GSA_TX_Spring_2019Electricity_Solic_GS-00P-19-BSD-1257_Amend_1_Version.doc

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS

OFFEROR TO COMPLETE BLOCKS 12, 17, 23, 24, & 30

1.

REQUISITION NUMBER

PAGE 1 OF

2. CONTRACT NO.

3. AWARD/EFFECTIVE DATE

4. ORDER NUMBER

5. SOLICITATION NUMBER

6. SOLICITATION ISSUE

DATE

7. FOR SOLICITATION INFORMATION CALL:

GS-00P-19-BSD-1257

a. NAME

b. TELEPHONE NUMBER (No collect calls)

Kenneth M. Shutika

(202) 329-1826

03/20/2019

8. OFFER DUE DATE/ LOCAL TIME

04/17/2019 2 p.m.

9. ISSUED BY

CODE

10.

THIS ACQUISITION IS

UNRESTRICTED OR

SET ASIDE:

% FOR:

GSA, Energy Division (PMAA)

SMALL BUSINESS

WOMEN-OWNED SMALL BUSINESS

(WOSB) ELIGIBLE UNDER THE WOMEN-OWNED

1800 F Street, NW, Room 5118

Washington, DC 20405

HUBZONE SMALL BUSINESS

SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS

SMALL BUSINESS PROGRAM EDWOSB

8 (A)

NAICS:

221112

SIZE STANDARD:

750 employees

11. DELIVERY FOR FOB DESTINA- TION UNLESS BLOCK IS MARKED

SEE SCHEDULE

12.

DISCOUNT TERMS

13a. THIS CONTRACT IS A RATED ORDER UNDER DPAS (15 CFR 700)

13b. RATING

14. METHOD OF SOLICITATION

RFQ

IFB

RFP

15. DELIVER TO

16.

ADMINISTERED BY

See Block 9 Address

See Block 9 Address

17a. CONTRACTOR/ OFFEROR

FACILITY CODE

18a. PAYMENT WILL BE MADE BY

Individual Agencies

TELEPHONE NO.

17b. CHECK IF REMITTANCE IS DIFFERENT AND PUT SUCH ADDRESS IN

18b. SUBMIT INVOICES TO ADDRESS SHOWN IN BLOCK 18a UNLESS BLOCK

OFFER

BELOW IS CHECKED

SEE ADDENDUM

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22. UNIT

23.

UNIT PRICE

24.

AMOUNT

See Submission Requirements - Pricing Section C.1 kWh (see Exhibit 1 for Quantity) (Use Reverse and/or Attach Additional Sheets as Necessary)

25. ACCOUNTING AND APPROPRIATION DATA

26. TOTAL AWARD AMOUNT (For Govt. Use Only)

-will be included on orders set up for payment

27a. SOLICITATION INCORPORATES BY REFERENCE FAR 52.212-1, 52.212-4. FAR 52.212-3 AND 52.212-5 ARE ATTACHED. ADDENDA

27b. CONTRACT/PURCHASE ORDER INCORPORATES BY REFERENCE FAR 52.212-4. FAR 52.212-5 IS ATTACHED. ADDENDA

ARE

ARE NOT ATTACHED

ARE

ARE NOT ATTACHED

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN 1

COPIES TO ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND

DELIVER ALL ITEMS SET FORTH OR OTHERWISE IDENTIFIED ABOVE AND ON ANY ADDITIONAL SHEETS SUBJECT TO THE TERMS AND CONDITIONS SPECIFIED

29. AWARD OF CONTRACT: REF.

OFFER

DATED .

. YOUR OFFER ON SOLICITATION (BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS:

AUTHORIZED FOR LOCAL REPRODUCTION PREVIOUS EDITION IS NOT USABLE

STANDARD FORM 1449 (REV. 2/2012)

Prescribed by GSA - FAR (48 CFR) 53.212

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

UNIT PRICE

24.

