CTR066178_Contract_Documents.pdf

Key:

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Item # Section Referenced Section, Title, Paragraph No.

Referenced Original Language of Referenced Section and Paragraph Exception or Change Requested by Texas A&M (TTI) ADOT Response 04/20/2023

Texas Response (5.1.23) ADOT Response (05/08/2023)

1 Scope of Work 5.16

Pursuant to 23 CFR 420.121, the Department may copyright any books, publications, or other copyrightable materials developed in the course of the project. The funding federal agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for government purposes. This contract does not establish a sub-recipient relationship. Any awarded contract establishes a Contractor relationship. A Contractor shall not be entitled to any copyright for anything created for, through, or as a result of this project.

Pursuant to 23 CFR 420.121, the Department may copyright any books, publications, or other copyrightable materials developed in the course of the project. The funding federal agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for government purposes. This contract does not establish a sub-recipient relationship.

Any awarded contract establishes a Contractor relationship. A Contractor shall not be entitled to any copyright for anything created for, through, or as a result of this project. This conflicts with Section 3.9.1 of the Uniform terms and Conditions under which we would retain intellectual copyrights. We request that this be removed/altered as shown. As an agency of the State of Texas and an institute of higher education engaged in fundamental research, it is imperative that we be able to add to the collective body of knowledge through free and broad publication. If TTI retains no rights to its own materials it cannot fulfill this mission.

DENIED - Striking out the sentences "This contract does not establish a sub-recipient relationship. Any awarded contract establishes a Contractor relationship. A Contractor shall not be entitled to any copyright for anything created for, through, or as a result of this project."

This conflicts with Section 3.9.1 of the Uniform terms and Conditions under which we would retain intellectual copyrights. We request that this be removed/altered as shown.

As an agency of the State of Texas and an institute of higher education engaged in fundamental research, it is imperative that we be able to add to the collective body of knowledge through free and broad publication. If TTI retains no rights to its own materials it cannot fulfill this mission.

Denied- Final

2 Scope of Work 5.16.1

The Contractor shall not release any material, report, or other document related to this project without the written approval of the Department. The Contractor shall not present information related to this project without the written approval of the Department.

5.16.1. The Contractor shall not release any Property of the State as defined in Section 3.10 of the Uniform Terms and Conditions material, report, or other document related to this project without the written approval of the Department.

The Contractor shall not present information related to this project without the written approval of the Department This conflicts with Section 3.9 and 3.10 of the Uniform terms and Conditions under which we would retain intellectual copyrights, which would mean that we could use such materials as we wished and that only those items defined within Section 3.10 (specific project reports and deliverables) would be the property of the State and subject to the control of the State. We request that this be removed/altered as shown. As an agency of the State of Texas and an institute of higher education engaged in fundamental research, it is imperative that we be able to add to the collective body of knowledge through free and broad publication.

DENIED - Striking out the sentences "This contract does not establish a sub-recipient relationship. Any awarded contract establishes a Contractor relationship. A Contractor shall not be entitled to any copyright for anything created for, through, or as a result of this project."

This conflicts with Section 3.9 and 3.10 of the Uniform terms and Conditions under which we would retain intellectual copyrights, which would mean that we could use such materials as we wished and that only those items defined within Section 3.10 (specific project reports and deliverables) would be the property of the State and subject to the control of the State. "Material, reporst or other document related to this project" is quite a bit more broad than the narrow list "materilas that are not covered by Section 3.9 including reportsand other deliverables" as defined within Section 3.10.

We request that this be removed/altered as shown. As an agency of the State of Texas and an institute of higher education engaged in fundamental research, it is imperative that we be able to add to the collective body of knowledge through free and broad publication.

Denied- Final

Uniform Terms and Conditions

2.1

Arizona Law. The Arizona law applies to this Contract including, where applicable, the Uniform Commercial Code as adopted by the State of Arizona and the Arizona Procurement Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its implementing rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter 7.

We would like to request either the application of Texas law, or that we remain silent on this matter. As an agency of the State of Texas we cannot agree to the application of another state’s laws.

Deny Understood.

Uniform Terms and Conditions

3.6

Advertising, Publishing and Promotion of Contract. The Contractor shall not use, advertise or promote information for commercial benefit concerning this Contract without the prior written approval of the Procurement Officer.

