US+Foods+Final+Contract.pdf

STATE OF NORTH DAKOTA

INVITATION FOR BID (IFB)

OMB (7/2020)

PROCUREMENT OFFICER

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

PURCHASING AGENCY: State Procurement Office PROCUREMENT OFFICER: Chad Keech EMAIL: ckeech@nd.gov

PHONE: 701-328-2767

TTY Users call: 7-1-1

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

BID QUESTION DEADLINE

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

Email is the preferred method of submission with the IFB number cited in the email subject line. Responses to questions will be distributed as a solicitation amendment, unless the question can be answered by referring the bidder to a specific section of the IFB.

STATE PROCUREMENT WEBSITE (SPO ONLINE)

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

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

Select Recent Solicitations, the Recent solicitations are listed by close date.

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

SECTION 1

BIDDERS INSTRUCTIONS

DATE ISSUED 10/21/2020 BID NUMBER 110.7-20-100

BID TITLE Commercial Food Products COMMODITY

CODE(S) 390, 385

BID QUESTION

DEADLINE

10/28/2020 @ 12:00 PM

CT CONTRACT NUMBER 053

BID RESPONSE

DEADLINE

11/05/2020 @ 12:00 PM

CT CONTRACT PERIOD 1/01/2021 – 12/31/2021

http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf?20130319105642 https://apps.nd.gov/csd/spo/services/bidder/main.htm

1. Bidder Checklist. Have you remembered to?

a. Ensure your bid response complies with all instructions, terms and conditions, delivery requirements, and specifications.

b. Prepare your price in the specified unit of measure, FOB: Destination to the shipping location.

c. Sign your bid response, and initial any changes or corrections

d. Ensure your Bid Response is received by the Procurement Officer by the Bid Response Deadline. Called to confirm receipt.

e. If using a delivery service, check tracking to ensure the Bid Response will be delivered on time. Contact the

Procurement Officer as soon as possible in the event of delays due to weather, etc.

f. Submit any required samples or documents.

2. Definitions.

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

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

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

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

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

f. Purchasing Agency: the entity on which the purchase is being made on behalf of.

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

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

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

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

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

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

m. SPO Online: a procurement information website maintained by OMB State Procurement Office pursuant to

N.D.C.C. § 54-44.4-14.

3. Bidders List and Secretary of State Registration Requirements. Bidders must comply with requirements related for Office of Management and Budget (OMB) Bidders List application and Secretary of State registration [N.D.C.C.

§ 54-44.4-09]. Bidders Lists are used to notify vendors when solicitations are issued on the State Procurement Online system (SPO Online).

Bids will be accepted from bidders that are not on the Bidders List. The successful bidder must complete the Bidders List application process and comply with Secretary of State registration requirements within 60 calendar days from the date a notice of intent to award is issued. If the successful bidder does not register within this time, its bid may be rejected.

Vendor Registration Information Websites:

Secretary of State Registration. Complete the online Secretary of State registration process (fees apply):

https://firststop.sos.nd.gov/. Select “Start a Business.” You will need to create a username and password. Contact the Secretary of State, Business Services at 701-328-2904 or sosbir@nd.gov for assistance.

Bidders List Application Process. Complete the online Bidders List application process:

https://www.nd.gov/omb/vendor/bidders-list-application-and-maintenance. Contact the OMB State Procurement Office for assistance at 701-328-2773 or email infospo@nd.gov.

Bidders List Used for this Solicitation. Notices related to this IFB will be sent to the Bidders List for the needed commodity or service and other known potential offerors. The following commodity codes were used for the Bidders List for this solicitation: Visit the SPO Online system to select and insert all applicable 5-digit commodity codes.

Vendor Payment Registration. The successful bidder may be required to register as a new supplier to receive payment from the State. See the Office of Management and Budget website for more information:

https://www.nd.gov/omb/vendor/vendor-payments http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.nd.gov/sos/businessserv/registrations/vendor.html https://firststop.sos.nd.gov/ mailto:sosbir@nd.gov https://www.nd.gov/omb/vendor/bidders-list-application-and-maintenance mailto:infospo@nd.gov https://apps.nd.gov/csd/spo/services/bidder/main.htm https://apps.nd.gov/csd/spo/services/bidder/main.htm https://www.nd.gov/omb/vendor/vendor-payments

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

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

Bidders MUST electronically submit Bid Responses through the State Procurement Online system (SPO Online) by the Bid Response Deadline.