AMOUNT

32a. QUANTITY IN COLUMN 21 HAS BEEN

RECEIVED

INSPECTED

ACCEPTED, AND CONFORMS TO THE CONTRACT, EXCEPT AS NOTED:

32g. E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

COMPLETE

PARTIAL

FINAL

37. CHECK NUMBER

PARTIAL

FINAL

42b. RECEIVED AT (Location)

STANDARD FORM 1449 (REV. 2/2012) BACK

Table of Contents

2SECTION A: SCOPE OF WORK

2A.1

GENERAL

2A.2

DELIVERY POINT

3A.3

NOMINATING AND BALANCING RESPONSIBILITIES

3A.4

CREDIT FOR DEFAULT SUPPLY SERVICE

3A.5

RISK OF LOSS

3A.6

PROTECTION OF CONTRACT INFORMATION

3A.7

PAYMENT AND BILLING

4A.8

RESERVED

4A.9

4A.10

ADDING AND DELETING FACILITIES TO THIS CONTRACT

4A.11

4A.12

RENEWABLE POWER FOR FACILITIES IN THIS CONTRACT

5A.13

LOAD CHANGES DURING THE TERM OF THE CONTRACT

5A.14

ELECTRICITY REGULATORY CHANGES

6A.15 CONTRACT ADMINISTRATION

6A.16 AUCTION PROCESS FOR PRICING USING EnerNOC

6A.17 EnerNOC FEE

6A.18

DAMAGES FOR MISSING CONTRACT START DATE

8SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

8B.1

CLAUSES INCORPORATED BY REFERENCE

13B.2

CLAUSES IN FULL TEXT

22SECTION C: SUBMISSION REQUIREMENTS:

22C.1

EVIDENCE OF TECHNICAL ACCEPTABILITY

23C.2

PRICE PROPOSAL

23C.3

SUBMISSION OF PROPOSALS

25SECTION D: EVALUATION FACTORS FOR AWARD:

25D.1

EVALUATION

25D.2

BASIS FOR AWARD

25D.3

POST AWARD REQUIREMENT FOR SMALL BUSINESS SUBCONTRACTING PLAN

25D.4

POST AWARD REQUIREMENT FOR SERVICE START DATE REPORTING

26SECTION E: REPRESENTATIONS AND CERTIFICATION

40ATTACHMENT 1 VERIFICATION FROM RENEWABLE ENERGY SUPPLIER

43ATTACHMENT 2 RENEWABLE POWER/RENEWABLE ENERGY CERTIFICATE NOTIFICATION

44ATTACHMENT 3: CONTRACTOR INFORMATION

45ATTACHMENT 4: PRICE COMPONENT CONFIRMATION TABLE

NOTE:

ALL QUESTIONS MUST BE SUBMITTED IN WRITING AND CAN BE SENT VIA:

ELECTRONIC MAIL AT ken.shutika@gsa.gov

SECTION A: SCOPE OF WORK

A.1

GENERAL

The General Services Administration (GSA or Government) is requesting proposals for the supply of all electricity supply commodity components up to the Delivery Point including but not limited to energy, ancillary services, scheduling, Texas renewable portfolio standard (RPS) compliance costs, balancing, fuel costs, line losses including distribution losses to the end-use meter and network firm transmission necessary for the firm supply of electricity to a number of Federal facilities located in various Transmission and Distribution Service Provider (TSDP) service territories within the State of Texas. Pricing is to the Delivery Point and shall include all of the cost components referenced in the prior sentence as well as Intrazonal Congestion (HZ to LZ) costs, Reliability Unit Commitment (RUC) costs, Operating Reserve Demand Curve (ORDC) costs, Qualified Scheduling Entity (QSE) costs, Congestion Revenue Rights (CRRs) and ISO administrative fees. The price shall also include transmission and distribution line losses to the end-use meter. The Contractor shall not include any additional charge in its invoice for either its own supply charges or in the delivery charges from the TDSP for loss or imbalance energy.

The Contractor shall supply the full requirements of such electricity for a term of sixty (60) full monthly billing cycles for accounts included in this contract. The Government has placed its requirements into one (1) pricing group. The service start date for accounts shall begin with the first meter read date on or after June 1, 2019 or as noted in Exhibit 1.

