Commodities IFB SW COVID-19 Testing Products.pdf

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OFFICE OF STATE PROCUREMENT (OSP)

DEPARTMENT OF GENERAL SERVICES

COMMODITY

INVITATION FOR BIDS (IFB)

BID NUMBER: 001IT021246 / BPM024037

Issue Date: May 19, 2021

STATEWIDE

COVID-19 TESTING PRODUCTS

NOTICE

A Prospective Bidder that has received this document from the Office of State Procurement website or procurement.maryland.gov, or that has received this document from a source other than the Procurement Officer, and that wishes to assure receipt of any changes or additional materials related to this IFB, should immediately contact the Procurement Officer and provide the Prospective Bidder’s name and mailing address so that addenda to the IFB or other communications can be sent to the Prospective Bidder.

MINORITY BUSINESS ENTERPRISES ARE ENCOURAGED

TO RESPOND TO THIS SOLICITATION

https://procurement.maryland.gov/

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STATE OF MARYLAND

OFFICE OF STATE PROCUREMENT

IFB KEY INFORMATION SUMMARY SHEET

Invitation for Bids: COVID-19 Testing Products

Solicitation Number: 001IT021246 / BPM024037

Solicitation Type: Indefinite Delivery, Indefinite Quantity

IFB Issue Date: May 19, 2021

IFB Issuing Office: Department of General Services

Procurement Officer: Charles W. Bailey, CPPB, CMPO Department of General Services 301 W. Preston St., Rm. M-4 Baltimore, MD 21201

Phone: (410) 767-6056 E-mail: charles.bailey1@maryland.gov

Agency Contract Monitor: Jason DuBois or /Administrator Maryland Department of Health COVID-19 Testing Task Force

201 W. Preston St.

Baltimore, MD 21201 E-mail: Jason.DuBois@maryland.gov

Pre-Bid Conference: Wednesday, May 26, 2021 at 9:00 AM Local Time via teleconference

Pre-Bid Attendance RSVP due by: Tuesday, May 25, 2021

Cut-off Date for Q &A: All questions or issues pertaining to this solicitation must be submitted to the Procurement Officer via eMaryland Marketplace Advantage by June 9, 2021

Closing Date and Time: Wednesday, June 23, 2021 at 2:00 PM Local Time

Term of Contract: NTP through June 30, 2025

Options No

MBE Subcontracting Goal: Not Applicable

MBE Split Goals: Not Applicable

VSBE Subcontracting Goal: Not Applicable

Small Business Preference: No

Bids are to be submitted online only at eMarylandMarketplace Advantage: procurement.maryland.gov.

mailto:charles.bailey1@maryland.gov mailto:Jason.DuBois@maryland.gov http://procurement.maryland.gov/

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CONTENTS OF THIS SOLICITATION PACKAGE

Section A General Information Section B Terms and Conditions Section C Specifications

Attachment C Bid/Proposal Affidavit

Attachment D Minority Business Enterprise Utilization Procedures

Attachment H Conflict of Interest Affidavit and Disclosure

Attachment K Mercury Affidavit

Attachment N Contract Affidavit

Attachment P Small Business Reserve (if applicable)

Attachment S Company Profile

Attachment V Pre-Bid Conference Response Form

Attachment Q No Bid Notice

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SECTION A

GENERAL INFORMATION

001IT021246 / BPM024037

A. OBJECTIVE:

The purpose of this Statewide contract is to obtain a source of supply for COVID-19 testing products at an indefinite quantity with firm, fixed unit prices for the term as shown herein. The State may award one-time or multiple contracts to the lowest responsive and responsible Bidder(s).

Successful Bidder(s) shall be responsible for ensuring that the COVID-19 testing products supplied are in accordance with the Section C – Detailed Specification. The State reserves the right to inspect each shipment prior to acceptance by the State, for compliance with the specifications herein. Inspection may be made by an authorized representative of the State at the source of supply, point of delivery, or both.

B. BASIS OF AWARD:

1) A Contract shall be awarded to the responsible Bidder(s) in each Functional Area submitting a responsive Bid with the most favorable bid price or most favorable evaluated bid price (as referenced in COMAR 21.05.02.13) for providing the goods and services as specified in this IFB. Bidders must bid all line items for each Functional Area. Bidders may bid on one or both Functional Areas. Partial or incomplete bids will be rejected unless otherwise stated in the solicitation. See IFB Section 6 for Bid evaluation and award information.

2) Award of this Contract will not be final and complete until after: (1) the Contractor submits complete and satisfactory documentation required under the Contract and/or documentation required by the Procurement Officer; and (2) the Contract is signed by the Department following any required approvals of the Contract, including approval by the Board of Public Works, if such approval is required.

