RMD_Storage_Q_and_A_4-22-16.docx

4/22/2016 Question Concerning RFQ No. FCU-3162016

· In accordance with FAR 12.302, Tailoring of Provisions and Clauses for the Acquisition Of Commercial Items, will the FBI tailor FAR 52.212-4 (p), Limitation of Liability, to be consistent with the customary commercial practice for the records management marketplace, as provided below, and modify the solicitation accordingly for all offerors?

(p)-Limitation of Liability:

(a) The Customer declares, for the purposes of this contract (the “Agreement”) , that (i) with respect to hard-copy records, microfilm and microfiche stored pursuant to this Agreement, the value of each such stored items is $1.00 per carton, linear foot of open-shelf files, container or other hard-copy storage unit, and (ii) with respect to round reel tape, audio tape, video tape, film, data cartridges or data cassettes or other non-paper media stored pursuant to this Agreement, the value of such stored items is limited to the cost of replacing the physical media. Customer acknowledges that it has declined to declare an excess valuation, for which an excess valuation fee would have been charged.

(b) Liability for Loss or Damage to Deposits. Contractor shall not be liable for any loss or destruction of, or damage to, stored materials (“Deposits”) unless such loss or damage resulted from Contractor’s negligence. If liable, the amount of Contractor’s liability, except as expressly set forth herein, is limited as provided in the Value of Deposits section. Deposits are not insured by Contractor against loss or damage, however caused. Customer may insure Deposits through third-party insurers for any amount. Customer shall cause its insurers of Deposits to waive any right of subrogation against Contractor. If Deposits are placed in the custody of a third-party carrier for transportation, the carrier shall be solely responsible for any loss or destruction of, or damage to, such Deposits while in the custody of the carrier.

(c) Liability for Non-Storage Services. With respect to services not related to the storage of Deposits, Contractor shall not be liable for any loss or default unless such loss or default is due to the negligence of Contractor. If liable, the amount of Contractor’s maximum liability for any loss or default shall be: (i) if such loss or default relates to a discrete project, the total fees paid by Customer to Contractor for such project; or (ii) if such loss or default arises from services that are of an ongoing and continuing nature, the total amount of fees paid by Customer to Contractor for the performance of such services during the immediately preceding six-month period. Contractor shall not be liable for the loss of contents of shredding bins unless and until the bins are in the custody and control of Contractor.

FBI RESPONSE: FAR 52.212-4 (p) states “(p) Limitation of liability. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.” The FBI agrees that this section should be tailored to more closely reflect standard commercial practices and this will be an item for discussion after proposal receipt. The vendor shall provide a copy of their standard commercial contract language with their proposal. In the language listed above, this section “with respect to hard-copy records, microfilm and microfiche stored pursuant to this Agreement, the value of each such stored items is $1.00 per carton, linear foot of open-shelf files, container or other hard-copy storage unit, and (ii) with respect to round reel tape, audio tape, video tape, film, data cartridges or data cassettes or other non-paper media stored pursuant to this Agreement, the value of such stored items is limited to the cost of replacing the physical media” is a concern to the FBI. Please explain what exactly this means.