6.4.2024 VISA Renewal Q and A for Industry Day.pdf

Voluntary Intermodal Sealift Agreement (VISA) Comment/Question Matrix Item Document/Attachment Section/Para # Comments/Questions Government Response

1 2024.03.14 VISA Terms & Conditions Section 11 Pricing Methodology

1) Will the VISA be supplemented with an updated RBM (Revenue Based Methodology), and if so, when?

Our current instructions are from 2015.

2) I saw the “one pricing methodology” noted in your email and read section 11.1.2’s updated verbiage, but my team and I remain unaware of what the negotiated rates process looks like.

We will only be utilizing one rate methodology (negotiated rates) for the renewal of VISA.

1) The VISA participant will fill out Attachment 2 (Carrier Vessel Information Sheet) on page 2 which has blocks for the carrier’s proposed daily/per diem rates.

2) Upon receipt of the Attachment 2, USTRANSCOM Acquisition will determine if these prices are fair and reasonable or not utilizing techniques in FAR 15.404‐1(b)(2).

a. If these prices are determined fair and reasonable, the contracting officer will execute the participant’s VISA contract.

b. If these prices not determined fair and reasonable the contracting officer and offeror will enter into negotiations as outlined in FAR 15.405 prior to executing the VISA contract.

2 2024.03.14 VISA Terms & Conditions 1.2.1 COGSA Questions

1) The VISA Terms and Conditions are silent as to Owner’s liability. We assume that COGSA applies, but there is only one reference to COGSA and that is in Section 5.5. (Tugs and Barges), which states “COGSA shall apply to this Charter as specified in FAR 52.212‐4(j)(Risk of Loss).” However, the lead in language to that section states “Unless specifically incorporated into the Task Order, the paragraphs that follow do not apply” – which effectively means COGSA does not apply to Tugs and Barges unless specifically incorporated in the task order. Request clarity as to applicable liability for vessels including Ro/Ros.

2) The newly inserted 1.2.1 states “VISA liner services terms for space are incorporated into the Universal Service Contract (USC‐10 onward).” Does statutory COGSA apply to VISA or does USTRANSCOM intend that USC‐10 liability applies to VISA via this incorporation language?

COGSA does apply to VISA and will be included in clause 52.212‐4 in the Request for Proposal (RFP).

3 2024.03.14 VISA Terms & Conditions

1.2.2 Basic Services

Can you elaborate on how “Liner Service Terms” will be incorporated into the OTO process for USC‐10. It appears the comments cascades through the drafted document.

It appears that the result will be that all Stage I and II cargo will be moved under the USC‐10, with the VISA T&Cs primarily directed at Stage III, when DoD is chartering the entire vessel. Is this correct? And if so, how are intermodal and inland services provided during Stage III? Or are they? Here is the relevant statement from 1.2.1: “If pick‐up/drop‐off, intermodal equipment, and/or any inland transport is necessary under VISA, for contingency operations, these terms will be negotiated during activation, at the task order level and/or included as USC VISA OTO requirements, as needed.” What would this mean for Stage III?

Liner is being removed from the VISA contingency contracts since the Command never envisions an Activation of any Stage of VISA for liner space. When/if VISA is ever activated it will be for a charter for the whole vessel in Stage I, II and III. The language for the intermodal equipment, networks, etc. is intended in case services beyond normal chartering are needed and can be negotiated/added to the task order.

For any liner services needed during a VISA activation in the area of conflict, we have moved the scope to USC as an option to procure liner services during any Stage Activation of VISA. So, if by chance any liner services are needed during a VISA activation, they can be booked under the OTO process utilizing all the T&Cs of the exigency areas plus allowing real‐time pricing for the carrier at time of need. In addition, a VISA OTO will never be executed under USC for liner services unless VISA has been activated for Stage I, II, or III for vessel chartering utilizing the USTRANSCOM VISA Contingency Contracts. When the old VCC and DCC contracts were merged, USTRANSCOM was not tracking the administrative burdens for liner execution in an Activated state and as written it confused all the planners. The goal of the team for this VISA renewal was to remove all the intertwined liner terms from the last VISA contingency contracts; yet keep reference as the pointer to USC for any needed VISA liner requirements as the instrument of execution.

