3900023262Template.pdf

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

AGREEMENT FOR

INDUSTRIAL AND COMMERCIAL SUPPLIES

AND EQUIPMENT (STATEWIDE)

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

[BIDDER NAME]

CONTRACT NUMBER PC[CONTRACT #]

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 2

Contract # PC[Contract#]

Table of Contents

1. INTRODUCTION

1.1 Overview

1.2 Scope

1.3 Out of Scope

1.4 Estimated Quantities

1.5 NYS Comptroller Approval

1.6 Definitions

1.7 Contract Documents and Conflict of Terms

2. CONTRACTOR QUALIFICATIONS

3. TERMS AND CONDITIONS

3.1 Contract Term and Extensions

3.2 Short term Extension

3.3 Price

3.4 Price Updates

3.5 Price List Format

3.6 Best Pricing Offer

3.7 Price Structure

3.8 Additional Discounts

3.9 Ordering

3.10 Purchasing Card Orders

3.11 Minimum Order

3.12 Invoicing and Payment

3.13 Product Delivery

3.14 Product Returns and Exchanges

3.15 Unanticipated Excessive Purchase

3.16 Contract Administration

3.17 NYS Financial System (SFS)

3.18 Web-Based Ordering

3.19 Accessibility of Web-Based Information and Applications Policy

3.20 Americans with Disabilities Act (ADA)

3.21 Performance and Bid Bonds

3.22 Insurance

3.23 Report of Contract Usage (A/K/A Sales Reports)

3.24 Contractor Requirements and Procedures for Business Participation Opportunities for NYS Certified

Minority- and Women-Owned Business Enterprises and Equal Employment Opportunities for Minority Group Members and Women

3.25 Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses . 25

3.26 Use of Recycled or Remanufactured Materials

3.27 Bulk Delivery and Alternate Packaging

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 3

3.28 Surplus/Take-Back/Recycling

3.29 Environmental Attributes and NYS Executive Order Number 4

3.30 Consumer Products Containing Mercury

3.31 Diesel Emission Reduction Act

3.32 Overlapping Contract Products

3.33 Preferred Source Products

3.34 NYS Vendor Responsibility

3.35 NYS Tax Law Section 5-a

3.36 “OGS or Less” Guidelines

3.37 Non-State Agencies Participation in Centralized Contracts

3.38 Extension of Use

3.39 Resellers

3.40 New Accounts

3.41 Centralized Contract Modifications

3.42 Drug and Alcohol Use Prohibited

3.43 Traffic Infractions

3.44 Procurement Instructions for Authorized Users

3.45 Contract Documents; Electronic Format

3.46 Periodic Recruitment

3.47 Contract Modifications and Renewals

3.48 Notices

3.49 Captions

3.50 Severability

3.51 Entire Agreement

CONTRACT SIGNATURE PAGE

APPENDICES

Appendix A – Standard Clauses for NYS Contracts (October 2019) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions (January 2021)

ATTACHMENTS

Attachment 1 – Pricing Attachment 2 – Insurance Requirements Attachment 3 – Report of Contract Usage Attachment 4 – Contractor/Reseller/Distributor Information Sheet

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 4

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PC______

CENTRALIZED CONTRACT FOR PURCHASING,

INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (STATEWIDE)

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made this ____ day of _________, 2023, by and between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (OGS), whose office is on the 36th Floor, Corning Tower, Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242 (hereinafter referred to as the “State” or “OGS”) and [Bidder Name], having its principal place of business at [Bidder’s Principal Place of Business Address] (hereinafter referred to as the “Contractor”). OGS and the Contractor are collectively referred to as the “Parties.”

