24_Lehigh_MTS_IFB_3_4_24.pdf

INVITATION FOR BID

408.24.03.004

2024 Lehigh Road Phase IX Material Testing AML Project

ND000024

Stark County North Dakota

Abandoned Mine Lands Division

North Dakota Public Service Commission

Bismarck, North Dakota

March 2024

2024 Leigh Road Phase IX AML Project

INVITATION FOR BID

2024 Lehigh Road Phase IX Material Testing AML Project

ND000024

Stark County, North Dakota

Bid Number 408.24.03.004

Table of Contents

Introduction Section 1 – Bidders Instructions Section 2 – Evaluation & Award Section 3 – Special Terms & Conditions Section 4 – Risk Management (Insurance & Bond Requirements) Section 5 – Sample Contract Section 6 – Specific Provisions & Attachments Section 7 – Bid Response Forms

INTRODUCTION

STATE OF NORTH DAKOTA

INVITATION FOR BID (IFB)

December (2023)

PROJECT OVERVIEW

This is an Invitation for Bid (IFB) for testing and support services for the drilling and grout injection reclamation of an Abandoned Mine Land (AML) site. The AML site contains an abandoned underground lignite coal mine and is located near Dickinson, North Dakota.

The 2024 Lehigh Road Phase IX Material Testing AML Project includes areas as shown on the map in Attachment 1 and as further described:

• Along Lehigh Road and other nearby infrastructure located southeast of Dickinson, in Sections 7, 8, 17 & 18 T139N, R95W.

• Other areas as directed by the Commission’s Project Manager.

The North Dakota Public Service Commission (Commission, Purchasing Agency or STATE) is interested in bids from qualified firms to achieve reclamation within this project area. Work must be completed as specified during the 2024 construction season.

PROCUREMENT OFFICER

The Procurement Officer is the point of contact for this IFB. Bidders shall direct all communications regarding this IFB to the Procurement Officer. Please do not add the Procurement Officer to any marketing distribution lists.

PURCHASING AGENCY (STATE): PUBLIC SERVICE COMMISSION

PROCUREMENT OFFICER: Brett Job EMAIL: bjob@nd.gov

PHONE: 701-328-4073

TTY Users call: 7-1-1

Engaging in unauthorized communication or seeking to obtain information about an open solicitation with any state employee or official other than the responsible Procurement Officer or designee is sufficient grounds for suspension or debarment. [N.D.A.C. § 4-12-05-04(7)]

DATE ISSUED March 4, 2024 BID NUMBER 408.24.03.004

BID TITLE

2024 Lehigh Road Phase IX Material Testing AML Project

COMMODITY

CODE(S) 91275, 99234

BID QUESTION

DEADLINE

March 27, 2024

5:00 P.M. CT

PERFORMANCE

PERIOD July 15 to September 27, 2024

BID RESPONSE

DEADLINE

April 9, 2024 10:00 A.M. CT CONTRACT PERIOD Upon complete execution of the contract to December 31, 2024 http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf?20130319105642

PRE-BID MEETING/VIRTUAL TOUR

A mandatory pre-bid, virtual tour is required. The virtual tour is posted on the Public Service Commission Website. Directions for the Pre-bid, Virtual Tour can be found at:

https://psc.nd.gov/jurisdiction/aml/Docs/2024/2024_LehighPhaseIX_Pre-BidVirtualTour_FINAL.pdf

BID QUESTION DEADLINE

Bidders should carefully review the IFB including all attachments. Bidders may ask questions to obtain clarification and request additional information, or object to material in the IFB. Questions and objections must be submitted to the Procurement Officer in writing by the deadline identified in the IFB. If no deadline is specified, questions or objections must be received at least seven days prior to the Bid Response deadline. The Procurement Officer may elect to respond to questions received after the deadline.

Email is the preferred method of submission with the IFB number and title cited in the email subject line.

Responses to questions will be distributed as a solicitation amendment unless the question can be answered by referring the bidder to a specific section of the IFB.

A person or firm interested in submitting a proposal should ensure all communications related to the procurement are only with the designated point of contact. This section does not restrict communication with state officials or any member of the legislative assembly unless the state official or member of the legislative assembly is involved directly with the procurement for which the person is interested or has submitted a bid or proposal (N.D.C.C. § 54-44.4-01.1).

BID RESPONSE DEADLINE AND BID OPENING

Submit the required materials to the Public Service Commission no later than 10:00 a.m. C.T., April 9, 2024. The public bid opening will be held at 10:00 a.m. C.T., April 9, 2024, in the Commission Hearing Room, 12th floor, State Capitol, Bismarck, North Dakota.

