2013_Texas_Deregulated_Energy-_Synopsis_and_Solicitation.pdf

PROPERTY OF THE UNITED STATES GOVERNMENT

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This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued.

TEXAS DEREGULATED ELECTRICITY PROCUREMENT

Combined Synopsis/Solicitation

GS-07P-13-JU-C-0027

General Services Administration’s (GSA) Greater Southwest Region has a need for electric power to operate its federal government owned and occupied buildings located within deregulated areas of the Texas ERCOT marketplace. Buildings are located in the Oncor, AEP, AEP North and Centerpoint (lines and wires) transmission and delivery service delivery areas. GSA is seeking cost effective proposals providing mostly renewable energy to be delivered to GSA facilities.

The successful offeror will supply electricity, scheduling, transmission, billing, and other related and ancillary services for either 60 or 120 monthly billing cycles generally beginning with the next available meter read after contract award, the current contract expires July 31, 2013. The approximate one year electric requirement is

124,000,000 kWh.

The government is seeking a fixed price flat rate contract for an optimal term of ten years. The Government will also request pricing for a five year term. Given the volatility of fuel costs and electricity prices, and the difficulty of determining where natural gas and other generation fuel markets are headed in the future, GSA requires stable supply and pricing. GSA has decided to address these issues by procurement of reliable, price stable and economically feasible electric energy, with consideration being given to clean renewable energy to supply its facilities.

The Government is looking for pricing on 100% of its requirements and this will be a requirements contract when awarded. The Government’s preference is to award 100% of the power to be supplied by renewable energy.

However, bids will also be accepted for 50% renewable and 100% conventionally generated electric power and award will be made to either of these if the 100% renewable price is not considered fair and reasonable.

The procurement will be held in a two-step bid process with the technical proposals due April 8, 2013. Technical proposals will be evaluated in accordance with the evaluation factors noted in the solicitation. Discussions may, or may not, be held. The Government intends to award a contract(s) to the offeror(s) that meet the solicitation's technical requirements and price evaluation requirements. Multiple Awards may be made. A supplier’s technical response will be due no later than 3:00 p.m. CT on April 8, 2013 at the address specified in the solicitation.

Offerors meeting the solicitation's technical requirements will submit pricing via GSA's Reverse Auction Website, and will be notified separately once they have been selected to participate in the reverse auction.

This procurement is being conducted on an unrestricted basis; however the successful offeror will be required to be registered with the Public Utilities Commission of Texas (PUCT) as a Retail Electric Provider (REP). The successful offeror will also be required to submit evidence of its ability to guarantee performance for the entire length of the contract awarded. Any questions or requests for additional information should be directed in writing to Mrs. Natalie Holmes, Contracting Officer, at Natalie.Holmes@gsa.gov.

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NOTE: ALL QUESTIONS MUST BE SUBMITTED IN WRITING NO LATER THAN MARCH 22, 2013

AND CAN BE SENT VIA ELECTRONIC MAIL TO natalie.holmes@gsa.gov. ALL QUESTIONS AND

ANSWERS WILL BE ADDRESSED IN AN AMENDMENT TO THE SOLICITATION.

SECTION A: SCOPE OF WORK

A.1 GENERAL

1. The General Services Administration (GSA or Government) is requesting proposals for the supply of all electricity commodity components up to the Delivery Point including energy, capacity, ancillary services, scheduling, balancing, fuel costs, and network firm transmission necessary for the firm supply of electricity to a number of Federal facilities in various service territories in the State of Texas. The successful offeror(s) (i.e. Contractor) will supply the full requirements of such electricity for contract terms awarded of full monthly billing cycles. The start date for deliveries shall be the next available meter read date for the billing cycle that begins after August 1, 2013.

