AQ Ambient Air Samplers_RFQ.pdf

STATE OF OREGON

DEPARTMENT OF ENVIRONMENTAL QUALITY (DEQ)

REQUEST FOR QUOTE (RFQ) #Open Market Bid S-34000-00008095

Ambient Air Samplers

TABLE OF CONTENTS

Section A…………………..SCHEDULE OF EVENTS & AGENCY CONTACT INFORMATION

Section B…………………..GENERAL INFORMATION

Section C…………………..SPECIFICATIONS/STATEMENT OF WORK Attachment 1……………...COST SUBMITTAL FORM (Complete and Submit with Offer) Attachment 2……………...BID COVER SHEET (Complete and Submit with Offer) Attachment 3……………...SAMPLE CONTRACT

Exhibit A……………….. Statement of Work Exhibit B……………….. Required Insurance Exhibit C……………….. Special Terms and Conditions Exhibit D……………….. Independent Contractor Certification Exhibit E……………….. Pricelist

SECTION A - SCHEDULE OF EVENTS & AGENCY CONTACT INFORMATION

Event

Date Time (Pacific Std)

Solicitation Release

September 13, 2023 2:00 PM

Closing Date and Time for Offer Submittal

October 4, 2023 4:00 PM

ISSUING OFFICE: Oregon Department of Environmental Quality (DEQ) AGENCY POINT OF CONTACT: Christina Dell, Procurement & Contract Specialist ADDRESS: 700 NE Multnomah St, Suite 600 CITY, STATE, ZIP: Portland, OR 97232

PHONE (VOICE): 971-323-7233

E-MAIL: Christina.Dell@deq.oregon.gov

*NOTE: THE LOCATION FOR THE GOODS AND SERVICES REQUESTED IN THIS RFQ IS

LISTED BELOW:

DEQ Laboratory and Environmental Assessment Division (LEAD) 7202 NE Evergreen Parkway, Suite 150 Hillsboro, OR 97124 Main Office (503) 693-5700 mailto:Christina.Dell@deq.oregon.gov

SECTION B – GENERAL INFORMATION

1. The purpose of this Request for Quote (RFQ) is to establish a Contract for the Department of Environmental Quality (“DEQ” or “Agency”), Laboratory and Environmental Assessment Division (“Lab”) located in Hillsboro, Oregon for the purchase of filter based, ambient air samplers. The Contract will also allow for the purchase of any pertinent accessories related to low-volume, 47-mm filter samplers and low-volume, DNPH cartridge samplers.

Oregon Department of Environmental Quality’s (DEQ) mission is to be a leader in restoring, maintaining, and enhancing the quality of Oregon's air, land and water. The DEQ Laboratory and Environmental Assessment Division (LEAD) works to keep Oregon’s air and waters safe and healthy by collecting, analyzing and reporting environmental samples. DEQ’s LEAD provides critical information for understanding how well these goals are being met, for identifying emerging air and water quality concerns, planning permit limits, assessing compliance with environmental regulations, developing effective pollution reduction strategies, and understanding trends in air and water quality statewide.

Ambient air monitoring conducted by the DEQ Laboratory and Environmental Assessment Division’s (LEAD) air quality monitoring (AQM) group provide the foundation for restoring, maintaining, and enhancing Oregon’s air quality. AQM staff operate monitoring networks throughout the state collecting ambient air samples and conduct special studies to collect data used to determine whether environmental standards are being met, the sources of pollution, and the impact of pollution on human and environmental health. The samplers required through this request will be monitoring hazardous air pollutants (HAPs) across the network, specifically for carbonyl and heavy metals pollutants discussed in the Clean Air Act’s (CAA) Section 112 as well as Section 7412 under the United States Code, Title 42, as they relate to the DEQ air toxics sampling agenda.

DEQ is seeking Offers from qualified firms with demonstrated experience in providing reliable ambient air samplers. Both carbonyl and PM10 samplers will follow federal reference methods (FRM) for low volume collection of carbonyls under EPA method TO-11A and metals covered under the EPA method IO 3.5 respectively.

