GS09P08KSC0009 SOLICITATION WITH 1449.pdf

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:

a. NAME b. TELEPHONE NUMBER (No collect calls)

8. OFFER DUE DATE/

LOCAL TIME

9. ISSUED BY

13b. RATING

14. METHOD OF SOLICITATION

CODE

15. DELIVER TO 16. ADMINISTERED BY CODE

18a. PAYMENT WILL BE MADE BY CODE 17a. CONTRACTOR/

OFFEROR

CODE

FACILITY

CODE

CODE

TELEPHONE NO.

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

OFFER

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

BELOW IS CHECKED

RFQ IFB RFP

SEE ADDENDUM

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

(Use Reverse and/or Attach Additional Sheets as Necessary)

25. ACCOUNTING AND APPROPRIATION DATA 26. TOTAL AWARD AMOUNT (For Govt. Use Only)

28. CONTRACTOR IS REQUIRED TO SIGN THIS DOCUMENT AND RETURN

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.

DATED . YOUR OFFER ON SOLICITATION

(BLOCK 5), INCLUDING ANY ADDITIONS OR CHANGES WHICH ARE

SET FORTH HEREIN, IS ACCEPTED AS TO ITEMS:

30a. SIGNATURE OF OFFEROR/CONTRACTOR

30b. NAME AND TITLE OF SIGNER (Type or print) 30c. DATE SIGNED

31a. UNITED STATES OF AMERICA (SIGNATURE OF CONTRACTING OFFICER)

31b. NAME OF CONTRACTING OFFICER (Type or print) 31c. DATE SIGNED

AUTHORIZED FOR LOCAL REPRODUCTION

PREVIOUS EDITION IS NOT USABLE

STANDARD FORM 1449 (REV. 3/2005)

Prescribed by GSA - FAR (48 CFR) 53.212

10. THIS ACQUISITON IS

UNRESTRICTED OR

NAICS:

SIZE STANDARD:

COPIES TO ISSUING OFFICE. CONTRACTOR AGREES TO FURNISH AND

OFFER

13a. THIS CONTRACT IS A

RATED ORDER UNDER

DPAS (15 CFR 700)

SET ASIDE: % FOR:

SMALL BUSINESS

HUBZONE SMALL

BUSINESS

SERVICE-DISABLED VETERAN-

OWNED SMALL BUSINESS

EMERGING SMALL

BUSINESS

8(A)

11. DELIVERY FOR FOB DESTINA-

TION UNLESS BLOCK IS

MARKED

SEE SCHEDULE

12. DISCOUNT TERMS

ARE ARE NOT ATTACHED

ARE ARE NOT ATTACHED

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

STANDARD FORM 1449 (REV. 3/2005) BACK

19.

ITEM NO.

20.

SCHEDULE OF SUPPLIES/SERVICES

21.

QUANTITY

22.

UNIT

23.

UNIT PRICE

24.

AMOUNT

32a. QUANTITY IN COLUMN 21 HAS BEEN

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

41a. I CERTIFY THIS ACCOUNT IS CORRECT AND PROPER FOR PAYMENT

32b. SIGNATURE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32c. DATE

41b. SIGNATURE AND TITLE OF CERTIFYING OFFICER 41c. DATE

42a. RECEIVED BY (Print)

42b. RECEIVED AT (Location)

42c. DATE REC'D (YY/MM/DD) 42d. TOTAL CONTAINERS

40. PAID BY

32d. PRINTED NAME AND TITLE OF AUTHORIZED GOVERNMENT

REPRESENTATIVE

32e. MAILING ADDRESS OF AUTHORIZED GOVERNMENT REPRESENTATIVE 32f. TELPHONE NUMBER OF AUTHORZED GOVERNMENT REPRESENTATIVE

32g. E-MAIL OF AUTHORIZED GOVERNMENT REPRESENTATIVE

33. SHIP NUMBER 34. VOUCHER NUMBER 35. AMOUNT VERIFIED

CORRECT FOR

PARTIAL FINAL

37. CHECK NUMBER

38. S/R ACCOUNT NO. 39. S/R VOUCHER NUMBER

36. PAYMENT

COMPLETE PARTIAL FINAL

DIRECT ACCESS ELECTRICITY, GSA ACCOUNTS IN

THE PG&E, SDG&E AND SOCALEDISON SERVICE

AREAS OF CALIFORNIA

FY 2009 DIRECT ACCESS ELECTRICITY

0001 Revenue Cycle Service (RCS) fee (applicable to award based on Indexed Pricing or Fixed Price Alternate). The 920,000 kWh estimated quantity is a rough estimate for evaluation and internal accounting purposes only.

