DEP.RFR.BWSC.ERIRA.2017.14.Attach.2.ER.IRA.Pay.Terms.Conditions.docx

PAYMENT TERMS AND CONDITIONS

ER/IRASS MASTER SERVICES AGREEMENT

RFR NO.: DEP-BWSC-ERIRA-2017-14

Article I. General Terms and Conditions for Payment

1) Payment and Non-Payment for Services: Contractors will be paid for the use of labor, equipment, materials and supplies as specified in this document and/or by the Contract. Any Contractor submission of vouchers(s) (invoices or bills) for payment that violate the provisions, in whole or in part, of this document and/or this Contract may be disallowed by MassDEP.

2) Lump Sum (LS) Basis and Time and Materials (T&M) Basis for Payments: Payment(s) to the Contractor shall be made either on a lump sum (LS) basis, and/or on a time and materials (T&M) basis, utilizing fixed-unit rates for various cost items such as labor, equipment and supplies, and/or the reimbursement of direct costs for equipment and supplies with a markup not to exceed 5%.

a. ER Payments: ER Services shall be paid on a T&M basis unless otherwise specified by the Department, on a project-specific basis.

b. IRA Payments: IRA Support Services may be paid either on a LS basis, or on a T&M basis, or both, as established prior to the Contractor’s initiation of the IRA Support Services required for the project. In most instances, IRA Support Services will be paid on a LS basis based on the Contractor’s LS bid to perform the project. If changed conditions occur during the implementation of an LS project where the Department determines additional costs are eligible for payment, the additional payment shall be made in accordance with either: (i) the unit rates the Contractor quoted in the Contract rate schedule; (ii) the unit rates quoted and approved by the Department in the proposal submitted by the Contractor for the project; and/or (c) the unit rates that are in accordance with any other requirements of this Contract. IRA Support Services that are paid on a T&M basis, either in whole or in part, shall also have established “not-to-exceed” budgets on the T&M costs.

3) Contract (Unit) Rate Schedule: Contractors will be paid in accordance with the rate schedule submitted by the Contractor and accepted by the Department.

4) Changes to the Contract Rate Schedule and/or Payments: Any proposed changes to the Contract rate schedule and/or any other provisions to this Contract regarding payments for labor, equipment and materials and supplies require prior written approval by the Contract Administrator. The Contractor must submit any requested change(s) to the Contract rate schedule and/or payment provisions in writing to the Contract Administrator prior to utilizing or billing MassDEP for any proposed rate and/or payment changes with respect to any project work activities. Changes proposed by the Contractor pursuant to this section are not effective until the Contractor receives written approval of the change(s) from the Contract Administrator, and any invoices submitted prior to receipt of approval by the Contract Administrator shall be disallowed by MassDEP.

5) Determining Rates for Items not Listed in the Contract Rate Schedule: Unit Rates for items not listed in the approved Contract Unit Rate Schedule will be determined in accordance with the provisions of Articles IV and V as set forth below.

Article II. Labor: Terms and Conditions, Rate Schedule

General Terms and Conditions Applicable to Labor Rates

1) Labor Rate Schedules: The Contractor’s labor costs will be paid on an hourly unit rate basis for job categories as listed in the ER IRA Labor and Equipment Rate Schedules submitted by the Contractor in its Response to the RFR. The Time & Materials (T&M) Rates shall be used for ER Service projects and for IRA Support Services projects or parts of projects that are not Lump Sum (LS). The Contractor’s submitted ER IRA Labor and Equipment Rate Schedules, as approved by MassDEP, shall apply to all T&M services performed under this Contract, unless otherwise approved by Department.

Labor rates will be paid on a dollar per hour basis per job category for work performed pursuant to a T&M basis under this Contract. The labor rates quoted by Contractors must be inclusive of all direct costs (wages) and indirect costs (including but not limited to fringe benefits, administrative costs, other overhead and profit), directly or indirectly related to the performance of the services under this Contract.

2) Labor hour rates (Straight-time): Straight-time hourly labor rates in the Rate Schedule will be applied for work up to 8 hours within an 8 ½ hour work day, and where work hours within a seven day period do not exceed 40 hours.

3) Labor hour rates (Overtime): Overtime labor rates will be allowed for individual employees under the following conditions:

a. The person is an employee of the prime Contractor under this Contract; and

b. The employee is classified as “Non-exempt” by the federal Fair Labor Standards Act (FLSA). Employees classified as “Exempt” under the FLSA shall only be compensated at the Labor Rate provided in the Labor Rate Schedule regardless of the hours charged. It is the Contractor’s responsibility to determine which employees are Exempt or Non-exempt in accordance to the FLSA and Massachusetts labor laws, and provide documentation supporting that determination to MassDEP upon request; and

c. Work hours exceed 40 total hours per seven (7) day period where the 40 hours were incurred on the Department project. If the Contractor has a different company overtime policy, Department may accept that policy, but only before the work is initiated; and

d. Daily hours exceed eight and a half (8 ½) hours; and

e. (If applicable), Department directed work is performed on a Contractor’s holiday as listed in the Contractor’s Labor Rate Schedule.

