2025 HMA SOLICITATION 401640R.docx

Washington State Department of Transportation Request for Quotation 401640R

Request for Quote Title: COMMERCIAL HOT MIX ASPHALT PRODUCTS (HMA) RFQ Number: 401640R

The Washington State Department of Transportation (WSDOT), issues this Request for Quote (RFQ) under the authority of the Revised Code of Washington (RCW) 39.26. WSDOT reserves the right to modify dates and times related to this solicitation. Any and all changes will be sent electronically as amendments to all users of Washington’s Electronic Business Solution (WEBS) who downloaded this RFQ.

Posting Date: March 30th, 2025

Bids due: No later than 5:00pm (Pacific Time) April 30th, 2025

IMPORTANT: Quotes may be submitted via email (preferred) with 401640R in the subject line or delivered by mail, delivery service, or hand in an envelope with the following information on the outside:

· RFQ number

· Bid due date and time

· Procurement coordinator’s name

· Name and address of bidder’s company

The Procurement Coordinator is the SOLE POINT OF CONTACT for this solicitation. All communication between suppliers and WSDOT shall be with the Procurement Coordinator only.

Description of Requirement The Olympic Region (OR) of the Washington State Department of Transportation (WSDOT) issues this request for quotation (RFQ) under the authority of the Revised Code of Washington (RCW) 39.26. WSDOT reserves the right to modify dates and times. Any changes will be sent electronically as amendments to all users of Washington’s Electronic Business Solution (WEBS) who downloaded this RFQ.

WSDOT is seeking quotes for the purchase of Commercial Hot Mix Asphalt Products (HMA) as specified below and on the attached request for quotation form. All HMA producers located in or who serve Clallam, Jefferson, Grays Harbor, Mason, Thurston, Kitsap, and Pierce counties are encouraged to submit a bid. Items and descriptions must be provided on the RFQ form which is included in this solicitation package.

Much of the OR’s paving activities will be taking place at night or over weekends. As such, WSDOT encourages bidders to list any fees or requirements for night or weekend openings on the Price Worksheet (Appendix D) as well as explaining Bidder expectations of WSDOT on the Bidder Questionnaire (Appendix E).

Weeknight Plant Opening*

Weekend Day/Night Plant Opening*

*If applicable, any extra fees, minimum purchase, or other criteria for purchases during non-business hours.

Daily usage, to be picked up by WSDOT trucks, will be on an “as needed” basis with quantities varying from 1 to 500 tons per day, weather permitting. Please specify if minimum quantity is required to order product.

The HMA mix design shall meet the requirements for Low Recycled Asphalt Pavement (RAP)/No Recycled Asphalt Shingles (RAS) mix designs in accordance with Table 2 of Section 5-04.2(1).A of The WSDOT Standard Specifications. The use of Recycled Asphalt Pavement (RAP) in the asphalt concrete mixture is limited to a maximum of 20%.

Plant must be located within 50 miles of locations provided:

WSDOT OR Area 1 – Tacoma 11211 41st Ave SW Lakewood, WA 98499

WSDOT OR Area 2 – Port Orchard 8293 Spring Creek Rd Port Orchard, WA 98367

WSDOT OR Area 3 – Port Angeles 1707 South C Street Port Angeles, WA 985362

WSDOT OR Area 4 – Aberdeen 4801 Olympic Hwy Aberdeen, WA 98520

All Commercial HMA asphalt will conform to the requirements of Section 5-04 described in the current Washington State Department of Transportation publication, Standard Specifications for Road, Bridge and Municipal Construction.

Bidder shall comply with all federal, state and local laws, ordinances and regulations as outlined in Division 1-07.1 of the current Standard Specifications for Road, Bridge and Municipal Construction.

The term of the contract will be from the date of award thru April 30th, 2026.

Multiple Awards In an effort to reduce costs to the state, bid may be awarded to multiple vendors based upon location of product, WSDOT cost of mobilization and required material temperature upon arrival to the job site.

Multiple Locations If vendor has multiple plant and/or pit sites, you may make copies of the RFQ form to submit pricing for each location. In an effort to reduce costs to the State, more than one vendor may be awarded based upon location of product and WSDOT costs of mobilization to job sites.

Responsiveness WSDOT reserves the right to determine the bidders’ compliance with the requirements specified in this RFQ and to waive informalities in a bid. An informality is an immaterial variation from the exact requirements of the competitive RFQ. An immaterial variation is one that has no effect or merely a minor or negligible effect on quality, quantity, or delivery of the supplies or performance of the services being procured, and the correction or waiver of which would not affect the relative standing of or be otherwise prejudicial to the procurement. WSDOT reserves the right to determine whether a requirement is merely an informality.

Responsibility WSDOT reserves the right to make reasonable inquiry to determine the responsibility of any bidder. Requests may include, but are not limited to, financial statements, credit ratings, references, record of past performance, clarification of bidder’s offer, and on-site inspection of bidder's or subcontractor's facilities. Failure to respond to these requests may result in a bid’s being rejected as non-responsive.

