0580023283BaseContract.pdf

AGREEMENT FOR

LIQUEFIED PETROLEUM GAS (LPG) –

PROPANE (STATEWIDE)

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

CONTRACT NUMBER PC_____________

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Contract # XXXXXXX

TABLE OF CONTENTS

1. INTRODUCTION

1.1 OVERVIEW AND SCOPE

1.2 ESTIMATED QUANTITIES

1.3 NYS COMPTROLLER APPROVAL

1.4 DEFINITIONS

2. CONTRACT TERMS AND CONDITIONS

2.1 CONTRACT DOCUMENTS AND CONFLICT OF TERMS

2.2. CONTRACT TERM AND EXTENSIONS

2.3. SHORT TERM EXTENSION

2.4. NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS

2.5. NEW ACCOUNTS

2.6. EXTENSION OF USE

2.7. NEW YORK STATE VENDOR RESPONSIBILITY

2.8. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR

MINORITY GROUP MEMBERS AND WOMEN

2.9. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED VETERAN

OWNED BUSINESSES

2.10. CONTRACTOR INSURANCE REQUIREMENTS

2.11. PRICE

2.12. OPIS POSTING

2.13. LOCATION CHANGE OR SUBSTITUTION

2.14. CALCULATION CHANGE OR SUBSTITUTION

2.15. PRODUCT CHANGE OR SUBSTITUTION

2.16. PRICE ADJUSTMENTS/REVISIONS

2.17. BEST PRICING OFFER

2.18. PRICE STRUCTURE

2.19. PREVAILING WAGE RATES – PUBLIC WORKS AND BUILDING SERVICES CONTRACTS

2.20. ORDERING

2.21. MINIMUM ORDER

2.22. PURCHASING CARD ORDERS

2.23. INVOICING AND PAYMENT

2.24. PRODUCT DELIVERY

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2.25. AUTOMATIC REPLENISHMENT

2.26. DELIVERY SCHEDULES

2.27. PRODUCT RETURNS AND EXCHANGES

2.28. UNANTICIPATED EXCESSIVE PURCHASE

2.29. CONTRACT ADMINISTRATION

2.30. NYS FINANCIAL SYSTEM

2.31. GUARANTEE

2.32. ENGINEERING SERVICE

2.33. SURPLUS/TAKE-BACK/RECYCLING

2.34. USE OF RECYCLED OR REMANUFACTERED MATERIALS

2.35. DIESEL EMISSION REDUCTION ACT

2.36. CONSUMER PRODUCTS CONTAINING MERCURY

2.37. TRAFFIC INFRACTIONS

2.38. DRUG USE PROHIBITED

2.39. REPORT OF CONTRACT USAGE

2.40. AMERICANS WITH DISABILITIES ACT

2.41. NYS TAX LAW SECTION 5-a

2.42. ENVIRONMENTAL SUSTAINABILITY AND NYS EXECUTIVE ORDER 22

3. SPECIFICATIONS

3.1. PRODUCT AND TANK REQUIREMENTS

3.2. FILL AND VENT REQUIREMENTS/VAPOR RECOVERY SYSTEMS

3.3. PETROLEUM TRANSFER REQUIREMENTS

4. GENERAL PROVISIONS

4.1. NOTICES

4.2. CAPTIONS

4.3. SEVERABILITY

4.4. COUNTERPARTS

4.5. ENTIRE AGREEMENT

CONTRACT SIGNATURE PAGE

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APPENDICES:

Appendix A – Standard Clauses for NYS Contracts (June 2023) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions

ATTACHMENTS:

Attachment 1 – Pricing Attachment 2 – Delivery Schedule – State Agencies Attachment 3 – Delivery Schedule – Political Subdivisions, Local Governments & Other Eligible Non-State Agencies Attachment 4 – Insurance Requirements Attachment 5 – Report of Contract Usage

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STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PCXXXXX

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

LIQUEFIED PETROLEUM GAS (LPG) – PROPANE (STATEWIDE)

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made by and between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (OGS), whose office is on the 36th Floor, Corning Tower, Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242 (hereinafter referred to as the “State” or “OGS”) and XXXXXXXXXXXX, having its principal place of business at XXXXXXXXXXXXXX (hereinafter referred to as the “Contractor”). OGS and the Contractor are collectively referred to as the “Parties.”

WHEREAS, OGS is statutorily authorized to enter into centralized contracts for commodities for use by New York State agencies, departments, public authorities, political subdivisions and any other entities authorized by statute to utilize its centralized contracts (hereinafter “Authorized Users”); and

WHEREAS, OGS has identified a need by New York State agencies and other Authorized Users for Liquefied Petroleum Gas (LPG) – Propane, as further described herein; and

WHEREAS, OGS conducted a competitive procurement to identify the bidder(s) which could provide the Liquefied Petroleum Gas (LPG) – Propane at the lowest cost, referred to as IFB #23283 (hereinafter the “IFB” or the “Solicitation”), which was advertised on February 6, 2023 in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, awards were made by Grand Total Bid Per County on the basis of lowest price to a responsive and responsible bidder, in accordance with the method of award set forth in the IFB; and