STATE PROCUREMENT WEBSITE (SPO ONLINE)

This IFB and any related amendments and notices will be posted on the North Dakota OMB website using the State Procurement Online system (SPO Online). Bidders are responsible for checking this website to obtain all information and documents related to this IFB:

https://apps.nd.gov/csd/spo/services/bidder/main.htm

Select Recent Solicitations and find this solicitation. Recent solicitations are listed by close date.

Bidders not having completed the Bidders List registration may request to receive notices related to this IFB by contacting the Procurement Officer in writing with the following information: IFB title, business name, contact person, mailing address, telephone number, and email address.

https://psc.nd.gov/jurisdiction/aml/Docs/2024/2024_LehighPhaseIX_Pre-BidVirtualTour_FINAL.pdf

SECTION 1

BIDDERS INSTRUCTIONS

1. Bidder Checklist. Have you remembered to?

A. Ensure your Bid Response complies with all instructions, terms and conditions, delivery requirements, and specifications.

B. Prepare your bid price as required by the attached Bid Response Form in Section 7.

C. Sign all Bid Response Forms in Section 7 and initial any changes or corrections.

D. Mail certified check, cashier’s check, or bid bond to ensure receipt by the Bid Response deadline.

Photocopies and faxes will not be accepted in place of the original.

E. Ensure your Bid Response is received by the Procurement Officer by the Bid Response deadline.

Called to confirm receipt.

F. If using a delivery service, check tracking to ensure the Bid Response will be delivered on time. Contact the Procurement Officer as soon as possible in the event of delays due to weather, etc.

2. Definitions.

A. Bidder: any person or firm submitting a competitive bid in response to a solicitation.

B. Bid Response: the executed document submitted by a Bidder in response to a solicitation.

C. Commission’s Project Manager: the person authorized by STATE who is responsible for the supervision of the construction.

D. Commodities: all property, including equipment, supplies, materials, printing, insurance, and the lease of equipment.

E. Contractor: any person or firm having a contract with a governmental body.

F. Procurement Officer: an individual duly authorized to enter into and administer purchasing contracts and make written determinations with respect thereto; also includes an authorized representative acting with the limits of designated purchasing authority.

G. Purchasing Agency (STATE): the entity on which the purchase is being made on behalf of.

H. Services: the furnishing of labor, time, or effort by a Contractor, not involving the delivery of a specific end product other than reports that are merely incidental to the required performance.

I. Solicitation: a document to notify prospective Bidders of a bidding opportunity.

J. N.D.A.C.: North Dakota Administrative Code; rules with the force and effect of law.

K. N.D.C.C.: North Dakota Century Code; state laws.

L. OMB: Office of Management and Budget (OMB); a North Dakota state agency.

M. SPO: State Procurement Office, a division of the Office of Management and Budget.

N. SPO Online: a procurement information website maintained by the State Procurement Office pursuant to N.D.C.C. § 54-44.4-14.

3. Secretary of State Registration Requirements. The North Dakota Secretary of State has registration requirements for individuals and businesses transacting business in North Dakota. If the successful Offeror is determined to have a registration requirement with the North Dakota Secretary of State, they must be registered before the contract award and registration must remain active for the duration of the contract period (N.D.C.C. § 54-44.4-09.1)

See the OMB Guidelines to Vendor Registry for more information.

Visit the Secretary of State's Vendor Registration webpage for information on registration requirements and fees. Visit FirstStop, the Secretary of State's business and licensing software, for online form options.

• Check the Business Records database to see if a business is registered.

• Contact Secretary of State's office by email or call 701-328-2900 (choose menu item 2, then option 1).

• If you need to register, fees apply.

• Vendors may need to obtain businesses licenses. See the list of licenses required of businesses in the State of North Dakota. The link includes information on who to contact, application fees, renewal dates, and the legal reference.

http://www.legis.nd.gov/cencode/t54c44-4.pdf https://www.ndlegis.gov/cencode/t54c44-4.pdf https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/vendor-reg-guidelines.pdf https://sos.nd.gov/business/vendors.html https://sos.nd.gov/firststop.html https://firststop.sos.nd.gov/search/business mailto:sos@nd.gov https://www.ndsu.edu/agriculture/extension/extension-topics/leadership-and-civic-engagement/business-leadership-and-resources-2 https://www.ndsu.edu/agriculture/extension/extension-topics/leadership-and-civic-engagement/business-leadership-and-resources-2

4. Bidders List. Individuals or business entities desiring to be notified of bidding opportunities may apply to be placed on the Bidders List (N.D.C.C. § 54-44.4-09) Bidders Lists are used to notify vendors when solicitations are issued on the State Procurement Office Online system (SPO Online). Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation (N.D.A.C. § 4-12-05-01).

There are no fees to register as a bidder. The online application form requests contact information for the receipt of solicitation notices. The Bidders List application and SPO Online system use commodity codes to identify categories of goods, services, and information technology.