This RFQ is a single award opportunity. Bidders must be able to supply the goods that meet all required specifications and perform all services specified in the Statement of Work (Section C) and comply with all Terms and Conditions of Attachment 3 (Sample Contract).

DEQ intends to have the Bidder provide, as requested, the goods and services described in Section C for an initial 2 year contract term with option to renew the contract term up to maximum of ten (10) years.

By submitting an Offer to this RFQ, Bidder agrees to hold pricing firm for the initial two (2) year term beginning on the date the Contract has been signed by all parties. Additional quantities may be purchased on an as needed basis and as funding allows. DEQ shall notify Contractor in writing if DEQ intends to extend the Contract. If the parties agree, the Contract may be extended for additional terms, but the total term shall not exceed ten (10) years.

The Mandatory Specifications/Statement of Work; Delivery Requirements and Delivery Schedule for this RFQ are outlined in Section C. The Sample Contract (Attachment 3) contains the terms and conditions that will govern any contract between DEQ and the successful Bidder.

DEQ is issuing this RFQ pursuant to its authority under Oregon Administrative Rule (OAR) 125-246- 0170(2).

2. OregonBuys

This solicitation, including addenda, is posted on the OregonBuys state procurement platform.

OregonBuys provides access to procurement and contracting information issued by the State of Oregon, local governments, and political subdivisions. Offerors that wish to view or download a procurement opportunity need to be registered at https://oregonbuys.gov/bso/view/login/login.xhtml

3. COBID Participation

Pursuant to Oregon Revised Statute (ORS) Chapter 200, and as a matter of commitment, DEQ encourages the participation of minority, women, and emerging small business enterprises in all contracting opportunities. DEQ also encourages joint ventures or subcontracting with minority, women, and emerging small business enterprises. All businesses that are to be counted as a minority, women, or emerging small business must be registered with the Certification Office of Business Inclusion and Diversity (COBID). For more information, please visit http://www.oregon4biz.com/How-We-Can-Help/OMWESB/.

4. Pay Equity Training ORS 279A.167 requires pay equity training requirements for Oregon businesses who bid on public contracts. Businesses with one or more employees must provide proof that they are properly trained on Oregon’s pay equity laws.

To comply, Bidder must complete the State’s online Pay Equity Training and provide proof of completion by submitting a copy of the training certificate with their bid.

Pay Equity Training: https://ilearn.oregon.gov/Default.aspx

To learn more please visit the Department of Administrative Services Pay Equity webpage at https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

5. Submittal Requirements, Due Date and Questions

Bidders must complete and return the following 3 items:

1. Attachment 1 (Cost Submittal Form)

2. Attachment 2 (Bidder Cover Sheet)

3. Pay Equity Training Certificate (see Section A, #4)

The completed items can be submitted no later than 4:00 PM (PT) October 4, 2023 to the following email address: bidsdeq@deq.oregon.gov

Questions or requests for clarification regarding this RFQ must be submitted to bidsdeq@deq.oregon.gov https://oregonbuys.gov/bso/view/login/login.xhtml http://www.oregon4biz.com/How-We-Can-Help/OMWESB/ https://ilearn.oregon.gov/Default.aspx https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx mailto:BIDSDEQ@DEQ.OREGON.GOV mailto:BIDSDEQ@DEQ.OREGON.GOV

The closing date and time are subject to change. Changes, if any, will be posted to OregonBuys by written Addenda.

6. Bid Evaluation and Contractor Selection

To be considered responsive, bids must substantially comply with all requirements of this RFQ and all prescribed public solicitation procedures. Bids that do not comply with the requirements of this RFQ or meet all prescribed solicitation procedures will be deemed non-responsive. In making such evaluation, DEQ may waive minor informalities and irregularities. The award of a Price Agreement resulting from this RFQ shall be based on whose bid will best serve the interests of DEQ, taking into account price as well as considerations including, but not limited to, experience, expertise, has a satisfactory record of performance, product functionality, suitability for a particular purpose and contractor responsibility under ORS 279B.110. DEQ reserves the right to negotiate additional fees provided by Bidder.