3.6. Advertising, Publishing and Promotion of Contract. The Contractor shall not use, advertise or promote information for commercial benefit concerning this Contract without the prior written approval of the Procurement Officer. We would like to remove the word “publishing” from this prohibition. As an agency of the State of Texas and an institute of higher education engaged in fundamental research, it is imperative that we be able to add to the collective body of knowledge through free and broad publication. Additionally, publication is addressed in other sections including Section 3.9.1 under which we would retain intellectual copyrights, which would mean that we could use such materials as we wished and that only those items defined within Section 3.10 (specific project reports and deliverables) would be the property of the State and subject to limitation on publication or control by the State.

Deny We do not believe that the word "publishing" belongs here as it is better and more fully addressed in an IP section separate from advertising and other provisions related to promotion.

We reiterate our request that either the word "Publishing" be stricken or that the entire section be altered as it was in BAFO ADOT 16-0005782 to the following language "Neither Party shall use, advertise or promote information for commercial benefit concerning this Contract without the prior written permission of the other Party. Academic or scholarly works produced

Ok to remove "publishing" from here as long as the other terms in the scope remain as originally written.- Final

Uniform Terms and Conditions

3.7

Continuous Improvement. Contractor shall recommend continuous improvements on an on-going basis in relation to any Materials and Services offered under the Contract, with a view to reducing State costs and improving the quality and efficiency of the provision of Materials or Services. State may require Contractor to engage in continuous improvements throughout the term of the Contract.

3.7. Continuous Improvement. Contractor shall recommend continuous improvements on an ongoing basis in relation to any Materials and Services offered under the Contract, with a view to reducing State costs and improving the quality and efficiency of the provision of Materials or Services. State may require Contractor to engage in continuous improvements throughout the term of the Contract via mutually agreed upon amendment to the Scope of Work.”. Anything that would alter the scope of services to be provided, such as requiring us to engage in continuous improvements to our products or services could potentially require additional personnel time, materials, and/or supplies which would need to be delineated in an Amendment to the mutually agreed upon Scope of Work.

Agreed Thank you.

Solicitation No. BPM005129 Summary of Exceptions and Responses - Texas A&M

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Uniform Terms and Conditions

3.9.1

Rights In Work Product. All intellectual property originated or prepared by Contractor pursuant to the Contract, including but not limited to, inventions, discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical communications, records reports, computer programs and other documentation or improvements thereto, including Contractor’s administrative communications and records relating to the Contract, are considered work product and Contractor’s property, provided that, State has Government Purpose Rights to that work product as and when it was delivered to State.

Rights In Work Product. All intellectual property originated or prepared by Contractor pursuant to the Contract, including but not limited to, inventions, discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical communications, records reports, data, computer programs and other documentation or improvements thereto, including Contractor’s administrative communications and records relating to the Contract, are considered work product and Contractor’s property, provided that, State has Government Purpose Rights to that work product as and when it was delivered to State.

Denied- The vendor is not entitled to intellectual property rights for federally funded projects.

Section 3.9.1 specifically says that we do retain intellectual property rights; it indicates that all listed items are considered Contractor's work product and Contractor's property. The only intellectual property rights granted therein for ADOT are for Government purpose rights of use. The only change that we requested, and reiterate here, is that data also be included within such list.

ADOT can accept the addition of the word "Data". -Final

Uniform Terms and Conditions

3.9.2.1 the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide right to use, modify, reproduce, release, perform, display, sublicense, disclose and create derivatives from that work product without restriction for any activity in which State is a party;

survival of Representation Warranty. All representations and warranties made by Contractor under the Contract will survive the expiration or earlier termination of the Contract.

Denied We are fine with ADOT having Government Purpose rights of usage but reiterate our request that sublicensable be removed from the clause as we do not wish to give the ability to ADOT to grant license of use to third parties which may include our competitors.

