Attachment 02 - GAA Provisions - Clauses - Rev 23OCT23.pdf

1. CLAUSES, REPRESENTATIONS AND CERTIFICATIONS (OCT 2020)

1.1. The following clauses are incorporated into the Agreement by reference. The clauses so incorporated shall be the version of the clause that was in effect on the date a specific Assignment Letter is issued.

Clauses will be updated prior to issuing an assignment and identified in an attachment to the assignment letter. Wherever a clause refers to “the Contractor,” substitute “the General Agent.”

Wherever a clause refers to a “subcontractor,” substitute “contractor of the General Agent.”

1.2. The General Agent shall flow down the below clauses, representations and certifications, in solicitations issued by and contracts entered into by the General Agent as Agent of the Government, when applicable according to the prescription in the regulation. At a minimum, the General Agent shall insert the applicable clauses in 52.244-6 Subcontracts for Commercial Items in contracts for commercial items.

1.3. FAR Clauses. This Agreement incorporates one or more clauses in the Federal Acquisition Regulation (FAR) by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically on the Acquisition.gov website at this address: https://www.acquisition.gov/far/part- 52.

Several clauses including 52.225-03, 52.232-12 and 52.232-22 will vary depending upon circumstances specific to the task assignment. The Assignment letter and Task Order will include the information required for certain clauses as well as identify any applicable Alternates.

Clause Title 52.202-1 Definitions Jun 2020 52.203-5 Covenant Against Contingent Fees May 2014 52.203-6 Restrictions On Subcontractor Sales To The Government Jun 2020 52.203-7 Anti-Kickback Procedures Jun 2020 52.203-10 Price Or Fee Adjustment For Illegal Or Improper Activity May 2014 52.203-12 Limitations on Payments to Influence Certain Federal Transactions Jun 2020 52.203-13 Contractor Code of Business Ethics and Conduct Jun 2020 52.203-17 Contractor Employee Whistleblower Rights and Requirement To Inform Employees of

Whistleblower Rights.

Jun 2020

52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements Jan 2017 52.204-2 Security Requirements Aug 1996 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance

Services or Equipment Aug 2020

52.204-19 Incorporation by Reference of Representations and Certifications. Dec 2014 52.209-6 Protecting the Government's Interest When Subcontracting With Contractors

Debarred, Suspended, or Proposed for Debarment Jun 2020

52.215-2 Audit and Records--Negotiation Jun 2020 52.216-7 Allowable Cost and Payment Aug 2018 52.219-8 Utilization of Small Business Concerns Oct 2018 52.222-1 Notice To The Government Of Labor Disputes Feb 1997 52.222-3 Convict Labor Jun 2003 https://www.acquisition.gov/far/part-52 https://www.acquisition.gov/far/part-52

52.222-4 Contract Work Hours and Safety Standards Act – Overtime Compensation Mar 2018 52.222-21 Prohibition of Segregated Facilities Apr 2015 52.222-26 Equal Opportunity Sep 2016 52.222-35 Equal Opportunity for Veterans Jun 2020 52.222-36 Equal Opportunity for Workers with Disabilities Jun 2020 52.222-37 Employment Reports on Veterans Jun 2020 52.222-40 Notification of Employee Rights Under the National Labor Relations Act Dec 2010 52.222-41 Service Contract Labor Standards Aug 2018 52.222-42 Statement of Equivalent Rates for Federal Hires May 2014 52.222-49 Service Contract Labor Standards-Place of Performance Unknown May 2014 52.222-50 Combating Trafficking in Persons Jan 2019 52.222-54 Employment Eligibility Verification Oct 2015 52.222-55 Minimum Wages under Executive Order 13658 Dec 2015 52.222-62 Paid Sick Leave Under Executive Order 13706 Jan 2017 52.223-2 Affirmative Procurement of Biobased Products Under Service and Construction

Contracts Sep 2013

52.223-6 Drug Free Workplace May 2001 52.225-3 Buy American Act – Free Trade Agreement – Israeli Trade Act ($25,000 and under

$191,000) May 2014

52.225-5 Trade Agreements ($191,000 or over) Oct 2019 52.227-1 Authorization and Consent Jun 2020 52.227-2 Notice and Assistance Regarding Patent and Copy Infringement Jun 2020 52.227-14 Rights in Data—General May 2014 52.232-12 Advance Payments May 2001 52.232-17 Interest May 2014 52.232-22 Limitation of Funds Apr 1984 52.232-24 Prohibition of Assignment of Claims May 2014 52.232-25 Prompt Payment Jan 2017 52.232-33 Payment by Electronic Funds Transfer—System for Award Management. Oct 2018 52.232-40 Providing Accelerated Payments to Small Business Subcontractors Dec 2013 52.233-1 Disputes May 2014 52.233-4 Applicable Law for Breach of Contract Claim Oct 2004 52.242-1 Notice of Intent to Disallow Costs Apr 1984 52.242-13 Bankruptcy Jul 1995 52.243-1 Changes – Fixed Price Aug 1987 52.243-2 Changes—Cost-Reimbursement Aug 1987 52.244-2 Subcontracts (Alternate 1) Jun 2020 52.244-5 Competition in Subcontracting Dec 1996 52.244-6 Subcontracts for Commercial Items Aug 2020 52.246-5 Inspection of Services Cost-Reimbursement Apr 1984 52.247-63 Preference for U.S.-Flag Air Carriers Jun 2003

