Appendix A - Bid Package - Waste Oil.pdf

Invitation for Bid Package

For The

Sale of State Surplus Property

Waste Oil & Antifreeze

Solicitation No. 6100033383

Rev. 12-11-2014 Page 2

PART I

GENERAL INFORMATION

1. PURPOSE:

The Commonwealth of Pennsylvania (Commonwealth), Department of General Services (DGS), is issuing this Invitation for Bids (IFB) to meet the needs of the Commonwealth Agencies for the removal and recycling of waste oil and antifreeze for revenue generated income to the Commonwealth.

2. SUBMISSION OF BIDS:

a. Bids are requested for the item(s) described in the Invitation for Bids and all documents references in the IFB (collectively called the IFB). Bidders must submit their bids through the Commonwealth’s electronic system (SRM).

b. It is the responsibility of each bidder to ensure that its bid is received through the electronic system prior to the date and time set for the opening of bids (“Bid Opening

Time”). No bid shall be considered if it arrives after the Bid Opening Time, regardless of the reason for the late arrival. Bids that are timely received prior to the Bid Opening

Time shall be opened publically in the presence of one or more witnesses at the time and place designated in this IFB for the Bid Opening.

c. Bids must be firm. If a Bid is submitted with conditions or exceptions or not in conformance with the terms and conditions referenced in the IFB, it shall be rejected.

The Bid shall also be rejected if the services offered by the Bidder are not in conformance with the specifications as determined by the Department of General Services.

d. The Bidder, intending to be legally bound hereby, offers and agrees, if this Bid is accepted, to provide the awarded services at the price(s) set forth in this Bid at the time(s) and place(s) specified.

3. QUESTIONS:

Any questions regarding the IFB must be submitted in writing to the email address of the Issuing Officer provided in the solicitation. While there is no set timeline for the submittal of questions, questions received within 48 hours prior to the bid due date and time will be answered at the discretion of the

Commonwealth. All questions received will be answered in writing and such responses shall be posted to eMarketplace as an addendum to the IFB. The Issuing Officer shall not be bound by any verbal information nor shall it be bound by any written information that is not either contained within the IFB for formally issued as an addendum by the Issuing Office. The Issuing Office does not consider questions to be a protest of the specifications or of the solicitation.

4. ADDENDA TO THE IFB

If the Issuing Office deems it necessary to revise any part of this IFB before the bid response date, the

Issuing Office will post an addendum to eMarketplace on its website at www.dgs.state.pa.us. It is the

Bidder’s responsibility to periodically check the website for any new information or addenda to the IFB.

http://www.dgs.state.pa.us/

Rev. 12-11-2014 Page 3

5. BIDDER’S REPRESENTATION AND AUTHORIZATION:

a. Each Bidder, by making its Bid, understands, represents, and acknowledges that:

1) The Bidder has read and understands the terms and conditions of the IFB and the

Bid is made in accordance with those terms and conditions.

2) The item(s) offered in the Bid will be in conformance with the specifications referenced on the IFB without exceptions.

3) The price(s) and amount of the Bid have been arrived at independently and without consultation, communication, or agreement with any other contractor, bidder, or potential bidder.

4) Neither the price(s) nor the amount of the Bid, and neither the approximate price(s) nor the approximate amount of the Bid, have been disclosed to any other firm or person who is a bidder or potential bidder, and they will not be disclosed before Bid opening.

5) No attempt has been made or will be made to induce any firm or person to refrain from bidding on the contract, or to submit a bid higher than the Bid, or to submit any intentionally high or noncompetitive bid or other form of complementary bid.

6) The Bid is made is good faith and not pursuant to any agreement or discussion with, or inducement from, any firm or person to submit a complementary or other noncompetitive bid.

7) To the best of the knowledge of the person signing the Bid for the Bidder, the

Bidder, its affiliates, subsidiaries, officers, directors, and employees are not currently under investigation by any governmental agency and have not in the last four years been convicted or found liable for any act prohibited by State or

Federal law in any jurisdiction, involving conspiracy or collusion with respect to bidding on any public contract, except as disclosed by the Bidder in its Bid.

8) Neither the Bidder, nor any subcontractors, nor any suppliers are under suspension or debarment by the Commonwealth, or any governmental entity instrumentality, or authority, and if the bidder cannot so certify, then it shall submit, along with the Bid, a written explanation of why such certification cannot be made.

9) To the best of the knowledge of the person signing the Bid for the Bidder, and except as otherwise disclosed by the Bidder in its Bid, the Bidder has no outstanding, delinquent obligations to the Commonwealth including, but not limited to, any state tax liability not being contested on appeal or other obligation of the Bidder that is owed to the Commonwealth.

10) The Bidder has not, under separate contract with the Department of General

Services, made any recommendations to the Department of General Services concerning: the IFB, the sale of the supplies described in the IFB, or the market price for the supplies described in the IFB.

Rev. 12-11-2014 Page 4

11) All information provided by, and representations made by, the Bidder in the Bid are material and important and will be relied upon by the Commonwealth in awarding the contract. Any misstatement shall be treated as fraudulent concealment from the Commonwealth of the true facts relating to the submission of the Bid. A misrepresentation shall be punishable under Section 4904 of Title

18 P.C.S.A.

b. Each Bidder, by making its Bid, authorizes all Commonwealth agencies to release to the

Commonwealth information related to liabilities to the Commonwealth including, but not limited to taxes, unemployment compensation, and workers’ compensation liabilities.

c. If an award is made to the Bidder, the Bidder agrees that it tends to be legally bound to the contract which is formed between the Commonwealth and the Bidder.

