DEP.BWR.RFR.PTLSS.2019.ATTACH.A.supp.tnc.12.19.19.docx

ATTACHMENT A - SUPPLEMENTAL TERMS AND CONDITIONS

PFAS TESTING LABORATORY SUPPORT SERVICES (PTLSS) CONTRACT

RFR NO.: BWR-PTLSS-2019

Article I: Statement of Services

At the direction of MassDEP, the Laboratories awarded this Contract through this solicitation shall provide analytical services directly to MassDEP on an as-needed basis. The Scope of Services for the PTLSS Contract is defined in the RFR at Section 1, Procurement Description and Section 1.2, Scope of Work, and in Section 3, Specifications, as well as elsewhere in the RFR.

Article II: Documents Forming the Contract

The Contract documents comprising the Agreement between MassDEP and the Laboratory shall be as defined in the Commonwealth’s Standard Contract Form and the Commonwealth’s Terms and Conditions, dated on or after October 25, 2019.

Article III: Services of the Laboratory/General Performance Requirements

1. In General: The Laboratory shall provide all labor, equipment, materials, utilities, transportation, testing and analysis, and reporting as necessary to implement and complete laboratory support services in a timely, efficient and effective manner.

2. Laboratory Performance Requirements: In providing the PTLSS activities under this Contract, the Laboratory shall comply with the following general performance requirements:

a. Performance of All Services Within Specified Time Periods: The Laboratory shall complete the required services as specified in the Laboratory Task Order and/or other document as directed.

b. Performance of All Work Activities in a Professional and Competent Manner: The Laboratory is responsible for ensuring that all work activities performed under this Contract by the Laboratory are implemented and completed in a highly professional, technically competent, and efficient manner. The Laboratory has a specific responsibility to ensure that all work activities performed under the Contract conform to all best management engineering, technical, and/or scientific practices applicable, as well as to any pertinent Quality Control/Quality Assurance requirements or guidance relevant to the work activities.

c. Laboratory’s Personnel Obligations: The Laboratory is responsible for ensuring the efficient management and control of all its personnel under this Contract.

d. Laboratory Licensing Requirements: Through execution of this Contract, the Laboratory certifies that the Laboratory possesses any and all currently valid local, state and federal licenses, permits and/or certificates that are required in connection with the performance of any PFAS Testing Laboratory Support Services, and shall ensure that the Laboratory is and remains in full compliance with all such requirements throughout the performance of the activities required under this Contract. To the extent required by federal and/or state law or regulation, the Laboratory shall, for the duration of this Contract, obtain any additional licenses, certifications, and or other permits required to perform the PTLSS services as specified in the Contract in a manner that is consistent with any evolving or newly-implemented legal requirements or standards.

e. Compliance With All Laws: The Laboratory shall comply with all applicable provisions of federal, state, and local laws, rules, regulations, by-laws, and ordinances in the performance of all services under this Contract.

f. Submission of Analytical Data Reports/Packages, The Laboratory shall ensure that all analytical data reports/packages are prepared, completed, and submitted in a timely manner to MassDEP. The requirements for Laboratory Reports are presented in the RFR Section 1, Procurement Description and Section 1.2, Scope of Work, and in RFR Section 4.3, Reporting.

g. Laboratory’s Responsibility for Health and Safety: The Laboratory is fully responsible for ensuring the health and safety of its personnel.

Article IV: Initiation, Duration and Completion of Laboratory Support Services via Laboratory Task Order.

The Laboratory shall provide services under this Contract in accordance with the following procedure set forth in this Article.

1. Initiation of Laboratory Support Services: The Laboratory shall initiate PFAS Testing Laboratory Support Services (PTLSS) upon receipt of a Laboratory Task Order (LTO) from the PTLSS Contract Administrator (PTLSS CA) or the PTLSS CA’s authorized representative. After contract award, MassDEP will designate additional authorized representatives as the PTLSS CA’s authorized representative(s) to review and negotiate (as applicable) project-specific task orders, approval and sign off on project deliverables, and/or review and approval of invoices for payment, based upon the needs of MassDEP’s work under the contract. Upon receipt of the LTO, the Laboratory shall promptly confirm their ability to comply with the LTO.

