Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:07-cv-00134-SGB AWARD / CONTRACT
CONTRACT (Proc. Inst. IdylL) NO.

Document 19-2

Filed 08/06/2008
[~>

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PAGE OF PAGES

1. THIS CONTRACT IS A RATED Of:E]e:l UNDER SPAS (15 CFR 350~

S. iSSUEDBY

DACA87-91-C-O019

CODEI

02/07/91 ~00!

k'31RY0- 8,3i2-0003
~ADMINI~i~BY~o~erth~nitem~

I SS
CODE L~..0.~

US ARHY ENG. DIV.¯ HUNTSVILLE ATTN= CENND-CT-A PO Box 1600 Huntsvitte, AL 35807-4301
7. NAME ANOADDRESSOFCONTRACTOR ~o.,streei, clty, co unty,~tateand~PCode)

US ARRY CORPS OF ENGINEERS HONOLULU DISTRICT ATTN: CEPOH-DD FORT SNAFTER¯ NI 96858

DELIVERY [] FOB ORIGIN [] OTHER (See below) DISCOUNT FOR PROMPT PAYMENT 00. O00~J]O Net
"~0~ SUBMIT INVOICES (4, ~opiel unle~ otherv, ase ,~uecified) TO THE ADDRESS SHOWN IN:

C0-ENERGY GROUP 725 ARIZONA AVENUE SUITE 206 SANTA HONICA ¯ CA

90401-

030

CODE 11. SHIP TO/MAF~I~ I~(~ -" -

FACIUTY CODE
CODE " 12. PAYMENT WILL BE MADE BY CODE

ADMINISTERING OFFICE
13 AUTHORffY FoR uSING OTHER THAN FULL AN .... _,._.. . 14. ACCOUNTING AND APPROPRIATION DATA .......

......... " ......

[] ~ou.s.c.z~(c)(
15A, iTEM NO. /

)

~ ..........

[] ,, u.s.c.~,~(c)(

)

-~ee attached Schedute(s)

.

.

15B. SUPPUES/St~F,PACES

15C. QUANTITY ,

t 15D. UNiT 15F- UNiT PRICE / 15F. AMOUNT

Confirmi~ negotiations concluded on i Feb

91 and contractor's be~,It and final offe~ and

revisionsl thereto, this document constitutes a~ard of services des~:ribed in Section|C of

solicitation DACA87-89-R-0046 for Shared Energ~ Savings Program at 'Aliamanu Family ~ousing
Area, ~0~olulu, HI. Schedules B-l, B-2 and B~; Service Wage Determination 86-242 (~ev. 9)

and General Wage DecisionHl90-1 in Section J,|FAR 52.249-0002 and 52.249-0002, Alt~rnate I
in SectiOn I, and local clause 52.2~9"4010 i~ ~ection H are incorp~rated ~nd made a Ipart of this contract. The period of performance is ~so incorporated in ~ectio~ F. SectiOn C,

Paragraphl 15 is incorporated and made a part ofl this contract.
¯
16. TABLE OF CONTENTS
(X) X X X X X X X X ! SEC I DESCRIPTION PART I - THE SCHEDULE A ! SOUCiTAT1ON/CONTRACTFORM I B I SUPPUESORSERV1CESANDPRICESK;OSTS I O I DESCRIPT~ONISPECSJWORKSTATEMENT I D I PACKAGING AND MARK]NG E ! INSPECTION AND ACCEPTANCE F I DELIVERIES OR PERFORMANCE I G I CONTRACT ADMINISTRATION DATA J H I SPECIAL CONTRACT REQUIREMENTS " "J~1. 1~ 1 3 4 6 X L K " ~, "" X PAGE (S) (X) SEC DESCRIPTION

.

~
.

|
0 00
"

15G" TOTAL AMOUNT OF CONTRACT [~! $
PART II - CONTRACT Ct.AUSES I CONTRAOTCLAU,F~.~ ' PART lit " Ub'~ OF DOCUMENTS, EXHIBITSANDOTHERATrACH~NTS J l.~tofAlta¢hmen~ 2 ' PARTIV-R~AllON~ANDINSTRUCTiONS P,~J~vc,.RENTA110N~, C~]:~TIFICATiONS AND OTHER S'i'ATEMENT~ OF OFFERORS INSTR~L, CONDO, AND NOTICES TO OFFERORS 20

PAGE (S)

17. ~ CONTRACTOR'S N~--GUilATED AGREEMEhrr (Contm~or is re-" quired to sign this d.ocu.m,ent ar~l..re..tum ~.,,_,.~ copies to issuing orris.) Contractor agrees Is ;ummn ~ oe~wef all fleas or pen'onn aJl the ser~ set forth or olhePwise identh'ied above and on any contlnualion sheetl for the consideration stated herein. The r~ghts and obligations of the parties to thi~ contract shall be subject to and governed by lhe follc~ng dooJments: (a)this award/contract, (b)the solic{tation0 if any, ~ (c) such provisions, repcesenta.tions, cerlifications, and specifications, a.s ate att~..hed o~' incoq:~orated by reference herein. (Attachments are listed herein.) 19A. NAME AND TITLE OF SIGNER (Type or pdnt)

M EVALUA11ON FAC'roR~ FOR AWARO 13 CONTRACTING OFRCER WILL COMPI .ETE ITEM 17 OR 18 AS APPLICA~[,~
18. [] AWARD (Contrac~ is no~ required to sign this document.) Your offe¢ on Solk:~mk~ Numb~ Ir~uding Ihe addition= o~ change= made by you which additions or changes' are se~ forth In full abo~, L~ hereby aocep~ed ~s to the items listed above and on any continuation s~met~. This aa~u'd somummates the contract which con~ of the fo~iowlng do(:ument~ (s) the Govemmerd's solicitation and your oiler, ~ (b)this awa~dlco~ltmct. No further contrac~aJ document is neces20A. NAME OF CON'I'RACnNG OFFICER

