NCSA_Heavy_Equipment_T&C_2.9.24_FINAL.pdf

2.9.2024

North Carolina Sheriffs’ Association Heavy Equipment

Procurement Program

Solicitation for Bids and Contract Terms and Conditions

Post Office Box 20049

Raleigh, North Carolina 27619

Main Number – 919-743-7433

Facsimile – 919-783-5272

Contact:

Jason Bennett

Director - Business Development

919-459-8195 jbennett@ncsheriffs.net

Kaylyn Mitman

Cooperative Bid Coordinator

919-459-6471 kmitman@ncsheriffs.net

North Carolina Sheriffs’ Association Heavy Equipment Procurement Program – Solicitation for Bids and Contract Terms and Conditions

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Section I

Pre-Bid Procedures

1.0 PURPOSE

The North Carolina Sheriffs’ Association (NCSA) invites interested vendors, including Dealers/Certified Representatives to submit responses in accordance with these solicitation documents. The NCSA will serve as the “Contract

Administrator” in the solicitation process and the administration of the resulting contract. The purpose of this solicitation for Bids is to establish a contract with manufacturer’s authorized dealers for the purpose of providing current model year Heavy Equipment on a “no trade-in basis.”

Trade-ins are not addressed in this contract. If a Customer has a desire to offer Heavy Equipment for trade to the dealer, the Customer and dealer or

Contractor may do so at their sole discretion, separate and apart from this contract.

1.1 DEFINITIONS

The following terms are defined as the follows:

a) Heavy Equipment Procurement Program (HEPP) – A program managed by the NCSA for the purpose of providing public procurement of quality goods to support effective and efficient government ensuring the prudent use of public funds. The primary goals of the HEPP are:

• Providing efficient delivery of products and services;

• Obtaining best value through competition;

• Offering fair and equitable competitive contracting opportunities for suppliers; and

• Maintaining public confidence through ethical and transparent procurement practices.

b) Contract Administrator – The NCSA employee who is responsible for administering the contract solicitations and administration process for the

Heavy Equipment Procurement Program.

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c) Cooperative Bid Coordinator – The NCSA employee who is responsible for the day to day operations of the Heavy Equipment Procurement

Program.

d) Contractor – The Bidder that has been awarded a contract and agrees to sell Heavy Equipment under the requirements, specifications and terms and conditions of this agreement, to eligible Customers, as defined herein.

e) Customer – An eligible Customer as defined in Section 1.2.

f) Bid – A competitive Bid procedure initiated through the issuance of a solicitation for Bids. The term “Bid” as used herein, shall not include request for proposals, request for qualifications, request for letters of interest, or the solicitation of purchase orders based on oral or written quotations.

g) Bid Title – The Bid title consists of the Bid number assigned to each contract term by the NCSA.

h) Bidder – The entity that submits a Bid and documentation to the NCSA

Contract Administrator in accordance with the terms and conditions contained herein.

i) Draft Bid Package – A list of equipment provided to dealers that contains all Bid-eligible Heavy Equipment makes and models during the existing contract term.

j) Factory – The manufacturer or assembly line for Heavy Equipment.

k) Dealer Option – A product or service provided by the dealer or third party but not the factory.

l) Add Option – A product or service provided by the Heavy Equipment manufacturer.

m) Fleet Final Order Date – The model year cutoff date by which Heavy

Equipment must be ordered as set forth by the manufacturer.

n) SubContractor or 3rd Party – An individual or business that contracts to perform part or the entirety of another individual or business’s contract.

o) MSRP – The manufacturer’s suggested retail price, which represents the manufacturer’s recommended retail selling price, list price, published price, or other usual and customary price that would be paid by the pricer.

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p) Total Recognized MSRP – Occurs when an NCSA requested option does not exist on the base model of the piece of Heavy Equipment as a free flow option contained in the manufacturer’s order guide. This MSRP is generated by the creation of a new model that includes the requested

NCSA option content. The Total Recognized MSRP is calculated as the differential between the dealer costs on the representative base piece of equipment versus total MSRP of the requested NCSA option modifying the piece of heavy equipment.

q) VendorLink – Online bid system the NCSA uses for bid submissions. All bid submissions are required to include a build sheet and option sheet per piece of equipment submitted for bid. Every bidder is also required to submit their procurement documents to the VendorLink system.

1.2 ELIGIBLE CUSTOMERS OF HEPP

The HEPP is available to any and all units of local governments/political subdivisions including, but not limited to, county, local county board of public instruction, municipalities, other local public or public safety agencies or authorities, and any private university and college.

