IFB+325-24-900-065.docx

STATE OF NORTH DAKOTA

INVITATION FOR BID (IFB)

(February 2024)

PROCUREMENT OFFICER

The Procurement Officer is the point of contact for this IFB. Bidders shall direct all communications regarding this IFB to the Procurement Officer. Please do not add the Procurement Officer to any marketing distribution lists.

PURCHASING AGENCY (STATE): North Dakota State Hospital PROCUREMENT OFFICER: Jason Vaagen EMAIL: jevaagen@nd.gov

PHONE: 701-857-8503

TTY Users call: 7-1-1

Engaging in unauthorized communication or seeking to obtain information about an open solicitation with any state employee or official other than the responsible Procurement Officer or designee is sufficient grounds for suspension or debarment [N.D.A.C. § 4-12-05-04(7)].

BID QUESTION DEADLINE

Bidders should carefully review the IFB, including all attachments. Bidders may ask questions to obtain clarification and request additional information, or object to material in the IFB. Questions and objections must be submitted to the Procurement Officer, in writing, by the deadline identified in the IFB. The Procurement Officer may elect to respond to questions received after the Bid Question Deadline.

Email is the preferred method of submission with the IFB number and title cited in the email subject line. Responses to questions will be distributed as a solicitation amendment unless the question can be answered by referring the bidder to a specific section of the IFB.

A person or firm interested in submitting a proposal should ensure all communications related to the procurement are only with the designated point of contact. This section does not restrict communication with state officials or any member of the legislative assembly unless the state official or member of the legislative assembly is involved directly with the procurement for which the person is interested or has submitted a bid or proposal (N.D.C.C. § 54-44.4-01.1).

STATE PROCUREMENT WEBSITE (SPO ONLINE)

This IFB and any related amendments and notices will be posted on the North Dakota OMB website using the State Procurement Online system (SPO Online). Bidders are responsible for checking this website to obtain all information and documents related to this IFB: https://apps.nd.gov/csd/spo/services/bidder/main.htm

Select Recent Solicitations and find this solicitation. Recent solicitations are listed by close date.

Bidders not having completed the Bidders List registration may request to receive notices related to this IFB by contacting the Procurement Officer, in writing, with the following information: IFB title, business name, contact person, mailing address, telephone number, and email address.

SECTION 1

BIDDERS INSTRUCTIONS

1. Bidder Checklist. Have you remembered to?

· Ensure your Bid Response complies with all instructions, terms and conditions, delivery requirements, and specifications.

· Prepare your price in the specified unit of measure, FOB: Destination to the shipping location.

· Sign your bid, and initial any changes or corrections.

· Ensure your Bid Response is received by the Procurement Officer by the Bid Response Deadline. Call to confirm receipt.

· If using a delivery service, check tracking to ensure the Bid Response will be delivered on time. Contact the Procurement Officer as soon as possible in the event of delays due to weather, etc.

· Submit any required samples or documents.

2. Definitions.

· Bidder: any person or firm submitting a competitive bid in response to a solicitation.

· Bid Response: the executed document submitted by a Bidder in response to a solicitation.

· Commodities: all property, including equipment, supplies, materials, printing, insurance, and the lease of equipment.

· Contractor: any person or firm having a contract with a governmental body.

· Procurement Officer: an individual duly authorized to enter into and administer purchasing contracts and make written determinations with respect thereto; also includes an authorized representative acting with the limits of designated purchasing authority.

· Purchasing Agency (STATE): the entity on which the purchase is being made on behalf of.

· Services: the furnishing of labor, time, or effort by a Contractor, not involving the delivery of a specific end product other than reports that are merely incidental to the required performance.

· Solicitation: a document to notify prospective Bidders of a bidding opportunity.

· N.D.A.C.: North Dakota Administrative Code; rules with the force and effect of law.

· N.D.C.C.: North Dakota Century Code; state laws.

· OMB: Office of Management and Budget (OMB); a North Dakota state agency.

· SPO: State Procurement Office, a division of the Office of Management and Budget.

· SPO Online: a procurement information website maintained by the State Procurement Office pursuant to N.D.C.C. § 54-44.4-14.

3. Secretary of State Registration Requirements. The North Dakota Secretary of State has registration requirements for individuals and businesses transacting business in North Dakota. If the successful Bidder is determined to have a registration requirement with the North Dakota Secretary of State, they must be registered before the contract award and registration must remain active for the duration of the contract period (N.D.C.C. § 54-44.4-09.1).

