MOD | S | Natural Gas Supply - Amendment 1

FBO DAILY ISSUE OF SEPTEMBER 12, 2010 FBO #3214
MODIFICATION

S -- Natural Gas Supply - Amendment 1

Notice Date: 9/10/2010
Notice Type: Modification/Amendment
NAICS: 221210 — Natural Gas Distribution
Contracting Office: General Services Administration, Public Buildings Service (PBS), Boston Service Center Branch (1PSM), 10 Causeway Street, Boston, Massachusetts, 02222-1077, United States
ZIP Code: 02222-1077
Solicitation Number: NG-001-2010
Point of Contact: William D. Higgins, Phone: 617-565-7133, Kathleen Brock,
E-Mail Address: william.higgins@gsa.gov, kathleen.brock@gsa.gov
(william.higgins@gsa.gov, kathleen.brock@gsa.gov)
Small Business Set-Aside: N/A
Description: Updated 9/10/2010 Updated 9/10/2010 This replaces the combined synopsis/solicitation, This is a combined synopsis/solicitation for commercial items prepared in accordance with the format in Subpart 12.6, as supplemented with additional information included in this notice. This announcement constitutes the only solicitation; proposals are being requested and a written solicitation will not be issued. This is solicitation NG-001-2010. It is being issued as a Request for Proposal. The solicitation document and incorporated provisions and clauses are those in effect through Federal Acquisition Circular 2005-44. Upon request the Contracting Officer will make their full text version available. Also the full text version can be accessed electronically at: www.acquisition.gov/far. This action is unrestricted. The North American Industrial Classification System (NAICS) Code is 221210-Natural Gas Distribution and the Small Business Size Standard is less than 500 employees. Schedule Of Items - Natural Gas Supply Services Contract Line Item Number 0001 Price/Dth Base Contract Period Natural Gas Supply 10/1/2010 through 9/30/2011 $ ________ Contract Line Item Number 0002 Price/Dth Option Period 1 Natural Gas Supply 10/1/2010 through 9/30/2012 $ ________ Contract Line Item Number 0003 Price/Dth Option Period 2 Natural Gas Supply 10/1/2010 through 9/30/2013 $ ________ Contract Line Item Number 0004 Price/Dth Option Period 3 Natural Gas Supply 10/1/2010 through 9/30/2014 $ ________ Alternate 1 Contract Line Item Number 0001 Price/Dth Base Contract Period Natural Gas Supply 10/1/2010 through 9/30/2012 $ ________ Contract Line Item Number 0002 Price/Dth Option Period 1 Natural Gas Supply 10/1/2010 through 9/30/2014 $ ________ Alternate 2 Contract Line Item Number 0001 Price/Dth Base Contract Period Natural Gas Supply 10/1/2010 through 9/30/2014 $ ________ Pricing Methodology; The General Services Administration Public Building Service (GSA/PBS) working to satisfy the needs of the Department of Justice (DOJ) intends to make a single award to a contractor who shall provide natural gas supply as required by the DOJ for the period 10/1/2010 through 10/1/2011 with 3 option periods. Except for local distribution charges, which in accordance with Massachusetts state law Chapter 164 section 113.(a) is a service provided separately by National Grid, the pricing shall include all associated charges to the government for providing the commodity required by this contract/solicitation (e.g.,labor, material, tools, equipment, incidentals, insurance, overhead, profit, minimum wages, allowance for contingencies, etc.). Prices are to be based upon the consumption history for 1 Progress Way, Unit 2, Wilmington, MA 01880. A Consumption History document is attached. Offerors shall provide a monthly Basis price for the 12 month period beginning 10/1/2010 through 9/30/2011 also provide an Option 1 price for the 12 month period beginning 10/1/2011 through 9/30/2012 an Option 2 price for the 12 month period beginning 10/1/2012 through 9/30/2013 and an Option 3 price for the 12 month period beginning 10/1/2013 through 9/30/2014. We would also like Alternative pricing for two 24 month periods 10/1/2010 through 9/30/2012 and 10/1/2012 through 9/30/2014. And one 48 month period 10/1/2010 through 9/30/2014 Ordering Official; In accordance with FAR 52.216-1 requests for services will be made via issuance of individual delivery orders. Delivery orders may be issued only by the Contracting Officer (CO), or Contract Specialist (CS). Contract Pricing; As used throughout this contract Dth means dekatherm. The contract rate for these services shall be on a per Dth used and a total amount due. Prices indicated hereunder shall be all inclusive and must include all applicable interstate/intrastate pipeline fuel loss, costs for nominations, marketer fee/profit, pooling, balancing, and storage unless indicated otherwise within the schedule. Pricing shall not include fuel loss on the local natural gas distribution company (NGDC) system unless indicated in the Schedule. Additionally, the pricing shall not include any Gross Receipts Tax or similar