Preference for Firms without Mandatory Individual Arbitration for Employees (EO 18-03) Pursuant to RCW 39.26.160(3) (best value criteria) and consistent with Executive Order 1803 – Supporting Workers’ Rights to Effectively Address Workplace Violations (dated June 12, 2018), WSDOT will evaluate bids for best value and provide a bid preference in the amount of 5% to any bidder who certifies, pursuant to Section 11 of Appendix C – Bidder Certifications, that their firm does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waiver.

Bidders who do not certify one way or another shall not receive the 5% preference. In the event that all bidders certify that they do not require mandatory individual arbitration for their employees, the preference will not be applied during bid evaluation.

DES Environmental Procurement Preferences After applying the products and/or services that will be procured under any contract resulting from this solicitation to Washington State’s Environmental Procurement Calculator (https://360.articulate.com/review/content/38a719d6-ee93-4cae-8def-e58a2f3ab086/review) it was determined that none of the following Department of Enterprise Services (DES) Environmental Purchasing Preferences apply to this solicitation:

· DES-255-00 (Recycled Content)

· DES-265-00 (Electronic Products)

· DES-310-00 (Hydrofluorocarbons [HFCs])

· DES-70.95M.060-00 (Nonmercury-Added Products)

· DES-280-00 (Polychlorinated Biphenyls [PCBs]) Vendor Questions Any questions related to this procurement must be submitted in writing, via e-mail, to Josh Upah at ORstores@wsdot.wa.gov no later than the date and time listed on the Solicitation Timeline. Questions will be responded to, via addendum to the original solicitation, no later than the date and time listed on the Solicitation Timeline.

Bid Submittal Suppliers wishing to submit a quote must do so no later than the date listed on the first page of this document.

Submittal Checklist

· Price Worksheet (REQUIRED): Complete as instructed and return a copy of the Price Worksheet (Appendix D) on or before the bid due date.

· Bidder Certifications (REQUIRED): Before award, complete as instructed and return a copy of the Bidder Certifications (Appendix C).

· Bidder Questionnaire: Before award, complete the Bidder Questionnaire and return to the Procurement Coordinator (Appendix E).

· RFQ Amendments (AS INSTRUCTED): If instructed to do so in any amendment to this RFQ, sign and return a copy as indicated in the amendment. Failure to sign and return any required amendments to this RFQ may result in a bid being rejected for lack of responsiveness. When in doubt, sign and return a copy of all RFQ amendments.

Quotes may be submitted to WSDOT via email (preferred), US Postal Service, common carrier, or hand delivered, at the addresses provided below. Regardless of the delivery method used it is the responsibility of the supplier to ensure solicitation response is received by the Procurement Coordinator on or before the designated deadline. Quotes will not be accepted via facsimile.

· To submit via E-Mail (preferred) send to Josh Upah at ORstores@wsdot.wa.gov. Please reference quote number 401640R in the subject line.

· To submit via United States Postal Service mail to:

WSDOT OR Purchasing P.O. Box 47442 Olympia, WA 98504-7442 Please reference quote number OR401597R on the outside of the mailing envelope.

· To hand deliver or submit via Common Carrier (UPS, Fed Ex, etc.) deliver to:

WSDOT OR Purchasing 7311 31st Ave NE, Ste C Lacey, WA 98516 Please reference quote number 401640R on the outside of the mailing envelope.

**Hand-delivery of hardcopy, sealed bids during the COVID-19 scenario: WSDOT’s facilities are on restricted access during the current phase of COVID-19 reopening. Bid submittal via email is preferred, however if a bidder wishes to submit a hardcopy bid, mail or delivery is preferred. However, bidders shall understand that mail pick-up and delivery may be delayed during this time and should plan on submitting as early as possible. WSDOT is not responsible for delayed mail or parcel delivery and/or pick-up and bids that are received for any reason after the due date and time may be rejected as non-responsive. It is recommended that bidders discuss their intention to mail a bid with the Procurement Coordinator ahead of time.

Should a bidder wish to hand-deliver a bid, arrangements must be made with the Procurement Coordinator. An appointment window for delivery will be set. Failure to hand-deliver during the appointment window may result in the rejection of a bid as non-responsive.

If a bid is late or received at a location other than that specified it will be rejected.

WSDOT will announce their intent to award for this solicitation no sooner than the date listed in the Solicitation Timeline via an email to all respondents.

WSDOT will announce a formal award for this solicitation no sooner than the date listed in the Solicitation Timeline via the Washington Electronic Business Solution (WEBS).

WSDOT Complaint, Debrief and Protest Procedures and Policy apply. Appendix B

Solicitation Timeline

Changes to the Solicitation Timeline, if necessary, will be announced via an addendum posted to the Washington Electronic Business Solution (WEBS) website.

