LEAD Sample Bottles RFQ~1.pdf

RFQ

STATE OF OREGON

DEPARTMENT OF ENVIRONMENTAL QUALITY (DEQ)

REQUEST FOR QUOTE (RFQ) #S-34000-00001263

Leak Proof Environmental Sampling Containers

SECTION A – GENERAL INFORMATION

The purpose of this Request for Quote (RFQ) is to establish a Contract with the Department of Environmental Quality (DEQ) Laboratory for the purchase of square or rectangular, leak proof high density polyethylene (HDPE) and amber glass sampling containers as described in Section B.

DEQ is requesting square or rectangular, wide mouth high density polyethylene (HDPE) containers because they mitigate the levels of physical stress and strain associated with the repetition, duration and physical bottle handling involved with required work duties. Rectangular or square bottles greatly reduce the stress when placing on or removing lids. The chosen container must have sealing qualities that do not require extreme effort to tighten and open the bottle. The square or rectangular container must also allow the potential use of slotted trays to hold the bottles and allow one hand opening with assistive opening devices.

Containers will be used to collect environmental water quality samples in the field and may be shipped.

Acceptable containers must be leak proof and able to contain water quality samples without cross contamination and/or leakage. These bottles are used to collect water samples in the field and are often shipped back to the DEQ Laboratory in coolers packed with ice. Low level analysis performed on these samples requires the DEQ Laboratory to be completely confident that no leakage during shipment has occurred. DEQ will reserve the right to request sample containers prior to awarding the bid to ensure the container meets all requested criteria.

DEQ intends to purchase approximately 12,000 (250mL) 6,000 (500mL) and 9,000 (1000mL) square or rectangular, leak proof high density polyethylene (HDPE) containers on an annual basis and approximately 6,000 (125mL) and 3,000 (950mL) amber containers on an annual basis. DEQ does not imply or guarantee that any amount will be purchased during the term of any contract resulting from this solicitation.

The initial price agreement term will be for two (2) years during which time the pricing will remain fixed.

If the parties agree, the contract may be extended for additional terms, but the total term shall not exceed five (5) years.

The Mandatory Specifications/Statement of Work; Delivery Requirements and Delivery Schedule for this RFQ are outlined in Section B. The Sample Contract (Attachment 3) contains the terms and conditions that will govern any contract between DEQ and the successful Offeror.

DEQ is issuing this RFQ pursuant to its authority under Oregon Administrative Rule (OAR) 125-246- 0170(2).

1. OregonBuys

This solicitation, including addenda, is posted on the OregonBuys state procurement platform.

OregonBuys provides access to procurement and contracting information issued by the State of Oregon, local governments, and political subdivisions. Offerors that wish to view or download a procurement opportunity need to be registered at https://oregonbuys.gov/bso/view/login/login.xhtml https://oregonbuys.gov/bso/view/login/login.xhtml

2. COBID Participation

Pursuant to Oregon Revised Statute (ORS) Chapter 200, and as a matter of commitment, DEQ encourages the participation of minority, women, and emerging small business enterprises in all contracting opportunities. DEQ also encourages joint ventures or subcontracting with minority, women, and emerging small business enterprises. All businesses that are to be counted as a minority, women, or emerging small business must be registered with the Certification Office of Business Inclusion and Diversity (COBID). For more information please visit http://www.oregon4biz.com/How-We-Can- Help/OMWESB/.

3. Pay Equity Training ORS 279A.167 requires pay equity training requirements for Oregon businesses who bid on public contracts. Businesses with one or more employees must provide proof that they are properly trained on Oregon’s pay equity laws.

To comply, Offeror must complete the State’s online Pay Equity Training and provide proof of completion by submitting a copy of the training certificate with their bid.

Pay Equity Training: https://ilearn.oregon.gov/Default.aspx

To learn more please visit the Department of Administrative Services Pay Equity webpage at https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx

4. Submittal Requirements, Due Date and Questions

Offeror must complete and return Attachment 1 (Cost Submittal Form), Attachment 2 (Offeror Cover Sheet) and a Pay Equity Training Certificate (see Section A, #3) no later than 4:00 PM (PT) November 30th, 2021 to https://oregonbuys.gov/bso/view/login/login.xhtml. Questions and answers can be submitted through the OregonBuys system. The Q & A period ends 4:00 PM (PT) November 25th, 2021.

The solicitation, including all Amendments and attachments, are published in the OregonBuys e-procurement system Solicitation documents will not be mailed to prospective Offerors.

Agency shall advertise all Amendments on OregonBuys e-procurement system. Prospective Offeror is solely responsible for checking OregonBuys to determine whether or not any Amendments have been issued.

Amendments are incorporated into the solicitation by this reference.

