Providencia QandA.pdf

72051423R00004 Q+A Providencia Island Solar Power Plant

Providencia Island Solar Power Plant Project

RFP 72051423R00004

Responses to Questions

A. Technical-Related:

1. Does this project have the Consulta Previa and approval of the Raizal community?

The Ministry of Mines and Energy (MME) consulted with the Ministry of the Interior (MOI) on this. MOI informed that a Consulta Previa (CP) was not needed as this is a response to the hurricane disaster and the battery is an add-on to the existing energy system.

2. Will the BESS coupling transformers TRF2 and TRF3 be provided by Ecopetrol?

Correct, coupling transformers TRF2 and TRF3 will be provided by ECOPETROL.

3. Attachment J.4, Technical Specifications states that Transformers TRF2 and TRF3 have a YD connection type.

a. Is it possible to define the connection type during implementation?

The connection type is DY.

b. Otherwise, would USAID consider additional Transformers with connection DY?

The connection type is DY.

4. Are inverters modules limited to 250kW only or are 1500kVA inverters also acceptable?

Yes, the maximum is 250kW and Table 2 in Attachment J.4 has been updated to reflect this.

1500kVA inverters are not acceptable.

5. Even when local attention can be provided within 24 hours, the availability of spare parts cannot be guaranteed; is MME willing to purchase recommended operating spare parts?

This RFP does not include the purchase of spare parts. It should be noted that the MME is the owner of the plant, but operation and maintenance is contracted to Ecopetrol, a local distributor utility. The distributor is required by its contract with the MME to ensure the long-term sustainable operation of the project. They have not at this point committed to purchasing a stock of spare parts.

6. Commercial 20' container dimensions are approximately 7' 9" x 20'. Can we supply a skid but 20’ length but 10' or 8' width instead of 7' 9"?

The key restriction on the size of the skid is the length of 20’. A width up to 10’ is acceptable.

7. Can USAID confirm if a skid-based solution with 1490 kWh (4 CATL Battery racks) of battery capacity per skid is acceptable?

Providencia Island Solar Power Plant

Yes, as long as each rack or independent module has a maximum capacity of 250kWh each, mounting several on a skid together is acceptable ensuring that the total capacity per skid is a maximum of 600kWh, and maximum size of the skid is 20’ long and maximum 10’ wide.

This has been updated in Table 2 of Attachment J.4 of the RFP.

8. Attachment J.4, Technical Specifications states, “Each rack or independent module must have a capacity equal to or less than 400 (kilowatt hour) kWh.” and “Separate skids, shelters, or enclosures shall comply with NFPA 855 in 4.4.3.7.2 and 7.10.5, requiring compliance with the following:

a) Maximum power 600 kWh per container or skid

b) 50 kWh maximum capacity cabinet

c) 3-foot cabinet separation/spacing

Can USAID please elaborate more on the difference between these requirements? With the suggested specifications, it is not possible to reach the “Capacity” and “Modularity” on table 2 (max 3 Containers for 2.5 MWh.)

See the response to question 7, above.

9. Regarding the characteristics of modularity, the RFP states solutions must be containerized in 20 ft. containers.

a. Must the containers have a number of battery racks and PCS inside or only contain the battery racks?

The containers can include the equipment that provides the technical solution that the supplier deems most appropriate for its design and functionality, as long as the specifications included in the answer to question 7 are complied with. Please see J.7.16

- BESS Shelter Location for additional context.

b. Is it possible to offer non-containerized solutions that have a higher degree of protection and that each rack has its own air conditioning system? (Reference J.4).

We will not accept non-containerized solutions.

10. Regarding the 2 containers referenced in J.7.2, should each container have 1250kW or 250kW in a 20 ft container as is referenced in J.4.

See the response to question 7.

11. Please clarify what 4-week downtime means under Section J.4.III.b Table 2?

It is expected that the equipment can be offline for up to 4 weeks without suffering any problems or degradation, per Attachment J.4, Section III.b.

Providencia Island Solar Power Plant

12. Is there any specific RETIE for BESS that needs to be followed?

The RETIE can be found on the MME webpage at this link. If the RETIE does not cover any particular equipment being offered by the supplier, international standards and certification are acceptable.

