VISA_Q A's.pdf

HTC711‐15‐R‐WV01

QUESTIONS/CLARIFICATIONS

August 20, 2015

Several of the RFP documents have been revised as a result of the following questions and comments. Copies of the documents are provided with tracked changes. An amendment to the RFP is forthcoming.

SF1449

SECTION ISSUE CARRIER RECOMMENDATION GOVERNMENT RESPONSE

1 Liner Price Instructions (Pages 9‐10 of 60)

Subsection “c”: Summarizes what components are included in the unit and daily rate buildups.

How can we ensure this is consistent with Attachment 5 for Methodologies A&B

Terms are consistent with methodologies A&B

2 Liner Accessorial Rates (Page 10 of 60)

For calculating Methodology A, w subsection “a” described the contractor’s option to offer separate rates for certain services (CFS, flat rack surcharge, modified atmosphere, controlled atmosphere, stop off and super‐cargo services);

provided the expenses of these items were deducted from AGR. How does this work for Methodology C

The option only applies to methodology A. Under B and C, rates will be bid for these items.

3 Liner Line Haul, Zone and Drayage Rates (Page 10 of 60)

This clause states, “The government will set line haul, zone and drayage rates. No separate rate offers for these services will be accepted.”

NOTE‐ need clarification, this is inconsistent with Attachment 4, Section 6.14 and Page 52.

Not clear if Contractors are to provide linehaul rates and service or not and if so are what is the expectation will it be in OCONUS areas as well such as Afghanistan, Iraq etc. if so what rates are to be used?

SF1449 52.212‐1m.3. Liner Pricing Instructions was revised to be consistent with the pricing schedule.

4 FAR 52.212‐4

(Pages 26‐36 of 60)

The provision on “strikes” at subsection (f) “EXCUSABLE DELAY” (“Defaults of subcontractors at any tier or the Owner’s failure to perform due to a labor disruption, labor dispute, or strike shall not constitute excepted events under subparagraph (1).”) is inconsistent with Section 3.1.4 and the Force Majeure provisions at Section 6.b.2 in Attachment 4.

Recommend using the USC‐08 “COMPENSABLE DELAY” provisions to replace “EXCUSABLE DELAY”

USC Compensable delay language added at SF1449 Section 3.6

5 FAR 52.212‐4

(Pages 26‐36 of 60)

The invoice provision at subsection (g) and payment at subsection (i) reflect payment (and invoice submission) after delivery. This is consistent with the invoicing provision at Paragraph 11 at Page 54. NO PAYMENT ON LIFT

Recommend using USC‐8 language USC language added at SF1449 Section 11, Invoicing and Payments, allowing certain items to be billed upon lift.

6 FAR 52.212‐4

(Pages 26‐36 of 60)

The “Risk of Loss” provisions at subsection (j) need to be clarified. Subsection (1) reflect COGSA for ocean leg, with liability otherwise governed by the “applicable statute or multi‐ lateral international agreement” at the location where the loss occurred. However, subsection

(2) reflects COGSA end to end with UNCITRAL once it is ratified.

Need clarification of language Deleted the section that conflicted with the general COGSA language and added “declared value” statement.

7 TRANSCOM EPA

clause 5552.216‐ (Page 41 of 60)

Government is using their own clause to calculate the BAF. The problem is that the technical factors and freight payable units table is blank. Need clarification

Deleted clause 5552.215‐9005 from the SF 1449 and replaced with Exhibit 1, USC BAF language.

SF1449 SECTION II‐ COMMON VISA LINER/CHARTER TERMS & CONDITIONS

8 Contract Scope

(Page 46 of 60) Contractors are required to provide “corresponding intermodal services and infrastructure supporting capacity commitments to DOD contingency operations”. Would assume that would include inland transport, providing chassis, ITV etc.

Contractors will need to depend on third parties to provide this data.

Request clarification VISA agreement includes intermodal services. It is expected that contractors would use existing networks to provide services.

9 SECTION 1.2‐

CAPACITY

COMMITMENT

(Page 45 of60)

Contractors are required to provide a 30 days’ notice if making changes to the US Flagged fleet.

Not sure – but would expect this to apply from signature of contract?

Need confirmation if this is the current process on out‐flagging/in‐flagging.

Yes, this is the process to notify USTRANSCOM. If changes are forthcoming you may provide notice before the new contract is signed. MARAD must also be included in the re‐flagging process.

10 SECTION 1.3‐

INTERMODAL

EQUIPMENT‐

(Page 47 of 60)

This provision requires the contractor to “commit” to provide intermodal equipment (chassis, containers, terminal facilities, intermodal and management services, intermodal systems etc.) used in the performance of its peacetime business in support of vessel capacity pledged in VISA. This clause is so general in wording and nonspecific in nature that one cannot make much of it;

however, I mention it as it does give an indication of the USG’s expectation, and it mentions “chassis” (chassis are also addressed in Section 6.6 of Attachment 4).