SECTION C – SPECIFICATIONS/STATEMENT OF WORK; DELIVERY REQUIREMENTS;

DELIVERY SCHEDULE; AND ACCEPTANCE CRITERIA

SPECIFICATIONS/STATEMENT OF WORK

The intended contract is for purchase and repair of filter-based particulate matter samplers configured to collect ambient air samples. There will be two systems needed. There will be a possible initial purchase of 25 samplers and samplers may be purchased in the future on an as needed basis and as funding allows.

NFRM sampler:

NFRM sampler will include a sampler with an adjustable flow range of 10 to 20 liters per minute (LPM and SLPM). Ambient temperature and barometric pressure probes are required to be installed.

This sampler will flow at 16.7 LPM and have a 1.25” diameter inlet. It will include a 1.25” filter adapter that fits in line with an optionally included 1.25” sharp-cut PM2.5 cyclone as well as an included 1.25” PM10 impactor separator with a moisture trap. Samplers will mount on a 1.25” – 1.375” diameter tripod assembly. Sampler should have software that can display current temperature and barometric pressure and record these parameters every minute for the sample run time. The sampler will have an adjustable clock and will record total run-time. The samplers will be powered by 120 VAC and also having the capability of using solar powered electric. The samplers should include any cables and consumable parts necessary to install a working system.

Required Specs for NFRM sampler:

• Adjustable flow Range: 14-19 LPM

• Nominal Flow: 16.7 LPM

• Data Output: USB Drive

• Mountable on standard tripod

• Adapter and cassette for holding 47 mm filter

• Barometric Pressure gauge

• External ambient temperature gauge

• Adaptable to 120 VAC outlet

Preferred Specs for NFRM sampler:

• Option for solar power

• Li-Ion Backup Batteries: 18V / 5A each

• Solar/Battery Operation: 30+ hours

• Option for measuring particulate matter

• Optional wind sensor to start motor for specific wind direction

Carbonyl Sampler:

Carbonyl Sampler will include a sampler with an adjustable flow range of 0.5 to 1.5 cubic centimeters per minute (ccm and sccm). This sampler will flow at 1.0 sccm and will have an adapter designed to hold commercially available, EPA-approved DNPH cartridges (Waters and Supelco). An ambient barometric pressure probe is required to be installed, as well as an inline temperature probe just downstream of the DNPH cartridge adapter. This sampler will have a removeable, shielded, heated copper coil upstream of the cartridge holder with an adjustable temperature range between 50 °C and 150 °C and compatible with Swagelok stainless steel, ¼” compression fittings. Sampler should have software that can display current temperature and barometric pressure and record these parameters every minute for the sample run time. The sampler will have an adjustable clock and will record total run-time.

Required Specs for Carbonyl sampler:

• Flow Range: 0.7-1.3 LPM

• Nominal Flow: 1.0 LPM

• Data Output: USB Drive or ethernet connection

• Adapter for DNPH cartridge

• Heated, coiled inlet with temperature range of 30 – 200 °C

• Barometric Pressure gauge

• In-line temperature gauge downstream of cartridge adapter

Preferred Specs for Carbonyl sampler:

• Switch valve for flow audits/leak checks

• Software option for 5-point flow calibration

• Software option for leak checking system

• Optional wall mount assembly

Requirements for both NFRM and Carbonyl Samplers:

• The software will hold a minimum 10 data records. The field operators should be able to:

Program sample runs for variable start date/time; Adjust the sample duration; Input a 4-number ID for each sample; Download all records into a csv format; Read both ambient and standard flow rates; Record a total volume collected during a sample run; And read an average flow rate, temperature measurement and barometric pressure measurement from the sample run.

• The motor will automatically turn off in the case of a malfunction and apply an appropriate flag to explain the malfunction (ex. - F for flow fault).

• The samplers should provide the capability of calibrating the temperature, pressure and flow rates and provide a leak check function. Flow calibrations will have an adjustable slope and intercept making it capable of a 5-point curve.

• The purchase is required to include a full warranty period of no less than one year.