2. Laboratory’s Request For Change to Task Order: Procedure: In the event that the Laboratory determines, in its professional judgment, that the LTO must be modified in order to perform the requested PTLSS, the following procedure shall apply: The Laboratory shall make a written request for a change to the MassDEP Technical Lead (as listed on the LTO) and the PTLSS CA. The Change Request must include the following components: (a) the description of the requested change, (b) the rationale for the requested change, and (c) any resulting change to the cost for completing the Task Order if the Change Request is approved. The Change Request must be approved by the MassDEP PTLSS Contract Administrator in writing before the Laboratory is authorized to proceed with additional PTLSS as proposed by the Change Request. If the Laboratory proceeds, without advance written authorization from the MassDEP PTLSS CA, to perform additional PTLSS, MassDEP reserves the right to not compensate the Laboratory for any costs incurred prior to the PTLSS CA’s official approval of the Change Request in accordance with these provisions.

Article V: Conditions Applicable to Equipment, Supplies and Materials

1. Equipment, Supplies and Materials: The Laboratory shall maintain sufficient equipment, supplies and materials necessary to comply with all services required by this Contract, and as specified in the laboratory’s response to the RFR.

Article VI: Rights Reserved to the Department

1. MassDEP’s Right to Suspend and/or Terminate Laboratory: The Department in its sole discretion reserves the right to order, at any time, the suspension and/or termination of any Laboratory under this Contract. Upon receipt of MassDEP’s notice of suspension and/or termination, the Laboratory’s entitlement to payment for any PTLSS activities shall cease except with respect to payment for services rendered prior to receipt of MassDEP’s suspension or termination notice. In the event that MassDEP’s notice of suspension and/or termination is verbal, written confirmation of the notice shall be provided to the Laboratory by MassDEP as soon as reasonably possible. Upon receipt of MassDEP’s verbal or written notice, the Laboratory shall immediately cease all work activities as directed by the Department.

2. MassDEP’s Right to Utilize Multiple Laboratories: MassDEP reserves the right to utilize more than one Laboratory in order to complete required PFAS testing laboratory support services. MassDEP also reserves the right to suspend or terminate one Laboratory that begins PTLSS, and substitute one or more Laboratory for the activities required to complete the LTO.

3. MassDEP’s Right to Suspend or Terminate the Laboratory for Performance Problems and/or Violation of Legal Requirements: MassDEP reserves the right to suspend or terminate a Laboratory based upon evidence of performance problems on one or more assigned projects, failure to meet and/or comply with the General Performance Requirements, fraud in the submission of invoices or with respect to other dealings with the Department, violation of any federal, state, or local laws, regulations or requirements, failure to remain current on all fees/taxes/payments owed to the Commonwealth or MassDEP and/or failure to meet any other Contractual requirement. This provision shall be interpreted in a manner consistent with the requirements set forth in the Commonwealth’s Terms and Conditions.

4. Restitution to MassDEP for Laboratory Errors: In the event that the laboratory causes the quality and/or the value of the data to be diminished below the standard required for the specified analysis, including but not limited to losing or damaging samples, performing the wrong analysis or analysis out of scope with the required standard, missing holding times, failing to preserve chain-of-custody protocols or records, or any other adverse impact caused by the laboratory, the Department reserves the right to require the laboratory to re-analyze the samples, on a quick turnaround basis, at no additional cost to the Department. If the samples are unavailable or no longer can be analyzed within the requirements of the standards, the Department reserves the right to reduce or eliminate payment to the laboratory for that assignment, and/or negotiate some other method of recompense or restitution to provide the Department the needed data.

Article VII: Availability of Personnel to Perform Laboratory Support Service; Changes and Substitutions

1. Laboratory Personnel: The Laboratory acknowledges that MassDEP’s determination to award the Laboratory this Contract is based in part upon material representations made by the Laboratory in its Response to the RFR regarding the ability of the Laboratory to perform the required PTLSS activities. Through execution of this Contract, the Laboratory warrants and certifies the ongoing availability of the Laboratory’s personnel to perform all services required by this Contract. The Laboratory also acknowledges its continuing obligation during the contract term to notify MassDEP of any changes in Laboratory Personnel, and agrees to replace all personnel with competent and equally qualified personnel. MassDEP reserves the right to review the qualifications of, and provide written approval to, the Laboratory of all proposed substitute personnel prior to the Laboratory’s retention of replacement personnel.

Article VIIl: Pricing Requirements for Laboratory Services

1. Laboratory Contracts and Subcontracts: The laboratory prices quoted by the Laboratory in the RFR, Attachment B, shall be the maximum prices for analytical services charged directly to the Department for assignments where the laboratory is working directly with the Department, and shall be the maximum, “not to exceed” prices charged to the MassDEP and its contractors for the initial two (2) year term of the Contract. The laboratory is encouraged to charge a lower price during the implementation of the initial Contract term.

