N33191-18-R-0613_Amendment_0001.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

Amendment 0001 is being issued to Update Language and answ er Pre-Proposal Inquiries (PPIs) as w ell as extend the proposal submission date from 10:00 AM Central European Time on Monday, April 9th 2018 to 2:00 PM Central European Time on Monday, April 9th 2018.

1. CONTRACT ID CODE PAGE OF PAGES

J 1 27

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

16C. DATE SIGNED

BY 28-Mar-2018

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 N3319118R0613

X 9B. DATED (SEE ITEM 11)

08-Mar-2018

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

28-Mar-2018

CODE

NAVFAC EUROPE AFRICA SOUTHWEST ASIA

VIALE PORTO CAPODICHINO

NAPOLI 80144

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

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

N3319118R0613

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION C - DESCRIPTIONS AND SPECIFICATIONS

The following have been added by full text:

AMENDMENT 01

The purpose of Amendment 0001 is as follows:

1. Provide Government responses to two (2) Pre-Proposal Inquiries.

2. Extend the proposal time by four hours from 10:00 am Central European Time (CET) on Monday, April 9th 2018 to 2:00 PM Central European Time (CET) on Monday, April 9th 2018.

3. Make minor corrections to solicitation language.

1. PRE-PROPOSAL INQUIRIES:

Question 1: We required to know which documents are necessary to participle in that proposal

Answer to Question 1:The offeror shall submit the following information:

(1) Technical Proposal Submission:

In accordance with Section M submit all Technical factor requirements by 9 April 2018, 2:00 p.m. Central European Time (CET). The Technical Proposal Submission shall consist of the following:

a. Cover Letter, SAM and SF33

b. Completed Form D

c. Letters of Reference

d. Sample High Voltage Invoice and completed Table of Costs

e. Energy Vendor Qualification For clarification of each item above, see Section M.

(2) Pricing Submission:

In accordance with Section M submit price offer by 9 April 2018, 2:00 p.m.

Central European Time (CET). The Pricing Submission shall consist of the following:

a. A completed J-200000-05. The submitted J-200000-05 must have proposed prices for each Time Band.

b. A statement that the offeror agrees to hold prices for 5 business days from the date specified for the receipt of prices.

Question 2: According to RFP (page 35) every offeror should submit the Attachment J-200000-08 but the data that appears on J-200000-03 does not contain information regarding Jan 2018. It would be great if you could upload real data about this month. Nonetheless, we will use Jan16 & Jan17 average as the best option in case that data is not available. We will use this consumption data in section PART A.

Answer to Question 2: The solicitation shows in the Section M - Paragraph: EVALUATION FACTORS FOR AWARD - Item: B. BASIS OF EVALUATION AND SUBMITTAL REQUIREMENTS FOR EACH FACTOR - Technical factor (4) - (page35) the correct attachment reference (J-200000-04). The J-200000-04 "January 2018

15-minute Interval Data" is correctly included and published with other attachments. The offeror should use J- 200000-04 for the January 2018 data.

2. PROPOSAL EXTENSION:

The proposal submission is hereby extended from 10:00 am Central European Time (CET) on Monday, April 9th 2018 to 2:00 PM Central European Time (CET) on Monday, April 9th 2018.

3. The solicitation is hereby updated as shown below:

The following have been modified:

STATEMENT OF WORK

NAVFAC EURAFSWA is the Government agent delegated to procure electricity for the U.S. Navy in Spain.

The Government is soliciting offers for supply and transmission of electricity and ancillary services for the Naval Station (NS) Rota whose location in the electrical grid is identified by the NIF/CIF N4001073H and CUPS ES0031102555053001GD0F belonging to Endesa Distribución Electrica S.L.U, the sole electric distribution company with Spanish government jurisdiction to provide local distribution services in the region. NS Rota shares the Spanish Navy Base (Agrupación Base Naval de Rota) and is located in Rota, Cadiz. Account data and technical specifications for the point of service, including historical hourly and projected monthly electric consumption are provided in Section J.

The estimated amount of energy to be provided is 272,315 MWh (mega-watt hours). The contractor shall furnish all labor, management, supervision, tools, materials, equipment, incidental engineering and transportation, except otherwise specified herein, necessary to perform these services.

The present solicitation intends to select one supplier to provide electricity to NS Rota over the 36- month period May 1, 2018 – April 30, 2021.