2. All quantities required to be supplied to facilities included in this contract shall be considered firm requirements and guaranteed for delivery by the Contractor to the Delivery

Point. The Contractor shall be liable for all penalties assessed by ERCOT, the T&D entity, or other regulatory agencies with jurisdiction for the non-delivery of firm requirements. Such penalties shall not constitute a breach of contract nor form the basis for damages payable by the

Government. The transportation of electricity provided under this contract shall conform to the tariff of the interstate/intrastate transmitting utility and the T&D entity at the Delivery Point for the accounts specified in Attachment C.1.

3. Offerors are required to submit a unit price per kWh for each T&D service area that they choose to be considered for. GSA is seeking pricing for its load requirements in each T&D service area that is based on power generated from renewable energy sources ―made firm‖ and supported by any normal electric power generator's standard renewable or conventional fuel mix load. Provision is also made for the offeror to provide a mix of conventional and renewable energy in excess of the stated minimal requirements. Offers submitted will be evaluated to determine their cost reasonableness and reliability. Service of these requirements should begin with the next available meter read of each account in that T&D service area, after August 1, 2013

4. The Government seeks to promote the use of renewable energy where this is economically reasonable. The government’s experience has been that ―green‖ or renewable power is often sold at a markup in the marketplace. The introduction of green power into the governments overall requirements allows the government to consider purchasing power that promotes environmental objectives, assists in meeting requirements of Executive Orders and environmental directives, but still gives consideration to the operating costs of its facilities. Any offeror supplying green or renewable energy shall provide certification that the percentage of

GSA’s requirements that are satisfied from green renewable sources is actually produced from such sources, is dedicated to the government’s requirements and is not subject to being sold to other parties. Any green or renewable power offered shall meet the standard established by the

Center for Resource Solutions (CRS) Green-e products certification requirements or other appropriate certifying bodies and shall qualify for credit under the U.S. Green Building

Council’s Leadership in Energy Efficiency and Environmental Design (LEED) Program and

EPA’s Energy Star or other programs. GSA will not consider nuclear power as a green power source regardless of its lack of greenhouse gas emissions. GSA reserves the right, but not the obligation, to audit the production facilities, books, records and accounts, of the offeror in order to verify and confirm that the green power being provided is not being sold to multiple parties mailto:natalie.holmes@gsa.gov

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However, a party may offer nuclear, hydroelectric or power generated from other sources in order to supplement renewable energy and to make this ―firm delivery‖ power during periods of time when renewable energy sources are unavailable, provided it does not result in the majority of the power supplied coming from non-renewable sources.

A.2 FIRM FIXED PRICING DEFINITION

Firm, fixed pricing is defined as a firm and fixed price for all quantities of electricity estimated to be delivered at the meter point during a given Billing Period for an account (a Billing Period is usually considered a period of between 27 and 35 days). This usage shall include Peak, Off-Peak, Weekends, and Holiday usage.

A.3 DELIVERY POINT

The Delivery Point for such electricity shall be that point on the electric system at which the T&D entity delivers possession of the electricity for final delivery of the electricity to the meter(s) of the specific facilities identified in Exhibit C.1 of this contract. The Delivery Point shall be where the facility takes title to the electricity.

A.4 ENROLLMENT

The Contractor will be responsible for switching GSA accounts from current REP to Contractor and fulfilling any obligations with ERCOT to that end. The successful Contractor(s) will be required to confirm Attachment C.1 which is a spreadsheet identifying each account number being served under this contract and the end date of each current account.

A.5 BILLING AND PAYMENT

1. The REP will submit one monthly invoice to GSA per ESI ID Number for supplies and services rendered the previous month. The invoice should include the amount of kWh and kW measured at each meter and be consistent with the rules of the Texas Public Utility Commission regarding issuance and format of bills. Such bills shall generally comply with the billing format provided by GSA (see

Attachment C). Each bill should contain itemized account level detail, on a building or facility basis and shall, as a minimum, contain such information as would be useful to GSA in best managing its electric power purchases and for its use in a cost effective and efficient manner. Each invoice shall identify and separately report all information as outlined in Attachment C.

