TANKVOY PART II FAR 52.212-4.pdf

PART II. FAR 52.212-4 CONTRACT TERMS AND CONDITIONS-- COMMERCIAL

PRODUCTS AND COMMERCIAL SERVICES (DEC 2022) (tailored pursuant to FAR 12.302(a))

* Indicates that the clause is not tailorable.

^Indicates that the clause has not been tailored.

(a) INSPECTION (TAILORED)

(1) In General. The Vessel and her hull, machinery, boilers, all holds, voids, tanks, spaces, and equipment whatsoever, shall be subject to Charterer's inspection as to suitability for the required service prior to acceptance of the Vessel and at any time during the period of this Charter Party. In determining suitability (ability to carry the intended cargo) and acceptability, inspections of the Vessel and testing of cargo samples from the Vessel will be done in accordance with “Quality Surveillance for Fuels, Lubricants, and Related Products, MIL-STD-3004” as required by the Defense Logistics Agency - Energy (DLA- E).

(2) Charterer's Rights. If in the opinion of the Charterer's inspector a deficiency or condition renders the Vessel inadequate for the required service, the Charterer shall have the option to cancel this Charter Party at no cost to the Government or to require any necessary corrective actions at the Vessel's expense and to the Charterer's satisfaction. If additional cleaning of the Vessel’s tanks, pipes, or pumps is required by the Charterer’s inspector, such cleaning (and gas-freeing if required) shall be at the Vessel’s expense to the Charterer’s satisfaction and in accordance with MIL-STD-3004 and MIL-HDBK- 291(SH), Cargo Tank Cleaning. The Charterer further reserves the right to have the Vessel surveyed at any time by an independent surveyor at Charterer’s expense.

(3) Limitation of Charterer's Liability. Except as otherwise specifically provided herein, the

Charterer shall not be liable for any loss, damage, expense, cost, or liability whatsoever and howsoever incurred by the Owner or Vessel or which are imposed upon Owner by operation of law.

(4) Cooperation of Master. The Charterer or designated representative(s) shall have the right at loading and/or discharging port(s) or place(s) to inspect the Vessel and observe operations. The Owner shall instruct the Master to give every assistance so as to enable said representative(s) to observe operations throughout the Vessel properly. Charterer’s representative(s) shall not interfere with the Vessel’s operations. Any delay to the Vessel resulting from the Charterer’s inspections shall count as laytime or, if the Vessel is on demurrage, as time on demurrage.

(5) Surveying and Sampling. The Charterer’s representative(s) shall have the right to survey and take samples of the Vessel’s bunker tanks and non-cargo spaces. Refusal by the Master to permit such bunker surveying and sampling shall give the Charterer or terminal operator the right to order the Vessel off berth. All time lost by reason of such refusal, including any time used in shifting off and back to berth, shall not count as laytime, or if the Vessel is on demurrage, as time on demurrage. Further, all expenses related to such refusal, including Vessel shifting expenses, shall be for the Owner’s account. Any delay to the Vessel caused solely by the Charterer’s bunker surveying and sampling shall count as laytime or, if the Vessel is on demurrage, as time on demurrage.

(6) Surveyors and Consultants. Surveyors or consultants as mutually agreed may be retained under this Charter in order to facilitate fact-finding in respect of actual or potential claim actions or for inspections or surveys generally; the costs therefor shall be as mutually agreed and, if for Charterer's account, said costs shall be incurred only after prior written approval from the Contracting Officer.

*(b) ASSIGNMENT

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

(c) CHANGES (TAILORED)

Changes within the general scope of any of the terms and conditions of this Contract may be ordered by the Contracting Officer. If any such change causes an increase or decrease in the cost of performance, such change shall be the subject of a bilateral modification to the Contract. However, nothing in this clause shall excuse the Contractor from proceeding with the Contract as changed.

*(d) DISPUTES

This contract is subject to 41 U.S.C. chapter 71, Contract Disputes. Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at Federal Acquisition Regulation (FAR) 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.

(e) DEFINITIONS (TAILORED)

The clause at FAR 52.202-1, Definitions, is incorporated herein by reference. Additional definitions are listed in Part IV.

(f) EXCUSABLE DELAYS (TAILORED)

(1) Excepted events. Neither the Vessel, her Master, the Owner, nor the Charterer shall, unless otherwise in this Charter Party expressly provided, be responsible for any loss or damage or delay or failure in performing hereunder arising or resulting from any act of http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 http://uscode.house.gov/browse.xhtml;jsessionid=114A3287C7B3359E597506A31FC855B3 https://www.acquisition.gov/far/52.233-1#FAR_52_233_1

God; act of public enemies, pirates, or assailing thieves; arrest or restraint of princes, rulers, or people; seizure under legal process provided bond is promptly furnished to release the Vessel; flood; fire; blockade; riot, insurrection, or civil commotion;

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

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

(3) Reservation. The exceptions identified in subparagraph (1) above shall not be such as to affect the Owner's warranties respecting the condition of the Vessel, or the Owner's obligations respecting the services specified under this Charter. Defaults of subcontractors at any tier or the Owner’s failure to perform due to a labor disruption, labor dispute, or strike shall not constitute excepted events under subparagraph (1).

