693JF724R000009 SOW _Oil Pollution Response and Drills_.pdf

SOW for Oil Pollution Response and Drills

1.0 General

2.0 Introduction

The Maritime Administration, U.S. Department of Transportation (MARAD) requires the services of a Spill Management Team (SMT) to manage the clean-up activity in the event of an Oil Spill from MARAD-owned vessels of the RRF, RRF-like vessels, Schoolships, and vessels for which MARAD has either title or custody, such as, but not necessarily limited to, vessels departing a MARAD National Defense Reserve Fleet (NDRF) site for a shipyard or ship recycling facility or Title XI vessels returned to MARAD that are located at a non-MARAD site at time of turnover to MARAD.

Section C. Statement of Work

C.1 OBJECTIVE

The Maritime Administration, U.S. Department of Transportation (MARAD) requires the Contractor to, as more fully detailed below, perform the following tasks: (i) prepare vessel response plans for each Vessel; (ii) prepare tactical response plans for Fleet Sites; (iii) inspect, audit, and test Vessels and National Defense Reserve Fleet (NDRF) Fleet locations for readiness; (iv) conduct up to six training sessions and drills per year for MARAD field personnel as requested by the Contracting Officer’s Representative (v) arrange and participate in tabletop oil spill response exercises; and (vi) provide the service of a Spill Management Team (SMT) to manage the clean-up activity in the event of an Oil Spill from a Vessel or a Fleet Site. Currently, the Vessels are non-tank vessels, but MARAD reserves the right to add tank vessels in the future. Most Vessels are not operating but are to be maintained in a status to be ready for expedited operation. Vessels are operated as required on missions or to test for readiness.

C.2 DEFINITIONS

2.1. “ACO” refers to Administrative Contracting Officer. The “ACO” is the contracting officer who is administering contracts.

2.2. ADCON” means administrative control, including the authority to take all necessary actions with respect to vessel activation, crewing, training, logistics support, equipping, maintenance, and repair of funded requirements to support vessel readiness.

2.3. “DOD” means Department of Defense.

2.4. “EPA” means Environmental Protection Agency.

2.5. “Federal Entities” means Federal agencies and their instrumentalities, including, but not limited to USCG, DOD, National Oceanic and Atmospheric Administration, and the Department of Interior and Federal Trustees for sanctuaries or otherwise.

2.6. “Fleet Site” or “Fleet Sites” means the NDRF fleet sites identified on Attachment J-2.

2.7. “FTR” means Federal Travel Regulations.

2.8. “Hazardous Substance” means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. § 5103).

2.9. “ICS/UCS” means Incident Command System/Unified Command System.

2.10. "NDRF” means the National Defense Reserve Fleet.

2.11. “NPREP” means the National Preparedness for Response Exercise Program.

2.12. “Oil” means liquid hydrocarbons regardless of specific gravity, of any kind or in any form, including, but not limited to, petroleum, fuel oil, crude oil, sludge, oil refuse, hydraulic oil, lube oil, and oil mixed with wastes other than dredged spoil.

2.13. “Oil Spill” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of Oil or any Hazardous Substance or a reasonable threat of a discharge of Oil or any Hazardous Substance from a Vessel, into or upon navigable waters, including geographically adjacent locations, either on land or water, including shoreline, that may be affected by the Oil Spill, anywhere in the world.

2.14. “OPA 90” means Oil Pollution Act of 1990, 33 U.S.C. § 2701 et. Seq.

2.15. “OPCON” means operational control.

2.16. “OSRO” means Oil Spill Removal Organizations.

2.17. “PCO” refers to Procuring contracting officer. If the same individual will serve as the contracting officer for the pre-award and post-award functions, then there is no distinction between PCO/ACO.

If the Contracting Officer will change then the terminology PCO/ACO may become applicable.

2.18. “SMT” means Spill Management Team.

2.19. “Tactical Response Plan” means the tactical response plan described in C.5.

2.20. “SOMO” means Ship Operations and Maintenance Officer.

2.21. “USCG” means United States Coast Guard.

2.22. “Vessel” or “Vessels” means MARAD-owned vessels of the NDRF. The Vessels are identified on Attachment J-1. MARAD may modify Attachment J-1 from time to time by adding or deleting Vessels.

2.23. “Vessel Response Plan” means the vessel response plan meeting the requirements set forth in

C.3 LEGAL STATUS OF MARAD, VESSELS, SHIP MANAGERS, AND GENERAL AGENTS

3.1. MARAD is an agency of the United States Government. Vessels owned by MARAD are required to be placed in the NDRF. 46 U.S.C. § 57101(a). NDRF vessels are public vessels of the United States.

