SECTION II

SPECIAL TERMS AND CONDITIONS

GOODS AND NONPROFESSIONAL SERVICES

The following is an index of Special Terms and Conditions clauses. Some are mandatory whereas others may be used at the buyer’s discretion in solicitations or negotiated contracts as the individual procurement may dictate. These clauses cover a broad spectrum of goods, printing, and services and are followed by a brief explanation (indicated by an asterisk *) of when each should be used. Other special terms and conditions may be developed and included in the solicitation when appropriate.

INDEX - SPECIAL TERMS AND CONDITIONS

MANDATORY FOR MOST CONTRACTS

1. AUDIT B-13

2. AWARD OF CONTRACT B-13

3. CANCELLATION OF CONTRACT B-16

4. eVA ORDERS AND CONTRACTS B-16

5. RENEWAL OF CONTRACT B-16

AS INDIVIDUAL PROCUREMENTS MAY DICTATE

6. ASBESTOS B-17

7. AS-BUILT DRAWINGS B-17

8. ADDITIONAL USERS B-17

9. BEST AND FINAL OFFER B-18

10. BID ACCEPTANCE PERIOD B-18

11. BID BOND OR GUARANTEE B-18

12. BID PRICES B-18

13. BLANKET FIDELITY BOND B-18

14. CERTIFICATION OF MEAT PRODUCTS B-18

15. CERTIFIED TEST REPORT B-19

16. CONTRACTOR /SUBCONTRACTOR LICENSE REQUIREMENT B-19

17. CONTRACTOR REGISTRATION B-19

18. CONTRACTOR’S TITLE TO MATERIALS B-20

19. DELIVERY B-20

20. DELIVERY AND STORAGE B-20

21. DELIVERY NOTIFICATION B-20

22. DISCOUNTS B-20

23. EXTRA CHARGES NOT ALLOWED B-20

24. FINAL INSPECTION B-20

25. FLAME RETARDANT CERTIFICATE B-21

26. IDENTIFICATION OF BID/PROPOSAL ENVELOPE B-21

27. INDEMNIFICATION B-21

28. INSPECTION OF JOB SITE B-21

29. INSTALLATION B-21

30. INSURANCE, MONEY AND SECURITIES B-21

31. LABELING OF HAZARDOUS SUBSTANCES B-22

32. LIMITATION OF LIABILITY B-22

33. LIQUIDATED DAMAGES B-23

34. MAINTENANCE MANUALS B-24

35. SAFETY DATA SHEETS B-24

36. SMALL BUSINESS SUBCONTRACTING AND EVIDENCE OF COMPLIANCE B-24

37. NAME OF MANUFACTURER AND SHIPPING POINT B-25

38. NEGOTIATION WITH THE LOWEST BIDDER B-25

39. ORDERING OPTION B-25

40. PERFORMANCE AND PAYMENT BONDS B-25

41. PREBID/PREPROPOSAL CONFERENCE - MANDATORY/OPTIONAL B-26

42. PREVENTIVE MAINTENANCE B-26

43. PRICE ESCALATION/DE-ESCALATION B-26

44. PRIME CONTRACTOR RESPONSIBILITIES B-27

45. PRINTING B-27

46. PRINTING DEFINITIONS B-28

47. PRODUCT INFORMATION B-28

48. QUANTITIES B-28

49. RECYCLED PAPER B-28

50. REFERENCES B-29

51. SECURITY LICENSE B-29

52. SUBCONTRACTS B-29

53. USE OF RECYCLED MATERIALS B-29

54. WARRANTY B-30

55. WARRANTY (COMMERCIAL) B-30

56. WORK SITE DAMAGES B-30

57. WORK ESTIMATES (TIME AND MATERIAL CONTRACTS) B-30

58. EMPLOYMENT SERVICES ORGANIZATION B-30

59. CONFIDENTIALITY OF PERSONALLY IDENTIFIABLE INFORMATION B-31

60. CONTINUITY OF SERVICES B-31

61. PRODUCT AVAILABILITY/SUBSTITUTION B-31

62. STATE CORPORATION COMMISSION IDENTIFICATION NUMBER B-32

63. E-VERIFY B-32

64. EMERGENCY EVENT PRICING B-32

65. CERTIFICATION OF INTERNAL CONTROLS B-32

66. FEDERALLY IMPOSED TARIFFS B-33

67. ENERGY-EFFICIENT AND WATER-EFFICIENT GOODS B-34

68. PLASTIC MATERIALS B-34

69 PERSONAL PROTECTIVE EQUIPMENT B-34

MANDATORY FOR MOST CONTRACTS

1. AUDIT: The contractor shall retain all books, records, and other documents relative to this contract for five (5) years after final payment, or until audited by the Commonwealth of Virginia, whichever is sooner. The agency, its authorized agents, and/or state auditors shall have full access to and the right to examine any of said materials during said period.

* When Used: Must be included in all term contracts for goods or services and all prime vendor contracts requiring a Small Business Subcontracting Plan for contracts over $100,000.