92000000.00 KW

FY 2009 DIRECT ACCESS ELECTRICITY - PG&E

SERVICE AREA

0002A FIXED PRICE ALTERNATE: Price per kWh for Energy provided to the PG&E area accounts. The 39,000,000 kWh estimated quantity is a rough estimate for evaluation and internal accounting purposes only.

39000000.00 KW

FY 2009 DIRECT ACCESS ELECTRICITY - SOUTHERN

CALIFORNIA EDISON SERVICE AREA

0002B FIXED PRICE ALTERNATE: Price per kWh for Energy provided to the Edison area accounts. The 34,000,000 kWh estimated quantity is a rough estimate for evaluation and internal accounting purposes only.

34000000.00 KW

FY 2009 DIRECT ACCESS ELECTRICITY - SAN DIEGO

GAS & ELECTRIC SERVICE AREA

0002C FIXED PRICE ALTERNATE: Price per kWh for Energy provided to the SDG&E area accounts. The 19,000,000 kWh estimated quantity is a rough estimate for evaluation and internal accounting purposes only.

19000000.00 KW

SCHEDULE Continued

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

PAGE 2 OF

GS-09P-08-KSC-0009

TABLE OF CONTENTS

1 DESCRIPTION OF SERVICES

2 PERIOD OF PERFORMANCE

3 PRICE SCHEDULE

3.1 INDEXED PRICING

3.2 FIXED PRICE ALTERNATE

3.3 DEFINITIONS

3.4 OBLIGATION TO MANAGE COSTS

4 ACCOUNT NUMBERS

5 HISTORICAL CONSUMPTION DATA

6 COMPLIANCE WITH REGULATORY REQUIREMENTS

7 TAX EXEMPTION

8 UDC COORDINATION

9 INSPECTION AND ACCEPTANCE

10 INVOICE REQUIREMENTS AND PAYMENT

11 THE ROLE OF GOVERNMENT PERSONNEL AND RESPONSIBILITY FOR CONTRACT

ADMINISTRATION

11.1 CONTRACTING OFFICER (CO)

11.2 CONTRACTING OFFICER'S REPRESENTATIVE (COR)

12 NOTICES AND CORRESPONDENCE

13 CONFIDENTIALITY

14 TERMINATION

15 52.241 UTILITY SERVICES PROVISIONS AND CLAUSES

15.1 52.241-1 ELECTRIC SERVICE TERRITORY COMPLIANCE REPRESENTATION (MAY 1999)

15.2 52.241-2 ORDER OF PRECEDENCE-UTILITIES (FEB 1995)

15.3 52.241-3 SCOPE AND DURATION OF CONTRACT (FEB 1995)

15.4 52.241-4 CHANGE IN CLASS OF SERVICE (FEB 1995)

15.5 52.241-5 CONTRACTOR'S FACILITIES (FEB 1995)

15.6 52.241-6 SERVICE PROVISIONS (FEB 1995)

16 52.212-4 CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (OCT 2003)

17 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS- COMMERCIAL ITEMS (JUNE 2004)

18 552.212-71 CONTRACT TERMS AND CONDITIONS APPLICABLE TO GSA ACQUISITION OF

COMMERCIAL ITEMS (JUL 2003)

19 INSTRUCTION TO OFFERORS

19.1 STEP 1: QUESTIONS

19.2 STEP 2: QUALIFICATIONS DOCUMENTS & BANDWIDTH CALCULATIONS

19.3 STEP 3: EXECUTABLE PRICE PROPOSAL & SF 1449

20 BASIS OF AWARD

21 52.212-3 OFFEROR REPRESENTATIONS AND CERTIFICATIONS-COMMERCIAL ITEMS (MAY

2004)

1 DESCRIPTION OF SERVICES

The Contractor shall provide direct access electricity for General Services Administration (GSA, or Government) accounts listed in Attachment A (Accounts), within the PG&E, Southern California Edison, and SDG&E (the UDCs ("utility distribution companies")) service areas (Energy). Service shall commence for each account on the first meter read date in October 2006, and terminate at the end of each billing cycle during July 2007 (a 9 month period). The Contractor shall perform all necessary and required electricity purchasing/supply, metering, dual billing and scheduling coordination services for GSA without additional charge. Scheduling Coordination services shall include, but are not limited to, meter data management, daily load forecasting, scheduling, and settlement obligations for the Energy in accordance with the applicable ISO tariff rules and requirements. The Contractor’s price shall be inclusive of all charges, assessments, costs, or fees imposed by the California ISO for delivery of Energy. The "direct access cost responsibility surcharge" (DACRS) will be paid directly by GSA to the UDCs as a tariff component. Title to electricity provided passes to GSA at the meter.

