Amendment_0002.pdf

ACQR3911316

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

N33191-16-R-1033 Amendment 0002

See continuation page

1. CONTRACT ID CODE PAGE OF PAGES

1 10

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

16C. DATE SIGNED

BY 09-May-2016

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 N33191-16-R-1033

X 9B. DATED (SEE ITEM 11)

16-Mar-2016

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 X is extended, 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

09-May-2016

CODE

NAVFAC EUROPE AFRICA SOUTHWEST ASIA

PSC 817 BOX 51

FPO AE 09622-0051

N33191 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

N33191-16-R-1033

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 0002

The purpose of Amendment 0002 is as follows:

1. Provide Government responses to fifteen (15) Pre-Proposal Inquiries.

2. Change the Proposal due date from May 11, 2016 at 9:00 a.m. local Naples, Italy time to May 16, at 9:00 A.M.

local Naples, Italy time.

Question 1: Pursuant to the regulations published by the Romanian Energy Regulatory Authority (ANRE), specifically Order no. 64/2014 for the approval of the Regulations for the supply of electricity to the end consumers published in the Official Journal of Romania Part I no. 544 dated 23rd of July 2014, Chapter V, Section 6, Art. 59, paragraph (4) the supplier is entitled to send to the commercial end consumer a notice for the cut-off of the electricity supply, at least 5 working days before, for not paying the invoices issued by the supplier.

Pursuant to the regulations issued by the Romanian Energy Regulatory Authority (ANRE), specifically Order no.

64/2014 for the approval of the Regulations for the supply of electricity to the end consumers published in the Official Journal of Romania Part I no. 544 dated 23rd of July 2014, Chapter XX, Section 1, Art. 115 and Section 2, Art. 116 the network operator is obliged to program and perform the maintenance works, overhaul, repair of its own installations through which it performs the supply of electricity of the end consumers and also the transport operator may propose the limitation of the supply of electricity under exceptional circumstances occurred in the operation of the National Energy System.

We are kindly asking you to amend the referenced paragraph as follows:

“The supply shall be continuous and non-interruptible, except when the Client fails to pay the invoices issued by the Contractor within their respective due date or when the interruptions in the supply of electricity are enforced by the network or the transport operator in accordance with the regulations issued by the Romanian Energy Regulatory Authority (ANRE) and other regulations into force in Romania in the electricity domain”.

Answer Question 1: As a result of this question, the following langauge will be added to the beginning of article 3:

In the event that the service must be disrupted, the supplier must provide a seven working days’ notice to the client informing them of the time and duration of the power disruption.

The supply shall be continuous and non-interruptible regardless of whether the Client fails to pay the invoices issued by the contractor within their respective due dates. The U.S. Government is fully guaranteed and the Contractor has remedies for late payment and/or non-payment by the U.S. Government. Having working electricity is mission critical to the U.S. Government and its installations. In no event may the supplier unilaterally stop service either for failure to pay invoices or any other reason.

Question 2: We are kindly asking you to provide in the RFP for the obligation of the Client to submit to the Contractor a bank guarantee for an amount equivalent to amount of the guarantee to be issued by the Contractor to the Client. In case this amendment of the RFP is not accepted by the Client, we are asking you to eliminate from the RPF the requirement that the Contractor is bound to submit the bank guarantee.

We are kindly asking you to correlate the validity date of the bank guarantee with the provisions of Art. 3 Duration and validity of the guarantee. Termination, form J 200000 05 included in the RFP, page 27, that is the guarantee to be effective through the last contract day, June 30, 2018.

Answer to Question 2: This requirement will not be omitted from the RFP. The bank guarantee must be effective from the start of the contract on July 1, 2016 to the end of the contract, June 30, 2018.

Question 3: We are kindly asking you to specify all the taxes of which the Client is exempted, and the legal basis of this exemption (with specific regard, but not limited to the excise duty, the contribution for the high efficiency cogeneration, and the value of the green certificates for the electricity consumption).

Answer to Question 3: The U.S. Government is exempted from ALL taxes per the Romania SOFA agreement (2001) Article X Official Tax Exemptions, exempts US forces and its contractors “shall not be subject to direct or indirect taxation.” A specific list of every tax will not be provided as the U.S. is exempt from any and all taxes for the purpose of this solicitation.

Question 4: We are kindly asking you to add the following text in the end of paragraph 1: “[…], provided that the Client sends to the Contractor its firm demand of electrical energy for the respective day [D] day, including Saturdays and Sundays, by 10:00 AM of previous day [D-1]”.

Answer to Question 4: Article 7 will remain as is.

Question 5: We are kindly asking you to include in the documents regulating the electricity domain in Romania other applicable regulations and laws, in addition to the Romanian Civil Code and the regulations of ANRE, for instance Law no. 123/2012.