See the OMB Guidelines to Vendor Registry for more information.

Visit the Secretary of State's Vendor Registration webpage for information on registration requirements and fees. Visit FirstStop, the Secretary of State's business and licensing software, for online form options.

· Check the Business Records database to see if a business is registered.

· Contact Secretary of State's office by email or call 701-328-2900 (choose menu item 2, then option 1).

· If you need to register, fees apply.

· Vendors may need to obtain businesses licenses. See the list of licenses required of businesses in the State of North Dakota. The link includes information on who to contact, application fees, renewal dates, and the legal reference.

4. Bidders List. Individuals or business entities desiring to be notified of bidding opportunities may apply to be placed on the Bidders List (N.D.C.C. § 54-44.4-09). Bidders Lists are used to notify vendors when solicitations are issued on the State Procurement Office Online system (SPO Online). Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation (N.D.A.C. § 4-12-05-01). There are no fees to register as a bidder. The online application form requests contact information for the receipt of solicitation notices. The Bidders List application and SPO Online system use commodity codes to identify categories of goods, services, and information technology.

The commodity codes used for this solicitation are: 175 - 53 and 938 – 62, 63

Visit the OMB website for instructions and the online Bidders List Application:

Bidders List Registration Website

For assistance with Bidders List Registration, contact State Procurement Help Desk at 701-328-1728 or infospo@nd.gov.

5. Submission Instructions. Please follow these instructions to submit your Bid Response. Bid Responses must be received by the Procurement Officer by the Bid Response Deadline. Bidders assume the risk of the delivery method selected. Late Bid Responses will be rejected.

Upload Response Through the State Procurement Online System (SPO Online):

Bidders must electronically submit Bid Responses through SPO Online by the Bid Response Deadline.

DO NOT WAIT UNTIL THE “LAST MINUTE” TO SUBMIT A RESPONSE. Recommend uploading response 24 hours prior to the Bid Response Deadline.

Bidder must begin the electronic submission process well in advance of the Bid Response Deadline to allow for transmission and resolution of any technical difficulties. Be advised that the STATE is not responsible for a Bidder’s failure to timely submit a Bid Response due to any technical difficulties. If you experience any technical difficulties, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

If documents are in the process of being uploaded when the Bid Response Deadline occurs, the upload process will stop. The attempted submission will not be uploaded successfully and is ineligible for consideration. The STATE takes no responsibility for electronic submissions that are captured, blocked, filtered, quarantined, or otherwise prevented from uploading by any anti-virus or other security software.

1. This solicitation is posted on SPO Online at: https://apps.nd.gov/csd/spo/services/bidder/main.htm

2. Select “Recent Solicitations” and find this solicitation. Solicitations are listed by close date.

3. Use “Upload Response” to upload a maximum of five (5), clearly labeled documents before the Bid Response Deadline.

4. Offerors must upload their Bid Response as requested in the Bid Response section of this IFB.

5. The maximum file size allowed is 50 MB per file.

6. There is a 50-character file name limitation for the document being uploaded.

7. There is a 75-character limit in the TITLE field within SPO Online.

8. All SPO Online field entries must be alphanumeric. Dashes and underscores are allowed; however, the system does not accept other special characters, such as apostrophe, & symbol, quotation marks, etc.

9. DO NOT submit documents that are embedded (zip files), movies, wmp, encrypted, or mp3 files.

10.Bidder will receive an email confirmation from infospo@nd.gov that the upload response was received, including the “File Description” for the uploaded files. Review this email to ensure all files were successfully uploaded. If Bidder does not receive an email confirmation, the upload was not successful, and you will need to upload the files again. If Bidder does not receive an email confirmation after the reattempt, contact the Procurement Officer or the State Procurement Office at infospo@nd.gov or 701.328.2740.

Visit https://www.omb.nd.gov/sites/www/files/documents/doing-business-with-the-state/procurement/spo-electronic-response-external-job-aid.pdf for the SPO Electronic Response Job Aid which describes how to submit an electronic response.

6. Additional Terms and Conditions. Additional terms and conditions submitted with a Bid Response are of no effect unless accepted, in writing, by the Procurement Officer. Bid Responses with additional terms and conditions may be rejected as non-responsive (N.D.A.C. § 4-12-11-06).

