3610023153a.pdf

23153a (continued)

Corning Tower, Empire State Plaza, Albany, NY 12242 | https://ogs.ny.gov/procurement | customer.services@ogs.ny.gov | 518-474-6717

Contract Award Notification

Title : Group 36100 Kitchen and Laundry Equipment (Statewide) Classification Code(s): 48

Award Number : 23153 (Replaces Award PGB-23014)

Contract Period : July 12, 2019 through July 11, 2024

Bid Opening Date : March 19, 2019

Date of Issue : July 12, 2019

Specification Reference : As Incorporated in the Solicitation

Contractor Information : Appears on Page 2 of this Award

Address Inquiries To:

State Agencies & Vendors Political Subdivisions & Others

Name :

Title :

Phone :

E-mail :

Sarah Crossman Contract Management Specialist 518-473-9440 Sarah.Crossman@ogs.ny.gov

Procurement Services Customer Services

Phone :

E-mail :

518-474-6717 customer.services@ogs.ny.gov

Procurement Services values your input.

Complete and return "Contract Performance Report" at end of document.

Description Note: This Contract Award Notification contains a subset of information from the Solicitation. The resulting Contracts from Solicitation 23153 have been executed by Contract Award Letter.

Complete Contract details including terms and conditions can be found in the Solicitation document dated revised March 5, 2019.

This award allows for the purchase of commercial and residential kitchen equipment, appliances, and related accessories.

No bids were received for laundry equipment.

This award contains MWBE goals of 0% MBE and 0% WBE.

PR # 23153

https://online.ogs.ny.gov/purchase/spg/awards/3610023153Can.htm

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 2

NOTE: See individual contract items to determine actual awardees.

OGS CONTRACT

NUMBER CONTRACTOR FEDERAL ID # NYS VENDOR ID #

PC68657

SB

BHS Foodservice Solutions

LLC 815138960 1100188932

PC68658 Main-Ford General Supply Co., Inc. 160781457 1000028355

PC68659

SB

Second & Broad Street Sales Corp. d/b/a Joseph

Flihan Co.

161117938 1000015387

Lot(s)/Sub-Lot(s) Offered:

Contractor

Lot 1 Commercial Kitchen Lot 2 Lot 3 Lot 4

1a.

Food Prep, Storage and

Transport

1b.

Refrigeration

1c.

Cooking, Holding and Warming

1d.

Dishwashers

Commercial Laundry (No Bids received)

Residential Kitchen

PENDING

Residential Laundry (No Bids received)

BHS Foodservice Solutions LLC X X X X

Main-Ford General Supply Co., Inc. X X X X

Second & Broad Street Sales Corp.

d/b/a Joseph Flihan Co.

X X X X

For complete Contractor information and Pricing information for this Award, please see the Contractor Information page located on the OGS Website at:

https://online.ogs.ny.gov/purchase/spg/awards/3610023153CAN.HTM

Cash Discount, If Shown, Should be Given Special Attention.

INVOICES MUST BE SENT DIRECTLY TO THE ORDERING AGENCY FOR PAYMENT.

(See "INVOICING AND PAYMENT" in this document.)

AGENCIES SHOULD NOTIFY NEW YORK STATE PROCUREMENT SERVICES PROMPTLY IF THE

CONTRACTOR FAILS TO MEET DELIVERY OR OTHER TERMS OF THIS CONTRACT. PRODUCTS OR

SERVICES WHICH DO NOT COMPLY WITH THE SPECIFICATIONS OR ARE OTHERWISE

UNSATISFACTORY TO THE AGENCY SHOULD ALSO BE REPORTED TO PROCUREMENT SERVICES.

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 3

SMALL, MINORITY AND WOMEN-OWNED BUSINESSES

The letters SB listed under the Contract Number indicate the contractor is a NYS small business.

Additionally, the letters MBE and WBE indicate the contractor is a Minority-owned Business Enterprise and/or Woman-owned Business Enterprise.

RECYCLED, REMANUFACTURED AND ENERGY EFFICIENT PRODUCTS

Procurement Services supports and encourages the purchase of recycled, remanufactured, energy efficient and "energy star" products. If one of the following codes appears as a suffix in the Award Number or is noted under the individual Contract Number(s) in this Contract Award Notification, please look at the individual awarded items for more information on products meeting the suffix description.

