745-56-25-050.pdf

CLA 7480 (Div. 50)

North Dakota Department of Transportation

INVITATION TO BID

BID RESPONSE

Please submit your bid response on the attached forms in conformance with the instructions and specifications in the NDAC 04-12-01 – 04-12-16. One copy of your bid response must be returned to the North Dakota Department of Transportation (NDDOT) prior to the time and date specified for the bid opening. Bid responses received after the time and day specified for the bid opening will be rejected. Mark envelope with word “BID” and the opening time and date. If your bid response is accepted by NDDOT, then your bid response will constitute a binding contract.

CONTRACT

This contract is made and entered into by and between NDDOT for the state of North Dakota (hereinafter state) and

Vendor Name Vendor Address

(hereinafter vendor). In consideration of and for the acceptance by the state of the offer made by the vendor pursuant to the bid response, the vendor agrees and promises to sell, furnish, and deliver to the state, at the time, places, and prices specified in the bid response, all goods, merchandise, supplies, commodities, equipment, or other items contained in the bid response and for which the vendor has been awarded this contract by the state. The vendor shall fully perform this contract in accordance with the terms and conditions contained in the bid response including all specifications, rules, or regulations mentioned therein, and shall comply with all applicable provisions of the NDAC 04-12-01 – 04-12-16 promulgated by the State Purchasing Division; such manual being made a part of this contract by reference. The Risk Management Appendix and Appendices A and E of the Title VI Assurances, attached, are hereby incorporated into and made a part of this agreement.

The following must be completed by the vendor; failure to do so may result in the rejection of the vendors bid proposal.

Vendor Name

Mailing Address

Telephone Number Fax Number E-mail Address

Name & Title (Type or Print)

Signature

Date

FOR ND DEPARTMENT OF TRANSPORTATION USE ONLY Accepted by the state according to provisions of award.

Authorized Signature Date

Recommended for approval Date Approximate contract amount

Bid Number: 745-56-25-050 Bid Opening Date & Time: 04/03/2025 @ 2:00PM CT

Items: Joint Sealant - Polymer Buyer: Jalen Sprecher

Bid Mailing Address: 608 E Boulevard Avenue Telephone Number: 701-328-4413

City, State, Zip: Bismarck, ND 58505 Email: jsprecher@nd.gov

Contract Period: 04/10/2025 TO 03/31/2026 Date Prepared: 03/25/2025

To be signed by Owner; Partner; Corp. Pres., Vice Pres., or other authorized Corp. Officer or bid may be rejected. (if signed by other authorized Corp.

Officer, please attach copy of Power of Attorney or other documentation showing authority to sign.)

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION

APPENDIX A OF THE TITLE VI ASSURANCES

During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the Contractor) agrees as follows:

1. Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, the Federal Highway Administration, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

2. Non-discrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.

3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor's obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.

4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the

Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the Federal Highway Administration to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the Recipient or the Federal Highway Administration as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Nondiscrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to:

a. withholding payments to the Contractor under the contract until the Contractor complies; and/or

b. cancelling, terminating, or suspending a contract, in whole or in part.

6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the Recipient or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION

APPENDIX E OF THE TITLE VI ASSURANCES

During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the Contractor) agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:

Pertinent Non-Discrimination Authorities:

• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.

• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);

• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);

• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27;

• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);

• Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);

• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);

• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38;

• The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);

• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures non-discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;

• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);

• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).

ITB #745-46-25-050; Joint Sealant

MAILING INSTRUCTIONS

Mail only one completed and signed request for bid document per envelope, unless instructed otherwise. Request for bid documents not signed or received after the date and time specified in the request for bid will be rejected.

BID IS: SEALED NOT SEALED

Address the envelope containing your response in the following manner:

BID NUMBER – 745-56-25-050

BID OPENING DATE/TIME – April 3rd, 2024; 2:00pm Central

N. D. DEPT. OF TRANSPORTATION

PROCUREMENT SECTION

608 E BOULEVARD AVE

BISMARCK ND 58505-0700

BIDDERS INSTRUCTIONS

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

2. Assistance to Bidders with a Disability. Bidders with a disability and/or language assistance, contact Civil

Rights Division, NDDOT, 701-328-2978 or civilrights@nd.gov or TTY 711, as soon as possible so that reasonable accommodations can be made. Additionally, the Request for Reasonable Accommodations form (SFN 60135) can be accessed at the following NDDOT website location:

http://www.dot.nd.gov/forms/sfn60135.pdf.

