QA-DTMA91Q20130014_30Aug2013.pdf

QUESTION #1:

I have attached what appears to be the inclusive acquisition contract without the Documents incoporporated [sic] by Reference: the qualified facility's approved General Technical Proposal, inclusive of its Technical Compliance Plan, incorporated by reference and date [not yet written];

the offeror's representations and certifications under FAR 52.212.3-Offeror Representations and certifications-Commercial Items (Dec. 2012), incorporated by reference [and accessible through sam.gov]; and The applicable DOL Wage Determination applicable for the location of the qualified facility [sic]. To facilitate MARAD's review, I have kept in only Section F(2), Performance Schedule Milestones - NISMF Vessels. Can you please verify for the Contractor Pool that this is the inclusive acquisition contract?

Please do not be confused by the pagination, since there was no pagination in the 132-page Formal Solicitation, just section notation, I used the Abode Acrobat footer tool to paginate the solicitation to facilitate our Company review.

Please give me an Estimated Time for the verification by MARAD that this, and the sales contract submitted yesterday, are indeed the entirety of the clauses in the sales and acquisition contracts as our company contract team is awaiting this verification prior to review so we can submit questions and comments on the contracts.

I have submitted the formal request for a 30-day extension on review and comment; a set window for response; and that the 60-day period to write the proposals begin after the response, through the FBO portal. I will upload these documents as well.

ANSWER #1:

The solicitation includes the requisite acquisition terms, conditions and appropriate FAR clauses in either full text or by reference applicable to any subsequent contract, including the incorporation by reference of the offeror’s GTP. It is anticipated that the executable portion of the acquisition contract would be approximately 5 pages and will incorporate by reference the appropriate portions of the solicitation. We will not issue acquisition contracts like the draft contract attached with your e-mail; therefore no verification of your sample acquisition contract is warranted.

The solicitation will be amended to include a sample acquisitions contract.

QUESTION #2:

I have attached what appears to be the inclusive sales contract without the item 4: The General Technical Proposal as approved by MARAD as of the date of this Contract, for the Contractor Facility Location specified above (which is not yet written). To facilitate MARAD's review, I have kept in only Section F(2), Performance Schedule Milestones - NISMF Vessels. Can you please verify for the Contractor Pool that this is the inclusive sales contract? Our company contract team is awaiting this verification prior to review so we can submit questions and comments.

Please do not be confused by the pagination, since there was no pagination in the 132-page Formal Solicitation, just section notation, I used the Abode Acrobat footer tool to paginate the solicitation to facilitate our Company review.

I will be sending the inclusive acquisition contract as soon as I can pull it together so you can verify that for the Contractor Pool and our company contract team.

ANSWER #2:

The solicitation includes a sample sales contract which incorporates by reference the offeror’s GTP. It is anticipated that the executable portion of the sales contract would be approximately 7 pages and will incorporate by reference the appropriate portions of the solicitation. We will not issue sales contracts like the draft contract attached with your e-mail; therefore no further review or verification of your sample sales contract is warranted.

The sample sales contract included in the solicitation will be revised to correct a couple of references.

QUESTION #3:

Is this modification, added at 2:49 today [July 31, 2013], the response of MARAD to our request below?

C. COMMENTS/QUESTIONS ON THE SOLICITATION

Due to the late posting of the RFQ on July 30, 2013, the comment/question period is extended until 5:30 p.m. Eastern Daylight Time on Monday, August 12, 2013.

The Government will make reasonable efforts to respond to such questions before August 30, 2013. The Agency does not currently plan to answer comments/ questions submitted after August 12th until after the 60-day due date (September 30, 2013) for submission of General Technical Proposals in accordance with PART I, Qualification of Facilities, paragraphs C.2.a and C.2.b

ANSWER: No. As noted in the Amendment 001, the comment period was extended an extra business day because the solicitation was issued after the close of business on July 30, 2013.

QUESTION #4:

Southern Recycling formally requests a 30 day extension of the period for Comment and Questions on DTMA-91-Q-2013-0014. We further formally request that MARAD respond to the comment and questions within a time period specified in a modification to the DTMA-91-Q- 2013-0014 and that the 60-day period to submit new proposals begin after that response.