1. This solicitation is posted on SPO Online at: https://www.nd.gov/omb/vendor

2. Click on “Bidding Opportunities.” Go to “Recent Solicitations” and find this solicitation.

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

4. Offerors must upload their bid response as requested in the bid response section of this IFB.

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

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

7. Bidders will receive an email confirmation from infospo@nd.gov that the upload response was received including the “File Description” for the uploaded files. Review this email to ensure all files were successfully uploaded. If you do not receive an email confirmation, the upload was not successful, and you will need to upload the files again. If you do not receive an email confirmation after the reattempt, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701-328-2740.

Visit https://www.nd.gov/omb/vendor/bidder-resources for the SPO Electronic Response Job Aid which describes how to submit an electronic response.

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

6. Assistance to Bidders with a Disability. Bidders with a disability that need an accommodation must contact the

Procurement Officer prior to Bid Response deadline so reasonable accommodation can be made.

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

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

8. Bid Response Opening. All Bid Responses received by the Bid Response deadline will not be publicly opened by the Procurement Officer at the mailing/delivery location indicated in this solicitation. Interested parties are invited to attend the Bid Response opening.

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

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

https://www.nd.gov/omb/vendor.

10. Bidders List - Suspension and Debarment. Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation. A vendor may be removed from the Bidders List if a solicitation notice is undeliverable. Vendors may be suspended or debarred from the Bidders List for cause. (N.D.A.C. ch. 4-12-05)

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

12. Multiple Bid Responses. Bidders may submit more than one Bid Response in response to this solicitation. Each

Bid Response submitted must be prepared in accordance with the Bid Response instructions and meet the stated requirements.

13. Open Records Requests. Bid Responses are exempt records until the date and time of the Bid Response opening. After the Bid Response opening, all Bid Responses are subject to North Dakota open records laws.

Interested parties may contact the Procurement Officer to request information related to this solicitation.

https://www.nd.gov/omb/vendor mailto:infospo@nd.gov mailto:infospo@nd.gov https://www.nd.gov/omb/vendor/bidder-resources http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf https://www.nd.gov/omb/vendor http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf

14. Packaging. All packaging must be strong and secure in accordance with accepted commercial practices.

15. Protests. Protests of the solicitation must be received by the Procurement Officer within seven days before the Bid

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

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

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

17. Specifications, Compliance. All Bid Responses must comply with the stated specifications, and the successful

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

18. Withdrawal or changes to a Bid Response prior to the Bid Response deadline. Before the Bid Response deadline, the Bidder’s authorized representative may withdraw or change a Bid Response by making a written request to the Procurement Officer.

19. Withdrawals or changes to a Bid Response after the Bid Response deadline. After the Bid Response deadline, no changes may be made to Bid Responses, except as provided in N.D.A.C. ch. 4-12-10. The Bidder’s authorized representative may make a written request to withdraw the Bid Response.

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

SECTION 2

EVALUATION AND AWARD

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

Multiple awards to more than one bidder. Three (3) Vendors will be awarded contracts. Commercial food products costs are always fluctuating and with the limited budget that DOCR and other entities have they need to have the ability to buy their food at the best price possible every time. The multiple award will enable the State to buy products at the lowest possible price from all three vendors. It is in the best interest of the State to award to multiple bidders.

2. Award – Preference Laws. If Bid Responses are received from nonresident (out-of-state) Bidders, the Procurement Officer will apply reciprocal preference, if applicable, in accordance with N.D.C.C. §44-08-01. See OMB Guidelines on North Dakota Preference Laws.

3. Award – Tie Bid Response Preference. After applying any reciprocal preference, if a tie occurs between two or more Bidders with equal Bid Response prices or offerors with identical evaluation scores:

a. Preference must first be given to Bid Responses submitted by resident North Dakota vendors. (N.D.C.C. § 44-

08-01.1)

b. If a tie remains, preference is given to approved vendors on the Bidders List. (N.D.C.C. § 54-44.4-09(4))

c. If a tie still remains, award shall be made in accordance with N.D.A.C. § 4-12-11-05.

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

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

6. Minor Informalities. The State reserves the right to waive minor informalities in Bid Responses. Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from the Bid Response document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions that can be waived or corrected without prejudice to other Bidders. (N.D.A.C. ch. 4-12-10)

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

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

9. Rejection. The State reserves the right to reject any and all Bid Responses in whole or in part. The Procurement

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

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

b. the Bid Response is determined to be late;

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

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

e. the Bid Response is not legible.