1. AWARD OF CONTRACT: All solicitations must contain one of the following award clauses to specify the method of award.

A. AWARD: An award will be made to the lowest responsive and responsible bidder. Evaluation will be based on net prices. Unit prices, extensions and grand total must be shown. In case of arithmetic errors, the unit price will govern. If cash discount for prompt payment is offered, it must be clearly shown in the space provided. Discounts for prompt payment will not be considered in making awards. The State reserves the right to reject any and all bids in whole or in part, to waive any informality, and to delete items prior to making an award.

* When Used: For use when soliciting bids for goods or services.

B. AWARD: The Commonwealth will make the award(s) on ______________ basis to the lowest responsive and responsible bidder. The purchasing office reserves the right to conduct any test it may deem advisable and to make all evaluations. The Commonwealth also reserves the right to reject any or all bids, in whole or in part, to waive informalities and to delete items prior to making the award, whenever it is deemed in the sole opinion of the procuring public body to be in its best interest.

* When Used: For goods or nonprofessional services by filling in the blank, i.e., line item, total sum, lot, etc. This clause shall not be used in a Request for Proposals.

C. AWARD: The right is reserved to make a separate award of each item, a group of items or all items, and to make an award either in whole or in part, whichever is deemed in the best interest of the Commonwealth.

The award or awards will be made to the lowest responsive, responsible bidder or bidders as applicable

* When Used: For use when multiple line items are involved, provided that multiple awards may result in a savings to the Commonwealth.

D. AWARD TO MULTIPLE BIDDERS:

1. The Commonwealth will make awards on a _________________ basis to the lowest responsive and responsible bidders, provided that the next lowest bidders are within % of the lowest bidder and provided that different brands are offered. Due consideration will be given to price, quality as judged by tests and previous experience, and of the ability of the bidder to render required services. The Commonwealth reserves the right to conduct any tests it may deem advisable and to make all evaluations. The Commonwealth also reserves the right to reject any or all bids, in whole or in part, to waive informalities and to delete items prior to making the award, whenever it is deemed in the sole opinion of the procuring public body to be in its best interest.

* When Used: For goods term contracts only when multiple awards will be made based on different brands being offered. Specify how the award will be made, i.e., line item, total sum, lot, etc. plus the number of awards and the percentage figure. This clause shall not be used in a Request for Proposals.

2. AWARD TO MULTIPLE BIDDERS: The Commonwealth reserves the right to make multiple awards as a result of this solicitation. The award(s) will be made to the lowest responsive and responsible bidder(s) meeting the requirements of the solicitation. The Commonwealth reserves the right to conduct any tests it may deem advisable and to make all evaluations. The Commonwealth also reserves the right to reject any or all bids, in whole or in part, to waive informalities and to delete items prior to making the award, whenever it is deemed in the sole opinion of the procuring public body to be in its best interest.

* When Used: For goods or nonprofessional services when multiple awards may be made in order to meet the requirements of the purchasing agency. This clause shall not be used for construction or professional services.

E. AWARD: Selection shall be made of two or more offerors deemed to be fully qualified and best suited among those submitting proposals on the basis of the evaluation factors included in the Request for Proposals, including price, if so stated in the Request for Proposals. Negotiations shall be conducted with the offerors so selected. The offeror shall state any exception to any contractual terms or conditions, including any liability provisions contained in the Request for Proposal in writing at the time of responding to such Request for Proposal if so requested by the Commonwealth. Such exceptions shall be considered during negotiation but shall not be used as a basis for scoring or evaluating which offerors are selected for negotiations. Price shall be considered, but need not be the sole determining factor. After negotiations have been conducted with each offeror so selected, the agency shall select the offeror which, in its opinion, has made the best proposal, and shall award the contract to that offeror. The Commonwealth may cancel this Request for Proposals or reject proposals at any time prior to an award, and is not required to furnish a statement of the reasons why a particular proposal was not deemed to be the most advantageous (Code of Virginia, § 2.2-4359D). Should the Commonwealth determine in writing and in its sole discretion that only one offeror is fully qualified, or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror. The award document will be a contract incorporating by reference all the requirements, terms and conditions of the solicitation and the contractor’s proposal as negotiated.

* When Used: For goods and nonprofessional services when competitive negotiation will be used.

This clause shall not be used in an Invitation for Bids or a professional services Request for Proposals.

F. AWARD TO MULTIPLE OFFERORS: Selection shall be made of two or more offerors deemed to be fully qualified and best suited among those submitting proposals on the basis of the evaluation factors included in the Request for Proposals, including price, if so stated in the Request for Proposals.

Negotiations shall be conducted with the offerors so selected. The offeror shall state any exception to any contractual terms or conditions, including any liability provisions contained in the Request for Proposal in writing at the time of responding to such Request for Proposal if so requested by the Commonwealth. Such exceptions shall be considered during negotiation but shall not be used as a basis for scoring or evaluating which offerors are selected for negotiations. Price shall be considered, but need not be the sole determining factor. After negotiations have been conducted with each offeror so selected, the agency shall select the offeror which, in its opinion, has made the best proposal, and shall award the contract to that offeror. The Commonwealth reserves the right to make multiple awards as a result of this solicitation.

The Commonwealth may cancel this Request for Proposals or reject proposals at any time prior to an award, and is not required to furnish a statement of the reasons why a particular proposal was not deemed to be the most advantageous (Code of Virginia, § 2.2-4359D). Should the Commonwealth determine in writing and in its sole discretion that only one offeror is fully qualified, or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror.