tax for which the Government may be liable. If applicable, these taxes would be paid by the Government as a separate line item on the invoice. Orders, where necessary, may be issued in writing, orally, or by written telecommunications GENERAL REQUIREMENTS: NATURAL GAS SUPPLY : It is the desire of the GSA to secure the lowest cost for natural gas supply to the designated Federal facility utilizing the most direct pipeline served by the local NGDC. Therefore, the Region 1 facilities management division intends to award a firm-fixed price requirements type contract for the provision of natural gas supply which meets the requirements outlined in this statement of requirements. PLACE OF PERFORMANCE: Contract services will be provided to Department of Justice (FBI) 1 progress Way, Wilmington, MA 01880 For more information Contact William Higgins 617-565-7133 Submission of Proposals: The Contractor's proposal is due on or before 12:00pm, E.S.T., September 2, 2010. Proposals will be evaluated based on best value to the government. Contractors must submit their final proposals for evaluation. Proposals must be submitted by email to William Higgins at William.Higgins@gsa.gov. The following Federal Acquisition Regulation (FAR) provisions are hereby applicable and incorporated by reference: 1) The provision at 52.212-1, Instructions to Contractors - Commercial Items; 2) The provision at 52.212-3, Contractor Representations and Certifications - Commercial Items. 3) The provision at 52.204-6 Data Universal Numbering System (DUNS) Number Addendum to FAR 52.212-1 The offeror agrees to hold the prices in the enclosed offer until 2:00PM EST on September 30, 2010 The following Federal Acquisition Regulation (FAR) clauses are hereby applicable and incorporated by reference: 1) The clause at 52.212-4, Contract Terms and Conditions - Commercial Items; and 2) The clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders - Commercial Items; 3) The clause at 52.225-13, Restrictions on Certain Foreign Purchases; 4) The clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders - Commercial Items (ALT I). The clause at 52.204-7 Central Contractor Registration Addendum To FAR 52.212-4 (1)The following section on Title overcomes and has precedence over the Title section of the clause at FAR 52.212-4 (n) in its entirety. Title Title to natural gas supplied by the Contractor under this contract shall pass from the Contractor to the Government upon delivery of said natural gas to the Delivery Point. The Contractor warrants that the natural gas delivered to the Government under this contract will be free and clear of all liens, claims and encumbrances arising prior to delivery to the Delivery Point. (2)The following section on Force Majeure overcomes and has precedence over the Excusable Delays section of the clause at 52.214-4 (f) in its entirety. Force Majeure The Contractor shall be responsible for delivery of natural gas to the Delivery Points specified under the terms of the contract unless a condition of Force Majeure is in effect. As used herein, "Force Majeure" means any cause beyond the reasonable control of, and without the fault or negligence of, the party claiming Force Majeure. It shall include, without limitation, sabotage, strikes, acts of God, war, riot, civil disturbance, drought, earthquake, flood, explosion, fire, lightning, landslide, delays of common carriers, and acts of the Government in either its sovereign or contractual capacity. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any Force Majeure condition, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such condition. In no event shall the economic hardship of either party constitute a Force Majeure condition. The following conditions, by themselves, shall not constitute a Force Majeure condition: the inability of the Contractor to obtain transportation, to obtain natural gas supply contracts, or the event of higher actual costs than contracted costs to the Contractor. 3) The following section on Termination for Cause overcomes and has precedence over the Termination for Cause section of the clause at FAR 52.212-4 (m) in its entirety. The Government may terminate for cause in the event of a material failure to comply with any term or condition which is not remedied within 10 business days from the date of notice of the default. In the event of termination for cause, the Government shall not be liable to the contractor for any amount for supplies of 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. The following General Services Administration Acquisition Manual (GSAM) clause is hereby incorporated by reference: 1) The clause at 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items. The government anticipates a Firm-fixed price contract. All contractors must be registered in the Central Contractor Registration (CCR) before