RFP 693JF725R000003 Oil Pollution Insurance_Final_Nov 27 2024.pdf

U.S. Department of Transportation, Maritime Administration Oil Pollution Insurance Policy RFP No. 693JF725R000003

1.0 General

2.0 Introduction

The U.S. Department of Transportation, Maritime Administration (MARAD) requires oil pollution insurance for oil spills from MARAD -owned vessels of the Ready Reserve Force (RRF), RRF-like vessels, and School ships. Oil pollution insurance may be required, on an as needed basis, for other vessels for which MARAD has either title or custody, such as, but not necessarily limited to, vessels departing a MARAD National Defense Reserve Fleet (NDRF) site for a shipyard or ship recycling facility or Title XI vessels returned to MARAD that are located at a non-MARAD site at time of turnover to MARAD. All of these vessels may transit navigable waters worldwide, normally either by their own propulsion (i.e. self-propelled) or under tow.

Section C: Statement of Work

C.1 OBJECTIVE

1.1. The Maritime Administration (MARAD) requires the Contractor to provide MARAD with an insurance policy (Policy), as more fully detailed in this Statement of Work (SOW), which will contractually address costs and expenses relating to an oil spill arising from and related to MARAD-owned vessels in the National Defense Reserve Fleet (NDRF). It is intended that MARAD will enter into such Policy with an insurance provider (Provider) that will make MARAD in privity of contract with the Provider, consistent with the terms and conditions set forth in this SOW. Said Policy will be awarded by MARAD on a determination by MARAD as to what Policy constitutes “best value” to MARAD and the Federal Government. The Contractor may also be the Provider so long as the Contractor can meet all of the requirements in this SOW.

1.2. The vessels to be covered by said Policy are hereinafter defined collectively as Vessels and individually as a Vessel. The Vessels are identified on Attachment J-1.

MARAD may modify Attachment J-1 from time to time by adding or deleting Vessels.

As of the date of this SOW, the Vessels are non-tank vessels, but MARAD reserves the right to add tank vessels in the future. Most Vessels are not operating but are maintained in a status to be ready for expedited operation. Vessels are operated as required on missions or to test for readiness. Generally, Vessels are operated on non-commercial missions.

C.2 DEFINITIONS

2.1 “ACO” refers to Administrative Contracting Officer. The “ACO” is the contracting officer who is administering contracts.

2.2 “Assureds” means those parties identified on Attachment J-2 and includes their agents, servants, officers, and employees. No party shall be an Assured under the Policy until it is properly added to Attachment J-2. MARAD may modify Attachment J-2 from time to time by adding or deleting Assureds.

2.3 “Deductible” shall be subject to a $1,000,000 deductible per incident, which shall be paid by MARAD as described in the SOW.

2.4 “Federal Entities” means Federal agencies and their instrumentalities, including, but not limited to United States Coast Guard (“USCG”), Department of Defense (“DOD”), National Oceanic and Atmospheric Administration, and the Department of Interior and Federal Trustees for sanctuaries or otherwise.

2.5 “Hazardous Substance” means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. § 5103).

2.6 “MARAD” means the Maritime Administration, U.S. Department of Transportation.

2.7 “NDRF” means MARAD’s National Defense Reserve Fleet.

2.8 “Oil” means liquid hydrocarbons regardless of specific gravity, of any kind or in any form, including, but not limited to, petroleum, fuel oil, crude oil, sludge, oil refuse, hydraulic oil, lube oil, and oil mixed with wastes other than dredged spoil.

2.9 “Oil Spill” includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of Oil or any Hazardous Substance or a reasonable threat of a discharge of Oil or any Hazardous Substance from a Vessel, into or upon navigable waters, including geographically adjacent locations, either on land or water, including shoreline, that may be affected by the Oil Spill, anywhere in the world.

2.10 “PCO” refers to Procuring contracting officer. If the same individual will serve as the contracting officer for the preaward and post-award functions then there is no distinction between PCO/ACO. If the Contracting Officer will change then the terminology PCO/ACO may become applicable.

2.11 “SMT” means Spill Management Team.

C.3 GENERAL REQUIREMENTS

3.1 At all times during the period of performance of the Contract and Policy, the Provider shall be qualified to legally provide marine insurance within the United States.

3.2 Provider must have a rating with A.M. Best Company of at least a B security rating as published in the latest edition of A.M. Best’s Insurance Reports. This requirement can be waived by MARAD upon a showing, in form and substance satisfactory to MARAD, that Provider has sufficient financial resources to satisfy the terms of the Policy. Captive insurance companies are not acceptable. Where commitments by Underwriters are involved, Provider must show that it is authorized to bind such Underwriters and such Underwriters must be shown to be subject to suit in the United States in accordance with the same terms as required of the Provider. Foreign underwriters require MARAD acceptance after compliance with the procedures set forth in 46 C.F.R. Part 249. No Underwriter may take a line on any single risk in excess of five percent of its policyholder’s surplus.

3.3 Agents and brokers may respond to this solicitation on behalf of a potential Provider, but only if they provide documentation demonstrating that they are authorized to bind such Provider. The fees of such agents and brokers are all to be paid by the Provider.

MARAD shall have no financial obligation to such agents or brokers.