7. Assistance to Bidders with a Disability. Bidders with a disability that need an accommodation must contact the Procurement Officer prior to the Bid Response Deadline so reasonable accommodation can be made.

8. Bid Response Held Firm. Bid Responses are not awarded at the bid opening. Bidders must hold their Bid Responses firm for 90 days, unless otherwise specified by the Procurement Officer, in writing.

9. Bid Response Opening. All Bid Responses received by the Bid Response Deadline will not be publicly opened by the Procurement Officer.

10. Bid Response Results. Interested parties may contact the Procurement Officer to obtain a summary of all Bid Responses received and the award. Bid Response results may be posted on SPO Online: https://apps.nd.gov/csd/spo/services/bidder/main.htm

11. Bidders List - Suspension and Debarment. Placement on the Bidders List does not guarantee a vendor will receive notice of every solicitation. A vendor may be removed from the Bidders List if a solicitation notice is undeliverable. Vendors may be suspended or debarred from the Bidders List for cause (N.D.A.C. ch. 4-12-05).

12. Changes/Corrections. Bidders must initial any changes or corrections to the Bid Response, such as erasures and crossed out/rewritten prices. The Procurement Officer may confirm the Bid Response when changes are not initialed.

13. Multiple Bid Responses. Bidders may submit more than one Bid Response in response to this solicitation. Each Bid Response submitted must be prepared in accordance with the Bid Response instructions and meet the stated requirements.

14. Open Records Requests. Bid Responses are exempt records until the date and time of the Bid Response opening. After the Bid Response opening, all Bid Responses are subject to North Dakota open records laws. Interested parties may contact the Procurement Officer to request information related to this solicitation.

15. Packaging. All packaging must be strong and secure in accordance with accepted commercial practices.

16. Protests. Protests of the solicitation must be received by the Procurement Officer within seven days before the Bid Response Deadline. Protests of the award or Notice of Intent to Award must be received by the Procurement Officer within seven days after receiving notice of award. Seven calendar days after award or issuance of the Notice of Intent to Award it will be assumed that all interested parties knew or should have known all the facts surrounding the award. Protests must be made, in writing, to the Procurement Officer and include the basis for the protest (N.D.C.C. § 54-44.4-12; N.D.A.C. ch. 4-12-14).

17. Signature. The Bidder’s authorized representative must provide their printed name, title, and sign the Bid Response. The lack of a signature may be waived as a minor informality, provided a signed Bid Response is submitted by the deadline established by the Procurement Officer (N.D.A.C. ch. 4-12-10).

18. Specifications, Compliance. All Bid Responses must comply with the stated specifications, and the successful Bidder will be held responsible. Bidders who desire to submit commodities or services that deviate from these specifications or have any objections to the stated specifications must contact the Procurement Officer by the Bid Question Deadline or at least seven days before the Bid Response Deadline, so the Procurement Officer can determine whether the specifications need to be amended.

19. Specifications Prepared by Non-State Personnel. When a purchasing agency has specifications prepared by someone other than a state employee or official on behalf of the state, that person or business entity must be excluded from submitting bids or proposals in accordance with N.D.A.C. § 4-12-06-06.

20. Supplier Registration (Payee). The successful Bidder will be required to complete Supplier Registration, if not already registered as a Supplier. Any individual or business who will be receiving payment from a state agency or higher education institution must complete a registration process to collect important financial and taxpayer information. Payments are generally made by check or automatic clearing house (ACH), and taxpayer information must be collected in compliance with IRS requirements. The State and North Dakota University System (NDUS) have separate financial systems and vendor registration processes.

21. Withdrawal or changes to a Bid Response prior to the Bid Response Deadline. Before the Bid Response Deadline, the Bidder’s authorized representative may withdraw or change a Bid Response by making a written request to the Procurement Officer.

22. Withdrawals or changes to a Bid Response after the Bid Response Deadline. After the Bid Response Deadline, no changes may be made to the Bid Response, except as provided in N.D.A.C. ch. 4-12-10. The Bidder’s authorized representative may make a written request to withdraw the Bid Response.

SECTION 2

EVALUATION AND AWARD

1. Award. Award will be made to the responsible Bidder with the lowest priced Bid Response that is responsive to the specifications and all other requirements stated herein. Award will be made as follows:

· All or none.

