SPE60419R0402_A0003.pdf

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT 1. CONTRACT ID CODE

2. AMENDMENT/MODIFICATION NO.

4. REQUISITION/PURCHASE REQ. NO.

See Block 14

5. PROJECT NO. (If applicable)

6. ISSUED BY CODE SPE604 7. ADMINISTERED BY (If other than Item 6) CODE

8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State and ZIP Code)

CODE FACILITY CODE

SPE60419R0402

X

2019 FEB 26

10A. MODIFICATION OF CONTRACT/ORDER NO.

10B. DATED (SEE ITEM 13)

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of OffersX is extended, is not extended.

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.

1 copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

Offers 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:

12. ACCOUNTING AND APPROPRIATION DATA (If required)

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:

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

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)

NSN 7540-01-152-8070

Previous edition unusable

STANDARD FORM 30 (REV. 10-83)

Prescribed by GSA FAR (48 CFR) 53.243

16B. UNITED STATES OF AMERICA15B. CONTRACTOR/OFFEROR

(Signature of Contracting Officer)(Signature of person authorized to sign)

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

(a) By completing Items 8 and 15, and returning

DLA ENERGY

INSTALLATION ENERGY

8725 JOHN J. KINGMAN ROAD

FORT BELVOIR VA 22060

15C. DATE SIGNED 16C. DATE SIGNED

D. OTHER (Specify type of modification and authority)

3. EFFECTIVE DATE

See Attached Continuation Sheet(s).

(X)

CHECK ONE

9A. AMENDMENT OF SOLICITATION NO.

9B. DATED (SEE ITEM 11)

13. THIS APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

CONTINUATION SHEET REFERENCE NO. OF DOCUMENT BEING CONTINUED: PAGE 2 OF 44 PAGES

SPE60419R0402 - 0003

CONTINUED ON NEXT PAGE

SECTION A - SOLICITATION / CONTRACT FORM

1. Continuation of Standard Form 1449, Block 8: Pricing for Solicitation SPE60419R0402 is due via a reverse auction to be held at 11:00 AM local Fort Belvoir time on Thursday, April 11, 2019.

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FERMI 2019

Part I – The Schedule

SECTION A – SOLICITATION / CONTRACT FORM

QUESTIONS REGARDING THIS SOLICITGATION MUST BE SUBMITTED IN WRITING VIA E-

MAIL TO DLAENERGY.ETEAM@DLA.MIL NO LATER THAN MARCH 5, 2019.

Continuation of SF 1449, Block 8 This date refers to only to the non-price proposal requirements of this Request for Proposal (RFP).

Offerors shall submit all Non-Price Proposal elements and all other required documents pursuant to Section L of this RFP. Offerors are encouraged to submit their proposals early as pricing is not required prior to the date/time defined in SF 1449, Block 8.

Prospective offerors are encouraged to review Federal Acquisition Regulation 15.208 regarding timely submission of offers. Specifically, please be aware that it is the offeror’s responsibility to ensure that their offer is actually received at the designated Government office prior to the solicitation closing.

Submission of offers by electronic commerce (e.g. e-mail or fax) is governed by FAR 15.208(b)(1)(i). If an offeror electronically submits its offer on the day the solicitation closes, then timeliness will be determined based on whether or not the offer was actually received prior to closing. In that situation, the offeror will bear the risk of any delay in the transmission of their offer (e.g. offeror clicked “send” prior to the closing of the solicitation, but the e-mail did not arrive until after the time for closing), and offers not actually received prior to closing will be late. However, pursuant to FAR 15.208(b)(1)(i), if an offeror utilizes a means of electronic commerce to send their offer and transmits it not later than 5:00 p.m. ONE DAY PRIOR to the time for closing (and can prove that they have done so), then the offeror will be protected from such unexpected transmission delays and its offer will be considered timely.

*E-mails being sent to DLA Energy by non-DoD entities during the weekdays from 0800 to 1700 may be delayed up to several hours. To minimize potential issues as a result of any e-mail delays, DLA Energy requests that any correspondence from Non-DoD Entities allow at least 24 hours to be received.

The Government reserves the right not to consider any exceptions to the stated solicitation requirements received after the due date for technical offers.

Reverse Auction to be held at 11:00 AM local Fort Belvoir time on Thursday, April 11, 2019.

SECTION B – SUPPLIES OR SERVICES AND PRICES/COSTS

B1.08 SUPPLIES TO BE FURNISHED (ELECTRICITY) (DLA ENERGY JAN 2012)

(a) The contract quantities shown below are best estimates based on historical data only of the Government’s requirements for the contract period. The Contractor shall supply and deliver electricity and any ancillary services required in the STATEMENT OF WORK/SPECIFICATIONS (ELECTRICITY) contract text. Contract performance shall be accomplished in accordance with the terms and conditions of this contract.