Denied - ADOT will retain the copyright, not the university.- Final

Uniform Terms and Conditions

3.9.2.3 the right to authorize those to whom it rightfully releases or discloses that work product to use, modify, release, create derivative works from the work product for any State government purpose; such recipients being understood to include the federal government, the governments of other states, and various local governments.

the right to authorize those to whom it rightfully releases or discloses that work product to use, modify, release, create derivative works from the work product for any State government purpose; such recipients being understood to include the federal government, the governments of other states, and various local governments.

The Federal Provisions Section 13, and indicate that the federal agency reserves a royalty free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for Government purposes. That same right is not automatically granted also to ADOT because of its role as the PTE. It is appropriate and necessary for ADOT to have a license to use all project intellectual property but it is not necessary that it be able to sublicense/grant others the ability to use such items. We request the removal of language allowing for such sublicensing.

We have also added data to the list within 3.9.1 to clarify that although a final report may fall under property of the State as defined within Section 3.10, the data utilized in creating such a report does not.

Denied - ADOT is not a "PTE". ADOT is the procuring agency; the funding is ADOTs, and those contractors hired under this contract shall be "vendors", not "subrecipients".

The Federal Provisions Section 13 indicates that the federal agency reserves a royalty free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for Government purposes. That same right is not automatically granted also to ADOT because of its role as the PTE or procuring agency. It is appropriate and necessary for ADOT to have a license to use all project intellectual property but it is not necessary that it be able to sublicense/grant others the ability to use such items. We request the removal of language allowing for such sublicensing.

We have also added data to the list within 3.9.1 to clarify that although a final report may fall under property of the State as defined within Section 3.10, the data utilized in creating such a report does not.

Denied. The research oncall contracts will primarily use federal US Department of Transportation funds. Under the funding, the contractor shall be considered a vendor, not a sub-recipient. Pursuant to 23 CFR 420.121(b), copyright shall belong to the State, and the federal funding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others touse, the work for Government purposes.- Final

Uniform Terms and Conditions

6.2.1

Contractor/Vendor Indemnification (Not Public Agency).To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or Subcontractors. This indemnity includes any claim or amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable. In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation Insurance and Indemnification Guidelines for State of Arizona Contracts Professional Service Contracts against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work performed by the Contractor for the State of Arizona. This indemnity shall not apply if the Contractor or Subcontractor(s) is/are an agency, board, commission or university of the State of Arizona.

Contractor/Vendor Indemnification (Not Public Agency).To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its owners, officers, directors, agents, employees or Subcontractors. This indemnity includes any claim or amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for primary loss investigation, defense, and judgment costs where this indemnification is applicable.

In consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation Insurance and Indemnification Guidelines for State of Arizona Contracts Professional Service Contracts against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work performed by the Contractor for the State of Arizona. This indemnity shall not apply if the Contractor or Subcontractor(s) is/are an agency, board, commission or university of the State of Arizona.

Accepted Thank you.

Uniform Terms and Conditions

6.2.2

Public Agency Language Only. Each party (as 'indemnitor') agrees to indemnify, defend, and hold harmless the other party (as 'indemnitee') from and against any and all claims, losses, liability, costs, or expenses (including reasonable attorney's fees) (hereinafter collectively referred to as 'claims') arising out of bodily injury of any person (including death) or property damage but only to the extent that such claims which result in vicarious/derivative liability to the indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents, employees, or volunteers.

Public Agency Language Only. Each party (as 'indemnitor') agrees to indemnify, defend, and hold harmless the other party (as 'indemnitee') from and against any and all claims, losses, liability, costs, or expenses (including reasonable attorney's fees) (hereinafter collectively referred to as 'claims') arising out of bodily injury of any person (including death) or property damage but only to the extent that such claims which result in vicarious/derivative liability to the indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents, employees, or volunteers.Any indemnification by Contractor is subject to the limitations imposed by the laws and Constitution of the State of Texas.

Accepted Thank you.

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Uniform Terms and Conditions

6.3

Indemnification - Patent and Copyright. The Contractor shall indemnify and hold harmless the State against any liability, including costs and expenses, for infringement of any patent, trademark or copyright arising out of Contract performance or use by the State of Materials furnished or work performed under this Contract. The State shall reasonably notify the Contractor of any claim for which it may be liable under this paragraph. If the Contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this paragraph shall not apply.