WHEREAS, the State has determined: that the Contractor submitted the lowest cost responsive proposal for one or more counties as described herein; that the Contractor is a responsible vendor; and that the Contractor is willing to provide the commodities set forth herein under the terms and conditions contained herein;

NOW THEREFORE, in consideration of the terms hereinafter mentioned and also the mutual covenants and obligations moving to each party hereto from the other, the Parties hereby agree as follows:

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1. INTRODUCTION

1.1 OVERVIEW AND SCOPE

The purpose of this Contract is to provide Authorized Users with a means of acquiring Liquefied Petroleum Gas (LPG) – Propane by 20 LB cylinders (4.7 gallons), 34 LB cylinders (7.9 gallons), 100 LB cylinders (23.6 gallons), and Bulk gallons, which includes tank and regulator installations, testing and inspections provided by the Contractor, as set forth in the Price clause herein.

This Contract is based on the Liquefied Petroleum Gas (LPG) requirements submitted to OGS by Authorized Users, in which 56 of the 62 counties had filed requirements, and the following six (6) counties had no filed requirements: Allegany, Bronx, Kings, New York, Queens, and Richmond. The specific users, counties, and tank types are listed in the Delivery Schedules. See Attachments 2 and 3.

1.2 ESTIMATED QUANTITIES

This Contract is an estimated quantity Contract. The estimated quantities are based on requirements submitted to OGS by Authorized Users of the Contract. The estimates are specified in Attachment 1 – Pricing, Attachment 2 – Delivery Schedule – State Agencies, and Attachment 3 – Delivery Schedule – Political Subdivisions, Local Governments and Other Eligible Non-State Agencies.

By filing requirements with OGS, the Authorized User has agreed to purchase all of their Liquefied Petroleum Gas (LPG) – Propane requirement needs from the Contract(s), and the Authorized User has agreed not to enter into any other contracts for Liquefied Petroleum Gas (LPG) – Propane.

However, no specific quantities are represented or guaranteed and the State provides no guarantee of individual Authorized User participation. Each Contract shall be for the quantities or dollar values actually ordered during the Contract period and the Contractor must furnish all quantities actually ordered, at or below the Contract prices. The individual value of each Contract is indeterminate. OGS makes no guarantee as to how much fuel will actually be ordered and/or delivered. See Sections 28, Estimated/Specific Quantity Contracts and 25, Participation in Centralized Contracts in Appendix B, General Specifications.

1.3 NYS COMPTROLLER APPROVAL

In accordance with Section 112 of the State Finance Law, this Contract shall not be valid, effective or binding upon the State until the Contract has been approved by the Office of the New York State Comptroller (“OSC”). Purchase orders or other procurement transactions issued under the Contract may also be subject to OSC approval.

1.4 DEFINITIONS

Capitalized terms used in this Contract shall be defined in accordance with Appendix B, Definitions, or as below.

“ASTM” The acronym “ASTM” shall be used as a destination for the American Society for Testing and Materials. All ASTM reference in the specification are understood to refer to the most recent edition of that specification/standard.

“Authorized User(s)” as defined in Appendix B.

“Business Day” shall refer to Monday through Friday from 8:00 AM – 5:00 PM ET, excluding NYS Holidays and federal holidays.

“Business Hours” shall refer to 8:00 AM to 5:00PM ET on Business Days.

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“Customer” shall mean an Authorized User that participates in the contract.

“Delivery” shall be the act of taking an ordered product to a person or place. Refer to the “Product

Delivery” clause in this Solicitation 6.11.

“Delivery Point” shall mean the point where Liquefied Petroleum Gases (LPG) – Propane exits one system and enter another.

“Grand Total Bid Per County” shall be the total of the number of gallons requested in a county for each size/type of LPG cylinder, multiplied by the price offered by the Bidder for each of the requested sizes. The sum of all extended prices in a county added together shall result in the Grand Total Bid Per County.

“Human Needs Customer” shall mean a high priority customer, such as residences, hospitals, and nursing homes, for which failure to get propane could be life threatening.

“Liquefied Petroleum Gas (LPG)” is also known as Propane.

“May” denotes the permissive in a Contract clause or specification. “May” does not mean “required.” See also “Shall” and “Must.”

“Must” denotes the imperative in a Contract clause or specification. “Must” is synonymous with “required.”

See also “Shall” and “May.”

“MWBE” shall refer to a business certified with NYS Empire State Development (“ESD”) as a Minority-and/or Women-owned Business Enterprise.

“NYS Holidays” refers to the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service. This includes the following: New Year’s Day; Dr. Martin Luther King, Jr. Day; Washington’s Birthday (observed);

Memorial Day; Juneteenth; Independence Day; Labor Day; Columbus Day; Veterans’ Day; Thanksgiving Day; and Christmas Day.

“NYS Vendor ID” is a unique ten-character identifier issued by the NYS Office of the State Comptroller (OSC) when the vendor is registered on the Vendor File System.

“Post Day” and “Posted Price” shall refer to the actual day the prices are posted in OPIS publication.

“Preferred Source Products” shall refer to those Products that have been approved in accordance with New York State Finance Law § 162.

