USC-6 RFP Amend 02.pdf

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print)

30-105-04EXCEPTION TO SF 30

APPROVED BY OIRM 11-84

STANDARD FORM 30 (Rev. 10-83) Prescribed by GSA

FAR (48 CFR) 53.243

1. The purpose of this amendment is to incoporate numerous changes in response to questions received from industry.

2. SDDC G6 IMA CMB (IBS) w ill offer CARE II Service Module training to carriers proposing on the USC-6 Contract. Training w ill take place 15-18 September 2008, at SDDC, bldg 1990, Rm 161, Scott AFB. Persons interested in attending the training are asked to submit their names via e-mail to: roosevelt.t.mitchell@us.army.mil

1. CONTRACT ID CODE PAGE OF PAGES

J 1 29

16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)

16C. DATE SIGNED

BY 10-Sep-2008

16B. UNITED STATES OF AMERICA15C. DATE SIGNED15B. CONTRACTOR/OFFEROR

(Signature of Contracting Officer)(Signature of person authorized to sign)

8. NAME AND ADDRESS OF CONTRACTOR (No., Street, County, State and Zip Code) X HTC711-08-R-0011

X 9B. DATED (SEE ITEM 11)

08-Aug-2008

10B. DATED (SEE ITEM 13)

9A. AMENDMENT OF SOLICITATION NO.

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

X The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offer is extended, is not extended.

Offer must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended by one of the following methods:

(a) By completing Items 8 and 15, and returning copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE

CONTRACT ORDER NO. IN ITEM 10A.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(B).

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

10A. MOD. OF CONTRACT/ORDER NO.

2. AMENDMENT/MODIFICATION NO. 5. PROJECT NO.(If applicable)

6. ISSUED BY

3. EFFECTIVE DATE

05-Sep-2008

CODE

USTRANSCOM COMMAND ACQUISITION

508 SCOTT DR

SCOTT AFB IL 62265-5357

HTC711 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

HTC711-08-R-0011

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

The following have been added by reference:

52.219-9 Small Business Subcontracting Plan APR 2008

The following have been modified:

ADDENDUM TO FAR 52.212-1

Addendum to FAR 52.212-1 Instructions to Offerors – Commercial Items (Nov 2007)

FAR 52.212-1, paragraphs (b) and (c) are hereby amended as follows:

I. Submission of Offers

A. In response to this request for proposals (RFP), an offeror must mail or hand-deliver a written proposal in accordance with Part III of this section, titled "Written Proposals", including all representations and certifications to the address listed in Paragraph D1 of this section.

B. The offeror must also electronically submit proposed rate offers using the Carrier Analysis & Rate Evaluation System, Service Module (CARE II SM). Pro-forma schedules, and vessel specifications can be submitted via CARE II SM or submitted on Excel spreadsheet or other comparable form. The CARE II SM is accessible through the Internet using the CARE II System Center Web Site at the Internet address listed in Section II, Paragraph A.

C. Offerors intending to respond to this solicitation must provide a written request for a CARE II user account in accordance with Section II, Paragraph C. All of the information necessary to complete the electronic submission of the offer can be found at the Internet address provided in Section II, paragraph A.

D. The data that must be submitted in support of a technical capability determination consists of two main sections:

1. Service Profile

2. Vessel Profile

This data may be submitted through the CARE II SM database, Excel spreadsheet or other comparable form.

D. The written and electronic proposal must be submitted to the addresses listed below and must arrive prior to 4:00 PM on 9 October 2008 and remain firm for 180 days. The written portion of the offer must be enclosed in a sealed envelope marked "Request for Proposal No. HTC711-08-R-0011.” The offeror's name and address should appear in the upper left-hand corner, and the envelope should be enclosed in a second envelope that must be sent to the address listed in below.

1. The written proposal must be sent to the Contracting Officer at the following address:

USTRANSCOM / TCAQ-I

SEALIFT BRANCH

508 SCOTT DRIVE

SCOTT AFB IL 62225

2. Any and all questions concerning the RFP must be submitted in writing and received prior to 10

September 2008. Send any questions to:

Ms Cindy Strout Phone: (618) 229-2495 E-Mail: cindy.strout@ustranscom.mil

Or

Mr Charles M. Burton Jr.

Phone: (618) 229-2468 E-Mail: Charles.Burton@ustranscom.mil

E. If negotiations are conducted and Final Proposal Revisions (FPRs) are requested, each offeror will be notified of the date and time by email or telephone. Each offeror must submit FPRs in writing and electronically to the addresses listed above in Section D Paragraphs 1 and 2.

F. Company facsimile number and email/internet addresses must be provided with proposal.

G. Submission of Rates: All proposed rates must be submitted in accordance with the instructions specified in Section II below.

H. All offerors are required to submit their Standard Carrier Abbreviation Code (SCAC) with their proposal.

II. Electronic Offers

A. The electronic proposal must be submitted using the following Internet address:

https://eta.sddc.army.mil/

B. Carrier Analysis and Rate Evaluation System II Service Module (CARES II) Application Instructions

1. Carriers submitting an offer of service for any trade route may complete the forms contained in the CARE II SM, submit Excel spreadsheets or other comparable form. Instructions for this application can be obtained from the CARE II System Center Web Site.