52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels Feb 2006 52.249-14 Excusable Delays Apr 1984 52.251-01 Government Supply Sources

1.4. DOT and MARAD Clauses: This Agreement incorporates one or more clauses in the Transportation

Acquisition Regulation (TAR) by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this address:

https://www.acquisition.gov/tar/part-1252-solicitation-provisions-and-c-ontract-clauses

1252.223-71 Accident and Fire Reporting Apr 2005 1252.223-73 Seat Belt Use Policies and Programs Apr 2005 1252.237-70 Qualifications of Contractor Employees Apr 2005 1252.242-72 Dissemination of Contract Information Oct 1994

1.5 MARAD Clause MCL.I-1 DISCLOSURE OF CONFLICTS OF INTEREST – AUG 2005

It is the Department of Transportation's (DOT) policy to award contracts to only those offerors whose objectivity is not impaired because of any related past, present, or planned interest, financial or otherwise, in organizations regulated by DOT or in organizations whose interests may be substantially affected by Departmental activities. Based on this policy:

(a) The offeror shall provide a statement in its proposal which describes in a concise manner all past, present or planned organizational, financial, contractual or other interest(s) with an organization regulated by DOT, or with an organization whose interests may be substantially affected by Departmental activities, and which is related to the work under this solicitation. The interest(s) described shall include those of the proposer, its affiliates, proposed consultants, proposed subcontractors and key personnel of any of the above. Past interest shall be limited to within one year of the date of the offeror's technical proposal. Key personnel shall include any person owning more than 20% interest in the offeror, and the offeror's corporate officers, its senior managers and any employee who is responsible for making a decision or taking an action on this contract where the decision or action can have an economic or other impact on the interests of a regulated or affected organization.

(b) The offeror shall describe in detail why it believes, in light of the interest(s) identified in (a) above, that performance of the proposed contract can be accomplished in an impartial and objective manner.

(c) In the absence of any relevant interest identified in (a) above, the offeror shall submit in its proposal a statement certifying that to its best knowledge and belief no affiliation exists relevant to possible conflicts of interest. The offeror must obtain the same information from potential subcontractors prior to award of a subcontract.

(d) The Contracting Officer will review the statement submitted and may require additional relevant information from the offeror. All such information, and any other relevant information known to DOT, will be used to determine whether an award to the offeror may create a conflict of interest. If any such conflict of interest is found to exist, the Contracting Officer may (1) disqualify the offeror, or (2) determine that it is otherwise in the best interest of the United States to contract with the offeror and include appropriate provisions to mitigate or avoid such conflict in the contract awarded.

(e) The refusal to provide the disclosure or representation, or any additional information required, may result in disqualification of the offeror for award. If nondisclosure or misrepresentation is discovered after award, the resulting contract may be terminated. If after award the Contractor discovers a conflict of interest with respect to the contract awarded as a result of this solicitation, which could not reasonably have been know prior to award, an immediate and full disclosure shall be made in writing to the Contracting Officer. The disclosure shall include a full description of the conflict, a description of the action the contractor has taken, or proposes to take, to avoid or mitigate such conflict. The Contracting Officer may, however, terminate the contract for convenience if he or she deems that termination is in the best interest of the Government.

2. APPOINTMENT OF GENERAL AGENT (OCT 2020)

2.1. Having determined the General Agent named in Block 7 of this award to be eligible and qualified for appropriate assignments, the United States appoints the General Agent as its agent acting by and through the Director, National Shipping Authority (NSA) of the Maritime Administration (MARAD), Department of Transportation, pursuant to 46 CFR Part 315 Agency Agreements and Appointment of Agents, and not as an independent contractor, to manage and conduct the business of one or more Government-owned public vessels, or vessels controlled or time-chartered by the United States (herein referred to singularly or collectively as the "vessel") as may, from time to time, be assigned to the General Agent pursuant to this Agreement.

2.2. The United States, after consultation with the General Agent, will assign or delete the vessel by name and location. The assignments and deletions shall be in writing, either by letter or by cable or telegram confirmed by letter, and addressed to the General Agent as prescribed by ARTICLE 14 of this Agreement. The General Agent will execute an acceptance of the letter and return two original counterparts to the United States. Each assignment and deletion shall constitute a formal modification of this Agreement.