“Preferred Source Program” shall refer to the special social and economic goals set by New York State in State Finance Law § 162 that require a governmental entity purchase select Products from designated organizations when the Products meet the “form, function and utility” requirements of the governmental entity. Under State Finance Law § 163, purchases of Products from Preferred Sources are given the highest priority and are exempt from the competitive bidding requirements. The New York State Preferred Sources include: The Correctional Industries Program of the Department of Corrections and Community Supervision (“Corcraft”); New York State Preferred Source Program for People Who Are Blind (“NYSPSP”);

and the New York State Industries for the Disabled (“NYSID”). These requirements apply to a state agencies, political subdivisions and public benefit corporations (including most public authorities).

“Procurement Services” shall refer to a business unit of OGS, formerly known as New York State Procurement (“NYSPro”) and Procurement Services Group (“PSG”).

“Prompt Delivery” shall refer to any delivery that is completed within the Contractor’s specified guaranteed delivery time.

“Prompt Will-call” shall refer to the time an Authorized User places an order.

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“SDVOB” shall refer to a NYS-certified Service-Disabled Veteran-Owned Business

“Shall” denotes the imperative in a Contract clause or specification. “Shall: is synonymous with “required”.

See also “Must” and “May.”

2. CONTRACT TERMS AND CONDITIONS

This section sets forth the terms and conditions of the Contract.

2.1 CONTRACT DOCUMENTS AND CONFLICT OF TERMS

This Contract is composed of the documents set forth below. In the case of any conflict(s) among these documents, conflicts shall be resolved in the following order of precedence:

1. Appendix A, Standard Clauses for New York State Contracts

2. This document

3. Appendix B, General Specifications; and

4. Appendix C – Federal Funding Agency Mandatory Terms and Conditions

5. Attachment 4 – Insurance Requirements

6. Attachment 1 – Pricing

7. Attachment 2 – Delivery Schedule – State Agencies

8. Attachment 3 – Delivery Schedule – Political Subdivisions, Local Governments and Other Eligible Non-

State Agencies

9. Attachment 5 – Report of Contract Usage

2.2. CONTRACT TERM AND EXTENSIONS

A. Base Term. The Contract shall be in effect for a term of two (2) years. The Contract term shall commence on the later of July 1, 2023 or after all necessary approvals and shall become effective upon the date of OSC approval of the final executed documents.

B. Extensions. At the State’s option, and subject to the approval of OSC, the Contract may be extended for three (3) years, in increments as deemed to be in the best interest of the State. Whether the optional extensions are exercised is at the sole discretion of the State. A Contractor shall retain the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to any additional applicable statutory and policy requirements.

Any extensions provided under this section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension.

2.3. SHORT TERM EXTENSION

This section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension. In the event a replacement Contract has not been issued, any Contract let and awarded hereunder by the State may be extended unilaterally by the State for an additional period of up to three (3) months upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. Filed requirements and Delivery Schedules may be updated by OGS for any mutually agreed upon extension. With the concurrence of the Contractor, the extension may be for a period of up to six (6) months in lieu of three (3) months. However, this extension automatically terminates should a replacement Contract be issued in the interim.

2.4. NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS

New York State political subdivisions and others authorized by New York State law may participate in Centralized Contracts. These include, but are not limited to local governments, public authorities, public school and fire districts, public and nonprofit libraries, and certain other nonpublic/nonprofit organizations.

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See Section 25, Participation in Centralized Contracts in Appendix B, General Specifications. For purchase orders issued by the Port Authority of New York and New Jersey (or any other authorized entity that may have delivery locations adjacent to New York State), the terms of the "Price" clause shall be modified to include delivery to locations adjacent to New York State.

Upon request, all eligible non-State agencies must furnish Contractors with the proper tax exemption certificates and documentation certifying eligibility to use State contracts. A list of categories of eligible entities is available on the OGS web site (http://www.ogs.state.ny.us/purchase/snt/othersuse.asp).

Questions regarding an organization's eligibility to purchase from New York State Contracts may also be directed to Procurement Services, Customer Services at 518-474-6717.

2.5. NEW ACCOUNTS

Contractor may ask State Agencies and other Authorized Users to provide information in order to facilitate the opening of a customer account, including documentation of eligibility to use New York State Contracts, agency code, name, address, and contact person. State Agencies shall not be required to provide credit references.

Contractors must notify OGS Procurement Services of any new business created from Authorized Users’ requests for delivery, so that OGS Procurement Services can make adjustments to the Delivery Schedules to capture these new accounts. All cases shall require Contractors to notify both contract user and OGS Procurement Services of any locations not originally identified on the Delivery Schedules, within thirty (30) days after the first delivery is made.

2.6. EXTENSION OF USE

This Contract may be extended to additional states or governmental jurisdictions upon mutual written agreement between New York State (the lead contracting state) and the Contractor. Political subdivisions and other authorized entities within each participating state or governmental jurisdiction may also participate in this Contract, if such state normally allows participation by such entities. New York State reserves the right to negotiate additional discounts based on any increased volume generated by such extensions.

