Bid 6100029003 - Addendum 1 - Questions and Answers.pdf

BOP-1305

Published 12/05/2013

SOLICITATION ADDENDUM

Date: 5-7-14

Subject: Questions and Answers Solicitation Number: 6100029003

Due Date/Time: 5-23-14/2:00PM Addendum Number: 1

To All Suppliers:

The Commonwealth of Pennsylvania defines a solicitation “Addendum” as an addition to or amendment of the original terms, conditions, specifications, or instructions of a procurement solicitation (e.g., Invitation for Bids or Request for Proposals).

List any and all changes:

See attached questions and answers.

Type of Solicitation: Electronic Bid (SRM) - Review the Questions section of your solicitation response to ensure you have responded, as required, to any questions relevant to solicitation addenda issued subsequent to the initial advertisement of the solicitation opportunity.

Except as clarified and amended by this Addendum, the terms, conditions, specifications, and instructions of the solicitation and any previous solicitation addenda, remain as originally written.

Respectfully, Name: Russ Ilgenfritz Title: Administrative Officer Phone: 717-728-3919 Email: rilgenfrit@pa.gov

Bid #6100029003 Addendum 1

Questions and Answers

1. Is this a re-bid of an existing contract? Yes. If so, who is the incumbent firm for furnishing services to support the existing Environmental Testing Contract? ALS Environmental

2. If this is a re-bid of an existing contract, are the bid item rates and terms/conditions for the current contract available for review by potential bidders? If yes, how may the terms/conditions and current bid rates be accessed? See attached rates, terms and conditions.

3. As mentioned in Section IV, Paragraph 2 of the Statement of Work, please define what is meant by “current standard rate” as it pertains to analytical services. Does this mean at contract award or at the time the analysis is performed, even if for example 2 years from now? The cost of analysis could likely increase from the time of contract award. The cost of the analysis covers the life of the contract with the potential of a 2% increase from the prior year price. The vendor may not increase cost other that addressed in the proposal without the prior consent of the Commonwealth of Pennsylvania.

4. As mentioned in Section VI, Paragraph 1, 2nd Sentence of the Statement of Work, please clarify what should be included in the “Cost Per Analysis”. Is the contract specifying that the “Cost Per Analysis” include all contractor costs for supplies, and forms with travel expenses being billed separately in accordance with Management Directive 230.10; or should the Cost Per Analysis” include all contractor costs for supplies, forms, and travel expenses in accordance with Management Directive

230.10. This is clear in the fact that all analysis shall be listed at value and any remaining ancillary materials are itemized. This is addressed in section IV Services to be Provided. The cost of travel expenses are clearly spelled out in the Management Directive and shall be listed separately on the invoice.

5. As mentioned in Section VI, Paragraph 1, 2nd Sentence of the Statement of Work, please clarify the types of travel expenses that a contractor is eligible for reimbursement on an annual basis against the $5,000/contract year allowance.

This is defined in the Management Directive 230.10 which is attached to the bid.

6. If a large number of work orders are assigned to a contractor in a contract year and the eligible travel costs exceed $5,000 in that same year, how is the contractor to be reimbursed for such travel costs above the $5,000 allowance? The vendor shall not assume any travel expense without prior authorization from Department of Corrections Central Office, Bureau of Operations.

7. Regarding contractor qualifications, please confirm that a contractor that is not a certified/accredited laboratory can subcontract to a certified/accredited laboratory to perform the requested analytical services. The collection and testing can be conducted by a sub-contractor with the responsibility of the accuracy and custody remaining with the successful bidder.

8. For the 8 labor classifications that do not require certification/licensure, are there any minimum educational, years of experience, and/or training requirements? Using recognized industry standards by accredited laboratories preforming Environmental testing.

9. In regards to sample turn-around-time (TAT), please clarify when the TAT begins… upon completion of sample collection or upon receipt of samples at the laboratory.

Using recognized industry standards by accredited laboratories preforming Environmental testing.

10. Please clarify when standard labor rates apply and when overtime labor rates apply.

Is the billing left up to the contractor or does the Department of Corrections have criteria that the contractor is to follow that dictates which rate to use? Department of Corrections Central Office, Bureau of Operations does not set the pay scale.

The following comments pertain to the Cost Sheet

1. General Comment #1, will the Department of Corrections please issue a revised Cost Sheet, listing the units for each bid item? No

2. General Comment #2, will the Department of Corrections please provide a listing of the analytical methods for the various analytical tests? Recognized industry standards by accredited laboratories preforming Environmental testing shall be used.

