Attachment_06_Terms_and_Conditions.pdf

80KSC017R0012- Attachment 06

Terms and Conditions

The following provisions apply to this combined synopsis/solicitation:

FAR 52.212-1, Instructions to Offerors – Commercial Items (Jan 2017)

FAR 52.212-3, Offeror Representations and Certifications – Commercial Items (Jan 2017), Alt I (Oct 2014)

FAR 52.212-4, Contract Terms and Conditions -- Commercial Items (Jan 2017)

FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders -- Commercial Items (Jan 2017), the following clauses are applicable:

(1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

(4) 52.204-10, Reporting Executive compensation and First-Tier Subcontract Awards (Oct 2016) (Pub. L. 109-282) (31 U.S.C. 6101 note).

(8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment (Oct 2015) (31 U.S.C. 6101 note).

(9) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Jul 2013) (41 U.S.C. 2313).

(16) 52.219-8, Utilization of Small Business Concerns (Nov 2016) (15 U.S.C. 637(d)(2) and (3)).

(25) 52.222-3, Convict Labor (June 2003) (E.O. 11755

(26) 52.222-19, Child Labor—Cooperation with Authorities and Remedies (Oct 2016) (E.O.

13126).

(27) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

(28) 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246).

(30) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793).

(31) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212).

(33) (i) 52.222-50, Combating Trafficking in Persons (Mar 2015) (22 U.S.C. chapter 78 and E.O.

13627).

(44) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging while Driving (Aug 2011) (E.O. 13513).

(48) 52.225-1, Buy American--Supplies (May 2014) (41 U.S.C. chapter 83).

(51) 52.225-13, Restrictions on Certain Foreign Purchases (Jun 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

(55) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C.

4505), 10 U.S.C. 2307(f)).

(57) 52.232-33, Payment by Electronic Funds Transfer— System for Award Management (Jul 2013) (31 U.S.C. 3332).

FAR 52.216-18 Ordering (Oct 1995)

(a) Any supplies and services to be furnished under this contract shall be ordered by issuance of delivery orders or task orders by the individuals or activities designated in the Schedule. Such orders may be issued from during the period of performance specified in the contract.

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

(c) If mailed, a delivery order or task order is considered “issued” when the Government deposits the order in the mail. Orders may be issued orally, by facsimile, or by electronic commerce methods only if authorized in the Schedule.

(End of Clause)

FAR 52.216-19 Order Limitations (Oct 1995)

(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than amount specified in the Schedule of Supplies, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

(b) Maximum order. The Contractor is not obligated to honor --

(1) Any order for a single item in excess of the amount specified in the Schedule of Supplies;

(2) Any order for a combination of items in excess of the amount specified in the Schedule of Supplies; or

(3) A series of orders from the same ordering office within the amount specified in the Schedule of Supplies days that together call for quantities exceeding the limitation in subparagraph (b)(1) or (2) of this section.

(c) If this is a requirements contract (i.e., includes the Requirements clause at subsection 52.216-21 of the Federal Acquisition Regulation (FAR)), the Government is not required to order a part of any one requirement from the Contractor if that requirement exceeds the maximum-order limitations in paragraph

(b) of this section.

(d) Notwithstanding paragraphs (b) and (c) of this section, the Contractor shall honor any order exceeding the maximum order limitations in paragraph (b), unless that order (or orders) is returned to the ordering office within 3 days after issuance, with written notice stating the Contractor’s intent not to ship the item (or items) called for and the reasons. Upon receiving this notice, the Government may acquire the supplies or services from another source.

FAR 52.216-21 Requirements (Oct 1995)

(a) This is a requirements contract for the supplies or services specified, and effective for the period stated, in the Schedule. The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government’s requirements do not result in orders in the quantities described as “estimated’’ or “maximum” in the Schedule, that fact shall not constitute the basis for an equitable price adjustment.

(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations in the Order Limitations clause or elsewhere in this contract, the Contractor shall furnish to the Government all supplies or services specified in the Schedule and called for by orders issued in accordance with the Ordering clause. The Government may issue orders requiring delivery to multiple destinations or performance at multiple locations.

(c) Except as this contract otherwise provides, the Government shall order from the Contractor all the supplies or services specified in the Schedule that are required to be purchased by the Government activity or activities specified in the Schedule.