3. ACCEPTANCE OF APPOINTMENT (OCT 2020)

The General Agent accepts the appointment and undertakes and promises so to manage and conduct the business for the United States in accordance with such directions, orders, or regulations, not inconsistent with this Agreement as the United States has prescribed, or from time to time may prescribe, and upon the terms and conditions herein provided of the vessels as have been or may be by the United States assigned to and accepted by the General Agent for that purpose.

4. DUTIES OF THE GENERAL AGENT (OCT 2020)

4.1. For the account of the United States, in accordance with such directions, orders, regulations, forms and methods of supervision and inspection as the United States may from time to time prescribe (or in the absence of such directions, orders, regulations, forms and methods of supervision and inspection, in accordance with good and reasonable commercial practices, including the use of customary commercial forms), in an economical and efficient manner, and exercising due diligence to protect and safeguard the interest of the United States in connection with the duties prescribed in this Agreement and without prejudice to its rights under the Article entitled "Insurance and

Indemnification," the General Agent (solely as agent for the United States and not in any other capacity), shall:

4.1.1. Procure the Master of the vessel, subject to the approval of the United States. The Master shall be an agent and employee of the United States within the meaning, and only for the purposes of Section 1(a) of Public Law 17, 78th Congress, 1st Session, 57 Stat 45, March 24, 1943, as incorporated into 50 U.S.C. App. 1291. The Master shall have and exercise full control, responsibility and authority with respect to the manning, navigation and management of the vessel and shall be controlled by the United States directly or through the General Agent. The General Agent shall procure and make available to the Master for engagement, the officers and members of the crew required to fill the complement of the vessel. Such officers and members of the crew shall be procured by the General Agent through the usual channels and in accordance with the customary practices of commercial operators and upon the terms and conditions of the General Agent's collective bargaining agreements (CBAs), if any. The officers and members of the crew shall be subject only to the orders of the Master. All such persons shall be paid in the customary manner with funds provided by the United States hereunder. If the United States shall have any reason to be dissatisfied with the conduct of any person employed by the General Agent or by the Master and assigned to operation, management, or direct support of the vessel, or the General Agent, or the Master, upon receiving particulars of the complaint, shall investigate and, if required, make a change in the assignment.

4.1.2. Equip, victual, supply and repair the vessel, or arrange therefore, including hull, machinery, boilers, tackle, apparel, furniture, equipment and spare parts, and including maintenance and voyage repairs and replacements, as may be necessary to maintain the vessel in an efficient state of repair and condition. In carrying out these functions, the General Agent shall undertake the following activities with respect to the vessel, if and as required by the United States:

4.1.2.1. Assign dedicated personnel to husband the vessel and identify the specific point of contact for program action, reports and accounting.

4.1.2.2. Identify preferred and alternative berthing spaces.

4.1.2.3. Coordinate activation specifications and routine support services with selected shipyards, port authorities and local service organizations.

4.1.2.4. Develop, maintain and revise, as necessary, a communications "alert" list for all organizations involved in retention, servicing and activations.

4.1.2.5. Submit for approval specific accounting and reporting procedures which will reflect cost and vessel status in accordance with formats prescribed by the United States.

4.1.2.6. Identify procedures to be employed to obtain and maintain the vessel's documents and certificates in accordance with regulatory requirements, standard agreements and other special requirements.

4.1.2.7. Survey, inspect, develop specifications, perform operational testing in conjunction with the American Bureau of Shipping (ABS), United States Coast Guard, Federal Communications Commission and other regulatory bodies, make recommendations as to repairs, accomplish repairs required to maintain and hold the vessel in its designated status and prepare instructions, if required, for the holding of the vessel in such status.

4.1.2.8. Periodically review the current status of shipboard equipment and systems in accordance with retention standards and reporting procedures prescribed by the United States.

4.1.2.9. Prepare listing of ship and equipment deficiencies and required repair list items for issuance to repair organizations.

4.1.2.10. Prepare and maintain current activation specifications including specific deficiency items noted. Coordinate periodic upgrade of activation specifications with designated ship repair organizations.

4.1.2.11. Develop and maintain a sequenced action plan for specific assignment of responsibilities relating to "no-notice" activation requirements.

4.1.2.12. Maintain current inventory of ship stores, supplies, spare parts and equipment in formats prescribed by the United States and prepare "pre-cut" requisitions for prompt purchase and delivery of required items.

4.1.2.13. Prepare a dock trial and sea trial procedure to be accomplished in advance of vessel being tendered for operation at the completion of activation.

4.1.2.14. Develop and maintain a deactivation plan and specifications in accordance with retention standards prescribed by the United States.

4.1.3. Hire tugboats and pilots and pay canal tolls, either directly or through port agents approved by the United States.

4.1.4. Appoint port agents at all ports for the purpose of husbanding the vessel, as required and subject to prior approval by the United States, except when in the judgment of the General Agent conditions are such that prompt action must be taken and obtaining approval of the United States would be impracticable. In port areas where the General Agent has an office, husbanding may be performed by that office with reimbursement for services at the customary commercial rates subject to the Article entitled "Related Company Services" of this Agreement as applicable.