All inquiries, whether relating to the solicitation process, administration, deadline or method of award, or to the intent or technical aspects of the solicitation must:

• Reference the OregonBuys bid number

• Identify Offeror’s name and contact information

• Be sent by an authorized representative

• Refer to the specific area of the solicitation being questioned (i.e. page, section and paragraph number);

and

• Be received by the due date and time for Questions/Requests for Clarification identified in the Schedule

Offeror should submit its Offer electronically through OregonBuys. Offeror should follow the procedures outlined in detailed instructions on how to submit an Offer can be found at OregonBuys Vendor Formal Solicitation Response. Offers submitted by any means not authorized may be rejected.

http://www.oregon4biz.com/How-We-Can-Help/OMWESB/ http://www.oregon4biz.com/How-We-Can-Help/OMWESB/ https://ilearn.oregon.gov/Default.aspx https://www.oregon.gov/das/Procurement/Pages/PayEquity.aspx https://oregonbuys.gov/bso/view/login/login.xhtml https://oregonbuys.gov/bso https://oregonbuys.gov/bso

The cost sheet must be submitted as a separate electronic response file.

Offeror shall submit one copy of its Offer and all other submittal requirements, with (Attachment 3, Exhibit D) Offeror Information and Certification Sheet bearing the Offeror’s authorized representative’s Signature, in one of the following formats: Adobe Acrobat (pdf), Microsoft Word (docx), or Microsoft Excel (xlsx).

5. Bid Evaluation and Contractor Selection

To be considered responsive, bids must substantially comply with all requirements of this RFQ and all prescribed public solicitation procedures. Bids that do not comply with the requirements of this RFQ or meet all prescribed solicitation procedures will be deemed non-responsive. In making such evaluation, DEQ may waive minor informalities and irregularities. DEQ will award a Contract to the responsive, responsible Offeror with the lowest price.

6. Brand Name Specifications

Any product brand name listed in the Specifications as "or equal" or "or equivalent" shall establish the minimum requirements for quality, utility, durability, function, purpose, etc. When the brand name is followed by "or equal" or "or equivalent" other product brands be offered that are equal to or better than the minimum requirements established by product brand named. Offeror may show cost differences, alternates and options in the space provided in the RFQ. DEQ Laboratory DETERMINES, IN ITS

SOLE DISCRETION, WHETHER A PRODUCT OFFERED IS "EQUAL.”

7. Attachments

Attachment 1 – Cost Submittal Form Attachment 2 – Bid Cover Sheet Attachment 3 – Sample Contract with the following exhibits

Exhibit A (Statement of Work) Exhibit B (Required Insurance) Exhibit C (Contract Order Document) Exhibit D (Independent Contractor Certification) Exhibit E (Pricelist)

SECTION B – SPECIFICATIONS/STATEMENT OF WORK; DELIVERY REQUIREMENTS;

DELIVERY SCHEDULE; AND ACCEPTANCE CRITERIA

1. Mandatory Specifications

Contractor shall supply containers that meet the following specifications which include, but are not limited to:

a. HPDE Containers must square or rectangular, wide mouth and lead proof:

Item # Description 1 HDPE Square or Rectangular Wide Mouth Container 250mL 2 HDPE Square or Rectangular Wide Mouth Container 500mL 3 HDPE Square or Rectangular Wide Mouth Container 1000mL

i. Containers must be high density polyethylene (HDPE).

ii. Containers must have leak proof lids.

iii. Containers must be a square or rectangular shape.

iv. Containers must have a wide mouth.

v. Containers must be precleaned following USEPA cleaning procedures as stated by OSWER-

9240.0-05A and certified to the specifications in Table 1 by a third party independent laboratory.

The third party certification must be either included with each shipment or supplied to DEQ upon request.

vi. DEQ may request Contractor to ship a large number of containers in quantities up to 20 cases that have been manufactured in a single production run (lot).

Table 1: Clean Bottle Specifications for all HDPE Containers Analyte Limit of Quantitation

(LOQ) ug/L Analyte Limit of Quantitation

(LOQ) ug/L Aluminum <0.5 Magnesium <4 Antimony <0.03 Manganese <0.1 Arsenic <0.01 Mercury <0.2 Barium <0.03 Molybdenum <0.5 Beryllium <0.01 Nickel <0.05 Cadmium <0.03 Nitrate + Nitrite <50 Chromium <0.06 Potassium <50 Copper <0.08 Selenium <0.5 Fluoride <100 Silver <0.02 Iron <3 Sodium <6 Lead <0.05 Thallium <0.09 Zinc <0.3

b. Amber glass containers must meet the following requirements:

1 Amber Glass Container, 125mL 2 Amber Glass Wide Mouth Container, 950mL

i. 950mL containers must have a wide mouth with solid-top caps with fluoropolymer resin liner.

ii. Containers must be amber glass with soda-lime glass fabrication.

iii. 950mL containers must follow USEPA cleaning procedures listed in the OSWER

Directive 9240.0-05A "Specifications and Guidance for Contaminant-Free Sample Containers." and certified to the specifications in Table 2 by a third party independent laboratory and provided with bottles in each shipment