3.4 Deductible: The Policy shall be subject to a $1,000,000 deductible per incident, which shall be paid by MARAD as described in the SOW.

3.5 Maximum Coverage: MARAD has not yet decided on the maximum amount of coverage MARAD seeks in the Policy per incident. The Policy shall provide pricing for coverage for different maximum amounts. The Policy pricing shall be given respectively at a minimum at least $50,000,000, $75,000,000, and $100,000,000 per Incident greater than the amount of the Deductible, up to respectively $51,000,000, $76,000,000 or $101,000,000 per Incident. The entitlement to recover under the Policy from Provider shall not be limited by or subject to the tonnage liability limitations of OPA 90, such as 33 U.S.C. § 2704.

3.6 Coverage and Coverage Limited to Operation Use.

3.6.1 Vessels listed are in the NDRF and shall always be covered during the term of the Policy. Most of the Vessels listed are not ready to be immediately operated.

These Vessels are maintained in a laid-up status requiring significant work to be activated. Most Vessels have little or no crew. Work needs to be performed to make these Vessels ready to operate. Vessels shall be covered under this insurance while in laid-up status, being activated, in activation, while undergoing repairs, entering, leaving drydock, and during any transit periods related to being repaired, either under the Vessel’s own power or by tow. It is the intention of MARAD that these Vessels always be covered for Oil Spills. To the best of MARAD’s knowledge, nothing about the condition of these Vessels exposes them to any undue risk of Oil Spills. MARAD is willing to consider reasonable exceptions to the foregoing requirements. Any exceptions to such coverage in the proposed Insurance should be explicitly stated. Except for the foregoing exceptions, it shall not be a condition for coverage or payment under such Policy, that the Vessels be in class with either the United States Coast Guard or ABS.

3.6.2 If there is a savings in cost, MARAD will consider having in the Policy a clause limiting coverage to its Vessels only when they are in Operational Use. A vessel shall be deemed to be operated or in operational use for purposes of offering this optional limited coverage under the Policy from the date and time that MARAD directs the ship manager or general agent to activate the vessel under the ship manager contract or the general agency agreement, as applicable. A vessel shall cease to be operated or in operational use for purposes of this option under a Policy on the date and time the ship manager or general agent completes the deactivation phase under the ship manager's contract or the general agency agreement, as applicable.

3.6.3 This Policy shall cover the Vessels for Oil Spills regardless of the negligence or other actions of the master, mariners, engineers, pilots, MARAD employees or contractors; or due to latent defects in the hull, machinery, or other parts of the Vessel and for all claims by Federal Entities regardless of whether such claims are enforceable against the United States in a court of law.

C.4 LEGAL STATUS OF MARAD, VESSELS, SHIP MANAGERS, AND GENERAL

AGENTS

4.1. MARAD is an agency of the United States Government. NDRF vessels are public vessels of the United States. See 46 U.S.C. § 57100(a). Public vessels are protected from suit by the principles of sovereign immunity.

4.2. Any lawsuit against MARAD, its general agents, ship managers, and Vessels arising out of the operation of the Vessels is governed by the principles of sovereign immunity.

Such lawsuits must be brought in conformity with statutory waivers of sovereign immunity, such as the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq., the Public Vessels Act, 46 U.S.C. § 31101 et seq., the Admiralty Extension Act, 46 U.S.C. § 30101, the Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-2680, and the Clarification Act, 50 U.S.C. § 4701, among others.

4.2.1 Under the Public Vessels Act and the Suits in Admiralty Act, MARAD’s ship managers and general agents are “agents” of the United States and exclusive jurisdiction for any legal actions against such ship managers and general agents and their agents, servants, and employees is solely against the United States.

4.2.2 The Federal Tort Claims Act, the Admiralty Extension Act, and the Clarification Act, all require administrative claims be filed with MARAD before a lawsuit can be filed. See 46 C.F.R. Part 327; 46 C.F.R. Part 204.

4.2.3 The responsibility for deciding such claims is a sovereign function that will not be delegated by MARAD to the Contractor or Provider. MARAD determines the validity of administrative claims.

4.3. Public vessels and the United States are not liable for their Oil Spills under the Oil Pollution Act of 1990 (OPA 90), 33 U.S.C. § 2701 et seq. Public vessels are not required to have United States Coast Guard (USCG) Certificates of Financial Responsibility Compliance. Neither the United States nor the Maritime Administration is a "responsible party" under OPA 90. Federal Entities cannot sue MARAD for any of their costs and damages, including those costs and damages arising out of Oil Spills.

4.4. All litigation against the United States acting through MARAD is required by law to be handled by the Department of Justice. Private counsel provided by an insurance provider will be acting as counsel for the United States and handling such litigation as monitored and approved by the Department of Justice. The Department of Justice will make the final decisions regarding the handling of such litigation.

4.5. Different parts of the United States may not sue each other. For example, the United States Coast Guard, which operates the Oil Pollution Insurance Fund, cannot sue MARAD for its clean-up costs or damages arising out of an oil spill from an NDRF vessel. However, MARAD has the responsibility to see that the United States Coast Guard is repaid for such costs. For other Federal Government entities having costs or damages arising from an oil spill, oil pollution insurance provider liability shall exist for such damages as if such Federal governmental entities were covered assureds with respect to such costs and damages and shall not be based on indemnification principles.