(d) The Government is not required to purchase from the Contractor requirements in excess of any limit on total orders under this contract.

(e) If the Government urgently requires delivery of any quantity of an item before the earliest date that delivery may be specified under this contract, and if the Contractor will not accept an order providing for the accelerated delivery, the Government may acquire the urgently required goods or services from another source.

(f) Any order issued during the effective period of this contract and not completed within that period shall be completed by the Contractor within the time specified in the order. The contract shall govern the Contractor’s and Government’s rights and obligations with respect to that order to the same extent as if the order were completed during the contract’s effective period; provided, that the Contractor shall not be required to make any deliveries under this contract after 10 days after expiration of the period of performance specified in the contract.

FAR 52.217-9 Option to Extend the Term of the Contract (Mar 2000)

(a) The Government may extend the term of this contract by written notice to the Contractor within 30 days; provided that the Government gives the Contractor a preliminary written notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Government to an extension.

(b) If the Government exercises this option, the extended contract shall be considered to include this option clause.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 5 years.

NFS 1852.215-84, Ombudsman, Alt I (Jun 2000)

NFS 185.223-72 Safety and Health (Short Form) (Jul 2015)

NFS 1852.225-70, Export Licenses (Feb 2000)

(a) The Contractor shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in the performance of this contract.

In the absence of available license exemptions/exceptions, the Contractor shall be responsible for obtaining the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance.

(b) The Contractor shall be responsible for obtaining export licenses, if required, before utilizing foreign persons in the performance of this contract, including instances where the work is to be performed on-site at [insert name of NASA installation], where the foreign person will have access to export-controlled technical data or software.

(c) The Contractor shall be responsible for all regulatory record keeping requirements associated with the use of licenses and license exemptions/exceptions.

(d) The Contractor shall be responsible for ensuring that the provisions of this clause apply to its subcontractors.

(End of clause)

NFS 1852.237-73, Release of Sensitive Information (Jun 2005)

NFS 1852.246-72, Material Inspection and Receiving Report (Apr 2015)

(a) At the time of each delivery to the Government under this contract, the Contractor shall prepare and furnish a Material Inspection and Receiving Report (DD Form 250 series). The forms shall be prepared and distributed as follows:

(1) At the time of each delivery under this contract, the contractor shall furnish to the Government a Material Inspection and Receiving Report (DD Form 250 series or equivalent commercial document), prepared in triplicate (original and two copies). If the contractor elects to use the DD Form 250, it shall be prepared in accordance with NASA FAR Supplement 1846.6. Note: Equivalent commercial document must contain the same level of detail/specificity as the DD Form 250.

(2) Upon delivery of product to the destination, each copy of the Material Inspection and Receiving Report shall be signed and dated by the receiver. The original shall remain with the contractor's driver making the delivery, and two copies shall be retained by the receiving destination as proof of delivery.

(3) A legible copy of the applicable contractor quantity delivered measurement ticket shall be attached to each copy of the Material Inspection and Receiving Report submitted for each delivery. The quantity delivered measurement ticket shall include the associated shipment number and tanker number as cross reference to the Material Inspection and Receiving Report. The foregoing documentation shall be submitted with all invoices.

(4) Contractor shall overprint, in an appropriate space on each Material Inspection and Receiving Report, any applicable tanker unloading demurrage invoiced in accordance with this contract.

Such demurrage shall be certified by personnel of the receiving activity who are not in the employ of the contractor. At the Government's option, and when available, Government personnel may be required to certify demurrage charges.

The following additional contract requirements apply.

1.1 FUNDING AND PAYMENT

(a) Invoices for payment shall be submitted after each calendar month of performance. Charges for temporary ancillary equipment and/or services shall be invoiced separately from cryogenic propellant deliveries. The invoice together with a fully executed DD Form 250 (or equivalent commercial document), with applicable quantity delivered measurement ticket, shall be submitted to the appropriate office as designated on the delivery order. The contractor agrees to provide any additional information requested by the contracting officer or his appointed representative to substantiate billings.