3. Award. Award will be made to a responsive, responsible bidder with the lowest price considering conformity with specifications, terms of delivery, quality, and serviceability. NDDOT reserves the right to consider bids varying in minor respects from any specific requirements herein, but judged to meet the intent of this request.

Bidders interested only in the total low bid for all items are to state ‘all or nothing’ on their bid response. Award will be made as follows:

• Split award per item.

4. 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

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

• Preference must first be given to bids submitted by resident North Dakota vendors.

• If a tie remains, preference is given to approved vendors on the Bidders List.

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

6. Bid Bond. Waived in this instance: however, bidder(s) failing to enter into a contract with this office, upon notification of award, may be subject to removal from the bidder’s list.

7. Bid Held Firm. Bids are not awarded at the bid opening. Bid responses will be firm for 30 days, unless stated otherwise.

8. Bid Opening. All sealed bids received by the NDDOT Procurement Office will be opened and read at 608 East

Boulevard Avenue, Bismarck, North Dakota, at the time specified in the solicitation. Interested parties are invited to attend the bid opening.

http://www.legis.nd.gov/information/acdata/pdf/4-12-11.pdf mailto:civilrights@nd.gov http://www.dot.nd.gov/forms/sfn60135.pdf http://www.legis.nd.gov/cencode/T44C08.pdf https://www.nd.gov/omb/agency/procurement/reciprocal-preference

9. Bid Summary. Interested parties may contact the Procurement Officer to obtain a summary of all bid responses received and the award. When bids are issued using the State’s electronic bidding system, the bid summary will be posted and available for download from: https://www.nd.gov/omb/vendor.

Bid summaries will be mailed to those bidders who supply a self-addressed, stamped envelope with their bid response. A copy of the bid summary may also be obtained by visiting the NDDOT Procurement Office during normal working hours.

10. Bidder Checklist. HAVE YOU REMEMBERED TO:

• Review all instructions, terms and conditions, and specifications to ensure your bid response complies?

• Prepare your price in the specified unit of measure, F.O.B. Destination, Freight Prepaid to the delivery location listed on the cover sheet?

• Indicate whether you can meet the delivery date indicated on the cover sheet?

• Sign your bid response on the cover sheet?

• Initial all changes and corrections?

• Submit any required samples or enclosures, if applicable?

• Mark the envelope as indicated above?

• Review and complete all requirements contained in this solicitation to ensure compliance.

11. Clarifications, Bid Changes and Questions Deadline. The Procurement Officer is the point of contact. Any irregularities, lack of clarity, requested bid changes and all questions regarding this bid and the procurement process must be addressed to the Procurement Officer referenced on the first page of this document not later than end of business April 1st, 2025. (Contact information is indicated on cover page). If a bid amendment is required, it will generally be issued after this date.

The bidder is cautioned that the requirement of this solicitation can be altered only by written amendments and that verbal communications from whatever source are of no effect.

12. Corrections. The bidder’s authorized representative must initial any corrections and alterations (i.e. erasures, whiteouts, correction tape, etc.) made to the bid response. Those bid responses with corrections and alterations that are not initialed are subject to confirmation by the Procurement Officer.

13. Definitions.

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

• Bid summary - a summary of all bid responses received by the NDDOT Procurement Office.

• Bid response - the executed document submitted by a bidder in response to a solicitation.

• Commodities – all property, including equipment, supplies, materials, printing, insurance, and the lease of equipment.

• Contract - a deliberate written agreement between two or more competent persons to perform specific act or acts.

• Contractor - any person or firm having a contract with a governmental body.

• N.D.A.C. – North Dakota Administrative Code, rules with the force and effect of law.

• N.D.C.C. – North Dakota Century Code, state laws.

• Solicitation - the process of notifying prospective bidders that the State wishes to receive bids for furnishing goods or services.

