N00033-08-R-1022 RFP.doc

Section SF 1449 - CONTINUATION SHEET

TITLE PAGE

TUG SERVICES CALL-OUT CONTRACT

PORT HUENEME, CA

RFP N00033-08-R-1022

NOTICE TO OFFERORS

A. OFFEROR FILL-IN CLAUSES

All Offeror fill–in clauses 52.203-2, 52.212-3 and 252.212-7000 are provided for the convenience of Offerors in the Submission Package (Amendment 1) which also provides rate sheets for the offered prices, forms for the proposed vessel characteristics and Vessel Casualty and Strike Contingency Plans, and the Past Performance Questionnaires.

B. SCHEDULE OF ESTIMATES

The following estimates are not a guarantee of work. This information is provided for estimation purposes only. Any difference in the actual numbers or workload experienced shall not form the basis of any claim or equitable adjustment.

First Hour

Per Tug Additional

Regular

Hours Estimated Overtime

Hours Cancelled

Orders

End of Notice to Offerors

NOTES ON CONTRACT DOCUMENT

SCHEDULE OF SUPPLIES AND SERVICES

1. The Schedule of Supplies and Services follows as CLINS under this contract.

2. The following tables will be filled in by the government at award:

a. Rates

b. CLIN price and quantity data

c. Authorized tugs

3. INVOICE INSTRUCTIONS:

a. Invoices shall be submitted in accordance with the instructions in FAR clause 52.212-4 and Addendum. Please note that IAW 52.212-4, among other things, each invoice is required to have the Contract Number, Delivery Order Number and a point of contact with telephone number in the event of a defective invoice.

End of Notes on Contract Document

SERVICE AND HOURLY RATES

CONTRACT PRICING FOR TUG SERVICE AND HOURLY RATES

(To be filled in by the Government at award)

Service Rate

Hourly Rate

Overtime Rate

Cancellation Rate

Service Rate

Hourly Rate

Overtime Rate

Cancellation Rate

WAGE DETERMINATION

Wage Determination (WD) (94-0196 R21) is incorporated into the contract and is available upon request. Any subsequent wage determinations or revisions as appropriate will be incorporated into the contract when they become effective.

FUNDING

Funding will be provided with each individual delivery order. Expenditures may not exceed the funding on any delivery order for that purpose.

PERFORMANCE PERIODS

GEOGRAPHIC REGION(S)

Port Hueneme, CA

Surrounding Waters

PERIODS OF PERFORMANCE

(days)

Completion

Firm Period

Option Period One

Option Period Two

Option Period Three

Option Period Four

STATEMENT OF WORK: SUMMARY

PERFORMANCE WORK STATEMENT (summary):

1.

This Contract requires two (2) U.S. flag tugs to provide harbor support services and ship handling for the Port Hueneme, CA area. This contract is for all tug requirements of the required Shaft Horsepower (SHP) or bollard pull that cannot be satisfied with government owned, controlled or time-chartered tugs. The actual work may vary considerably from the schedule of estimates contained herein.

2.

The following list, all-inclusive in neither scope nor description, is illustrative of the services to be performed under this Contract:

(a) Towing, twisting, mooring, berthing, docking, streaming, shifting, assisting, pulling, and escorting those vessel types identified in Attachments to this Contract and miscellaneous other vessels, barges, submarines, crafts, hulls, sleds, derricks, lighters, and objects of whatsoever nature including anything carried thereon. Government reserves the right to use Government-owned, controlled, or chartered Tugs or tugs separately or jointly with Owner's Tugs in the performance of any services listed in this Contract.

(b) Transfers of pilots and Government Personnel by Tug.

(c) Emergency support services, including responses to weather conditions threatening vessels, piers, dry-docks, or shore facilities; shipboard fires; tugs aground; tug equipment failures; downed aircraft; oil spills; missions of mercy; collisions; ammunition mishaps; search-and-rescue operations; shipboard casualty; and National Defense Emergency

(d) Line handling

(e) Providing personnel (other than a riding crew) to go aboard a tow.

(f) Owner's Representative shall provide adequate staff and communications to promptly respond to Government's requests for services under this Contract on a 24-hour-day basis.

3.

Services shall require no more than the following notification times before the tug shall be on-site ready to perform:

Straight-Time

0800-1700 local time, Monday through Friday, excluding federal holidays 1 hour

Overtime

1701-0759 local time, Monday through Friday; 1701 Friday through 0759 Monday; all Federal holidays.