To this purpose the Government states:

… That the Government’s supply contract is not subject to any restriction that would prevent the Contractor from starting the supply at the set date.

… That the point of service is connected to the Distributor’s grid, and that these connections are adequately configured to meet energy requirements.

The Instructions, Conditions and Notices to Bidders and the Evaluation Factors for Award are provided in detail under Sections L and M of this Solicitation.

Upon execution of the contract, the Government authorizes and the Contractor agrees to establish an access tariff contract with the Distributor, including 16 MW of peak demand capacity, on the Government’s behalf.

The Contractor shall designate at least two points of contact (a prime and an alternate) to be responsible for all customer service matters with the Government. The points of contact shall not be a Call Center.

Not later than 10 working days prior to the commencement of the performance period, the Contractor shall notify the Government, via email, the name, email address and telephone numbers of the Government’s points of contact shown in block 10 of the SF33 (first page) or at Article 11. Should a point of contact be replaced, the Contractor shall provide the new reference data to the Government within 5 working days. Failure to meet these terms will be governed by the procedure in Article 15.

Article 1. Communication and Contract Modifications Communication between the Parties concerning contract administration and modifications will be conducted in writing. Such communication will be sent by mail or email with all correspondence attached in .pdf format.

If corresponding via mail, the Contractor is required to address correspondence to:

NAVFAC EURAFSWA

Acquisition Support Line ATTN: Contracting Officer Viale Porto, Box 51 – Aeroporto Capodichino 80144 Napoli, Italia

If corresponding via email or phone, use the POC in block 10 of SF33 (first page).

The Contractor shall ensure that all contract correspondence that is addressed to the Government is submitted in English, or English and Spanish.

Each modification to the contract shall be performed through the bilateral completion of the Standard Form 30 (SF30), by Government and Contractor.

The Government shall issue an SF30 to the Contractor who will countersign and return to the Government within 2 weeks by email in .pdf format.

Article 2. Conditions of the Supply and Transmission of Electricity and Ancillary Services The electricity supply shall be continuous and non-interruptible. The quantity of electricity consumed under the contract is subject to ordinary variations due to various causes. Such variations shall not justify reason for failure to deliver electricity nor justify any Contractor claims against the Government.

The quantities of electricity specified in Attachment J-200000-02, Projected Monthly Electric Consumption, are estimates only and do not limit or obligate purchases by Government. The Contractor shall not request any revision to prices if, at the completion of the billing month, consumption resulted in lower or higher usage than the Government’s estimate. Likewise, should consumption be higher than estimated, the Government shall not request any discount at the completion of the billing month.

The Government only agrees to purchase and pay for electricity supplied by the Contractor as recorded by the Distributor’s official meters and at the agreed contract prices. Transmission, distribution and ancillary services will be invoiced by the Contractor, without markup, as indicated in Article 4.

Upon execution of the contract, the Government authorizes and the Contractor agrees to establish an access tariff contract with the Distributor, on the Government’s behalf as described in the Statement of Work.

Through the duration of the contract, the Contractor shall make the following available to the Government by the 10th of every month, through a secure website using a password unique to the Government:

… hourly and 15-minute consumption data in table format.

… monthly summary demand and consumption data for all the calendar months preceding the current month, in the format found in Attachment J-200000-02.

Unless otherwise agreed to by both Parties, payments will be made via bank transfer through NS Rota Payment Office as detailed in Article 11.

Article 3. Period of Performance The contract performance shall begin on May 1, 2018 at 00:00. The contract performance period ends on April 30, 2021 at 24:00.

Article 4. Unit Price of Supply

The Offeror shall submit a pricing proposal, as follows:

A firm-fixed Offer Price on Attachment J-200000-05, Firm-Fixed Price Form, will include a €/MWh price for each year of the performance period and every Time Band, as indicated in Attachment J-200000-01, Definitions and Acronyms.

Offer Price shall NOT include:

… Peajes de Acceso (Access Tariffs).

… Termino de Potencia (Power Demand Term) (kW).

… Termino de Energia (Energy Cost Term) (kWh).

… Pago por Capacidad (Capacity Payments).

… Retribución del Operador del Mercado (Remuneration of the Market Operator).

… Retribución del Operador del Sistema (Remuneration of the System Operator).

