Amendment_0002.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

The purpose of this amendment is to:

1. Update the Cyber Security Language and incorporate CUI Requirement Table in section 14 of the COMMON VISA

LINER/CHARTER TERMS & CONDITIONS.

2. Update DFARS clause, 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting (OCT 2016)

3. Update Attachment 7 to the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171

4. Update Attachment 8 to Federal Register- 2018

All other terms and conditions remain unchanged

1. CONTRACT ID CODE PAGE OF PAGES

1 19

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

16C. DATE SIGNED

BY 14-May-2018

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 HTC711-15-R-WV01

X 9B. DATED (SEE ITEM 11)

20-Jul-2015

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

17-May-2018

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:

HTC711-15-R-WV01

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

SUPPLIES OR SERVICES AND PRICES

The following have been added by reference:

252.204-7012

The following have been modified:

COMMON VISA LINER/CHARTER TERMS & CONDITIONS

CONTRACT SCOPE:

This contingency contract implements the Voluntary Intermodal Sealift Agreement (VISA) as defined in the Federal Register dated 29 October 2014 and provides for contingency sealift services that may arise in any part of the world.

The general scope of services under this contract includes the provision of ocean transportation charter and/or space for worldwide port-to-port ocean movements and related intermodal movements, infrastructure, services, and management expertise. This contract also is to provide such services on a bilateral basis prior to a contingency for the purpose of testing and exercising VISA.

Basic Service. The contractor shall provide basic services, as outlined in the following sections, including guaranteed capacity up to stage commitment levels and corresponding intermodal services and infrastructure supporting capacity commitments to DOD contingency operations. Such services and infrastructure include but are not limited to pick-up and inland transport, active tracking, port clearance, delivery of containers and shipments to and from CONUS and international locations, reporting and command center interface. The contractor shall maintain the highest possible on-time performance rate.

