HTC71123RW003_RFP Amendment 1.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 reason for this amendment is to update the follow ing items w ithin the solicitation: (1) Additional Terms and Conditions; (2) Attachment 1, PWS; (3) Attachment 2, Appendixes; (4) SF 1449 Block 8 and Provision 52.212-1 to reflect 11 December 2023 at 4:00PM CT as the offer due date; and (5) correct the appendix numbering w ithin the headers of the Attachment 2. All updates are highlighted in red font.

1. CONTRACT ID CODE PAGE OF PAGES

K 1 10

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

16C. DATE SIGNED

BY 22-Nov-2023

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 HTC71123RW003

X 9B. DATED (SEE ITEM 11)

03-Nov-2023

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 X 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 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

22-Nov-2023

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:

HTC71123RW003

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

SOLICITATION/CONTRACT FORM

The required response date/time has changed from 04-Dec-2023 04:00 PM to 11-Dec-2023 04:00 PM.

The following have been modified:

ADDENDUM TO FAR 52.212-1

ADDENDUM TO FAR 52.212-1, Instructions to Offerors – Commercial Products and Commercial Services (Mar 2023)

Paragraph (a) is tailored to read: North American Industry Classification System (NAICS) code and small business size standard. The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449).

Paragraph (b) “Submission of offers” is deleted in its entirety and replaced with the “Proposal Preparation Instructions” below.

Paragraph (c) “Period for acceptance of offers” is tailored to read: The Offeror agrees to hold the prices in its offer firm for 240 calendar days from the date specified for receipt of offers.

Paragraph (e) “Multiple offers” is tailored to read: Offerors shall not submit multiple offers presenting alternative terms and conditions or alternative commercial products or commercial services for satisfying the requirements of this solicitation.

Paragraph (g) “Contract award (not applicable to Invitation for Bids)” is tailored to read: The Government intends to evaluate offers and award a contract without discussions with Offerors. Therefore, the Offeror’s initial offer should contain the Offeror’s best terms from a price and technical standpoint. However, the Government reserves the right to conduct discussions if later determined by the Contracting Officer to be necessary. If the Contracting Officer determines the number of proposals that would otherwise be in the competitive range exceeds the number at which an efficient competition can be conducted, the Contracting Officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals. The Government may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and may waive informalities and minor irregularities in offers received.

Paragraph (h) “Multiple awards” is not applicable to this solicitation. The Government intends to award one contract as a result of this solicitation.

I. Formal Communications

Formal communications and requests for clarification and/or information concerning this solicitation shall be made in writing and submitted via email as identified below.

Subject: Solicitation HTC71123RW003 Recipients: Ms. Sarah Albers, Contracting Officer, sarah.l.albers2.civ@mail.mil Ms. Shanda Lyman, Procurement Contracting Officer, shanda.l.lyman.civ@mail.mil

Requests for clarification and/or information concerning the solicitation should be submitted in the following format:

Reference: Section (1449 or Attachment #), Page # and Paragraph

Question:__________________________________

All requests must be made in writing via email to the above addresses. No requests for clarification and/or information will be provided in response to Offeror-initiated telephone calls. Written inquiries will be answered in writing and posted to SAM.gov. However, time may not allow for requests to be answered if not received by the above addresses within 10 calendar days of the due date for offers as specified in this solicitation.

There will be no communications with Offerors after the date and time specified in the Contracting Officer's request for final proposal revisions.

II. Proposal Preparation Instructions

A. GENERAL INSTRUCTIONS

Offerors are required to meet all solicitation requirements, including terms and conditions, representations and certifications, and technical requirements in the Performance Work Statement (PWS). Failure to meet a requirement may result in an offer being ineligible for award. The proposal shall be clear, concise, and shall include sufficient detail for effective evaluation and substantiating the validity of stated claims. The proposal should not simply rephrase or restate the Government's requirements but rather shall provide convincing rationale to address how the Offeror intends to meet these requirements. Offerors shall assume the Government has no prior knowledge of their equipment, facilities and experience, and will base its evaluation on the information presented in the Offeror’s proposal. The Government reserves the right to reject any or all offers in whole or in part and to incorporate all, part or none of the Offeror’s written proposal into the resultant contract. In addition, there is no obligation on the part of the Government to make an award to any Offeror in response to this Request for Proposal (RFP).

