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PART 622–CONTRACTUAL

PROVISIONS

8622.103 Dispute provisions.

(a) Except as provided in paragraph (b) of this section, all DOE contracts for the sale of personal property to any organization outside the U.S. Government shall include a Disputes clause which provides for:

(1) Binding final decisions by the Contracting Officer, subject to appeal;

(2) Appeal rights pursuant to the Contract Disputes Act of 1978;

(3) Continuation of performance by the contractor at the direction of the contracting officer pending final resolution of the dispute.

(b) Exceptions:

(1) The provisions of this part shall not apply to contracts for sale of electric power by the Power Marketing Administrations;

(2) The Secretary may exempt a contract or class of contracts from this requirement upon determination that it would not be in the public interest in an individual contract or class of contracts with a foreign government, or agency thereof, or international organization, or subsidiary body thereof, to include the Disputes clause, as permitted by section 3 of the Contract Disputes Act of 1978.

(c) The Energy Board of Contract Appeals (EBCA) has cognizance over disputes relating to DOE Sales contracts.

(d) The Disputes clause in 8624.102-4 shall be used in accordance with this $622.103. (Sec. 644, Department of Energy Organization Act, Pub. L. 95–91, 91 Stat. 599 (42 U.S.C. 7254)) (46 FR 34559, July 2, 1981)

DISPUTES (a) This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.). If a dispute arises relating to the contract, the purchaser may submit a claim to the Contracting Officer who shall issue a written decision on the dispute.

(b) Claim means:

(1) A written request submitted to the Contracting Officer;

(2) For payment of money, adjustment of contract terms, or other relief;

(3) Which is in dispute or remains unresolved after a reasonable time for its review and disposition by the Government; and

(4) For which a Contracting Officer's decision is demanded.

(c) In the case of disputed requests or amendments to such requests for payment exceeding $50,000, or with any amendment causing the total request in dispute to exceed $50,000, the purchaser shall certify, at the time of submission of a claim, as follows:

I certify that the claim is made in good faith. that the supporting data is accurate and complete to the best of my knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the Purchaser believes the Government is liable. (Purchaser's Name) (Title)

(d) The Government shall pay the Purchaser interest.

(1) On the amount found due to the purchaser and unpaid on claims submitted under this clause;

(2) At the rates fixed by the Secretary of the Treasury;

(3) From the date the amount is due until the Government makes payment.

(e) The purchaser shall pay the Government interest:

(1) On the amount found due to the Government and unpaid on claims submitted under this clause;

(2) At the rates fixed by the Department of Energy for the payment of interest on past due accounts;

(3) From the date the amount is due until the purchaser makes payment.

PART 624–CONTRACT CLAUSES

$624.102-4 Disputes.

The following clause shall be used in accordance with the provisions of 8 622.103:

(f) The decision of the Contracting Officer shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency unless an appeal or action is timely commenced within the times specified by the Contract Disputes Act of 1978.

(g) The purchaser shall comply with any decision of the Contracting Officer and at the direction of the Contracting Officer shall proceed diligently with performance of this contract pending final resolution of any request for relief, claim, appeal, or action related to this contract. (Sec. 644, Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254))

PART 625—PRICE COMPETITIVE

SALE OF STRATEGIC PETROLEUM
RESERVE PETROLEUM

Sec. 625.1 Application and purpose. 625.2 Definitions. 625.3 Standard sales provisions. 625.4 Publication of the Standard Sales Pro

visions. 625.5 Failure to perform in accordance with

SPR Contracts of Sale. APPENDIX A TO PART 625-STANDARD SALES

PROVISIONS AUTHORITY: 15 U.S.C. 761; 42 U.S.C. 7101; 42 U.S.C. 6201.

SOURCE: 48 FR 56541, Dec. 21, 1983, unless otherwise noted.

(b) Notice of Sale. The Notice of Sale is the document announcing the sale of SPR petroleum, the amount, type and location of the petroleum being sold, the delivery period and the procedures for submitting offers. The Notice of Sale will specify which contractual provisions and financial and performance responsibility measures are applicable to that particular sale of petroleum, and will provide other pertinent information.

(c) Petroleum. Petroleum means crude oil, residual fuel oil or any refined petroleum product (including any natural gas liquid and any natural gas liquid product) owned or contracted for by DOE and in storage in any permanent SPR facility, or temporarily stored in other storage facilities, or in transit to such facilities (including petroleum under contract but not yet delivered to a loading terminal).

