SC055_Contract_JeepSweep_Execut.pdf

State of North Dakota

INVITATION FOR BID (IFB) – MASTER TEMPLATE

OMB (1/2020)

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: ND State Procurement Office, Office of Management and Budget PROCUREMENT OFFICER: Jamie Bostyan EMAIL: jbostyan@nd.gov

PHONE: (701) 328-4912

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 RESPONSE 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 Proposal Receipt 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 RFP:

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.

DATE ISSUED 02-28-2020 BID NUMBER 110.7-20-016

BID TITLE

Parking Lot Painting and Striping

COMMODITY CODE(S)

913-36; 912-76; 913-75,94;

929-67

CONTRACT NUMBER 055 CONTRACT PERIOD

March 15, 2020 – March 31, BID RESPONSE

QUESTION DEADLINE

03-06-2020 @ 12:00 p.m. CT

BID RESPONSE

CLOSING DEADLINE

03-19-2020 @ 2:00 p.m. CT mailto:jbostyan@nd.gov http://www.legis.nd.gov/information/acdata/pdf/4-12-05.pdf?20130319105642 https://apps.nd.gov/csd/spo/services/bidder/main.htm

SECTION 1

BIDDERS INSTRUCTIONS

1. Bidder Checklist. Have you remembered to?

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

b. Prepare your 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 Purchasing Agency by the Bid Response Closing Deadline. Call 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. FM: Facility Management.

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

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

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

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

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

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

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

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

n. SPO Online: a procurement information website maintained by 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).

Bidders are required to complete the Bidders List application process and comply with Secretary of State registration requirements prior to the proposal submission deadline. Bids received from bidders that are not approved vendors on the Bidders List will 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 RFP 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: 913-36; 912-76; 913-75, 94; 929-67.

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://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 closing deadline. Bidders assume the risk of the delivery method selected. Late Bid Responses will be rejected.

Sealed bids are required; therefore, bids cannot be submitted by email or fax to the Procurement Officer. Bidders may email or fax bids to a third party to place in a sealed envelope and deliver by the Bid Response closing deadline.

Submit in Person, By Mail or Delivery Service Submit Bid Response in a sealed envelope or package to the following address. Contact the Procurement Officer to confirm receipt. If mailing or physically delivering your response, include one (1) copy of your Bid Response on a USB Flash Drive or other storage device. Do not convert the Excel spreadsheet into a PDF file.

IFB #: 110.7-20-016

IFB Title: Parking Lot Painting and Striping ATTN: Jamie Bostyan Office of Management and Budget ND State Procurement Office 14th Floor Capitol Tower 600 E Boulevard Ave, Dept 012 Bismarck, ND 58505-0310

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.

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 deadline for receipt of proposals in the Bid Response closing deadline.

4. Offerors must upload their Technical Proposal and Cost Proposal in separate files.

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 Purchasing Agency. 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 closing 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 closing deadline will be publicly opened by the Purchasing Agency at the mailing/delivery location indicated in this solicitation. Interested parties are invited to attend the Bid Response opening.

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

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. 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.

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 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. 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 closing 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 closing deadline. Before the Bid

Response closing 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 opening date and time. After Bid

Response closing 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.

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

• All or none.

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 closing deadline. Late Bid Responses 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. (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

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. Project. The North Dakota OMB-Facilities Management (FM) seeks a bid for completing parking lot painting/striping of the ND State Capitol Grounds. In addition, FM seeks painting/striping bids for each individual parking lot and other locations. Prep work will be included in each bid and the requirements are explained in the Conditions Section. The Criteria Section explains the painting/striping to be completed. For other Ordering Agencies, CONTRACTOR will use the agreed upon pricing structure set forth in Section 5 – Bid Response Form.

4. Minimum Qualifications. Potential bidders must include a minimum of two (2) references in the Bid Response with contact information. One (1) reference must include a project of a similar size/scope of work as represented in this bid.

5. Conditions. CONTRACTOR shall provide all labor and equipment necessary to perform prep work and painting/striping. Prep work will involve sweeping entire lot, sidewalks, curbsides, entrances, etc. The contractor shall remove all debris from the property. CONTRACTOR will coordinate with Facilities Manager to schedule work.