Contractor agrees to sell, and GSA agrees to purchase, full requirements of the listed accounts if these accounts remain within the GSA inventory. If any building is removed from the GSA inventory during the term of this Contract, accounts associated with such building will be removed from this Contract concurrently with the date the building is removed from the GSA inventory, at no additional cost to GSA, so long as GSA provides notice to the Contractor at least 30 days in advance of removal date (i.e., GSA will pay for electricity at the Contract rate until the building changes hands, and nothing else). If GSA fails to give such notice, Contractor may submit a claim for any additional costs that can be demonstrated to derive directly from failure to provide such notice;

such claims shall, however, consider any increases in consumption for other covered accounts that might compensate in whole or in part. GSA does not know of any buildings covered by this Contract that will be removed from the inventory during the period of this Contract.

GSA reserves the right to produce electricity for on-site consumption, through photovoltaic projects, co-gen projects, or by other means, and to participate in net metering programs.

GSA may make multiple awards, with the accounts of each UDC being awarded to different Offerors.

2 PERIOD OF PERFORMANCE

Service shall commence for each account on the first meter read date in January 2009, and terminate at the end of each billing cycle during January 2010 (12 month period).

The Contractor is responsible for submission of Direct Access Service Requests (DASRs) and any other documents required by UDCs as soon as practicable after notification of award, to assure accounts will be switched timely. If the Contractor neglects to submit DASRs or other documents in a timely, or accurate manner, GSA may charge the Contractor for excess costs incurred resulting from such failure, including but not limited to the difference between the Contract price and the otherwise applicable rate if the commencement of service under this Contract is delayed.

3 PRICE SCHEDULE

3.1 INDEXED PRICING

Product Type: Index Energy Price with Block Option. Contractor will provide electricity to the Account(s) pursuant to the rates set forth herein and any Block Purchase Confirmation(s). Customer agrees to pay to Contractor the Contractor Electricity Charge according to the terms set forth herein. The Contractor Electricity Charge includes line losses but does not include any Utility charges for distribution services or any applicable taxes or surcharges with regard to the distribution of electricity. Any such Delivery Charges shall be the sole financial responsibility of Customer and Contractor shall have no liability therefore. Contractor will provide the commodity of electricity, as opposed to the transmission or distribution of electricity.

The Contractor Electricity Charge shall be calculated as follows: A + B + C + D + E + F.

Price: Customer covenants and agrees to pay all the following charges for Direct Access Services (measured in kWh), and executed using a Day Ahead Block Purchase Conformation and/or a Block Purchase Confirmation:

(A) TOU Price , which shall be calculated for each TOU Period as:

a) (DAY AHEAD BLOCK PURCHASE QUANTITY (On Peak)) x DLF x (Hourly Intercontinental Exchange Market Price + K); plus

b) (DAY AHEAD BLOCK PURCHASE QUANTITY (Off Peak)) x DLF x (Hourly Intercontinental Exchange Market Price + K); plus

(B) Block Usage Adjustments , which shall be calculated for each Account for each hour as applicable and summed over the billing cycle. For each hour in the billing cycle when energy usage exceeds Day Ahead Block Purchase Quantity plus Block Purchase Quantity (if applicable) there will be a Usage Adjustment equal to the result of the following formula, if positive: (HOURLY ENERGY – Day Ahead Block Purchase Quantity) x DLF x (HOURLY MARKET PURCHASE PRICE + K). For each hour in the billing cycle when energy usage is less than Day Ahead Block Purchase Quantity there will be a Usage Adjustment equal to the result of the following formula, if positive: (Day Ahead Block Purchase Quantity - HOURLY ENERGY) x DLF x (HOURLY MARKET SALES PRICE – K)); plus

(C) Revenue Cycle Service (RCS) Fee ; plus

(D) RA Fee , plus

(E) Taxes (if applicable) ; plus

(F) Block Purchase Charge , Contractor will consult with Customer from time to time regarding availability and pricing of block electricity purchase opportunities.