RS, RP, RA Recycled RM Remanufactured SW Solid Waste Impact EE Energy Efficient E* EPA Energy Star ES Environmentally Sensitive

NOTE TO AUTHORIZED USERS

When placing purchase orders under the contract(s), the authorized user should be familiar with and follow the terms and conditions governing its use which usually appears at the end of this document.

The authorized user is accountable and responsible for compliance with the requirements of public procurement processes. The authorized user must periodically sample the results of its procurements to determine its compliance. In sampling its procurements, an authorized user should test for reasonableness of results to ensure that such results can withstand public scrutiny.

The authorized user, when purchasing from OGS contracts, should hold the contractor accountable for contract compliance and meeting the contract terms, conditions, specifications, and other requirements.

Also, in recognition of market fluctuations over time, authorized users are encouraged to seek improved pricing whenever possible.

Authorized users have the responsibility to document purchases, particularly when using OGS multiple award contracts for the same or similar product(s)/service(s), which should include:

• a statement of need and associated requirements,

• a summary of the contract alternatives considered for the purchase,

• the reason(s) supporting the resulting purchase (e.g., show the basis for the selection among multiple contracts at the time of purchase was the most practical and economical alternative and was in the best interests of the State).

CONFLICT OF TERMS

Conflicts among the documents shall be resolved in the following order of precedence:

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

2. The Solicitation (Revised 3/5/19);

3. Appendix B, General Specifications;

4. All other appendices and attachments to the Solicitation (Revised 3/5/19);

5. Contractor’s Bid Prices as published by OGS.

OVERVIEW

This Contract provides Authorized Users with a means of acquiring commercial and residential kitchen equipment, appliances, and related accessories by New York State Agencies and Non-State Agencies, GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 4 including political subdivisions, school districts and others authorized by law (See Sections titled, Non- State Agencies Participation in Centralized Contracts and Extension of Use). Products for purchase by all Authorized users are described in the Section titled, Scope. Procurement instructions describing requirements for Authorized Users to purchase from the Centralized Contract are found in the Section titled, Procurement Instructions.

SCOPE

It is the intent of this Contract to establish multiple discount from Manufacturer’s Suggested Retail Price (MSRP) Contracts for kitchen and/or laundry equipment, appliances, and related accessories. This Contract contains four (4) Lots. Contractors were not required to bid on all Lots but could bid on as many Lots as they wished. Lot 1 contains multiple Sub-Lots and Contractors were not required to bid on all Sub-Lots within Lot 1 but could bid on as many Sub-Lots as they wished. Please note that Contractors are not required to offer a manufacturer’s entire Product line within a Lot or Sub-Lot.

Examples of equipment, appliances and related accessories within each Lot may include, but are not limited to, the items listed in the Lots below:

Lot # Title Sub-Lot Examples of equipment, appliances and related accessories

1. Commercial Kitchen

a. Food Prep, Storage and Transport

b. Refrigeration

c. Cooking, Holding and Warming

d. Dishwashers

a. Mixers, slicers, food prep tables

b. Reach-ins, walk-ins, freezers, cook chill

c. Ovens, steamers, heated holding cabinets.

d. Dishwashers, racks, dish tables.

2.

Commercial Laundry

(NO BIDS

RECEIVED)

Not applicable Commercial washers and dryers

3. Residential Kitchen PENDING Not Applicable Residential refrigerators, ranges, ovens, microwaves, dishwashers

4.

Residential Laundry

(NO BIDS

RECEIVED)

Not Applicable Residential washers and dryers

Additional offerings: Within each Lot, Contractors may also offer options, maintenance and support services, including, but not limited to: extended warranties (beyond the standard Warranties section of Appendix B), and other related professional services for the kitchen and/or laundry equipment, appliances and related accessories bid. Additional offerings shall be included in Attachment 1 – Pricing.

Exclusions: the following services and Products are specifically excluded from the scope of this Solicitation and resulting Contracts:

1. Design services

2. Installation and/or maintenance requiring Public Works compliance in accordance with the

Section titled, Public Works. Installation and/or maintenance requiring Public Works compliance must be procured separately, following the Authorized User’s regular procurement procedures and taking into account any Public Works requirements.

3. Used or refurbished products.

4. Removal of existing equipment.

PROCUREMENT INSTRUCTIONS TO AUTHORIZED USERS

The resultant Contracts will be centralized Contracts issued under a multiple award structure for each of the Lots described in the Section titled, Scope. Products offered under the Contracts, pricing, and other

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 5

Contract information will be posted to the OGS website and, if applicable, the awarded Contractors’ dedicated NYS websites. Authorized Users shall procure Products that best meet their form, function and utility requirements.