4.1.5. Investigate accidents and preserve evidence in accordance with the latest MARAD ship management guidelines:

J.3a Processing Seafarers' Personal Injury/Illness Claims (Supplement A), and

J.3b Incidents Involving Third Party Personal Injury, Illness, Property Damage Loss (Supplement B)

J.3a, J.3b and forms listed in the J.3a Appendix are maintained on the MARAD Ship Manager Contract Common Documents website. A link to access the site is provided below at 7.4.2.2.

4.1.6. Assist the United States in the handling, adjustment, settlement, or litigation of all claims of any nature whatsoever for or against the United States relating to the vessel. In the event of any claims being presented after this Agreement terminates, the United States may request the General Agent to assist in the handling, adjustment, settlement, or litigation and will compensate the General Agent for out-of-pocket costs. Notwithstanding this clause or any other clauses in this agreement if the actions, decisions or procedures of the General Agent prevent the United States from asserting exclusivity under the Suits In Admiralty Act costs shall not be reimbursed and any additional costs to the government shall be subject to the Indemnity provisions found in section 7.3.

4.1.7. Abide by and conform to all government laws, rules and regulations applicable to the vessel and to its personnel, and make all reports and returns required by any government body with respect to the vessel.

4.1.8. Exercise diligence, in accordance with good commercial practices, to maintain the vessel in the highest classification of the American Bureau of Shipping for its type, and to keep the vessel in a thoroughly efficient state in hull, machinery, equipment, personnel and other particulars relating to the seaworthiness of the vessel, and to keep the vessel working to prevent the loss of time.

Except in cases of emergency, no alterations in hull, machinery, or equipment shall be made by the General Agent without first securing the authorization of the United States.

4.1.9. Furnish to the United States prompt notice and full information including copies of all pertinent papers, documents and records regarding casualties, accidents or damage to the vessel, suits, libels, actions and claims, and all problems of importance relating to the vessel.

4.1.10. Assist the United States in obtaining and maintaining all appropriate and applicable certification and documentation for the vessel; handle or process all shipping documents necessary to the management and conduct of the business of the vessel; and obtain all port and harbor information necessary for the vessel.

4.1.11. Relay voyage instructions from the United States directly to the master of the vessel.

4.1.12. If required by the United States, furnish and maintain during the duration of the Agreement, a bond with sufficient surety and in such form and amount as shall be approved by the United States, conditioned upon the due and faithful performance of each covenant and agreement of the General Agent contained in this Agreement, including, but not limited to, the obligation to faithfully account for and be responsible to the United States for all funds collected and disbursed and property received by the General Agent or its subagents. No monies of the United States shall be advanced or entrusted by the General Agent to a Master, purser, or any other member of the vessel's personnel, unless such person is under bond indemnifying the United States against loss of such monies or property caused solely or in part by the dishonesty or lack or care of any such person in the performance of the duties of any position covered by the bond. Cost of such indemnification bond or bonds under this Paragraph 4.k shall be for the account of the United States.

4.1.13. Keep books, records and accounts (which shall be the property of the United States) relating to the activities, maintenance and business of the vessel in such form and under such regulation as may be prescribed by the United States.

4.1.14. File, upon notice from the United States, balance sheets, profit and loss statements and such other statements of activities, special reports and memoranda of any facts and transactions, which, in the opinion of the United States, affect the results of the performance of transactions or activities under this Agreement, and whenever the General Agent employs any related, affiliated, or holding company of the General Agent to render any service or to furnish any stores, supplies, equipment, provisions, materials, or facilities which are for the account of the United States under the terms of this Agreement, the General Agent shall also, as a condition of such employment, obtain from such related or affiliated, or holding company its agreement to comply with the requirements aforesaid and to make available to the United States for examination and audit, its books, records and accounts, to the extent that such services affect the results or the performance of transactions or activities under this Agreement.

4.1.15. Exercise due diligence in the selection of contractors, subcontractors or vendors. The fees and expenses of contractors or subcontractors utilized to aid in the performance of services and functions required herein shall be included in the costs to be reimbursed by the United States.

The General Agent shall promptly terminate any subcontractor or vendor not satisfactory to the United States upon, or confirmed by, written instructions from the United States.

4.1.16. In each and every contract, as well as any other activities, in which the General Agent is acting as an agent as of the United States, the General Agent must clearly identify itself as an agent acting on behalf of the United States in the contract, its correspondence, and in other forms of communications. Such communications are necessary in order for third parties dealing with the General Agent to know that the legal status in which the General Agent is acting and that the Federal Government’s relationship to these transactions.

4.1.17. To ensure that anyone acting for the General Agent is considered to be part of the General Agent, when acting within the scope of its authority as a General Agent for the Federal Government acting through MARAD, the General Agent must ensure that those acting for the General Agent are agents, servants or employees of the General Agent even if they are normally employees of either a parent or an affiliated company. The General Agent shall also ensure that such agents, servants, or employees clearly represent their status as agents, servants, or employees of the General Agent, when interacting with any other individuals or entities.