Indemnification - Patent and Copyright. The Contractor shall indemnify and hold harmless the State against any liability, including costs and expenses, for infringement of any patent, trademark or copyright arising out of Contract performance or use by the State of Materials furnished or work performed under this Contract. The State shall reasonably notify the Contractor of any claim for which it may be liable under this paragraph. If the Contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this paragraph shall not apply. Reserved -As an agency of the State of Texas our ability to indemnify is strictly limited by the laws and Constitution of our state.

Accepted Thank you.

Uniform Terms and Conditions

Warranties Warranties Representations Approved Thank you.

Uniform Terms and Conditions

7.1 Liens. The Contractor warrants that the Materials supplied under this Contract are free of liens and shall remain free of liens.

7.1. Liens. The Contractor represents warrants that the materials supplied under this Contract are free of liens and shall remain free of liens.

Approved Thank you.

Uniform Terms and Conditions

7.2

Quality. Unless otherwise modified elsewhere in the Special Terms and Conditions, the Contractor warrants that, for one (1) year after acceptance by the State of the Materials, they shall be:

Quality. Unless otherwise modified elsewhere in the Special Terms and Conditions, the Contractor warrants that, for one (1) year after acceptance by the State of the Materials, they shall be:

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.2.1 Of a quality to pass without objection in the trade under the Contract description;

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.2.2 Fit for the intended purposes for which the Materials are used;

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.2.3 Within the variations permitted by the Contract and are of even kind, quantity, and quality within each unit and among all units; Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.2.4 Adequately contained, packaged, and marked as the Contract may require; and

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.2.5 Conform to the written promises or affirmations of fact made by the Contractor.

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.1

Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the Materials and Services will for one (1) year after acceptance and in each instance:

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.1.1

Conform to the requirements of the Contract, which by way of reminder include without limitation all descriptions, specifications, and drawings identified in the Scope of Work and any and all Contractor affirmations included as part of the Contract;

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.1.2 Be free from defects of material and workmanship;

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.1.3 Conform to or perform in a manner consistent with current industry standards; and

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.1.4 Be fit for the intended purpose or use described in the Contract.

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary.

Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.3.2

Mere delivery or performance does not substitute for express acceptance by the State.

Where inspection, testing, or other acceptance assessment of Materials or Services cannot be done until after installation or invoicing, the forgoing warranty will not begin until State’s explicit acceptance of the Materials or Services.

Delete

Denied We are not able to provide a warranty because of our status as a state agency. We can make assurances or representations if necessary. Denied, a state agency should be able to warrant their woirk.

We cannot delete these sections. -Final

Uniform Terms and Conditions

7.4

Inspection/Testing. The warranties set forth in this Section 7 [Warranties] are not affected by inspection or testing of or payment for the Materials or Services by the State.

7.4. Inspection/Testing. The warranties representations set forth in this Section 7 [Warranties Representations] are not affected by inspection or testing of or payment for the materials by the State.

Approved Thank you.

Uniform Terms and Conditions

7.5

Contractor Personnel. Contractor warrants that its personnel will perform their duties under the Contract in a professional manner, applying the requisite skills and knowledge, consistent with industry standards, and in accordance with the requirements of the Contract. Contractor further warrants that its key personnel will maintain any and all certifications relevant to their work, and Contractor shall provide individual evidence of certification to State’s authorized representatives upon request.

Contractor Personnel. Contractor warrants represents that its personnel will perform their duties under the Contract in a professional manner, applying the requisite skills and knowledge, consistent with industry standards, and in accordance with the requirements of the Contract. Contractor further represents warrants that its key personnel will maintain any and all certifications relevant to their work, and Contractor shall provide individual evidence of certification to State’s authorized representatives upon request.

Approved Thank you.

Uniform Terms and Conditions

7.7

Intellectual Property. Contractor warrants that the Materials and Services do not and will not infringe or violate any patent, trademark, copyright, trade secret, or other intellectual property rights or laws, except only to the extent the Specifications do not permit use of any other product and Contractor is not and cannot reasonably be expected to be aware of the infringement or violation.

7.7 Intellectual Property. Contractor represents warrants that the Materials and Services do not and will not knowingly infringe or violate any patent, trademark, copyright, trade secret, or other intellectual property rights or laws, except only to the extent the Specifications do not permit use of any other product and Contractor is not and cannot reasonably be expected to be aware of the infringement or violation.