3) One award will be made in each Functional Area to the lowest Bidder in the respective Functional Area. Up to nine additional awards will be made to the next lowest Bidder(s) in each Functional Area for a total of up to 10 awards in each Functional Area. For multiple contract awards, the Contractor with the lowest Bid price in each Functional Area will be given the right of first refusal to provide the requested products. If that Contractor is unwilling or unable to provide the requested products, the Contractor with the next lowest Bid price will be asked to provide the requested products, and so forth. Each Contractor will have one Business Day to respond to a product request before a request is made to the next subsequent Contractor. For the purposes of the Contracts resulting from this solicitation, a Contractor will be deemed to have “refused” the product request if for a particular request its offered products do not meet the specificity, sensitivity, or test administration considerations, or exceeds the Contractor’s stated or known product availability or stated or known delivery timeframe or capabilities, needed for that request. If “refused” in such cases, the product request will be offered to the next lowest-priced Contractor that meets the product request needs.

C. METHOD OF BIDDING:

All bids, affidavits, and/or responses to attachments shall be submitted electronically through eMaryland Marketplace Advantage (eMMA) with the bid response. Bids submitted through the mail, faxed, hand delivered, etc. will not be accepted or considered.

Multiple or alternate bids will not be acceptable unless otherwise stated in the State solicitation documents.

D. TERM OF CONTRACT:

1) Refer to the IFB Key Information Summary Sheet (Page 2) for the complete term of the Contract. Any renewals solicited with this Contract or any part of the contract may be renewed by the mutual agreement between the Office of State Procurement and the Contractor.

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2) Contracts will remain in effect for the time period and quantity specified unless the Contract is terminated by the State. The State may terminate any contract without showing cause upon thirty (30) days written notice.

3) Any item listed herein not delivered in a timely manner or does not conform to the requirements of the Contract, may be purchased on the open market by the using agency. The Contractor will be charged for any product cost incurred by the State that is in excess of the contracted price.

E. PRICE ESCALATION:

Not Applicable

F. EXCEPTIONS / TERMS AND CONDITIONS:

The published specifications are meant to describe goods and services suitable for the intended application and are not meant to be restrictive in any way. All specifications determined by the Bidder to be restrictive should be addressed in writing via email to the Procurement Officer by the Q&A cut-off date indicated on the IFB Key Information Summary Sheet (Page 2).

By submitting a Bid in response to this IFB, the Bidder, if selected for award, shall be deemed to have accepted the Terms and Conditions, attached herein as Section B, of this IFB. Any exceptions to the Terms and Conditions should be raised prior to Bid submission. If applicable, the Bidder must present its company’s Supplemental Terms and Conditions for the State’s review prior to the Q&A cut-off date.

Changes to the solicitation or the Terms and Conditions made by the Bidder may result in Bid rejection.

After Bid Opening, any exceptions to the bid specifications may not be accepted or considered.

G. UNIT PRICES:

Should the Contractor be required to perform work over and above that required by the Contract documents, or should the Contractor be ordered to omit work required by the Contract documents, an equitable adjustment will be made to the Contract price. In determining the amount of any such extra payment to the Contractor, which is governed by unit prices, the amount of the extra will be the unit price bid by the Contractor or a reasonable price, whichever is less. In determining the amount of any such credit due the State, which is governed by unit prices, the amount of the credit will be the unit price bid by the Contractor or a reasonable price, whichever is greater. Unit prices quoted will be the same for extra work and for credit work and shall be the sum total compensation payable or creditable for such items of work, including all labor, materials, bailing, shoring, removal, overhead, profit, insurance, etc. The Procurement Officer will issue one or more Contract modifications to authorize any such additions or deletions of work.

H. REQUIRED DOCUMENTATION AND INFORMATION:

All forms, instructions, terms and conditions are available online. It is recommended that Vendors download all online forms and attachments for future reference.

The following documentation and requested information shall be provided in the format specified by bid due date and time unless stated otherwise below. Failure to provide the requested documentation or information may cause your bid to be deemed not responsive and rejected from consideration. Note: It is the Vendor’s responsibility to ensure all requested documentation is attached to its bid.

1. MANDATORY AFFIDAVITS – All affidavits are to be completed and provided as an attachment to your bid on eMMA. The Bid/Proposal Affidavit and the MBE D-1A Utilization and Fair Solicitation Affidavit & MBE Participation Schedule (if applicable) must be properly completed and submitted with the Bidder’s Bid or the Bid shall be deemed non-responsive and rejected. If you have difficulty attaching the affidavits to your bid response, for assistance with this process, please go to emma.helpdesk@mayland.gov. Failure to provide all affidavits may cause your bid to be deemed not responsive and rejected from consideration.

Note: For the purpose of the Bid/Proposal and Contract Affidavits, domestic/foreign refers to whether your firm is an in-state or out-of-state corporation. If your firm is not located in the State of Maryland, please designate it as “foreign” and provide the name of your resident agent (Maryland address), if applicable.

mailto:emma.helpdesk@mayland.gov

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2. REFERENCES – In order to expedite the award process, it is very important for the Bidder to include the references as detailed. With each reference, list details of volume of sales for each location, a contact person, current working telephone number, e-mail address, time period of contract, and dollar amount of contract.

