CTR078102 Contract Documents - Pete's Body Shop Inc.docx

Uniform Terms and Conditions Arizona Department of Public Safety 2102 W. Encanto Blvd.

Phoenix, Arizona 85009

Limited Competition A.R.S. §41-2537, A.A.C. R2-7-E303, SPO Technical Bulletin No. 041

Description: Automotive Parts and Repair for Light Duty Vehicles

Table of Contents

CONTRACTOR IS STRONGLY ENCOURAGED TO READ THE ENTIRE CONTRACT.

Limited Competition

Description: Automotive Parts and Repair for Light Duty Vehicles

Scope of Work

1. Purpose: In accordance with A.R.S. § 41-2537, Competition Impracticable, the Arizona Department of Public Safety (DPS) has a requirement for Automotive Parts and Repair for Light Duty Vehicles.

2. Introduction and Background:

2.1. DPS intends to establish statewide term contract for Automotive Repair for Light Duty Vehicles. Light Duty is identified as Class 1-2 vehicles with Gross Vehicle Weight Rating (GVWR) of less than 10,000 lbs.

3. General Requirements:

3.1. The Contractor shall have support mechanisms in place to support Arizona Department of Public Safety to meet the requirements of the solicitation for the service area being offered.

3.2. The Contractor shall provide the goods/services described for the following category:

3.2.1. Automotive Labor and repair with OEM and/or non-OEM parts

3.3. The required services, components and related parts include but are not limited to the following:

3.3.1. Exhaust

3.3.2. Lighting & Electrical systems

3.3.3. Belts & Hoses

3.3.4. Filters & PVC Valves

3.3.5. Suspensions, Alignments and Steering systems

3.3.6. Brake systems

3.3.7. Fuel Systems & Emissions

3.3.8. Charging & Starting

3.3.9. Cooling & Heating Systems

3.3.10. Ignition & Tune-up

3.3.11. Power Train Systems, Transmission & Transaxle

3.3.12. Engine Parts & Mounts

3.3.13. Oils and Lubrication systems

3.3.14. Auto Body Repair including paint

3.3.15. Excludes Tires and Windshield services

4. Specific requirements:

4.1. The Contractor shall provide services to any one or more of services listed in paragraph 3.3

4.2. When labor and repair with OEM and/or non-OEM/aftermarket parts are provided, the following is applicable:

4.2.1. The Contractor shall use OEM and/or non-OEM/aftermarket parts when OEM parts are unavailable and after authorization from DPS Fleet. Authorization is defined as obtaining a control number from DPS Fleet.

4.2.2. OEM parts shall be new and conform to the OEM’s specification, unless otherwise approved in writing by the AZ DPS prior to delivery.

4.2.3. The Contractor shall not sell non-OEM/aftermarket parts directly to the Arizona Department of Public Safety. The parts must only be used in a repair service.

4.2.4. In the event Contractor does not have access to or availability of contractually required parts, DPS reserves the right to supply parts.

4.3. Certifications/Safety Standards/Regulations: The Contractor shall provide all necessary parts, supplies and labor necessary to perform repairs and shall meet or exceed all manufacture’s recommendations and standards. Repair services shall be performed in conformance with all provisions of this contract, legal statutes, code requirements, and industry standards.

4.3.1. All work under this category shall be performed by qualified personnel. Qualified personnel must have the training and certification required to perform the work according to all applicable federal, state and local rules and regulations. The Contractor shall perform all services in a safe manner for means, methods, techniques, procedures and safety precautions.

4.3.2. The Contractor shall ensure that all work will be professionally diagnosed, and that repairs will be performed by trained mechanics. It is the Contractor’s responsibility to ensure safety standards are met and all Contractors personnel certifications if applicable are current.

4.3.3. The Contractor shall comply with all applicable laws and regulations including but not limited to the following:

4.3.3.1. Occupational Safety and Health Administration (OSHA)

4.3.3.2. All local, county, state and national laws and regulations

4.3.3.3. National Fire Protection Association (NFPA) requirements

4.3.3.4. Code of Federal Regulation (CFR) under Tittle 49;

4.3.3.5. Federal Motor Carrier Safety Administration (FMCSA) Inspection, Repair, and Maintenance within Part 396,

4.3.3.6. (FMCSA) Parts & Accessories Necessary for Safe Operation within Part 393,

4.3.3.7. (FMCSA) Safety Standards within Part 571,

4.3.3.8. The Society of Automotive Engineer (SAE) standards

4.4. Labor Rates: for any labor levels that may be applicable to the service being offered shall be in accordance with the Pricing Document.

4.4.1. Calculated labor times shall be in accordance with the Pricing Document. If the method of labor calculation is not a publicized Standard such as the Mitchell Guide, the Contractor must submit that information at the time of this submittal.

4.4.2. Labor rates and labor hours must be itemized on the estimate and invoice to the Arizona Department of Public Safety If the Contractor’s software limits itemized information, the Contractor must list the breakdown in the narrative on the estimate and invoice.

4.4.3. The Contractor shall have the ability to itemize labor hours to the tenth of the hour.

4.5. Shop Supplies: Shop supplies shall not exceed 5% of the total labor cost and will not exceed a total of $150.00 per job.

