FILE 3 - ADDITIONAL PROVISIONS AND CLAUSES.pdf

W912P6-11-Q-0038

CLAY DIKE MATERIALS

SECTIONS D AND E - ADDITIONAL CLAUSES & SPECIAL PROVISIONS

SECTION D

INSPECTION AND ACCEPTANCE

52.246-2 INSPECTION OF SUPPLIES- FIXED PRICE (AUGUST 1996)

(a) Definition. "Supplies," as used in this clause, includes but is not limited to: raw materials, components, intermediate assemblies, end products, and lots of supplies.

(b) The Contractor shall provide and maintain an inspection system acceptable to the Government covering supplies under this contract and shall tender to the Government for acceptance only supplies that have been inspected in accordance with the inspection system and have been found by the Contractor to be in conformity with contract requirements. As part of the system, the Contractor shall prepare records evidencing all inspections made under the system and the outcome. These records shall be kept complete and made available to the Government during contract performance and for as long afterwards as the contract requires. The Government may perform reviews and evaluations as reasonably necessary to ascertain compliance with this paragraph. These reviews and evaluations shall be conducted in a manner that will not unduly delay the contract work. The right of review, whether exercised or not, does not relieve the Contractor of the obligations under the contract.

(c) The Government has the right to inspect and test all supplies called for by the contract, to the extent practicable, at all places and times, including the period of manufacture or production, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay the work. The Government assumes no contractual obligation to perform any inspection and test for the benefit of the Contractor unless specifically set forth elsewhere in this contract.

(d) If the Government performs inspection or test on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties. Except as otherwise provided in the contract, the Government shall bear the expense of Government inspections or tests made at other than the Contractor's or subcontractor's premises;

provided, that in case of rejection, the Government shall not be liable for any reduction in the value of inspection or test samples.

(e)(1) When supplies are not ready at the time specified by the Contractor for inspection or test, the Contracting Officer may charge to the Contractor the additional cost of inspection or test.

(2) The Contracting Officer may also charge the Contractor for any additional cost of inspection or test when prior rejection makes reinspection or retest necessary.

(f) The Government has the right either to reject or to require correction of nonconforming supplies.

Supplies are nonconforming when they are defective in material or workmanship or are otherwise not in conformity with contract requirements. The Government may reject nonconforming supplies with or without disposition instructions.

(g) The Contractor shall remove supplies rejected or required to be corrected. However, the Contracting Officer may require or permit correction in place, promptly after notice, by and at the expense of the Contractor. The Contractor shall not tender for acceptance corrected or rejected supplies without disclosing the former rejection or requirement for correction, and, when required, shall disclose the corrective action taken.

(h) If the Contractor fails to promptly remove, replace, or correct rejected supplies that are required to be removed or to be replaced or corrected, the Government may either (1) by contract or otherwise, remove, replace, or correct the supplies and charge the cost to the Contractor or (2) terminate the contract for default. Unless the Contractor corrects or replaces the supplies within the delivery schedule, the Contracting Officer may require their delivery and make an equitable price reduction.

Failure to agree to a price reduction shall be a dispute.

(i)(1) If this contract provides for the performance of Government quality assurance at source, and if requested by the Government, the Contractor shall furnish advance notification of the time-

(i) When Contractor inspection or tests will be performed in accordance with the terms and conditions of the contract; and

(ii) When the supplies will be ready for Government inspection.

(2) The Government's request shall specify the period and method of the advance notification and the Government representative to whom it shall be furnished. Requests shall not require more than 2 workdays of advance notification if the Government representative is in residence in the Contractor's plant, nor more than 7 workdays in other instances.

(j) The Government shall accept or reject supplies as promptly as practicable after delivery, unless otherwise provided in the contract. Government failure to inspect and accept or reject the supplies shall not relieve the Contractor from responsibility, nor impose liability on the Government, for nonconforming supplies.

(k) Inspections and tests by the Government do not relieve the Contractor of responsibility for defects or other failures to meet contract requirements discovered before acceptance. Acceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided in the contract.

