General Terms and Conditions

1.1 DEFINITIONS The following terms shall have the meanings below:

• (a) Government means the United States of America and includes the U. S. Department of Energy (DOE) except as further defined in Condition 1.2(d).
  
• (b) Agent means B & W Y-12, acting under Contract No. DE-AC05-00OR22800 for DOE in selling the property.
• (c) Purchaser means the successful Bidder to whom award is made.

1.2 GENERAL SERVICES ADMINISTRATION (GSA) TERMS AND CONDITIONS This condition incorporates by reference certain provisions that apply as if they were set forth in their entirety. The following provisions are incorporated by reference:

• (a) GSA Sale of Government Property General Sales Terms and Conditions, Standard Form 114C, Rev. 6-97, modified as follows:
  • (1) Delete Condition 6, Payment, and Condition 21, Claims Liability.
  • (2) In Condition 7, Title, add the following sentence: "Purchasers of vehicles will receive from the Agent by certified mail Form 97, Certificate to Obtain a Title, after proof of payment has been made."
  • (3) In Condition 19, Certification of Independent Price Determination, (i) In paragraph (a)(2), replace "formally advertised" with "sealed bid." (ii) In paragraph (a)(3), replace "include" with "induce."
  • (4) In Condition 24, Requirements to Comply with Applicable Laws and Regulations, add the following sentence: "Applicable laws include but are not limited to the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; the Atomic Energy Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Hazardous Materials Transportation Act; and the Emergency Planning and Community Right-to-Know Act."
• (b) GSA Sale of Government Property Special Sealed Bid Conditions and Special Sealed Bid-Term Conditions, Standard Form 114C, Rev. 6-97, shall be incorporated as indicated on the cover page. When GSA Special Sealed Bid-Term Conditions are to be incorporated, in Condition A replace Condition No. 6 of the General Sales Terms and Conditions entitled "Payment" with Condition 1.13 of B & W Y-12 Sales Terms & Conditions - Sealed Bid, entitled "Payment"; and in Condition F replace "Condition No. 6 of the General Sales Terms and Conditions" entitled "Payment" with Condition 1.13 of B & W Y-12 Sales Terms & Conditions - Sealed Bid, entitled "Payment."
• (c) References to "Contracting Officer" in GSA Standard Form 114C, Rev. 6-97, shall be deemed to mean B & W Y-12 Sales Administrator.
• (d) References to the "Government" in GSA Standard Form 114C, Rev. 6-97, except as used in the first sentence of Condition 23, shall be deemed to include B & W Y-12.

1.3 ADMINISTRATION It is understood and agreed that this contract is entered into by the Agent for and on behalf of the Government. Administration of this contract may be transferred from the Agent to DOE or its designee, and in the case of such transfer and notice thereof to the Purchaser, the Agent shall have no further responsibilities hereunder.

1.4 ITEMS REMOVED FROM SALE It may be necessary to withdraw items from bidding due to technical errors, because the property is no longer available due to the Government's needs, because of damage to the property, because the property was improperly described, or for other good cause. Items may be reoffered at a later date.

1.5 PERSONS PROHIBITED FROM OR LIMITED IN BIDDING (Ref. 41 CFR 109-45.302-50) If the Bidder is an employee of the Agent, the U.S. Department of Energy, or a cost-type contractor of the U.S. Department of Energy, Bidder hereby represents that he/she:

• (a) Has not participated in the Agent's determination to dispose of the property;
• (b) Has not participated in the preparing the property for sale;
• (c) Has not participated in determining the method of sale;
• (d) Has not acquired information not otherwise available to the general public regarding usage, condition, quality, or value of the property.

1.6 BIDDERS NOT DELINQUENT The Bidder warrants, by signing the bid form, that it is not delinquent in paying for previous purchases of federal personal property, including any debt administratively found due. Indebted bidders may be ineligible for contract awards.

1.7 REPORTING DISCREPANCIES Prospective purchasers shall inform the sales office of any discrepancies in the property descriptions discovered while inspecting the property and of any lots in this sale that contain hazardous material/waste not indicated in the property descriptions.