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

WHEREAS, OGS has identified a need by New York State agencies and other Authorized Users for Industrial and Commercial Supplies and Equipment, as further described herein; and

WHEREAS, OGS conducted a multiple award procurement to identify the bidder(s) which could provide the Industrial and Commercial Supplies and Equipment, referred to as Solicitation #23262 (hereinafter “Solicitation”), which was advertised on March 29, 2022 in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, in accordance with the method of award set forth in the IFB, awards were made to all responsive and responsible Bidders who met the minimum qualifications and offered reasonable prices as determined by OGS;

and

WHEREAS, the State has determined: that the Contractor submitted a responsive proposal; that the Contractor is a responsible vendor; and that the Contractor is willing to provide the Industrial and Commercial Supplies and Equipment set forth herein at reasonable prices and under the terms and conditions contained herein;

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

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 5

1. INTRODUCTION

1.1 Overview

This Contract is for Industrial and Commercial Supplies and Equipment as specified herein. This Contract is a Centralized Contract established by the New York State (“NYS”) Office of General Services (OGS), and the Contract is available for use by any Authorized User, as that term is defined in State Finance Law § 163(1)(k), across the State of New York, including but not limited to: New York State agencies; public authorities; political subdivisions such as cities, towns, and villages; school districts; the State University of New York (SUNY); The City University of New York (CUNY); and certain other associations, entities and non-profit organizations designated as Authorized Users under State Finance Law § 163(1)(k).

1.2 Scope

The purpose of this Contract is to provide Authorized Users with a means of acquiring Industrial and Commercial Supplies and Equipment which are purchased repetitively or on an emergency basis. It also provides a means for inventory reduction by offering quick shipment (within twenty four (24) hours) of a broad array of Products and aggregation and purchasing of a variety of different Products from the same Contractor with a single order. This Contract offers Authorized Users the ability to pick-up orders (Refer to Section 2 Contractor Qualifications).

Contractors awarded a Contract pursuant to the Solicitation may offer any of the Product Categories below as long as they meet the qualifications set forth in Section 2 Contractor Qualifications. A Contractor awarded a Contract pursuant to the Solicitation must offer at least five (5) of the sixteen (16) Product Categories. Services are excluded from the scope of this Contract and may not be offered in any Product Category. Examples listed below are not exclusive of the Products allowed in each Product Category.

Product Categories Product Examples

Building Supplies

• Ceiling Tiles

• Dry Wall

• Lumber

• Windows

Cleaning

• Buckets

• Cleaning Chemicals

• Hand Soaps

• Mops

• Paper Products

• Trash Can Liners

• Vacuums

Electrical

• Circuit Breakers

• Conduits

• Connectors

• Cords

• Electrical Boxes

• Fuses

• Plugs

• Solar Panels

• Switches

• Wire

• Outlets

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 6

Fluid Power Equipment

• Hoses

• Hydraulics

• Hydraulic Liquids

• Pressure Washers

• Spray Guns and Kits

• Tubing

Hand Tools

• Hammers

• Hand Saw

• Measuring Tools o Levels o Tape Measurers

• Pliers

• Rakes

• Screwdrivers

• Shovels

Heating, Ventilation, Air Conditioning (HVAC)

• Air Conditioner Units o Portable o Window

• Air Filters

• Blowers

• Coolant

• Diffusers

• Fans

• Filters

• Foam Coil Cleaners

• Small Heaters

• Valves

Lighting

• Ballasts

• Bulbs

• Diodes

• Fixtures

• Lamps

• Tubes

Maintenance

• Adhesives

• Batteries

• Fasteners

• Generators

• Ladders

• Metal Raw Materials o Flat Stock o Pins o Rods

• Paint

• Paint Supplies

• Sealant

• Seasonal Lawn and Garden Supplies

• Shop Supplies

• Welding Supplies

Material Handling

• Cabinets

• Containers

• Chains

• Hand Trucks

• Pails/Drums

• Wire Rope

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 7

Motors/Power Transmission

• Belts

• Motors

• Pulleys

On-Site Personal Safety

• Eye Protection

• Eye Wash

• Head and Face Protection

• Hearing Protection

• First Aid

• Gloves

• Protective Clothing

Pneumatics

• Compressors

• Cylinders

• Flanged Globes

• Relays

• Various Valves

Power Tools

• Electric Drills

• Electric Grinders

• Electric Sanders

• Electric Saws

Production Tools

• Band Saws

• Drive Bits

• Friction Lighters

• Lighter Sets

• Tank Adapters

Pumps and Plumbing

• Drains

• Facets

• Fittings

• Pipes

• Plumbing Tools

• Pumps

• Water Filters

Site Safety and Security

• Barricades

• Cones

• Fire Escape Ladders

• Harnesses

• Master Lock

• Strobes

• Warning Signs

Contractors awarded a Contract pursuant to the Solicitation must offer Products in at least five (5) of the sixteen

(16) Product Categories above and meet the qualifications set forth in Section 2 Contractor Qualifications. All Products offered must be available statewide.