2. Carriers must submit schedule, service, and vessel information on ocean service associated with each trade route for which rates are offered in the CARE II SM, Excel spreadsheet or other comparable form.

Carriers should enter the service that provides the shortest transit the carrier is willing to offer between the origin and the destination.

3. Note that a rate offered with the value of "$0" (zero dollars) will be considered as "no charge" for service by the Contracting Officer.

4. All basic container rates, unless otherwise specified, are to be offered in whole dollars per container (lumpsum).

5. All basic breakbulk rates, unless otherwise specified, are to be offered in whole dollars per measurement ton (MsT) of 40 cubic feet manifest measure and apply on an FIO basis.

6. Changes to rate offers can be made to any Contract Rate Submission as identified in the CARE II SM up until the RFP close date. The offeror must enter changes to offers in whole dollars per MsT or per container, or as otherwise specified, in the appropriate line item field. If discussions are held, offers may be changed (except for those rates or services accepted by the Government without discussions) until the offeror transmits the final proposal revision.

7. Carriers must immediately notify the Contracting Officer in the event difficulties are encountered in accessing the CARE II SM data. If carriers are unable to access the CARE II SM to enter the required data in sufficient time to be received by the Government by the date established for receipt of proposals, they may request authorization from the Contracting Officer to submit a hard copy containing the required proposal data. Offerors are advised that in the event submission of hard copies is authorized, timely submission of offers is still required in accordance with the terms of the solicitation. In the event both electronic proposal and hard copy proposal are received in a timely manner from the same carrier, the electronic proposal will take precedence.

C. Request For CARE II Service Module User Account.

1. The Carrier Analysis & Rate Evaluation System Service Module (CARE II SM) application will be provided only upon receipt of an electronic request submitted via the SDDC Electronic Transportation Acquisition (ETA) web site (https://eta.sddc.army.mil/). Click on the "Contact ETA" link at the top of the page. Click on "make a first time request" tab (third sentence from top of page). Scroll down the page to "CARE II (Carriers)" and put a check in the box to the left. Scroll down to the bottom of the page and click "Generate Request Form". Fill in all applicable information and click "Submit Request". The CARE II Service Module user account will consist of a User ID and Password, each unique to the individual offeror. Upon receipt of the request, the CARE II Service Module user ID and password will be made available to the requesting party via e-mail within two working days.

Help with access to CARE II SM is available by contacting Roosevelt Mitchell, 618-220-5659.

2. Hardware and Software Requirements

(a) The minimum hardware and software requirements for the operation of the CARE II SM application are:

� Pentium or higher processor � Windows 98, Windows NT, Windows 2000, or Windows XP

� 128 RAM

� 50 MB hard disk space � Super VGA monitor with 1024 x 768 resolutions � Microsoft Mouse or compatible pointing device

(b) In order to access the CARE II SM from the web, offerors must have internet access and the following minimum web browser specifications:

� Microsoft Internet Explorer Internet Explorer 6.0 recommended.

� Browser must support 128-bit encryption for secure transmission of data

III. Written Proposals

A. In addition to the CARE II SM data required by Section I of this addendum, all offerors must submit written proposal material as described below in the quantities stated:

1. VOLUME I – Executed RFP Documents (Submit Original Documents, one copy)

2. VOLUME II - Technical Capability Narratives (submit four copies) TAB 1 – Designated Routes TAB 2 – Non-Designated Routes

3. VOLUME III – Past Performance Information (submit four copies)

4. VOLUME IV - Subcontracting or Commercial Plan

NOTE: Pricing information is not to be included in offeror’s written technical submissions. Pricing information is to be provided through CARES II SM as stated above in Section II, Paragraph B. Instructions for submitting Volumes I through III are as follows:

B. Executed RFP Documents (VOLUME I)

All offerors shall submit all documents requiring signature or completion by the offeror. Each offeror shall complete applicable fill-ins and signatures and submit the original documents listed below. An authorized official of the firm shall sign the offer and all certifications requiring original signature.

1. Standard Form 1449, including acknowledgment of amendments, if applicable.

2. Clauses 52.212-3, Offeror Representations and Certifications – Commercial Items

3. Clause 52.203-2, Certificate of Independent Price Determination

C. Narratives of Technical Capability (VOLUME II) All offerors are required to submit written narratives for evaluation of technical capability. Narratives must be provided to explain how their proposal will meet all requirements established in the solicitation. For routes/zones for which rates are offered, offerors will provide a narrative for each of the designated route indices at TAB 1 of this volume and a single consolidated narrative for all non-designated route indices at TAB 2 with each narrative not to exceed 15 pages in no smaller than 10-point font. The written technical proposal must demonstrate the offeror's understanding of the requirements identified in the Request for Proposals. Proposals should address the following topics:

1. Vessels: Provide listing of vessel ownership and/or vessels under contractor's control.

2. Port Coverage: Describe the offeror’s existing or planned port coverage in relationship to the

Performance Work Statement requirements, to include use of alternate ports. Describe how feeder vessels including barges, transshipments, and landbridge arrangements will be used and managed to expand port coverage. Provide information concerning the offeror's policy for establishing cutoffs and obtaining late gates to accommodate special requirements for selected shipments.