1.8 DISPOSITION AND USE OF HAZARDOUS PROPERTY Purchaser represents, warrants and certifies that Purchaser will use and ultimately dispose of any hazardous property purchased under this contract as stipulated under applicable federal, state, local, and international laws and regulations.

1.9 TRANSPORTATION

• (a) The Agent will provide the labor and equipment to load the items awarded onto Purchaser's conveyance. Securing the load on the transporting vehicle is the responsibility of the Purchaser or Purchaser's Carrier. However, at the request of the Purchaser or Purchaser's representative acting on his behalf, the Agent may assist in minimal blocking, bracing, and shoring.
• (b) The Purchaser agrees to procure all necessary permits or licenses and abide by all applicable laws, regulations, and ordinances of the United States and of the state, territory, and political subdivision through which the material is being transported and to which the material is moved.
• (c) The Purchaser, or Purchaser's Carrier must also comply with all U.S. Department of Transportation (DOT) regulatory requirements [including all applicable Federal Motor Carrier Safety Regulations (FMCSRs)] and all other applicable transportation requirements. The Purchaser will be the Offeror and Shipper as these terms are used by DOT. The Purchaser, or Purchaser's Carrier must also demonstrate that:
  • (1) Commercial vehicle operators are properly licensed and medically certified;
  • (2) Commercial vehicles used have a current annual inspection and are in compliance with the FMCSRs;
  • (3) The carrier has sufficient liability insurance coverage to meet the financial requirements as specified in the FMCSRs;
  • (4) The carrier does not have an "Unsatisfactory" rating.

1.10 TRANSPORTING HAZARDOUS MATERIALS If applicable, the Purchaser will comply with the DOT hazardous materials regulations. The Purchaser, or its authorized agent, certifies on the shipping document, based on its own examination, that the materials are properly classified, described, packaged, marked, and labeled and are in proper condition for transportation in accordance with the hazardous materials regulations.

1.11 EXPORT

• (a) Personal property purchased from the U.S. Government may or may not be authorized for export from the U.S. to a foreign country. If export, is allowed, the purchaser is solely responsible for obtaining all required clearances or approvals. The purchaser also is required to pass on this information and any other DOE-provided export control guidance if the property is resold (including domestic retransfers) or otherwise disposed.
• (b) The use, disposition, export, and re-export of this property are subject to all applicable U.S. laws and regulations, including the Atomic Energy Act of 1954, as amended; the Arms Export Control Act (22 U.S.C. 2751 et seq.); the Export Administration Act of 1979 (560 U.S.C. App. 2401 et seq.); Assistance to Foreign Atomic Energy Activities (10 CFR Part 810); Export and Import of Nuclear Equipment and Material (10 CFR 110); International Traffic in Arms Regulations (22 CFR 120 et seq.); Export Administration Regulations (15 CFR 730 et seq.); Foreign Assets Control Regulations (31 CFR 500 et seq.); and the Espionage Act (37 U.S.C. 791 et seq.) which among other things, prohibits
  • (1) the making of false statements and concealment of any material information regarding the use or disposition, export or re-export of the property and
  • (2) any use or disposition, export or re-export of the property which is not authorized in accordance with the provisions of this contract.
PROLIFERATION SENSITIVE PROPERTY ACKNOWLEDGEMENT
• (c) In the event that proliferation sensitive property, as identified on the U.S. Munitions List (22 CFR 121) or the International Atomic Energy Agency Information Circular (INFCIRC) 254 Part I (the Trigger List), is inadvertently included in this sale, the purchaser agrees that the sale is void, and, if such property has been received by the purchaser, that purchaser will return the property to B & W Y-12/NNSA/DOE-ORO. If payment has been made, the purchase price only shall be refunded to the purchaser.

1.12 PURCHASER'S SITE The final award of this contract shall be contingent upon an inspection and approval of the Purchaser's site by the representative designated by the Sales Administrator to ensure satisfactory compliance with federal, state, and local laws and regulations relating to material management and disposal practices. This requirement may be waived at the discretion of the Sales Administrator.