*(g) INVOICE

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

(i) Name and address of the Contractor;

(ii) Invoice date and number;

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

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

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

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

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

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

and

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

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

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

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

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

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

^(h) PATENT INDEMNITY

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

*(i) PAYMENT

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

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

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

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

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(5) Overpayments. If the Contractor becomes aware of a duplicate contract financing or invoice payment or that the Government has otherwise overpaid on a contract financing or invoice payment, the Contractor shall-

(i) Remit the overpayment amount to the payment office cited in the contract along with a description of the overpayment including the-

(A) Circumstances of the overpayment (e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

(B) Affected contract number and delivery order number, if applicable;

(C) Affected line item or subline item, if applicable; and

(D) Contractor point of contact.

(ii) Provide a copy of the remittance and supporting documentation to the Contracting Officer.

(6) Interest.

(i) All amounts that become payable by the Contractor to the Government under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, as provided in (i)(6)(v) of this clause, and then at the rate applicable for each six-month period as fixed by the Secretary until the amount is paid.

(ii) The Government may issue a demand for payment to the Contractor upon finding a debt is due under the contract.

(iii) Final decisions. The Contracting Officer will issue a final decision as required by 33.211 if–

(A) The Contracting Officer and the Contractor are unable to reach agreement on the existence or amount of a debt within 30 days;

(B) The Contractor fails to liquidate a debt previously demanded by the Contracting Officer within the timeline specified in the demand for payment unless the amounts were not repaid because the Contractor has requested an installment payment agreement; or

(C) The Contractor requests a deferment of collection on a debt previously demanded by the Contracting Officer (see 32.607-2).

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(iv) If a demand for payment was previously issued for the debt, the demand for payment included in the final decision shall identify the same due date as the original demand for payment.

(v) Amounts shall be due at the earliest of the following dates:

(A) The date fixed under this contract.

(B) The date of the first written demand for payment, including any demand for payment resulting from a default termination.

(vi) The interest charge shall be computed for the actual number of calendar days involved beginning on the due date and ending on-

(A) The date on which the designated office receives payment from the Contractor;

(B) The date of issuance of a Government check to the Contractor from which an amount otherwise payable has been withheld as a credit against the contract debt;

or

(C) The date on which an amount withheld and applied to the contract debt would otherwise have become payable to the Contractor.

(vii) The interest charge made under this clause may be reduced under the procedures prescribed in FAR 32.608-2 in effect on the date of this contract.

(j) RISK OF LOSS (TAILORED)

(1) Carriage of Goods by Sea Act (COGSA). Except as otherwise specified herein, the Owner, Vessel, and Charterer in all matters arising under this Charter Party shall be entitled to the like privileges, rights, and immunities (from the time the cargo is loaded until the time it is discharged from the Vessel) as are contained in 46 U.S.C. App. 1300- 1315. However, any references in COGSA to (a) notices of loss or damage or (b) limitation-of-action periods shall not apply to this Charter Party. For purposes of this Charter Party, the term “carrier” as used in COGSA shall mean “the Owner” and the term “shipper” shall mean “the Charterer.”

(2) Other Statutes. The Owner and the Vessel shall have the benefit of all limitations of and exemptions from liability accorded the Owner by any U.S. statute or rule of law for the time being in force (except to the extent that contract terms entitle the Government to compensation from the Contractor for the Contractor's failure to perform the requirements and obligations of this Charter or to the extent such statute or rule of law is subordinate to any statutorily mandated provision of this Charter Party by operation of law).

https://www.acquisition.gov/far/32.608-2#FAR_32_608_2

(3) Fire. Neither the Owner nor any corporation owned by, subsidiary to, or associated or affiliated with the Owner shall be liable to answer for or make good any loss or damage to the Cargo occurring at any time and even though before loading on or after discharge from the Vessel, by reason or by means of any fire whatsoever, unless such fire shall be caused by its design or neglect or unless such wholly owned, subsidiary, or associated corporation serves as underwriter for the Owner and the policy between the Owner and underwriter provides coverage for such liability.

(k) TAXES (TAILORED)

Dues, taxes, wharfage, pilotage, towage, canal tolls, and other charges upon the Vessel, even when assessed on the quantity of cargo loaded or discharged, shall be paid by the Owner and for their account.

^(l) TERMINATION FOR THE GOVERNMENT'S CONVENIENCE

The Government reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Government using its standard record keeping system, have resulted from the termination.

The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government any right to audit the Contractor’s records. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(m) TERMINATION FOR CAUSE (TAILORED)

(1) 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.

(2) If this Contract is terminated while the Contractor has possession of Government goods, the Contractor shall, upon direction of the Contracting Officer, protect and preserve the goods until surrendered to the Government or its agent. The Contractor and Contracting Officer shall agree on payment for the preservation and protection of the goods. Failure to agree on an amount will be a dispute under the Disputes clause.

(3) The rights and remedies of the Government herein are in addition to any other rights and remedies provided by law or under this Contract.