3. Electronic Data Interchange: Present an analysis of the offeror’s EDI capability to satisfy the mandatory EDI interface requirements expressed in the solicitation and the offeror’s plans and ability to meet the Optional EDI requirements. Offerors who are unable to provide any of these optional reports must advise the Contracting Officer in their proposal of the specific optional reports they will not provide during the period of the contract. No performance failures will be applied for any of the optional reports when this notification has been provided to the Government. Offerors must demonstrate that they have Trading Partner Agreements (TPA) in place or submit the TPA as part of their offer in order to comply with this requirement.

D. Past Performance Information (Volume III)

1. The offeror shall provide information that the Government will use to evaluate the offeror’s past performance. The information should address all sections of the RFP for which prices are offered.

(a) On-time delivery: Evidence of the offeror's ability to meet requirements of previous contracts either Government or Commercial.

(b) Quality of EDI data: Evidence of offeror's ability to meet the EDI requirements of previous contracts either Government or Commercial.

(c) Consistency and reliability of service: Evidence of offeror's ability to maintain service per advertised schedules to include ports of call.

(d) Loss of and/or damage to shipments: Evidence of offeror's ability to provide loss and damage free shipments.

2. The offeror will submit a listing of not more than five contracts and/or customers, public or private for which the offeror has performed services, within the previous three calendar years, similar in nature to the services described in this solicitation. The offeror should provide the name of the company or Government agency, points of contact and phone numbers for the entities listed. The Government may contact those organizations and individuals to verify information and/or gather additional information. Offerors may identify awards they have received from their commercial customers and professional/trade organizations as evidence of past performance for public and private organizations.

E. Subcontracting/Commercial Plan (Volume IV)

Submit plan IAW FAR 19.704 Subcontracting Plan Requirements

IV. Data, Certifications and Special Contract Requirements

If any vessels or space offered for service is offered pursuant to a space or slot charter agreement including those to be filed and approved under Sections 4 and 5 of the Shipping Act of 1984, the vessel or space to be utilized will be identified with the applicable agreement.

V. Tariffs

To allow for a price comparison review, the offeror must submit with its offer information sufficient to enable proposal evaluators to access internet web sites containing all effective commercial tariffs published by the offeror for all trade routes for which service was offered under this solicitation.

VI. Pre-Proposal Conference

USTRANSCOM will host the USC-6 Preproposal Conference on 28 Aug 08, from 7:30 to 12 noon at Scott AFB, IL in the Honor conference room (USTRANSCOM, building 1900). Due to the room capacity, seating is limited to two (2) individuals per carrier.

Names of attendees must be submitted to Cindy Strout (cindy.strout@ustranscom.mil) via e-mail in order to facilitate a base pass.

(End of Addendum)

ADDENDUM TO FAR 52.212-2

Addendum to FAR 52.212-2 Evaluation – Commercial Items

I. General Evaluation

A. This acquisition is a competitive best value source selection. The Government intends to award multiple contracts to provide Government shippers flexibility of choice and service coverage. Awards will be made to offerors whose proposals are determined technically acceptable and offer fair and reasonable pricing. Past performance will be considered during the responsibility determination in accordance with FAR 9.104-1. Contract awards will be made in accordance with the terms of FAR 52.212-2, “Evaluation – Commercial Items”, FAR Part 15.101-2 (low-price, technically acceptable) source selection procedures and the provisions contained herein. In accordance with DFARS 247.573-2(c) the Government will give a preference to U.S.-flag vessels and to offerors participating in the Voluntary Intermodal Sealift Agreement (VISA).

B. Proposals submitted in response to this Request for Proposal must demonstrate the offeror’s technical capability to provide the services on all route indices for which it offers rates.

C. The Government reserves the right to reject any offer of service on those route indices or route zones (where applicable) where the Government determines that the technical capability to serve the route index or indices as stated in the contractor’s offer is less than the carrier’s service offered commercially.

D. The Government reserves the right to reject any offer in whole or in part that does not comply with the material requirements of this solicitation. Failure to comply with any of the material requirements of this solicitation, including submission of all applicable representations and certifications may be determined to be grounds for the Government to reject offers as technically unacceptable.

E. The Government may accept some or all rates or services initially offered, without discussion of those rates or services. If negotiations are conducted, they may be limited to certain rates or service specifically identified in writing by the contracting officer to the offerors. Thereafter, offers will be notified of the close of negotiations and the opportunity to submit a final proposal revision (FPR).