1.13 PAYMENT Payment of the full purchase price or payment of the balance of the purchase price if a deposit has been made, shall be made by cash, personal or company check, or credit card approved by the Sales Administrator; provided, however, the Sales Administrator reserves the right to require the Purchaser to replace personal or company check or credit card with cash, cashier's or certified check, bank draft, or postal or express money order under circumstances deemed appropriate by the Sales Administrator. Checks must be made payable to B & W Y-12, L.L.C. Unless otherwise specified by the Sales Administrator, payment of the full purchase price, subject to any adjustment for variation in quantity or weight pursuant to GSA General Sales Terms and Conditions, Condition 12, must be made prior to the date specified for removal and prior to delivery of any property. If any such adjustment is necessary, then payment must be completed immediately subsequent to adjustment unless otherwise specified by the Sales Administrator. If the Purchaser fails to make full and final payment as herein provided, the Agent and the Government reserve the right, upon written notice to the successful Purchaser, to sell or otherwise dispose of any or all of such property in the Agent's possession and to charge the loss, if any, to the account of the defaulting Purchaser.

1.14 STATE SALES AND/OR USE TAX Purchasers of federal personal property may be subject to payment of state sales or use tax. The U.S. Government and its Agent will not collect state taxes. Purchasers may obtain information from a state tax office. Sales and/or use tax officials are permitted to examine records of federal personal property sales to determine tax liability.

1.15 REMOVAL OF PROPERTY

• (a) The Purchaser, or its designated representative, must remove all material from the sales premises in the Purchaser's conveyance after proper payment has been made and secured by the Agent. No resale or exchange of material contained within this sale will be permitted on site. The Sales Administrator will not grant release of material to anyone other than the Purchaser without written permission from the Purchaser.
• (b) The Agent's available equipment and manpower for loading purposes are limited; therefore, it is imperative that Purchaser or its approved transportation representative schedule arrival for pickup with the Sales Administrator at least twenty-four (24) hours in advance of desired arrival time. The arrival time should be firm and accurate; otherwise, the carrier may be compelled to wait at Purchaser's expense until the Agent's loading crew can work the loading into their schedule. The deadline for removal of material is indicated on the Sales of Government Property-Bid and Award form.

1.16 LOSS Neither the Government, Agent, nor persons acting for or on their behalf will be responsible for any injury to or destruction of property, nor for any other loss, damage, or injury of any kind whatsoever that arise out of or relate to the activities that are the subject of this contract.

1.17 LIABILITY

• (a) The Bidder or Purchaser agrees to indemnify and hold harmless the Government, B & W Y-12, and its parent corporations, and their officers, agents, and employees, or persons acting on their behalf, from any and all claims, demands, actions, liabilities, costs, and other detriments (including but not limited to reasonable attorney fees, settlements, fines, and penalties, and damages for personal injury, property damage or destruction, environmental remediation, and natural resources damages) that arise out of or relate to Bidder/Purchaser's presence at the Y-12 National Security Complex, or any loading, unloading, transportation, use, management, processing, disposal, and/or sale or other disposition by the Purchaser or its agents, contractors, and customers, of material or property obtained under this contract.
• (b) The original Purchaser shall not be relieved from full compliance with the terms and conditions of the sale as a result of Purchaser's resale and subsequent re-sales of the property.