2. Right to Renegotiate Quoted Prices Upon Contract Renewal: All prices quoted for laboratory analytical services shall be in effect for a period of two (2) years after the award of the contract, with renegotiation of prices allowed after that date, and with adjusted prices to be effective for two (2) years from the date of each subsequent contract renewal.

3. Quoted Prices are Inclusive of All Technical, Administrative and Reporting Requirements: Quoted prices shall include all technical, administrative and reporting requirements to implement and deliver the analytical services defined in the RFR Section 1, Procurement Description and Section 1.2, Scope of Work, Section 3, Specifications, and in Section 4, Other Required RFR Terms, in this Attachment A, and Attachment B, and in any other applicable provisions of the RFR and Contract. Quoted prices for PFAS analysis shall include all sampling materials QA/QC implementation, sample preparation, containers and preservatives, data tabulation, report preparation, delivery in electronic data upload, electronic mail and/or paper format as defined in the RFR Section 1.2.2, Deliverables, and sample disposal. Quoted prices for shipping shall be listed separately as required in Attachment B, and shall include shipping or courier service cost to send a sampling kit to the Public Water Supplier or private well owner and provide overnight shipping of the samples back to the lab. Prices shall be quoted per cooler shipped. Shipping cost must include pre-paid shipping container and return label to/from sampling location.

4. Interim Adjustments to Analytical Prices: Quoted prices shall be "not to exceed" rates for analytical services, and the Department or its contractor may negotiate lower rates on a case-by-case basis. No upward adjustments shall be considered or implemented without appropriate justification as determined by the Department, and negotiation and prior written approval of the PTLSS CA.

5. Turnaround Times for Analyses: Price quotations for analytical rates in the RFR Attachment B shall be the base rates for the laboratory's normal/standard turnaround from receipt to delivering the analytical results. Surcharges for quicker turnaround periods shall be an additional percentage to the base rates as provided in the Attachment B Price Quotations.

6. Laboratory Quality Control Analyses: Quoted prices shall include compliance with the quality control requirements and performance standards specified in the Department's RFR Section 1, Procurement Description and Section 1.2, Scope of Work, and as stated elsewhere in the RFR.

7. Sample Containers, Trip Blanks and Delivery Requirements: Quoted prices shall include supplying all necessary sample containers and preservatives, coolers, trip blanks, chain-of-custody forms, sample labels, as required. The laboratory shall provide courier service for container drop-off/sample pick-up, as required.

8. Standard Turnaround Time for Laboratory Analyses: All laboratory and analytical services required under this Contract shall be performed based on a standard turnaround time as specified in the RFR Attaching B, pricing. However, a longer or shorter turnaround time may be approved by MassDEP’s PTLSS Contract Administrator on a Task Order basis.

9. Quick Turnaround Laboratory Analyses: Price quotations for analytical rates in the Attachment B shall be for the laboratory's normal/standard turnaround from receipt to delivering the analytical results. The laboratory shall specify what their normal/standard turnaround time is in the proposal.

Article IX: Record-Keeping and Invoicing Requirements

1. Invoicing Requirements: Invoices shall be sent electronically to Robin.McNamara @mass.gov, with an electronic copy to the PTLSS Contract Administrator at program.director-dwp@mass.gov. THE OFFICIAL INVOICES SHALL NOT BE SENT TO ANY MASSDEP TECHNICAL LEAD(S) OR TO ANY MassDEP REGIONAL OFFICE. However, if applicable, the MassDEP Technical Lead or MassDEP Regional office may be copied on the emailed copy of the invoice.

A copy of the associated chains-of-custody must accompany each invoice. Invoices received without a chain of custody will be rejected and not processed for payment. In addition, the following information must be present on the invoice:

· Laboratory Invoice number

· Invoice date

· Laboratory report number/identification

· MassDEP project number

· Address/location of PWS or other individual/entity, if applicable

· Date samples received by laboratory

· MassDEP contact name

· Laboratory contact name

· Matrix, parameter description, MassDEP contract code, unit price, quantity of samples, surcharge (if applicable), total price

· Total amount due

Electronic payments from MassDEP to the laboratory will reference the laboratory invoice number and MassDEP project number.

2. Record-Keeping; General Requirements: The Laboratory rendering services pursuant to this Contract shall comply with all legal requirements regarding Record-Keeping and the Retention and Inspection of Records as set forth in paragraph 7 of the Commonwealth’s Terms and Conditions. In addition, the Laboratory shall establish and maintain a financial management and audit system that reflects costs and expenditures incurred and payments and reimbursements received pursuant to this Contract. The Department shall have the right to inspect and audit, or have inspected and audited, such books, records, and data prior to and following submittal of an invoice for payment by the Laboratory for any work activities performed pursuant to this Contract.