The allowable overtime labor rate for Non-exempt employees shall be 1.25 times the “straight” labor rate quoted in the Contractor’s Labor Rate Schedule, or the straight-time labor rate approved by the Department prior to commencement of the work.

4) Labor rates for job categories not listed in the Labor Rate Schedule: The Contractor may propose use of job categories that are not listed in the Labor Rate Schedules either on a total Contract basis, or on a project specific basis. Fixed-unit rates for non-listed labor categories must have prior written approval by the Contract Administrator before the Contractor can incur costs utilizing these rates, and before the Contractor submits invoices to MassDEP utilizing the rates.

ER Services; Labor Rates Terms and Conditions

5) ER Services Labor Payment Terms: ER Services payments by MassDEP to the Contractor for labor shall be made in accordance with the following terms:

a. ER Services; Hourly Unit Rate Basis: ER Services will be paid on an hourly unit rate basis for job categories as listed in the Labor Rate Schedule, as submitted by the Contractor and accepted by the Department. The Contractor’s labor rate schedules shall apply to all projects performed by the Contractor under this Contract unless otherwise approved by the Contract Administrator.

b. ER Services; Direct Labor Hours: ER Services direct labor hours will be charged only for actual time spent at the site of the project activity from the point in time that all required contractor personnel commence the activity to the completion of the activity, with the following exceptions:

i. Minimum 4 hour payment condition: For the first twenty-four (24) hours of the ER Services, the Contractor will be allowed a four-hour minimum charge for labor when the actual time spent on site is less than four hours. A minimum of four hours may also be charged for labor ordered by the Department when the mobilization order is subsequently cancelled, if the labor was actually mobilized by the Contractor prior to the cancellation of the mobilization order.

ii. Minimum 3 hour payment condition: For the following forty-eight (48) hours (i.e. two days) of the ER Services, the Contractor will be allowed a three-hour minimum charge for labor when the actual time spent on site is less than three hours.

c. ER Services; Report Submissions and/or Enforcement Support Activities: ER personnel may be required to prepare reports, attend hearings, prepare testimony and/or participate in trials and related activities in support of the Commonwealth and/or MassDEP enforcement activities. Labor hours spent performing these activities will be compensated at the non-overtime hourly rates in the Labor Rate Schedule, or as otherwise approved in writing by the Contract Administrator.

d. ER Services; Offloading of Waste/Debris: A maximum of one hour of labor time may be charged for offloading of waste or debris at an off-site facility.

e. ER Services; Certain Transport Activities: Labor charges may be allowed, at the discretion of the Department, for other necessary travel and transport activities, such as transporting samples to a laboratory.

f. ER Services: Disallowance of Equipment/Materials/Supplies Transport Activities: The Contractor will not be compensated by MassDEP for labor charges associated with the transport of equipment, materials and supplies to emergency release sites unless specifically approved in advance by the Contract Administrator, except as provided in Article IV. 3) g. below.

IRA Support Services; Labor Rates Terms and Conditions:

6) IRA Support Services: Labor Payment Terms: For IRA Support Services performed on a T&M basis, payments by MassDEP to the Contractor for labor shall be made in accordance with the following terms:

a. IRA Support Services; Hourly Unit Rate Basis: IRA Support Services will be paid on an hourly unit rate basis for job categories as listed in the Labor Rate Schedule submitted by the Contractor and accepted by the Department. The Contractor’s labor rate schedules shall apply to all T&M projects performed by the Contractor under this Contract unless otherwise approved in writing by Contract Administrator.

b. IRA Support Services; Direct Labor Hours: IRA Support Services direct labor hours will be charged only for actual time spent at the site of the project activity from the point in time that all required Contractor personnel commence the activity to the completion of the activity.

c. IRA Support Services; Work Week: For IRA Support Services, the work week shall be Monday through Friday, corresponding to MassDEP’s straight-time work week. Work on the weekends or on MassDEP holidays is not permitted without prior written approval of the Contract Administrator.

d. IRA Support Services; Report Submissions and/or Enforcement Support Activities: IRA personnel may be required to prepare reports, attend hearings, prepare testimony and/or participate in trials and related activities in support of the Commonwealth and/or MassDEP enforcement activities. Labor hours spent performing these activities will be compensated at the non-overtime hourly rates in the Labor Rate Schedule, or as otherwise approved in writing by the Contract Administrator.

e. IRA Support Services; Offloading of Waste/Debris: A maximum of one hour of labor time may be charged for offloading of waste or debris at an off-site facility.

f. IRA Support Services; Certain Transport Activities: Labor charges may be allowed, at the discretion of the Department, for other necessary travel and transport activities, such as transporting samples to a laboratory.

g. IRA Support Services: Disallowance of Equipment/Materials/Supplies Transport Activities: The Contractor will not be compensated by MassDEP for labor charges associated with the transport of equipment, materials and supplies to sites unless specifically approved in advance by the Contract Administrator, except as provided in Article IV 3) g below.