13. In reference to Section J.3, when USAID imports and nationalizes the equipment, it is possible that this entity can homologate the RETIE certificate by means of the international certificates of the equipment, since it is a certificate granted only in your country and we do not have a physical location to carry out this process?

USAID will not carry out the service of homologation. Each supplier is responsible for ensuring that their equipment conforms to Colombia's RETIE. The RETIE can be found in the MME webpage at this link. If the RETIE does not cover any particular equipment being offered by the supplier, international standards and certification are acceptable.

14. Are there any restrictions to the vendor or other restrictions in the importation and nationalization of the equipment? (Reference J.3).

Attachment J.3 refers to roles and responsibilities of the parties involved in the importation and nationalization of the equipment. Standard international shipping and importation guidelines should be respected. Shipping companies must have clarity on the rules and regs that each destination country has in order to carry out their business.

15. Will the Providencia solar substation provide auxiliary power for BESS? They are needed for the black start function, please clarify.

In Attachment J.4, Table 2, under “Functions”, the RFP requires that the BESS system have its own black start capability from its own systems. It should be an autonomous system capable of black start capability on its own.

16. Please confirm the duration of support required for black start functionality.

Per Attachment J.4, Table 2, one hour.

17. Would USAID accept a 690Vac voltage at inverter terminals?

No, 480V is required per Attachment J.4, Section III.c.

18. This Offeror’s maximum wind rating for Inverter units is 140 miles/hr and for CATL battery units is 150 miles/hr. For protection against higher speed winds, please confirm if additional structures will need to be built around the BESS system.

The BESS provider must ensure that the equipment and containers they provide are built to withstand winds as indicated in Section C.2 of the RFP: up to 250km/hr.

https://www.sic.gov.co/node/4042 https://www.sic.gov.co/node/4042

Providencia Island Solar Power Plant

19. Kindly provide the power factor of the microgrid.

The power factor of the microgrid is 0.9. Please see Attachment J.7.14 - Detailed layout of components in the photovoltaic plant ECP-MCE-ECC21007-ID-01-ELE-ET-101.

20. Kindly confirm the interconnection terminal point to be considered for the BESS system.

The interconnection terminal point is at the output of the inverters of the BESS. This is indicated in graphic EPC-MCE-ECC21007-ID-01-INS-PL-48-0-01, Attachment J.7.1.

21. Are the MV switchgear and BESS Synchronizer within the scope of this Award? Will the Offeror be required to supply these?

The switchgear is provided by the solar plant. The BESS Synchronizer must be provided by the BESS supplier.

22. Attachment J.4, Technical Specifications states the Deep of Discharge (DOD) has a requested value of 80%. Please clarify if this DOD applies over the 2.5 MWH at POC (which implies a total of 3.12 MWh storage at POC) or the 2.5 MWH at POC includes the DOD (which implies a total of 2 MWh storage at POC).

2.5 MWH at POC including the DOD (which implies a total of 2 MWh storage at POC).

23. Please clarify if the 80% DOD is mandatory because our solution is capable of managing up to a 95% of DOD without any impact on the system performance.

Suppliers can provide solutions that exceed the 80% DOD if they comply with all other specifications.

24. Per Attachment J.4, Technical Specifications, could USAID confirm that both factory acceptance test (FAT) and tests after installation should be done at the installation site?

It is essential that FAT testing of the equipment be carried out in the factory/assembly plant before shipping, and that the test results demonstrate that all the equipment is in perfect working order when it is ready to be packed and leaves the plant. These test results must be sent to USAID before shipping as indicated in the RFP. The site acceptance tests (SAT) must be done at the installation site on Providencia Island, in the presence of the EPC and the electrical utility SOPESA. Section J.4 Table 3 on page 27 specifies the testing rigor required.

25. Per Attachment J.4, Technical Specifications, APPLICABLE STANDARDS FOR SOLAR PROJECT COMPONENTS., 1. IEC 62933 Electrical energy storage (EES) systems, is the UL-9540 standard acceptable as an alternative to IEC 62933?

Providencia Island Solar Power Plant

IEC 62933 Electrical energy storage (EES) systems is the applicable standard as stated in Section J.4. of the RFP. UL-9540 is not a substitute for IEC 62933. UL-9540 is required for other uses in this RFP.