¯ James g. Reynotds
~ME OF CONTRACTOR I , 19(3. DATE SIGNED 20B. UNil ~ STATES OF AM~ BY (Signature of Contracting Offlced 26-1o7

(205)955-5660

(Signature of person aulhorized to sign) ISN 754(>01 - 152-8069 ~REVIOUS EDITION UNUSABLE

1

rescrised bv GSA 1 EXHIBIT A - EXCERPTED CONTRACT DOCUMENTSpSTAND.,ARD FORM 26 (REV. 4-85) FAR (48 CFR) 53.214(a)

120C" DATE SIGNED

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(End of clause)

[,74

52.246-0025:'

LIMITATION OF LIABILITY--SERVICES

(APR 1984)

(a) Except as provided in paragraphs (b) and (c) below, and except to the extent that the Contractor is expressly respansibte under this contract for deficiencies in the services required to be performed under it (including any materials furnished in conjunction with those services), the Contractor shall not be liable for loss of or damageto property of the Government that (I) occurs after Government acceptance of services performed under ................................... this contract, and (2) results from anydefects or deficiencies-in"the ¯ _ (b) The limitation of liability ~d~r~aragraph,(a) above shall not apply when a defect or deficiency in, or the Government's acce~a~cc~f, services performed or-materials-furnished results-from.~illfut-mi-sconduct-or lackof The term "Contractor's managerial personnel," asused in this clause, means the Contractor's diPectors, officers~ and any of the Contractor's managers, superintendents, or equivalent representatives who have supervision or direction of-(1) All or substantially all of the Contractor's business; (2) All or substantially all Of the Contractor's operations at any one plant, laboratory, or separate location at which the contract is being performed; or (3) A separate and complete major industrial operation ~onnected with the performance of this contract. (c) If the Contractor carries insurance, or has established a reserve for self-insurance, covering liability for loss or damage suffered by the Governf~ent through the Contractor's performance of services or furnishing of materials under this contract, the Contractor shall be liable to the Goverrwnent, to the extent of such insurance or reserve, for toss of or damage [o property of the Government occurring after Government acceptance of, and resulting from any defects and deficiencies in, services performed or materials furnished under this contract. (d) The Contractor shall "include this ctause, including this paragraph (d), supplemented as necessary to reflect the relationship of .the contracting parties, in all subcontracts over $25,000. (End of clause) (R 7-1912 1974 APR)

1.75 52.249-0002

TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (APR 1984) (a) The Government may terminate performance of work under this contract in whole or, from time to time, in part if the Contracting Officer

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determines that a termination is in the Government's interest. The Contracting Officer shall terminate by delivering to the contractor a Notice of Temination specifying the extent of termination and the effective date. (b) After receipt of a Notice of Termination, and except as directed by the Contracting Officer, the Contractor shall immediately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause: (1) Stop work as specified in the notice. (2) Place no further subcontracts, or orders (referred to as subcontracts in this clause) formaterials, services, or facilities, except as necessary to co~lete the continued portion of the contract. (3) Terminate all subcontracts to the extent they relate to the work terminated. ........... (4) Assign-to~he Governme--~t;~as. d{rected.b~~-Con~ract~g~e~,all.-right, title, and interest of ~he Contractor under the subcontracts terminated, in which case the Goverr~nt shall have the right to settle or to pay any- t~i~a~-~e~e~nt prol~)-S~-~i~~n~ ou~ of-those ~ (5) ~ith approval or ratification to the extent required by the ¯ Contracting Officer, settle all outstanding liabilities and termination settte~nt proposals a~ising from the termination of subcontracts; the approval or ratification wilt be final for purposes of this clause. (6) As directed by the Contracting Officer, transfer title and deliver to the Government (|) the fabricated or unfabricated parts, work in process, completed work, supplies, and other materiel produced or acquired for the work terminated, and (ii) the completed or partially completed plans, drewings~ information, and other preperty that, if the contract had been completed, would be required to be furnished to the Government. (7) Complete performance of the work not terminated. (8) Take any action that maybe necessary, or that the Contracting Officer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the Government has or may acquire an interest. (9) Use its best efforts to sell, as directed or authorized by the Contracting Officer, any property of the types referred to in subparagraph (6) above; provided, however, that the Contractor (i) is not required to extend credit to any purchaser and (ii) may acquire the property under the conditions prescribed by, and at prices approved by, the Contracting Officer. The proceeds of any transfer or disposition will be applied to reduce any pay~nts to be made by the Government under this contract, credited to the price or cost of the work, or paid in any other manner directed by the Contracting Officer. (c) After expiration of the plant clearance peried as defined in Subpart 45.6 of the Federal Acquisition Regulation, the Contractor may submit to the Contracting Officer a list, certified as to quantity and quality, of

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......

