HTC711-09-R-0002 Amend 0001.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

A. The purpose of this amendment is to change the BAF baseline to $225 as stated in paragraph 2.5.2 of the PWS.

B. All other terms and consitions remain unchanged.

1. CONTRACT ID CODE PAGE OF PAGES

J

FAR (48 CFR) 53.243

1 33

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

16C. DATE SIGNED

BY 02-Dec-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 HTC711-09-R-0002

X 9B. DATED (SEE ITEM 11)

20-Nov-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, X 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 1 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

02-Dec-2008

CODE

USTRANSCOM-AQ - HTC711

508 SCOTT DR

SCOTT AFB IL 62225-5357

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

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

HTC711-09-R-0002

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

The following have been modified:

PERFORMANCE WORK STATEMENT

Performance Work Statement for

Azores Sealift

1.0 Introduction/Background

1.1 Requirement

2.0 Scope

2.1 General Scope

2.2 Cargo

2.3 Voluntary Intermodal Sealift Agreement (VISA) Program

2.4 Regulatory Compliance /Applicable Documents

2.5 Bunker Adjustment Factor (BAF)

3.0 Maritime Clauses

3.1 Application of COGSA

3.2 Scope of Voyage (Liberties)

3.3 Strikes

3.4 Amended Jason Clause

3.5 Leins

3.6 Force Majure

3.7 War Risk

3.8 Excepted Cargo Category

3.9 Operational Shortfalls

4.0 Performance Requirement

4.1 Performance Requirement Summary (PRS)

4.1.1 Service Commitments

4.1.2 Service Frequency

4.1.3 Scheduled Maintenance

4.2 Electronic Commerce/Electronic Data Interchange (EDI)

4.2.1 Shipment Status Reporting

4.2.2 Table of Reportable Shipment Status Events

4.2.3 Monthly Revenue Report

4.3 Equipment

4.3.1 Reefer Equipment

4.3.2 Container Standards

4.3.3 High Cube Containers

4.4 Containers Pickup/Delivery

4.5 Detention Invoices

4.6 Payment

5.0 Notes/Guidance

5.1 Limitation of Government Liability

5.1.1 Dead Freight

5.1.2 Required Delivery Dates

5.2 Limitation of Carrier’s Obligation

5.2.1 Cargo Rejection

5.2.2 Unsafe Operation

5.2.3 Hazardous Cargo

5.3 Use of Government Terminals

5.3.1 Services

5.3.2 Shifting Docks

5.3.3 Custom of the Trade

5.3.4 Security

5.3.5 Safety in Loading and Discharging of Cargo

5.3.6 Substitution

5.4 Damage to Equipment

5.4.1 Damage to Carrier Equipment

5.4.2 Damage to Carrier Vessel or Vessel Equipment

5.4.3 Damage to Government Equipment

5.5 Government Furnished Containers

5.6 Cargo Receipt

5.6.1 Improper Documentation

5.7 Failure to Spot

5.7.1 Remedies

5.7.2 Liquidated Damages

5.8 Delay in Spotting

5.9 Overweight Containers

5.10 Government Failure to Timely Release Containers

5.101 Occurrence

5.10.2 Load on the Next Vessel

5.10.3 Un-stuff the Container

5.10.4 Move Shipping Place

5.11 Carrier Failure to Load Containers

5.11.1 Occurrence

5.11.2 Load on the Next Vessel

5.11.3 Move to Another Shipping Place

5.11.4 Return the Cargo

5.12 No Fault Failure to Meeting Sailing

5.12.1 Occurrence

5.12.2 Load On the Next Vessel

5.12.3 Move to Another Shipping Place

5.12.4 Return the Cargo

5.13 Delay of Schedule Sailing

5.13.1 Occurrence

5.13.2 Container Release

5.13.3 Move to Another Shipping Place

5.13.4 Movement of the Cargo

5.14 Storage Charges

5.15 Commencement and Time Standard of Delivery Transportation

5.16 Transshipment of Relay

5.16.1 Policy

5.16.2 Foreign Flag Vessel

5.16.3 Notification of Arrival

5.17 Diversion for the Convenience of the Government

5.18 Transfer of Containerized Cargo

5.19 Government Drayage/Line-Haul

5.20 Time

5.20.1 Free Time Allowed

5.20.2 Commencement of Free Time