2. Award – Printing Preference Laws. If practicable, all state, county, and other political subdivision public printing, binding, and blank book manufacturing, blanks, and printed stationery must be awarded to a resident North Dakota Bidder. (N.D.C.C. § 46-02-15, N.D.C.C. § 44-08-02, N.D.A.C. § 4-12-16-01)

· Bid Responses from nonresident (out-of-state) Bidders will be accepted. See Guidelines to North Dakota Purchasing Preference Laws.

3. Award – Preference Laws. The reciprocal preference law, N.D.C.C.§ 44-08-01, was repealed effective August 1, 2023.

4. Award – Tie Bid Response Preference. If a tie occurs between two or more Bidders with equal Bid Response prices or offerors with identical evaluation scores:

a. Preference must be given to a resident North Dakota bidder, seller, vendor, offeror, or contractor as defined in N.D.C.C. § 44-08-02. (N.D.C.C. 54-44.4-05.1)

b. If a tie still remains, award shall be made in accordance with N.D.A.C. § 4-12-11-05.

5. Late Bid Responses. Bid Response responses must be received by the Procurement Officer by the Bid Response Deadline. Late Bid Responses will be rejected, regardless of the degree of lateness, unless the delay is due to the error of the Procurement Officer and discovered before the selection of the successful Bidder (N.D.A.C. § 4-12-08-13).

6. Responsiveness of the Bid Response. Any Bid Response that does not meet the requirements of the solicitation, other than mistakes determined to be minor informalities, will be rejected (N.D.A.C. § 4-12-11-03).

7. Minor Informalities. The STATE reserves the right to waive minor informalities in Bid Responses. Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from the Bid Response document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions that can be waived or corrected without prejudice to other Bidders (N.D.A.C. ch. 4-12-10).

8. Mistakes. The Procurement Officer may confirm the Bid Response in the event of apparent errors, such as an unreasonably priced Bid Response. Mistakes will be handled in accordance with N.D.A.C. ch. 4-12-10.

9. Responsibility of the Bidder. The Procurement Officer, at any time, may make a supplementary investigation as to the responsibility of any Bidder, even though the Bidder may be on the Bidders List. If a Bidder is determined to be not responsible, that Bid Response will be rejected even if it is the lowest Bid Response, and the Bidder may be debarred or suspended from the Bidders List (N.D.A.C. § 4-12-11-04).

10. Rejection. The STATE reserves the right to reject any and all Bid Responses in whole or in part. The Procurement Officer will send a rejection notice, including the reason for rejection. Bid Responses will be rejected if:

a. the Bid Response is determined to be not responsive to the instructions, specifications, and other requirements of the solicitation, other than mistakes or omissions determined to be minor informalities;

b. the Bid Response is determined to be late;

c. the Bidder fails to comply with Bidders List Application requirements by the stated deadline;

d. the Bidder is determined to be not responsible, in accordance with N.D.A.C. § 4-12-11-04;

e. the Bid Response is not legible.

If all Bid Responses are rejected, the Procurement Officer will send written notice to Bidders, including the reason all Bid Responses were rejected (N.D.A.C. § 4-12-11-09).

11. Third-Party Security Questionnaire.

The Third-Party Risk Management (TPRM) program helps to classify, evaluate, and monitor all third-party Vendors to provide reasonable assurance that inherent and overall risk associated with each third-party Vendor relationship is understood and aligned to the overall security objectives at the STATE.

The STATE will accept certification of the Bidder’s solution (not the third party hosting environment) via FedRAMP, HITRUST, or StateRAMP in lieu of completing the Third-Party Security Questionnaire (TPSQ). The STATE may have questions for these certified Offerors.

If the Bidder with the lowest price meeting specification does not hold a certification listed above, they will be required to complete the TPSQ. The TPSQ is a series of questions, filled out by the Bidder and any related personnel. The TPSQ assesses the Bidder security controls to determine if they are sufficient or pose any risk to the STATE.

After review of the Bidder TPSQ response, the Procurement Officer will be notified of all risks identified during the review of the security survey.

Bidders may be given the opportunity to remediate identified risks. Any costs associated with the remediation is the Bidder’s responsibility and price adjustments are not allowed.

If a Bidder will not or cannot remediate identified risks, the Agency Head or Designee may choose to accept ownership of the risk.

After award, the results of the TPSQ will be made available to the Bidder upon request and are otherwise a confidential document.