The award document will be a contract incorporating by reference all the requirements, terms and conditions of the solicitation and the contractor’s proposal as negotiated.

* When Used: For goods and nonprofessional services when competitive negotiation will be used and multiple awards are desired to meet the requirements of the agency/institution. This clause shall not be used in an Invitation for Bids or a professional services Request for Proposals.

G. AWARD: The Commonwealth shall engage in individual discussions with two or more offerors deemed fully qualified, responsible and suitable on the basis of initial responses and with emphasis on professional competence, to provide the required services. Repetitive informal interviews shall be permissible. Such offerors shall be encouraged to elaborate on their qualifications and performance data or staff expertise pertinent to the proposed project, as well as alternative concepts. At the discussion stage the public body may discuss non-binding estimates of total project costs, including, but not limited to, life-cycle costing, and, where appropriate, non-binding estimates of price for services. Proprietary information from competing offerors shall not be disclosed to the public or to competitors. At the conclusion of the informal interviews, on the basis of evaluation factors published in the Request for Proposals and all information developed in the selection process to this point, the purchasing agency shall select, in the order of preference, two or more offerors whose professional qualifications and proposed services are deemed most meritorious. Negotiations shall then be conducted, beginning with the offeror ranked first. If a contract satisfactory and advantageous to the purchasing agency can be negotiated at a price considered fair and reasonable, the award shall be made to that offeror. Otherwise, negotiations with the offeror ranked first shall be formally terminated and negotiations conducted with the offeror ranked second, and so on, until such a contract can be negotiated at a fair and reasonable price. The Commonwealth reserves the right to make multiple awards as a result of this solicitation. Should the Commonwealth determine in writing and in its sole discretion that only one offeror is fully qualified, or that one offeror is clearly more highly qualified and suitable than the others under consideration, a contract may be negotiated and awarded to that offeror.

* When Used: Professional services only. This clause shall not be used in an Invitation for Bids or to procure non-professional services.

H. Delete

I. Delete

J. Delete

K. Delete

L. AWARD: The Commonwealth will make the award(s) on basis to the lowest responsive and responsible bidder that is a DSBSD-certified micro business if such a bid is received, provided that the bid is up to and including $10,000 and the agency in its sole discretion determines that the bid price is fair and reasonable. Otherwise, award of the contract shall be made to the lowest responsive and responsible bidder that is a DSBSD-certified small business if such a bid is received, provided that the bid is not more than $100,000 and the agency in its sole discretion determines that the bid price is fair and reasonable. If, in the agency’s opinion, the criteria in the previous two sentences are not present, then award shall be made to the lowest responsive and responsible bidder of any size, provided the agency in its sole discretion determines that the price is fair and reasonable. If applicable, unit prices, extensions and grand total must be shown. In case of arithmetic errors, the unit price will govern. If cash discount for prompt payment is offered, it must be clearly shown in the space provided. Discounts for early prompt payment will not be considered in making awards. The State reserves the right to reject any and all bids in whole or in part, to waive any informality, and to delete items prior to making an award.

* When Used: For goods or non-professional services up to and including $100,000 that are set-aside in accordance with the Small Business Enhancement Award Priority by filling in the blank, i.e., line item, total sum, lot, etc. This clause shall be used for unsealed competitive bidding and shall not be used for informal request for proposals.

M. AWARD: Selection shall be made of two or more DSBSD-certified micro business offerors deemed to be fully qualified and best suited among those submitting proposals on the basis of the evaluation factors included in the Request for Proposals, including price, if so stated in the Request for Proposals, provided that the price proposal is up to and including $10,000. Negotiations shall be conducted with the offerors so selected. Price shall be considered, but need not be the sole determining factor. After negotiations have been conducted with each offeror so selected, the agency shall select the offeror which, in its opinion, has made the best proposal, and shall award the contract to that offeror. The Commonwealth may cancel this Request for Proposals or reject proposals at any time prior to an award, and is not required to furnish a statement of the reasons why a particular proposal was not deemed to be the most advantageous (Code of Virginia, § 2.2-4359D). Should the Commonwealth determine in writing and in its sole discretion that only one DSBSD-certified micro business offeror is fully qualified, or that one such offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror. Any award to a DSBSD-certified micro business offeror pursuant to the above process may be made only if the price as negotiated remains under $10,000. The award document will be a contract incorporating by reference all the requirements, terms and conditions of the solicitation and the contractor’s proposal as negotiated. If the agency in its sole discretion determines that the above criteria for limiting the negotiation to micro businesses are not present, the agency shall follow the same process as specified above, but restricting the negotiation instead to DSBSD-certified small business offerors, provided that the price proposal is not more than $100,000. If the agency determines that the above criteria for limiting the negotiation to small businesses are not present, the agency shall follow the same process as specified above, but without restricting the negotiation to small or micro business offerors.

* When Used: For goods or services up to and including $100,000 where the procurement is set-asides in accordance with the Small Business Enhancement Award Priority. This clause shall be used for competitive negotiations and shall not be used for unsealed bidding.