5.20.3 Running of Time

5.20.4 No Running of Time

5.20.5 Cessation of Time

5.20.6 Delivery at Carrier’s Terminal

5.20.7 Refrigerated Containers

5.21 Detention

5.21.1 Incurrence

5.21.2 Computation of Detention

5.21.3 Refrigerated Containers

5.22 Container Detention Charges

6.0 Quality Council

7.0 Miscellaneous

7.1 Shipping/Delivery Order

7.2 Container Size Ordered/Provided

7.3 Application of Rates

7.3.1 Expression Rates

7.3.2 Containerized Cargo

7.3.3 Vehicles

7.3.4 Stripping, Sorting, and Consolidation Charges

7.3.5 Break-bulk Cargo

7.4 Exceptions To General Application of Rates

7.4.1 Carrier imposed weight restrictions

7.4.2 Government Furnished Containers

7.5 Payment

7.5.1 Power Track

7.5.2 Submission of Invoices

7.5.3 Determination of Delivery

7.5.4 Withholding Payment

7.5.5 Reimbursement

7.5.6 Payment

7.5.7 Line-haul/Drayage

7.5.8 Electronic Payment

7.5.9 MRM-15

7.6 Refunds, Rebates and Credit

7.7 Agreed Cost Responsibility

7.7.1 General

7.7.2 Responsibility of the Carrier

7.7.3 Responsibility of the Government

7.8 Submission of Operational Reports

APPENDIX I Azores Transportation Service Description of the Azores Transit Time Hazardous Waste Container Equipment Pools Chassis Requirement High Cube Containers Over Dimensional and Unusual Size Cargo Service Definition of City Groups and Zones

ATTACHMENTS

Attachment 1 Definitions/Abbreviations & Acronyms Attachment 2 Invoicing and Payment

1.0 INTRODUCTION/BACKGROUND

1.1 Requirement

United States Transportation Command (USTC) has a requirement for dedicated sealift services from CONUS to Azores.

2.0 SCOPE

2.1 GENERAL SCOPE

The general scope of services under this RFP includes:

Ocean Transportation Related Intermodal movements and services Management Expertise

2.2 CARGO

2.2.1 Types. Types of cargo to be carried are military’s cargo, mail, and any other cargo shipped by the Department of Defense (DOD) in the Defense Transportation System (DTS). All cargo shall be stowed in accordance with commercial shipping practices to prevent damage due to exposure to the elements.

2.2.2 Carriage. Cargo will be loaded and discharged by the carrier at terminal(s) at the carrier’s CONUS port of call.

The Carrier shall furnish all containers unless Government owned containers are to be transported. Consistent with vessel safety, when on deck stowage is necessary, containers with mail and personal property will, to the maximum extent possible, be loaded on the bottom tier.

2.2.3 Mileage Rates. In the absence of specified line haul rates between points within CONUS, inland charges are computed using mileage band rates, multiplied by the mileage found in the Defense Table of Distances (DTOD).

Mileage rates are stated by container size and are only used where no specific door/door rate exists. The DTOD is the official source for calculating distances when applying mileage rates. A commercial product that is DTOD compliant is “PC*Miler” that will produce distance calculations identical to DTOD. If the Carrier has “PC*Miler”, he will be provided a file of the official mileages to be used for all point to port and port to point combinations using mileage based rates. If the Carrier elects to use another source for computing mileage, he cannot be provided this file. Should there be any differences in the mileage computed by DTOD and the mileage invoiced by the Carrier, the Carrier will be paid based on the DTOD mileages. Rates for drayage or inland service in connection with the transportation of refrigerated cargo are applied at an additional 5% of the basic general cargo drayage inland or mileage rate. See Appendix for city groups and zones that are part of this contract.