(d) Price Competitive Sale. A price competitive sale of SPR petroleum is one in which contract awards are made to those responsive, responsible persons offering the highest prices; sales conducted pursuant to rules adopted under section 161(e) of the Energy Policy and Conservation Act (EPCA), Public Law 94–163 (42 U.S.C. 6201 et seq.), are not price competitive sales.

(e) Purchaser. A purchaser is any person or entity (including a Government agency) which enters into a contract with DOE to purchase SPR petroleum.

(f) SPR. SPR is the Strategic Petroleum Reserve, that program of the Department of Energy established by title I, part B of EPCA.

(g) Standard Sales Provisions. The Standard Sales Provisions are a set of terms and conditions of sale, which may contain or describe financial and performance responsibility measures, for petroleum sold from the SPR under this part. 8 625.3 Standard sales provisions.

(a) Contents. The Standards Sales Provisions shall contain contract clauses which may be applicable to price competitive sales of SPR petroleum, including terms and conditions of sale, and purchaser financial and performance responsibility measures, or descriptions thereof. At his discretion, the Secretary or his designee may

$ 625.1 Application and purpose.

This part shall apply to all price competitive sales of SPR petroleum by DOE. This section provides the rules for developing standard contract terms and conditions and financial and performance responsibility measures; notifying potential purchasers of those terms, conditions and measures; choosing applicable terms, conditions and measures for each sale of SPR petroleum; and notifying potential purchasers of which terms, conditions and measures will be applicable to particular sales of SPR petroleum. $625.2 Definitions.

(a) DOE. DOE is the Department of Energy established by Public Law 95-91 (42 U.S.C. 7101 et seq.) and any component thereof including the SPR Office.

specify in a Notice of Sale which of such terms and conditions, or financial and performance responsibility measures, shall apply to a particular sale of SPR petroleum; and, he may specify any revisions in such terms, conditions and measures, and any additional terms, conditions and measures which shall be applicable to that sale, that are consistent with the SPR Drawdown Plan adopted on December 1, 1982.

(b) Acceptance by offerors. All offerors must. as part of their offers for SPR petroleum in response to a Notice of Sale, agree without exception to all contractual provisions and financial and performance responsibility measures which the Notice of Sale makes applicable to the particular sale.

(c) Award of contracts. No contract for the sale of SPR petroleum may be awarded to any offeror who has not unconditionally agreed to all contractual provisions and financial and performance responsibility measures which the Notice of Sale makes applicable to the particular sale.

(d) Contract documents. The terms and conditions which the Notice of Sale makes applicable to a particular sale may be incorporated into a contract for the sale of SPR petroleum by reference to the Notice of Sale.

$625.5 Failure to perform in accord

ance with SPR Contracts of Sale. (a) Ineligibility. In addition to any remedies available to the Government under the Contract of Sale, in the event that a purchaser fails to perform in accordance with applicable SPR pe troleum sale contractual provisions and such failure is not excused by those provisions, the Headquarter Senior Procurement Official, at his dis cretion, may make such purchaser in eligible for future awards of SPR petro leum sales contracts.

(b) Determination of ineligibility. No purchaser shall be made ineligible for the award of any SPR sales contract prior to notice and opportunity to re spond in accordance with the require ments of this subsection.

(1) Upon the determination that a purchaser is to be considered for ineli. gibility, the purchaser shall be sent by certified mail return receipt requested, the following:

(i) Notification that the Headquarters Senior Procurement Official is considering making the purchaser ineligible for future awards;

(ii) Identification of the SPR sales contract which the purchaser failed to comply with, along with a brief description of the events and circumstances relating to such failure;

(iii) Advice that the purchaser may submit in writing for consideration by the Headquarters Senior Procurement Official in determining whether or not to impose ineligibility on the purchaser, any information or argument in opposition to the ineligibility; and

(iv) Advice that such information or argument in opposition to the ineligibility must be submitted within a certain time in order to be considered by the Headquarters Senior Procurement Official, such time to be not less than 21 days

(2) After elapse of the time period established under paragraph (b)(1) of this section for receipt of the purchaser's response, the Headquarters Senior Procurement Official, at his discretion, and after consideration of the purchaser's written response, if any, may make the purchaser ineligible for future awards of SPR petroleum sales contracts. Such ineligibility shall continue for the time period determined

8625.4 Publication of the Standard

Sales Provisions. (a) Publication. The Standard Sales Provisions shall be published in the FEDERAL REGISTER and in the Code of Federal Regulations as an appendix to this rule.