4.6. Environmental/Additional Fees: Environmental Fees and or additional fees shall be listed separately on estimates and invoices and shall not exceed 3%, of the total job and will not exceed a total of $100 per job. Software fees, consultation fees, etc. shall not be included in the invoice.

4.7. Response Times: The Contractor shall provide turnaround time as estimated or quoted when scheduling services with Arizona Department of Public Safety in order to reduce downtime on vehicles.

4.7.1. The Contractor agrees to work within the agreed timeframe given to the Arizona Department of Public Safety

4.7.2. A written or electronic quote that includes parts, materials, labor hours and estimated completion time shall be provided to the Arizona Department of Public Safety prior to commencement of any work under this contract.

4.7.3. All diagnostic testing shall require prior authorization from the Arizona Department of Public Safety. Authorization is defined as obtaining a control number from DPS Fleet.

4.7.4. Repairs shall be started within twenty-four (24) hours of receiving approval unless otherwise agreed upon by the Arizona Department of Public Safety

4.8. Pickup and delivery Service: The Contractor shall provide the cost if applicable of pickup and delivery service for vehicles on Pricing Document. Pricing for this service shall be quoted in increments on the Pricing Document.

4.8.1. Repairs will be made at the Contractor’s facility with the vehicle delivered and picked up by the Arizona Department of Public Safety Pickup and delivery services by the Contractor must be mutually agreed on prior to service. Should a repair not be made at Contractor’s facility, prior authorization is required. Authorization is defined as obtaining a control number from DPS Fleet.

4.8.2. All Contractor personnel operating the Arizona Department of Public Safety vehicle must possess a valid, appropriate class of driver’s license.

4.8.3. Upon prior approval by the AZ DPS agency, maintenance, repairs and services may be performed at the Arizona Department of Public Safety locations. This service must be overseen by the Arizona Department of Public Safety fleet staff.

4.8.4. In the event pickup/delivery service is provided and multiple repair locations are available, the Contractor shall incur the cost of expense of transportation when not utilizing the nearest repair facility.

4.9. Vehicle Storage: The Contractor shall be responsible for adequate and secure storage of all vehicles at no cost to the Arizona Department of Public Safety during repair services. No storage fees shall be charged to the Arizona Department of Public Safety during or after the repair process.

4.9.1. The Contractor shall be responsible for any stolen or damaged equipment while the vehicle(s) are in the Contractor’s custody.

4.10. Optional Towing Services: The Contractor shall provide towing services if indicated on the Pricing Document only at the discretion of the Arizona Department of Public Safety request. Towing services shall be billed in accordance to the Pricing Document.

4.10.1. The Contractor shall be responsible for ensuring the safety and security of Arizona Department of Public Safety vehicles.

4.10.2. All emergency towing services as requested by the Arizona Department of Public Safety must include transportation of all passengers if needed.

5. Contractor’s Responsibilities:

5.1. Inspection & Acceptance: All repairs under this contract shall be subject to a complete inspection by the Arizona Department of Public Safety prior to acceptance. Inspection criteria shall include, but is not limited to, mechanical integrity, quality, workmanship and materials, and invoice accuracy.

5.1.1. The Contractor shall have five (5) business days to correct any deficiencies found by the inspection, The Contractor shall be responsible for any additional costs associated with those corrections. Invoices shall be paid upon acceptance of repairs.

5.1.2. The Contractor shall be responsible for implementing all final settings and adjustments in accordance with manufacturer’s/owner’s/engineer’s specifications.

5.2. Warranty: Following are the minimum warranty requirements for all parts and materials provided under this contract.

5.2.1. The Minimum warranty shall be 90 days or manufacture/industry standard warranty whichever is greater.

5.2.2. When replacing a warranty part the invoice shall include a description of the reason for the requested repair, warranty coverage and clearly indicate no charge to the Arizona Department of Public Safety.

5.2.3. The effective date on all warranties shall begin at the time of installation or in accordance with the requirements as stated in the warranty.

5.2.4. The Arizona Department of Public Safety shall not be charged for the cost of any warranty repairs including parts & labor due to a Contractor rework basis.

5.3. Purchasing Card Surcharges: In the event the Contractor charges a surcharge for use of purchasing card (P-card) transactions, it shall be in accordance with the Pricing Document.

5.4. Estimates and Invoicing: The Contractor shall separate repair estimates/invoices from preventative maintenance services.

5.5. Preventive Maintenance (PM) Service; The Contractor shall submit a separate estimate invoice for preventative maintenance at the time of service.

6. Department/Agency Responsibilities:

6.1. Inspection & Acceptance: The Arizona Department of Public Safety shall have ten (10) business days (excluding and State holidays) to complete the inspection.

6.1.1. The Arizona Department of Public Safety shall not unreasonably withhold acceptance.

Limited Competition

Description: Automotive Parts and Repair for Light Duty Vehicles

6.2. Warranty: The Arizona Department of Public Safety must not require a return/credit on an unused, obsolete part older than one (1) year from the date of purchase.