(b) As used throughout this solicitation/contract, kW means kilowatt; kWh means kilowatt-hour; and UDC means Utility Distribution Company. Below are the acronyms and full names of each utility service area, public utility commission, the applicable NERC region, and those NERC Regions that border the applicable NERC Region.

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Applicable Regional Transmission Organization: PJM Public Utility Commission (PUC): Illinois Commerce Commission Utility Service Region: Commonwealth Edison (ComEd)

(c) The Government is soliciting offers for supply and transmission of electricity and ancillary services for the following locations:

Contract Line Item Number

(CLIN)

Location/ Installation Name

Number of Accounts

Estimated Quantity (kWh)

Spreadsheet Name(s)

0001 Fermi National Accelerator Laboratory 1 883,329,597 Attachment III –

Installation Data Sheet

(d) The Government is soliciting offers for a 36-month delivery period (from the meter read date occurring on or around January 1, 2020 through the meter read date occurring on or around January 1, 2023). Specifics for each line item are provided with each individual Installation Data Sheet. The information includes: (1) Line Item Number, (2) Location, (3) Local Electric Utility, (4) Current Tariff Rate, (5) Utility Account Number; (6) Contract Performance Period, (7) Monthly Consumption and Demand Data; and (8) Interval Data.

Please use the following link to access the information: http://www.fbo.gov

(e) The Government is soliciting offers for Fixed-Price, Requirements-Type utilizing Locational Marginal Price basis for electricity. Prices shall include the following charges: See contract text B19.46 Block Purchases, Paragraph (b). The charges not included in the offered unit price are: see contract text B19.46 Block Purchases.

B19.46 BLOCK PURCHASES (ELECTRICITY) (DLA ENERGY) (OCT 2017)

The total amount charged by the Contractor each month shall equal the sum of charges for: (a) Electricity, (b) the Supply Service Fee (SSF), and (c) Other Market Charges.

(a) ELECTRICITY. The Contractor shall procure a portion of the electricity to be delivered under the contract in blocks at firm-fixed prices in accordance with paragraph (1) below. All blocks shall be purchased at PJM ComEd Zone, with the remainder of the electricity requirement at the PJM ComEd zone’s Day-Ahead Locational Marginal Price (LMP).

(1) Electricity – Purchase by Firm-Fixed Price Blocks.

(i) Attachment V, titled “Block Purchase Schedule”, contains details concerning the dates and size of firm-fixed price blocks the Contractor shall purchase on behalf of the Government.

The Government reserves the right to modify Attachment V without change to the Contractor’s SSF.

(ii) All blocks shall be sized in whole megawatts.

(iii) Blocks may be either all-hour (i.e., 24 hours by 7 days), or on-peak period only, or off-peak period only.

(iv) For each block purchase, the Contractor shall provide to the Government at least three executable price quotes, or at least four if one of the executable price quotes is from a Contractor affiliate. Within one hour of receiving notification from the Contractor regarding the executable price quotes for a firm-fixed price block, the Government will notify the Contractor of its decision to accept one, or reject all, of the executable price quotes provided by the Contractor. Typically, the Government will notify the contractor, by telephone, of its decision within five to ten minutes of receiving the executable price(s). Upon receipt of the Government’s acceptance of an executable price quote, the Contractor shall purchase the block. The Government may, in its sole discretion, reschedule the

SPE60419R0402_A0003 Page 5 of 44 purchase of a block, pursuant to the foregoing procedures, should the Government reject all of the executable price quotes provided by the Contractor for a block. The Government is responsible only for the decision to enter into block electricity purchases. The Contractor is responsible for managing all other aspects as required by the Statement of Work to ensure performance. The Government reserves the right to decline to purchase any block(s) if, in its sole discretion, it determines the price or any other aspect of the proposed block purchase is unsatisfactory.

(v) For the blocks of electricity purchased by the Contractor at firm-fixed prices, the Government shall pay the Contractor the product of the market-based block price-per kilowatt-hour (kWh) and the number of kWhs in the block.

(vi) If in any Settlement Period the Government’s kWh consumption is below (or above) the sum of the blocks to be delivered, the Contractor shall credit (or charge) the Government for each kWh of consumption below (or above) the sum of the blocks as specified in subparagraph (2), below.

(2) Electricity – Purchased at PJM ComEd zone’s Day-Ahead LMP.

Pricing for Quantities Outside Purchased Blocks of Electricity

(i) If, in any Settlement Period, consumption of electricity is below or above the contract blocks, the Contractor shall charge the Government in accordance with the methodology specified in Sections (2)(ii) and (2)(iii) of this contract text, respectively.