References are to be submitted as an attachment with your bid on eMaryland Marketplace Advantage (eMMA). The Bidder shall supply this information by filling out and returning Attachment S – Vendor Company Profile with their Bid response.

Failure to promptly provide information that leads to a determination of responsibility is grounds for rejection of the bid.

3. MBE INFORMATION – The goal of the State of Maryland's Minority Business Enterprise (MBE) Program is to attempt to provide a fair share of procurement contracts to Certified Minority Business Enterprises.

The Office of State Procurement adheres to the State of Maryland Minority Business Enterprise (MBE) policies. Minority Business Enterprise (MBE) vendors are encouraged to respond to this solicitation as the Prime Contractor and Minority Business Enterprise (MBE) vendors shall be represented in the subcontract with a participation goal in the total bid price of this solicitation. See MBE participation for this bid on the IFB Key Information Summary Sheet (Page 2). Additional information regarding the State of Maryland MBE and Small Business Reserve (SBR) programs can be found on eMaryland Marketplace Advantage:

https://procurement.maryland.gov/.

4. SMALL BUSINESS PREFERENCE

This solicitation is not designated as a Small Business Preference (SBP) Procurement.

5. QUESTIONS AND INQUIRIES:

All questions or issues pertaining to this solicitation must be submitted via email to the Procurement Officer.

Questions will not be accepted by telephone or fax. See the IFB Key Information Summary Sheet (Page

2) for the Cut-Off Date for submitting questions. Only information communicated by the Procurement Officer or their authorized representative will be the official position of the State on an issue.

All questions should be submitted in a timely manner. When questions are not received in a timely manner, the

Procurement Officer will, based on the availability of time to research and communicate an answer, decide whether they can answer an untimely question before the bid due date.

Prices quoted shall be valid for ninety (90) days after Bid opening.

This solicitation is in accordance with Code of Maryland Regulations (COMAR) 21.11.05.03B. One or more Preference Providers may respond to this solicitation. Any subsequent contract may be awarded to a preference provider if: (1) its Bid price is deemed a fair market price by the Office of State Procurement, and (2) it accepts the terms and conditions contained in this solicitation. A fair market price is defined, for this solicitation, as the average total price of all responsive bids from responsible Vendors, excluding those bids received from certified sheltered workshops.

6. RECIPROCAL PREFERENCE:

A Preference will be given to the responsive and responsible bid from a Maryland firm over that of a nonresident firm if the State in which the nonresident firm is located gives a resident business preference. Where such a business preference is provided, the preference shall be the same as that provided by the State in which the nonresident firm is located. A non-resident Vendor submitting a bid/proposal for a State project shall be provided an attachment to the bid/proposal a copy of the current statute, resolution, policy procedure or executive order of the resident State of the nonresident Vendor that pertains to that State's treatment of nonresident Vendors.

7. PRE-BID CONFERENCE:

Each Bidder or their representative is encouraged to attend the scheduled Pre-Bid Conference. Normally, attendance at the Pre-Bid is not required. However, if there is a Minority Business Enterprise (MBE) Goal on this solicitation, Bidders or Offerors or their representative, including those Bidders or Offerors that are certified https://procurement.maryland.gov/

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MBEs, are required to attend Pre-Bid or other meetings the procurement agency schedules to publicize contracting opportunities to certified MBE's. (See State Finance and Procurement Article, §14-302(a)(7)(v) and COMAR 21.11.03.09C(2)(e)).

FAILURE TO ATTEND THE PRE-BID CONFERENCE WILL BE TAKEN INTO CONSIDERATION

AS PART OF THE EVALUATION OF A BIDDER’S GOOD FAITH EFFORTS IF THERE IS A

WAIVER REQUEST.

In addition, it is highly recommended that ALL Prime Contractors bring their intended subcontractors to the Pre- Bid Conference/Site Visit to ensure that all parties understand the requirements of the contract and the MBE Goal. Finally, MBE Subcontractors are encouraged to attend the Pre-Bid Conference to “market” their participation to potential Prime Contractors.

The Pre-Bid Conference/Site Visit will be held at the date, time, and location indicated on the IFB Key Information Summary Sheet (Page 2).

At the scheduled Pre-Bid Conference/Site Visit, each Bidder will be permitted to examine the building, familiarize himself/herself with the full nature and extent of the work and obtain answers to questions about or clarifications of the contract. It is the sole responsibility of the Bidder to familiarize himself/herself fully with the contents of the specifications of this solicitation. Failure to do so does not relieve the successful Bidder from their obligation to comply with all aspects of this Bid package for the amount he/she specifies as his/her bid.

The Conference will be summarized. As promptly, as is feasible subsequent to the Conference, a summary of the Conference and all questions and answers known at that time will be distributed to all prospective Bidders known to have received a copy of this IFB. This summary, as well as the questions and answers, will also be posted on eMaryland Marketplace Advantage.