If all Bid Responses are rejected, the Procurement Officer will send written notice to Bidders, including the reason all Bid Responses were rejected. (N.D.A.C. § 4-12-11-09) http://www.legis.nd.gov/cencode/T44C08.pdf https://www.nd.gov/omb/agency/procurement/reciprocal-preference http://www.legis.nd.gov/cencode/T44C08.pdf http://www.legis.nd.gov/cencode/T44C08.pdf http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-08.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-08.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-10.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-10.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf

SECTION 3

SPECIAL TERMS AND CONDITIONS

1. State Contract. The contract resulting from this solicitation will be a State Contract made available to North Dakota state agencies and institutions.

2. Cooperative Purchasing. This contract is a cooperative purchasing contract established pursuant to N.D.C.C § 54-44.4-13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C § 39-04.2, and the International Peace Garden (hereafter known as “Ordering Agencies”). Participation in this open-ended contract is not mandated; therefore, the estimated volume of this contract is not known. CONTRACTOR may contact the Procurement Officer for assistance in determining whether an entity is eligible to purchase under this contract.

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

a. Contract Period. This Contract term (Term) begins on 1/01/2021 or its Effective Date, and ends on 12/31/2021

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

c. Extension Option. State reserves the right to extend this Contract for an additional period of time, not to exceed

12 months, beyond the current termination date of this contract.

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

STATE reserves the right to execute up to 4 options to renew this Contract under the same terms and conditions for a period of 12 months each.

e. Renegotiation Option. In view of the fact that it is unknown how long the products and services will be employed by STATE and that STATE will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial Term of this Contract including any extensions and renewals, STATE and Contractor may renegotiate this Contract upon mutual agreement of the parties.

4. Billing Address. After delivery of commodities or services under contract, the CONTRACTOR must submit a correct invoice. Payment will be made after inspection and acceptance.

• Invoices must be addressed to the Ordering Agency that places an order under this contract. All invoice and payment inquiries must be directed to the Ordering Agency. Any problems related to late payment may be escalated to the Procurement Officer.

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

6. Contract Estimated Volume. The volume of this contract is estimated. Estimates are not to be considered as either a minimum or maximum, but rather an estimate based upon past and anticipated usage. The CONTRACTOR or CONTRACTORs will be required to furnish actual requirements upon receipt of an order. This contract will not include items of a similar nature, which must be bought for emergency use.

7. Contract Sales Reports. The CONTRACTOR must maintain records of sales under the contract and furnish volume of sales information to the Procurement Officer. The CONTRACTOR must furnish reports listing all purchases made by all government entities using this contract. The report must be furnished within Insert Number days after the request by the Procurement Officer.

The report format will be determined by mutual agreement of the CONTRACTOR and the Procurement Officer.

http://www.legis.nd.gov/cencode/t39c04-2.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-13.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-13.pdf

8. Ordering Website. CONTRACTOR will be required to establish a secure website for online ordering under this contract. The ordering website must be limited to commodities offered under this contract. The

9. Order Confirmation. The CONTRACTOR must confirm the receipt of orders by communicating with the Ordering Agency within 1 working days of the order placement.

10. Training. CONTRACTOR will provide training at no expense to the State at requested locations.

11. Delivery Location - F.O.B. Point and Freight. Delivery, freight and passage of title shall under this contract shall be as follows:

• F.O.B. Destination to any North Dakota location. All freight and handling is to be included in the item price.

Title will pass to Ordering Agency upon delivery to the specified destination. The CONTRACTOR will file any claims.

12. Sample Submission Requirement. Bidders must provide representative samples of the commodity being offered at no cost to the State to ensure compliance with the specification. All samples must be marked to show the Bidder's name, the bid number and title, and the bid item number. Upon request of the Bidder, samples not destroyed by examination or testing will be returned at the expense of the Bidder. If the Bidder does not request return of the sample within 7 days after notice of award, the sample will become property of the State (N.D.A.C. § 4- 12-08-11).

• The successful Bidder maybe requested to send samples to evaluate comparable products before an award is made.

13. New Equipment and Materials. Unless otherwise indicated in the detailed specifications of this solicitation, all equipment and materials shall be new and under current production for use in the United States.