SECTION 3

SPECIAL TERMS AND CONDITIONS

1. Term of the Contract. The term of the contract issued as a result of this solicitation will be as follows:

a. Contract Period. This Contract term (Term) begins on December 16, 2024, and ends on June 30, 2027.

b. No Automatic Renewal. This Contract will not automatically renew.

c. Extension Option. STATE reserves the right to extend this Contract for an additional period of time, not to exceed 12 months, beyond the current termination date of this contract.

d. Renewal Option. STATE may renew this Contract upon satisfactory completion of the initial Contract Term. STATE reserves the right to execute up to three options to renew this Contract under the same terms and conditions for a period of 24 months each.

e. Renegotiation Option. In view of the fact that it is unknown how long the products and services will be employed by STATE and that STATE will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial Term of this Contract, including any extensions and renewals, STATE and CONTRACTOR may renegotiate this Contract upon mutual agreement of the parties.

2. Billing Address. After delivery of commodities or services under contract, the CONTRACTOR must submit a correct invoice. Payment will be made after inspection and acceptance.

· Invoices must be addressed to the Purchasing Agency. All invoice and payment inquiries must be directed to the Purchasing Agency.

3. Contract Amendment – Unanticipated Amendment. After a binding contract has been entered into, no changes may be made, unless prior written approval has been obtained from the Purchasing Agency through execution of a contract amendment. The CONTRACTOR may request changes, such as substitutions of a product, by submitting a written request to the Procurement Officer. Unanticipated amendments must be within the scope of the original contract, authorized by the terms of the contract and due to legitimate, unforeseen circumstances (N.D.A.C. ch. 4-12-13).

4. Contract Estimated Volume. The volume of this contract is estimated. Estimates are not to be considered as either a minimum or maximum, but rather an estimate based upon past and anticipated usage. The CONTRACTOR or CONTRACTORs will be required to furnish actual requirements upon receipt of an order. This contract will not include items of a similar nature, which must be bought for emergency use.

5. Ordering Catalogs and Literatures. CONTRACTOR will be required to furnish copies of catalogs and price lists to ordering agencies, upon request at no additional cost to the STATE.

6. Training. CONTRACTOR will provide training at no expense to the STATE at requested locations on the campus of the North Dakota State Hospital at 2605 Circle Drive, Jamestown, ND 58401. The cost to provide training MUST be included in an offeror’s Bid Response.

7. Delivery Time Required. The CONTRACTOR must meet the specified delivery requirements. If delivery cannot be made within the specified time, the CONTRACTOR must notify the Purchasing Agency, in writing, of the delay and the approximate date delivery may be expected.

· Delivery must be made within 90 days after the CONTRACTOR receives an order from the Purchasing Agency by issuance of a contract.

8. Delivery Location - F.O.B. Point and Freight. Delivery, freight, and passage of title under this contract shall be as follows:

· F.O.B. Destination to the location in the Specifications of the solicitation. All freight and handling is to be included in the item price. Title will pass to Purchasing Agency upon delivery to the specified destination. The CONTRACTOR will file any claims.

9. Descriptive Literature. The Bid Response must include descriptive literature or detailed manufacturer specifications for the offered equipment or commodities. Bidders are instructed to clearly mark the literature that demonstrates compliance with the specifications. Indicate whether optional features are included to meet the specifications.

10. New Equipment and Materials. Unless otherwise indicated in the detailed specifications of this solicitation, all equipment and materials shall be new and under current production for use in the United States.

11. Inspection and Acceptance or Rejection. The STATE reserves the right to conduct inspections and investigations related to the Bidder and the offered commodities or services, including, but not limited to, the firm, personnel, qualifications, and the commodities and services offered to make determinations regarding compliance with the Bid Response requirements and responsibility of the Bidder. All material and workmanship are subject to inspection and testing by the STATE at the point of manufacturer, place of storage, or upon receipt. The STATE reserves the right to reject any commodities or services and terminate the contract if the CONTRACTOR fails to comply with the specifications, terms and conditions, or the seller’s express or implied warranties. Rejected commodities will be removed at the CONTRACTOR’s expense. Failure to satisfactorily perform may result in suspension or debarment from the Bidders List.

If commodities or services are rejected as being not compliant with the requirements of this solicitation, the STATE will inform the CONTRACTOR, in writing. The Purchasing Agency may provide the CONTRACTOR with a reasonable opportunity to cure, whenever practicable, as set forth, in writing, by the Purchasing Agency.

