ATTACHMENT 3 MODIFICATIONS AND EXCEPTIONS.docx
DOCX document 21 KB Posted
- Attached to
- Lowboy Equipment Trailer
- Solicitation number
- 308
- Issued by
- Ada County, Idaho
About this file
This document is an Attachment 3 - Modification and Exception Form related to an Invitation to Negotiate (ITN) for Intrastate Outbound Freight Delivery services issued by the Idaho Division of Purchasing (DOP). The ITN outlines requirements, terms, and conditions for the delivery services contract, and this form allows vendors to propose modifications or exceptions to those elements. Key details include:
The vendor is requesting modifications to the indemnification, insurance, liquidated damages, and force majeure provisions of the contract. Specifically, the vendor seeks to shift liability and financial responsibility for the state's negligent acts or omissions, reduce insurance coverage requirements, eliminate liquidated damages, and obtain reimbursement for fixed costs during force majeure events. The state has declined several of these requests but may consider others during contract negotiations. The contract term, award details, and other core solicitation information are not provided in this document.
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ATTACHMENT 3 – MODIFICATION AND EXCEPTION FORM
ITN Event 106 Intrastate Outbound Freight Delivery Instructions: Complete this form and submit with your ITN submittal if you are proposing modifications or taking exception to any of the requirements, terms, or conditions included in the ITN, including any documents incorporated by reference (such as the Standard Contract Terms and Conditions.) See ITN Section 2.4 for a full explanation of the process surrounding vendor-proposed modifications and exceptions.
Offerors must specifically address any and all proposed modifications and exceptions. Blanket requests to negotiate requirements, terms, or conditions will not be considered. Offerors must provide an explanation as to why the requirement, term, or condition should be considered non-material. Offeror must also provide a reason for the proposed modification or alternative language, specifically addressing the issues itemized in ITN Section 2.4.1.
The determination of materiality will be made at the State’s sole discretion. Non-material modifications or exceptions may be negotiated with the apparent successful Offeror, at the discretion of the State, and as otherwise provided in ITN Section 2.4.4.
| ITN Section |
| ITN Requirement, Term, or Condition |
| Reason Requirement, Term, or Condition Should be Considered Non-Material |
| Proposed Modification, Alternative, or Exception |
| Reason for Proposed Modification, Alternative, or Exception |
| Response |
| Appendix B – Indemnification |
| Contractor is requesting indemnification from the State for the State’s negligent acts or omissions. |
| Contractor is providing services to the State. The State needs to be responsible for its negligence or omissions regarding the services being performed by the Contractor. |
| The State’s Indemnification of the Contractor is added to the Agreement / Contract. |
| Contractor needs to be protected from the State’s negligent acts or omissions. |
| The state declines to accept this modification |
Appendix C – Section 1 Insurance
| Contractor’s insurance policies being primary to any coverage of the ISLD on or related to the Contract. |
| Contractors’ insurance should not be primary if there is negligence of the State for a given claim for damages. |
| The following sentence be removed from the insurance language “The coverage provided by such policies shall be primary to any coverage of the ISLD on or related to the Contract and shall provide that the insurance afforded applies separately to each insured against whom a claim is made, except with respect to the limitation of liability. |
| Each party should be responsible for, and each party’s insurance should cover their negligence or omissions. |
| The state declines to accept this modification |
| Appendix C – Section 1 Insurance |
| Insurance - Contractor providing a waiver of subrogation in favor of the State. |
| The State should be financially responsible if its negligence or omissions cause injury or damage to the Contractor’s personnel or equipment |
| The following sentence be removed from the insurance language “Contractor waives all rights against the ISLD and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the required policies.” |
| The state should be financially responsible if its negligence or omissions cause injury or damage to the contractor’s personnel or equipment |
| The State may consider this request during negotiations |
| Appendix C – Section 1 Insurance |
| Motor Truck General Liability Insurance |
| Requesting this coverage be removed or omitted if a Contractor’s Commercial General Liability insurance covers appropriately |
| Remove the section “v. Motor Cargo insurance with a limit of not less than $1,000,000 per occurrence/$2,000,000 aggregate |
| Allow this coverage to be removed or omitted if a Contractor’s General Liability Insurance would cover. |
| The State may consider this request during negotiations |
| Appendix C – Section 1 Insurance |
| Motor Cargo Insurance |
| Requesting the coverage in the Motor Cargo Insurance be reduced to $100,000 per occurrence. |
| Requesting the coverage in the Motor Cargo Insurance be reduced to $100,000 per occurrence and Contractor’s cargo liability be capped at $100,000 per trailer load.. |
| The cargo on each trailer should not exceed $100,000 per trailer. |
| The State may consider this request during negotiations |
| Section 7 – Liquidated Damages |
| Liquidated Damages |
| Requesting this section be removed from the proposed Agreement |
| Requesting this section be removed from the proposed Agreement. |
| Contractor’s only liability should be for the loss or damage to cargo. Consequential or special damages should not be a part of this Agreement. |
| The State may consider this request during negotiations |
| Appendix C – Section 10 Force Majeure |
| Force Majeure language |
| Contractor is providing fixed resources for the Services to be used solely by the State of Idaho. The costs of these resources need to be covered during a Force Majeure event. |
| Contractor is requesting the following sentence be added at the end of this section. “If the performance of the services provided for in this Agreement is interrupted or suspended as a result of such an occurrence of Force Majeure, a performance guarantee charge, to reimburse Contractor for its fixed and unavoidable costs for the period of Force Majeure shall be mutually agreed to by the parties at the time.” |
| Contractor is providing fixed resources for the Services to be used solely by the State of Idaho. The costs of these resources need to be covered during a Force Majeure event. |
| The state declines to accept this modification |
| Appendix C – Section 11 Audit |
| Length of time documents need to be kept. |
| This retention period is significantly greater than that required by the Federal Motor Carriers Safety Administration |
| Contractor proposes the following: “Contractor shall maintain all electronic and hardcopy books, records, documents, and other evidence pertaining to the administrative costs and expenses of the Contract to the extent and in such detail as shall properly reflect all revenues, all net costs, direct and apportioned, and other costs and expenses of whatever nature relevant to performance under this Contract. Contractor shall maintain all records and documents relevant to the Contract and as required by Federal Motor Carriers Safety Administration Regulations (See FMCSA, 49 C.F.R. Part 379 et seq and Its Appendix), or applicable federal law. Documents not required for retention under FMSCSA Regulations shall be destroyed according to Contractor's retention policy. |
| This will allow Contract to operate more efficiently by have one standard for record retention. |
| The state declines to accept this modification. |
| Appendix C – Section 12 Monthly Adjustment for Fuel Costs | |
| The monthly calculation for fuel costs and effective date for reimbursement. | |
| The calculation for fuel needs to be weekly and should not be implemented three (3) months after the Effective Date of the contract. | |
| Contractor proposes the following Fuel provisions: | “Diesel fuel is included in Contractor’s rates based on a $1.20 peg. Contract will bill a weekly surcharge of $0.01 per mile for every $0.06 increase in the DOE Rocky Mountain (PADD4) price from $1.20 per gallon.” |
| Contractor’s proposal reflects the actual fuel used and is a more efficient method to reimburse contractor for its fuel expenditures. | |
| The State may consider this request during negotiations |
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