^(n) TITLE

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

(o) WARRANTY (TAILORED)

(1) Warranty. The Owner warrants that, from the time when the obligation to proceed to the loading port(s) or place(s) attaches, and thereafter during the currency of this Charter Party, the Vessel shall be in full compliance with the specifications herein in addition to all other requirements of this Charter Party. The Vessel's cargo capacity, pumping capacity, position, insurance coverages, and other particulars as set forth in this Charter Party are warranties by the Owner. Should the Vessel fail to satisfy one or more of such warranties or other warranties contained in this section not due to the fault of the Charterer, the freight may be equitably decreased so as to return the Charterer to a position equivalent to that had the warranty not been breached, this Charter Party otherwise to remain unaffected; alternatively, this Charter Party may in such case be terminated at Charterer's option pursuant to II(m) (Termination for Cause) above.

(2) Condition. The Owner warrants that, before and at the commencement of the voyage(s) hereunder, it shall exercise due diligence to ensure that the Vessel and her hull, machinery, gear, runners, boilers, holds, and other equipment are fully functional and in good working order and condition, and that the Vessel is in every way seaworthy, tight, staunch, strong, and fit to carry and preserve the cargo identified in Box 2 and to perform the voyage(s) required hereunder.

(3) Regulatory Compliance. The Owner warrants that the Vessel shall be in full compliance with the International Safety Management Code, all applicable international conventions;

and all applicable laws, regulations, and other requirements of the nation of registry and of the nation(s) and local jurisdictions to whose port(s) and/or place(s) it is contemplated that the Vessel will be ordered under this Charter Party; and of any terminals or facilities in said port(s) and/or place(s); and of any classification society in which the Vessel is entered. The Vessel shall be delivered and maintained in the highest class of a recognized classification society and be in compliance with all current safety, health, and pollution regulations promulgated by appropriate authorities, including the latest applicable IMO regulations. The Owner warrants that the Vessel shall be entered with the International Tanker Owners Pollution Federation Limited (ITOPF) for the duration of this Charter. The Owner further warrants that the Vessel shall have on board during the currency of this Charter Party all certificates, records, or other documents required by the aforesaid conventions, laws, regulations, and requirements.

(4) Complement. The Owner warrants that the Vessel shall have an efficient and legally sufficient complement of Master, Officers, and crew with adequate training and experience in operation of all of the Vessel's equipment and possessing valid and current certificates/documents issued or approved by the country of the Vessel's registry. The Owner further warrants that the Master and those Officers charged with cargo and/or bunker oil handling shall be proficient with conversational English.

(5) Port Restrictions. If particular ports or places are identified in Boxes 3, 4 and 5, the

Owner warrants that a vessel of the type, tonnage, and configuration of the Vessel identified in Box 8, laden as contemplated herein, shall be able to approach, lie at, and depart from said ports or places (if safe) always afloat. Any data supplied by the Charterer in any RFP or this Charter Party respecting any port conditions or restrictions are provided for informational purposes and are not warranted to be complete or accurate.

Compliance with any additional and/or conflicting conditions or restrictions shall be the Owner's responsibility.

(6) Communications/Navigation Equipment. Vessel shall be equipped with all navigation equipment required by USCG or flag state (if non-US Flag) as appropriate and in full compliance with all international requirements and regulations. Vessel must also have INMARSAT, facsimile and email capability and, if not included elsewhere, contractor shall provide contact numbers for same on award.

(7) Tanks. The Owner warrants that the Vessel's cargo tanks shall be acceptable to receive the cargo identified in Box 2.

(8) Age of Vessel. Vessel’s age shall be less than 20 years for the duration of the charter;

vessels that will exceed 15 years during the charter period must be enrolled in their classification society’s Condition Assessment Program (CAP) and be rated CAP 2 or better. Vessel’s age for entry on the Q88 shall be computed from the build date as defined in MARPOL 73/78. Any charges incurred for performance under the contract, solely due to the vessel’s age, shall be for the owner’s account.

^(p) LIMITATION OF LIABILITY

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

*(q) OTHER COMPLIANCES

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

*(r) COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT CONTRACTS

The Contractor agrees to comply with 31 U.S.C. 1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18 U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety Standards; 41 U.S.C.

chapter 87, Kickbacks; 41 U.S.C. 4712 and 10 U.S.C. 4701 relating to whistleblower protections; 49 U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

(s) ORDER OF PRECEDENCE (TAILORED)

Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

(1) Information set forth in the Boxes (Part I);

(2) Paragraphs (b), (d), (g), (i), (q) and (r) of FAR 52.212-4 (as tailored).

(3) The clause at FAR 52.212-5.

(4) Any remaining addenda or portions thereof within this solicitation or Contract.

(5) The Standard Form 1449.

(6) Solicitation provisions if this is a solicitation.

(7) Other documents, exhibits, and attachments.

*(t) [RESERVED]

^(u) UNAUTHORIZED OBLIGATIONS

(1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any End Use License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Government.

(ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

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(2) Paragraph (u)(1) of this clause does not apply to indemnification by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

^(v) INCORPORATION BY REFERENCE.

The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract.

(End of Clause)