F. U.S. Flag Service offers will be evaluated for compliance with the Cargo Preference Act of 1904 (10 U.S.C. 2631, as amended.). Evaluation of Voluntary Intermodal Sealift Agreement priorities will be in accordance with paragraph II below.

II. Voluntary Intermodal Sealift Agreement (VISA) Priorities Preference Application

A. Submitted offers that are responsive to this solicitation and that are determined to have the required technical capability will be grouped into the Voluntary Intermodal Sealift Agreement (VISA) participant categories for each trade lane. VISA participant categories are the prioritized order for utilization of commercial sealift capacity to meet Department of Defense requirements. IAW DoDI 4500.57, dated March 18 2008, the categories of priority of vessel capacity offered to perform these services in order from highest priority to lowest priority are as follows:

1. U.S.-flag vessel capacity operated by a VISA participant and U.S.-flag VSA capacity of a VISA participant.

2. U.S.-flag vessel capacity operated by a VISA non-participant.

3. Combination U.S.-flag/foreign-flag vessel capacity operated by a VISA participant and combination U.S.-flag/foreign-flag VSA capacity of a VISA participant.

4. Combination U.S.-flag/foreign-flag vessel capacity operated by a VISA non-participant.

5. U.S.-owned or -operated foreign-flag vessel capacity and VSA capacity of a VISA participant.

6. U.S.-owned or -operated foreign-flag vessel capacity and VSA capacity of a VISA non-participant.

7. Foreign-owned or -operated foreign-flag vessel capacity of a VISA non-participant.

B. Proposals will be ranked by VISA priority. Low price, technically acceptable awards by trade lane (SubCLINS) will first be made to contractors having the highest VISA priority and proceed to contractors with a lower VISA priority only after the higher priority has been exhausted. The process will continue in this manner until all contract awards are made to ensure the Government’s anticipated transportation requirements can be met.

III. Basis for Award

A. The basis for award will be Low Priced, Technically Acceptable Offers after giving preference to VISA participants as described . Factor 1, Technical Capability, will be evaluated on a pass/fail basis. Factor 2, Price, will be evaluated for fairness and reasonableness. Awards will be made to the proposals determined to be technically acceptable, from a responsible offeror, and with the lowest proposed prices in rank order after appling the VISA preference in paragraph II.

IV. Evaluation Criteria

1. FACTOR – Technical Capability

(a) Determination of technical capability will be based on the evaluation of data submitted by each offeror with their proposal that demonstrates the offeror's ability to successfully accomplish all contract requirements applicable to the routes for which service is offered.

SUBFACTORS

(i) Vessels: Proposals will be evaluated to determine if the offeror owns and/or controls ocean vessels in sufficient quantities to service the routes/lanes they are proposing rates on.

(ii) Port Coverage: Proposals will be evaluated to determine if the offeror has access to all ports for the routes/lanes they are proposing rates on.

(iii) EDI Capability: Proposals will be evaluated to determine the offeror's capability to provide all the required EDI transactions/event reports as described in the solicitation, to include the optional events for EDI 315 status reports meet the requirements in the PWS.

2. FACTOR – Price

(a) Contract Price Evaluation – Price evaluation for all proposed rates will be performed in accordance with FAR 15.404-1, utilizing the rates the offeror has inserted into the Carrier Analysis Rate Evaluation System Service Module (CARES II SM).

(b) Applicable to Ocean Rates – In addition to evaluation under FAR, Part 15, U.S. Flag Service offers will be evaluated for compliance with the Cargo Preference Act of 1904 (10 U.S.C. 2631, as amended). A rate will not be considered for award should the Contracting Officer (CO) determine that the rate exceeds charges to private persons for carriage of like goods, pursuant to the Cargo Preference Act of 1904 (or other law or regulation).

(c) The Contracting Officer will not consider an offer to be fair and reasonable, if it contains rates higher than the highest commercial service contract rate; or that are clearly and substantially in excess of the rates stated in comparable commercial service contracts to which the offeror is party, for the same trades and similar services.

(End of Addendum)

ADDITIONAL CLAUSES

1. Contractor Protection from Competition

1.1 Contractor Protection

A Contractor receiving an initial base period award or an option period award for this contract shall, during the respective base or option period of this contract, be protected from the subsequent competition of other Contractors after that initial award within the limitations of the Cargo Preference Act of 1904. This Contractor protection encourages initial full and open competition, protects the integrity of the contracting process, facilitates a streamlined acquisition process, promotes DOD’s sealift readiness goals implemented in the VISA priorities, and complies with applicable law. The Cargo Preference Act of 1904 also has the effect of establishing a ceiling price; it states that charges to the U.S. Government may not be higher than the charges for transporting like goods for private persons.

1.2 Cargo Preference

The availability of U.S. flag service shall be evaluated up to the date for responses to the RFP that resulted in this contract. While initial awardees may be subject to contractual remedies for failure to provide promised U.S. flag service, an initial award for foreign flag service that complies with law at the time of award shall be displaced during the period of the contract by another Contractor’s subsequent offer of U.S. flag service for the same requirement only in accordance with the following procedures. Initial award(s) shall not be displaced until the minimum cargo guaranteed to the initial awardee(s) has been offered to the awardee(s). Initial awardees displaced by a “late” offeror remain eligible to receive future orders for transportation when the “late” offeror is unavailable or as otherwise authorized by this contract and applicable law.