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

https://www.nd.gov/omb/vendor http://www.legis.nd.gov/cencode/t54c44-4.pdf

14. Email & Facsimile Bids. Sealed bids are required; therefore, bids cannot be submitted by email or fax to the

Procurement Officer. Bid responses emailed or faxed may be rejected as non-responsive. Bids may be emailed or faxed to a third party who will put it in a properly-addressed envelope and deliver it to the NDDOT Procurement Office before the date and time specified in the solicitation. Late Bid Responses will be rejected.

Submit in Person, by Mail or Delivery Service Bidders may submit Bid Response in a sealed envelope or package to the following address. Bidders may email Bid Responses to a third party to place in a sealed envelope and deliver by the Bid Response deadline.

Contact the Procurement Officer to confirm receipt.

Bid #: 745-56-25-050 Bid Title: Joint Sealant - Polymer ATTN: Jalen Sprecher

N.D. DEPT. OF TRANSPORTATION

FINANCIAL MANAGEMENT, PROCUREMENT

608 EAST BOULEVARD AVENUE

BISMARCK, ND 58505-0700

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

15. Upload Response Through the State Procurement Online System (SPO Online). Bidders may electronically submit Bid Responses through the State Procurement Online system (SPO Online) by the Bid Response Closing Deadline.

A. This solicitation is posted on SPO Online at: https://www.nd.gov/omb/vendor B. Click on “Bidding Opportunities.” Go to “Recent Solicitations” and find this solicitation.

C. Use “Upload Response” to upload a maximum of five (5), clearly labeled documents before the deadline for receipt of proposals in the Bid Response closing deadline.

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

E. 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.

F. 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.

16. Freight/F.O.B. Destination. Freight and transportation charges are to be included in the price of the products, unless otherwise specified in the solicitation. (F.O.B. - Free On Board).

17. Indemnification. Bidders must review the attached Risk Management Appendix for indemnification and insurance requirements. The indemnification and insurance provisions are incorporated and made part of this solicitation and the resultant final contract. Objections to any of the provisions of the indemnification and insurance requirements must be made in writing to the attention of the Procurement Officer by the time and date set for receipt of questions. No alteration of these provisions will be permitted without prior written approval from the Purchasing Agency or Entity in consultation with the North Dakota Risk Management Division. Upon receipt of the Notice of Award, the successful bidder must obtain the required insurance coverage and provide the Procurement Officer with proof of coverage prior to contract approval. The coverage must be satisfactory to the Purchasing Agency or Entity, in consultation with the North Dakota Risk Management Division. A bidder’s failure to provide evidence of insurance coverage is a material breach and grounds for withdrawal of the award or termination of the contract.

https://www.nd.gov/omb/vendor mailto:infospo@nd.gov mailto:infospo@nd.gov https://www.nd.gov/omb/vendor/bidder-resources

18. Late Bids. It is the bidder’s responsibility to ensure that a bid response is physically deposited with the NDDOT

Procurement Office prior to the date and time specified for the opening. Late bids will be rejected, regardless of the degree of lateness, unless the delay is due to the error of the Purchasing Agency and discovered before the selection of the successful bidder.

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

20. Multiple Bid(s). Bidders may submit more than one bid response(s) for the item(s) specified in the solicitation.

Each bid submitted must comply in all aspects with the bid requirements and these instructions.

21. Negotiation. NDDOT reserves the right to negotiate with the successful bidder to ensure the best possible consideration is afforded to all concerned.

22. 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.

23. Open Records Requests. Bid responses are exempt records until the date and time of the bid opening. After the bid 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.

24. Packaging. All shipments are to be packaged according to accepted commercial practices to avoid damage in shipment.

25. Performance Bond. Successful bidders will not be required to furnish a performance bond; however, failure to perform satisfactorily will result in the immediate termination of the contract(s) and bidders may be subject to removal from the bidder’s list.

26. Preparation of Bid. Bids will be accepted on NDDOT forms only. If the document is located on the State

Procurement Office website, then bidder is to download the document and type or write their responses as indicated by the bid document. Alteration of the bid document may be cause for bid rejection. Bidders are cautioned to examine specifications and all instructions. Failure to do so will be at the bidder’s risk.

27. Pricing. Unit prices are to be stated in United States currency and based on the unit of measurement specified in the solicitation, F.O.B. Destination, to the NDDOT delivery locations specified herein.