(ii) If, in any Settlement Period, an Electricity Deficiency occurs, an Electricity Deficiency Adjustment shall be made. Electricity Deficiency means the deficit in the Government’s Actual Consumption for the Settlement Period as measured against the sum of the electricity associated with the electricity blocks for the Settlement Period, i.e., the Benchmark Quantity. Electricity Deficiency is calculated by subtracting the Actual Consumption for a Settlement Period from the Settlement Period Benchmark Quantity for that period. The Electricity Deficiency Adjustment is a credit to the Government.

Expressed as a formula, the Electricity Deficiency Adjustment is EDA = ED x ComEd Zone where-- EDA is the Electricity Deficiency Adjustment ED is the Electricity Deficiency ComEd Zone is the relevant PJM ComEd Zone Day-Ahead LMP value as posted on PJM’s website.

The Electricity Deficiency Adjustment is calculated for each Settlement Period in the month in which the electricity was consumed and included on the next monthly invoice.

(iii) If, in any Settlement Period, Excess Electricity is consumed, an Excess Electricity Adjustment shall be made. Excess Electricity means the excess in the Government’s Actual Consumption for the Settlement Period as measured against the Settlement Period Benchmark Quantity.

Excess Electricity is calculated by subtracting the Settlement Period Benchmark Quantity from the Actual Consumption for the Settlement Period. The Excess Electricity Adjustment is a charge to the Government.

Expressed as a formula, the Excess Electricity Adjustment is EEA = EE x ComEd Zone where-- EEA is the Excess Electricity Adjustment EE is the Excess Electricity

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ComEd is the relevant PJM ComEd Zone Day-Ahead LMP value as posted on PJM’s website.

The Excess Electricity Adjustment is calculated for each Settlement Period in the month in which the electricity was consumed and included on the next monthly invoice.

(b) SSF. For each Settlement Period, the Government shall pay the Contractor the product of the SSF and the account’s total electricity consumption in that Settlement Period. The SSF shall be fixed and identical for each kWh supplied under this contract. The SSF shall not include any charges identified in Paragraphs (a) Electricity; or (c) Other Market Charges; of this clause.

NOTE: The Balancing and Operating Reserves shall be included in the Supply Service Fee.

NOTE: All credits shall be passed-through to the Government and not included in the Supply Service Fee.

(c) OTHER MARKET CHARGES. The following charges identified below shall be a direct pass-through to the Government with no additional mark-up, and shall be invoiced in accordance with the INVOICE clause:

(1) CAPACITY – The capacity price shall be the established PJM Auction price as defined on the PJM website, for the ComEd Zone. Contractors will be required to provide documentation for the capacity charge calculation.

(2) TRANSMISSION COSTS – Transmission costs associated with each account shall be passed through to the Government at the applicable PJM tariff rate as prescribed in the OATT.

Transmission charges shall be billed according to the following formula:

Transmission Charge = Applicable Transmission Peak Load Contribution (kW) x Network Integration Transmission Service Rate (for ComEd) / 365 / 1000

(3) REGIONAL TRANSMISSION EXPANSION PLANNING PROCESS (RTEP) –

PJM’s RTEP shall be treated as direct pass-through to the Government.

(4) RELIABILITY MUST RUN (RMR) - Any RMR charges shall be treated as a direct pass-through to the Government.

(5) AUCTION REVENUE RIGHTS (ARRs) - Any ARRs associated with the account loads shall be credited back to the Government, based on the Government’s share of the Contractor’s overall load. Both the transmission charge and any credits to the Government shall be shown as separate line items on the monthly invoices. The monthly invoices shall provide documentation of the derivation of the ARR credits.

NOTE: The timeframe for applying Auction Revenue Rights (ARR) credits is 60 days maximum.

(6) TRANSMISSION AND DISTRIBUTION LOSSES – Transmission losses (charges and credits) and Distribution loss charges shall be treated as a direct pass-through to the Government and shall be the sum of the transmission and distribution losses charges/credits applicable to the Fermi National Laboratory load for the month. Credits to the Government shall include PJM Marginal Loss Over-Collection Credits associated with the Fermi National Laboratory loads. The Contractor shall provide the methodology and documentation of how these credits are calculated. Losses shall not be calculated by grossing up metered consumption and shall be calculated as follows:

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For each billing period, Step 1: Calculate Average Load weighted LMPs (using Day Ahead LMPs for ComEd Zone) in $/MWH = ∑(hourly loads X hourly LMP) / ∑(hourly loads)

Step 2: Calculate Unit Loss Charge = Loss Factor X Average Load Weighted LMPs

Step 3: Loss charges = Unit Loss Charge X Total Actual (i.e., metered) Consumption

(7) PJM MARGINAL LOSS OVER-COLLECTION CREDIT

(i) Credits shall be treated as a separate line item on each invoice

(ii) Over collection of Marginal losses shall be passed-through to the Government.