Approved Thank you.

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Uniform Terms and Conditions

7.8

Licenses and Permits. Contractor warrants that it will maintain all licenses required to fully perform its duties under the Contract and all required permits valid and in force.

Licenses and Permits. Contractor represents warrants that it will maintain all licenses required to fully perform its duties under the Contract and all required permits valid and in force.

Approved Thank you.

Uniform Terms and Conditions

7.9

Operational Continuity. Contractor warrants that it will perform without relief notwithstanding being sold or acquired; no such event will operate to mitigate or alter any of Contractor’s duties hereunder absent a consented delegation under paragraph 5.3 [Assignment and Delegation] that expressly recognizes the event.

Operational Continuity. Contractor represents warrants that it will perform without relief notwithstanding being sold or acquired; no such event will operate to mitigate or alter any of Contractor’s duties hereunder absent a consented delegation under paragraph 5.3 [Assignment and Delegation] that expressly recognizes the event.

Approved Thank you.

Uniform Terms and Conditions

7.10.

Performance in Public Health Emergency. Contractor warrants that it will:

Performance in Public Health Emergency. Contractor represents warrants that it will:

Approved Thank you.

Uniform Terms and Conditions

7.10.4

Failure to have or implement an appropriate plan will be a material breach of contract.

Failure to have or implement an appropriate plan may will be a material breach of contract.

Denied We request that this be changed to "May" since the clause includes both having and implementing an appropriate plan as potential causes for breach of contract. We absolutely plan to create an appropriate plan but the implementation thereof may not go according to plan, in which case we do not wish to stipulate that it is grounds for breach. We instead would ask that it be "may" and that it be treated as any other such situation in which we would be given a cure period to try to address the issue.

Denied, but as it states " implement an appropriate plan" which idicates that the vendor would be given the oppertuinty to address the issue. -Final

Uniform Terms and Conditions

7.11.1

Prohibition. Contractor warrants that it will not engage in lobbying activities, as defined in 40 Code of Federal Regulations (CFR) part 34 and A.R.S. § 41-1231, et seq., using monies awarded under the Contract, provided that, the foregoing does not intend to constrain Contractor's use of its own monies or property, including without limitation any net proceeds duly realized under the Contract or any value thereafter derived from those proceeds; and upon award of the Contract, it will disclose all lobbying activities to State to the extent they are an actual or potential conflict of interest or where such activities could create an appearance of impropriety. Contractor shall implement and maintain adequate controls to assure compliance with above. Contractor shall obtain an equivalent warranty from all Subcontractors and shall include an equivalent no-lobbying provision in all Subcontracts.

Prohibition. Contractor represents warrants that it will not engage in lobbying activities, as defined in 40 Code of Federal Regulations (CFR) part 34 and A.R.S. § 41- 1231, et seq., using monies awarded under the Contract, provided that, the foregoing does not intend to constrain Contractor's use of its own monies or property, including without limitation any net proceeds duly realized under the Contract or any value thereafter derived from those proceeds; and upon award of the Contract, it will disclose all lobbying activities to State to the extent they are an actual or potential conflict of interest or where such activities could create an appearance of impropriety. Contractor shall implement and maintain adequate controls to assure compliance with above. Contractor shall obtain an equivalent representation or warranty from all Subcontractors and shall include an equivalent no-lobbying provision in all Subcontracts.

Approved Thank you.

Uniform Terms and Conditions

7.12

Covered Telecommunications or Services. Contractor warrants that the Materials and Services rendered under this Agreement will not require Contractor to use for the State, or provide to the State to use, "covered telecommunications equipment or Services" as a substantial or essential component of any system, or as critical technology as part of any system, within the meaning of Federal Acquisition Regulation (“FAR”) Section 52.204-25.

Covered Telecommunications or Services. Contractor represents warrants that the Materials and Services rendered under this Agreement will not require Contractor to use for the State, or provide to the State to use, "covered telecommunications equipment or Services" as a substantial or essential component of any system, or as critical technology as part of any system, within the meaning of Federal Acquisition Regulation (“FAR”) Section 52.204-25.