Customer may from time to time make elections to purchase specific blocks of electricity at the quoted price for a specific geographical zone (the “Zone”) (the “Block Purchase(s)”, using the Block Power Purchase Confirmation form attached hereto and incorporated herein by reference. Each Block Purchase shall be for a specific number of kilowatt hours of electricity delivered at the appropriate wholesale zonal delivery point on a specific schedule for a specific period of time in a specific Zone (the “Terms”). All Block Purchases shall be on a firm take-or-pay basis, meaning that Customer shall pay for all of the Block Purchase electricity that is tendered by Contractor pursuant to the Terms, regardless of whether the electricity is accepted or used by Customer or any Account.

The foregoing charges set forth in (A) through (F) are referred to herein as the “Contractor Electricity Charge. ” The Contractor Electricity Charge does not include or cover any Delivery Charges related to transmission, distribution and other services, which charges shall be the sole responsibility of Customer, and Contractor shall have no liability therefor. Furthermore, Contractor shall have no obligation to enroll or supply electricity to any account(s) not identified in this Pricing Schedule. All Block Purchase Confirmations or Day Ahead Block Purchase Confirmations executed prior to the expiration of this Pricing Schedule shall be honored for the term of sale, and the terms of this Pricing Schedule shall apply to the applicable Block Purchase or Day Ahead Block Purchase. Customer represents and warrants that it will not purchase total electricity in excess of its reasonably estimated consumption forecast.

3.2 FIXED PRICE ALTERNATE

If this Contract is awarded using the Fixed Price Alternate, then the price paid by Customer is not based on the formula for calculating Contractor Electricity Charges as described this Contract (Price (A)), but will be the price entered under CLIN 0002A, 0002B and 0002C, as applicable, of the SF 1449. Otherwise the pricing formula for Indexed Pricing applies, to include the RCS fee.

Block Purchase quantities must be shaped to fit the interval and other data provided as closely as possible. Within two weeks of Contract award the Contractor must submit proposed load data, if the Contract is issued using the Fixed Price Alternate.

3.3 DEFINITIONS

“Delivery Charges” mean those amounts payable (including Taxes and surcharges) by Customer for services provided by the Utility, ISO or other third parties.

“Direct Access Services” means the services Contractor shall provide under this Contract, namely serving as Customer’s exclusive full requirements electricity supplier and related electricity purchasing, supply/scheduling coordination, and metering and billing services for each of the Account(s) identified in this Schedule A , which Customer has represented and warranted are eligible for Direct Access Service, and which are accepted by the Utility for enrollment by Contractor.

“RA Fee” means the cost associated with mandatory compliance of the CPUC’s Resource Adequacy requirement and shall be calculated as follows: (billing cycle peak kW demand x 115%) x RA Cost. The Contractor is responsible for such compliance.

Forward Contract; Inapplicability of Commodities Exchange Act . T he Parties acknowledge and agree that this Contract is a “forward Contract” and that Contractor is a “forward Contract merchant” for purposes of the U.S. Bankruptcy Code, as amended . Further, Contractor is not providing advice regarding the value or advisability of trading in “commodity interests” as defined in the Commodity Exchange Act, 7 U.S.C.

§§ 1-25, et seq., as amended (the “CEA”), including futures Contracts and commodity options or any other activity which would cause Contractor or any of its Affiliates to be considered a commodity trading advisor under the CEA.

Resource Adequacy and Renewables Portfolio Standard Program Implementation. The Contractor Electricity Charges do not reflect the cost of any regulatory requirements which impose resource adequacy or renewable portfolio standards on Contractor. Any such standards imposed by Law shall be passed through to Customer, without mark-up.

3.4 OBLIGATION TO MANAGE COSTS

The Contractor shall make all reasonable efforts to manage costs efficiently for charges A,B,D,E,F, so as to prevent GSA from paying a greater price than necessary.

4 ACCOUNT NUMBERS

The Contractor shall provide account numbers, which must be clearly identified on invoices, within one week of Contract award.

5 HISTORICAL CONSUMPTION DATA

GSA will provide approximately 1 year of historical consumption data, including interval meter data for accounts with interval meters, to Offerors requesting such data, as described herein.

GSA’s facilities vary in their consumption due to a number of factors, including but not limited to changes in tenant overtime activities, space vacancy, and implementation of energy conservation projects. GSA does not guarantee that actual consumption will duplicate historical consumption patterns.

Attachment A also contains rough estimates of annual consumption per account and is provided for informational purposes only.

6 COMPLIANCE WITH REGULATORY REQUIREMENTS

The Contractor is responsible for compliance with all FERC, CPUC, California ISO (CAISO) and other applicable regulatory and tariff requirements.