Any Policy (insurance) acquired must cover liabilities to such Federal Entities on a contractual basis not an indemnification basis.

C.5 POLICY REQUIREMENTS

5.1. The Policy must meet the following requirements:

5.1.1. The Policy shall provide coverage for losses, liabilities, risks, damages, and costs arising out of or related to Oil Spills, and shall cover MARAD, the Assureds, and the Vessels.

5.1.2. The Policy shall pay for the costs and losses arising out of the Oil Spill incurred by other Federal Entities, such as the United Coast Guard, Federal Resource Trustees, etc., without regard to MARAD’s liability to such entities as if such entities were Assureds.

5.1.3. The Policy shall include clauses that provide MARAD with a mechanism and opportunity, at a firm fixed price per each Vessel added or deleted from coverage under the Policy. Such firm fixed cost or savings shall be prorated for the number of days remaining in the year for which the Policy provides or does not provide coverage.

5.1.4 MARAD, on a yearly basis has a right to renew the Policy annually five (5) additional times for the new yearly charge as negotiated with the Provider and to exercise two (2) additional two (2) year firm fixed price contract option periods.

Each option period will be priced for two years and will not include an increase during the intermediate year. Any rate of increase for the option periods shall negotiated prior to award of the option period. Annual price increases may not exceed the annual rate of inflation as determined by the US Bureau Of Labor statistics consumer price index”

5.1.5. The Policy created through such options, unless modified by the written agreement of the parties, shall be in the same terms and conditions as the previous

Policy, including options, save only that one option shall have been exercised.

5.1.6. Under the Policy, the Provider shall be liable and pay for all the costs of removal and remediation arising out of and related to the Oil Spill (including, but not limited to, any legal liability under federal, state, admiralty, maritime, or common law); the legal liability of MARAD and Assureds for bodily injury and property damage (including, but not limited to, any legal liability under federal, state, admiralty, maritime or common law); the costs, charges, and expenses incurred, in defending against, investigating or adjusting any liabilities covered under the Policy with respect to MARAD and Assureds, subject to all of the terms, conditions, and limitations of such Policy. Where MARAD incurs and pays such expenses, they may be credited against the amount payable by MARAD for the Deductible.

5.1.7. The Policy shall be for a fixed premium. Neither MARAD nor the Assureds shall be liable for any amount beyond the fixed premium. If a Club is involved, neither MARAD nor the Assureds shall be responsible for any club calls.

5.1.8. The Policy shall hire private counsel and pay all costs for the defense of MARAD and the Assureds in the event of litigation. Private counsel hired for those purposes will be representing the United States. Such private counsel represents the United States. The conduct of litigation against MARAD is vested in the Department of Justice. The Department of Justice allows private counsel to represent the United States on the condition that the Department of Justice monitors and controls such litigation, supervising the case and reviewing and approving all pleadings and other actions relating to the handling of the case.

5.1.9. The Policy shall provide that it shall be governed by Federal law. Where in accordance with Federal law, State law may be applied, the Policy shall provide for the application of a specific State law to supplement Federal law.

5.1.10. All litigation relating to the Policy shall be agreed to be handled in Federal Courts.

5.1.11. The Provider shall agree that any litigation between Provider and MARAD shall be conducted in the United States District Courts for the Southern District of New York, the Eastern District of Virginia, or the District of Columbia.

5.1.12. Except for enumerated war risks, the Policy shall provide that Vessels shall be covered worldwide with no trading restrictions.

5.1.13. The Policy shall provide that the Vessels shall be always covered, regardless of whether under MARAD operational control or under the operational control of another Federal agency, or whether operating under their own power or under tow, or whether it is at sea, pier side, or at a shipyard or drydock.

5.1.14. The Policy shall recognize that the Vessels are “public vessels” of the

United States; that MARAD is an agency of the United States; that lawsuits arising out of Vessel operations involve issues of sovereign immunity and are subject to waivers of sovereign immunities set forth under Federal law; and that nothing contained in the Policy between MARAD and the Provider shall constitute a waiver of the sovereign immunity of the United States and there are no third-party beneficiaries to the Policy.

5.1.15. The Policy shall recognize that waivers of sovereign immunities can involve administrative claim requirements; that such claims must be filed with and handled by MARAD; that MARAD handles such administrative claims without needing the involvement or approval of the Provider; and that the fact that MARAD approved of a claim shall not affect the coverage of that claim under the Policy.

5.1.16. Since MARAD and the Vessels are not liable under OPA 90 for their Oil Spills, the Policy shall provide that Provider shall be liable for all MARAD and Vessel liabilities arising by law in connection with an Oil Spill, not just liabilities arising under the terms of OPA 90. Also, that the defenses and causes of action set forth in OPA 90 may not apply to an Oil Spill from a Vessel.

5.1.17. Coverage provided in the Policy shall be subject to the Deductible amount set forth in Section 2.4. However, MARAD is a federal agency of limited financial resources, and seeks a Policy under which MARAD need not pay this Deductible all at once in the event of an Oil Spill. The Policy shall not have a Pay to be Paid clause or its equivalency. The Policy shall provide for the Provider to pay for covered costs and damages before the Deductible is paid, without regard to the principles of Pay to be Paid or Indemnification. Such provision shall not relieve MARAD from paying the Deductible or repaying the Provider for such payments where such payments would not have been legally due under the Policy.