In the event of mathematical differences between the unit price and extended total, the unit price will prevail.

28. Protests. Protests of the solicitation must be received by the Procurement Officer within seven days before the bid closing 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. § 4-12-14.)

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

29. 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 may be rejected if:

• The bid response is not legible.

• The bid response is not completed as requested.

• The bid response is faxed to the procurement office.

• The bid response is not responsive to the specifications or other requirements of the solicitation.

• The bid response is received after the time and date specified.

• The bidder has not met Vendor Registration requirements or is suspended or debarred.

• The bid document has been altered by the bidder.

• The bidder is determined to be not responsible (N.D.A.C. 4-12-11-04).

If all bids are rejected, the Procurement Officer will send written notice to bidders, including the reason all bids were rejected.

30. Signature. The bid must be signed manually in ink. The name and title of the person signing the bid response must be typed or printed above the signature. The bid must be signed by Owner, Partner, Corp. Pres., Vice Pres., or other authorized Corp. Officer or the bid may be rejected. If signed by other authorized Corp.

Officer or representative, please attach a letter signed by the Owner, Partner, Corp. Pres., or Vice Pres.

indicating the individual has authority to enter into a contract on behalf of the company (or a Power of Attorney).

31. Specifications, Brand Name or Equivalent. Unless otherwise indicated in the detailed specifications of this solicitation, the use of a specific brand name or make/model is for illustrative purposes only, and the State will consider equivalent products. If a commodity or service put forth by a bidder is rejected as not being equivalent, the Procurement Officer will notify the bidder of the rejection.

32. 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 closing deadline, so the Procurement Officer can determine whether the specifications need to be amended.

33. Supplemental Terms and Conditions. Bids including supplemental terms and conditions will be accepted, but supplemental conditions that conflict with any conditions contained in this ITB or that diminish the State's rights will be considered null and void. The State is not responsible for identifying conflicting supplemental terms and conditions before issuing a contract award.

After award of contract:

a) If a conflict arises between a supplemental term or condition included in the bid and a term or condition of the ITB, the term or condition of the ITB will prevail, and,

b) If the State’s rights would be diminished as a result of application of a supplemental term or condition included in the bid, the supplemental term or condition will be considered null and void.

Changes, modifications, additions, or alterations to the bid document could be cause for rejection of the submitted bid at the sole discretion of the NDDOT. Contact the Procurement Officer in writing prior to the deadline for clarifications.

34. Taxes. The State does not pay sales tax or federal excise tax. The state sales tax exemption number is E-

2001. The federal tax-free transaction number is 45-70-0010K. The Purchasing Agency will furnish a tax-exempt certificate upon request.

35. Vendor Registration. Bids will be accepted from bidders who are not currently Approved Bidders for the State of North Dakota; however, the successful bidder may be required to become approved prior to award, in accordance with N.D.C.C. 54-44.4-09. To become an Approved Bidder, you must: 1) register with the North Dakota Secretary of State (fees apply), and 2) submit a completed Bidder List Application to the ND State Procurement Office. Registration instructions and forms are available on-line at: www.nd.gov/spo/vendor.

Contact the ND State Procurement Office at 701-328-2683 or infospo@nd.gov for assistance.

Placement on the bidders list does not guarantee a bidder will receive notice of every formal solicitation.

Bidders must maintain current information by submitting a Notice of Change form to the State Procurement Office (Fax 701-328-1615). Visit the website for forms: www.nd.gov/spo/vendor.

36. Withdrawal or changes to a bid response prior to the bid opening date and time. A bidder may withdraw or make a change to his bid response prior to the bid opening date and time. The request to make a change or withdraw must be in writing by a representative of the firm. The request to withdraw or change must be signed by the bidder or his designated representatives.

37. Withdrawals after the bid opening date and time. After the bid opening, no changes may be made to the bid response. The bidder may make a written request to withdraw the bid response, subject to approval by the NDDOT Procurement Office. Vendors continually withdrawing bids after the bid opening may be removed from the Vendor Database.

GENERAL CONTRACT TERMS AND CONDITIONS

1. Affirmative Action. The contractor will take affirmative action in complying with all Federal and State requirements concerning fair employment and employment of individuals with disabilities, and concerning the treatment of all employees without regard to discrimination by reason of race, color, religion, sex, national origin, or disability.