4.1.18. It is assumed by the parties hereto that no suit may be filed against the General Agent for admiralty torts arising within the scope of its duties as General Agent due the Exclusivity provisions relating to the waiver of sovereign immunity applicable to the admiralty operations of the Federal Government. Such assumption shall not apply to third party entities working with the General Agent.

4.1.19. When directed by the United States or upon termination of this Agreement, turn over to the United States at time and place to be fixed by the United States, the vessel and other property of whatsoever kind then in the custody of the General Agent pursuant to this Agreement, and upon such action the United States may collect directly, or by such agent or agents as it may appoint, all monies or other debts remaining unpaid; provided, that the General Agent shall, if required by the United States, adjust, settle and liquidate the business of the vessel.

4.1.20. Conduct the business of the vessel including but not limited to all matters with respect to voyages, cargoes, mail, passengers, persons to be carried, charter rates of freight and charges, and procure or provide all services incident thereto but not limited to stevedoring and other cargo handling port activities, wharfage and dockage, pilotage, canal transits, and services of subagents, brokers and consulates.

4.1.21. Collect, deposit, remit, disburse, and account for all monies due to the United States arising in connection with activities under or pursuant to this Agreement, and to the extent disbursements made by the General Agent pursuant to this Agreement are recoverable from insurance, the General Agent shall take such steps as may be appropriate to affect such recovery for the account of the United States.

4.1.22. To the maximum extent practicable existing MARAD contracting methods and agreements shall be utilized.

4.1.23. Abide by and conform to Governmental laws, rules and regulations applicable to the vessel and the conduct of all activities under this Agreement.

4.1.24. If in support of the vessel, equipment, materials, or commodities must be transported to the vessel, the General Agent shall use privately owned U.S.-flag commercial vessels to ship at least 50 percent of the gross tonnage required to be transported in accordance with the procedures set forth in FAR 52.247-64.

4.2. The General Agent shall submit one legible copy of a rated onboard ocean bill of lading for each shipment to both (I) the Contracting Officer, and (ii) the Division of Military Cargoes, Office of Cargo Preference, Maritime Administration, U.S. Department of Transportation, Washington, DC 20590.

Subcontractor bills of lading shall be submitted through the Prime Contractor. The Contractor shall furnish copies of these bills of lading (I) within 20 working days of the date of loading for shipments originating in the United States, or (ii) within 30 working days for shipments originating outside the United States. Each bill of lading copy shall contain the following information:

4.2.1. Sponsoring U.S. Government agency.

4.2.2. Name of Vessel.

4.2.3. Vessel flag of registry.

4.2.4. Date of loading.

4.2.5. Port of loading.

4.2.6. Port of final discharge.

4.2.7. Description of commodity.

4.2.8. Gross weight in pounds and cubic feet if available.

4.2.9. Total ocean freight revenue in U.S. dollars.

4.3. For General Agent assignments that involve mariner crews, the General Agent shall ensure a safe workplace free of discrimination, sexual harassment, intimidation, and coercion at all sites and in all facilities where the General Agent's mariner crews are assigned to work.

4.3.1. EVERY MARINER BUILDS A RESPECTFUL CULTURE (EMBARC)

General Agents as operators of vessels for the MARAD support the training of Maritime Academy Cadets when cadet billets are available during ROS and FOS. Recently developed standards have been adopted by the agency to ensure that effective Sexual Assault and Sexual Harassment prevention measures are being followed. The EMBARC Standards and Self-Assessment Checklist are hereby incorporated by Attachment EVERY MARINER BUILDS A RESPECTFUL CULTURE (EMBARC).

4.3.2. DELIVERABLES

Deliverable: EMBARC Standards Self-Assessment Checklist & SASH Policies Reference: GAA Clause 4.3.1 EVERY MARINER BUILDS A RESPECTFUL CULTURE (EMBARC) Required by: Within 15 days of award of GAA Delivery Method: Email Format: Electronic

Frequency: Annually on anniversary of implementation Distribution: MAR610 - Sealift Programs Business Manager

5. COMPENSATION (OCT 2020)

5.1. At any time while this Agreement is in effect, the General Agent may be requested to perform any or all of the functions outlined in the Article entitled "Duties of the General Agent" above. The vessel will, at all times, be in one of the following phases:

5.2. Phase I - ACQUISITION

5.3. Phase II - UPGRADE

5.4. Phase III – DEACTIVATION

5.5. Phase IV – MAINTENANCE

5.6. Phase V – EXERCISE

5.7. Phase VI – SEALIFT ENHANCEMENT

5.8. Phase O – OPERATION

5.9. Phase E – ENVIRONMENTAL COMPLIANCE

5.10. The United States will assign the vessel to the particular Phase. The initial assignment and any subsequent change shall be in writing, either by letter or by email, and addressed to the General Agent as prescribed in the Article entitled "Notices, Communications" of this Agreement.