3. General Comment #3, will the Department of Corrections please clarify the reporting limits for the various analytical tests? Recognized industry standards by accredited laboratories preforming Environmental testing shall be used.

4. General Comment #4, will the Department of Corrections please clarify the media (i.e., air, water, soil, waste, etc.) for the various analytical tests, especially for the individual bid items included in the “Organics”, “Toxicity Characteristic Leaching Procedures (TCLP) Including Extractions”, and “Miscellaneous” cost sheet sections? Recognized industry standards by accredited laboratories preforming Environmental testing shall be used.

5. Personnel Costs Per Hour Section – Will the Department of Corrections please provide clarification on what is to be included for the “Report Preparation” bid item? Specifically, is this a unit cost per report, or a labor cost per hour for preparing reports? IV Services to be provided indicates: The contractor shall provide a consolidated computerized invoice for each requested service call. Each invoice shall include an itemized account of the personnel costs and other expenses as well as the number and type of each analytical service performed.

6. Air Sample Analysis Section – Will the Department of Corrections please provide clarification on which “analyses” are to be performed in and by an accredited laboratory and which can be performed in the field using field screening instrumentation? Then for those that can be performed via field screening instrumentation, please further define how we are to derive standard and rush rates. The analysis methods are listed in the Cost sheet. The determination of the analysis process will be identified by the context in which the testing was performed.

7. Air Sample Analysis Section – Will the Department of Corrections please provide clarification for the requirement to provide both a standard 2-3 day rate and a Rush (24 Hour) rate for analyzing TEM 72 Hour and TEM 48 Hour sample analysis? The listed times are contradictory. There is no contradiction. RUSH is considered to be the 24 hour rate. Standard 48 and 72 hours is self-explanatory.

8. Air Sample Analysis Section – Will the Department of Corrections please clarify the unit rate cost being requested for the XRF Analyzer bid item? How is a contractor to provide a cost for Standard (2-3 day) and Rush (24 Hour) rates on an equipment item? Perhaps the costs should be on a unit rate “per day” and “per week”? What will the equipment cost be? 24 hour period or 48-72 hour period.

9. Air Sample Analysis Section – For the “Elemental Metals Scan of 18 Metals” bid item, will the Department of Corrections please clarify which 18 Metals should be included for reporting purposes? In addition, are there any specific analytical methods desired for determining the concentration of the metals? Along with recognized industry standards by accredited laboratories preforming Environmental testing DEP and EPA protocols shall be implemented depending on the sampling data.

10. Air Sample Analysis Section – For the “Hydrocarbons” bid item, will the Department of Corrections please clarify which hydrocarbon compounds should be reported? In addition, are there any specific analytical methods desired for determining the concentration of the hydrocarbons? Recognized industry standards by accredited

11. Air Sample Analysis Section – For the “VOC Scan” bid item, will the Department of Corrections please clarify which volatile organic compounds (VOCs) should be reported?

In addition, are there any specific analytical methods desired for determining the concentration of the VOCs? Recognized industry standards by accredited laboratories preforming Environmental testing shall be used along with any additional requirements dependent on the situation in which testing occurs.

12. Air Sample Analysis Section – For the “Welding Brazing Fume (ICP Scan)” bid item, will the Department of Corrections please clarify which compounds should be reported? In addition, are there any specific analytical methods desired for conducting the analysis?

Recognized industry standards by accredited laboratories preforming Environmental testing shall be included.

13. Water/Soil Sample Analysis Section – For the “Inorganics” bid item, will the Department of Corrections please clarify which inorganic compounds should be reported? In addition, are there any specific analytical methods desired for conducting the inorganic analysis? Recognized industry standards by accredited laboratories preforming Environmental testing and any regulatory requirement shall be followed in relation to the sampling criteria.

14. Water/Soil Sample Analysis Section – For the “Metals, ICP” bid item, will the Department of Corrections please clarify which species of metals should be reported? In addition, are there any specific analytical methods desired for determining the concentrations of the various metal species? Are any preferred sample suites requested (i.e., target analyte list [TAL] or priority pollutant list [PPL])? Recognized industry standards by accredited laboratories preforming Environmental testing.