Due to the complexity of this solicitation, and the time it will take to formulate a response, ESCO respectfully requests that a secondary round of questions be allowed to address any items that may come up during response formulation and as a result of answers to contractors questions.

ANSWER #4:

An extension will not be granted. MARAD has afforded ample time to review the solicitation, as well as earlier drafts, and given industry ample notice of the requirement for submission of revised GTPs. The draft solicitation has been available for comments since the initial posting to the Federal Business Opportunity (FEDBIZOPS) website on May 13, 2013. We extended the due date for submission of comments on the draft solicitation twice. The responses to industry comments received through June 14, 2013, were posted on July 3, 2013. On July 10, 2013, MARAD posted the revised draft solicitation. Further, the minor changes made to the draft solicitation were reviewed during the July 18, 2013 teleconference with industry. Responses to questions received during the teleconference were posted on July 22, 2013. Lastly, the formal solicitation, with more minor changes, was posted July 30, 2013 and companies had another 13 days to submit questions/comments.

QUESTION #5:

In the contract, Section A.2.a Technical Compliance Plan requires the “Contractor at all times shall comply with its approved TCP, and all applicable Federal, State, and local laws.” Section A.2.e Environmental Compliance states: The Contractor hereby acknowledges and accepts responsibility for strict adherence to all applicable federal, state, and local laws, statutes, ordinances, rules, regulations and orders relating the environmental laws…”. Part VI, Section A Technical Compliance Plan Requirements states: “the intent to dismantle the vessels domestically, in accordance with all applicable local, state, and federal environmental, safety and health processes, procedures, laws, regulations, and guidance.” Three paragraphs further, the TCP requirements reiterate: “The TCP shall demonstrate comprehensive knowledge and understanding of all applicable local, state, and federal environmental, safety, and health processes, procedures, laws, regulations, and guidance, and operational processes and procedures involved in ship dismantling…”. The TCP Requirements Operational Plan states: Confirmation that the facility is operated and maintained in a manner that complies with all applicable federal, state, local, and international laws, treaties, conventions, agreements, regulations, and statutes.”

The TCP Requirements Worker Safety & Health Plan requires the company “shall identify and demonstrate the ship disposal facility’s ability to understand and comply with all applicable local, state, and federal worker safety and occupational health processes, procedures, laws, regulations, and guidance.” The TCP Requirements for the Environmental Compliance Plan states, “shall identify and demonstrate the ship disposal facility’s ability to understand and comply with all applicable local, state, and federal environmental processes, procedures, laws, regulations, and guidance.”

As Clause A.2.a was the original TCP requirement that current members of the pre-qualified pool had to demonstrate knowledge and understanding of, and the addition of local, state, and federal processes, procedures, guidance and operational processes and procedures, and international laws, treaties, conventions, agreements, regulations, and statutes,” are new requirements to be addressed in the TCP, please list what local, state, and federal processes, procedures, guidance, and operational processes and procedures and international laws, treaties, conventions, agreements, regulations, and statutes, the Contracting Officer wants the offeror’s to address in their TCP and determinations.

Marad on Page 89 has used the word “guidance” as it relates to ESH. We believe that this word should be deleted in areas that relate to this. There are many guidances given for ship recycling.

Even ones that can be written as guidance for a facility not in the usa. This allows the industry to use other methods which may not be aligned with local (US Laws & Regulations). Further, many working papers, maybe considered as guidance, but don’t have practical approaches, that is why we have a process to make laws. To hold contractors like ourselves to guidances makes it impossible to understand the scope.

If Marad has a guidance document, we suggest adding that for comment to this solicitation, and as an attachment. Either way the word should be deleted.

The new TCP contains language that is vague and will be hard to meet absent more explicit instruction from MARAD.

For example, the 2005 requirement includes specific references to the applicable laws and statutes. See below:

(c) the intent to dismantle the vessels domestically, in accordance with U.S. statutory and regulatory requirements including, but not limited to TSCA, RCRA, OSHAct, as well as international laws, treaties, conventions and agreements, as applicable.