The HEPP is available to any and all units of local government/political subdivisions inside and outside the state of North Carolina.

All Customers are bound by their individual governing purchasing ordinances, rules and regulations. All Contractor’s and Bidders are governed by their manufacturer’s agreement. See also Section 1.4 FUNDING.

1.3 TERM OF CONTRACT

If awarded, a contract shall remain in effect until the next official NCSA contract is awarded. A contract may be renewed by mutual agreement between the

NCSA and the Contractor, at the sole option and discretion of the NCSA, for up to two additional consecutive years, on a year to year basis.

Contract extensions will only be executed when conditions indicate it is in the best interest of the NCSA and the Customers.

In the event that the NCSA submits a request for a bid submission from interested dealerships the term of each qualified, submitted submission shall remain in effect until the next official contract award has been released by the

NCSA.

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In the event that a contract is continued beyond the term provided by mutual consent the contract shall be carried out on a month-to-month basis only and shall not constitute an implied renewal of the contract. Said month to month extension shall be upon the same terms of the contract and at the compensation and payment provided herein.

1.4 FUNDING

Funds expended to a Contractor by a Customer pursuant to this contract must be allocated by the individual Customer for each fiscal year included within the contract period. Therefore, the contract shall automatically terminate without penalty if such funds are not allocated.

1.5 COMMUNICATIONS

Communications between a Bidder, it’s representative(s) and NCSA are limited to matters of process or procedure. Requests for additional information or clarifications must be made in writing to the NCSA Contract Administrator no later than five (5) calendar days prior to the scheduled Bid opening date.

During this solicitation for Bids period, all questions/communication will only be accepted in writing made directly to the NCSA Contract Administrator. All questions and communications, and their associated responses will be posted to the NCSA Procurement website.

The NCSA will issue replies to inquiries and any other corrections or amendments it deems necessary in written addenda issued prior to the deadline for submitting a Bid.

Bidders should not rely on representations, statements, or explanations other than those made in this solicitation for Bids or in any written addendum to this

Bid. Bidders should verify with the NCSA Contract Administrator prior to submitting a Bid that all addenda have been received.

1.6 REFERENCES

If requested by the NCSA, Bidders shall furnish the names, addresses, and telephone numbers on company letterhead of a minimum of five (5) firms or government organizations for which the Bidder is currently providing or has provided similar services. Two (2) of the references must be government related.

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A Bidder participating for the first time in government fleet sales/Bidding may be considered exempt from this requirement if they can demonstrate to the satisfaction of the NCSA Contract Administrator that they have the appropriate facility, staffing, and financial resources to support the contract should they receive an award. See Section 1.7 Bidder Qualifications.

All references must be received by the NCSA no later than five (5) business days from the deadline to submit electronic Bids.

1.7 BIDDER QUALIFICATIONS

In order for VendorLink submissions to be considered, new Bidders to the

NCSA’s Heavy Equipment Procurement Program must submit with their bid submissions, evidence that they are qualified to satisfactorily perform the specified service. Evidence shall include all information necessary to certify that the Bidder maintains a permanent place of business; is an authorized distributor of the items specified in their proposal; has not had sustained claims filed against the Bidder or the Bidder’s firm; and has provided similar type products or services previously. The evidence also will consist of listings of contracts for similar products or services that have been provided to public and private sector clients within the last three (3) years, and letter(s) from the manufacturer that the

Bidder is an authorized distributor for the proposed manufacturer. See Section

1.11 Submittal of Bid.

Any bidder that has been awarded a contract and has not sold off of the contract for three (3) consecutive years shall not be qualified to submit a bid for a period of 12 months following the third consecutive year of failing to sell off of an awarded contract.

1.8 LATE BIDS

At the time, date, and place indicated in the published Bid Calendar, all submitted entries to VendorLink will be reviewed. Any entries received after the time and date specified will be rejected by the NCSA. An electronic Bid is considered received by the NCSA when a Bidder submits their entries within VendorLink. All electronic Bids are final at the date and time specified on the Bid Calendar.

The responsibility for submitting entries before the stated time and date deadline is solely and strictly the responsibility of the Bidder. The NCSA is not responsible for delays caused by any occurrence.

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1.9 COMPETITIVE FIXED PRICE BIDDING

This competitive process provides multiple sources of supply based on a pre-set maximum price which the Customer will pay. Contracts will be awarded to responsive and responsible bidders. Any VendorLink entries received that do not meet solicitation requirements will be considered non-responsive.