2.7. NEW YORK STATE VENDOR RESPONSIBILITY

The Contractor shall at all times during the Contract term remain responsible. The Contractor agrees, if requested by the Commissioner of OGS or her designee, to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity.

The Commissioner of OGS or his or her designee, in his or her sole discretion, reserves the right to suspend any or all activities under this Contract, at any time, when he or she discovers information that calls into question the responsibility of the Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such suspension. Upon issuance of such notice, the Contractor must comply with the terms of the suspension order. Contract activity may resume at such time as the Commissioner of OGS or her designee issues a written notice authorizing a resumption of performance under the Contract.

The Contractor agrees that if it is found by the State that the Contractor’s response to the Questionnaire were intentionally false or intentionally incomplete, on such finding, the Commissioner may terminate the Contract.

Upon written notice to the Contractor, and a reasonable opportunity to be heard with appropriate OGS officials or staff, the Contract may be terminated by the Commissioner of OGS or his or her designee at the Contractor’s expense where the Contractor is determined by the Commissioner of OGS or his or her designee to be non-responsible. In such event, the Commissioner of OGS or his or her designee may

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In no case shall such termination of the Contract by the State be deemed a breach thereof, nor shall the State be liable for any damages for lost profits or otherwise, which may be sustained by the Contractor as a result of such termination.

2.8. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE

CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL

EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN

I. New York State Law Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New York Codes, Rules and Regulations (“NYCRR”), the New York State Office of General Services (“OGS”) is required to promote opportunities for the maximum feasible participation of New York State-certified Minority- and Women-Owned Business Enterprises (“MWBEs”) and the employment of minority group members and women in the performance of OGS contracts.

II. General Provisions

A. OGS is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR Parts 140-145 (“MWBE Regulations”) for all State contracts as defined therein, with a value (1) in excess of $25,000 for labor, services, equipment, materials, or any combination of the foregoing or

(2) in excess of $100,000 for real property renovations and construction.

B. The Contractor agrees, in addition to any other nondiscrimination provision of the Contract and at no additional cost to OGS, to fully comply and cooperate with OGS in the implementation of New York State Executive Law Article 15-A and the regulations promulgated thereunder. These requirements include equal employment opportunities for minority group members and women (“EEO”) and contracting opportunities for MWBEs. Contractor’s demonstration of “good faith efforts” pursuant to 5 NYCRR § 142.8 shall be a part of these requirements. These provisions shall be deemed supplementary to, and not in lieu of, the nondiscrimination provisions required by New York State Executive Law Article 15 (the “Human Rights Law”) or other applicable federal, State, or local laws.

C. Failure to comply with all of the requirements herein may result in a finding of non-responsiveness, a finding of non-responsibility, breach of contract, withholding of funds, suspension or termination of the Contract, and/or such other actions or enforcement proceedings as allowed by the Contract and applicable law.

III. Equal Employment Opportunity (EEO) A. The provisions of Article 15-A of the Executive Law and the rules and regulations promulgated thereunder pertaining to equal employment opportunities for minority group members and women shall apply to all Contractors, and any subcontractors, awarded a subcontract over $25,000 for labor, services, including legal, financial and other professional services, travel, supplies, equipment, materials, or any combination of the foregoing, to be performed for, or rendered or furnished to, the contracting State agency (the “Work”) except where the Work is for the beneficial use of the Contractor.

1. Contractor and subcontractors shall undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability, or marital status.

For these purposes, EEO shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, and rates of pay or other forms of compensation. This requirement does not apply to: (i) the performance of work or the provision of services or any other activity that is unrelated, separate, or distinct from the Contract; or (ii) employment outside New York State.

2. By entering into this Contract, Contractor certifies that the text set forth in clause 12 of Appendix A, attached hereto and made a part hereof, is Contractor’s equal employment opportunity policy. In

GROUP 05800 - Liquefied Petroleum Gas (LPG) - Propane (Statewide) – Base Contract PAGE 11 addition, Contractor agrees to comply with the Non-Discrimination Requirements set forth in clause 5 of Appendix A.

B. Form EEO 100 – Staffing Plan

To ensure compliance with this section, the Contractor agrees to submit, or has submitted with the Bid, a staffing plan on Form EEO 100 to OGS to document the composition of the proposed workforce to be utilized in the performance of the Contract by the specified categories listed, including ethnic background, gender, and federal occupational categories.

C. NYS Contract System Workforce Utilization Reporting Module (Commodities & Services)

1. The Contractor shall complete and shall require each of its subcontractors to complete a Workforce Audit on a quarterly basis throughout the term of this Contract, by the 10th day of April, July, October, and January. To report the actual workforce utilized in the performance of the Contract by the specified categories listed including ethnic background, gender, and Federal occupational categories. Contractor shall coordinate with its subcontractors to ensure that all workers associated with this Contract are properly counted and reported. To prepare the report, Contractor and its subcontractors shall use the NYS Contract System Workforce Audit Module found at the following website: https://ny.newnycontracts.com.

2. Separate audits shall be completed by Contractor and all subcontractors utilized on this contract and the Contractor is responsible for ensuring timely submission of the Workforce Audit by their subcontractors.