The 2013 requirement lacks this specificity and instead requires Southern Recycling "to dismantle the vessels domestically, in accordance with all applicable local, state, and federal environmental, safety, and health processes, procedures, laws, regulations, and guidance."

Southern Recycling will work with MARAD to comply with MARAD statutes and policies.

Including a specific list of all applicable laws and statutes will clarify the requirements placed on ship recycling companies. This clarity is important as MARAD has not yet shared this document with the EPA, Coast Guard, and Navy for review and comment. The lack of sharing may create problems in the future as the document may not encompass the applicable policies of all of the agencies.

ANSWER #5:

There is no new TCP language regarding “guidance”. The use of the term “guidance” in the TCP is longstanding and this language has been included in the same basic format in all MARAD ship recycling solicitations since 2001, so it should not be a surprise to any of our qualified recyclers. See the current Technical Compliance Plan requirements in MARAD’s Ship Disposal Library in the VOA. The purpose of the TCP is for contractors to demonstrate comprehensive knowledge and understanding of all applicable local, state, and federal environmental, safety, and health processes, procedures, laws, regulations, and “guidance”, relative to the proposed operational processes and procedures involved in ship dismantling, worker health and safety and protection of the environment compliance during vessel remediation and recycling at the ship disposal facility.

To become qualified ship recyclers, contractors have to convincingly demonstrate to MARAD, in the first of the two-step process, their expertise and experience in all aspects of hazardous material remediation, ship dismantling and recycling. Through their general technical proposal and technical compliance plan, the contractor must demonstrate that as experts in ship recycling they are aware of and in compliance with all local, state and federal requirements. This is a common clause in Government contracts. Contractor knowledge and compliance includes knowing local zoning regulations and requirements for a business license all the way through to OSHA and EPA regulations at the Federal level. Where a regulatory agency such as OSHA or EPA issues regulatory or operational guidance it is incumbent upon the qualified ship recycling expert to demonstrate to MARAD they are aware of such guidance and to be responsible for applying the guidance, as applicable, in their facility specific processes, procedures and methodologies.

Regulatory guidance in the ship recycling industry may exist where it is not possible for an agency to specify quantitative requirements due to the variables involved, such as vessel size and configuration differences. An example would be the sampling and analysis of vessel coatings for PCBs based on the EPA guidance for the development of a specific vessel coating sampling plan.

If there is a question as to the applicability of any guidance issued by a regulatory agency, then it is the responsibility of the ship recycler to consult with the appropriate regulatory agency to ensure compliance. MARAD is not a regulatory agency that issues any specific guidance and, as such, we do not clarify what specific local, state, and federal guidance the TCP is to address. The burden is on the contractor to have the knowledge of and to be in compliance with the legal requirements pertinent to his business, processes, facility and location including guidance issued by other agencies/regulatory bodies.

Question #6:

Additionally, the solicitation is asking Offerors to agree to sale processes, procedures, and award that are less transparent; allow speculation on a valuable government commodity; and will result in less value to the Government and the taxpayer, which we do not believe was the Congressional intent when they specified "best value" for sales. Based on this confusion, Southern Recycling requests additional clarification on the definition of "best value."

ANSWER #6:

MARAD has explained in the solicitation how it will determine "best value". Please see Part III, paragraph D.2 (for sales) and Part IV, paragraph D.2 (for services). No further clarification on the definition of best value is warranted.

QUESTION #7:

In addition, the company will need time to review the proposed new sales and acquisitions contracts to prepare comment and questions. The sales contract, which has been reduced from current contract length of 52 pages, to 3 pages with reference to solicitation clauses that are subject to change during the life of the contract, will require particular attention, questions, and comment above and beyond the questions related to the TCP Requirements and Sample [sic] Format.

Later today I will send you what I have been able to discern would be a sales contract, but I need your verification that this is, indeed, the sales contract, prior to submittal for review to our contract team. I will also provide you with what I think is the acquisition contract for similar verification. I need clarification as to whether MARAD will change the 3-page contract during the life of the solicitation.