(iii) Offerors have the option to use the load ratio share or hourly loss duration factors to compute the PJM Marginal Loss Over Collection Credits.

(iv) Offerors shall specify the method chosen to compute the PJM Marginal Loss Over Collection Credits, in their offer.

(v) Any PJM losses over-collection credits due Fermi National Laboratory after the expiration of the contract terms shall be reimbursed to the APPLICABLE FERMI FINANCE OFFICE (TO BE PROVIDED AT CONTRACT AWARD) by check. Technical Data Submissions shall include information describing the supplier’s refund process for PJM losses over-collection credits to be used in the event of contract award. Suppliers shall also provide examples showing the calculation methodology and invoicing procedures.

(8) UNACCOUNTED FOR ENERGY (UFE) - UFE is to be passed through with a 60 day true-up.

(9) EDC LOSS DE-RATION - The EDC Loss De-Ration Factor shall be a direct pass-through with no mark-up and applied in relation to Hourly Consumption and the Transmission and Distribution Loss Factors as follows:

Hourly Consumption x (1 + Distribution Loss Factor) x (1 + Transmission Loss Factor) x (1 – EDC Loss De-ration Factor)

SECTION C – STATEMENT OF WORK/SPECIFICATIONS

(a) STATEMENT OF WORK. The Contractor shall supply electricity, and any ancillary services required to deliver electricity to the Point of Delivery, for each account under the contract. The Contractor shall schedule and coordinate, and supply any ancillary services required for the delivery of electricity to the Service Point for each account. Charges incurred due to the Contractor's failure to abide by the terms of the applicable PJM tariffs and PJM agreements and/or the UDC Service Agreement shall be the responsibility of the Contractor. The Contractor is responsible for all costs required to meet its obligations under this contract, including but not limited to costs associated with deliveries of electricity to the Point of Delivery and with scheduling and coordination for delivery of electricity to the Service Point for each account. The Contractor shall be liable for any and all penalties and/or additional costs assessed to the Government for the nondelivery of the electricity requirements in accordance with paragraphs (f) and (m) of Tailored 52.212-4, CONTRACT TERMS AND CONDITIONS – COMMERCIAL ITEMS, as incorporated into this contract.

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(b) INVOICE AND PAYMENT. The Government will utilize Dual Billing for any and all applicable awards made under this solicitation. All costs associated with billing shall be included in the offered price. The Government will not pay any additional charges for billing services. In addition to the requirements set forth in FAR 52.212-4 CONTRACT TERMS AND CONDITIONS - COMMERCIAL ITEMS Paragraph (g), each Contractor invoice to each account shall include the following information:

1. Installation name, Line Item, and individual account information (Account Number, Meter Number, and Service Location)

2. Billing period for the account

3. Total consumption (kWh) for each account (broken down by Peak, Off-Peak, Semi-Peak if applicable)

4. Demand information for each account (broken down by Peak, Off-Peak, Semi- Peak if applicable).

5 4. Total Energy Charge (broken down by energy charges and demand charges) 6 5. Account Capacity Obligation and its associated cost for the billing period including Peak Load Contribution (PLC) documentation 7 6. Transmission charges Account network transmission obligation for the billing period including Network Peak Load Contribution (PLC) documentation 8 7. Supply Service Fee for the billing period 9 8. Auction Revenue Rights charge/credit 10 9. Block electricity charges and LMP based charges and credits for usage over and under the blocks procured 11 10. Marginal loss credits 12 11. Capacity 13 12. Documentation of each charge shall be included in each invoice 14 13. Spreadsheet that shows how each of the invoice related items were calculated

NOTE: In addition to submitting a hard copy of the invoice to the Department of Energy, the Contractor shall electronically submit a copy of the invoice along with the spreadsheet that shows the documentation of how the various charges were calculated.

NOTE: If a Contractor is unable to issue a bill based on actual meter reading due to the failure of the UDC to obtain or transmit a meter reading to the Contractor, the Contractor may issue a bill based on an estimated reading fifteen (15) calendar days following the meter read date for the affected account. The Contractor must inform the customer of the reason for the issuance of the estimated bill, and the Government reserves the right to obtain documentation relating to the efforts taken by the Contractor to obtain the meter read data. For estimated billing purposes, the estimate of usage provided by the UDC shall be used first. If no such UDC estimate is available, the Contractor shall use the relevant monthly consumption data (as the estimate) included in the applicable Installation Data Sheet, adjusted for the number of days. All estimated bills shall be trued up on the next billing cycle.