termination inventory not previously disposed of, excluding authorized for disposition by the Contracting Officer. The Contractor may request the Government to remove those items or enter into an agreement for their storage, githtn 15 days; the Government wil[ accept title to those items and remove them or enter into a storage agreement. The Contracting Officer may verify the list upon removal of the items, or if stored, within 45 days fr~n subnission of the list, and shall correct the list, as necessary, before final settlement. (d) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribedby the Contracting Officer. The Contractor shall submit the proposal promptly, but no later than 1 year from the effective date of termination, .unless extended in~ri~i~g-~y the Contracting Officer upon written request of th~ Contractor=withi~ this 1 year ~eriod~.. Ho~eve~,~;: if the Contracting Officer determines that the facts just.ify it, a ¯ termination settlement proposal may be received and acted on after 1'year or anyextension. If-th~ ContractOr f~il~t~submit the proposal within ~he -t~ime~a~l~wed~the~ntracti~ng~ffi~ceF-----may~de~ermine~n~the~ba~sis:!~f~-~~= ..... information available, the amount, if any~ due the Contractor because of the termination and shall pay the'amount determined. (e) Subject to paragraph (d) above, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. However, the agreed amount, whether under this paragraph (e) or paragraph (f) below, exc'lusive of costs shown in subparagraph (f)(3) below, may not exceed the total contract price as reduced by (a) the amount of payman~s previously made and (2) the contract price of work not terminated. The contract shall be amended, and the Contractor paid the agreed amount. Paragraph (f) below shall not 'limit, restrict, or affect the amount that maybe agreed upon to be paid under this paragraph. (f) if the Contractor and the Contracting Officer fail to agree on the whole amount to be paid because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined by the Contracting Officer as follows, but. ~ithout duplication of any amounts agreed on under paragraph (e) above: (1) The contract price for completed supplies or services accepted by the Government (or sold or acquired under subparagraph (b)(9) above) not previously paid for, adjusted for any saving of freight and other charges. (2) The total of-(i) The costs incurred in the performance of the work terminated, including initial costs and preparatory expense allocable thereto, but excluding any costs attributable to supplies or services paid or to be paid under subparagraph (f)(1) above; (ii) The cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the

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terminated portion of the contract if not included in subdivision (i) above; and (iii) A sum, as profit on subdivision (i) above, determined by the Contracting Officer under 49.202 of the Federal Acquisition Regulation, in effect on the date of this contract, to be fair and reasonable; however, if it appears that the Contractor would have sustained a loss on the entire contract had it been completed, the Contracting Officer shall allow no profit under this subdivision (iii) and shall reduce the settlement to reflect the indicated rate of loss. (3) The reasonable costs of settlement of the work terminated, including(i) Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data; ................. ¯ ......... ................. (i.i) The termination and settlement ~f subcontracts (excluding the amounts of such settlements); and (tii) Storage, transportation, and other=costs incurred, reasonably ........ necessary for the preservation, protection,-.or-disposition of the termina (g) Except for normal spoilage, and except to the extent that the. 6overnment expressly assumed the risk of loss, the Contracting Officer shall exclude from the amounts payabte to the Contractor under paragraph (f) above, the fair vatue, as determined by the Contracting Officer, of ¯ property that is destroyed, tost, staten, or damaged so as to become undeliverable to the Government or to a buyer. (h) The cost principles and procedures of Part 31 of the Federal Acquisition Regulation, in effect on the date of this contract, shall govern all costs claimed, agreed to, ordetermined under this clause. (i) The Contractor shaft have the right of appeal, under the Disputes clause, from any determination made by the Contracting Officer under paragraph (d), (f), or (k), except that if the Contractor failed to submit the termination settlement proposal within the time provided in paragraph (d) or (k), and failed to request a tin~ extension, there is no right of appeal. If the Contracting Officer has made a determination of the amount due under paragraph (d), (f), or (k), the Government shall pay the Contractor (I) the amount determined by the'Contracting Officer if there is no right of appeal or if no timely appeal has been taken, or (2) the amount finally determined on an appeal. (j) In arriving at the amount due the Contractor under this clause, there shall be deducted-(I) All unliquidated advance or other payments to the Contractor under the terminated portion of this contract; (2) Any claim which the Government has against the Contractor under this contract; and (3) ~he agreed price for, or the proceeds of sate of, materials, supplies, or other things acquired by the Contractor or sold under the provisions of this clause and not recovered by or credited to the

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Government. (k) if the termination is partial, the Contractor may file a proposal with the Contracting Officer for an equitable adjustment of the price(s) of the continued portion of the contract. The Contracting Officer shall make any equitable adjustment agreed upon. Any proposal by the Contractor for an equitableadjustmont under this clause shall be requested within 90 days fro~ the effective date of termination unless extended in writing by the Contracting Officer. (l)(1) The Government may, under the terms and conditions it prescribes, make partial payments and payments against costs incurred by the Contractor for the terminated portion of the contract, if the Contracting Officer believes the total of these payments will not exceed the amount to which the Contractor wilt be efit~-tl-e~:....... (2) If the total payments exceed the amount~final!y determined-to be due ....... the Contractor shall repay the excess to th~ Goverr~nent upon demand, together with interest con~)uted at the rate established by the Secretary of the Trebsury under-50 U.S;C, App;1215(b)(2);-~[nterest shall b~ ...... ~=: .... computed.for=the=peried fr~n=the=date~the~excess~pay~ent=is.recei.vedby~.i!:,~ the Contractor to the date the excess is repaid. Interest shall not be charged on any excess payment due to a reduction in the Contractor's termination settlement proposal because of retention or other disposition of termination inventoryuntil 10 days after the data of the retention or dispesition, or a tater date determined by the Contracting Officer because of the circumstances. (m) Unless otherwise provided in this contract or by statute, the Contractor shall maintain all records anddactments relating to the terminated portion of this contract for 3 years~fter final settlement. This includes art books and other evidence bearing on the Contractor'~ costs and expenses under this contract. The Contractor shall make these records and documents available to the Government, at the Contractor's office, at all reasonable times, without any direct charge. If approved by the Contracting Officer, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records and documents. (End o~ clause) (R 1-8.701) (R 7-10~.21(b) 1974 OCT)

" ......

= .......

-~---

1.76

52.249-0002 !

TERMINATION FOR CONVENIENCE OF THE AL~ERNATE.[ (APR 1984)

GOVERNMENT (FIXED-PRICE)

(APR 1984)-

.