1.3 VISA Status

In that VISA status relates to a Contractor’s VISA commitment and whereas VISA Priority relates to both VISA commitment of the Contractor and flag status of a particular service, the VISA status of an offeror shall be evaluated up to the date for responses to the RFP that resulted in this contract, or the date for responses to the option period. A contract awardee may be subject to contractual remedies for failure to maintain at least the same VISA status throughout the respective base or option period of this contract. However, minimum cargo commitments awarded that properly reflect all offerors’ VISA status at the time of responses to the RFP or option period shall not be negated during the respective base or option period as a result of one or more contract awardees subsequently attaining a higher VISA status.

1.4 Late Rates

1.4.1 USTRANSCOM shall not accept proposals of service and rates from Contractors that were not awarded any contracts as a result of this solicitation unless the Contractor is offering U.S. flag service or combination U.S.

flag service that cannot otherwise be obtained from Contractors that were awarded contracts. In such case, paragraph

1.2 applies.

1.4.2 The Contracting Officer shall negotiate rates when capacity from Contractors with initially awarded rates is not available to meet requirements or a new servcie will provide a higher VISA priority service than otherwise available to the U.S. Government under initially awarded rates. Rates for ocean and single factor service accepted after initial award will be marked as late and used only when the late rates involve a service with a higher VISA priority than the servcie otherwise available to the U.S. Government under initially awarded rates; or capacity from Contractors with initally awarded rates is not available to meet the requirment.

1.5 Option Years Rate Additions

1.5.1 Contractors awarded a contract during the basic contract period may offer rates on additional routes during the option year rate refresh on routes they do not have accepted rates on for the basic contract period. Contractors who had accepted rates on these routes during the basic contract period are not protected from this new competition on those routes during any option period; the protection described in subparagraph 1.4 above does not apply to this situation. All Contractors with accepted rates on the same routes for an option period and any extension shall compete equally for all cargo volumes based on a contemporaneous best value analysis. A similar ability to offer new service on a route shall not exist at the time of contract extension, if any; the offer of new rate at time of contract extension would be processed under paragraph 1.4.2.

2. Maritime Clauses

2.1 Application of COGSA

The United States Carriage of Goods by Sea Act 46 U.S.C. 1300 et seq. (hereinafter “COGSA” or “the Act”) is incorporated and shall apply “end to end” for intermodal transportation under this contract which applies to all goods (including goods in containers stowed on deck, which shall be considered as goods stowed under deck) under any Shipping Order with the same force and effect as if the Act applied to such carriage by express provision therein; except that as to deck cargo, the U.S Government shall bear the risk of perils inherent in deck carriage;

provided, however, in case of loss, damage or shrinkage in transit, the rules and conditions governing commercial shipments shall not apply as to the period within which notice thereof shall be given the contractor or as to the period within which claim, therefore, shall be made or suit instituted. COGSA shall also be applicable in determining liability of the contractor for loss/damage to goods arising from transportation by land. For the purpose of interpreting Section 4 of the Act, "Limitation of Liability", the act of loading cargo into, or upon, a container shall not transform such containerized cargo into a single COGSA “package” (as defined herein), unless such cargo satisfies the COGSA requirements of a single “package” irrespective of the fact that it has been containerized. (for example, the decision of a contractor to load a piece of equipment or other cargo on a flatrack does not necessarily convert that equipment/cargo into a single COGSA “package.”) The limitation of liability set out in Section 4 of the Act shall apply to each package and to cargo not in packages to each measurement ton of cargo. The carriage of cargo under any Shipping Order issued pursuant to this contract shall not be deemed or construed to be the carriage of cargo pursuant to special terms and conditions as provided for in Section 6 of the Act; and nothing in this solicitation is intended to relieve the contractor or the vessel from liability for loss or damage to or in connection with the goods arising from negligence, fault or failure in the duties and obligations provided by the Act or to lessen such liability otherwise than as provided therein. COGSA will apply “end-to-end” for intermodal transportation under this contract. It therefore shall also be applicable in determining liability of the contractor for loss/damage to goods arising from transportation by land. Failure of the parties to this contract to reach an agreement on loss of or damage to the goods shall be a dispute and shall be resolved in accordance with FAR 52.233-1, Disputes.

Upon the United Nations Commission on International Trade Law (UNCITRAL) Convention on the Carriage of Goods [Wholly or Partly] [by Sea] being ratified by the U.S. Senate or Entry into Force of the Agreement (whichever event occurs first), the Contracting Officer shall incorporate the UNCITRAL Convention on the Carriage of Goods [Wholly or Partly] [by Sea] limits of liability for carriers into the contract.