Contractor and/or its Reseller(s) must offer at least one Physical Location or Physical Presence in each of the four (4) Districts as defined below. The Physical Location and/or Physical Presence needs to be in operation on Business Days for a minimum of eight (8) hours, between the hours of 7:00 am and 6:00 pm. Districts are grouped by counties as follows:

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 8

DISTRICT A DISTRICT B DISTRICT C DISTRICT D

Allegany Cattaraugus Chautauqua Chemung Erie Genesee Livingston Monroe Niagara Ontario Orleans Schuyler Seneca Steuben Wayne Wyoming Yates

Broome Cayuga Chenango Cortland Delaware Fulton Hamilton Herkimer Jefferson Lewis Madison Montgomery Oneida Onondaga Oswego Otsego St. Lawrence Schoharie Tioga Tompkins

Albany Clinton Columbia Dutchess Essex Franklin Greene Orange Putnam Rensselaer Saratoga Schenectady Sullivan Ulster Warren Washington

Bronx Kings Nassau New York Queens Richmond Rockland Suffolk Westchester

1.3 Out of Scope

This Contract is intended to include commodities only and all services are out of scope. Products considered out of scope for this Contract include but are not limited to:

1. Candy

2. Customization

3. Flooring

4. Furniture (Non-Industrial or Non-Commercial)

5. Holiday Decorations

6. Office Supplies

7. Tactical Gear

8. Weapons

1.4 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 individual value of this Contract is indeterminate and will depend upon the number of Contracts issued pursuant to the Solicitation and the competitiveness of the pricing offered. Authorized Users are 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 this Contract to vary substantially from the estimates in the Solicitation. Such factors include, but are not limited to, the following:

1. Such Contracts may be non-exclusive Contracts.

2. 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.

3. The individual value of each Contract is indeterminate and will depend upon actual Authorized User demand and actual quantities ordered during the contract period.

4. 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.

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

Users than anticipated.

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 9

6. 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 the Contract could vary substantially from the estimates provided in the Solicitation.

1.5 NYS Comptroller Approval

In accordance with Section 112 of the State Finance Law, a Contract resulting from this Solicitation shall not be valid, effective or binding upon the State until such Contract has been approved by the Office of the New York State Comptroller (“OSC”).

Purchase orders or other procurement transactions issued under such Contract(s) may also be subject to OSC approval.

1.6 Definitions

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

“Bid” shall refer to a Bidder’s complete response to the Solicitation.

“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.

“Bidder” Shall refer to any business entity who submitted a response to the Solicitation. At the time that the Bidder executes a Contract with the State, a Bidder shall become a “Contractor”. See also “Contractor”.

“Bidder’s/Contractor’s Part Number” shall refer to a unique identifier assigned to an individual Product or part; usually includes a combination of alpha and/or numeric characters or may be a unique Product name or unique Product description. Bidder’s/Contractor’s Part Numbers must be unique and cannot be the same as any other Bidder’s/Contractor’s Part Number on the price list.

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

“Contractor” shall refer to a responsive and responsible Bidder who is working under an executed contract with New York State. Contractor is a general term.

“District” shall refer to New York State counties that are grouped together for purposes of this solicitation.

“Inside Delivery” refers to a delivery method wherein the Contractor brings the shipped Product(s) from the vehicle into the entrance of the ordering Authorized User’s building.

“Manufacturer’s Suggested Retail Price” (MSRP) shall refer to the price that a Product’s Original Equipment Manufacturer (OEM) recommends or suggests the Product be sold to consumer for. The MSRP may be published in some form by the Manufacturer and available to and recognized by the trade.

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

Women-owned Business Enterprise.