What USTRANSCOM tried to do is simplify VISA by sticking to the Commands planning for assured capacity (charters only); while still having a mechanism for liner requirements if ever needed during a VISA Activation for seamless execution.

4 2024.03.14 VISA Terms & Conditions 2.2.1.1 Capacity Commitment Should define the abbreviation "st" first time used

Per USTCI 4500.09, updated to:

14 MT Ammo/Sustainment 20 ft 19 MT Sustainment 40 ft At least 1,500 TEU militarily useful capacity

5 2024.03.14 VISA Terms & Conditions 2.2.1.2 Capacity Commitment Should define the abbreviation "PSF" first time used Added.

RFI Creation Date: 14 March 2024 RFI Responses Due Date: 12 April 2024

6 2024.03.14 VISA Terms & Conditions 2.2.1.3 Capacity Commitment Should define the abbreviation "MT" first time used as MT could be either measurement tons or metric tons.

Added.

7 2024.03.14 VISA Terms & Conditions 3.4.1 Conduct of Master, Officers, and Crew

1) Carrier crews all our vessels through several unions including AMO, MMP, MEBA, and SIU and are bound by the union contracts and MOU’s regarding the vessel crewing processes.

2) The language regarding legal costs and attorney’s fees is inappropriate. Those matters are highly fact‐ dependent and carriers will not hold harmless nor indemnify the government if its personnel or actions result in a wrongful termination.

3) The Vessel Owner is responsible for crewing the vessel and is bound by a Collective Bargaining Agreement (CBA) with each union. Terminations must be handled in accordance with requirements specified in each CBA. Vessel Owners cannot give Charterers authority on crewing matters since Charterers are not party to the CBA. Request the original language be reinstated or alternatively if proposed language is added need to clarify that all costs incurred to remove a crew member will be paid by Charterer if the removal is considered wrongful under the CBA.

This language has been updated to read as follows. This is standard/current language in MSC contracts and in order to transition from MSC contracts to VISA activation it will remain as follows:

3.4.1 Conduct of Master, Officers, and Crew. The Master, Officers, and crew shall be appointed or hired by the Owner and shall be deemed to be the servants and agents of the Owner at all times except as otherwise specified in this Charter. The Master of the Vessel shall be under the Charterer’s direction with regard to the employment of the Vessel, but shall not be under the Charterer's orders with regard to the navigation, care, and custody of the Vessel. If the Charterer shall have reason to be dissatisfied with the conduct of the Master, Officers, or crew, the Owner shall, upon receiving the particulars of the complaint, investigate the matter and resolve the issue to the satisfaction of the charterer. Any and all additional costs including but not limited to attorney’s fees incurred as a result of removal of such personnel shall be for the Owner’s account.

8 2024.03.14 VISA Terms & Conditions 3.4.2 Crew Qualifications The Master and Officers for US Flag vessels are required to be US citizens, but the vessel may carry up to two resident aliens as unlicensed crew members with proper qualifications.

3.4.2 states, "The Master, Officers, and crew shall be U.S. citizens to the extent required by U.S. law (if Vessel is U.S. flag), and shall be conversant with English, and in possession of valid and current certificates, licenses, and documents."

If it is within U.S. law and commercial practice to allow up to two resident aliens as unlicensed crew members, that is acceptable.

9 2024.03.14 VISA Terms & Conditions 3.6.1 Loading and Discharging General The vessel crew members are subject to USCG and legal work rest hour requirements unless suspended due to war conditions.

This is in reference to the sentence, "The Vessel shall work night and day, if required by the Charterer." Understood there are USCG and legal work rest hour requirements, VISA would only be activated in a contingency operation and therefore, these requirements may or may not be suspended at that time.

10 2024.03.14 VISA Terms & Conditions 4.7.2 War Additional Wage Costs Owners are subject to the existing contractual language and negotiations with their partner unions for these payments which may or may not exceed MSC Civil Service mariner payments.

