N00024-13-R-4408_Amendment_0004.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

SEE CONTINUATION PAGE

1. CONTRACT ID CODE PAGE OF PAGES

J 1 8

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

16C. DATE SIGNED

BY 01-Aug-2013

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 N00024-13-R-4408

X 9B. DATED (SEE ITEM 11)

03-Jul-2013

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 is extended, X 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 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

01-Aug-2013

CODE

NAVAL SEA SYSTEMS COMMAND (HQ)

1333 ISAAC HULL AVE SE

WASHINGTON NAVY YARD DC 20376-2030

N00024 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

N00024-13-R-4408

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 30 - BLOCK 14 CONTINUATION PAGE

The following have been added by full text:

AMENDMENT 0004

Amendment 0004 provides the following:

1. Revised Section J to provide updated CDRLs as indicated in response to Question 8 in Amendment 0001.

2. Revised section E to revise FAR 52.246-18, Warranty of Supplies of a Complex Nature (NAVSEA Variation) (Modified)(April 2013) to (Modified)(AUG 2013) and to add 52.246-18 WARRANTY OF SUPPLIES OF A COMPLEX NATURE (MAY 2001) (NAVSEA VARIATION) (MAY 1993) in response to Question 33.

3. Response to pre-proposal (final) inquiry 33.

Question 33: FAR 52.246-18, Warranty of Supplies of a Complex Nature (Modified)(April 2013) is included in the solicitation. Paragraph(c)(3) of the clause states in part: “In fulfilling performance under this special warranty, the contractor shall bear the costs incurred on correction or replacement actions up to, but not exceeding, the total amount of the incentive and award fees available on the specific availability on which the corrective or replace actions were taken under this special warranty.” This seems to be in direct conflict with FAR 46.710(b)(1) which states, in part: “The contracting officer may insert a clause substantially the same as the clause at 52.246-18, Warranty of Supplies of a Complex Nature, in solicitations and contracts for deliverable complex items when a fixed-price supply or research and development contract is contemplated and the use of a warranty clause has been approved under agency procedures.”

FAR 46.705 also limits the use of Warranty clauses in Cost Reimbursement contracts. Has FAR 46.705 and/or 46.710(b)(1) been modified to allow the inclusion of 52.246-18 in Cost Reimbursement orders? Will 52.246-18 be applicable to firm-firmed price orders where there are no incentive or award fees?

Government Response: Neither FAR 46.705 or 46.710(b)(1) have been modified. FAR 52.246-18, Warranty of Supplies of a Complex Nature (Modified)(April 2013) was included in accordance with FAR 46.705, which states “Except for the warranties in the clauses at 52.246-3, Inspection of Supplies -- Cost-Reimbursement, and 52.246-8, Inspection of Research and Development -- Cost-Reimbursement, the contracting officer shall not include warranties in cost-reimbursement contracts, unless authorized in accordance with agency regulations.” FAR 52.246- 18, Warranty of Supplies of a Complex Nature (NAVSEA Variation) (Modified)(April 2013) was authorized and included in accordance with agency procedures and will be applicable to cost-type orders.

However, if and when the Government elects to issue cost-type orders, the Government currently intends to issue those cost-type orders on a Cost Plus Fixed Fee basis rather than including incentive or award fees. Therefore, FAR 52.246-18, Warranty of Supplies of a Complex Nature (NAVSEA Variation) (Modified)(APR 2013) has been revised to 52.246-18, Warranty of Supplies of a Complex Nature (NAVSEA Variation) (Modified)(AUG 2013) and included in accordance with agency procedures.

Further, if and when the Government elects to issue fixed price orders, the Government intends to invoke 52.246-18 WARRANTY OF SUPPLIES OF A COMPLEX NATURE (MAY 2001) (NAVSEA VARIATION) (MAY 1993).

This clause has been added in accordance with agency procedures.

The proposal due date remains 5 August 2013 at 10:00am, local time.