26. Attachment J.4, Technical Specifications, SCOPE OF SERVICE, states, “There is flexibility on the number of inverter modules, as long as they do not exceed 250 kW each.” Is this applicable to the energy storage converters and does it mean that only accept string converters will be accepted?

The energy storage converters must not exceed 250kW each. Only string converters will be accepted. This has been updated in Attachment J.4 to reflect, “must have a capacity equal to or less than 250 kWh (kilowatt hour).”

27. Per Sections E.2 and F.3 of the RFP, the final delivery of equipment and products will be in Cartagena, Colombia while the training of relevant individuals on the use of the equipment prior to installation will be carried out in Providencia, Colombia. How can it be guaranteed that the product will be stored and delivered in conditions that will protect the integrity of the items? Under what conditions will the equipment be stored and for how long?

All the testing of the equipment will be carried out in the factory/assembly plant and the test results must demonstrate that all the equipment will be in perfect working order when it is ready to be packed and leave the plant. These test results must be sent to USAID before shipping as indicated in the RFP. USAID and MME will receive the equipment and ensure that it has not been visibly damaged during transport to Cartagena. Ecopetrol has regular cargo shipments to Providencia from Cartagena where they have major refining and port facilities. Ecopetrol and MME will take possession of the BESS in Cartagena and will assume responsibility for safe storage and transport to Providencia Island, where it will be installed and tested.

28. Will assembly supervision be included in the terms of this contract?

Yes. Assembly supervision by the offeror will be required on site. Attachment J.4. Section VIII, “TRAINING”, has been updated as, “SUPERVISION, SUPPORT, AND TRAINING”, and its contents have been updated to reflect as follows: “The Offeror will provide qualified representative(s) who will be sent to the island to supervise the assembly process of the BESS system and its integration to the solar plant, supervise the commissioning of the BESS system, and carry out on-site SAT testing. The representative(s) will provide training to the team that will operate the power plant and the BESS. Three one-week visits by the supplier will be required: the first during the BESS assembly process to supervise the assembly; the second during commissioning and SAT testing of the BESS system; and a third to carry out

Providencia Island Solar Power Plant training of the operator’s team once the system is functioning.” Please see Attachment J.7.14 - Detailed layout of components in the photovoltaic plant ECP-MCE-ECC21007-ID-01-

ELE-ET-101.

29. At the time of assembly and installation, will there be any type of supervision or support?

See the answer to question 28.

30. Attachment J.3 – Roles and Responsibilities, states “Ship BESS system from manufacturing location to Cartagena” falls under the responsibility of the BESS system provider. Do the Incoterms - 2020 apply?

Yes, the supplier will cover costs of shipping, insurance, freight and delivery of the freight to port in Cartagena, Colombia, and USAID will cover the costs of the customs agent and storage in Cartagena. The incoterm to be used is FOB (free on board).

31. Please confirm if the incoterm is CIF or if there is a different incoterm recommended.

(Reference J.4).

Please see response to question 30.

32. Regarding Section C.3 Specifications - WARRANTY:

a. Please confirm that the Contractor may repair or replace defective Products as needed.

Confirmed.

b. Please confirm that the Contractor must only repair or replace defective Products, if returned to the Contractor within the warranty period, and re-perform defective Services if notified to the Contractor during the warranty period.

Contractor must repair or replace defective products as soon as possible during the warranty period, as requested by the operator. Returns of defective equipment will occur after the new equipment is received.

c. Please confirm repaired or replaced Products are warranted for the remainder of the original warranty period or 90 days (for Products), whichever is longer.

Repaired or replaced Products will be warranted for the remainder of the original warranty period or 90 days (for Products), whichever is longer.

d. Please confirm the Contractor is not, and will not be, liable for defects attributable to: (a) noncompliance with Contractor’s instructions, (b) unauthorized alterations or repairs, (c) accident, contamination, abuse, or negligence, (d) damage cause by improper storage or not following the Contractor’s instructions for maintenance and storage or (e) damage caused by failure of any item or service not supplied by Contractor.