ANSWER #7:

Regarding the sales contract, please see ANSWER #2. Any changes to the solicitation, including sample sales and acquisition contracts, during the life of the solicitation, will be issued via amendment, posted to FEDBIZOPS and will only be applicable prospectively to announcements issued after the effective date of the amendment.

Previously awarded contracts will only be changed via mutual agreed modification to the contract.

QUESTION #8:

I also need clarification as to whether putting the sales solicitation and contract under the cover of the SF1449 means that the FAR policies, procedures, and regulations will also govern the sales solicitation and requests for extension of contract period of performance, past performance reporting, etc. If not, can MARAD please post the Sales Rules so we can cross reference them, as we do the FAR, in our proposal development, questions, and comment.

ANSWER #8:

MARAD has issued the Ship Disposal Sales Solicitation (SDPEXC-13001) in conjunction with the Ship Disposal Services Solicitation (DTMA-91-Q-2013-0013) for administrative convenience. Except as explained below, FAR policies, procedures, and regulations will not govern the Ship Disposal Sales Solicitation because the FAR only applies to acquisitions using appropriated funds. The solicitation will be amended to delete the SF-1449 included for the overall Ship Disposal Solicitation (DTMA-91-Q- 2013-0014).

The exception is that MARAD is required to make the selections on a “best value basis consistent with the FAR” for both sales and the acquisition of services. See Section 6(c)(1) of the National Maritime Heritage Act of 1994, as amended (16 U.S.C. § 5404), and Section 3502 of the National Defense Authorization Act, Fiscal Year 2001, regarding the Scrapping of National Defense Reserve Fleet Vessels, as amended.

The sales process has no formal rules like the FAR. However, to ensure consistency between the sales and the fee-for-services solicitations, much of the language and processes in the Sales Solicitation mirror or are consistent with the services RFQ and the FAR.

QUESTION #9:

We also request that MARAD post the inter-agency agreements it has on vessel disposal. We are aware of the Navy and USCG agreements, but if there are others, please post those as well. As the new sales contract allows for modification without negotiation - which would mean extra cost -- during the life of the sales contract; to protect our interests, the contractor pool needs to know whether this will be driven internally to MARAD or by the MOA's. As there is already a public 1999 MEMORANDUM OF AGREEMENT between THE DEPARTMENT OF DEFENSE and THE DEPARTMENT OF TRANSPORTATION and THE DEPARTMENT OF LABOR and THE ENVIRONMENTAL PROTECTION AGENCY ON IMPLEMENTATION

OF THE RECOMMENDATIONS ON COORDINATION AND INFORMATION SHARING

OF THE REPORT OF THE INTERAGENCY PANEL ON SHIP SCRAPPING, that has impacted the vessel disposal costs associated with sales contracts, we cannot understand the reticence of the Maritime Administration in refusing to post the public vessel disposal inter-agency agreements.

ANSWER #9:

The MOAs enable MARAD to dispose of other Agencies’ vessels transferred to MARAD using MARAD ship disposal procedures. The MOAs are available through the FOIA process.

The solicitation does not provide that already awarded sales contracts can be modified without negotiation. The solicitation terms in effect at the time of the announcement will be the terms incorporated into the contracts. The sample contracts have been amended to include the insertion of the amendment and date.

QUESTION #10:

In the solicitation, what metrics are used to define “best value” for sales bids and how are these metrics shared with the ship recycling companies?

ANSWER #10:

MARAD has explained in the solicitation how it will determine "best value". Please see Part III, paragraph D.2 (for sales) and Part IV, paragraph D.2 (for services).

QUESTION #11:

What metrics is MARAD using to define past performance? Are these metrics – whether sales or acquisition -- consistent with FAR SubPart 42.15 Contractor Performance Information or any other FAR sections that govern the collection, review, and dissemination of Contractor Performance Information?

ANSWER #11:

MARAD evaluates past performance consistent with FAR 42.1501. Please see Part III, paragraph D.3.b (for sales) and Part IV, paragraph D.3.b (for services). Past performance is not scored quantitatively.