7.7.2 Additional Wage Costs. Charterer shall reimburse Owner for provable additional costs (including taxes associated there¬with) incurred pursuant to this Charter Party as a consequence of the risks identified in 4.7.1 above for (i) wages of Master, Officers, or crew and

(ii) required payments or bonuses to Master, Officers, or crew.

However, any of said wages or payments shall not exceed in amount that which would be payable, under applicable laws and regulations, to U.S. Civil Service mariners in the employ of MSC in the same port, place, zone, or route.

If the carrier believes payments may exceed MSC Civil Service mariner payments, this risk should be built into the carrier's daily per diem rates.

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4.9.3 Delays/Excessive Fuel Consumption & 4.15.8.1

Moderate Weather: Service Speeds

This section does not address limitations on carbon emissions invoked by International Maritime Organization (IMO) Regulations to include installation of Shaft or Propulsion Limiting devices

The vessel owners are responsible for ensuring offered vessels are operated in a manner that satisfies IMO regulatory requirements language of the charter and meets the minimum charter requirements.

12 2024.03.14 VISA Terms & Conditions

4.10.1 Supercargo and Government DESIGNATED

Representatives ‐ Charterer's Option

Supercargo fees need to be updated to current rates.

Discussion Point at Industry Day:

Current/standard MSC contract language states the following, "The Charterer shall pay an amount of $30.00 per day, per person, covering all expenses including accommodations and victualling. The Owner shall victual U.S. Government designated representatives, pilots, and Customs Officers when authorized by the Charterer at $7.00 per meal."

USTRANSCOM is unaware of updated rates.

13 2024.03.14 VISA Terms & Conditions 4.30 In‐Transit Visibility Should add "or equivalent system" i.e. with an INMARSAT‐C Terminal or equivalent system with GPS input. Added.

14 2024.03.14 VISA Terms & Conditions 4.32.1.1 Immunizations (U.S. Flag Only)

The Owner will need to be provided appropriate advance notification of the additional immunizations required by COMSC and a supply and means of properly administering them to the crew are provided. The vessel may be unavailable until those crewmembers willing to be vaccinated are and replacement crew is identified and dispatched to replace the unwilling and or unvaccinated.

Noted. The Government will provide appropriate advance notification if there are additional immunizations required.

15 2024.03.14 VISA Terms & Conditions 5.1.1 Navigational Equipment Navigational Equipment (vii) weather facsimile requirement is outdated. We have removed these from our ships.

Discussion point at Industry Day:

Is this true for all carriers?

16 2024.03.14 VISA Terms & Conditions 5.3 Automated External Defibrillator (AED) Request change term "Vessel's Medical Department Representative" to "Vessel's Designated Medical Representative"

Changed.

17 2024.03.14 VISA Terms & Conditions

5.6.7 Contract Security (CS) paragraph (3)(b) ‐ fixed

numbering

Could you please clarify whether the statement implies that CS personnel are not permitted to use deadly force to protect themselves? The phrase "CS personnel may use deadly force for the defense of persons OTHER than themselves" raises questions about whether self‐defense is excluded from their authorization to use deadly force

This section has been replaced with current/standard MSC charter contract language "OTHER than themselves" has been removed.

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7.1.7 Diversion of Cargo

7.1.8 Notice of Diversion

7.1.9 Equitable Adjustment, Contractor Proposed Course of

Action

7.1.10 Mutual Agreement

7.1.11 Responsibility for the Cargo

7.1.12 Equitable Adjustment for U.S. Government Directed

Course of Action

Despite vessel being under control of the Government these provisions should be reinstated as they are still applicable.

7.1.7 & 7.1.8: Removing language because the Government will have control of vessel and direct where the diversion should go.

7.1.9 & 7.1.12: Equitable Adjustments are covered in 252.243‐7002 and 52.212‐4 of the RFP.

7.1.10 & 7.1.11: Removing language because the Government will have control of vessel and direct where the diversion should go.

19 2024.03.14 VISA Terms & Conditions 7.2.1.1 Hazardous Cargo

1) Only "either by land" should be deleted vice the entire section.