Offerors shall acknowledge this amendment, and any future amendments*, in Block 14 of the SF 33.

All other terms and conditions remain unchanged.

*The Government has responded to all pre-proposal inquiries and thus does not anticipate releasing any additional amendments.

SECTION E - INSPECTION AND ACCEPTANCE

The following have been added by full text:

52.246-18 WARRANTY OF SUPPLIES OF A COMPLEX NATURE (MAY 2001) (NAVSEA VARIATION) (MAY 1993)

(a) Definitions. As used in this clause:

(1) "Design and manufacturing requirements" include drawings, specifications, statements of work, structural and engineering plans, and manufacturing particulars, including precise measurements, tolerances, processes, materials, and finished product tests;

(2) "Essential performance requirements" means the operating capabilities and maintenance and reliability characteristics specified in the specification and/or statement of work; "essential performance requirements" does not include performance characteristics that are described as goals or objectives;

(3) "Alternate source contractor" means a contractor which did not develop the portion of the design requiring redesign;

(4) A unit shall be considered to have been "manufactured" when it has been accepted by the Government (either finally or conditionally); and

(5) "At no additional cost to the United States" means at no increase in contract price.

(b) Notwithstanding inspection and/or acceptance by the Government of the supplies furnished under this contract, any term or condition of this contract concerning the conclusiveness thereof, or any other term or condition of this contract, the Contractor warrants:

(1) That line item(s) * will conform to the design and manufacturing requirements of the contract;

(2) That line item(s) * , at the time of acceptance by the Government, will be free from all defects in materials and workmanship; and

(3) That line item(s) * will conform to the essential performance requirements of the contract;

provided, however, that with respect to Government-furnished property, the Contractor's above-stated warranties shall extend only to its proper installation, unless the Contractor performs some modification or other work on such property, in which case the Contractor's warranties shall extend to such modification or other work.

(c) The Contractor shall not be responsible under these warranties for any failure of line item(s) * to meet the conditions specified in (b)(1), (b)(2) or (b)(3), above, which is discovered more than * from the date of acceptance. In determining whether the failure was discovered prior to the expiration of the specified period, conditional acceptance shall not be considered to be acceptance. Rather, conditionally accepted supplies shall be considered to have been accepted as of the date the Contractor is notified by the Contracting Officer, in writing, that the condition has been satisfied or waived.

(d) Notwithstanding any other term or condition contained in this contract, in the event of a failure to comply with any of the warranties provided herein, the Contractor shall, at the election of the Government:

(1) Promptly take such action as may be necessary (e.g., repair, replace and/or redesign) to correct or, if so directed by the Government, partially correct the defect responsible for the failure at no additional cost to the United States. However, for alternate source contractors, redesign shall not be a remedy available to the Government if the alternate source contractor has not manufactured, at the time of agreement on the price of line item(s) * , the first ten percent of the eventual total production quantity anticipated to be acquired from that alternate source contractor;

(2) Pay costs reasonably incurred by the United States in taking such correction action; and

(3) Provide an equitable adjustment in contract price in lieu of full correction of the failure.

(e) In seeking the remedies specified in (d)(1), (d)(2) or (d)(3) above, the Government may elect to exercise any one or combination of the specified remedies.

(f) Any supplies or parts thereof corrected or furnished in replacement shall be subject to the conditions of this clause to the same extent as supplies initially delivered. This warranty shall be equal in duration to that set forth in paragraph (c) of this clause and shall run from the date of final acceptance of the corrected or replaced supplies.

(g) The Contractor shall prepare and furnish to the Government data and reports applicable to any correction required under this clause (including the revision and updating of all affected data called for under this contract) at no additional cost to the United States. If the Contractor fails to prepare and furnish such data and/or reports or should the Government elect no to secure such data from the Contractor or another source, the Contractor shall pay costs reasonably incurred by the Government in acquiring such data and/or reports, or the Government shall be entitled to an equitable adjustment in contract price.