(b) Revisions of the Standard Sales Provisions. The Standard Sales Provisions shall be reviewed periodically and republished in the FEDERAL REGISTER, with any revisions.

(c) Notification of applicable clauses. The Notice of Sale will specify, by referencing the FEDERAL REGISTER and the Code of Federal Regulations in which the latest version of the Standard Sales Provisions was published, which contractual terms and conditions and contractor financial and performance responsibility measures contained or described therein are applicable to that particular sale.

by the Headquarters Senior Procurement Official, as appropriate under the circumstances.

(3) The purchaser shall be notified of the Headquarters Senior Procurement Official's decision.

(c) Reconsideration. Any purchaser who has been excluded from participating in any SPR sale under paragraph (a) may request that the Headquarters Senior Procurement Offical reconsider the purchaser's ineligibility. The Headquarters Senior Procurement Official, at his discretion, may reinstate any such purchaser to eligibility for future competitive sales.

APPENDIX A TO PART 625-STANDARD

SALES PROVISIONS

Inder
Section A-General Pre-Sale Information

A.1 List of abbreviations
A.2 Definitions
A.3 Standard Sales Provisions (SSPs)
A.4 Periodic revisions of the Standard

Sales Provisions
A.5 Sales Offerors' Mailing List (SOML)
A.6 Publicizing the Notice of Sale
A.7 Penalty for false statements in offers

to buy SPR petroleum Section B-Sales Solicitation Provisions B.1 Requirements for a valid offer-cau

tion to offerors B.2 Price indexing B.3 Certification of independent price de

termination B.4 Requirements for vessels-caution to

offerors B.5 "Superfund” tax on SPR petroleum

caution to offerors B.6 Export limitations and licensing

caution to offerors B.7 Issuance of the Notice of Sale B.8 Submission of offers and modification

of previously submitted offers
B.9 Acknowledgment of amendments to a

Notice of Sale
B.10 Late offers, modifications of offers,

and withdrawal of offers
B.11 Offer guarantee
B.12 Explanation requests from offerors
B.13 Currency for offers
B.14 Language of offers and contracts
B.15 Proprietary data
B.16 SPR crude oil streams and delivery

points
B.17 Notice of Sale line item schedule
petroleum quantity, quality, and deliv-

ery method
B.18 Line item information to be provided

in the offer
B.19 Mistake in offer
B.20 Evaluation of offers

B.21 Procedures for evaluation of offers
B.22 Financial statements and other in-

formation B.23 Resolicitation procedures on unsold

petroleum B.24 Offeror's certification of acceptance

period B.25 Notification of Apparently Success

ful Offeror
B.26 Contract documents
B.27 Purchaser's representative
B.28 Procedures for selling to other U.S.

Government agencies
SECTION C Sales Contract Provisions

C.1 Delivery of SPR petroleum
C.2 Compliance with the "Jones Act" and

the U.S. export control laws
C.3 Storage of SPR petroleum
C.4 Environmental compliance
C.5 Delivery and transportation sched-

uling C.6 Contract modification-alternate de

livery line items C.7 Application procedures for “Jones Act” and Construction Differential Sub

sidy waivers C.8 Vessel loading procedures C.9 Vessel laytime and demurrage C.10 Vessel loading expedition options C.11 Purchaser liability for excessive

berth time C.12 Pipeline delivery procedures C.13 Title and risk of loss C.14 Acceptance of crude oil C.15 Delivery acceptance and verification C.16 Price adjustments for quality dif

ferentials C.17 Determination of quality C.18 Determination of quantity C.19 Delivery documentation C.20 Contract amounts C.21 Payment and Performance Letter of

Credit C.22 Billing and payment C.23 Method of payments C.24 Interest C.25 Termination C.26 Other Government remedies C.27 Liquidated damages C.28 Failure to perform under SPR con

tracts C.29 Government options in case of impos

sibility of performance
C.30 Limitation of Government liability
C.31 Notices
C.32 Disputes
C.33 Assignment
C.34 Order of precedence
C.35 Gratuities

Exhibits A-SPR Sales Offer Form B-Sample Notice of Sale C-SPRPMO Form 33S D-SPR Crude Oil Comprehensive Analysis E-SPR Delivery Point Data F-Offer Standby Letter of Credit