Providencia Island Solar Power Plant

The Contractor will not be liable for defects attributable to (a) noncompliance with Contractor’s written instructions; (b) unauthorized alterations or repairs; (c) accident, contamination, abuse, or negligence; (d) damage caused by improper storage or not following the Contractor’s written instructions for maintenance and storage; or (e) damage caused by failure of any item or service not supplied by Contractor.

e. Please confirm warranties in this section are exclusive and in lieu of all other warranties, whether written, express, implied, statutory or otherwise, including without limitation, implied warranties of merchantability, non-infringement, and fitness for particular purpose.

USAID cannot commit to this without more information.

f. Please confirm the remedies in this section are Client’s only remedies for breach of warranty.

The remedy will depend on the provided warranty and the breach of warranty.

33. Regarding the issue of module flexibility and the fact that they do not exceed 250 kW per PCS, currently there are larger modular PCS systems, 500 kW. These are made up of modules that provide that rated capacity; however, when there is a failure in one module, the others can continue to operate. We understand that your requirement is for 250 kW systems, but commenting on this point, is it possible to offer higher capacity equipment so as not to restrict the number of suppliers of quality, flexible equipment that can make a more robust response?

(Reference J.4) This procurement limits modules to 250kW or less.

34. Regarding Section J.4.III.b.3, please clarify if spare parts must be delivered in 3 days. The ability to comply with this will depend a lot on the availability of the spare part. What would happen if a device that is not in the spare part list and can be covered by the warranty takes longer than the time you establish? How much time do you contemplate to replace the part and then put the equipment back into operation?

The three-day timeframe may begin once a part is back in stock if all attempts have been made to find a suitable replacement from other suppliers.

35. Is it possible to integrate a pre-existing SCADA with a LTSA?

It may be possible, but there is not enough information in this question to answer to confirm this.

Providencia Island Solar Power Plant

36. Attachment J.7.9 includes a list of variables required for the control devices (PCS, BMS, HVAC, FSS, Sensors, etc). Is there a standard or is it in the scope of the supplier?

The standards that are required have been defined in Section J.4.II.a.4 and Attachment J.4.II.b. If the question refers to the types of signals that should be available to be processed, no standard is imposed, and the supplier is free to define the standards for their management. Please see Attachment J.7.15 - Architecture of control and communications systems for additional context.

37. Please provide a higher quality image for Attachment J.7.1.

This is provided in the amended RFP with the responses to the questions.

38. Please confirm the Contractor has the right to substitute key components as long as the function of these alternate supplies are equivalent to the components originally quoted or installed in the system.

As long as the substituted components comply with the technical specifications and standards required by the RFP, and the functionality of the substituted components is equal to or better than to the originals, then substitution is acceptable.

B. Procurement-Related:

39. Is the selection committee for this project made up of US Aid professionals or is it only MME and Ecopetrol?

The Selection Committee will not include members of MME or Ecopetrol.

40. What is the selection criteria for this procurement?

Proposals will be evaluated consistent with Section M of the solicitation.

41. Can US or Canadian firms participate in this project even if they do not have an office/entity in Colombia?

Offerors from the US, Colombia, and other developing countries other than advanced developing countries are invited to put forward a proposal and are not required to have a physical presence in Colombia. Developed countries including Canada are not eligible to participate based on Geographic Code 937.

42. Is this process open for non-US-based companies?

Yes, non-US-based companies are eligible to submit a proposal following the instructions in L and criteria in M if they fall within the geographic code found at ADS 310.3.1.1(1).

Providencia Island Solar Power Plant

43. Which countries other than the USA may participate in the subject solicitation process?

Per ADS 310.5.2, in order to be eligible for USAID financing, goods and services for USAID programs must comply with the requirement of 22 CFR 228, Rules on Source and Nationality for Commodities and Services Financed by the Agency for International Development.

Offerors must be compliant with the RFP.

44. Is this open only to USA companies?

No, please see response to question 42 and 43.

45. Please indicate if there are any countries which are banned?

46. Are there any restrictions on the type of company that can apply?

47. Can a Colombian company apply?

Yes, Colombian companies are welcome to submit a proposal.

48. Are there any specific requirements regarding the financial condition of the company?

This will be a firm-fixed price contract and pre-contract award analysis will be done accordingly to determine if the organization is responsible. Offerors are reminded that they must comply with the instructions as stated in L to be considered responsive.

49. Do you have a technical visit planned to Providencia?

The USAID technical team will conduct visits to the Providencia site as needed.