See 46 U.S.C. § 57100(a). Public vessels are protected from suit by the principles of sovereign immunity that applies to property owned by the United States Government.

3.2. Any lawsuit against MARAD, its general agents, ship managers, and Vessels arising out of the operation of the Vessels is governed by the principles of sovereign immunity. Such lawsuits must be brought in conformity with statutory waivers of sovereign immunity, such as the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq., the Public Vessels Act, 46 U.S.C. § 31101 et seq., the Admiralty Extension Act, 46 U.S.C. §

30101, the Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-2680, and the Clarification Act, 50 U.S.C. § 4701, among others.

3.2.1 Under the Public Vessels Act and the Suits in Admiralty Act, MARAD’s ship managers and general agents are “agents” of the United States and exclusive jurisdiction for any legal actions in admiralty against such ship managers and general agents and their agents, servants, and employees is solely against the United States.

3.2.2 The Federal Tort Claims Act, the Admiralty Extension Act, and the Clarification Act, all require administrative claims be filed with MARAD before a lawsuit can be filed. See 46 C.F.R. Part 327; 46 C.F.R. Part 204.

3.2.3 The responsibility for deciding such claims is a sovereign function that will not be delegated by MARAD to the Contractor or an insurance provider. MARAD determines the validity of administrative claims.

3.3. Public vessels and the United States are not liable for their Oil Spills under OPA 90. Public vessels are not required to have USCG Certificates of Financial Responsibility Compliance. Neither the United States nor the Maritime Administration is a “responsible party” under OPA 90. Federal Entities cannot sue MARAD for any of their costs and damages, including those costs and damages arising out of Oil Spills.

However, it is MARAD’s policy to take commercially reasonable action to protect against Oil Spills and their consequences. MARAD complies with USCG requirements with respect to Vessel Response Plans.

3.4. All litigation against the United States acting through MARAD is required by law to be handled by the Department of Justice. Private counsel provided by an insurance provider will be acting as counsel for the United States and handling such litigation as monitored and approved by the Department of Justice. The Department of Justice will make the final decisions regarding the handling of such litigation.

3.5. Different parts of the United States may not sue each other. For example, the United States Coast Guard, which operates the Oil Pollution Insurance Fund, cannot sue MARAD for its clean-up costs or damages arising out of an oil spill from an NDRF vessel. However, MARAD has the responsibility to see that the United States Coast Guard is repaid for such costs.

C.4 VESSEL RESPONSE PLAN

4.1. On a firm-fixed price per Vessel basis, Contractor shall develop a Vessel Response Plan for each Vessel and shall comply with the requirements of this Section C.4.

4.2. Each Vessel Response Plan shall, at a minimum:

4.2.1 Satisfy the requirements of Regulation 37 of Annex I of the International Convention for the Prevention of Pollution, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); 33 CFR Part 155 – Oil or Hazardous Material Pollution Regulations for Vessels, Subparts D, F. G, and J; and 33 U.S.C. § 1321(j)(5)(D) (collectively, “Statutes and Regulations”). Although public vessels are not required to comply with OPA 90 regulations, the Vessel Response Plan shall comply with applicable environmental regulations to the maximum extent practicable.

4.2.2 Provide that the MARAD Qualified Individual shall be the SOMO or other individual designated by MARAD; and that in the event of an Oil Spill the SOMO shall notify the insurance provider(s) and shall have discretion to use his or her judgment to notify and engage the Contractor for SMT services.

4.2.3 Provide that MARAD has ADCON of a Vessel, and that MARAD shall be responsible for responding to an Oil Spill from such Vessel. The Vessel Response Plan shall address special military requirements while under Department of Defense OPCON, as provided by MARAD.

4.2.4 Include a process for reporting Oil Spills to the USCG National Response Center in compliance with USCG requirements and MARAD’s procedures attached as Attachment J-3.

4.2.5 Provide that the use of Lloyd’s Standard Form of Salvage Agreement when addressing salvage response is not authorized and shall reflect the use of Navy Supervisor of Salvage and Diving (SUPSALV) as the salvor for MARAD.

4.2.6 Provide that the use of dispersants, surface collecting agents, or biological additives shall require coordination with the proper federal authorities; and shall address such coordination process.

4.2.7 Include training requirements and exercises that are consistent with the NPREP.

4.2.8 Include responses to Oil Spills occurring in any geographical area around the world.

4.2.9 Reflect that in the event of an Oil Spill, the Contractor shall provide (a) an SMT that shall include individuals experienced in responses to Oil Spills, in sufficient numbers, needed to promptly address the Oil Spill and (b) an experienced liaison officer as SMT leader to work with the On-Scene USCG or EPA Coordinator, as applicable.