2. It shall be the Contractor’s responsibility to know and understand the specific details and requirements for monthly billing, reporting, and coordination with the T&D entities. 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 T&D entity. The

Government shall pay each monthly bill submitted in accordance with the Prompt Payment Act (FAR

32.9 including the clause at 52.232-25).

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A.6 NOMINATING AND BALANCING RESPONSIBILITIES

It is the Contractor’s responsibility to conduct all required nominations, scheduling, or other required actions on behalf of the facilities specified herein or added in the future. The Contractor shall be fully familiar with the imbalance, transmission grid loss and line loss policies of the T&D entities. Any costs and/or penalties associated with these items will be borne by the Contractor.

A.7 CREDIT FOR DEFAULT SUPPLY SERVICE

If at any time (unless under a condition of Force Majeure) an account covered by this contract is forced to accept default supply service from the T&D Entity serving in its capacity as the utility supplier of last resort, the Contractor shall be responsible for payment of the additional service costs incurred, if any.

A.8 RISK OF LOSS

Risk of loss of electricity supplied under this contract shall remain with the Contractor until, and title to the electricity shall pass to the Government upon, delivery of said electricity to the Delivery Point specified for each facility.

A.9 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. The Contractor shall also comply with all Federal regulations regarding the protection of all data and information furnished to the

Contractor by the local utility company.

A.10 ANTI-DEFICIENCY

In accordance with the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)), nothing contained herein shall be construed as binding the Government to expend, in any one fiscal year, any sum in excess of the appropriation made by Congress for that fiscal year in furtherance of the subject matter of the contract or to involve the Government in an obligation for the future expenditure of moneys before an appropriation is made.

A.11 ADDING AND DELETING FACILITIES TO THIS CONTRACT

It is possible that GSA facilities may be added, or deleted during the term of this contract. Adding and deleting a facility (ies) shall be accomplished by the bilateral execution of Standard Form 30, Amendment of Solicitation/Modification of Award. The Contractor has thirty (30) days from the execution of the Standard Form 30 to add or delete a facility to this contract. Prices for any added facilities will be established at that time by using the price bid in the initial offering.

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A.12 CONTRACT ADMINISTRATION

After award, this contract shall be administered by the General Services Administration’s Greater

Southwest Region. The Contracting Officer (CO) for the administration of this contract is:

Natalie Holmes Telephone (817) 978-0351

GSA, PBS, Acquisition Management Division Fax (817) 978-2577

Energy & Acquisition Support Branch (7PQD) e-mail: natalie.holmes@gsa.gov

819 Taylor St., Rm 12B01

Fort Worth, TX 76102

A.13 ACCOUNT REPRESENTATIVE

The contractor shall assign an identified specific individual and account representative to work directly with GSA. This individual shall have sufficient corporate or executive authority to speak for, act for, and bind the contractor in all issues and matters pertaining to this contract.

A.14 INDEMNIFICATION

REP shall indemnify GSA and hold it harmless from all suits, actions, debts, accounts, damage, costs losses and expenses arising from the acquisition, production or transmission of such electric power, or out of adverse claims of any and all persons to said kWh or to royalties, fees, transportation charges, demand charges, capacity charges, taxes, license fees or charges thereon which are applicable prior to delivery of such kWh to GSA, at the delivery point.

A.15 BASIS FOR AWARD PRICE

The price bid and accepted by the Government the day of the reverse auction will form the basis of award for this contract. The contract is intended to be a firm fixed price for a term of years.

Upon contract award and entry into a binding agreement the successful vendor agrees that the price offered to the government shall continue as a fixed price for the duration of the contract term. If new

Competitive Renewable Energy Zones (CREZ) or other transmission lines are constructed that allow power to be more cost effectively carried to market the successful vendor shall take such action as is necessary to obtain a reduced transmission tariff at the PUC of Texas or elsewhere.