If a regulatory agency imposes new fees, taxes or surcharges the legal incidence of which fall directly on the Contractor, pricing will be subject to a negotiated adjustment to reflect such new fees, taxes or surcharges. Any such pricing adjustment will be for no more than the direct cost impact of such fees, taxes or surcharges; no markup will be permitted. Regulatory changes having an indirect impact on the Contractor or on market conditions will not be grounds for any change in pricing.

If the Contractor incurs additional unforeseen transmission costs due to CAISO's migration from zonal congestion management to nodal congestion management, pricing may be subject to a negotiated adjustment to reflect such additional costs. The Contractor shall provide sufficient documentation to substantiate any such increased costs, and shall demonstrate reasonable effort to mitigate the impact of such changes.

The Contractor is expected to have expertise with the California power market, and has a duty to make all reasonable efforts to mitigate the impact of regulatory or grid management changes, to include obtaining firm transmission rights, congestion revenue rights, or other available hedging instruments as prudent to reduce applicable congestion or other transmission-related charges.

7 TAX EXEMPTION

Purchases by the federal government are exempt from state and local taxation. GSA’s tax exemption number is 84-11084814. All invoices issued pursuant to this Contract shall reflect GSA’s tax exempt status.

8 UDC COORDINATION

The Contractor is responsible for all necessary coordination with the UDC, to include establishment or deletion of service, establishing EDI or other electronic data transfer, and installation of or changes in metering equipment. However, except in the case of termination for the Government’s Convenience or Termination for Cause, or as needed to initiate service upon award of this Contract, Contractor shall not submit any DASR for any Account without 15 days prior written notification to GSA.

9 INSPECTION AND ACCEPTANCE

The Government may inspect service and billing in any appropriate manner, including but not limited to:

1. verification that physical meter reads correlate with invoices;

2. comparing data obtained from the UDC with Contractor furnished data;

3. review of the Contractor’s records that relate to accounts covered by this Contract.

The Contractor shall provide records requested within 15 working days of a written request by GSA.

Payment of invoices does not waive GSA’s rights to demand correction if errors are found at a future date.

10 INVOICE REQUIREMENTS AND PAYMENT

Payment will be made only on receipt of an invoice meeting the requirements described herein. Invoices must reflect actual consumption and cost data and meet all applicable CPUC requirements for dual billing. Notwithstanding the foregoing, if the California ISO provides estimated data to Contractor, Contractor may use the estimated data for the invoice. Contractor shall reflect any adjustments to the invoice amount on the monthly invoice immediately following the receipt of actual cost data from the ISO.

Invoices must contain the following information:

1. ACT or PDN number;

2. UDC account number and service agreement number (if applicable);

3. Contractor’s account number;

4. Building name, address, or other descriptive information to identify the location;

5. Billing cycle dates (start date and end date);

6. Total kwh consumption;

7. Itemization of cost factors A through F as applied to that billing cycle.

8. Contractor’s name and remittance address.

Invoices shall be submitted monthly, or at the frequency of the UDCs billing cycle, by email to an email address to be indicated.

Prompt invoicing is important for GSA to be able to manage its utility budget. Invoices must be submitted within 30 days of receipt of data from the UDC.

11 THE ROLE OF GOVERNMENT PERSONNEL AND RESPONSIBILITY

FOR CONTRACT ADMINISTRATION

11.1 CONTRACTING OFFICER (CO)

The Contracting Officer (CO) has the overall responsibility for the administration of this Contract. He alone, without delegation, is authorized to take actions on behalf of the Government to:

1. Amend, modify or deviate from the Contract terms, conditions, requirements, specifications, details and/or delivery schedules.

2. Make final decisions on disputed deductions from Contract payments for nonperformance or unsatisfactory performance.

3. Terminate the Contract for convenience or default.

4. Resolving and issuing final decisions on actions taken under the “Disputes” clause of the Contract.

5. Process assignment of claims (assignment of Contract payments to another organization).

6. Process novation agreements

However, the Contracting Officer may delegate certain other responsibilities to his authorized representatives.

The Contracting Officer will initially be:

Patrick Jones GSA PBS Real Property Programs Division (9PMFT) 450 Golden Gate Ave. 4E San Francisco, CA 94102 415.522.3345

This appointment may subsequently be changed by a letter signed by the new Contracting Officer.

11.2 CONTRACTING OFFICER'S REPRESENTATIVE (COR)

The Contracting Officer’s Represenative (COR) will initially be:

Mark Levi GSA PBS Real Property Programs Division (9PMFT) 450 Golden Gate Ave. 4E San Francisco, CA 94102 415.522.3374

This appointment may subsequently be changed by a letter signed by the Contracting Officer.