(a) The Government may terminateperformance of work under this contract in whole or, fro~ time to time, in part if the Contracting Officer determines that a termination is in the Government's interest, The Contracting Officer shall terminate by delivering to the Contractor a

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Notice of Termination specifying the extent of termination and the effective date. (b) After receipt of a Notice of Termination, and except as directed by the Contracting Officer; the Contractor shall i~m~=diately proceed with the following obligations, regardless of any delay in determining or adjusting any amounts due under this clause: (1) Stop work as specified in the notice. (2) Place no further subcontracts or orders (referred to as subcontracts in this clause) for materials, services, or facilities, except as necessary to co~olete the continued portion of the contract. (3) Terminate art subcontracts to the extent they relate to the work terminated. (4) Assign to the Government, as dtreFte~.._by~he Contracting Officer, all right, title, and interest of the Contractor under the subcontracts terminated, ih which case the Government shall have the right to settle ..... or to pay any termination settlement proposatarising out of those ..... terminations. (5) gith approval ~ratificat~on ~O-~-extent required by the . settlement proposals arising from the termination of subcontracts; the approval or ratification will be final ~or purposes of this clause. (6) As directed by the Contracting Officer, transfer title and deliver to the Goverr~nt (i) the fabricated or unfabricated parts, work in process, completed work, supplies, and other materiatproduced'.or acquired for the work terminated, and (ii) the completed or partially completed plans, drawings, information, and other property that, if the contract had been completed, would berequired to befurp|shed to the Government; (7) Complete performance of the work not terminated. (8) Take any action that may be necessary, or that the Contracting .Officer may direct, for the protection and ~reservation of the property related to this contract that is in the possession of the Contractor and in which the Government has or may acquire an interest. (9) Use its best efforts to sell, as directed or authorized by the Contracting Officer, any property of the types referred to in subparagraph (6) above; provided, however; that the Contractor (i) is not required to extend credit to any purchaser and (ii) may acquire the property under the conditions prescribed by, and at prices approved by, the Contracting Officer. The proceeds of any transfer or disposition wilt be applied to reduce any payments to be made by the Government under this contract, credited to the price or cost of the work, or paid in any other manner directed by the Contracting Officer. (c) After expiration of the plant clearance period as defined in Subpart 45.6 of the Federal Acquisition Regulation, the Contractor may submit to ¯ the Contracting Officer a list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the Contracting Officer. The Contractor may

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request the Government to remove those items or enter into an agreement for their storage. Within 15 days, the Government will accept title to those items and remove them or enter into a storage agreement. The Contracting Officer may verify the list upon removal of the items, or. if stored, within 45 days fremsul~ission of the list, and shall correct the list, as necessary, before final settle~ent. (d) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribed by the Contracting Officer. The Contractor shall submit the proposal pro~tly, but no later than I year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this 1 year period. However, if the Contra~ti~g~~-'determines that the facts justify it, a termination settlement proposal may be received and acted on after I year or any extension.~ If the Contractor fails to submit the proposal within the time allowed, the .Contracting Officer may determine, on the basis of information availabld,the amount, if any, due the Contractor because of -.-the-termination_and~sha.l.l-pay~the-amouht~determined:-.~_-.~..~ - ......... (e) Subject to paragraph (d) above, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. Bowever, the agreed amount, whether under this paragraph (e) or. paragraph (f) below, exclusive of costs shown in subparagraph (f)(3) below, may not exceed the total contract price as reduced by (a) the amount of payments previously made and (2) the contract price of work not terminated. The contract shall be amended, and the Contractor paid the agreed ameunt. Paragraph (f) below shall not limit, restrict, or affect the ameunt that may beagreed upon to be paid under this paragraph. (f) if the Contractor and Contracting Officer fail to agree on the whole amount to be paid the Contractor because of the termination of work, the Contracting Officer shall pay the Contractor the amounts determined as follows, butwithout duplication of any amounts agreed upon under paragraph (e) above: (I) For contract work po~formed before the effective date of termination, the total (without duplication of any items) of-(i) The cost of this Work; (ii) The cost of settling and paying termination settlement proposals under terminated subo~ntracts that are property chargeable to the terminated portion of the contract if not included in subdivision above; and (iii) A s~, as profit on (i) above~ determined by the ContraCting Officer under 49.202 of the Federal Acquisition Regulation, in effect on the date of this contract, to be fair and reasonable; however, if it appears that the Contractor would have sustained a toss on the entire contract had it been co~leted, the Contracting Officer shall allow no

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profit under tSis subdivision (iii) and shall reduce the settlement to reflect the indicated rate of loss. (2) The reasonable costs of setttetnent of the work terminated, including-(i) Accounting, legal, clerical, and other expenses reasonably necessary for the preparation of termination settlement proposals and supporting data; (ii) The termination and settlement of subcontracts (excluding the amounts of such setttemants); and (iii) Storage, transportation, and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory. (g) Except-for normal spoilage, and except to the extent that the Government expressly assumed the risk of loss, the Contracting Officer shall exclude fr~ the ffmounts payable to the Contractor under-paragraph .... (f) above; the fair value, as determinedby the Contracting Officer, of property.that_is destroyed, lost, stolen, or damaged so as to become

Acquisition Regulation, in effect on the date of this contract, shall govern all costs c!.aimed; agreed to, or determined under this clause. (i) The Contractor shall have the right of appeal, under the Disputes clause, frown any determination made by the Contracting Officer under paragraph (d), (f), or (k), except that if the contractor failed to submit the teFmination settlement proposal vithin the time provided in paragraph (d) or (k), and failed to request a time extension, there is no right of appea!..-Ifthe Contracting Officer has made a determination of the amount due under paragraph (d), (f), or (k), the Government shall pay the Contractor (1) the amount determined by the Contracting Officer if there is no right of appeal or if no timely appeal has been taken, or (2) the amount finally determined on an appeal. (j} ~n arriving at the amount due the Contractor under this clause, there shall be deducted-(1) AI!. un!.iquidated advance or other payments to the Contractor under the terminated portion of this contract; (2) Any claim which the Government has against the Contractor under this contract; and (3) The agreed price for, or the proceeds of Sale of, materials, supplies, or other things acquired by the Contractor or sold under the provisions of this clause and not recovered by or credited to the Government. (k) If the termination is partial, the Contractor may file a proposal with the Contracting Officer for an equitable adjustment of the price(s) of the continued ,pprtion of the contract. Th.e Contracting Officer shall make any equitable adjustment agreed upon, Any proposal by the Contractor for an equitable adjustment under this clause shall be requested within 90