Special Terms and Conditions

1. Definition of Terms: As used in the Contract, the terms listed below are defined as follows:

1.1. Acceptance: The document titled “Offer and Acceptance Form” bearing the state contract number once Procurement Officer has signed it to signify (1) State’s formal acceptance of the Accepted Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is not to be confused with the term “acceptance” used throughout the Contract in the context of delivery, inspection, etc., with respect to Materials or Services.

1.2. Accepted Offer:

1.2.1. If State did not request a Revised Offer, then “Accepted Offer” means the Initial Offer.

1.2.2. If State requested a Revised Offer but not a Best and Final Offer, then “Accepted Offer” means the latest Revised Offer.

1.2.3. If State requested a Best and Final Offer, then “Accepted Offer” means the Best and Final Offer.

1.3. Arizona Procurement Code: The Arizona Procurement Code consists of Arizona Revised Statutes (A.R.S.) §§ 41-2501 et seq. and Arizona Administrative Code (A.A.C.) R2-7-101 et seq. There is additional information in the Solicitation Instructions regarding how to access these state statutes and rules.

1.4. Arizona Transaction Privilege Tax (TPT): For information, refer to the Arizona Department of Revenue (DOR) website at: https://azdor.gov/transaction-privilege-tax-tpt

1.5. Attachment. Any item that:

1.5.1. The Solicitation required Offeror to submit as part of the Offer (e.g., Initial Offer, Revised Offer, or Best and Final Offer);

1.5.2. Was attached to an Offer when submitted; and

1.5.3. Was included in the Accepted Offer.

1.6. Pricing Document: The Pricing Section of the Special Terms and Conditions; provided that, if there is no such Section in the Contract, then “Pricing Document” is to be construed as referring to whatever item in the Contract contains the contracted pricing and payment provisions.

1.7. Contract Terms and Conditions: The Special Terms and Conditions and the Uniform Terms and Conditions taken collectively.

1.8. Contractor: The Person identified on the Accepted Offer who has entered into the Contract with the State.

1.9. Contractor Indemnitor: Contractor or any of its owners, officers, directors, agents, employees, or Subcontractors.

1.10. Eligible Agency:

1.10.1. If the Special Terms and Conditions indicate that the Contract is a “single-agency” contract, then “Eligible Agency” means the particular State of Arizona agency, university, commission, or board identified therein.

1.11. Instructions to Offerors: “Instructions to Offerors” means the Solicitation Instructions document of the Solicitation.

1.12. Order: The instrument by which the Eligible Agency or Co-Op Buyer authorizes a Contractor to perform some or all of the Work. Whether the Contract will have one Order or many Orders depends on the scope of the Contract and how the State will use it. The Special Terms and Conditions provide that information. Any of the following are construed as an “Order”: “Purchase order,” “task order,” “service order,” or “job order”.

1.13. The State’s eProcurement System: The State’s official electronic procurement system, established pursuant to A.A.C. R2-7-201 as set forth in the Arizona Department of Administration State Procurement Office policy document Technical Bulletin No. 020, The State’s eProcurement System–The Official State eProcurement System. Technical Bulletin No. 020 is available online at:

https://spo.az.gov/sites/default/files/documents/files/TB_020_APP_20181024.pdf

1.14. State: With respect to the Contract generally, “State” means the State of Arizona and its department, agency, university, commission, or board that has executed the Contract. With respect to administration or rights, remedies, obligations and duties under the Contract for a given Order, “State” means each Eligible Agency or Co-Op Buyer who has issued the Order.

1.15. State Indemnitees: Collectively, the State of Arizona, its departments, agencies, universities, commissions, and boards and, and their respective officers, agents, and employees.

1.16. Work: The totality of the Materials and the Services and all the acts of administration, creation, production, and performance necessary to fulfill and incidental to fulfilling all of Contractor's obligations and duties under the Contract in conformance with the Contract and applicable laws.

2. Contract Interpretations

2.1. Usage. Where the Contract:

2.1.1. assigns obligations to Contractor, any reference to “Contractor” is to be construed to be a reference to the Contractor and all Subcontractors, whether they are first-tier Subcontractors, sub-subcontractors, suppliers, sub-suppliers, consultants, or sub-consultants, as well as all of Contractor’s and the Subcontractor’s respective agents, representatives, and employees in every instance unless the context plainly requires that it is a reference only to Contractor as apart from Subcontractors.

2.1.2. uses the permissive “may” with respect to a party’s actions, determinations, etc., the terms is to be interpreted as in A.A.C. R2-7-101(32) [Definitions]. For clarity of intent, any right given to State using “State may” or a like construction denotes discretion and freedom to act so far as any regulatory or operative constraints permit in the relevant circumstances, provided that: (a) where written “may, at its discretion,” the discretion extends to whatever is most advantageous to State; and (b) where written only as “may,” the discretion is constrained by what is fair, reasonable, and as accommodating of the respective best interests of both parties as practicable under the circumstances;

2.1.3. uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to be interpreted as in A.A.C. R2-7-101(44) [Definitions]. Conversely, the phrase “shall not” is to be interpreted as an imperative prohibition.