Before proceeding with their purchase, Authorized Users shall check the list of Preferred Source offerings and are reminded that they must comply with State Finance Law, particularly § 162, regarding commodities/services provided by preferred source suppliers.

Where commodities/services are not available from Preferred Source suppliers in the form, function and utility required by the Authorized User, the Authorized User shall purchase from the centralized Contracts awarded under this Solicitation. The basis for selection among multiple contracts at the time of purchase shall be the most practical and economic alternative and shall be in the best interests of the State.

Therefore, Authorized Users are strongly encouraged to obtain quotes from at least three (3) Contractors prior to issuing a purchase order, in order to ensure that the Authorized User is receiving the best possible pricing. The Authorized User shall document its procurement decisions in its procurement record.

Authorized Users will issue Purchase Orders directly to the Contractor or the Contractor’s authorized Reseller (if applicable), as specified by the Contractor, and specify any shipping/delivery requirements.

When placing Purchase Orders under the Contract(s), the Authorized User should be familiar with and follow the terms and conditions governing the use of the Contract(s). The Authorized User is responsible for compliance with the requirements of public procurement processes. The Authorized User, when purchasing from OGS Contracts, should hold the Contractor accountable for meeting the Contract terms, conditions, specifications, and other requirements. Also, in recognition of market fluctuations over time, Authorized Users are encouraged to seek improved pricing whenever possible. Authorized Users have the responsibility to document purchases, and such documentation should include: statement of need and associated requirements; all necessary prior approvals; a summary of the Contract alternatives considered for the purchase; and the reason(s) supporting the resulting purchase (e.g., show that basis for the selection among multiple Contracts at the time of purchase was the most practical and economical alternative and was in the best interests of the State).

Upon Authorized User acceptance of Products itemized on the Purchase Order, Contractor will invoice Authorized User for any portion of Products accepted, and accordingly, Authorized User will arrange for payment. Contractor shall provide itemized invoicing for all Products.

Note: Contractor must disclose prior to acceptance of an order any forms or other order information that Contractor will attach to orders or require to be completed with Authorized User purchases. Documents which contain additional terms or conditions must receive pre-approval by the Authorized User.

Additional terms or conditions that were not pre-approved by the Authorized User or which conflict with the Contract terms and conditions are void and unenforceable at the sole discretion of the State.

ESTIMATED QUANTITIES

This Contract is an estimated quantity Contract. No specific quantities are represented or guaranteed, and the State provides no guarantee of individual Authorized User participation. The Contractor must furnish all quantities actually ordered at or below the Contract prices. The anticipated dollar value of the award for this Solicitation, based on historical purchases under previous awards, is approximately $3,000,000 (three million) annually. The individual value of each resultant Contract is indeterminate and will depend upon the number of Contracts issued and the competitiveness of the pricing offered.

Authorized Users will be encouraged to purchase from Contractors who offer the Products and pricing that best meet their needs in the most practical and economical manner. See Appendix B, Estimated/Specific Quantity Contracts and Participation in Centralized Contracts.

Numerous factors could cause the actual quantities of Products purchased under a Contract resulting from this Solicitation to vary substantially from the estimates in Solicitation 23153. Such factors include, but are not limited to, the following:

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 6

• Such Contracts may be non-exclusive Contracts.

• There is no guarantee of quantities to be purchased, nor is there any guarantee that demand will continue in any manner consistent with previous purchases.

• The individual value of each Contract is indeterminate and will depend upon actual Authorized

User demand and actual quantities ordered during the contract period.

• The State reserves the right to terminate any Contract for cause or convenience prior to the end of the term pursuant to the terms and conditions of the Contract.

• Contract pricing that is lower than anticipated could result in a higher quantity of purchases by

Authorized Users than anticipated.

• Contract pricing that is higher than anticipated could result in a lower quantity of purchases by

Authorized Users than anticipated.

Contractor acknowledges the foregoing and agrees that actual good faith purchasing volumes during the term of this Contract could vary substantially from the estimates provided in Solicitation 23153.

DEFINTIONS

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

“Bid Deviation” shall refer to any variance submitted or proposed by a Bidder, which deviates from, adds extraneous terms to, conflicts with or offers an alternative to any term, condition, specification or requirement of the Solicitation.