B. ORGANIZATION

Proposals shall consist of four (4) separate volumes.

1. Volume I – Business Proposal (Attachment 5)

2. Volume II – Technical Proposal (Attachment 6)

3. Volume III – Past/Present Performance Proposal (Attachment 8)

4. Volume IV – Price Proposal (Attachment 10)

C. DISTRIBUTION

Electronic Proposals: Offerors shall submit signed and dated proposals on or before 4:00PM Central Time, 11 December 2023. The proposal shall be submitted in four electronic documents, titled by volume, in a single email with the subject, “RFP HTC71123RW003” to those identified in Section I. If the email exceeds 10MB, the volumes may be sent in separate emails, that clearly indicate how many emails the Government can expect to receive so that all volumes are complete. The Government will provide an email confirmation outlining the number of emails and documents received. Offerors that do not receive an email confirmation shall contact Ms. Shanda Lyman via telephone at 618-817-9484 or Ms. Sarah Albers at 618-817-9481. Hard copy proposals will not be accepted.

Offerors must also electronically submit proposed rates using the Carrier Analysis Rate Evaluation Service Application (CARE SA). The CARE SA is accessible via https://eta-teams.transport.mil/teams/login. CARE SA instructions are provided in Attachment 11.

D. PROPOSAL PREPARATION COSTS

This solicitation does not commit the Government to pay any costs incurred in the preparation and submission of the Offeror’s proposal or in making any necessary studies for the preparation thereof, or for any visit the Contracting Officer may request for the purpose of clarification of the proposal or for preparation of negotiations. By the submission of its offer, the Offeror assumes all associated costs.

E. FINAL PROPOSAL REVISIONS

Proposals submitted by Offerors will not obligate the Government to determine a competitive range, conduct discussions, or solicit or entertain revised Final Proposal Revisions (FPRs). However, if discussions are conducted and FPRs are requested, each Offeror within the competitive range will be notified via email of the date and time for response. Each Offeror must submit FPRs via email to sarah.l.albers2.civ@mail.mil and shanda.l.lyman.civ@mail.mil and rate revisions (if applicable) electronically via CARE SA. There will be no communications with Offerors after the date and/or time specified in the Contracting Officer's request for FPRs.

III. VOLUMES I - IV

Offerors shall submit all documents requiring signature or completion by the Offeror. Each Offeror shall provide the following information and complete the applicable fill-ins and signature fields.

Restriction on disclosure and use of data for Volumes I and II.

Offerors, that include in their proposals, data they do not want disclosed outside the Government or duplicated, used, or disclosed – in whole or in part – for any purpose other than proposal evaluation must annotate this restriction by selecting within each worksheet, in the drop-down blocks provided, whether a restriction does or does not apply.

** This restriction does not limit the Government’s right to use information contained in this data if it is obtained from another source without restriction.

If a contract is awarded to an Offeror as a result of -- or in connection with -- the submission of this data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract.

A. VOLUME I – BUSINESS PROPOSAL

Offerors are required to complete and submit Attachment 5, Business Proposal Worksheet. Offerors shall select the appropriate response in each drop down and provide written responses in the blocks provided, supporting attachments/documentation, and applicable provision fill-ins/certifications as required for evaluation of the Offeror’s Business Proposal. Narrative responses are limited to the text fields provided. The text fields may not be altered and no additional page submissions will be accepted. This includes all documents requiring signature or completion by the Offeror, such as the Standard Form (SF) 1449 and any solicitation amendments. An authorized official shall complete and sign the SF 1449, solicitation amendments (if applicable), and all certifications and representations requiring original signature. By submitting a Business Proposal, the Offeror accedes to the contract terms and conditions as written in the RFP, with attachments.