The commodity codes used for this solicitation are: 91275, 99234

Visit the OMB website for instructions and the online Bidders List Application:

Bidders List Registration Website

For assistance with Bidders List Registration, contact State Procurement Help Desk at 701-328-1728 or infospo@nd.gov.

5. Submission Instructions. Please follow these instructions to submit your Bid Response. Bid Responses must be received by the Procurement Officer by the Bid Response deadline. Bidders assume the risk of the delivery method selected. Late Bid Responses will be rejected.

Email Sealed bids are required; therefore, bids cannot be submitted by email to the Procurement Officer.

Submit in Person, by Mail or Delivery Service Bidders may submit Bid Response in a sealed envelope or package to the following address. Bidders may email Bid Responses to a third party to place in a sealed envelope and deliver by the Bid Response deadline. Contact the Procurement Officer to confirm receipt. Bidder shall submit one (1) copy of the Bid Response on a USB Flash Drive or other storage device. If an Excel file is provided, do not convert the Excel spreadsheet into a PDF file.

IFB #: 408.24.03.004

IFB Title: 2024 Lehigh Road Phase IX Material Testing AML Project ATTN: Brett Job Public Service Commission Abandoned Mine Lands Division 600 E Boulevard Ave., Dept 408 Bismarck, ND 58505-0480

The STATE assumes no responsibility for delays caused by any delivery service. Postmarking by the Bid Response deadline shall not substitute for actual Bid Response receipt by the STATE. The STATE’s time of receipt will used to determine timely receipt.

https://www.ndlegis.gov/cencode/t54c44-4.pdf https://www.ndlegis.gov/information/acdata/pdf/4-12-05.pdf https://apps.nd.gov/csd/spo/services/bidder/searchCommodity.htm https://www.omb.nd.gov/doing-business-state/procurement/suspended-and-debarred-bidders mailto:infospo@nd.gov

Upload Response Through the State Procurement Online System (SPO Online):

Bidders may electronically submit Bid Responses through the State Procurement Office Online system (SPO Online) by the Bid Response deadline.

DO NOT WAIT UNTIL THE “LAST MINUTE” TO SUBMIT A RESPONSE. Recommend uploading response 24 hours prior to the Bid Response deadline.

Bidder must begin the electronic submission process well in advance of the Bid Response deadline to allow for transmission and resolution of any technical difficulties. Be advised that the STATE is not responsible for a Bidder’s failure to timely submit a Bid Response due to any technical difficulties. If you experience any technical difficulties contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

If documents are in the process of being uploaded when the Bid Response deadline occurs, the upload process will stop. The attempted submission will not be uploaded successfully and is ineligible for consideration. The STATE takes no responsibility for electronic submissions that are captured, blocked, filtered, quarantined, or otherwise prevented from uploading by any anti-virus or other security software.

1. This solicitation is posted on SPO Online at: https://apps.nd.gov/csd/spo/services/bidder/main.htm

2. Select “Recent Solicitations” and find this solicitation. Solicitations are listed by close date.

3. Use “Upload Response” to upload a maximum of five (5), clearly labeled documents before the Bid

Response deadline.

4. Offerors must upload their Bid Response as requested in the Bid Response section of this IFB.

5. The maximum file size allowed is 50 MB per file.

6. There is a 50 character file name limitation for the document being uploaded.

7. There is 75 character limit in the TITLE field within SPO Online.

8. All SPO Online field entries must be alphanumeric. Dashes and underscores are allowed; however, the system does not accept other special characters such as apostrophe, & symbol, quotation marks, etc.

9. DO NOT submit documents that are embedded (zip files), movies, wmp, encrypted, or mp3 files.

10.Bidder will receive an email confirmation from infospo@nd.gov that the upload response was received including the “File Description” for the uploaded files. Review this email to ensure all files were successfully uploaded. If Bidder do not receive an email confirmation, the upload was not successful, and you will need to upload the files again. If Bidder does not receive an email confirmation after the reattempt, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

Visit https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf for the SPO Electronic Response Job Aid which describes how to submit an electronic response.

Bid Bond form in Section 7, certified checks, or cashier’s check must be received by the bid response deadline. Photocopies and faxes will not be accepted in place of the original.

6. Additional Terms and Conditions. Additional terms and conditions submitted with a Bid Response are of no effect unless accepted in writing by the Procurement Officer. Bid Responses with additional terms and conditions may be rejected as non-responsive. (N.D.A.C. § 4-12-11-06).

mailto:infospo@nd.gov mailto:infospo@nd.gov mailto:infospo@nd.gov https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf

7. Assistance to Bidders with a Disability. Bidders with a disability that need an accommodation must contact the Procurement Officer prior to Bid Response deadline so reasonable accommodation can be made.

8. Bid Response Held Firm. Bid Responses are not awarded at the bid opening. Bidders must hold their Bid

Responses firm for 30 days, unless otherwise specified by the Procurement Officer in writing.