6. BIDS BY DEPARTMENT OF GENERAL SERVICES EMPLOYEES:

Employees (or their agents) of the Department of General Services are forbidden from purchasing State

Surplus Property, and therefore, any bid proposal submitted by a Department of General Services employee will be rejected.

7. ELECTRONIC VERSION OF THIS IFB:

This IFB is being made available by electronic means. If a Bidder electronically accepts the IFB, the

Bidder acknowledges and accepts full responsibility to ensure that no changes are made to the IFB. In the event of a conflict between a version of the IFB in the Bidder’s possession and the Issuing Office’s version of the IFB, the Issuing Office’s version shall govern.

8. PRICES:

The bid submitted by the successful bidder will be incorporated into any resulting Contract and the Bidder will be required to provide the awarded service(s) at prices quoted in its Bid.

9. MODIFICATION OR WITHDRAWAL OF BID:

a. Bid Modification Prior to Bid Opening. If a Bidder intends to modify its bid after submitting the bid into the Commonwealth’s electronic system (SRM) but prior to Bid

Opening, the Bidder must do so within SRM. Once the Bidder has modified the bid, the bid must be saved and re-submitted in SRM. A failure to re-submit the bid within SRM will result in the bid not being properly submitted and no award can be made as a result of the non-submitted bid.

b. Bid Withdrawal Prior to Bid Opening. If a Bidder intends withdraw its bid after submitting the bid into SRM but prior to Bid Opening, the Bidder must do so within

SRM.

c. Bid Withdrawal After Bid Opening. Bidders are permitted to withdraw erroneous Bids after Bid opening only if the following conditions are met:

1) The Bidder submits a written request for withdrawal.

Rev. 12-11-2014 Page 5

2) The Bidder presents credible evidence with the request that the reason for the lower Bid price was a clerical mistake as opposed to a judgment mistake and was actually due to an unintentional arithmetical error or an unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the Bid.

3) The request for relief and supporting evidence must be received by the Buyer for the Department of General Services referenced on the IFB within three (3) business days after Bid opening, but before award of the contract.

4) The Department of General Services shall not permit a Bid withdrawal if the Bid withdrawal would result in the award of the contract on another Bid of the same

Bidder, its partner, or a corporation or business venture owned by or in which the

Bidder has a substantial interest.

5) If a Bidder is permitted to withdraw its Bid, the Bidder cannot supply any material or labor or perform any subcontract or other work agreement for the awarded contractor, without the written approval of the Department of General

Services.

d. Firm Bid. Except as provided above, a Bid may not be modified, withdrawn, or cancelled by any Bidder for a period of sixty (60) days following the time and date designated for Bid opening, unless otherwise specified by the Bidder in its Bid. If the lowest responsible Bidder, as determined by the Department of General Services, withdraws its Bid prior to the expiration of the award period or fails to comply with the requirements set forth in the IFB including but not limited to any requirement to submit performance security or insurance certificates within the required time period, the Bidder shall be liable to the Commonwealth for all costs and damages associated with the re-award or re-bid including the difference between the Bidder’s price and the actual cost that the Commonwealth pays for the awarded items.

e. Clarification and Additional Information. After the receipt of Bids, the Department of

General Services shall have the right to contact Bidders for the purpose of seeking:

1) Clarification of the Bid which confirms the Department of General Services’ understanding of statements or information in the Bid or;

2) Additional information on the items offered; provided the IFB does not require the rejection of the Bid for failure to include such information.

10. REJECTION OF BIDS:

The Department of General Services reserves the right to reject any and all Bids, to waive technical defects or any informality in Bids, and to accept or reject any part of any Bid if the best interests of the

Commonwealth are thereby served.

11. BID PROTEST PROCEDURES:

a. Who May File the Protest. Any Bidder or prospective bidder who is aggrieved in connection with the IFB or award of the contract solicitation or award of a contract may file a protest. Protests relating to cancellation of invitation for bids and protests relating

Rev. 12-11-2014 Page 6 to the rejection of all bids are not permitted. A Bidder is a person that submits a bid in response to the IFB. A prospective bidder is a person that has not submitted a bid in response to the IFB.

b. Time for Filing.

1) If a protest is submitted by a prospective bidder, the protest must be filed before the bid opening time or proposal receipt date.

2) If a protest is file by a Bidder, the protest must be filed within seven (7) days after the protesting Bidder knew or should have known of the facts giving rise to the protest EXCEPT THAT IN NO EVENT MAY A PROTEST BE FILED

LATER THAN SEVEN (7) DAYS AFTER THE DATE THE CONTRACT OR

PURCHASE ORDER WAS AWARDED. The date of filing is the date of the protest.

3) Untimely protests shall be disregarded.

c. Form of Protest.

1) A protest must be in writing and filed with the agency head (or designee) of the purchasing agency.

2) A protest must state all grounds upon which the protesting party asserts that the solicitation or award was improper. Issues not raised by the protesting party in the protest are deemed waived and may not be raised on appeal.