All quantities required to be supplied to facilities included in this contract shall be considered firm requirements (“firm” means electric supply that will not be interrupted except as permitted under this contract) for delivery by the Contractor to the Delivery Point. The Contractor shall be liable for all costs assessed to facilities arising out of or relating to the non-delivery of firm requirements. The electricity provided under this contract shall conform to the tariff of the interstate/intrastate transmitting utility and the TSDP at the Delivery Point for the accounts specified in Exhibit 1. The Government has organized its requirements for this solicitation in an Exhibit as described below.

Exhibit 1 consists of Excel spread sheets that specify the accounts included in this contract and provides aggregate estimated totals. For each account, the following information is provided if available:

(a) TSDP rate schedule;

(b) TSDP account number;

(c) Agency/account holder;

(d) General Service Location;

(e) TSDP;

(f) Monthly consumption (kWh);

(g) Registered monthly on-peak demand (KW) per TSDP tariff definition;

(h) Registered monthly maximum demand (KW) per TSDP tariff definition;

(i) Monthly on-peak KWH per TSDP tariff definition;

(j) Monthly interm KWH per TSDP tariff definition;

(k) Monthly off-peak KWH per TSDP tariff definition;

(l) Monthly billing days;

(m) Monthly load factor;

(n) Range of meter read dates throughout the year;

(o) Whether hourly interval data is provided for the account (information on separate spread sheets).

A.2

DELIVERY POINT

The Delivery Point for such electricity shall be the meter(s) of the specific facilities identified in Exhibit 1 of this contract. The Delivery Point shall be where the facility takes title to the electricity.

A.3

NOMINATING AND BALANCING RESPONSIBILITIES

It is the Contractor’s responsibility to conduct all required nominations on behalf of the facilities specified herein. The Contractor shall be fully familiar with the imbalance, transmission grid loss and line loss policies of both the TSDP and the interstate/intrastate transmission companies. The Contractor shall be liable for all costs arising out of or relating to these items.

A.4

CREDIT FOR DEFAULT SUPPLY SERVICE

If at any time, unless as a result of an Excusable Delay (see FAR 52.212-4(f)), an account covered by this contract is forced to accept default supply service from the TSDP serving in its capacity as the utility supplier of last resort solely as a result of action/inaction by the Contractor, the Contractor shall be responsible for payment of any additional costs, if any, incurred.

A.5

RISK OF LOSS

Risk of loss of electricity supplied under this contract shall remain with the Contractor prior to the Delivery Point and shall pass to the Government at and after the Delivery Point specified for each facility.

A.6

PROTECTION OF CONTRACT INFORMATION

The Government will take the necessary and usual steps to maintain the confidentiality of information submitted by offerors prior to award of the contract. The Contractor is advised that the Government will make all contract prices publicly available for the full contract period.

A.7

PAYMENT AND BILLING

The Contractor expressly agrees and acknowledges that each Government facility to which supplies or services are provided pursuant to this contract will be separately responsible for and liable to pay for any such supplies or services. For the avoidance of doubt, the GSA will be the responsible party for purposes of making payments for the accounts only where GSA is listed as the Agency on Exhibit 1. Note that per Exhibit 1 there are no GSA accounts included in this solicitation. The Contractor will submit a monthly invoice to the Government facility for supplies and services rendered the previous month. The invoice should include the amount of kWh and kW measured at each meter and must be consistent with the rules of the Public Utility Commission of Texas (“PUCT”) regarding issuance and format of bills. The Contractor shall use the TSDP's meters, meter readings, and billing cycles for the computation of bills. The Contractor must establish a unique supplier account number for each end-use Government account and provide the corresponding TSDP account number on each monthly bill.