2.3 VOLUNTARY INTERMODAL SEALIFT AGREEMENT (VISA) PROGRAM

In compliance with the U.S. Cargo Preference Act of 1904 (10 U.S.C. 2631), U.S. flag Carriers will be given preference for award of contracts resulting from this solicitation. USTC recognizes the continuing need for a formalized program for the acquisition of sealift augmentation under less than full mobilization. Enrollment of a Carrier’s U.S. flag fleet in an authorized sealift readiness program establishes an award preference for participants under this procurement.

2.4 REGULATORY COMPLIANCE/APPLICABLE DOCUMENTS

The Carrier shall file all rates and terms of this Contract with the Federal Maritime Commission (FMC), the Surface Transportation Board (STB), and/or with other governmental agencies as may have jurisdiction over the services provided by the Contractor as set forth in this Contract. The Carrier agrees to comply with such regulations of the FMC, STB, and/or other governmental agencies as may be applicable for service to the Government in the carriage of military cargo as set forth in this Contract.

2.5 BUNKER ADJUSTMENT FACTOR (BAF)

2.5.1 Allowance

An allowance for fluctuations in marine fuel prices shall be paid to the Contractors or to the U.S. Government in accordance with the following:

The allowance shall be paid per freight payable unit of cargo. For containerized goods these units are 20-foot and 40-foot containers. For breakbulk cargo, they are measurement tons.

The Bunker Adjustment Factor is zero unless the one-month average fuel price is at least 20% higher or 20% lower (inclusive) than the baseline average fuel price.

The compensation per freight payable unit shall be calculated as follows:

[(Monthly Avg fuel price of MDO x 5% + Monthly Avg fuel price IFO 380 x 95% - Baseline fuel price) x BAF Technical Factor] / 6.50 (Conversation factor, metric tons to barrels)

2.5.2 Baseline Fuel Price

The baseline is $ 225 for Norfolk. The baseline is for a bunker fuel mixture of IFO 380 (95%) and MDO (5%). This baseline will apply to the base year and all option years.

2.5.3 Calculations

2.5.3.1 BAF shall be calculated using Norfolk (ex-wharf) prices.

2.5.3.2 An average fuel price shall be computed by SDDC for Norfolk. This average price shall be calculated on or after the first of the month for the prior month and shall apply to shipments booked for sailings in the next month.

The monthly computation of adjusted average fuel prices will be posted to the SDDC website no later than the 10th of the month prior to the month in which it will be applied. Example: The average fuel prices for calculation of BAF charges for March shall be based on bunker prices for the month of January.

2.5.3.3 The scheduled month the vessel departs the load port at the time of booking shall determine the month for calculation of BAF charges.

2.5.3.4 The source for bunker prices is Bunkerworld; http://www.bunkerworld.com/, which calculates bunker average monthly prices by port and fuel type These prices are quoted in metric tons and shall be converted to barrels by dividing by 6.50. The IFO 380 and MDO average quotes shall then be averaged to calculate the monthly average fuel prices for Norfolk.

Conversion Factors for fuel types identified above are per DESC FY 07 standard fuel conversions

Fuel Type BBLS per MT

IFO 380 6.467

MDO 7.162

2.5.3.5 SDDC shall monitor,calculate and post BAF to the SDDC website.

2.6 Payment procedures.

2.6.1 For shipments paid using PowerTrack/U.S. Bank, the BAF shall be fixed at the time of booking and shall be based on the date the booked vessel is scheduled to sail. When BAF is payable, shippers shall include the applicable BAF amount (plus or minus) to all shipments paid to the Contractor via their own documentation and payment system at the time that the original transactions are sent to PowerTrack. Contractors using the PowerTrack invoice procedure shall include the applicable BAF amount (plus or minus) in their invoice.