In order to assure adequate seating and other accommodations at the Conference, please e-mail, mail, or fax the Pre-Bid Conference Response Form to the attention of the Procurement Officer no later than the time indicated on the IFB Key Information Summary Sheet (Page 2). The Pre-Bid Conference Response Form is included as Attachment V to this IFB. In addition, if there is a need for sign language interpretation and/or other special accommodations due to a disability, please indicate the request on Attachment V and notify the Procurement Officer. The Department will make a reasonable effort to provide such special accommodation.

8. KICK OFF MEETING:

Not Applicable

9. NO BID NOTICE:

The Office of State Procurement is committed to providing solicitations that are readily and easily responded to.

If you choose not to respond to this solicitation, please fill out this form, Attachment Q, and email it to the Procurement Officer indicated on the IFB Key Information Summary Sheet (Page 2). We will review your responses and suggestions and try to incorporate them in our procedures.

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SECTION B

TERMS AND CONDITIONS

1. INCORPORATION BY REFERENCE:

All terms and conditions of the solicitation and amendments thereto are made a part of this Contract.

2. TAX EXEMPTION:

The State is generally exempt from federal excise taxes, Maryland sales and use taxes, District of Columbia sales taxes and transportation taxes. Exemption certificates shall be completed upon request. Where a Contractor is required to furnish and install material in the construction or improvement of real property in performance of a contract, the Contractor shall pay the Maryland Sales Tax and the exemption does not apply.

3. SPECIFICATIONS:

All materials, equipment, supplies or services shall conform to federal and State laws and regulations and to the specifications contained in this solicitation.

4. DELIVERY AND ACCEPTANCE:

Delivery shall be made in accordance with the solicitation specifications. The State, in its sole discretion, may extend the time of performance for excusable delays due to unforeseeable causes beyond the Contractor’s control. The State unilaterally may order in writing the suspension, delay or interruption of performance hereunder. The State reserves the right to test any materials, equipment, supplies, or services delivered to determine if the specifications have been met. The materials listed in the bid or proposal shall be delivered FOB the point or points specified prior to or on the date specified in the bid or proposal. Any material that is defective or fails to meet the terms of the solicitation specifications shall be rejected. Rejected materials shall be promptly replaced. The State reserves the right to purchase replacement materials in the open market. Contractors failing to promptly replace materials lawfully rejected shall be liable for any excess price paid for the replacement, plus applicable expenses, if any.

5. NON-HIRING OF EMPLOYEES:

No official or employee of the State, as defined under State Government Article, §15-102, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this contract shall, during the pendancy or term of this contract and while serving as an official or employee of the State, become or be an employee of the Contractor or any entity that is a subcontractor on this Contract.

6. NON-DISCRIMINATION IN EMPLOYMENT:

The Contractor agrees not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, marital status, national origin, ancestry, or physical or mental handicap unrelated in nature and extent so as reasonably to preclude the performance of such employment and to post and to cause subcontractors to post conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause.

7. FINANCIAL DISCLOSURE:

The Contractor shall comply with State Finance and Procurement Article §13-221, Annotated Code of Maryland, which requires that every business that enters into contracts, leases or other agreements with the State and receives in the aggregate $200,000 or more, during a calendar year shall, within 30 days of the time when the $200,000 reached, file with the Secretary of State certain specified information to include disclosure of beneficial ownership of the business.

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8. POLITICAL CONTRIBUTION DISCLOSURE:

The Contractor shall comply with Sections 14-101 through 14-108 of the Election Law Article of the Annotated Code of Maryland, which requires that every person that enters into, during any 12 month period, one or more contracts, or other agreements with the State, a county, or an incorporated municipality, or their agencies, involving a cumulative consideration of at least $200,000 or more, shall file with the State Administrative Board of Election Laws a statement disclosing contributions to a candidate, or a series of such contributions, in a cumulative amount in excess of $500 made during the reporting period to a candidate for elective office in any primary or general election. The statement shall be filed with the State Administrative Board of Election Laws: (1) before a sale, purchase or execution of a contract by the State, a county, an incorporated municipality, or their agencies, and shall cover the preceding 24 months; and (2) if the contribution is made after sale, purchase or the execution of a contract, then twice a year, throughout the contract term: (a) within 5 days after the end of the 6-month period ending January 31; and (b) within 5 days after the end of the 6-month period ending July 31.

9. ANTIBRIBERY:

The Contractor warrants that neither it nor any of its officers, directors, or partners nor any of its employees who are directly involved in obtaining or performing contracts with any public body has been convicted of bribery, attempted bribery, or conspiracy to bribe, under the laws of any state or of the federal government or has engaged in conduct since July 1, 1977, which would constitute bribery, attempted bribery, or conspiracy to bribe under the laws of any state or the federal government.