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days from the effective date of termination unless extended in .writing by the Contracting Officer. (I)(I) The Government may, under t~e terms and conditions it prescribes, make partisl payments and payments against costs incurred by the Contractor for the terminated portion of the contract,, if the Contracting Officer believes the total of these payments will not exceed the amount to ~ich the Contractor will be entitled. (2) if the total payments exceed.the amount finally determined to be due, the Contractor shall repay the excess to the Goverr~nent upon demand, together with interest comp~ted at the rate established by the Secretary of the Treasury under 50 U.S.C. App. 1215(b)(2). interest shall be computed for the pariod fr~n ~hedate the excess payment is received by the contractor to the date the~excess is repaid. Interest shall nbtbe charged on any excess payment due to a reduction in the Contractor's termination settlement proposal because of retention or other disposition of termination inventory until 10 days after the date of the retention 6~dispo~ition, or a'tater date determined by the Contractin9 Officer (m) Unless otherwise.provided in this contract or by statute, the Contractor shall maintain.all records and documents relating to the terminated'portion of this contract for 3 years after f.inal settlement. This includes all books and other evidence bearing on the Contractor's costs and expenses under this contract. The Contractor shall make these records and documents available to the Government, at the Contractor's office, at all reasonable times, without any direct charge, ff approved by the Contracting Officer, photographs, microphotographs, or other authentic reproductions may be maintained instead of original records an~ documents. (End of clause) (R 1-8.701) (R 7-103.21(b) 1974 OCT) (R 1.8-703) (R 7-602.29(a) 1974 APR)

END OF SECTION I

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AMENDMENT OF SOLICITATIONIMODIFICATION OF CONTRACT

=.'~~r~OD,~CA~O, .o.
~,0050
¯ JED BY

31 EFFECTWE DATE

4. REQuISmON/PURCHASE RED. NO. ' .... 5. PROJECT NO, (/! applicable) 7. ADMINISTERED BY (if other than Item 6) CODE ~ri~) ~I~-LD w/sK-2 FIIRO SPEC W/SK

I

ORIGINAL SF-30 CEPOD-CT-C 1. CONTRACT ID CODE I PAGE OF PAGES

I ,1 ,,,I,2

OS Army Corps of Engineers Building 230

CODE

I~IRO OEB

Fort Shafter, Hawaii 96858-5440
8. NAME AND AOORESS OF CONTRACTOR (No., 'street, county, State & ZIP Code)

.

CEPOD-ET-TD W/SK CEPOD PP.MD

(x) 0A. AMENn'M~NT OF SOUCII~AI~O~i NO.
CEPOD:LO-S 9B. DATED (SEE ITEM 11) 10A. MODIFICATION 0F CbN'rRACT/dRI~EI~ .' ........... NO. X 10B. DATE '(S~EEITEM ..............................

Aliamanu Conservation Partners, L. P, 1850 C Aliamanu Driver, Bunker 27C Honolulu, Hawaii 96818

DACA87-91-C-0019

I FACILITY CODE 13) 7 Feb 91 .................... 11. THIS ITEM ONLY APPLIES TO AMENDMENT~OF SOLICITATIO'~ ..... --t"=1 The abovenumbered Solk:RatJ0nis amended as set forth in Item 14.-The h~U, and date specified for receipt of Offers tended.. = " '0DE ........ ' Offers must acknowledge receipt of this amendment pdorto_the.hour and date s_pecified in the solicitation or as amended, by one of the following methods: ~---~(a)-By~compisting-ltems8 andd 5, and returning -:~coples_of=th_e_amendme_ nt;_(_b) By=acknowJedgLng receipt of this amendment on each copy of the offer submitted; or (c) By separateletter or telegram which includes a reference----f~-th~-~li-cit~ti~n~di;ne-ht~n-u~l~e-rs~FAILURE OPYOUR~ACKNOWEEDG ~'= MENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT N. REJECT!ON OF YO.UR OFFER. If by .virtue .of this a.me.ndme.n.t ~ou desire to change .an o.ffer already subm.itted, .such change may be made.by tele~l~ra .m or euer, providea each temgram,or letter makes reference to me solicitation and this amenomem, and is raceivea pdor to the opening hour and dam specmea. 12.'AGGOUNllNG AND APPROPRIAIIUN DA [A (It requl~o)

I

N/A
~THIS CHANGE ORDER 1818SUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CON, TRACT ORDER NO. IN ITEM B. IHE ABOVE NUMBI:RP..U (.;ON IHAG ItUHUI=R 1~5 MODIFIED ]D RP..PLP.G I I HE AUMINh5 [HA11VP- GHAI~GI~:5 (SUCh as ct~anges m pa.wng othce, apptoptiationdate, eta) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b). C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF: D. OTHER (,.~pecify type of modification and authority)

13. Tills ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTSiORDERS, IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14;

Section I Contract Clauses - 1.70 'iChanges", 1.56" Disputes, and Section H - H.28 SES Baseline Adjustments

E. IMPORTANT: Contractor D is not, ~ is required to sign this document and return two

copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including so/icitab'on/contract subject matfer whe~ feasibta)