9. Bid Response Opening. A public Bid Response opening will be held. The Procurement Officer will hold the Bid Response opening on:

• Date: April 9, 2024

• Time: 10:00 A.M CT

• Location: State Capitol

12th Floor, Commission Hearing Room 600 East Boulevard Avenue, Dept. 408 Bismarck, ND 58505-0480

10. Bid Response Results. Interested parties may contact the Procurement Officer to obtain a summary of all

Bid Responses received and the award. Bid Response results may be posted on SPO Online:

11. Bidders List - Suspension and Debarment. Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation. A vendor may be removed from the Bidders List if a solicitation notice is undeliverable. Vendors may be suspended or debarred from the Bidders List for cause. (N.D.A.C.

ch. 4-12-05)

12. Changes/Corrections. Bidders must initial any changes or corrections to the Bid Response, such as erasures and crossed out/rewritten prices. The Procurement Officer may confirm the Bid Response when changes are not initialed.

13. Open Records Requests. Bid Responses are exempt records until the date and time of the Bid

Response opening. After the Bid Response opening, all Bid Responses are subject to North Dakota open records laws. Interested parties may contact the Procurement Officer to request information related to this solicitation.

14. Protests. Protests of the solicitation must be received by the Procurement Officer within seven days before the Bid Response deadline. Protests of the award or Notice of Intent to Award must be received by the Procurement Officer within seven days after receiving notice of award. Seven calendar days after award or issuance of the Notice of Intent to Award it will be assumed that all interested parties knew or should have known all the facts surrounding the award. Protests must be made in writing to the Procurement Officer and include the basis for the protest. (N.D.C.C. § 54-44.4-12; N.D.A.C. ch. 4-12-14.)

15. Signature. The Bidder’s authorized representative must provide their printed name, title, and sign the Bid

Response. The lack of a signature may be waived as a minor informality, provided a signed Bid Response is submitted by the deadline established by the Procurement Officer. (N.D.A.C. ch. 4-12-10)

16. Specifications, Compliance. All Bid Responses must comply with the stated specifications, and the successful Bidder will be held responsible. Bidders who desire to submit commodities or services that deviate from these specifications or have any objections to the stated specifications must contact the Procurement Officer by the deadline for questions or at least seven days before the Bid Response deadline, so the Procurement Officer can determine whether the specifications need to be amended.

http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-14.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-10.pdf

17. Specifications Prepared by Non-State Personnel. When a purchasing agency has specifications prepared by someone other than a state employee or official on behalf of the state, that person or business entity must be excluded from submitting bids or proposals in accordance with N.D.A.C. § 4-12-06-06.

18. Supplier Registration (Payee). The successful Bidder will be required to complete Supplier Registration, if not already registered as a Supplier. Any individual or business who will be receiving payment from a state agency or higher education institution must complete a registration process to collect important financial and taxpayer information. Payments are generally made by check or automatic clearing house (ACH), and taxpayer information must be collected in compliance with IRS requirements. The State and North Dakota University System (NDUS) have separate financial systems and vendor registration processes.

19. Withdrawal or Changes to a Bid Response Prior to the Bid Response Deadline. Before the Bid Response deadline, the Bidder’s authorized representative may withdraw or change a Bid Response by making a written request to the Procurement Officer.

20. Withdrawals or Changes to a Bid Response After the Bid Response Deadline. After the Bid

Response deadline, no changes may be made to Bid Response, except as provided in N.D.A.C. ch. 4-12-

10. The Bidder’s authorized representative may make a written request to withdraw the Bid Response.

https://www.ndlegis.gov/information/acdata/pdf/4-12-06.pdf?20140130144222

SECTION 2

EVALUATION AND AWARD

1. Award. Award will be made to the responsible Bidder with the lowest priced Bid Response that is responsive to the specifications and all other requirements stated herein. Award will be made as follows:

• All or none.

2. Award – Printing Preference Laws. If practicable, all state, county, and other political subdivision public printing, binding, and blank book manufacturing, blanks, and printed stationery must be awarded to a resident North Dakota Bidder. (N.D.C.C. § 46-02-15, N.D.C.C. § 44-08-02, N.D.A.C. § 4-12-16-01)

• Bid Responses from nonresident (out-of-state) Bidders will be accepted. See Guidelines to North

Dakota Purchasing Preference Laws.

3. Award – Preference Laws. The reciprocal preference law, N.D.C.C.§ 44-08-01, was repealed effective August 1, 2023.

4. Award – Tie Bid Response Preference. If a tie occurs between two or more Bidders with equal Bid Response prices or offerors with identical evaluation scores:

A. Preference must be given to a resident North Dakota bidder, seller, vendor, offeror, or contractor as defined in N.D.C.C. § 44-08-02. (N.D.C.C. 54-44.4-05.1) B. If a tie still remains, award shall be made in accordance with N.D.A.C. § 4-12-11-05.