TABLE OF CONTENTS

1. VISA CAPACITY ENROLLMENT TERMS

1.1 BACKGROUND

1.2 CAPACITY COMMITMENT

1.3 INTERMODAL EQUIPMENT

1.4 BUSINESS RULES

2. U.S. CARGO PREFERENCE ACT

3. MARITIME CLAUSES

3.1 REGULATORY COMPLIANCE/APPLICABLE DOCUMENTS

3.2. SCOPE OF VOYAGES (LIBERTIES)

3.3. STRIKES

3.4. LIENS

3.5. FORCE MAJEURE

3.6 COMPENSABLE DELAYS

3.7 EQUITABLE ADJUSTMENTS

4. EXCEPTED CATEGORY CARGO

5. AMENDED JASON CLAUSE

6. GENERAL AVERAGE

7. JOINT PLANNING ADVISORY GROUP

8. COMPANY COMMAND CENTER

9. QUALITY CONTROL, REPORTING AND RECORDS

10. PRICING METHODOLOGY

11. INVOICING AND PAYMENTS

12. SECURITY and FORCE PROTECTION

13. SECURITY CLEARANCE

14. CYBER SECURITY

14.1. HANDLING AND PROTECTION OF NON-PUBLIC INFORMATION

14.2. OPERATIONALLY CRITICAL SUPPORT

14.3. CYBER SECURITY ASSESSMENTS AND MITIGATION PLANS

14.4. CYBER INCIDENT REPORTING

14.5. MODIFIED NIST SP 800-171 REQUIREMENTS

15. GOVERNING LAW

16. ACTIVATION AGREEMENT

1. VISA CAPACITY ENROLLMENT TERMS

1.1 BACKGROUND

Annually, contractors are offered an opportunity to enroll specific vessel capacity and related resources (intermodal systems and equipment, terminal facilities, intermodal and management services, etc.) into the VISA program. As in prior Department of Defense (DoD) sealift readiness programs, contractors receiving certain subsidies from the Government must enroll specified capacity and related resources into Stage III of VISA. (For example, in accord with section VI.B.3.a of VISA, this contract obligates a contractor receiving payments under the Maritime Security Act of 2003 (MSA) to make vessels covered by an MSA operating agreement available during Stage III of VISA to DoD in accord with the MSA, According to the Maritime Administrator, such obligation shall satisfy MSA requirements for contractor enrollment in an Emergency Preparedness Program.) Contractors receiving an MSA subsidy may make a contract commitment only to Stage III of VISA or they may make a contract commitment to Stages I, II and III of VISA. Similarly, other qualified contractors may make a contract commitment only to Stage III of VISA or may make a contract commitment to Stages I, II and III of VISA. Enrollment in Stage I, II and/or III of VISA involves two sequential steps: execution of the application form located at the Section VII. of Federal Register VISA document with the Maritime Administration (MARAD) and execution of this contingency contract with USTRANSCOM.

Upon execution of this contingency contract, a contractor becomes a VISA “Participant” and receives a priority, as described in section III.A.3 of VISA, as a VISA “Participant” for award of DoD peacetime cargo for the forthcoming fiscal year. However, the priority of a “Participant” described in section III.A.3 of VISA has two tiers, a top tier and a bottom tier. Within the “Participant” priority, contractors in the top tier rank higher than contractors in the bottom tier for award of DoD peacetime cargo. As noted at section VI.B.3.b of VISA, contractors properly committing capacity to Stages I, II and III of VISA receive top tier priority as a “Participant”. In addition, certain offerors with a portion of their vessel capacity exclusively engaged in the domestic trades (Jones Act capacity) or offerors for long-term charter to DoD receive top tier priority as a “Participant”, in accord with sections VI.B.3.b and VI.B.4 of VISA, by properly committing some or all capacity to Stage III only. Specifically, an offeror that commits its Jones Act capacity to Stage III only and its other capacity to Stages I, II and Ill receives the top tier priority, while an offeror for long-term charter to DoD receives the priority top tier if all of its vessel capacity is committed only to Stage Ill. Other contractors that properly commit capacity only to Stage Ill receive a priority as a “Participant”, in accord with section VI.B.3.a of VISA, but their priority is a bottom tier priority of lower rank for award of DoD peacetime cargo than the top tier priority.

The minimum Stage I/II commitment will be specified for each cycle of USTRANSCOM peacetime contracts. To the extent such peacetime contracts use commitments above the minimum as an evaluation factor in the award or allocation of peacetime business, a contractor’s annual commitment to Stages I/II could influence the amount of DoD business it receives through contracts awarded from the effective date of this contract through the end of the corresponding contract period.

Activation of any Stage of VISA shall be in accord with the provisions of VISA, particularly section V of VISA.

The decision to activate or deactivate any Stage of VISA will be made by USTRANSCOM Commander. DoD's primary goal in activating or deactivating VISA is to meet operational requirements, while facilitating the use of existing, commercial, intermodal/sealift resources and minimizing disruption to commercial operations whenever possible.

USTRANSCOM will request the Contractor to perform all or part of the Contractor’s commitment in this CONTRACT to any activated Stage of VISA through this contingency contract

In furtherance of the Government’s minimum requirements for a sealift readiness program and in consideration of the Contractor’s commitment of specific capacity and related resources (as detailed herein), the Contractor’s receipt of Government subsidy (if applicable), and the Contractor's priority consideration for award of certain DoD contracts, the Government and the Contractor agree as follows:

1.2 CAPACITY COMMITMENT

VISA defines a commitment of vessel capacity in terms of a percentage of a contractor’s U.S. Flag vessel capacity.

The terms “vessel” or “ship” whenever used in this contract shall include U.S. Flag containerships, RO/RO ships, break-bulk/bulk ships, combination ships, barges and other dry cargo ships (tug/barge combinations) unless otherwise indicated. With respect to various ship types, the Contractor’s capacity commitment as set forth in Attachment I of this contract was described in terms of “militarily planning capacity”, which was computed in the following manner:

a. Container ships: total TEU capacity (at any one time). Militarily planning capacity for containerships is determined by using vessel stowbooks or capacity plans with average military TEU weights of:

15 st Ammo 20' 15 st Sustainment 20' 20 st Sustainment 40'

b. RO/RO ships: total square feet capacity (at any one time). Militarily planning capacity for RO/ROs is determined using the following criteria for deck strength and ceiling height:

Heavy duty—525 psf and 13 ft ht Medium duty—350 psf and 9.5 ft ht Light duty—150 psf and 7.5 ft ht Decks less than 150 psf deck strength and 7.5 ft ht are not counted

c. Break-bulk/Bulk: deadweight (at any one time). Capacity is measured in MT.

d. Combination ships: calculated on applicable combination of above elements.

e. Barges: total square feet capacity (at any one time).

g. Other ships: - Integrated and articulated tug and barge combinations - Tug and towed or pushed barge combinations - total square feet capacity (at any one time).

Attachment 1 lists the Contractor’s U.S. Flag vessel capacity in which the Contractor hereby commits to Stage III of VISA. In the event of any conflict between the procedures in this contract for computing and calculating a capacity commitment and the final Stage III commitment in Attachment 1, the Attachment 1 commitment shall control.

Committed capacity is expected to be maintained for USTRANSCOM contingency planning purposes. However, if any change in the Contractor’s U.S. Flag fleet is necessary during the period of this contract, a minimum 30-day notice shall be provided to USTRANSCOM identifying the change and a revised Attachment 1 indicating the new commitment will be issued via modification.

In calculating this Stage III commitment, the Government and the Contractor used the following business rules:

a. The Stage III commitment is 50% of a participant’s entire U.S. Flag vessel capacity or 100% of the capacity of subsidized vessels, whichever is greater.

b. 100% of the capacity of a subsidized U.S. Flag vessel must be committed. For example, 100% of the capacity of U.S. Flag vessels receiving Maritime Security Program (MSP) subsidy or Construction Differential Subsidy (CDS) must be committed to Stage III.

c. A contractor with no subsidized vessels must commit 50% of its U.S. Flag vessel capacity to Stage III.

d. If a contractor has both subsidized and unsubsidized vessels, 100% of the capacity of the subsidized vessels must be committed. If that capacity is not 50% of its U.S. Flag vessel capacity, the contractor must commit unsubsidized capacity to reach that 50% level. If the subsidized capacity exceeds 50% of a contractor’s U.S. Flag vessel capacity, no commitment of unsubsidized vessels is necessary.

e. The capacity of a vessel under charter to DoD was not counted toward the contingency commitment during the period of the charter.

Attachment 1 lists the Contractor’s U.S. Flag vessel capacity in which the Contractor hereby commits to Stage I/II of VISA. In the event of any conflict between the procedures in this contract for computing and calculating a capacity commitment and the final Stage I/II commitment in Attachment I, the Attachment I commitment shall control. Committed capacity is expected to be maintained for USTRANSCOM contingency planning purposes.

However, if any change in the Contractor’s U.S. Flag fleet is necessary during the period of this contract, a minimum 30-day notice shall be provided to USTRANSCOM identifying the change and a revised Attachment 1 indicating the new commitment will be issued via modification. In calculating any Stage I/II commitment, the Government and the Contractor used the following percentages:

Stage Min Percentage Percentage Above Min Total Percentage I 15% None 15% II 40% None 40%

In addition, where applicable, the Government and the Contractor excluded vessel capacity exclusively engaged in domestic trades (Jones Act capacity) from U.S. Flag vessel capacity only for the purpose of calculating the minimum commitment required for Stage I/II. The lack of commitment to Stages I/II of vessel capacity exclusively engaged in domestic trades (Jones Act capacity) will not prevent a contractor otherwise properly committed to Stages I/II from receiving a top tier priority as a VISA Participant for award of USTRANSCOM peacetime cargo from the effective date of this contract through fiscal year end.

The Stage I and Stage II minimum commitments for offerors seeking the top tier priority on charter contracts, exclusive of long-term (one year at longer) charter contracts, will be calculated using the minimum percentages listed in the table above.