12. Invoicing. All invoices and payment inquiries must be directed to the Purchasing Agency.

13. Price Adjustment. Pricing during the term of the contract will be as follows:

· Firm-Fixed. Pricing shall be firm for the period of the contract.

14. Pricing, Unit of Measure. The unit prices are to be according to the unit of measurement specified in the solicitation. In the event of mathematical differences between the unit price and extended total, the unit price will prevail (N.D.A.C. § 4-12-10-02).

15. Service – Local Requirement. Services within 24 after placement of service call is required. CONTRACTOR must have facilities or service providers within a commuting distance to meet this requirement.

16. Specifications, Brand Name or Equivalent. Unless otherwise indicated in the solicitation specifications, the use of a specific brand name or make/model is for illustrative purposes only, and the STATE will consider equivalent products. If an alternate brand offered by a Bidder is rejected as not being equivalent, the Procurement Officer send a rejection notice, including the reason for rejection.

17. Travel. CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

18. Time is of the Essence. CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to, in writing, by the parties.

SECTION 4

CONTRACT TERMS AND CONDITIONS EXCEPTIONS

Purchasing Agency will consider exceptions to the Contract Terms and Conditions found in Section 6. However, Bidders must propose changes or additions to Section 6 within their Bid Response. Bidders are not to submit their own contract or standard terms and conditions with their Bid Response. Bidders shall address the specific language within Section 6 and submit any proposed changes.

Bidders must provide a full response to each item number within Attachment A – Enterprise Specifications and provide a response to either agree or propose alternate language/comments within Attachment B – Software as a Service (SaaS) Service Level Agreement.

SECTION 5

BID RESPONSE FORM

SPECIFICATIONS

The North Dakota State Hospital is looking to purchase a new bench top hematology analyzer with a closed mode sampler 50 ul (microliter) whole blood sample capacity and include a 6-part automated differential with IG% IG# (Immature Granulocyte). The analyzer must include the following:

· Estimated 3500 CBC (complete blood count) annual volume cost of reagents and supplies.

· Training in the operation of the new analyzer. Training will be completed by the analyzer manufacturer.

· All reagents, calibrations, and quality control needed for implementation.

· Terms of the warranty and costs of service contract.

· A barcode scanner.

· Freight.

Bidders shall provide a 12-month warranty and a service contract for five years (60-month term). The service contract shall begin immediately after the warranty period ends. Service contract will be provided by the manufacturer of the analyzer.

The analyzer will need to interface with Orchard Lab Information System. Additionally, the analyzer must be compatible with RAM Scientific SAFE-T-FILL capillary tubes.

Bidders are instructed to provide a Total Price for the new equipment being offered (Bid Items 1-10).

Attachment A – Enterprise Specifications must be completed and submitted with an offeror’s Bid Response Form by the Bid Response Deadline.

Attachment B – Software as a Service (SaaS) Service Level Agreement (SLA) must be completed and submitted with an offeror’s Bid Response Form by the Bid Response Deadline.

Delivery Address: North Dakota State Hospital, 2605 Circle Drive, Jamestown, ND 58401

Delivery Date Time Required: Within 90 days after CONTRACTOR receives a signed Contract.

Billing Address: North Dakota State Hospital, 2605 Circle Drive, Jamestown, ND 58401

Bidder Prompt Payment Discount, if applicable:

(Discounts not considered in evaluating prices.)

TRADE-IN ALLOWANCE OPTION

Trade-In: Equipment offered as trade-in by the STATE are offered on an “as is” and “where is” basis. No condition or warranty will be implied or expressed. Removal of trade-in equipment will be the responsibility of the Bidder. Payment under the contract is contingent upon the removal of equipment offered by the STATE in trade.

Bidders are instructed to provide a Total Price for the new equipment being offered. Bidders may provide a Trade-In Allowance for the equipment offered by the STATE. The STATE will make a determination whether a Trade-In is in the best interest of the STATE and reserves the right to purchase the new equipment with or without exercising the Trade-In Allowance Option.

Acquisition Date: 6/26/2013 Make/Model: Sysmex XS-1000i Year: 2013 Sample Count: 40269 Specifications: Sysmex hematology analyzer XS-1000i with barcode scanner.

