months the contract is active.

Volume increases or decreases caused by fluctuations in weather will not be included in the 25% calculation, only changes in the way each end-use facility operates. Equitable adjustments made under this section will only include natural gas quantities beyond the 25% tolerance and must be based on the aggregate annual volumes included in Exhibit 1 for each Pricing Group.

Any resulting costs owed by, or credits owed to the Government associated with liquidation of contracted natural gas positions by the Contractor for an account in the event of a Material Change will be determined in accordance with the calculations provided in the Termination for Convenience clause FAR 52.212-4(l) in this contract.

Notwithstanding the foregoing, regarding LDC costs, if the GSA Contracting Officer notifies the Contractor in writing within 15 days of a Material Change occurring, the Contractor will pay any costs imposed by the LDC including but not limited to charges, penalties, or fines. If the Contracting Officer fails to notify the Contractor of a Material Change, the Government will be responsible for such reasonable LDC costs.

Any costs owed by, or credits owed to the Government associated with liquidation of contracted natural gas positions by the Contractor for an account in the event of a Material Change shall be supported by proof of gas sales resulting from the liquidation. All such costs shall be itemized and supported by appropriate proofs of payment or settlement statements confirming the total dollar amount resulting from the liquidation. Contractors shall provide all cost or credit related calculations and backup information within three (3) months of the

Contractor first being notified of a Material Change.

A.21 PRICING PRODUCT DESCRIPTIONS

Pricing Product I

During each month of delivery for the term of the contract, the Government may over or under burn the published volumes as specified by month for each account listed in Exhibit 1. The Contractor is responsible for supplying the account’s full requirements under this pricing product. The awarded contract price shall apply to the Exhibit 1 monthly volumes and those quantities over or under burned monthly within an established allowable percentage volume variance. For example: if twenty five percent (25%) allowable variance of the published volumes listed in

Exhibit 1 is selected then:

1. The price of gas burned in excess of 125% of published volumes shall be found by using the applicable monthly price index published as “Midpoint Averages” in the monthly S&P Global Gas Daily Report for the associated month, plus transportation if any (if citygate index price, no transportation will be added), fixed margin of $0.10 per decatherm (dth), and procurement fee of $0.05 per dth

(as defined in Section A.18).

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2. The price of any gas below 75% of published volumes that was not burned shall be found by using the applicable monthly price index published as “Midpoint Averages” in S&P Global Gas Daily Report for the associated month (“index price”) and applied as follows:

a) If the index price is less than the fixed contract price, Contractor shall be entitled to compensation utilizing the following calculation: (fixed contract price - index price) * dth quantity below the applicable bandwidth.

b) If the index price is greater than the fixed contract price, customer shall receive credit utilizing the following calculation: (fixed contract price - index price) * one half the dth quantity below the applicable bandwidth.

NOTE: At the time the Contractor begins this calculation, the $0.05/dth fixed procurement fee which is included in the awarded contract price shall be subtracted from calculation of either compensation or credit referenced in 2.a) and 2.b) above.

In addition to the monthly invoice as specified in Section A.7, Contractor shall submit to the account manager a spreadsheet listing the quantities of gas above or below the established allowable percentage volume variance, the applicable midpoint average index price, and as applicable, transportation cost, fixed $0.10 margin, and fixed procurement fee of $0.05. These quantities shall be listed on the monthly invoice as a separate line item with any associated comments. Once the applicable pricing point has been chosen and documentation provided to the account manager, Contractors will not be allowed to switch for the remainder of the contract.

Pricing Product II

The supply of natural gas to be provided to each account shall be for one hundred percent (100%) usage, full requirements, at a firm fixed price with no guaranteed usage/volumes to the Contractor and no usage restrictions to the Government. Pricing shall be to the burnertip for each account and Contractor billed volumes must match burnertip volumes at the meter. The Government shall be invoiced monthly on actual usage at the awarded contract price. During any month of delivery for the term of the contract, the Government may over or under burn the Exhibit 1 volumes as specified by month for each account listed in Exhibit 1. In both over burn and under burn scenarios, the Government shall be invoiced at the awarded contract price for actual usage.

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SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

B.1 CLAUSES INCORPORATED BY REFERENCE

The full text of clauses/provisions incorporated by reference can be accessed at www.acquisition.gov.