5.1.18. The Policy shall provide that where an amount is paid under said Policy, no right of subrogation exists against MARAD, other Federal Entities and Assureds.

5.1.19. The Policy shall designate an agent satisfactory to MARAD for service of process within the United States for legal actions in one of the jurisdictions set forth above. Such agent shall continue to act until such time as Provider designates a substitute agent accepted in writing by MARAD.

5.1.20. The Policy shall provide that in the event of an Oil Spill, MARAD shall provide the Provider with the necessary notifications required under the Policy.

Deficiencies in said notice shall not affect coverage under the Policy unless the notice’s deficiencies from the Policy requirements actually and materially prejudice the interests of the Provider. Notwithstanding the foregoing, MARAD shall endeavor to strictly comply with the notice requirements of the Policy.

5.1.21. The Policy shall state that the Provider and MARAD shall discuss and cooperate in the actions to be taken with respect to responding to and funding the Oil Spill, which will include funding the Spill Management Team (SMT) as well as MARAD’s ship managers and general agents costs specific to responding to the Oil Spill.

5.1.22. The Policy shall provide that MARAD selects its Spill Management Team.

5.1.23. The Policy shall provide that MARAD shall receive credit against its Deductible obligations for all costs and damages MARAD or any other Federal agency pays in responding to the Oil Spill.

5.1.24. The Policy shall provide that MARAD shall be entitled to incur and obligate funds from clean-up costs without the approval of the Provider. However, unless otherwise agreed by the Parties, MARAD shall document such costs and promptly provide such documentation to the Provider within four working days of incurring such costs. Provider shall review such documentation and provide within five working days of receipt a written response to MARAD as to whether Provider accepts that such costs can be credited against MARAD’s deductible obligation. As part of this process, MARAD can employ a third-party auditor, at MARAD’s expense, with such expense creditable against the Deductible, to provide oversight and/or maintain records with respect to such costs and damages.

5.1.25. Once MARAD has incurred costs equal to or greater than the amount of the Deductible, Provider will pay all remaining costs or damages arising out of or related to an Oil Spill without the requirement that such costs be first paid by MARAD. No “Pay to be Paid” provision or equivalent shall apply to the payment of costs or damages after the Deductible amount has been paid.

5.1.26. The Policy shall provide coverage for all costs and damages of Federal Entities arising out of or proximately caused by the Oil Spill without regard to whether MARAD would be legally liable for such costs. This requirement is written in recognition of that fact that Federal Entities, such as the USCG, cannot sue MARAD for its costs or damages arising out of or related to an Oil Spill because the Federal Government cannot sue itself. Nevertheless, MARAD has responsibility to pay such costs and damages to Federal Entities. Provider’s obligation to pay such Federal Entities shall exist as a matter of Policy without regard to the principles of indemnification or Pay to be Paid.

5.1.27. The Military Sealift Command (MSC), or the Navy On-Scene Coordinator (NOSC) for oil spill response, possesses the right to manage the Oil Spill response, if they expressly relieve MARAD of management and liability responsibility during an Oil Spill. In such cases, the Policy shall continue to remain liable to MSC and NOSC for any costs and expenses relating to an Oil Spill from the Vessels.

5.1.28. Where underwriters are involved, the Contractor’s Proposal shall provide that it shall be the Provider’s responsibility to ensure that all matters with respect to the Policy are conveyed to the underwriters, if any, and, where necessary, obtain underwriter approval. Underwriters shall continue to be fully liable to the extent of their commitments in the Policy unless relieved from liability in writing by MARAD.

Section D. Packages and Marketing

(None)

Section E. Inspection and Acceptance

E.1 52.252-2 CLAUSES INCORPORATED BY REFERENCE

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es): https://www.acquisition.gov/browse/index/far

Clause Title Date 52.246-4 Inspection of Services - Fixed Price August 1996

E.2 DELEGATION OF AUTHORITY FOR INSPECTION AND ACCEPTANCE

The Contracting Officer’s Representative shall be delegated the responsibility and authority to conduct inspection and acceptance duties for this contract.

E.3 PLACE OF INSPECTION AND ACCEPTANCE

Inspection and Acceptance will be performed at the point of delivery set forth in Section F.

E.4 INSPECTIONS

(A) The Government or other persons authorized by the Government, at its expense, shall have the right to inspect at any time, upon reasonable notice to the Contractor, and to jointly survey the facility to ascertain its material condition and to perform other contract quality assurance functions as deemed necessary and appropriate by the Government.

(B) Except as specified in paragraph (c) below, no order, statement, or conduct of Government personnel who visit the Contractor’s facilities or in any other manner communicates with Contractor personnel during the performance of this contract shall constitute a change under the “Changes” clause of this contract.

https://www.acquisition.gov/browse/index/far

(C) The Contractor shall not comply with any order, direction or request of Government personnel unless it is issued in writing and signed by the Contracting Officer, or is pursuant to specific authority otherwise granted in writing by him or included as part of this contract.