Need clarification as language is vague.

Contractors no longer have chassis equipment in their possession.

VISA requires the contractor to commit to provide intermodal services as well as ocean service.

Contractors are expected to arrange for the equipment.

Language has been added to allow for payment of a surcharge when chassis are required.

11 Section 1.4.1 (Page 49 of 60)

Annual revision of minimum and maximum commitment levels are provided by USTRANSCOM – will this entail an annual revision of fees as well?

Annual revision of fees will not be required; however, if carriers wish to revise their rates they may do so once annually.

Language added into Common terms and conditions Section 10 Pricing Methodology.

12 SECTION 3.2.3‐

HAZARDOUS

CARGO

(Page 51 of 60)

This section references Attachment 1 contains list of hazardous commodities however the attachment referenced is in USC‐7 not this solicitation and not used in USC‐8.

In USC‐8 hazardous acceptance will be determined at time of booking.

Revised section 3.2.3.1.3 deleting reference to Att.1.

13 SECTIONS 5 & 6

(Page 52 of 60)

The standard AMENDED JASON CLAUSE and GENERAL AVERAGE (York‐Antwerp) Clauses are included. (Although the GA clause in USC‐08 stipulates the law and usages at New York where VISA is silent‐ need clarification for VISA.

Need clarification Updated to coincide with USC.

14 SECTION 10

PRICING

METHODOLOGY

(Page 54 of 60)

This clause contains general language on the three rate methodologies available. I only mention it here because the statutory cites need to be updated.

Need clarification Per request the original VISA language pertaining to pricing methodologies was not changed.

15 SECTION 11

INVOICING AND

PAYMENT

(Page 54 of 60)

As mentioned previously, contractors cannot invoice until after delivery. In addition, the section lists the required items for a “proper invoice”. Container Detention, Port Storage, Futile Trip and “Pass Through Charges” which are also mentioned in this section.

Need clarification as to whether invoicing should be on delivery or lift.

Section 11 was revised to authorize payment of certain items on lift.

16 Section 12.2 (Page 56 of 60)

This provision states that personnel performing services under this contract shall be US Citizens.

This includes subcontractors’ personnel. When are we “performing services under this contract”.

Needs clarification Suggest including USC‐08 language (9.A.3) clarifying that this provision is limited to classified work otherwise it will be impossible to comply.

Deleted and replaced with USC language.

ATTACHMENT 4, SECTION I‐ DOAN/LINER TERMS & CONDITIONS

17 Section 1.8 Port

Storage (Page 5 of 60)

Port Storage is only authorized for USG caused delay/request. Request USC language that charge is authorized when caused by “other than due to Contractor’s actions”.

Need clarification Updated with USC terms.

18 Section 1.10.1.2 (Page 6 of 60)

The short stop provisions require accompanied by a time limitation (i.e., the USG must make the request prior to arriving at POD.”)

Need clarification Requirement for timely request added to section 1.10.1.2.

19 Section 2.2 (Page 6 of 60)

IDE/GTN‐is this a contractor requirement for “tracing” or “tracking” (EDI) information to SDDC?

Although DRAP is mentioned in 6.4.1.3, it is not addressed in the EDI Table on Page 7.

Need clarification Only required if ordered. This requirement is unchanged;

system name changed from Global Transportation Network to IDE/GTN.

20 Section 2.3 (Page 7 of 60)

What is the ACI (“Automated Contractor Interface”) Committee?

Need clarification Committee utilized to approve EDI changes, added “or current governing authority” as the committee may no longer be in existence.

21 Section 4.2.1 (Page 8 of 60)

What is “take or pay” Need clarification Take or pay means that the government pays for the space called up whether or not there is cargo to fill the space. See section 7(a)(4).

22 Section 5.1 (Page 8 of 60)

Chassis /linehaul are mentioned here. Need clarification of government’s expectation

Chassis changes are still in work. Language added to Attach 4. Section 6.6, Chassis Requirement to allow for surcharge.

23 Section 5.4 (Page 9 of 60)

Modified Liner Service‐ under this provision, CO may order modified liner service on bilateral basis.

Not sure what that entails.

Will this be bilateral as both agree to the change and what will be the timeframe for the change please clarify

To be negotiated at the request of the CO for modified service.

24 Section 6.10.5.7 (Page 13 of 60)

Reefer Maintenance‐ recommend using USC Provisions. This provision requires the contractor to certify additional expenses in maintaining operation of the reefers. This language was modified in the USC contracts to acknowledge this cost, and set reefer maintenance rates.

Recommend using USC‐8 language Section was updated with USC language.