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

Holidays and federal holidays.

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

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

Memorial Day; Independence Day; Labor Day; Columbus Day; Veteran’s Day; Thanksgiving Day; and Christmas Day.

“NYS Vendor ID” shall mean the ten-character identifier issued by New York State when a vendor is registered on the Vendor File.

“Preferred Source Products” shall refer to those Products that have been approved in accordance with

New York State Finance Law § 162.

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

“Procurement Services” shall refer to a business unit of OGS, formerly known as New York State

Procurement (“NYSPro”) and Procurement Services Group (“PSG”).

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

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 7

CONTRACT TERM AND EXTENSIONS

The Contract will be in effect for a term of up to five (5) years. The Contract term shall commence after all necessary approvals and shall become effective upon mailing or electronic communication of the final executed documents to the Contractor (see Appendix B, Contract Creation/Execution).

All OGS Centralized Contracts resulting from Solicitation # 23153 shall have a co-terminus end date, including those Contracts awarded during any subsequent periodic recruitment. At the State’s option, the Contract may be extended for two (2) years, in increments as deemed to be in the best interest of the State. Whether the optional extensions are exercised is at the sole discretion of the State. A Contractor shall retain the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to any additional applicable statutory and policy requirements. Any extensions provided under this section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension.

The Contract term provided for in this section shall extend 6 months beyond its termination date only for Authorized Users whose contracts must be registered with the Office of the New York City Comptroller.

During the 6-month period the definition of Authorized User shall be deemed to refer only to Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. This extension is in addition to any other extensions available under the Contract. The extension provided for in this paragraph shall be upon the then-existing terms and conditions; provided, however, during such extension an Authorized User, as defined in this paragraph, may agree to amend such terms and conditions solely to comply with changes in statutory requirements (e.g. changes in minimum, prevailing or living wages, or regulated services).

SHORT TERM EXTENSION

This section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension. In the event a replacement Contract has not been issued, any Contract let and awarded hereunder by the State may be extended unilaterally by the State for an additional period of up to 30 calendar days upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. With the concurrence of the Contractor, the extension may be for a period of up to 90 calendar days in lieu of 30 calendar days. However, this extension automatically terminates should a replacement Contract be issued in the interim.

PERIODIC RECRUITMENT

This Solicitation allows for periodic recruitment of additional Contractors during the term of the Contract.

Recruitment periods are optional at the discretion of the State. Additional recruitment periods will be advertised in the NYS Contract Reporter. Bidder must register with the New York State Contract Reporter at https://www.nyscr.ny.gov in order to receive notifications regarding any periodic recruitments under this Solicitation. Bids shall be evaluated under substantially the same terms and conditions as the original Bids. Bidders shall also be required to submit necessary documentation for any additional applicable statutory requirements in effect at the time of the new Solicitation.

Once awarded a Contract, a Contractor may not resubmit a Bid for future consideration for Products covered by the scope of the awarded Contract. In addition, if a Bid is deemed non-responsive during the initial Solicitation or any recruitment period, a Bidder cannot reapply for a future Contract until the next recruitment period.

PRICE

Price shall include all customs duties and charges and be net, F.O.B. destination any point in New York State for orders, as designated by the ordering agency, including delivery, which means bringing the truck to the loading dock or loading area and bringing the load to the tailgate of the truck for agency personnel to remove the load without entering the truck. Standard shipping costs are to be prepaid by https://www.nyscr.ny.gov/

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 8

Contractor and, when determining the NYS Net Price, shall not be separately added to the Authorized User’s invoice.

The State will have one standardized format for all Contract pricelists. Pricing will be collected using Attachment 1 – Pricing in accordance with the Instructions tab listed within Attachment 1 – Pricing.

Pricing shall be discounted from Manufacturer’s Suggested Retail Price (MSRP). Contractor shall include all current MSRPs as part of their bid. All monetary values shall be extended to two decimal points (e.g., $.123 shall be rounded to $.12) and rounded to the nearest whole cent. All discount percentage values shall not exceed two decimal places (e.g., 6%, 6.5%, 6.25% are permitted; 6.875% is not permitted). For each manufacturer offered, Contractors may offer either a single (same) or variable percentage discount structure for each Lot bid. In Lot 1, Contractor may choose to offer varying discounts per Sub-Lot. Discount shall be greater than 0.00% with the exception of additional offerings.