3. CANCELLATION OF CONTRACT: The purchasing agency reserves the right to cancel and terminate any resulting contract, in part or in whole, without penalty, upon 60 days written notice to the contractor. Any contract cancellation notice shall not relieve the contractor of the obligation to deliver and/or perform on all outstanding orders issued prior to the effective date of cancellation.

* When Used: Include in all term contracts for goods or services. This clause is not appropriate for use in spot purchases. It is required that Contract Officers consider including Special Term and Condition #60 (Continuity of Services) when contracting for services vital to the agency.

4. eVA ORDERS AND CONTRACTS: The solicitation/contract will result in (_______) purchase order(s) with the applicable eVA transaction fee assessed for each order.

Vendors desiring to provide goods and/or services to the Commonwealth shall participate in the eVA eProcurement Program and agree to comply with the following: If this solicitation is for a term contract, failure to provide an electronic catalog (price list) or Punch-Out Catalog for items awarded will be just cause for the Commonwealth to reject your bid/offer or terminate this contract for default. The format of this electronic catalog shall conform to the eVA Catalog and/or Punch-Out Catalog Specification. For further information and details please email eVA-catalog-manager@dgs.virginia.gov.

*When Used: This Special Term and Condition 4 shall be included in all solicitations, contracts and contract renewals. If the quantity of orders that will be issued is known, insert the expected number of orders in the blank provided (e.g., one, twelve, monthly, etc.). If the exact quantity is unknown, change the first sentence to read, “It is anticipated that the contract will result in multiple purchase orders (i.e., one for each delivery requirement) with the eVA transaction fee specified below assessed for each order.”

5. RENEWAL OF CONTRACT: (NOTE: A term contract may not be renewed unless a renewal clause is included in the solicitation and the renewal is fully executed in writing prior to the expiration of the current contract term. Select one of the following clauses if an option to renew the contract beyond the original period of the contract is desired. Select either “one year” or complete the blank, indicating the number of “successive one year periods” the contract may be renewed.)

A. RENEWAL OF CONTRACT: This contract may be renewed by the Commonwealth upon written agreement of both parties for (one year)/( successive one year periods), under the terms of the current contract, and at a reasonable time (approximately 90 days) prior to the expiration.

* When Used: Include in solicitations for term contracts for goods and services, if desired, to permit renewal of the contract for a specific period of time, i.e., one year, two successive one-year periods, etc., at the same price(s), terms and conditions as in the original contract. Renegotiation of the price(s), terms and conditions is not permitted. If market prices are not expected to remain stable for goods, the Price Escalation/De-escalation clause (No. 43) should be considered for use with this provision.

B. RENEWAL OF CONTRACT: This contract may be renewed by the Commonwealth for (one year)/(____ successive one year periods) under the terms and conditions of the original contract except as stated in 1.

and 2. below. Price increases may be negotiated only at the time of renewal. Written notice of the Commonwealth’s intention to renew shall be given approximately 90 days prior to the expiration date of each contract period.

1. If the Commonwealth elects to exercise the option to renew the contract for an additional one-year period, the contract price(s) for the additional one year shall not exceed the contract price(s) of the original contract increased/decreased by more than the percentage increase/decrease of the _________________ category of the CPI-U section of the Consumer Price Index of the United States Bureau of Labor Statistics for the latest twelve months for which statistics are available.

2. If during any subsequent renewal periods, the Commonwealth elects to exercise the option to renew the contract, the contract price(s) for the subsequent renewal period shall not exceed the contract price(s) of the previous renewal period increased/decreased by more than the percentage increase/decrease of the _______________ category of the CPI-U section of the Consumer Price Index of the United States Bureau of Labor Statistics for the latest twelve months for which statistics are available.

mailto:eVA-catalog-manager@dgs.virginia.gov

* When Used: For service contracts, use of this clause permits renewal of a contract with an increase/decrease in the labor rate portion only of the original contract. This clause should only be used when renewal of the contract may be desirable and price adjustments may be necessary. Select the most appropriate category that would apply to the contract and fill in the blank. If only a one-year renewal is desired, delete paragraph 2. of the clause. For recent Consumer Price Index statistics, contact the Bureau of Labor Statistics at their website http://stats.bls.gov/news.release/cpi.toc.htm or by telephone at 202-691-7000. A link to the Bureau of Labor Statistics may be found by clicking “I Buy for Virginia” on the eVA website

AS INDIVIDUAL PROCUREMENTS MAY DICTATE

6. ASBESTOS: Whenever and wherever during the course of performing any work under this contract, the contractor discovers the presence of asbestos or suspects that asbestos is present, he shall stop the work immediately, secure the area, notify the building owner and await positive identification of the suspect material.

During the downtime in such a case, the contractor shall not disturb any surrounding surfaces but shall protect the area with suitable dust covers. In the event the contractor is delayed due to the discovery of asbestos or suspected asbestos, then a mutually agreed extension of time to perform the work shall be allowed the contractor but without additional compensation due to the time extension.

* When Used: For use in service contracts or furnish and install goods contracts when it is possible that the contractor may encounter asbestos during performance of the contract.