(End of clause)

1.2 DELIVERY REQUIREMENTS

(a) Delivery conveyances must comply with applicable DOT regulations. The contractor shall comply with applicable safety standards and maintain purity of product during loading and delivery. The contractor shall develop, maintain, and make available to the Government all conveyance operating procedures. Note: The amount of delivery equipment shall be sufficient to allow for operational variations, maintenance, downtime, Department of Transportation (DOT) requirements, and contingency provisions.

(b) The contractor shall ensure the on-schedule delivery of LNG ordered by the Government. Orders with less than 72 hours notice shall incur a short notice emergency delivery charge at the price per occurrence.

(c) The contractor shall provide trained personnel necessary for offloading product from the tankers to the facility interface. User locations will provide personnel to operate facility equipment. During offloading, the contractor shall operate the tanker in accordance with approved procedures.

(d) Ancillary equipment and services may be required to effect delivery of LNG to satisfy Government requirements. Ancillary equipment and services includes, but is not limited to, temporary cryogenic storage vessels, liquid-to-gas conversion units (receivers, pumps, vaporizers, and associated piping), and other equipment and services to support related propellant requirements under this contract.

Ancillary equipment and services will be negotiated and issued through a delivery order modification.

1.3 LABORATORY ANALYSIS

A laboratory analysis shall be performed at the loading point of the conveyance for each shipment made under this contract. In the event laboratory facilities are not available to perform this analysis at the loading point, the contractor shall make arrangements to have the analysis performed at a location approved by the contracting officer. In any event, the analysis results shall be attached to the DD Form 250, or equivalent commercial document.

Upon request by the Government, the contractor shall sample their LNG product and have the sample analyzed for the following constituents in accordance with the sampling and analysis procedures specified in MIL-PRF-32207: oxygen, water, argon, hydrogen, helium, neon, total volatile sulfur, and NVR and particulates.

(End of clause)

1.4 CERTIFICATE OF CONFORMANCE

A certificate of conformance shall accompany each delivery to verify product quality and quantity. The contractor's quality assurance representative shall sign and date the certificate of conformance to verify quantity, quality, and proper documentation (i.e., laboratory analysis, etc.) at origin. The signed certificate of conformance shall be attached to, or entered on, copies of the DD Form 250, or equivalent commercial document. The certificate of conformance shall be prepared in accordance with FAR 52.246- 15, paragraph (d).

(End of clause)

1.5 DETERMINATION OF BILLING

The delivered product price per unit includes all product and transportation costs for the quantities delivered and accepted. The unit price shall be F.O.B. destination. Scales or meters used in determining weight or volume shall be certified and must meet all specifications and user requirements and tolerance as stated in the National Institute of Standards and Technology (NIST) Handbook 44. Such scales or meters shall be calibrated annually and records of this calibration shall be maintained for a minimum of one year and made available to the contracting officer or designated representative upon request. After delivery of product, quantity delivered in units measured by scale or meter shall be annotated on a DD Form 250 or equivalent commercial document. An employee of the receiving destination will acknowledge receipt of the shipment and indicated quantity by executing a dated signature in Block 22 of the appropriate DD Form 250 or equivalent commercial document. The contractor's method of product measurement must be acceptable to the contracting officer.

(End of clause)

1.6 QUALITY ASSURANCE, INSPECTION AND ACCEPTANCE

(a) Unless otherwise directed by the Contracting Officer, in-process inspection, end-item inspection, and test verification shall be performed by the Contractor at the Contractor's facilities, to ensure compliance with the contract requirements. The Government may perform periodic inspections or audits at the contractor’s facilities to verify, inspect, and ensure that supplies meet the contract requirements, including calibrations, process control monitoring, drawings and specifications.

(b) Any delivery location will have the option to sample LNG being delivered and analyze it for impurities prior to off-loading the transport vehicle or container. Such sampling shall be subject to demurrage charges, as applicable in accordance with this contract. If the sample does not meet specification requirements, the load will not be accepted and will be returned to the Contractor's facility for disposition. In case of non-acceptance, no product, transportation, demurrage, or any other costs will be charged to, or be paid by the Government.

(c) The Contractor shall maintain records of inspections and tests performed on the items of this contract. All records and tests shall be traceable to the LNG delivered and shall include applicable tanker/trailer number, serial number, lot number, or any other acceptable method of identification.

These records shall be made available to the Government, upon request, during the performance of this contract and for 180 days after delivery of the item(s).