To calculate the Total Energy Charge (Number 5 above) for each account the Contractor shall provide on each invoice, a per-account energy usage break down (hour-by-hour with the corresponding firm fixed price block rates and LMP rates for all applicable firm fixed price blocks for each hour). To calculate the Account Capacity Obligation for each account (Number 6 above) and the associated costs, please see Clause B19.46 BLOCK PURCHASES. Fermi

SPE60419R0402_A0003 Page 9 of 44 utilizes Automatic Meter Reading (AMR) services provided by ComEd. Supplier shall be solely responsible for all coordination with ComEd to ensure complete transition of AMR services and to assume such related responsibilities from the current contractor. There will be no cost to the Contractor for AMR. The contractor shall submit both the ComEd and supplier bills to the customer at the same time. Invoices must be submitted in both hardcopy and electronic form.

NOTE: Suppliers will not be charged for AMR.

(c) METERING AND METER READING SERVICES. Will be provided by the incumbent UDC for each account.

(d) SCHEDULING AND SUPPLY MANAGEMENT. It shall be the Contractor's responsibility to schedule deliveries for each account awarded for the period of performance specified herein. The Contractor shall be responsible for supply management and overall coordination of production, transmission, and distribution of electrical power to the Service Point of each account identified in the contract. As such, the Contractor shall be knowledgeable of and responsible for imbalance policies, transmission grid losses, transmission congestion charges and UDC line losses for the delivery of electricity to the Service Point of each account under the contract. The Contractor must meet all applicable state and federal requirements necessary to successfully complete this contract. The Government will not pay any costs associated with the Contractor's failure to deliver electrical power at the Point of Delivery sufficient to meet the demand at the Service Point of each account under the contract or to schedule and coordinate for the delivery of electricity to each Service Point.

(e) RECORD KEEPING. The Contractor shall keep records of data required to bill in accordance with the utility tariff of each account (demand and consumption data) in an electronic database format compatible with Microsoft Access or a spreadsheet format compatible with Microsoft Excel. The Contractor shall also retain all supporting PJM invoices and billing reports associated with each of the PJM Sub-accounts dedicated to the various Government accounts. These records shall be made available to DLA Energy or to any party designated by DLA Energy as authorized to request this data. In the event that the Contractor maintains records on demand and consumption data in addition to that required to bill in accordance with the utility tariff, said data shall also be made available to DLA Energy or to any party designated by DLA Energy as authorized to request this data. The Contractor shall provide (or make available) to DLA Energy or to any party designated by DLA Energy, interval data (for those accounts with an interval meter) in Microsoft Excel format, on a monthly basis throughout the entire delivery term of any resultant contract.

(f) ORDERING. Orders shall be made in accordance with the I800, ELECTRICITY ORDERING PROCEDURES contract text.

(g) POINT OF DELIVERY. For this solicitation and any resulting contract, the delivery point for each account is defined as an interconnect with the UDC owned or controlled transmission or distribution systems.

(h) SERVICE POINT. For this solicitation and any resulting contract, the Service Point is defined as the meter(s) indicated for each account awarded.

(i) SPECIFICATIONS. The electricity provided under this contract shall conform to the tariff of the transmitting and/or distributing utility at the Point(s) of Delivery specified in the Schedule.

SECTION D – PACKAGING AND MARKING

Not Applicable

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SECTION E – INSPECTION AND ACCEPTANCE

The offeror shall comply with FAR 52.212-4 Contract Terms and Conditions – Commercial Items, Paragraph (a) Inspection/Acceptance.

SECTION F – DELIVERIES OR PERFORMANCE

Not Applicable

SECTION G – CONTRACT ADMINISTRATION DATA

Not Applicable

SECTION H – SPECIAL CONTRACT REQUIREMENTS

H800 NOTIFICATION OF TARIFF/RATE CHANGES (ELECTRICITY) (DLA ENERGY FEB

2013) The Contractor shall use commercially reasonable efforts to provide the Contracting Officer with written notice received by the Contractor of any relevant changes to the transportation tariff/rate or the scheduling of a tariff/rate hearing that would reasonably be expected to have impact on the installations within a commercially reasonable time frame. Failure of the Contractor to comply with this contract text shall not be grounds for termination for cause.

Note: Email notification is acceptable, provided it includes the specific tariff change (via cut and paste) and its effective date.

Part II – Contract Clauses

SECTION I – CONTRACT CLAUSES

NOTE: INSTRUCTIONS HAVE BEEN TAILORED TO BE MORE CONSISTENT WITH

COMMERCIAL PRACTICE UNDER FAR PART 52.212-4. ALL OTHER INSTRUCTIONS

INCLUDED IN FAR 52.212-4 ARE HEREBY INCORPORATED BY REFERENCE (SEE BLOCK

27A OF STANDARD FORM 1449).