10. REGISTRATION:

Pursuant to §7-201 et seq. of the Corporations and Associations Article of the Annotated Code of Maryland, corporations not incorporated in the State shall be registered with the State Department of Assessments and Taxation, 301 West Preston St., Baltimore, Maryland 21201, before doing any interstate or foreign business in this State. Before doing any intrastate business in this State, a foreign corporation shall qualify with the Department of Assessments and Taxation. The website for the State Department of Assessments and Taxation is http://www.dat.state.md.us, e-mail address is charterhelp@dat.state.md.us, and phone numbers for the State Department of Assessments and Taxation are: (410) 767-1340 or (888) 246-5941.

11. CONTINGENT FEES:

The Contractor warrants that it has not employed or retained any person, partnership, or other entity, other than a bona fide employee or agent working for the Contractor, to solicit or secure this agreement, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee or agent, any fee or any other consideration contingent on the making of this agreement.

12. EPA COMPLIANCE:

Materials, supplies, equipment, or other services shall comply in all respects with the Federal Noise Control Act of 1972, where applicable.

13. OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA):

All materials, supplies, equipment or services supplied as a result of this contract shall comply with the applicable U.S. and Maryland Occupational Safety and Health Act Standards.

14. TERMINATION FOR CONVENIENCE:

Upon written notice to the Contractor, the State may terminate this Contract, in whole or in part whenever the State shall determine that such termination is in the best interest of the State. The State shall pay all reasonable costs incurred up to the date of termination and all reasonable costs associated with termination of the contract. However, the Contractor may not be reimbursed for anticipatory profits. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).

http://www.dat.state.md.us/ mailto:charterhelp@dat.state.md.us

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15. TERMINATION FOR CAUSE (DEFAULT):

When the Contractor has not performed or has unsatisfactorily performed the contract, payment shall be withheld at the discretion of the State. Failure on the part of a Contractor to fulfill contractual obligations shall be considered just cause for termination of the contract and the Contractor is not entitled to recover any costs incurred by the Contractor up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.

16. DISPUTES; NO ELECTRONIC PROTESTS, NOTICES OF CLAIM, OR CLAIMS:

This Contract shall be subject to the provisions of Title 15, Subtitle 2 of the State Finance and Procurement Article of the Annotated Code of Maryland and COMAR.21.10 (Administrative and Civil Remedies). Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the contract in accordance with the procurement officer’s decision.

In accordance with COMAR 21.10.02.02 the Department will not accept protests, notices of claim, or claims by any electronic means (including by facsimile or email).

17. MULTI-YEAR CONTRACTS:

If funds are not appropriated or otherwise made available to support continuation in any fiscal year succeeding the first fiscal year, this contract shall terminate automatically as of the beginning or the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination.

18. INTELLECTUAL PROPERTY:

Contractor agrees to indemnify and save harmless the State, its officers, agents and employees with respect to any claim, action, cost or judgment for patent infringement, or trademark or copyright violation arising out of purchase or use of materials, supplies, equipment or services covered by this Contract.

19. MARYLAND LAW PREVAILS:

The provisions of this Contract shall be governed by the laws of Maryland.

20. CONTRACTOR’S INVOICES:

Contractor agrees to include on the face of all invoices billed to the State, its Taxpayer Identification Number, which is the Social Security Number for individuals and sole proprietors and Federal Employer Identification Number for all other types of organizations.

The Contractor shall email the original of each invoice and signed authorization to invoice to the Contract Monitor and any agency point of contacts requested by the Contract Monitor.

All invoices for services shall be verified by the Contractor as accurate at the time of submission.

An invoice not satisfying the requirements of a Proper Invoice (as defined in COMAR 21.06.09) cannot be processed for payment. To be considered a Proper Invoice, invoices must include the following information, without error:

1) Contractor name and address;

2) Remittance address;

3) Federal taxpayer identification (FEIN) number, social security number, as appropriate;

4) Invoice period (i.e. time period during which services covered by invoice were performed);

5) Invoice date;

6) Invoice number;

7) State assigned Contract number;

8) State assigned (Blanket) Purchase Order number(s);

9) Goods or services provided;

10) Amount due; and

11) Any additional documentation required by regulation or the Contract.

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Invoices that contain both fixed price and time and material items shall clearly identify each item as either fixed price or time and material billing.

The Department reserves the right to reduce or withhold Contract payment in the event the Contractor does not provide the Department with all required deliverables within the time frame specified in the Contract or otherwise breaches the terms and conditions of the Contract until such time as the Contractor brings itself into full compliance with the Contract.

Any action on the part of the Department, or dispute of action by the Contractor, shall be in accordance with the provisions of Md. Code Ann., State Finance and Procurement Article §§ 15-215 through 15-223 and with COMAR 21.10.04.

The State is generally exempt from federal excise taxes, Maryland sales and use taxes, District of Columbia sales taxes and transportation taxes. The Contractor, however, is not exempt from such sales and use taxes and may be liable for the same.

Invoices for final payment shall be clearly marked as “FINAL” and submitted when all work requirements have been completed and no further charges are to be incurred under the Contract. In no event shall any invoice be submitted later than 60 calendar days from the Contract termination date.