BIDDER INFORMATION AND SIGNATURE

By submitting a Bid Response, the Bidder agrees to sell, furnish, and deliver to the STATE all commodities and services contained in this Invitation for Bid for which a contract is awarded by the STATE. The Bidder shall fully perform the contract in accordance with all the specifications, requirements, terms, and conditions, and shall comply with all applicable provisions of the North Dakota Century Code, including chapters 54-44.4, 46-02, and 44-08, and North Dakota Administrative Code Chapter 4-12, made part of the Invitation for Bid and resultant contract by reference.

Written acceptance of the Bid Response by the STATE constitutes a binding contract made and entered into by and between the State of North Dakota, acting through the Purchasing Agency, and the Bidder named below. Written acceptance may be made by execution of a contract, purchase order, or order using a state purchasing card.

NOTICE. All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties identified herein. Notice provided under this provision does not meet the notice requirements for monetary claims against the STATE found at N.D.C.C. § 3212.204.

Bidder/Contractor Name:

Contractor Federal Employer Identification Number (FEIN)

Bidder Street Address/ P.O. Box:

City, State ZIP:

Contact Name:

Contact Title:

Telephone Number:

Email:

Authorized Representative Signature:

Date:

STATE OF NORTH DAKOTA

BID ACCEPTANCE AND CONTRACT AWARD

The parties to this contract (Contract) are the state of North Dakota, acting through the Purchasing Agency (STATE), and the above-named Bidder (CONTRACTOR). This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of signatures of the parties shall be deemed the Effective Date.

NOTICE. All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties identified herein. Notice provided under this provision does not meet the notice requirements for monetary claims against the STATE found at N.D.C.C. § 3212.204.

Acting through its Purchasing Agency:

BY: (Signature)

Printed Name:

Title:

Date:

SECTION 6

CONTRACT TERMS AND CONDITIONS

1. Scope of Work. CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the commodities and services described in this solicitation.

2. Compensation.

Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed the amount indicated on the Bid Response form (Contractual Amount). The Contractual Amount is firm for the duration of the Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract, unless amended, regardless of the difficulty, materials, or equipment required, including fees, licenses, overhead, profit, and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

4) For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

3. Prepayment. STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

4. Payment of Taxes by State. STATE is not responsible for and will not pay local, state, or federal taxes. STATE will furnish certificates of exemption upon request by the CONTRACTOR.

5. Purchasing Card. STATE may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

6. Termination.

a. Termination for Convenience or by Mutual Agreement This Contract may be terminated by STATE upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest STATE is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

7. Force Majeure. Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God, or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

8. Works for Hire. CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

9. Work Product. All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

10. Cyber Liability and Security Insurance. In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

11. Data Security. Remote access to Data from outside the continental United States, including remote access to Data by authorized support staff in identified support centers, is prohibited. If CONTRACTOR is unable to comply, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

12. Data Processing and Location.

a. CONTRACTOR shall transmit, process, and store STATE Data within the continental United States.

b. CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

13. Confidentiality. CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 4404. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

14. Compliance with Public Records Laws. CONTRACTOR Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request. Public records may include: (a) records STATE receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract. CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to such request.

15. Third-Party Security. CONTRACTOR shall undergo the third-party security questionnaire on an annual basis at no cost to the STATE, unless CONTRACTOR has received FedRAMP, StateRAMP, or HiTrust certification. CONTRACTOR shall provide complete questionnaire within twenty-one (21) calendar days of receiving a written request. CONTRACTOR shall undergo the third-party security questionnaire when a breach has occurred.

16. Independent Entity. CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

17. Indemnity. CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers, and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under North Dakota Century Code § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses, and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

18. Insurance.

a. CONTRACTOR shall secure and keep in force during the term of this Contract and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this Contract, from insurance companies, government self-insurance pools, or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

3) Workers’ compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

4) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

b. The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of CONTRACTOR.

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by STATE. The policies shall be in form and terms approved by STATE.

3) The duty to defend, indemnify, and hold harmless the State under this Contract shall not be limited by the insurance required in this Contract.

4) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights, and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this Contract or by the contractual indemnity obligations of CONTRACTOR.

5) A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

6) CONTRACTOR shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this Contract. All endorsements shall be provided as soon as practicable.

7) Failure to provide insurance as required in this Contract is a material breach of contract entitling State to terminate this Contract immediately.

8) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

19. Assignment and Subcontracts. CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.