2.2 Application of COGSA for Non-Government Owned Cargo

The United States Carriage of Goods by Sea Act 46 U.S.C. 30701 et seq.(hereinafter "COGSA" or "the Act") is incorporated and shall apply to “end to end” for intermodal transportation under this contract which applies to all goods (including goods in containers stowed on deck, which shall be considered as goods stowed under deck) owned by a non-government cargo owner under any Shipping Order with the same force and effect as if the Act applied to such carriage by express provision therein; except that as to deck cargo, the non-government cargo owner shall bear the risk of perils inherent in deck carriage; provided, however, in case of loss, damage or shrinkage in transit, the rules and conditions governing commercial shipments may apply, depending on the terms of any agreement between contractor and a non-government cargo owner, as to the period within which notice thereof shall be given the contractor or as to the period within which claim, therefore, shall be made or suit instituted. COGSA shall also be applicable in determining liability of the contractor for loss/damage to goods arising from transportation by land. For the purpose of interpreting Section 4 of the Act, "Limitation of Liability", the act of loading cargo into, or upon, a container shall not transform such containerized cargo into a single COGSA “package” (as defined herein) unless such cargo satisfies the COGSA requirements of a single "package" irrespective of the fact that it has been containerized. For example, the decision of a contractor to load a piece of equipment or other cargo on to a flatrack does not necessarily convert that equipment/cargo into a single COGSA “package”. The limitation of liability set out in Section 4 of the Act shall apply to each package and to cargo not in packages to each measurement ton of cargo. The carriage of cargo under any Shipping Order issued pursuant to this contract shall not be deemed or construed to be the carriage of cargo pursuant to special terms and conditions as provided for in Section 6 of the Act; and nothing in this solicitation is intended to relieve the contractor or the vessel from liability to the non-government cargo owner for loss or damage to or in connection with the goods arising from negligence, fault or failure in the duties and obligations provided by the Act or to lessen such liability otherwise than as provided therein. COGSA will apply “end-to-end” for intermodal transportation under this contract. It therefore shall also be applicable in determining liability of the contractor for loss/damage to goods arising from transportation by land. Failure of the contractor and the non-government cargo owner to reach an agreement on liability for loss of or damage to the goods shall not be a dispute resolved in accordance with FAR 52.233-1, Disputes. Any such disputes shall be resolved by the contractor and the non-government cargo owner.

Upon the United Nations Commission on International Trade Law (UNCITRAL) Convention on the Carriage of Goods [Wholly or Partly] [by Sea] being ratified by the U.S. Senate or Entry into Force of the Agreement (whichever event occurs first), the Contracting Officer shall incorporate the UNCITRAL Convention on the Carriage of Goods [Wholly or Partly] [by Sea] limits of liability for carriers into the contract. For other than U.S.

Government owned property, such as vendor owned property, moving under this contract, claims will be filed by the vendor or property owner directly with the ocean carrier using commercial claims procedures.

2.3 Scope of Voyage (Liberties). U.S. Government cargo, by its very nature, may require special diligence in the prosecution of a voyage at sea. In some cases, the highly sensitive nature of military cargo may require extraordinary handling to ensure the safety and security of the cargo as well as that of our warfighters in the field.

Accordingly, the diversion of U.S. Government cargo at sea requires the unique conditions set forth below.

2.3.1 Diversion of Cargo. In any situation, whatsoever or wheresoever occurring and whether existing or anticipated before commencement of or during the voyage, which in the judgment of the contractor or master of the vessel is likely to give rise to capture, seizure, detention, damage, delay or disadvantage to or loss of the vessel or any part of her cargo, or to make it unsafe, imprudent, or unlawful for any reason to begin or continue the voyage or to enter or discharge the goods at the port of discharge, or to give rise to delay or difficulty in arriving, discharging at or leaving the port of discharge or the usual place of discharge in such port, the master, whether or not proceeding toward or entering or attempting to enter the port of discharge or reaching or attempting to reach the usual place of discharge therein or attempting to discharge U.S. Government Cargo (the Cargo) may, upon notification to the Contracting Officer (CO) as described at Section 2.3.1.1 below, discharge the Cargo into another port, depot, lazarette, craft, or other place, or retain the goods on board until the return trip or until such other time as would be prudent in the ordinary course of the Contractor’s business.

2.3.1.1 Notice of Diversion. The Notice described at Section 2.3.1 above shall include, at a minimum, a description of the cargo to be diverted (container number, Transportation Control Number, etc.), the conditions giving rise to the Contractor’s planned diversion of the Cargo, the diversion planned and any other measures deemed necessary by the Contractor to protect the Cargo. The Contractor or his designated representative shall provide such Notice in a manner and place consistent with the provisions of this agreement (eg., electronic mail), but it is understood that such notice may be delayed if it would put the vessel, her crew or cargo at risk of loss, damage or injury.

2.3.1.2 Equitable Adjustment, Carrier Proposed Coarse of Action. After notification to the CO and approval by the CO of the contractor’s proposed course of action, the contractor may submit a request for an equitable adjustment to the contract for the reasonable, allocable, incurred costs to implement the approved course of action.