5.11. During the period when the vessel is in Phase I Acquisition (that is, being acquired by the Government), the United States shall pay to the General Agent, compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay the General Agent's out-of-pocket expenses, including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect, develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem, per vessel.

5.12. During the period when the vessel is in Phase II - Upgrade (that is, being upgraded to meet prescribed Government standards), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay the General Agent's out-of-pocket expenses including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect, develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem, per vessel.

5.13. During the period when the vessel is in Phase III-Maintenance (that is, undergoing initial Deactivation after completion of Phases I & II), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay the General Agent's out-of-pocket expenses, including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect, develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem per vessel.

5.14. During the period when the vessel is in Phase IV - Maintenance (that is, being held in a National Defense Reserve Fleet (NDRF) site or other place, port, dock, or wharf at the direction of the United States for the purpose of preserving and maintaining the assigned readiness level), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay the General Agent out-of-pocket expenses, including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem per vessel.

5.15. During the period when the vessel is in Phase V - Exercise (that is breakout and activation for sustained operations under Phase-O and lay up after completion of Phase-O), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay all the costs incurred by the General Agent, including, but not limited to, yard facilities, crew costs, fuel, subsistence, lodging of personnel, outfitting, crew and activation personnel, travel, towage, etc., plus a Management Fee of $1,040.14 per diem, per vessel.

5.16. During the period when the vessel is in Phase - VI Sealift Enhancement (this is, undergoing the installation of sealift enhancement features in order to meet National Defense Mission Requirements), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the General Agent's out-of-pocket expenses, including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect, develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem, per vessel.

5.17. During the period when the vessel is in Phase O - Operation (that is, active operational status commencing with readiness to lift cargo and terminating with reentry into Phase V - Exercise for lay up), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay all costs incurred in the operation of the vessel, as outlined in ARTICLE 4 of the Agreement, plus a Management Fee of $1,040.14 per diem, per vessel.

5.18. During the period when the vessel is in Phase E – Environmental Compliance (that is, a vessel in the NDRF without an assigned Ship Manager requires urgent action to address a condition that may risk harm to the environment or human health and/or to ensure compliance with applicable Federal, State, and local laws, regulations, and permits), the United States shall pay to the General Agent compensation for the General Agent's services with respect to the vessel once a month. The United States shall pay the General Agent out-of-pocket expenses, including pro-rata compensation plus fringe benefits and taxes for the personnel assigned at the request of the United States to oversee, observe, survey, inspect develop specifications, perform operational testing, or to perform any other duties or tasks as may be specifically assigned plus a Management Fee of $486.03 per diem per vessel.

5.19. Clarifications:

5.19.1. Whenever and wherever the term "Management Fee" is used in this Agreement, the parties agree that it means compensation to cover all of the General Agent's administrative and general expenses as such expenses are recognized under generally accepted accounting principles as defined in 46 CFR Part 232. The United States shall fully and directly reimburse the General Agent for those costs incurred directly related to the performance of work under this Agreement which are listed and described in Exhibit A to this Agreement (See 5.21 Exclusions from Management Fee). The "Management Fees" enumerated by Phase in this Article shall be in effect for the duration of this Agreement.

5.19.2. The General Agent is encouraged to devise means of reducing expenses of the vessel while maintaining the level of scheduled services and readiness. The General Agent shall submit such proposals to the United States which shall have sole discretion to adopt and implement them.

5.19.3. In the execution of the General Agent's responsibilities, a representative of the United States will be designated in writing to the General Agent at its address set forth in the Article entitled "Notices, Communications" of this Agreement to inspect, investigate, observe and report on the General Agent's activities, but without hindering the General Agent in the performance of such activities. The General Agent shall furnish the representative with information on a frequent basis, along with progress and time of completion estimates. During the designation period, the representative will be responsible for passing of information between the General Agent and the United States.

5.20. Economic Price Adjustment for Management Fee Rates for All Phases:

5.20.1. Adjustments to General Agent Management Fee Rates will coincide with the start of each successive fiscal year beginning with FY21 on October 01, 2020. Adjustments to the rates will be based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) published monthly by the Bureau of Labor Statistics, U.S. Department of Labor. CPI-W data tables may be obtained by first following the link, http://data.bls.gov/cgi-bin/surveymost?cw, checking the first checkbox, U.S. All items, 1982-84=100 - CWUR0000SA0, at the top of the selection list, and then using the “Retrieve data” button below the selection list.

5.20.2. Two 12-month averages will be used to calculate the General Agent Management Fee Rate adjustment for all phases. The adjustment is the percent change between the two averages. The first 12-month average is the average of the CPI-W index values for the twelve months ending one full month before the beginning of the Fiscal Year (September of previous year thru August of current year); the second is the average of the CPI-W index values for the twelve months preceding the twelve months included in calculating the first average.