Contractor may include an additional fee for inside delivery with the quote. Inside delivery is intended for essentially free-standing equipment and appliances when the ordering agency is unable to bring it from the dock to the point of use. It shall consist of removal from truck, bringing to the point of use, uncrating, minor assembly, leaving ready for use and removal of debris. This cannot be applied to installations that require Public Works, please see Section titled, Public Works.

Contractor shall provide a detailed written statement of such additional charges to the Authorized User, the Authorized User shall determine whether such charges are appropriate and should be agreed to prior to acceptance of an order and such costs shall be prepaid by the Contractor and added to the invoice.

New York State anticipates that the State shall be treated as a single entity and that prices reflect volume aggregated discounts commensurate with the statewide volume. Contractors are encouraged to offer their best possible pricing; additionally, Authorized Users may negotiate better pricing with Contractors at any time throughout the Contract period. (See Appendix B, Pricing).

PRICE UPDATES

Commencing with the first anniversary date of the Bid Opening, and semi-annually thereafter, a Contractor may request the following updates to their contract:

a. manufacturer price changes,

b. the addition/deletion of Products,

c. the addition/deletion of manufacturers,

d. the addition/deletion of Lots or Sub-Lots.

OGS will provide deadlines for submission in the Contract award document.

Contractors shall be permitted to reduce their pricing any time during the contract term. The discount from MSRP is not allowed to decrease for the duration of the contract.

SUBMISSION REQUIREMENTS

All update requests must be accompanied by a current MSRP.

The Contractor shall only offer new Products that meet the scope as defined in the Section titled, Scope.

The State reserves the right to eliminate Products or additional offerings that do not fall within the scope of the Contract. Contractors must also demonstrate that pricing is reasonable as provided in the Section titled, Price. A comparable contract, or invoice, to a national public entity must be submitted showing pricing, discount(s), and delivery terms. The discount offered on any new Products, with the exception of additional offerings, added to pricelists shall be equal to the discount currently in place for the manufacturer offered in the Lot or Sub-Lot to which the Product is added.

Contractors may request to add a Lot or Sub-Lot to their existing Contract during Price Updates. A request to add a Lot or Sub-Lot must be submitted to OGS for review and approval and must be accompanied by all information required by this Contract as specified in Section 2 – Contractor

GROUP 36100 - Kitchen and Laundry Equipment (Statewide) AWARD PAGE 9

Qualifications, Section 5.1, Method of Award, and Section 6.3 – Price of Solicitation 23153. Contractor shall not quote or offer Product(s) that are the subject of a request to add a Lot or Sub-Lot to an existing Contract until receipt of approval from OGS. If OGS approves the addition of a new Lot or Sub-Lot, a Contract Amendment Letter will be prepared and forwarded to the Contractor for signature and will become effective upon OGS execution.

Contractors shall submit their updated pricelist to the OGS Procurement Services contract administrator pursuant to the requirements of this section for review and written approval prior to issuing to Authorized Users or posting to the Contractor’s dedicated New York State website. The State reserves the right to request copies of existing contracts or price lists to ensure that the prices offered to the State are reasonable and commensurate with similar purchasers.

All approved pricelist updates shall apply prospectively upon approval by OGS. All percentage discounts shall either remain firm (unchanged) or they may increase for the duration of the Contract.

No price updates will be granted to any Contractor who has outstanding Reports of Contract Usage, Proof of Insurance or any other documentation that is required under the resulting contract.

PRICELIST FORMAT

Contractor is required to submit Contract pricelist updates electronically in an unprotected Microsoft

Excel (2016 or lower version) spreadsheet either on USB thumb drive or via e-mail to the OGS Procurement Services contract administrator. The pricelist must be dated, and the format shall be consistent with the format of the Contractor’s approved Contract pricelist. The pricelist shall separately include and identify (e.g., by use of separate worksheets or by using highlighting, italics, bold and/or color fonts):

• Price increases;

• Price decreases;

• Products being added;

• Products being deleted;

• Manufacturer being added;

• Manufacturer being deleted;

• Lot(s)/Sub-Lot(s) being added; and

• Lots(s)/Sub-Lot(s) being deleted.

Contractor’s Submission of Contract Updates

In connection with any Contract pricelist update, OGS reserves the right to:

• Request additional information;

• Reject Contract updates;

• Remove Products from Contracts;

• Remove Products from Contract updates; and

• Request additional discounts for new or existing Products.