being considered for award. Information concerning CCR requirements may be viewed via Internet at www.ccr.gov or by calling 1-888-227-2423. In accordance with FAR 12.213 Other Commercial Practices, The Statement of Work shall incorporate the General Terms and Conditions of the North American Energy Standards Board's Base Contract for Sale and Purchase of Natural Gas, as supplemented by the below listed special provisions. The following changes are hereby made to the General Terms and Conditions Base Contract for Sale and Purchase of Natural Gas: (1) Delete Section 2.10 in its entirety and replace with the following language: "Contract Price" shall mean the amount expressed in U.S. Dollars per MMBtu to be paid by Buyer to Seller for the purchase of Gas as agreed to by the parties in a transaction. Contract Price may also be referred to as Price on the Transaction Confirmation." (2) Delete Section 2.32 in its entirety and replace with the following language: "Transaction Confirmation" shall mean Seller's document, similar to the form of Exhibit A attached hereto to these Special Provisions setting forth the terms of a transaction formed pursuant to Section 1 for a particular Delivery Period". (3) Delete Section 3.1 in its entirety and replace with the following language: Seller agrees to sell and deliver, and Buyer agrees to receive and purchase, the Contract Quantity for a particular transaction in accordance with the terms of the Contract. Sales and purchases will be on a Firm basis unless otherwise stated in the Transaction Confirmation. (4) Delete Section 4.2 in its entirety and replace with the following language: Buyer shall give Seller prior notice of the quantities of Gas to be delivered that is sufficient to meet the requirements of each Transporter involved in the transaction. If Buyer fails to give such notice, Seller may use the best available information to determine the quantities of Gas to be delivered, but Seller shall not be liable in any way for any resulting imbalance charge or penalty. Any such imbalance charge or penalty shall be Buyer's responsibility under Section 4.3. Should a party become aware that an actual delivery at a delivery point is greater or lesser than the nominated volumes of Gas scheduled to be delivered, such party shall promptly notify the other party. Buyer shall immediately notify Seller of any event reasonably known to Buyer that may materially increase or decrease Buyer's Gas usage, i.e. addition or removal of gas-fire equipment, other equipment installations or changes, outages, shutdowns, repairs, openings or closings, changes in operating hours or production schedules. Buyer shall also immediately notify Seller of, and fully comply with, all curtailment or interruption orders or similar notices Buyer receives from a pipeline or utility requiring the interruption or curtailment of Buyer's Gas usage. (5) Delete Section 4.3 in its entirety and replace with the following language: The parties shall use commercially reasonable efforts to avoid imbalance charges or penalties. If a Transporter invoices Buyer or Seller for an imbalance charge or penalty, the parties shall determine the validity of the charge. Upon request, Buyer shall provide to Seller copies of Buyer's Transporter statements, reports or meter readings related to any Gas deliveries performed under this Agreement. If the charge or penalty is determined valid, the party responsible for the imbalance charge or penalty shall be obligated to pay such charge or penalty. If either party pays a charge or penalty caused by the other party, upon receipt of notice, the other party shall reimburse such party the amount paid in accordance with such notice. (6) Delete Section 7.5 in its entirety and replace with the following language: If the invoiced party fails to remit the full amount payable when due, interest on the unpaid portion shall accrue at the rate of one and a half percent (1 1/2%) monthly or at an interest rate as otherwise agreed in the Transaction Confirmation on any late payment or the maximum legal rate, if lower. (7) Delete Section 7.6 in its entirety and replace with the following language: All invoices shall be conclusively presumed final and accurate. Buyer shall waive any associated claim for an inaccurate invoice and/or overpayment unless, within two (2) years from the date of the Gas delivery, in good faith, Buyer objects to the invoice in writing, including an adequate explanation and supporting industry-acceptable documentation. However, the last Transporter's meter reading shall control for the purpose of determining an invoice's accuracy, and the Buyer shall not dispute a Seller invoice based on a meter reading unless it possesses documentation from the Transporter, verifying an error in the meter reading and setting forth the accurate meter reading. R etroactive adjustments