All times are Pacific.

Appendices Reminder: By responding to this RFQ, a bidder acknowledges reading, understanding, and accepting all information contained within the entire RFQ without modification.

Appendix A: Standard Contract Terms and Conditions

Appendix B: Complaint, Debrief and Protest Procedures

Appendix C: Bidder Certifications (must be completed by Bidder)

Appendix D: Price Worksheet (must be completed by Bidder)

Appendix E: Questionnaire (must be completed by Bidder) image2.emf

Appendix A Appendix A: Standard Terms and Conditions 401640R

Standard Terms and Conditions

Should a term within these Standard Contract Terms and Conditions conflict with a term elsewhere in the RFQ, the latter will prevail.

A.1 Incorporated Documents and Order of Precedence

A bid submitted to this RFQ is an offer to contract with WSDOT.

A bid becomes a contract only when awarded and accepted by signature of WSDOT and bidder on the Bidder’s Authorized Offer and Contract Signature Page.

The documents listed below are, by this reference, incorporated into a contract resulting from this RFQ as though fully set forth herein. No other statements or representations, written or oral, are a part of the contract.

a) The RFQ

b) The awarded vendor’s bid

c) All appendices

d) RFQ amendments (if any)

e) Award letter (if any)

In the event of a conflict in such terms, or between the terms and any applicable statute or rule, the inconsistency will be resolved by giving precedence in the following order:

a) Applicable federal and state of Washington statutes and regulations

b) Mutually agreed written amendments to the resulting contract

c) The contract, including all documents incorporated in the subsection immediately above.

Conflict: To the extent possible, the terms of the contract must be read consistently.

Conformity: If any provision of the contract violates any Federal or state of Washington statute or rule of law, it is considered modified to conform to that statute or rule of law.

A.2 Parties

This Contract is entered into by and between the Washington State Department of Transportation and the awarded Contractor with the parties more fully described in the Bidder’s Authorized Offer and Contract Signature Page.

A.3 Authority to Bind

The signatories to this contract represent that they have the authority to bind their respective organizations to this contract.

A.4 Counterparts

This contract may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate will be deemed an original copy of this contract signed by each party, for all purposes.

A.5 Changes

WSDOT reserves the right to modify the resulting contract (including but not limited to adding or deleting products) by mutual agreement between WSDOT and the contractor. Alterations to any of the terms, conditions, or requirements (including price, quality, quantity, or other specifications) of this contract will only be effective upon written issuance of a mutually-agreed contract amendment by WSDOT. However, changes to point of contact information may be updated without the issuance of a mutually-agreed contract amendment.

A.6 Right to Cancel

WSDOT reserves the right to cancel or reissue all or part of this Solicitation at any time as allowed by law without obligation or liability.

A.7 Acceptance

This RFQ and any order resulting from this solicitation expressly limits acceptance to the terms and conditions stated herein. Any terms proposed by Supplier are objected to and hereby rejected, unless otherwise provided for in writing by WSDOT.

A.8 Rejection

All goods or materials purchased herein are subject to written approval by WSDOT. Any rejection of goods or materials resulting because of nonconformity to the terms and specifications of this order, whether held by WSDOT or returned will be at Supplier’s risk and expense.

A.9 Identification

All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting this order shall contain the applicable purchase order number. Packing lists shall be included with each shipment pursuant to this order, indicating the contents of each package therein.

A.10 Ordering Requirements

Contractor must ensure that Authorized purchasers can place orders against this contract either in person, electronically, facsimile or by phone. Once an order is issued, the following shall apply:

· Upon receipt of a purchase order the contractor must send written confirmation to the purchaser.

· If requested, the contractor must supply purchaser with manufacturer’s list pricing or other documentation needed to verify contract pricing compliance.

· Contractor must notify purchaser of any surcharges or other price adjustments if applicable and as contract allows.

A.11 Delivery Requirements

a. Delivery:

Contractor must ensure that delivery of goods will be made as required in the contract terms, the Purchase Order, or as otherwise mutually agreed in writing between the purchaser and contractor. The following apply to all deliveries:

· The contractor must deliver the goods during purchaser’s normal work hours and within contract time frames or as otherwise mutually agreed in writing between the purchaser and contractor at the time of order placement.

· The purchaser may refuse shipment when delivered after normal working hours.

· Failure to comply with agreed upon delivery times may subject contractor to liquidated damages and/or other damages.

· The acceptance of late delivery does not constitute a waiver of the requirements for the timely performance of any obligation remaining to be performed by contractor.

· The contractor must make all deliveries to the applicable delivery location as indicated in the contract or Purchase Order.

· The contractor is responsible for verifying delivery conditions/requirements with the purchaser prior to the delivery.

· All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this contract shall be identified by the contract identifier and the applicable purchaser’s order number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders.