“Not-To-Exceed (NTE) Price” shall refer to the price listed on the published Contract price list. Contractor and/or Reseller cannot quote or sell a Product for more than the NTE Price.

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 10

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

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

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

“OEM Price List” shall refer to the nationally published or internal document(s) issued by the Original Equipment Manufacturer (OEM) or its Distributors which lists, among other things, a description and MSRP for the OEM’s Products.

“Original Equipment Manufacturer” (OEM) shall refer to an organization or business entity that creates, makes, processes, or fabricates a Product or something of value, which changes a raw material or commodity from one form to another or creates a new Product or commodity.

“Physical Location” shall refer to a distribution center, store or warehouse in a fixed location. The Physical

Location needs to be in operation on Business Days for a minimum of eight (8) hours, between the hours of 7:00 am and 6:00 pm.

“Physical Presence” shall refer to a mobile distribution center, store or warehouse. The Physical Presence needs to be available within that District on Business Days for a minimum of eight (8) hours, between the hours of 7:00 am and 6:00 pm.

“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”).

“Reseller” or Authorized Reseller or Distributor or Authorized Dealer (hereafter commonly referred to as “Reseller”) is a company or individual (merchant) that purchases goods with the intention of selling them rather than consuming or using them.

“ROP” shall refer to Reasonableness of Price.

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

1.7 Contract Documents and Conflict of Terms

The following appendices and attachments, attached hereto, are hereby expressly made a part of this Contract as fully as if set forth at length herein. In the case of any conflict(s) among these documents, conflicts shall be resolved in the following order of precedence:

1. Appendix A – Standard Clauses for NYS Contracts (October 2019)

2. This document

3. Appendix C – Federal Funding Agency Mandatory Terms and Conditions (January 2021)

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 11

4. Appendix B – General Specifications (April 2016)

5. Attachment 1 – Pricing

6. Attachment 2 – Insurance Requirements

7. Attachment 3 – Report of Contract Usage

8. Attachment 4 – Contractor/Reseller/Distributor Information Sheet

2. CONTRACTOR QUALIFICATIONS

The State’s intent in having the requirements listed below is to ensure that only qualified and reliable

Contractors provide the Products under the Contracts resulting from the Solicitation. Procurement Services retains the right to request any additional information pertaining to the Contractor's ability, qualifications, financial capacity, financial stability, and procedures used to accomplish all work under the Contract as it deems necessary to ensure safe and satisfactory work. Contractor shall meet the following qualifications throughout the term of this Contract:

1. Contractor must offer Products in at least five (5) of the sixteen (16) Product Categories as referenced in

Section 1.2, Scope. All Products offered must be available statewide.

2. Contractor must offer:

a. A minimum of one hundred (100) Products in five (5) of the categories that were bid.

b. A minimum of fifteen thousand (15,000) Products on its price list overall.

i. These minimum one hundred (100) Products in each of the five (5) categories and minimum fifteen thousand (15,000) Products overall must fall within the Scope of this Contract and within the Scope of the Product Categories. Products and Services that OGS deems to fall outside the Scope of this Solicitation as well as those that do not have satisfactory proof of Reasonableness of Price (ROP) will be excluded from these counts.

ii. Offering the minimum number of Products in each category does not meet the minimum fifteen thousand (15,000) Products overall.

1. Contractor will only be able to sell those items and Product Categories that are on its price list under this Contract.

3. In order to facilitate the need for Authorized Users to pick-up orders, free of charge, the Contractor and/or its Reseller(s) must have at least one Physical Location or a Physical Presence in each of the four (4) Districts. The Physical Location and/or Physical Presence needs to be in operation on Business Days for a minimum of eight (8) hours, between the hours of 7:00 am and 6:00 pm.

3. TERMS AND CONDITIONS

3.1 Contract Term and Extensions

The Contract will be in effect for a term of up to five (5) years. The Contract term shall commence on the later of (i) March 01, , 2023, or (ii) approval by the Comptroller of the State of New York.

All OGS Centralized Contracts resulting from the Solicitation 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 five (5) 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 the approval of OSC and 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 six (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 six (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

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 12

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).