Table 2: Clean Bottle Specifications for 950mL Amber Glass (minimum) Analyte Limit of Quantitation

(LOQ) ug/L Analyte Limit of Quantitation

(LOQ) ug/L Acenapthalene <5 Phenol <5 Benzo(a)pyrene <5 Endosulfan I <0.01 Diethyl phthalate <5 Endosulfan II <0.02 Dimethyl phthalate <5 Endosulfan sulfate <0.02 Di-n-butyl phthalate <5 Endrin <0.02 Di-n-octyl phthalate <5 Toxaphene <0.3 Pentachlorophenol <20

iv. 125mL containers must meet USEPA Specifications and Guidance for Contaminant-Free Sample Containers and certified to the specifications in Table 3 by a third party independent laboratory and provided with bottles in each shipment.

Table 3: Clean Bottle Specifications for 125mL Amber Glass (minimum)

(LOQ) ug/L Analyte Limit of Quantitation

(LOQ) ug/L Acenaphthene <5 Di-n-butyl phthalate <5 Butylbenzylphthalate <5 Di-n-octyl phthalate <5 Benzo(a)anthracene <5 Dimethyl phthalate <5 Benzo(a)pyrene <5 Endosulfan II <0.02 BHC –Gamma <0.01 Heptachlor Epoxide <0.01 Butylbenzyl phthalate <5 Phenanthrene <5 Carbazole <5 Phenol <5 Chlordane - Gamma <0.01 Pentachlorophenol <20

v. Containers must be supplied with fluoropolymer resin-lined caps attached.

vi. DEQ may request Contractor to ship a large number of containers in quantities up to 50 cases that have been manufactured in a single production run (lot).

2. Ordering Process

a. DEQ will place orders for Goods by submitting a signed Contract Order Document (Attachment 3, Exhibit C) via email to the Contractor.

b. DEQ may modify the Contract Order Document as internal changes and need arises, but the ordering process elements will remain the same.

3. Delivery Requirements

Unless otherwise requested by DEQ Laboratory at time of order, Contractor shall deliver goods to:

Oregon Department of Environmental Quality - LEAD 7202 NE Evergreen Parkway, Suite #150 Hillsboro, OR 97124

Attn: [name of person who placed order]

a. Contractor must deliver orders to the DEQ laboratory no later than 14 business days after receipt of the Contract Order Document.

b. Contractor must ship all orders using a common carrier (i.e. UPS or FedEx).

c. Contractor must ship all orders FOB destination.

d. Contractor shall provide DEQ Laboratory contact with notification of when goods are shipped and courier tracking numbers.

4. Quality Control Acceptance Criteria

The DEQ laboratory will perform testing on an initial containers specified by their distinct lot numbers to confirm Table 1: Clean Bottle Specifications criteria is met. If containers do not meet specified criteria, Contractor will pay for shipping and supplying a refund for returned containers or provide replacement containers of a new lot if DEQ requires. If repeated failures occur on three (3) or more lot numbers, Contractor will be considered in breach of contract. The DEQ laboratory may perform testing on subsequent shipments to confirm Table 1: Clean Bottle Specifications criteria is met.

5. Acceptance of Goods

DEQ Laboratory shall have ten (10) business days from the date of delivery to inspect goods and accept or reject goods. Rejection of goods may include but is not limited to damage during transport from Contractor to DEQ Laboratory and any unsealed sampler containment canisters. DEQ Laboratory shall provide written details to Contractor immediately upon discovery of damaged or otherwise compromised goods that cause goods to be unsuitable for intended use. Contractor shall ship replacement goods within ten (10) business days at no additional cost to DEQ Laboratory. The damaged goods will be returned to the Contractor at their expense.

6. Price Change - Goods/Services

Contractor may submit requests for unit price change only during contract extension periods.

Contractor may request cost adjustments for the goods and services reflecting operating and raw material cost changes ("Production Costs") for an Extension Term by submitting a written request with supporting information to substantiate cost changes to DEQ Laboratory, within the period specified in the Renewal Notice. If approved, the price change shall be firm for the duration of the Extension Term, provided, however, that no more than one unit price change shall be allowed during any Contract period. Contractor agrees to hold prices firm on the goods and services listed below for the initial two (2) year term of the Contract.

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ATTACHMENT 1

COST SUBMITTAL FORM

Offeror must provide pricing and requested information. Failure to provide complete information may result in disqualification. DEQ will use the following three tables below to determine the lowest price Bid. Table 3 includes an estimated total of number of containers used on an annual basis. Offeror is to carry down pricing from Table 1 and Table 2 and calculate what the annual cost would be for those items. The Offeror with the lowest total annual costs will be awarded the contract. This is a single award opportunity.

The initial price agreement term will be for two (2) years during which time the pricing will remain fixed.

DEQ may request sample containers from Offeror during bid evaluation process.