1 hour

* Failure to meet the notification times would subject the contractor to the Liquidated Damages clause. See clause 52.211-11.

NOTE: Contractors shall respond to emergencies with utmost dispatch.

4.

Within the geographical regions listed below,

(a) Tug(s) may be ordered to any berth, dock, anchorage, wharf, place, open roadstead, submarine line, or alongside any vessel, barge, lighter, submarine, craft, hull, derrick, or object of whatsoever nature that the Government may direct, provided the Tug can lie always safely afloat except in harbors or waters where groundings are custom of the port.

Geographical Region

Port Hueneme, CA and surrounding waters

VESSEL CHARACTERISTICS

TUG CHARACTERISTICS

5.

The tugs under this contract shall have the following minimum characteristics:

One, at least 1500 shp

At least 30,000 lbs. (2,000 SHP)

BROW:

NA

REQUEST FOR SERVICE

REQUESTS FOR SERVICE

Requests for services within the scope of this Charter Party contract may be issued by:

· Contracting Officer; or

· Port Operations Officer, or his /her designee; or

· Contracting Officer’s Representative (COR).

AUTHORIZED TUGS:

ORDERING PROCEDURES

6. METHOD OF ORDERING:

Orders may be issued by:

i) DD Form 1155 (via facsimile, hardcopy or electronically); or

ii) Orally (To be confirmed in writing within 48 hours).

Orders may be issued for:

i) A specific movement;

ii) A series of movements to be performed within a one-month period.

7.

SCHEDULE MINIMUM TOTAL ORDER QUANTITY: This contract may or may not incorporate a minimum guaranteed amount. The inclusion of a guaranteed amount is designated by a check in the boxes below:

FORMCHECKBOX

CONTRACT HAS A MINIMUM GUARANTEE:

The government guarantees that it will order a minimum amount of work that will have a dollar amount equivalent to the following:

[X] CONTRACT HAS NO MINIMUM GUARANTEE.

8.

RATES FOR SERVICES (See tables in the section “Service and Hourly Rates” above for contract rates)

Vessel Service Rate: This rate gives a rate for the provision of any type of work that the vessel can perform and that is contemplated by this contract. This rate includes all of the following items: overtime (including but not limited to crew overtime/penalty time) unless a separate overtime rate is offered; penalty time; fuel costs; bonuses; payments; emoluments payable to the Master, Officers and crew for services under this contract; the cost, if any, of transit to and from the location; and any other costs incurred in responding to the Government's order. The Vessel Service Rate shall be earned for the first hour of service, such service to be calculated from the date and time the vessel reports in all aspects ready to perform at the location, time and date (but no earlier than the date and time specified in the order, unless agreed upon by the Government) specified in the Government order. Consecutive work shall not incur more than one Service Rate charge unless the Vessel is released from government control between work.

Hourly Rate: Each job shall earn the Hourly Rate, pro-rated to the nearest quarter hour, after completion of the first hour of service. The Hourly Rate will continue to be earned until the Government dismisses the vessel.

(c) Cancelled Orders: Orders cancelled outside the required notification period shown in the Statement of Work will incur no charge. Orders cancelled within the required notification period will incur a charge equal to two hours at the hourly rate.

(d) Overtime: If offered, this hourly charge shall be added to the Hourly Rate for any work performed during overtime hours, as defined in this contract. If offered, it shall also be added to the Vessel Service Rate if the first hour of service covered by the Vessel Service Rate starts or ends in overtime. This rate shall be pro-rated to the nearest quarter hour.

(e) Economic Price Adjustment (EPA): Fuel costs provided herein are subject to an annual economic price adjustment at the beginning of each option period, assuming the option is exercised. Fuel is the only commodity that will be considered for an EPA.

i) Applicability – The EPA shall be applied when there is an increase or decrease of 5% or greater between the Base Reference Value (BRV) and the Anniversary Reference Value (ARV) associated with each contract anniversary date. The percentage is used only to determine if the threshold is met and a contract modification is warranted.

ii) Base Reference Value/date: (To be inserted at Contract Award)

iii) Definitions:

1.

Base Reference Value: The BRV shall be based on the price published for Low Sulfur No. 2 Diesel Fuel at Los Angeles, CA, as reported by the Department of Energy’s Energy Information Administration. The BRV is the average of daily prices for the thirty day period prior to award.

2.

Anniversary Reference Value (ARV): The ARV is the average of daily prices for the thirty day period 90-61 days prior to the start of each option period.

3.