All VendorLink submissions will utilize this method of bidding.

1.10 NCSA COMMISSION FEES FOR ALL SPECIFICATIONS

Dealers must include a three quarters of one percent (.0075) commission fee in their base Bid prices, and their quotes and pricing for all additional equipment items (options), excluding any state regulated fees including tags. The three quarters of one percent fee will be incorporated into, and made a part of, the total invoice amount and shall not be treated or added as a separate line item. Fees are based on the total invoice cost of the new Heavy Equipment or equipment, excluding trade-ins. Trade-ins and other exchanges will not reduce or impact the

NCSA Commission fee calculation. No other commission fee(s) will be applicable to any transaction relative to the contract.

1.11 SUBMITTAL OF BID

Each Bidder is responsible for ensuring that his or her VendorLink entry(s) and all required bid documents is submitted before the deadline outlined in the Bid

Calendar. Late Bids will not be considered. If an electronic Bid is not submitted by the date and time specified on the Bid Calendar, the Bid is rejected. See

Section 1.8 Late Bids. A bid may also be rejected if the bidder has been awarded a contract and has not sold off of the contract for three (3) consecutive years

(see section 1.7 above).

1.12 BID OPENING AND ELECTRONIC POSTING OF NOTICE OF INTENDED

AWARD

All VendorLink entries will be opened at the date, time, and place indicated in the

Bid Calendar and will be evaluated thereafter. Although entries and corresponding prices will not be read aloud, Bidders may attend, but it is not a requirement.

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The NCSA Cooperative Bid Coordinator will electronically post the initial Bid tabulation results.

If the posting of the initial NCSA Heavy Equipment Lot Sheet is delayed, the

NCSA Cooperative Bid Coordinator will post a notice of the delay through

VendorLink and will give a revised date for posting.

1.13 BID EVALUATION CRITERIA

Eligible responsive entries will be evaluated to determine if all contract Bid requirements are met. VendorLink entries that do not meet all contract requirements of this solicitation, or fail to provide all required information, documents, or materials may be rejected as nonresponsive.

A Bidder must have the necessary facilities, personnel, and expertise, and must be prepared, if requested by the NCSA Contract Administrator, to present evidence of such experience.

The NCSA Contract Administrator reserves the right to investigate or inspect at any time during the Bid award process, and the contract period, whether the product, qualifications, or facilities offered by the Bidder meet the contract requirements.

Bidders, whose Bids, past performance, or current status do not reflect the capability, integrity, or reliability to fully and in good faith perform the requirements of the contract may be rejected as nonresponsive. In determining past performance, the NCSA Contract Administrator will give consideration to the nature and number of complaints received from Customers regarding a previously awarded dealer. The NCSA Contract Administrator may use discretion in determining which entries meet the contract requirements of this solicitation, and which respondents are responsive and responsible.

The NCSA Contract Administrator may use discretion in accepting or rejecting any and all entries, or separable portions thereof, in whole or in part; and/or make or limit awards either as individual items or as a total combined Bid; and to waive any minor irregularities, technicalities, or omissions if determined that doing so will serve the best interest of the

Customer irrespective of the lowest Bid. The NCSA Contract Administrator may reject any responses not submitted in the manner specified by solicitation documents. As stated in section 1.7 above, any bidder that has

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1.14 BASIS FOR AWARD

Bidders who routinely demonstrate deficiencies in providing satisfactory customer service per the NCSA’s discretion during a contract period prior to the issuance of this Bid, may have their Bid rejected in this Bid cycle. In cases where the manufacturer is at fault, the dealer must provide evidence of timely communication to the complainant and to the NCSA.

Bidders are hereby advised that the NCSA Contract Administrator may use discretion in rejecting any Bid proposal not considered to be competitive in nature based on the best pricing information available.

Bidders must offer percentage discounts for equipment and options. The percentage discount amount on options may be different from the percentage discount on equipment in the same group, but must meet the required minimum discount described herein.

All bids submitted via Fixed Price Bidding will be made to all responsive and responsible bidders. Awards may be made to more than one bidder. When only one response is received, the notice of Intent to Award and the delay of award may be waived.

1.15 TAX EXEMPTIONS FOR CUSTOMERS

All state and federal tax exemptions applicable to the units of local governments of the State of North Carolina will apply. It is the Customer’s responsibility to comply with any federal, state, and local tax requirements.

1.16 TAX EXEMPTIONS FOR NCSA

The NCSA is a 501(c)(3) organization and exempt from all Federal Excise and

State Taxes. The association’s tax id number is 56-1079943.