B. VOLUME II – TECHNICAL PROPOSAL

Offerors are required to complete and submit Attachment 6, Technical Capability Worksheet. Offerors shall provide written narrative responses in the blocks provided explaining how the Offeror will meet each requirement, supporting documentation as required, and also complete the Contractor Confirmation Checklist for evaluation of technical capability. Narrative responses are limited to the text fields provided. The text fields may not be altered and no additional page submissions will be accepted.

C. VOLUME III – PAST/PRESENT PERFORMANCE PROPOSAL

Offerors are required to complete and submit Attachment 8, Past/Present Performance Worksheet. Using the text fields provided within the worksheet, the Offeror shall complete the requested information on each past/present performance reference, similar in scope, size, and complexity, currently on-going or completed within the last three

(3) years from the date of solicitation issuance. The references shall be limited to at least two (2) but no more than four (4) contracts. Narrative responses are limited to the text fields provided. The text fields may not be altered and no additional page submissions will be accepted.

The Past/Present Performance Questionnaire, Attachment 9, shall be completed in parts by both the Offeror and Past/Present Performance Reference POCs listed in the Attachment 8. Section 1 must be completed by the Offeror and once completed, the Offeror shall send it to each Past/Present Performance Reference requesting completion of sections 2 through 4. References shall submit completed questionnaires via email to Sarah Albers at sarah.l.albers2.civ@mail.mil and Shanda Lyman at shanda.l.lyman.civ@mail.mil no later than the solicitation due date/time. The Government will not accept questionnaires submitted by Offerors. Offerors should use diligence to follow-up with each Reference POC to ensure submittal by the due date.

**No more than four (4) references/questionnaires shall be provided/received. The references listed on the Attachment 8 shall be the references that receive the Attachment 9 for completion.

The Government reserves the right to obtain information relative to present and past performance on its own. If you are aware one or more of your contracts is in the Contractor Performance Assessment Reporting System (CPARS) and specifically relates to the requirements in this acquisition, please provide this information via email to Sarah Albers at sarah.l.albers2.civ@mail.mil and Shanda Lyman at shanda.l.lyman.civ@mail.mil no later than the solicitation due date/time. Past/present performance information may also be obtained by the Government through the Electronic Subcontract Reporting System (eSRS), interviews with Program Managers, Contracting Officers, Fee Determining Officials, or any other source available to the Government.

D. VOLUME IV – PRICE PROPOSAL

The price proposal shall contain a completed copy of Attachment 10, NSGB Rate and Pricing Schedule. Offeror shall complete the Rate and Pricing Schedule by only entering proposed rates in the green highlighted cells for each transportation service line item to include the base year and each option year on Tabs B, C, D, E, and F. Estimated annual volumes are provided for accessorials, ocean breakbulk, ocean container, single factor line items, mileage, and drayage. No additional page submissions will be accepted.

The Rate and Pricing Schedule will calculate the extended price of each line item (proposed rate * estimated volume), the proposed price for each period of performance (total of extended line-item prices), and the total proposed price (base year proposed price plus option year proposed prices and six-month optional extension of services). Pricing for the six-month extension of services period will be based on half of the proposed price of the final option period. Offerors shall not submit a price for the optional six-month extension of services since the Rate and Pricing Schedule spreadsheet will automatically populate the total. Offeror shall verify the accuracy of the extended price of each line item, for each proposed price (base plus options), and for total proposed price. Rates must also be entered into CARE SA (see 52.212-1 II C).

Offeror is responsible for ensuring the rates provided via email (NSGB Rate and Pricing Schedule Excel file) and CARE SA are identical. If there are any discrepancies between the rates submitted via email and CARE SA, the emailed Rate and Pricing Schedule Excel file rates will take precedence.