( CI A91019-46 ) (Cl) a. The contract for Shared Energy Savings Program, Aliamanu. Family Housing Area, Oahu, Hawaii is hereby modified to incorporate the Attached Amended Agreement in Principle, Agreed to and signed 31 May 1996 into the Contract. (Continued on Page 2)

Except as provided heroin, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect. 15A. NAME AND TITLE OF SIGNER (Type orp#/~t) 16A. NAME AND TITLE OF CONTRACTING OFFICER (Type orp~nt) DAVID y. KAM, Chief, Contracts Division Aliamanu Conservation

Partn~z~::~OL~L~.--' " VV. ~ITCHELL

Contracting O~ce~"
16B. UNITED STATES OF AMERICA ~ 16C. DATE SIGNED ~ i/ ..... "~ ,.., /

(Sigl~atu~of pemon author~zed to sig.) NSN 754001-152-8070 PREVIOUS EDmON UNUSABLE

,, ,, EXHIBIT A - EXCERPTED CONTRACT /DOCUMENTS 11 STANDARD FORM 30 (REV, 10-83) 30-105 Presc~bed by GSA FAR (48 CFR) 53.243

'

~. ~ ..~

f,.~gna~re of~,on~'cting 'O~r)

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CONTINUATION SHEET ";ONTRACT NO: DACA87-91-C-0019 ,vlodification No. P00050 , Change Item No. A91019-46 Block 14 (Cont.)

Page 2 of

b. CONTRACT SPECIFICATION: The contract specifications shall be revised as stat~d in the Amended Agreement in Principal and as stated below. Section B shall be revised to replace SCHEDULE B-1 with the attached Revised.Schedule B-1.

Section C shall be revised to add Paragraph 8.1.1 as follows: "8.1.1 From February 15, 1996, the Contrac#r shall not be responsible for maintenance of the existing EMCS system 1hat can cycle off the air conditioning systems and the domestic water heating systems. The Contractor shall shut off the EMCS at no cost or liability to the Government or the Contractor."
c. CONTRACT DRAWINGS:. The ontracl~D~-a&i~g~-_sh~ii remain-unchanged as a result of this change ....... d:,~PRICE ADJUS'FMENT~Asa :result-of:this~mo.dificatien~ontr-aet~payments=shall,be=rnade;in--accordance~ ...... ~-with the Amended Agreement in Principle signed May 31, 1996. e, PERFORMANCE TIME: The performance period of the contract shall remain unchanged.

It is further understood and agreed that this adjustment constitutes compensation in full on behalf of the Contractor and its subcontractDrs and suppliers for all costs and markup direclJy or indir.ectly alIributable to the change ordered, and for all delays related thereto, and for performance of the change within the.time frarde stated.

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PAGE OF PAGES

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT
'~.'~I~I~'I~'rlMODIFCATION NO. 3.'E~FECTiVE DATE

CONTRACT ID CODE

4~ REQUiSiTioN~Pu~C~SE REQ. NO. '7. ADMINISTERED ~'Y (l~'oth~r than Item 6) ........

5. PROJECT NO. (If applicable)

I3

P00100
6. iSSUED BY

See Block i6c
CODE .............. CODE

\rmy Corps of Engineers

,',1: CEPOD-ET-CH (FHRO) Building 230 Fort Shafter, Hawaii 96858-5440 Aliamanu Conservation Partners, L.P.

¯"

FSRO 0EB WISK FSRO FIELD W/~K-; FSRO SPEC FSRO-OEB (PYMrS' CEPOH.CO~. WISK
(X) 9A. AMENDMENT OF SOLICITATION~t-~.- ........... 9B.'DATt:D (SEE ITEM 11) C~M4:A

8. NAME AND ADDRESS OF CONTRACTOR (No., street, county, State &ZIP Code)

1850 .C Aliamanu Dr., Bunker 27C
Honolulu, HI 96818

10A. MODIFIC~ATI(~N""~F C'0NTRACT/ORDER NO. X ~"0B. DATE (SEEITE~

DACA87-91-C-0019

coDE .....

FACILITY CODE

13) 7February 1991

11. THIS ITEM ONLY APPLIES TO-AMENDMENTS OF SOLICITATIONS U The above numbered solicitation is amended as set forth in,Item 14. The hour and date specified for receipt of Ofers-;~-Ui~:e~tend~d~._-~ :.is not extended ........... . ................................... :
.__Offers ~us_t ac~kn__o.wled__.__ge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods:

(a) By c_o...m~leting Item~_B~and._15, and return!ng copies of the amendment; (b) By acknowledging receipt of this amendmeni 0~ ~ach copy of the offer " -~dbmitte-d~ 6r (c) By Separate ~e~te(6?~t~grar~~d~s~-~refetenc~tb-.1he~s~i~it~ti~.~--and=amendment~number~FA~L--URE-~P-Y~UR A¢I~NOWLEDG:--~~-~ MENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESUL IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter provided each telegram or letter makes reference to the so ic ration and th s amendment and is rece veal prior to the opening hour and date specified. 12,ACGOUN]ING'A'ND"APPROPRIA~[IOI~ DA~I-A (ltrequ/re~)

See Block 14, Paragraph b(3)
13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS, IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.
(X) I A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE CON-' ".&ACT ORDER NO. IN ITEM 10A.