7. AS BUILT DRAWINGS: The contractor shall provide the Commonwealth a clean set of reproducible “as built” drawings and wiring diagrams, marked to record all changes made during installation or construction. The contractor shall also provide the Commonwealth with maintenance manuals, parts lists and a copy of all warranties for all equipment. All “as built” drawings and wiring diagrams, maintenance manuals, parts lists and warranties shall be delivered to the Commonwealth upon completion of the work and prior to final payment.

* When Used: For furnish and install and construction and renovation projects; i.e., fire alarm systems, heating and air conditioning systems, refrigeration rooms, building modifications, major equipment installations, etc.

8. ADDITIONAL USERS: This procurement is being conducted on behalf of state agencies, institutions and other public bodies who may be added or deleted at any time during the period of the contract. The addition or deletion of authorized users not specifically named in the solicitation shall be made only by written contract modification issued by this agency or institution and upon mutual agreement of the contractor. Such modification shall name the specific agency added or deleted and the effective date. The contractor shall not honor an order citing the resulting contract unless the ordering entity has been added by written contract modification.

*When Used: AUTHORIZATION TO USE THIS CLAUSE MUST BE GRANTED BY DPS, SEE 3.8.A

If the value of the contract, including any renewal periods is within the delegated authority of the lead agency and other agencies and institutions may benefit, the lead agency may issue a solicitation and include this clause on behalf of other public bodies. The value of the contract, including other agency orders, must remain within the lead agency’s delegated authority. To obtain maximum pricing advantage, every effort should be made to identify participating agencies and their expected usage in the solicitation.

9. BEST AND FINAL OFFER (BAFO): At the conclusion of negotiations, the offeror(s) may be asked to submit in writing, a Best And Final Offer (BAFO). After the BAFO is submitted, no further negotiations shall be conducted with the offeror(s). The offeror’s proposal will be rescored to combine and include the information contained in the BAFO. The decision to award will be based on the final evaluation including the BAFO.

* When Used: Used only in Request for Proposals. This clause should not be used as a matter of routine.

If it is anticipated that because of the nature of the requirement, the negotiations could linger, this provision should be used to show clearly when negotiations would end or to cut off negotiations at a particular point called for by the contract officer. See 7.4 for further guidance.

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10. BID ACCEPTANCE PERIOD: Any bid in response to this solicitation shall be valid for ( ) days. At the end of the days the bid may be withdrawn at the written request of the bidder. If the bid is not withdrawn at that time it remains in effect until an award is made or the solicitation is canceled.

* When Used: The Vendors Manual, 6.2 states that bids must be valid for the number of days stated.

11. BID BOND OR GUARANTEE: Each bid shall be accompanied by a bid bond or guarantee of five percent

(5%) of the amount of the bid, which shall be a certified check, cash escrow or a bid bond payable to the Treasurer of the Commonwealth of Virginia. The sureties of all bonds shall be of such surety company or companies as are approved by the State and are authorized to transact business in the Commonwealth of Virginia. Such bid bond or check shall be submitted with the understanding that it shall guarantee that the bidder will not withdraw such bid during the period of ______ days following the opening of bids; that if such bid is accepted, the bidder will accept and perform under the terms of the Invitation for Bids and purchase order or contract. The bid guarantee will be returned upon award of contract.

* When Used: Must be used in all solicitations for construction type contracts over $100,000. Insert the same number of days in the space provided as entered in the Bid Acceptance Period Clause. This clause may also be used for construction type services under $100,000, as well as for goods or services of any dollar amount. Do not use in RFPs.

12. BID PRICES: Bid shall be in the form of a firm unit price for each item during the contract period.

* When Used: In annual goods contracts without a price escalation/de-escalation clause. A different version of this clause, specifically worded to fit the situation, should be used in solicitations for various types of services, and in solicitations for the lease or rental of equipment.

13. BLANKET FIDELITY BOND: Contractor shall maintain a blanket fidelity bond obtained from an insurance company licensed to conduct fidelity business in the home state of the contractor and which has earned an A.M.

Best Company, Inc. rating of “A” or better, as reflected in their most current publication, covering all personnel under contract to the Commonwealth of Virginia, with a penalty amount of not less than $ , naming the Commonwealth of Virginia as co-obligee. Certificate of such protection must be presented to the purchasing agency prior to the start of the service showing name of surety, limit and type of coverage, term of coverage, co-obligee provision and name and address of licensed Virginia insurance agent. The contractor agrees to maintain such bond until one year after the completion of the contract.

* When Used: Debt collection type services. The amount to be inserted in the blank space should be based on the total value of accounts expected to be turned over to the contractor at any one time for collection and not the entire amount of the agency’s outstanding accounts.

14. CERTIFICATION OF MEAT PRODUCTS: By my signature on this solicitation, I hereby certify and warrant that all products offered for delivery meet or exceed the requirements of the Federal Institutional Meat Purchase Specifications (IMPS), Virginia Department of Agriculture Regulations, Federal Food, Drug and Cosmetic Act, and the Federal Wholesome Meat Act. All products awarded and delivered against this solicitation shall be subject to inspection at destination for specification compliance.

* When Used: All solicitations for meat products.