FAR 52.212-1 Instructions to Offerors-Commercial Products and Commercial Services (SEP 2023)

[Reference FAR 12.301(b)(1)]

Addendum to FAR 52.212-1

The offeror agrees to hold the prices offered in response to this solicitation until 2:00 p.m. EST on the date specified in Section C.2 of this solicitation.

FAR 52.204-29 Federal Acquisition Supply Chain Security Act Orders—Representation and

Disclosures (Dec 2023)

FAR 52.204-30 Federal Acquisition Supply Chain Security Act Orders—Prohibition (Dec 2023

GSAR 552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition of Commercial

Products and Commercial Services (Oct 2023)

[Reference GSAR 512.301(a)(1)], The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial products, including commercial components, and commercial services. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The Contracting Officer should check the clauses in paragraph (b) that apply or delete the clauses that do not apply from the list. The Contracting Officer may add the date of the clause if desired for clarity. The GSAR clauses in paragraph (b) of this section are incorporated by reference.

[The Contracting Officer should check the clauses that apply or delete the clauses that do not apply from the list.

The Contracting Officer may add the date of the clause if desired for clarity.]

(b) Clauses.

GSAR 552.203-71 Restriction on Advertising (Sep 1999)

GSAR 552.211-73 Marking (Feb 1996)

GSAR 552.212-72 Contract Terms and Conditions Required to Implement Statutes or Executive

Orders Applicable to GSA Acquisition of Commercial Products and Commercial

Services (Oct 2023)

The Contractor agrees to comply with any provision or clause that is incorporated herein by reference to implement provisions of law or Executive Orders applicable to acquisition of commercial items or components. The provision or clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The contracting officer should either check the provisions and clauses that apply or delete the provisions and clauses that do not apply from the lists in paragraphs (a) and (b). The contracting officer may add the date of the provision or clause if desired for clarity. The GSAR provisions in paragraph (a) and GSAR clauses in paragraph (b) are incorporated by reference.

(a) Provisions.

http://www.acquisition.gov/

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552.223-72 Hazardous Material Information

(b) Clauses.

552.215-70 Examination of Records by GSA

552.223-70 Hazardous Substances

552.223-71 Nonconforming Hazardous Material

552.223-73 Preservation, Packaging, Packing, Marking, and Labeling of Hazardous Materials (HAZMAT) for

Shipments.

552.232-23 Assignment of Claims

End of Clause

FAR 52.204-16 Commercial and Government Entity Code Reporting (AUG 2020)

[Reference FAR 4.1804(a)]

FAR 52.204-18 Commercial and Government Entity Code Reporting (AUG 2020)

[Reference FAR 4.1804(c)]

B.2 CLAUSES IN FULL TEXT

552.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (FAR

DEVIATION 52.212-4) (Jan 2023)

(g)(2) The due date for making invoice payments by the designated payment office is the later of the following two events:

(i) The 10th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment due date shall be the 10th day after the date of the Contractor’s invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality, or Contractor compliance with contract requirements.

(ii) The 10th day after Government acceptance of supplies delivered or services performed by the Contractor.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to

Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements - Unenforceable Clauses paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the

Commercial Supplier Agreements -Unenforceable Clauses provision.

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(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449. (8)

(8) Other documents, exhibits, and attachments.

(9) The specification.

(u) Unauthorized Obligations. (1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation ( 31 U.S.C. 1341), the following shall govern:

(i) Any such language, provision, or clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(w) Commercial supplier agreements unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the

U.S. Government, the following shall apply:

(i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR 12).

(ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by

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applicable Federal law is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable

Federal law in relation to a dispute is hereby deleted.

(iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable

Federal statute while continuing performance as set forth in subparagraph (d) (Disputes).

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S.

Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

(vi) Updating terms. (A) After award, the contractor may unilaterally revise commercial supplier agreement terms:

if they are not material. A material change is defined as:

(1) Terms that change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

(C) Any agreement license terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement

(e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying

Government contract or order.

(B) This charge, if disputed by the ordering activity, will be resolved in accordance with subparagraph (d) (Disputes) through the Disputes clause at 552.212-4(d); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

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(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under subparagraph (b) of this clause.

(xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information

Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph

(w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.

(End of clause)

FAR 52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services

(Nov 2023)

[Reference FAR 12.301(b)(3)]

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights-

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act ( 31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

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(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at Federal Acquisition

Regulation (FAR) 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(g) Invoice. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include-

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of…