3) The protesting party may submit with the protest any documents or information deemed relevant.

d. Notice of Protest. If award has been made, the agency head (or designee) shall notify the successful Bidder or contractor of the protest. If the protest is received before award and substantial issues are raised by the protest, all Bidders who appear to have a substantial and reasonable prospect of winning the award shall be notified and may file their agreement/disagreement with the purchasing agency within three (3) days after receipt of notice of the protest.

e. Stay of Procurement. The head of the purchasing agency (or designee) shall immediately decide, upon receipt of the protest, whether or not the solicitation or award shall be stayed, or if the protest is timely received after that award, whether the performance of the contract shall be suspended. The Issuing Office shall not proceed further with the IFB or with the award of the contract, and shall suspend performance of the contract if awarded, unless the head of the purchasing agency makes a written determination that the protest is clearly without merit or that award of the contract/purchase order without delay is necessary to protect the substantial interest of the

Commonwealth.

f. Procedures.

1) Contracting Officer Response. Within fifteen (15) days of the receipt of a protest, the contracting officer may submit a written response to the head of the

Rev. 12-11-2014 Page 7 purchasing agency (or designee). The response may include any documents or information that the contracting officer deems relevant to the protest.

2) Protesting Party Response. With ten (10) days of the date of the contracting officer response, the protesting party may file a written reply.

3) Review. The head or the purchasing agency (or designee) shall:

a) Review the protest and any response or reply.

b) Request and review any additional documents or information he or she deems necessary to render a decision.

c) Give the protesting party and the contracting officer reasonable opportunity to review and address any additional documents or information requested by the agency head.

d) In his or her sole discretion, conduct a hearing.

e) Within sixty (60) days of the receipt of the protest, issue a written determination stating the reasons for the decision.

f) If additional time is required to investigate the protest, information the protesting party of the additional time needed to render a determination and obtain the protesting party’s consent.

4) “Clearly Without Merit” Determinations. If the head of the purchasing agency (or designee) determines, upon receipt, that the protest is clearly without merit and does not stay the procurement, the head of the purchasing agency (or designee) shall immediately issue the decision as required by subparagraph h, below.

g. Settlement. The Issuing Office has the authority to settle and resolve bid protests.

h. Decision. The head of the purchasing agency (or designee) shall promptly, but in no event later than sixty (60) days from the filing of the protest, issue a written decision.

The decision shall:

1) State the reasons for the decision.

2) If the protest is denied, inform the protesting party of its right to file an appeal in

Commonwealth Court within fifteen (15) days of the mailing date of the decision.

3) If it is determined that the solicitation or award was contrary to law, enter an appropriate order.

The agency head (or designee) shall send a copy of the decision to the protesting party and any other person determined by the agency head to be affected by the decision.

Rev. 12-11-2014 Page 8

PART II

SELECTION CRITERIA

1. MANDATORY RESPONSIVENESS REQUIREMENTS:

To be eligible for selection, a bid must be:

a. Timely received from a Bidder;

b. Properly signed by the Bidder.

2. AWARDS:

Unless all Bids are rejected, and except as otherwise provided by law, award will be made, through the issuance of a notice of contract award, to the highest responsible and responsive Bidder(s). Unless otherwise specified, the Department of General Services reserves the right to award by item or on a total

Bid basis, whichever is deemed more advantageous to the Commonwealth. In cases of discrepancies in prices, the unit price will be binding unless the unit price is obviously in error and the extended price is obviously correct, in which case the erroneous unit price will be corrected.

3. METHOD OF AWARD:

If the Issuing Office enters into a contract as a result of this IFB, it will be a multiple award contract containing the terms and conditions set forth in this IFB. Award will be made to the highest responsive and responsible Bidder on a region by region basis. Bidders may be awarded more than one region. The

High Bid (highest purchase price) will be determined by the highest “Price Adjustment Factor” (refer to

Appendix B, Bid Sheet). The awarded Contractor(s) will be required to remove waste oil and antifreeze offered by Commonwealth agencies at the purchase price on the bid sheet submitted to DGS with their original bid.

4. THE BIDS:

All tie Bids will be broken by the Department of General Services.

5. PROMPT PAYMENT DISCOUNTS:

Prompt payment discounts will not be considered in making an award. If prompt payment discounts are offered by any Bidder, however, the Issuing Office will take advantage of such offer.

6. OPTION FOR SEPARATE COMPETITIVE BIDDING PROCEDURE:

The Commonwealth reserves the right to purchase products or services covered under this Contract through a separate competitive bidding procedure, whenever the Commonwealth deems it in the best interest of the Commonwealth. The right will generally be exercised only when a specific need for a large quantity of the product or service exists or when the price offered is significantly lower than the

Contract price.

Rev. 12-11-2014 Page 9

PART III

STATEMENT OF WORK

WASTE OIL AND ANTIFREEZE

1. CONTRACT SCOPE/OVERVIEW:

This Contract (identified here and in the other documents as the “Contract”) will cover the requirements of Commonwealth agencies for removal and recycling of waste oil and antifreeze for revenue generated income to the Commonwealth of Pennsylvania.