15. CERTIFIED TEST REPORT: Each bidder shall provide a copy of a certified test report with their bid. The certified test report shall be from a recognized independent testing laboratory or manufacturer’s quality control laboratory showing all test results and full compliance with the appropriate specifications indicated herein.

However, the Commonwealth reserves the right to perform any tests or inspections when and as deemed necessary to verify the certified test report.

* When Used: For solicitation of goods where a certified test report may be the only method of determining an item offered would meet specifications.

16. CONTRACTOR/SUBCONTRACTOR LICENSE REQUIREMENT: By my signature on this solicitation, I certify that this firm/individual and subcontractor is properly licensed for providing the goods/services specified. Furthermore, the contractor and subcontractors shall maintain the required license throughout the term of the contract. The contractor or their subcontractor shall immediately notify the contracting agency in writing in the event the license has been revoked.

Contractor Name:_________________

License # _________________ Type ________________

Subcontractor Name:_________________________

License # _________________ Type ________________

* When Used: Include in all solicitations for specific types of services for which State statutes or regulatory agencies require contractors or subcontractors to be properly registered, licensed or hold a permit prior to performing such work. See 3.5.

17. CONTRACTOR REGISTRATION: If a contract for construction, removal, repair or improvement of a building or other real property requires a contractor’s license, refer to the Code of Virginia §54.1-1100 for registration requirements. The bidder/offeror shall place on the outside of the envelope containing the bid/proposal and shall place in the bid/proposal over his signature whichever of the following notations is appropriate, inserting his contractor license number:

Licensed Class A Virginia Contractor No. _______________Specialty _______________ Licensed Class B Virginia Contractor No. _______________Specialty _______________ Licensed Class C Virginia Contractor No. _______________Specialty _______________

If the bidder/offeror shall fail to provide this information on his bid/proposal or on the envelope containing the bid/proposal and shall fail to promptly provide said contractor license number to the Commonwealth in writing when requested to do so before or after the opening of bids/proposals, he shall be deemed to be in violation of § 54.1-1115 of the Code of Virginia (1950), as amended, and his bid/proposal will not be considered.

If a bidder/offeror shall fail to obtain the required license prior to submission of his bid/proposal, the bid/proposal shall not be considered.

* When Used: Required to be used in all solicitations by the Code of Virginia for all construction, removal, repair or improvements to facilities to be performed by a contractor and its subcontractors. This includes almost all specialty trades, i.e., glue down carpet, painting, fencing, roofing, mechanical, plumbing, electrical, carpentry, etc. When in doubt as to whether or not this clause should be included in the solicitation, contact the Department of Professional and Occupational Regulation, State Board for Contractors, at 804-367-2785.

18. CONTRACTOR’S TITLE TO MATERIALS: No materials or supplies for the work shall be purchased by the contractor or by any subcontractor subject to any chattel mortgage or under a conditional sales or other agreement by which an interest is retained by the seller. The contractor warrants that he has clear title to all materials and supplies for which he invoices for payment.

* When Used: For use in solicitations for construction and for furnish and install equipment.

19. DELIVERY: Delivery of goods or performance of services shall be within the number of calendar days stated below after receipt of order (ARO) by the bidder/offeror. The Agency requires the (bidder/offeror) to deliver within a reasonable time after ARO. If the bidder/offeror does not insert a stated delivery time in the blank below, the (bidder/offeror) will be deemed to offer delivery in accordance with the Agency’s desired delivery time as stated below:

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Agency’s desired delivered time: _____ calendar days ARO

BIDDER’S/OFFEROR’S STATED DELIVERY TIME: ____ CALENDAR DAYS ARO

*When Used: Include when a firm delivery date is not specified by the agency. An agency may not reject a bid or proposal because the bidder/offeror stated a longer delivery date as long as it is within a reasonable time after receipt of order.

20. DELIVERY AND STORAGE: It shall be the responsibility of the contractor to make all arrangements for delivery, unloading, receiving and storing materials in the building during installation. The owner will not assume any responsibility for receiving these shipments. Contractor shall check with the owner and make necessary arrangements for security and storage space in the building during installation.

* When Used: For furnish and install solicitations, if applicable.

21. DELIVERY NOTIFICATION: The Agency shall be notified hours prior to delivery of any items so that personnel may be available to allow access to the building and verify items received. Notification shall be made to :

Name Phone

* When Used: Use in solicitations for goods if the receiving facility is not staffed at all times during normal working hours.

22. A. PROMPT PAYMENT DISCOUNTS: Agency will pay within ____ days after acceptance. A prompt payment discount offered for prompt payment of ( ) calendar days or longer will be calculated in determining net low bid.

* When Used: When the agency knows payments can be made within the time frame specified.

B. SPECIAL EDUCATIONAL OR PROMOTIONAL DISCOUNTS: The contractor shall extend any special educational or promotional sale prices or discounts immediately to the Commonwealth during the term of the contract. Such notice shall also advise the duration of the specific sale or discount price.

* When Used: This clause should be considered for use when soliciting bids for products where it is known that vendors or manufacturers have promotional sales opportunities.

23. EXTRA CHARGES NOT ALLOWED: The bid price shall be for complete installation ready for the

Commonwealth’s use, and shall include all applicable freight and installation charges; extra charges will not be allowed.