Assumed Fuel Portion of Applicable Rates: For the purposes of this contract, fuel is estimated to account for 20% of the applicable rate.

iv) Notification. The Contractor shall notify the Contracting Officer in writing, of the Anniversary Reference Value no later than 45 days prior to the start of each option period. The notification shall include a copy of the published Low Sulfur No. 2 Diesel Fuel prices, the calculations to determine the change, if any, in the contract price, and the revised prices, by CLIN, to be applied under this EPA.

v) Effective Date. Any price increases or decreases under any contract modification shall take effect on the first day of the applicable option period.

vi) Calculation. In the event a change is warranted, the percentage difference between the BRV and the ARV associated with each contract option period shall be applied to the fuel portion of the applicable rate. The result, rounded to the nearest dollar, and will be added to appropriate contract rate.

SUBSTITUTION OF TUGS

SUBSTITUTION OF TUGS:

9.

Substitution of tugs is authorized, but only for good cause shown and upon proper notice to the Government and approval of the Contracting Officer. Notice of intent to substitute by the Contractor shall identify the tug being substituted and the tug for which substitution is being made and shall provide the Contracting Officer with sufficient information on which to base a determination regarding good cause for substitution and the acceptability of the nominated substitute vessel. Notice shall be submitted in writing and shall be submitted sufficiently in advance to permit the Contracting Officer to make a reasoned determination regarding good cause and substitute tug suitability. If circumstances require oral notification, said notice shall provide all of the above required information and shall include a statement of circumstances that preclude a written notice prior to substitution. Confirmation of the information given in an oral notice shall be submitted to the Contracting Officer in writing within forty-eight (48) hours of the giving of oral notification.

10.

The contractor shall fix and deploy a substitute Tug within a period of six (6) hours of submission of notice of substitution or within six (6) hours of the commencement of any off-hire whichever occurs first.

11.

Any tug offered as a substitute shall have substantially the same characteristics, i.e., shall be similarly fitted and otherwise equal or superior in performance, as the tug for which substituted and shall be fully ready to perform in accordance with this Charter Party upon arrival at the Tow or other work site designated by Charterer. Any tug substituted under this Clause shall result in no cost increase for Charterer and substitution shall result in no operation delay for Charterer except as provided above. It shall not otherwise excuse any other performance required under this Charter party.

12.

Contracting Officer's notice of acceptance or rejection of the substitute tug shall be made within a reasonable time following Owner's nomination thereof, provided that the Contracting Officer is furnished sufficient information on which to base such a determination. Silence of the Contracting officer shall not be construed as acceptance of any nominated tug.

13.

Notwithstanding Charterer's prior acceptance of any substitute tug under this paragraph, Charterer may at any time reject any previously accepted substitute tug if it is determined that the characteristics of that substitute tug were misrepresented by the Contractor or are otherwise unsuited to the requirements of this contract.

POINTS OF CONTACT

POINTS OF CONTACT:

14.

CONTRACTING QUESTIONS:

(a) Contracting Officer, Ms. Cathlene Jo Stangler, COMSC N1021, (202) 685-5952

(b) Contract Specialist, Mr. Jeff Fugate, COMSC N1021 (202) 685-5955

(c) Contract Specialist, Mr. John Fiddelke, COMSC N1021 (202) 685-0345

15.

ORDERING OFFICER: Blake Paul Sattler, NBVC PORT HUENEME, (805) 982-2099

PLANS AND REPORTS

16.

STRIKE CONTINGENCY PLAN.

(a) The Contractor shall provide and maintain a strike contingency plan that describes how services will be provided if there is a labor strike or any other deficiency of Master or crewmembers. The plan must be practicable and must clearly state the means and method for vessel manning during a strike or labor action and for providing services in the face of disruptive measures typical of a strike situation. Award of the contract shall indicate the Contracting Officer’s approval of the plan, whose approval shall not be unreasonably withheld.

(b) The Contractor shall update the plan as necessary but no less frequently than yearly and not later than 30 days before the last day for the exercise of each option to extend contract term. Exercise of an option to extend the term of the contract shall indicate the Contracting Officer’s approval of the updated plan, whose approval shall not be unreasonably withheld.

17.

VESSEL CASUALTY PLAN.

(a) The Contractor shall provide and maintain a vessel casualty plan that describes how services will be continued if there is a casualty to the Tug or to a system that makes the Tug inoperable or incapable of safely providing a required service. The plan must be practicable and must clearly state the means and method for timely acquisition and deployment of a substitute tug in the event of a vessel casualty. Award of the contract shall indicate the Contracting Officer’s approval of the plan, whose approval shall not be unreasonably withheld.