2. DEFINITIONS.

a. Waste Oil: Discarded oil from typical garage and facility maintenance operations suitable for recycling/reprocessing. Waste Oil shall not be mixed with other fluids, material or trash, including water.

i. If the Contractor finds foreign fluids or materials mixed, they may reject the pick-up or charge the offending agency for removal of the specific contaminated container.

b. Antifreeze: Discarded Antifreeze from typical garage and facility maintenance operations suitable for recycling/reprocessing. Antifreeze shall not be mixed with other fluids, material or trash, including water.

i. If the Contractor finds foreign fluids or materials mixed, they may reject the pick-up or charge the offending agency for removal of the specific contaminated container.

c. Recycling: Processing waste oil and antifreeze in order to recover a usable product or energy; the use of the waste oil and antifreeze as an effective substitute for commercial products or any process that results in the beneficial use of waste oil and antifreeze.

3. PICK-UP & REMOVAL OF WASTE OIL AND ANTIFREEZE:

The awarded Contractor(s) agrees to purchase and remove/recycle all waste oil and antifreeze offered under this Contract. Contractor shall provide all removal and labor at their own expense, including any transportation and operating costs necessary for the removal and recycling of waste oil and antifreeze from ordering Commonwealth agencies.

a. Notice and Lead-Time: The Contractor will receive notice (via telephone, email or fax) when waste oil and antifreeze is available for removal. Upon notification from an agency, Contractor will schedule the pick-up/removal of the waste oil and antifreeze as soon as possible. The Contractor agrees to remove the waste oil and antifreeze within ten

Rev. 12-11-2014 Page 10

(10) business days or less unless otherwise agreed upon (in writing) with the agency contact person.

b. Pick-up and Removal of Waste Oil and Antifreeze: Upon arriving at the agency location, the Contractor will receive the STD-497 Surplus Property Contract

Receipt/Invoice Form; and if the form is incomplete, the Contractor will complete

Contractor’s Name and Address, Department Location, Date of Pick-Up, Contract

Number, checkbox next to Waste Oil and Antifreeze and Contractor’s Signature.

Contractor will obtain agency contact’s signature and will leave Copies 1 and 2 with the agency contact person. Contractor will retain Copies 3 and 4 of STD-497 Surplus

Property Contract Receipt/Invoice Form.

The Contractor will remove the waste oil and antifreeze from the agency’s tanks or drums. The Contractor will transport the waste oil and antifreeze from the agency location to the Contractor’s processing facility. Note: Contractor will immediately advise the Contracting Officer if any delays in any step of the pick-up/removal occur.

c. Notice to Commonwealth of Pennsylvania: Upon removal of waste oil and antifreeze, Copy 4 (Gold copy) of the STD-497 Surplus Property Contract Receipt/Invoice Form must be returned to the Department of General Services, Bureau of Supplies and Surplus

Operations, State Surplus Property Division, Room G-46, 2221 Forster Street, Harrisburg, PA 17105 with payment. Copy 3 (Pink Copy) is retained by the Contractor.

4. REJECTION OF PICK-UP/REMOVAL:

Before removing the waste oil and antifreeze from the agency location(s), Contractor has the right to inspect container and determine if the load meets the definition of waste oil and antifreeze. If the

Contractor determines that the waste oil and antifreeze tanks or drums contain non-recyclable debris and/or contaminants, Contractor reserves the right to request partial relief from pick-up/removal as detailed in Section 8 of these Contract Terms and Conditions. A request for such relief must be made in writing to the Contracting Officer, must be narrowly tailored, and must include justification explaining the reason(s) for rejection of the container. The Contracting Officer will analyze and approve/disapprove

Contractor’s notification for rejection of referenced container. Corrective action may be taken by the agency in order to receive removal and recycling of the materials. The decision to allow such relief shall be at the sole discretion of the Commonwealth, and may not be challenged or appealed absent bad faith.

Commonwealth of Pennsylvania is not responsible for costs incurred by Contractor.

5. BID SHEET:

The bid sheet information is the Excel spreadsheet (Appendix B of this IFB). For purposes of this IFB, the Department of General Services divided the state of Pennsylvania into four (4) regions and the corresponding counties: Region 1 – Northeastern; Region 2 – Northwestern; Region 3 – Southeastern;

and Region 4 – Southwestern.

Bidders shall complete the Bid Sheet, indicating their Price Factor (Positive or Zero) for waste oil and antifreeze. Bidders are not required to bid on all regions listed. Bidder may bid on an individual region or any combination of regions. However, it shall be understood that Bidders may not bid on portions of a region; and purchase/removal of waste oil and antifreeze must be provided for ALL locations within a selected region.

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a. Bid Sheet Definitions.

1) Purchase Price: The amount paid by the Contractor to the Commonwealth of

Pennsylvania for purchase of waste oil and antifreeze. The purchase price will remain fixed throughout the term of the Contract.

2) Price Adjustment Factor – Positive (+): The amount the Bidder will use to calculate the amount paid (purchase price) to the Commonwealth of

Pennsylvania for waste oil and antifreeze.

3) Price Adjustment Factor – Zero ($0.00): $0.00 – This indicates the Bidder will provide service at No Cost to the Commonwealth of Pennsylvania for waste oil and antifreeze.

4) No Bid: Regions left blank on the Bid Sheet – This indicates that the Bidder does not offer service for waste oil and antifreeze.