(l) If acceptance is not conclusive for any of the reasons in paragraph (k) hereof, the Government, in addition to any other rights and remedies provided by law, or under other provisions of this contract, shall have the right to require the Contractor

(1) at no increase in contract price, to correct or replace the defective or nonconforming supplies at the original point of delivery or at the Contractor's plant at the Contracting Officer's election, and in accordance with a reasonable delivery schedule as may be agreed upon between the Contractor and the Contracting Officer; provided, that the Contracting Officer may require a reduction in contract price if the Contractor fails to meet such delivery schedule, or

(2) within a reasonable time after receipt by the Contractor of notice of defects or nonconformance, to repay such portion of the contract as is equitable under the circumstances if the Contracting Officer elects not to require correction or replacement. When supplies are returned to the Contractor, the Contractor shall bear the transportation cost from the original point of delivery to the Contractor's plant and return to the original point when that point is not the Contractor's plant. If the Contractor fails to perform or act as required in paragraph (l)(1) or (l)(2) of this clause and does not cure such failure within a period of 10 days (or such longer period as the Contracting Officer may authorize in writing) after receipt of notice from the Contracting Officer specifying such failure, the Government shall have the right by contract or otherwise to replace or correct such supplies and charge to the Contractor the cost occasioned the Government thereby.

END OF CLAUSE

SECTION E

DELIVERIES OR PERFORMANCE

52.247-34 F.O.B. DESTINATION (NOVEMBER 1991)

(a) The term "f.o.b. destination," as used in this clause, means-

(1) Free of expense to the Government, on board the carrier's conveyance, at a specified delivery point where the consignee's facility (plant, warehouse, store, lot, or other location to which shipment can be made) is located; and

(2) Supplies shall be delivered to the destination consignee's wharf (if destination is a port city and supplies are for export), warehouse unloading platform, or receiving dock, at the expense of the Contractor. The Government shall not be liable for any delivery, storage, demurrage, accessorial, or other charges involved before the actual delivery (or "constructive placement" as defined in carrier tariffs) of the supplies to the destination, unless such charges are caused by an act or order of the Government acting in its contractual capacity. If rail carrier is used, supplies shall be delivered to the specified unloading platform of the consignee. If motor carrier (including "piggyback") is used, supplies shall be delivered to truck tailgate at the unloading platform of the consignee, except when the supplies delivered meet the requirements of Item 568 of the National Motor Freight Classification for "heavy or bulky freight." When supplies meeting the requirements of the referenced Item 568 are delivered, unloading (including movement to the tailgate) shall be performed by the consignee, with assistance from the truck driver, if requested. If the Contractor uses rail carrier or freight forwarded for less than carload shipments, the Contractor shall ensure that the carrier will furnish tailgate delivery, when required, if transfer to truck is required to complete delivery to consignee.

(b) The Contractor shall-

(1)(i) Pack and mark the shipment to comply with contract specifications; or

(ii) In the absence of specifications, prepare the shipment in conformance with carrier requirements;

(2) Prepare and distribute commercial bills of lading;

(3) Deliver the shipment in good order and condition to the point of delivery specified in the contract;

(4) Be responsible for any loss of and/or damage to the goods occurring before receipt of the shipment by the consignee at the delivery point specified in the contract;

(5) Furnish a delivery schedule and designate the mode of delivering carrier; and

(6) Pay and bear all charges to the specified point of delivery.

The delivery and unloading point will be a Government CDF site located on the south side of the mouth of the Calumet River. Please refer to Section C of this specification for further details.

52.211-8 TIME OF DELIVERY, COMMENCEMENT, AND COMPLETION

(a) The Government requires delivery to be made according to the following schedules:

REQUIRED DELIVERY SCHEDULE

MINIMUM/MAXIMUM NUMBER OF DAYS

ITEM NO QUANTITY AFTER RECEIPT OF PURCHASE

ORDER

0001AA 1000 CY 10 - 60 CALENDAR DAYS

0001AB 1000 CY 10 - 60 CALENDAR DAYS

0001AC 1000 CY 10 – 60 CALENDAR DAYS

0001AD 1000 CY 10 – 60 CALENDAR DAYS

Delivery shall be made starting as shown above, weather and other conditions permitting with final delivery not later than shown above. Deliveries to the Calumet Harbor CDF must be coordinated to coincide with the work schedule, compacting and testing at that location, and should be coordinated with the Technical POC.

OPTION ITEM

0002 1000 CY 30 - 120 CALENDAR DAYS

CONTRACT OPTIONS: At the discretion of the Government, any or all Options in the bid schedule may be awarded within 90 calendar days following the Contractor’s acknowledgement of the Notice to Proceed Letter.

Delivery of materials to be offloaded by the Contractor shall be Monday through Friday, except Federal holidays, between 7:00 A.M. and 4:00 P.M. Advance notice should be given to coordinate the deliveries with the planned attendance with an USACE representative on site. Other obligations may require that the CDF is not manned every day. On some occasions, the work crew may be working on weekends, and if the contractor has a delivery over those particular weekends, this can be arranged in advance.

However, for the purpose of this contract, no weekend deliveries should be considered.