It shall be the Contractor’s responsibility to know and understand the specific details and requirements for monthly billing, reporting, and coordination with the TSDP’s. The Contractor shall be responsible for any late charges and/or penalties associated with prompt payment requirements that may be required by internal procedures and/or controls of a TSDP. The Government requires that each bill contain itemized account level detail, on a building or facility basis and shall at a minimum contain such information as would be useful to the Government in best managing its electric power purchases and use in a cost effective and efficient manner. Each invoice shall identify and separately report the following:

1. The kWh and kW monthly totals and any other totals measured at the facility’s electric meters including on peak and off peak values where measured.

2. Itemized charges levied by the TSDP.

3. Current billing period start and end dates, current billing period charges, previous billing period balance (if any) and previous billing period payment received.

Special billing requirements and procedures are discussed below.

a) The rates and charges contained in this solicitation will be billed monthly unless a Federal facility requests, and the Contractor and the GSA Contracting Officer agree, to another arrangement. Any such arrangement shall be documented in a bilateral modification to the contract.

b) Prior to the initiation of service under this contract, the Government account holders will provide the Contractor with all necessary billing information required for the processing of bills.

A.8

RESERVED

A.9

RESERVED

A.10

ADDING AND DELETING FACILITIES TO THIS CONTRACT

It is possible that additional accounts not included in Exhibit 1 may be added to the resultant contract(s). In that event, the Government will provide the Contractor with the facility’s estimated electric requirement (if available) and the two parties shall enter into good faith negotiations to determine a price. A bilateral modification will be executed adding the line item on the Standard Form 30, Amendment of Solicitation/Modification of Award.

If the Government removes any facilities listed in Exhibit 1, the Government shall provide the Contractor with a written notice 45 business days before any such removal. The Government may unilaterally delete any facilities in its discretion. If accounts are deleted, the methodology provided in Section B.1 (b), FAR Clause 52.212-4(l) shall be used to calculate the early termination charges, if any. The provisions of this paragraph shall not apply to accounts with early end dates noted in Exhibit 1 at the time of contract award.

A.11

RESERVED

A.12

RENEWABLE POWER FOR FACILITIES IN THIS CONTRACT

"Renewable energy certificates" (RECs) are unique certificates that represent all of the environmental attributes or benefits of a specific quantity of renewable generation. RECs are created when a renewable energy facility generates electricity. The terms Renewable Energy Credits, Tradable Renewable Certificates, renewable power or Green Tags, are equivalent terms.

The Contractor shall deliver wind or solar RECs equal to twenty (20%) of the total usage required for all the accounts specified in Section C.2 and on Exhibit 1. The REC content requirements are in addition to any renewable power required to comply with the State of Texas’s renewable portfolio standard (RPS) requirements, if any, during the term of any resultant contract(s). All RECs must come from generation sources located in the State of Texas. The renewable power that the Contractor provides must come from renewable resources that have been placed in service within 10 years prior to the start of the Government’s fiscal year for each year of the contract. For the contract’s first year, resources will need to have been placed in service on or after October 1, 2008. All RECs delivered under this contract must be Electric Reliability Council of Texas (ERCOT) approved RECs under PUCT Substantive Rule §25.173(c).

Annual Renewable Report

The Contractor shall provide an annual report verified by an independent third party auditor. The annual reporting period shall be October 1 through September 30. The annual report shall contain the following elements:

(a) Verification of the product content for the annual reporting period that:

(1) Indicates the source of new renewable power, zip code of the source and the EGRID sub region for the new source; and

(2) Indicates the source of non-new renewable power, zip code of the source and the EGRID sub region for the source.

(b) Verification that:

(1) The Contractor has not sold the renewable power more than once (as either a renewable power product or as an REC product), and in the case of a reseller that purchases a wholesale product for retail sale, reasonable measures are taken to ensure that suppliers also do not sell renewable power more than once;

(2) All environmental attributes, including any attendant emission credits which are specifically owned by or to which the renewable power generator is otherwise entitled convey to the purchaser (i.e. Government);

(3) The Contractor has not sold any emission allowances/credits, or other environmental attributes which are specifically owned by or to which the renewable power generator is otherwise entitled to convey associated with renewable power; and

(4) The renewable power that is used to fulfill the requirements of this solicitation is also not being used to meet any federal, state, or local renewable energy requirement, renewable energy procurement, renewable portfolio standard, or other renewable energy mandate.