50. Will the apparent winner need to sign a non-disclosure agreement (NDA) with USAID upon award?

An NDA will not be required for this award.

51. Section F.3 states that the final delivery of equipment will be Cartagena, Colombia while Section C.4 states, the “contractor is responsible for shipping the batteries to the final delivery destination,” is that destination Providencia Island or Cartagena Port?

The Contractor is responsible for shipping the batteries to the Port in Cartagena. The transportation from Cartagena to Providencia will be provided by Ecopetrol.

52. Based on all documentation needed, the Q&A process, and complexity of the proposal, is there a chance to concede a bid submission date extension of at least 5 weeks after 21-Apr-2023?

Providencia Island Solar Power Plant

USAID has extended the proposal submission date to May 12, 2023.

53. Is it possible to have a time extension until 05/05/2023?

See response to question 51.

54. Could USAID please give an extension on the deadline to present proposals?

See response to question 51.

55. Based on logistics, commodities, and raw materials market price variations, would USAID consider including a price adjustment clause?

The current global financial state was taken into consideration in the design of this procurement. No adjustments to the total estimated cost will be made at this point.

56. Based on current hyperinflation trending, can the procurement budget be adjusted over 2.5M

USD?

The current global financial state was taken into consideration in the design of this procurement. No adjustments to the total estimated cost will be made at this point.

57. Per Section F.1., “The estimated period of performance for this contract is six (6) months.”

When does the six-month count start?

The period of performance for this award will be effective upon countersignature by the Contracting Officer.

58. Per Section H9., Page 24 of the subject RFP, PROHIBITION ON TECHNOLOGY DEVELOPED BY THE PEOPLE´S REPUBLIC OF CHINA, “The Contractor is hereby reminded that Section 7043(c)(3) of the 2021 Appropriations Act prohibits the use of foreign assistance funding for any project or activity that directly supports or promotes the use of technology developed by the People’s Republic of China. It is the Contractor’s responsibility to ensure that all goods supplied under the contract will be free from any such technology.” Based on market research, it is not possible to deliver a final product without the presence of Chinese inputs and materials. 94% of LFP (Lithium Ferrum Phosphate) batteries are only available from world class suppliers in factories located in the People's Republic of China. As a result, is it possible to accept batteries from the People's Republic of China?

The legal prohibition is on technology developed by the PRC, which cannot be waived.

59. Will payment be provided upon acceptance and approval? Will there be multiple payments or a single payment?

Providencia Island Solar Power Plant

Payment will be provided in accordance with the Prompt Payment Act (31 USC 3903) and 5 CFR 1315 following the acceptance and approval of the items. The number of payments will be determined upon award.

60. Would USAID consider an advance payment, supported by a letter of guarantee valid until delivery and acceptance?

This procurement does not allow for an advance payment.

61. Regarding Section G.7(i) INVOICES,

a. Please confirm the Client will pay no later than 30 calendar days from the date of the invoice.

Payment is made after acceptance of the good and/or service is made by the appropriate U.S.G representative. The details of this system are found in the solicitation and the relevant clauses. The inspection and acceptance of the items will take place in Cartagena. The training and related payment will be provided pursuant to the terms of the final contract which require acceptance of the training based on satisfactory delivery.

b. Please confirm payment will be made in U.S. currency.

Yes, payments will be made in US Dollars.

c. Please confirm if Contractor may, from time to time and in its sole discretion, issue surcharges on new and existing Orders and Agreements in order to mitigate and/or recover increased operating costs arising from or related to, without limitation: (a) foreign currency exchange variation; (b) increased cost of third-party content, labor and materials; (c) impact of duties, tariffs, and other government actions; and (d) any other circumstances that increase the Contractor’s costs, including, without limitation, increases in freight, labor, material or component costs, and increased costs due to inflation (collectively, “Economic Surcharges”).

This will be a firm fixed price contract. Only authorized costs included in the contract will be allowable.

d. Please confirm Contractor will invoice USAID, through a revised or separate invoice, and that USAID agrees to pay for the Economic Surcharges pursuant to the standard payment terms in this Agreement. If a dispute arises with respect to Economic Surcharges, and that dispute remains open for more than fifteen (15) days, Contractor may, in its sole discretion, withhold performance and future shipments or combine any other rights and remedies as may be provided under this Agreement or permitted by law until the dispute is resolved.