Article III. Lodging and Per Diem:

Contractor requests for lodging and per diem reimbursements associated with ER Service and/or IRA Support Service activities under this Contract will only be compensated by MassDEP under project-specific circumstances, with prior written approval of the Contact Administrator. In the event that the Contractor proposes and MassDEP determines that lodging and per diem reimbursement is appropriate for a project, the Department will reimburse the Contractor for the direct lodging costs of all Contractor personnel being lodged, and will reimburse the Contractor at a per diem rate of $40 per-day, per-person being lodged. In determining whether lodging and per diem reimbursement is appropriate for a project, MassDEP reserves the right to specify the type of lodging to be utilized, and the number of Contractor staff authorized for lodging/per diem reimbursement. In addition, MassDEP’s determination regarding whether to grant a Contractor request for lodging and per diem reimbursement will be based, in part, on considerations of safety of workers in transit to the site, and a comparison of costs for lodging and per diem reimbursement versus costs of labor and travel expenses to commute to the site.

Article IV. Equipment: Payment Terms and Conditions; Lists and Rate Schedule; Categories of Equipment

1) In General; Payment Terms and Conditions for Equipment: Equipment used by the Contractor will be paid in accordance with the ER IRA Labor & Equipment Rate Schedules submitted by the Contractor and accepted by the Department, unless otherwise approved in writing by MassDEP’s Contract Administrator under the conditions specified in this section. All approved equipment rates shall apply to both the ER Services and the IRA Support Services performed under this Contract. MassDEP shall only compensate the Contractor for equipment utilized at the site or utilized in direct and sole support of work activities at the site. MassDEP shall not compensate the Contractor for equipment used for the routine administration and facility operations of the Contractor’s business, unless prior written approval is obtained from the Contract Administrator.

i. Minimum 4 hour payment condition: For the first twenty-four (24) hours of the ER Services, the Contractor will be allowed a four-hour minimum charge for equipment when the actual time spent on site is less than four hours. A minimum of four hours may also be charged for equipment ordered by the Department when the mobilization order is subsequently cancelled, if the equipment was actually mobilized by the Contractor prior to the cancellation of the mobilization order.

ii. Minimum 3 hour payment condition: For the following forty-eight (48) hours (i.e. two days) of the ER Services, the Contractor will be allowed a three-hour minimum charge for equipment when the actual time spent on site is less than three hours.

2) Equipment payment for Lump Sum (LS) Projects: Costs for equipment utilized by the Contractor for LS projects shall be incorporated in the LS bid. MassDEP shall pay for equipment utilized by the Contractor as part of the Department-approved LS budget for the project activities, and the Contractor shall not invoice MassDEP for equipment costs separately.

In the event that the Contractor determines that there is a need for additional equipment and/or an extension of time for equipment use for the project activities that exceeds the costs incorporated into the original MassDEP-approved LS budget, the Contractor must submit for MassDEP’s review and approval a written Change Order Request in accordance with Article XI of the Supplemental Terms & Conditions. MassDEP will not compensate the Contractor for any additional and/or extended use of equipment costs incurred prior to the Contractor’s receipt of MassDEP’s written approval of the Change Order Request.

3) Payment for Equipment Utilized on a T&M Basis: Equipment utilized on a T&M basis shall be paid in accordance with the following terms and conditions:

a. Equipment List and Rate Schedule: Equipment that is eligible for payment shall be paid in accordance with the Equipment List and Rate Schedule submitted by the Contractor and accepted by the Department. The Contractor’s listed equipment rates are considered to be the maximum rates the Contractor is authorized to charge MassDEP for equipment required to perform project work activities. On a project-specific basis, the Contractor may elect, or the Department may request, lower equipment rates to be utilized in conjunction with project work activities.

b. Equipment rates inclusive of operating requirements: Equipment rates quoted by the Contractor in the Equipment List and Rate Schedule are inclusive of accessories and other items, including fuel, that are routinely required for the equipment to perform its function. Routine maintenance, fuel and lubricant, or other routine requirements for equipment operation are considered to be part of the costs for the unit rates for the equipment, and shall not be paid by MassDEP as a separate item.