(d) The Contractor shall develop and maintain documentation of a quality control program, including but not limited to: Plant operating procedures (as they relate to quality provisions); handling procedures; loading and off-loading of shipping conveyances; storage; analytical instruments and scale calibrations; sampling; and analysis. Operating plans or procedures shall be made available to the Government upon request. Final inspection and acceptance shall be accomplished at the receiving destination. Acceptance shall occur upon signoff by the receiving destination on the appropriate material inspection and receiving report.

1.7 PRODUCT INTEGRITY CONTROL

(a) The contractor shall furnish seals to prevent tampering with the propellant delivery tankers. The seals must easily identify any attempted tampering. The contractor shall seal all tankers prior to shipment.

(b) The contractor shall maintain cleanliness of shipping container interfaces, transfer hoses and fittings.

The contractor shall seal all drain and fill ports prior to shipment from the facility of origin.

(c) The contractor shall inspect each loaded conveyance just prior to shipment to ensure all end connections are protected with dust covers (or other protectors) and there is no leakage of product.

(d) Upon arrival at the receiving destination propellant interface, conveyances shall be visually inspected by the receiving activity for hazardous conditions, cleanliness, and seal integrity. Any discrepancy is cause for rejection.

(End of text)

1.8 GOVERNMENT'S INABILITY TO ACCEPT DELIVERY AND PARTIAL LOADS

When the contractor makes a delivery to a single destination and the tanker cannot be accepted due to storage tank problems or for other reasons under the control of the receiving organization, and through no fault of the contractor, product charges will not be incurred; however, transportation charges will be based on the round-trip miles at the transportation price per mile incorporated into the contract. A partial load is any delivery of LNG that equals less than 8,000 gallons delivered. The standard unit price per gallon shall be charged for partial loads, plus a transportation cost per mile for the round-trip. Roundtrip mileage shall be from the primary plant source. Plant Source to each specified receiving destination shall be based on the internet website Google Maps (http://maps.google.com).

1.9 DEMURRAGE

The Government will pay the contractor demurrage for all delays in unloading propellant delivery tankers in excess of 4 hours after arrival and check-in at place of delivery, if such delay is without the fault or negligence of the contractor and is not caused by the failure of the contractor's equipment. This unloading demurrage charge shall be paid the contractor per quarter-hour or fraction thereof. No demurrage charges shall be billed or paid for the loading of any propellant delivery tankers. If the free time has been exceeded, the driver, upon leaving the site, shall leave the consignee written documentation showing the date, time of arrival, time of departure, cause of delay, if known, and information identifying the shipment. The driver shall sign such documentation and shall request the consignee to do likewise. A copy thereof, as proof of delay, shall accompany all invoices for demurrage. Reasons for such delay shall be annotated in Block 23C of the DD Form 250, or in an appropriate place on equivalent commercial document, and signed by the driver. Contractor shall ensure that all deliveries from a multi-source operation shall be effected at the lowest overall cost to the Government.

(End of clause)

1.10 UNFORECASTED REQUIREMENTS

The contractor shall deliver product to locations that are not specified in the contract when requested by the contracting officer. The contractor shall bill the Government the product price per gallon and the transportation price per mile round-trip for such deliveries to unforecasted destinations. The contractor shall base actual miles traveled over the most direct and economical route available, utilizing mileage based on the internet website Google Maps (http://maps.google.com). Any alternate means of mileage measurement utilized shall have prior written approval of the contracting officer. When a requirement to an unforecasted destination becomes known, the contracting officer has the authority to contract with any source to obtain the lowest price to the Government, (i.e., delivered product price to requiring location).

(End of clause)

1.11 FLASH REPORTS

The contractor shall provide the contracting officer, or his designated representative, with an immediate verbal Flash Report of any accident or incident which may have an adverse impact on the contractor's ability to deliver liquid cryogenic propellant to the Government, such as a plant outage (scheduled or unscheduled), trailer malfunction, or of any other occurrence in which the Government could reasonably be expected to have an interest by virtue of this contract. Such Flash Reports shall be confirmed in writing (electronic submission), in appropriate detail. Except as otherwise provided in this contract, the cost of data to be furnished in response to this contract is included in the price of this contract.