3.2 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 ninety (90) 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 one hundred eighty (180) calendar days in lieu of ninety (90) calendar days. However, this extension automatically terminates should a replacement Contract be issued in the interim.

3.3 Price

1. The Contractor must offer a NYS Contract Price that:

a. Is comparable to its pricing currently provided to another governmental entity as demonstrated in a contract; or

b. Has a forty percent (40%) (or higher) Total Discount percentage (as defined below) off its

Contractor-Published Price List or an OEM Price List.

2. Minimum NYS Category Discount:

a. Contractor shall offer a Minimum NYS Category Discount percentage, greater than 1.0000%, from its regularly published pricing (A/K/A List Price) in effect at time of Bid opening.

b. Minimum NYS Category Discount must not exceed four decimal places.

c. Contractor must offer one Minimum NYS Category Discount percentage for each Product Category it wishes to provide Products under.

d. Contractor may offer different Minimum NYS Category Discount percentages for each of the

Product Categories it wishes to provide Products under.

e. The Minimum NYS Category Discount percentage may increase during the term of the Contract but must never decrease.

3. Total Discount:

a. Contractor must offer a Total Discount percentage for individual Products that is equal to or better than the Minimum NYS Category Discount percentage for the Product Category that the individual Product is in.

b. Total Discount must not exceed four decimal places.

c. Contractor must offer a Total Discount percentage for each individual Product it wishes to provide.

d. Contractor may offer different Total Discount percentages for each Product.

e. Total Discount percentages may change as long as they do not fall below the established Minimum

NYS Category Discount percentage for the Product Category that the individual Product is in during the life of Contract and Product’s NYS Contract Price remains reasonable.

4. NYS Contract Price / Shipping Cost

a. Contractor has the following two (2) options for accounting for shipping costs for each Product’s

NYS Contract Price.

i. The NYS Contract Price may include all shipping costs (e.g. Customs duties, and freight charges) and be net, F.O.B. destination any point in NYS, as designated by the ordering agency including Inside Delivery. When the NYS Contract Price includes price of shipping, a Contractor shall not charge separately for shipping for that item; OR

ii. The NYS Contract Price may include only the cost of the Product, with shipping costs (e.g., customs, duties, and freight charges) added to the invoice as a separate line item.

Shipping costs that are invoiced as separate line item are to be prepaid by Contractor and such orders are to be shipped on an F.O.B. destination basis. This option only applies to the costs to ship the product from the shipping point to the point of delivery. For Products that do not include shipping costs in the NYS Contract Price, the Contractor shall:

1. Provide the Authorized User with an estimate of shipping charges at the time of order; and.

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 13

2. Upon delivery, include the shipping costs on the invoice for the Product, and provide the Authorized User with a copy of the freight bill for the Product(s).

b. Failure of a Contractor to provide the Authorized User with an estimate of shipping costs prior to placement of an order and/or a copy of the freight bill with the invoice, will result in the Contractor forfeiting the option to invoice for shipping separately.

c. Contractor shall not charge additional fees to the NYS Contract Price such as for oversized Products, hazardous materials or special handling.

5. Attachment 1 – Pricing

a. Contractor’s pricing will be shown using Attachment 1 – Pricing.

b. Contractor must use the indicator provided on the Attachment 1 – Pricing document to identify the

Product(s) whose NYS Contract Prices include the shipping cost and the Product(s) that do not.

6. Reasonableness of Price

a. Examples of acceptable sources to prove Reasonableness of Price (ROP) may include but are not limited to:

i. A contract with a Federal government agency (e.g., General Services Administration

(GSA));

ii. A contract with a State government agency;

iii. A contract with a Cooperative purchasing organization (e.g., National Association of State

Procurement Officials (NASPO Valuepoint) or Sourcewell);

iv. Contractor-Published Price List

1. Will only be accepted if the Bidder offers a NYS Contract Price that has a forty percent (40%) (or higher) Total Discount percentage off the Contractor Published Price List.

v. OEM Price List

1. Will only be accepted if the Contractor offers a NYS Contract Price that has a forty percent (40%) (or higher) Total Discount percentage off an OEM Price List.

b. The determination of what is an acceptable source to prove ROP is at the sole discretion of the state.

c. Acceptable formats of ROP documents include:

i. Microsoft Excel

ii. Microsoft Word

iii. Adobe Acrobat PDF that has been converted to allow for Optical Character Recognition

(OCR)

d. ROP will be determined by comparing the NYS Contract Price with the comparable price for each

Product.