The responsibilities of the COR include, but are not limited to:

1. Determining the adequacy of performance by the Contractor in accordance with the terms and condition of this Contract.

2. Acting as the Government’s representative in charge of program requirements.

3. Ensuring compliance with Contract requirements.

4. Advising the Contractor of any proposed deductions for nonperformance or unsatisfactory performance.

5. Advising the Contracting Officer of any factors which may cause delay or change in performance of the work.

These and other responsibilities shall be delegated in writing upon award of the Contract, with a copy of such delegation to the Contractor

12 NOTICES AND CORRESPONDENCE

Correspondence, notices and documents required by this Contract shall be submitted by the Contractor to the Contracting Officer’s Representative.

The Contractor shall furnish to the COR contact information, to include mailing address, telephone number, fax number and email address, of an account representative who can receive official notices and correspondence from GSA, and who can formally represent the Contractor.

13 CONFIDENTIALITY

The awarded Contract, to include prices, will be treated as a public document. Offers that do not result in award will be protected as confidential to the extent permitted by law. The awardee’s offer, except for price information included in the Contract, and other proprietary information from the awardee (Contractor) that is marked “proprietary” or “confidential” will be protected as confidential to the extent permitted by law. Nothing in this provision will be construed to prevent GSA from providing reference information regarding performance and integrity of the Contractor on request.

14 TERMINATION

If the Contract is terminated in accordance with the Termination for the Convenience of the Government clause, or the Termination for Cause clause, the Contractor shall make best efforts to economically liquidate positions held by the Contractor on behalf of GSA.

Liquidation of positions must be through competitive, arms-length methods unless otherwise explicitly approved by GSA.

15 52.241 UTILITY SERVICES PROVISIONS AND CLAUSES

15.1 52.241-1 ELECTRIC SERVICE TERRITORY COMPLIANCE

REPRESENTATION (MAY 1999)

(a) Section 8093 of Public Law 100-202 generally requires purchases of electricity by any department, agency, or instrumentality of the United States to be consistent with State law governing the provision of electric utility service, including State utility commission rulings and electric utility franchises or service territories established pursuant to State statute, State regulation, or State-approved territorial agreements.

(b) By signing this offer, the offeror represents that this offer to sell electricity is consistent with Section 8093 of Public Law 100-202.

(c) Upon request of the Contracting Officer, the offeror shall submit supporting legal and factual rationale for this representation.

15.2 52.241-2 ORDER OF PRECEDENCE-UTILITIES (FEB 1995)

In the event of any inconsistency between the terms of this Contract (including the specifications) and any rate schedule, rider, or exhibit incorporated in this Contract by reference or otherwise, or any of the Contractor's rules and regulations, the terms of this Contract shall control.

15.3 52.241-3 SCOPE AND DURATION OF CONTRACT (FEB 1995)

(a) For the period beginning with the meter read for each account during January 2009, through the end of each cycle during January 2010. The Contractor agrees to furnish and the Government agrees to purchase Energy and Direct Access Services in accordance with the applicable tariff(s), laws, rules, and regulations as approved by any applicable governing regulatory body and as set forth in this Contract.

(b) It is expressly understood that neither the Contractor nor the Government is under any obligation to continue any service under the terms and conditions of this Contract beyond the expiration date.

(c) The Contractor shall provide the Government with one complete set of prices which are in effect as of the date of this Contract and for the term of this Contract.

(d) The Contractor shall be paid at the applicable price under the Contract for the actual quantity of electricity consumed as measured by each meter for the Accounts (GSA Meters).

15.4 52.241-4 CHANGE IN CLASS OF SERVICE (FEB 1995)

(a) In the event an UDC changes the tariff classification for a site, the price [A] indicated in this Contract will remain in effect for that site.

15.5 52.241-5 CONTRACTOR'S FACILITIES (FEB 1995)

(a) The Contractor, at its expense, unless otherwise provided for in this Contract, shall furnish, install, operate, and maintain all facilities required to furnish service hereunder, and measure such service at the point of delivery through the GSA Meters. Title to all such facilities shall remain with the Contractor and the Contractor shall be responsible for loss or damage to such facilities, except that the Government shall be responsible to the extent that loss or damage has been caused by the Government's negligent acts or omissions.