6. PAYMENT:

This Contract will be a Revenue Producing Contract. The Commonwealth of Pennsylvania will not pay for waste oil and antifreeze removed or any other fees or charges under this Contract. Charges to the

Commonwealth of Pennsylvania will not be considered, and the bid will be rejected.

Payment shall be submitted within 30 (thirty) calendar days from the date of removal, to the Department of General Services, Bureau of Supplies and Surplus Operations, State Surplus Property Division, Room

G-46, 2221 Forster Street, Harrisburg, PA 17105.

The Department of General Services, Bureau of Supplies and Surplus Operations prefers all Suppliers provide payment via Electronic Funds Transfer. Upon contract issuance, BSSO will supply all awarded

Suppliers with appropriate bank routing information and instructions regarding information to be transmitted by the Supplier to the Office of the Budget for posting against the STD-497, Surplus Property

Contract Receipt/Invoice Form.

Where payment via Electronic Funds Transfer is not possible, payment for purchased waste oil and antifreeze must be made by company check, certified check, bank cashier’s check or money order.

Personal checks or cash are NOT acceptable.

a. Late Payments: After thirty (30) days, unpaid invoices will be subject to a 1-½ % interest charge per month.

b. Example of Payment Determination: An agency requires pick-up/removal of 650 gallons of waste oil and 55 gallons of antifreeze. For this example, the corresponding purchase price for waste oil is $0.949 per gallon and antifreeze is $0.25 per gallon.

Waste Oil: 650 GL X $0.949 = $616.85

Antifreeze: 55 GL X $0.250 = $ 13.75

Total Payment to Commonwealth: $630.60

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7. CONTRACT REPORTING:

Contractor shall be required to maintain and furnish quarterly reports. These quarterly reports must contain, at least, the following information:

a. number of gallons of oils picked up

b. number of gallons of antifreeze picked up

c. price (paid to Commonwealth of Pennsylvania)

d. date of report

This quarterly report shall be sent via electronic mail or USPS mail to:

Department of General Services

Bureau of Supplies & Surplus Operations

Michelle Thrush, Administrative Assistant

2221 Forester Street, Room 46G

Harrisburg, PA 17125

Email: mthrush@pa.gov

AND

Department of General Services

Bureau of Procurement

Scott Bowers, Commodity Specialist

Forum Place 6 th floor

555 Walnut Street, Harrisburg, PA 17101-1914

Email: scbowers@pa.gov mailto:mthrush@pa.gov mailto:scbowers@pa.gov

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PART IV

STANDARD CONTRACT

TERMS AND CONDITIONS

FOR THE SALE OF STATE SURPLUS PROPERTY

1. TERM OF CONTRACT

The Contract term shall be one (1) year from the Effective Date.

The term of the Contract shall commence on the Effective Date (as defined below) and shall end on the

Expiration Date identified in the Contract, subject to other provisions of the Contract.

The Effective Date shall be: a) the Effective Date printed on the Contract after the Contract has been fully executed by the Contractor and the Commonwealth (signed and approved as required by Commonwealth contracting procedures) or b) the “Valid from” date printed on the Contract, whichever is later.

2. RENEWAL OF CONTRACT TERM: ADJUSTED PRICES

The Contract may be mutually renewed for a maximum of four (4) additional one (1) year terms, so long as the Commonwealth provides written notice to the Contractor of its intention to extend the Contract by letter dated not less than 90 days prior to the expiration of the term of the agreement, or any extensions thereof, and the Contractor consents to the renewal not less than 60 days prior to the expiration of the contract or any extension, shall provide the Commonwealth either 1) its signed consent to renew the contract under the same pricing or 2) an updated price list with sufficient justification, if Contractor is seeking to update its pricing during the renewal period. If the Contractor does not respond within the time frame above, the Contract will not be renewed. If the Contractor provides an updated price list, the

Commonwealth will review any proposed new prices. If the Commonwealth disapproves the proposed new prices, the contract will not be renewed. If the Commonwealth approves the updated price, a contract will be issued replacing the current pricing with the updated price list. The renewal may be exercised as individual or multiple year terms. Any renewal will be under the same terms, covenants and conditions, provided, however, that the rates under the contract may be adjusted to reflect an updated price list. No further document is required to be executed to renew the term of the Contract.

3. EXTENSION OF THE CONTRACT TERM

The Commonwealth reserves the right, upon notice to the Contractor, to extend the term of the Contract for up to three (3) months upon the same terms and conditions.

4. SIGNATURES

The Contract shall not be a legally binding contract until the fully-executed Contract has been sent to the

Contractor. No Commonwealth employee has the authority to verbally direct the commencement of any work or removal of any surplus property under this Contract prior to the Effective Date. The Contractor hereby waives any claim or cause of action for any work or removal performed prior to the Effective

Date.

The Contract will not include “ink” signatures by the Commonwealth. The electronically-printed name of the Purchasing Agent represents that signature of that individual who as the authority, on behalf of the

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Commonwealth, to bind the Commonwealth to the terms of the Contract. If the Contract does not have

“Fully Executed” at the top of the first page and does not have the name of the Purchasing Agent printed in the appropriate box, the Contract has not been fully executed.

The fully-executed Contract may be sent to the Contractor electronically or through facsimile equipment.