A. Container Pricing

Offeror must provide prices for square or rectangular, wide mouth, HPDE containers and amber glass containers that meet the specifications described in Section 1: Mandatory Specifications. If Offeror is submitting an “or equivalent” product, attach additional sheet(s) to describe the specifications and features that make the container equivalent to the specified product.

Offeror must provide all information requested in Table 1, 2 and 3 below. Shipping cost must be included in price per case.

Manufacturer (Required): __________________________

Table 1 (Required): Square or Rectangular, Wide Mouth, HPDE Container Pricing Container

Size Part # Quantity per Case Price per

Case Quantity Discount, if applicable # of Cases Price per Case

250 mL _________ Containers $ $

500 mL _________ Containers $ $

1000 mL _________ Containers $ $

Manufacturer (Required): __________________________

Table 2 (Required): Amber Glass Container Pricing Container

Size Part # Quantity per Case Price per

Case Quantity Discount, if applicable # of Cases Price per Case

125 mL _________ Containers $ $

950 mL _________ Containers $ $

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Table 3 (Required): Estimated Annual Purchase Container

Size Part # Estimated Quantities per Year Price per Case

Quantity Discount, if applicable

# of Cases Price per Case 250 mL 12,000 Containers $ $

500 mL 6,000 Containers $ $

1000 mL 9,000 Containers $ $

125 mL 6,000 Containers $ $

950 mL 3,000 Containers $ $

Estimated Annual Total

B. Other Charges/Fees

Offeror must provide cost for any other charges/fee (handling, minimum order, surcharges, etc.) that will be billed to DEQ. Only costs listed below will be allowed as part of the contract.

Contractor will not invoice for any other charges/fees.

Contractor’s invoice may include:

Table 6 (Required): Other Charges/Fees

Description of charge/fee Cost Requested Expedited shipping via common carrier (UPS or FedEx) $

TOTAL $ ____________

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ATTACHMENT 2

BID COVER SHEET

PART 1 – GENERAL INFORMATION

RFQ #: __________________

Organization Name (tax filing): ___________________________________________________________

Primary Contact: __________________________________ Title: ________________________________ (Print Name)

Street Address: ____________________________________ City, State, Zip: ________________________

Telephone: _______________________ E-mail Address: ________________________________________

ORPIN #: _______________________ (Contractor Only) Oregon Business ID#: __________________

COBID #: _____________________ (Contractor Only: If certified by the Certification Office of Business Inclusion and Diversity (COBID) as a Disadvantaged Business Enterprise, Minority Business Enterprise/Women Business Enterprise, or Emerging Small Business.)

Delivery Method. Please check the applicable box below. If Offeror is using a common carrier to deliver the goods identified in the RFP or subcontractor any part of the work Offeror must provide company information for each subcontractor with the Bid. Offeror must state whether or not the subcontractor is registered with the Oregon Office of Minority, Women’s and Emerging Small Business Enterprises and provide the certification number.

□ My company will be shipping the goods by common carrier.

□ My company will be shipping the goods using our company fleet and understand I must meet the insurance types and limits and provide proof of insurance as outlined in Attachment 2 Part IV upon request.

Provide below the name and title of the person(s) authorized to sign any Contract that may result.

Authorized Representative: _______________________________________________________________ (Print Name) Title

Authorized Signer(s): _____________________________________________________________________ (Print Name) Title

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PART II – REPRESENTATIONS, ATTESTATIONS, AND CERTIFICATIONS: The undersigned further acknowledges, attests and certifies individually and on behalf of the Offeror that:

1. No attempt has been made or shall be made by the Offeror to induce any other person or organization to submit or not submit a Bid.

2. Information and prices included in this Bid shall remain valid for sixty (60) days after the bid due date or until a Contract is approved, whichever comes first.

3. The Offeror understands that all Bids not withdrawn prior to the RFQ Close Date become the property of the State of Oregon as of the Bid due date and Offeror grants the State the right to use all information contained therein.

4. The Offeror acknowledges receipt of all Addenda issued under the RFQ.

5. Offeror does not discriminate in its employment practices with regard to race, creed, age, religious affiliation, sex, disability, sexual orientation or national origin, nor has Offeror or will Offeror discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women or emerging small business enterprise certified under ORS 200.055.

6. The Offeror, acting through its authorized representative, has read and understands all RFQ instructions, specifications, and terms and conditions contained within the RFQ, including those in the Sample Contract.

7. The Offeror agrees to and shall comply with, all requirements, specifications and terms and conditions contained within the RFQ, including all Addenda, if any.

8. The Bid submitted is in response to the specific language contained in the RFQ, and Offeror has made no assumptions based upon either (a) verbal or written statements not contained in the RFQ, or

(b) any previously-issued RFQ, if any.

9. The Offeror agrees that if awarded the Contract, Offeror shall be authorized to do business in the

State of Oregon at the time of the award.

10. DEQ Laboratory shall not be liable for any claims or be subject to any defenses asserted by Offeror based upon, resulting from, or related to, Offeror’s failure to comprehend all requirements of the

RFQ.