2.6.2 For all shipments other than those paid using PowerTrack/U.S. Bank, Contractors are responsible for indicating on their shipment invoice whether a fuel payment is due them, whether no fuel payment is to be made or whether a fuel payment is due SDDC. If a fuel payment is due the Contractor or SDDC, the Contractor shall compute the value of the payment (or credit) and indicate this on the shipment invoice. If there is no fuel payment, the Contractor shall indicate on the invoice “No Fuel Adjustment”. BAF for authorized agent shipments shall be paid using this process.

2.7 Application

The bunker fuel adjustment applies to fuel purchased by the Contractor from normal commercial suppliers and does not apply when bunker fuel has been provided or subsidized by the U.S. Government or foreign Governments.

2.8 Technical Factors and Freight Payable Units

The technical factors and their freight payable units are shown in Table 1.

Table 1. Technical Factors Route(s) Payable Unit Factor Azores 20-foot container

40-foot container MsT

2.99 0.11

3.0 MARITIME CLAUSES

3.1 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 to the ocean transportation of 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. 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. Additionally, as permitted by COGSA, the parties to this contract agree to set the limitation of liability at $1,375 per package, and to cargo not in packages at $1,375 per 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

3.2 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.

3.2.1 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 3.3.1.1 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.

3.2.1.1 Notice of Diversion. The Notice described at Section 3.3.1 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.

3.2.1.2 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 rate, accessorial charge or similar charge or otherwise reimburse the Contractor for costs chargeable (by the Contractor) to or otherwise allocable to a non-contract 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.

3.2.1.3 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.

3.2.1.4 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.

3.2.1.5 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-contract-6 shipper under any Scope of Voyage (Liberties) or similar clause in any contract between the contractor and a non-contract-6 shipper. In no case shall an equitable adjustment duplicate compensation provided in a 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-contract-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.

3.2.1.6 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.

3.2.2 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.

3.2.3 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.

3.3 STRIKES

3.3.1 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.

3.3.2 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.

3.4 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.

3.5 LIENS

3.5.1 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.

3.5.2 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.

3.6 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. 7 WAR RISK

3.7.1 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.

3.7.2 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.

3.7.3 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.

3.7.4 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.

3.8 EXCEPTED CATEGORY CARGO

Excepted category cargoes are listed below. Pursuant to FAR 52.212.4, Contract Terms and Conditions – Commercial Items (Feb 2007), rates for their carriage may be negotiated by the Contracting Officer prior to booking. (The Contracting Officer is not required to ship excepted category cargo with the Carrier). The Carrier shall not accept excepted category cargo for shipment unless a rate for its carriage has been negotiated with the Contracting Officer or the Contracting Officer has issued an un-priced change order pursuant FAR 52.212.4, Contract Terms and Conditions – Commercial Items (Feb 2007). Cargo categories not excepted below and for which specific rates do not appear herein shall be carried at the applicable General Cargo rate.

- Aircraft (unboxed)

- Bulk Cargo (not containerized in tank cars, vehicles, or containers)

- Boats over 40 feet in length

- Oversize Cargo (single shipment quantity in excess of 50,000 pounds or 30 measurement tons.)

3.9 OPERATIONAL SHORTFALLS

The Carrier shall provide notice within eight (8) hours to the Contracting Officer, Contracting Officer Representative and the OO of any operational shortfall that occurs relative to the service. Examples of operational shortfalls include sailing delays, container unavailability, strikes, receiving delays, port backlogs and equipment failures such as ship cranes etc.

4.0 PERFORMANCE WORK STATEMENT AND DESCRIPTION OF SERVICES

Performance Requirements in the document are expressed in the following manner:

Each performance requirement may contain the following three elements. In each case, when taken together, these elements constitute a performance requirement.

Performance Objectives

Performance Objective No. 1: On-Time Delivery

The Contractor shall deliver the cargo not later than the Required Delivery Date (RDD) specified in the accepted booking.