7. The NYS Contract Price on Attachment 1 - Pricing is a Not-To-Exceed (NTE) Price.

8. Contractor’s pricing information is included in the posted Price List linked from the Contractor’s Information page, which will apply statewide.

9. OGS reserves the right to require Contractors to hold pricing for a minimum of six (6) months from the start date of the initial Contract Award.

10. OGS reserves the right to remove Products that it does not deem to be reasonable from the Contractor’s price list.

3.4 Price Updates

Contractor may update its price list as follows:

1. OGS reserves the right to change the processes set forth in this section. This may include but is not limited to an electronic submission system.

2. Commencing six (6) months after the initial Contract Award, the Contractor may request to update its price list to reflect Contractor price changes and the addition/deletion of Products.

3. Contractor requests for price list updates may be submitted a maximum of twice per calendar year. The Contractor shall provide OGS with one electronic copy of the requested updated price list.

4. A Contractor may not submit a price list update while the Contractor has a previously submitted price list update that remains under review.

5. Price list updates may not be granted to Contractor if it has outstanding sales reports, proof of insurance or any other documentation that is required under this Contract.

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 14

6. OGS reserves the right to reject a Contractor’s request for a price list update if the contractor does not cure outstanding issues within the timeframe specified by OGS’s correspondence of said issues. If the contractor fails to cure the issue within the specified timeframe, OGS shall reject the request and the Contractor’s submission shall be forfeited. An example of a timeline where the Contractor’s submission shall be rejected and the submission forfeited is as follows:

a. OGS Conducts the preliminary review and advises the Contractor of issues that need to be cured.

Within OGS’s notification of the errors found OGS shall advise Contractor they have fourteen (14) calendar days to respond and cure the issues.

b. If after those fourteen (14) calendar days the Contractor does not cure the issues OGS shall remind the Contractor there are issues that need to be cured and shall further advise the Contractor they have seven (7) calendar days to cure the issues.

c. If after those seven (7) calendar days the Contractor does not cure the issues OGS shall remind the Contractor there are issues that need to be cured, shall advise the Contractor they have seven

(7) calendar days to cure the issues and shall further advise the Contractor that if the outstanding issues are not cured within seven (7) calendar days the price list update request will be rejected and the Contractor will forfeit their opportunity for one of their price list submissions for that calendar year.

7. OGS reserves the right to request price list updates in addition to the twice-yearly request limit imposed above.

8. OGS reserves the right to disallow for price list updates within the six (6) months prior to the end of the Contract Term.

9. Contractors shall be permitted to reduce their pricing any time during the contract term without prior approval from OGS.

10. All Minimum NYS Category Discount percentages shall either remain firm (unchanged) or they may increase for the duration of the Contract.

11. The Total Discount percentage offered on any new Products added to price lists shall be no lower than the established Minimum NYS Category Discount percentage for the Product Category the individual Product is in.

12. Contractors shall submit their updated price list 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 NYS website.

13. 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.

14. In the event a Contractor requests to remove a Category from their price list then later requests to add the same Category to their price list the Contractor must offer an equal or better Minimum NYS Category Discount percentage than what they offered the previous time they requested to offer said Category.

15. When re-adding a preexisting Product Category Contractor may submit the previously approved price list for said Product Category for consideration as proof of ROP.

16. All approved price list updates shall apply prospectively upon approval by OGS.

17. Within fourteen (14) calendar days following the approval of a proposed price list, Contractors and

Resellers who elect to have an eMarketplace presence shall update the price list on said eMarketplace (as defined below in Section 3.17- NYS Financial System (SFS)).

18. OGS reserves the right to remove any item(s) it deems outside the scope of the Award. Likewise, OGS reserves the right to require that the Contractor move any item(s) to the correct category within the Contractor’s pricelist. If the Contractor is not approved to sell products in that category then the item will be removed by OGS.