· The contractor must not initiate performance prior to receipt of written or verbal authorization from authorized purchasers. Expenses incurred otherwise will be borne solely by the contractor.

b. Site security:

While on purchaser’s premises, contractor, its agents, employees, or Subcontractors shall conform in all respects with physical, fire, or other security regulations.

c. Labeling:

Individual shipping cartons shall be labeled with the name of the purchaser, order number, contract number, contractor, state stock numbers. Where applicable, date of manufacture, batch number, storage requirements, conditions, and recommended shelf life shall also be included.

A.12 Pricing - Include all Cost Components in Pricing

Bidders must identify and include all elements of recurring and non-recurring costs in their pricing. Unless otherwise specified, this must include, but is not limited to, all administrative fees, maintenance, manuals, documentation, shipping charges, labor, travel, training, consultation services, wiring and supplies needed for the installation (including cost of all uncrating, disposal of shipping materials), set-up, testing and initial instruction to agency personnel, warranty work and maintenance of the products/services, handling charges such as packing, wrapping, bags, containers, reels; and any processing fees associated with credit card payment.

Notwithstanding the foregoing, in the event that market conditions, laws, regulations, or other unforeseen factors dictate, at WSDOT’s sole discretion, additional charges may be allowed during the contract term.

A.13 Withdrawal or Modification of Response

Bidders are liable for all errors or omissions contained in their responses.

a. Prior to response due date and time

Modification: Mistakes in bids or proposals detected prior to the due date and time may be corrected by the bidder by withdrawing the original bid or proposal and submitting a corrected bid or proposal to WSDOT before the due date and time. If there is not sufficient time prior to the due date and time to withdraw the original bid or proposal and submit a corrected bid or proposal, the bidder, or an authorized representative, may correct the mistake on the face of the original bid or proposal provided that the corrected bid or proposal is time stamped by WSDOT upon resubmission prior to the due date and time.

Withdrawal: An authorized bidder representative is permitted to withdraw its response before the due date and time by submitting the withdrawal request in writing. Withdrawn responses will be returned unopened to the bidder.

b. After response due date and time

No modification: If bidder mistakes in a bid or proposal are detected after the bid due date and time, they may not be corrected.

Withdrawal: If the bidder submits evidence in writing satisfactory to WSDOT that a mistake has been made by the bidder in the calculation of its bid or proposal, WSDOT may allow the bid or proposal to be withdrawn provided that the claim of mistake and supporting documentation is provided within three business days after the due date and time. Compliance with this section within the specified time limit shall relieve the bidder of forfeiture of its bid guarantee. If WSDOT subsequently reissues the solicitation, the bidder having made the mistake may not participate in that solicitation.

Clarification: WSDOT reserves the right to contact bidder for clarification of response contents.

A.14 Collection of Retail Sales and Use Taxes

In general, Suppliers engaged in retail sales activities within the State of Washington are required to collect and remit sales tax to Department of Revenue (DOR). In general, out-of-state Suppliers must collect and remit “use tax” to Department of Revenue if the activity carried on by the seller in the State of Washington is significantly associated with Vendor’s ability to establish or maintain a market for its products in Washington State. Examples of such activity include where the Vendor either directly or by an agent or other representative:

· Maintains an in-state office, distribution house, sales house, warehouse, service enterprise, or any other in-state place of business;

· Maintains an in-state inventory or stock of goods for sale;

· Regularly solicits orders from Purchasers located within the State of Washington via sales representatives entering the State of Washington;

· Sends other staff into the State of Washington (e.g. product safety engineers, etc.) to interact with Purchasers in an attempt to establish or maintain market(s); or

· Other factors identified in WAC 458-20 .

A.15 Cash Discount

In the event WSDOT is entitled to a cash discount, the period of computations will commence on the date of delivery or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date final approval for payment is authorized. If a discount is made part of the contract but the invoice does not reflect the existence of a cash discount, WSDOT is entitled to a cash discount with the period commencing on the date it is determined by WSDOT that a cash discount applies.

A.16 Purchase Card Acceptance

It is not mandatory that suppliers accept the credit card as payment; however, WSDOT encourages suppliers to consider this alternate payment process. Any processing fees associated with the purchasing card must be included in the product pricing and not as a separate fee.

A.17 Price Adjustments

Price protection: The contract prices are the maximum prices the contractor may charge.

Should market forces or unforeseen circumstances result in contract prices falling below a contractor’s cost, the contractor may submit a proposed price change – the profit margin of which shall not exceed that of the original pricing – to WSDOT. WSDOT reserves the right to accept the price change or cancel all or part of the order.

A.18 Payments and Assignments

Invoices will not be processed for payment until items or services invoiced are received or completed. WSDOT will not honor drafts nor accept goods on a sight draft basis. Furthermore, the provisions or monies due under this contract shall only be assignable with prior written approval of WSDOT.