15. Organics Sample Analysis Section – For the “Volatile Organics (VOA)”, “BTEX”, “Pesticides”, and “Herbicides” bid items, will the Department of Corrections please clarify the type or types of sample media (i.e., soil or water) that analysis is needed? Both

16. Organics Sample Analysis Section – For the “Volatile Organics (VOA)” bid item, will the Department of Corrections please clarify which species of volatile organic compounds should be reported? In addition, are there any specific analytical methods desired for determining the concentrations of the VOCs? Are any preferred sample suites requested (i.e., target compound list [TCL] or priority pollutant list [PPL])? Recognized industry standards by accredited laboratories preforming Environmental testing shall be used.

17. Organics Sample Analysis Section – For the “Pesticides” bid item, will the Department of Corrections please clarify which species of pesticides should be reported? In addition, are there any specific analytical methods desired for determining the concentrations of the pesticides? Are any preferred sample suites requested (i.e., target compound list [TCL] or priority pollutant list [PPL])? Recognized industry standards by accredited

18. Organics Sample Analysis Section – For the “Herbicides” bid item, will the Department of Corrections please clarify which species of herbicides should be reported? In addition, are there any specific analytical methods desired for determining the concentrations of the herbicides? Are any preferred sample suites requested (i.e., target compound list [TCL] or priority pollutant list [PPL])? Recognized industry standards by accredited

19. Toxicity Characteristic Leaching Procedures (TCLP) Including Extractions Section – For the “TCLP Pest/PCB” bid item, will the Department of Corrections please clarify that poly chlorinated biphenyls (PCBs) are being required, even though no TCLP standards have been established under RCRA for PCBs? Perhaps this bid item should reference both pesticides and herbicides? Remains as stated.

20. Toxicity Characteristic Leaching Procedures (TCLP) Including Extractions Section – will the Department of Corrections please clarify the reporting times for all TCLP tests. In accordance with USEPA Method 1311, the extraction process for the TCLP test is 18 hours. Accordingly, the TCLP testing results cannot be reported in 24 hours. The vendor shall only provide pricing within their capabilities

21. Miscellaneous Section – will the Department of Corrections please clarify the type(s) of testing being requested for the analysis of the “Fly Ash” bid item? In addition, please clarify the specific analytical methods desired for analyzing the fly ash samples.

Recognized industry standards by accredited laboratories preforming Environmental testing shall be used along with DEP and EPA criteria.

22. Miscellaneous Section – will the Department of Corrections please clarify the type(s) of testing being requested for the analysis of the “Inorganic – Unknown Material Identification” bid item? In addition, please clarify the specific analytical methods desired for analyzing the unknown materials? This is difficult to answer, if the material is unknown the analytical method cannot be specified. Recognized industry standards by accredited laboratories preforming Environmental testing shall be used to identify unknown materials.

23. Microbiological Sample Section – will the Department of Corrections please clarify the reporting times (i.e., 2-3 days or 24 hours) for the “Bacteria”, “Mold/Yeast”, and “Legionella” bid items? In addition, please clarify the specific analytical methods desired for collecting and analyzing these samples. Recognized industry standards by accredited laboratories preforming Environmental testing shall be used.

24. Cleaning, Examination, AC/DC Proof Testing and Recertification Section - will the Department of Corrections please clarify what constitutes acceptable “cleaning” of various electrical insulating items? Please offer criteria that are well defined and can be objectively evaluated. Recognized industry standards by accredited laboratories preforming Environmental testing of electrical PPE shall be used.

25. Cleaning, Examination, AC/DC Proof Testing and Recertification Section - Regarding “Dosimeter Badge With Analysis” bid item, will the Department of Corrections please clarify the specific analytes that dosimeter badges are to be analyzed? FYI, there are many types of Dosimeter Badges with differing follow-up analysis. The badges and corresponding analysis have widely differing costs. What badges will this vendor provide for the application required. The vendor will supply the badge type and the analysis.

26. Other Expenses Section - will the Department of Corrections please clarify what costs are to be included in the “Sample Shuttle” bid item? Does this refer to an hourly cost for transporting the environmental samples to the testing laboratory, or a unit rate for laboratory courier service? As stated.

27. Other Expenses Section - will the Department of Corrections please clarify what costs are to be included in the “Shipping Charges – Actual Cost” bid item? Does this refer to correspondence charges associated with shipping reports/letters/deliverables to the DOC, or all shipping charges including reports/letters/deliverables, equipment, and laboratory samples? This shall be included in the itemized invoices outlined in Section

IV.