25 Section 6.12.2.1 (Page 215 of 60)

Reference to paragraph (1) needs to be fixed. Corrected

26 Section 6.13.3 &

7.6.2.2 & 7.6.3.1.1 (Pages 15, 22 and 22 of 60)

Vessel Daily Rates. Similar language appears in three locations.

Need clarification as language is not clear 6.13.3 defines applicability (i.e.

dedicated liner service). 7.6.2.2 & 7.6.3.1.1 corresponds to the rate methodology selected by the offeror.

27 Section 7.1.11.3 (Page 19 of 60)

Under the Non‐containerized Shipping Requirements‐ USGOV will hold the Contractor harmless up to 100,000 USD for loss or damage, including injury and death – if available under the TWCF, for crewmembers acting as “winchmen”, “tallymen” or other services performed by longshoremen. This is limited to a foreign port, and is only as agreed by the contractor. (And would likely apply only to a geared vessel carrying non‐container cargo.) That is a somewhat limited

Need clarification of government’s expectation

This covers limited situations.

The VISA contract also contains Defense Base Act Insurance.

amount in case of death and what if they are not available under the TWCF? Also note the capped amount also applies in case of deaths.

28 Section 8.2.1.5 & 8.3.1.1 (Pages 22 and 24 of 60)

Need clarification of whether this includes Port Storage charges caused by actions “other than the Contractor”. Should request “Compensable Delay” language from USC contracts.

Need clarification Port storage charges Attachment 4, Section 1.8 was updated.

Compensable Delay language was added.

Attachment 4, SECTION II‐ SPECIAL LINER TERMS & CONDITIONS 29 Section 1(a)(1)

(Page 30 of 60) What Is “Global Distribution International”? Need clarification Old SDDC Division replaced by

SDDC G‐3. Language replaced.

30 Section 4

(Page 32 of 60) The transfer and administrative fees will be negotiated on an annual basis for Government lease or purchase of contractor‐owned or leased containers.

Need clarification Requirement deleted.

31 Section 4(f)(2) (Page 36 of 60)

What is meant by the statement, “Detention is not payable on container/equipment in the Contingency Area?

Need clarification

Container detention applies to noncontingency aeas. Theatre of Operation containers are subject to the foregoing Equipment Contingency Clause.

32 Section 6(a)(1) (Page 37 of 60)

The Liquidated Damages for failure to spot a container is $70 per day (dry) and $200 per day for a reefer. This appears to be rather exorbitant? Is there a comparison to the commercial market?

Removed Section 6, Liquidated Damages

33 Section 10.1.2 (Page 45 of 60)

This “Standard Cargo Security” Section requires the contractor to have Piracy Annex for high risk waters.

Recommend USC‐8 language under Exigency Section

USC has the same Piracy Annex requirement. Added USC section “high risk waters armed security” as section 10.3

34 Section 7b‐

ASSURED SERVICE

(Page 39 of 60)

This option is only available to contractors selecting the Revenue Based Methodology, however, Methodology C contractors may propose and attempt to negotiate an alternative approach to the utilization rate used in the Revenue Based Methodology.

Need clarification how will this work for Methodology C?

Assured Service is only available to Revenue Based Offerors;

Method B and C offerors have to propose a rate for assured service and negotiate an alternative approach to the utilization rate used in the Revenue Based Methodology.

QUESTIONS/COMMENTS RESPONSE

Are we starting from scratch and filling out everything again?

We are issuing a new contract so the list of documents below are to be submitted in your proposal. The vessel box form was streamlined to be shorter but you should just be able to copy the vessel information from your old forms into the new vessel form (att 2). Your reps and certs should be in SAM ‐ just ensure that they are current. www.sam.gov Signed SF 1449, including acknowledgment of amendments, Offeror Representations and Certifications ‐ Commercial Items (Reference Provision 52.212‐3), Attachment 1 ‐ VISA Capacity Commitment, Attachment 2 ‐ VISA Carrier Vessel Information Sheet for ALL vessels (Stage III Charter pricing for all vessels Block 42), Attachment 4 ‐ Liner Pricing Schedule, if proposing, Completed Attachment 6 ‐ DD Form 254, Cyber Security Report, if applicable.

Is it possible to send/post to FBO a soft copy of Attachment 1, the Capacity Commitment document?

We will not be posting a fillable form. The form is initiated by the Government and routed through MARAD and USTRANSCOM for approval. We will be using your current approved Capacity Commitment to insert into the new VISA contract. If your current capacity commitment form does not accurately reflect your desired commitment please contact Jeannine Kenyon to initiate the necessary changes.

Jeannine Kenyon 618.624.9360 ext. 777.111.3883, Jeannine.Kenyon@cgifederal.com

Is attachment 4; Liner Pricing a requirement?