(b) The Contractor shall update the plan as necessary but no less frequently than yearly and not later than 30 days before the last day for the exercise of each option to extend contract term. Exercise of an option to extend the term of the contract shall indicate the Contracting Officer’s approval of the updated plan, whose approval shall not be unreasonably withheld.

18.

RESERVED

19.

INCIDENT REPORTS. In all instances in which any vessel being handled by Owner’s Tug(s) sustains damage or is involved in any incident resulting in damage to vessels or property, or in bodily injury or death, Owner shall secure a report from the Tug Master or Officer acting as pilot, and from any licensed pilot aboard the vessel being handled. Owner shall submit said report to the Contracting Officer within twenty-four hours following said incident, reporting the facts, listing deaths, reporting the extent of damages to property and any bodily injuries, and listing recommendations to prevent recurrence.

(End of clause)

DELIVERY INFORMATION

CLAUSES INCORPORATED BY REFERENCE

CLAUSES INCORPORATED BY FULL TEXT

52.211-11 LIQUIDATED DAMAGES--SUPPLIES, SERVICES, OR RESEARCH AND DEVELOPMENT (SEP 2000)

(a) If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, the Contractor shall, in place of actual damages, pay to the Government liquidated damages of a sum equal to the applicable contract rate times the estimated number of hours for the job.

(b) If the Government terminates this contract in whole or in part under the Default--Fixed-Price Supply and Service clause, the Contractor is liable for liquidated damages accruing until the Government reasonably obtains delivery or performance of similar supplies or services. These liquidated damages are in addition to excess costs of repurchase under the Termination clause.

(c) The Contractor will not be charged with liquidated damages when the delay in delivery or performance is beyond the control and without the fault or negligence of the Contractor as defined in the Default--Fixed-Price Supply and Service clause in this contract.

(End of clause)

CLAUSES INCORPORATED BY FULL TEXT

52.212-1 (ADDENDUM) ADDITIONAL INSTRUCTIONS TO OFFERORS--COMMERCIAL ITEMS

In accordance with FAR 12.302 (Tailoring of provisions and clauses for the acquisition of commercial items), the following shall take precedence over the un-tailored paragraphs.

SUBMISSION OF OFFERS

(a) Offers may be submitted via:

1. Mail addressed John Fiddelke, Military Sealift Command, N1021/PM2, 914 Charles Morris Court SE, Washington Navy Yard, DC 20398. The outside wrapper shall clearly identify that it is a submission under this solicitation; or

2. Facsimile to (202) 685-5966; or alternate (202) 685-5965; or

3. Electronically, to Jeffrey.Fugate@navy.mil, John.Fiddelke@navy.mil, or Cathy.Stangler@navy.mil. Submissions must be compatible with Microsoft Windows XP and Microsoft Office Word 2003.

4. Offerors are advised that the mail and other delivery services have encountered delays gaining access to the Washington Navy Yard with the result that offers have been received late by MSC and could not be considered. Offerors are cautioned to monitor delivery of their offers to ensure they are timely received by this office.

(b) Offerors are encouraged to submit offers using the submission package attached to the solicitation. Failure of an offer to address any items listed in the attached submission package may make the offer unacceptable and may result in its not being considered for award.

(End of provision)

52.212-2 EVALUATION--COMMERCIAL ITEMS (JAN 1999)

8. The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be the lowest evaluated price meeting or exceeding the acceptability standards for non-cost factors. The following non-cost factors shall be used to evaluate offers:

(a) Technical capability to meet the Government requirement.

(b) Past Performance (See FAR 15.304)

(c) Participation in Small Business, Veteran-Owned Small Business, Service-Disabled Veteran-Owned Small Business, HUBZone Small Business, Small Disadvantaged Business, and Women-Owned Small Business concerns.

9. Technical Capability:

(a) The Government will evaluate the offeror’s proposed Tug, vessel strike contingency and casualty plans, and tug characteristics submitted in the Submission Package to ensure that the capability of the proposed Tug(s) meet the Government’s needs as described in the RFP requirements.

(b) Evaluation will consider if the Tug characteristics and Tug strike and casualty plans meet the minimum requirements stated in the solicitation. Any offer that does not meet the minimum requirements shall be evaluated as unacceptable.

10. Past Performance

(a) The offeror’s performance under existing and prior contracts for similar services and other past performance information will be evaluated. Information obtained from references listed in proposals, additional customers known to the Government, and other sources of useful information will be considered.