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1.17 FACILITIES

The NCSA Contract Administrator reserves the right to periodically request additional or updated information from a dealer regarding the repair/warranty facility during the solicitation for Bids period and the term of any awarded

1.18 SPECIFICATIONS (BUILD SHEETS)

All Heavy Equipment listed in the NCSA Heavy Equipment Specifications list shall be the manufacturer’s current basic production model, and shall, as a minimum, be equipped with ALL standard factory equipment in accordance with the manufacturer’s latest literature. Bidders must supply a unit that either meets or exceeds all the requirements included in the applicable detailed specifications.

All Bidders will be required to submit a specification, option sheet, and pricing on the models listed in each designated specification or designated group. A minimum 6% discount off the base price and options is also required.

Model upgrades and/or downgrades are eligible for purchasing off of the NCSA

Heavy Equipment Procurement Program. These model upgrades and/or downgrades must be listed in the option sheet uploaded by the Bidder during the bid period. The percent discount offered off the list price of the base unit will be the same discount offered off the base price of the model upgrade and/or downgrade.

All heavy equipment offered to satisfy a solicitation for Bids must be designed, constructed, and installed to be fully suitable for their intended use and service.

All current contract year heavy equipment specifications can be found on the

NCSA Heavy Equipment Bid Award Announcement.

1.19 FACTORY ORDERED OPTIONS

All factory ordered options are to be “original equipment manufacturer (OEM) and factory installed” unless otherwise noted by the Contractor and acknowledged in writing by both the Contractor and the Customer. Verbal agreements will not be recognized.

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1.20 FEDERAL AND STATE HEAVY EQUIPMENT MANUFACTURING STANDARDS

In addition to the equipment set out by the specifications listed in the NCSA Price

Sheet, Heavy Equipment shall be equipped with all standard equipment as specified by the manufacturer for this model. All Heavy Equipment offered to satisfy this solicitation for Bids must comply with all Environmental Protection

Agency emission standards, federal safety standards as established by the US

Department of Transportation, National Highway Transportation Safety

Administration.

1.21 EXECUTION OF BID

Required bid documents must contain a manual signature of the dealer principal and an authorized representative when applicable in the space provided on the

Solicitation for Bids and Contract Terms and Conditions Signature Page. Failure to properly sign and submit the Solicitation for Bids and Contract Terms and

Conditions Signature Page will invalidate the Bidder’s submission and it shall

NOT be considered for award. All Bid forms must be completed in pen and ink or typewritten.

Heavy Equipment specifications CANNOT be changed or altered in any way.

Altered Bids will not be considered after the allowed time period closes for

VendorLink entries. If a clarification of the submitted Bid is required, the request for clarification shall be in letter form, signed by the Bidder(s) and attached to the

Bid.

1.22 MISTAKES

Bidders are expected to examine the specifications, delivery schedules, Bid prices, Option Sheets, discounts, extensions and all instructions pertaining to supplies and services. Failure to do so will be at the Bidder’s risk.

1.23 CONDITION AND PACKAGING

Any item offered or shipped as a result of a Bid award shall be the latest, new, and current model offered (most current production model at the time of this Bid).

All shipping containers shall be suitable for storage or shipment, and all prices shall include standard commercial packaging.

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1.24 INTERPRETATIONS

Unless otherwise stated in the Bid, any questions concerning conditions and specifications should be submitted in writing to Jason Bennett, NCSA Director of

Business Development, at Post Office Box 20049, Raleigh, North Carolina 27619 or by email to jbennett@ncsheriffs.net.

1.25 BID OPENING

All VendorLink entries shall be opened and read on the date, time and place specified on the Bid Calendar, although prices will not be read aloud. No entries will be accepted after that date and time.

1.26 GOVERNING LAW

All questions with respect to the construction, performance, and enforcement of these terms and conditions, and the rights and liabilities of the parties hereunder shall be determined in accordance with the laws of the State of North Carolina.

Any legal action taken or to be taken by any party regarding these terms and conditions or the rights and liabilities of the parties hereunder shall be brought only before a court of competent jurisdiction located within the State of North

Carolina.

1.27 PATENTS AND ROYALTIES

The Bidder, without exception, shall indemnify and hold harmless the NCSA and its employees from liability of any nature or kind, including cost and expenses, for, or on account of, any copyrighted, patented, or unpatented invention, process, or article manufactured or used in the performance of the contract, including its use by the NCSA.