(h) When items covered by these warranties are returned to the Contractor pursuant to this clause, the Contractor shall pay the transportation costs and bear the risk of loss or damage from the place of delivery specified in the contract (irrespective of the f.o.b. point or point of acceptance) to the Contractor's plant and return to said place of delivery.

(i)The Contractor shall be notified in writing of any breach of the warranties set forth in paragraph (a) above within

* days after discovery of the breach. The failure of the Contracting Officer to so provide timely notice of the breach, however, shall not diminish the rights the Government would otherwise have under this clause or any other term or condition of this contract.

(j) Notwithstanding any disagreement regarding the existence of a warranty breach, the Contractor shall promptly comply with any partial corrective action. In the event it is later determined that there was no warranty breach, the contract price shall be equitably adjusted.

(k) The warranty provisions herein of this clause no not cover combat damage, liability for loss, damage, or injury to third parties, or consequential damages.

(l) The rights and remedies of the Government provided in this clause are in addition to and do not limit any rights the Government may have under any other requirement of the contract. Disputes arising under this clause will be resolved in accordance with the clause entitled "DISPUTES" (FAR 52.233-1).

(m) The failure of the Government to assert its right under this clause with respect to any particular breach or breaches of a warranty provided herein shall not waive or otherwise diminish the Government's rights with respect to any subsequent breach of a warranty.

*To be specified, as applicable, in each Fixed Price Delivery Order

The following have been modified:

52.246-18 NAVSEA VARIATION

52.246-18 WARRANTY OF SUPPLIES OF A COMPLEX NATURE (MAY 2001) (NAVSEA VARIATION)

(MAY 1993) (MODIFIED) (AUG 2013)

(a) Definitions. As used in this clause – Acceptance means the act of an authorized representative of the Government by which the Government takes delivery of the supply, which is the repaired, mission-ready vessel that is the subject of the availability.

Defect means any condition or characteristic in any warranted supplies or related incidental services furnished by the Contractor that are not in compliance with the requirements of the contract, as determined by the cognizant Regional Maintenance Center’s (RMC) Code 300 Program Manager in conjunction with RMC Code 100.

Essential performance requirements means the operating capabilities and maintenance and reliability characteristics specified in the specification and/or statement of work; "essential performance requirements" does not include performance characteristics that are described as goals or objectives;

Warranted supplies mean the critical systems and work items specified in paragraph (b)(3) below, on which the Contractor or its Subcontractors worked, and the related incidental services performed by the Contractor or its Subcontractors under this contract. This term does not include “data.”

(b) Contractor’s obligations.

(1) The Contractor warrants that, for 90 days after the Government’s acceptance of the vessel, all of the warranted supplies identified in paragraph (b)(3) below will be free from defects in material and workmanship, will conform with all design and manufacturing specifications and requirements of this contract, and will conform to the essential performance requirements of the contract; provided, however, that with respect to Government-furnished property relating to such warranted supplies, the Contractor’s warranty shall extend only to its proper installation, unless the contractor performs some modification or other work on the property, in which case, the Contractor’s warranty shall extend to the modification or other work.

(2) Any warranted supply or parts thereof corrected or furnished in replacement shall be subject to the conditions of this clause to the same extent as the warranted supply initially delivered. This warranty shall be equal in duration to that set forth in paragraph (b)(1) of this clause and shall run from the date of delivery of the corrected or replaced warranted supply.

(3) This special warranty applies only to the following specified critical systems and work items* on which the Contractor or its Subcontractors have worked under this contract and which are identified and discussed during the pre-availability conference and effected by a bilateral modification to this contract.

(4) If the Contractor or any subcontractor has a warranty for work performed or materials furnished relating to a warranted supply that exceeds the 90 day period, the Contractor warrants that the Government shall be entitled to rely upon the longer warranty until its expiration. The Contractor shall promptly notify the Contracting Officer, in writing, of such longer period and applicable warranted supply.