52.211-16 VARIATION IN QUANTITY (APRIL 1984)

(a) A variation in the quantity of any item called for by this contract will not be accepted unless the variation has been caused by conditions of loading, shipping, or packing, or allowances in manufacturing processes, and then only to the extent, if any, specified in paragraph (b) of this clause.

(b) The permissible variation for a particular delivery order shall be limited to:

1 Percent increase for Clay Dike Materials 1 Percent decrease for Clay Dike Materials

This increase or decrease shall apply to total quantity for each item without regard to destination.

END OF SECTION

SECTION E

SPECIAL CONTRACT PROVISIONS

52.228-10 VEHICULAR AND GENERAL PUBLIC LIABILITY INSURANCE (APRIL 1984)

(a) The Contractor, at the Contractor's expense, agrees to maintain, during the continuance of this contract, vehicular liability and general public liability insurance with limits of liability for-

(1) Bodily injury of not less than $500,000 for each person and $500,000 for each occurrence;

Property damage of not less than $100,000 for each accident and $250,000 in the aggregate;

In addition, the Contractor also agrees to maintain, during the continuance of this contract, Hull and Machinery Protection and Indemnity, including collision and tower’s liability with limits of liability not less than $5,000,000.

This coverage is also to include Pollution Liability with a limit of $5,000,000.

The Contractor also agrees to maintain workers' compensation and other legally required insurance with respect to the Contractor's own employees and agents.

The company or companies providing the required insurance must have an A.M. Best rating of A- or Excellent, or better. Also, the A.M. Best code for each insurance company should be identified.

Evidence of the previously identified insurance coverages and limits, with concurrent policy expiration dates, must be submitted to the COR prior to the Contractor initiating the work. This evidence must be presented on a fully-completed, signed and dated ACCORD Certificate of Insurance. In addition, policy endorsements must be issued by or in behalf of the insuring company or companies naming the Department of the Army, Corps of Engineers as Additional Interest Insured regarding the work. The endorsements must also provide that the Department of the Army, Corps of Engineers receive direct written notification at least thirty (30) days before the effective date of any material changes to, any cancellation of, or any non-renewal of these coverages during the time period of the Contractor’s work.

52.236-13 ACCIDENT PREVENTION PLAN (NOVEMBER 1991)

(a) The Contractor shall provide and maintain work environment and procedures, which will

(1) Safeguard the public and Government personnel, property, materials, supplies and equipment exposed to Contractor operations and activities;

(2) Avoid interruptions of Government operations and delays in project completion dates; and

(3) Control costs in the performance of the contract.

(b) For these purposes on contracts for construction or dismantling, demolition, or removal of improvements, the Contractor shall--

(1) Provide safety barricades, signs, and signal lights;

(2) Comply with the standards issued by the Secretary of Labor at 29 CFR 1926 Part

1910; and

(3) Ensure that any additional measures and Contracting Officer determines to be reasonably necessary for the purposes are taken.

(c) If this contract is for construction or dismantling, demolition if improvements with any Department of Defense agency or component, the Contractor shall comply with all pertinent provisions of the latest version of U.S. Army Corps of Engineers Safety and Health Requirements manual, EM385-1-1, in effect on the date of the solicitations.

(d) For all contracts requiring work on USACE property, a complete, signed, Abbreviated Safety Plan (See attached Appendix A-11) shall be submitted prior to commencement of work (at the CDF), covering all operations which will occur on USACE property, including the use of vehicles entering the facility. If a crane is brought onto USACE Property, an additional Crane Safety Plan is also required.

(e) Whenever the Contracting Officer becomes aware of any non-compliance with these requirements or any conditions that pose a serious or imminent danger to the health or safety of the public or Government personnel, the Contracting Officer shall notify orally, with written confirmation, and request immediate initiation or corrective action. This notice when delivered to the Contractor or the Contractor's representative at the work site shall be deemed sufficient notice if the non-compliance and the corrective action are required. After receiving the notice, the Contractor shall immediately take corrective action. If the Contractor fails or refuses to promptly take corrective action, the Contracting Office may issue an order stopping all or part of the work until satisfactory corrective action has been taken. The Contractor shall not be entitled to any equitable adjustment of the contract price or extension of the performance schedule on any stop work issued under this clause.

(f) The Contractor shall insert this clause, including this paragraph (e), with appropriate changes in the designation of the parties, in subcontracts.

(g) Before commencing the work, the Contractor shall --

(1) Submit a written proposed plan for implementing this clause. The plan shall include an analysis of the significant hazards to life, limb, and property inherent in contract work performance and a plan for controlling these hazards; and

(2) Meet with the COR to discuss and develop a mutual understanding relative to administration of the overall safety program.

END OF SECTION