Invoice Submission Schedule The Contractor shall submit invoices by the 15th of the month following the month in which goods were provided.

For the purposes of the Contract an amount will not be deemed due and payable if:

1) The amount invoiced is inconsistent with the Contract;

2) The proper invoice has not been received by the party or office specified in the Contract;

3) The invoice or performance is in dispute or the Contractor has failed to otherwise comply with the provisions of the Contract;

4) The item or services have not been accepted;

5) The quantity of items delivered is less than the quantity ordered;

6) The items or services do not meet the quality requirements of the Contract;

7) If the Contract provides for progress payments, the proper invoice for the progress payment has not been submitted pursuant to the schedule;

8) If the Contract provides for withholding a retainage and the invoice is for the retainage, all stipulated conditions for release of the retainage have not been met; or

9) The Contractor has not submitted satisfactory documentation or other evidence reasonably required by the Procurement Officer or by the Contract concerning performance under the Contract and compliance with its provisions.

21. PAYMENT OF STATE OBLIGATIONS:

1) Payments to the Contractor pursuant to this Contract shall be made no later than 30 days after the State's receipt of a proper invoice from the Contractor. Charges for late payment of invoices, other than as prescribed by Title 15, Subtitle 1, of the State Finance and Procurement Article, Annotated Code of Maryland, or by the Public Service Commission of Maryland with respect to regulated public utilities, as applicable, are prohibited.

2) Electronic Funds Transfer: This provision on Electronic Funds Transfer applies to contracts of over $200,000 for which payments are made through the State Comptroller. Electronic funds transfer will be used by the State to pay Contractor for this Contract and any other State payments due Contractor unless the State Comptroller’s Office grants Contractor an exemption. By submitting a response to this solicitation, the Bidder or Offeror agrees to accept payments by electronic funds transfer unless the State Comptroller’s Office grants an exemption. After award of a contract, the selected Bidder or offeror shall register with the Comptroller of Maryland using the

12 of 35 Revised 4/26/2021 forms required by the Comptroller. For further information go to:

http://compnet.comp.state.md.us/gad/vendorinfo/eft/default.asp.

3) Any request for exemption must be submitted to the State Comptroller’s Office for approval at the address specified on the COT/GAD X-10 form and must include the business identification information as stated on the form and include the reason for the exemption.

22. PRE-EXISTING REGULATIONS:

The regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR Title 21) in effect on the date of execution of this Contract are applicable to this Contract.

23. INDEMNIFICATION:

The State shall not assume any obligation to indemnify, hold harmless, or pay attorneys’ fees that may arise from or in any way be associated with the performance or operations of this agreement. (COMAR 21.07.03.23)

24. CONFLICTING TERMS:

Any proposal for terms in addition to or different from those set forth in this purchase order or any attempt by the Contractor to vary any of the terms of this offer by Contractor’s acceptance shall not operate as a rejection of this offer, unless such variance is in the terms of the description, quantity, price or delivery schedule, but shall be deemed a material altercation thereof, and this offer shall be deemed acceptable by the Contractor without the additional or different terms. If this purchase order is an acceptance of a prior offer by the Contractor, the acceptance is expressly conditioned upon Contractor’s assent to any additional terms contained herein. The Contractor understands and agrees that the terms and conditions of this purchase order may not be waived.

25. DRUG AND ALCOHOL FREE WORKPLACE:

The Contractor warrants that the Contractor shall comply with COMAR 21.11.08 Drug and Alcohol Free Workplace, and that the Contractor shall remain in compliance throughout the term of this purchase order.

26. CHANGES – WORK ORDERS:

Changes: The Procurement Officer unilaterally may, at any time, without notice to the sureties, if any, by written order designated or indicated to be an order, make any change in the work within the general scope of the Contract, including but not limited to changes:

In the specifications (including drawings and designs);

In the method or manner of performance of the work;

In the State-furnished facilities, equipment, materials, services, or site; or

Directing acceleration in performance or delivery.

Any other written order or an oral order, including a direction, instruction, interpretation, or determination from the Procurement Officer that causes or constitutes any such change shall be treated as a change order under this clause provided that the Contractor gives the Procurement Officer written notice stating the date, circumstances, and source of the order and that the Contractor regards the order as a change order.

Except as herein provided, no order, statement, or conduct of the Procurement Officer shall be treated as a change under this clause or entitle the Contractor to an equitable adjustment hereunder.

Subject to paragraph (6) of this subsection, if any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under the contract, whether or not changed by an order, an equitable adjustment shall be made and the contract modified in writing accordingly;

provided, however, that except for claims based on defective specifications, no claim for any order under (2) above shall be allowed for any costs incurred more than twenty (20) days before the Contractor gives written notice as therein required; and provided further, that in the case of defective specifications for which the State is responsible, http://compnet.comp.state.md.us/gad/vendorinfo/eft/default.asp

13 of 35 Revised 4/26/2021 the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with such defective specifications.