The Annual Report shall be submitted to both the CO and COR (if any) at the addresses specified in Section A.15 no later October 31 each year and shall contain Attachments 1 and 2. The independent third party auditor shall be submitted in the Contractor’s proposal and approved by the Government at the time of contract award.

Renewable Power Vintage: To qualify as eligible renewable power (REC) under this contract, the renewable power must be generated during the Government’s applicable fiscal year calendar which is October 1 through September 30 for each year of the contract and the six (6) months immediately preceding that time period and the three (3) months immediately following that time period (e.g. April 1, 2018 through December 31, 2019).

Definition of Renewable Energy

For the purposes of this contract and this Section A.12, renewable energy and biomass shall have the definitions as specified by the Energy Policy Act of 2005, currently codified at 42 U.S.C. § 15852(b).

A.13

LOAD CHANGES DURING THE TERM OF THE CONTRACT

As indicated in Section A.1, this contract is for the full requirements of each account at the Delivery Point. The full requirements are expressed as estimates on Exhibit 1 of the solicitation. The Government does not estimate that its aggregate load will change in a significant manner throughout the term of this contract unless noted on Exhibit 1. The Government considers an annual change in the aggregate kWh consumption of each pricing group in excess of fifteen percent (15%) each contract year to be significant. The historical volumes are given in Exhibit 1 and these volumes will be used in determining annual changes. In the event of a significant change in contract load, the Government agrees, if requested by the Contractor, to equitably adjust the contract price to account for the incremental costs, if any, associated with such load change beyond the fifteen percent (15%) measurement threshold. Any proposed adjustments to contract pricing must compare the contract price with the market price at the time of usage deviation to arrive at an adjustment to contract pricing. The Government will notify the Contractor of any significant anticipated load changes as soon as it becomes aware of such anticipated changes.

A.14

ELECTRICITY REGULATORY CHANGES

(a) The contract price includes all applicable Federal, State, and local regulations including ISO/RTO charges expected to be in effect and applicable to this contract at the time of contract award.

(b) After-Imposed Charges Due to a Change of Federal, State, or Local Regulation, means any new or modified Federal, State, and/or local regulation including ISO/RTO charges on the transactions covered by this contract that result in new or increased charges that the Contractor is required to pay or bear as the result of legislative, judicial, regulatory or administrative action taking effect after the contract award date.

(b)(1) The contract price shall be increased by the amount of any after-imposed charges due to a change of Federal, State, or local regulation, provided the Contractor warrants in writing that no amount for such newly imposed Federal, State, and local regulation or rate increase was included in the contract price, as a contingency reserve or otherwise, and that the Contractor provides sufficient documentation to support the increase.

(c) After-Relieved Charges Due to a Change of Federal, State, or Local Regulation, means any Federal, State, and/or local regulation including ISO/RTO charges on the transactions covered by this contract that the Contractor is no longer required to pay or bear, or for which the Contractor obtains a refund or reduction, as the result of legislative, judicial, regulatory or administrative action taking effect after the contract award date.

(c)(1) The contract price shall be decreased by the amount of any after-relieved charges due to a change of Federal, State, or local regulation.

(d) Any increases or decreases in the contract price shall be accomplished by a bilateral contract modification. In the event that the Government and the Contractor cannot agree to an acceptable contract adjustment, the Government will unilaterally adjust the contract price via modification subject to the Disputes provisions of FAR 52.212-4(d) incorporated in the contract.

(e)The ceiling price for after-imposed regulatory costs is limited to 50% of the contract price.

(e)(1) The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth has been increased, any costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the costs had been incurred after the increase in the ceiling price.