4.2.10 Recognize that different insurance providers and plans cover different vessels and the notice to such providers will differ depending on the Vessel. MARAD will provide Contractor with information regarding all existing insurance coverages with respect to the vessels. Presently, the Vessels are covered by three different insurance providers.

4.2.11 Identify the entities with which Contractor has existing arrangements for vessel response services.

4.3. Contractor shall submit each Vessel Response Plan to MARAD for its review and approval.

Contractor shall then submit each MARAD approved Vessel Response Plan to the required offices of the USCG and obtain approval from the USCG. Contractor must provide the COR with a copy of each Vessel Response Plan submission to the USCG and copies of all correspondence relating to the Vessel Response Plan, including the letters of approval.

4.4. Contractor shall coordinate with the USCG for an annual review of the Vessel Response Plans and shall update the Vessel Response Plans as required by the USCG and the Statutes and Regulations.

Contractor shall submit each updated Vessel Response Plan to MARAD for its review and approval. Contractor shall then submit each MARAD approved updated Vessel Response Plan to the required offices of the USCG and obtain approval from the USCG. Contractor must provide the Contracting Officer’s Representative (COR) with a copy of each updated Vessel Response Plan submission to the USCG and copies of all correspondence relating to the updated Vessel Response Plan, including the letters of approval.

4.5. Contractor shall maintain a publicly accessible website on which it shall upload all current Vessel Response Plans in effect and approval letters.

4.6. Contractor shall perform twice yearly updates on the Vessel Response Plans, at times determined by the COR.

4.7. MARAD may add or remove Vessels to or from this contract. Contractor shall be entitled to its firm fixed price for each Vessel added to Attachment J-1 after the award of this Contract. MARAD may remove Vessels from Attachment J-1 after the award of this Contract without incurring any additional charges from Contractor.

C.5 TACTICAL RESPONSE PLAN

5.1. When requested by MARAD, the Contractor shall, on a firm-fixed priced per Fleet Site basis, visit a Fleet Site and develop a Tactical Response Plan for such Fleet Site. Travel to each Fleet Site shall not be a reimbursable expense and shall be included in the Contractor’s firm-fixed price.

5.2. Each Tactical Response Plan shall include a plan to respond to Oil Spills at a Fleet Site, landside and in the water, including without limitation procedures, notifications, resources, timing, personnel, and Fleet Site conditions.

5.3. At MARAD’s request, Contractor shall submit a cost proposal to review and update a Tactical Response Plan. Contractor shall be solely responsible for its costs incurred in performing any review and/or update to any Tactical Response Plan prior to receiving the written approval of the Contracting Officer to proceed with any such review and/or update.

C.6 INSPECTION, AUDIT, AND EXERCISES

6.1. When requested by MARAD, the Contractor shall, on a firm-fixed price per Fleet Site visit, conduct equipment exercises, Oil Spill readiness auditing, and inspections at each Fleet Site in conjunction with USCG and State Environmental authorities. The firm fixed price assumes one individual working up to six hours per day with travel expenses reimbursed in accordance with Section 6.2.

6.2. Travel to a Fleet Site from a location in the United States shall be in accordance with the FTR and be reimbursed by MARAD. Contractor shall provide MARAD an estimate of the travel costs in advance.

Attending and executing inspections, audits, and exercises shall occur only once MARAD has approved and obligated (provided funds in the budgeting process), in advance, the costs of attending and executing such inspection, audit, and exercise including travel costs.

C.7 TABLETOP EXERCISES

7.1. When requested by MARAD, the Contractor shall, on a firm fixed price per exercise basis, carry out tabletop exercises (TTX) at Area Division RRF and outport locations (attached hereto as Attachment J-4;

such locations to be updated from time to time), the three NDRF Fleet Sites (attached hereto as Attachment J-3); and MARAD Headquarters. At the direction of MARAD and with Contractor concurrence, two or more of these exercises may be combined, when circumstances warrant and it involves specific MARAD organization(s) that would normally be involved in a scheduled individual TTX, where the combined exercise is being held. TTX events shall be conducted utilizing the most recent NPREP guidelines. The firm fixed price assumes one individual working up to six hours per day with travel expenses reimbursed in accordance with Section 7.2

7.2. Travel to a TTX from a location in the United States shall be in accordance with the FTR and reimbursed by MARAD. Contractor shall provide MARAD an estimate of the costs of carrying out each tabletop exercise including travel costs in advance. Attending and executing a TTX shall occur only once MARAD has approved and obligated (provided funds in the budgeting process), in advance, the costs of attending and executing such TTX including travel costs.