Non-routine maintenance, fuel and lubricant usage, or other requirements for equipment operation that may result from unknown site conditions or other extraordinary conditions on a project-specific basis may be paid to the Contractor with prior written approval from Department. Failure of the Contractor to request and receive prior written Department approval for any non-routine costs associated with equipment usage may result in MassDEP’s denial of payment for these additional charges.

c. Non-payment for inoperable equipment, shipping and transport: MassDEP will not compensate the Contractor for equipment expenses under the following circumstances:

1. MassDEP shall not pay the Contractor for equipment that is not in good working order, or during operation becomes inoperable, substantially inoperable, or is unsuited for performing the task for which the equipment was brought to the site. MassDEP will make the final determination regarding equipment inoperability and/or failure to perform.

2. If the equipment becomes inoperable during the course of the project, MassDEP shall not pay the Contractor for the time period when the equipment is inoperable.

3. The time and costs associated with the repair and/or replacement of inoperable equipment shall be the sole responsibility of the Contractor. Contractor repairs to Department-owned equipment will be eligible for compensation, provided that the Contractor has obtained prior written approval of the Contract Administrator with respect to the proposed equipment repair.

d. Equipment shipping and transport costs disallowed: Contractor costs for shipping or transport of equipment to or from the project site shall not be paid without prior written approval from the Department, unless the costs are eligible as mobilization/demobilization costs on the Labor and Equipment Rate Schedules.

e. Equipment not on the Labor and Equipment Rate Schedules: Equipment that is required for work and is not on the Equipment List and Rate Schedule may be used with written approval of the Contract Administrator. The payment method for the non-listed equipment may be either lump sum basis or fixed unit rate rental rate (e.g. $/hour, $/day, $/week). For fixed unit rate rental, the following rules shall apply:

1. Contractor owned equipment shall be reimbursed based on current market rental rates or best customer rates, whichever is lower. The Department will determine if the rates proposed by the Contractor are appropriate and allowable.

2. Equipment rented from a vendor of the Contractor will be reimbursed at the actual cost to the Contractor, plus a markup not to exceed 5%.

Rates for equipment not in the Equipment List and Rate Schedule proposed by the Contractor must be inclusive of all items, fuel and other accessories that are routinely required for the equipment to perform its function, in accordance with the requirements of Article IV. 3) b. above. In addition, and in accordance with the requirements of Article IV. 3) b. above, any requests for non-routine maintenance, fuel and lubricant usage, or other requirements for equipment operation that may result from unknown site conditions or other extraordinary conditions on a project-specific basis may be paid to the Contractor with prior written approval from Department. Failure of the Contractor to request and receive prior written Department approval for any non-routine costs associated with equipment usage may result in MassDEP’s denial of payment for these additional charges.

f. Payment for Equipment use or Potential Use: MassDEP shall only pay the Contractor equipment charges for the actual use, or on stand-by for use, of equipment present at the site, as determined by the Department. MassDEP will not compensate the Contractor for equipment that is mobilized and present at the site, but is not required for the project work activities. When an equipment item initially utilized for the project is no longer needed at the site, the Department will no longer pay for that piece of equipment.

g. Equipment Categories and List and Rate Schedule: MassDEP’s payment for equipment usage and operation will be in accordance with the equipment categories as defined below.

Category I – Equipment that includes an operator: Category I equipment rates shall include the costs for the operator of the equipment, such as excavator, backhoe, vacuum truck, or loader. For Category I equipment, Contractors shall include an hourly and weekly rate with the submission of the Equipment List and Rate schedule that is accepted by the Department. The hourly and weekly rates for payment shall be as follows:

· Mobilization/Demobilization as defined in the Labor and Equipment Rate Schedules for Category I equipment items.

· 0 to 4 days - hourly rate.

· 5 days to 30 days – weekly rate.

Once the weekly rate applies, partial weeks for this Equipment Category shall be as follows: for each day over 5 working days, the weekly rate shall be divided by 5, multiplied by the number of days and/or partial days. For those projects where Category I Equipment is required for more than 30 days, the Department will negotiate project-specific rates with the Contractor. In addition, for projects where Category I Equipment is required for activities of longer duration (but less than 30 days), MassDEP and the Contractor may negotiate project-specific equipment rates prior to the initiation of activities.

Examples of Payment for Category I Equipment on MassDEP Project Activities

Example 1: An excavator operates equipment for 2 hours at a site, then is demobilized that day without further use. The Category I equipment payment includes the hourly rate, as well as demobilization and mobilization hourly rate as provided in the Equipment List and Rate Schedule.