… Coste del Servicio de Interrumpibilidad (Interruptibility Service Cost).

… Pérdidas (Losses).

… Alquiler de Medidores (Meter Rental).

… Complemento por Consumo de Reactiva (Supplement for Reactive Power Consumption).

… Penalizaciones por Excesos de Potencia (Excess Demand Penalty).

Offer Price shall also NOT include any taxes to which the United States Government is exempt (see Articles 10 and

11) as the listed below or otherwise:

… Impuesto Municipal (Municipal Tax).

Offer Price of electricity shall also include:

… Costs associated with the application of Directive 2009/29/EC and Orden IET/697/2015.

… Cost associated with the application of the Directive 2012/27/UE.

… Mercados de Compra de Energía y Servicios Complementarios y Restricciones (Energy including Ancillary Services).

… Imbalance costs and any other dispatch costs related to scheduling of deliveries; and, costs relevant to holding the necessary authorizations, in accordance with current legislation, to subscribe on behalf of the Government, to purchase transportation rights, production capacity at national level and import of energy from foreign markets.

Article 5. Offer Conditions and Award Criteria Receipt of Offeror’s Technical and Pricing Offers are due as described in Section L.

The basis for award is found in Section M.

Article 6. Letters of Reference and Bank Guarantee In order to participate in the present Solicitation, the Offeror must submit two letters of reference issued by two different credit institutions or authorized brokers. Such bank references shall state the Offeror’s financial capability to acquire the required Bank Guarantee in case of award.

The subject line for each Letter of Reference shall include the Solicitation number N33191-18-R-0613.

The Awarded Offeror will be required to sign and submit a Bank Guarantee in the amount of €250,000 within ten business days after contract award. Sample text can be found in Attachment J-2000000-07, Sample Bank Guarantee.

The Bank Guarantee will be valid through October 31, 2021, six months after the end of the period of performance, and will be payable on a written first-demand basis. Additionally, the Government will retain physical possession of the Bank Guarantee. The Government may make a written first-demand should the Contractor default per Article 15.

Article 7. Reference Provisions The regulation of electricity in Spain, to include supply, transportation and distribution, is governed by the Spanish Civil Code. The Contractor will adhere to the rules and regulations implemented by Ministerio de Energía, Turismo y Agenda Digital (Ministry of Industry, Tourism, and Digital Agenda) (MINETAD), Comisión Nacional de los Mercados y la Competencia (National Commission for Markets and Competition) (CNMC) and other governing bodies, for the purposes of electricity regulation.

For the issues not explicitly provided for in the contract, both Parties agree to accept the provisions contained in the regulatory body’s resolutions and in the Códico Civile (Spanish Civil Code).

Article 8. Change in 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 Government will negotiate modifications in order to comply with the requirements within 60 days from one Party’s request to the other Party.

Article 9. Taxes and Duties The Contractor represents that the contract price, including subcontract prices, do not include the taxes identified herein, or any other taxes from which the United States Government is exempt.

In accordance with tax relief agreements between the United States Government and the Spanish Government, and because the incumbent contract arises from the activities of the United States Forces in Spain, the contract will be exempt from the following excise, luxury, and transaction taxes, or any other taxes from which the United States Government is exempt:

(1) Derechos de Aduana (Customs Duties)

(2) Impuesto de Compensacion a la Importacion (Compensation Tax on Imports)

(3) Transmissiones Patrionomiales (Property Transfer Tax)

(4) Impuesto Sobre el Lujo (Luxury Tax)

(5) Actos Juridocos Documentados (Legal Official Transactions)

(6) Impuesto sobre el Trafico de Empresas (Business Trade Tax)

(7) Impuesto Especiales de Fabricacion (Special Products Tax)

(8) Impuesto Sobre el Petroleo y Derivados (Tax on Petroleum and its By-Products)

(9) Impuesto Sobre el Uso de Telefona (Telephone Tax)

(10) Impuesto General Sobre la Renta de Sociedades y demas Entidades Juridicas (General Corporation Income Tax)

(11) Impuesto Industrial (Industrial Tax)

(12) Impuesto de Rentas Sobre el Capital (Capital Gains Tax)

(13) Plus Vailia (Increase on Real Property)

(14) Contribucion Territorial Urbana (Metropolitan Real Estate Tax)

(15) Contribucion Territorial Rustica y Pecuaria (Farmland Real Estate Tax)

(16) Impuestos de la Diputacion (Country Service Charges)

(17) Impuestos Municipal y Tasas Parafiscales (Municipal Tax and Charges)

(18) IVA (VAT)

(19) Impuesto sobre electricidad

Article 10. Invoice and Payment The Contractor may only invoice for charges allowed under the terms and conditions of the contract. All expenses relevant to invoicing, including stamps and mailing costs, shall be the Contractor’s responsibility and shall be included in the offered price. If such costs are broken out and included on any invoice, the costs will not be reimbursable. All invoicing shall be based on metered quantities at the service point.