(b) Notwithstanding any terms expressed in this clause, the Contractor shall obtain approval from the Contracting Officer prior to any equipment installation, construction, or removal. The Government hereby grants to the Contractor, free of any rental or similar charge, but subject to the limitations specified in this Contract, a revocable permit or license to enter the service location for any proper purpose under this Contract. This permit or license includes use of the site or sites agreed upon by the parties hereto for the installation, operation, maintenance, and repair of the facilities of the Contractor required to be located upon Government premises. All applicable taxes and other charges in connection therewith, together with all liability of the Contractor in construction, operation, maintenance and repair of such facilities, shall be the sole obligation of the Contractor.

(c) Authorized representatives of the Contractor will be allowed access to the facilities on Government premises at reasonable times to perform the obligations of the Contractor regarding such facilities. It is expressly understood that the Government may limit or restrict the right of access herein granted in any manner considered necessary (e.g., national security, public safety).

(d) Unless otherwise specified in this Contract, the Contractor shall, at its expense, remove such facilities and restore Government premises to their original condition as near as practicable within a reasonable time after the Government terminates this Contract. In the event such termination of this Contract is due to the fault of the Contractor, such facilities may be retained in place at the option of the Government for a reasonable time while the Government attempts to obtain service elsewhere comparable to that provided for hereunder.

15.6 52.241-6 SERVICE PROVISIONS (FEB 1995)

(a) Measurement of service.

All Energy furnished by the Contractor shall be measured by the GSA Meters, which are owned by the UDCs. Contractor shall read GSA Meters as required for billing and scheduling coordination services. When more than a single meter is installed at a service location, the readings thereof may be billed conjunctively, if appropriate. In the event any meter fails to register (or registers incorrectly) the service furnished, the Contractor will adjust billing to GSA as soon as such adjustment is calculated and adjusted by the UDC. If any of the GSA Meters are owned by GSA, Contractor shall perform all meter maintenance and repair services for the GSA Meters in accordance with all applicable CPUC and ANSI standards.

(b) Continuity of service and consumption. The Contractor shall use reasonable diligence to provide a regular and uninterrupted supply of service at each service location, but shall not be liable for damages, breach of Contract or otherwise, to the Government for failure, suspension, diminution, or other variations of service occasioned by or in consequence of any cause beyond the control of the Contractor, including but not limited to acts of God or of the public enemy, fires, floods, earthquakes, or other catastrophe, strikes, or failure or breakdown of transmission or other facilities.

16 52.212-4 CONTRACT TERMS AND CONDITIONS-COMMERCIAL

ITEMS (OCT 2003)

(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. 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, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

(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.

(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 immediately notify the Contracting Officer and request instructions for disposition of the overpayment.

(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 delivery to the GSA Meter

(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 submit DASRs to switch the Accounts to a provider designed by GSA. . Subject to the terms of this Contract, the Contractor shall be paid for Energy up to the date that the Accounts are switched to a new provider, plus the difference between the Contract price for the power purchased on behalf of GSA and the actual resale price (if positive), plus reasonable, out-of-pocket fees which 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. The Government shall not be responsible for any special, incidental, consequential or indirect damages as a result of the termination.

(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 material Contract terms and conditions, or fails to provide , upon request, adequate assurances of future performance or if the Contractor fails to cure the default within 20 days of receipt of a notice to cure. In the event of termination for cause by the Government, the Government shall not be liable to the Contractor for any amount for supplies or services not received. The Contractor will be paid for goods or services received as described elsewhere in this Contract. 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) (Reserved)

(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.

327, 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.

(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 other than the Contractor indicated in the Contract will be considered to be incorrect information within the meaning of the "Suspension of Payment" paragraph of the electronic funds transfer (EFT) clause of this Contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the CCR record to reflect an assignee for the purpose of assignment of claims (see Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the CCR database. Information provided to the Contractor's CCR record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the "Suspension of payment" paragraph of the EFT clause of this Contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via the internet at http://www.ccr.gov or by calling 1-888-227- 2423 or 269-961-5757.

17 52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO

IMPLEMENT STATUTES OR EXECUTIVE ORDERS- COMMERCIAL

ITEMS (JUNE 2004)

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

52.233-3, Protest after Award (Aug 1996) (31 U.S.C. 3553).

(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:

__ (1) 52.203-6, Restrictions on SubContractor Sales to the Government (Jul 1995), with Alternate I (Oct 1995) (41 U.S.C. 253g and 10 U.S.C. 2402).

__ (2) 52.219-3, Notice of Total HUBZone Set-Aside (Jan 1999) (15 U.S.C. 657a).

__ (3) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Jan 1999) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

__ (4)(i) 52.219-5, Very Small Business Set-Aside (June 2003) (Pub. L. 103-403, section 304, Small Business Reauthorization and Amendments Act of 1994).