A.19 Statewide Vendor Payment Registration

Suppliers are required to be registered in the Statewide Vendor Payment system, prior to submitting a request for payment under this procurement. Purchasers who are Washington state agencies require registration to be completed prior to payment.

The Washington State Office of Financial Management (OFM) maintains a central contractor registration file for Washington State agencies to process Vendor payments. To obtain information and registration materials visit the Receiving Payments from the State website.

A.20 Department of Revenue Registration for Out-of-State Suppliers

Out-of-state suppliers meeting any of the above criteria must register and establish an account with the Department of Revenue. Refer to WAC 458-20-193, and call the Department of Revenue at 800-647-7706 for additional information. When out-of-state suppliers are not required to collect and remit “use tax,” Purchasers located in the State of Washington are responsible for paying this tax, if applicable, directly to the Department of Revenue.

A.21 Miscellaneous Expenses

Expenses related to day-to-day contract performance (including but not limited to, travel, lodging, meals, and incidentals) will not be reimbursed to the contractor. However, WSDOT recognizes that there may be occasions when the purchaser requires the bidder to travel. In such case the purchaser must provide written pre-approval of such expenses on a case-by-case basis. Any such reimbursement will be at rates not to exceed the guidelines for state employees published by the Washington State Office of Financial Management set forth in the Washington State Administrative & Accounting Manual, and not to exceed expenses actually incurred.

A.22 Brands

Unless otherwise described within this RFQ, when a particular brand is specified, it shall be construed solely for the purpose of indicating the standard of quality, performance, or use desired. Brands of equal quality, performance, and use shall be considered, provided Supplier specifies the brand and model and submits descriptive literature. Any bid containing a brand which is not of equal quality, performance, or use specified must be represented as an alternate and not as an equal. Failure to do so shall be sufficient reason to disregard the bid.

A.23 Standard of Quality/Consistency Over Term of Contract

If, in the sole judgment of WSDOT or the purchaser, any Product is determined not to be Equal, the purchaser may take any or all of the following actions:

· The Product may be returned at contractor’s expense and the purchaser reimbursed for any payments.

· The contract may be terminated without any liability to the State of Washington or purchaser.

A.24 Add-on

By mutual written agreement, additional quantities of items may be purchased within 12 months of the date of award provided the original purchase price, terms, conditions, and specifications remain the same. Add-on purchases shall be submitted to the Supplier using a WSDOT Purchase Order and shall reference the original contract or purchase order.

A.25 Infringements

Supplier agrees to protect and save harmless WSDOT against all claims, suits, or proceedings for patent, trademark, copyright, or franchise infringement arising from the purchases, installation, or use of goods and materials resulting from this solicitation. Supplier assumes all expenses and damages arising from such claims, suits, or proceedings.

A.26 Warranties

Supplier warrants that items supplied as a result of this solicitation conform to specifications herein and are fit for the purpose for which such goods are ordinarily employed, except that if a particular purpose is stated, the material must then be fit for the particular purpose.

A.27 Liens, Claims, and Encumbrances

Supplier warrants and represents that all the goods and materials ordered as a result of this solicitation herein are free and clear of all liens, claims, or encumbrances of any kind.

A.28 Save Harmless

Supplier shall protect, indemnify, and save WSDOT harmless from and against any damage, cost, or liability for any injuries to persons or property arising from acts or omissions of Supplier, his employees, agents, or subcontractors, howsoever caused.

A.29 Anti-trust

Supplier and WSDOT recognize that in actual economic practice, overcharges resulting from anti-trust violations are in fact borne by WSDOT. Therefore, Supplier hereby assigns to WSDOT any and all claims for such overcharges.

A.30 Default

WSDOT may terminate any order or contract resulting from this solicitation, without penalty or further liability, upon not less than Thirty (30) days prior written notice to Supplier, if Supplier defaults on any provision of the order or contract and fails to cure such default within that Thirty (30) day period, or such longer period, as may be reasonably determined by WSDOT, if Supplier is diligently working to cure the default.

A.31 Contract Modifications

WSDOT reserves the right to modify the resulting contract (including but not limited to adding or deleting products, services, or delivery locations) by mutual agreement between WSDOT and the contractor, so long as such modification is substantially within the scope of the original contract. Such modifications will be memorialized in a signed written document describing the agreed upon change including any terms and conditions required to support such change.

A.32 Contract Termination for Cause

In the event WSDOT, in its sole discretion, determines that the Vendor has failed to comply with the conditions of this contract in a timely manner or is in material breach, WSDOT has the right to suspend or terminate this contract, in part or in whole. WSDOT shall notify the Vendor in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days or as otherwise specified by WSDOT, or if such corrective action is deemed by WSDOT to be insufficient, the contract may be terminated. WSDOT reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Vendor from incurring additional obligations of funds during investigation of the alleged breach and pending corrective action by the Vendor or a decision by WSDOT to terminate the contract.