A.15 CONTRACT ADMINISTRATION

After award, this contract shall be administered by the General Services Administration’s Energy Division (PMAA). The Contracting Officer (CO) for the administration of this contract is:

Ken Shutika

Telephone

(202) 329-1826 Energy Division (PMAA)

1800 F Street, NW, Rm. 5118

Email ken.shutika@gsa.gov

Washington, DC 20405

A.16 AUCTION PROCESS FOR PRICING USING EnerNOC The Government shall use an internet based transaction platform provided by EnerNOC, the Government’s third-party contractor, to obtain pricing for this procurement. The Contractor shall submit pricing to GSA using the EnerNOC platform in accordance with the instructions in Section C and the EnerNOC website. All prices submitted to the EnerNOC transaction platform shall be in accordance with the provisions of the solicitation. It shall be the responsibility of the Offeror to understand both the rules and the mechanics of the EnerNOC transaction platform.

A.17 EnerNOC FEE

The Contractor hereby agrees to pay a fee in the amount of $0.00070 per kWh for all usage billed under this contract. The Contractor shall pay the fee directly to EnerNOC in accordance with the agreement, if any, executed between the Contractor and EnerNOC. The Contractor expressly recognizes and understands that the Government is not responsible for paying the fee to EnerNOC. To the extent a dispute occurs between the Contractor and EnerNOC regarding the fee, any such dispute shall be handled in accordance with the agreement executed between the Contractor and EnerNOC.

A.18

DAMAGES FOR MISSING CONTRACT START DATE

In the event that the start date for electric supply is missed due solely to the fault of the Contractor and an account(s) is switched to the Non Volunteer Provider of Last Resort, then the Contractor shall be liable for the difference, if any, between the contract rate and the rates billed by the Non Volunteer Provider of Last Resort. Subject to the approval of the Contracting Officer, the Contractor will issue an equivalent credit to the Government on a future invoice. This credit must be issued within sixty (60) days of the date the Contractor begins serving the account.

SECTION B: FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

B.1

CLAUSES INCORPORATED BY REFERENCE

The FAR Can Be Accessed At The Following Internet Address: http://www.acquisition.gov 552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items.

As prescribed in 512.301(a)(1), insert the following clause:

Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items (Jun 2016)

(a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial items or components. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The clauses in paragraph (b) of this section are incorporated by reference:

[The Contracting Officer should check the clauses that apply or delete the clauses that do not apply from the list. The Contracting Officer may add the date of the clause if desired for clarity.]

(b) Clauses.

End of Clause (a)

FAR 52.212-1

Instructions to Offerors-Commercial Items (OCT 2018)

[Reference FAR 12.301(b)(1)]

Addendum to FAR 52.212-1

The offeror agrees to hold the prices offered in response to this solicitation until 1:30 p.m. on the date specified in Section C.3 of this solicitation.

(b)

GSAM 552.212-4

Contract Terms and Conditions-Commercial Items (FAR DEVIATION) (FEB 2018)

[Reference GSAM 512.301(e)]

INVOICE.

(g)(2) The due date for making invoice payments by the designated payment office is the later of the following two events:

(i) The 20th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment date shall be the 20th day after the date of the Contractor’s invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality or Contractor compliance with contract requirements.

(ii) The 20th day after Government acceptance of supplies delivered or services performed by the Contractor.

(s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) The schedule of supplies/services.

(2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements - Unenforceable Clauses paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements - Unenforceable Clauses provision.

(5) Solicitation provisions if this is a solicitation.

(6) Other paragraphs of this clause.

(7) The Standard Form 1449.

(8) Other documents, exhibits, and attachments.

(9) The specification.

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such language, provision, or clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(u) Unauthorized Obligations.

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such language, provision, or clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

(2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

(w) Commercial supplier agreements–unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

(1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

(i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Part 12).

(ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

(iii) Law and disputes. This agreement is governed by Federal law.

(A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

(B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

(C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

(iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes).

(v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

(vi) Updating terms.

(A) After award, the contractor may unilaterally revise commercial supplier agreement terms if they are not material. A material change is defined as:

(1) Terms that change Government rights or obligations;

(2) Terms that increase Government prices;

(3) Terms that decrease overall level of service; or

(4) Terms that limit any other Government right addressed elsewhere in this contract.