2.1.4. uses the term “must” with respect to a requirement, criterion, etc., the term is to be interpreted as conveying compulsion or strict necessity;

2.1.5. uses the term “might” with respect to an event, outcome, action, etc., the term is to be interpreted as conveying contingency or non-discretionary conditionality; and

2.1.6. uses the term “will” or the phrases “is to be” or “are to be” with respect to an event, outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty or imperativeness that “shall” is either unnecessary or irrelevant in that instance.

2.2. Contract Order of Precedence

2.2.1. Complementary Documents. All of the documents forming the Contract are complementary. If certain work, requirements, obligations, or duties are set out only in one but not in another, Contractor shall carry out the Work as though the relevant Work, requirements, obligations, or duties had been fully described in all, consistent with the other documents forming the Contract and as is reasonably inferable from them as being necessary to produce complete results.

2.2.2. Conflicts. In case of any inconsistency, conflict, or ambiguity among the documents forming the Contract and their provisions, they are to prevail in the following order, descending from most dominate to most subordinate, provided that, among categories of documents or provisions having the same rank, the document or provision with the latest date prevails. Information being identified in one document, but not in another, is not to be considered a conflict or inconsistency.

2.2.2.1. Contract Amendments;

2.2.2.2. The final Solicitation Documents, in the following order:

(1) Special Terms and Conditions;

(2) Exhibits to the Special Terms and Conditions;

(3) Uniform Terms and Conditions;

(4) Scope of Work;

(5) Exhibits to the Scope of Work;

(6) Specifications; and

(7) Any other documents referenced or included in the Solicitation;

2.2.2.3. Orders, in reverse chronological order; and

2.2.2.4. Accepted Offer.

2.2.3. Attachments and Exhibits. For clarity of intent, if an item was an Attachment in the Solicitation Documents or an Offer (either Initial, Revised, Best and Final, or Accepted) and was subsequently made into an Exhibit, or its content was incorporated into one of the other Contract documents, then that Attachment no longer exists contractually as an “Attachment” since it has at that point been made into some other Contract document. In every other case, an Attachment and the Offeror data therein remain part of the Accepted Offer for purposes of precedence and contractual effect.

3. Contract Administration and Operation

3.1. Eligible Agency: DPS

3.2. Term of Contract. The term of the Contract will commence on the date indicated on the Acceptance and continue for twelve (12) months unless canceled, terminated, or permissibly extended.

3.3. Contract Extensions. Depending on the timing of the ADOT statewide re-solicitation, the contract can be extended for up to an additional 12 months.

3.4. Notices and Correspondence

3.4.1. To Contractor. State shall address all Contract correspondence other than formal notices to the email address indicated as “Default for Type” for “General Mailing Address” in Contractor’s corresponding State’s eProcurement System Vendor Profile; and address any required notices to Contractor to the “Contact Name and Title” at the “Mailing Address” indicated on the Accepted Offer, as that address might have been amended during the term of the Contract.

3.4.2. To State. Contractor shall address all Contract correspondence other than format notices to the email address indicated in “Contact Instructions” in the State’s eProcurement System Summary for State; and address any required notices to State via email to the Procurement Officer identified as “Purchaser” in the State’s eProcurement system.

3.4.3. Changes. State may change the designated Procurement Officer, update contact information, or change the applicable mailing address.

3.5. Signing of Contract Amendments. Contractor’s counter-signature (or “approval” in the State’s eProcurement System, in the case of an amendment) is not required to give effect if the Contract Amendment only covers either:

3.5.1. extension of the term of the Contract within the maximum aggregate term; or

3.5.2. modifications of a clerical nature that have no effect on terms, conditions, price, scope, or other material aspect of the Contract.

In every case other than those listed in 3.4.1 and 3.4.2 above, both parties’ signatures (or “approval” in the State’s eProcurement System in the case of an Amendment) are required to give it effect.

3.6. Click-through Terms and Conditions. If either party uses a web-based ordering system, an electronic purchase order system, an electronic order acknowledgement, a form of an electronic acceptance, or any software based ordering system with respect to the Contract (each an “Electronic Ordering System”), the parties acknowledge and agree that an Electronic Ordering System is for ease of administration only, and Contractor is hereby given notice that the persons using Electronic Ordering Systems on behalf of State do not have any actual or apparent authority to create legally binding obligations that vary from the terms and conditions of the Contract. Accordingly, where an authorized State user is required to “click through” or otherwise accept or be made subject to any terms and conditions in using an Electronic Ordering System, any such terms and conditions are deemed void upon presentation. Additionally, where an authorized State user is required to accept or be made subject to any terms and conditions in accessing or employing any Materials or Services, those terms and conditions will also be void.

3.7. Books and Records

3.7.1. Retain Records. In addition to the audit rights detailed in the Uniform Terms and Conditions, State also requires that, pursuant to A.R.S. § 41-2548(B), Contractor shall retain and shall contractually require each Subcontractor to retain books and records relating to any cost and pricing data submitted in satisfaction of § 41-2543 for the period specified in the statute.