The settlement price for any subsequent building that is added to this contract after award shall be determined by reference to the Market Clearing Price of Energy (MCPE) existing on the date of contract award. The relationship between the contract award price and the Market Clearing Price of Energy shall form the basis for any subsequent building that is added to this contract. The proportional relationship between the price for that buildings kWhs consumed and the market clearing price of electric power shall be maintained. For example, if the contract price bid and accepted is x and on the day of bidding the market clearing price is 20 % less than x then when an additional building is added to this contract the price for its load shall be determined by taking the current market clearing price and adding 20% to

it. The index used to determine market clearing price shall be the published index most frequently used by industry to establish such prices and if there are more than one indexes that are used, the average of

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A.16 CONTINUING SERVICE

If a new contract has not been awarded when the current contract expires, the contract will continue on a month to month basis using the price adjustment method as mutually negotiated and agreed to between the parties. The term of the extended service under this provision shall not exceed six (6) months.

A.17 REBATES, INCENTIVES

1. The successful offeror shall identify, make known, and pass through to GSA any rebate, financial incentive, systems benefits payments, or any other opportunities, whether expressly mentioned here, or not, that may exist, or may thereafter come into existence during the term of this contract for the buildings and facilities contracted herein.

2. It is clearly understood between the parties that any state, utility or local government rebates or incentive funds that become available for the efficient use of energy, or the use of renewable energy, used by the Government, or for incentives to induce the government to operate its buildings efficiently and effectively; or to install efficient equipment, or engage in load reduction strategies shall be applied for. The funds obtained shall be provided to the government. The successful party awarded a contact with the government agrees that it shall work with and coordinate with the government to provide it with the benefit of these programs. Nothing contained in this contract shall obligate the government to avoid implementation of energy reduction measures or other strategies to reduce its energy use and/or cost of service.

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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.arnet.gov/far/

B.2 CLAUSES IN FULL TEXT

52.212-1 Instructions to Offerors—Commercial Items. (Feb 2012) [Reference FAR in 12.301(b)(1)]

(a) North American Industry Classification System (NAICS) code and small business size standard.

The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.

(b) Submission of offers. Submit signed and dated offers to the office specified in this solicitation at or before the exact time specified in this solicitation. Offers may be submitted on the SF 1449, letterhead stationery, or as otherwise specified in the solicitation. As a minimum, offers must show—

(1) The solicitation number;

(2) The time specified in the solicitation for receipt of offers;

(3) The name, address, and telephone number of the offeror;

(4) A technical description of the items being offered in sufficient detail to evaluate compliance with the requirements in the solicitation. This may include product literature, or other documents, if necessary;

(5) Terms of any express warranty;

(6) Price and any discount terms;

(7) ―Remit to‖ address, if different than mailing address;

(8) A completed copy of the representations and certifications at FAR 52.212-3 (see FAR 52.212-

3(b) for those representations and certifications that the offeror shall complete electronically);

(9) Acknowledgment of Solicitation Amendments;

(10) Past performance information, when included as an evaluation factor, to include recent and relevant contracts for the same or similar items and other references (including contract numbers, points of contact with telephone numbers and other relevant information); and

(11) If the offer is not submitted on the SF 1449, include a statement specifying the extent of agreement with all terms, conditions, and provisions included in the solicitation. Offers that fail to furnish required representations or information, or reject the terms and conditions of the solicitation may be excluded from consideration.

(c) Period for acceptance of offers. The offeror agrees to hold the prices in its offer firm for

30 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the solicitation.

(d) Product samples. When required by the solicitation, product samples shall be submitted at or prior to the time specified for receipt of offers. Unless otherwise specified in this solicitation, these samples shall be submitted at no expense to the Government, and returned at the sender’s request and expense, unless they are destroyed during preaward testing.

(e) Multiple offers. Offerors are encouraged to submit multiple offers presenting alternative terms and conditions or commercial items for satisfying the requirements of this solicitation. Each offer submitted will be evaluated separately.

(f) Late submissions, modifications, revisions, and withdrawals of offers.