It is understood that the contractor may be required to act before CO approval to prevent risk of loss, damage or injury to the vessel, her crew or cargo. If the contractor acts before notice to and approval by the CO, the contractor shall nonetheless be entitled to reasonable, allocable, incurred costs if the CO finds that the actions were prudent and necessary for the security and protection of government cargo. In no case shall an equitable adjustment duplicate compensation provided in a USC-6 rate, accessorial charge or similar charge or otherwise reimburse the Contractor for costs chargeable (by the Contractor) to or otherwise allocable to a non-USC-6 shipper. If the contractor has been paid for delivery to destination, the CO will consider this fact in evaluating any request for an equitable adjustment or potential government claim for a windfall to the contractor.

2.3.1.3 Mutual Agreement. Where the CO determines that the Contractor’s planned diversion of the Cargo is not in the best interest of the U.S. Government, the CO shall so advise the Contractor as soon as practicable. Thereafter, the CO and the Contractor shall, with all due diligence and good faith, endeavor to mutually agree upon the prudent disposition of the Cargo.

2.3.1.4 Responsibility for the Cargo. Where the Contracting Officer determines that the contractor's planned diversion of the Cargo is not in the best interest of the U.S. Government and the Contracting Officer and the Contractor cannot timely agree upon the disposition of the Cargo, the Contractor shall comply with the CO's direction to the contractor to diver the cargo to a port of the U.S. Government's choice and to make any other arrangements for the cargo the Contracting Officer deems necessary to protect the Government's interest.

2.3.1.5 Equitable Adjustment for US Government Directed Course of Action. The contractor may submit a request for an equitable adjustment to the contract for reasonable, allocable costs incurred to carry out the CO’s direction if such costs are caused by the need to respond to the special situation and would not have been incurred in performing the contract of carriage except for the special situation. This equitable adjustment includes costs associated with cargo on the vessel that is not transported under this contract to the extent these costs exceed costs allocable to any non-USC-6 shipper under any Scope of Voyage (Liberties) or similar clause in any contract between the contractor and a non-USC-6 shipper. In no case shall an equitable adjustment duplicate compensation provided in a USC-6 freight rate, accessorial charge or similar charge or otherwise reimburse the Contractor for costs chargeable (by the Contractor) to or otherwise allocable to a non-USC-6 shipper. If the contractor has been paid for delivery to destination, the CO will consider this fact in evaluating any request for an equitable adjustment or any government claim for a windfall to the contractor.

2.3.1.6 In any event, the contractor shall at all times be responsible to assure the security and protection of the cargo until relieved of such responsibility by the U.S. Government or its designated agent.

2.3.2 Liberties. The Contractor, the master and the vessel shall have liberty to comply with any orders or directions as to loading, departure, arrival, routes, ports of call, stoppages, discharge, destination, delivery or otherwise howsoever given by the government of any nation or department thereof or any person acting or purporting to act with the authority of such government or of any department thereof (or by any committee or person having, under the terms of the war risk insurance on the vessel, the right to give such orders or directions). Delivery or other disposition of the goods in accordance with such orders or directions shall excuse delay in performance to the extent that such order or direction persists in prevention of performance. (See compensable Delay Clause below in Para 6.) The vessel may carry seized contraband, explosives, munitions, warlike stores, hazardous cargo, and may sail armed or unarmed and with or without convoy.

2.3.3 The vessel shall have the liberty to deviate for the purpose of saving life and property, to tow or to be towed, to sail with or without pilots, or to go into dry dock or into ways with or without cargo on board. However, in no case shall the contractor be entitled to extra compensation for such a deviation and the contractor shall not be relieved of responsibility for delivery of cargo to the destination named in the Shipping Order.

2.4 Strikes

2.4.1 Loading Port—In the event the vessel or the loading of the vessel is delayed by reason of strikes or stoppage of work, the contractor may, at the loading port dispatch the vessel with such portion of the cargo as may then be on board.

2.4.2 Discharge Port—In the event the vessel or discharge of the vessel is delayed by reason of strikes or stoppage of work, the contractor at the discharge port may discharge the cargo still on board or with the approval of the U.S. Government dispose of the cargo or any part of it at the U.S. Government’s risk and expense.

2.5 Amended Jason Clause

In the event of accident, danger, damage, or disaster, before or after commencement of the voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for the consequence of which, the contractor is not responsible, by statute, contract, or otherwise, the goods, Shippers, consignees, or owners of the goods shall contribute with the contractor in general average to the payment of any sacrifices, losses or expenses of a general average nature that may be made or incurred, and shall pay salvage and special charges incurred in respect of the goods. If a salvaging vessel is owned or operated by the contractor, salvage shall be paid for as fully as if such salvaging vessel or vessels belonged to strangers.

2.6 General Average

General average shall be adjusted, stated and settled, according to York-Antwerp Rules 2004 at such port or place in the United States as may be selected by the contractor, and as to matters not provided for by those Rules, according to the laws and usages at the Port of New York. In such adjustment, disbursements in foreign currencies shall be exchanged into United States money at the rate prevailing on the dates made and allowances for damage to cargo claimed in foreign currency shall be converted at the rate prevailing on the last day of discharge at the port or place of final discharge of such damaged cargo from the ship.