IV. Additional Information

Not required as part of proposal submission but please note the awardee will be required to submit the Attachment 3 per PWS Paragraph 3.K.2.1. The Contractor shall provide a Self-Assessment of its compliance with NIST SP 800- 171 and present a Plan of Action that identifies any deviations, non-compliance, or proposed alternative means of compliance as well as plans for correcting non-compliant requirements to the CO within 60 days of contract award and then annually thereafter on 1 September each year. The Self-Assessment and Plan of Action shall address all of the requirements in NIST SP 800-171.

ADDITIONAL TERMS & CONDITIONS

ADDITIONAL TERMS & CONDITIONS

TABLE OF CONTENTS

1. US Military CARGO PREFERENCE ACT

2. MARITIME CLAUSES

2.1 REGULATORY COMPLIANCE/APPLICABLE DOCUMENTS

2.2 LIABILITY FOR LOST OR DAMAGED CARGO

2.3. SCOPE OF VOYAGES (LIBERTIES)

2.4. STRIKES

2.5. LIENS

2.6. FORCE MAJEURE

3. EXCEPTED CATEGORY CARGO

4. GENERAL AVERAGE

1. US CARGO PREFERENCE ACT

In compliance with the US Military Cargo Preference Act of 1904 (10 U.S.C. § 2631, as amended), US flag sea carriers have been given preference for award of this contract. Carriers will not employ other than US flag vessels for service under this contract unless a waiver has been granted by the relevant delegate from the Secretary of Defense. The following language modifies DFARS 252.247-7023(c) to comply with recent statutory changes and Secretary of Defense delegations. The Contractor may request via the Contracting Officer, a waiver of the requirement to use a US flag vessel, if the Contractor sufficiently explains that—

(1) US flag vessels are not available at a fair and reasonable rate for commercial vessels of the United States; or

(2) US flag vessels are otherwise not available.

While Contractor shall make such a request via the Contracting Officer, the Contracting officer is not authorized to grant such a waiver. The Contractor must submit any request for use of foreign-flag vessels in writing to the Contracting Officer at least 45 days prior to the sailing date necessary to meet its delivery schedules. The Contracting Officer will process requests submitted after such date(s) as expeditiously as possible, but the DoD determination not to approve a waiver to meet the shipper's sailing date will not of itself constitute a compensable delay under this or any other clause of this contract.

2. MARITIME CLAUSES

2.1 REGULATORY COMPLIANCE/APPLICABLE DOCUMENTS

The Contractor 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 Contractor 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.

2.2 LIABILITY FOR LOST OR DAMAGED CARGO

2.2.1. Lost or Damaged Cargo. The contractor is required to deliver cargo to its final destination in the same condition it was tendered by the shipper. The contractor is liable for cargo that is lost, damaged, or in any way altered from the tendered condition. Liability is governed by the applicable statute or multilateral international agreement based on the mode of cargo transportation (i.e., sea or land) at the location where the loss or damage occurred. The United States Carriage of Goods by Sea Act, 46 U.S.C. § 30701 note (hereinafter “COGSA “or “the Act)” applies to all ocean transportation of cargo. 49 U.S.C. § 14706 (hereinafter "Carmack Amendment") applies to all land transportation of cargo. Contractor claims and requests for equitable adjustments shall be submitted to the Contracting Officer for a decision within two years of the accrual of a claim or request for equitable adjustment.

Government claims shall also be submitted to the Contractor within two years of the accrual of a claim. The Government will take all reasonable steps to provide notice of loss as soon as it is discovered.