Requirements for Service/Calibration Services/Repairs:

a. All Repair and Calibration Service must include full instrument calibration across complete measurement range

b. Calibration must be certified as NIST traceable

c. Repairs must restore instruments to factory operating standards

Equipment Manuals

Bidder must provide one (1) printed copy of operation and maintenance manuals for the equipment upon delivery.

Technical Support

Original equipment manufacturer (OEM) or authorized distributor must provide on call technical support in conjunction with the original warranty period, and future maintenance/service agreements, which are subject to DEQ’s discretion to purchase. Technical support must be available at no additional cost to DEQ during Bidder’s business hours to answer questions involving instrument DEQ RFQ Template (DRAFT V.1 7/2017) 4 repairs, maintenance or other technical difficulties related to instrument performance. Technical support must be for operation, repair and calibration service support on all equipment components. Bidder must return all calls and emails within two (2) business days after DEQ contacts the Bidder for support.

Maintenance Service Agreement

Bidder must have the personnel and equipment to provide annual maintenance services if DEQ decides to purchase this option after the initial warranty period. All labor, travel, lodging, materials, tools and equipment necessary must be included to service and repair the equipment listed in Table 2 of Attachment 1 of this RFQ. The service agreement must include but is not limited to one (1) preventative maintenance (PM) visit per year to assure that all of the manufacturer’s original specifications are met and unlimited off-site technical support assistance in order to achieve optimal performance and to mediate any problem resolution. PM Service must be arranged in advance and at a mutually agreed upon date and time. The Service Agreement must include parts and component replacement, if necessary, to service and maintain the equipment.

DELIVERY REQUIREMENTS

Shipping FOB

DELIVERY SCHEDULE

Deliveries will be F.O.B place of destination, freight prepaid. Contractor will deliver the Goods to DEQ at 7202 NE Evergreen Parkway, Suite 150, Hillsboro, OR 97124 no later than 45 calendar days from the date of the last signature on this COD. If the 45th day falls on a weekend or a State of Oregon holiday, final delivery shall be made by the next business day.

ACCEPTANCE CRITERIA

Samplers will be tested and audited for full functionality by AQM staff within 30 calendar days of receiving the equipment. See Attachment 3, EXHIBIT C Special Terms and Conditions.

DELL Christina * DEQ Me - insert delivery, schedule and acceptance language

ATTACHMENT 1

COST SUBMITTAL FORM

Bidder must provide prices for all items in all sections below.

All pricing must remain firm for the initial two year term of the Contract.

Prices must be in U.S. Funds, no more than two (2) digits to the right of decimal point.

If DEQ discovers an error in the extension of any item, the unit prices will govern.

All quantities listed are estimates only for bid evaluation purposes. DEQ does not imply or guarantee any quantities to be purchased during the course of any term of the resulting Contract.

Total cost for each table will be added together to obtain the total Bid price.

If there is no charge for any item, write N/C in the corresponding price column.

Bidder shall list all costs that will be charged to DEQ that have not been previously identified above. These items must be clearly described, shall include itemized pricing for each occurrence, and the frequency of cost.

If additional line items are needed by Bidder, attach additional sheet labeled Attachment 1 with clearly identified section number/name and in the same table format as below.

Costs not included on this Attachment 1 in Bidder’s Offer will not be included as allowable costs in the Contract.

Table 1 - EQUIPMENT:

Item

Item Quantity Units Part Number

Discount or Discounted unit cost

Price

1 N-FRM Sampler 1 EA 2 PM10 Impactor inlet 1 EA 3 PM2.5 cyclone inlet 1 EA 4 47 mm filter holder 1 EA 5 Tripod support 1 EA 6 Solar Power package 1 EA 7 Carbonyl Sampler 1 EA

Table 2 - SERVICES:

Item # Service Quantity Units % Discount or Discounted unit cost

Price

1 Calibration/Service – N-FRM 1 EA

2 Calibration/Service – Carbonyl 1 EA

3 Labor Rate (Off-site support and tech services)

HR

4 *Additional Costs (i.e. shipping and handling)

* Bidder must identify and provide a cost for any other charges/fees (minimum order, surcharges, etc.) that may be billed for. Only costs listed by the successful Bidder may be considered as part of the Price Agreement.