C.8 SPILL MANAGEMENT TEAM

8.1. When requested by MARAD, the Contractor shall provide, on a cost-reimbursable basis, the services of an SMT which shall be responsible for organizing, managing, and completing the containment, clean-up, removal and disposal activities for an Oil Spill occurring anywhere in the world.

8.1.1 The Contractor shall have in place or be able to arrange, without delay, contracts with subcontractors to provide the required services as part of its SMT process, including but not limited to, containment, clean up, removal and disposal services, public relations services, legal services, OSRO services, and cost accounting for all participating personnel and equipment utilized. As part of its proposal, Contractor should provide MARAD with lists of the entities with which Contractor has existing arrangements for vessel response services. In lieu of arranging contracts with subcontractors, Contractor may utilize its own employees to provides services as part of the SMT responding to Oil Spills. If that is how Contractor proposes to address an Oil Spill, Contractor’s proposal should reflect that approach. The SMT shall be able to work on a worldwide basis and be available to called up into at least initial action within two hours’ notice by MARAD in the event of an Oil Spill. The central purpose of the SMT shall be managing MARAD's Vessel Response Plans and addressing Oil Spills. It is recognized that in the event of an Oil Spill, time is of the essence in responding.

8.1.2 Subcontracted services shall be performed at firm fixed price amounts, wherever commercially practicable. Such services shall be obtained commercially by the Contractor to provide the best value to the Government. Where the subcontracting services cannot be performed at firm fixed price amounts (e.g., where the quantity or duration of the services cannot be known in advance or the firm fixed price methodology for the service sought), the Contractor shall use other authorized or commercially acceptable contractual vehicles such as "time and materials" contracts or "fixed rate" contracts.

8.1.3 The Contractor shall provide ICS/UCS staffing consistent with the requirements of the situation to which the Contractor is responding. Those personnel filling the key positions in the ICS/UCS, namely the On-Scene-Commander, Operations Section Chief, Planning Section Chief, Logistics Section Chief, Financial Administration Section Chief, Information Officer, Safety Officer and Legal Representative must have explicit and substantial experience in their respective ICS roles.

8.1.4 The leader of the SMT shall coordinate the Oil Spill containment, clean up, removal and disposal with the On-Scene USCG, EPA or other US Government coordinator, as applicable.

8.1.5 The Contractor shall coordinate the Oil Spill containment, clean up, removal and disposal with MARAD’s insurance providers, SOMO and Fleet Site superintendents, MARAD ship managers and general agents, other government agencies, attorneys, contractors, adjusters, and other parties, as necessary.

8.1.6 Contractor shall provide MARAD with the estimated costs of the SMT for the Oil Spill response, as well as the names, qualifications, and hourly rates for such individuals who will be on the SMT and the initial duration for which the SMT is estimated to be needed. All SMT travel shall be in accordance the FTR, and such travel costs shall be included in Contractor’s cost estimates. SMT costs shall be reimbursable, but only to the extent such costs are preapproved or ratified by MARAD and MARAD has obligated funds for such costs. An exception to the foregoing rule of the need for MARAD approval and funds obligation before incurring SMT costs shall exist where MARAD’s oil pollution insurance provider agrees to pay such costs. In which case, the funds shall come from the insurance provider and not MARAD unless MARAD’s contracting officer agrees otherwise. Throughout the Oil Spill response by the SMT, Contractor shall continuously provide MARAD estimates of SMT costs incurred.

8.1.7 SMT Legal Support.

8.1.7.1. Private Counsel. The Contractor shall provide MARAD the name of an independent third-party attorney or law firm to represent MARAD's interest in the event of an Oil Spill. Such counsel must be available to work with the On-Scene-Commander, MARAD, and the SMT during the clean-up of an Oil Spill. Such counsel must be experienced in Oil Spill litigation.

8.1.7.2. Department of Justice and Litigation. In the event of litigation, litigation against MARAD and its agents, this litigation is against the United States.

The conduct of such litigation against the United States is the responsibility of the Department of Justice.

8.2. The USCG is charged with monitoring Oil Spill cleanups within U.S. navigable waterways and is empowered by law to take over any cleanup operation they judge to be inadequate, and incur whatever costs are necessary to effect cleanup. MARAD will be administratively responsible for the total cost of a USCG managed cleanup. If, in the judgement of MARAD authorized responsible personnel, a situation of this nature is developing or has developed, MARAD reserves the right to relieve or terminate the Contractor, including subcontractors, for non- performance, or direct the Contractor or subcontractor to cease work; provided, however, that nothing herein shall limit, restrict, or otherwise affect MARAD’s rights under other clauses contained in or applicable to the contract.