28. Cost Sheet Section C – This section references the “the Current Standard Rate for Other Analytical Services”. The cost sheet is also asking a contractor to provide a percentage discount on the standard rates. Will the Department of Corrections please provide a listing of the current standard rates so that a contractor can develop and offer a percent discount for this bid item? Reference to Question #2.

Commonwealth of Pennsylvania STD-274 Rev. 05/07/04

STANDARD CONTRACT

TERMS AND CONDITIONS FOR SERVICES

1. TERM OF CONTRACT

The term of the Contract shall commence on the Effective Date (as defined below) and shall end on the Expiration Date identified in the Contract, subject to the other provisions of the Contract. The Effective Date shall be fixed by the Contracting Officer after the Contract has been fully executed by the Contractor and by the Commonwealth and all approvals required by Commonwealth contracting procedures have been obtained. The Contract shall not be a legally binding contract until after the Effective Date is affixed and the fully-executed Contract has been sent to the Contractor. The Contracting Officer shall issue a written Notice to Proceed to the Contractor directing the Contractor to start performance on a date which is on or after the Effective Date. The Contractor shall not start the performance of any work prior to the date set forth in the Notice to Proceed and the Commonwealth shall not be liable to pay the Contractor for any service or work performed or expenses incurred before the date set forth in the Notice to Proceed. No agency employee has the authority to verbally direct the commencement of any work under this Contract. The Commonwealth reserves the right, upon notice to the Contractor, to extend the term of the Contract for up to three (3) months upon the same terms and conditions. This will be utilized to prevent a lapse in Contract coverage and only for the time necessary, up to three (3) months, to enter into a new contract.

2. INDEPENDENT CONTRACTOR

In performing the services required by the Contract, the Contractor will act as an independent contractor and not as an employee or agent of the Commonwealth.

3. COMPLIANCE WITH LAW

The Contractor shall comply with all applicable federal and state laws and regulations and local ordinances in the performance of the Contract.

4. ENVIRONMENTAL PROVISIONS

In the performance of the Contract, the Contractor shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations.

5. POST-CONSUMER RECYCLED CONTENT

Except as specifically waived by the Department of General Services in writing, any products which are provided to the Commonwealth as a part of the performance of the Contract must meet the minimum percentage levels for total recycled content as specified in Exhibits A-1 through A-8 to these Standard Contract Terms and Conditions.

6. COMPENSATION/EXPENSES

The Contractor shall be required to perform the specified services at the price(s) quoted in the Contract. All services shall be performed within the time period(s) specified in the Contract. The Contractor shall be compensated only for work performed to the satisfaction of the Commonwealth. The Contractor shall not be allowed or paid travel or per diem expenses except as specifically set forth in the Contract.

7. INVOICES

Unless the Contractor has been authorized by the Commonwealth for Evaluated Receipt Settlement or Vendor Self-Invoicing, the Contractor shall send an invoice itemized by line item to the address referenced on the purchase order promptly after services are satisfactorily completed. The invoice should include only amounts due under the Contract/purchase order. The purchase order number must be included on all invoices. In addition, the Commonwealth shall have the right to require the Contractor to prepare and submit a “Work In Progress” sheet that contains, at a minimum, the tasks performed, number of hours, hourly rate, and the purchase order or task order to which it refers.

8. PAYMENT

a. The Commonwealth shall put forth reasonable efforts to make payment by the required payment date. The required payment date is: (a) the date on which payment is due under the terms of the Contract; (b) thirty (30) days after a proper invoice actually is received at the “Provide Service and Bill To” address if a date on which payment is due is not specified in the Contract (a “proper” invoice is not received until the Commonwealth accepts the service as satisfactorily performed); or (c) the payment date specified on the invoice if later than the dates established by (a) and (b) above. Payment may be delayed if the payment amount on an invoice is not based upon the price(s) as stated in the Contract. If any payment is not made within fifteen (15) days after the required payment date, the Commonwealth may pay interest as determined by the Secretary of Budget in accordance with Act No. 266 of 1982 and regulations promulgated pursuant thereto.