Answer to Question 5: It is the contractor’s responsibility to adhere to all applicable regulations and laws. All laws and regulations will not be provided in this solicitation.

Question 6: We are kindly asking you to replace the contents of Article 11 as follows:

If following the signing of the contract, a change of circumstances occurs that may trigger the increase / decrease of the costs for the Client / Contractor, the Parties may modify the contract price by signing of Addendums agreed by the Parties, so that to allow the complete recovery of the supplementary costs by the Client / Contractor. The contractual terms based on the provisions of the law are modified by default on the date of coming into force of the respective laws. In this case, the Contractor has the obligation to notify to the Client the occurred modifications. In case of the changes in the regulated tariffs, the notification is considered as having been made inclusively by writing of these modifications on the invoice representing the value of the electricity supply service.

Answer to Question 6: Article 11 will remain as is. This article allows for the both the supplier and the client to come together and mutually agree on changes in the contract due to an event that rules and regulations issued and enforced by regulatory bodies.

Question 7: We are kindly asking you to remove the references to the US Romania SOFA Supplemental Agreement (2001) as the contract pursuant to RFP: N33191-16-R-1033 shall be signed between the Client and a private company.

Answer to Question 7: US Romania SOFA Supplemental Agreement (2001) will remain in the contract as is. It carries the full force of law. All Romanian companies doing work on U.S. military installations or on a U.S.

contract must abide by the SOFA agreement.

Question 8: We are kindly asking you to modify the jurisdiction applicable in case of delayed payment over the due term, from United States law so that Romanian law is applicable, since the supply will take place on Romanian territory. If the Client has overdue payments and, as a result, the Supplier is forced to default on its payments to the fiscal authorities, the Supplier will incur pecuniary penalties from such authorities, as per Romanian legislation.

Answer to Question 8: This section will remain as is.

Question 9: We are kindly asking you to modify the first paragraph so that the Client will have the right to unilaterally terminate the contract, for convenience, with a 6-month advance notice.

Please clarify the method of calculation of the fair compensation of provable irretrievable costs afforded or to be afforded by the other party until the set contract expiration.

Answer to Question 9: This section will remain as is. The calculation of the fair compensation of provable irretrievable costs will be based on actual cost that the Client or Supplier can prove to the other party.

Question 10: For contractual equilibrium, we are kindly asking you to modify Article 18 so that it will include also a right for the Supplier to terminate the supply agreement, due to the Client`s default. Therefore, after the end of the initial text of Article 18, the following shall be added:

“The Contractor can terminate the contract by giving the Client a written notice by registered mail in should any of the following conditions occur:

1. repeated (at least twice in a year) failure to pay the value of the electricity supplied under the conditions established and the related penalties.

2. the consumer's refusal to update the existing contract when there is a change in legal provisions, in the technical and economic conditions, in the circumstances, or in the evolution of the market, with 30 calendar days prior notice.

3. in case of fraudulent consumption, without any formality and without notice.”

Answer to Question 10: This section will remain as is.

Question 11: We are kindly asking you to replace the contents of Article 20 as follows:

Art.20 - (1) The parties are exonerated of any liability for the full or partial non-execution of the obligations as per this agreement, should it be the result of a force majeure event. Force Majeure is defined as an event beyond the control of the Party invoking it, which could not have been avoided or averted by it and which occurred after this Agreement was enforced, and whose effects are able to stop the Party invoking it from fully or partially executing its obligations as per this Agreement.

(2) The Party invoking the force majeure event must notify in writing the other party in this respect within 48 hours of its occurrence; the proving written document issued by the Romanian Chamber of Commerce and Industry must be produced within 30 days by such party.

Answer to Question 11: This section will remain as is.

Question 12: We are kindly asking you to remove the contents of the last line, specifically to remove the following texts: “Approved in writing by the Contracting Officer; Made in accordance with the laws and regulations of the United States of America”

Answer to Question 12: This section will remain as is.

Question 13: We are asking you to modify the first paragraph of Art. 1 Obligations as follows:

“On behalf of the SUPPLIER the BANK irrevocably and unconditionally guarantees the CLIENT up to a maximum amount of 760,000.00 Romanian new Lei (RON), including capital, VAT, duties and taxes, accessories, as applicable and other CLIENT’s requests, assuming autonomous obligation of guarantee towards the CLIENT in the agreed terms, provided that the CLIENT submits to the bank a declaration attesting to the fact that (i) the CLIENT has fulfilled all contractual obligations, and (ii) the SUPPLIER has defaulted on its contractual obligations.”

Answer to Question 13: This section will remain as is.

