LBNF-BC-350919-BWQ Addendum 21.pdf

ADDENDUM TO SOLICITATION

ADDENDUM NO.

DATE OF ADDENDUM:

1/24/2024

SOLICITATION NO.

LBNF-BC-350919-BWQ

DATE ISSUED:

6/05/2024

PROJECT NO.

N/A

OPENING DATE:

2/12/2024

TITLE OF PROJECT:

LONG BASELINE NEUTRINO FACILITY (LBNF) NEAR SITE CONVENTIONAL FACILITIES (NSCF)

BEAMLINE COMPLEX RFP

Bidders must acknowledge this Addendum prior to the hour and date set forth in the solicitation by one of the following methods:

1. By completing the Representations, Certifications and Acknowledgments (PUR-466), or

2. By separate email.

If by virtue of this Addendum you desire to change a bid already submitted, such change may be made by email, provided such email makes reference to the Solicitation and this Addendum and is received prior to the time set for opening.

This Addendum is providing additional information on the items below:

Offerors are advised that where any response of FFDG modifies or qualifies a prior response given to any RFI, the later response shall be given priority over the earlier response to the extent of any inconsistency.

I. QUESTIONS AND RESPONSES:

(Numbering continues from Questions and Responses addressed in Addendum 20)

947. Bid Bond Form (FL-41), Sample Performance (FL-40), and Payment (FL-42) Bond require the United States of America to be an obligee. We understand the need for the government to be an obligee under the bonds, but as they are not a direct entity under the contract, the appropriate method to add them to the bonds would be to add them as a dual obligee. Our surety requests the following edit be made to the bond forms and the attached dual obligee rider be permitted to add the US Government to the bonds.

We, the Principal and Surety(ies), are firmly bound to the United States of America (hereinafter referred to as “Government”) pursuant to the Dual Obligee Rider and Fermi Research Alliance, LLC in the above penal sum. For payment of the penal sum, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally. However, where the Sureties are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" as well as "severally" only for the purpose of allowing a joint action or actions against any or all of us. For all other purposes, each Surety binds itself, jointly and severally with the Principal, for the payment of the sum shown opposite the name of the Surety. If no limit of liability is indicated, the limit of liability is the full amount of the penal sum.

Response: Provided that Fermi Forward Discovery Group, LLC is properly identified as the primary obligee under the required bonds, we will consider for acceptance a proposed form of dual obligee rider in favor of the United States Government, in customary and reasonable commercial form.

948. For recoverable costs due to a Compensable Delay, please confirm that all costs as permitted under Part 31 of the FAR are recoverable by Subcontractor for Compensable Delays.

Response: In accordance with the plain language of the subcontract, Contractor shall not be entitled to recover listed indirect costs, regardless of whether such costs are permitted under FAR Part 31.

949. Please clarify that the acts or omissions of the designer qualify as a Compensable Delay.

Response: Acts or omissions of designers otherwise engaged by FFDG may result in a Compensable Delay where otherwise consistent with, and except as otherwise provided in the Subcontract (for instance, where resulting from the default or misconduct of Subcontractor).

950. Please modify five (5) calendar days to seven (7) calendar days from when Subcontractor knew of a delay. Please delete “should have known” from Subcontractor’s notice requirements. Proposer requests that the requirement to provide a price proposal is only necessary for Compensable Delays.

Response: In Article 2, Paragraph B, Item 4, FFDG will agree to change "five (5) calendar days" to "seven (7) calendar days". However, FFDG will not delete "of should have known" as delays should be within the Offeror's knowledge. Please note that similar language in FAR 52.249-10 omits any knowledge qualifier entirely.

951. Please remove “Subcontractor is not responsible for a concurrent delay” to prevent the Subcontractor from seeking additional time in the event of an unforeseen delay or qualify this provision to allow the Subcontractor to seek a time extension to the extent an excusable delay exceeds a concurrent delay.