under this Section shall be invoiced accordingly. Nothing in this Section shall be deemed to preclude Seller from making a retroactive adjustment of an invoice within a reasonable time of receiving information from the last Transporter, indicating an error in a prior invoice, regardless of the original invoice date. (8) Delete Section 10.1 in its entirety and replace with the following language: If Seller (referred to as party ("X") has reasonable grounds for insecurity regarding the performance of Buyer of any obligation under this Contract (whether or not then due) by the Buyer (referred to as ("Y") (including, without limitation, the occurrence of a material change in the creditworthiness of Y or its Guarantor, if applicable ), X may demand Adequate Assurance of Performance. "Adequate Assurance of Performance" shall mean sufficient security in the form, amount, for a term, and from an issuer, all as reasonably acceptable to X, including, but not limited to cash, a standby irrevocable letter of credit, a security interest in an asset, a prepayment, a performance bond, or a guaranty. Y hereby grants to X a continuing first priority security interest in, lien on, and right of setoff against all Adequate Assurance of Performance in the form of cash transferred by Y to X pursuant to this Section 10.1. Upon the return by X to Y of such Adequate Assurance of Performance, the security interest and lien granted hereunder on that Adequate Assurance of Performance shall be released automatically and, to the extent possible, without any further action by either party. (9) Delete Section 10.3 in its entirety and replace with the following language: If an Event of Default has occurred and is continuing, the Non-Defaulting Party shall have the right, by Notice to the Defaulting Party, to designate a Day, no earlier than the Day such Notice is given and no later than 20 Days after such Notice is given, as an early termination date (the "Early Termination Date") for the liquidation and termination pursuant to Section 10.3.1 of all transactions under the Contract, each a "Terminated Transaction". On the Early Termination Date, all transactions will terminate, other than those transactions, if any, that may not be liquidated and terminated under applicable law or that are, in the reasonable opinion of the Non-Defaulting Party, commercially impracticable to liquidate and terminate ("Excluded Transactions"), which Excluded Transactions must be liquidated and terminated as soon thereafter as is reasonably practicable, and upon termination shall be a Terminated Transaction and be valued consistent with Section 10.3.1 below. With respect to each Excluded Transaction, its actual termination date shall be the Early Termination Date for purposes of Section 10.3.1. (10) The following is added at the end of Section 10.4: Notwithstanding anything herein to the contrary, if the Non-Defaulting Party owes the Net Settlement Amount to the Defaulting Party, the Non-Defaulting Party shall not be required to pay to the Defaulting Party the Net Settlement Amount, nor shall interest be owed on such amount, until (i) the Non-Defaulting Party receives confirmation satisfactory to it, in its reasonable discretion, that all other obligations of any kind whatsoever of the Defaulting Party to make any payments to the Non-Defaulting Party under this Contract and transactions hereunder, or otherwise, which are due and payable as of the Early Termination Date, have been paid (or netted, set off, recouped, or the like) in full; and (ii) the Defaulting Party executes a release in a form reasonably satisfactory to the Non-Defaulting Party that acts as the final resolution of the transactions hereunder. To the extent that either party believes that bankruptcy court approval of the release is required, the Non-Defaulting Party may withhold payment of the Net Settlement Amount until such time as appropriate court approval has been obtained and is final and non-appealable. (11) Delete Section 10.5 in its entirety and replace with the following language: The parties specifically agree that any transaction under the Contract are "forward contracts" as such term is defined in the United States Bankruptcy Code and that each party is a "forward contract merchant" as such term is defined in the United States Bankruptcy Code. Each party further agrees that the other party is not a "utility" as such term is used in 11 U.S.C. Section 366, and each party agrees to waive and not to assert the applicability of the provisions of 11 U.S.C. Section 366 in any bankruptcy proceeding involving such party. (12) Section 12 is amended by deleting the second sentence and replacing it with the following: The rights of either party pursuant to: Section 7.6, Section 10, Section 13, Section 15.10, waiver of jury trial provisions, the obligations to make payment