In the event of termination, WSDOT shall have the right to procure for all purchasers any replacement materials, supplies, services and/or equipment that are the subject of this contract on the open market. In addition, the Vendor shall be liable for damages as authorized by law including, but not limited to, any price difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g., cost of the competitive bidding, mailing, advertising and staff time.

If it is determined that: (1) the Vendor was not in material breach; or (2) failure to perform was outside of Vendor's or its subcontractor’s control, fault or negligence, the termination shall be deemed to be a "termination for convenience." The rights and remedies of WSDOT and/or the purchaser provided in this contract are not exclusive and are in addition to any other rights and remedies provided by law.

A.33 Contract Termination for Convenience

Except as otherwise provided in this contract, WSDOT, at the sole discretion of WSDOT, may terminate this contract, in whole or in part by giving 30 calendar days or other appropriate time period written notice beginning on the second day after mailing to the Vendor. If this contract is so terminated, purchasers shall be liable only for payment required under this contract for properly authorized services rendered, or materials, supplies and/or equipment delivered to and accepted by the purchaser prior to the effective date of contract termination. Neither WSDOT nor the purchaser shall have any other obligation whatsoever to the Vendor for such termination. This Termination for Convenience clause may be invoked by WSDOT when it is in the best interest of the State of Washington.

A.34 Contract Termination by Mutual Agreement

WSDOT and the Vendor may terminate this contract in whole or in part, at any time, by mutual agreement.

A.35 Post-Award Conference

The contractor may be required to attend a post award conference scheduled by the Procurement Coordinator and/or the contract Administrator to discuss contract performance requirements. The time and place of this conference will be scheduled following contract award.

A.36 Waiver

Failure or delay of WSDOT or purchaser to insist upon the strict performance of any term or condition of the contract or to exercise any right or remedy provided in the contract or by law; or WSDOT’s or purchaser’s acceptance of or payment for materials, supplies, services and/or equipment, shall not release the contractor from any responsibilities or obligations imposed by this contract or by law, and shall not be deemed a waiver of any right of WSDOT or purchaser to insist upon the strict performance of the entire agreement by the contractor. In the event of any claim for breach of contract against the contractor, no provision of this contract shall be construed, expressly or by implication, as a waiver by WSDOT or purchaser of any existing or future right and/or remedy available by law.

A.37 Disputes and Remedies

a. Problem resolution and disputes

Problems arising out of the performance of this contract shall be resolved in a timely manner at the lowest possible level with authority to resolve such problem. If a problem persists and cannot be resolved, it may be escalated within each organization.

In the event a bona fide dispute concerning a question of fact arises between WSDOT or the purchaser and contractor and it cannot be resolved between the parties through the normal problem escalation processes, either party may initiate the dispute resolution procedure provided herein.. The dispute shall be handled by a Dispute Resolution Panel in the following manner. Each party to this contract shall appoint one member to the Panel. These two appointed members shall jointly appoint an additional member. The Dispute Resolution Panel shall review the facts, contract terms and applicable statutes and rules and make a determination of the dispute as quickly as reasonably possible. The determination of the Dispute Resolution Panel shall be final and binding on the parties hereto. WSDOT and/or purchaser and contractor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this contract that are not affected by the dispute.

In the event a bona fide dispute concerning a question of fact arises between WSDOT or the purchaser and contractor and it cannot be resolved between the parties through the normal escalation processes, either party may initiate the dispute resolution procedure provided herein.

The initiating party shall reduce its description of the dispute to writing and deliver it to the responding party. The responding party shall respond in writing within three business days. The initiating party shall have three business days to review the bid. If after this review a resolution cannot be reached, both parties shall have three business days to negotiate in good faith to resolve the dispute.

If the dispute cannot be resolved after three business days, a Dispute Resolution Panel may be requested in writing by either party who shall also identify the first panel member. Within three business days of receiving the request, the other party will designate a panel member. Those two panel members will appoint a third individual to the Dispute Resolution Panel within the next three business days.

The Dispute Resolution Panel will review the written descriptions of the dispute, gather additional information as needed, and render a decision on the dispute in the shortest practical time.

Each party shall bear the cost for its panel member and share equally the cost of the third panel member.

Both parties agree to be bound by the determination of the Dispute Resolution Panel.

Both parties agree to exercise good faith in dispute resolution and to settle disputes prior to using a Dispute Resolution Panel whenever possible.

WSDOT, the purchaser and contractor agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this contract that are not affected by the dispute.