(b) Award will not be made to an offeror who is or within the past three years has been seriously deficient in contract performance, unless the Contracting Officer determines that the circumstances were properly beyond the offeror’s control or that the offeror took appropriate corrective action. If discussions are held, offerors will be given the opportunity to address unfavorable reports of past performance.

(c) In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available will be given a neutral rating. The offeror may not be evaluated favorably or unfavorably on neutral past performance.

11. Participation in Small Business, Veteran-Owned Small Business, Service-Disabled Veteran-Owned Small Business, HUBZone Small Business, Small Disadvantaged Business, and Women-Owned Small Business concerns

(a) Any small business will be considered acceptable under this evaluation factor. Any large business that offers an acceptable subcontracting plan in accordance with FAR 19.704 will be considered acceptable under this evaluation factor.

12. Price

(a) The total evaluated price will equal the sum of the total dollar amounts for the firm period and the option periods. The total dollar amount for each period will be obtained by multiplying the offered rate times the estimated usage under the schedule of estimates for that period. The schedule of estimates is found in the Notes to the Offeror.

13. Price analysis techniques will be used to determine price reasonableness. Adequate price competition is expected. Materially unbalanced offers will not be considered for award.

14. Options. The Government will evaluate offers for award purposes by adding the total estimated price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are significantly unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

15. A written notice of award or acceptance of an offer, mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer, shall result in a binding contract without further action by either party. Before the offer’s specified expiration time, the Government may accept an offer (or part of an offer), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.

(End of clause)

52.212-4 CONTRACT TERMS AND CONDITIONS-- COMMERCIAL ITEMS (FEB 2007)

In accordance with FAR 12.302 the following terms and conditions tailor (where indicated) or supplement (in paragraph 2 below) clauses in FAR 52.212-4. Paragraph numbering parallels numbering in the basic clause:

(a) INSPECTION/ACCEPTANCE (Tailored).

(1) The Tug and Associated Equipment shall be subject to the Charterer's inspection as to suitability of the required service prior to delivery and at any subsequent time during the term of this Contract to determine continued suitability for the required service, including but not limited to a determination as to whether the material condition of the Tug and/or Associated Equipment might prevent or impair effective operation during the basic and any exercised optional periods of this Contract.

(2) This Contract may be terminated in whole or in part at no cost to the Charterer upon Contractor’s failure to correct any discrepancy in the condition of the Tug or Associated Equipment, which discrepancy prevents or materially impairs the performance of any required service, within a reasonable time after receipt of notice of such discrepancy.

(3) The remedies provided by this paragraph shall not limit any other remedy available at Law or in Equity, or otherwise provided under this Contract.

(b) ASSIGNMENT. The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727). However, when a third party makes payment (e.g., use of the Governmentwide commercial purchase card), the Contractor may not assign its rights to receive payment under this contract.

(c) CHANGES (Tailored). The Contracting Officer may order changes within the general scope of any of the terms and conditions of this Contract. If any such change causes an increase or decrease in the cost of performance, such change will be the subject of a bilateral modification to the Contract. Failure to agree as to the increase or decrease in the cost of performance shall be resolved under the “Disputes” paragraph of this Contract.

(d) DISPUTES. This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) DEFINITIONS (Tailored). The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.

(f) EXCUSABLE DELAYS (Tailored).

1. Neither the Contractor nor the Charterer shall, unless otherwise in this Charter Party expressly provided, be liable to the other for any delay, loss, damage or failure in performing hereunder arising out of or resulting from an occurrence such as, acts of God; acts of the public enemy, pirates, or assailing thieves; arrest or restraint of princes, rulers, or peoples; seizure under legal process provided bond is promptly furnished to release the Vessel; flood; fire; blockade; riot, insurrection, or civil commotion; earthquake; storm; lightning; epidemic; or explosion.

2. The Vessel shall have the liberty to sail with or without pilots, to tow and to be towed, to assist vessels in distress, and to deviate for the purpose of saving life or property, or to go into dry dock or into ways with or without cargo, passengers or other personnel, as applicable, onboard.

3. Notification. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

4. Reservation. The exceptions identified in subparagraph (1) above shall not be such as to affect the Contractor's warranties respecting the condition of the Vessel nor the Contractor's obligations respecting the services specified.