hereunder, the obligation of either party to indemnify the other pursuant hereto, shall survive the termination of the Base Contract or any transaction. (13) Delete Section 15.1 in its entirety and replace it with the following language: This Contract shall be binding upon and inure to the benefit of the successors, assigns, personal representatives, and heirs of the respective parties hereto, and the covenants, conditions, rights and obligations of this Contract shall run for the full term of this Contract. This Agreement may not be assigned by either party without the prior written consent of the other, such consent may not be unreasonably withheld and will be subject to credit approval except that either party may (i) transfer, sell, pledge, encumber, or assign this Contract or the accounts, revenues, or proceeds herein in connection with any financing or other financial arrangements. Additionally, assignment shall be subject to (a) the other party providing at least thirty (30) days advance written notice of their intent to do so; (b) there are no Events of Default; and (c) the assignee assumes all of assignor's obligations hereunder. Upon any such assignment, transfer and assumption, the transferor shall remain liable for and shall not be relieved of or discharged from any obligations hereunder arising prior to the effective date of assignment. (14) The following is added at the end of Section 15.5: EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT. (15) Delete Section 15.6 in its entirety and replace it with the following language: This Contract and all provisions herein will be subject to all applicable and valid statues, rules, orders and regulations of any governmental authority having jurisdiction over the parties, their facilities, or Gas supply, this Contract or transaction or any provision thereof. In the event any governmental authority or any law, rule, regulation, ordinance or an order of any court, tribunal or regulatory authority of competent jurisdiction adversely and materially impacts Seller's ability to perform under this Agreement and/or any Transaction Confirmation, Seller shall have the right, at its option, in its sole discretion, to either attempt to renegotiate the terms of this Agreement and/or the Transaction Confirmation at any time, or to entirely terminate this Agreement and/or the Transaction Confirmation, without penalty, upon sixty (60) days' notice. (16) Delete Section 15.10 in its entirety and replace it with the following language: Unless the parties have elected on the Base Contract not to make this Section 15.10 applicable to this Contract, neither party shall disclose directly or indirectly without the prior written consent of the other party the terms of any transaction or any financial information provided by one party to the other party under this Agreement to a third party (other than the employees, lenders, royalty owners, counsel, accountants and other agents of the party, or prospective purchasers of all or substantially all of a party's assets or of any rights under this Contract, provided such persons shall have agreed to keep such terms confidential) except (i) in order to comply with any applicable law, order, regulation, or exchange rule, (ii) to the extent necessary for the enforcement of this Contract, (iii) to the extent necessary to implement any transaction, (iv) to the extent necessary to comply with a regulatory agency's reporting requirements including but not limited to gas cost recovery proceedings; (v) to the extent such information is delivered to such third party for the sole purpose of calculating a published index; or (vi) to third-party credit rating agencies or to Seller's parent in conjunction with Seller's evaluation and/or review of Buyer's creditworthiness. Each party shall notify the other party of any proceeding of which it is aware which may result in disclosure of the terms of any transaction (other than as permitted hereunder) and use reasonable efforts to prevent or limit the disclosure. The existence of this Contract is not subject to this confidentiality obligation. Subject to Section 13, the parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with this confidentiality obligation. The terms of any transaction hereunder shall be kept confidential by the parties hereto for one year from the expiration of the transaction.
Web Link: FBO.gov Permalink
(https://www.fbo.gov/spg/GSA/PBS/1PMPODM/NG-001-2010/listing.html)
Place of Performance: Address: Department of Justice, 1 Progress Way, Unit 2, Wilmington, Massachusetts, 01880, United States; Zip Code: 01880
Record: SN02277426-W 20100912/100911000842-1f60accd8673ad39a05f0b2bd4b427f6 (fbodaily.com)
Source: FedBizOpps Link to This Notice
(may not be valid after Archive Date)

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S -- Natural Gas Supply - Amendment 1