.. I~IE ABOV~ NL~MBERED C0NTRACT/ORDER IS MODIFI~D TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying et~ce,
appt#priatio# d~te, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(b). C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT Tp AUTHORITY OF:

Contract Clause 1.70, "CHANGES", and 1,56, "DISPUTES"
D. OTHER (Specify type of modilication and authority)

E. IMPORTANT: Contractor U is not, Ixl is~M~J to sign this document and return

2

copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organize~ by UCF section headings, including solicitation/contract ~ubject matter where feasible)

(CI A91019-113 )

(Cl)

a. The contract for Shared Energy Savings Program, Aliamanu Family Housing Area, Oahu, Hawaii, is hereb~ modified as follows: (1) Incorporate the attached Agreement in Principle agreed to and signed on 25 November 1998, as an integral part of .the Contract. (Continued on Page 2)
Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect. 16A. NAME AND TITLE OF CONTRA~C~NG OFFICER (Type orpdnt) 15A. NAME AND TITLE OF SIGNER/(Type orptfnt)

Aliama~.. onserv~on/Partners,/ L.p..: .....
16B. UNITED STATE,~,OF AMERICA

,~person authori~lto Sign) NSN 7540-01~52-8070 . { PREVIOUS E~ION UNUSABLE

............................... ~T~O~o 30-105 EXHIBIT A - EXCERPTED CONTRACT DOCUMENTS ~o~ ~'B"'<~V. 13
Pres~d by GSA FAR (48 CFR) 53.243

I "" !"T I -1 1

(Signature of~ont~cting Officer)

x--l

16C. ~ATE SIGNED ..

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" CONTINUATION SHEET CONTRACT NO: DACA87-91-C-0019 Modification No. P00100 , Change Item No. A91019-113 ,lock 14 (Cont.)

Page 2 of

(2) Ri~imburse the Contractor for maintenance and replacement of the electric hot water heaters at Aliamanu Military Reservation, as needed, effective 1 October 1998. b. CONTRACT SPECIFICATION: The contract specifications shall be revised as stated in the Agreement in Principle signed 25. November 1998 and as stated below: (1) Section C, Paragraph 10.0 "METERING" shall be modified to read as follows: No new metering system will be required. Through May 31, 1996, the existing meter at the electrical substation will be used for the measurem~#_t_of energy Usage for the.Contract. ~ .... (2) Section C, Paragraph-11.0 '"BASIS OF PAYMENTTOTHE CONTRACTOR,"ii~sh~ll"be-mo~-ifi~d by~: inserting afte# ~iparagraph 11.1 "Basisfor Contract Billing,"-the following subparagraph: 1_~__11_._Basi~=for_Contra_~ Billing and Payment Starting June 1, 19~. Billings ~i: r~-nths beginning " --June 1, 1996, ~nd the-r~-fter:,=~-~ demand savings of 4,500 kW. The "Baseline Formula" set forth in paragraph 12.0 of the Contract will not apply to billings and payments for months after May 1996. (3) Section C, Paragraph 13.0 "MAINTENANCE BASELINE" does not apply after May 1996. (4) Schedule B-l, Section B, of the contract, shall be modified as follows: "Percent to AMR" in years 12, 13, 14, 15 and two months in year 16 shall be changed.from "30, to (5) Section C, Subparagraph 2.2.3.1 and SeclJon H, Paragreph H.28 52.242-4144 "SES BASELINE ADJUSTMENTS" do not apply after May 1996. (6) Section C, Paragraph 11.2 "PAYMENTS", on page C-12, add the following new subparagraph 11.2.9. "11.2.9 Compensation for work to be performed under Item Nos. 2A, 2B and 2C, as identified in SectJo~ B, Schedule B-4, shall be paid for at the unit price, complete, in place, and ready for use, to include labor, materials, and all incidental items necessary to complete the work." c. CONTRACT DRAWINGS: The contract drawings _shall remain unchanged as a result of this change.

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FINAL DECISION OF TI-IE CONTRACTING OFFICER Contract No. DACA87-91 ~C-0019 Shared Energy Savings Program Aliamanu Family Housing Area, 0ahu, Hawaii

TERMINATIONSETTLEMENT DETERMINATION
INTRODUCTION

1) By Modification Number P00212 dated 12 Au .g3mt 2004 the Contractor was notified that,
effective.30 September 2004, the Contract was being terminated for the convenience of the Govermp. ent and the Contractor was requested to provide its ~ermination settlement proposal within one year from the effective date of the termination. The Contractor subsequently submitted a proposal and negotiations were eondu'cted; however, the parties Wefe unable to negotiate a bilateral terminatiort settlement amount. During the settlement negotiatibns,.the~ Contractor orally requested that the undersigned, as the TerminatiOn Contracting officer (TCO), issue a Contracting Officer's Final Decision (COFD) regarding the termination settlement amount. This COFD contains my determination of the appropriate termination settlement amount, and ~ets forth the basis for my unilateral determination. 2) Among other things, the Contractor contends that it is entitled to all of the payments that it already received under the contract, plus its termination expenses and settlement costs, as well as all of the remainkug fixed payments thatthe Contractor would have received had the contract not been terminated for the eonvertienee of the Government. The Government contends that the C--~ntraet.~r-is~net~entit~ed~the~xed~m~nth~.y~pa.yments-the-~C-o~a-~tQr--.~-u|d-~-a~e-reeei-v.ed--~had the-contraet-not-been-terminated;_and_that~th_e final contract price resulting from the_~termination should be based upon the Contractor's actual cost iJacurred prior to the effective date of the termination~ as well as the Contractor'. Si-~llr~ble~-~ll0~able~-a~tIr~asrii~lsl~-t~fffi0-fi-and In order to arrive at my final decision, I reviewed pertinent provisions and clauses of the contract; several items.of correspondence between the Contractor and the Honolulu Engineer District ?(I-IED)~ including the Contractor's proposal; the Defense Contract Audit Agency (DCAA) audit report concerning the Contractor's purposed termination settlement proposal, various documents.obtained from the Contractor during my personal review of the Contractor's records in Nevada; and various other Government-genenited internal dqcuments. Based upon my review, I have determined that as a result of the termination for the convenience Of the Government, the final contract price shoul~l be defiuitized at $41,237,389; and since the Contractor has already received payments under the contract totaling $47,452,392, the Contractor needs to repay the Government the excess payment amount of $6,215,003, plus interest. Federal Aequisfion Regulation (FAR) Part 49.112-1(g) addresses the effect of ovei-payment and how the interest shall be computed.