5.20.3. General Agent Management Fee Rates in effect at the time a General Agent assignment is initially made will apply through the end of that specific General Agent assignment without adjustment.

5.21. Exhibit A – Exclusions from Management Fee:

The following expenses are not included in the Management Fee, but shall be fully credited by the United States.

Title Definition Salaries and wages of employees

This account shall include the compensation of all employees, other than officers and directors, who perform administrative and service functions directly related to performance of work under this Agreement.

Fringe benefits This account shall include the costs of all fringe benefits of the foregoing personnel, such as:

(1) vacation pay

(2) sick leave http://data.bls.gov/cgi-bin/surveymost?cw

(3) payroll taxes (employers portion)

(4) workman's compensation

(5) group insurance

(6) pension and retirement

(7) health and welfare

(8) profit sharing

(9) other costs must be justified by the General Agent and approved by the United States.

Communications expenses

This account shall include all communication expenses such as the cost of internet based email, text and/or voice, telephone, satellite, and postage directly related to performance of work under this Agreement.

Travel expenses This account shall include all travel expenses of officers and employees (but not directors) on business directly related to performance of work under this Agreement (Notes Per diem allowance, modes of class of travel, etc., shall not exceed on a daily basis the maximum per diem rates in effect at the time of travel as set forth in the Federal Travel Regulation (FTR) as referenced for contractor costs in FAR 31.205-46 Travel costs.

Freight brokerage This account shall include all commissions paid to brokers for procuring cargo if so instructed by the United States.

Agency fees and commissions

Agency fees, attendance fees and commissions for services performed by agents in all out ports for husbanding the Vessel, provided that appointment of such agent has been approved in advance by the United States. (Note: This account shall not include reimbursements to agents for those expenses incurred in the administration and supervision of port activities. Such expenses shall be charged to the appropriate port expense account.)

5.22. Task Orders (TO) will be used to fund specific performance under an assignment. Separate task orders shall be issued to segregate the authorization of Management Fees (see 5.11 thru 5.18) from Cost Reimbursable expenses not included in the Management Fee (see 5.21).

5.22.1. Task Orders authorizing Management Fees must be issued in writing and signed by the Contracting Officer. If circumstances arise where performance must start before the task order is issued, the Contracting Officer may verbally authorize performance (typically via email) with the understanding that a written task order will be issued as soon as possible confirming the verbal direction as of the start date of performance. The Management Fee task order will state the authorized period of performance (start and end dates), indicate the agreement Item Number for the type of management fee, the per diem rate of compensation, and the total amount authorized for services. Payment for authorized services cannot be approved prior to issuance of the written task order document.

5.22.2. Task Orders authorizing other expenses not included in the Management Fees are referred to as a cost reimbursable task order. Cost reimbursable task orders authorize performance of services normally described in an attached Statement of Work. The task order will state the authorized period of performance (start and end dates), indicate the applicable Agreement Item Number, and the total amount authorized for services. Payment for authorized services cannot be approved prior to issuance of the written task order document.

6. DISBURSEMENTS (OCT 2020)

6.1. General Agent Invoice Instructions

6.1.1. The U.S. Department of Transportation (DOT) utilizes the Delphi eInvoicing web portal for processing invoices. Access to Delphi eInvoicing web portal is granted with electronic authentication of credentials (name & valid email address) utilizing the GSA credentialing platform login.gov. General Agents are required to submit invoices via the Delphi eInvoicing web portal which is authenticated via www.login.gov.

6.1.2. General Agents must meet the following minimum requirements to submit invoices through the Delphi eInvoicing web-portal:

6.1.2.1. General Agents shall have electronic internet access to register in the U.S. General Services Administration’s (GSA) Login.gov and to the Delphi eInvoicing web portal.

6.1.2.2. The identity of system users will be verified prior to receiving access to the Delphi eInvoicing web-portal via registration with login.gov. Information required for Login.gov includes his/her email address, full name, phone number, and password.

6.1.2.3. Once notified by contracting office agency point of contact (POC), system users shall register with and create an account with GSA Login.gov. General Agent system users will provide his/her email address and receive an email back to confirm. System users will be required to create a password and input a telephone number and opt to receive either a personal call from Login.gov or text message with an authentication code.

6.1.2.4. Once the user is authenticated in Login.gov, he/she shall work with contracting office agency POC to request access to the Delphi eInvoicing web portal. The POC will complete a Delphi eInvoicing web portal User Access Request (UAR) to include the users full name, contact phone number, work e-mail address. Additionally, the agency POC will include the General Agent’s name and as applicable, purchase order number, contract number, and task order number (or supplier number) and agency doing business with to complete and electronically submit the UAR for processing.

6.1.2.5. Once the UAR is submitted, it will be electronically approved by the Access Control Officer (ACO) assigned to Operating Administration (OA) associated with the contract award or grant and then forwarded to the Delphi eInvoicing helpdesk to create the account. Once the account is created, an email will be generated to the user with instruction on accessing their Delphi eInvoicing web portal account. An e-mail will also be sent to the agency POC who initiated the UAR.