2. Alternative Dispute Resolution – Jury Trial. By entering into this contract, State does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. State does not waive any right to a jury trial.

3. Applicable Law and Venue. Any dispute arising out of this agreement will be resolved under the laws of the State of North Dakota.

4. Attorney Fees. In the event a lawsuit is instituted by State to obtain performance due under this contract, and

State is the prevailing party, contractor shall, except when prohibited by N.D.C.C. § 28-26-04, pay State’s reasonable attorney fees and costs in connection with the lawsuit.

5. Billing and Payment Procedures. Purchase orders will be issued by NDDOT District personnel to the awarded contractor.

Invoices are to be submitted as indicated on the purchase orders unless otherwise instructed. Failure to submit correct invoices to the appropriate NDDOT office may delay contractor payment.

Payment will normally be made within thirty days after delivery and acceptance of commodities or services under this contract and receipt of a correct invoice. All invoice and payment inquiries must be directed to the purchasing agency.

6. Binding Contract. The acceptance of a bid response in writing by the purchasing agency constitutes a contract between the bidder and the State. Written acceptance from the purchasing agency may be made by execution of a contract, purchase order, or order using a state purchasing card. Any oral agreement or arrangement by a bidder with a State employee or purchasing agency will have no force or effect unless reduced to writing.

http://www.nd.gov/spo/vendor mailto:infospo@nd.gov/spo

7. Compliance with Public Records Laws. Contractor Under the North Dakota public records law and subject to the Confidentiality clause of this contract, certain records may be open to the public upon request. Public records may include: (a) records State receives from contractor under this contract, (b) records obtained by either Party under this contract, and (c) records generated by either party under this contract. Contractor agrees to contact State immediately upon receiving a request for information under the public records law and to comply with State’s instructions on how to respond to such request.

8. Confidentiality. Contractor shall not use or disclose any information it receives from State under this contract that State has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this contract or as authorized in advance by State. State shall not disclose any information it receives from contractor that contractor has previously identified as confidential and that State determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of State and contractor to maintain confidentiality of information under this section continues beyond the term of this contract.

9. Nondiscrimination and Compliance with Laws. The contractor agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility, and civil rights.

(See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women. The contractor agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. The contractor shall have and keep current at all times during the term of this contract all licenses and permits required by law.

The contractor is prohibited from boycotting Israel for the duration of this contract. (See N.D.C.C. § 54-44.4-15.)

The contractor represents that it does not and will not engage in a boycotting Israel during the term of this contract. If the State receives evidence that the contractor boycotts Israel, the State shall determine whether the company boycotts Israel. The foregoing does not apply to contracts with a total value of less than $100,000 or if the contractor has fewer than ten full-time employees.

The contractor’s failure to comply with this section may be deemed a material breach by the contractor entitling the State to terminate in accordance with the Termination for Cause section of this contract.

10. Contract Amendments, Unanticipated Amendment. After a binding contract has been entered into, no changes (i.e. additions, substitutions, subcontracting or a price adjustment) may be made, unless prior approval has been obtained from the purchasing agency and Procurement Officer. 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 due to legitimate, unforeseen circumstances. (N.D.A.C. ch. 4-12-13)

11. Contract Price Adjustment. The Contract Unit Prices shall be firm for the twelve (12) months of the contract period. On an annual basis, all unit prices may be subject to price adjustment (increase / decrease). The request for a price adjustment shall be submitted to the Procurement Office at least forty-five (45) days before the scheduled contract expiration date and must include justification for the proposed change. The Procurement Officer will respond as follows:

1. The request may be granted,

2. The contract may be cancelled and solicitation may be re-advertised, or

3. The contract may be continued without change.

If a price increase is approved by the NDDOT, the date the increase will be effective along with the new unit prices will be included in an amendment document. Approval of any price increase renews the twelve-month firm price period.

The State shall also be advised of and receive the benefit of any price decrease. The same notification and review process will apply to a decrease in cost.

http://www.legis.nd.gov/cencode/t44.html http://www.legis.nd.gov/information/acdata/pdf/4-12-13.pdf

12. Contract Term and Renewal Option. The NDDOT will enter into a contract with an effective date beginning April 10, 2025, and ending March 31, 2026, inclusive. This contract may be renewed upon satisfactory completion of the initial contract term. The NDDOT reserves the right to execute up to two options to renew this contract for a period of twelve (12) months each, not to exceed thirty-six (36) months total. Renewals will be documented by amendment.

