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date on which the non-performing purchaser (1) Terminate for the convenience of the was scheduled to accept delivery, under an Government under Provision No. C.25; or other contract awarded prior to the date of (2) Offer different SPR crude oil streams or default.
delivery times to the purchaser in substi
tution for those specified in the contract. C.27 Liquidated Damages
(b) In the event that a different SPR crude (a) In case of failure on the part of the pur- oil stream than originally contracted for is chaser to perform within the time fixed in offered to the purchaser, the contract price the contract or any extension thereof, the will be negotiated between the parties. In no purchaser shall pay to the Government liq event shall the negotiated price be less than uidated damages in the amount of 1 percent the minimum acceptable price, if established of the contract price of the undelivered pe for the same or similar crude oil streams in troleum per calendar day of delay or fraction the most recent NS or determined after the thereof in accordance with paragraph (b) of opening of offers. Provision No. C.25 and paragraph (c) of Pro (c) DOE's obligation in such circumstances vision No. C.26.
is to use its best efforts, and DOE under no (b) As provided in (a) of this provision, liq circumstances shall be liable to the puruidated damages will be assessed for each chaser for damages arising from DOE's failday or fraction thereof a purchaser is late in ure to offer alternate SPR crude oil streams accepting delivery of petroleum in accord or delivery times. ance with this contract, unless such tardi (d) If the parties are unable to reach agreeness is excused under Provision No. C.25. For ment as to price, crude oil streams or delivpetroleum to be lifted by vessel, damages ery times, DOE may terminate the contract will be assessed in the event that the vessel for the convenience of the Government under has not commenced loading by 11:59 p.m. on Provision No. C.25. the second day following the last day of the 3-day delivery window established under Pro
C.30 Limitation of Government Liability vision No. C.5, unless the vessel has arrived DOE's obligation under these SSPs and in roads and its Master has presented a no any resultant contract is to use its best eftice of readiness to the Government or its
forts to perform in accordance therewith. agents. Liquidated damages shall continue The Government under no circumstances until the vessel presents its notice of readi shall be liable thereunder to the purchaser ness. For petroleum to be moved by pipeline,
for the conduct of the Government's contracif delivery arrangements have not been made
tors or subcontractors or for indirect, conby the last day of the month prior to deliv sequential, or special damages arising from ery, liquidated damages shall commence on its conduct, except as provided herein; neithe 3rd day of the delivery month until such ther shall the Government be liable theredelivery arrangements are completed; if de
under to the purchaser for any damages due livery arrangements have been made, then
in whole or in part to causes beyond the conliquidated damages shall begin on the 3rd trol and without the fault or negligence of day after the scheduled delivery date if de
the Government, including but not restricted livery is not commenced and shall continue
to, acts of God or public enemy, acts of the until delivery is commenced.
Government acting in its sovereign capacity, (c) Any disagreement with respect to the
fires, floods, earthquakes, explosions, unusuamount of liquidated damages due the Gov
ally severe weather, other catastrophes, or ernment will be deemed to be a dispute and strikes. will be decided by the Contracting Officer pursuant to Provision No. C.32.
C.31 Notices C.28 Failure to Perform Under SPR Contracts (a) Any notices required to be given by one
party to the contract to the other in writing In addition to the usual debarment proce shall be forwarded to the addressee, prepaid, dures, 10 CFR Section 625.3 provides proce by U.S. registered, return receipt requested dures to make purchasers that fail to per mail, express mail, telegram, or electronic form in accordance with these provisions in means as provided in the NS. Parties shall eligible for future SPR contracts.
give each other written notice of address C.29 Government Options in Case of
changes. Impossibility of Performance
(b) Notices to the purchaser shall be for
warded to the purchaser's address as it ap(a) In the event that DOE is unable to de pears in the offer and in the contract. liver petroleum contracted for to the pur (c) Notices to the Contracting Officer shall chaser due either to events beyond the con be forwarded to the following address: U.S. trol of the Government, including actions of Department of Energy, Strategic Petroleum the purchaser, or to acts of the Government, Reserve, Project Management Office, Acquiits agents, its contractors or subcontractors sition and Sales Division, Mail Stop FE 4451, at any tier, the Government at its option 900 Commerce Road East, New Orleans, Loumay do either of the following:
C.32 Disputes (a) This contract is subject to the Contract Disputes Act of 1978 (41 U.S.C. Section 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 in the manner specified in 48 CFR 1-33.211.