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

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

US Foods requires its product vendors to guarantee that all products made for, supplied to, sold through, or delivered on the order of US Foods will be (i) not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, the Food Additives Amendment, and all other revisions and amendments thereto (the “FDA Act”), all regulations issued under the FDA Act and any other applicable federal, state, or local laws, rules or regulations, and (ii) not an article of food, drug, device, or cosmetic which may not, under the provisions of Sections 404 or 505 of the FDA Act, be introduced into interstate commerce. Each of the warranties and the rights of indemnification granted to US Foods by its vendors and described above extend to both US Foods as a distributor and you, as a customer.

http://www.legis.nd.gov/information/acdata/pdf/4-12-08.pdf http://www.legis.nd.gov/information/acdata/pdf/4-12-08.pdf

Further, US Foods warrants that it possesses the expertise and all of the necessary resources with respect to warehousing, order taking, procurement, transportation, accounting/payment, logistical support, personnel and facilities required to provide the level of service as agreed under this Agreement. Further, US Foods covenants and warrants that the services and activities as set forth in this Agreement will be performed by trained and qualified personnel, and in a professional and workmanlike manner. US Foods agrees that any services performed by US Foods to or for the benefits of the District shall be performed in a professional and workmanlike manner in conformity with all applicable federal, states and local laws, rules and regulations and in accordance with the commercially reasonable industry standards.

THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION

CONSTITUTE THE ONLY REPRESENTATIONS AND WARRANTIES MADE BY ANY PARTY WITH

RESPECT TO, OR ARISING IN CONNECTION WITH, THIS AGREEMENT OR THE PRODUCTS. EXCEPT

AS EXPRESSLY SET FORTH IN THIS SECTION, EACH PARTY DISCLAIMS ANY AND ALL EXPRESS

AND IMPLIED WARRANTIES (WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE),

INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A

PARTICULAR PURPOSE.

14. Invoicing.

Orders will be placed by state agencies and institutions.

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

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

• Pricing, Firm-Fixed with Adjustment Provisions. Pricing under this contract shall be as follows: The total bid price is to include all discounts and deductions, and is to be less federal and state taxes, for which exemption certificates will be furnished upon request. Pricing shall be firm for the first 30 days of the contract period. After the 30 day firm period, contractors may make changes to the price list.

The percentage of fixed fee markup will remain the same during the term of the contract.

The State of North Dakota currently utilizes the Premier/US Foods program. The Premier/US Foods program offers a Cost-Plus Fixed Markup Program.

A complete explanation of the Premier Group Purchasing and Distribution Program is attached, Premier US Foods Cost Plus Markup Program.

Premier/US Foods offer a Cost-Plus Markup program. We do not guarantee fixed pricing or cost, however we can comply with the 30 day request stated above. Pricing is based on the volatility and composition of each product category positively influencing product cost.

The foodservice distribution program for Premier was awarded to US Foods in July 1, 2010 and remains in effect until June 30, 2020. US Foods was recently awarded a new 5-year sole source agreement effective July 1, 2020 to June 30, 2025. To meet the requirements in the RFP for The State of North Dakota, Premier will authorize US Foods to offer the program specifics detailed in this proposal for the term requested, including any extensions that might go into effect. In addition, US Foods will commit to all terms, conditions and program parameters answered in this proposal for the full term specified in this bid. If future contract parameters are confirmed, the Premier representatives will present these details, modifications or options to The State of North Dakota as they are introduced to our membership. The State of North Dakota will have the opportunity to evaluate options and determine if taking advantage of these options would be beneficial to The State of North Dakota.

“Cost” is defined as distributor’s invoice from the supplier2, plus inbound freight, minus customer allowances or any Premier contracted manufacturer agreement (CMA) deviation or off-invoice allowance. “Markup” is defined as the difference between “cost” as defined above and the selling price to the State of North Dakota. The markup shall remain firm for the duration of the agreement regardless of distributor invoice or contracted price.

The State of North Dakota qualifies for Premier’s A Program based on volume and proximity of delivery locations. All facilities will qualify to use the same markup schedule as presented by category.

The cornerstone of the Premier group purchasing program is the contracted manufacturer agreement (CMA) providing the most comprehensive foodservice contract portfolio in the industry. Members who maximize their utilization of CMAs realize generous cost savings on their food spend, year after year. The majority of the financial value of the Premier program is vested in the CMA. Contracted manufacturer agreements are negotiated to maximize the benefits for all members and then managed with careful oversight and price monitoring throughout the term of the agreement (36 months for manufacturer agreements; 60 months for distribution1). As part of the cost-plus, Premier with US Foods will provide price protection, predictability, and cost-transparency. Detailed reporting will be provided per request or at minimum quarterly, allowing the State of North Dakota to identify allowable and unallowable cost and the amount of all such discounts, rebates and credits presented for payment to each purchasing member.