Cover Letters

All Contract pricelist updates shall be accompanied by a cover letter describing the nature and purpose of the update (e.g., to add/delete Products/Services, etc.,) along with a current Manufacturer’s Suggested Retail Price for every manufacturer represented on the proposed pricelist.

PUBLIC WORKS

Installation work which is considered public works is excluded from purchase under this Contract. For questions about whether a proposed installation constitutes public work, please contact your local New York State Department of Labor’s Bureau of Public Work district office.

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Authorized Users may purchase Products requiring installation from any resultant Contract. However, any installation shall be procured separately following the Authorized User’s regular procurement procedures and taking into account any Public Works requirements.

BEST PRICING OFFER

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

PRICE STRUCTURE

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

Should the Commissioner in his or her sole discretion determine during the Contract Term that (i) the

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

VOLUME DISCOUNTS

Contractor may offer volume discounts based on total dollars purchased using the thresholds listed on each Contractor’s Information Page.

Volume discounts will not be assessed when determining if a vendor’s prices are reasonable.

ORDERING

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

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

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

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

PURCHASE CARD ORDERS

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

MINIMUM ORDER

The minimum order for this Contract is $200.

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INVOICING AND PAYMENT

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

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

• Contractor Name

• Contractor Billing Address

• Contractor Federal ID Number

• NYS Vendor ID Number

• Account Number

• NYS Contract Number

• Name of Authorized User indicated on the Purchase Order

• NYS Agency Unit ID (if applicable)

• Authorized User’s Purchase Order Number

• Order Date

• Invoice Date

• Invoice Number

• Invoice Amount

• Product Descriptions

• Unit Price

• Quantity

• Unit of Measure

• Dates of Service (if applicable)

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

PRODUCT DELIVERY

Delivery of all Contract Products shall be made in accordance with Appendix B, Product Delivery and Shipping/Receipt of Product. Delivery shall be F.O.B. Destination any point in New York State for orders, as designated by the ordering agency, including delivery, which means bringing to the truck to the loading dock or loading area and bringing the load to the tailgate of the truck for agency personnel to remove the load without entering the truck. Standard shipping costs are to be prepaid by Contractor and, when determining the NYS Net Price, shall not be separately added to the Authorized User’s invoice.

Inside delivery is intended for essentially free-standing equipment and appliances when the ordering agency is unable to bring it from the dock to the point of use. It shall consist of removal from truck, bringing to the point of use, uncrating, minor assembly, leaving ready for use and removal of debris.

This cannot be applied to installations that require Public Works, please see the Section titled, Public Works.

Contractor may include an additional fee for inside delivery with the quote. Contractor shall provide a detailed written statement of such additional charges to the Authorized User. The Authorized User shall determine whether such charges are appropriate and should be agreed to prior to acceptance of an order and such costs shall be prepaid by the contractor and added to the invoice.

https://bsc.ogs.ny.gov/content/vendor-information

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Inside delivery shall be to the specific location indicated by the Authorized User on the Purchase Order.

Authorized User should clearly indicate on Purchase Order the specific location where delivery is required to be made. (For Example, authorized users should use terminology such as "DELIVERY TO ROOM_______LOCATED ON ________floor," etc., on Purchase Orders).

PRODUCT RETURNS AND EXCHANGES

In addition to the provisions of Appendix B, Title and Risk of Loss, Product Substitution, and Rejected

Product, Products returned or exchanged due to quality problems, duplicated shipments, outdated Product, incorrect Product shipped, Contractor errors otherwise not specified, or Products returned or exchanged due to Authorized User errors, shall be replaced with specified Products or the Authorized User shall be credited or refunded for the full purchase price.

Products shall be replaced within 10 business days of written notification to the Contractor of the

Authorized User’s intent to return or exchange the Product. Contractor can charge only a restocking fee for Product returned or exchanged due to Authorized User error that is determined not to be suitable for resale; the restocking fee cannot exceed the net price of the returned or exchanged Product.

Any credit or refund shall be applied against the next bill/invoice submitted by the Contractor to the

Authorized User. If no credit or refund, or only a partial credit or refund, is made in such fashion, the Contractor shall pay to the Authorized User the amount of such credit or refund or portion thereof still outstanding, within 30 calendar days of demand.

UNANTICIPATED EXCESSIVE PURCHASE

The State reserves the right to negotiate lower pricing, or to advertise for Bids, for any unanticipated excessive purchase.