Question 14: We are asking you to remove the obligation of the Contractor to submit amongst the documents for the non-price factors the two Letters of Reference, the reason for our request being that the Contractor shall immobilize significant financial resources during the request of proposal, whilst the Letter of reference is required during the period of performance of the Contract.

Answer to Question 14: This requirement will not be removed. A reference is a statement attesting that the contractor has the financial strength to perform the contract. There are no resources that need to be immobilized for a reference. The bank guarantee itself will be provided by the contractor after award.

Question 15: Please confirm that the voltage at the point of delivery for which the Contract shall be signed is MT (medium voltage).

Answer to Question 15: The voltage at the point of delivery for this contract is MT (medium voltage).

SECTION C - DESCRIPTIONS AND SPECIFICATIONS

The following have been modified:

SCOPE OF WORK

Article 1. Object of the Contract

Navy Facilities Engineering Command Europe Africa South West Asia (NAVFAC EURAFSWA) is the Government agent delegated to procure electricity for the supply and delivery of electricity to United States of America Department of Defense (DoD) accounts located at Deveselu, Romania, for a period of 24 months. The site began using commercial power in 2015. The site is not fully operational and the load is expected to increase over the term of this contract. Historic data provided is not expected to represent future capacity requirements.

January 2016 consumption was 1.1 GWh. Additionally, there is approximately 1 MW of generator supplied electricity with an average of 350 kWh per hour and peak of 625 kWh in January 2016. This load is expected to be transferred to this contract and is included in the projected load. Historic data files are provided in J-200000-08_datafile.

The power, supply voltage and projected load profiles are provided in J-200000-02.

The present solicitation procedure aims to select one supplier to provide for the commodity (electricity) and the transport (through the local provider) of electricity to Deveselu, Romania.

The period of performance will be from 0000 hours (local Romanian time) 01 July 2016 to 2400 hours (local Romanian time) 30 June 2018.

Contractor is required to submit a bank guarantee in the amount specified in J-200000-03 for the supply of electricity that it has been awarded. The bank guarantee, whose language is provided in J-200000-05, shall be submitted no later than 15 calendar days after contract award and shall be valid through the end of the performance period.

The Contractor shall establish the terms of contracts with transmission operator, the local distributor or other subjects involved in the supply management; in particular, the Contractor shall be responsible for electricity transmission and distribution contracts for the delivery point in accordance with the Romanian Energy Regulatory Authority (ANRE).

The Contractor shall designate at least two points of contact (a prime and a deputy) to be responsible for all the public relations with the Client. The point of contact shall not be a Call Center. No later than 15 working days prior to the start of services, the Contractor shall notify the contracting officer via email; the name, email address and telephone numbers of the designee(s) to the Client’s points of contact shown in block 10 of the SF33 (first page). Should a designee be replaced, the Contractor shall provide the new point of contact data to the Client within 5 working days.

Contracting Officer: Paul.Heavey@eu.navy.mil

Failure to provide points of contact will be addressed by the procedures in Article 19.

Article 2. Communication and Contract Modifications

Communication between the Contractor and Contracting Officer concerning the contract will be issued in a written format.

The Contractor is required to address correspondence to:

NAVFAC EURAFSWA – Acquisitions Viale Porto, Box 51 – Aeroporto Capodichino 80144 Napoli, Italia

The Contractor shall ensure that all contract correspondence addressed to the Client is submitted in both Romanian and English.

Article 3. Conditions of the Supply

The supply shall be continuous and non-interruptible.

In the event that the service must be disrupted, the supplier must provide a seven working days’ notice to the client informing them of the time and duration of the power disruption.

The quantity of the electricity under contract provisions is subject to ordinary variations due to different causes. However, this occurrence shall by no means represent a reason for failure to deliver nor justify any Contractor’s claims against the Government.

The quantities of supplies specified in the J-200000-02 are estimates only and are not purchased in advance (take or pay) through this contract. The Contractor shall not request any revision to prices if, at the completion of the billing month, consumption resulted in lower usage than the Client’s estimate. At the same time, should consumption be higher than estimated, the Client is not eligible for any discount at the completion of the billing month.

For each delivery point through the duration of this contract, the Contractor shall make the following available to the Client by the 10th of every month (this is subject to the data submission from the Distributor) through a secure Website using a personal password or through email sent to the email addresses listed at Article. 14 (ii):

-metered data monthly summary and, daily consumption, divided by demand and consumption data for all the calendar months preceding the current month, reported in table/spreadsheet format;

Interval data such as hourly, 15 minutes, or other available interval, reported in a text or spreadsheet format.

Failure to meet these terms will be addressed by the procedure in Article 19.

The Client agrees to purchase and pay for the total quantity supplied by the Contractor as recorded by the Distributor’s official meters at the agreed contract prices.