3. Data Archive Requirements: Quoted prices shall include archiving analytical data and the QA/QC backup for a period of consistent with the legal requirements regarding Record-Keeping and the Retention and Inspection of Records as set forth in paragraph 7 of the Commonwealth’s Terms and Conditions. Archiving in electronic software format is permitted. The Contractor agrees that the Department or its contractors may access the archived data at anytime during the archival period.

Article X: Insurance

A. INSURANCE: GENERAL REQUIREMENTS

1. The Laboratory shall obtain and maintain throughout the term of the Contract the insurance coverage of the kinds and amounts specified below. Such coverage shall be provided by insurance companies acceptable to MassDEP. The insurer(s):

· Shall be licensed to transact the business of insurance in Massachusetts or is an authorized excess or surplus lines insurer in Massachusetts;

· Shall have an A.M. Best rating of “A-“ Class “VII” or better in the most recently published Best’s Insurance Report. If, during the terms of the contract, any insurer’s rating falls below “A-“ Class “VII,” the insurance must be replaced no later than the renewal date of the insurance policy; or

· Is a risk retention group lawfully providing insurance to its members in Massachusetts.

MassDEP reserves the right to approve or reject all insurers. MassDEP further reserves the right to revoke its acceptance of any insurer or insurance policy.

2. The Laboratory shall request in writing to each insurer that its insurance policy(ies) be endorsed to provide MassDEP with thirty (30) days written notice prior to cancellation. The Laboratory shall provide MassDEP with a copy of the request to its insurer and either a copy of the policy with endorsement or a letter from the insurer denying the request.

3. Upon signing this Contract, the Laboratory shall furnish to MassDEP upon request a certificate or certificates of insurance in a form satisfactory to MassDEP showing that it has complied with this article. The Laboratory shall not seek to cancel any of the required insurance policies. The Laboratory shall also notify MassDEP in writing immediately if the Laboratory receives any notices of cancellation on any of the required insurance policies.

The bankruptcy or insolvency of the insured Laboratory shall not relieve any of the insurers of their obligations with regard to the insurance being provided. The insurers shall also be liable for the payments of any amounts within any deductible obligations under any policy with no right of recourse against any additional insured.

4. The premium for any insurance required hereunder shall not be charged as a direct cost.

5. MassDEP reserves the right to require the Laboratory to furnish the terms and conditions of any policy of insurance under this Contract.

6. Failure to procure or maintain the insurance coverage in the amounts, coverage and endorsements required shall be considered a breach of this Contract resulting in immediate termination of the Contract.

7. MassDEP reserves the right to require the contractor to require of its subcontractors and/or sub-consultants insurance in the kinds and amounts required by this Contract.

B. INSURANCE: SPECIFIC REQUIREMENTS AND LIMITS: The Laboratory shall obtain and maintain the following insurance with limits not less than those described below:

1. Workers Compensation Insurance and Employers Liability Insurance including Occupational Disease Benefits in compliance with Massachusetts law covering all directors, officers, employees and agents doing work in the Commonwealth of Massachusetts or in connection with this Contract. The policy shall provide for Employers Liability Insurance limits of not less than $1,000,000 each accident; $1,000,000 each disease, each employee and $1,000,000 disease aggregate.

The Workers Compensation insurer shall provide a Waiver of Subrogation in favor of the Commonwealth of Massachusetts, MassDEP and their officials and employees.

2. Commercial General Liability Insurance providing limits of not less than $1,000,000 each occurrence; $2,000,000 Per Project General Aggregate; $1,000,000 Products/Completed Operations Aggregate. Such insurance shall be written on an occurrence basis subject to the Insurance Service Office’s (ISO) form CG00 01 or equivalent. The insurance shall include coverage for Liability Assumed in an Insured Contract, Broad Form Property Damage, Independent Contractors Coverage, Personal and Advertising Liability, Cross Liability and Explosion, Collapse, Underground Hazard (XCU) coverage.

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Commercial General Liability. With regard to this Contract the insurance shall be primary and non-contributory, without regarding to any other insurance available to the Commonwealth or MassDEP. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

3. Business Automobile Liability Insurance written to provide coverage for at least all owned automobiles, non-owned and hired automobiles. The policy shall provide limits of not less than $1,000,000 each accident on a combined single limit basis.