Example 2: An excavator operates equipment for 3½ days at a project site. The Category I equipment payment would be for 28 hours, at the hourly rate provided in the Equipment List and Rate Schedule.

Example 3: An excavator operates equipment for 5 days at a project site. The Category I Equipment payment would be for the weekly rate provided in the Equipment List and Rate Schedule.

Example 4: An excavator operates equipment for 8 ½ days at a project site. The Category I equipment payment would be as follows: 1) The first 5 days would be paid at the weekly rate; 2) The next 3 ½ days would be paid at the weekly rate, divided by 5, then multiplied by 3 ½ days.

Category II - Equipment that excludes labor, such as fractionation tanks, generators, roll-offs, pumps, or compressors. For Category II equipment, Contractors shall include an hourly ,weekly and monthly rate with the submission of the ER IRA Labor and Equipment Rate Schedules in the Response to the RFR. The rates for payment shall be as follows:

· Mobilization/Demobilization for certain equipment items as defined in the ER IRA Labor and Equipment Rate Schedules.

· 0 to 4 days – daily rate.

· 5 days to 3 weeks – weekly rate

· over 3 weeks – monthly rate

Once the weekly rate applies, partial weeks for this Equipment Category shall be as follows: for each day over 5 working days, the weekly rate shall be divided by 5, multiplied by the number of days and/or partial days. For those projects where Category II Equipment is required for more than 30 days, the Department will negotiate project-specific rates with the Contractor. In addition, for projects where Category II Equipment is required for activities of longer duration (but less than 30 days), MassDEP and the Contractor may negotiate project-specific equipment rates prior to the initiation of activities.

Category III - Monitoring equipment that excludes labor, such as photoionizing detectors (PIDs), flame ionizing detectors, LEL/O2 meters, or rad meters. For Category III equipment, Contractors shall include an hourly and weekly rate with the submission of the Equipment List and Rate schedule in the Response to the RFR. The rates for payment shall be as follows:

· 0 to 4 days - Daily rate.

· Over 4 days – Weekly rate.

Once the weekly rate applies, partial weeks for this Equipment Category shall be as follows: for each day over 5 working days, the weekly rate shall be divided by 5, multiplied by the number of days and/or partial days.

h. Payment for equipment mobilization and demobilization: Payment for equipment mobilization and demobilization will only be allowed for certain specified Equipment Categories. All Category I Equipment shall include a mobilization/demobilization hourly rate as set forth in the Contractor’s submission of the ER IRA Labor and Equipment Rate Schedules in the Response to the RFR, as accepted by the Department. Category II equipment may or may not have an allowable mobilization/demobilization hourly rate as indicated in the Contractor’s submission of the ER IRA Labor and Equipment Rate Schedules in the Response to the RFR, as accepted by the Department. The Contractor will not be reimbursed for mobilization/demobilization costs for Category III Equipment.

In general, MassDEP will not pay the Contractor separate mobilization/demobilization charges for smaller equipment and materials, such as monitoring equipment, pumps, generators that are not towed, compressors, power washers, drums, carboys, and other smaller items that are transported in the back of a car or bed of a pickup truck or van.

Pickup trucks (F150, F250, F350 or equivalents), vans and other small vehicles are ineligible for payment unless required for towing or delivery of samples; any use of these vehicles must have prior approval, in writing, from the Contract Administrator.

Any mobilization/demobilization equipment rates allowed by MassDEP shall be inclusive of all associated costs, including but not limited to labor, equipment, and fuel, as specified in these Payment Terms and Conditions and set forth in the ER IRA Labor and Equipment Rate Schedules.

i. Payment for Equipment Cleaning and Decontamination: MassDEP will pay the Contractor for the cleaning and decontamination of equipment (including small trucks) that become contaminated or excessively muddy to the extent that the equipment should not be utilized on public roadways. Cleaning or decontamination of equipment will be paid at the equipment hourly rate for up to one hour after equipment use is completed for the project. MassDEP will not pay the Contractor for the routine cleaning of vehicles that are not contaminated or excessively muddy for public roadway use.

The Contractor shall clean all equipment leaving the job site, including boats or other items to be transported by water, to the reasonable satisfaction of the Department before transporting equipment off-site. MassDEP will pay the Contractor labor time for equipment cleanup; however, the time during which equipment is being cleaned shall be considered chargeable equipment time in "actual operation" only if the Contractor receives prior written authorization from the Department. MassDEP will not pay for the costs for materials (such as soap, distilled water, or methanol) used to decontaminate or clean equipment.