Work must be performed after 6:00 PM CT on weekdays, Monday thru Friday, for the following parking lots:

Category 5 – Official Lot, Category 7 – ADA Lot, Category 10 – Liberty Memorial Lot, Category 11 – Heritage Center Lot, Category 12 – SOB Area, Category 14 – J-Wing East Lot, and Category 16 – DOT Lot. Work may be performed during working hours on weekdays, Monday thru Friday, upon mutually-agreed scheduling and coordination with FM for the following parking lots: Category 2 – North West Lot, Category 3 – North East Lot, Category 4 – North Lot, Category 6 – Legislative Lot, Category 8 – Dock Lot, Category 9 – Visitor Lot, Category 13

– J-Wing West Lot, Category 15 – State Fleet Lot, and Category 17 – Pedestrian & Traffic Control Areas. Work performed on weekends must be coordinated with the Facilities Manager to schedule around events.

6. Criteria. Work specifications for contract with the FM is to perform parking lot painting and striping at ND State

Capitol Grounds, Bismarck, ND. The paint used and painting performed shall match the existing color scheme and meet North Dakota Department of Transportation (NDDOT) specifications for quality and dimensions. These specifications are listed in Section 762 of “Standard Specifications for Road and Bridge Construction” located at the following link:

https://www.dot.nd.gov/divisions/environmental/docs/supspecs/fullsupplementalspecswith10012019.pdf. of their “Standard Specifications for Road and Bridge Construction.” The paint used shall meet specifications and be included as one of the preapproved paint lots by NDDOT as shown on the following website:

https://www.dot.nd.gov/divisions/materials/materials.htm. CONTRACTOR shall provide proof of preapproved paint lots prior to commencing work.

The painting/striping listed below must be performed according to current paint schemes:

a. Traffic Control: Paint/Repaint - Stop Bars, DOT Directional Arrows, 8” Channel Lines, and Double Yellow

Traffic Divider Lanes

b. Crosswalks: Paint/Repaint - Lines or Blocks

c. ADA Spots: Paint/Repaint in OSHA Blue – Unloading Zone, Handicap Stencil, and any curb striping

d. Directional Arrows: Paint/Repaint – Stencil

e. Crosshatch Lines: Paint/Repaint – Lines

A diagram of the all parking lots are shown in Attachment 1 – ND Capitol Grounds. The parking lots to be painted/striped and included in the ND Capitol Grounds total bid as well as by individual bid are as follows:

a. North West Lot – (280 parking stalls)

b. North East Lot – (124 parking stalls) http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/cencode/t39c04-2.pdf https://www.dot.nd.gov/divisions/environmental/docs/supspecs/fullsupplementalspecswith10012019.pdf https://www.dot.nd.gov/divisions/materials/materials.htm

c. North Lot – (148 parking stalls)

d. Official Lot – (64 parking stalls)

e. Legislative Lot – (181 numbered parking stalls, 6 Handicap stalls & 8 white motorcycle stalls with yellow crosshatch lines at end)

f. ADA Lot – (15 Handicap stalls)

g. Dock Lot – (3 parking stalls)

h. Visitor Lot – (87 parking stalls, 6 Handicap stalls & 3 No Parking stalls)

i. Liberty Memorial Lot – (53 parking stalls & 4 Handicap stalls)

j. Heritage Center Lot – (123 parking stalls & 8 Handicap stalls)

k. SOB Area – (6 Handicap stalls & 4 crosswalks): West Lot – (40 parking stalls) - SOB South Lot – (18 parking stalls) - SOB North Lot – (120 parking stalls)

l. J-Wing West Lot – (119 parking stalls & 8 Handicap stalls)

m. J-Wing East Lot – (196 parking stalls & 15 directional arrows)

n. State Fleet Lot – (94 parking stalls)

o. DOT Lot – (373 parking stalls & 10 Handicap stalls)

p. Pedestrian & Traffic Control Areas – (38 border line crosswalks, 13 block style crosswalks, 9 traffic control with flow at intersections & 10 traffic stop bars approx. 2’ x 12’)

7. Standards. It is expected that all tasks will be performed as indicated. If CONTRACTOR does not complete the tasks as indicated, FM reserves the right to discontinue service and search for another provider without penalty. All work shall be completed in a professional manner. Unprofessional or unfinished work will not be allowed and shall be grounds for termination of the Contract. Non-compliance with itemized criteria shall also constitute grounds for termination of the Contract.