(f) EXCUSABLE DELAYS. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence, such as acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, civil disturbance, hostile forces, terrorist acts or transmission failure. An excusable delay or similar event suffered by an independent service operator (ISO) (or an equivalent of an ISO) or a utility distribution company (or electric distribution company or transmission distribution services provider) shall constitute an excusable delay hereunder. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly provide notice to the Contracting Officer of the cessation of such occurrence. Upon delivery of notice of the occurrence of an

SPE60419R0402_A0003 Page 11 of 44 excusable delay, the obligations of the Contractor shall be suspended to the extent affected by such excusable delay.

(k) TAXES.

(1) The contract price includes all applicable Federal, State, and local taxes and duties in effect at contract signing.

(2) After-imposed Federal, State, or local tax, as used in this DLA Energy FAR Tailored clause, means any new or increased Federal, State, or local excise tax or duty, or tax that was exempted or excluded on the contract award date but whose exemption was later revoked or reduced, or whose computation was later changed during the contract period, on the transactions or property covered by this contract that the Contractor is required to pay or bear as the result of legislative, judicial, or administrative action taking effect after the contract date. It does not include social security tax, income tax, or other employment taxes. The contract price shall be increased by the amount of any after-imposed Federal, State or local tax, provided the Contractor warrants, in writing, that no amount for such newly imposed Federal, State, or local excise tax or duty or rate increase was included in the contract price, as a contingency reserve or otherwise.

(3) After-relieved Federal, State, or local tax, as used in this DLA Energy FAR Tailored clause, means any amount of Federal, State, or local excise tax or duty that would otherwise have been payable on the transactions or property covered by this contract, but which the Contractor is not required to pay or bear, or for which the Contractor obtains a refund or drawback, as the result of legislative, judicial, or administrative action taking effect after the contract date. It does not include social security tax, income tax, or other employment taxes. The contract price shall be decreased by the amount of any after-relieved Federal, State, or local tax.

(l) TERMINATION FOR THE GOVERNMENT'S CONVENIENCE.

(1) In accordance with all applicable state and local distribution company regulations, the Government reserves the right to terminate this contract with respect to any or all contract quantities, for its sole convenience. In the event of such termination, the Contractor shall cease deliveries hereunder with respect to such terminated contract quantities on the first allowable date subsequent to such termination according to the applicable tariff sheets of the local distribution company. The Contractor shall cause any and all of its suppliers and subcontractors to cease work related to this contract prior to the date and time specified by the Government for the termination. Subject to the terms and conditions of this contract, the Contractor shall be paid for electricity delivered under the contract prior t the date and time specified by the Government for the termination of any or all contract quantities plus any additional energy the Contractor is required to deliver for the Government’s account under applicable location distribution company tariff sheets.

(2) In the event of a termination for convenience, the Government shall pay the Contractor the termination value, if positive, calculated by the following formula:

(i) Wholesale Block Purchases (Portfolio):

A = ((B - C)*D) + ((F – G)*H) + J

Where-- A = Termination value.

B = Block purchase price (per kWh) for each converted block.

C = Forward market bid price per kWh, defined herein.

D = Contract quantity in kWh for each converted block.

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F = Price at which forward capacity (per MW) was purchased, as directed by the Government.

G = Forward market price for capacity, per MW.

H = The quantity (in MW) of capacity purchased on a forward basis, as directed by the Government.

J = The Contractor’s unmitigated cost for forward purchased ancillary services acquired by the Contractor to serve the Government load or other unmitigated costs incurred by the Contractor to serve the Government load, defined herein.

(A) If the termination value on the date of termination is negative, the Contractor shall not be entitled to any payment.

(B) The forward market bid price for electric power shall be defined as the prices at PJM ComEd Zone for a term equal to the remaining term of the block. The forward market price for capacity shall be defined as the capacity price for the relevant delivery point for a term equal to the remaining term of the capacity contract for. The forward market prices will be determined by the Contractor in a commercially reasonable manner, which may include polling energy brokers/capacity brokers on the date of termination. The Government shall have the right to audit forward market price data obtained by the Contractor.

(C) The cost incurred by the Contractor for forward purchased ancillary services, or other cost items, to the extent that these incurred costs cannot be mitigated through market sale or other means, may be recovered by the Contractor in the event of a termination for convenience of the Government upon a showing by the Contractor that the costs for ancillary services (or other costs) to serve the Government load were reasonably incurred, reasonable efforts were made by the Contractor to mitigate the costs, that the costs incurred by the Contractor were for the sole purpose of serving the Government load. The recoverable costs shall be limited to the direct costs for ancillary services forward purchased by the Contractor to serve the Government load or other unmitigated direct costs incurred by the Contractor to serve the Government load and shall not include any Contractor administrative costs, transaction costs, overhead costs, or other indirect costs.