1.18 RESOLUTION OF DISPUTES

• (a) Purchaser and Agent agree to make good-faith efforts to settle any dispute or claim that arises under this contract through discussion and negotiation. If such efforts fail to result in a mutually agreeable resolution, the parties shall consider the use of alternative disputes resolution (ADR). In the event non-binding mediation or arbitration is agreed upon, the site of the proceedings shall be Oak Ridge, Tennessee. The parties shall share the cost of obtaining the mediator or arbiter, and each party shall bear its discretionary costs.
• (b) "Claim", as used in this article, means a written demand or written assertion by one of the contracting parties seeking, as a matter of legal right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising from or relating to this contract, or the breach thereof. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim, but may be converted to a claim by the Purchaser as provided in paragraph (c) below.
• (c) A claim by the Purchaser shall be made in writing, cite this article, and be submitted to the Property Manager with a request for a final decision.
• (d) After receipt of a claim from the Purchaser, the Property Manager shall, within 60 calendar days, issue a written decision or notify the Purchaser of the date by which the decision will be made. The decision shall be final and conclusive between the parties unless the Purchaser files suit in the appropriate court as provided for in paragraph (e) below. Purchaser shall have no right to file suit prior to the date of the decision or 60 calendar days from the Property Manager's receipt of the claim, whichever occurs earlier.
• (e)
  • (1) Where the Purchaser is a State agency, such as an Educational Institution, the applicable constitutional provisions or statutes that govern sovereign immunity shall dictate the appropriate forum and law governing substantive issues.
  • (2) In all other cases, subject to (e)(3) below, any litigation shall be brought and prosecuted exclusively in Federal District Court, with venue in the United States Court for the Eastern District of Tennessee, Northern Division;
  • (3) provided, however, that in the event the requirements for jurisdiction in Federal District Court are not present, such litigation shall be brought in either Anderson, Knox or Roane County, Tennessee, in the Circuit or Chancery Court, as appropriate.
• (f) The parties agree that, subject to (e)(1), substantive issues presented for mediation, arbitration, dispute, claim, litigation, or other effort at resolution related to clauses or portions of clauses that are substantially identical in all material respects to Federal Acquisition Regulations (FAR), Department of Energy Acquisition Regulations (DEAR), or General Services Administration (GSA) clauses shall be determined, to the maximum extent practicable, in accordance with federal law as interpreted by the United States Court of Appeals for the Federal Circuit, the United States Court of Federal Claims, and the federal Boards of Contract Appeals. The parties further agree that, subject to (e)(1), all other substantive issues presented for mediation, arbitration, dispute, claim, litigation, or other effort at resolution shall be determined in accordance with the laws of the State of Tennessee.
• (g) There shall be no interruption in the performance of the work, and Purchaser shall proceed diligently with the performance of this contract pending final resolution of any dispute arising under or related to this contract between the parties hereto or between Purchaser and its subtier subcontractors.

1.19 BID GUARANTEE In the event of any default by the Bidder or any failure by the Bidder to comply with the terms and conditions of this contract, any deposit made by the Bidder may be applied to any loss, cost, and expense to the Agent or Government caused by the default, including any loss, cost, and expense incurred in selling the property and including any difference between the amount specified in the bid and the amount for which the Agent or the Government may sell the property, if the latter amount be less than the former. Deposits accompanying bids that are not accepted will be returned. The Deposit of successful Bidders may be applied against the contract price, and upon completion of the contract any excess of the deposit will be returned to the Bidder.

1.20 PROPERTY SOLD BY WEIGHT

• (a) Where property is sold by "weight," weight tickets will be made, accumulated and provided to the Agent showing gross, tare, and net weights, and billing will be based on these tickets. Weight tickets will be accumulated and totaled after the final shipment for each year of this contract. The approved certified scales to be used for weighing are located at the Y-12 National Security Complex or as designated by the Agent; the ticket weights from these scales are considered final. Agent-approved weighing shall govern payment. The Purchaser may have a representative present at the time of weighing if desired.
• (b) Notwithstanding the GSA clause titled "Adjustment for Variation in Quantity or Weight," the purchase price shall not be adjusted upward or downward unless the adjustment exceeds $200. If an upward adjustment to the purchase price is required, the adjustment amount shall be deducted from the Purchaser's initial deposit (if any) retained by the Agent. Any balance due to the Agent not covered by the deposit will be invoiced and shall be paid within seven (7) days from the receipt of invoice. For sales that require the Purchaser to remove property on multiple occasions (e.g., a contract to periodically remove the accumulation of waste material over the course of one year), the $200 threshold shall be applied only at the time of final shipment to the sum total of the weight variations occurring during the course of the contract.