Payment should not be construed by the Contractor as acceptance of the service performed by the Contractor. The Commonwealth reserves the right to conduct further testing and inspection after payment, but within a reasonable time after performance, and to reject the service if such post payment testing or inspection discloses a defect or a failure to meet specifications. The Contractor agrees that the Commonwealth may set off the amount of any state tax liability or other obligation of the Contractor or its subsidiaries to the Commonwealth against any payments due the Contractor under any contract with the Commonwealth.

b. The Commonwealth shall have the option of using the Commonwealth purchasing card to make purchases under the Contract or purchase order. The Commonwealth’s purchasing card is similar to a credit card in that there will be a small fee which the Contractor will be required to pay and the Contractor will receive payment directly from the card issuer rather than the Commonwealth. Any and all fees related to this type of payment are the responsibility of the Contractor. In no case will the Commonwealth allow increases in prices to offset credit card fees paid by the Contractor or any other charges incurred by the Contractor, unless specifically stated in the terms of the Contract or purchase order.

9. TAXES

The Commonwealth is exempt from all excise taxes imposed by the Internal Revenue Service and has accordingly registered with the Internal Revenue Service to make tax free purchases under Registration No.

23740001-K. With the exception of purchases of the following items, no exemption certificates are required and none will be issued: undyed diesel fuel, tires, trucks, gas guzzler emergency vehicles, and sports fishing equipment. The Commonwealth is also exempt from Pennsylvania state sales tax, local sales tax, public transportation assistance taxes and fees and vehicle rental tax. The Department of Revenue regulations provide that exemption certificates are not required for sales made to governmental entities and none will be issued. Nothing in this paragraph is meant to exempt a construction contractor from the payment of any of these taxes or fees which are required to be paid with respect to the purchase, use, rental, or lease of tangible personal property or taxable services used or transferred in connection with the performance of a construction contract.

10. WARRANTY

The Contractor warrants that all services performed by the Contractor, its agents and subcontractors shall be free and clear of any defects in workmanship or materials. Unless otherwise stated in the contract, all services and parts are warranted for a period of one year following completion of performance by the Contractor and acceptance by the Commonwealth. The Contractor shall correct any problem with the service and/or replace any defective part with a part of equivalent or superior quality without any additional cost to the Commonwealth.

11. PATENT, COPYRIGHT, AND TRADEMARK INDEMNITY

The Contractor warrants that it is the sole owner or author of, or has entered into a suitable legal agreement concerning either: a) the design of any product or process provided or used in the performance of the Contract which is covered by a patent, copyright, or trademark registration or other right duly authorized by state or federal law or b) any copyrighted matter in any report document or other material provided to the commonwealth under the contract. The Contractor shall defend any suit or proceeding brought against the Commonwealth on account of any alleged patent, copyright or trademark infringement in the United States of any of the products provided or used in the performance of the Contract. This is upon condition that the Commonwealth shall provide prompt notification in writing of such suit or proceeding; full right, authorization and opportunity to conduct the defense thereof; and full information and all reasonable cooperation for the defense of same. As principles of governmental or public law are involved, the Commonwealth may participate in or choose to conduct, in its sole discretion, the defense of any such action. If information and assistance are furnished by the Commonwealth at the Contractor’s written request, it shall be at the Contractor’s expense, but the responsibility for such expense shall be only that within the Contractor’s written authorization. The Contractor shall indemnify and hold the Commonwealth harmless from all damages, costs, and expenses, including attorney’s fees that the Contractor or the Commonwealth may pay or incur by reason of any infringement or violation of the rights occurring to any holder of copyright, trademark, or patent interests and rights in any products provided or used in the performance of the Contract. If any of the products provided by the Contractor in such suit or proceeding are held to constitute infringement and the use is enjoined, the Contractor shall, at its own expense and at its option, either procure the right to continue use of such infringement products, replace them with non-infringement equal performance products or modify them so that they are no longer infringing. If the Contractor is unable to do any of the preceding, the Contractor agrees to remove all the equipment or software which are obtained contemporaneously with the infringing product, or, at the option of the Commonwealth, only those items of equipment or software which are held to be infringing, and to pay the Commonwealth: 1) any amounts paid by the Commonwealth towards the purchase of the product, less straight line depreciation; 2) any license fee paid by the Commonwealth for the use of any software, less an amount for the period of usage; and 3) the pro rata portion of any maintenance fee representing the time remaining in any period of maintenance paid for. The obligations of the Contractor under this paragraph continue without time limit. No costs or expenses shall be incurred for the account of the Contractor without its written consent.

12. OWNERSHIP RIGHTS

The Commonwealth shall have unrestricted authority to reproduce, distribute, and use any submitted report, data, or material, and any software or modifications and any associated documentation that is designed or developed and delivered to the Commonwealth as part of the performance of the Contract.