__ (ii) Alternate I (Mar 1999) of 52.219-5.

__ (iii) Alternate II (June 2003) of 52.219-5.

__ (5)(i) 52.219-6, Notice of Total Small Business Set-Aside (June 2003) (15 U.S.C.

644).

__ (ii) Alternate I (Oct 1995) of 52.219-6.

__ (iii) Alternate II (Mar 2004) of 52.219-6.

__ (6)(i) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003) (15 U.S.C.

644).

__ (ii) Alternate I (Oct 1995) of 52.219-7.

__ (iii) Alternate II (Mar 2004) of 52.219-7.

X (7) 52.219-8, Utilization of Small Business Concerns (May 2004) (15 U.S.C. 637(d)(2) and (3)).

__ (8)(i) 52.219-9, Small Business SubContracting Plan (Jan 2002) (15 U.S.C. 637(d)(4).

__ (ii) Alternate I (Oct 2001) of 52.219-9.

__ (iii) Alternate II (Oct 2001) of 52.219-9.

__ (9) 52.219-14, Limitations on SubContracting (Dec 1996) (15 U.S.C. 637(a)(14)).

__ (10)(i) 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns (June 2003) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323) (if the offeror elects to waive the adjustment, it shall so indicate in its offer).

__ (ii) Alternate I (June 2003) of 52.219-23.

__ (11) 52.219-25, Small Disadvantaged Business Participation Program- Disadvantaged Status and Reporting (Oct 1999) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323).

__ (12) 52.219-26, Small Disadvantaged Business Participation Program-Incentive SubContracting (Oct 2000) (Pub. L. 103-355, section 7102, and 10 U.S.C. 2323).

__ (13) 52.219-27, Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside (May 2004).

__ (14) 52.222-3, Convict Labor (June 2003) (E.O. 11755).

__ (15) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (June 2004) (E.O. 13126).

__ (16) 52.222-21, Prohibition of Segregated Facilities (Feb 1999).

__ (17) 52.222-26, Equal Opportunity (Apr 2002) (E.O. 11246).

__ (18) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) (38 U.S.C. 4212).

__ (19) 52.222-36, Affirmative Action for Workers with Disabilities (Jun 1998) (29 U.S.C.

793).

__ (20) 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) (38 U.S.C. 4212).

__ (21)(i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA- Designated Products (Aug 2000) (42 U.S.C. 6962(c)(3)(A)(ii)).

__ (ii) Alternate I (Aug 2000) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)).

__ (22) 52.225-1, Buy American Act-Supplies (June 2003) (41 U.S.C. 10a-10d).

__ (23)(i) 52.225-3, Buy American Act-Free Trade Contracts-Israeli Trade Act (Jan 2004) (41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, Pub. L. 108-77, 108-78).

__ (ii) Alternate I (Jan 2004) of 52.225-3.

__ (iii) Alternate II (Jan 2004) of 52.225-3.

__ (24) 52.225-5, Trade Contracts (June 2004) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

__ (25) 52.225-13, Restrictions on Certain Foreign Purchases (Dec 2003) (E.o.s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

__ (26) 52.225-15, Sanctioned European Union Country End Products (Feb 2000) (E.O.

12849).

__ (27) 52.225-16, Sanctioned European Union Country Services (Feb 2000) (E.O.

12849).

__ (28) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).

__ (29) 52.232-30, Installment Payments for Commercial Items (Oct 1995) (41 U.S.C.

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

_X_ (30) 52.232-33, Payment by Electronic Funds Transfer-Central Contractor Registration (Oct 2003) (31 U.S.C. 3332).

__ (31) 52.232-34, Payment by Electronic Funds Transfer-Other than Central Contractor Registration (May 1999) (31 U.S.C. 3332).

__ (32) 52.232-36, Payment by Third Party (May 1999) (31 U.S.C. 3332).

__ (33) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a).

__ (34)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Apr 2003) (46 U.S.C. Appx 1241 and 10 U.S.C. 2631).

__ (ii) Alternate I (Apr 1984) of 52.247-64.

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, 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:

__ (1) 52.222-41, Service Contract Act of 1965, as Amended (May 1989) (41 U.S.C. 351, et seq.).

__ (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 1989) (29 U.S.C.

206 and 41 U.S.C. 351, et seq.).

__ (3) 52.222-43, Fair Labor Standards Act and Service Contract Act-Price Adjustment (Multiple Year and Option Contracts) (May…