E.5 FINAL ACCEPTANCE

Final acceptance of all services provided under this contract shall be made only upon certification of the Final Invoice as defined in the invoicing provisions contained in Section G. Such certification shall be made by the Contracting Officer or the designated representative.

Section F. Deliveries or Performance

F.1 PERFORMANCE

Performance may be needed at various ships around the continental United States.

F.2 EFFECTIVE DATE OF AWARD AND PERFORMANCE PERIOD

(A) The effective date of award is the date of the contract execution by the Procuring Contract Officer (PCO).

(B) Performance shall commence on the date provided in the Notice to Proceed

(NTP).

(C) The period of performance will be a base period of 72 months or 6 years and two option periods of 24 months each. The total maximum period of performance under this contract shall not exceed ten years or 120 months, plus an additional 6-month extension, if authorized pursuant to FAR 52.217- 8, Option to Extend Services (NOV 1999), for a maximum period of performance of 126 months. The option periods will each be exercised at the sole discretion of the Government.

Section G. Contract Administrative Data

G.1 INVOICE REQUIREMENTS - Electronic Submission of Payment Requests.

ELECTRONIC SUBMISSION OF PAYMENT REQUESTS

(a) Definitions. As used in this clause—

(1) Contract financing payment has the meaning given in FAR 32.001.

(2) Payment request means a bill, voucher, invoice, or request for contract financing payment or invoice payment with associated supporting documentation. The payment request must comply with the requirements identified in FAR 32.905(b), “Content of Invoices,” this clause, and the applicable Payment clause included in this contract.

(3) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods and formats identified in paragraph (c) of this clause. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests.

(4) Invoice payment has the meaning given in FAR 32.001.

(b) Electronic payment requests. Except as provided in paragraph

(e) of this clause, the contractor shall submit payment requests in electronic form. Purchases paid with a Governmentwide commercial purchase card are considered to be an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required.

(c) The Department of Transportation utilizes the Delphi eInvoicing web-portal for processing invoices. For vendors submitting invoices, and certain grantees submitting payment requests, they will be required to submit invoices via Delphi eInvoicing which is accessed and authenticated via www.login.gov

(d) The following FAR section applies (32.905 Payment documentation and process). In order to receive payment and in accordance with the Prompt Payment Act, all invoices submitted as attachments in the Delphi eInvoicing web-portal shall contain the following:

1. General. Payment will be based on receipt of a proper invoice and satisfactory contract performance.

2. Content of invoices.

(1) A PROPER INVOICE MUST INCLUDE THE FOLLOWING ITEMS

(except for interim payments on cost reimbursement contracts for services):

(i) Name and address of the contractor.

(ii) Invoice date and invoice number. (Date invoices as close as possible to the date of mailing or transmission.)

http://www.login.gov/ http://www.login.gov/ http://www.login.gov/

(iii) Contract number or other authorization for supplies delivered or services performed (including order number and contract line-item number).

(iv) Description, quantity, unit of measure, unit price and extended price of supplies delivered or services performed.

(v) event of a defective invoice.

(vi) Shipping and payment terms (e.g., shipment number and date of shipment, discount for prompt payment terms). Bill of lading number and weight of shipment will be shown for shipments on Government bills of lading.

(vii) Name and address of contractor official to whom payment is to be sent (must be the same as that in the contract or in a proper notice of assignment).

Name (where practicable), title, phone number and mailing address of person to notify in the payment system registration. All persons accessing the Delphi eInvoicing web-portal will be required to have their own unique user Delphi eInvoicing ID and password and be credentialed through login.gov.

(1) Electronic authentication. See www.login.gov for instructions. Click on the following link for instructions on establishing a login.gov account:

https://login.gov/help/get-started/overview/

(2) To create a login.gov account, the user will need a valid email address and a working phone number. The user will create a password and then login.gov will reply with an email confirming the email address.

(3) Agency POC’s will be responsible for communicating with vendor POC’s to initiate the Delphi eInvoicing account creation process. Vendor POC’s who will require access to the eInvoicing web-portal for invoice submission and payment tracking purposes will be required to provide their full name, valid email address, and current phone number to the agency POC to initiate the Delphi eInvoicing web- portal account. Vendor users and the agency POC will be notified via e-mail when the account is created. The vendor user will be provided detailed instructions for logging into their Delphi eInvoicing account.

(4) Training on Delphi. To facilitate use of DELPHI, comprehensive user information is available at http://einvoice.esc.gov

(5) Account Management. Vendors are responsible to contact http://www.login.gov/ http://www.login.gov/ http://www.login.gov/ https://login.gov/help/get-started/overview/ http://einvoice.esc.gov/ http://einvoice.esc.gov/ the Delphi Help Desk when their firm’s points of contacts will no longer be submitting invoices so they can be removed from the system. Instructions for contacting the Delphi Help Desk can be found at http://einvoice.esc.gov

Point of Contact:

Contracting Officer: Denise.Clarke@dot.gov

Technical Point of Contact:

Program Manager: Brian Blower: Brian.blower@dot.gov

G.2 DIRECTIONS BY GOVERNMENT PERSONNEL

(A) Except as specified in Paragraph B below, no order, statement, or conduct of government personnel who visit the facilities or in any other manner communicate with Contractor personnel during the performance of this contract shall constitute a change under the “Changes” clause of this contract.