8. Safety Requirements. CONTRACTOR shall keep informed of and comply with all federal, state, and local laws, regulations, and other legal requirements governing the safety, health, sanitation, and performance of the Contract in general. In addition, CONTRACTOR shall provide, inspect and maintain all safeguards, and safety devices, protective equipment, safety programs, and other needed actions that are necessary to execute this Contract.

9. 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 March, 15, 2020 or its Effective Date, and ends on

March 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 twelve (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 four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each.

10. 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.

11. 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)

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

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.

13. Contract Sales Reports. The CONTRACTOR must maintain records of sales under the contract and furnish volume of sales information to the Purchasing Agency. The CONTRACTOR must furnish reports listing all purchases made by all government entities using this contract. The report must be furnished within fourteen (14) days after the request by the Procurement Officer.

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

14. Order Confirmation. The CONTRACTOR must confirm the receipt of orders by communicating with the Ordering

Agency within one (1) working day of the order placement.

15. Delivery Time Required. The CONTRACTOR must meet the specified delivery requirements. If delivery cannot be made within the specified time, the CONTRACTOR must notify the Ordering Agency in writing of the delay and the approximate date delivery may be expected.

• Delivery must be made upon an agreed upon time between the Ordering Agency and the CONTRACTOR when the Ordering Agency issues a contract or purchase order or uses a purchasing card.

16. 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 location within the Bismarck, ND surrounding area. All freight and handling are 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.

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.

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 shall be firm for the first Contract period. After the firm-fixed period, the CONTRACTOR may submit a request for a price increase to the Procurement Officer.

Requests for a price increase must include a copy of the manufacturer's official notice or other evidence that the increase or decrease is applicable to all customers. The State reserves the right to accept or reject, within 30 days, or cancel the contract. The CONTRACTOR shall immediately inform the State of any price decreases.

Price changes will become effective upon execution of a contract amendment. All orders placed are to be billed at prices in effect at the time of the order, not the date the shipment is made.

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.

Upon request, CONTRACTOR shall provide the Purchasing Agency 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 prior to the mutually agreed upon scheduled time for work. 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 Purchasing Agency 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.

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

SECTION 4

RISK MANAGEMENT REQUIREMENTS

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

Contractor agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. The legal defense provided by Contractor to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. Contractor also agrees to reimburse the State for all costs, expenses and attorneys' fees incurred if the State prevails in an action against Contractor in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this agreement.

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

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

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

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

3) Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this contract.

4) Employer’s liability or “stop gap” insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

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.

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 duty to defend, indemnify, and hold harmless the State under this agreement shall not be limited by the insurance required in this agreement.

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

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

6) The Contractor shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

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

8) Contractor shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. Contractor shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

ND State Procurement Office, Office of Management and Budget

Jamie Bostyan

ND State Procurement Officer

4-10-2020

SECTION 6

CONTRACT TERMS AND CONDITIONS

1. Scope of Work. CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the commodities and services described in this solicitation.

2. Compensation.

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed the amount indicated on the Bid Response form (Contractual Amount). The Contractual Amount is firm for the duration of the Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract, unless amended, regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

b. Payment

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

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

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

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

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

4. Payment of Taxes by State. STATE is not responsible for and will not pay local, state, or federal taxes. STATE will furnish certificates of exemption upon request by the CONTRACTOR.

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

6. 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

STATE is entering into this 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 CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority

STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) 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.

2) If federal or state laws or rules are modified or interpreted in 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.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If 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.

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.

7. 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.

8. 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 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 CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and 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.

9. Work Product. All work product, equipment or materials created for STATE or purchased by STATE under this

Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

10. Notice. All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties identified herein. Notice provided under this provision does not meet the notice requirements for monetary claims against the STATE found at N.D.C.C.

§ 32-12.2-04.

11. 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.

12. Compliance with Public Records Laws. CONTRACTOR understands that, in accordance with this Contract’s Confidentiality clause, STATE must disclose to the public upon request any records it receives from CONTRACTOR.

CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law.

CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to the request.

http://www.legis.nd.gov/cencode/t44.html

13. Independent Entity. CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

14. Assignment and Subcontracts. CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.

CONTRACTOR may not enter into subcontracts or joint ventures for the completion of the work requested in this Contract.

15. Spoliation – Preservation of Evidence. CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident. 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.

16. 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…