2.7 Liens

2.7.1 Seizure of Cargo: The contractor agrees that it will not assert any type of lien, including a maritime lien, on any cargo shipped by the U.S. Government under this Contract. The contractor further agrees that it will not take any action to seize, arrest, hold, or otherwise detain such cargo through any judicial process in the U.S. or any foreign country. The contractor agrees to insert this clause in all subcontracts at any level and to expend any resources necessary to expeditiously enforce the provisions of this clause against such subcontractors.

2.7.2 Freight: There shall be no liens, including maritime liens, asserted on any freights payable by the U.S.

Government under this contract. The Contractor agrees to insert this clause in all subcontracts at any level and to expend any resources necessary to expeditiously enforce the provisions of this clause against such subcontractors.

2.8 Force Majeure

The act of God, enemies, fire, restraint of princes, rulers of people, and all dangers and accidents of the seas, rivers, machinery, boilers and steam navigation, and errors of navigation throughout this Contract are mutually excepted.

In other words, such situations excuse delay in performance (similar to paragraph (f) of FAR 52.212-4) by either party to this contract to the extent that the situation persists in preventing performance. This clause does not address liability for loss/damage to cargo (see, instead, the applicable “Application of COGSA clause”), liability for costs/damages resulting from delay in performance, or matters other than excusable delay.

3. War Risk

3.1 Compensation

In the event it is necessary for the contractor to pay additional premiums to extend the coverage of crew, hull and machinery, protection and indemnity insurance and insurance covering the loss and damage of cargo while aboard the vessel to include war risks, or to pay crew war risk bonuses as a result of the vessel entering the war risk area, the U.S. Government shall reimburse the contractor at the appropriate rate filed on carrier’s commercial tariff. For contractors that do not have filed commercial tariffs for such War Risk charges, the U.S. Government shall reimburse the Contractor for a percentage of such extra premium and bonus payments based on the ratio existing between the cargo carried for the account of SDDC and the total cargo aboard the vessel which is loaded or discharged at ports within the War Risk area. Contractors will provide copies of War Risk Insurance policies and the applicable tariffs to the Contracting Officer within 10 days of award.

3.2 Alternatives

If Commercial Marine, War Risk, and Liability Insurance is not available or if Marine, War Risk, and Liability Insurance through the Secretary of Transportation under Sections 1202-1205 of the Merchant Marine Act of 1936, 46 App. U.S.C. 1282-1285, is available at a lesser rate, the Contracting Officer (CO) reserves the right to require contractors to obtain the necessary Marine, War Risk, and Liability Insurance from the Secretary of Transportation.

Further, in the event that the Secretary of Defense, or his/her authorized designee, is authorized to provide and does provide indemnification to the Secretary of Transportation under Section 1205 of the Merchant Marine Act, 1936, 46 App. U.S.C. 1285, for Marine, War Risk, and Liability coverage without premium, the Contracting Officer reserves the right to require the contractor to obtain such insurance from the Department of Transportation and no premiums as set forth in Paragraph 3.1 above will be paid to the contractor by the U.S. Government.

3.3 Limitation of U.S. Government Liability

No payments shall be made until the contractor also assess such charges against commercial cargo loaded or discharged in the war risk area.

3.4 U.S. Government—Additional Assured

The contractor agrees to add the U.S Government as an additional assured on its War Risk Policy with waiver of subrogation noted, for which the U.S. Government has agreed to reimburse the extra premium under this Section.

4. Cargo Claims The Government will process cargo claims in accordance with the Defense Transportation Regulation, Volume II, Chapter 210, and the Contractor agrees to cooperate with Government efforts to resolve claims for loss or damage to Government cargo.

5. Rejection and Price Reduction for Non-Conforming Transportation Services

5.1 The Contractor recognizes that the Contracting Officer ordinarily must reject services that are non-conforming in a major or critical aspect or are otherwise incomplete. To the extent the transportation of cargo results in loss or damage of cargo, the purpose of the transportation is frustrated and the non-conformance in the transportation service is major/critical.

5.2 The Contracting Officer may evaluate the conformity of transportation to contract requirements in addition to evaluating whether lost/damaged cargo complies with contract requirements. If cargo is found to be lost or damaged, either before or after acceptance by the Government of the cargo, and the loss/damage is due to fault or liability of the contractor under the contract, the Contracting Officer may - in addition to any action related to the lost/damaged cargo - take any of the following actions related to non-conforming transportation:

a. Notify the contractor of the non-conforming transportation;

b. Request the contractor to address fault or liability for loss or damage to cargo and corresponding non-conforming transportation;

c. Reject the non-conforming transportation in whole or in part, as may be warranted;

d. Seek a price reduction or other consideration in whole or in part, to the extent the transportation is non-conforming.

5.3 No final…