(g) INVOICE. (1) The Contractor shall submit an original invoice and three copies (or electronic invoice, if authorized) to the address designated in the contract to receive invoices. An invoice must include--

(i) Name and address of the Contractor;

(ii) Invoice date and number;

(iii) Contract number, contract line item number and, if applicable, the order number;

(iv) Description, quantity, unit of measure, unit price and extended price of the items delivered;

(v) Shipping number and date of shipment, including the bill of lading number and weight of shipment if shipped on Government bill of lading;

(vi) Terms of any discount for prompt payment offered;

(vii) Name and address of official to whom payment is to be sent;

(viii) Name, title, and phone number of person to notify in event of defective invoice; and

(ix) Taxpayer Identification Number (TIN). The Contractor shall include its TIN on the invoice only if required elsewhere in this contract.

(x) Electronic funds transfer (EFT) banking information.

(A) The Contractor shall include EFT banking information on the invoice only if required elsewhere in this contract.

(B) If EFT banking information is not required to be on the invoice, in order for the invoice to be a proper invoice, the Contractor shall have submitted correct EFT banking information in accordance with the applicable solicitation provision, contract clause (e.g., 52.232-33, Payment by Electronic Funds Transfer--Central Contractor Registration, or 52.232-34, Payment by Electronic

Funds Transfer--Other Than Central Contractor Registration), or applicable agency procedures.

(C) EFT banking information is not required if the Government waived the requirement to pay by EFT.

(2) Invoices will be handled in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR part 1315.

(h) PATENT INDEMNITY. The Contractor shall indemnify the Government and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

(i) PAYMENT.--

(1) Items accepted. Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.

(2) Prompt payment. The Government will make payment in accordance with the Prompt Payment Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part 1315.

(3) Electronic Funds Transfer (EFT). If the Government makes payment by EFT, see 52.212-5(b) for the appropriate EFT clause.

(4) Discount. In connection with any discount offered for early payment, time shall be computed from the date of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which appears on the payment check or the specified payment date if an electronic funds transfer payment is made.

(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall immediately notify the Contracting Officer and request instructions for disposition of the overpayment.

(j) RISK OF LOSS. (Tailored). Any and all costs associated with the following shall be for the sole account of the Contractor without recourse to the Charterer provided that, during preparations for or performance of services under this Charter Party contract, any of the following results from any negligence, wrongful act, or omission of Contractor or its agents, servants, employees, or subcontractors; or from any unseaworthiness, unfitness, or breakdown of the Tug or any gear or other equipment furnished by Contractor:

1. Injury or death of Master or crew of the Tug, or of Captain, Officers;

2. Injury or death of any other person aboard the Tug;

3. Loss or damage of whatsoever nature sustained by the Tug;

4. Loss or damage of whatsoever nature caused to or suffered by third parties or their property by reason of contact with the Tug, or by any obstruction created by the presence of the Tug;

5. Any liability in respect to wreck removal for the Tug, or in respect to the expense of moving or lightening or buoying the Tug, or in respect to preventing or abating pollution originating from the Tug.

(k) TAXES. The contract price includes all applicable Federal, State, and local taxes and duties.

(l) TERMINATION FOR THE GOVERNMENT'S CONVENIENCE. The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) TERMINATION FOR CAUSE. The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

(n) TITLE. Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Government upon acceptance, regardless of when or where the Government takes physical possession.

(o) WARRANTY (Tailored).

1. Contractor warrants that the Tug shall be in full conformity with the requirements of this Charter Party Contract from the time of delivery and thereafter. Should any specification of the Tug offered and accepted by award of the Contract be in excess of a specification stated in the solicitation or elsewhere in this Contract, the offered and accepted specification shall prevail over the required specification and the Contractor warrants full conformity with the specification as offered and accepted.

2. The Contractor warrants that the Tug and all Associated Equipment shall be in full compliance with all applicable International Conventions and all applicable laws, regulations, and other requirements of the nation of registry and of the nation(s) and local jurisdictions to whose port(s) and/or place(s) it is contemplated that the Tug will be ordered hereunder. The Tug shall additionally operate in compliance with the International Maritime Dangerous Goods Code.

3. The Owner further warrants that the Tug shall have onboard all certificates, records, or other documents required by the aforesaid conventions, laws, regulations, and requirements, including a Certificate of Financial Responsibility meeting the requirements of the U.S. Coast Guard and promulgated pursuant to the U.S. Federal Water Pollution Control Act, as amended, and/or the Oil Pollution Act of 1990.

4. Complement. The Owner warrants that the Tug shall have an efficient and legally sufficient complement of Masters, Officers, and crew with adequate training and experience to safely and effectively operate the Vessel and all Associated Equipment.