If the subject of the dispute is the amount due and payable by purchaser for materials, supplies, services and/or equipment being provided by contractor, contractor shall continue providing materials, supplies, services and/or equipment pending resolution of the dispute provided purchaser pays contractor the amount purchaser, in good faith, believes is due and payable, and places in escrow the difference between such amount and the amount contractor, in good faith, believes is due and payable.

b. Administrative suspension

When it in the best interest of the state, WSDOT may at any time, and without cause, suspend the contract or any portion thereof for a period of not more than 30 calendar days per event by written notice from WSDOT to the contractor’s Representative. Contractor shall resume performance on the next business day following the 30th day of suspension unless an earlier resumption date is specified in the notice of suspension. If no resumption date was specified in the notice of suspension, the contractor can be demanded and required to resume performance within the 30-day suspension period by WSDOT providing the contractor’s Representative with written notice of such demand.

c. Force majeure

The term “force majeure” means an occurrence that is beyond the control of the party affected and could not have been avoided by exercising reasonable diligence. Force majeure shall include acts of war, riots, strikes, fire, floods, windstorms, epidemics or other similar occurrences.

Exceptions: Except for payment of sums due, neither party shall be liable to the other or deemed in breach under this contract if, and to the extent that, such party's performance of this contract is prevented by reason of force majeure.

Notification: If either party is delayed by force majeure, said party shall provide written notification within 48 hours. The notification shall provide evidence of the force majeure to the satisfaction of the other party. Such delay shall cease as soon as practicable and written notification of same shall likewise be provided. So far as consistent with the Rights Reserved below, the time of completion shall be extended by contract amendment for a period of time equal to the time that the results or effects of such delay prevented the delayed party from performing in accordance with this contract.

Rights reserved: WSDOT reserves the right to authorize an amendment to this contract, terminate the contract, and/or purchase materials, supplies, equipment and/or services from the best available source during the time of force majeure, and contractor shall have no recourse against the state.

d. Alternative dispute resolution fees and costs

In the event that the parties engage in arbitration, mediation or any other alternative dispute resolution forum to resolve a dispute in lieu of litigation, both parties shall share equally in the cost of the alternative dispute resolution method, including cost of mediator or arbitrator. In addition, each party shall be responsible for its own attorneys’ fees incurred as a result of the alternative dispute resolution method.

e. Non-exclusive remedies

The remedies provided for in this contract shall not be exclusive but are in addition to all other remedies available under law.

A.38 Attorney’s Fees

In the event of controversy, claim, or dispute arising out of any order or contract resulting from this solicitation for which the Supplier is adjudged by a court of competent jurisdiction to be at fault, Supplier shall pay to WSDOT all attorney’s fees, costs and expenses incurred by WSDOT in connection therewith.

A.39 Public Disclosure of Purchasing Information

Per RCW 39.26.030, after bids, quotes or proposals have been received, all such information becomes the property of WSDOT and shall not be released or otherwise distributed until after the evaluation has been completed and the apparent successful bidder has been announced. Evaluation team members shall maintain confidentiality of information to ensure the integrity of the process. WSDOT assumes no responsibility for the confidentiality of bids, quotes or proposals after award.

Any document(s) or information which the bidder believes is exempt from public disclosure per RCW 42.17.310 shall be clearly identified by bidder and placed in a separate envelope marked with bid number, bidder's name, and the words "proprietary data" along with a statement of the basis for such claim of exemption. The state's sole responsibility shall be limited to maintaining the above data in a secure area and to notify bidder of any request(s) for disclosure within a period of five years from date of award. Failure to so label such materials or failure to provide a timely response after notice of request for public disclosure has been given shall be deemed a waiver by the bidder of any claim that such materials are, in fact, so exempt.

Copies of documents related to this or any other WSDOT procurement that are subject to public disclosure may be requested after the apparent successful bidder is announced by sending a request through the Public Disclosure Request Center (https://wsdot.mycusthelp.com/WEBAPP/_rs/(S(okipmjq5ajj4cfnhhq4fs35z))/supporthome.aspx). When requesting procurement documents be sure to include the name of the procurement coordinator and the solicitation number for the information you are requesting.

A.40 Gifts

The supplier shall comply with all applicable sections of the State Ethics law, RCW 42.52, which regulates gifts to State officers and employees. Under that statute, any State officer or employee who has or will participate with the Supplier regarding any aspect of the Contract involving the purchase of goods or services is prohibited from seeking or accepting any gift, gratuity, favor or anything of economic value from the Supplier. Neither the Supplier nor any agent or representative shall offer anything of economic value as a gift, gratuity or favor directly or indirectly to any such officer or employee.

A.41 Title VI Notice to the Public

It is Washington State Department of Transportation (WSDOT) policy to ensure no person shall, on the grounds of race, color, national origin, or sex, as provided by Title VI of the Civil Rights Act of 1964, be excluded from participation in, be denied the benefits of, or be otherwise discriminated against under any of its federally funded programs and activities. Any person who believes his/her Title VI protection has been violated may file a complaint with WSDOT’s Office of Equal Opportunity (OEO). For Title VI complaint forms and advice, please contact OEO’s Title VI Coordinator at 360-705-7082 or 509-324-6018.