Approved Thank you.

Uniform Terms and Conditions

7.13

Debarment, Suspension, U.S. Government Restricted Party Lists. Contractor warrants that it is not, and its Subcontractors are not, on the U.S. government’s Denied Parties List, the Unverified List, the Entities List, the Specially Designated Nationals and Blocked Parties List, and neither the Contractor nor any Subcontractors are presently debarred, suspended, proposed for debarment or otherwise declared ineligible for award of federal contracts or participation in federal assistance programs or activities.

Debarment, Suspension, U.S. Government Restricted Party Lists. Contractor represents warrants that it is not, and its Subcontractors are not, on the U.S.

government’s Denied Parties List, the Unverified List, the Entities List, the Specially Designated Nationals and Blocked Parties List, and neither the Contractor nor any Subcontractors are presently debarred, suspended, proposed for debarment or otherwise declared ineligible for award of federal contracts or participation in federal assistance programs or activities.

Approved Thank you.

Uniform Terms and Conditions

7.14

False Statements. Contractor represents and warrants that all statements and information Contractor prepared and submitted in response to the Solicitation or as part of the Contract documents are current, complete, true, and accurate. If the Procurement Officer determines that Contractor submitted an Offer or Bid with a false statement, or makes material misrepresentations during the performance of the Contract, the Procurement Officer may determine that Contractor has materially breached the Contract and may void the submitted Offer or Bid and any resulting Contract.

False Statements. Contractor represents and warrants that all statements and information Contractor prepared and submitted in response to the Solicitation or as part of the Contract documents are current, complete, true, and accurate. If the Procurement Officer determines that Contractor submitted an Offer or Bid with a false statement, or makes material misrepresentations during the performance of the Contract, the Procurement Officer may determine that Contractor has materially breached the Contract and may void the submitted Offer or Bid and any resulting Contract.

Approved Thank you.

Uniform Terms and Conditions

7.15.1 Survival of Warranty. All representations and warranties made by Contractor under the Contract will survive the expiration or earlier termination of the Contract.

Survival of Representation Warranty. All representations and warranties made by Contractor under the Contract will survive the expiration or earlier termination of the Contract.

Approved Thank you.

Uniform Terms and Conditions

7.15.2

Contractor's Representations and Warranties. All representations and warranties made by the Contractor under this Contract shall survive the expiration or termination hereof.

In addition, the parties hereto acknowledge that pursuant to A.R.S. § 12-510, except as provided in A.R.S. § 12- 529, the State is not subject to or barred by any limitations of actions prescribed in A.R.S., Title 12, Chapter 5.

Contractor's Representations and Warranties. All representations and warranties made by the Contractor under this Contract shall survive the expiration or termination hereof. In addition, the parties hereto acknowledge that pursuant to A.R.S. § 12-510, except as provided in A.R.S. § 12- 529, the State is not subject to or barred by any limitations of actions prescribed in A.R.S., Title 12, Chapter 5.

Approved Thank you.

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Uniform Terms and Conditions

8.5

Right of Offset. The State shall be entitled to offset against any sums due the Contractor, any expenses or costs incurred by the State, or damages assessed by the State concerning the Contractor’s non-conforming performance or failure to perform the Contract, including expenses, costs and damages described in the Uniform Terms and Conditions.

Delete- As an agency of the State of Texas we cannot accept the inclusion of right to offset as it may result in an undetermined unfunded liability on behalf of the state.

Denied As a state agency we can not agree to stipulate to offsets against amounts owed to us for work performed. Doing work withough being paid for it would be extending credit on behalf of the State of Texas, which we are not authorized to do, and since no limitation has been placed upon this, it would be creating an unknowable unfunded liability on behalf of the state, which we can not do. We reiterate our request.

Denied- Final

Uniform Terms and Conditions

9.4

Termination for Convenience. The State reserves the right to terminate the Contract, in whole or in part at any time when in the best interest of the State, without penalty or recourse. Upon receipt of the written notice, the Contractor shall stop all work, as directed in the notice, notify all Subcontractors of the effective date of the termination and minimize all further costs to the State. In the event of termination under this paragraph, all documents, Data and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the State upon demand. The Contractor shall be entitled to receive just and equitable compensation for work in progress, work completed, and Materials or Services accepted before the effective date of the termination. The cost principles and procedures provided in A.R.S. § 41-2543 and A.A.C. Title 2, Chapter 7, Article 7, shall apply.