(B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

(C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

(vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

(viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

(ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user’s compliance with this agreement is hereby amended as follows:

(A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

(B) This charge, if disputed by the ordering activity, will be resolved in accordance with subparagraph (d) (Disputes); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

(C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

(x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

(xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under subparagraph (b) of this clause.

(xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

(2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.

(End of clause)

Tailored Addendum To FAR 552.212-4 Contract Terms and Conditions – Commercial Items (FAR DEVIATION) (FEB 2018) [Reference GSAM 512.301(e)]

(k) TAXES.

(1) Except as otherwise set forth in this subsection (k), the contract price includes all applicable Federal, State, and local taxes and duties. The Contractor may submit Texas Gross Receipts Tax (GRT) and the Public Utility Gross Receipts Assessment (PUCA) to the Government at the supplier’s cost as a separate line item on monthly bills.

(2) After-imposed Federal, State, or local tax, means any new or increased Federal, State, or local excise tax or duty, or tax that was exempted or excluded on the contract award date but whose exemption was later revoked or reduced, or whose computation was later changed during the contract period, on the transactions or property covered by this contract that the Contractor is required to pay or bear as the result of legislative, judicial, or administrative action taking effect after the contract date. It does not include social security tax, income tax, or other employment taxes.

(2)(a) The contract price shall be increased by the amount of any after-imposed tax, provided the Contractor warrants, in writing, that no amount for such newly imposed Federal, State, or local excise tax or duty or rate increase was included in the contract price, as a contingency reserve or otherwise.

(3) After-relieved Federal, State, or local tax, means any amount of Federal, State, or local excise tax or duty that would otherwise have been payable on the transactions or property covered by this contract, but which the Contractor is not required to pay or bear, or for which the Contractor obtains a refund or drawback, as the result of legislative, judicial, or administrative action taking effect after the contract date. It does not include social security tax, income tax, or other employment taxes.

(3)(a) The contract price shall be decreased by the amount of any after-relieved tax

(4) Any increases or decreases in the contract price shall be accomplished by a bilateral contract modification. In the event that the Government and the Contractor cannot agree to an acceptable contract adjustment, the Government will unilaterally adjust the contract price via modification subject to the Disputes provisions of FAR 52.212-4(d) incorporated in the contract.

(5) The ceiling price for tax-related costs is limited to 20% of the contract price.

(5)(a) The Government will not be obligated to pay the Contractor any amount in excess of the ceiling price and the Contractor shall not be obligated to continue performance if to do so would exceed the ceiling price set forth in the Schedule, unless and until the Contracting Officer notifies the Contractor in writing that the ceiling price has been increased and specifies in the notice a revised ceiling that shall constitute the ceiling price for performance under this contract. When and to the extent that the ceiling price set forth has been increased, any costs incurred by the Contractor in excess of the ceiling price before the increase shall be allowable to the same extent as if the costs had been incurred after the increase in the ceiling price.

(l) TERMINATION FOR THE GOVERNMENT'S CONVENIENCE

(1) In the event of termination, the Contractor shall cease deliveries hereunder with respect to such terminated contract quantities on the first allowable date subsequent to such termination according to the applicable tariff provisions of the local distribution company. For the purposes of this clause, the Contractor will be paid for electricity delivered up to termination and from the termination date until deliveries cease in accordance with tariff provisions of the local distribution company.

(2) In addition to the value of delivered electricity, the termination value shall be calculated using the following formula:

(i) Firm Fixed Price:

A = ( (B - C)*D

Where—

A = Termination value.

B = Award price for contract.

C = Forward market price, defined herein.

D = Contract quantity for remaining contract term (based on Exhibit 1).

(A) If the termination value on the date of termination is negative, the Contractor shall not be entitled to any payment.

(B) The forward market price shall be defined as the average of around-the-clock (ATC) energy prices at the applicable ERCOT Zone where the account(s) is located for a term equal to the remaining term of the contract plus any energy supply items that have been purchased in the forward market to supply the account. The Contractor shall base the proposed forward market price in a commercially reasonable manner.