MassDEP shall pay equipment charges necessarily spent in off-site equipment decontamination only with the prior written authorization of the Department.

j. Payment for Equipment Used to Remove Waste or Debris to an Offsite Location: With the prior written approval of MassDEP, the Department will pay the Contractor equipment charges (including small trucks) for the time spent in removal of waste or debris to an offsite location for up to one hour of offloading time.

k. Equipment That is Ineligible for Payment: MassDEP will not pay the Contractor for small tools, hand tools, power tools, communication equipment, and other miscellaneous equipment normally required for the work activities. Examples of small tools include, but are not limited to, shovels, rakes, brooms, straps, binoculars, caution tape, flash lights, reusable buckets, and measuring tapes.

l. Payment for health and safety personal protective equipment (PPE): Any work activities that require PPE at Levels A and B as defined in OSHA 1910.120 (HAZWOPER) will eligible for payment at rates negotiated by MassDEP and the Contractor on a project specific basis.

The Department will pay for any work activities that require Level C PPE at a lump sum rate on a per day, per worker basis. Level C PPE as defined in OSHA 1910.120 (HAZWOPER) includes both respiratory protection and protective clothing. The Department will not pay the lump sum rate for Level C work that only requires protective clothing, but no respiratory protection from chemical exposures. Protective clothing including, but not limited to, Tyvek suits, gloves, chicken boots, tape, etc. will not be reimbursed by MassDEP. Also, MassDEP will not pay the Contractor for employee protection from exposure from fugitive dust that is not contaminated.

MassDEP will pay Contractors for the direct costs for PPE provided to Department personnel for project work.

m. Payment for Site Monitoring Equipment: MassDEP will pay the Contractor for site monitoring equipment when its use is required on a project for the protection of health, safety and public welfare. Monitoring equipment may include, but may not be limited to, the following: photoionization detectors (PIDs), flame ionization detectors (FIDs), other Organic Vapor Meters, LEL/O2 meters, and/or radiation detectors.

n. Rental Cost vs. Purchase Price For Equipment: The Department will not pay the Contractor for equipment rental costs that exceed the purchase price for equipment utilized for projects under this Contract. In project-specific circumstances, the Department may allow the Contractor to charge equipment rental rates that exceed the equipment purchase price, but only with the prior written approval the Contract Administrator.

o. Equipment Purchases for the Department: In project-specific circumstances, MassDEP may require the Contractor to purchase equipment for Department use at the site after the Contractor’s work project is completed. The Contractor’s purchase of equipment for MassDEP is subject to the following conditions:

· If the equipment’s estimated purchase price exceeds $5,000, and the equipment is not currently in use at the site, the Contractor shall submit to the Contract Administrator written quotes from at least three (3) known vendors of the equipment to be purchased. The Contractor shall make a written recommendation to the Contract Administrator regarding the equipment vendor to be selected, and the Contract Administrator shall determine whether to accept the Contractor’s recommendation. MassDEP also reserves the right to require the Contractor to submit written quotes from at least three (3) known vendors for equipment valued at less than $5,000.

· If the equipment being purchased is used, MassDEP and the Contractor will negotiate the purchase price, taking into consideration the original purchase price and/or the remaining value of the equipment.

· After MassDEP purchases the equipment and the Contractor’s work is completed at the site, the Department will be responsible for maintenance of the equipment. Upon request of MassDEP, the Contractor will agree to provide maintenance for the equipment at unit rates to be negotiated and agreed upon by MassDEP and the Contractor for labor, equipment, and materials.

· The equipment purchased by MassDEP shall not exceed the equipment’s fair market value.

· The Contractor shall provide MassDEP with all equipment manuals, design sheets and instructions as part of MassDEP’s purchase of the equipment.

· All manufacturer warranties for the equipment must be transferrable, and the Contractor must transfer all manufacturer warranties to the Department as part of the equipment purchase.

p. Use of Public Utilities for Operation of Equipment: Where projects require equipment that utilize electricity or natural gas from public utilities, the Contractor may be required by MassDEP to contact the utility, and schedule and pay for any utility hookups and tie-ins necessary to operate the equipment. Alternatively, MassDEP may arrange and/or pay for these services. MassDEP will pay the Contractor for any costs incurred by the Contractor for utility contact, scheduling and hookup when the Department does not assume these responsibilities.

q. Markup on Equipment: Contractor markup is not allowed on equipment listed in the ER IRA Labor and Equipment Rate Schedules, or on equipment owned by the Contractor. MassDEP may allow Contractor markup for equipment that is rented, leased or purchased from a vendor of the Contractor upon the presentation of receipts, bills or invoices documenting proof of these charges to the Contractor. The maximum allowable markup rate shall not exceed 5%.

Article V. Materials and Supplies

1) General Terms and Conditions for Payment for Material and Supplies: Materials and supplies include goods that are consumed or expended during use and are not designed for significant re-use after one or several uses over a short period of time. Usually, materials and supplies are not mechanical when used, and do not require power for use.