11. The DEQ Laboratory shall not be liable for any expenses incurred by Offeror in either preparing or submitting its Bid, or in participating in any evaluation/selection process, if any.

12. Offerors shall use recyclable products to the maximum extent economically feasible in the performance of the Contract and of the Work set forth in this document.

13. Offeror, acting through its authorized representative, has knowledge regarding Contractor’s payment of taxes, and to the best of Offerors knowledge the Contractor is not in violation of any Oregon tax laws, including, without limitation, ORS 305.620 and ORS chapters 316, 317 and 318. Offeror understands and agrees to provide written notice to DEQ Laboratory within two business days of any change to the Offeror’s status of tax law compliance.

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PART III – OFFICE OF FOREIGN ASSETS CONTROL AND US DEPARTMENT OF STATE:

Offeror and Offeror’s employees and agents are not included on:

a. The list entitled “Specialty Designated Nationals and Blocked Persons” maintained by the Office of Foreign Assets Control of the United States Department of the Treasury and currently found at https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx or

b. The list entitled “Current List of Designated Foreign Terrorist Organizations of the US Department of State” and currently found at https://www.state.gov/j/ct/rls/other/des/123085.htm

Part IV – INSURANCE REQUIREMENTS: Offeror agrees to meet the insurance requirements outlined below that will be included as a part of any Contract issued in response to this RFQ. Refer to Attachment 3 Exhibit B for requirements.

PART V – SIGNATURE: The signatory of this Offeror Cover sheet is a duly authorized representative of the Offeror, has been authorized by Offeror to make all a representations, attestations, and certifications contained in this bid document and all Addenda, if any, issued, and to execute this Bid document on behalf of Offeror.

By signature below, the undersigned Authorized Representative hereby certifies on behalf of Offeror that all contents of this Offeror Cover sheet and the submitted Bid are truthful, complete and accurate. The undersigned Authorized Representative further agrees to have knowledge regarding Offeror’s payment of taxes, and to the best of the Authorized Representative’s knowledge, Offeror is not in violation of any change to the Offeror’s status of tax law compliance. Failure to provide information required by the RFQ may ultimately result in rejection of the Bid.

THIS COVER PAGE MAY NOT BE ALTERED. THIS COVER PAGE MUST BE SIGNED IN

BLUE OR BLACK INK BY AN AUTHORIZED REPRESENTATIVE OF THE OFFEROR.

Authorized Signature: ___________________________________________________________________

Print Name: ______________________________________________________________________

Title: ______________________________________________________________________ https://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx https://www.state.gov/j/ct/rls/other/des/123085.htm

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ATTACHMENT 3

SAMPLE CONTRACT

State of Oregon

Contract for Services

Square or rectangular, wide mouth, leak proof HDPE and amber glass sampling containers

This Contract for Services (this “Contract”) is by and between the State of Oregon, acting through its Department of Environmental Quality, (“Agency”) and ________, a [_______][doing business as _____] (“Contractor”) and is effective as of the Effective Date.

Contractor’s Contract Administrator for this Contract is:

Name and Title **Address **City, State ZIP Phone: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx anyname@yahoo.com

Agency's Contract Administrator for this Contract is:

Sarah Rockwell, Laboratory Data Coordinator Department of Environmental Quality-LEAD 7202 NE Evergreen Pkwy, Suite 150 Hillsboro, OR 97124 Phone: (971) 323-7232 sarah.rockwell@deq.state.or.us

Either party may change its Contract Administrator by providing the other notice in compliance with Section 17.6 of this Contract.

1. Contract Term.

The “Effective Date” of this Contract is the date this Contract has been fully executed by each party and, approved as required by applicable law. Unless extended or terminated earlier in accordance with its terms, this Contract terminates on _____. If all parties agree, the Contract may be extended for additional terms (“Extension Terms”), but the total term shall not exceed five (5) years. The termination of this Contract will not extinguish or prejudice Agency’s right to enforce this Contract with respect to any default by Contractor that has not been cured.

2. Contract Documents. This Contract consists of the following documents, which are listed in descending order of precedence:

2.1. this Contract less all exhibits;

2.2. Exhibit A (Statement of Work);

2.3. Exhibit B (Required Insurance), and

2.4. Exhibit C (Contract Order Document)

mailto:anyname@yahoo.com mailto:sarah.rockwell@deq.state.or.us

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2.5. Exhibit D (Independent Contractor Certification)

2.6. Exhibit E (Pricelist)

The foregoing documents and Exhibits are attached hereto and made a part of the Contract by this reference.

3. Services.

3.1. Performance of Services. Contractor shall perform the services (the “Services”) and deliver to agency the deliverables (“Deliverables”) set forth in Exhibit A, the Statement of Work (the “Statement of Work”). The Statement of Work includes the delivery schedule for the Deliverables and Services. Contractor shall perform the Services in accordance with the terms and conditions of this Contract.