3. In limited instances, the Contractor or subcontractor may not be able to separate out the workforce utilized in the performance of the Contract from its total workforce. When a separation can be made, the Contractor or subcontractor shall complete the Workforce Audit and indicate that the information provided relates to the actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be separated out from the Contractor's or subcontractor's total workforce, the Contractor or subcontractor shall complete the Workforce Audit and indicate that the information provided is the Contractor's or subcontractor’s total workforce during the subject time frame, not limited to work specifically performed under the Contract.

D. Contractor shall comply with the provisions of the Human Rights Law and all other State and federal statutory and constitutional non-discrimination provisions. Contractor and subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status, or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal and conviction and prior arrest.

IV. Contract Goals

A. For purposes of this procurement, OGS conducted a comprehensive search and determined that the Contract does not offer sufficient opportunities to set goals for participation by MWBEs as subcontractors, service providers, or suppliers to Contractor. Contractor is, however, encouraged to make every good faith effort to promote and assist the participation of MWBEs on this Contract for the provision of services and materials. The directory of New York State Certified MWBEs can be viewed at: https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=2528.

Additionally, following Contract execution, Contractor is encouraged to contact the Division of Minority and Women’s Business Development ((518) 292-5250; (212) 803-2414; or (716) 846-8200) to discuss additional methods of maximizing participation by MWBEs on the Contract.

https://ny.newnycontracts.com/

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B. Good Faith Efforts Pursuant to 5 NYCRR § 142.8, evidence of good faith efforts shall include, but not be limited to, the following:

1. A list of the general circulation, trade, and MWBE-oriented publications and dates of publications in which the Contractor solicited the participation of certified MWBEs as subcontractors/suppliers, copies of such solicitations, and any responses thereto.

2. A list of the certified MWBEs appearing in the Empire State Development (“ESD”) MWBE directory that were solicited for this Contract. Provide proof of dates or copies of the solicitations and copies of the responses made by the certified MWBEs. Describe specific reasons that responding certified MWBEs were not selected.

3. Descriptions of the Contract documents/plans/specifications made available to certified MWBEs by the Contractor when soliciting their participation and steps taken to structure the scope of work for the purpose of subcontracting with, or obtaining supplies from, certified MWBEs.

4. A description of the negotiations between the Contractor and certified MWBEs for the purposes of complying with the MWBE goals of this Contract.

5. Dates of any pre-bid, pre-award, or other meetings attended by Contractor, if any, scheduled by OGS with certified MWBEs whom OGS determined were capable of fulfilling the MWBE goals set in the Contract.

6. Other information deemed relevant to the request.

V. Fraud Any suspicion of fraud, waste, or abuse involving the contracting or certification of MWBEs shall be immediately reported to ESD’s Division of Minority and Women’s Business Development at (855) 373- 4692.

ALL FORMS ARE AVAILABLE AT: http://www.ogs.ny.gov/MWBE

Vendor must scroll down to the section titled COMMODITY & SERVICE CONTRACTS and use the appropriate forms under this section only.

2.9. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED

VETERAN OWNED BUSINESSES

Article 3 of the Veterans’ Services Law provides for more meaningful participation in public procurement by certified Service-Disabled Veteran-Owned Businesses (“SDVOBs”), thereby further integrating such businesses into New York State’s economy. OGS recognizes the need to promote the employment of service-disabled veterans and to ensure that certified service-disabled veteran-owned businesses have opportunities for maximum feasible participation in the performance of OGS contracts.

In recognition of the service and sacrifices made by service-disabled veterans and in recognition of their economic activity in doing business in New York State, Bidders/Contractors are strongly encouraged and expected to consider SDVOBs in the fulfillment of the requirements of the Contract. Such participation may be as subcontractors or suppliers, as protégés, or in other partnering or supporting roles.

For purposes of this procurement, OGS conducted a comprehensive search and determined that the Contract does not offer sufficient opportunities to set specific goals for participation by SDVOBs as subcontractors, service providers, and suppliers to Contractor. Nevertheless, Bidder/Contractor is encouraged to make good faith efforts to promote and assist in the participation of SDVOBs on the Contract for the provision of services and materials. The directory of New York State Certified SDVOBs can be viewed at: https://www.ogs.ny.gov/veterans/default.asp

Bidder/Contractor is encouraged to contact the Division of Service-Disabled Veteran’s Business Development at 518-474-2015 to discuss methods of maximizing participation by SDVOBs on the Contract.

ALL FORMS ARE AVAILABLE AT: https://ogs.ny.gov/Veterans/ http://www.ogs.ny.gov/MWBE https://www.ogs.ny.gov/veterans/default.asp

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2.10. CONTRACTOR INSURANCE REQUIREMENTS

The Contractor shall procure at its sole cost and expense, and shall maintain in force at all times during the term of this Contract, policies of insurance in accordance with the requirements of Attachment 4 – Insurance Requirements.

2.11. PRICE

Contract Prices are set forth in Attachment 1 – Pricing.