19. OGS reserves the right to require clarification at any time and/or require correction of arithmetic or other apparent errors for the purpose of assuring a full and complete understanding of a Contractor’s update and/or to determine a Contractor’s compliance with the requirements of the Contract;

20. To reject any update or portion(s) thereof determined to have been altered/modified from the original format by the Contractor. Such alterations/modifications include but are not limited to any change(s) to document header(s), footer(s) and/or cell(s); unprotecting worksheet(s)/workbook(s); hiding/unhiding cell(s)/column(s)/row(s)/worksheet(s); and locking/unlocking cell(s).;

3.5 Price List Format

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 15

1. Contractor is required to submit Contract price list updates electronically in an unprotected Microsoft Excel spreadsheet, see Attachment 1 – Pricing, on USB flash drive or via e-mail to the OGS Procurement Services contract administrator.

2. The price list must be dated and the format shall be consistent with the format and content of the Contractor’s approved Contract price list.

3. The price list shall separately include and identify (e.g., by use of separate worksheets or by using highlighting, italics, bold and/or color fonts) changes such as:

a. Minimum NYS Category Discount percentage increased;

b. Product Categories being added;

c. Product Categories being deleted (a minimum of five (5) Product Categories must be retained at all times);

d. Price increases;

e. Price decreases;

f. NYS Contract Price including all costs;

g. NYS Contract Price not including shipping costs;

h. Products being added; and

i. Products being deleted (a minimum of one hundred (100) Products in at least five (5) categories and a minimum fifteen thousand (15,000) Products throughout the entire price list must be retained at all times).

4. In connection with any Contract price list update, OGS reserves the right to:

a. Request additional information;

b. Reject Contract updates;

c. Remove Products from Contracts;

d. Remove Products from Contract updates; and

e. Request additional discounts for new or existing Products.

3.6 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.

3.7 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 OGS 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 ten (10) business days written notice mailed to the Contractor.

3.8 Additional Discounts

Contractor may offer Additional Discounts at the transaction level. Contractor’s Additional Discount information may be included in the posted Price List linked from the Contractor’s Information page.

3.9 Ordering

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 16

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’s name, and sales representative (if applicable).

3.10 Purchasing Card Orders

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

3.11 Minimum Order

There is no minimum order for this Contract.

3.12 Invoicing and Payment

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

The Contractor or Reseller 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:

1. Contractor/Reseller Name

2. Contractor/Reseller Billing Address

3. Contractor/Reseller Federal ID Number

4. NYS Vendor ID Number

5. Account Number

6. NYS Contract Number

7. Name of Authorized User indicated on the Purchase Order

8. NYS Agency Unit ID (if applicable)

9. Authorized User’s Purchase Order Number

10. Order Date

11. Invoice Date

12. Invoice Number

13. Invoice Amount

14. Contractor’s Part Number

15. Product Descriptions

16. Unit Price

17. Quantity

18. Unit of Measure

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/nys-vendors.

3.13 Product Delivery

https://bsc.ogs.ny.gov/nys-vendors

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 17

Delivery of all Contract Products shall be made in accordance with Appendix B, Product Delivery and Shipping/Receipt of Product, except as provided below.

The option to pick-up orders is at the discretion of the Authorized User and must be denoted on the purchase order. Pick-up orders shall be ready within twenty four (24) hours after receipt of order with the exception of non-stock orders which should be ready for pickup within ten (10) business days after receipt of order. See Section 3.9, Ordering. The Physical Location and/or Physical Presence needs to be in operation on Business Days for a minimum of eight (8) hours, between the hours of 7:00 am and 6:00 pm.

Orders shall be shipped to the specified destination within twenty four (24) hours after receipt of order with the exception of non-stock orders which should be shipped within ten (10) business days after receipt of order. In the event that orders are not shipped in the times specified, the Contractor is responsible for contacting the Authorized User in a timely manner utilizing the contact information provided on the Authorized User's Purchase Order.