If the Bidder uses any design, device, or materials covered by letters, patents, or copyright, it is mutually understood and agreed, without exception, that the Bid prices shall include all royalties or cost arising from the use of such design, device, or materials in any way involved in the work.

1.28 ANTI-DISCRIMINATION

The Bidder certifies that he/she is in compliance with the non-discrimination clause contained in Section 202, Executive Order 11246, as amended by mailto:jbennett@ncsheriffs.net

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Executive Order 11375, relative to equal employment opportunity for all persons without regard to race, color, religion, sex, or national origin.

1.29 AMERICANS WITH DISABILITY ACT (ADA)

To request ADA material in accessible format, sign language interpreters, information on access for persons with disabilities, and/or any accommodation to review any document or participate in any NCSA-sponsored proceeding, please contact Jason Bennett, NCSA Director of Business Development, at 919-459-

8195 or jbennett@ncsheriffs.net.

1.30 MINORITY BUSINESS ENTERPRISE (MBE)

The NCSA policy is that MBEs shall have the opportunity to participate in competitive Bids. Such process would be for supplying goods and services to the

Customers.

1.31 QUALITY

All materials used for the manufacture or construction of any supplies or equipment covered by this Bid shall be new. The items bid must be new, the latest model, of the best quality, and highest grade of workmanship per NCSA discretion.

1.32 FACILITIES

The NCSA reserves the right to inspect the Bidder’s facilities at any time with a two week (calendar days) prior written notice.

1.33 REQUESTS FOR CLARIFICATION AND ADDENDA TO BID SPECIFICATIONS

In case of doubt as to the meaning or intent of any items contained in the specifications, inquiry should be made to the NCSA Contract Administrator five

(5) calendar days via e-mail. Telephone clarifications will not be accepted, and no clarifications will be accepted after the date listed in the Bid Calendar. ALL requests for clarification from Bidders and NCSA responses will be posted on

VendorLink by the date listed on the Bid Calendar.

The submission of a VendorLink entry presumes the Bidder thoroughly understands the terms and the specifications.

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If any person contemplating submission of a VendorLink entry under this

Solicitation for Bids is in doubt as to the meaning of the specifications or other

Bid documents or any part thereof, the Bidder must submit to the NCSA at least five (5) calendar days prior to the scheduled Bid opening, a request for clarification. All such requests for clarification must be made in writing and the person submitting the request will be responsible for its timely delivery.

Any questions or clarifications concerning this Solicitation for Bids and Contract

Terms and Conditions shall be submitted in writing by mail or facsimile to the

NCSA, Business Development, Post Office Box 20049, Raleigh, North Carolina

27619 or by email to jbennett@ncsheriffs.net with the Bid Title referenced on all correspondence.

Any interpretations will be made only by Addendum issued by the NCSA

Contract Administrator. All addendums will be posted on the NCSA website.

There are two types of addendums, informal addendums and formal addendums.

Informal addendums are issued to provide minor clarification or minimal changes to the Bid. An example of an informal addendum would be making a grammatical change to the Solicitation for Bids and Terms and Conditions. A formal addendum will be issued when substantive changes are made to the specifications or Bid process that will impact the technical submission of the Bids.

An example of a formal addendum would be when a model is deleted from the specifications. In the event of conflict with the original contract documents, the addendum shall govern all other contract documents that relate to that issue.

Subsequent addendums shall govern prior addendums on the same issue.

All Bidders will be required to acknowledge any formal addendums by signing in the space provided on the formal addendum and including the signed acknowledgement along with the Bidder’s Bid package. Failure to acknowledge receipt of addendum by a Bidder will deem its Bid non-responsive; provided, however, that the NCSA may waive this requirement in its best interest. The

NCSA will not be responsible for any other explanation or interpretation made verbally or in writing by any other NCSA representative.

1.34 DEMONSTRATION OF COMPETENCY

Pre-award inspection of the Bidder’s facility may be made prior to the award of contract. Bids will only be considered from firms which are regularly engaged in the business of providing the goods and/ or services as described in this Bid.

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Bidders must be able to demonstrate a satisfactory record of performance for a reasonable period of time per NCSA’s discretion, and have sufficient financial support, equipment and organization to ensure they can adequately execute the services if awarded a contract under the terms and conditions herein stated.

The terms “equipment and organization” as used herein shall be construed to mean a fully equipped and well established company in line with the best business practices in the industry and as determined by the NCSA.

The NCSA may consider any evidence available regarding the financial, technical, and other qualifications and abilities of a Bidder, including past performance (experience) with the NCSA in making the award in the best interest of the NCSA.