All Contract pricing shall include:

• All applicable customs duties, taxes, licenses, charges and F.O.B. destination

• Installations of tanks and regulators

• Use of the equipment for the life of the contract

• Initial leak testing

• Operational instruction of agency personnel

• Periodic inspections of the installations to meet all safety requirements

• The cost for removal of all tanks within thirty (30) days of the contract expiration, unless the contractor is either successful in obtaining a new contract award for that location or arranges to exchange tanks with the new successful contractor (See Product Returns and Exchanges clause).

Contract pricing does not include:

• Modifications to interior appliances to meet safety codes

• Additional piping required beyond the exterior wall of a building to bring a facility up to safety code compliance

• The addition of an appliance

If the Contractor extends any special allowances during the term of the Contract to Federal, State, Local Governments or to commercial users in the normal course of doing business, New York State requires that such allowances will also be available to the State in the maximum amount extended to others who contract to purchase Liquefied Petroleum Gas under similar contractual terms and conditions.

Contract prices shall be firm except that price revisions shall be permitted in accordance with the Price Adjustments clause and with respect to certain taxes and duties as follows:

"After-imposed tax" means any new or increased Federal, State and local excise tax or duty, except social security or other employment taxes, on Liquefied Petroleum Gas (LPG) – Propane purchased under the Contract which the Contractor is required to pay or bear the burden of as the result of legislative, judicial, or administrative action taking effect after the date of Contract award.

"After-relieved tax" means any amount of Federal, State and local excise tax or duty, except social security or other employment taxes, that would otherwise have been payable on Liquefied Petroleum Gas (LPG) – Propane purchased under the Contract which the Contractor is not required to pay or bear the burden of, or for which the Contractor obtains a refund or drawback, as the result of legislative, judicial or administrative action taking effect after the date of Contract award.

The Contract price shall include all applicable Federal, State and local taxes, and duties, as stated in Appendix B, Taxes.

NOTE: The State of New York and its political subdivisions are exempt from New York State and local sales taxes and federal excise taxes.

The price for Liquefied Petroleum Gas under the Contract shall be increased by the amount of any after-imposed tax, unless the legislative, judicial or administrative act says otherwise, if the Contractor states in writing that such Contract price does not include any contingency for such after-imposed tax. Such

GROUP 05800 - Liquefied Petroleum Gas (LPG) - Propane (Statewide) – Base Contract PAGE 14 increase shall be prospective only and becomes effective upon such written notice and on the effective date of the next scheduled price adjustment.

The price for Liquefied Petroleum Gas under the Contract shall be decreased by the amount of any after-relieved tax. Such decrease shall be effective when realized or by no later than the next scheduled price adjustment.

The Contract price shall also be decreased by the amount of any excise tax or duty, except social security or other employment taxes that the Contractor is required to pay or bear the burden of or does not obtain a refund of through the Contractor's fault or negligence.

The Contractor shall promptly notify the Procurement Services Contract Management Specialist of all matters relating to any excise tax or duty that reasonably may be expected to result in either an increase or decrease in the Contract price for liquefied petroleum gas 30 days prior to adding to invoices.

Pricing for Contract purchases shall be based on the pricing in effect at the time the Authorized User places the order (Prompt Will-Call). Authorized Users that are on automatic delivery shall be priced on the day of delivery, unless the Authorized User requests a delivery. The price shall then reflect the day of the order.

Pricing shall reflect the day of delivery for orders placed by the Authorized User that go beyond the Contractor’s guaranteed delivery timeframe. For example, the Authorized User orders 500 gallons of propane on Wednesday, and requests that the delivery be made on the following Tuesday.

For situations where an Authorized User wants to place an order for an unusually large volume of fuel (i.e., 40,000 gallons or more than a truck load, or delivering over a period of time), it is important that the Contractor and Authorized User contact OGS Procurement Services. OGS’s intent is for all parties to have the same expectations for delivery and price.

2.12. OPIS POSTING

For purposes of this Contract, The OPIS Posting of “Propane Pipeline Selkirk” has been established for all counties. Contractor’s pricing will be based on the posted price for Propane Pipeline Selkirk in Oil Price Daily.

2.13. LOCATION CHANGE OR SUBSTITUTION

Should the designated posting location become unavailable or differ from the current description and/or format, a posting determined by the Commissioner in his/her sole discretion, to be most reflective of market conditions will be used.

2.14. CALCULATION CHANGE OR SUBSTITUTION

Should the product revision calculation become unavailable or differ from the current description and/or format, a calculation determined by the Commissioner in his/her sole discretion, to be most reflective of market conditions will be used.

2.15. PRODUCT CHANGE OR SUBSTITUTION

Should the product originally awarded become unavailable or cannot be supplied by the Contractor for any reason (except as provided for in the Savings/Force Majeure clause of Appendix B), the new product and price calculation determined by the Commissioner in his/her sole discretion, to be most reflective of market conditions will be used.

GROUP 05800 - Liquefied Petroleum Gas (LPG) - Propane (Statewide) – Base Contract PAGE 15

2.16. PRICE ADJUSTMENTS/REVISIONS

Contract prices shall be firm except that price revisions will be permitted on a monthly basis, in accordance with the following procedure:

Price revisions (increases or decreases) to the original contract price shall be based on posted prices in Oil Price Daily (formally The Journal of Commerce), under the heading of Propane Pipeline Selkirk. The terms “Posting Day” or “Posted Price” as used throughout this Contract refers to the actual day the prices are posted.