2.2.2. Application of COGSA for Government Owned & Non-Government Owned Cargo. For containers, the COGSA is incorporated and shall apply to the ocean transportation by the Contractor of all goods, including goods in containers stowed on deck or owned by a non-government cargo owner under any Shipping Order with the same force and effect as if the Act applied to such carriage by express provision therein. 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). For example, the act of loading multiple boxes, bundles, or pieces of cargo into a container does not convert all boxes, bundles, or pieces of cargo into a single COGSA “package”. The limitation of liability set out in Section 4 of the Act shall apply to each package in a container and the shipper or government packing list itemizing the cargo in the container is prima facie the controlling document for determining how many "packages" are in a container. The Government and shipper packing list is the document completed by the origin shipper listing the items in a container. For breakbulk, COGSA is incorporated and shall apply to the ocean transportation of all goods, under any Shipping Order with the same force and effect as if the Act applied to such carriage by express provision therein. The COGSA limitation of liability for cargo not in packages is to each measurement ton of cargo. If the Government through its booking system (currently IBS) or shipper through its booking system indicates an order is being shipped "breakbulk," the COGSA limitation of liability will be valued by the measurement ton of breakbulk cargo regardless of whether other shipping documents (i.e., shipping manifest, etc.) refer to the breakbulk cargo as a single” piece”, “unit”, or other “single” item. The IBS booking document or shipper booking document indicating “breakbulk” is the controlling document between the parties and will determine whether cargo is valued as a “package” or by the measurement ton.

For all cargo, container and breakbulk, the carriage of cargo under any Shipping Order issued pursuant to this contract shall not be deemed or construed to be the carriage of cargo pursuant to special terms and conditions as provided for in Section 6 of the Act; and nothing in this solicitation is intended to relieve the contractor or the vessel from liability to the government or the non-government cargo owner for loss or damage to or in connection with the goods arising from negligence, fault or failure in the duties and obligations provided by the Act or to lessen such liability otherwise than as provided therein.

When COGSA would otherwise apply based upon the mode of cargo transportation at the location where the loss or damage occurred and the application of COGSA would not result in a limitation on liability, this contract also excludes any limitation on liability.

2.2.3. Application of COGSA for Barge Service. If the Contractor provides service via a barge system, the following additional provisions apply. The Contractor will be liable for cargo claims in accordance with the COGSA from the time the cargo is loaded on a barge to the time the cargo is discharged from the barge. On any voyage, the Contractor will not invoke limitation of shipowner's liability under 46 U.S.C. § 30523 for aggregate losses or damages to cargo in barges to a value less than the limitation value of the tug(s) and barges at time of completion of the voyage. A barge will not be deemed to be a package within the meaning of the five hundred ($500) dollar package limitation in COGSA section 4(5). All containerized cargo in or on barges will be considered to be stowed underdeck.

The Government will not be liable for any damage sustained by a barge or tug while alongside a loading or discharging facility, except to the extent that it would be liable for such damage to an oceangoing vessel alongside such facility under the law and other terms of this contract. All barges will be equipped with sufficient battery-operated mooring lights, when required.

2.2.4. Liability for cargo while in custody of Motor Carriers and Freight Forwarders for Overland Transportation. If overland cargo transport is undertaken incidental to, or in lieu of, ocean shipments ordered under this contract, 49 U.S.C. § 14706 will apply to any loss or damage that occurs while cargo is in the custody of a motor carrier or applicable freight forwarder. For all overland cargo transportation, including overland cargo transportation provided by initial or delivering carrier(s) as contemplated in 49 U.S.C. § 14706(c)(2), liability for any loss or damage that occurs while cargo is in the custody of a motor carrier or applicable freight forwarder shall be as stated in 49 U.S.C.

§ 14706(a) notwithstanding 49 U.S.C. § 14706(c)(2). When the Carmack Amendment would otherwise apply based upon the mode of cargo transportation at the location where the loss or damage occurred and the application of the Carmack Amendment would not result in a limitation on liability, this contract also excludes any limitation on liability.

2.2.5. Liability for Household Goods. Despite any liability limits built into COGSA, in accordance with 10 U.S.C.

§2636a, the DoD is required to include in any contract for transportation at Government expense of baggage and household effects for members of the armed forces or civilian employees of the DoD (or both) a clause that requires the carrier under the contract to pay the full replacement value for loss or damage to the baggage or household effects transported under the contract. Therefore, all baggage and household effects the nature and value of the goods are considered declared under this contract. Additionally, if the carrier fails to settle the loss or damage with the member of the armed forces or civilian employee within a reasonable time, for loss or damage of baggage or household effects transported under this contract, the amount equal to the full replacement value for the baggage or household effects shall be deducted from the amount owed by the United States to the carrier under the contract.