The NDDOT reserves the right to renegotiate price and terms provided that such negotiated price and terms fall within the original scope of work for this bid. Negotiations may be conducted annually or at such times that additional and unexpected services falling within the scope of the contract may occur. Such changes will be documented by amendment to the contract.

13. Contract Termination.

a. Termination by Mutual Agreement. This contract may be terminated by mutual consent of both parties, executed in writing.

b. Early Termination in the Public Interest. The State is entering into the contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies and Courts. If this contract ceases to further the public policy of the State of North Dakota, State, in its sole discretion, by written notice to the contractor, may terminate this contract in whole or in part.

c. Termination for Lack of Funding or Authority. The State may terminate this contract effective upon delivery of written notice to the contractor, or on any later date stated in the notice, under any of the following conditions:

i. If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term. The contract may be modified by agreement of the parties in writing to accommodate a reduction in funds.

ii. If federal or state regulations or guidelines are modified, changed or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this contract or are no longer eligible for the funding proposed for payments authorized by this contract.

iii. If any license or certificate required by law or regulation to be held by the contractor to provide the services required by the contract is for any reason denied, revoked or not renewed.

Any such termination of this contract under this subsection, shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination.

d. Termination for Cause. The State by written notice to the contractor may terminate the whole or any part of this contract:

i. If the contractor fails to provide services required by this contract within the time specified herein or any extension thereof; or

ii. If the contractor fails to perform any of the other provisions of this contract, or so fails to pursue the work as to endanger performance of this contract in accordance with its terms.

e. Termination, Deliveries. If the contract is terminated for any reason, the contractor is responsible for delivery of all commodities and services ordered prior to the termination, unless those orders had been canceled by the Purchasing Agency or Entity.

The rights and remedies of State provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this contract.

14. Inspection and Investigations. 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 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.

15. Effectiveness of Contract. This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

16. Force Majeure. Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God, or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

17. Materials and Workmanship. All material and workmanship shall be subject to inspection and testing at the discretion of the purchasing agency either at the point of manufacturer, place of storage, or upon receipt.

18. Merger and Modification, Conflict in Documents. This contract, including the following documents, constitutes the entire agreement between the parties. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented, or amended, in any manner, except by written agreement signed by both parties. Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this contract as may be amended;

b. State’s Solicitation Amendments related to this Invitation for Bid;

c. State’s Invitation for Bid;

d. Contractor’s Bid Response submitted in response to this Invitation for Bid.

e. All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms or conditions contained in those agreements.

f. Terms and conditions contained within any documents furnished by the contractor, including packing slips, shall not supersede the terms and conditions of this contract.

19. Receiving. Deliveries must arrive at the designated destination(s) during normal business hours unless other shipping/receiving instructions are issued by NDDOT personnel. The contractor shall contact the NDDOT to schedule delivery dates and times at least 24 hours in advance of delivery.

All NDDOT offices will be closed in recognition of State holidays. Any day declared a holiday by the President or Governor will also be recognized by office closure.

20. 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 received, and the bidder may be debarred or suspended from the bidders list. (N.D.A.C. § 4-12-11-04)

21. 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.

22. Severability. If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if this Contract did not contain that term.

23. State Audit. All records, regardless of physical form, and the accounting practices and procedures of the contractor relevant to this contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. Contractor shall maintain all of these records for at least three (3) years following completion of this contract and be able to provide them upon reasonable notice. State, State Auditor, or Auditor’s designee shall provide reasonable notice to the contractor prior to conducting examination.

24. Subcontracts, Assignment. The contractor shall not subcontract, assign or transfer the contractor’s interests or duties under this contract without express written consent of the purchasing agency. However, the contractor may enter into subcontracts provided that any such subcontractor acknowledges the binding nature of this contract and incorporates this contract, including any attachments. The contractor is solely responsible for the performance of any subcontractor. The contractor shall not have the authority to contract for or incur obligations on behalf of the State.