Response: This clause simply provides that the Subcontractor's rights to an extension of contract time are limited where the Subcontractor is responsible for a concurrent delay. In the absence of concurrent delay, and assuming the other conditions in this provision are satisfied, the Subcontractor retains the right to seek a time adjustment.

952. Preclusion of Subcontractor’s entitlement to compensation or additional time for work performed that was not authorized in a change order or written directive fails to contemplate disputed work performed by Subcontractor.

Subcontractor should not perform work at risk if FRA refuses to issue a written order to perform disputed work.

Please modify to the following: Subcontractor shall not receive any additional compensation or any adjustment in the Subcontract price or time of performance in connection with any work, services or other activities of the Subcontractor pertaining to the work unless such work, services or other activities is authorized in a change order or a written directive, as more specifically described in this section; however, this shall not apply if Subcontractor has submitted a change order request, the work is the subject of a pending dispute or Subcontractor has otherwise provided notice of a dispute.

Response: Any work carried out by or under Subcontractor shall be with FFDG's direction or authorization. In the event that such work is carried out pending final agreement between the parties on compensation, such compensation shall be determined in accordance with, and subject to the limitations set forth in, the Subcontract, including Article 8 of the Subcontract and Clause 5 of the General Terms and Conditions.

953. Differing Site Conditions (Question No. 393): The aforementioned concerns regarding FRA's express reservation of its right to declare bids non-responsive, paired with the unacceptable language in the bid bond form, fail to alleviate our larger concerns regarding the risk inherent in continuing to pursue these Projects.

Response: FFDG reserves the right in all instances to determine that a proposal is non-responsive and to reject the proposal on that basis. However, in no event will FFDG seek to make any claim on Offeror's bid security as a result of exceptions raised by Offeror that have not been resolved between the parties.

954. Evergreen Warranty (Question No. 398): The notion that the Subcontractor’s repaired or replaced work is to be warrantied for an additional one-year period is not commercially acceptable and will not be agreed to. Minimally, we require a cap on any applicable warranty period such as a renewal period not to exceed two years following Substantial Completion.

Response: FFDG will be willing to consider reasonable exceptions to this provision, provided that (i) any applicable cap on the warranty period shall not cause the warranty period to terminate less than two years after Substantial Completion, and (ii) the cap shall not be given effect unless the Subcontractor has acted in a commercially reasonable manner in the first instance to address the warranty claim.

955. Any FRA initiated suspension should be a Compensable Delay for the entirety of the suspension. Please delete references to compensability after thirty (30) days. Alternatively, clarify that there shall only be one (1) aggregate thirty (30)-day period that FRA can suspend work with respect to Compensable Delays so Subcontractor can accurately reflect the cost of this risk within its proposal.

Response: Adding to previous response from RFI# 156: FFDG will be willing to consider, as exceptions, reasonable limitations on the aggregate time period for which FFDG may suspend work under Article 2(B)(iv) of the Subcontract without causing a Compensable Delay.

956. FRA requires Subcontractor to remedy work that fails to conform or any defect that is the result of a design furnished. Please add clarifying language that Subcontractor would remedy the aforementioned failed work that results from a design furnished by Subcontractor.

Response: Adding to previous response from RFI# 233: Subcontractor's warranty obligations with respect to defective design under Section 6.4(b) of the General Terms and Conditions shall mean and refer to design furnished by or through the Subcontractor, and not by others . Note, however, that this clarification does not modify or limit Subcontractor's other obligations under the contract and applicable regulations with respect to the design of others

(for instance, Subcontractor's obligation to seek clarification regarding discrepancies under FAR 52.236-21).

957. Please confirm that in the event of an Authorization for Use and Possession, the Work possessed by the FRA shall be deemed Substantially Complete with risk of loss transferring to FRA.