MassDEP will pay the Contractor for materials and supplies that are required for project work activities, as long as those materials and supplies are approved for use by the Department, and comply with these Payment terms and conditions. MassDEP shall not compensate the Contractor for materials and supplies required for the routine administration of the Contractor’s business and are not directly associated with the project.

In project-specific circumstances, MassDEP reserves the right to retain some or all materials and/or supplies that the Contractor did not utilize during the project, but were paid for (or will be paid for) by MassDEP. This includes situations where materials and supplies were purchased in bulk by the Contractor for the project, but were not fully utilized in the project work activities.

2) Materials and Supplies Rate Schedule: Materials and Supplies that are eligible for payment shall be paid in accordance with the ER IRA Labor and Equipment Rate Schedules submitted by the Contractor and as accepted by the Department. The Contractor’s listed rates are considered to be the maximum rates the Contractor is authorized to charge MassDEP for materials and supplies required to perform project work activities. On a project-specific basis, the Contractor may elect, or the Department may request, lower rates to be utilized in conjunction with project work activities.

3) Materials and Supplies Not in the Rate Schedule: Materials and supplies that are required for the work and are not listed in the ER IRA Labor and Equipment Rate Schedule may only be used with the prior written approval of the Department. Payment for materials and supplies not listed in the Rate Schedule will be at the direct cost of the items as documented in receipts, bills and invoices issued to the Contractor for the items, and then submitted to MassDEP in support of payment. In the event that the Contractor has no documentation for the cost of the materials and supplies, the Contractor must demonstrate to MassDEP that the requested payment for the materials and supplies is consistent with the fair market value of these items. If the Contractor fails to submit documentation in support of the fair market value for the materials and supplies items, MassDEP may disallow these costs.

4) Markup on Materials and Supplies: Contractor markup is not allowed on materials and supplies listed in the ER IRA Labor and Equipment Rate Schedule, or on materials and supplies owned by the Contractor and provided to the project at a bulk rate or unit rate set by the Contractor. In specific circumstances, MassDEP may allow Contractor markup for material and supplies that are purchased from a vendor upon the Contractor’s presentation of receipts, bills or invoices documenting proof of purchase of these items. The maximum allowable markup rate shall not exceed 5%.

Article VI. Laboratory/Analytical Services: Terms and Conditions

1) Contractor Responsibility for Laboratory/Analytical Services: Contractors shall be responsible for identifying and utilizing qualified laboratories to perform required laboratory analyses for ER Service and/or IRA Support Services activities. The Contractor will be paid for laboratory analyses and other necessary laboratory costs for analyses under the following conditions:

a. MassDEP has agreed and approved that the numbers, type and methods of laboratory analyses is required.

b. The laboratory meets the requirements for performing the methods and providing the quality assurance and quality control as specified in this section, and as normally assumed as a standard of business for accurate, competent and compliant laboratory analysis.

c. The laboratory results are accurate within acceptable margins, and no laboratory error has occurred.

d. Sampling, handling and transport of samples to the laboratories meets quality control requirements that ensure the results of the laboratory analyses are not compromised because of sampling error, improper handling, improper sample preservation, improper transport, holding time violations, and any other non-conformances that would compromise the analytical results.

If the Contractor’s failure to adhere to these provisions, or to any other requirements of this section, results in the compromise and/or invalidity of the laboratory results, MassDEP reserves the right to not pay the Contractor for all, or part of the laboratory analyses invoiced for the project.

2) Contractor Option to utilize laboratory analytical services available through MassDEP’s Laboratory Master Services Agreement (MSA) Contract (BWSC-LSS02014): ER/IRA Contractors have the option (but are not required) to utilize the five (5) laboratories currently available on MassDEP’s Laboratory MSA Contract. If the ER/IRASS contractors elect to utilize laboratories from the MSA Contract, the ER/IRASS contractors shall be required to enter into their own written subcontracts with the laboratories for these services. Upon request, the Contractor shall submit the laboratory analytical rates for review and approval by the Contract Administrator.

If Contractors elect not to utlize MassDEP’s Laboratory MSA services on IRA projects, a Contractor’s request to utilize other analytical laboratories must be submitted to MassDEP, together with a statement of written justification, for review and written approval by the Contract Administrator. Prior to written approval of the Contractor’s request, MassDEP may request submission of the laboratory’s certification(s), qualifications, and cost rates for review. Upon request, the Contractor shall submit the laboratory analytical rates for review and approval by the Contract Administrator. The Department is not responsible for any laboratory costs incurred by the Contractor prior to the Contractor’s receipt of approval from the Contract Administrator.