This will be a firm fixed price contract. No amount outside the final fixed price will be allowable, including surcharges.

Providencia Island Solar Power Plant

e. Please confirm the Contractor has a right to upward adjust price year-over-year for inflation (tied to relevant commodities index) and cost escalation of key supplies. Please confirm the Contractor gets relief on price and schedule to the extent of spikes in the cost or shortages in supply of key system components and related raw materials.

Proposals should take into account the cost of inflation, but a firm fixed price contract does not allow for payment above the final fixed price listed in the terms of the contract. Offerors must ensure they provide a budget and final price that allows them to fully perform and deliver under the contract. They would be in violation of the terms of the contract if not.

f. Please confirm that, if the Client is delinquent in payment to the Contractor, the Contractor may at its option: (a) withhold performance until all delinquent amounts and late charges, if any, are paid; (b) repossess Products or software for which payment has not been made; (c) assess late charges on delinquent amounts at the lower of 1.5% per month or the maximum rate permitted by law, for each full or partial month; (d) recover all costs of collection, including but not limited to reasonable attorneys' fees; (e) require Buyer to provide Contractor with a payment improvement plan on terms and conditions satisfactory to Contractor, as signed and assured by Buyer’s senior finance officer that may include, but not limited to, provision of additional security (e.g., bank guarantee, stand by Letter of Credit, corporate guarantee, etc.); and (f) combine any of the above rights and remedies as may be permitted by applicable law.

No terms outside those included in the final contract are applicable. If an offeror does not agree to the terms of the contract, then USAID will select the next best offer in accordance with the selection criteria found in Section M.

g. Please confirm these remedies are in addition to those available at law or in equity.

No terms outside those included in the final contract are applicable. If an offeror does not agree to the terms of the contract, then USAID will select the next best offer in accordance with the selection criteria found in Section M.

62. Will the acceptance and approval procedure and subsequent payment be carried out upon receipt of the equipment in Cartagena, or, after installation and team training on Providencia?

Payment is made after acceptance of the good and/or service is made by the appropriate U.S.G representative. The details of this system are found in the solicitation and the relevant clauses. The inspection and acceptance of the items will take place in Cartagena. The training and related payment will be provided pursuant to the terms of the final contract which require acceptance of the training based on satisfactory delivery.

Providencia Island Solar Power Plant

63. Regarding Section E.2 INSPECTION AND ACCEPTANCE, “Or at any other location where the services are performed and reports and deliverables or outputs are produced or submitted.”

a. Please confirm there are not going to be further modification on the delivery place, without prior notice to the Contractor.

The Contractor will be notified in advance of any modifications to the award including the delivery location.

b. Please confirm, in case of modification, the Contractor may extend delivery time equal to be able to adjust such delivery and shall be entitled to receive compensation for reasonable costs incurred by the Contractor resulting from such modification.

In the case of a modification to the change in delivery location, USAID and the contractor would negotiate any necessary additional time or costs resulting from such a change.

64. Section C, Title Warranty states, “The Contractor must provide a warranty consistent with market industry standards for a period no less than five (5) years from the date on which the goods, or any part of them, have been delivered and accepted at the delivery site indicated in Section E of this RFP.” This Section states delivery site is indicated in Section E of the RFP, however the information is in Section F. Could you confirm this?

Per F.3 of the RFP, the address should say, “US EMBASSY PORT OF CARTAGENA”, and the specific customs agent, unloading dock, and storage facilities at the Port of Cartagena will be defined after contract award and once the number of containers and their size has been defined by the successful contractor.

65. Please clarify if the deliverables included in Section F.5 are in addition to or override the document listed on Title IV of Attachment J.4.

Section F.5 refers to the deliverables required during project implementation while Attachment J.4 Title IV are the requirements to be included in the proposal.

66. Regarding Section “C.4 TRANSPORTATION REQUIREMENTS OF PROCURED ITEMS”, please confirm the process to seek the authorization from the CO to obtain the approval for the proposed shipper and that such authorization may only be denied with a justified cause.

The Contractor may request CO approval in writing for the proposed shipper during the proposal or implementation stage. Authorization is at the discretion of the cognizant CO.