The Propane Pipeline Selkirk price shown in the OPIS Oil Price Daily posting will be used to compute price revisions during the Contract period. Procurement Services will compute any price revisions by determining the difference between the Posted Price on November 30, 2022 ($1.2097/gal.) and the Posted Price on the last business day of every month for the duration of the contract, beginning with the Oil Price Daily, Propane Pipeline Selkirk, NY Posted Price on June 30, 2023. The differential between these two (2) prices will be added or subtracted to the bid price (base price) per gallon, yielding the new monthly price. If contract award is made in a subsequent month after July 2023, then the posted price on the last business day in the preceding month will be used.

The aforementioned mechanism for monthly price revisions would then be applied to the Contract prices throughout the Contract period. Price revisions will be calculated by truncating all figures (priced in dollars per gallon) to four (4) decimal places. Applicable price changes will be effective on the first day of each month.

The Contract price and any adjustments will only be carried out and truncated to four (4) decimal places (priced in dollars per gallon).

Should the monthly price revision cycle not provide adequate price adjustments, because of rapid changes in worldwide Liquefied Petroleum Gas (LPG) – Propane prices, the State reserves the right to increase the frequency of the price revisions to a weekly basis. The weekly basis will utilize the Posted Price on the last business day of the week, to be effective the next business day.

Should postings differ from current description and/or format, a posting determined by the Commissioner, in his or her sole discretion, to be most reflective of market conditions will be used. The same applies if OGS were to utilize a weekly pricing schedule. Corrections to prices previously posted in the OPIS Oil Price Daily will be considered only when caused by a typographical or clerical error on the part of said service provider.

NOTE: In the event the Propane Pipeline Selkirk price is not posted on a specified “Posting Day”, the “Posting Day” will be the day previous to when a posted price is available in OPIS’s publication. In the event the monthly “Posting Day” falls as a Holiday, the State will utilize the previous day’s posting for the monthly period.

Price increases are limited to changes in pre-selected postings as noted above. Increases in Contract costs or prices to compensate for other increases in the cost of doing business, regardless of the cause or nature of such costs of the Contractor, will not be allowed during the Contract period.

Price adjustments will continue using the same method if Contract is extended.

2.17. BEST PRICING OFFER

During the Contract term, if the Commissioner becomes aware that the Contractor is selling substantially the same or a smaller quantity of a Product outside of this Contract upon the same or similar terms and conditions as that of this Contract at a lower price to a federal, state or local governmental entity, the price under this Contract, after consultation with the Contractor, may be reduced to a lower price on a prospective basis at the discretion of the Commissioner. The Commissioner reserves the right to request information to verify pricing for the purposes of this clause.

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2.18. PRICE STRUCTURE

If, during the Contract Term, the Contractor is unable or unwilling to meet contractual requirements in whole or in part based on the price structure of the Contract, Contractor shall immediately notify the Office of General Services, Procurement Services in writing. Such notification shall not relieve the Contractor of its responsibilities under the Contract. The State may, but is not required to, consider an equitable adjustment in the Contract terms and/or pricing in the circumstances outlined in Appendix B, Savings/Force Majeure.

Should the Commissioner in his or her sole discretion determine during the Contract Term that (i) the Contract price structure is unworkable, detrimental, or injurious to the State, or (ii) the Contract price structure results in prices which are unreasonable, excessive, or not truly reflective of current market conditions, and no adjustment in the Contract terms and/or pricing is mutually agreeable, the State may terminate the Contract upon 10 business days written notice mailed to the Contractor.

Should the Propane Pipeline Selkirk location become unworkable or unavailable, the Commissioner reserves the right to switch to the most appropriate index and/or location, and adjust the bid price accordingly.

Please refer to section 2.12, OPIS Posting for additional information.

2.19. PREVAILING WAGE RATES – PUBLIC WORKS AND BUILDING SERVICES CONTRACTS

Work performed under the Contract is subject to the prevailing wage rate provisions of New York State Labor Law. See "Prevailing Wage Rates - Public Works and Building Services Contracts" in Appendix B, General Specifications and see “Wage and Hour Provisions” in Appendix A, clause 6. Any federal or State determination of a violation of any public works law or regulation, or labor law or regulation, or any OSHA violation deemed "serious or willful" may be grounds for a determination of vendor non-responsibility.

The applicable Prevailing Wage Rate Schedule for this project is PRC # 2022901219

For access to the Department of Labor (DOL) Prevailing Wage Schedule, use the following link:

https://applications.labor.ny.gov/wpp/showFindProject.do?method=showIt

For Prevailing Wage Updates, use the following DOL link:

https://applications.labor.ny.gov/wpp/publicViewPWChangesArt9.do?method=showIt

Links to schedule updates appear in the table at the bottom of the web page.

IMPORTANT NOTE: The above PRC number MUST be noted on all purchase orders issued for purchases from this Contract.