3.7.2. Usage Information. Additionally, any and all information (including, but not limited to, documentation or Data) related to Eligible Agency and Co-Op Buyer usage retained solely within the Contractor’s system (for example, related to punch-out or Contractor catalog sales) shall be considered public information or information that can be shared with and distributed by the State freely and for any purpose under the State’s government purpose rights detailed in Section 3 of the Uniform Terms and Conditions [Ownership of Intellectual Property]. Any modifications to this Contract notwithstanding, the State shall have free use of any and all information related to Eligible Agency or Co-Op Buyer purchasing. Upon request by the State, Contractor shall promptly provide the State with any usage information requested and shall not attempt to limit the State's use in any way.

3.7.3. Right To Audit. The retained books and records are subject to audit by State during that period. Pursuant to A.R.S. § 41-2548(B), Contractor shall retain and shall contractually require each Subcontractor to retain books and records relating to performance under the Contract for the period specified in the statute and those retained books and records are subject to audit by State during that period.

3.7.4. Auditing. Contractor or Subcontractor shall either make all such books and records under subparagraphs 3.6.1 and 3.6.2 available to State at all reasonable times or produce the records at a designated State office on State’s demand, the choice of which being at State’s discretion. For the purpose of this paragraph, “reasonable times” are during normal business hours and in such a manner so as to not unreasonably interfere with normal business activities.

3.8. Subcontract

3.8.1. Initial list. At the time of Contract execution, Contractor’s candidate Subcontractors were identified in Attachment Proposed Subcontractors to the Accepted Offer [Proposed Subcontractors]. Agreeing to them being included in the Accepted Offer signified Procurement Officer’s advance consent for Contractor to enter into a Subcontract with each candidate, which Contractor shall do as promptly as necessary to ensure its ability to carry out the Work in a timely manner.

3.8.2. Additional names. Contractor shall not enter into a Subcontract to perform Work under the Contract, without first obtaining Procurement Officer’s written consent with any prospective Subcontractor that (a) was not listed on the Attachment Proposed Subcontractors at time of Contract execution or (b) is for any Materials or Services categories other than the ones for which they were previously consented. For either case (a) or (b), Contractor shall submit a written request sufficiently in advance of the need date for those materials or services so that performance under the Contract is not impaired. Procurement Officer may request any additional information he or she determines is necessary to assess the submittal, and may withhold consent pending it. Approval of additional subcontractors shall be added to the Contract by a bilateral Contract Amendment.

3.8.3. Flow-down. Contractor shall incorporate the provisions, terms, and conditions of the Contract into every Subcontract by inclusion or by reference, as appropriate. When making any post-execution consent requests, Contractor shall include its warrant that it will do the same for the pending Subcontracts covered by the request. Entering into Subcontracts will not relieve Contractor of any of its obligations or duties under the Contract, including, among other things, the duty to supervise and coordinate the work of Subcontractors. Nothing contained in any Subcontract will create or is to be construed as creating any contractual relationship between State and the Subcontractor.

3.9. Orders

3.9.1. Order Sufficiency. The Contract was awarded in accordance with the Arizona Procurement Code; the transactions and procedures required by the Arizona Procurement Code for competitive source selection have been met. An Order issued that cites the correct State contract number will suffice to authorize the Contractor to provide the Materials and perform the Services covered by that Order.

3.9.2. Order Terms. All Orders are subject to the Contract Terms and Conditions; an Order cannot modify the Contract Terms and Conditions. Any Contractor terms added to quotes or otherwise unilaterally added to Eligible Agency or Co-Op Buyer Orders are null and void.

3.9.3. Orders are Obligatory. Until the expiration or earlier termination of the Contract, State may issue and Contractor shall accept Orders that make proper reference to the Contract and are permissible hereunder, provided that, Contractor is not obliged to accept any Order that is not consistent with the then-current pricing, lead times, specifications, or payment provisions of the Contract. Contractor shall fulfill and complete any Orders that are begun but not yet completed as of expiration or earlier termination of the Contract unless State instructs otherwise at the time.

3.9.4. No Minimums or Commitments. (a) Contractor shall not impose any minimum dollar amount, item count, services volume, or services duration on Orders; (b) State makes no commitment of any kind concerning the quantity or monetary value of activity actually initiated or completed during the term of the Contract; (c) Contractor shall only deliver or perform as authorized by Orders; and (d) State is not limited as to the number of Orders it may issue for the Contract. For clarity of intent, the foregoing applies equally whether an Eligible Agency issues the Order or, if applicable, a Co-Op Buyer issues it.

3.9.5. Non-contracted Materials or Services. Any attempt to knowingly represent for sales, marketing, or related purposes that Materials or Services not specifically awarded are under a State contract is a violation of the Contract and law.

3.10. Order Cancellations. State may cancel Orders within a reasonable period after issuance and at its discretion. The same method used for ordering will be used for cancellation.

3.10.1. If State cancels an Order, then State shall:

3.10.1.1. pay Contractor for any portion of the Materials and Services from that Order that have been properly delivered or performed as of the cancellation effective date; and

3.10.1.2. reimburse Contractor for actual, documented costs incurred in fulfilling the Order up to the cancellation effective date and the cost of any obligations incurred in fulfilling the Order up to the cancellation effective date that demonstrably cannot be canceled or that have pre-established cancellation penalties specified in the relevant Subcontracts, to the extent the penalties are reasonable and customary for the work in question.