5. Late Bid Responses. Bid Response responses must be received by the Procurement Officer by the Bid

Response deadline. Late Bid Responses will be rejected, regardless of the degree of lateness, unless the delay is due to the error of the Procurement Officer and discovered before the selection of the successful Bidder. (N.D.A.C. § 4-12-08-13)

6. Responsiveness of the Bid Response. Any Bid Response that does not meet the requirements of the solicitation, other than mistakes determined to be minor informalities, will be rejected. (N.D.A.C. § 4-12-11- 03)

7. Minor Informalities. The STATE reserves the right to waive minor informalities in Bid Responses. Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from the Bid Response document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions that can be waived or corrected without prejudice to other Bidders.

(N.D.A.C. ch. 4-12-10)

8. Mistakes. The Procurement Officer may confirm the Bid Response in the event of apparent errors, such as an unreasonably priced Bid Response. Mistakes will be handled in accordance with N.D.A.C. ch. 4-12- 10.

9. Responsibility of the Bidder. The Procurement Officer, at any time, may make a supplementary investigation as to the responsibility of any Bidder, even though the Bidder may be on the Bidders List. If a Bidder is determined to be not responsible, that Bid Response will be rejected even if it is the lowest Bid Response, and the Bidder may be debarred or suspended from the Bidders List. (N.D.A.C. § 4-12-11-04)

10. Rejection. The STATE reserves the right to reject any and all Bid Responses in whole or in part. The

Procurement Officer will send a rejection notice, including the reason for rejection. Bid Responses will be rejected if:

A. the Bid Response is determined to be not responsive to the instructions, specifications, and other requirements of the solicitation, other than mistakes or omissions determined to be minor informalities;

B. the Bid Response is determined to be late;

http://www.legis.nd.gov/cencode/T46C02.pdf http://www.legis.nd.gov/cencode/T44C08.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-16.pdf https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/guidelines-to-nd-purchasing-preference-laws.pdf https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/guidelines-to-nd-purchasing-preference-laws.pdf https://www.ndlegis.gov/cencode/t44c08.pdf#nameddest=44-08-02 https://ndlegis.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-08.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-10.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-10.pdf

C. the Bidder fails to comply with Bidders List Application requirements by the stated deadline;

D. the Bidder is determined to be not responsible, in accordance with N.D.A.C. § 4-12-11-04;

E. the Bid Response is not legible.

If all Bid Responses are rejected, the Procurement Officer will send written notice to Bidders, including the reason all Bid Responses were rejected. (N.D.A.C. § 4-12-11-09)

SECTION 3

SPECIAL TERMS AND CONDITIONS

1. Term of the Contract. The term of the contract issued as a result of this solicitation will be as follows:

A. Contract Period. This Contract term (Term) begins on complete execution of the contract by both parties or its Effective Date, and ends on December 31, 2024.

B. No Automatic Renewal. This Contract will not automatically renew.

C. Extension Option. STATE reserves the right to extend this Contract for an additional period of time, not to exceed 6 months, beyond the current termination date of this contract.

D. Renewal Option. STATE may renew this Contract upon satisfactory completion of the initial Contract

Term. STATE reserves the right to execute up to one options to renew this Contract under the same terms and conditions for a period of 6 months each.

Please see the Sample Contract in Section 5 for additional contract information.

2. Invoicing and Billing Address. After delivery of commodities or services under contract, the

CONTRACTOR must submit a correct invoice. Payment will be made after inspection and acceptance. All invoices must be signed by an authorized representative and include the contract number and dates of service being paid. All invoices and payment inquiries must be addressed to:

Brett Job - Project Manager Public Service Commission Abandoned Mine Lands Division 600 East Boulevard Ave., Dept 408 Bismarck, ND 58505-0480 bjob@nd.gov

3. Payment Terms. Payment will normally be made within forty-five (45) days after delivery and acceptance of commodities or services under this Contract and receipt of an approved invoice. All invoices and payment inquiries must be directed to the Commission’s Project Manager. CONTRACTOR may request payment any time during the contract period; however, it is expected that payment schedules will coincide with accounts payable processing on the 10th and 25th of each month. Invoices must be submitted ten (10) days prior to processing for review and to ensure timely payment. Invoices will not be considered without the signature of CONTRACTOR. The Commission’s Project Manager will maintain records of unit quantities and volumes for this project.