2.20. ORDERING

Purchase Orders shall be made in accordance with the terms set forth in Appendix B, Purchase Orders.

Authorized Users may submit orders over the phone, and, if available, may submit orders electronically via web-based ordering, e-mail, or facsimile at any time. Orders submitted shall be deemed received by Contractor on the date submitted.

All orders shall reference Contract number, requisition, and/or Purchase Order number (if applicable).

Upon Contractor’s receipt of an order, confirmation is to be provided to the Authorized User electronically or via facsimile. Order confirmation should be sufficiently detailed, and include, at a minimum, purchase price, date of order, delivery information (if applicable), Authorized User name, and sales representative (if applicable).

https://applications.labor.ny.gov/wpp/showFindProject.do?method=showIt https://applications.labor.ny.gov/wpp/publicViewPWChangesArt9.do?method=showIt

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2.21. MINIMUM ORDER

There is no minimum order for this Contract.

2.22. PURCHASING CARD ORDERS

If the Contractor accepts orders using the State’s Purchasing Card (see Appendix B, Purchasing Card), also referred to as the Procurement Card, the Contractor shall not charge or bill the Authorized User for any additional charges related to the use of the Purchasing Card, including but not limited to processing charges, surcharges or other fees.

For all purchases executed using a New York State Procurement Card, Contractor shall provide an itemized receipt with each delivery.

2.23. INVOICING AND PAYMENT

Invoicing and payment shall be made in accordance with the terms set forth in Appendix B, Contract Invoicing.

The Contractor is required to provide the Authorized User with one invoice for each Purchase Order at the time of delivery. The invoice must include detailed line item information to allow Authorized Users to verify that pricing at point of receipt matches the Contract price on the original date of order. At a minimum, the following fields must be included on each invoice:

• Contractor Name

• Contractor Billing Address

• Contractor Federal ID Number

• NYS Vendor ID Number

• Account Number

• NYS Contract Number

• Name of Authorized User indicated on the Purchase Order

• NYS Agency Unit ID (if applicable)

• Customer Delivery Location ID Number as shown on Delivery Schedule (if applicable)

• Authorized User’s Purchase Order Number

• Order Date

• Invoice Date

• Invoice Number

• Invoice Amount

• Product Descriptions

• Unit Price

• Quantity

• Unit of Measure

• Date of Service/Delivery

Cost centers or branch offices within an Authorized User may require separate invoicing as specified by each Authorized User. The Contractor's billing system shall be flexible enough to meet the needs of varying ordering systems in use by different Authorized Users. Visit the following link for further guidance for vendors on invoicing: https://bsc.ogs.ny.gov/content/vendor-information

2.24. PRODUCT DELIVERY

Delivery of all Contract Products shall be made in accordance with Appendix B, Product Delivery and Shipping/Receipt of Product. Delivery shall be made as specified and in accordance with instructions furnished with each order, unless otherwise directed in writing. Contractor must be prepared, at all times, https://bsc.ogs.ny.gov/content/vendor-information

GROUP 05800 - Liquefied Petroleum Gas (LPG) - Propane (Statewide) – Base Contract PAGE 18 to make prompt delivery, and the delivery time shall not exceed 48 hours from the time of order. Should there be a State declared emergency, an after-hours or weekend emergency, or should agency run out of propane at any time creating an emergency situation, the Contractor shall be required to provide product within four (4) hours of contact from the agency.

Delivery shall be made in accordance with instructions on the Purchase Order from each Authorized User.

If there is a discrepancy between the Purchase Order and what is listed on the Contract, it is the Contractor’s obligation to seek clarification from the ordering Authorized User and, if applicable, from OGS, Procurement Services. On occasion, to prevent fuel run outs during storms or other emergency situations, the Contractor must allow Authorized Users the flexibility to manually schedule deliveries to top-off tank inventories. Normal deliveries are considered to take place Monday through Friday (8:00 am - 5:00 pm).

Saturday/Sunday deliveries are not standard and are to be made on an emergency basis (and not a regular basis) ONLY, or if a run out is imminent before the next normal delivery day. Delivery of fuel should give first priority to “Human Needs” Customers.

Failure to make prompt delivery may result in an Authorized User’s submission of a Contract Performance Report to OGS. Per Appendix B, Section 48(a), (d), and (e), the Authorized User shall have the right to purchase sufficient Liquefied Petroleum Gas – Propane on the open market to fill such tank or tanks, and to charge any increase in price paid over the current Contract price to the account of the Contractor.

Authorized Users shall be responsible for insuring that tanks are accessible to the Contractor. Authorized Users should also make certain that receiving personnel are available at time of delivery. Failure of the Authorized User to make appropriate delivery arrangements, which prevents the delivery of product upon Contractor’s arrival at delivery site, may result in a charge to the Authorized User for the Contractor’s transportation costs. The Contractor must notify the Authorized User of the attempted delivery prior to charging for any future delivery attempts for the same circumstance. The Contractor must state the amount that would be charged for the direct cost of this subsequent delivery attempt, and provide supporting documentation that substantiates the direct cost for the failed delivery at the fault of the Authorized User.