(D) In the event of a termination for convenience, the Government’s liability shall be limited to the termination value calculated in accordance with the provisions of this DLA Energy FAR Tailored clause.

Note: The termination value formula above shall only apply to electricity or capacity purchased on a fixed price basis. The Government shall incur no termination liability for electricity purchased on a locational marginal pricing basis, or capacity on a pass-through basis.

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

(n) TITLE. Title to the electricity supplied by the Contractor under this contract shall pass to the Government upon delivery at the delivery point specified in the Schedule. The Contractor warrants that the electricity delivered to the Government under this contract will be free and clear of any liens, claims and encumbrances arising prior to delivery at the delivery point specified in the Schedule.

SPE60419R0402_A0003 Page 13 of 44

(o) WARRANTY. The Contractor warrants and implies that the electricity delivered hereunder conforms to the tariff of the transmitting and/or distributing utility at the delivery point specified in the Schedule.

(p) LIMITATION OF LIABILITY Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for any consequential, special, incidental, punitive, exemplary or indirect damages or other business interruption damages except to the extent caused by a contractor’s or its agent’s gross negligence or willful misconduct.

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

(1) 52.203-19, 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 and Other Covered Entities (Jul 2018) (Section 1634 of Pub.

L. 115-91).

(3) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015).

(4) 52.233-3, Protest After Award (Aug 1996) (31U.S.C.3553).

(5) 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 items:

[Contracting Officer check as appropriate.]

X (1) 52.203-6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I (Oct 1995) (41 U.S.C.4704 and 10 U.S.C.2402).

X (2) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C.

3509)).

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

X (4) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Oct 2018) (Pub. L. 109-282) (31 U.S.C. 6101 note).

__ (5) [Reserved].

__ (6) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

__ (7) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C).

X (8) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Oct 2015) (31 U.S.C. 6101 note).

SPE60419R0402_A0003 Page 14 of 44

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

__ (10) [Reserved].

__ (11)(i) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Nov 2011) (15 U.S.C.657a).

__ (ii) Alternate I (Nov 2011) of 52.219-3.

X (12)(i) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Oct 2014) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

__ (ii) Alternate I (Jan 2011) of 52.219-4.

__ (13) [Reserved] __ (14)(i) 52.219-6, Notice of Total Small Business Set-Aside (Nov 2011) (15 U.S.C.644).

__ (ii) Alternate I (Nov 2011).

__ (iii) Alternate II (Nov 2011).

__ (15)(i) 52.219-7, Notice of Partial Small Business Set-Aside (June 2003) (15 U.S.C. 644).

__ (ii) Alternate I (Oct 1995) of 52.219-7.

__ (iii) Alternate II (Mar 2004) of 52.219-7.

X (16) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)).

X (17)(i) 52.219-9, Small Business Subcontracting Plan (Aug2018) (15 U.S.C. 637(d)(4)) __ (ii) Alternate I (Jan 2017) of 52.219-9.

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

X (iv) Alternate III (Nov 2016) of 52.219-9.

__ (v) Alternate IV (Aug 2018) of 52.219-9 __ (18) 52.219-13, Notice of Set-Aside of Orders (Nov 2011) (15 U.S.C. 644(r)).

__ (19) 52.219-14, Limitations on Subcontracting (Jan 2017) (15 U.S.C.637(a)(14)).

X (20) 52.219-16, Liquidated Damages-Subcontracting Plan (Jan 1999) (15 U.S.C.

637(d)(4)(F)(i)).

__ (21) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (Nov 2011) (15 U.S.C. 657f).

X (22) 52.219-28, Post Award Small Business Program Rerepresentation (Jul 2013) (15 U.S.C. 632(a)(2)).

__ (23) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (Dec 2015) (15 U.S.C. 637(m)).

__ (24) 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 (Dec2015) (15 U.S.C.

637(m)).

X (25) 52.222-3, Convict Labor (June 2003) (E.O.11755).

X (26) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (Jan 2018) (E.O.13126).

__ (27) 52.222-21, Prohibition of Segregated Facilities (Apr 2015).

X (28)(i) 52.222-26, Equal Opportunity (Sept 2016) (E.O.11246).

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

X (29)(i) 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212).

__ (i) Alternate I (July 2014) of 52.222-35.

X (30)(i) 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C.793).

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

SPE60419R0402_A0003 Page 15 of 44

X (31) 52.222-37, Employment Reports on Veterans (Feb 2016) (38 U.S.C. 4212).