ATTACHMENT 2

BID COVER SHEET

PART 1 – GENERAL INFORMATION

RFQ #: __________________

Organization Name (tax filing): ___________________________________________________________

Primary Contact: __________________________________ Title: ________________________________ (Print Name)

Street Address: ____________________________________ City, State, Zip: ________________________

Telephone: _______________________ E-mail Address: ________________________________________

OregonBuys #: _______________________ (Contractor Only) Oregon Business ID#:

COBID #: _____________________ (Contractor Only: If certified by the Certification Office of Business Inclusion and Diversity (COBID) as a Disadvantaged Business Enterprise, Minority Business Enterprise/Women Business Enterprise, or Emerging Small Business.)

Delivery Method. Please check the applicable box below. If Bidder is using a common carrier to deliver the goods identified in the RFP or subcontractor any part of the work bidder must provide company information for each subcontractor with the Bid. Bidder must state whether or not the subcontractor is registered with the Oregon Office of Minority, Women’s and Emerging Small Business Enterprises and provide the certification number.

□ My company will be shipping the goods by common carrier.

□ My company will be shipping the goods using our company fleet and understand I must meet the insurance types and limits and provide proof of insurance as outlined in Attachment 2 Part IV upon request.

Provide below the name and title of the person(s) authorized to sign any Contract that may result.

Authorized Representative: _______________________________________________________________ (Print Name) Title

Authorized Signer(s): _____________________________________________________________________ (Print Name) Title

PART II – REPRESENTATIONS, ATTESTATIONS, AND CERTIFICATIONS: The undersigned further acknowledges, attests and certifies individually and on behalf of the Bidder that:

1. No attempt has been made or shall be made by the Bidder to induce any other person or organization to submit or not submit a Bid.

2. Information and prices included in this Bid shall remain valid for ninety (90) days after the bid due date or until a Contract is approved, whichever comes first.

3. The Bidder understands that all Bids not withdrawn prior to the RFQ Close Date become the property of the State of Oregon as of the Bid due date and Bidder grants the State the right to use all information contained therein.

4. The Bidder acknowledges receipt of all Addenda issued under the RFQ.

5. Bidder does not discriminate in its employment practices with regard to race, creed, age, religious affiliation, sex, disability, sexual orientation or national origin, nor has Bidder or will Bidder discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women or emerging small business enterprise certified under ORS 200.055.

6. The Bidder, acting through its authorized representative, has read and understands all RFQ instructions, specifications, and terms and conditions contained within the RFQ, including those in the Sample Contract.

7. The Bidder agrees to and shall comply with, all requirements, specifications and terms and conditions contained within the RFQ, including all Addenda, if any;

8. The Bid submitted is in response to the specific language contained in the RFQ, and Bidder has made no assumptions based upon either (a) verbal or written statements not contained in the RFQ, or (b) any previously-issued RFQ, if any.

9. The Bidder agrees that if awarded the Contract, Bidder shall be authorized to do business in the State of

Oregon at the time of the award;

10. Agency shall not be liable for any claims or be subject to any defenses asserted by Bidder based upon, resulting from, or related to, Bidder’s failure to comprehend all requirements of the RFQ.

11. The Agency shall not be liable for any expenses incurred by Bidder in either preparing or submitting its

Bid, or in participating in any evaluation/selection process, if any.

12. Bidders shall use recyclable products to the maximum extent economically feasible in the performance of the Contract and of the Work set forth in this document.

13. Bidder, acting through its authorized representative, has knowledge regarding Contractor’s payment of taxes, and to the best of Bidders knowledge the Contractor is not in violation of any Oregon tax laws, including, without limitation, ORS 305.620 and ORS chapters 316, 317 and 318. Bidder understands and agrees to provide written notice to Agency within two business days of any change to the Bidder’s status of tax law compliance.