3.10.2. Contractor shall not charge or be entitled to charge State for any new costs it incurs after receiving the cancellation notice; State is not liable for any Materials that were produced, shipped, or delivered, or Services that were performed before Contractor had acknowledged the corresponding Order.

3.10.3. State shall also be able to cancel Orders freely and without any further obligation at any time prior to Contractor’s formal acknowledgement of the Order.

3.10.4. Contractor shall acknowledge each Order within one (1) business day after receipt by either: (a) “approving” the Order electronically in the State’s eProcurement System, which will indicate Contractor’s unqualified acceptance of the Order as‑issued; or (b) “rejecting” the Order electronically in the State’s eProcurement System, with a concurrent explanation by email to relevant originator as to the reason for rejecting it. By way of reminder, the only grounds on which the Contractor may reject or refuse an Order are those set out in subparagraph 3.11.3 [Orders are Obligatory]. Unless and until Contractor has approved the Order in the State’s eProcurement System, it will have no effect under the Contract and will not oblige either State or Contractor. If the relevant Eligible Agency explicitly instructs at the time that a verbal acceptance is sufficient because of urgency or other unusual circumstances and Contractor duly gives its verbal acceptance, then Contractor will be deemed to have accepted the Order immediately upon commencing performance, provided that, Contractor must follow-up its verbal acceptance by accepting the Purchase Order electronically in the State’s eProcurement System within three (3) business days. Contractor shall thereafter be barred from subsequently rejecting the Order in the State’s eProcurement System and if it does so the rejection will be void.

3.11. Multiple-Use Provisions. Eligible Agency may issue Orders for Services in several forms, all of which become final and effective by a Purchase Order in the State’s eProcurement System. Orders must cite the State contract number to be valid. State may, at its discretion in each instance, determine the scope, schedule, and price for each Order in any of the following ways:

3.11.1. By choosing some or all of the Materials or Services items covered by the Contract for which a price is established in the Contract, then preparing an Order using those prices (e.g. filling out an order form), and sending it to the Contractor;

3.11.2. By instructing Contractor to provide a comprehensive proposal of item quantities, combinations, etc., or services hours, personnel, etc., for a defined scope using those established prices as a basis, then validating and negotiating the proposal with Contractor and issuing an Order if and when reaching agreement;

3.11.3. As described in 3.13.2 above but requesting the proposal from both Contractor and other vendors who are contracted within the applicable scope categories and locations, either sequentially or concurrently, then selecting the proposal or proposals combination that is most advantageous to State; or

3.11.4. As described in 3.13.3 above but introducing ad-hoc commercial competition by making the selection and ordering conditional on obtaining more favorable prices than the contractually-established ones.

3.12. Transitions

3.12.1. During commencement, Contractor shall attend transition meetings with any outgoing suppliers to coordinate and ease the transition so that the impact on State’s operations is kept to a minimum. State may elect to have outgoing suppliers complete some or all of their Work or Orders in progress, even if that Work could be covered under the incoming supplier’s Contract. Conversely, the State may have a continued need for the same Materials and Services upon expiration or earlier termination of the Contract. Accordingly, Contractor shall work closely with any incoming supplier and State to ensure as smooth and complete a transition transfer as is practicable.

3.12.2. Eligible Agency will coordinate all transition activities and facilitate joint development of a comprehensive transition plan by both Contractor and the incoming supplier. As with the incoming transition, State may permit Contractor, when Contractor is outgoing, to complete work or orders in progress to ease the transition as is safest and most efficient in each instance.

4. Costs and Payments

4.1. Type of Pricing. Offeror shall include only firm, fixed pricing in the Offer.

4.2. Contractor’s Best Pricing. Contractor warrants that, for the term of the Contract, the prices and discounts set out in the APP Items (F) tab OR Attachments titled Pricing, including any subsequent agreed amendment to it (the “Contract Pricing”), shall be equal to or better than the lowest prices and largest discounts, both separately and in combination, at which Contractor sells equivalent services, items of equipment, and materials.

4.2.1. That price-plus-discount equivalence (“Contractor’s Best Pricing”) is intended to be irrespective of whether or not those other sales have special purchase terms, conditions, rebates, or allowances.

4.2.2. If Contractor’s Best Pricing for equivalent services, items of equipment, and materials is better than the Contract Pricing, then Contractor agrees to adjust the Contract Pricing to match the Contractor’s Best Pricing for all sales related to the Contractor made after the date when the Contractor’s Best Pricing was first better than the Contract Pricing.

4.2.3. For clarification of intent, that date is intended to be the date when the difference first occurred, which might have been before the difference was first identified. If the difference occurred before it was identified, then Supplier agrees to charge less than the Contract Pricing until the extended difference that would have been realized (i.e. if the Contractor’s Best Pricing had been applied when it should have been) has been settled.