1.3 INTERMODAL EQUIPMENT

The Contractor hereby commits to provide intermodal equipment (chassis, containers, etc.), terminal facilities, intermodal and management services, intermodal systems, and other related resources used in performance of its peacetime business (commercial and military) that the Contractor will need to utilize or to support the percentage of U.S. Flag vessel capacity committed by the Contractor in to any Stage of VISA in proper performance of the terms and conditions of USTRANSCOM contingency contracts. While this contract does not require the Contractor to maintain particular quantities or types of such related resources used in performance of its peacetime, commercial business, it does require the Contractor to maintain sufficient ownership, operation or control of any such related resources that the Contractor will need to property perform its commitments in Section 1.2, Capacity Commitment in accord with this contingency contract.

1.4 BUSINESS RULES

(Nothing in the Business Rules shall be construed as a contractual obligation unless specified in the contract.)

A. Transition from Peacetime through the Three Stages of VISA

1.1. Peacetime Contracts

1.1.1. Peacetime contracts will remain in effect during the stated contract period. These contracts will be used to move DOD cargo into a contingency theater during the volunteer stage and other delivery points outside the contingency theater during activation as defined in peacetime contracts.

1.1.2. During an activation of VISA, this USTRANSCOM VISA Contingency Contract shall be used to move only contingency cargo. Delivery orders/task orders shall contain a designation indicating that cargo is moving under

VISA.

1.1.3. Before activation, DOD may use the rates, terms and conditions of peacetime contracts to support contingency operations. When the peacetime contract is used to support a contingency the contractor has the right to

(i) refuse to perform in the defined theater of operations if it is not safe or practical to operate; (ii) exercise contractual provisions to modify its established service into the theater of operations, as reflected in the peacetime contract.

1.2. Volunteer Stage Capacity

1.2.1. The DOD will use peacetime contracts to move contingency cargoes when they meet the capacity and delivery requirements. DOD may issue a request for volunteers to provide additional service when peacetime commitments cannot satisfy contingency capacity and delivery requirements.

1.2.2. Requests for volunteers may be issued to all potential offerors including non-participants and foreign flag operators. DOD selection of volunteers shall be based on operational requirements and the Secretary of Defense approved priorities for the award of sealift contracts, which are incorporated in VISA.

1.2.3. DOD may use the volunteer stage to obtain additional services to meet contingency operation requirements.

The volunteer stage shall not be used by contracting personnel to renegotiate existing peacetime or USTRANSCOM VISA contingency contract rates. VISA participants with existing peacetime contracts that can satisfy DOD’s requirements shall receive priority over contractors without such contracts. New offers of service will be treated as late rates that receive last priority for use provided participant services meet DOD’s contingency requirements.

1.2.4. Where appropriate, DOD shall approve requests by VISA Participants to convert voluntary commitments to the USTRANSCOM VISA contingency contract rates, terms and conditions.

1.3. VISA Activation

1.3.1. VISA Stages may be activated by USTRANSCOM Commander, with the approval of SecDef, as required to support contingency operations.

1.3.2. DOD may activate all or part of VISA Program Participants, and all or part of each VISA Participant’s commitment to each stage. DOD will exercise best efforts to proportionately activate participants’ capacity to minimize commercial disruption.

1.3.3. Upon activation of any Stage, the voluntary commitments of Program Participants preceding such activation shall convert to the relevant Stage of commitment subject to the USTRANSCOM VISA contingency contract terms and conditions and pricing.

1.3.4. Compensation for commitments under VISA Stages I, II and III is cumulative. VISA Participants shall be compensated at the applicable USTRANSCOM VISA contingency contract rate during the duration of the activation. For example, using the VISA commitment requirement of 15%, 40% and 50%, the Stage I rate would apply to the first 15% of activated capacity (1 to 15), the Stage II rate would apply to the next 25% of capacity (16- 40), and the Stage III rate would apply to the remaining 10% of capacity (41 to 50).

1.3.4.1. The Government agrees to include in the Business Rules specific booking and billing procedures for activated capacity prior to an activation. The Government will examine the contractor’s Last In, First Out proposal.

1.3.5. DOD shall activate Stage III only after activating Stages I and II.

1.3.6. The decision to deactivate VISA stages and release Participants from activation commitments will be made by USTRANSCOM Commander based on the operational requirement. Deactivation considerations may also include costs to DOD, and minimizing the contractor’s commercial disruption by returning commercial assets for use in peacetime business.