(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 dispute requests or amendments to such requests for payment exceeding $50,000, the purchaser shall certify at the time of submission as a claim, as follows:
I certify that the claim is made in good faith, that the supporting data are current, 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 Signature Title
(d) The Government shall pay to the purchaser interest on the amount found due to the purchaser on claims submitted under this provision at the rate established by the Department of the Treasury from the date the amount is due until the Government makes payment. The Contract Disputes Act of 1978 and the Prompt Payment Act adopt the interest rate established by the Secretary of the Treasury under the Renegotiation Act as the basis for computing interest on money owed by the Government. This rate is published semi-annually in the FEDERAL REGISTER.
(e) The purchaser shall pay to DOE, interest on the amount found due to the Government and unpaid on claims submitted under this provision at the rate specified in Provision No. C.24 from the date the amount is due until the purchaser makes payment.
(1) The decision of the Contracting Officer shall be final and conclusive and shall not be subject to review by any forum, tribunal, or Government agency unless an appeal or action is commenced within the times specified by the Contract Disputes Act of 1978.
(8) 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 re
quest for relief, claim, appeal, or action related to this contract.
0.33 Assignment The purchaser shall not make or attempt to make any assignment of a contract that incorporates these SSPs or any interest therein contrary to the provisions of Federal law, including the Anti-Assignment Act (41 U.S.C. 15), which provides:
No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.
C.34 Order of Precedence In the event of an inconsistency between the terms of the various parts of this contract, the inconsistency shall be resolved by giving precedence in the following order:
(a) The NA and written modifications thereto;
(b) The NS;
(c) Those provisions of the SSPs (as published in the FEDERAL REGISTER) made applicable to the contract by the NS;
(d) The instructions to the SPR Sales Offer Form; and (e) The successful offer.
C.35 Gratuities (a) The Government, by written notice to the purchaser, may terminate the right of the purchaser to proceed under this contract if it is found, after notice and hearing, by the Secretary of Energy or his duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered by or given by the purchaser, or any agent or representative of the purchaser, to any officer or employee of the Government with a view toward securing a contract or securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to the performing of such contract; provided, that the existence of the facts upon which the Secretary of Energy or his duly authorized representative makes such findings shall be in issue and may be reviewed in any competent court.
(b) In the event that this contract is terminated as provided in paragraph (a) hereof, the Government shall be entitled (1) to pursue the same remedies against the purchaser as it could pursue in the event of a breach of the contract by purchaser, and (2) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined
by the Secretary of Energy or his duly authorized representative) which shall not be less than three nor more than 10 times the cost incurred by the purchaser in providing any such gratuities to any such officer or employee.
(c) The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.
B Sample Notice of Sale
87 REV. 8/91 I-Instruction Guide for Return of Offer Guarantees by Electronic Transfer or
Treasury Check J-Offer Guarantee Calculation Worksheet
EXHIBITS A-SPR Sales Offer Form
1. Maximum MLI Quantity (MAXQ)
For each MLI offered against, oftens shall state here, In thousands of borrots,
than the DOE's mientram quantity as stated in the notion of Selo me).
Pipeline delivery from first terminal
Pipeline delivery from second terminal
of sale does not correspond to a calendar month.
The offer shall state the offered price per barrel on ench Du for which the offer
quantity the ofteror is willing to accept alternato delivery methode or portodo.
DU 001B: 1,000
DU 2010: 1,000
the 10th, the 11th through the 20th, or 21st through the end of the month.
For each DUI on which an offer is made, the ofteror should indicate his
the MLI to be exceeded.
The offer shall calculate the total prica (desired DU quantity thmes unkt price)
stated in thousands of barnek.
The amount of the offer guarantee is $10 million dollars or 6 percent of the
4. Delivery Preference (P)
Where the offer has the same unit price for two or more DLls on the same MLI,
select the DLls to be awarded at its discretion.
Offers must indicate at least one desired DLI, stating in thousands of barrels)