In the event the Distributor has not performed a meter reading on the account, the Contractor shall invoice on the basis of the estimated monthly consumption as per Attachment J-200000-02, Projected Monthly Electric Consumption, column “Electrical Energy Consumption Monthly Forecast.” Estimated bills shall be reconciled with actual readings on the first billing cycle after the Distributor bill is made available. The resulting debits or credits will be applied to the next invoice produced by the Contractor and must be clearly represented on the invoice.

Where feasible, during months when the Distributor’s information is missing, agreements may be reached between the Government and Contractor to have invoices based on Government readings at no additional cost to either Party.

The Contactor shall NOT issue credit notes, as the U.S. Government cannot accept credit notes under any circumstance. Any credit due to the Government shall be reimbursed through credits to the relevant account, on the next invoice, and deducted from the total amount due. Should there be credits due to the Government at the time the contract expires, or if unexpectedly terminated, the credits will be reimbursed to the U.S. Government via banker's draft made payable to the U.S. Treasury and forwarded to the NAVFAC EURAFSWA POC specified in Article 1.

Invoices shall be issued to the Government by the 20th day of the month following the month when the consumption occurred.

The payment of invoices by the Government will be made within 30 calendar days after e-mail receipt of a proper invoice by the office designated in Article 11.

Invoices submitted in accordance with the terms and conditions of the contract shall be exclusive of all taxes or duties for which relief is available, as described at Article 9.

In case the Government detects errors or inaccuracies in the invoices and gives written notice to the Contractor, such invoices will be put on hold until the issue is settled and no charge for late payment will be assessed by the Contractor.

ARTICLE 11. Submission and Payment of Invoices The Contractor will submit paper invoices to the following address:

U.S. Naval Station Rota Central T. Ed 64 Apartado 33/BOX 9

11.530 Base Naval de Rota

In addition to paper invoices, the Contractor shall send a digitally signed email with a pdf version of the invoice attached to each individual below:

Jose Perez Rodriguez Jose.PerezRodrigu.SP@eu.navy.mil Manuel Marquez Acuña Manuel.MarquezAcu.SP@eu.navy.mil Juan Antonio Ayllon Gonzalez JuanAntonio.Ayllo.SP@eu.navy.mil Alfredo Menendez Gonzalez Alfredo.menendezg.sp@eu.navy.mil Point of Contact shown in block 10 of the SF33

The official invoice receipt date will be the date the Government receives the email.

The payment of the invoices will be made by the following Government Office within 30 calendar days upon receipt of a proper invoice:

Commercial Bill Paying Office U.S. Naval Station Rota

The Contractor is required to provide the Government with the information necessary to make payment via bank transfer. Within 15 working days after award, the Contractor shall send a digitally signed e-mail with this information directly to the points of contact shown in block 10 of the SF33 (first page) with copy to the Contracting Officer.

The Contractor is required to promptly notify the Contracting Officer of any change affecting the way the payment of invoices must be performed.

Except as required in Article 6, the Government will not be required to submit any deposit, bank or insurance guarantee.

SECTION I - CONTRACT CLAUSES

CONTRACT CLAUSES

Article 12. Joint Ventures Agreement FOR THE PURPOSES OF THIS SOLICITATION, A JOINT VENTURE (JV) REFERS TO A U.S.-STYLED

FORMAL LEGAL ENTITY IN THE NATURE OF A PARTNERSHIP COMPRISED OF TWO OR MORE

PERSONS OR COMPANIES. EACH JOINT VENTURE MUST PROVIDE ONE (1) CAGE/NCAGE CODE, ONE

(1) DUNS NUMBER FOR THE JOINT VENTURE AND ONE (1) DUNS NUMBER FOR EACH MEMBER

COMPRISING THE JOINT VENTURE. EACH JOINT VENTURE MUST BE REGISTERED IN THE CCR

USING THE NAME OF THE JOINT VENTURE.