4. Contract Amendment – Unanticipated Amendment. After a binding contract has been entered into, no changes may be made, unless prior written approval has been obtained from the Purchasing Agency through execution of a contract amendment. The Contractor may request changes, such as substitutions of a product, by submitting a written request to the Procurement Officer. Unanticipated amendments must be within the scope of the original contract, authorized by the terms of the contract and due to legitimate, unforeseen circumstances. (N.D.A.C. ch. 4-12-13)

5. Contract Estimated Volume. The volume of this contract is estimated. Estimates are not to be considered as either a minimum or maximum, but rather an estimate based upon past and anticipated usage. The Commission’s Project Manager reserves the right to increase or decrease the actual quantities as site conditions warrant. The final contract pay will be determined using final quantities computed by the Commission’s Project Manager and the unit prices submitted by CONTRACTOR. No allowance will be made for any increased expense, loss of expected reimbursement, or loss of anticipated profits suffered or claimed by CONTRACTOR resulting either from field conditions or unbalanced bid prices or any other http://www.legis.nd.gov/information/acdata/pdf/4-12-13.pdf cause. The Commission’s Project Manager and CONTACTOR shall compare records of quantities daily.

The CONTRACTOR or CONTRACTORs will be required to furnish actual requirements upon receipt of an order. This contract will not include items of a similar nature, which must be bought for emergency use.

6. Preservation of Markers. CONTRACTOR shall carefully preserve survey and control stakes and any other markers. In the event of their destruction or loss, CONTRACTOR shall be responsible for their replacement and any resulting damage including, but not limited to, any damages arising from mistakes that may be caused by the loss or disturbance of these stakes or markers.

7. Safety Requirements. CONTRACTOR shall keep informed of and comply with all federal, state, and local laws, regulations, and other legal requirements governing the safety, health, sanitation, and performance of the contract in general. Bidders shall review the attached sample contract for safety requirements.

8. Time of Performance. The project performance period is from July 15, 2024, to September 27, 2024, STATE will issue a Notice to Proceed to begin the performance period. CONTRACTOR shall return an acknowledged copy of the Notice to Proceed to STATE. If work cannot begin on the date specified in the Notice to Proceed, CONTRACTOR shall provide a written explanation of the reasons for the delay with a written request for an alternate firm start date. The performance period will not be extended without a written request by CONTRACTOR and approval by the Commission’s Project Manager.

9. Work Week. CONTRACTOR shall work a standard 5-day work week (Monday-Friday) restricted to daylight hours. A request for a variance to the work schedule must be made in writing to the Commission’s Project Manager at least 2 days in advance of the start of the variance. This notice requirement does not apply to work stoppage caused by adverse weather or equipment breakdowns. State and Federal holidays will be observed.

10. Inspection and Acceptance or Rejection. The STATE reserves the right to conduct inspections and investigations related to the Bidder and the offered commodities or services, including but not limited to the firm, personnel, qualifications, and the commodities and services offered to make determinations regarding compliance with the Bid Response requirements and responsibility of the Bidder. All material and workmanship are subject to inspection and testing by the STATE at the point of manufacturer, place of storage, or upon receipt. The STATE reserves the right to reject any commodities or services and terminate the contract if the CONTRACTOR fails to comply with the specifications, terms and conditions, or the seller’s express or implied warranties. Rejected commodities will be removed at the CONTRACTOR’s expense. Failure to satisfactorily perform may result in suspension or debarment from the Bidders List.

If commodities or services are rejected as being not compliant with the requirements of this solicitation, the STATE will inform the CONTRACTOR in writing. The Purchasing Agency may provide the CONTRACTOR with a reasonable opportunity to cure, whenever practicable, as set forth in writing by the Purchasing Agency.

11. Pricing – Tax Exempt. All prices must be in United States currency. Bid Response prices must include all discounts and deductions, and to be less federal and state taxes. Bidders may contact the Procurement Officer to obtain the Purchasing Agency’s tax exemption number and tax-exempt certificate.

12. Price Adjustment. Pricing during the term of the contract will be as follows:

• Firm-Fixed. Pricing shall be firm for the period of the contract.

• Pricing, Fuel Surcharges. Fuel surcharges may be negotiated between the CONTRACTOR and

Purchasing Agency when fuel prices rise 15% more from the fuel prices in effect on the day the solicitation was opened. Subsequent adjustments may be requested, subject to approval of the Procurement Officer. Requests for fuel surcharges must be submitted in writing to the Procurement Officer. Within 30 days, the STATE will accept and amend the contract, reject, and allow the contract to continue, or cancel the contract. The contract may also be amended, with 30 days’ notice to the CONTRACTOR, to reduce prices in the event declining fuel prices. The Energy Information Agency diesel and gasoline price indexes will be used for this Contract.

http://www.eia.doe.gov/oil_gas/petroleum/info_glance/petroleum.html

13. Pricing, Unit of Measure. The unit price is to be according to the unit of measurement specified in the solicitation. In the event of mathematical differences between the unit price and extended total, the unit price will prevail. (N.D.A.C. § 4-12-10-02)

14. Service – Local Requirement. Services within ten days after receipt of Notice to Proceed is required.

CONTRACTOR must have facilities or service providers within a commuting distance to meet this requirement.