Termination for Convenience. The State reserves the right to terminate the Contract, in whole or in part at any time when in the best interest of the State, without penalty or recourse. Upon receipt of the written notice, the Contractor shall stop all work, as directed in the notice, notify all Subcontractors of the effective date of the termination and minimize all further costs to the State. In the event of termination under this paragraph, all documents, Data and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the State upon demand. The Contractor shall be entitled to receive just and equitable compensation for work in progress, work completed, and Materials or Services accepted before the effective date of the termination. The cost principles and procedures provided in A.R.S. § 41-2543 and A.A.C. Title 2, Chapter 7, Article 7, shall apply. The Contractor may terminate for convenience upon 30 days’ written notice to the State.

Denied Termination does not change intellectual property rights that are already defined, namely those items that currently belong to TTI will not become the property of ADOT simply by virtue of termination. We reiterate our request for deletion. We do not dispute the right of ADOT to terminate for its convenience, we only ask that we likewise be given some right of termination for convenience, if at all possible.

Denied- Final

Uniform Terms and Conditions

9.5.1

In addition to the rights reserved in the contract, the State may terminate the Contract in whole or in part due to the failure of the Contractor to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The Procurement Officer shall provide written notice of the termination and the reasons for it to the Contractor.

In addition to the rights reserved in the contract, after a thirty day cure period, if Contractor has not cured a breach,the State may terminate the Contract in whole or in part due to the failure of the Contractor to comply with any term or condition of the Contract, to acquire and maintain all required insurance policies, bonds, licenses and permits, or to make satisfactory progress in performing the Contract. The Procurement Officer shall provide written notice of the termination and the reasons for it to the Contractor. The Contractor may terminate for breach upon 30 days’ written notice to the State.

We can accept " after a thirty day cure period, if Contractor has not cured a breach". We DENY "The Contractor may terminate for breach upon 30 days’ written notice to the State"

TTI has been granted no rights of termination whatsoever. We reiterate our request that a right to terminate for breach/default be included.

Deined, although we will still agree to:We can accept " after a thirty day cure period, if Contractor has not cured a breach".

We DENY "The Contractor may terminate for breach upon 30 days’ written notice to the State" -Final

Uniform Terms and Conditions

9.5.2

Upon termination under this paragraph, all goods, Materials, documents, Data, and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the State on demand.

Upon termination under this paragraph, all goods, Materials, documents, Data, and reports prepared by the Contractor under the Contract shall become the property of and be delivered to the State on demand.

Denied Termination does not change intellectual property rights that are already defined, namely those items that currently belong to TTI will not become the property of ADOT simply by virtue of termination. We reiterate our request for deletion. Denied- Final

Uniform Terms and Conditions

9.5.3

The State may, upon termination of this Contract, procure, on terms and in the manner that it deems appropriate, Materials or Services to replace those under this Contract. The Contractor shall be liable to the State for any excess costs incurred by the State in procuring Materials or Services in substitution for those due from the Contractor.

The State may, upon termination of this Contract, procure, on terms and in the manner that it deems appropriate, Materials or Services to replace those under this Contract. The Contractor shall be liable to the State for any excess costs incurred by the State in procuring Materials or Services in substitution for those due from the Contractor. We request the ability to terminate in case we become unable to complete the work because of personnel changes, mission change, etc. Additionally, we object to inclusion of the stricken language indicating that materials become the property of the State which conflicts with Section 3.9 and 3.10 of the Uniform terms and Conditions under which we would retain intellectual copyrights, and that only those items defined within Section 3.10 (specific project reports and deliverables) would be the property of the State and subject to the control of the State. Early termination for the convenience of the State should not affect the intellectual property rights of 7 the parties. We have requested a cure period be added to Section 9.5. Since we have not been granted any rights of termination, we would like to request the ability to terminate in the event of breach of contract by Sponsor. We cannot agree to financial responsibility for any cost of completion of the work as it creates an undetermined unfunded liability on behalf of the State of Texas.