Joint Venture Offerors (JV) , shall provide with their proposal a notarized legal document that establishes the JV.

The JV Agreement shall take effect upon the submission of the proposal and remain irrevocable until one (1) year after the work has been finally inspected and accepted by the Government. Submission of the notarized legal document that establishes the JV shall be furnished with the proposal in its original language version along with a certified English translation of the notarized JV document. The Joint Venture must be formed and valid at the time of submission of the proposal. The validated notarized legal document must include language that each member of the JV will be jointly and severally liable for the performance of the whole contract and will be incorporated into the contract award if award is made to the JV.

The Joint Venture Agreement shall include, at a minimum, the following:

(a) Name of firms that form the JV and the name of the JV.

(b) Name and title of the corporate officials signing on behalf of each party.

(c) Solicitation number.

(d) Description of the responsibilities in terms of work category for each member (for example: Firm A performing 100% of work).

(e) The statement "The composition and structure of the JV will remain unchanged from award to one (1) year after contract completion.”

(f) Date of issuance of the agreement and notarized signature of the corporate officials signing in behalf of each party.

(g) Statement under oath stating that the Joint Venture(JV) is in compliance at the time of proposal submission with all applicable laws, rules, and regulations. This statement must be signed under oath by all members comprising the Joint Venture.

(i) Have appropriate vendor registration as required in Section M.

The U.S. Government reserves the right to review the actual JV Agreement, to determine its basis and compliance with the applicable laws. Any internal agreements affecting the internal composition of the existing JV and its potential liabilities in relation to the contract (performance guarantee, insurance, etc) will be sent to the Contracting Officer to provide notice of the same. Any change in the composition of the JV will require the JV to formally request a Novation Agreement in accordance with FAR 42.12, which will be approved/disapproved at the discretion of the Contracting Officer.

System for Award Management:

1. System for Award Management (SAM) registration is required for all Offerors, including Joint Venture (JV) Offerors (registration must state the NAME of the JV). SAM registration can be accomplished at https://www.sam.gov . Offerors not currently registered in SAM shall obtain a DUN & Bradstreet (DUNS) number and a CAGE or NCAGE prior to registering in SAM.

2. A DUNS number is required for all Offerors, including JV Offerors. In addition to the DUNS number required for JV Offerors, JV Offerors must provide a DUNS number for each member comprising the JV. DUNS numbers can be obtained at http://fedgov.dnb.com/webform . The DUNS number is required in order to register in

SAM.

3. Offerors must be registered in the SAM prior to the submission of proposals. If the Offeror is not currently active in SAM, then the Offeror must provide proof of registration with their price proposal submission. SAM registration must be active in order to be considered for award.

Cage/NCage Code:

1. A CAGE/NGAGE Code is required for all Offerors, including JV Offerors. JV Offerors must acquire a CAGE/NCAGE Code registered in the JV name.

2. U.S. Offerors, including Joint Venture Offerors: U.S. Offerors must obtain a CAGE Code prior to registering in the SAM database, which is part of the SAM registration process.

4. Non-U.S. (foreign) Offerors ONLY: Non-U.S. Offerors must obtain a NATO CAGE (NCAGE) Code instead of a CAGE Code prior to registering in the SAM database. NCAGE codes may be obtained at the NCAGE website http://www.dlis.dla.mil/Forms/Form_AC135.asp.

Article 13. Protest

(a) Protests, as defined in section 33.101 of the Federal Acquisition Regulation, that are filed directly with an agency, and copies of any protests that are filed with the Government Accountability Office (GAO), shall be served on the Contracting Officer (addressed as follows) by obtaining written and dated acknowledgment of receipt from:

NAVFAC EUROPE AFRICA SOUTHWEST ASIA

PSC 817 BOX 51

FPO AE 09622-0001

ATTN: CONTRACTING OFFICER

EMAIL: brian.d.griffin@eu.navy.mil

(b) The copy of any protest shall be received in the office designated above within one day of filing a protest with the GAO.

Article 14. Termination for Convenience FAR 52.249-2 -- Termination for Convenience of the Government (Fixed-Price).