The amount so deducted shall be remitted to the claimant (i.e., Servicemember/civilian employee), notwithstanding 10 U.S.C. § 2636.

2.3. SCOPE OF VOYAGES (LIBERTIES)

US 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 US Government cargo at sea requires the unique conditions set forth below.

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

2.3.1.1. Notice of Diversion. The Notice described at Section 2.3.1 above shall include, at a minimum, a description of the cargo to be diverted (container number, Transportation Control Number, etc.), the conditions giving rise to the Contractor’s planned diversion of the Cargo, the diversion planned, and any other measures deemed necessary by the Contractor to protect the Cargo. The Contractor or his designated representative shall provide such Notice in a manner and place consistent with the provisions of this agreement (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.

2.3.1.2. Equitable Adjustment, Contractor Proposed Course 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.

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

2.3.1.4. Responsibility for the Cargo. Where the Contracting Officer determines that the Contractor’s planned diversion of the Cargo is not in the best interest of the US Government and the CO 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 divert the cargo to a port of the US Government's choice and to make any other arrangements for the cargo the CO deems necessary to protect the Government's interest.

2.3.1.5. Equitable Adjustment for US Government Directed Course of Action. The contractor may submit a request for an equitable adjustment to the contract for reasonable, allocable costs incurred to carry out the CO’s direction if such costs are caused by the need to respond to the special situation and would not have been incurred in performing the contract of carriage except for the special situation. This equitable adjustment includes costs associated with cargo on the vessel that is not transported under this contract to the extent these costs exceed costs allocable to any non-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 CO will consider this fact in evaluating any request for an equitable adjustment or any government claim for a windfall to the contractor.

2.3.1.6. Security and protection of cargo. In any event, the contractor shall at all times secure and protect the cargo until relieved of such responsibility by the US Government or its designated agent.

2.3.2. Liberties.

2.3.2.1. 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.

2.3.2.2. 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.

2.4. STRIKES

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

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

2.5. LIENS

2.5.1. 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 US 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 US 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.

2.5.2. Freight. There shall be no liens, including maritime liens, asserted on any freights payable by the US 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.

2.6. FORCE MAJEURE

Force majeure is applied in accordance with 52.212-4(f) Excusable delays. This clause does not address liability for loss/damage to cargo, liability for costs/damages resulting from delay in performance, or matters other than excusable delay (see Section 2.2). Consistent with the FAR 52.212-4(f) requirement that excusable delay is only available when nonperformance is caused by an occurrence beyond the reasonable control of the contractor (including subcontractors) and without its fault or negligence (including subcontractors), excusable delays based upon common carriers is only available if the contractor can demonstrate that delay was beyond the reasonable control of the common carrier and without fault or negligence of the common carriers, who are presumed to be subcontractors of the contractor regardless of subcontract tier.

3. EXCEPTED CATEGORY CARGO

Excepted category cargoes are listed below. Pursuant to FAR 52.212.4 rates for the carriage of excepted category cargo may be negotiated by the CO 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 CO or the CO has issued an unpriced change order pursuant FAR 52.212.4(c). Cargo categories not excepted below and for which specific rates do not appear herein shall be carried at the applicable General Cargo rate.

-Bulk Cargo (not containerized in tank cars, vehicles, or containers) -Boats over 40 feet in length -Oversized Cargo (Cargo that has any one dimension over 50 feet long, more than eleven (11) feet wide or over eleven (11) feet in height, or as determined by the Ordering Officer, requires special handling equipment for loading aboard or discharging from a vessel because of that cargo’s atypical size. All wheeled or tracked vehicles regardless of size are excluded from this definition.)

-Explosives (Other than IMO Class 1.4)

4. GENERAL AVERAGE

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

(End of Summary of Changes)