(p) LIMITATION OF LIABILITY. Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.

(q) OTHER COMPLIANCES. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

(r) COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT CONTRACTS. The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. 3701, et seq., Contract Work Hours and Safety Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 265 and 10 U.S.C. 2409 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to procurement integrity.

(s) ORDER OF PRECEDENCE (Tailored). Any inconsistencies in this solicitation or Contract shall be resolved by giving precedence in the following order: (1) The Schedule of Supplies/Services; (2) The Assignments, Disputes, Payments, Invoice, Other Compliances, and Compliance with Laws Unique to Government Contracts paragraphs of this clause; (3) FAR 52.212-5; (4) Addenda to this solicitation or Contract, including any license agreements for computer software; (5) Solicitation provisions if this is a solicitation; (6) Other paragraphs of this clause; (7) The Standard Form 1449; (8) Other documents, exhibits, and attachments; and (9) The specification.

(t) CENTRAL CONTRACTOR REGISTRATION (CCR). (1) Unless exempted by an addendum to this contract, the Contractor is responsible during performance and through final payment of any contract for the accuracy and completeness of the data within the CCR database, and for any liability resulting from the Government's reliance on inaccurate or incomplete data. To remain registered in the CCR database after the initial registration, the Contractor is required to review and update on an annual basis from the date of initial registration or subsequent updates its information in the CCR database to ensure it is current, accurate and complete. Updating information in the CCR does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

(2)(i) If a Contractor has legally changed its business name, “doing business as” name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in FAR subpart 42.12, the Contractor shall provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to (A) change the name in the CCR database; (B) comply with the requirements of subpart 42.12; and (C) agree in writing to the timeline and procedures specified by the responsible Contracting Officer. The Contractor must provide with the notification sufficient documentation to support the legally changed name.

(ii) If the Contractor fails to comply with the requirements of paragraph (t)(2)(i) of this clause, or fails to perform the agreement at paragraph (t)(2)(i)(C) of this clause, and, in the absence of a properly executed novation or change-of-name agreement, the CCR information that shows the Contractor to be other than the Contractor indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer (EFT) clause of this contract.

(3) The Contractor shall not change the name or address for EFT payments or manual payments, as appropriate, in the CCR record to reflect an assignee for the purpose of assignment of claims (see Subpart 32.8, Assignment of Claims). Assignees shall be separately registered in the CCR database. Information provided to the Contractor's CCR record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor will be considered to be incorrect information within the meaning of the “Suspension of payment” paragraph of the EFT clause of this contract.

(4) Offerors and Contractors may obtain information on registration and annual confirmation requirements via the internet at http://www.ccr.gov or by calling 1-888-227-2423 or 269-961-5757.

(End of clause)

52.212-4 ADDENDUM

In accordance with FAR 12.301(e) and FAR 12.302, the following paragraphs, stating additional terms and conditions consistent with customary commercial practice and necessary for performance of the contract, are added to FAR 52.212-4.

(a) TUG COMPLEMENT: Each Tug shall have an efficient and legally sufficient complement of Tugmaster and crew with adequate training and experience in towage and operation of all of the Tug's equipment. Each Tugmaster and entire crew shall speak English fluently and possess valid and current certificates, licenses, and documents. Each Tugmaster and entire crew of the Tug 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 Contract. The Tugmaster of each Tug shall be under the direction of the Government as regards the employment of the Tug under a given order, but shall not be under Government's orders as regards navigation, care, and custody of the Tug.

(b) INSURANCE:

(1) General. During the full period of this Contract, Owner shall maintain and when requested shall furnish a Certificate of Insurance evidencing the insurance coverage. The expense for such insurance coverages shall be for the Owner’s account and shall be deemed to be included in the rates payable under this Contract. All deductible amounts shall be solely for the Owner’s account.

(2) Except as otherwise specifically provided herein, the Government shall not be liable for any loss, damage, calls, expense, cost, deductibles or liability whatsoever and howsoever incurred by the Owner or Tug, or which are imposed upon Owner or Tug by operation of law which is recoverable under any insurance carried by the Owner.

(3) Owner shall to the maximum extent practicable keep the Government through the Contracting Officer currently informed in writing as to the potential vitiation, suspension, lapse, or termination of any of Tugs insurance policies as a consequence of this Charter Party. All policies shall contain an endorsement stating that any cancellation or material change in the coverage adversely affecting the Government’s interest shall not be effective unless the Contractor provides written notice of the same to the Contracting Officer.