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FINDINGS OF FACT The Contract:

4)

Bas¢d upon full and open competition, on 11 February 1991, Contract No. DACA87-91-C-0019, Shared Energy Savings Program, Aliamanu Family Housing Area, Oahu, Hawaii was awarded to Co-Energy Group (CEG) (s~ Standard Form 26 executed by the Procurement Contracting Officer (PCO), Mr. James W. Reynolds at TAB C-1). At the time of award, CEG certified that it was a California Corporation, was not a Small Business, that its Tax Payer Identification Number (TIN) was 95-3930946, that its Presidentwas Mr. Robert Freeman, its Executive Vice President was Mr. Thomas Mitchell, and its Vice President was Mr. George Jones. After the contract was awarded, the contract was transferred to the UnitedStates Army Corps of Engineers, Honolulu Engineer District (I-lED) for administration, and payments under the contract were to be made by the. United States Army Corps of Engineers, Pacific Ocean Division ~OD).

5) The Contract required the Contractor to prOvide and install energy savings equipment, and to
provide operating and maintenance services~ at theAliamanu Military Reservation (AMR.) family housing complex, in Honolulu, Hawaii, that would result in a reduction in A.MR's monthly energy and maintenance expenditures. The energy savings equipment and services were to be provided by the Contractor, at the Contractor's expense, and the only payments that the Contractor would receive under the contract were to be based Upon a pre-established percentage of theavoided energy and maintenance expenditures over a maximum term of fifteen (15) years1, with a limitation that the amount paid to the Contractor for the maintenance savings could not exceed the amount paid for the energy savings~. ........ 6"J~_At_ the time the contract was awarded, the AMP,. family housing complex consisted of 1,510 with a swimmin-~-6-6~-~h-.~-p~tte-/Gas~t~itit~n~-a-Burg~TKin--~;-~.Chape-~-A~n---~ ~---d-A~tlil~fi~ Fields:--The energy expenditure atAMR was to beredueed through-the-implementationof~p e d~-~and-p_r__op o ~e~-Energy~Cgn_versafion-:~roj_e.e_~,: .su_bjee~t__o_~ ~_e. ........... -acceptance_of the_Co_.~_tila_ g_0_ffi_e_e~._ _S_i~ee _ai~r___.cg__n.~ tioning was the larg~t_ en_e_rgy. consumption system at ~ the Contractor was required to develop an ECP to modify or replace the existing air conditioning system, and the C0ntraetor was required to investigate potential ECP's involving the replacement of the interior and exterior incandescent bulbs with fluorescent bulbs and improving attic ventilation. The Contractor included ECP's for these required items, as well as for other items, as part of its proposal for the contract, and the PCO accepted the Contractor's proposed ECP's through the award of the contract.. Under the terms of the contract, after award of the contract the Contractor could propose additional ECP's to the Administrative Contracting Officer (ACO) for acbeptanee by the ACO.
t S~etion C, Paragraph 1.3 of the contract clearly stated a 'Ynaximum" duration of ftfteen years, implying that the
contract duration could be less than ~e stated maximum. z SeCtion C, Paragraph 1.4 of the contract stated that the monthly payments to the Contractor would consist of an energy savings component and a maintenance savings component (which could not ekceed the amount paid for the energy savings component).

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7) The contract contained several Contract Clauses that are relevant of this issue, including:

a) H.29, 52.249-4010, Termination for Convenience (TAB C-2); b) LI4, 52.215-0001, Examination of Records by Comptroller General (APR 1984) (TAB C-3); c) LI5, 52.215-0002, Audit- - Negotiation (DEC 1989) (TAB C-4); d) L 16, 52.215-0022, Price P~eduetion for Defective Cost or Pricing Data (API~ 1988) (TAB C- "

5); e) 1.28,

52.222-0008, Payrolls and Basic Records (FEB 1988) (TAB C-6);

f) 1.48, 52.230-0003, Cost Accounting Standards (St3P 1987) (TAB C-7); g) L49, 52.230-0004, Administration of Cost Accounting Standards (SEP 1987) (TAB -8);

h) 1.50,

52.230-0005, Disclosure and Consistency of Cost Accounting Practices (SEP 1987) TAB C-9);

i) 1.50, 52.230-0006, Consistency of Cost Accounting Practices (St~P 1987) (TAB C-10); j) !.54, 52.232-0017, Interest (APK 1984) (TAB C-11); k) 1.56, 52.233-0001, Disputes (APP,. 1984) (TAB C-12); 1) 1.69, 52.236-7000, Composition of Contractor (JAN I965) (TAB C-13); m) 1.75,"52.249-0002, Termination for the Convenience of the Government (FIXED-PRICE) n) 1.76, 52.249-0002-I, Termination for the Conven~r~%~t~ ................... 8) - -During- the-contract several-contract modifieatious-were_issuCd..that._~.e_ p~ __arla_.'cul_ar!y relevant to the resolution Of the termination and the establishment of the final price of the terminated contract. These relevant contract modifications are identified and briefly discussed in the following paragraphs: .......... a) Approximately eighteen (18) months after award of the contract, based upon CEG's written request (TAB C-16), by Modification No. P00009 (See TAB C-17) on 3 September 1992 the contract was novated from CEG to Cegali, Inc. (Cegaii). At the time of the novafion, CEG represented that Cegali was wholly owned by CEG; and Cegali represented that it was a California Corporation and that its President was Mr. Robert Freeman b) Approximately three (3) years later, based upon Cegali's written request (TAB C-18), by Modification No. P00035 (See TAB C-19) on 23 March 1995 the contract was again novated, this time from Cegali, Inc. to the Aliamanu Conversation Partners L.P. (ACP). At

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17