* When Used: For furnish and install solicitations. Also may be used for inside delivery by changing the wording.

24. FINAL INSPECTION: At the conclusion of the work, the contractor shall demonstrate to the authorized owners representative that the work is fully operational and in compliance with contract specifications and codes. Any deficiencies shall be promptly and permanently corrected by the contractor at the contractor’s sole expense prior to final acceptance of the work.

* When Used: For furnish and install solicitations.

25. FLAME RETARDANT CERTIFICATE: Each bidder/offeror shall submit a certification in writing with their bid/proposal that all materials used in fabricating draperies or curtains are inherently flame retardant or have been treated to meet NFPA Standard 701 (latest version), large or small scale test.

* When Used: Must be used in solicitations for draperies or curtains that will be installed in office spaces and dormitories, but not state-owned housing.

26. IDENTIFICATION OF BID/PROPOSAL ENVELOPE: If a special envelope is not furnished, or if return in the special envelope is not possible, the signed bid/proposal should be returned in a separate envelope or package, sealed and identified as follows:

From: ___________

Name of Bidder/Offeror Due Date Time

Street or Box Number IFB No./RFP No.

City, State, Zip Code IFB/RFP Title

DSBSD-certified Micro Business or Small Business No. ________________________

Name of Contract/Purchase Officer or Buyer

* When Used: For use in solicitations for which the purchasing agency has not furnished a special bid/proposal return envelope or the envelope furnished is not adequate. If the solicitation is a combined two-step IFB, the bidders should be instructed to identify the outside of both the technical proposal and the pricing envelopes to show the bidder’s name, company name and address, and bid reference number.

If the bid/proposal is set-aside for DSBSD-certified Micro Business or Small Businesses, the bidder/offeror shall provide the DSBSD-certified Micro Business or Small Business number.

27. INDEMNIFICATION: Contractor agrees to indemnify the Commonwealth of Virginia, its officers, agents, and employees for any loss, liability, cost, or reasonable settlement cost incurred as a result of any claims, damages and actions of any kind or nature, whether at law or in equity, arising from or caused by the use of any materials, goods, or equipment of any kind or nature furnished by the contractor/any services of any kind or nature furnished by the contractor, provided that such liability is not attributable to the sole negligence of the using agency or to failure of the using agency to use the materials, goods, or equipment in the manner already and permanently described by the contractor on the materials, goods or equipment delivered.

* When Used: For all contracts involving substantial risk of third party injuries/claims. Authorization to use this clause must be granted by the Department of Treasury, Division of Risk Management or be directed by your Assistant Attorney General.

28. INSPECTION OF JOB SITE: My signature on this solicitation constitutes certification that I have inspected the job site and am aware of the conditions under which the work must be accomplished. Claims, as a result of failure to inspect the job site, will not be considered by the Commonwealth.

* When Used: Should be used in furnish and install, services and non-capital outlay construction projects.

29. INSTALLATION: All items must be assembled and set in place, ready for use. All crating and other debris must be removed from the premises.

* When Used: For inside delivery of goods which require unpacking and assembly.

30. INSURANCE, MONEY AND SECURITIES: Contractor shall maintain a Broad Form Money and Securities

Insurance Policy obtained from an insurance company licensed to conduct crime insurance business in the home state of the contractor and which has earned an A.M. Best Company, Inc. rating of A or better, as reflected in their most current publication, covering all money and property entrusted to the contractor by the Commonwealth of Virginia, with limits of coverage of not less than $_______________ for Loss Inside the Premises Coverage and not less than $______________ for Loss Outside the Premises Coverage, the Commonwealth of Virginia shall be added as an additional insured to the policy by an endorsement with respect to this contract. Certificate of such protection must be presented to the purchasing agency prior to the start of the service showing name of insurance company, limits and type of coverage, term of coverage, additional insured provision and name and address of licensed insurance agent. The contractor agrees to maintain such policy until the completion of the contract and all money and property of the Commonwealth is remitted to the Commonwealth.

* When Used: Required for contracts covering the collection, handling, safekeeping, and/or transporting state monies or securities. The amounts to be entered by the agency should be equal to the estimated maximum amount of monies or securities that would be in the contractor’s possession at any one time.

31. LABELING OF HAZARDOUS SUBSTANCES: If the items or products requested by this solicitation are

“Hazardous Substances” as defined by § 1261 of Title 15 of the United States Code (U.S.C.) or “Pesticides” as defined in § 136 of Title 7 of the United States Code, then the bidder/offeror, by submitting his bid/proposal, certifies and warrants that the items or products to be delivered under this contract shall be properly labeled as required by the foregoing sections and that by delivering the items or products the bidder/offeror does not violate any of the prohibitions of Title 15 U.S.C. § 1263 or Title 7 U.S.C. § 136.

* When Used: Must be included in all solicitations for the purchase of chemicals or compounds which may contain toxic or hazardous substances, i.e., cleaning, janitorial supplies, pesticides, chemicals of all types, etc. (see clause #35).