(B) The Contractor shall not comply with any order, direction, or request of Government personnel that it considers to be outside the scope of the contract, unless issued in writing and signed by the PCO or ACO, or as otherwise directed by this contract. The Contractor shall notify the PCO/ACO of any request deemed outside the scope of this contract.

G.3 CONTRACTING OFFICER’S REPRESENTATIVE (COR)

(A) The PCO/ACO may designate Government personnel to act as the COR to perform functions under the contract, such as review and/or inspection and acceptance of services.

(B) The PCO/ACO cannot authorize the COR, or any other representative, to sign documents (i.e. contracts, contract modifications, etc.) that require the signature of the CO.

(C) The COR may request the appointment of Alternate Contracting Officer Representatives (ACOR) by the ACO. Such written requests shall be made to the respective ACOs, or in the case of headquarters personnel, to the PCO. ACOR/CORs shall be appointed in writing by the PCO/ACO, and a copy of this appointment letter provided to the Contractor. The appointment letter shall specify the name, inclusive dates, and specific limits to the authority of that person appointed.

G.4 DUTIES OF THE CONTRACTING OFFICER’S REPRESENTATIVE

(A) The COR is responsible for monitoring the assigned technical aspects of the contract and acts as the technical liaison with the Contractor.

(B) Except as stated elsewhere, the COR is not authorized to make any commitments or otherwise obligate the Government for any changes which affected the contract price, terms, or conditions. Any Contractor request for changes shall be referred to the ACO directly or through the respective MARAD COR. No such changes shall be made without the prior authorization of the PCO.

(C) The COR may be changed by the Government at any time, and notification of the change shall be provided in writing to the Contractor by the ACO or

PCO.

Section H. Special Contract Requirements

H.1 DUPLICATION OF EFFORT

The Contractor hereby certifies that cost for work to be performed under this contract and any subcontract hereunder are not duplicative of any costs charged against any other Government contract, subcontract, or other Government source. The Contractor will include the provisions of this paragraph in every subcontract issued hereunder which exceeds $2,500.00. The Contractor agrees to advise the Contracting Officer, in writing, of any other Government contract or subcontract it has performed or is performing which involves work directly related to the purpose of this contract.

H.2 CONTRACT NOT AFFECTED BY ORAL AGREEMENT

No oral agreement of any person shall modify or otherwise affect the Scope of Work or other terms and conditions, as herein stated.

All modifications shall be in writing by the Contracting Officer.

H.3 ORGANIZATIONAL CONFLICT OF INTEREST

(A) The Contractor warrants that, to the best of its knowledge and belief, there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as defined in FAR Subpart 9.5, and that all such relevant information has been disclosed.

(B) The Contractor agrees that if an actual or potential organizational conflict of interest is discovered after award, the Contractor will make a full disclosure in writing to the ACO. This disclosure shall include a description of actions the Contractor has taken or proposes to take, after consultation with the ACO, to avoid, mitigate, or neutralize the actual or potential conflict.

Section I. Contract Clauses/General Provisions

COMMERCIAL CLAUSES

52.252-2 CLAUSES INCORPORATED BY REFERENCE (FEB 1998)

This contract incorporates one or more clauses by reference, with the same force and effect as if they were given in full text. Upon request, the Contracting Officer will make their full text available. Also, the full text of a clause may be accessed electronically at this/these address(es):

https://www.acquisition.gov/browse/index/far

Clause Title Date 52.204-7 System for Award Management Oct 2018 52.204-13 System for Award Management Maintenance Oct 2018 52.212-4 Contract Terms and Conditions--Commercial Products and

Commercial Services Nov 2023

52.212-5 Contract Terms and Conditions Required to Implement

Statutes or Executive Orders -- Commercial Products and Commercial Services (Nov2024)

(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 products and commercial services:

(1) 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)).

(2) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered Entities (Dec 2023) (Section 1634 of Pub. L. 115-91).

(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (Nov 2021) (Section 889(a)(1)(A) of Pub. L. 115-232).

(4) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

(5) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Mar 2023) (31 U.S.C. 3903 and 10 U.S.C. 3801).

(6) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553).

(7) 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Public Laws 108-77 and 108-78 (19 U.S.C. 3805 note)).

(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 products and commercial services:

[Contracting Officer check as appropriate.]

_X_ (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Jun 2020), with Alternate I (Nov 2021) (41 U.S.C. 4704 and 10 U.S.C.

4655).

__ (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Nov 2021) (41 U.S.C. 3509)).

__ (3) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub. L. 111- 5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.)

_X_ (4) 52.203-17, Contractor Employee Whistleblower Rights (Nov 2023) (41 U.S.C. 4712); this clause does not apply to contracts of DoD, NASA, the Coast Guard, or applicable elements of the intelligence community—see FAR 3.900(a).

_X_ (5) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Jun 2020) (Pub. L. 109-282) (31 U.S.C. 6101 note).

__ (6) [Reserved].

_X_ (7) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

__ (8) 52.204-15, Service Contract Reporting Requirements for Indefinite- Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

_X_ (9) 52.204-27, Prohibition on a ByteDance Covered Application (Jun 2023) (Section 102 of Division R of Pub. L. 117-328).