1.3.7. DOD may request VISA Participants voluntarily increase their commitments during Stage Activation and before proceeding to the next Stage of Activation. Also, DOD may request volunteer capacity from non-participants before proceeding to the next stage of Activation.

1.4. Commitment Levels

1.4.1. The USTRANSCOM Commander may re-establish the minimum and maximum commitment levels for each VISA Stage annually.

1.4.2. Such minimums and the contractor’s commitment thereto shall be reflected in the contractor’s VISA Capacity Commitment (Attachment I) that is incorporated by reference herein.

2. U.S. CARGO PREFERENCE ACT

In compliance with the U.S. Cargo Preference Act of 1904 (10 U.S.C. 2631), U.S. flag Carriers have been given preference for award of this contract. Carriers will not employ other than U.S. flag vessels for service under this contract unless the Contracting Officer has provided written exception.

3. MARITIME CLAUSES

3.1 REGULATORY COMPLIANCE/APPLICABLE DOCUMENTS

3.1.1. The Contractor shall comply with regulations of the Federal Maritime Commission and the Surface Transportation Board, Department of Transportation and/or other US Governmental organizations, including local regulations at origin, destination and in-transit as may be applicable for service to the US Government in carriage of cargo as set forth in this contract. If the contractor fails to meet any obligation imposed by regulations, then any liability resulting from the contractor’s non-compliance with these regulations shall be solely the contractor’s responsibility.

3.1.2. When a container or shipment is not in compliance with the applicable regulations, at the time and location of contractor acceptance of the container or shipment, the contractor shall call the local Transportation Officer (TO) and request immediate corrective action be taken. If compliance cannot be established locally by the TO, the TO shall refer the matter to the cognizant Contracting Officer for resolution.

3.1.3. In the event the contractor is unable to pick up the container or shipment, the Government will pay the contractor an amount equal to the applicable inland or drayage rate.

3.1.4. Safe Inland Operation. The contractor shall not be required to receive or deliver shipments at points or places where it is impractical or unsafe to operate tractors, trailers 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’s, strikes, lookouts, stoppage or restraints of labor or other labor disturbances.

3.1.5 Custom of the Trade. Wherever the standard of performance by either party is not provided under the provisions of these Basic Terms, then the "Custom of the Trade" shall be used as a standard of performance. This phrase shall mean the established practice generally accepted for Trucking, Rail and Marine Shipping Industries for transportation service in the geographic area where the service is performed or to be performed.

3.2. SCOPE OF VOYAGES (LIBERTIES)

3.2.1. 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.

3.2.2. 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 as described at Section 3.2.2.1 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.

3.2.2.1. Notice of Diversion. The Notice described at Section 3.2.2 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 (e.g., 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.

3.2.2.2. Equitable Adjustment, Contractor Proposed Course of Action. After notification to the Contracting Officer and approval by the Contracting Officer 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 Contracting Officer 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 Contracting Officer, the contractor shall nonetheless be entitled to reasonable, allocable, incurred costs if the Contracting Officer 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 Contracting Officer will consider this fact in evaluating any request for an equitable adjustment or potential government claim for a windfall to the Contractor.

3.2.2.3. Mutual Agreement. 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, the Contracting Officer shall so advise the Contractor as soon as practicable. Thereafter, the Contracting Officer and the Contractor shall, with all due diligence and good faith, endeavor to mutually agree upon the prudent disposition of the Cargo.

3.2.2.4. 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 Contracting Officer’s direction to the Contractor to divert 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.

3.2.2.5. 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 Contracting Officer’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 shipper under any Scope of Voyage (Liberties) or similar clause in any contract between the contractor and a non-contract 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 shipper. If the Contractor has been paid for delivery to destination, the Contracting Officer will consider this fact in evaluating any request for an equitable adjustment or any government claim for a windfall to the Contractor.

3.2.2.6. Security and protection of cargo. 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.

3.2.3 Hazardous Cargo

3.2.3.1 Limitations of Contractor’s Obligation

3.2.3.1.1 The US Government shall provide accurate and timely hazardous cargo documentation in accordance with applicable laws and regulations.