(C) In the event that the Government elects to terminate on a date other than the end of a month, the estimated remaining contract quantity will be calculated by prorating the partial month of service.

NOTE: The termination value formula above shall only apply to electricity purchased on a fixed price basis. The Government shall incur no termination liability for electricity purchased on a locational marginal pricing basis, or on a pass-through basis.

(n) TITLE. Title to the electricity supplied by the Contractor under this contract shall pass to the Government upon delivery at the Delivery Point. The Contractor warrants that the electricity delivered to the Government under this contract will be free and clear of any liens, claims and encumbrances arising prior to delivery at the Delivery Point.

(o) WARRANTY. The Contractor warrants and implies that the electricity delivered hereunder conforms to the tariff of the transmitting and/or distributing utility at the Delivery Point.

(c)

FAR 52.204-16

Commercial and Government Entity Code Reporting (JUL 2016)

[Reference FAR 4.1804(a)]

(d)

FAR 52.204-18

[Reference FAR 4.1804(c)]

(e) FAR 52.216-21 Requirements (OCT 1995)

[Reference FAR 16.506(d)]

(f) FAR 52.217-8 Option to Extend Services (NOV 1999)

[Reference FAR 17.208(f)]

(g)

FAR 52.204-16

[Reference FAR 4.1804(a)]

B.2

CLAUSES IN FULL TEXT

52.209-7 Information Regarding Responsibility Matters.

As prescribed at 9.104-7(b), insert the following provision:

Information Regarding Responsibility Matters (Oct 2018)

(a) Definitions. As used in this provision—

“Administrative proceeding” means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract Appeals Proceedings). This includes administrative proceeding at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include agency actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

“Federal contracts and grants with total value greater than $10,000,000” means—

(1) The total value of all current, active contracts and grants, including all priced options; and

(2) The total value of all current, active orders including all priced options under indefinite-delivery, indefinite-quantity, 8(a), or requirements contracts (including task and delivery and multiple-award Schedules).

“Principal” means an officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a division or business segment; and similar positions).

(b) The offeror [_] has [_] does not have current active Federal contracts and grants with total value greater than $10,000,000.

(c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:

(1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:

(i) In a criminal proceeding, a conviction.

(ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.

(iii) In an administrative proceeding, a finding of fault and liability that results in—

(A) The payment of a monetary fine or penalty of $5,000 or more; or

(B) The payment of a reimbursement, restitution, or damages in excess of $100,000.

(iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision.

(2) If the offeror has been involved in the last five years in any of the occurrences listed in (c)(1) of this provision, whether the offeror has provided the requested information with regard to each occurrence.

(d) The offeror shall post the information in paragraphs (c)(1)(i) through (c)(1)(iv) of this provision in FAPIIS as required through maintaining an active registration in the System for Award Management which can be accessed via https://www.sam.gov (see 52.204-7).

(End of provision)

52.212-2 Evaluation-Commercial Items.

As prescribed in 12.301(c), the Contracting Officer may insert a provision substantially as follows:

Evaluation-Commercial Items (Oct 2014)

(a) The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered. The following factors shall be used to evaluate offers:

The basis for this evaluation is prescribed in Section D herein.

(b) Options. The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

(c) A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer's specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

(End of provision)

52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items.

As prescribed in 12.301(b)(4), insert the following clause:

Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items (JAN 2019)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and

Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91).

(3) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015)

(4) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(5) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Public Laws 108-77, 108-78 (19 U.S.C. 3805 note)).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the contracting officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

[Contracting Officer check as appropriate.] _X__ (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).

___ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509).

___ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub L. 111-5) (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009).

_X_ (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).

___ (5) [Reserved]

___ (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

___ (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

_X_ (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 (Oct 2018) (41 U.S.C. 2313).

___ (10) [Reserved]

___ (11) (i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011) (15 U.S.C. 657a).

___ (ii) Alternate I (Nov 2011) of 52.219-3.

___ (12) (i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct 2014) (if the offeror elects to…