All offers must propose charter rates. Contractors providing any regularly scheduled US flag peacetime liner service between CONUS and OCONUS ports shall offer unit rates and vessel daily rates. Reference SF1449 52.212‐1(m).3.b

BAF ‐ How is bunker compensation calculated on a container basis and when not a direct reimbursement item?

The USTRANSCOM BAF clause was deleted and replaced with Exhibit 1 to the 1449 to coincide with USC‐8 updated BAF. Compensation calculations are provided in the clause.

39 In order to provide the required contract protections for the Carriers, the USC‐08, Exhibit 2 Section 6 Compensable Delay and the Section 7 Equitable Adjustment language needs to be added to at the end of Page 52 of 60 of the VISA Solicitation SF

The requested language was added to Sections 3.6 and 3.7 of the VISA common terms and conditions.

40 Add provision and/or CLIN showing reimbursement pass though of VISA Defense Base Act Insurance (DBA).

Reimbursement provision was incorporated into the SF1449 Common Terms and Conditions, Section 10

41 Chassis Requirements ‐ Coordinate language with the USC‐08 changes

Chassis changes are still in work. Language added to Attach 4. Section 6.6, Chassis Requirement to allow for surcharge.

42 SF 1449 Page 10 Liner Accessorial Rates ‐the added provision that the Government will set linehaul, zone and dray rates is not acceptable

SF1449 52.212‐1m.3. Liner Pricing Instructions was revised to be consistent with the pricing schedule.

Common VISA Terms and Conditions ‐ Page 47 Fwd. Section 1.4 Business Rules ‐ the current language that the Volunteer Stage will be under the USC Contract and that peacetime rates will apply is not acceptable.

This VISA contingency contract only applies to a VISA activation of Stage I, II or III. Within the VISA contract the following language at PG 50 1.2.4.

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

44 TRANSCOM has recognized the issues the Carriers raised during USC‐08 regarding Mandatory Bookings in a Contingency area and is drafting new language that would create a volunteer type phase with Carrier pricing options.

SF1449 Common Liner/Charter Terms & Conditions Section 1.4 Business Rules provide the procedures for Volunteer Stage requirements. The VISA contingency contract only requirements, rates, terms and conditions applies to a VISA activation of Stage I, II or III.

45 Common VISA Terms and Conditions ‐ Page 54 Fwd. Section 11 Invoicing and Payments USC‐07 and USC‐08 requirements have been inserted.

Section is consistent with all USTRANSCOM sealift contracts. Favorable revisions have been made for pay on lift as identified within Section 11.

Page 49 Commitment Levels – APL does not accept the language that the TRANSCOM Commander can unilaterally change the minimum and maximum levels for the each Stage of

VISA

This is a VISA program level authorization and a unilateral authority. The Commander is delegated authority in the VISA Agreement, Section III.B.

Responsibilities: The SecDef, through USTRANSCOM, shall: a. Define time‐phased requirements for Contingency sealift capacity and resources required in Stages I, II and III to augment DoD sealift resources. VISA also allows for annual changes to commitments.

VI.B.3.b.: Stages I and II: DoD will annually develop and publish minimum commitment requirements for Stages I and II. We revised the “will” to “may” since over time 15% and 40% has been determined reasonable without a need for annual updating.

Liner Terms and Conditions – Attachment 4 47 Page 5 Section 1.8 Port Storage Restrictive USC‐08 Language inserted. Carriers have to be allowed to bill on a pass through basis for the reimbursement of Port Storage charges incurred as a result of the actions of other parties and Governments. Language was revised to include other parties.

48 Page 10 Sections 6.3 and 6.4. Staging The language has to revised to include Contingency Areas

Contingency areas are covered in the Special Liner Terms & Conditions, Section 4 Equipment Contingency Clause

49 Carrier equipment cannot be purchased at depreciated values (non‐compensable), the government must provide full compensation.

Within Theatre Section 4 identifies how contractors will be re‐imbursed for containers and is unchanged from the last contract as agreed.

Depreciation is applied for transferred/lost/destroyed equipment as specified; mutually agreement methods are identified at 4.b.1.a.

50 Attachment 4 ‐ Page 33 of 60 – Please remove carrier liability for government equipment in an exigency area. In an active war zone, there is no way for carriers to document and defend themselves against a government charge or accusation of fault.

Remove “(b) If the unit is lost or destroyed in the Contingency Area while in the contractors custody due to contractor fault the contractor will reimburse the Government…”

Not removed ‐ liability is only assessed if the damage is due to contractor fault.

51 Attachment 4 ‐ Page 37 of 60 Please remove the whole section

6. LIQUIDATED DAMAGES. The number of EDI transactions has grown exponentially since this was envisioned and for a variety of reasons EDI transactions get rejected or do not post within the government system making it too labor intensive to validate who is at fault. Section 6, Liquidated Damages was removed as well as the clause IBR.