6.1.3. Click on the following link for instructions on establishing a login.gov account:

https://login.gov/help/get-started/overview/

6.1.4. Contents of a proper invoice must include the following:

6.1.4.1. Name and address of the contractor.

6.1.4.2. Invoice date and invoice number. (Date invoices as close as possible to the date of mailing or transmission.)

6.1.4.3. Contract number or other authorization for supplies delivered or services performed

(including order number and contract line-item number).

6.1.4.4. Description, quantity, unit of measure, unit price and extended price of supplies delivered, or services performed.

6.1.4.5. Shipping and payment terms (e.g., shipment number and date of shipment, discount for prompt payment terms). Bill of lading number and weight of shipment will be shown for shipments on Government bills of lading.

https://usdot-my.sharepoint.com/personal/glen_spears_ad_dot_gov/Documents/GAA/2020%20GAA%20Awards/693JF723G000005%20CML%20GAA/www.login.gov https://login.gov/help/get-started/overview/

6.1.4.6. Name and address of contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

6.1.4.7. Name (where practicable), title, phone number and mailing address of person to notify in the event of a defective invoice.

7. CLAIMS AND LIABILITY (OCT 2020)

7.1. THIRD PARTY TORT ACTIONS AND CONTRACT DISPUTES

It is the recognition and assumption of this Agreement, subject to the exceptions contained in paragraphs 7.1.5.1, 7.1.5.2, 7.1.5.3 and 7.1.5.4, below, that by operation of law the United States, either directly or through its ownership of the vessels involved, that the United States, not the General Agent that is subject to suit for all actions covered by this Article, for which the vessel, the United States, or the General Agent are liable, provided that the liability arose out of the General Agent’s performance of this Agreement and the General Agent was acting within the scope of this Agreement.

7.1.1. The General Agent is an agent of the United States under the Suits in Admiralty Act (SIAA), the Public Vessels Act, the Federal Tort Claims Act, and the Admiralty Extension Act for all third-party tort actions in admiralty and common law, to the extent the General Agent is acting within the scope of the assignment.

7.1.2. The General Agent is an agent of the United States for the purposes of contract law when acting as a disclosed agent for the United States. Therefore, when third-party contracts with the General Agent, acting within the scope of this Agreement, that party is in privity of contract with the United States and disputes under that contract are governed by the Contract Disputes Act (CDA).

As set forth in 4.1.16, the General Agent, when acting with the scope of its authority as General Agents, shall set forth that it’s acting as general agent for the United States in all its communications to such third-parties.

7.1.2.1.1. Under the CDA, the third-party contractor may pursue its rights under the contract directly against the United States. By operation of law, the General Agent should not be contractually liable for contracts where it contracts as a disclosed agent for a principal, the United States. For this reason, when contracting, the General Agent must disclose that it is acting as general agent for the United States, acting by and through MARAD.

7.1.2.1.2. The General Agent shall work with the MARAD to ensure that such claims are handled and resolved in accordance with the CDA and other applicable federal laws.

7.1.3. Admiralty actions covered by subparagraphs 7.1.1 and 7.1.2 above, should be brought exclusively against the United States. See e.g. the Suits in Admiralty Act (SIAA), 46 U.S.C.A. § 30901, et seq., which makes the United States the exclusive defendant for all admiralty cases relating to the activities of its agents.

7.1.4. The General Agent shall at all times act in a manner consistent with its role as agent for the United States. This includes, but is not limited to: clearly disclosing that it is an agent of the United States to all contractors; Contracting only in the its name as the General Agent and not a parent or subsidiary of the General Agent; using only forms, letterhead etc. that reference the General Agent; clearly identifying when employees are working for the General Agent.

7.1.5. Subject to paragraphs 7.1.5.1, 7.1.5.2, 7.1.5.3 and 7.1.5.4 below, the United States will seek to dismiss the General Agent from all actions covered by subparagraphs 7.1.1 and 7.1.2, above.

7.1.5.1. Where such dismissal is not possible, the United States will defend such suits at its own expense consistent with section 7.2 below.

7.1.5.2. Such defense will usually be provided, although not necessarily always, through the United States Department of Justice.

7.1.5.3. By entering into this agreement, the General Agent hereby agrees to accept the representation of the United States Department of Justice in such legal proceedings or such other legal representation as the United States shall provide and agrees to fully cooperate in the defense of such matters. See paragraph 7.1.5.4., below. The United States will have the sole discretion to determine whether to settle such suits and the United States will control the conduct of the litigation.

7.1.5.4. The General Agent may, at its own expense, retain legal counsel to work with the counsel provided by the United States in defending any such claim or suit.

7.2. THIRD PARTY ACTIONS NOT COVERED

7.2.1. Unless otherwise approved by the Contracting…