If Contractors elect not to utilize MassDEP’s Laboratory MSA services on ER projects, the Contractor must provide the Contract Administrator with written justification within 72 hours of the initiation of the ER event (i.e., upon receipt of MassDEP’s request for ER Contractor mobilization). MassDEP may request submission of the laboratory’s certification(s), qualifications, and cost rates for review. Upon request, the Contractor shall submit the laboratory analytical rates for review/approval by the Contract Administrator.

3) Payment Terms and Conditions, and Markup: Provided that the terms of this section are met by the Contractor, MassDEP will reimburse the Contractor for direct costs incurred by the Contractor for laboratory analysis, plus a markup not to exceed 5% on the direct costs from the laboratory. MassDEP’s payment for laboratory services requires that the Contractor present documentation in support of laboratory costs, such as receipts, bills or invoices from the laboratory. The Contractor must also provide chain of custody documentation as a precondition for payment.

4) Analytical Data Requirements: 310 CMR 40.0017 and 40.0191(2) require that analytical and environmental monitoring data be scientifically valid and defensible, and of a level of precision and accuracy commensurate with its stated or intended use, taking into consideration relevant policies and guidelines issued by the Department and the Environmental Protection Agency (EPA). 310 CMR 40.0017 (3)(i) further provides that all response action submittals to the Department shall include details on any known conditions or findings which may affect the validity of analytical data, including unsatisfactory results obtained for blank, duplicate, surrogate or spiked samples.

To facilitate application of these broad performance standards, the Department is requiring that all samples under this program be analyzed using the most current, approved MassDEP Compendium of Analytical Methods (CAM). The CAM is a compilation of information regarding commonly used analytical protocols (e.g., EPA’s SW-846 Methods, MassDEP’s VPH and EPH methods, etc.) that provides:

· A succinct summary of each analytical method

· Detailed quality control procedures and performance standards

· Analyte lists

· Reporting formats, and

· Other methodological elements.

Incorporation of all such provisions into a method is referred to as an “MCP Analytical Method.” Specifications for each MCP Analytical Method of interest are available in the CAM at:

http://www.mass.gov/eea/agencies/massdep/cleanup/regulations/wsc10-320-compendium--quality-control-reqs.html

Each individual MCP Analytical Method provides detailed method-specific quality control requirements with associated performance standards. Conformance with performance standards is evaluated by the analysis of various batch quality control samples (data quality indicators such as LCSs, etc.) and the comparison of these analytical results to pre-established ranges of acceptable analytical variability.

Data satisfying these requirements will achieve “Presumptive Certainty” status and be assured acceptance by Department reviewers.

5) Department Communication with Laboratories: MassDEP reserves the right to directly contact laboratories under subcontract or purchase order with the Contractor to clarify issues including laboratory rates, laboratory methods, and any other aspects of the laboratory work being conducted for the project or response. The Department shall inform the Contractor of these communications.

Article VII. Disposal: Conditions and Rate Schedules

Disposal rates used by the Contractor will be paid in accordance with the ER IRA Labor and Equipment Rate Schedules submitted by the Contractor and accepted by the Department. Disposal rates not provided in Contractor’s ER IRA Labor and Equipment Rate Schedules will be reimbursed at cost plus 5%. For specialty waste groups, disposal rates not listed in the ER IRA Labor and Equipment Rate Schedules will, in certain project specific circumstances, be negotiated by the Contractor and MassDEP.

Contractors may identify any number of firms as disposal subcontractors. However, in an emergency, MassDEP reserves the right to require that disposal be handled by the facility most proximate to the site of the ER Service or IRA Support Services activity. In these situations, MassDEP will negotiate with the Contractor regarding payment to the disposal firm utilized for the emergency.

Article VIII. Other Reimbursable Costs

1) In General: MassDEP will reimburse the Contractor for all incidental costs reasonably incurred in connection with any required state or local permits, police details, or other types of necessary charges required in order for the Contractor to perform the work activities under this Contract.

2) Reimbursable Costs: Reimbursable costs shall include, but shall not be limited to, the following:

a. Police details;

b. local street opening permits;

c. MassDOT required permits on state highways;

d. Dig-Safe costs and/or other utility-related costs; and/or

e. Any other incidental costs necessary to perform the work activities, as determined and allowed in writing by the Contract Administrator.

Article IX. MassDEP Equipment Maintenance & Repair and Replacement Rental

MassDEP’s Regional Emergency Response Groups have environmental monitoring equipment. On occasion, MassDEP will request Contractor support for the maintenance, calibration, and repair of MassDEP’s equipment. Contractors will be reimbursed for the cost of these services, plus 5% maximum markup for maintenance, calibration and repair as performed by the Contractor, or by a qualified subcontractor.