Payments will be performed, unless differently agreed upon by the Parties, via bank transfer through the proper Payment Offices as listed in Art. 13. Any future changes of the IBAN code shall be timely notified on Company’s letterhead and anticipated via email to the addresses listed in Article 13.

Article 4. Bank Guarantees

The successful offeror will be required to submit a bank guarantee (the text is provided in J- 200000-05 for the amount determined in J-200000-06) 15 calendar days after contract award.

The bank guarantee will be valid through 31 January 2019 and will be payable on a written first -demand basis. This demand will occur if the contract is terminated in accordance with Article 18.

Article 5. Addition and Termination of Services

Under this contract the Client is entitled to request delivery of electricity to additional service points. The service will start on the first day of the month following the standard period required as advance notice for supplying a new account. In such event, the Client shall acknowledge the addition through the bilateral execution of a modification including the new facility’s requirements.

Under these contract provisions the Client is entitled to request the termination of the supply to any delivery point effective the first day of the month following the period required as advance notice following the request. This is in compliance with the electrical distribution regulations in force. The Client shall execute a contract modification to acknowledge the termination.

The Contractor shall accept these additional or deleted service points keeping the same contract prices and conditions of the current contract, provided that such changes do not cause an increase or decrease of the annual consumption that is more or less than 7%.

The Contractor shall show evidence of timely actions to process requests for daily capacity increases, new activations, contract transfers, terminations etc. by forwarding a copy of the relevant application/correspondence submitted to the agencies concerned, such as the Distributor, the Transporter, or other appropriate agency, to the Contracting Officer within 5 working days from issuance. Failure to meet this requirement will result in the action described at Article19.

Article 6. Unit Price of Supply

The Offeror shall submit a pricing offer, called “Base Offer”, stated as follows:

A Firm Fixed Price per kWh consumed through the entire performance period applicable for each point of delivery specified in J-200000-02. This price, in lei/kWh, shall not be averaged by month and must be specified by the time of use as identified in section J-200000-04.

The prices shall include

All electric charges except tariffs, duties or regulated pass through charges as described in the next paragraph.

The prices shall not include:

Tariffs, duties (reference article 12), or regulated pass through charges. A regulated pass through charge must be tied to parameters that are: (1) dependent on end user account characteristics (such as kWh or kW) and NOT dependent on Contractor supply characteristics (e.g. injection point of generation) and (2) regulated rates. Charges described in Article 9 herein are examples of regulated rates. These shall be submitted in accordance of section L, on J-200000-07; Regulated Charges Information Form.

Article 7. Special Provisions

No adjustments shall be provided as a consequence of actual total volumes different from the estimated volumes outlined in J-200000-04. Any adjustment to the transport tariff (regulated) that may occur during the term of this contract shall be applied giving notification through a separate communication to the addresses listed at Article 2. Such variations shall be applied with respect to the values in force at the date of the price offer. No adjustment to any other charge related to service forecast may occur during the term of this contract, shall be applied.

No guarantee deposit or bank guarantee shall be requested or charged to the Client by the Supplier.

Article 8. Offer Conditions and Award Criteria

Receipt of Offeror’s Non-price and Pricing Offers for all Areas are due as described in section L.

The Offeror shall submit a Pricing Offer in accordance with Article 6. The award criterion and evaluation factors are described in section M.

Article 9. Price and Conditions of Distribution Services and Additional Costs

The Contractor will invoice the Client for the distribution service with no additional charges and with a level of detail which is consistent with the standards of transparency and billing dictated by the Romanian Energy Regulatory Authority (ANRE).

The Regulated Charges Information Form (J-200000-07) shall represent all applicable pass through charges, and only these shall be accepted during the period of performance. This is subject to a legislatively approved change to pass through charges.

Article 10. Reference Provisions (norm, standard and regulation)

The regulation of electricity in Romania, to include supply, transportation and distribution, will be governed by the Romanian Civil Code. Rules and regulations implemented and/or approved by ANRE and other governing bodies, for the purposes of electrical distribution regulation shall be adhered to and strictly enforced.

For the issues not explicitly provided for in the contract the Client and Contractor agree to accept the provisions contained in the ANRE resolutions and in the Romanian Civil Code.

Article 11. Change in rates or terms and conditions for regulated services

In the event that rules and regulations issued and enforced by regulatory bodies should affect the supply contract terms, the Contractor and the Client negotiate a modification in order to comply with the requirements within 60 days from one Party’s request to the other Party.

In case the modifications introduced within the context of the new regulations should affect the mutual interest of the Parties to such an extent as to cause damage to the Parties, within 60 days from one Party’s request to the other Party. The Contractor and the Client will negotiate a modification to protect the interests of both parties.

(End of Summary of Changes)