67. Regarding Section 52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2021) Section I.2.(h) Patent Indemnity:

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a. Please confirm the Contractor will defend Buyer against any suit arising out of any actual or alleged patent or copyright infringement of a valid United States patent or copyright, to the extent solely due to the Deliverable as delivered by the Contractor, and indemnify for any final judgment assessed against Buyer resulting from such suit provided that Buyer notifies the Contractor in writing promptly after Buyer is apprised of the third-party claim, and Buyer agrees to give sole and complete authority, information and assistance (at H the Contractor’s reasonable expense) for the defense and disposition of the claim.

The intellectual property indemnity is limited to that stated in FAR 52.212-4(h) as incorporated in I.2 of the solicitation.

b. Please confirm the Contractor will not be responsible for any compromise or settlement made without the Contractor’s prior written consent.

See response to 67a.

c. Please confirm that, because the Contractor has sole control of resolving infringement claims hereunder, in no event will the Contractor be liable for Buyer’s attorney fees or costs.

See response to 67a.

d. Please confirm the Contractor will have no liability or obligation to defend and indemnify Buyer with respect to claims of infringement arising out of or based on: (a) Deliverables supplied pursuant to Buyer’s designs, drawings or manufacturing specifications; (b) Deliverables used other than for their ordinary intended purpose as documented in the Product documentation; (c) any combination of the Deliverable with any article or service not furnished by the Contractor; (d) use of other than the latest version of software Deliverable released by the Contractor; (e) any modification of the Deliverable other than a modification by the Contractor; or (f) damages based on a theory of liability other than infringement by the Deliverable.

The intellectual property indemnity clause applies against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright, arising out of the performance of this contract. That is limited to the scope of products and services produced within the contract itself.

e. Please confirm If a claim of infringement is made, or if the Contractor believes that such a claim is likely, the Contractor may, at its option, and at its expense: (1) procure for Buyer the right to continue using the Deliverable; or (2) replace or modify the Deliverable so that it becomes non-infringing; or (3) accept return of the Deliverable or terminate

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Buyer’s license to use the infringing Deliverable in the case of a software Product and grant Buyer a credit for the purchase price or license fee paid for such Product, less a reasonable depreciation for use, damage, and obsolescence. Further, the Contractor may cease shipping infringing Products without being in breach of this Agreement.

The proper course of action for a specific intellectual property infringement would depend on the specific circumstances, the relevant costs, and the scope of the clause provided in the contract.

f. Please confirm if any liability of the Contractor under this “Indemnity Against Patent and Copyright Infringement” is subject to the provisions of the “Limitation of Liability” article of this Agreement.

52.212-4(h) is not limited by 52.212-4(p).

68. Regarding Section I.2.(p)(i) “52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2021), Limitation of Liability”:

a. Please confirm that the Contractor will not be liable for any incidental consequential, special, punitive, statutory, or indirect damages, loss of profits, revenues, or use, or the loss or corruption of data, or loss of productivity, or loss of goodwill, even if informed of the possibility of these damages and notwithstanding the failure of the essential purpose of any limited remedy.

The Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items outside of any express warranties provided by the contractor or any warranties written into the contract or created by clauses in the contract.

b. Please confirm the aggregate liability of the Contractor for any claims arising out of or related to this agreement is limited to direct damages not to exceed 10% of the initial order price.

No such limitation exists.

69. Regarding Section I.2(s) 52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2021), please confirm the Client may execute the license agreements of the Contractor according to the softwares provided.

This question is not clear enough to provide a definitive response. Any product provided by a contractor under the contract must also provide the appropriate licensing as applicable to use the product to its fullest extent.

Providencia Island Solar Power Plant

70. Regarding Section I.2(I) 52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services (Nov 2021), Termination for the Government’s Convenience, please confirm that if USAID terminates the contract before the end of the term, including the service tail, the Contractor would be compensated for all breakage costs, demobilization costs, etc.

and entitled to receive a termination fee equivalent to a reasonable margin on the then remaining term of the contract.

Subject to the terms of the contract, the Contractor will be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination.

The Contractor will not be paid for any work performed or costs incurred which reasonably could have been avoided.

71. Please confirm there will be a negotiation period with the apparent winner.

USAID reserves the right to make an award directly to an Offeror. Please review Section M.2 of the RFP.