3.2. Submission and Acceptance of Deliverables. When the Statement of Work requires Contractor to deliver Deliverables to Agency, then Contractor shall deliver Deliverables that comply with the requirements and acceptance criteria set forth in the Statement of Work. Contractor shall provide written notice to Agency upon delivery of a completed Deliverables to Agency. By no later than (i) 10 business days after receipt of such notice, or (ii) the date or period for review set forth in the Statement of Work, Agency will determine whether the Deliverables has the characteristics and otherwise meets the acceptance criteria set forth in the Statement of Work. If Agency determines that the Deliverables has the characteristics and meets acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s acceptance of the Deliverables.

3.3. Rejection of Deliverables; Corrections. If Agency determines that a Deliverables does not have the characteristics or otherwise meet the acceptance criteria set forth in the Statement of Work in all material respects, Agency will notify Contractor in writing of Agency’s rejection of the Deliverables, and describe in reasonable detail in such notice the Agency’s basis for rejection of the Deliverables. Upon receipt of notice of non-acceptance, Contractor shall, within a 10 business day period, modify or improve the Deliverables at Contractor’s sole expense so that the Deliverables has the characteristics described in the Statement of Work and meets, in all material respects, the acceptance criteria, and notify the Agency in writing that it has completed such modifications or improvements and re-tender the Deliverables to Agency. Agency will thereafter review the modified or improved Deliverables within 10 business days of receipt of the Contractor's delivery of the Deliverables. Failure of the Deliverables to have the characteristics or meet in all material respects the acceptance criteria set forth in the Statement of Work after the second submission will constitute a default by Contractor. In the event of such default, Agency may either, (i) notify Contractor of such default and instruct Contractor to modify or improve the Deliverables as set forth in this Section, or (ii) notify Contractor of such default and pursue its remedies for default provided for by law or the terms of this Contract.

4. Compensation.

4.1. Not to Exceed Compensation. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $125,000. Agency will not pay Contractor any amount in excess of the not-to-exceed compensation of this Contract, and will not pay for Services performed before the Effective Date or after the expiration or termination of this Contract. If the maximum compensation is increased by amendment of this Contract, the amendment must be fully effective before Contractor performs Services subject to the amendment.

4.2. Payments. Payments, including interim payments, to Contractor are subject to ORS 293.462, will be made only for completed and accepted Deliverables and Services, and will be made in accordance with the payment schedule and requirements set forth in Exhibit A.

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4.3. Invoices. Contractor shall submit invoices to Agency as set forth in the Statement of Work or, if not set forth therein, to Agency’s Contract Administrator. Contractor may submit invoices in accordance with the payment schedule set forth in the Statement of Work or, if no payment schedule is set forth therein, then no more frequently than once per month for accepted Deliverables and Services The invoices must describe all Services performed with particularity, including the dates Contractor performed the Services for which it is requesting payment, and by whom the Services were performed and shall itemize and explain all expenses that this Contract requires Agency to pay and for which Contractor claims reimbursement. [OPTIONAL: Each invoice must also include the total amount invoiced to date by Contractor prior to the current invoice.

Contractor will specifically note in the appropriate invoice when it has requested payment for one-third and two-thirds of the maximum, not-to-exceed compensation.]

4.4. Expenses. Agency will not pay or reimburse any expenses incurred by Contractor during the completion of the Services except as authorized in the Statement Work or elsewhere in this Contract. Any such authorized travel expenses must comply with the Oregon Travel Policy available on the Internet at:

http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

4.5. Funds Available and Authorized. Contractor will not be compensated for Services performed under this Contract by any agency or department of the State of Oregon other than Agency. Agency believes it has sufficient funds currently available and authorized for expenditure to make payments under this Contract within Agency’s biennial appropriation or limitation. Contractor understands and agrees that Agency’s payments under this Contract are contingent on Agency receiving appropriations, limitations, or other expenditure authority sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Contract.

5. Contractor’s Personnel.

5.1. Key Persons. Contractor acknowledges and agrees that Agency selected Contractor, and is entering into this Contract, because of the special qualifications of Contractor's key persons identified in the Statement of Work (each a “Key Person” and, together, “Key Persons”). Neither Contractor nor a Key Person may delegate performance of the powers and responsibilities that a Key Person is required to provide under this Contract to another Contractor employee, subcontractor or agent without first obtaining the written consent of Agency. Further, Contractor may not re-assign or transfer a Key Person to other duties or positions such that the Key Person is no longer available to provide the Agency with the required expertise, experience, judgment, and personal attention, without first obtaining Agency's written consent to such re-assignment or transfer, which Agency will not unreasonably withhold or delay. Notwithstanding the foregoing, Contractor may replace a Key Person in the event the Key Person is no longer available due to circumstances beyond Contractor’s reasonable control, such as death, illness, or termination of employment with Contractor. In the event Contractor requests that Agency approve a re-assignment or transfer of a Key Person, or if Contractor must replace a Key Person, Agency may interview, review the qualifications of, and approve or reject the proposed replacement for the Key Person. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by Agency in writing (email acceptable) will thereafter be deemed a Key Person for purposes of this Contract, and the Statement of Work will be deemed amended to include such Key Person.