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(1) Offerors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.

(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ―late‖ and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and—

(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than

5:00 p.m. one working day prior to the date specified for receipt of offers; or

(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government’s control prior to the time set for receipt of offers; or

(C) If this solicitation is a request for proposals, it was the only proposal received.

(ii) However, a late modification of an otherwise successful offer, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.

(3) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.

(4) If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal

Government processes resume.

(5) Offers may be withdrawn by written notice received at any time before the exact time set for receipt of offers. Oral offers in response to oral solicitations may be withdrawn orally. If the solicitation authorizes facsimile offers, offers may be withdrawn via facsimile received at any time before the exact time set for receipt of offers, subject to the conditions specified in the solicitation concerning facsimile offers. An offer may be withdrawn in person by an offeror or its authorized representative if, before the exact time set for receipt of offers, the identity of the person requesting withdrawal is established and the person signs a receipt for the offer.

(g) Contract award (not applicable to Invitation for Bids). The Government intends to evaluate offers and award a contract without discussions with offerors. Therefore, the offeror’s initial offer should contain the offeror’s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary.

The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.

(h) Multiple awards. The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitations. Unless otherwise provided in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit prices offered, unless the offeror specifies otherwise in the offer.

(i) Availability of requirements documents cited in the solicitation.

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(1)(i) The GSA Index of Federal Specifications, Standards and Commercial Item Descriptions, FPMR Part 101-29, and copies of specifications, standards, and commercial item descriptions cited in this solicitation may be obtained for a fee by submitting a request to—

GSA Federal Supply Service Specifications Section

Suite 8100

470 East L’Enfant Plaza, SW

Washington, DC 20407

Telephone (202) 619-8925

Facsimile (202) 619-8978.

(ii) If the General Services Administration, Department of Agriculture, or Department of

Veterans Affairs issued this solicitation, a single copy of specifications, standards, and commercial item descriptions cited in this solicitation may be obtained free of charge by submitting a request to the addressee in paragraph (i)(1)(i) of this provision. Additional copies will be issued for a fee.

(2) Most unclassified Defense specifications and standards may be downloaded from the following

ASSIST websites:

(i) ASSIST (http://assist.daps.dla.mil).

(ii) Quick Search (http://assist.daps.dla.mil/quicksearch).

(iii) ASSISTdocs.com (http://assistdocs.com).

(3) Documents not available from ASSIST may be ordered from the Department of Defense Single

Stock Point (DoDSSP) by—

(i) Using the ASSIST Shopping Wizard (http://assist.daps.dla.mil/wizard);

(ii) Phoning the DoDSSP Customer Service Desk (215) 697-2179, Mon-Fri, 0730 to 1600 EST;

or

(iii) Ordering from DoDSSP, Building 4, Section D, 700 Robbins Avenue, Philadelphia, PA

19111-5094, Telephone (215) 697-2667/2179, Facsimile (215) 697-1462.

(4) Nongovernment (voluntary) standards must be obtained from the organization responsible for their preparation, publication, or maintenance.

(j) Data Universal Numbering System (DUNS) Number. (Applies to all offers exceeding $3,000, and offers of $3,000 or less if the solicitation requires the Contractor to be registered in the Central

Contractor Registration (CCR) database.) The offeror shall enter, in the block with its name and address on the cover page of its offer, the annotation ―DUNS‖ or ―DUNS+4‖ followed by the DUNS or

DUNS+4 number that identifies the offeror’s name and address. The DUNS+4 is the DUNS number plus a 4-character suffix that may be assigned at the discretion of the offeror to establish additional CCR records for identifying alternative Electronic Funds Transfer (EFT) accounts (see FAR Subpart 32.11) for the same concern. If the offeror does not have a DUNS number, it should contact Dun and Bradstreet directly to obtain one. An offeror within the United States may contact Dun and Bradstreet by calling 1-

866-705-5711 or via the internet at http://fedgov.dnb.com/webform. An offeror located outside the

United States must contact the local Dun and Bradstreet office for a DUNS number. The offeror should indicate that it is an offeror for a Government contract when contacting the local Dun and Bradstreet office.