(4) The United States of America shall be named as an additional assured with waiver of subrogation under the Hull and Machinery policy (and under the Increased Value policy if applicable), and under the Tug’s Protection and Indemnity (P&I) entry.

(c) REPORTS/PLANS:

(1) In all instances in which any vessel being handled by Owner’s Tug(s) sustains damage or is involved in any incident resulting in damage to vessel(s) or property, or in bodily injury or death, Owner shall secure a report from the Master and Officer acting as pilot, or from any licensed pilot aboard the vessel being handled. Owner shall submit said report in triplicate to the Contracting Officer within twenty-four hours following said incident, reporting the facts, listing deaths, reporting the extent of damages or bodily injuries, and listing recommendations to prevent recurrence.

(2) Contractor shall submit a strike contingency plan and tug casualty plan describing how services will be provided in cases where there is a labor work stoppage or a severe casualty / system failure which renders one or more tugs inoperable. Plans must describe practicable solutions that will ensure timely completion of the required services. Updates shall be submitted, at least, yearly to the Contracting Officer.

(d) CONTRACT NOT A DEMISE: Nothing herein contained shall be construed as creating a demise of the Tug to the Government, the Owner under this Contract retaining complete and exclusive possession and control of the Tug and her navigation.

(e) SALVAGE: In performance of any mission while on-hire, the Contractor shall not make any claim for salvage. Any claim for salvage in contravention of this Contract shall be for the government’s account solely, and shall not in any way mitigate the Contractor’s breach.

(f) STANDARDS OF APPEARANCE: (MSC 5252.247-9864 (JAN 1998) (VARIATION) The Tug(s) operated under this Contract will operate in direct support of the U.S. Government and the Department of Defense; they must therefore meet the highest possible standards of appearance and Vessel smartness.

(g) LAWS GOVERNING: The laws of the United States shall govern this Contract.

(h) WAIVER OF CLAIMS: All requests for equitable adjustment to the Contract price and any other claims whatsoever for monies due under this Contract must be submitted to the Contracting Officer pursuant to the clause entitled “Disputes" within six (6) months of the termination of the Contract. All requests for equitable adjustment and any other claims whatsoever for monies due under this Contract that are not submitted within the six (6) month limit, shall be deemed to have been waived by the Contractor.

(i) GOVERNMENT WIDE COMMERCIAL PURCHASE CARD: In accordance with 52.232-36 the Govenrment may provide for the use of the Governmentwide commercial purchase card. If used the COR will identify the particular Government wide commercial purchase card to be used.

(j) LAWS GOVERNING: The laws of the United States shall govern this contract.

(k) GENERAL DEFINITIONS.

16. "Assisting" - Movement of a tow, which is making use of, or which has available for use, her own propulsion

17. "Associated Equipment" - Construed to include all Contractor-furnished or owned equipment necessary for performance under this Contract

18. "Crew" – Members of the Vessel(s) identified in rate schedule.

19. "Dry-docking" - For purposes of this Contract dry-docking shall mean any removal of the Vessel from the water for any purpose.

20. "Line-handling" - Movement or transportation of the tow's lines ashore by Tug's crew

21. "Master" – Master of the Vessel identified in the rate schedule

22. "Overtime" – As shown in statement of work.

23. "Owner" - That entity exercising commercial control of the Vessel(s) identified in the Rate Schedule; interchangeable with "contractor" and "offeror" and to include disponent owners and all the shipowner's and disponent owner's agents, employees, independent contractors, Master, Officers, and crew

24. "Owner's Representative" - See "Representative", below

25. "Place" - Any berth, dock, anchorage, submarine line, alongside any Vessel or lighter or any other place whatsoever to which Charterer is entitled to direct the Vessel hereunder

26. "Representative" - Foreman, superintendent, dispatcher, supervisor, or manager employed and designated by Owner to respond to Government requests for service under this Contract

27. "Straight Time" – As shown in Statement of work.

28. "Vessel/Vessels" - Those Vessels identified in the Rate Schedule and any other Vessel(s) accepted by the Government for use under this Contract (the word "Vessel" as used in this Contract is both plural and singular)

(End of clause)

52.212-5 CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS--COMMERCIAL ITEMS (JUNE 2008)

(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:

(1) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).

(2) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78).

(b) The Contractor shall comply with the FAR clauses in this paragraph (b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or Executive orders applicable to acquisitions of commercial items: (Contracting Officer check as…