5.2. Payment for Replacement Key Personnel. If Agency is paying Contractor on an hourly or other periodic basis, then Contractor will not charge Agency, and Agency will not pay, for a replacement Key Person while such replacement acquires the project knowledge and skills necessary to perform the Services. Such period of non-charge will be agreed upon by the parties.

http://www.oregon.gov/das/cfo/sars/policies/oam/40.10.00.pdf

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5.3. State Premises. Contractor and Contractor staff shall comply with all policies, rules, procedures, and regulations established by Agency and the State for access to and activities in and around premises controlled by Agency or any other agency of the State.

6. Independent Contractor; Responsibility For Taxes And Withholding

6.1. Independent Contractor. Contractor shall perform all Services as an independent contractor. Agency reserves the right (i) to determine and modify the delivery schedule for the Services and (ii) to evaluate the quality of the Services; however, Agency may not and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing the Services.

6.2. No Conflicts. Contractor, by signature to this Contract, represents and warrants that Contractor’s performance of the Services under this Contract creates no potential or actual conflict of interest as defined by ORS 244; and no statutes, rules or regulations of any State of Oregon or federal agency for which Contractor currently performs work would prohibit Contractor from performing the Services under this Contract.

6.3. Affiliation. Contractor understands and agrees that it is not an "officer," "employee," or "agent" of the State of Oregon, as those terms are used in ORS 30.265 or otherwise.

6.4. Taxes and Benefits. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Contract and, unless required by applicable law, Agency will not withhold from such compensation or payments any amount to cover Contractor's federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract, except as a self-employed individual.

7. Subcontracts, Successors, And Assignments

7.1. Subcontracts. Contractor shall not enter into any subcontracts for any of the Services required by this Contract without Agency's prior written consent. In addition to any other provisions Agency may require, Contractor shall include in any permitted subcontract under this Contract provisions to ensure that Agency will receive the benefit of subcontractor’s performance as if the subcontractor were Contractor. Agency’s consent to any subcontract does not relieve Contractor of any of its duties or obligations under this Contract.

7.2. Successors and Assigns. The provisions of this Contract are binding upon and inure to the benefit of the parties to this Contract, their respective successors, and permitted assigns, if any.

7.3. No Assignment. Contractor shall not assign or transfer any of its rights or delegate its obligations under this Contract without Agency’s prior written consent.

8. Representations and Warranties.

8.1. Contractor’s General Representations and Warranties. Contractor represents and warrants to Agency that:

8.1.1. Contractor has the power and authority to enter into and perform this Contract;

8.1.2. This Contract, when executed and delivered, is a valid and binding obligation of Contractor enforceable in accordance with its terms;

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8.1.3. Contractor shall, at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to perform the Services;

8.1.4. Contractor prepared its proposal related to this Contract, if any, independently from all other proposers, and without collusion, fraud, or other dishonesty; and

8.1.5. Contractor (to the best of Contractor’s knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the Effective Date, faithfully has complied with:

8.1.5.1. All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318;

8.1.5.2. Any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor;

8.1.5.3. Any tax provisions imposed by a political subdivision of this State that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor;

8.1.5.4. Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; and

8.1.6. Contractor has no undisclosed liquidated and delinquent debt owed to the State or any department or agency of the State.

8.2. Contractor’s Performance Warranties.

8.2.1. Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor shall apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with the highest standards prevalent in Contractor’s industry, trade or profession;

8.2.2. The Services and each Deliverables delivered by Contractor pursuant to the Services will materially comply with any service descriptions, specifications, standards or requirements set forth in this Contract;

8.2.3. Except as otherwise provided in this Contract (including Section 9), Contractor shall transfer all Deliverables to Agency free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind; and

8.2.4. Except as otherwise set forth in this Contract, any subcontractors performing work for Contractor under this Contract have assigned all of their rights in the Deliverables to Contractor or Agency and no third party has any right, title or interest in any Deliverables supplied to Agency under this Contract.

8.3. Warranties cumulative. The warranties set forth in Section 8 are in addition to, and not in lieu of, any other warranties set forth elsewhere in this Contract.

9. Ownership of Work Product.

9.1. Definitions. As used in this Section 9, and elsewhere in this Contract, the following terms have the meanings set forth below:

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9.1.1. “Contractor Intellectual Property” means any intellectual property owned by Contractor and developed independently from the Services.

9.1.2. “Third Party Intellectual Property” means any intellectual property owned by parties other than Agency or Contractor.