The electronic transmission of the Contract shall require acknowledgement of receipt of the transmission by the Contractor. Receipt of the electronic or facsimile transmission of the Contract shall constitute receipt of the fully-executed Contract.

The Commonwealth and the Contractor specifically agree as follows:

a. No handwritten signature shall be required in order for the Contract to be legally enforceable.

b. The parties agree that no writing shall be required in order to make the Contract legally binding, notwithstanding contrary requirement in any law. The parties hereby agree not to contest the validity or enforceability of a genuine Contract or acknowledgement issued electronically under the provisions of the statute of frauds or any applicable law relating to whether certain agreements be in writing and signed by the party bound thereby. Any genuine Contract or acknowledgement issued electronically, if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither party shall contest the admissibility of copies of a genuine Contract or acknowledgements under either the business records exception to the hearsay rule or the best evidence rule on the basis that the Contract or acknowledgements were not in writing or signed by the parties. A contract or acknowledgement shall be deemed to be genuine for all purposes if it is transmitted to the location designated for such documents.

c. Each party will immediately take steps to verify any document that appears to be obviously garbled in transmission or improperly formatted to include re-transmission of such document if necessary.

5. INDEPENDENT PRIME CONTRACTOR

In performing its obligations under the Contract, the Contractor will act as an independent contractor and not as an employee or agent of the Commonwealth. The Contractor will be responsible for all services in this Contract whether or not Contractor provides them directly. Further, the Contractor is the sole point of contact with regard to all contractual matters, including payment of any and all charges resulting from the Contract.

6. DELIVERY OF SERVICES

The Contractor shall proceed with all due diligence in the performance of the services with qualified personnel, in accordance with the completion criteria set forth in the Contract.

7. COMPLIANCE WITH LAW

The contractor shall comply with all applicable federal and state laws and regulations and local ordinances in performing its obligations under the Contract.

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8. ENVIRONMENTAL PROVISIONS

In the performance of the Contract, the Contractor shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations, including but not limited to: the Clean Streams Law

Act of June 22, 1937 (P.L. 1987 No. 394), as amended, 35 P.S. Section 691.601 et seq.; the Pennsylvania

Solid Waste Management Act, Action of July 7, 1980 (P.L. 380, No. 97), as amended, 35 P.S. Section

6018.101 et seq.; and the Dam Safety and Encroachment Act, Act of November 26, 1978 (P.L. 1375, No.

325), as amended, 32 P.S. Section 693.1.

9. REMOVAL OF PURCHASED PROPERTY

Contractor shall furnish all labor and transportation, and pay for all costs for the removal of the purchased property. The Contractor shall notify the Property Agent, identified on the front of the Invitation For Bids

– Bid Proposal, prior to removal of the purchased property. The employee or agent of the Contractor, who will remove the purchased property, shall provide the Property Agent or his representative with proper identification and authorization from the Contractor and shall sign a receipt at the time of removal of the purchased property.

10. PAYMENTS

Payment for the purchased property must be made by electronic funds transfer, certified check, bank cashier’s check or money orders, payable to the “Commonwealth of Pennsylvania.” Personal checks, company checks or cash are not acceptable.

11. ACTUAL QUANTITIES

When the Invitation For Bids – Bid Proposal specifies actual quantities, the Contractor will receive an invoice for the total amount of the items awarded to the Contractor. The Contractor will then be required to make final payment within ten (10) days from the date of the invoice. Upon receipt of the final payment, the Commonwealth will authorize the buyer, in writing, to take title to and remove the property.

All property must be removed from sale site within ten (10) days after such authorization. Property which is not removed within the ten (10) day period will be regarded as abandoned and the Commonwealth shall have the right to dispose of it as it so desires. In addition, the Commonwealth will retain the following percentages of the final payment: $.01 through $250.00 – 50% of the final payment; $250.01 through

$500.00 – 40% of the final payment; and $500.01 and up – 30% of the final payment.

12. ESTIMATED QUANTITIES

a. When the Invitation For Bids – Bid Proposal specifies estimated quantities, it shall be understood and agreed that any quantities listed in the Contract are estimated only and may be increased or decreased in accordance with the actual quantities of the property which become surplus to the Commonwealth and that the Commonwealth in accepting any bid or portion thereof, contracts only and agrees to sell only the property in such

Rev. 12-11-2014 Page 16 quantities as represent the actual quantities of the property which become surplus to the

b. When the Invitation For Bids – Bid Proposal specifies estimated quantities, the

Commonwealth shall require the Contractor to pay an additional 50% of the total amount

(based on the estimated quantities) within ten (10) days as additional security. Upon receipt of the additional security, the Commonwealth will authorize the Contractor to remove the purchased property. The property shall be removed within ten (10) days from receipt of the authorization and weighed, counted or measured under the surveillance of the Commonwealth Property Agent or representative. Actual quantities or amounts shall be certified in writing by the Commonwealth Property Agent or representative and forwarded to the Department of General Services where a final invoice will be prepared and forwarded to the Contractor for payment. Final payment shall be made within ten

(10) days from the date of the invoice. Property which is not removed within the ten (10) day period will be regarded as abandoned and the Commonwealth shall have the right to dispose of it as it so desires. In addition, the Commonwealth will retain the following percentages of the final payment as liquidated damages: $.01 through $250.00 –50% of the first payment; $250.01 through $500.00 – 40% of the final payment; and $500.01 and up – 30% of the final payment.