8.3. In the event that a discharge occurs from a Vessel covered under this contract that requires SMT response outside of U.S. Coast Guard jurisdiction, and the empowered governmental body deems the cleanup operation to be inadequate, with U.S. Government concurrence, then MARAD reserves the right to relieve or terminate the Contractor, including subcontractors, for non- performance, or direct the Contractor or subcontractor to cease work; provided, however, that nothing herein shall limit, restrict, or otherwise affect MARAD’s rights under other clauses contained in or applicable to the contract

C.9 TRAINING SESSIONS AND DRILLS

1.1. When requested by MARAD, the Contractor shall, on a firm fixed price per session basis, carry out annual training or drill sessions at the three Area Divisions, RRF outport locations, three Fleet Sites or MARAD Headquarters The firm fixed price assumes 1 individual working up to 6 hours per day with travel expenses reimbursed in accordance with Section 9.2.

1.2. Travel to a training or drill location the United States shall be in accordance with the Federal Travel Regulations and reimbursed by MARAD. Contractor shall provide MARAD an estimate of the travel costs in advance. The training/drill shall occur only once MARAD has approved and obligated (provided funds in the budgeting process), in advance, the costs of attending and executing such training/drill including travel costs.

C.10 NOTIFICATION PROCEDURES

10.1. MARAD will provide verbal notification through the SOMO or designee to the Contractor of any Oil Spill occurring regardless of the dollar amount of the incident.

10.2. MARAD, initially through the SOMO, shall verbally notify Contractor if it requires SMT services for any Oil Spill. The Contractor is authorized to act upon receipt of such verbal notification that MARAD requires SMT services. MARAD will follow up such verbal notification with written notification from the Contracting Officer via facsimile, electronic mail, or other electronic means of communication, within 24 hours of the Oil Spill occurring.

10.3. It is the responsibility of MARAD to notify the insurance providers when an Oil Spill occurs, however, Contractor shall be required to provide regular updates and reports on the Oil Spill to the insurance providers.

C.11 CONTRACTOR EXPERTISE AND TURNOVER

11.1. The Contractor is considered to be the subject matter expert on oil spill response and readiness.

MARAD is relying on the expertise in preparing for and responding to Oil Spills.

11.2. MARAD requires a seamless continuity of operations with minimum disruption. Both incoming and outgoing contractors, if they are different entities, are expected to be prepared to cooperate fully with each other and MARAD to ensure seamless continuity of operations. The Contractor shall prepare and submit to the COR an itemized turnover procedure and schedule, including TTX scenarios, at least fourteen (14) days prior to the expiration of the contract.

11.3. A turnover briefing between the incumbent contractor, incoming contractor, and MARAD, shall be conducted within fourteen (14) days after contract award, at MARAD Headquarters.

C.12 SUPPLEMENTAL GROWTH (LABOR, MATERIALS, SUBCONTRACTORS)

12.1. It is the intent of the parties for the Contractor to provide additional labor (contractor and/or subcontractor labor) and materials, if authorized, to address emergent work which the government deems necessary for MARAD to fulfill its responsibilities with respect to the prevention, preparation, training, exercises, and responses of, to, and for Oil Spills and Oil Spill cleanup. This emergent work may or may not be directly related to the work listed above.

12.2. The Contractor shall provide all labor, materials, equipment, and services to accomplish any emergent work identified and ordered by MARAD.

12.2.1 These emergent requirements shall be identified by the Contracting Officer (CO) and communicated to the Contractor. The CO may issue a Change Order to the Contractor to perform the emergent work. The Contractor shall be entitled to additional compensation provided the requirements of any applicable contract clause providing for additional Contractor compensation are satisfied.

12.2.2 Supplemental Material and Subcontractor Services: Supplemental materials are materials procured and provided by the Contractor. Subcontractor Services include both subcontractor labor and materials provided by subcontractors. All costs for supplemental materials and supplemental subcontracted services shall be a pass-through cost without any increase by the Contractor. (NOTE: Labor which the Contractor provides, using their own personnel, to procure and deliver supplemental materials aboard the ship or in support of subcontracted services, is considered Supplemental Labor). All material and supplemental subcontracted labor/services shall be supported by hard copies of vendor quotations, paid invoices and/or receipts, if requested by the COR.

Section C. Statement of Work