The Contractor must offer Inside Delivery. Each delivery shall be delivered based upon the needs of the

Authorized User. Authorized User and Contractor may agree to delivery terms other than Inside Delivery, however, such other delivery is not included in the NYS Contract Price and Contractor may add charges with the agreement of the Authorized User.

Delivery shall be made in accordance with the instructions on the Purchase Order from each Authorized User and in accordance with Authorized User’s security rules, which will be communicated during purchase ordering process. If there is a discrepancy between the Purchase Order and what is listed on the Contract, it is the Contractor’s obligation to seek clarification from the Authorized User and, if applicable, from OGS.

Upon mutual agreement, delivery locations may be expanded per the “Extension of Use” clause.

3.14 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 ten (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 thirty (30) calendar days of demand.

3.15 Unanticipated Excessive Purchase

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

3.16 Contract Administration

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.

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 18

Contractor shall provide a dedicated Contract Administrator to support the updating and management of the Contract on a timely basis. Contractor must notify OGS within five Business Days if its 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 OGS Contract Management Specialist.

3.17 NYS Financial System (SFS)

Contractors with Centralized Contracts may have the ability to provide a “hosted” or “punch-out” catalog that integrates with SFS and will be available to Authorized Users via a centralized website( “eMarketplace”).

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/.

3.18 Web-Based Ordering

Contractor (and any approved Resellers) may establish and maintain a dedicated NYS website specifically for the Contract that has a web-based ordering system with the capability of receiving electronic orders from over five thousand (5,000) Authorized Users via the internet. If applicable, the web-based ordering system shall have full order inquiry capabilities and shall acknowledge receipt of an Authorized User’s order. If applicable, Contractor (and any approved Resellers) shall be required to post a copy of Contract Pricing, in both Excel and PDF formats on the website. If applicable, the website link(s) will be listed under the Contractor information on the OGS website. The Contractor’s (and any approved Resellers) website will be the responsibility of the Contractor (and any approved Resellers) to maintain and keep updated. The State reserves the right to request demonstrations of the Contractor’s website.

If applicable, the web-based ordering system must be capable of controlling, documenting and reporting on the following minimum data elements:

1. Contractor Name and Address

2. Contract Number

3. Ordering Agency/Facility/Political Subdivision, etc. and Address

4. Purchase Order/Requisition Numbers

5. Contact (individual placing order)

6. Delivery Location

7. Delivery Instructions

8. Contractor’s Part Number

9. Stock Number

10. Manufacturer

11. Description

12. Unit of Measure

13. List Price (unit)

14. Net Price (unit)

15. In the event the Contractor utilizes Resellers under this Contract, Contractor must provide on the landing page of its dedicated NYS website, a link to each Reseller’s website. All Resellers must provide a dedicated NYS website that mirrors that of the Contractor as set forth above.

3.19 Accessibility of Web-Based Information and Applications Policy

Contractor is solely responsible for administration, content, intellectual property rights and all materials at

Contractor’s website. Contractor is solely responsible for its actions and those of its agents, employees, resellers, Subcontractors or assigns, and agrees that neither Contractor nor any of the foregoing has any http://www.sfs.ny.gov/ http://www.osc.state.ny.us/agencies/guide/MyWebHelp/

GROUP 39000 – INDUSTRIAL AND COMMERCIAL SUPPLIES AND EQUIPMENT (Statewide) PAGE 19 authority to act or speak on behalf of the State. As applicable, Contractor agrees to comply with the Office of Information Technology Services policy NYS-P08-005 Accessibility of Web-Based Information and Applications, as may be amended, the stated purpose of which is to make State Agency web-based intranet and internet information accessible for persons with disabilities.

Any web-based information and applications development, or programming delivered pursuant to the Contract or procurement, will comply with New York State Enterprise IT Policy NYS-P08-005, Accessibility of Web- Based Information and Applications as such policy may be amended, modified or superseded, which requires that State Agency web-based information and applications are accessible to persons with disabilities. Web-based information and applications must conform to New York State Enterprise IT Policy NYS-P08-005.

Quality assurance testing may be conducted by the State and the results of such testing, if performed, must be satisfactory to the State before web-based information and applications will be considered a qualified deliverable under the Contract or procurement.

3.20 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.