If the Contractor intends to assert a claim for an equitable adjustment under this section, he shall do so in accordance with and subject to the disputes procedures of the contract.

Each contract modification or change order that affects contract price shall be subject to the prior written approval of the Procurement Officer and other appropriate authorities and to prior certification of the appropriate fiscal authority of fund availability and the effect of the modification or change order on the contract budget or total cost. If, according to the certification of the fiscal authority, the contract modification or change order will cause an increase in cost that will exceed budgeted and available funds, the modification or change order may not be made unless sufficient additional funds are made available or the scope of the contract is adjusted to permit its completion within the project budget.

No claim by the Contractor for an equitable adjustment hereunder shall be allowed if asserted after final payment is made under this contract.

As used in this section, “work” means any and all commodities, goods, materials, labor, services, manner or time of delivery or performance, or other elements of performance required to be furnished or supplied by the Contractor under this contract.

Miscellaneous: In the event of a dispute between the Department and the Contractor as to whether any work is included in the scope of the contract such that the Contractor would be obligated to provide that work at no additional cost to the State, the Procurement Officer may order the Contractor under this section to perform the work (a “Work Order”). If the Contractor considers such an order to be a change in the scope of the contract entitling the Contractor to additional compensation, a time extension, or other relief, the Contractor must provide the notice required by this section and initiate a claim therefore in accordance with contract requirements. An order of the Procurement Officer, by virtue of being called or referred to as a “change order,” does not necessarily constitute a change in the scope of the contract or in the work required under the contract. The Contractor shall not be entitled to additional compensation, a time extension, or other relief for complying with an order of the Procurement Officer if the contract otherwise requires the Contractor to perform as stated in the order.

Upon receipt of a signed written order of the Procurement Officer under this section, the Contractor shall comply with the order promptly, within the requirements of the required completion or delivery time, whether or not the Contractor signs or accepts the change order. Failure to comply with the order in a timely manner shall constitute a breach of the contract and grounds for termination for default or any other remedy available to the State.

The State may issue a unilateral order on the State’s terms (including a promise to pay the Contractor a “not to exceed” (“NTE”) amount) which the Contractor may then dispute in accordance with the disputes procedures of the contract.

Pending resolution of such a dispute, Contractor must proceed diligently with performance of the contract as ordered by the Procurement Officer.

The terms “not to exceed” and “NTE” when used in a change order mean that the amount of the change order (whether an increase or a decrease in the Contract amount) will be a reasonable amount not to exceed the amount stated.

27. RETENTION OF RECORDS:

The Contractor shall retain and maintain all records and documents relating to this contract for three years after final payment by the State hereunder or any applicable statute of limitations, whichever is longer, and shall make them available for inspection and audit by authorized representatives of the State, including the procurement officer or designee, at all reasonable times.

28. COMPLIANCE WITH LAWS:

The Contractor hereby represents and warrants that:

1) It is qualified to do business in the State of Maryland and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;

2) It is not in arrears with respect to the payment of any monies due and owing the State of Maryland, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;

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3) It shall comply with all federal, State, and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract; and

4) It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Contract.

29. COST AND PRICE CERTIFICATION:

The Contractor by submitting cost or price information certifies that, to the best of its knowledge, the information submitted is accurate, complete, and current as of a mutually determined specified date prior to the conclusion of any price discussions or negotiations for:

1) A negotiated contract, if the total contract price is expected to exceed $100,000, or smaller amount set by the procurement officer; or

2) A change order or contract modification, expected to exceed $100,000, or smaller amount set by the procurement officer.

The price under this Contract and any change order or modification hereunder, including profit or fee, shall be adjusted to exclude any significant price increases occurring because the Contractor furnished cost or price information, which, as of the date agreed upon between the parties, was inaccurate, incomplete, or not current.

30. BID / PROPOSAL AFFIDAVIT:

Each Bidder shall execute and attach to the Bid/Proposal Affidavit included with this solicitation.

31. CONTRACT AFFIDAVIT:

The successful Bidder or Offeror shall execute and deliver to the Procurement Officer prior to the award of the Contract the Contract Affidavit included with this solicitation. (The Affidavit also can be found at COMAR 21.07.01.25).

32. PUBLIC INFORMATION ACT NOTICE:

Offerors should give specific attention to the identification of those portions of their proposals that they deem to be confidential, proprietary information or trade secrets and provide any justification why such materials, upon request, should not be disclosed by the State under the Access to Public Records Act, Title 4 of the General Provisions Article, Annotated Code of Maryland.

33. MINORITY BUSINESS ENTERPRISE NOTICE:

Minority Business Enterprises are encouraged to respond to this solicitation.

34. ARREARAGES:

By submitting a response to this solicitation, a vendor shall be deemed to represent that it is not in arrears in the payment of any obligation due and owing the State of Maryland, including the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of the contract if selected for contract award.