(5) With respect to any warranted supply, and any individual work item related thereto, identified by either party as incomplete at the time of redelivery of the vessel, the special warranty period shall run from the date the item is completed.

(6) The Contractor shall not be obligated to correct or replace warranted supplies if the facilities, tooling, drawings, or other equipment or supplies necessary to accomplish the correction or replacement have been made unavailable to the Contractor by action of the Government. In the event that correction or replacement has been directed, the Contractor shall promptly notify the Contracting Officer, in writing, of the nonavailability.

(7) The Contractor shall also prepare and furnish to the Government data and/or reports applicable to any correction required on a warranted supply (including revision and updating of all affected data called for under this contract) at no additional expense to the Government. If the Contractor fails to prepare and furnish such data and/or reports or should the Government elect not to secure such data and/or reports from the Contractor or another source, the Contractor shall pay costs reasonably incurred by the Government in acquiring such data and/or reports, or the Government shall be entitled to an equitable adjustment to the contract.

(8) When warranted supplies are returned to the Contractor, the Contractor shall bear the transportation costs from the place of delivery specified in the contract (irrespective of the f.o.b. point or the point of acceptance) to the Contractor’s plant and return.

(9) This special warranty does not limit the Government’s rights under the Inspection clause in relation to latent defects, fraud, or gross mistakes that amount to fraud; furthermore, this warranty does not include damage caused by the Government.

(10) All implied warranties of merchantability and “fitness for a particular purpose” relating to the warranted supplies are excluded from any obligation contained in this contract.

(11) In determining whether the failure was discovered prior to the expiration of the specified period, conditional acceptance shall not be considered to be acceptance. Rather, conditionally accepted supplies shall be considered to have been accepted as of the date the Contractor is notified by the Contracting Officer, in writing, that the condition has been satisfied or waived.

(c) Remedies available to the Government.

(1) Notwithstanding any other clause, term or condition of this contract, including those pertaining to inspection and acceptance of supplies or services by the Government, in the event the Government determines that the Contractor has breached the special warranty in paragraph (b)(1) of this clause, the Government may do the following:

(i) Require the Contractor, at the place of performance specified in the contract

(irrespective of the f.o.b. point or the point of acceptance) or at the Contractor’s plant, to correct or replace, at the Contracting Officer’s election, defective or nonconforming warranted supplies, at the Contractor’s own expense, but only to the limits stated in paragraph (b)(3) of this clause; or

(ii) Require the Contractor to furnish, at the place of delivery specified by the Contracting Officer (irrespective of the f.o.b. point or the point of acceptance) or at the Contractor’s plant, the materials or parts and installation instructions required to successfully accomplish the correction, at the Contractor’s own expense, but only to the limits stated in paragraph (b)(3) of this clause.

(2) If the Contracting Officer does not require correction or replacement of the defective or nonconforming warranted supplies by the Contractor, but instead has the correction or replacement performed by another source, the Government shall be entitled to an equitable reduction in the total allowable costs reflecting the correction or replacement costs, but only to the limits stated in paragraph (b)(3) of this clause. Failure of the parties to agree upon an equitable reduction shall constitute a dispute under the Disputes clause of this contract.

(3) In fulfilling performance under this special warranty, the Contractor shall bear the costs incurred on corrective or replacement actions up to, but not exceeding, the total amount of the fees available on the specific availability on which the corrective or replacement actions were taken under this special warranty. The Government shall pay for all reasonable, allocable, and allowable costs incurred on corrective or replacement actions beyond that amount. The Contractor’s obligation to correct or replace the defective warranted supply, or to agree to an equitable reduction in the total allowable costs, shall include responsibility for the costs of furnishing all labor and material to: (i) re-inspect warranted supplies that the Government reasonably expected to be defective; (ii) accomplish the required correction or replacement; and (iii) test, inspect, and mark repaired or replaced warranted supplies.