15. Specifications, Brand Name or Equivalent. Unless otherwise indicated in the solicitation specifications, the use of a specific brand name or make/model is for illustrative purposes only, and the STATE will consider equivalent products. If an alternate brand offered by a Bidder is rejected as not being equivalent, the Procurement Officer will send a rejection notice, including the reason for rejection.

16. Travel.

CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

17. Time is of the Essence. CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the parties.

https://www.eia.gov/petroleum/ https://www.eia.gov/petroleum/

SECTION 4

RISK MANAGEMENT REQUIREMENTS

Bidders are instructed to review the following provisions. Objections to these provisions must be made in writing to the Procurement Officer by the deadline for questions.

1. Indemnification. Indemnification provisions are incorporated and made part of this solicitation and resultant contract.

• CONTRACTOR agrees to defend, indemnify, and hold harmless the State of North Dakota, its agencies, officers and employees (State), from claims resulting from the performance of CONTRACTOR or its agent, including all costs, expenses and attorneys’ fees, which may in any manner result from or arise out of this agreement, except claims based upon STATE’s sole negligence or intentional misconduct. The legal defense provided by CONTRACTOR to STATE under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for STATE is necessary. Any attorney appointed to represent STATE must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse STATE for all costs, expenses and attorneys’ fees incurred in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this agreement.

2. Insurance. Insurance provisions are incorporated and made part of this solicitation and resultant contract.

Bidders are instructed to review the Insurance Requirements. The Successful Bidder will be required to provide the required proof of insurance prior to contract award, and failure to provide evidence of insurance coverage is a material breach and grounds for award rescission. Failure of the CONTRACTOR to keep the required insurance in effect during the term of the contract is grounds for termination of the contract.

• Required Coverage. CONTRACTOR shall secure and keep in force during the term of this agreement and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds authorized to do business in North Dakota, the following insurance coverages:

A. Commercial general liability, including premises or operations, contractual and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

B. Automobile liability, including Owned (if any), Hired and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

C. Workers’ compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

D. Employer’s liability or “stop-gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

• General Insurance Requirements. The insurance coverages listed above must meet the following additional requirements:

A. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of CONTRACTOR. The amount of any deductible or self-retention is subject to approval by STATE.

B. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by STATE. The policies shall be in form and terms approved by STATE.

C. STATE will be defended, indemnified, and held harmless to the full extent of any coverage actually secured by CONTRACTOR in excess of the minimum requirements set forth above. The duty to indemnify STATE under this agreement shall not be limited by the insurance required in this Contract.

D. The State of North Dakota and its agencies, officers, and employees (STATE) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. STATE shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this Contract or by the contractual indemnity obligations of CONTRACTOR.

E. The insurance required in this agreement, through a policy or endorsement, shall include:

i. A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against

STATE;

ii. A provision that CONTRACTOR’s insurance coverage shall be primary (i.e. pay first) as respects any insurance, self-insurance or self-retention maintained by STATE, and that any insurance, self-insurance or self-retention maintained by STATE shall be in excess of CONTRACTOR’s insurance and shall not contribute with it;

iii. Cross liability/severability of interest for all policies and endorsements;

iv. The legal defense provided to STATE under the policy and any endorsements must be free of any conflicts of interest, even if retention of separate legal counsel for STATE is necessary;

v. The insolvency or bankruptcy of the insured CONTRACTOR shall not release the insurer from payment under the policy, even when such insolvency or bankruptcy prevents the insured CONTRACTOR from meeting the retention limit under the policy.

F. CONTRACTOR shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

G. Failure to provide insurance as required in this Contract is a material breach of Contract entitling STATE to terminate this Contract immediately.

H. CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration.

3. Bid Surety. No Bid Responses will be considered unless accompanied by a bidder's bond, certified check or cashier's check in a sum equal to five percent (5%) of the full amount of the Bid Response. The bidder's bond, certified check or cashier's check must be received by the Bid Response deadline. A bidder’s bond must be executed by the Bidder as principal and by a surety company authorized to do business in North Dakota as surety. A certified check or a cashier's check must be drawn on the Bank of North Dakota or a federally insured, solvent bank. If within ten days after notice of an award, the successful Bidder should fail to execute a contract with the owner, then the surety will pay unto the owner for the use and benefit of the owner five percent (5%) of the Bid Response on the contract on which there is a default or the certified check or cashier's check of the bidder will be forfeited to the owner.

Commission will retain the bid bond, cashier's check or certified check of the three (3) lowest Bidders until an award is made. In the event that the lowest bidder submits a check, the check may be negotiated, and the money retained by the owner until the contract has been awarded and properly executed. All other unsuccessful Bidders will have their bid bonds, cashier's checks or certified checks returned immediately.

The successful bidder and other low bidders whose bonds or checks are retained will have their bid bonds, certified checks or cashier's checks returned after Commission has successfully contracted the work.