Premier utilizes multiple price strategies based on the volatility and composition of each product category – all items either have a fixed price or are market-priced (which would vary by week by geographic market). Items with fixed pricing are locked in for a stated period of time (annually, semi-annually, quarterly or monthly), and pricing is established by either a deviation or a formula. Market-priced products are generally in highly volatile categories where it would disadvantageous for Premier to attempt to lock in a price; however, most products include an allowance that is taken off the distributor’s price at the time of invoicing to the member. All requests for price increases are subject to review and approval by Premier and must be accompanied by supporting data that outlines the changes in market conditions to warrant such an increase. No price increase request will be automatically approved. Premier also monitors current market conditions in order to ensure the ongoing competitiveness of the portfolio. This can include working with suppliers to decrease pricing during a contract term.

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

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

19. Background Checks for CONTRACTOR Personnel. The Purchasing Agency requires all background checks to be performed on all CONTRACTOR Personnel who will access the facility.

CONTRACTOR shall provide the Procurement Officer with the names of all individuals that will have access to the premises along with background checks for each individual for approval by the Purchasing Agency. This information must be received prior to the CONTRACTOR Personnel attempting to access the facility, and the CONTRACTOR must receive confirmation of approval. CONTRACTOR will be responsible for notifying the Procurement Officer or designee if any CONTRACTOR Personnel changes and provide background checks for any new CONTRACTOR Personnel. Under no circumstance shall any CONTRACTOR Personnel have access to the facility without a background check and approval by the Purchasing Agency. All background check and supporting documentation shall be provided through the North Dakota Bureau of Criminal Investigation. The cost of the background checks will be the CONTRACTOR’s responsibility. At any time during the contract period, the

Purchasing Agency may request the CONTRACTOR to provide updated background checks of any CONTRACTOR Personnel that have access to the premises.

Premier and US Foods have read and understand SECTION 3 SPECIAL TERMS AND CONDITIONS.

SECTION 4

RISK MANAGEMENT REQUIREMENTS

1. Indemnification.

US Foods hereby agrees to indemnify, defend and hold harmless the State of North Dakota and its successors and assigns, (collectively, “Indemnitees”) from and against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorneys’ fees) and judgments (collectively, “Loss”) arising out of: (a) any damage or defect to any products that is caused by US Foods while such products were in the care, custody or control of USF, (b) any acts or omissions of USF and its employees and agents acting under its control or supervision, and (c) any breach of this Agreement or proposal by US Foods provided, however, that there shall be no right to indemnification hereunder for any Loss arising out of the acts or omissions of any Indemnitee.

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

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

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the Contractor. The amount of any deductible or self retention is subject to approval by the State.

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

3) The insurance required in this agreement, through a policy or endorsement, shall include a provision that the policy and endorsements may not be canceled or modified without thirty (30) days’ prior written notice to the undersigned State representative.

4) The Contractor shall furnish a certificate of insurance to the undersigned State representative within 30 days of the commencement of this agreement.

5) Failure to provide insurance as required in this agreement is a material breach of contract entitling State to terminate this agreement immediately.

With regards to the US Foods’ insurance requirements, US Foods shall provide certificates evidencing that the coverage and limits as outlined herein are in force and will remain in force, and should any of the described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions.

Premier and US Foods have read and understand SECTION 4 RISK MANAGEMENT REQUIREMENTS.

SECTION 5

Bid Specifications

Section 1 Definitions The following definitions apply to this IFB.

Food Products may include, but are not limited to:

• Bakery ingredients

• Bottled beverages and juices

• Commercially prepared foods of all types

• Canned products, condiments

• Dairy –Cheese, Butter

• Dried food products, pasta

• Frozen food products

• Seasonings

• Various food service menu products

• Fresh or Specialty Meats,

• Fresh fruits & vegetables

• Flour

Items that are permissive to buy off contract:

• Dairy, such as liquid milk products

• Coffee or Coffee Service

• Fresh Bread

• Condiments- dressings, ketchup, mayo ect.