QUESTION #12:

In the Sales Contract, recommend that B.8.c 7) should be dropped as it contradicts B.8.a. B.8.a says that contract is subject to the Contract Disputes Act and the CBCA. B.8.c 7) after stating that the Contractor will proceed diligently with performance while undergoing resolution of claim, adds that the Contractor will comply with any decision of the Contracting Officer.

ANSWER #12:

Part V, paragraph B.8.c.7) requires a Contractor to continue performance of the Contract pending resolution of any dispute arising under a Contract and to comply with Contracting Officer direction. Part V, paragraph B.8.a provides the framework within which a Contractor may pursue administrative and judicial review of a Contracting Officer’s decision. MARAD does not see any contradiction between the two clauses.

QUESTION #13:

In the sales contract, A.1.d 3) and B.8.c provide contradictory information. B.8.c is the dispute clause. A.1.d.3) states that the company will not use the dispute clause. Please clarify.

ANSWER #13:

Part V, paragraph A.1.d.3) provides that Contractor obligations will not be discharged by MARAD acts or omissions and that amounts payable under the contract will not be subject to reduction for any reason. V.A.1.d.3 will be revised to provide an exception for a reduction or adjustment of the amounts payable by the Contractor if expressly authorized elsewhere in the Contract, i.e., V.A.3.g.5), V.B.7.b, or V.C.10.

The Disputes clause in V.B.8.c. just establishes the process by which disputes are to be handled. Part V, paragraphs A.3.g.5) and B.8.b limit the scope of most disputes to non-monetary claims. Under A.3.g.5), the Contractor agrees not to submit a monetary claim for any delay except as provided in A.3.g.6) and agrees that it will only be eligible for a time extension in the period of performance for any other kind of delay. If MARAD determines that a Contractor is not entitled to a time extension for delays not covered by A.3.g.6), then the Contractor may file a “claim,” as defined in B.8.c.1), seeking a time extension and may appeal a decision on that claim. Again, under Part V, paragraph B.8.b, the Contractor agrees not to submit a written demand seeking the payment of money or adjustment in contract price except as authorized in V.A.3.g.6) (Monetary Adjustment for Delay in Delivery) and V.B.7.b (Termination Without Cause Prior to Title Conveyance).

These clauses will be revised.

QUESTION #14:

Sales Contract - Section A.3.g 1) Excusable delays. Southern Recycling recommends that this definition be expanded to not only recognize “non-performance” due to the cited factors, but include excusable delay associated with unknown environmental, safety, or structural conditions related to the remediation and dismantlement of obsolete vessels that the contractor would not have reasonably known.

ANSWER #14:

MARAD did not build, own, or operate these obsolete vessels, and therefore offers such vessels for sale on an “AS IS, WHERE IS” basis. As such, Contractors bear the risk of any unknown environmental, safety, or structural conditions related to the remediation and dismantlement of obsolete vessels, and should adequately inspect the vessels and factor such risk into their prices. An offeror is always free to refrain from submitting a sales offer or price quotation when it is not comfortable taking on such risk.

QUESTION #15:

Sales Contract - Clause A.3.g.5) No Damage for Delay states: “This clause provides the exclusive remedy for excusable delays under this Contract. Except as set forth in paragraph 6), below, the Contractor agrees to make no monetary claim for delays in the performance of this Contract and agrees that any claim for excusable delay shall be submitted in accordance with this clause and shall only be compensated for by an extension of the performance schedule.” Does this clause have precedence over Clause B.7.a Termination for Cause and Clause B.8 1) [sic] which says “Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this Contract”?

ANSWER #15:

As set forth in the sample sales contract in Part VI, Section K, the requirements in Subpart V.B take precedence over Subpart V.A. However, as there is no conflict between A.3.g.5) (No Damages for Delay) and B.7.a (Termination for Cause) the order of precedence is irrelevant.

With regard to paragraph V.3.g.5) No Damage for Delay, see the ANSWER #13, above.