72. Please confirm if the scope is reduced, the modified scope will be mutually agreed to and USAID will issue a contract amendment without limitations to the time period to issue change order requests.

Please see 52.212-4(l), 52.212-4(m), and 52.243-1 for details on terminations and modifications.

73. Please confirm the Contractor would be entitled to a change order if the site conditions, including interconnects to power generation to which this BESS is attached, are inconsistent with assumptions in our proposal.

The terms of the final contract are binding on both parties regardless of any assumptions made in a proposal. Modifications to that contract may or may not include a change in the budget depending on the specific circumstances.

74. Please confirm the agreement will not include “directed changes” provisions that would require the Contractor to proceed with changed scope in the absence of an agreed change order/amendment.

All modifications to the contract will be made in accordance with the terms of the contract.

75. According to FAR 11.501 Policy, please confirm the % applicable for liquidated damages for this specific Agreement. Please confirm that, in such a case, liquidated damages would not

Providencia Island Solar Power Plant exceed 12 months of the prior invoiced. If not, please confirm that liquidated damages will not exceed 10% of the contract value.

The only liquidated damages provided for under this solicitation are in regards to non-compliance with any subcontracting plan pursuant to FAR 52.219-16. Under that clause the amount of probable damages attributable to the Contractor’s failure to comply shall be an amount equal to the actual dollar amount by which the Contractor failed to achieve each subcontract goal.

76. Please confirm no right, title or interest in Intellectual Property provided by the Contractor is transferred to Buyer under the Agreement, including Intellectual Property existing prior to, or created independently of, the performance of the Agreement.

Confirmed.

77. Please confirm all Intellectual Property and results of Services, including software, models, designs, drawings, documents, inventions, and know-how (“Inventions”), conceived or developed by the Contractor in connection with the Agreement, are the sole property of the Contractor and Buyer assigns any rights it may have in such Inventions to the Contractor. Buyer has no right or license to Intellectual Property or Inventions provided by the Contractor, except as granted in the Agreement.

The contractor must provide any required licensing for ordinary usage of the property within the scope of the procurement, but no other rights are assigned to the U.S. Government absent those specifically detailed in the terms of the contract.

78. Please confirm the Contractor and its suppliers retain all right, title and interest to all Software, and all modifications and enhancements thereof, and no right, title, or interest in the Software, or any copies thereof, is transferred to Buyer. Buyer will hold all Software supplied by the Contractor in strict confidence and will use best efforts not to disclose Software to others. All Software delivered by the Contractor is subject to a software license or software subscription agreement (“License”).

The contractor must provide any required licensing for ordinary usage of the property within the scope of the procurement, but no other rights are assigned to the U.S. Government absent those specifically detailed in the terms of the contract. The US government is only bound by the terms of the final contract.

79. Please confirm the Parties will process such Personal Data as independent data controllers in accordance with the terms of this Agreement and Applicable Data Privacy Laws. Each Party will comply with the following: (a) ensure the lawfulness of their data collection and the lawfulness of data transfer to the other Party; (b) implement appropriate security measures

Providencia Island Solar Power Plant to protect Personal Data provided by the other Party against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or (remote) access; (c) protect Personal Data provided by the other Party against unlawful processing by its Staff, including unnecessary collection, transfer, or processing, beyond what is strictly necessary for the Purposes; (d) prior to any transfer of Personal Data, impose all obligations on third parties involved, as required by this Agreement and Applicable Data Privacy Laws; and (e) securely delete such Personal Data once it is no longer required for the Purposes.

The US government is only bound by the terms of the final contract and any applicable U.S.

laws.

80. Please confirm the receiving Party will keep all Proprietary Information disclosed confidential for 10 years following the expiration, termination, or completion of the work of this Agreement whichever period is longer.

The US government is only bound by the terms of the final contract and any applicable U.S.

laws. As a practice USAID does not share proprietary information to which it does not have a right to share.

81. Please confirm each Party will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks, and trade secrets. No right or license is granted hereby to either Party or its customer, employees, or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of the other Party, notwithstanding the expiration of the confidentiality obligations stated in this clause.

The US government is only bound by the terms of the final contract and any applicable U.S.

laws.

82. Can USAID please provide page limit and format requirements for the proposal?

The page limit and format are included in Section L.1 of the RFP.