3.2.3.1.2 The Contractor may refuse to transport hazardous cargo either by land or by ocean, which does not conform in all respects to applicable laws and regulations.

3.2.3.1.3 For Bookings from Door involving Hazardous Cargo, Contractor may, at its discretion, not schedule a pickup of HazMat cargo from origin if it has not received HazDecs or if HazDecs do not conform to Contractor’s policies or procedures. However, once pickup from Door has occurred, Contractor is permitted to halt further transport only in accordance with paragraph 3.2.3.1.2 or at Government direction, but not due to Contractor’s internal policies or procedures.

3.2.3.2 Transport Emergency Cards (Tremcards)

The Contractor shall produce "tremcards" for hazardous cargo transiting through countries where this requirement exists.

3.2.4. Liberties.

3.2.4.1. General 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 and the Contracting Officer is notified immediately. The vessel may carry seized contraband, explosives, munitions, warlike stores, hazardous cargo, and may sail armed or unarmed and with or without convoy.

3.2.4.2. Liberty to deviate. 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. LIENS

3.4.1. 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 requirement in all subcontracts at any level and to expend any resources necessary to expeditiously enforce the provisions of this clause against such subcontractors.

3.4.2. 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 requirement 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. FORCE MAJEURE

The acts 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, FAR 52.212-4(j)), liability for costs/damages resulting from delay in performance, or matters other than excusable delay.

3.6 COMPENSABLE DELAYS

Other clauses in this contract (such as FAR 52.212-4 paragraph f;3.5 force majeure; paragraph 3.2 Scope of Voyage (Liberties); etc.) cover delay in performance or frustration of performance in certain situations. Section 3.2.4.1 Scope of Voyage (Liberties) provides for monetary equitable adjustment, but only in the case of maritime (not in-land) transportation where attempted delivery to the destination port has been abandoned.

3.6.1 Situations where the U.S. Government Causes a Delay. This clause addresses compensation/financial liability in other situations. Specifically, to the extent action or inaction by the U.S. Government in either its contractual or sovereign capacity, causes a delay in Contractor performance, the Contractor shall be entitled to an equitable adjustment for costs incurred directly related to the safety and security of U.S. Government cargo or related to efforts to deliver the cargo as contracted. Such cost shall be reasonable, supported by appropriate documentation and subject to audit. The Contractor shall be entitled to such equitable adjustment under this contract to the extent that:

a) The U.S. Government action or inaction is otherwise not compensable under other provisions of this contract; and

b) The U.S. Government action or inaction interferes with or prevents performance of a contractual obligation by a reasonable Contractor; and

c) The Contractor’s actions or inactions have not contributed to the Government caused delay; and

d) The Contractor has exercised due diligence to mitigate the delay or the financial consequences of such delay

3.6.1.1 In no case shall an equitable adjustment duplicate compensation provided in a VISA 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-VISA shipper.

3.6.2 Situations where neither the Contractor nor the U.S. Government Cause Delay. To the extent delays in Contractor performance are caused by third parties, natural causes, or any cause other than those within the control of either the Contractor or the U.S. Government, this clause apportions risk. In such situations, the Contractor may be entitled to an equitable adjustment for costs incurred directly related to the safety and security of U.S.

Government cargo or related to efforts to deliver the cargo as contracted. Such cost shall be reasonable, supported by appropriate documentation and subject to audit. The Contractor shall be entitled to an equitable adjustment to the extent that:

a) The subject delay is caused by an extraordinary event not within the control of either the U.S.

Government or the Contractor. An extraordinary event is uncommon or unusual and beyond the control of a reasonable Contractor exercising customary foresight and sound business practices; and

b) The extraordinary event is otherwise not compensable under other provisions of this contract; and

c) The extraordinary event interferes with or prevents performance of a contractual obligation by a reasonable Contractor; and

d) The Contractor has exercised due diligence to mitigate the delay or the financial consequences of such delay.