(4) The Contracting Officer will notify the Ship’s Commanding Officer to prepare a list of defective or deficient items covered by this Special Warranty. The Contracting Officer will specify the acceptable turnaround times for warranty corrective actions to be taken by the Contractor. When these specified turnaround times are not met by the Contractor, the Contracting Officer will charge the Contractor for product replacement costs or the following liquidated damages for each defective item not corrected by the Contractor within the specified turnaround time:

(For each critical item listed in the foregoing subparagraph (b)(3), required turnaround time and formula for assessment of liquidated damages shall be provided here.)

(5) The Contracting Officer shall notify the Contractor in writing of any breach of the warranty in paragraph (b)(1) of this clause within 100 days after the Government’s acceptance of the vessel. The Contractor shall submit to the Contracting Officer a written recommendation within 5 days after receipt of this notice of breach as to the corrective action required to remedy the breach. After the notice of breach, but not later than 5 days after receipt of the Contractor’s recommendation for corrective action, the Contracting Officer may, in writing, direct correction or replacement as in paragraph (c)(1) of this clause, and the Contractor shall, notwithstanding any disagreement regarding the existence of a breach of warranty, comply with this direction. If it is later determined that the Contractor did not breach the warranty in paragraph (b)(1) of this clause, the total allowable costs will be equitably adjusted. The failure of the Contracting Officer to so provide timely notice of the breach, however, shall not diminish the rights the Government would otherwise have under this clause or any other term or condition of this contract.

(6) If warranted supplies are corrected or replaced, the period of notification of a breach of the Contractor’s warranty in paragraph (b)(2) of this clause shall be 100 days after the date of delivery of the corrected or replaced warranted supply.

(7) The rights and remedies of the Government provided in this clause are in addition to, and do not limit, any rights afforded to the Government by any other clause of the contract.

(8) The failure of the Government to assert its right under this clause with respect to any particular breach or breaches of a warranty provided herein shall not waive or otherwise diminish the Government’s rights with respect to any subsequent breach of a warranty.

(End of clause) *Critical systems, work items and liquidated damages covered under this clause shall be specified, as applicable, in each Delivery Order.

SECTION J - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS

The following have been modified:

EXHIBITS AND ATTACHMENTS

Any contract awarded as a result of this solicitation shall consist of the following sections of this solicitation, and the documents, exhibits, and attachments described below:

Part I – The Schedule (Sections A through H) Part II – Contract Clauses (Section I) Part III – List of Documents, Exhibits and Other Attachments (Section J) Part IV – Representations and Instructions

Part IV of the solicitation will not be physically incorporated into the resulting Contract. However, Section K, “Representations, Certifications and Other Statements of Offerors” will be retained in the contract file, and acceptance of a proposal under this solicitation incorporates all sections of the Solicitation by reference into the resultant contract.

The following attached documents form a part of this solicitation:

S-1 Pre-Proposal Inquiry Form (1 page)

S-2 Past Performance Questionnaire (3 pages)

S-3 Pier Facilities Data Sheet (1 Page) (Revised per Amendment 0002)

S-4 RESERVED

S-5 Labor and Material Burden Rates Spreadsheet (1 page) (Revised per Amendment 0001)

S-6 Corporate Experience Data Sheets (1 page)

Documents, exhibits and other attachments that are part of the solicitation and will be part of the contract are as follows:

J-1 Contract Security Classification Specification, DD Form 254 (3 pages)

Exhibit A Contract Data Requirements List (CDRL) (DD Form 1423) (Revised per Amendment 0004)

Exhibit B Contract Data Requirements List (CDRL) (DD Form 1423) (Revised per Amendment 0004) Exhibit C Contract Data Requirements List (CDRL) (DD Form 1423) (Revised per Amendment 0004)

In addition to the documents listed above, the Successful Offeror’s accepted/approved Small Business Sub-contracting plan will be incorporated in to award.

(End of Summary of Changes)