13. ASSIGNMENT OF ANTITRUST CLAIMS

The Contractor and the Commonwealth recognize that in actual economic practice, overcharges by the Contractor’s suppliers resulting from violations of state or federal antitrust laws are in fact borne by the Commonwealth. As part of the consideration for the award of the Contract, and intending to be legally bound, the Contractor assigns to the Commonwealth all right, title and interest in and to any claims the Contractor now has, or may acquire, under state or federal antitrust laws relating to the products and services which are the subject of this Contract.

14. HOLD HARMLESS PROVISION

The Contractor shall hold the Commonwealth harmless from and indemnify the Commonwealth against any and all claims, demands and actions based upon or arising out of any activities performed by the Contractor and its employees and agents under this Contract and shall, at the request of the Commonwealth, defend any and all actions brought against the Commonwealth based upon any such claims or demands.

15. AUDIT PROVISIONS

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

16. DEFAULT

a. The Commonwealth may, subject to the provisions of Paragraph 17, Force Majeure, and in addition to its other rights under the Contract, declare the Contractor in default by written notice thereof to the Contractor, and terminate (as provided in Paragraph 18, Termination Provisions) the whole or any part of this Contract for any of the following reasons:

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

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

3) Unsatisfactory performance of the work;

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

5) Discontinuance of work without approval;

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

7) Insolvency or bankruptcy;

8) Assignment made for the benefit of creditors;

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

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

11) Breach of any provision of this Contract.

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

c. If the Contract is terminated as provided in Subparagraph a. above, the Commonwealth, in addition to any other rights provided in this paragraph, may require the Contractor to transfer title and deliver immediately to the Commonwealth in the manner and to the extent directed by the Issuing Office, such partially completed work, including, where applicable, reports, working papers and other documentation, as the Contractor has specifically produced or specifically acquired for the performance of such part of the Contract as has been terminated. Except as provided below, payment for completed work accepted by the Commonwealth shall be at the Contract price. Except as provided below, payment for partially completed work including, where applicable, reports and working papers, delivered to and accepted by the Commonwealth shall be in an amount agreed upon by the Contractor and Contracting Officer. The Commonwealth may withhold from amounts otherwise due the Contractor for such completed or partially completed works, such sum as the Contracting Officer determines to be necessary to protect the Commonwealth against loss.

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

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

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

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

17. FORCE MAJEURE

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

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

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

In the event of a declared emergency by competent governmental authorities, the Commonwealth by notice to the Contractor, may suspend all or a portion of the Contract.

18. TERMINATION PROVISIONS

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

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

b. NON-APPROPRIATION: The Commonwealth’s obligation to make payments during any

Commonwealth fiscal year succeeding the current fiscal year shall be subject to availability and appropriation of funds. When funds (state and/or federal) are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal year period, the Commonwealth shall have the right to terminate the contract. The contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the supplies or services delivered under this contract. Such reimbursement shall not include loss of profit, loss of use of money, or administrative or overhead costs. The reimbursement amount may be paid for any appropriations available for that purpose

c. TERMINATION FOR CAUSE: The Commonwealth shall have the right to terminate the

Contract for Contractor default under Paragraph 16, Default, upon written notice to the

Contractor. The Commonwealth shall also have the right, upon written notice to the Contractor, to terminate the Contract for other cause as specified in this Contract or by law. If it is later determined that the Commonwealth erred in terminating the Contract for cause, then, at the Commonwealth’s discretion, the Contract shall be deemed to have been terminated for convenience under the Subparagraph 18.a.

19. CONTRACT CONTROVERSIES

a. In the event of a controversy or claim arising from the Contract, the Contractor must, within six months after the cause of action accrues, file a written claim with the contracting officer for a determination. The claim shall state all grounds upon which the Contractor asserts a controversy exists. If the Contractor fails to file a claim or files an untimely claim, the Contractor is deemed to have waived its right to assert a claim in any forum.

b. The contracting officer shall review timely-filed claims and issue a final determination, in writing, regarding the claim. The final determination shall be issued within 120 days of the receipt of the claim, unless extended by consent of the contracting officer and the Contractor. The contracting officer shall send his/her written determination to the Contractor. If the contracting officer fails to issue a final determination within the 120 days (unless extended by consent of the parties), the claim shall be deemed denied. The contracting officer's determination shall be the final order of the purchasing agency.

c. Within fifteen (15) days of the mailing date of the determination denying a claim or within

135 days of filing a claim if, no extension is agreed to by the parties, whichever occurs first, the Contractor may file a statement of claim with the Commonwealth Board of Claims.