CONTRACT ADMINISTRATION

The Contractor shall provide a sufficient number of Customer Service employees who are knowledgeable and responsive to Authorized User needs and who can effectively service the Contract.

Contractor shall also provide an Emergency Contact in the event of an emergency occurring after business hours or on weekend/holidays.

Contractor shall provide a dedicated Contract Administrator to support the updating and management of the Contract on a timely basis. Information regarding the Customer Service, Emergency Contact, and Contract Administrator shall be set forth on the Contractor Information Page, as revised from time to time by OGS and posted on the OGS landing page of the OGS website. Contractor must notify OGS within five Business Days if it’s Contract Administrator, Emergency Contact, or Customer Service employees change, and provide an interim contact person until the position is filled. Changes shall be submitted electronically via e-mail to the individual listed on the Contract landing page on the OGS website.

NYS FINANCIAL SYSTEM (SFS)

New York State is currently operating on an Enterprise Resource Planning (ERP) system, Oracle

PeopleSoft software, referred to as the Statewide Financial System (SFS). SFS is currently on PeopleSoft Financials version 9.2. SFS supports requisition-to-payment processing and financial management functions.

The State is also implementing an eProcurement application that supports the requisitioning process for

State Agencies to procure Products in SFS. This application provides catalog capabilities. Contractors with Centralized Contracts have the ability to provide a “hosted” or “punch-out” catalog that integrates with SFS and is available to Authorized Users via a centralized eMarketplace website. Additional information may be found at: https://ogs.ny.gov/procurement/emarketplace There are no fees required for a Contractor’s participation in the catalog site development or management. Upon completion and activation of an on-line catalog, State Agencies will process their orders through the SFS functionality and other Authorized Users can access the catalog site to fulfill orders directly.

https://ogs.ny.gov/procurement/emarketplace

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The State may be implementing additional PeopleSoft modules in the near future. Further information regarding business processes, interfaces, and file layouts currently in place may be found at:

http://www.sfs.ny.gov and http://www.osc.state.ny.us/agencies/guide/MyWebHelp/.

AMERICANS WITH DISABILITIES ACT (ADA)

The federal ADA bars employment discrimination and requires all levels of government to provide necessary and reasonable accommodations to qualified workers with disabilities. Contractor is required to identify and offer any Products it manufactures or adapts that may be used or adapted for use by persons with visual, hearing, or any other physical disabilities. Although it is not mandatory for Contractor to have these Products in order to receive an award, it is necessary to identify any such Products offered that fall into the above category.

N.Y. STATE FINANCE LAW § 139-L

Pursuant to N.Y. State Finance Law § 139-l, every Bid made on or after January 1, 2019 to the State or any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, and where otherwise required by such public department or agency, shall contain a certification that the Contractor has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of N.Y. State Labor Law § 201-g.

N.Y. State Labor Law § 201-g provides requirements for such policy and training and directs the Department of Labor, in consultation with the Division of Human Rights, to create and publish a model sexual harassment prevention guidance document, sexual harassment prevention policy and sexual harassment prevention training program that employers may utilize to meet the requirements of N.Y.

State Labor Law § 201-g. The model sexual harassment prevention policy, model sexual harassment training materials, and further guidance for employers, can be found online at the following URL:

https://www.ny.gov/combating-sexual-harassment-workplace/employers.

Pursuant to N.Y. State Finance Law § 139-l, any bid by a corporate Contractor containing the certification required above shall be deemed to have been authorized by the board of directors of such Contractor, and such authorization shall be deemed to include the signing and submission of such Bid and the inclusion therein of such statement as the act and deed of the Contractor.

If the Contractor cannot make the required certification, such Contractor shall so state and shall furnish with the Bid a signed statement that sets forth in detail the reasons that the Contractor cannot make the certification. After review and consideration of such statement, OGS may reject the bid or may decide that there are sufficient reasons to accept the Bid without such certification.

The certification required above can be found on Attachment 2 – NYS Required Certifications which Contractor must submit with its Bid.

INSURANCE

The Contractor shall maintain in force at all times during the terms of the Contract, policies of insurance pursuant to the requirements outlined in Attachment 4 – Insurance Requirements of Solicitation 23153.