4.3. Pricing is all-inclusive, including any ancillary fees and costs required to accomplish the Scope of Work and all aspects of Contractor’s offer as accepted by State.

4.3.1. Details of service not explicitly stated in the Scope of Work or in Contractor’s Offer, but necessarily a part of, are deemed to be understood by Contractor and included herein. All administrative, reporting, or other requirements, all overhead costs and profit and any other costs toward the accomplishment of the requirements in the Contract are included in the pricing provided.

4.3.2. Additional Charges. Any charges or fees not delineated in the Contract shall not be added, billed, or invoiced under the Contract.

4.4. Price Increase. The State may review a fully documented request for a price increase. The requested increase shall be in writing and be based upon a cost increase to the contractor that was clearly unpredictable at the time of the offer and is directly correlated to the price of the product concerned. Contractor must provide conclusive evidence of a need for any price increases.

4.4.1. Initial Contract prices shall be honored for one year after award of Contract.

4.4.2. All written requests for price adjustments made by the Contractor shall be initiated thirty (30) days in advance of any desired price increase to allow the State sufficient time to make a fair and equitable determination to any such requests. This may be waived upon proper documentation demonstrating the urgency of the request.

4.4.3. All price adjustments will be implemented by a formal Contract Amendment. State shall determine whether the requested price increase or an alternate option is in the best interest of the State.

4.4.4. State expects Contractors to use Lean Six Sigma principles to reduce costs in their supply chain, and not simply pass new costs on to the State. If a price increase is requested, State will ask for evidence that Lean Six Sigma principles and tools have been used by Contractor to attempt to reduce costs in advance of any request for a price increase under the Contract.

4.5. Price Reductions. Price reductions shall be immediately passed along to State and may be submitted in writing to State for consideration at any time during the Contract period. The contractor shall offer State a price reduction on the Contract product(s) concurrent with a published price reduction made to other customers. The State at its own discretion may accept a price reduction. The price reduction request shall be in writing and include documentation showing the actual reduction of cost. Sales promotions requests shall include differences in pricing, begin, and end date of promotion along with the products covered.

4.6. Funding

No particular funding considerations apart from Uniform Terms and Conditions Sections 4.5 [Availability of Funds for the Next State Fiscal Year] and 4.6 [Availability of Funds for the Current State Fiscal Year] have been identified as of the Solicitation publication date.

4.7. Invoicing

4.7.1. Invoices Go To Ordering Entity. Contractor shall submit all billing notices or invoices to the ordering Eligible Agency at the address indicated on the applicable Order document or by utilizing the Ordering Entity’s purchasing tool/process. If no address is referenced on the Order document or purchasing tool, all invoices may be submitted to the address referenced below:

4.7.1.1. Arizona Department of Public Safety

Accounts Payable 2102 W. Encanto Blvd.

Phoenix, Arizona 85009

4.7.2. Minimum Invoice Requirements. Every invoice shall include the following information:

4.7.2.1. Bill-to name and address;

4.7.2.2. Contractor name and contact information;

4.7.2.3. Remit-to address;

4.7.2.4. Invoice number and date;

4.7.2.5. State contract number;

4.7.2.6. Order number (APP PO number);

4.7.2.7. Material or Service description (itemized);

4.7.2.8. Date(s) Services were performed or Materials were delivered;

4.7.2.9. Applicable payment terms;

4.7.2.10. Quantity delivered or performed;

4.7.2.11. Line item unit of measure;

4.7.2.12. Item price;

4.7.2.13. Extended pricing;

4.7.2.14. Receipt for pass-through expenses (if applicable);

4.7.2.15. Taxes (as a separate invoice line item), including the percentage used to calculate taxes;

4.7.2.16. Mailing fees (if applicable); and

4.7.2.17. Total invoice amount due.

4.7.3. No Invoice Without Authorization. Contractor shall not seek payment for any:

4.7.3.1. Materials or Services that have not been authorized on an acknowledged Order;

4.7.3.2. Expediting, overtime, premiums, or upcharges absent State’s express prior approval; or

4.7.3.3. Materials or Services that are the subject of a Contract Amendment that has not been fully signed by the Procurement Officer.

4.7.4. Submitting Invoices. Contractor shall submit an invoice to the ordering Eligible Agency using the form and/or process required by the ordering Arizona Department of Public Safety Every invoice must be signed by Contractor’s authorized representative and accompanied by all supporting information and documentation required by the Contract and applicable laws.

4.7.5. Defective Invoices. Without prejudice to its other rights under the Contract or further obligation to Contractor, the ordering Eligible Agency may, at its discretion, reject any materially defective invoice.

4.7.5.1. The ordering Eligible Agency Buyer shall notify the Contractor within five (5) business days after receipt if it determines an invoice to be materially defective.

4.7.5.2. Invoices will be deemed automatically rejected upon delivery if they: are sent to an incorrect address, do not reference the correct State contract and Purchase Order number, or are payable to any Person other than the Contractor.

4.7.5.3. The ordering Eligible Agency shall have no obligation to pay against a defective invoice unless and until Contractor has re-submitted it free of defects.