__ (10) 52.204-28, Federal Acquisition Supply Chain Security Act Orders—Federal Supply Schedules, Governmentwide Acquisition Contracts, and Multi-Agency Contracts. (Dec 2023) (Pub. L. 115–390, title II).

__ (11) (i) 52.204-30, Federal Acquisition Supply Chain Security Act Orders—Prohibition. (Dec 2023) (Pub. L. 115–390, title II).

__ (ii) Alternate I (Dec 2023) of 52.204-30.

_X_ (12) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Nov 2021) (31 U.S.C. 6101 note).

_X_ (13) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Oct 2018) (41 U.S.C. 2313).

__ (14) [Reserved].

__ (15) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Oct 2022) (15 U.S.C. 657a).

__ (16) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct 2022) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

__ (17) [Reserved]

__ (18) (i) 52.219-6, Notice of Total Small Business Set-Aside (Nov 2020) (15 U.S.C. 644).

__ (ii) Alternate I (Mar 2020) of 52.219-6.

__ (19) (i) 52.219-7, Notice of Partial Small Business Set-Aside (Nov 2020) (15 U.S.C. 644).

__ (ii) Alternate I (Mar 2020) of 52.219-7.

_X_ (20) 52.219-8, Utilization of Small Business Concerns (Feb 2024) (15 U.S.C. 637(d)(2) and (3)).

_X_ (21) (i) 52.219-9, Small Business Subcontracting Plan (Sep 2023) (15 U.S.C. 637(d)(4)).

__ (ii) Alternate I (Nov 2016) of 52.219-9.

_X_ (iii) Alternate II (Nov 2016) of 52.219-9.

__ (iv) Alternate III (Jun 2020) of 52.219-9.

__ (v) Alternate IV (Sep 2023) of 52.219-9.

__ (22) (i) 52.219-13, Notice of Set-Aside of Orders (Mar 2020) (15 U.S.C.

644(r)).

__ (ii) Alternate I (Mar 2020) of 52.219-13.

__ (23) 52.219-14, Limitations on Subcontracting (Oct 2022) (15 U.S.C.

657s).

_X_ (24) 52.219-16, Liquidated Damages—Subcontracting Plan (Sep 2021) (15 U.S.C. 637(d)(4)(F)(i)).

__ (25) 52.219-27, Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program (Feb 2024) (15 U.S.C. 657f).

_X_ (26) (i) 52.219-28, Post Award Small Business Program Rerepresentation (Feb 2024) (15 U.S.C. 632(a)(2)).

__ (ii) Alternate I (Mar 2020) of 52.219-28.

__ (27) 52.219-29, Notice of Set-Aside for, or Sole-Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (Oct 2022) (15 U.S.C. 637(m)).

__ (28) 52.219-30, Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small Business Concerns Eligible Under the Women- Owned Small Business Program (Oct 2022) (15 U.S.C. 637(m)).

__ (29) 52.219-32, Orders Issued Directly Under Small Business Reserves (Mar 2020) (15 U.S.C. 644(r)).

__ (30) 52.219-33, Nonmanufacturer Rule (Sep 2021) (15 U.S.C.

637(a)(17)).

_X_ (31) 52.222-3, Convict Labor (Jun 2003) (E.O.11755).

__ (32) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (Feb 2024).

_X_ (33) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

_X_ (34) (i) 52.222-26, Equal Opportunity (Sep 2016) (E.O.11246).

__ (ii) Alternate I (Feb 1999) of 52.222-26.

__ (35) (i) 52.222-35, Equal Opportunity for Veterans (Jun 2020) (38 U.S.C. 4212).

__ (ii) Alternate I (Jul 2014) of 52.222-35.

_X_ (36) (i) 52.222-36, Equal Opportunity for Workers with Disabilities (Jun 2020) (29 U.S.C. 793).

__ (ii) Alternate I (Jul 2014) of 52.222-36.

_X_ (37) 52.222-37, Employment Reports on Veterans (Jun 2020) (38 U.S.C. 4212).

_X_ (38) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496).

_X_ (39) (i) 52.222-50, Combating Trafficking in Persons (Nov 2021) (22 U.S.C. chapter 78 and E.O. 13627).

_X_ (ii) Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627).

_X_ (40) 52.222-54, Employment Eligibility Verification (May 2022) (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial products or commercial services as prescribed in FAR 22.1803.)

__ (41) (i) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA–Designated Items (May 2008) (42 U.S.C. 6962(c)(3)(A)(ii)).

(Not applicable to the acquisition of commercially available off-the-shelf items.)

__ (ii) Alternate I (May 2008) of 52.223-9 (42 U.S.C. 6962(i)(2)(C)). (Not applicable to the acquisition of commercially available off-the-shelf items.)

__ (42) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (May 2024) (42 U.S.C. 7671, et seq.).

__ (43) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (May 2024) (42 U.S.C.

7671, et seq.).

__ (44) 52.223-20, Aerosols (May 2024) (42 U.S.C. 7671, et seq.).

__ (45) 52.223-21, Foams (May 2024) (42 U.S.C. 7671, et seq.).

__ (46) 52.223-23, Sustainable Products and Services (May 2024) (E.O.

14057, 7 U.S.C. 8102, 42 U.S.C. 6962, 42 U.S.C. 8259b, and 42 U.S.C.

