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OCR for page 16
16 Specifically, each proposal was evaluated against the and paying termination settlement proposals under criteria and subcriteria in Table 2 and Table 3 and terminated subcontracts that are properly chargeable to scored according to the points listed. Subsequently, the the terminated portion of the contract; and a sum, as risk of each proposal was assessed and scored against profit on the cost of this work, determined by the con- the criteria in Table 1. Next, the past performance of tracting officer to be fair and reasonable. However, if it each proposer was assessed against a set of criteria and appears that the contractor would have sustained a loss rated from "Exceptional/High Confidence" to "Unsatis- on the entire contract had it been completed, the con- factory/No Confidence." Finally, the price of each pro- tracting officer shall allow no profit and shall reduce posal was considered. Proposed prices were evaluated the settlement to reflect the indicated rate of loss. for completeness, reasonableness, and realism. A pro- · The reasonable costs of settlement of the work poser's proposed prices were determined by multiplying terminated, including accounting, legal, clerical, and the quantities identified in the schedule by the pro- other expenses reasonably necessary for the prepara- posed unit price for each line item to confirm the ex- tion of termination settlement proposals and supporting tended amount. data; the termination and settlement of subcontracts (excluding the amounts of such settlements); and stor- Key Contract Provisions age, transportation, and other costs incurred, and rea- sonably necessary for the preservation, protection, or Suspension and Termination disposition of the termination inventory. The Authority retained the right to suspend all or · The total sum to be paid the contractor would not any part of the work for a period deemed appropriate by exceed the total contract price plus the reasonable set- the Authority. Any unreasonable suspensions or delays tlement costs of the contractor reduced by the amount impacting performance of the work entitled the contrac- of payments otherwise made; the proceeds of any sales tor to a cost adjustment (excluding profit). Adjustments of construction, supplies, and construction materials; would not be made if 1) performance would have been and the contract price of work not terminated. suspended or delayed by any other cause, including the fault or negligence of the contractor, or 2) circum- Contractor Proposed Changes to Standards or stances for which an equitable adjustment was provided for or excluded under any other provision of the con- Requirements tract. Proposers were allowed to either use the solicita- The Authority could terminate the contract, in whole tion's example task order and work breakdown sheets or in part, at its convenience. The contractor would in- provided or provide their own version as long as all line cur no further obligations related to the terminated items were included in the proposer's version in the work and should stop work on the date specified. The same order. Proposers were required to clearly explain contractor would also cancel outstanding orders or sub- how their not-to-exceed prices were developed. contracts connected to the terminated work while set- tling liabilities and claims arising out of the termina- Inclusion of DBEs tion of subcontracts. The Authority could direct the In accordance with its DBE policy, the Authority es- contractor to assign the contractor's right, title, and tablished a goal for DBE participation in this solicita- interest under terminated orders or subcontracts to the tion. The proposer was expected to meet or exceed Authority. The contractor would still be required to and/or demonstrate its good faith efforts to meet the complete the work not terminated by the notice of ter- goal. This goal, expressed as a percentage of the total mination and may incur obligations as are necessary to contract price, including any increases that may occur, do so. was 7 percent DBE participation. DBE participation The contractor could be required to transfer title and only counted the value of commercially-useful work deliver to the Authority in the manner and to the extent actually performed. To count, DBE work had to be per- directed: the fabricated or unfabricated parts; work in formed by its own forces. process; completed work, supplies, and other material produced or acquired for the work terminated; and the Dispute Resolution completed or partially completed plans, drawings, in- A DRB was established to assist in the resolution of formation, and other property that, if the contract had disputes, including claims and other controversies, aris- been completed, would be required to be furnished to ing out of the work of this contract. This provision de- the Authority. The contractor would need to, as di- scribes the purpose, procedure, function, and key fea- rected, protect and preserve property in the possession tures of the DRB. A three-party agreement would be of the contractor in which the Authority has an interest. executed by the Authority, the contractor, and members The Authority would pay the contractor the following of the DRB for the purpose of formalizing the creation amounts: of the DRB. The DRB would assist in and facilitate the timely · For contract work performed before the effective and equitable resolution of disputes between the Au- date of termination, the total (without duplication of thority and the contractor in an effort to avoid construc- any items) of the cost of this work; the cost of settling tion delay and litigation. The intent was not for the