The NCSA may require Bidders to show proof that they have been designated as authorized representatives of a manufacturer or supplier which is the actual source of supply. In these instances, the NCSA may also require information from the source of supply regarding the quality, packaging, and characteristics of the products to be supplied to the NCSA through the designated representative.

Any conflicts between this information provided by the source of supply and the information obtained in the Bidder’s Bid which is contrary to or would alter a specification may render the Bid non-responsive.

1.35 DETERMINATION OF AWARD

VendorLink- Multiple awards will be made however awards will only be made to the most responsible and responsive bidder(s) for each manufacturer’s product line offered.

In determining the best Bidder, in addition to price, the following criteria will also be considered:

• The ability, capacity, and skill of the Bidder to perform the Contract

• Whether the Bidder can perform the Contract within the time specified, without delay or interference

• The character, integrity, reputation, judgment, experience and efficiency of the Bidder

• The quality of performance of previous contracts

• The previous and existing compliance by the Bidder with laws and ordinances relating to the Contract

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1.36 LAWS, PERMITS AND REGULATIONS

The Bidder shall obtain and pay for all licenses, permits, and inspection fees required for this project; and shall comply with all laws, ordinances, regulations, and requirements applicable to the work contemplated herein.

1.37 ELIMINATION FROM CONSIDERATION

A contract shall not be awarded or disclosed to any person or bidder who is in arrears to the NCSA for any debt, or taxes, or contracts which are defaulted as surety or otherwise upon any obligation to the NCSA.

1.38 WAIVER OF INFORMALITIES

The NCSA reserves the right to waive any informalities or irregularities in this Bid solicitation.

1.39 COLLUSION

Related parties mean Bidders, or the principals thereof, which have a direct or indirect ownership interest in another Bidder for the same contract, or in which a parent company or the principals thereof of one (1) Bidder has a direct or indirect ownership interest in another Bidder for the same contract.

Bids from Related Parties – Where two (2) or more related parties each submit a

Bid for any contract, such Bid or Bids shall be presumed to be collusive. Bids found to be collusive shall be rejected.

The foregoing presumption may be rebutted by presentation of evidence as to the extent of ownership, control, and management of such related parties in the preparation and submittal of such Bids.

Bidders who have been found to have engaged in collusion will be suspended for a minimum of one contract year. The Bidder may be permanently barred if collusive Bidding occurs more than once in a five year period. Any contract resulting from collusive Bidding may be terminated for default.

Dealerships and their representatives may submit multiple Bids without conflict of collusion as long as the Bid submitted is not from the same manufacturer and product line.

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1.40 GRATUITIES

Bidders shall not offer any gratuities, favors, or anything of monetary value to any official, employee, or agent of the NCSA.

1.41 SIGNED BID CONSIDERED AN OFFER

The signed contract between the NCSA and the Contractor shall be considered an offer on the part of the Bidder, which offer shall be deemed accepted upon approval and award by the NCSA. In case of default on the part of the Contractor after the acceptance of the Bidder’s offer, the NCSA may procure the items or services from other sources and hold the Bidder or Contractor responsible for any excess cost occasioned or incurred thereby.

1.42 DELIVERY TIME

Each contractor will provide the customer with the most accurate timeline for delivery. It is incumbent on the contractor to provide the customer the estimated date for delivery at the issuance of the initial purchase order.

1.43 RIGHT TO AUDIT

The Bidder and Contractor must establish and maintain a reasonable accounting system that enables the NCSA to readily identify the Bidder’s and Contractor’s fleet sales.

The NCSA, and its authorized representatives, shall have the right to audit, examine, and make copies of, or extracts from, all financial and related records

(in whatever form they may be kept, whether written, electronic, or other) relating to or pertaining to this contract or agreement. Similarly, all government sales and potential eligible Customers’ information will be available for review and kept by or under the control of the Bidder and Contractor, including, but not limited to, records kept by the Contractor, its employees, agents, assigns, successors, and subcontractors. The records shall include, but not be limited to, accounting records, written policies and procedures; subcontract files (including proposals of successful and unsuccessful Bidders, Bid recaps, etc.); all paid vouchers including those for out of pocket expenses; other reimbursement supported by invoices; ledgers; cancelled checks; deposit slips; bank statements; journals;

original estimates; estimating work sheets; contract amendments and change

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The Contractor, shall, at all times during the term of a contract and for a period of three (3) years after the completion of a contract, maintain the above referenced records, together with supporting or underlying documents and materials. The

Contractor shall at any time during the three (3) year period, whether during or after completion of this contract, and at Contractor’s own expense make these records available for inspection and audit (including copies and extracts of records as required) by the NCSA when requested. The records shall be made available to the NCSA (subject to a three day written notice) during normal business hours.