Response: Adding to previous response to RFI# 243: FFDG's election to occupy or use any portion of the Work under an AUP or otherwise prior to Final Completion and acceptance Substantial Completion, FFDG shall be responsible for loss or damage arising from such use. However, Subcontractor shall remain liable for loss or damage arising out of any failure of Subcontractor to carry out its continuing obligations under Article 9, Section B.3 of the Subcontract or any other continuing obligation thereunder.

958. Please delete (b) regarding third party claims. General liability claims arise during the normal course of construction and should not be the basis for withholding. Sub-section (c) should be conditioned on receipt of payment from the FRA. Sub-section (f) should be stricken. This is vague and does not account for disputed time extensions, which should not result in payment withholding.

Response: Adding to previous response to RFI# 244: In the final paragraph of General Conditions, Clause 2, please note as follows:

1. FFDG reserves the right to withhold payment as a result of third party claims as provided in clause (b), but does not expect to exercise that right where it reasonably determines that it is adequately secured against such claims through Subcontractor's insurance, bonds furnished, or other reasonable security.

2. Clause (f), which reflects standard AIA language on the basis for withholding payment, is reasonable here, particularly in light of Subcontractor's ability to provide an acceptable recovery schedule. FFDG will act reasonably in reviewing any such proposed recovery schedule.

959. Please delete that Subcontractor would pay FRA interest on a performance deficiency.

Response: Adding to response from RFI # 260: For clarification, the burden of resolving extensive exceptions may cause FFDG to reject an Offeror's proposal. However, in no event will FRA seek to make any claim on Offeror's bid security as a result of exceptions raised by Offeror that have not been resolved between the parties.

960. Please modify to state that the transfer of risk shall occur upon Substantial Completion or Authorization of Use and

Possession, whichever occurs first. Prior to those events, Subcontractor assumes the risk except in occasions where the damage or interference is caused by the FRA or others for whom the FRA is responsible. Proposer wishes to discuss a mechanism for relief under this Article for interference with Subcontractor’s operations by other FRA employees or contractors.

Response: Adding to response from RFI# 248: FFDG will be willing to consider reasonable proposed exceptions to Section 6.2 of the General Terms and Conditions providing that Subcontractor shall not assume risks arising after FFDG's occupancy or Substantial Completion, except for those continuing risks and obligations otherwise specifically provided under the Subcontract (including without limitation risks related to any ongoing Subcontractor work and Subcontractor warranty obligations).

961. Please reference the response to RFI 760. FRA’s response to this question, which simply points back to the Subcontracts’ existing differing site condition clause as well as FAR 52.236-2, overlooks the fact that the Subcontracts contain an onerous site investigation clause (Clause 12.2) that will ultimately prevent a viable differing site condition claim in the first place. FRA’s Subcontracts currently require the Subcontractor to acknowledge that it “has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by FRA as well as from the drawings and specifications made a part of this Subcontract.” The Subcontracts moreover contain a representation and acknowledgement on behalf of the Subcontractor that “based on the drawings and specifications and its site investigation set forth in this section the Subcontract price is reasonable compensation for all work, including all reasonable, foreseeable risks, hazards and difficulties in connection therewith and that the time for completion of the work specified in the Subcontract is adequate for the performance of the Work.” FRA must ensure that the Subcontractor has both time and monetary relief for differing site conditions, and is not precluded from that relief from the outset as the language in Clause

12.2 purports to do.

Response: Adding to response from RFI# 760: Subcontractor's required representation under Section 12.2 of the General Terms and Conditions is based solely on its investigation and review of any exploratory work carried out by FFDG. This provision does not obligate the Subcontractor to propose or carry out additional subsurface investigations in order to satisfy itself as to the nature of the risks.

ALL OTHER TERMS AND CONDITIONS AS REFERENCED UNDER THE SUBJECT RFP REMAIN UNCHANGED.

Fermi Forward Discovery Group, LLC Brian Quinn P.O. Box 500 Project Procurement Specialist Batavia, IL 60510 (630) 840-5777 M.S 210