PART III – OFFICE OF FOREIGN ASSETS CONTROL AND US DEPARTMENT OF STATE:

Bidder and Bidder’s employees and agents are not included on:

a. The list entitled “Specialty Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or

b. The list entitled “Current List of Designated Foreign Terrorist Organizations of the US Department of State” and currently found at https://www.state.gov/j/ct/rls/other/des/123085.htm

Part IV – INSURANCE REQUIREMENTS: Bidder agrees to meet the insurance requirements outlined in Attachment 3 Exhibit B – Insurance Requirements that will be included as a part of any Contract issued in response to this RFQ.

PART V – SIGNATURE: The signatory of this Bidder Cover sheet is a duly authorized representative of the Bidder, has been authorized by Bidder to make all a representations, attestations, and certifications contained in this bid document and all Addenda, if any, issued, and to execute this Bid document on behalf of Bidder.

By signature below, the undersigned Authorized Representative hereby certifies on behalf of Bidder that all contents of this Bidder Cover sheet and the submitted Bid are truthful, complete and accurate. The undersigned Authorized Representative further agrees to have knowledge regarding Bidder’s payment of taxes, and to the best of the Authorized Representative’s knowledge, Bidder is not in violation of any change to the Bidder’s status of tax law compliance. Failure to provide information required by the RFQ may ultimately result in rejection of the Bid.

THIS COVER PAGE MAY NOT BE ALTERED. THIS COVER PAGE MUST BE SIGNED IN BLUE

OR BLACK INK BY AN AUTHORIZED REPRESENTATIVE OF THE BIDDER.

Authorized Signature: ___________________________________________________________________

Print Name: ______________________________________________________________________

Title: ______________________________________________________________________ https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.state.gov/j/ct/rls/other/des/123085.htm

ATTACHMENT 3

SAMPLE CONTRACT

State of Oregon

Contract for Services

This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Department of Environmental Quality (DEQ), (“Agency)” and ________, a [_______][doing business as _____] (“Contractor”) and is effective as of the Effective Date.

Contractor’s Contract Administrator for this Contract is:

Name and Title **Address **City, State ZIP Phone: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx anyname@yahoo.com

Agency's Contract Administrator for this Contract is:

Benjamin Ayres, Air Quality Monitoring Specialist Oregon Department of Environmental Quality Laboratory & Environmental Assessment Division 7202 NE Evergreen Parkway, Suite 150 Hillsboro, OR 97124 Phone: 971-303-2537 Email: Benjamin.Ayres@deq.oregon.gov

Either party may change its Contract Administrator by providing the other notice in compliance with Section 17.6 of this Contract.

1. Contract Term.

The “Effective Date” of this Contract is the date this Contract has been fully executed by each party and, approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Contract terminates on _____. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

This Contract less all exhibits;

2.1. Exhibit A (Statement of Work);

2.2. Exhibit B (Required Insurance);

2.3. Exhibit C (Special Terms and Conditions);

2.4. Exhibit D (Independent Contractor Certification);

2.5. Exhibit E (Pricing)

mailto:anyname@yahoo.com mailto:Benjamin.Ayres@deq.oregon.gov

2.6. Exhibit F (Contract Order Document)

The foregoing documents and Exhibits are attached hereto and made a part of the Contract by this reference.

3. Services.

3.1. Performance of Services. Contractor shall perform the services (the “Services”) and deliver to agency the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”).

The Statement of Work includes the delivery schedule for the Deliverables and Services. Contractor shall perform the Services in accordance with the terms and conditions of this Contract.

3.2. Submission and Acceptance of Deliverables. When the Statement of Work requires Contractor to deliver Deliverables to Agency, then Contractor shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Work. Contractor shall provide written notice to Agency upon delivery of a completed Deliverables to Agency. By no later than (i) 15 business days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Work, Agency will determine whether the Deliverables has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Work. If Agency determines that the Deliverables has the characteristics and meets acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s acceptance of the Deliverables.