4.8. Payments

4.8.1. Payment Deadline. State shall make payments in compliance with Arizona Revised Statutes Titles 35 and 41. Unless and then only to the extent expressly stated otherwise in the Pricing Section of the Special Terms and Conditions above, State shall make payment in full for Materials that have been delivered and accepted and Services that have been performed and accepted within the time specified in A.R.S. § 35-342, after both of the following occur: (a) all of the Materials being invoiced have been delivered or installed (as applicable) and accepted and all of the Services being invoiced have been performed and accepted; and (b) Contractor has provided a complete and accurate invoice in the form and manner called for in the Contract, provided that, State will not make or be liable for any payments to Contractor until Contractor has registered properly in the State’s eProcurement System and provided a current IRS Form W-9 to State unless excused by law from providing one.

4.8.2. Payments Only To Contractor. Unless an assignment and assumption agreement has been reached between the Contractor and State pursuant to Section 5.2 of the Special Terms and Conditions [Assignment and Delegation] or the State has been otherwise compelled by operation of law or order of a court of competent jurisdiction, State will only make payment to Contractor under the federal tax identifier indicated on the Accepted Offer.

4.8.3. Payment. The applicable Eligible Agency shall pay undisputed amounts due to Contractor within the time period specified in Section 4 Costs and Payments of the Uniform Terms and Conditions.

4.8.4. Joint Checks or Direct Pay. Applicable Eligible Agency may, but is under no obligation to, pay by joint check or to pay directly to any Subcontractor or other creditor to whom any portion of Contractor’s requested payment is owed.

4.8.5. Recovery of Overpayment. If applicable, Eligible Agency determines that an overpayment has been made to Contractor on any prior invoice, it shall inform Contractor of the amount and date of the overpayment and may deduct the overpaid amount from amounts then or thereafter due to Contractor.

4.8.6. Purchasing Card. Applicable Eligible Agency may pay invoices for some or all Orders using a purchasing card. Any and all fees related to payment using a purchasing card (also called a p-card) are the responsibility of the Contractor. Unless otherwise stated in the Contract, there will be no additional fees or increase in prices associated with this method of payment.

4.8.7. Automated clearing house. Applicable Eligible Agency may pay invoices for some or all Orders through an Automated Clearing House (ACH). In order to receive payments in this manner from Eligible Agencies, the Contractor must complete an ACH Vendor Authorization Form (form GAO-618) within 30 (thirty) days after the effective date of the Contract. The form is available online at: https://gao.az.gov/publications/forms.

4.9. Applicable Taxes

4.9.1. Contractor To Pay All Taxes. State is subject to Arizona Transaction Privilege Tax (TPT). Therefore, Arizona TPT applies to all sales under the Contract and Arizona TPT is Contractor’s responsibility (as seller) to remit. Contractor’s failure to collect Arizona TPT or any other applicable sales or use taxes from an Eligible Agency or Co-Op Buyer will not relieve the Contractor of any obligation to remit sales or use taxes that are due under the Contract or laws. Unless clearly stated otherwise in the Contract, all prices therein include Arizona TPT as well as every other manner of transaction privilege or sales/use tax that is due to a municipality or another state or its political subdivisions. Contractor shall pay all federal, state, and local taxes applicable to its operations and personnel.

4.9.2. Tax Indemnity. Contractor shall hold State harmless from any responsibility for taxes or contributions, including any applicable damages and interest, that are due to federal, state, and local authorities with respect to the Work and the Contract, as well as any related costs; the foregoing expressly includes Arizona TPT, unemployment compensation insurance, social security, and workers’ compensation insurance.

5. Contract Changes

5.1. Assignment and Delegation

5.1.1. In Whole. Contractor shall not assign in whole its rights or delegate in whole its duties under the Contract without Procurement Officer’s prior written consent, which consent Procurement Officer may withhold at his or her discretion. If Contractor’s proposed assignment or delegation stems from a split, sale, acquisition, or other non-merger change in control, then no such consent will be given in any event without the assignee or delegate giving State satisfactory and equivalent evidence or assurance of its financial soundness, competency, capacity, and qualification to perform as that which Contractor possessed when State first awarded it the Contract.

5.1.2. In Part. Subject to Special Terms and Conditions sections 3.10 [Subcontracts] with respect to subcontracting, Contractor may assign particular rights or delegate particular duties under the Contract, but shall obtain Procurement Officer’s written consent before doing so. Procurement Officer shall not unreasonably withhold consent so long as the proposed assignment or delegation does not attempt to modify the Contract in any way or to alter or impair State’s rights or remedies under the Contract or state law.

6. Risk and Liability

6.1. Risk of Loss. Contractor shall bear all risk of loss to Materials while in pre-production, production, storage, transit, staging, assembly, installation, testing, and commissioning, if and as those duties are within the scope of the Work, until they have been accepted as conforming by State in the particular location and situation specified in the Order, or as specified generally elsewhere in the Contract if the Order does not provide particulars, provided that, risk of loss for nonconforming Materials will remain with Contractor notwithstanding acceptance to the extent the loss stems from the nonconformance.

6.2. General Contractor Indemnification and Insurance Requirements

6.2.1. Contractor 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.