32. LIMITATION OF LIABILITY:

A. To the maximum extent permitted by applicable law, the contractor will not be liable under this contract for an indirect, incidental, special or consequential damages, or damages from loss of profits, revenue, data or use of the supplies, equipment and/or services delivered under this contract. This limitation of liability will not apply, however, to liability arising from: (a) personal injury or death; (b) defect or deficiency caused by willful misconduct or negligence on the part of the contractor; or (c) circumstances where the contract expressly provides a right to damages, indemnification or reimbursement.

* When Used: This clause should be used on an exception basis Prior review by both risk management and legal counsel is mandatory before including in a solicitation or contract. A contract officer may use this clause in a contract when negotiations suggest that liability may be an issue, but the risk and liability to the Commonwealth is negligible. Examples include, but are not limited to, office supplies and equipment, paper products, printing, furniture, audio/visual equipment, consultant services, media services, equipment maintenance, etc. In certain circumstances, a contract officer may include this clause in a solicitation after consulting with risk management and legal counsel. Note:

The clause may be modified, as applicable, depending on the intended use of the goods and/or services.

B. LIMITATION OF LIABILITY: To the maximum extent permitted by applicable law, the contractor’s liability under this contract for loss or damages to government property caused by use of any defective or deficient supplies, products, equipment and/or services delivered under this contract shall not exceed the greater of $______________ or ____________ times the amount of money paid to the contractor under this contract during the twelve month period preceding the event or circumstance giving rise to such liability. The contractor will not be liable under this contract for any indirect, incidental, special or consequential damages, or damages from loss of profits, revenue, data or use of the supplies, equipment and/or services delivered under this contract. The above limitation of liability is per incident. The limitation and exclusion of damages in the foregoing sentences will not apply, however, to liability arising from: (a) personal injury or death; (b) defect or deficiency caused by willful misconduct or negligence on the part of the contractor; or (c) circumstances where the contract expressly provides a right to damages, indemnification or reimbursement.

* When Used: This clause should be used on an exception basis -Prior review by both risk management and legal counsel is mandatory before including in a solicitation or contract. A contract officer may use this clause in a contract when negotiations suggest that liability will be an issue and the risk and liability to the Commonwealth is extensive. Examples include, but are not limited to:

software; hardware; two-way communication devices; telephone equipment; medical, dental, and laboratory equipment and supplies; elevator maintenance and inspection services; food service;

medical service; etc. Caution: The potential risk must be calculated in dollars and indicated in the first blank. Delete the remaining part of the sentence. If the risk value cannot be determined within a reasonable amount and the contract is for indefinite quantity (e.g., annual contract), estimate the approximate annual value and fill in the dollar amount. Enter a multiplication factor in the second blank, such as two (2) or some other reasonable number. In rare circumstances, a contract officer may include this clause in a solicitation after consulting with risk management and legal counsel. Note: The clause may be modified, as applicable, depending on the intended use of the goods and/or services.

33. LIQUIDATED DAMAGES: (Note: Review the guidance contained in the General Comments and

Procedures below before deciding to include one of the following clauses in a solicitation.

A. LIQUIDATED DAMAGES, GOODS AND NONPROFESSIONAL SERVICES: Delivery is required not later than __________________. It is understood and agreed by the bidder/offeror that time is of the essence in the delivery of supplies, services, materials, or equipment of the character and quality specified in the bid/proposal document. In the event these specified supplies, services, materials, or equipment are not delivered by the date specified there will be deducted, not as a penalty but as liquidated damages, the sum of $_____________ per day for each and every calendar day of delay beyond the time specified; except that if the delivery be delayed by any act, negligence, or default on the part of the Commonwealth, public enemy, war, embargo, fire, or explosion not caused by the negligence or intentional act of the contractor or his supplier(s), or by riot, sabotage, or labor trouble that results from a cause or causes entirely beyond the control or fault of the contractor or his supplier(s), a reasonable extension of time as the procuring public body deems appropriate may be granted. Upon receipt of a written request and justification for any extension from the contractor, the purchasing office may extend the time for performance of the contract or delivery of goods herein specified, at the purchasing office’s sole discretion, for good cause shown.

* When Used: For critical delivery of goods or services. The required delivery date and the dollar amount must be filled in by the agency.

B. LIQUIDATED DAMAGES, FURNISH AND INSTALL: Work shall begin calendar days after receipt of purchase order or contract and all work shall be completed in calendar days. It is hereby understood and agreed by the bidder that time is of the essence in the delivery of supplies, services, materials, or equipment of the character and quality specified in the bid document. In the event these specified supplies, services, materials, or equipment are not delivered by the date specified, there will be deducted, not as a penalty but as liquidated damages, the sum of $_____________ per day for each and every calendar day of delay beyond the time specified; except that if the delivery be delayed by any act, negligence, or default on the part of the Commonwealth, public enemy, war, embargo, fire, or explosion not caused by the negligence or intentional act of the contractor or his supplier(s), or by riot, sabotage, or labor trouble that results from a cause or causes entirely beyond the control or fault of the contractor or his supplier(s), a reasonable extension of time as the procuring public body deems appropriate may be granted.

Upon receipt of a written request and justification for an extension from the contractor, the purchasing office may extend the time for performance of the contract or delivery of goods herein specified at the purchasing office’s sole discretion for good cause shown.

* When Used: For furnish and install contracts covering…