3.6.3 Exigency Areas. With respect to declared Exigency Areas the scope of equitable adjustment is hereby broadened to the extent that action or inaction by any government, not just the U.S. Government, delays Contractor performance in a declared Exigency Area or at the border of a declared Exigency Areas. In all other respects, the terms of Paragraph 3.6.2 above shall apply to Exigency Areas.

3.6.3.1 In no case shall an equitable adjustment duplicate compensation provided in a VISA freight rate, or otherwise reimburse the Contractor for costs chargeable (by the Contractor) is allocable to a non-VISA shipper.

3.7 Equitable Adjustments

Where the Government causes delay, or where neither the Contractor nor the U.S. Government cause the delay, and the Contractor accrues costs due to the delay, pursuant the Compensable Delays clause, these costs shall not be invoiced as pass-through charges. These alleged additional costs, charges, or third-party reimbursement costs shall be submitted in accordance with FAR 52.212-4(c) and (d).

3.7.1 Examples of costs that shall be submitted in accordance with FAR 52.212-4(c) and (d) include, but are not limited to, Government-caused delay costs, customs delay costs, border delay costs, destination delay costs, gate delay costs, and costs relating to a requested Contract modification and/or costs relating to an alleged Contract change.

4. EXCEPTED CATEGORY CARGO

Excepted category cargoes are listed below. Pursuant to FAR 52.212.4, Contract Terms and Conditions – Commercial Items, 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 Contractor). The Contractor 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. Cargo categories not excepted below and for which specific rates do not appear herein shall be carried at the applicable General Commodity rate.

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

- Aircraft (unboxed), Helicopters, Boats over 40 feet in length

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

- Explosives (Other than IMO Class 1.4)

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.

6. GENERAL AVERAGE

General average shall be adjusted, stated and settled, according to York-Antwerp Rules 2004 and subsequent Amendments, if any thereto 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.

7. JOINT PLANNING ADVISORY GROUP

7.1. USTRANSCOM or MARAD may request Joint Planning Advisory Group (JPAG) meetings to be held at a government location on a quarterly basis at no additional charge. The government anticipates at least semi-annually, contract users and providers shall be invited to attend JPAG meetings. The purpose of the meetings will be to conduct contingency operations planning.

7.1.1. The contractor is required to participate in JPAG and other joint planning forums when directed.

8. COMPANY COMMAND CENTER

8.1. Although the contractor has participated in peacetime in general DOD industry planning for contingencies, activation of a Stage of VISA to which the contractor has committed resources may require intensive, specific planning and coordination between DOD and the contractor. The Contractor shall submit points of contact who can respond to US Government activities on a 24/7 basis to provide expert assistance in answering questions, exchanging information, and resolving problems upon notification of activation. The contractor is required to establish a company command center upon notification of VISA activation and provide planning documentation.

The contractor’s planning documentation shall include points of contact, 24 hour telephone numbers and describe with adequate specificity how the command and control operations will be carried out for Government cargo during the activation performance period.

8.2. Activation Response Requirement. To prepare for a potential call-up, the contractor shall establish a company command center within 24 hours after activation of a Stage of VISA to which it has committed resources.

8.2.1. The contractor shall maintain reliable communication capability between the contractor and U.S. Army Military Surface Deployment and Distribution Command, Command Operations Center (618) 220-4262. At a minimum, the means of communication shall include those facilities normally used by the contractor in conducting commercial business.

9. Quality Control, Reporting, and Records

9.1 Quality Control

9.1.1 The Contractor shall utilize its commercial quality control processes/plan (QCP) to ensure quality service is provided throughout the term of the contract.

9.1.2 The Contractor shall promptly notify the appropriate Contracting Officer Representative (COR) of any problems or failures that may affect performance. Upon request, the Contractor shall provide the COR with a written plan of corrective action, including a proposed timeline, within 10 business days after such request. This plan shall describe proposed Contractor actions to correct the problem or deficiency and bring performance back in compliance with identified performance standards.

9.1.3 The CORs shall monitor Contractor performance and compliance with the terms and the conditions of the contract using standard techniques such as inspections, US Government-generated management reports, Contractor reports and customer feedback. The Contractor shall attend periodic meetings called by the COR or the Contracting Officer to discuss operations and problem areas.