Performance Objective No. 2: In-Transit Visibility

The Contractor shall provide accurate and timely shipment status reports using the Electronic Data Interchange (EDI), or the Ocean Carrier Interface (OCI) as required by Section

Performance Objective No. 3: Good Order & Condition

Cargo shall be delivered to the consignee in the same order and condition as when turned over to the contractor for shipment.

4.1 Performance Requirement Summary (PRS)

The Government will monitor the Carrier’s performance through the Government Performance Requirements summary (PRS) (see Table below) during the performance period of this contract. Other Performance Objectives not addressed in the PRS will be monitored by exception. This PRS is to be used for administrative purpose only and does not reflect a change in the contract requirements. To the extent any conflict may arise between the use of the PRS and the substantive provisions of this contract shall apply.

Performance Objectives

Description

Performance Measure

Performance Standard

On Time Delivery

Cargo shall be delivered within 24 hours of Required Delivery Date as accepted in the booking.

85%

In-transit Visibility

The Contractor shall provide to the U.S. Government an accurate 315 transaction set within 24 hours of triggering event.

100%

Good Order & Condition

Cargo shall be delivered to consignee in same order and condition as delivered to carrier.

98%

4.1.1 Service Commitments

4.1.2 Service Frequency

The Carrier shall maintain a regularly scheduled and consistent commercial liner service conforming to the services required in the contract and offered in the Contractor’s technical proposal and schedule as specified in Integrated Booking System (IBS). The Carrier shall reserve vessel capacity as specified for the booking of Government Cargo on each vessel sailing from CONUS to Antigua/Ascension Island and Azores.

4.1.3 Scheduled Maintenance

The carrier shall provide an updated sailing and arrival schedule to USTC every 45 days through the life of the Contract. Any change to the projected schedule must be reported within seven (7) days of the next scheduled port call. Further, the Carrier shall notify the Government activity having cognizance over each port where Government cargo is to be discharged under this contract of the impending arrival of the vessel. Such notice shall be given at least 48 hours prior to arrival indicating any variation from or correction to information previously furnished.

4.2 Electronic Commerce / Electronic Data Interchange (EDI)

The Contractor shall use Electronic Data Interchange (EDI) or Ocean Carrier Interface (OCI) (or successor system) as the primary means for interfacing with SDDC for all CONUS and OCONUS bookings.

The Contractor shall use the Defense Transportation Electronic Data Interchange (DTEDI) approved Implementation Convention for the ANSI X 12 300, 301, 303, 304 and 315 transaction sets in compliance with their approved concepts of operations. Versions 3060, 4010 or later are required. The Contractor shall implement changes to business processes contained in revisions to Transaction Set Implementation Conventions and their controlling concepts of operations as may be approved by the Ocean ACI Committee. These changes shall be implemented in accordance with schedules approved by the Ocean ACI Committee.

The Contractor shall receive or transmit, as appropriate, the following transactions sets:

- Contractor receiving order data, 300 (Delivery order, the booking, including increases and decreases)

- Contractor ordering confirmation data, 301 (Confirmation of order, Contractor to Ordering Officer/COR)

- Cancellation data from Ordering Officer, 303 (Ordering Officer cancellation)

- Shipping Instructions, 304 (optional)

- Contractor shipment status reporting data, 315

4.2.1 Shipment Status Reporting: The Contractor shall provide accurate shipment status reports using the 315 transaction sets. Transactions shall be submitted in ANSI X-12 EDI standard or OCI to SDDC. Table 4.2.2 identifies specific events that require reporting. The Contractor shall submit all reports within 24 hours of accomplishment or when the carrier has received the booking details and/or lift information from the U.S. Government.