NCSA, at its option, may select the Bidder’s and Contractor’s office or place of business or an offsite location for the audit. The NCSA may also allow the Bidder and Contractor to provide financial records, together with the supporting or underlying documents and records, via email or telephone for audit at a time and location that is convenient for the NCSA.

The Bidder and Contractor shall ensure the NCSA has this same right of access to information with Bidder’s and Contractor’s employees, agents, assigns, successors, and subcontractors. The obligations of these rights shall be explicitly included in any subcontracts or agreements formed between the Bidder and

Contractor and any subcontractors to the extent that those subcontracts or agreements relate to fulfillment of the Bidder’s and Contractor’s obligation to the

NCSA.

The costs of any audits conducted under the authority of this right to audit, if not addressed elsewhere, will be borne by the NCSA unless certain exemption criteria set forth below are met. If the audit identifies underreporting, overpricing, or overcharging (of any nature) by the Bidder and Contractor to the Customer in excess of three (3%) of the total contract billings, the Bidder and Contractor shall reimburse the NCSA for the total costs of the audit not to exceed $5,000. If the audit discovers substantive findings related to fraud, misrepresentation, or nonperformance, the NCSA may recoup all of the costs of the audit work from the Bidder and Contractor.

Any adjustments and /or payments that must be made as a result of any such audit or inspection of the Bidder’s and Contractor’s invoices and/or records shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of the NCSA’s findings to the Bidder and Contractor.

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1.44 MODIFICATION/WITHDRAWALS OF BIDS

A Bidder may submit a modified VendorLink entry to replace all or any portion of a previously submitted Price Sheet up until the due date and time when the Bid period closes for Bids. No modifications will be accepted after the Bid due date and time. No modified entry submitted after the Bid due date and time of the paper Bid will be considered.

Bids shall be irrevocable after three (3) business days from the date and time of the Bid due date when the Bid period closes. Bids cannot be modified after the

Bid period closes, but can be withdrawn in writing within three (3) business days after the Bid period closes. After the expiration of the three (3) day period, all entries are final. If a contract is not awarded within 120 days from the opening of the VendorLink entry, any Bidder may withdraw their entry.

Letters of withdrawal received outside of the timeframe listed above will not be considered.

The Bidder warrants by virtue of Bidding the quoted prices in their entry response, that the prices will be good throughout the Bidding and contract award period.

1.45 EXCEPTIONS TO BID

Should a proposed VendorLink entry not be able to meet one (1) or more of the requirements set forth in this Solicitation for Bids, and the Bidder is proposing alternatives to said requirements, the Bidder must notify the NCSA Cooperative

Bid Coordinator’s Office in writing at least five (5) days prior to the deadline for submission of Bids. The NCSA reserves the right to revise the scope of services via addendum prior to the deadline for receipt of Bids and/or Price Sheets.

1.46 METHOD OF AWARD

The NCSA reserves the right to make multiple awards if deemed in the best interest of the NCSA. See Section 1.14 Basis for Award (specific to Heavy

Equipment).

1.47 AMENDMENTS TO SOLICITATION DOCUMENTS

The Contract Administrator retains the right to issue amendments to the

Solicitation for Bids as appropriate and necessary. Notice of any amendment will

20 | P a g e be posted on the NCSA website. Bidders are responsible for monitoring the

NCSA website for new or updated information concerning the Bid.

1.48 AMENDMENTS TO CONTRACTS

The Contract Administrator retains the right to add or delete any items from a

VendorLink entry or resulting contract(s) when deemed to be in the best interest of the NCSA and the participating eligible Customers.

1.49 SPECIFICATION (BUILD SHEETS) AND GROUPS EXCEPTIONS, OMISSIONS

OR ERRORS

Specifications and groups are based on the most current manufacturer literature available. Bidders should immediately notify the Contract Administrator of any defects in the specifications or required submittal documents. All notifications of defect must be in writing and submitted prior to the request for clarification deadline.

Bidders are required to indicate in their VendorLink entries those options which require additional equipment or model upgrade to obtain the original option.

Bidder must also identify those options that are available as a part of a package or group. The factory codes listed in the “Prices” section of the Special

Conditions must be used.

Failure of a Bidder to comply with these provisions will result in Bidders being held responsible for all cost required to bring the Heavy Equipment into compliance with the contract specifications.