X (32) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496).

X (33)(i) 52.222-50, Combating Trafficking in Persons (Jan 2019) (22 U.S.C. chapter 78 and E.O.

13627).

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

X (34) 52.222-54, Employment Eligibility Verification (Oct 2015). (Executive Order 12989). (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.)

__ (35)(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.)

__ (36) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (Jun 2016) (E.O. 13693).

__ (37) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (Jun2016) (E.O. 13693).

__ (38)(i) 52.223-13, Acquisition of EPEAT®-Registered Imaging Equipment (Jun 2014) (E.O.s 13423 and 13514).

__ (ii) Alternate I (Oct 2015) of 52.223-13.

__ (39)(i) 52.223-14, Acquisition of EPEAT®-Registered Televisions (Jun 2014) (E.O.s 13423 and 13514).

__ (ii) Alternate I (Jun 2014) of 52.223-14.

__ (40) 52.223-15, Energy Efficiency in Energy-Consuming Products (Dec 2007) (42 U.S.C.

8259b).

__ (41)(i) 52.223-16, Acquisition of EPEAT®-Registered Personal Computer Products (Oct 2015) (E.O.s 13423 and 13514).

__ (ii) Alternate I (Jun 2014) of 52.223-16.

X (42) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (Aug 2011) (E.O. 13513).

__ (43) 52.223-20, Aerosols (Jun 2016) (E.O. 13693).

__ (44) 52.223-21, Foams (Jun2016) (E.O. 13693).

X (45)(i) 52.224-3 Privacy Training (Jan2017) (5 U.S.C. 552 a).

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

__ (46) 52.225-1, Buy American-Supplies (May 2014) (41 U.S.C.chapter 83).

__ (47)(i) 52.225-3, Buy American-Free Trade Agreements-Israeli Trade Act (May 2014) (41 U.S.C. chapter 83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 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 (May 2014) of 52.225-3.

__ (iii) Alternate II (May 2014) of 52.225-3.

__ (iv) Alternate III (May 2014) of 52.225-3.

X (48) 52.225-5, Trade Agreements (Aug 2016) (19 U.S.C.2501, et seq., 19 U.S.C. 3301 note).

X (49) 52.225-13, Restrictions on Certain Foreign Purchases (June 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of

SPE60419R0402_A0003 Page 16 of 44 the Treasury).

__ (50) 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. 2302 Note).

__ (51) 52.226-4, Notice of Disaster or Emergency Area Set-Aside (Nov2007) (42 U.S.C.

5150).

__ (52) 52.226-5, Restrictions on Subcontracting Outside Disaster or Emergency Area (Nov2007) (42 U.S.C. 5150).

__ (53) 52.232-29, Terms for Financing of Purchases of Commercial Items (Feb 2002) (41 U.S.C.4505, 10 U.S.C.2307(f)).

__ (54) 52.232-30, Installment Payments for Commercial Items (Jan2017) (41 U.S.C.4505, 10 U.S.C.2307(f)).

X (55) 52.232-33, Payment by Electronic Funds Transfer-System for Award Management (Oct2018) (31 U.S.C. 3332).

__ (56) 52.232-34, Payment by Electronic Funds Transfer-Other than System for Award Management (Jul 2013) (31 U.S.C.3332).

__ (57) 52.232-36, Payment by Third Party (May 2014) (31 U.S.C.3332).

__ (58) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 U.S.C. 552a).

X (59) 52.242-5, Payments to Small Business Subcontractors (Jan 2017) (15 U.S.C.

637(d)(12)).

__ (60)(i) 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C.Appx.1241(b) and 10 U.S.C. 2631).

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

__ (iii) Alternate II (Feb 2006) 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 items:

[Contracting Officer check as appropriate.]

__ (1) 52.222-17, Nondisplacement of Qualified Workers (May 2014)(E.O. 13495).

__ (2) 52.222-41, Service Contract Labor Standards (Aug 2018) (41 U.S.C. chapter 67).

__ (3) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 2014) (29 U.S.C.

206 and 41 U.S.C. chapter 67).

__ (4) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (Aug 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67).

__ (5) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (May 2014) (29 U.S.C.206 and 41 U.S.C.chapter 67).

__ (6) 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).

__ (7) 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).

__ (8) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015).

SPE60419R0402_A0003 Page 17 of 44

__ (9) 52.222-62, Paid Sick Leave Under Executive Order 13706 (Jan 2017) (E.O. 13706).

__ (10) 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations (May 2014) (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, 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 any FAR clause, other than those in this paragraph (e)(1) in a subcontract for commercial items. Unless otherwise indicated below, the extent of the flow down shall be as required by the clause-

(i) 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C.

3509).

(ii) 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.