Termination for Convenience of the Government (Fixed-Price) (Apr 2012)

(a) The Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting Officer determines that a termination is in the Government’s interest. The Contracting Officer shall terminate by delivering to the Contractor a Notice of Termination specifying the extent of termination and the effective date.

(b) After receipt of a Notice of Termination, and except as directed by the Contracting Officer, the Contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause:

(1) Stop work as specified in the notice.

(2) Place no further subcontracts or orders (referred to as subcontracts in this clause) for materials, services, or facilities, except as necessary to complete the continued portion of the contract.

(3) Terminate all subcontracts to the extent they relate to the work terminated.

(4) Assign to the Government, as directed by the Contracting Officer, all right, title, and interest of the Contractor under the subcontracts terminated, in which case the Government shall have the right to settle or to pay any termination settlement proposal arising out of those terminations.

(5) With approval or ratification to the extent required by the Contracting Officer, settle all outstanding liabilities and termination settlement proposals arising from the termination of subcontracts; the approval or ratification will be final for purposes of this clause.

(6) As directed by the Contracting Officer, transfer title and deliver to the Government --

(i) The fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced or acquired for the work terminated; and

(ii) The completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would be required to be furnished to the Government.

(7) Complete performance of the work not terminated.

(8) Take any action that may be necessary, or that the Contracting Officer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the Government has or may acquire an interest.

(9) Use its best efforts to sell, as directed or authorized by the Contracting Officer, any property of the types referred to in subparagraph (b)(6) of this clause; provided, however, that the Contractor

(i) is not required to extend credit to any purchaser and

(ii) may acquire the property under the conditions prescribed by, and at prices approved by, the Contracting Officer.

The proceeds of any transfer or disposition will be applied to reduce any payments to be made by the Government under this contract, credited to the price or cost of the work, or paid in any other manner directed by the Contracting Officer.

(c) The Contractor shall submit complete termination inventory schedules no later than 120 days from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this 120-day period.

(d) After expiration of the plant clearance period as defined in Subpart 49.001 of the Federal Acquisition Regulation, the Contractor may submit to the Contracting Officer a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Contracting Officer. The Contractor may request the Government to remove those items or enter into an agreement for their storage. Within 15 days, the Government will accept title to those items and remove them or enter into a storage agreement. The Contracting Officer may verify the list upon removal of the items, or if stored, within 45 days from submission of the list, and shall correct the list, as necessary, before final settlement.

(e) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribed by the Contracting Officer. The Contractor shall submit the proposal promptly, but no later than 1 year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this 1-year period. However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after 1 year or any extension. If the Contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, if any, due the Contractor because of the termination and shall pay the amount determined.

(f) Subject to paragraph (e) of this clause, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount to be paid or remaining to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, whether under this paragraph (f) or paragraph (g) of this clause, exclusive of costs shown in subparagraph (g)(3) of this clause, may not exceed the total contract price as reduced by

(1) the amount of payments previously made and

(2) the contract price of work not terminated.

The contract shall be modified, and the Contractor paid the agreed amount. Paragraph (g) of this clause shall not limit, restrict, or affect the amount that may be agreed upon to be paid under this paragraph.

(g) If the Contractor and the Contracting Officer fail to agree on the whole amount to be paid because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined by the Contracting Officer as follows, but without duplication of any amounts agreed on under paragraph (f) of this clause:

(1) The contract price for completed supplies or services accepted by the Government (or sold or acquired under subparagraph (b)(9) of this clause) not previously paid for, adjusted for any saving of freight and other charges.

(2) The total of --

(i) The costs incurred in the performance of the work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to supplies or services paid or to be paid under subparagraph (g)(1) of this clause;

(ii) The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in subdivision (g)(2)(i) of this clause; and

(iii) A sum, as profit on subdivision (g)(2)(i) of this clause, determined by the Contracting Officer under 49.202 of the Federal Acquisition Regulation, in effect on the date of this contract, to be fair and reasonable; however, if it appears that the Contractor would have sustained a loss on the entire contract had it been completed, the Contracting Officer shall allow no profit under this subdivision (g)(2)(iii) and shall reduce the settlement to reflect the indicated rate of loss.

(3) The reasonable costs of settlement of the work terminated, including --

(i) Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data;

(ii) The termination and settlement of subcontracts (excluding the amounts of such settlements); and

(iii) Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory.