Denied. We request that language be stricken stipulating TTI responsibility for costs of securing substitute goods or services as there is no possible way to know the cost of such re-procurement and TTI is not allowed to incur an unknown and unsecured debt on behalf of the State of Texas.

Denied

Uniform Terms and Conditions

The parties to this Contract agree to resolve all disputes arising out of or relating to this Contract through arbitration, after exhausting applicable administrative review, to the extent required by A.R.S. § 12-1518, except as may be required by other applicable statutes (A.R.S. Title 41).

The parties to this Contract agree to resolve all disputes arising out of or relating to this Contract through arbitration, after exhausting applicable administrative review, to the extent required by A.R.S. § 12-1518, except as may be required by other applicable statutes (A.R.S. Title 41). Our dispute resolution processes are prescribed by law and do not include acceptance of binding arbitration. We are happy to attempt to resolve disputes through good faith negotiation between representatives of our respective institutions.

Denied- ADOT cannot change Arizona law. As a state agency, our dispute resolution processes are prescribed by law and do not include acceptance of binding arbitration. We request one of the following A) that the section be reserved B) that it be indicated that the parties will attempt to resolve disputes through good faith negotiation between representatives of our respective institutions, or C) that non-binding arbitration be applied as has previously been included in ADOT-TTI agreement, namely ADOT CAR No JPA 18-0006846- I.

Denied- ADOT cannot change Arizona law. -Final

Rev. 11/2022

Procurement

STATE OF ARIZONA

ARIZONA DEPARTMENT OF TRANSPORTATION

1655 W. Jackson St., MD 100P Phoenix, AZ 85007

REQUEST FOR PROPOSAL

SOLICITATION NUMBER: BPM005129

DESCRIPTION: Transportation Research On-Call

QUESTIONS: Inquiries regarding the solicitation are to be submitted online through the State’s e-Procurement system, Arizona Procurement Portal (APP) (https://app.az.gov/) using the Discussion Forum tab.

OFFERORS ARE STRONGLY ENCOURAGED TO READ THE ENTIRE SOLICITATION.

Kelly Greene Procurement Officer Phone: 602-712-4879 Email: Kgreene@azdot.gov

This solicitation is issued in accordance with A.R.S. §41-2534 and A.A.C. R2-7-C301 et seq., Competitive Sealed Proposals.

“An Equal Opportunity Agency”

The Arizona Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252.42 U.S.C. §§ 2000d-4) and the Americans with Disabilities Act (ADA), hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin in consideration for an award.

Persons that require a reasonable accommodation based on language or disability should contact ADOT’s Procurement Office by phone (602) 712-2089. Requests should be made as early as possible to ensure the State has an opportunity to address the accommodation.

Las personas que requieran asistencia (dentro de lo razonable) ya sea por el idioma o discapacidad deben ponerse en contacto con ADOT (602) 712-2089.

https://app.az.gov/

TABLE OF CONTENTS

Solicitation No: BPM005129 Available online at

SECTION PAGE

Notice 1

Table of Contents 2

Scope of Work 3

Special Terms and Conditions 17

Uniform Terms and Conditions 27

Federal Provisions 43

EXHIBITS

1 - Title VI/Non-Discrimination Assurances Appendix A 68

2 - Title VI/Non-Discrimination Assurances Appendix E 69

3- Billing Summary / Reimbursement Request 70

4- Vendor Performance Report 71

5- Vendor Hours Contribution Table & DBE Compliance Report 72

6- Quick Control Guide 73

7- ITM-12.01 Data Classification Policy 75

8- 310PS Disadvantaged Business Enterprise Certification of Final (DBE) Payment 78

9- Usage Report 79

SCOPE OF WORK

1. Statement of Need

1.1. Pursuant to the Arizona Procurement Code, A.R.S. §41-2501 et seq., the State of Arizona

Department of Transportation (Department), has a requirement for Transportation Research On- Call services.

1.2. The Department is seeking the services of a qualified firm(s) or individual(s) (hereinafter referred to as Contractor) to provide transportation research services with an emphasis on practical application at the Department on a broad range of research topics associated with Planning, Policy, Administration and Communication; Environmental Impacts of Transportation; Intelligent Transportation…