13. OVERDUE PAYMENT PENALTY

AFTER 30 DAYS, UNPAID INVOICES WILL BE SUBJECT TO A 1 ½% INTEREST CHARGE PER

MONTH. THE INTEREST WILL ONLY BE CHARGED TO THE OVERDUE PRINCIPLE.

14. SALES TAX

All sales of State Surplus property are subject to the Pennsylvania retail sales tax unless an exemption certificate is filed by the buyer with the State Surplus Property Division, Department of General Services.

15. STATUS OF THE PROPERTY

ALL STATE SURPLUS PROPERTY IS SOLD ON A “AS IS, WHERE IS” BASIS. THE

DESCRIPTION OF EACH ITEM HAS BEEN COMPILED TO THE BEST OF THE

COMMONWEALTH’S KNOWLEDGE AND BELIEF, HOWEVER, THE COMMONWEALTH

EXTENDS NO GUARANTEE OR WARRANTY AS TO PROPERTY’S CONDITION AND THERE

ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE

IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

All bidders are invited and urged to inspect the property prior to the submission of bids. The

Commonwealth will not furnish labor or equipment for the purpose of such inspections. Under no circumstances, will a refund or adjustment be made because of the failure of surplus property to meet the standards expected by the Contractor for the failure of the Contractor to inspect the property prior to sale.

16. INSPECTIONS

Rev. 12-11-2014 Page 17

The Department of General Services, State Surplus Property Division, reserves the right to inspect the

Contractor’s premises prior to award and at any time during the term of the Contract.

17. HOLD HARMLESS

a. The Contractor shall hold the Commonwealth harmless from and indemnify the

Commonwealth against any and all third party claims, demands and actions based upon or arising out of any activities performed by the Contractor and its employees and agents under this Contract, provided the Commonwealth gives the Contractor prompt notice of any such claim of which it learns. Pursuant to the Commonwealth Attorneys Act (71 P.S.

Section 732-101 et seq.), the Office of Attorney General (OAG) has the sole authority to represent the Commonwealth in actions brought against the Commonwealth. The OAG may, however, in its sole discretion and under such terms as I deems appropriate, delegate its right of defense. If OAG delegates the defense to the Contractor, the

Commonwealth will cooperate with all reasonable requests of Contractor made in the defense of such suits.

b. Notwithstanding the above, neither party shall enter into any settlement without the other party’s written consent, which shall not be unreasonably withheld. The Commonwealth, in its sole discretion, allows the Contractor to control the defense and any related settlement negotiations.

18. AUDIT PROVISIONS

The Commonwealth shall have the right, at reasonable times and at a site designated by the

Commonwealth, to audit the books, documents and records of the Contractor to the extent that the books, documents and records relate to costs or pricing data for the Contract. The Contractor agrees to maintain records which will support the prices charged and costs incurred for the Contract. The Contractor shall preserve books, documents, and records that relate to costs or pricing data for the Contract for a period of three (3) years from date of final payment. The Contractor shall give full and free access to all records to the Commonwealth and/or their authorized representatives.

19. INSURANCE

The Contractor shall, at its expense, procure and maintain during the term of the Contract, the following types of insurance, issued by companies acceptable to the Department and authorized to conduct such business under the laws of the Commonwealth of Pennsylvania.

a. Worker’s Compensation Insurance for all of the Contractor’s employees and those of any subcontractor, engaged in work at the site of the project as required by law.

b. Public liability and property damage insurance to protect the Commonwealth, and the

Contractor, and any and all subcontractors from claims for damages for personal injury

(including bodily injury), sickness or disease accidental death and damage to property, including loss of use resulting from any property damage, that may arise from the activities performed under this Contract or the failure to perform under this Contract, whether such performance or nonperformance be by the Contractor, by any subcontractor, or by anyone directly or indirectly employed by either. The limits of such

Rev. 12-11-2014 Page 18 insurance shall be in an amount not less than $500,000 each person and $2,000,000 each occurrence, personal injury and property damage combined. Such policies shall be occurrence rather than claims-made policies and shall name the Commonwealth of

Pennsylvania as an additional insured. The insurance shall not contain any endorsements or any other form designated to limit and restrict any action by the Commonwealth, as an additional insured, against the insurance coverage in regard to work performed for the

Prior to commencement of the work under the Contract and during the term of the contract, the Contractor shall provide the Department with current certificates of insurance. These certificates shall contain a provision that the coverages afforded under the policies will not be cancelled or changed until at least thirty (30) days’ written notice has been given to the Department.