Pending a final judicial resolution of a controversy or claim, the Contractor shall proceed diligently with the performance of the Contract in a manner consistent with the determination of the contracting officer and the Commonwealth shall compensate the Contractor pursuant to the terms of the Contract.

20. ASSIGNABILITY AND SUBCONTRACTING

a. Subject to the terms and conditions of this Paragraph 20, this Contract shall be binding upon the parties and their respective successors and assigns.

b. The Contractor shall not subcontract with any person or entity to perform all or any part of the work to be performed under this Contract without the prior written consent of the Contracting Officer, which consent maybe withheld at the sole and absolute discretion of the Contracting Officer.

c. The Contractor may not assign, in whole or in part, this Contract or its rights, duties, obligations, or responsibilities hereunder without the prior written consent of the Contracting Officer, which consent may b withheld at the sole and absolute discretion of the Contracting Officer.

d. Notwithstanding the foregoing, the Contractor may, without the consent of the

Contracting Officer, assign its rights to payment to be received under the Contract, provided that the Contractor provides written notice of such assignment to the Contracting Officer together with a written acknowledgement from the assignee that any such payments are subject to all of the terms and conditions of this Contract.

e. For the purposes of this Contract, the term “assign” shall include, but shall not be limited to, the sale, gift, assignment, pledge, or other transfer of any ownership interest in the Contractor provided, however, that the term shall not apply to the sale or other transfer of stock of a publicly traded company.

f . Any assignment consented to by the Contracting Officer shall be evidenced by a written assignment agreement executed by the Contractor and its assignee in which the assignee agrees to be legally bound by all of the terms and conditions of the Contract and to assume the duties, obligations, and responsibilities being assigned.

g. A change of name by the Contractor, following which the Contractor’s federal identification number remains unchanged, shall not be considered to be an assignment hereunder. The Contractor shall give the Contracting Officer written notice of any such change of name.

21. NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE

During the term of the Contract, the Contractor agrees as follows:

a. In the hiring of any employees for the manufacture of supplies, performance of work, or any other activity required under the Contract or any subcontract, the Contractor, subcontractor or any person acting on behalf of the Contractor or subcontractor shall not by reason of gender, race, creed, or color discriminate against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.

b. Neither the Contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate against or intimidate any employee involved in the manufacture of supplies, the performance of work or any other activity required under the Contract on account of gender, race, creed, or color.

c. The Contractor and any subcontractors shall establish and maintain a written sexual harassment policy and shall inform their employees of the policy. The policy must contain a notice that sexual harassment will not be tolerated and employees who practice it will be disciplined

d. The Contractor shall not discriminate by reason of gender, race, creed, or color against any subcontractor or supplier who is qualified to perform the work to which the contract relates.

e. The Contractor and each subcontractor shall furnish all necessary employment documents and records to and permit access to its books, records, and accounts by the contracting officer and the Department of General Services’ Bureau of Contract Administration and Business Development for purposes of investigation to ascertain compliance with the provisions of this Nondiscrimination/Sexual Harassment Clause. If the Contractor or any subcontractor does not possess documents or records reflecting the necessary information requested, it shall furnish such information on reporting forms supplied by the contracting officer or the Bureau of Contract Administration and Business Development

f. The Contractor shall include the provisions of this Nondiscrimination/Sexual Harassment

Clause in every subcontract so that such provisions will be binding upon each subcontractor.

g. The Commonwealth may cancel or terminate the Contract, and all money due or to become due under the Contract may be forfeited for a violation of the terms and conditions of this Nondiscrimination/Sexual Harassment Clause. In addition, the agency may proceed with debarment or suspension and may place the Contractor in the Contractor Responsibility File.

22. CONTRACTOR INTEGRITY PROVISIONS

a. For purposes of this clause only, the words “confidential information,” “consent,” “contractor,” “financial interest,” and “gratuity” shall have the following definitions.

1) Confidential information means information that is not public knowledge, or available to the public on request, disclosure of which would give an unfair, unethical, or illegal advantage to another desiring to contract with the Commonwealth.