4.2.2 Table of Reportable Shipment Status Events

CODE DEFINITION NOTES

EE Empty spotted Empty container out gate in lieu of actual spot is acceptable for shippers having container pools. Required for other than pool locations (NOT REQUIRED FOR BREAKBULK)

W Pickup of Loaded container/ Breakbulk

This transaction is required at the time customer turns over possession to Contractor

I In-gate at Port of Embarkation (POE)

This transaction is required at the POE

AE Loaded on Vessel This transaction is required at the POE and required at all transshipment ports

VD Vessel departure This transaction is required at POE and required at all transshipment ports

VA Vessel arrival This transaction is required at the POD and required at all transshipment ports

UV Vessel discharge This transaction is required at the POD and required at all transshipment ports

OA Out gate from POD This transaction is required at the final POD (Port and Door bookings)

AV Available for Delivery This transaction is situational at POD or inland locations. This transaction may be submitted when situations arise from delays in local delivery caused by the U. S. Government, when local delivery can be made within the next business day

X1 Deliver to consignee This transaction is required when shipment is delivered to customer, or possession is turned over to the U.S. Government

EC Empty container pick-up This transaction is required (NOT REQUIRED FOR

BREAKBULK)

RD Return of empty containers to terminal

This transaction is required when the empty container is returned to the commercial terminal (NOT REQUIRED FOR

BREAKBULK)

TBD Release of empty not to Contractor’s terminal

When an empty container is released to the Contractor but not returned empty to the Contractor's terminal, the Contractor shall report an alternate event that shows that the detention/Free Time clock has stopped. Contractor shall report this using codes approved by the Ocean ACI Committee.

TBD In-transit position report Required only for shipments to Central Asia that transit the Northern GLOC, locations in AFRICOM and other austere locations designated by the Contracting Officer. Reporting shall be by email until reporting requirements are established and included in Transaction Set Implementation Conventions and their controlling concepts of operations approved by Ocean ACI Committee.

4.2.3 Monthly Revenue Report. The contractor shall provide a monthly revenue report to the USTRANSCOM Contracting Officer that includes all payments received in performance of the contract for each calendar month. The report shall include:

a. All payments received from the DoD for performance of transportation services paid through the 3rd party payment system (currently US Bank’s PowerTrack©) under this contract for each calendar month.

b. Report format shall include at a minimum:

1. Month

2. Contract Number

3. Contractor Name

4. Total dollars of monthly payments received

5. Individual Shipments: Unique Shipper Identifier (Bill of Lading, etc) and associated dollar value of payments received

6. Aggregated Shipments: Contractor Number entered in the 3rd party payment system and total dollar value of payment received

c. Reports for each month are to be delivered by the 20th day of the following month. If this day falls on a Saturday, Sunday, or Federal Holiday, delivery by the next workday will be considered on-time.

4.3 Equipment

4.3.1 Reefer Equipment

The Carrier shall provide self-sustaining refrigerated (reefer) containers. The Carrier shall provide required refrigerated containers to the stuffing activity. Temperature must be maintained within three (3) degrees Fahrenheit of the in-transit temperature specified for controlled atmosphere and straight, chill, and five (5) degrees Fahrenheit for frozen. Reefer equipment shall not be more than two years old at the beginning of the contracting period and remain in good working condition throughout contract period. Refrigerated containers meet booking instructions, including pre-cooling to the prescribed temperatures. Internal Temperature shall be continuously measured using one (1) Ryan type recorder or equivalent that is capable of measuring any one (1) degree Fahrenheit or more variation during transit. Receiving activities shall be provided a copy of the printed temperature record upon request.

Refrigerated containers breakdown and spoilage. If while in the possession of the carrier, a container does not maintain the proper setting and/or malfunctions causing cargo loss, the carrier will be liable for the total amount of the cargo loss, spoilage and transportation. If the Government deems the cargo to be urgent and replaced prior to the next vessel arriving and airlifts the cargo, the carrier will be responsible for the cost of the air shipment.