25. Successors in Interest. The provisions of this agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns.

26. Works for Hire. Contractor acknowledges that all work(s) under this contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to State all rights and interests the contractor may have in the work(s) it prepares under this contract, including any right to derivative use of the work(s). All software and related materials developed by the contractor in performance of this contract for the State shall be the sole property of the State, and the contractor hereby assigns and transfers all its right, title, and interest therein to State. Contractor shall execute all necessary documents to enable State to protect State’s intellectual property rights under this section.

27. Work Product. All work product, equipment or materials created for State or purchased by State under this contract belong to the State and must be immediately delivered to the State at State’s request upon termination of this Contract.

28. Service Representative. The contractor must provide a dedicated customer service representative to provide support for this contract. The contractor shall notify the Procurement Officer in the event the representative is changed.

NAME: ______________________________________________________________________________

(Name of person servicing this contract)

BUSINESS NAME: _____________________________________________________________________

MAILING ADDRESS: ___________________________________________________________________

CITY & STATE: _______________________ ZIP CODE: ________________________________

PHONE NUMBER: _______________________ TOLL FREE: _______________________________

FAX NUMBER: _______________________ E-MAIL: ___________________________________

BIDDER:_______________________________ ITB # 745-56-24-050, Joint Sealant

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION

SPECIFICATIONS

FOR POLYMER MODIFIED JOINT SEALANT

General. This sealant shall be a self-leveling, low modulus, hot applied sealant consisting of petropolymers that is used to seal cracks in asphaltic pavements and joints in concrete pavements. The sealant shall remain pliable at temperatures to minus 400 F (-40 C) and meet the requirements of ASTM D 6690, Type IV, (AASHTO M 324, Type IV) with the following modifications:

Requirements. Sealant shall meet the requirements of ASTM D 6690, Type IV, (AASHTO M 324, Type IV) with the following modifications:

Penetration at 770 F = 120 - 150 Bond at -200 F., 3 cycles, 200% extension = Pass The sealant shall weigh not less than 9.00 pounds/gallon nor more than 9.35 pounds/gallon.

Acceptance. The Department will accept the sealant based on the manufacturer's certification of the supplied product. The Department reserves the right to select a sample from each lot of material supplied. If any of the sealant fails to meet the properties specified, but the quality deviation is not serious enough to materially affect the work quality, payment for the sealant will be reduced at the following rate up to 20% of the invoice price per ton.

Price Reduction Criteria.

Reduce payment for the crack sealer by 20% if the bond or flow fails.

The payment for resilience shall be reduced by the following schedule:

Percent Recovery Deduct Factor

50 - 59.9% 10% < 50% 20%

The payment for penetration shall be reduced by the following schedule:

Variation of Penetration * Deduct Factor

0.1 - 5% 5%

5.1 - 10% 10%

10.1 - 15% 15% > 15% 20%

*Use the average of the original and check sample to determine the percentage of variation.

If the material is found to be unacceptable, the sealant shall be replaced at no cost to the NDDOT.

Packaging. The materials shall be packaged in individual containers which melt when placed in the crack sealant machine (such as PolyskinTM or an approved equal). Each container shall be clearly marked with the name of the manufacturer, trade name of the sealant, the type of sealant, the weight, the manufacturer’s batch number, the pouring temperature, and the safe heating temperature. The material shall be divided into blocks, and each block shall be individually packaged. Boxes containing one block shall not weigh more than 40 pounds (18.14 kg) per box. Boxes containing two blocks shall not exceed 65 pounds (29 kg) in weight per box.

BIDDER:_______________________________ ITB # 745-56-24-050, Joint Sealant

NORTH DAKOTA DEPARTMENT OF TRANSPORTATION

BID SHEET

FOR

JOINT SEALING MATERIAL - POLYMER

ITEM 1: POLYMER:

MANUFACTURER _____________________________BRAND NAME __________________________

F.O.B. Delivery Point

Bid Price Per Ton

Bismarck, ND 58504

Valley City, ND 58072

Devils Lake, ND 58301

Minot, ND 58701

Dickinson, ND 58601

Grand Forks, ND 58208

Williston, ND 58802

Fargo, ND 58103

Total

TRUCKLOAD QUANTITY (MINIMUM ORDER) EQUALS…