(h) Except for normal spoilage, and except to the extent that the Government expressly assumed the risk of loss, the Contracting Officer shall exclude from the amounts payable to the Contractor under paragraph (g) of this clause, the fair value as determined by the Contracting Officer, for the loss of the Government property.

(i) The cost principles and procedures of Part 31 of the Federal Acquisition Regulation, in effect on the date of this contract, shall govern all costs claimed, agreed to, or determined under this clause.

(j) The Contractor shall have the right of appeal, under the Disputes clause, from any determination made by the Contracting Officer under paragraph (e), (g), or (l) of this clause, except that if the Contractor failed to submit the termination settlement proposal or request for equitable adjustment within the time provided in paragraph (e) or (l), respectively, and failed to request a time extension, there is no right of appeal.

(k) In arriving at the amount due the Contractor under this clause, there shall be deducted --

(1) All unliquidated advance or other payments to the Contractor under the terminated portion of this contract;

(2) Any claim which the Government has against the Contractor under this contract; and

(3) The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by the Contractor or sold under the provisions of this clause and not recovered by or credited to the Government.

(l) If the termination is partial, the Contractor may file a proposal with the Contracting Officer for an equitable adjustment of the price(s) of the continued portion of the contract. The Contracting Officer shall make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitable adjustment under this clause shall be requested within 90 days from the effective date of termination unless extended in writing by the Contracting Officer.

(m)

(1) The Government may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated portion of the contract, if the Contracting Officer believes the total of these payments will not exceed the amount to which the Contractor will be entitled.

(2) If the total payments exceed the amount finally determined to be due, the Contractor shall repay the excess to the Government upon demand, together with interest computed at the rate established by the Secretary of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest shall be computed for the period from the date the excess payment is received by the Contractor to the date the excess is repaid. Interest shall not be charged on any excess payment due to a reduction in the Contractor’s termination settlement proposal because of retention or other disposition of termination inventory until 10 days after the date of the retention or disposition, or a later date determined by the Contracting Officer because of the circumstances.

(n) Unless otherwise provided in this contract or by statute, the Contractor shall maintain all records and documents relating to the terminated portion of this contract for 3 years after final settlement. This includes all books and other evidence bearing on the Contractor’s costs and expenses under this contract. The Contractor shall make these records and documents available to the Government, at the Contractor’s office, at all reasonable times, without any direct charge. If approved by the Contracting Officer, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.

Article 15. Termination for Default FAR 52.249-8 -- Default (Fixed-Price Supply and Service).

Default (Fixed-Price Supply and Service) (Apr 1984) (a)

(1) The Government may, subject to paragraphs (c) and (d) of this clause, by written notice of default to the Contractor, terminate this contract in whole or in part if the Contractor fails to --

(i) Deliver the supplies or to perform the services within the time specified in this contract or any extension;

(ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) of this clause); or

(iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) of this clause).

(2) The Government’s right to terminate this contract under subdivisions (a)(1)(ii) and (1)(iii) of this clause, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of the notice from the Contracting Officer specifying the failure.

(b) If the Government terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will be liable to the Government for any excess costs for those supplies or services. However, the Contractor shall continue the work not terminated.

(c) Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include

(1) acts of God or of the public enemy,

(2) acts of the Government in either its sovereign or contractual capacity,

(3) fires,

(4) floods,

(5) epidemics,

(6) quarantine restrictions,

(7) strikes,

(8) freight embargoes, and

(9) unusually severe weather.

In each instance the failure to perform must be beyond the control and without the fault or negligence of the Contractor.

(d) If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule.

(e) If this contract is terminated for default, the Government may require the Contractor to transfer title and deliver to the Government, as directed by the Contracting Officer, any

(1) completed supplies, and

(2) partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as “manufacturing materials” in this clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract.

Upon direction of the Contracting Officer, the Contractor shall also protect and preserve property in its possession in which the Government has an interest.

(f) The Government shall pay contract price for completed supplies delivered and accepted. The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes clause. The

Government may withhold from these amounts any sum the Contracting Officer determines to be necessary to protect the Government against loss because of outstanding liens or claims of former lien holders.

(g) If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Government.

(h) The rights and remedies of the Government in this clause are in addition to any other rights and remedies provided by law or under this contract.