1.02 Cost Definitions

A. Estimated Annual Usage: (Est. Use :) refers to the estimated number of cases of this item purchased annually.

The estimated annual usage will be used to compute the total price of that line item cost offered.

B. Defined Cost: The total of the Vendor’s invoice offered price per case, combined with factors that will include inbound freight, minus customer allowance and the other off invoice allowances. This will be used to determine the invoiced “State Price” per selling unit. All item prices shall be limited to two decimal points.

Example $20.25 is responsive; $20.254 will not be considered responsive.

C. Selling Unit: Unit of Case or Pail or Carton or Bag or a variation of the shipping pack, which is determined by the total of the units of measure defined in the food product description and offered for sale. For example Corn, Canned, 6/#10 cans, Case is the selling unit. Example, Sugar Packets, 2000 Packets/Case; Case is the selling unit. Flour, White, 25# Bag; Bag is the selling unit.

1.03 Product Definitions

a) Grade: (Grd.) Refers to USDA grading of produce, meats, dairy, and eggs. Grade A is the highest grade available for produce, and dairy. Grade AA is the highest grade available for fresh eggs. U.S. No. 1 is the highest grade for dried beans and peas. Highest grade is required for this contract.

b) Standard Unit Of Measure: May be the same as Pack/Size which refers to institutional case quantity and packaging. (e.g., 6/28 Ct = 6 packages, each having a count of 28, for a total quantity of 168 count.) In some cases, to ease the bidding process, the food item has been broken down to the pound or ounce as the unit of measure.

c) Alternate Unit of Measure: Any deviation from the Standard Unit of Measure as set forth in the Market Basket

Cost Response Form, Part One.

1.04 Commercial Food Products Market Basket List:

The Market Basket is comprised of 110 items that represent significant spend on the current State contract. The Market Basket prices will be a fixed fee comprised of the suppliers defined cost. The Commercial Food Market Basket List may be known as MBL.

1.05 Commercial Food Products Market Basket List (MBL) detailed specifications defined:

a) If “acceptable brands," ”only,” or "no substitutes" requirements are set forth, the product must be provided as specified.

b) If a “brand” is “referenced”, any offerings must be equal to or better than the referenced brand. State will be the sole judge in determining “equal” products.

C) If no acceptable “brand” is noted in the cost response specifications for a specific food product; then “private label “food product of the highest grade may be offered.

1.06 Commercial Food Products Mark Up Product List (MUL):

Vendors may supply other food products in addition to items in the Market Basket. Bidders are instructed to supply a complete offering of their products, without State’s listed exclusions. Additional items shall include a mark-up percentage from supplier’s cost, including freight and other rebates or discounts to arrive at invoiced State Price. The Commercial Food Products Mark-Up Product List may vary as Vendor’s commercial food product distribution array evolves and may be known as MUL.

1.07 Audit of Sell Price:

The state will periodically conduct an audit of supplier’s for the period of time chosen by the State to review for accuracy. The limited audit scope shall not exceed 15 invoices in any 90 day period of this agreement. Vendors will provide all invoices, upon request, in a timely manner for review by State as an electronic file, or on -site audit at Vendor’s office. If any discrepancies are found in the limited scope audit, the State will request the scope include all suppliers’ invoices related to this state contract purchases.

Premier’s Foodservice Program can support the requirement for audits through Premier’s group purchasing agreement with US Foods within the following parameters:

• Parties shall use Premier Pricing Audit Tool audit documentation whenever applicable.

• The Member may audit any monthly period within 12 months of the specific audit period with at least a 10-day notice containing list of items to be audited.

• The audit shall not exceed twenty-five (25) items.

• The audit shall be conducted during regular business hours and in such a manner as not to unduly interfere with operations.

• The Member guarantees the confidentiality of all information provided and any third-party consultant auditor will have to sign a confidentiality agreement.

• Upon reasonable notice, but no more frequently than once every six (6) months, Member may examine documents appropriate to verify Cost and mark-up under this agreement.

• Refunds will be an offset from amounts due to Seller beyond the agreed upon credit terms.

Section 2 Scope of Services

2.01 Back Ground

The primary goal of this IFB is to economically and efficiently purchase commercial foods, in accordance with established nutritional, health, and safety standards by the USDA and U.S. Department of Education, to be delivered as required. Primary purchasing agencies (users) of this state contract will be the Department of Corrections and Rehabilitation (DOCR) who has responsibility for the direct care of clients and residents residing in 24/7 direct care facilities operated by the State Penitentiary, Division of Youth Corrections, James River Correctional Facility. The State Hospital, Jamestown, Life Skills & Transition Center, Grafton and Veterans Nursing Home, Lisbon are additional primary users with direct care facilities.