2) Prohibits the Contractor from refusing to transport hazardous cargo not in compliance with laws & regs.

This language should be restored.

Reinstated paragraph and removed "either by land or".

20 2024.03.14 VISA Terms & Conditions 7.2.1.3 Amended Jason Clause

1) Request restoration of Amended Jason clause irrespective of not a liner service.

2) The inclusion of this clause is customary and industry standard in vessel charters. The fact that liner terms are removed should not require deletion of this clause. To the contrary, the contract covers ocean carriage and the Amended Jason Clause is relevant for ocean carriage. The Amended Jason Clause should not be removed as its removal will adversely impact the carrier's marine insurance coverage (i.e., will require additional insurance, if even available in the market).

3) The deleted clause is required for performance, please retain original Amended Jason Clause language.

Reinstated.

21 2024.03.14 VISA Terms & Conditions 7.2.1.7 Liberty to Deviate

1) Clause 7.2.1.7 (deviations) should remain in the contract as written. Deviation to save life and property is required by the Safety of Life at Sea Convention and is a fundamental obligation of all mariners as a matter of customary and codified international law. Unless the government desires to add language such as:

“unless mission execution or combat operations dictate otherwise” [that’s old WW2 convoy language] then it should remain as written.

2) Request restoration (at least for saving lives) irrespective of not a liner service.

Reinstated.

22 2024.03.14 VISA Terms & Conditions

7.2.1.4 though 7.2.1.40

Topics General Liberties Strikes Loading Port Discharge Port Liens Seizure of Cargo Freight Force Majeure Compensable Delays Situations where the U.S. Government Causes Delay Situations where neither the Contractor nor the U.S.

Government Causes Delay Exigency Areas Equitable Adjustments

The fact that liner terms are removed does not impact these provisions and they should be reinstated.

General Liberties ‐ N/A as this only applies to Liner Service, the Government will have control of the vessel.

Strikes ‐ covered in 52.212‐4 under Excusable Delays.

Loading Port ‐ Determined by the Government under a charter.

Discharge Port ‐ Determined by the Government under a charter.

Liens ‐ N/A as this only applies to Liner Service, the Government will have control of the vessel.

Seizure of Cargo ‐ N/A as this only applies to Liner Service, the Government will have control of the vessel.

Freight ‐ N/A as this only applies to Liner Service, the Government will have control of the vessel.

Force Majeure ‐ Acts of God or the public enemy to include fires, floods, epidemics, quarantine restricts, unusually severe weather, etc. are covered in 52.212‐4 under Excusable Delays.

Compensable Delays ‐ Excusable Delays are covered in 52.212‐4 of the

RFP.

U.S. Government Caused Delay ‐ N/A as the Government will still pay the daily per diem rate.

Neither Contractor or U.S. Government Caused Delay ‐ N/A as the Government will still pay the per diem rate.

Exigency Area ‐ does not apply under VISA charters.

Equitable Adjustment ‐ Covered in 252.243‐7002 and 52.212‐4 of the

RFP.

23 2024.03.14 VISA Terms & Conditions 7.3 General Average

1) The distribution of claims under General Average is a well‐settled function of international law that has existed since the Rhodes Maritime Code of 800BC. It is a core tenant of maritime law. The government cannot meaningfully limit its portion of liability to 3 times that of an owner without fundamentally altering the concept of General Average, particularly when the value of any government/military shipment would likely be more than 1000 times the value of the ship. As few as three pieces of DOD cargo (i.e., Main Battle Tanks) can exceed the value of a modern commercial vessel. Thus, the government’s construct would create uncertainty that would drive up costs for the carrier and charterer, and likely render the insurance market unattainable. The entire last sentence should be stricken.

2) Do not agree with a contribution cap for General Average. A cap is not industry standard or commercial.

The inclusion of a cap will also impact the carrier's marine insurance coverage (i.e., will require additional insurance, if even available in the market). This language should be removed.

3) Delete inserted text limiting Charterer's contributions.