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Business Automobile Liability. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

4. For contractors providing environmental consulting, design, testing, monitoring, sampling or other engineering services, Professional Liability/Errors and Omissions Insurance with limits of not less than $1,000,000 each claim and in the aggregate covering the Laboratory’s rendering or failure to render professional services under the Contract. This insurance shall provide at a minimum coverage for all professional services assumed by the Laboratory under this Contract. Such insurance shall apply to negligent acts, errors or omissions committed by the Laboratory and cover the Laboratory’s liability for the negligent acts, errors or omissions of anyone for whom the Laboratory is legally liable.

The professional liability insurance policy shall not have a pollution, lead, silica or asbestos exclusion. It shall provide prior acts coverage that precedes all services performed by the Laboratory under this Contract.

The professional liability insurer shall agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

The Laboratory shall continuously maintain this professional liability insurance for a period of three (3) years following substantial completion of all work.

5. Property Insurance on an “all risk” or “named perils” basis insuring all tools and equipment of the Contractor including any equipment to be installed in the project.

Article XI: Conflicts of Interest

1. General Provisions

a. Laboratory’s Affirmative Duty: By execution of this Contract, the Laboratory acknowledges its affirmative duty to identify and report to MassDEP any and all professional and/or personal relationships and situations (both currently and in the past, and including any state or federal site) where the potential for conflict of interest might arise. The Laboratory also acknowledges its affirmative duty to report any existing or pending judgment, criminal conviction, investigation, or litigation pending against the Laboratory, any of its officers, directors, employees, agents or subcontractors. In all cases where the Laboratory identifies a potential conflict, MassDEP will determine, in its sole discretion, whether an actual or potential conflict exists, and, if an actual conflict exists, whether it is significant and cannot be avoided or resolved. The Department is the final decision-maker regarding whether a conflict of interest will preclude the Laboratory from performing the proposed work activities within the scope of this Contract.

b. Laboratory’s Obligations and MassDEP’s Rights Regarding Actual or Potential Conflicts of Interest: In the event that a Laboratory’s business or personal relationship with other entities or individuals creates or has the potential to create a conflict of interest, the Department reserves the right:

i. To require the Laboratory to take any action necessary to remove the conflict; or

ii. If the conflict cannot be removed, to terminate the Laboratory’s involvement with the particular project, or terminate the Contract.

c. Laboratory’s Written Disclosures: The Laboratory must disclose in writing any professional or personal relationships or situations which may be perceived to be a conflict of interest which develop or occur during the period of performance under this Contract and, upon the request of the Department, supply a list of clients and/or relationships. If MassDEP determines that a conflict has occurred during the period of performance under this Contract, the Laboratory must consult with the Department to learn what action must be taken to resolve the conflict and must comply with all applicable laws and policies. MassDEP also reserves the right to direct the Laboratory to require all approved subcontractors to submit written disclosures.

d. Laboratory Internal Controls Management: Upon execution of this Contract, the Laboratory will also provide a written description of its internal control system designed to (1) identify and avoid potential and actual conflicts of interest between and among the Laboratory’s public and private sector clients; and (2) protect from disclosure any MassDEP enforcement-sensitive data and/or information in the Laboratory’s or its subcontractor’s possession.

2. Relations with State Employees

a. All matters pertaining to the performance of work under this Contract shall be conducted by the Laboratory and its employees, agents, subcontractors, and representatives at arm’s length, and both the Laboratory and its subcontractors are prohibited from paying or giving any fees, commission, compensation, gift, gratuity, or consideration of any amount or kind, directly or indirectly, to any State employee, agent or officer in violation of M.G.L. c. 268A during the term of this Contract. Any engagement in these prohibited activities by the Laboratory and/or its employees, agents, subcontractors, or representatives shall be grounds for termination of the Contract regardless of whether such activity constitutes a violation of any applicable criminal or other statute.

b. Laboratory understands and agrees that certain Laboratory and/or subcontractor personnel providing services under this Contract may or will become special state employees subject to the provisions of M.G.L. c. 268A.

3. Sanctions: Laboratories are advised that failure to comply with the provisions of this conflict of interest section, or failure to comply with any other conflict of interest requirements of this Contract, shall result in the Department’s implementation of sanctions, including, but not limited to, the following:

a. Immediate suspension of assignments issued pursuant to this Contract;

b. Disqualification from future projects for a period of time to be determined by the Department;

c. Termination of this Contract in accordance with the Contract provisions; and/or

d. Disqualification (debarment) from future Departmental procurement.

4. Limitations on Future Contracting: Through execution of this Contract, the Laboratory agrees that the Laboratory and its subcontractor(s) will forego participation in actions which, in MassDEP’s opinion and, based upon the specific factual circumstances, could create an actual or apparent conflict of interest or impairment of impartiality as to services provided to the Commonwealth.

RFR BWR-PTLSS-2019 Attachment A Page 10