REPORT OF CONTRACT USAGE

Contractor shall submit Attachment 8 – Report of Contract Usage including total sales to Authorized

Users of this Contract by Contractor, and all authorized resellers, dealers and distributors, if any, no later than 15 days after the close of each calendar quarter. OGS will provide deadlines for submission after Contracts are awarded. If the Contract period begins or ends in a fractional portion of a reporting period, only the actual Contract sales for this fractional period should be included in the quarterly report.

http://www.sfs.ny.gov/ http://www.osc.state.ny.us/agencies/guide/MyWebHelp/ https://www.ny.gov/combating-sexual-harassment-workplace/employers

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Contractors shall specify if any authorized resellers, dealers or distributors are NYS Certified Minority-and/or Women-Owned Business Enterprises (MWBEs), small business enterprises (SBEs), or Service- Disabled Veteran-Owned Businesses (SDVOBs).

The report is to be submitted electronically via e-mail in Microsoft Excel to OGS Procurement Services, to the attention of the individual listed on the Contract landing page on the OGS website. and shall reference the Contract Group Number, Award Number, Contract Number, Sales Period, and Contractor's name.

The report in Attachment 8 – Report of Contract Usage contains the minimum information required.

Additional related sales information, such as detailed user purchases may be required by OGS and must be supplied upon request. Failure to submit reports on a timely basis may result in Contract cancellation and designation of Contractor as non-responsible.

CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE

CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT

OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN

I. New York State Law

Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New

York Codes, Rules and Regulations (“NYCRR”), the New York State Office of General Services (“OGS”) is required to promote opportunities for the maximum feasible participation of New York State-certified Minority- and Women-Owned Business Enterprises (“MWBEs”) and the employment of minority group members and women in the performance of OGS contracts.

II. General Provisions

A. OGS is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR Parts 140-145 (“MWBE Regulations”) for all State contracts as defined therein, with a value (1) in excess of $25,000 for labor, services, equipment, materials, or any combination of the foregoing or (2) in excess of $100,000 for real property renovations and construction.

B. The Contractor agrees, in addition to any other nondiscrimination provision of the Contract and at no additional cost to OGS, to fully comply and cooperate with OGS in the implementation of New York State Executive Law Article 15-A and the regulations promulgated thereunder. These requirements include equal employment opportunities for minority group members and women (“EEO”) and contracting opportunities for MWBEs.

Contractor’s demonstration of “good faith efforts” pursuant to 5 NYCRR § 142.8 shall be a part of these requirements. These provisions shall be deemed supplementary to, and not in lieu of, the nondiscrimination provisions required by New York State Executive Law Article 15 (the “Human Rights Law”) or other applicable federal, State, or local laws.

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

III. Equal Employment Opportunity (EEO)

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

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1. Contractor and subcontractors shall undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability, or marital status. For these purposes, EEO shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, and rates of pay or other forms of compensation. This requirement does not apply to: (i) the performance of work or the provision of services or any other activity that is unrelated, separate, or distinct from the Contract; or (ii) employment outside New York State.

2. By entering into this Contract, Contractor certifies that the text set forth in clause 12 of Appendix A, attached hereto and made a part hereof, is Contractor’s equal employment opportunity policy. In addition, Contractor agrees to comply with the Non-Discrimination Requirements set forth in clause 5 of Appendix A.

B. Form EEO 100 – Staffing Plan

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

C. Form EEO - 101 - Workforce Utilization Reporting Form (Commodities and Services) (“Form

EEO-101-Commodities and Services”)

1. The Contractor shall submit, and shall require each of its subcontractors to submit, a Form EEO-101-Commodities and Services to OGS to report the actual workforce utilized in the performance of the Contract by the specified categories listed including ethnic background, gender, and Federal occupational categories. The Form EEO-101- Commodities and Services must be submitted electronically to OGS at EEO_CentCon@ogs.ny.gov on a quarterly basis during the term of the Contract by the 10th day of April, July, October, and January.

2. Separate forms shall be completed by Contractor and all subcontractors.

3. In limited instances, the Contractor or subcontractor may not be able to separate out the workforce utilized in the performance of the Contract from its total workforce. When a separation can be made, the Contractor or subcontractor shall submit the Form EEO- 101-Commodities and Services and indicate that the information provided relates to the actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be separated out from the Contractor's or subcontractor's total workforce, the Contractor or subcontractor shall submit the Form EEO-101-Commodities and Services and indicate that the information provided is the Contractor's or subcontractor’s total workforce during the subject time frame, not limited to work specifically performed under the Contract.

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