4.3.2 Container Standards

The Carrier shall provide clean, dry, empty, odor-free containers on chassis to the Government. The equipment shall be United States Coast Guard approved at the beginning of the contracting period and remain in good working condition throughout contract period. The Carrier shall provide stuffing services, which consist of receiving at its terminal cargo suitable for containerization, and the consolidating, segregating, tallying and stuffing the cargo into containers and sealing the containers. The integrity of cargo units delivered to the carrier for stuffing shall be maintained throughout the shipment consistent with the stowage capability of the carrier’s containers. The Government will pay for such services at the rate set forth in CARE-SM II System, per measurement ton of cargo stuffed into a container. The carrier shall spot empty containers at least 3 working days prior to vessel cutoff date within a delivery window of not later than or prior to one hour of the stated time in the notice.

4.3.3 High Cube Containers

A container (dry or reefer) in excess of 8'6" in height shall be paid at the same rate as an 8'6" container

4. 4 Containers Pickup/Delivery

4.4.1The Carrier shall remove empty containers from Government facility within 72 hours of notification that the container is ready to be transported.

4.4.2 The Carrier shall pickup/remove a stuffed container within 24 hours following receipt of notification that the container is ready to be transported.

4.4.3 The Carrier shall pickup/remove from previous sailing all released containers after discharging inbound containers.

4.4.4 The Carrier shall deliver inbound and inland cargo, no later than (NLT) one day after port/customs clearance. Vehicles in containers shall be delivered within forty-eight (48) hours after the container has been discharged from the vessel.

4.4.5 When the Carrier is of the opinion that the cargo is unsuitable for shipment to the specified destination, the Carrier shall immediately advise the OO of such condition, and request a written decision regarding inspection of the container.

4.5 Detention Invoices

The Carrier shall submit detention invoices or vouchers to the COR no later than twenty-four (24) months from the date the empty container is returned to the Carrier.

4.6 Payment

The Carrier shall have MRM-15 alternate payment system. MRM-15 Payment Procedures shall be implemented 30 days from the effective date of the contract.

5.0 NOTES/GUIDANCE

5.1 Limitation of Government Liability

5.1.1 Dead Freight. The Government shall not be liable for payment of dead freight.

5.1.2 Required Delivery Dates. Notwithstanding any other provisions of this Contract, the Government may make alternative transportation arrangements, without notice to the Carrier, for any cargo that the Carrier cannot deliver by the Required Delivery Date (RDD) provided by the OO for that cargo. The determination to make alternative transportation arrangements on the basis of RDD shall be made by the OO after submission of a request in writing from the OO for such arrangements.

5.2 Limitation of Carrier’s Obligation

5.2.1 Cargo Rejection. Notwithstanding any other provisions of this Contract, the Carrier shall have the right to reject explosives (other than Class 1); dry or liquid bulk cargo (i.e., not packaged, containerized or in vehicles); any species of live animals and other cargo deemed by the Carrier to be dangerous or obnoxious in character. Any such cargo accepted for carriage shall be freighted at the General Cargo rate.

5.2.2 Unsafe Operation. The Carrier shall not be required to receive or deliver containers at points or places where it is impracticable or unsafe to operate tractors and chassis due to conditions of roads, streets, or alleys or when prevented from doing so because of fire, acts of God, acts of war, riots, civil commotion, strikes, lockouts, stoppages or restraints of labor or other labor disturbances.

5.2.3 Hazardous Cargo. The transportation and handling of hazardous cargo for shipment shall be subject to Title 49 of the Code of Federal Regulations, Part 171, et seq. (49 CFR) in force at the time of shipment. The Carrier shall refuse to transport hazardous cargo, either by land or by ocean, which does not conform in all aspects to these regulations and any other applicable U.S. governmental regulations.

(a) When the Carrier refuses to pick up a container based on non-compliance with appropriate regulations as stated herein, the Government shall reimburse the Carrier the actual line-haul/drayage charge for such container if the Carrier has made a futile trip in connection with such circumstances as a result of Government failure to comply with applicable hazardous cargo regulations.