35. MULTIPLE OR ALTERNATE BIDS:

Unless multiple or alternate bids are requested in the solicitation, multiple or alternate bids may not be accepted. If the solicitation does not request multiple or alternate bids, if received they will be treated in accordance with COMAR 21.05.02.21.

36. BPO/PO AS CONTRACT:

This provision applies to all procurement contracts procured by the Office of State Procurement except contracts for the procurement of architectural and engineering services for a price of greater than $200,000.

As used in this provision, a bid refers to a bid submitted under competitive sealed bidding and to an offer submitted under competitive sealed proposals.

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As used in this provision, a Bidder refers to a Bidder under competitive sealed bidding and to an offeror under competitive sealed proposals.

As used in this provision, a solicitation means an Invitation for Bids, a request for proposals, or any other document requesting bids or proposals for procurement by the Department.

The Bidder’s execution and submission of a responsive bid constitutes a promise by the Bidder to perform the contract solicited by the Department in accordance with the terms and conditions stated in the solicitation. The bid shall be irrevocable for the period stated in the solicitation or for such longer period as the Bidder and the Department may agree.

Upon acceptance of a bid, the Procurement Officer may issue a Blanket Purchase Order (BPO), in a form to be determined by the Department, to the Bidder accepting the bid and binding the Bidder to a contract. The execution and issuance of a BPO by the Procurement Officer, subject to all necessary approvals, shall constitute acceptance of the bid and final award of the contract. The contract of the parties will be embodied in the contract documents, which shall consist of the executed BPO of the Procurement Officer, including all documents, terms, and conditions incorporated into those documents by the terms of the solicitation, the BPO, the bid, or by operation of law, and the executed bid of the Bidder. If the Procurement Officer issues a BPO, at the option of the Procurement Officer it will not be necessary for the Bidder to execute the BPO or any other form of contract or agreement. The Procurement Officer may require that the parties both execute a single document as the embodiment of the contract between the parties.

In the event of a conflict between provisions of the contract documents, the controlling provisions shall be, in the following order, those of:

The BPO; then

The Solicitation; and then

The Bid.

37. RETURNED GOODS:

The Contractor(s) shall be entitled to recover reasonable compensation for any and all goods shipped in accordance with authorized agency orders, meeting all Contract requirements, and returned by the agency for reasons other than the Contractor’s failure to meet Contract requirements. Compensation shall be limited to actual unreimbursed costs incurred by the Contractor including, but not limited to, restocking charges, shipping charges, plus reasonable profit.

Contractor must provide written proof of claimed compensation. A return of goods covered by this section shall be deemed a partial termination for convenience as to the returned goods, and other Contract provisions and principles applicable to a partial termination for convenience shall apply.

38. PURCHASES BY OTHER ENTITIES – INDEFINITE QUANTITY CONTRACTS:

This provision applies to indefinite quantity contracts.

Pursuant to the State Finance and Procurement Article, Section 13-110 of the Annotated Code of Maryland, except as provided in (B) the following entities may purchase materials, supplies, and equipment under this Contract:

1) A county or Baltimore City;

2) A municipal corporation;

3) A governmental agency in the State;

4) A public or quasi-public agency that:

(I) Receives State money; and

(II) Is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code;

(5) A private elementary or secondary school that:

(I) Either has been issued a certificate of approval from the State Board of Education or is accredited by the Association of Independent Schools; and

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(II) Is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code; or

(6) A non-public institution of higher education under Section 17-106 of the Education Article.

(A) A private elementary or secondary school or a nonpublic institution of higher education may not purchase religious materials under this contract.

(B) The right to purchase under this section shall be in addition to, but not in substitution for, the applicable purchasing power granted to any of the listed entities pursuant to any statutory or charter provision.

(7) Another State or an agency or other instrumentality of another state.

All purchases under this contract by any such entity as described above which is not a unit or agency of the State of Maryland for which the State of Maryland may be held liable in contract: (1) shall constitute a purchase or contract between the Contractor and that entity only; (2) shall not constitute a purchase or contract of the State of Maryland; (3) shall not be binding or enforceable against the State of Maryland or any of its units or agencies; and

(4) may be subject to other terms and conditions agreed to by the Contractor and the purchaser.

Contractor bears the risk of determining whether or not any entity from which the Contractor receives an order under the contract is a unit or agency of the State of Maryland such that the contract may be enforced against the State of Maryland.

39. TIE BIDS:

Tie Bids will be decided pursuant to COMAR 21.05.02.14.

40. DELAYS AND EXTENSIONS OF TIME:

The Contractor agrees to prosecute the work continuously and diligently and no charges or claims for damages shall be made by it for any delays or hindrances from any cause whatsoever during the progress of any portion of the work specified in this Contract.

Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another Contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.

41. PATENTS, COPYRIGHTS, AND INTELLECTUAL PROPERTY:

All copyrights, patents, trademarks, trade secrets, and any other intellectual property rights existing prior to the Effective Date of this Contract shall…