A.42 Americans with Disabilities Act (ADA) Information

This material can be made available in an alternate format by emailing the WSDOT Diversity/ ADA Compliance Team at wsdotada@wsdot.wa.gov or by calling toll free, 855-362- 4ADA (4232). Persons who are deaf or hard of hearing may make a request by calling the Washington State Relay at 711.

A.43 Insurance

The following are general insurance provisions for the State of Washington. Additional requirements specific to a good/service may be detailed elsewhere in a solicitation or its Appendices.

a. General requirements

Contractor shall, at its own expense, obtain and keep in force insurance as follows until completion of the contract. Upon request, contractor shall furnish evidence in the form of a certificate of insurance satisfactory to the State of Washington that insurance, in the following kinds and minimum amounts, has been secured. Failure to provide proof of insurance, as required, will result in contract cancellation.

Contractor shall include all Subcontractors as insured’s under all required insurance policies, or shall furnish separate Certificates of Insurance and endorsements for each Subcontractor. Subcontractor(s) must comply fully with all insurance requirements stated herein. Failure of Subcontractor(s) to comply with insurance requirements does not limit contractor’s liability or responsibility.

All insurance provided in compliance with this contract shall be primary as to any other insurance or self-insurance programs afforded to or maintained by the state.

b. Specific requirements

Employers Liability (Stop Gap): The contractor will at all times comply with all applicable workers’ compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable and will maintain Employers Liability insurance with a limit of no less than $1,000,000.00. The State of Washington will not be held responsible in any way for claims filed by the contractor or their employees for services performed under the terms of this contract.

Commercial General Liability Insurance: The contractor shall at all times during the term of this contract, carry and maintain commercial general liability insurance and if necessary, commercial umbrella insurance for bodily injury and property damage arising out of services provided under this contract. This insurance shall cover such claims as may be caused by any act, omission, or negligence of the contractor or its officers, agents, representatives, assigns, or servants.

The insurance shall also cover bodily injury, including disease, illness and death, and property damage arising out of the contractor’s premises/operations, independent contractors, products/completed operations, personal injury and advertising injury, and contractual liability (including the tort liability of another assumed in a business contract), and contain separation of insured’s (cross liability) conditions.

Contractor waives all rights against the State of Washington for the recovery of damages to the extent they are covered by general liability or umbrella insurance.

The limits of liability insurance shall not be less than as follows:

General aggregate limits (other than products-completed operations)

$2,000,000

Products-completed operations aggregate

$2,000,000

Personal and advertising injury aggregate

$1,000,000

Each occurrence (applies to all of the above)

$1,000,000

Fire damage limit (per occurrence)

$50,000

Medical expense limit (any one person)

$5,000

c. Business Auto Policy (BAP)

In the event that services delivered pursuant to this contract involve the use of vehicles, or the transportation of clients, automobile liability insurance shall be required. The coverage provided shall protect against claims for bodily injury, including illness, disease, and death; and property damage caused by an occurrence arising out of or in consequence of the performance of this service by the contractor, Subcontractor, or anyone employed by either.

Contractor shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a combined single limit not less than $1,000,000 per occurrence. The business auto liability shall include Hired and Non-Owned coverage.

Contractor waives all rights against the State of Washington for the recovery of damages to the extent they are covered by business auto liability or commercial umbrella liability insurance.

d. Additional insurance provisions

All above insurance policies shall include, but not be limited to, the following provisions:

Additional insured:

The State of Washington and all authorized purchasers shall be named as an additional insured on all general liability, umbrella, excess, and property insurance policies. All policies shall be primary over any other valid and collectable insurance.

Notice of policy(ies) cancellation/Non-renewal:

For insurers subject to Chapter 48.18 RCW (admitted and regulated by the Washington State Insurance Commissioner) a written notice shall be given to the director of purchasing or designee 45 calendar days prior to cancellation or any material change to the policy(ies) as it relates to this contract. Written notice shall include the affected contract reference number.

e. Surplus Lines

For insurers subject to Chapter 48.15 RCW (Surplus Lines) a written notice shall be given to the director of purchasing or designee 20 calendar days prior to cancellation or any material change to the policy(ies) as it relates to this contract. Written notice shall include the affected contract reference number.

Cancellation for non-payment of premium:

If cancellation on any policy is due to non-payment of premium, a written notice shall be given the director of purchasing or designee ten (10) calendar days prior to cancellation. Written notice shall include the affected contract reference number.

Identification:

Policy(ies) and certificates of insurance shall include the affected contract reference number.

f. Insurance carrier rating

The insurance required above shall be issued by an insurance company authorized to do business within the State of Washington. Insurance is to be placed with a carrier that has a rating of A- Class VII or better in the most recently published edition of Best’s Reports. Any exception must be reviewed and approved by the Risk Manager for the State of Washington, by submitting a copy of the contract and evidence of insurance before contract commencement. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and Chapter 284-15 WAC .

g. Excess coverage

The limits of all insurance required to be provided by the…