(k) Central Contractor Registration. Unless exempted by an addendum to this solicitation, by submission of an offer, the offeror acknowledges the requirement that a prospective awardee shall be registered in the CCR database prior to award, during performance and through final payment of any contract resulting from this solicitation. If the Offeror does not become registered in the CCR database in the time prescribed by the Contracting Officer, the Contracting Officer will proceed to award to the http://assist.daps.dla.mil/ http://assist.daps.dla.mil/quicksearch http://assistdocs.com/ http://assist.daps.dla.mil/wizard https://www.acquisition.gov/far/current/html/Subpart%2032_11.html#wp1043964 http://fedgov.dnb.com/webform

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(l) Debriefing. If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable:

(1) The agency’s evaluation of the significant weak or deficient factors in the debriefed offeror’s offer.

(2) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror.

(3) The overall ranking of all offerors, when any ranking was developed by the agency during source selection.

(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror.

(6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

52.212-4 -- Contract Terms and Conditions -- Commercial Items (Feb 2012) [Reference FAR

12.301(b)(3)]

(a) Inspection/Acceptance. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights—

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

(b) Assignment. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any

Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the

Contractor may not assign its rights to receive payment under this contract.

(c) Changes. Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

(d) Disputes. This contract is subject to the Contract Disputes Act of 1978, as amended

(41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) Definitions. The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, https://www.acquisition.gov/ http://acquisition.gov/far/current/html/Subpart%2012_3.html#wp1084399 http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t29t32+1665+30++%2831%29%20%20AND%20%28%2831%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20 http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+2+13++%2841%29%20%20AND%20%28%2841%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20 https://www.acquisition.gov/far/current/html/52_233_240.html#wp1113304 https://www.acquisition.gov/far/current/html/52_200_206.html#wp1137572

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(g) Invoice.

(1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include—

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds

Transfer—Central Contractor Registration, or 52.232-34, Payment by Electronic Funds Transfer—Other

Than Central Contractor Registration), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and

Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

(h) Patent indemnity. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) Payment.—

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment

Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR Part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

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(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the

Contractor shall—

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the—

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected contract line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in Section

611 of the Contract Disputes Act of 1978 (Public Law 95-563), which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if—

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the

Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the

Contracting Officer (see 32.607-2).

(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on—

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt; or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in 32.608-2 of the Federal Acquisition Regulation in effect on the date of this contract.

(j) Risk of loss. Unless the contract specifically provides otherwise, risk of loss or damage to the supplies provided under this contract shall remain with the Contractor until, and shall pass to the

Government upon:

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(1) Delivery of the supplies to a carrier, if transportation is f.o.b. origin; or

(2) Delivery of the supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination.

(k) Taxes. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) Termination for the Government’s convenience. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the

Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the

Government using its standard record keeping system, have resulted from the termination. The

Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) Termination for cause. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the

Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) Title. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) Warranty. The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

(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.

(q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 3701, et seq., Contract Work

Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly

American; and 41 U.S.C. 423 relating to procurement integrity.

(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, and Compliance with Laws

Unique to Government Contracts paragraphs of this clause.

(3) The clause at 52.212-5.

(4) Addenda to this solicitation or contract, including any license agreements for computer software.

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(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.

(t) Central Contractor Registration (CCR).

(1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the CCR database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the CCR database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the CCR database to ensure it is current, accurate and complete. Updating information in the CCR does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)(i) If a Contractor has legally changed its business name, ―doing business as‖ name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in

FAR Subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day’s written notification of its intention to (A) change the name in the CCR database;

(B) comply with the requirements of Subpart 42.12; and (C) agree in writing to the timeline and procedures specified by the responsible Contracting Officer.

The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the CCR information that shows the Contractor to be…