9.1.3. “Work Product” means everything that is originally made, conceived, discovered, or reduced to practice by Contractor or Contractor’s subcontractors or agents (either alone or with others) pursuant to this Contract, including every invention, modification, discovery, design, development, customization, configuration, improvement, process, work of authorship, documentation, formula, datum, technique, know how, secret, or intellectual property right whatsoever or any interest therein (whether patentable or not patentable or registerable under copyright or similar statutes or subject to analogous protection).

9.2. Original Works. All Work Product created by Contractor pursuant to the Services, including derivative works and compilations of Work Product, and whether or not such Work Product is considered a work made for hire or an employment to invent, is the exclusive property of Agency. Agency and Contractor agree that such Work Product is “work made for hire” of which Agency is the author within the meaning of the United States Copyright Act. If for any reason the Work Product is not “work made for hire,” Contractor hereby irrevocably assigns to Agency any and all of its rights, title, and interest in all Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine.

Upon Agency’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in Agency. Contractor forever waives any and all rights relating to Work Product, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

9.3. License in Contractor Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Contractor Intellectual Property, or is a compilation that includes Contractor Intellectual Property, Contractor hereby grants to Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Contractor Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

9.4. License in Third Party Intellectual Property. In the event that a Deliverables delivered by Contractor under this Contract is or is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, Contractor shall secure on the Agency’s behalf and in the name of the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Deliverables, and to authorize others to do the same on Agency’s behalf.

9.5. No Rights. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Contractor any right, title, or interest in any intellectual property that is now owned or subsequently owned by Agency. Except as expressly set forth in this Contract, nothing in this Contract may be construed as granting to or conferring upon Agency any right, title, or interest in any Contractor Intellectual Property that is now owned or subsequently owned by Contractor.

9.6. Marks. Neither party grants the other the right to use its trademarks, trade names, service marks or other designations in any promotion or publication without prior written consent. Each party grants only the licenses and rights specified in this Contract.

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9.7. Competing Services. Subject to the provisions of this Section 9, and Contractor’s obligations with respect to Confidential Information, including as defined in Section 10, nothing in this Contract precludes or limits in any way the right of Contractor to: (i) provide services similar to those contemplated in this Contract, or consulting or other services of any kind or nature whatsoever to any individual or entity as Contractor in its sole discretion deems appropriate, or (ii) develop for Contractor or for others, Deliverables or other materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables delivered pursuant to this Contract. Each party is free to utilize any concepts, processes, know-how, techniques, improvements or other methods it may develop during the course of performance under this Contract free of any use restriction or payment obligation to the other.

10. Confidential Information.

10.1. Confidential Information. Contractor acknowledges that it and its employees, officers, directors, agents or subcontractors (collectively, “Contractor Staff”) may, in the course of performing the Services under this Contract, be exposed to or acquire information that is confidential to Agency or Agency’s clients.

Any and all information of any form (including but not limited to records, files, papers, materials, documents, and communications in written, verbal, oral and electronic form) that Contractor or any Contractor Staff may come into contact with or that is obtained by Contractor or Contractor Staff in the performance of this Contract shall be considered for the purposes of this Contract the confidential information of Agency (“Confidential Information”). Contractor shall, and shall cause Contractor Staff to treat any reports or other documents or items (including software) that result from the use of the Confidential Information in the same manner as the Confidential Information. Confidential Information does not include information that (i) is or becomes (other than by disclosure by Contractor or Contractor Staff acquiring such information) publicly known or is contained in a publicly available document except to the extent applicable law still restricts disclosure; (ii) is furnished by Agency to others without restrictions similar to those imposed by this Contract;

(iii) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Contract; (iv) is obtained from a source other than Agency without the obligation of confidentiality, (v) is disclosed with the written consent of Agency, or; (vi) is independently developed by Contractor or Contractor Staff who can be shown to have had no access to the Confidential Information.

10.2. Non-Disclosure. Contractor shall hold, and shall cause Contractor Staff to hold, all Confidential Information in confidence, using the highest standard of care applicable, and shall not copy, reproduce, sell, assign, license, market, transfer, distribute, or otherwise dispose of, give, make available or disclose, in whole or in part, directly or indirectly, Confidential Information to third parties (other than its authorized subcontractors), or use Confidential Information for any purposes whatsoever other than the provision of Services to Agency hereunder, and shall advise Contractor Staff of their obligations to keep Confidential Information confidential. Contractor shall assist Agency in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contractor shall advise Agency immediately in the event Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract, and Contractor will at its expense cooperate with Agency in seeking injunctive or other equitable relief in the name of Agency or Contractor against any such person. Contractor shall not at any time during or after the term of this Contract, except as directed by Agency, disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Contract. Upon expiration or termination of this Contract or at Agency’s request, Contractor shall deliver to Agency all documents, papers, and other matter in Contractor's possession that embody Confidential Information. Notwithstanding the foregoing and unless otherwise specified in this Contract, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of performance of the Services.

10.3. Confidentiality Policies. Contractor shall, upon Agency’s request, provide its policies and procedures for safeguarding Confidential…