9.1.4 Quality Council Meetings

The Contractor shall participate in Quality Council Meetings as requested by the Contracting Officer to review performance and discuss operational issues. Meetings shall be held as directed by the Contracting Officer, but will not exceed two per year.

9.1.5 Performance Reporting

In accordance with FAR 52.212-4(c), the contract may be modified to provide additional reports that satisfactorily quantify Contractor performance under “Performance Objectives. The Contracting Officer may establish the format and frequency of such reports.

9.1.6 Retention of Records

The Contractor shall maintain and, upon request, provide to the Contracting Officer such documentation deemed relevant to performance of transportation services ordered under the terms of this contract. Records will be maintained and available to the Contracting Officer throughout the term of the contract and for three years after final payment in accordance with FAR 52.212-5(d).

10. PRICING METHODOLOGY

VISA contemplates that the contingency contract will be capable of a smooth transition from peacetime services to contingency services. Compensation is negotiated by the Contractor and USTRANSCOM under one of three rate methods: (1) Method A (revenue based methodology), (2) Method B (peacetime rate based methodology), or Method C (standard negotiation procedures). The Contractor acknowledges that compensation in contract is based on one or more of these three methods.

VISA contemplates that compensation for those specific Contractor vessels, if any, committed to Stage III of VISA pursuant to Contractor obligations under the MSA and activated under Stage III of VISA shall be in accordance with pre-approved methodologies established jointly by the Secretary of Transportation and the Secretary of Defense after consultation with industry in fulfillment of 46 App. U.S.C. 1187b(c). According to MARAD, MARAD has provided and approved Method A as fair and reasonable compensation for all of Stage III complying with 46 App.

U.S.C. 1187b(c). USTRANSCOM acknowledges and represents that they will determine Method A compensation in a manner which is wholly consistent with the revenue based methodology. The Contractor acknowledges and represents that if it uses or has used Method B or C, rather than this Method A provided and approved by MARAD, it has done so because the compensation provided for it by Method B or C is at least as favorable to the Contractor as the compensation provided for it by Method A.

The Contractor is authorized to update their VISA rates on an annual basis, if desired.

Defense Base Act costs shall be invoiced as a pass-through reimbursement item in accordance with Section 11.

Invoicing and Payments.

11. INVOICING AND PAYMENTS

Invoices shall be submitted in accordance with the invoicing instructions stated in the task order upon VISA activation only after services included on the invoice have been satisfactorily performed (Ref FAR 32.905).

Invoices shall be submitted within the timeframe requested under the established billing procedures stated in the task order upon VISA activation.

Contractors are authorized to bill for linehaul to POE, Ocean Transport, Liner In/Liner Out and BAF charges on vessel departure. Contractors are further authorized to bill all other charges including linehaul from POD and all accessorial charges on delivery of the goods. Delivery is defined as actual delivery -- for bookings to-port, actual pickup by the Government; and for bookings to-door, actual delivery to consignee. Contractors are authorized to submit the delivery related billing in absence of an EDI X1 transaction if there is a Government-caused hold/delay which results in cargo not able to be delivered by carrier for more than 3 months beyond the Required Delivery Date.

Contractors are authorized to bill for all charges on vessel departure in declared Exigency Areas.

Invoices shall not be submitted by the Contractor until the required EDI transactions pertaining to the billed service have been submitted (EDI 315 Vessel Departure transaction for the First Invoice and EDI 315 Delivered to Government transaction for the Second Invoice).

In accordance with the Prompt Payment Act, payment terms are net 30 days from receipt of a proper invoice.

Exception will be made for small businesses – the US Government‘s goal is to pay within 15 days from receipt of a proper invoice for the entities properly identified in the Central Contractor Registration (CCR) database as small businesses.

All invoices, requests for equitable adjustment, or similar requests for payment under this contract must be submitted not later than (six) 6 months after the end of the relevant period of service. All invoices, requests for equitable adjustment, or similar requests for payment not so submitted shall be deemed waived by the Owner.

Failure to provide required information and appropriate…