This is standard/current MSC contract language and in order to transition from MSC to VISA activation it is necessary and will not be removed.

24 2024.03.14 VISA Terms & Conditions 11.1.2 Pricing Methodology It is inherently unreasonable to compare wartime/VISA rates and standard commercial pricing. Any comparison to like‐commercial market pricing should be taken out of this section. There is no commercial‐ like market in a war time situation.

The only "commercial market" reference is that compensation shall not be LESS than the contractor's commercial market charges. This does not state compensation can't be more than commercial market charges and USTRANSCOM will use standard negotiation procedures as outlined in FAR 15.404‐1(b)(2) to determine prices fair and reasonable to include, but not limited to, competition and historical pricing.

25 2024.03.14 VISA Terms & Conditions Section 10 Quality, Control, Reporting and Records Should use of Contractor Performance Assessment Reporting System (CPARS) be added to his contract? No. USTRANSCOM will not be utilizing CPARS to measure performance.

26 2024.03.14 VISA Terms & Conditions Section 12 Invoicing and Payments, Former 13.1.3 Only "Linehaul to POE" should be deleted vice the entire section.

All billable items (ocean transport, liner in/liner out, BAF, etc.) listed in the previous VISA terms and conditions should be built into the carrier's per diem daily rate.

27 2024.03.14 VISA Terms & Conditions Section 12 Invoicing and Payments, Former 13.1.7 Should not be deleted.

Standard Invoicing information and Equitable Adjustment language is covered in 252.243‐7002 and 52.212‐4 of the RFP. If special invoicing instructions are needed at the time of activation, instructions will be added at the task order level.

28 2024.03.14 VISA Terms & Conditions 13.2.1 Security

“The contractor’s, subcontractor’s, and/or partner’s personnel performing services under this contract, shall be citizens of the United States of America” Previous wars and exercises have demonstrated that the performance of services by foreign nationals and dual citizens is essential to contract performance. No Carrier could have done any business into Afghanistan through Pakistan, Georgia, Turkey, Azerbaijan, Estonia, etc. without foreign citizen subcontractors, employees and partners. It is impossible to perform in Japan and Korea without the support of Japanese and Korean citizens. A ship cannot dock at any foreign port or clear customs overseas without relying on foreign citizen partners and employees. The proposed language should revert back to the previous language to ensure that cleared US Citizens are in the proper positions in relation to the security clearance and access to classified information.

Paragraph 13.2.1 states, "The contractor’s, subcontractor’s, and/or partner’s personnel performing classified services under this contract for national security determinations (security clearances), shall be citizens of the United States of America as a clearance requirement.

Overall, all contractor personnel shall possess the appropriate personnel security investigation for the position(s) occupied.

Contractor personnel shall be required to have a background investigation that corresponds with the sensitivity level of the tasks to be performed. Neither dual citizens nor non‐U.S. citizens are eligible for Common Access Cards (CACs) unless they meet the parameters stated in DoDM 1000.13, volume 1." This language does not prohibit the use of foreign nationals or dual citizens, just restricts these personnel from accessing classified information or obtaining CAC cards.

29 2024.03.14 VISA Terms & Conditions 13.5.1 Facilities Clearance Level (FCL) Is the following insertion accurate? "Facility Clearances are not mandatory for VISA participation." Is there a regulatory citation?

This language is accurate and there is not a regulatory citation that makes Facility Clearances mandatory or not mandatory. For the VISA renewal, Facility Clearances are only mandatory to participate in JPAGs, classified meetings, classified exercises, etc.

30 2024.03.14 VISA Terms & Conditions Section 15 Cyber Security, Table 1 Although modified requirements stated, controlled unclassified Information (CUI) still requires clarification for Carriers to ensure compliance with specified NIST SP 800‐171 requirements to support implementation of the Cybersecurity Maturity Model Certification (CMMC) by 2025.

The contracting community is still awaiting DFARS implementation guidance which will be released via a separate Proposed Rule and published to the Federal Register for formal public comment. Please monitor the Federal Register for updates. Attached to corresponding email is information previously provided to USC‐9 carriers regarding

CMMC.