Article 16. Not Applicable to this Solicitation

Article 17. Contract Administration In no event will any understanding or agreement, modification, change order, or other matter deviating from the terms of the contract between the Contractor and any person other than the Contracting Officer be effective or binding upon the Government, unless formalized by proper contractual documents executed by the Contracting Officer prior to completion of the contract.

The authorized representative as indicated hereinafter:

1. The Contracting Officer’s Representative (COR) is designated by the Contracting Officer as the authorized representative of the Contracting Officer. The COR is responsible for monitoring performance and the technical management of the effort required hereunder, and should be contacted regarding questions or problems of a technical nature.

2. The Contract Specialist designated is the Administrative Contracting Officer's representative on all other contract administrative matters. The Contract Specialist should be contacted regarding all matters pertaining to the contract.

Written notice of the above designations will be provided by the Contracting Officer to the Contractor.

Article 18. Not Applicable to this Solicitation

Article 19. Gratuities The right of the Contractor to proceed may be terminated by written notice if, after notice, the agency head or a designee determines that the Contractor, its agent, or another representative offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the Government and intended, by the gratuity, to obtain a contract or favorable treatment under a contract.

(a) The facts supporting this determination may be reviewed by any court having lawful jurisdiction.

(b) If the contract is terminated under paragraph (a) of this clause, the Government is entitled—

(1) To pursue the same remedies as in a breach of the contract; and

(2) In addition to any other damages provided by law, to exemplary damages of not less than 3 nor more than 10 times the cost incurred by the Contractor in giving gratuities to the person concerned, as determined by the agency head or a designee.

(c) The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.

Article 20. Warranty Against Contingent Fees The Contractor warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Government shall have the right to cancel the contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

"Bona fide agency," as used in this clause, means an established commercial or selling agency, maintained by a contractor for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds itself out as being able to obtain any Government contract or contracts through improper influence.

"Bona fide employee," as used in this clause, means a person, employed by a contractor and subject to the contractor's supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain Government contracts nor holds out as being able to obtain any Government contract or contracts through improper influence.

"Contingent fee," as used in this clause, means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a Government contract.

"Improper influence," as used in this clause, means any influence that induces or tends to induce a Government employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter.

Article 21. Domicile of the Parties The legal domicile for service of process is the Contractor’s legal place of incorporation. The legal domicile for the Government is defined in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965.

Article 22. Inconsistency between English and Spanish language In case of inconsistency or ambiguity between the contract terms expressed in English and Spanish languages, English shall control.

Article 23. Disputes Except as provided by the Spanish Law, all disputes arising under or relating to the contract shall be resolved under this article.

FAR 52.233-1 – Disputes (May 2014)

(a) This contract is subject to 41 U.S.C. chapter 71, Contract Disputes.

(b) Except as provided in 41 U.S.C. chapter 71, all disputes arising under or relating to this contract shall be resolved under this clause.

(c) “Claim,” as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract. However, a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000 is not a claim under 41 U.S.C. chapter 71 until certified. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under 41 U.S.C. chapter 71. The submission may be converted to a claim under 41 U.S.C. chapter 71, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

(d)

(1) A claim by the Contractor shall be made in writing and, unless otherwise stated in this contract, submitted within 6 years after accrual of the claim to the Contracting Officer for a written decision. A claim by the Government against the Contractor shall be subject to a written decision by the Contracting Officer.

(2)

(i) The contractor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000.

(ii) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim.

(iii) The certification shall state as follows: “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am authorized to certify the claim on behalf of the Contractor.”

(3) The certification may be executed by any person authorized to bind the Contractor with respect to the claim.

(e) For Contractor claims of $100,000 or less, the Contracting Officer must, if requested in writing by the Contractor, render a decision within 60 days of the request. For Contractor-certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the Contractor of the date by which the decision will be made.

(f) The Contracting Officer’s decision shall be final unless the Contractor appeals or files a suit as provided in 41 U.S.C. chapter 71.

(g) If the claim by the Contractor is submitted to the Contracting Officer or a claim by the Government is presented to the Contractor, the parties, by mutual consent, may agree to use alternative dispute resolution (ADR). If the Contractor refuses an offer for ADR, the Contractor shall inform the Contracting Officer, in writing, of the Contractor’s specific reasons for rejecting the offer.

(h) The Government shall pay interest on the amount found due and unpaid from

(1) the date that the…