The Vendors are expected to continually apprise the State of opportunities to reduce cost and maintain high standards commercial food quality. The State may choose to use any part of a proposed order entry or inventory management system.

Premier and US Food have read and understand.

2.02 Deliverables, Special Requirements

a) High Quality of Food Products: Quality of appearance, flavor, and nutrition must meet or exceed the minimum requirements. The Bidder should bid and provide the fancy or top of the line “private label”.

b) Food Product Delivered: All food product delivered to the State for this contract must meet or exceed minimum standards as specified by State and proposed by Bidder.

c) Shipment Inspections: Representatives from the State or purchasing agencies may inspect shipments. Any product that fails to meet specifications may be rejected and returned for credit. State reserves the right to use or consume a delivered commodity that fails to meet specifications, other than health standards, if it is deemed necessary to do so. Acceptance of a portion of a substandard delivery shall not affect the right of the State to reject any other portion.

Premier and US Food have read and understand.

2.03 Commercial Food Product Brands

a) If a manufacturer’s name or brand is specified, it is intended to be for conveyance of quality, type or for identification; therefore a product bid as “Equal” must be comparable (equal or superior) to the item specified as determined by the State. If no acceptable brand or referenced brand is noted, product(s) of the highest quality are to be bid and are subject to the state or purchasing agency approval. “Private Labels” are acceptable unless otherwise noted. However, if bidding a private label, please also note manufacturer’s product and product # being represented. A certification letter or product sample evaluation for quality may be requested.

b) Each Vendor must note any items that are non-stock or are “special order” on the MBL Cost Response. There shall be no extra charge for the buying and storing of special order items. It is understood that purchasing agencies are not limited to ordering only those items contained in the Commercial Food Market Basket, and may request food products to accommodate holiday or special menus, menu changes, and new menus.

c) State requires that all food products provided must have a shelf life that comply with Industry Standards for product “use by” dates. When available, products should clearly show the use-by date, date of production, date of processing, sell by date, best if used by date, or similar markings. State will not accept repackaged or unmarked items.

All products delivered to the State shall be clearly labeled to indicate:

• manufacturer

• product origin

• net weight

• ingredients

• Federal, State, and local labeling requirements

Today’s food service industry requires you to be “in-the-know” about product nutritionals and allergens. US Foods provides you with industry leading “easy-access” to these important product details to help you effectively manage menu changes and product selection in your operation. Your staff, dietitians and buyers will continue to appreciate the ease in which they can filter product searches to find the exact products they are seeking to meet your nutritional, allergen and marketing claim targets in seconds.

FoodServiceDirectOrder.com (FSDO), the Web Ordering Site the State of North Dakota currently uses, provides nutritional information and expanded product information 24 hours per day, 7 days per week. US Foods has a state-of-the-art search engine that can search any aspect of a product, including the above and:

• Allergens

• Halal

• Kosher

• Recyclable

• No Added Hormones or Synthetic Hormones

• Organic

• Additional Marketing Claims

2.04 Product Evaluation & Samples

a) Product evaluation may take place after bids are opened, prior to contract award, or at any time during the contract. Food product evaluations may be conducted for all equivalent food products bid. Please note that any item bid that varies in any way from the specifications found in the “Unit of Measure”, “Item Description” and “Product Specification” columns will be considered as an offer for an “equivalent” food product , therefore is susceptible for product evaluation.

b) During an evaluation, the current approved food product and the evaluated food product is compared side by side for taste, yield, and appearance. For example, in the case of a canned fruit evaluation, the fruit is drained and weighed; the fruit is checked for color, piece integrity, texture, taste and appearance.

Upon request, US Foods is happy to provide a reasonable number of product samples at no charge except for high cost commodities (e.g., boxed beef, shrimp, etc.) which may incur a fee.

Stocked Samples

If you wish to sample a product in stock, notify your Account Executive and order the product from US Foods as you normally would. US Foods asks that you pay special attention during receipt of this product to ensure it is cut and sampled with the decision maker and not inadvertently mixed in will all other normal stock.

Should the product be unacceptable, the Account Executive will issue a credit.

Non-Stocked Samples

If you wish to sample a product not in stock, US Foods will…