3.3. Rejection of Deliverables; Corrections. If Agency determines that a Deliverables does not have the characteristics or otherwise meet the acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverables, and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverables. Upon receipt of notice of non-acceptance, Contractor shall, within a 15 business day period, modify or improve the Deliverables at Contractor’s sole expense so that the Deliverables has the characteristics described in the Statement of Work and meets, in all material respects, the acceptance criteria, and notify the Agency in writing that it has completed such modifications or improvements and re-tender the Deliverables to Agency. Agency will thereafter review the modified or improved Deliverables within 15 business days of receipt of the Contractor's delivery of the Deliverables. Failure of the Deliverables to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Work after the second submission will constitute a default by Contractor. In the event of such default, Agency may either, (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this Section, or (ii) notify Contractor of such default and pursue its remedies for default provided for by law or the terms of this Contract.

4. Compensation.

4.1. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $150,000.00. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract, and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the amendment.

4.2. Payments. Payments, including interim payments, to Contractor are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A.

4.3. Invoices. Contractor shall submit invoices to Agency as set forth in the Statement of Work or, if not set forth therein, to Agency’s Contract Administrator. Contractor may submit invoices in accordance with the payment schedule set forth in the Statement of Work or, if no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables and Services The invoices must describe all Services performed with particularity, including the dates Contractor performed the Services for which it is requesting payment, and by whom the Services were performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement.

4.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work or elsewhere in this Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at:

http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

4.5. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any agency or department of the State of Oregon other than Agency. Agency believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

5. Contractor’s Personnel.

5.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's key persons identified in the Statement of Work (each a “Key Person” and, together, “Key Persons”). Neither Contractor nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Contractor employee, subcontractor or agent without first obtaining the written consent of Agency. Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Contract, and the Statement of Work will be deemed amended to include such Key Person.

5.2. Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services.

Such period of non-charge will be agreed upon by the parties.

http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

5.3. State Premises. Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other agency of the State.

6. Independent Contractor; Responsibility For Taxes And Withholding

6.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

6.2. No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

6.3. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

7. Subcontracts, Successors, And Assignments

7.1. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor.

Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

7.2. Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns, if any.

7.3. No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without Agency’s prior written consent.

8. Representations and Warranties.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to Agency that:

8.1.1. Contractor has the power and authority to enter into and perform this Contract;

8.1.2. This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

8.1.3. Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services;

8.1.4. Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

8.1.5. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

8.1.5.1. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

8.1.5.2. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

8.1.5.3. Any tax provisions imposed by a political subdivision of this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and

8.1.5.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions.

8.2. Contractor’s Performance Warranties.

8.2.1. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

8.2.2. The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract;

8.2.3. Except as otherwise provided in this Contract (including Section 9), Contractor shall transfer all Deliverables to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

8.2.4. Except as otherwise set forth in this Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the Deliverables to Contractor or Agency and no third party has any right, title or interest in any Deliverables supplied to Agency under this Contract.

8.3. Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

9. Ownership of Work Product.

9.1. Definitions. As used in this Section 9, and elsewhere in this Contract, the following terms have the meanings set forth below:

9.1.1. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Services.

9.1.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

9.1.3. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to this Contract, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection).

9.2. Original Works. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations of Work Product, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of Agency. Agency and Contractor agree that such Work Product is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

9.3. License in Contractor Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

9.4. License in Third Party Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the Agency’s behalf and in the name of the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

9.5. No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

9.6. Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract.

9.7. Competing Services. Subject to the provisions of this Section 9, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Contract. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Contract free of any use restriction or payment obligation to the other.

10. Confidential Information.

10.1. Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients. Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this Contract shall be considered for the purposes of this Contract the confidential information of Agency (“Confidential Information”). Contractor shall, and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract; (iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

10.2. Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise Contractor Staff of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information.

Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

10.3. Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential Information to Agency for Agency’s review and consent. Such policies must address information conveyed in oral, written, and electronic format and include procedures for how Contractor will respond when a violation or possible violation occurs.

10.4. Injunctive Relief. Contractor acknowledges that breach of this Section 10, including disclosure of any Confidential Information, will cause irreparable injury to Agency that is inadequately compensable in damages. Accordingly, Agency may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.

Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Agency and are reasonable in scope and content.

10.5. Publicity. Contractor agrees that it will not disclose the form, content or existence of this Contract or any Deliverables in any advertising, press releases or other materials distributed to prospective…