LBNF-ND-350921-BWQ Addendum 13.pdf

ADDENDUM TO SOLICITATION

ADDENDUM NO.

DATE OF ADDENDUM:

10/11/2024

SOLICITATION NO.

LBNF-ND-350921-BWQ

DATE ISSUED:

6/05/2024

PROJECT NO.

N/A

OPENING DATE:

12/13/2024

TITLE OF PROJECT:

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

NEAR DETECTOR 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:

I. QUESTIONS AND RESPONSES:

(Numbering continues from Questions and Responses addressed in Addendum 12)

325. Funding Limitations: The Subcontracts currently contain strict Allocated Funding Limits which are subject to adjustment based on FRA’s unilateral discretion and which impose limitations on FRA’s liability tied to those Allocated Funding Limits. [REDACTED] further understands that the currently proposed Allocated Funding Limits are nowhere near the amounts that would be required to fund the Projects. At a minimum, Subcontractors must have the right to suspend the work at FRA’s cost and with appropriate schedule relief in the event the Allocated Funding Limits are met or anticipated to be exceeded. Availability of funding should also be a condition precedent to FRA’s ability to increase or adjust the work through a change order to the Subcontracts. FRA should further have a duty to provide advance notice to Subcontractors of available funding.

Response: FRA will have adequate funding to award and complete this project. Additionally, FRA holds contingency funding that allows the Laboratory to obligate funds associated with change order work. However, FRA cannot agree to compensating the Subcontractor if they suspend the Work after exhausting the “Allocated Funding Limit” for a given period.

The Subcontractor must develop their proposal based on the constraints stated in the Solicitation. However, please note that the Offeror is asked under Criterion 2, Subfactor 2 – Schedule to “…address areas the project could speed up or slow down should the preliminary funding profile change,” and Offerors are encouraged to provide an optimized schedule and funding profile in conjunction with this provision.

326. Absence of a Waiver of Consequential Damages: At present, the Subcontracts contain no commercially acceptable waiver of consequential damages. Paired with provisions permitting FRA to assess both liquidated and actual damages on the Subcontractor, FRA’s ability to assess consequential damages permits virtually unlimited liability against the Subcontractor. We recommend the inclusion of a commercially acceptable mutual waiver of consequential damages between the parties.

Response: We have heard Industry’s concerns via several RFI’s about uncapped exposure to damages and the available funding and schedule constraints and we are actively reviewing them to ensure that our responses are thorough and address any points of clarification effectively so you can give us your best proposal. Due to the complexity of some of the inquiries, this process is taking longer than anticipated and we hope to have resolution shortly.

327. Liquidated Damages: As referenced above, the Subcontracts currently permit FRA in certain instances to assess liquidated damages and actual damages on the Subcontractor. The purpose of liquidated damages is to set an approximation of a party’s damages for a delay because calculating actual damages is difficult or impossible.

Allowing the assessment of both types of damages defeats the purpose of having liquidated damages, and renders such liquidated damages as punitive in nature.

Response: We have heard Industry’s concerns via several RFI’s about uncapped exposure to damages and the available funding and schedule constraints and we are actively reviewing them to ensure that our responses are thorough and address any points of clarification effectively so you can give us your best proposal. Due to the complexity of some of the inquiries, this process is taking longer than anticipated and we hope to have resolution shortly.

328. Limitation of Liability: At present, the Subcontracts currently do not contain an aggregate limitation of liability for the Subcontractors. One should be added that is in line with commercial and industry standards.

Response: Correct, the Laboratory will not agree to an aggregate limitation of liability.

329. Differing Site Conditions: Industry-standard construction contracts authorize time and monetary relief to a contractor arising from impacts due to differing site conditions. That relief should be clearly stated in the Subcontracts, and not subject to FRA’s discretion on a case-by-case basis.

Response: The language in the draft Subcontract and the General Terms and Conditions (FAR 52.236-2) do not restrict the Subcontractor’s remedies in the event of differing site conditions.

330. Cure Period for Failure to Maintain a Permit: Subcontractor is responsible for maintaining all permits and licenses throughout the term of the Subcontracts. Failure to maintain a license or permit is cause for an immediate termination. Recommend adding a notice and cure period prior to terminating for a permit issue.

Response: FRA reserves the right to allow the Subcontractor to “cure” expired licenses or permits; however, as a last resort, FRA may terminate the Subcontract. FRA has no control over licenses or permits, or the determinations of their issuing bodies, and as such must allow for the ability to terminate as indicated in order to protect the interests of FRA and the DOE.

331. Assumption of Risk: We understand that the Subcontracts permit situations in which FRA can assume possession of the project work prior to Substantial Completion of the Projects. In the event FRA exercises that right, FRA should also assume the risk of loss once the portion of the work is within its custody and control.

Response: The standard Authorization for Use and Possession (AUP) form will include language that states that while FRA has such possession or use, the Subcontractor shall be relieved of the responsibility for the loss of or damage to the work resulting from FRA’s possession or use, notwithstanding the terms of the clause in this Subcontract entitled “Permits and Responsibilities.

332. Interference by Other Contractors/Employees: The Subcontracts currently require the Subcontractors to acknowledge the presence of, and cooperate with, other agents and employees of FRA on site, which may include other contractors performing work on the site. Because the Subcontractor is not in contractual privity with these other agents, it has no direct legal recourse against these agents for economic and monetary damages caused by the interference or disruption by these agents with Subcontractor’s work. FRA should bear responsibility for its own employees and separate contractors.