20. DEFAULT

a. The Commonwealth may, subject to the Force Majeure provisions of this Contract, and in addition to its other rights under the Contract, declare the Contractor in default by written notice thereof to the Contractor, and terminate (as provided in the Termination Provisions of this Contract) the whole or any part of this Contract or any Purchase Order for any of the following reasons:

1) Failure to begin work within the time specified in the Contract or Purchase Order or as otherwise specified;

2) Failure to perform the work with sufficient labor, equipment, or material to insure the completion of the specified work in accordance with the Contract or

Purchase Order terms;

3) Unsatisfactory performance of the work;

4) Failure to deliver the awarded item(s) within the time specified in the Contract or

Purchase Order or as otherwise specified;

5) Improper delivery;

6) Failure to provide an item(s) which is in conformance with the specifications referenced in the Contract or Purchase Order;

7) Delivery of a defective item;

8) Failure or refusal to remove material, or remove and replace any work rejected as defective or unsatisfactory;

9) Discontinuance of work without approval;

10) Failure to resume work, which has been discontinued, within a reasonable time after notice to do so;

11) Insolvency or bankruptcy;

Rev. 12-11-2014 Page 19

12) Assignment made for the benefit of creditors;

13) Failure or refusal within 10 days after written notice by the Contracting Officer, to make payment or show cause why payment should not be made, of any amounts due for materials furnished, labor supplied or performed, for equipment rentals, or for utility services rendered;

14) Failure to protect, to repair, or to make good any damage or injury to property;

15) Breach of any provision of the Contract;

16) Failure to comply with representations made in the Contractor's bid/proposal; or

17) Failure to comply with applicable industry standards, customs, and practice.

b. In the event that the Commonwealth terminates this Contract or any Purchase Order in whole or in part as provided in Subparagraph a. above, the Commonwealth may procure, upon such terms and in such manner as it determines, items similar or identical to those so terminated, and the Contractor shall be liable to the Commonwealth for any reasonable excess costs for such similar or identical items included within the terminated part of the

Contract or Purchase Order.

c. If the Contract or a Purchase Order is terminated as provided in Subparagraph a. above, the Commonwealth, in addition to any other rights provided in this paragraph, may require the Contractor to transfer title and deliver immediately to the Commonwealth in the manner and to the extent directed by the Contracting Officer, such partially completed items, including, where applicable, reports, working papers and other documentation, as the Contractor has specifically produced or specifically acquired for the performance of such part of the Contract or Purchase Order as has been terminated. Except as provided below, payment for completed work accepted by the Commonwealth shall be at the

Contract price. Except as provided below, payment for partially completed items including, where applicable, reports and working papers, delivered to and accepted by the

Commonwealth shall be in an amount agreed upon by the Contractor and Contracting

Officer. The Commonwealth may withhold from amounts otherwise due the Contractor for such completed or partially completed works, such sum as the Contracting Officer determines to be necessary to protect the Commonwealth against loss.

d. The rights and remedies of the Commonwealth provided in this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

e. The Commonwealth's failure to exercise any rights or remedies provided in this paragraph shall not be construed to be a waiver by the Commonwealth of its rights and remedies in regard to the event of default or any succeeding event of default.

f. Following exhaustion of the Contractor's administrative remedies as set forth in the

Contract Controversies Provision of the Contract, the Contractor's exclusive remedy shall be to seek damages in the Board of Claims.

Rev. 12-11-2014 Page 20

21. FORCE MAJEURE

Neither party will incur any liability to the other if its performance of any obligation under this Contract is prevented or delayed by causes beyond its control and without the fault or negligence of either party.

Causes beyond a party’s control may include, but aren’t limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemics and quarantines, general strikes throughout the trade, and freight embargoes.

The Contractor shall notify the Commonwealth orally within five (5) days and in writing within ten (10) days of the date on which the Contractor becomes aware, or should have reasonably become aware, that such cause would prevent or delay its performance. Such notification shall (i) describe fully such cause(s) and its effect on performance, (ii) state whether performance under the contract is prevented or delayed and (iii) if performance is delayed, state a reasonable estimate of the duration of the delay. The Contractor shall have the burden of proving that such cause(s) delayed or prevented its performance despite its diligent efforts to perform and shall produce such supporting documentation as the Commonwealth may reasonably request. After receipt of such notification, the Commonwealth may elect to cancel the

Contract, cancel the Purchase Order, or to extend the time for performance as reasonably necessary to compensate for the Contractor’s delay.

22. TERMINATION PROVISIONS

The Commonwealth has the right to terminate this Contract or any Purchase Order for any of the following reasons. Termination shall be effective upon written notice to the Contractor.

a. TERMINATION FOR CONVENIENCE: The Commonwealth shall have the right to terminate the Contract or a Purchase Order for its convenience if the Commonwealth determines termination to be in its best interest. The Contractor shall be paid for work satisfactorily completed prior to the effective date of the termination, but in no event shall the Contractor be entitled to recover loss of profits.

b. TERMINATION FOR CAUSE: The Commonwealth shall have the right to terminate the Contract or a Purchase Order for Contractor default under the Default Clause upon written notice to the Contractor. The Commonwealth shall also have the right, upon written notice to the Contractor, to terminate the Contract or a Purchase Order for other cause as specified in the Contract or by law. If it is later determined that the

Commonwealth erred in terminating the Contract or a Purchase Order for cause, then, at the Commonwealth’s discretion, the Contract or Purchase Order shall be deemed to have been terminated for convenience under Subparagraph a.

23. CONTRACT CONTROVERSIES

a. In the event of a controversy or claim arising from the Contract, the Contractor must, within six months after the cause of action accrues, file a written claim with the contracting officer for a determination. The claim shall state all grounds upon which the

Contractor asserts a controversy exists. If the Contractor fails to file a claim or files an untimely claim, the Contractor is deemed to have waived its right to assert a claim in any forum.