With regard to paragraph V.B.7.a, Termination for Cause, although V.B.7.a does not expressly authorize a Contractor to submit a monetary claim, a Contractor may still file a “claim,” as defined in V.B.8.c.1), seeking to overturn the termination for cause.

QUESTION #16

Technical Compliance Plans: In the Teleconference Transcript, the Contracting Officers said that MARAD would address how to manage the discrepancy between the limited TCP Sample Format outline and the myriad issues to be addressed in the TCP requirements other than the Q&A response of putting a blanket addendum at the end of the section outlines. This has not taken place. Please address if respondents can add identifiable sections to their Technical Compliance Plans to ensure that the evaluators do not get confused.

ANSWER #16:

The offeror should use its best judgment to provide information to completely cover the requirements of the TCP within the framework of the provided format. However, properly referenced attachments may be utilized if it results in a more comprehensible Plan.

QUESTION #17

Part VI Section F has three performance schedules milestones. Is the Contracting Officer requiring more than a single ship performance schedule for the proposal submittal?

Page VI-A-5 Business Plan, Second set of bullet points – “A schedule for each proposed ship showing the progressive order in which your firm proposes to execute the disposal work.” Are there a specific set of Vessels we should be contemplating while completing our response?

Page VI-A-13 Plan Attachments – The first plan attachment listed is performance schedule. Are we to supply one “generic” schedule detailing all milestones & dismantling activities listed in the Business Plan section of the technical requirements?

ANSWER #17:

At a minimum, an offeror shall submit with its general technical proposal a single notional performance schedule. Offerors shall use PART VI, SECTION

F(1)BRF/JRRF, PERFORMANCE SCHEDULE MILESTONES – BRF/JRRF

VESSELS on page VI-F(1)-1 for the development of their general technical proposal notional performance schedule. Offerors may, at their discretion, also submit performance schedules that comply with VI-F(2) and VI-F(3) as part of their general technical proposal. Offerors are cautioned that once qualified and when responding to MARAD issued pricing announcements they are required to incorporate the appropriate performance schedule milestone listing for the specific vessel(s) offered.

The bullet points in Part VI, Section A referenced in the question will be revised appropriately.

QUESTION #18:

The Part IV[sic], section F Performance Schedule Milestones continue to include the milestone 31: Complete Material Sales and Recycling. However, clause A.3.f .1) Completion of Disposal no longer requires a specific date by which ferrous, non-ferrous, or other recyclable materials will need to be sold by. Which clause takes precedence?

ANSWER #18:

The solicitation will be amended to add a footnote to the performance schedules indicating that paragraph A.3.f.1) contains an exception which permits contractors to retain certain recyclable materials indefinitely under certain conditions. Paragraph A.3.f.1) will also be revised to require notice to MARAD and to reference the requirement to include estimated revenue of stockpiled materials in the Final Close-Out Report.

QUESTION #19:

Page I-3 B.3.a 1) Submit Standing Quotation: when and where will this be posted on the VOA? What will be the method of upload - PDF file, fill in the blank, etc.? I have searched the website and not found a location to submit a generic dollar per ton price quotation based on an average sized MARAD vessel of approximately 7500 tons for CLIN 1. Moreover, the idea of a generic costs per ton for the towage and dismantlement of an “average sized MARAD Vessel” is a little difficult to grasp as many factors come into play – location being one of the most obvious. In addition to providing the data regarding when, where, and how this is to be uploaded to the VOA, please provide further clarification of this request as it will be quite difficult to provide such an estimate with the current level of detail.

ANSWER #19:

Due to current technical issues with VOA, it will not be used for submission of standing price quotations until further notice. The solicitation will be amended to instruct companies seeking to compete for acquisition contracts to submit, in conjunction with its GTP, a cover letter identifying its standing price quotation.

Offerors are expected to use their own knowledge and experience to determine a generic cost per ton for the towage and dismantlement of an average sized MARAD vessel of approximately 7500 tons. However, the price quotation submitted with a GTP is only a notional price quotation, and when responding to MARAD issued pricing announcements Offerors must submit a revised firm, fixed-price quotation for the specific vessel(s) offered.