Response: Subcontractor is required to cooperate and coordinate work with others at Fermilab; however, the Subcontractor retains their contractual remedies for such economic and monetary damages.

333. Liability for Design: We understand that this is not a design-build project. Accordingly, apart from discrete scopes of designated design that are contractually assigned to the Subcontractor, the Subcontractor should not bear responsibility for design errors, omissions, or defects. The warranties in the Subcontracts requiring Subcontractor to guarantee work that is “free of any defect in . . . design furnished” and to remedy “[a]ny defect of . . . design furnished” are not appropriate when design is to be furnished by others.

Response: As stated in FRA General Terms and Conditions for Construction (3/2024), Clause 6.4 WARRANTY

(CONSTRUCTION):

“… the Subcontractor warrants, except for defects of material or design furnished by FRA, that work performed under the Subcontract conforms to the Subcontract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Subcontractor or any sub-subcontractor or supplier at any tier.”

The successful Offeror is not responsible for design errors, omissions, or defects in materials or designs furnished by FRA or the successor contractor for Fermilab.

334. Evergreen Warranty: The Subcontracts currently allow for the renewal of the warranty periods in 1-year increments from the date of any repair or replacement of work. This creates an unpredictable potential extension of liability beyond what a contractor can reasonably predict.

Response: The General Terms & Conditions, Clause 6.4 WARRANTY (CONSTRUCTION) states the following:

“The Subcontractor’s warranty with respect to work repaired or replaced will run for 1 year from the date of repair or replacement.”

The intent of this language is for the repaired work to be warrantied for an additional 1-year period, not a “renewal” of the warranty period for all the Work.

335. 30-Day Suspension: The Subcontracts currently permit FRA to unilaterally suspend the project work without relief to the Subcontractor for the first 30 days of any such suspension. The Subcontractors should not bear the risk for a delay that is wholly and solely caused by FRA. In addition, there is no limit to how many times FRA can suspend the project for a thirty-day period preventing the Contractor from pricing this risk.

Response: The Subcontractor may be entitled to additional compensation as a result of a “Compensable Delay” as defined in the draft Subcontract, Article 2 – WORK SCHEDULE, paragraph B.

“A “Compensable Delay” is a delay caused by (i) acts of FRA or any other subcontractor engaged by FRA to perform work at the project site (Separate Subcontractor) in the performance of its subcontract with FRA; (ii) a Change Order required by FRA modifying the Work where such Change Order is not the result of any default or misconduct of Subcontractor or any of its sub-tier contractors or suppliers; (iii) FRA’s decision to suspend the Work for longer than thirty (30) consecutive calendar days, where such a decision is not the fault of Subcontractor or any of its subtier contractors or suppliers; or (iv) the failure of FRA or FRA’s representative to perform any material contractual obligation in a timely manner after thirty (30) days’ written notice from Subcontractor, unless such failure is due to the default or misconduct of Subcontractor or any of its sub-tier contractors or suppliers.”

Exceptions to this clause can be included in the proposal.

336. Indemnity: FRA’s indemnity provision should not include an indemnity for breach of contract as that is covered through a direct action for breach under separate provisions of the Subcontract. This provision also imposes a duty to indemnify, “regardless of whether such liability, claim, damage, loss, penalty, forfeiture, fine, or suit is caused in part by a party indemnified hereunder.” The Subcontractor should not have a duty of indemnity with respect to the acts or omissions of an indemnified party.

Response: Exceptions to FRA Indemnification clause can be included in the proposal. This clause may be negotiated with the eventual awardee.

337. Assignment: Without the Subcontractor’s consent, FRA may assign the Subcontracts. This is not acceptable. This provision should either be removed, or alternatively assignment should be subject to the Subcontractor’s and/or surety’s consent.

Response: The DOE requires that FRA include assignment clauses in all its subcontracts. The assignment clause ensures that FRA (the current manager and operator of Fermilab on behalf of DOE) is able to seamlessly assign all existing subcontracts to a successor manager and operator of Fermilab in the event of a recompete.

338. Government Co-Obligee: As a co-obligee under the payment and performance bonds, the U.S. government’s rights to call on the bond should be tied to its performance as an obligee, which can be accomplished through a dual obligee rider.

Response: This requirement is derived from our prime contract with the DOE. We cannot deviate from it.

339. Loss Payee: Per a recent addendum to FRA’s Request for Proposals, Subcontractors have the responsibility for maintaining Builder’s Risk insurance. At the same time, the Subcontracts provide that FRA, and not the Subcontractors, are to be “the loss payee” under those policies. That language should be removed and replaced with language stating that the Subcontractor is the loss payee.

Response: If proceeds are paid to FRA in the event of loss, FRA can pay the said proceeds to the Subcontractor when parties are restored to the position they were in pre-loss or when work is completed whichever is applicable.

340. Limitation on Deductible/Self-Insured Retention: The $100,000 deductible/self-insured retention limitation on

Subcontractors’ insurance policies should be removed as this is not commercially reasonable.

Response: This clause is necessary for FRA’s evaluation of its own risk. In addition, the clause does not preclude $100,000 or more deductible/self-insured retention, however what is required is the written approval of FRA Procurement Specialist if the self-insurance retention/deductible is $100,000 or more.

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

Fermi Research Alliance, LLC Brian Quinn P.O. Box 500 Project Procurement Specialist Batavia, IL 60510 (630) 840-5777