G-Payment and Performance Letter of

Credit H-Strategic Petroleum Reserve Crude Oil

Delivery Report-SPRPMO-F-6110.2–14b

1/87 REV. 8/91 1-Instruction Guide for Return of Offer

Guarantees by Electronic Transfer or

Treasury Check J-Offer Guarantee Calculation Worksheet SECTION A-General Pre-Sale Information

A.1 List of Abbreviations (a) ASO: Apparently Successful Offeror (b) DLI: Delivery Line Item (c) DOE: U.S. Department of Energy (d) MLI: Master Line Item (e) NA: Notice of Acceptance (f) NS: Notice of Sale (g) SOML: Sales Offerors Mailing List (h) SSPs: Standard Sales Provisions (i) SPR: Strategic Petroleum Reserve (j) SPRCODR: SPR Crude Oil Delivery Re

port (Exhibit H) (k) SPR/PMO: Strategic Petroleum Reserve

Project Management Office

(i) Notice of Sale (NS). The term “Notice i Sale" means the document announcing th sale of SPR petroleum, the amount, chara, teristics and location of the petroleum bein sold, the delivery period and the procedur for submitting offers. The NS will specit what contractual provisions and financia and performance responsibility measures al applicable to that particular sale of petr leum and provide other pertinent informi tion. (See Exhibit B, Sample Notice of Sali

(j) Offeror. The term "offeror" means an person or entity (including a governmer agency) who submits an offer in response : a NS.

(k) Petroleum. The term "petroleum means crude oil, residual fuel oil, or any ri fined product (including any natural gas lic uid, and any natural gas liquid product owned or contracted for by DOE and in stoi age in any permanent SPR facility, tempo rarily stored in other storage facilities, or i transit to such facilities (including petro leum under contract but not yet delivered ti a loading terminal).

(1) Project Management Office (SPR PMO) The term “Project Management Office means the DOE personnel and DOE contrac tors located in Louisiana and Texas respon sible for the operation of the SPR.

(m) Purchaser. The term "purchaser means any person or entity (including a gov. ernment agency) who enters into a contract with DOE to purchase SPR petroleum.

(n) Standard Sales Provisions (SSPs). The term “Standard Sales Provisions" means this set of terms and conditions of sale appli: cable to price competitive sales of SPR De troleum. These SSPs constitute the "stand: ard sales agreement" referenced in the Stra: tegic Petroleum Reserve "Drawdown" (Dis. tribution) Plan, Amendment No. 4 (December 1, 1982, DOE EP 0073) to the SPR Plan

(0) Strategic Petroleum Reserve (SPR). The term "Strategic Petroleum Reserve" means that DOE program established by Title I Part B, of the Energy Policy and Conserva: tion Act, 42 U.S.C. Section 6201, et seq.

(p) Vessel. The term "vessel” means a tank: ship, an integrated tug-barge (ITB) system, a self-propelled barge, or other barge.

A.2 Definitions (a) Affiliate. The term “affiliate” means associated business concerns or individuals if, directly or indirectly, (1) either one controls or can control the other, or (2) a third party controls or can control both.

(b) Business Day. The term “business day" means any day except Saturday, Sunday or a U.S. Government holiday.

(c) Contract. The term “contract" means the contract under which DOE sells SPR petroleum. It is composed of the NS, the NA, the successful offer, and the SSPs incorporated by reference.

(d) Contracting Officer. The term “Contracting Officer" means the person executing sales contracts on behalf of the Government, and any other Government employee properly designated as Contracting Officer. The term includes the authorized representative of a Contracting Officer acting within the limits of his or her authority.

(e) Government. The term "Government', unless otherwise indicated in the text, means the United States Government.

(f) Head of the Contracting Activity. The term "Head of the Contracting Activity" means Project Manager, Strategic Petroleum Reserve Project Management Office.

(g) Notice of Acceptance (NA). The term "Notice of Acceptance" means the document that is sent by DOE to accept the purchaser's offer to create a contract.

(h) Notification of Apparently Successful Offeror (ASO). The term "notification of apparently successful offeror" means the notice, written or oral, by the Contracting Officer to an offeror that it will be awarded a contract if it is determined to be responsible.

A.3 Standard Sales Provisions (SSP) (a) These SSPs contain pre-sale informa. tion, sales solicitation provisions, and sales contract clauses setting forth terms and conditions of sale, including purchaser financial and performance responsibility measures, or descriptions thereof, which may be applicable to price competitive sales of petroleum from the SPR in accordance with the SPR Sales Rule, 10 CFR Part 625. The NS will specify which of these provisions shall apply to a particular sale of such petroleum, and it may specify any revisions therein and any

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