7671l).

_X_ (47) (i) 52.224-3 Privacy Training (Jan 2017) (5 U.S.C. 552 a).

__ (ii) Alternate I (Jan 2017) of 52.224-3.

__ (48) (i) 52.225-1, Buy American-Supplies (Oct 2022) (41 U.S.C. chapter 83).

__ (ii) Alternate I (Oct 2022) of 52.225-1.

__ (49) (i) 52.225-3, Buy American-Free Trade Agreements-Israeli Trade Act (NOV 2023) (19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C.

3805 note, 19 U.S.C. 4001 note, 19 U.S.C. chapter 29 (sections 4501- 4732), Public Law 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43.

__ (ii) Alternate I [Reserved].

__ (iii) Alternate II (Dec 2022) of 52.225-3.

__ (iv) Alternate III (Feb 2024) of 52.225-3.

__ (v) Alternate IV (Oct 2022) of 52.225-3.

_X_ (50) 52.225-5, Trade Agreements (NOV 2023) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note).

_X_ (51) 52.225-13, Restrictions on Certain Foreign Purchases (Feb 2021) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury).

__ (52) 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C.

Subtitle A, Part V, Subpart G Note).

__ (53) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov 2007) (42 U.S.C. 5150).

__ (54) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov 2007) (42 U.S.C. 5150).

_X_ (55) 52.226-8, Encouraging Contractor Policies to Ban Text Messaging While Driving (May 2024) (E.O. 13513).

__ (56) 52.229-12, Tax on Certain Foreign Procurements (Feb 2021).

__ (57) 52.232-29, Terms for Financing of Purchases of Commercial Products and Commercial Services (Nov 2021) (41 U.S.C. 4505, 10 U.S.C. 3805).

__ (58) 52.232-30, Installment Payments for Commercial Products and Commercial Services (Nov 2021) (41 U.S.C. 4505, 10 U.S.C. 3805).

_X_ (59) 52.232-33, Payment by Electronic Funds Transfer-System for Award Management (Oct2018) (31 U.S.C. 3332).

__ (60) 52.232-34, Payment by Electronic Funds Transfer-Other than System for Award Management (Jul 2013) (31 U.S.C. 3332).

__ (61) 52.232-36, Payment by Third Party (May 2014) (31 U.S.C. 3332).

_X_ (62) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C.

552a).

_X_ (63) 52.240-1, Prohibition on Unmanned Aircraft Systems Manufactured or Assembled by American Security Drone Act-Covered Foreign Entities (Nov 2024) (Sections 1821-1826, Pub. L. 118-31, 41 U.S.C. 3901 note prec.).

__ (64) 52.242-5, Payments to Small Business Subcontractors (Jan 2017) (15 U.S.C. 637(d)(13)).

__ (65) (i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Nov 2021) (46 U.S.C. 55305 and 10 U.S.C.

2631).

__ (ii) Alternate I (Apr 2003) of 52.247-64.

__ (iii) Alternate II (Nov 2021) of 52.247-64.

(c) The Contractor shall comply with the FAR clauses in this paragraph (c), applicable to commercial services, 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 products and commercial services:

[Contracting Officer check as appropriate.]

__ (1) 52.222-41, Service Contract Labor Standards (Aug 2018) (41 U.S.C.

chapter67).

__ (2) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

__ (3) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (Aug 2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

__ (4) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (May 2014) (29U.S.C.206 and 41 U.S.C.

chapter 67).

__ (5) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May 2014) (41 U.S.C. chapter 67).

__ (6) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (May 2014) (41 U.S.C. chapter 67).

__ (7) 52.222-55, Minimum Wages for Contractor Workers Under Executive Order 14026 (Jan 2022).

__ (8) 52.222-62, Paid Sick Leave Under Executive Order 13706 (Jan 2022) (E.O. 13706).

__ (9) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (Jun 2020) (42 U.S.C. 1792).

(d) Comptroller General Examination of Record. The Contractor shall comply with the provisions of this paragraph (d) if this contract was awarded using other than sealed bid, is in excess of the simplified acquisition threshold, as defined in FAR 2.101, on the date of award of this contract, and does not contain the clause at 52.215-2, Audit and Records-Negotiation.

(1) The Comptroller General of the United States, or an authorized representative of the Comptroller General, shall have access to and right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract.

(2) The Contractor shall make available at its offices at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until 3 years after final payment under this contract or for any shorter period specified in FAR subpart 4.7, Contractor Records Retention, of the other clauses of this contract. If this contract is completely or partially terminated, the records relating to the work terminated shall be made available for 3 years after any resulting final termination settlement. Records relating to appeals under the disputes clause or to litigation or the settlement of claims arising under or relating to this contract shall be made available until such appeals, litigation, or claims are finally resolved.

(3) As used in this clause, records include books, documents, accounting procedures and practices, and other data, regardless of type and regardless of form. This does not require the Contractor to create or maintain any record that the Contractor does not maintain in the ordinary course of business or pursuant to a provision of law.

(e) (1) Notwithstanding the requirements of the clauses in paragraphs (a), (b), (c), and (d) of this clause, the Contractor is not required to flow down…