(b) Hazardous Cargo known as Dangerous Goods in Limited Quantities. Merchandise classified as such, as defined in Volume I, The International Maritime Dangerous Goods Code (IMDG) w/amendments 25-89) as specified in par. 18.6-18.9, p. 135 and containerized for shipment under this contract will not require additional special labeling, documentation or other restrictions unless specified in future amendments to the IMDG. Cargo moving under this commodity category shall not be entitled to a hazardous cargo surcharge. This cargo may include, but is not limited to items in (Dangerous Goods in Limited Quantities as specified:

orm-d cargo (70dz9), charcoals, cigarette lighters, cleaning compounds, cosmetics, disinfectants, hypochlorite solution (bleach), insecticides, and polishing compounds.

(c) Hazardous Waste Material. When transporting hazardous waste material, the carrier must obtain an Environmental Protection Agency identification number (40 C.F.R.263.11). Carrier should accept only those hazardous wastes that have been manifested in accordance with 40 C.F.R. 262.20 and 262.20(b). The manifest shall stay with the shipment to its destination. 40 C.F.R 263.20 (c). Carrier must deliver the waste to the designated TSD facility on the manifest or to its designated alternate facility in case of an emergency. 40 C.F.R. 263.21(a) and (b).

(d) Spill Reporting – In the event of an accidental discharge of the hazardous material during transporting the carrier is required to take immediate action to protect human health and the environment as defined in 49 C.F.R. 171.15 and must be reported verbally and in writing to the National Response Center, Office of Hazardous Material Regulations Department of Transportation, Washington, DC 20590. See 33 CFR 153.203, 40 C.F.R. 263.31, State and local laws may require additional notifications. Carrier is liable for spills and discharges of cargo while being transported and is responsible for the cleanup. 40 C.F.R. 263.30 and 31.

(e) Storage – Carrier may store material en-route up to ten (10) days at each transfer facility as defined by 40 C.F.R. 260.10, 263.12 and 268.50 (a) (3) without becoming a TSD facility. If storage exceeds the ten days at any transfer facility, then the carrier must issue a new manifest and sign and return to the initial shipper its original manifest. Carriers transporting hazardous waste material into the United States from abroad or who mix hazardous wastes of different DOT shipping descriptions into the same container must also meet the standards applicable to hazardous wastes shippers.

(f) Upon an order for services to transport HAZMAT (not Hazardous Cargo Dangerous Goods in

Limited Quantities) under this contract, the OO shall provide to the Carrier, the class, flask point and UN number of the cargo, including any placards/labeling and special handling instructions of such cargo. Cargo moving under this category shall be entitled to the applicable lump-sum hazardous cargo surcharge as set forth in CARE-SM II System. The cargo may include, but not is limited to the following items listed: batteries (wet filled with acid), engine starting fluid, flammable liquid (toxic, n.o.s.), gases (liquefied), hypochlorite solution (bleach), lighters, oxygen (compressed), petroleum distillates n.o.s., petroleum, and windshield washer solvent.

(g) Explosives. Explosives, other than small arms ammunition, are excluded from the scope of this

Contract and shall not be carried hereunder.

5.3 USE OF GOVERNMENT TERMINALS

5.3.1 Services

When the Carrier calls to load or discharge containers or break-bulk cargo at government facilities, if requested by the Carrier, the Government shall make available such services and materials as may be required to permit the Carrier to perform with dispatch its responsibilities under this Contract in connection with the loading or discharging of cargo. The Government shall provide necessary husbanding services to the vessel while it is at the facilities. The Carrier shall pay the Government, represented by the agency operating the facilities, for such services or materials in accordance with schedules established by that agency.

5.3.2 Shifting Docks

Within a vessel’s port of call, the COR may require the vessel to call at, or shift to a particular dock wharf, place or open roadstead at which the vessel can lie always safely afloat at any time of tide, or at which, in the judgment of the Master, the vessel…