2) Consent means written permission signed by a duly authorized officer or employee of the Commonwealth, provided that where the material facts have been disclosed, in writing, by prequalification, bid, proposal, or contractual terms, the Commonwealth shall be deemed to have consented by virtue of execution of this agreement.

3) Contractor means the individual or entity that has entered into the Contract with the Commonwealth, including directors, officers, partners, managers, key employees and owners of more than a five percent interest.

4) Financial interest means:

a) Ownership of more than a five percent interest in any business; or

b) Holding a position as an officer, director, trustee, partner, employee, or the like, or holding any position of management.

5) Gratuity means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind.

b. The Contractor shall maintain the highest standards of integrity in the performance of the

Contract and shall take no action in violation of state or federal laws, regulations, or other requirements that govern contracting with the Commonwealth.

c. The Contractor shall not disclose to others any confidential information gained by virtue of the Contract.

d. The Contractor shall not, in connection with this or any other agreement with the Commonwealth, directly, or indirectly, offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for the decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty by any officer or employee of the Commonwealth.

e. The Contractor shall not, in connection with this or any other agreement with the

Commonwealth, directly or indirectly, offer, give, or agree or promise to give to anyone any gratuity for the benefit of or at the direction or request of any officer or employee of the Commonwealth.

f. Except with the consent of the Commonwealth, neither the Contractor nor anyone in privity with him or her shall accept or agree to accept from, or give or agree to give to, any person, any gratuity from any person in connection with the performance of work under the Contract except as provided therein.

g. Except with the consent of the Commonwealth, the Contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this project.

h. The Contractor, upon being informed that any violation of these provisions has occurred or may occur, shall immediately notify the Commonwealth in writing.

i. The Contractor, by execution of the Contract and by the submission of any bills or invoices for payment pursuant thereto, certifies, and represents that he or she has not violated any of these provisions.

j. The Contractor, upon the inquiry or request of the Inspector General of the Commonwealth or any of that official’s agents or representatives, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Inspector General to the Contractor’s integrity or responsibility, as those terms are defined by the Commonwealth’s statutes, regulations, or management directives. Such information may include, but shall not be limited to, the Contractor’s business or financial records, documents or files of any type or form which refers to or concern the Contract. Such information shall be retained by the Contractor for a period of three years beyond the termination of the Contract unless otherwise provided by law.

k. For violation of any of the above provisions, the Commonwealth may terminate this and any other agreement with the Contractor, claim liquidated damages in an amount equal to the value of anything received in breach of these provisions, claim damages for all expenses incurred in obtaining another Contractor to complete performance hereunder, and debar and suspend the Contractor from doing business with the Commonwealth.

These rights and remedies are cumulative, and the use or nonuse of any one shall not preclude the use of all or any other. These rights and remedies are in addition to those the Commonwealth may have under law, statute, regulation, or otherwise.

23. CONTRACTOR RESPONSIBILITY PROVISIONS

a. The Contractor certifies, for itself and all its subcontractors, that as of the date of its execution of this Bid/Contract, that neither the Contractor, nor any subcontractors, nor any suppliers are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the Contractor cannot so certify, then it agrees to submit, along with its Bid, a written explanation of why such certification cannot be made.

b. The Contractor also certifies, that as of the date of its execution of this Bid/Contract, it has no tax liabilities or other Commonwealth obligations.

c. The Contractor’s obligations pursuant to these provisions are ongoing from and after the effective date of the contract through the termination date thereof. Accordingly, the Contractor shall have an obligation to inform the Commonwealth if, at any time during the term of the Contract, it becomes delinquent in the payment of taxes, or other Commonwealth obligations, or if it or any of its subcontractors are suspended or debarred by the Commonwealth, the federal government, or any other state or governmental entity. Such notification shall be made within 15 days of the date of suspension or debarment.

d. The failure of the Contractor to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government shall constitute an event of default of the Contract with the Commonwealth.

e. The Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the Contractor’s compliance with the terms of this or any other agreement between the Contractor and the Commonwealth, which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor’s suspension or debarment.

f . The Contractor may obtain a current list of suspended and debarred Commonwealth contractors by either searching the internet at http://www.dgs.state.pa.us or contacting the:

Department of General Services Office of Chief Counsel

603 North Office Building Harrisburg, PA 17125

Telephone No. (717) 783-6472 FAX No. (717) 787-9138

24. AMERICANS WITH DISABILITIES ACT

a. Pursuant to federal regulations…