4. Payment and Performance Bonds. The bidder whose bid is accepted is required to enter into a written contract with Commission and to furnish a performance bond, executed by a surety company authorized to do business in North Dakota, in an amount at least equal to one hundred percent (100%) of the total contract amount as security for the faithful performance of the contract and also a payment bond, executed by a surety company authorized to do business in North Dakota, in an amount at least equal to one hundred percent (100%) of the total contract amount as security for the payment of all persons performing labor on the project under the contract and furnishing materials in connection with the contract, including interest under N.D.C.C. § 13-01-14, for bills which are not paid within ninety (90) days. The bond must also provide, under N.D.C.C. § 65-04-10, that CONTRACTOR has made, or will make, prior to the commencement of any work by CONTRACTOR or any subcontractor under the contract, full and true report to Workforce Safety and Insurance of the payroll expenditures for the employees to be engaged in the work, and that CONTRACTOR has paid, or will pay, the premium thereon prior to the commencement of work. Both bonds must be executed on forms approved by Commission. Bonds must be secured from a company that has complied with the law and regulations of the U.S. Treasury Department and is acceptable as a surety or reinsurer of federal bonds under Sections 9304 to 9308 of Title 31 U.S.C. and appropriate statutes of the State of North Dakota. A list of qualified companies is published under Treasury Circular 570.

BID SURETY REQUIREMENT

Each Bid Response must include a bid surety. See N.D.A.C. ch. 4-12-07. Bid sureties of unsuccessful Bidders will be returned upon award determination. The bid surety of the successful Bidder will be returned upon receipt of a completed contract bond and its approval by the STATE.

Bid surety may be as follows:

• a certified check, in the amount of five percent (5%) of the full amount of the Bid Response; or

• a bank cashier’s check in the amount of five percent (5%) of the full amount of the Bid Response; or

• a corporate surety bond from a surety company authorized to do business in the State of North Dakota in the amount of five percent (5%) of the full amount of the Bid Response.

http://www.legis.nd.gov/information/acdata/pdf/4-12-07.pdf

SECTION 5

SAMPLE CONTRACT

CONTRACT NUMBER AM-XXX-24

Administrator: State of North Dakota

Public Service Commission

State Capitol - 12th Floor Bismarck, ND 58505-0480

(701) 328-2400

Steven Kahl Date

Executive Director

Contractor

Name

Address City/State/Zip Phone

Typed Name Title

Signature Date

Agreement Information Budget Information

Case No.: AM-xx-xxx Cost Center: 9000

Contract No.: Services: Construction Services

Start Date: Upon execution Optional on-site review:

End Date: Expenses:

Program Title: AML Reclamation ID Case No. AM-xx-xxx

Type of Contract: ( x ) Fixed Price Type of Contractor: ( ) Individual ( ) Cost Reimb. ( ) Unit Price ( ) Corporation ( ) Partnership ( ) Other ( ) Public Agency ( ) Nonprofit Organization ( ) Other

This Contract is entered into between the State of North Dakota acting through the Public Service Commission (State) and XXXXXXXXXXXXXXXX. (Contractor). This Contract consists of this sheet, general provisions and specific provisions.

GENERAL PROVISIONS

The Parties to this Contract (Contract) are the State of North Dakota, acting through its Public Service Commission (STATE) and ______________________________________________ having its principal place of business at _____________________________________________________ (CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the work as described in Section 6, SPECIFIC PROVISIONS and attachments beginning on page ___ of the _________________________________________ Invitation for Bid. CONTRACTOR shall be registered with the North Dakota Secretary of State and the North Dakota State Procurement Office prior to Contract execution.

2. COMPENSATION

Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed ____________________________________ dollars ($_________) (Contractual Amount).

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

Payment A. Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

B. STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

C. Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR’s invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments must be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

D. For any amount that is or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

Travel CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

Prepayment STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

Payment of Taxes by STATE STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E-2001. STATE will furnish certificates of exemption upon request by CONTRACTOR.

Taxpayer ID CONTRACTOR shall provide STATE with its federal employer ID number and North Dakota tax ID number upon executing this Contract.

Purchasing Card STATE may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

3. TERM OF CONTRACT

This Contract begins upon complete execution of the contract by all Parties and ends on________.

No Automatic Renewal This Contract will not automatically renew. If STATE intends to renew this Contract, STATE shall provide written notice to CONTRACTOR of STATE’s intent to renew this Contract before the scheduled termination date.

Extension Option STATE reserves the right to extend this Contract for an additional period of time, not to exceed six (6) months, beyond the current termination date of this Contract.

Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term. STATE reserves the right to execute up to one (1) option to renew this Contract under the same terms and conditions for a period of six (6) months.

4. TIME OF PERFORMANCE

The project performance period is from July 15, 2024 to…