1.50 FINANCIAL RESPONSIBILITY

The Bidder affirms by his or her signature on the contract signature page that he or she:

• Has fully read and understands the scope, nature, and quality of work to be performed or the services to be rendered under this Bid, and has the adequate facilities and personnel to fulfill such requirements.

• Accepts the financial responsibility associated with this Bid, and declares that he or she has the access to capital (in the form of liquidity or credit lines) in order to meet the financial demands of such award. In assessing financial responsibility, Contractor shall consider items such as the

21 | P a g e specifications Bid, and the quantity of specifications Bid, as well as timing of payment from Customers, which can be 45 days from receipt of invoice.

• Assumes full responsibility that all Heavy Equipment delivered to the

Customer are free and clear of all outside liens, encumbrances, security interests apart from the dealer floor plan or other dealer inventory finance security interest.

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Section II

Post Bid Award Procedures

2.0 AUTHORITY TO RESOLVE PROTESTED BIDS AND PROPOSED AWARDS

(a) Right to Protest – Any Bidder who is aggrieved in connection with the solicitation for Bids or contract award may protest to the Contract

Administrator or his or her designee. Protests will be evaluated and resolved under the process set forth below:

(1) Any protest concerning the Bid specifications, requirements, and/or terms must be made within five (5) business days (for the purpose of this section “business day” means a day other than Saturday, Sunday, or a national holiday) prior to the Bid period opening for

Bids. Such protest must be made in writing to the Contract

Administrator, or his or her designee, via electronic communication

(such as facsimile transmission and/or email) and such protest shall state the particular grounds on which it is based and shall include all pertinent documents and evidence. No protest shall be accepted unless it complies with the requirements of this section. Failure to timely protest Bid specifications, requirements, and/or terms is a waiver of the ability to protest the specifications, requirements, and/or terms.

The protest will be submitted to the Contract Administrator for consideration. The Contract Administrator will consider and rule on the protest. The opening of the Bid period for Bids will not be delayed, absent extraordinary circumstances, due to the protest.

The determination of the Contract Administrator is final and binding.

(2) Protests challenging the award of the contract must be made in writing within two (2) business days following the release of the Bid

Award Announcement. This award protest will be submitted to the

Contract Administrator or his or her designee. All Bidders will be notified in writing (which will be transmitted by electronic

23 | P a g e communication and through VendorLink) of any protests following the release of the Bid Award Announcement.

Protests must state the particular grounds on which it is based and shall include all pertinent documents and evidence. No Bid protest will be accepted unless it complies with the requirements of this section.

The Bid Award protest will be immediately forwarded, with all supporting documentation, to the Contract Administrator. The decision of the Contract Administrator will be based solely on the written protest and all accompanying documents. The Bid Award execution of the contract will not be delayed by the consideration of the Contract Administrator.

(b) Decision and Appeal Procedures – The decision shall specifically state the reasons for the action taken and inform the protestor of his or her right to challenge the decision by electronic communication promptly after the decision is made.

(c) Distribution – A copy of each decision by the Contract Administrator shall be mailed by certified mail, immediately after a decision is made, to the protestor.

(d) Stay of Procurements During Protest – In the event of a timely protest under this section, the Contract Administrator shall not proceed further with the award pursuant to such Bid unless a written determination is made by the Contract Administrator that the award must be made without delay in order to protect the HEPP.

(e) Once the bid award protest has been resolved by the Contract

Administrator, the Cooperative Bid Coordinator shall promptly issue a decision by electronic communication. The decision shall specifically state the reasons for the action taken.

2.1 TERMINATION FOR DEFAULT

If through any cause within the reasonable control of the Contractor, it shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, contracts, or stipulations material to the agreement, the NCSA shall thereupon have the right to terminate the services then remaining to be performed by giving written notice as to the successful Bidder of the written termination notice.

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In that event, the Customer shall compensate the Contractor in accordance with the agreement for all services performed by the Bidder prior to termination, net of any costs incurred by the Customer as a consequence of the default.

Notwithstanding the above, the Contractor shall not be relieved of liability to the

Customer for damages sustained by the Customer by virtue of any breach of the agreement by the Contractor, and the Customer may reasonably withhold payments to the Contractor for the purposes of set off until such time as the exact amount of damages due to the Customer from the successful Bidder is determined.

All reprocurement cost may be charged against the defaulting Contractor and may result in immediate removal from the HEPP.

2.2 WARRANTY OF AUTHORITY

Each person signing the contract warrants that he or she is duly authorized to do so and to bind the respective party to the contract.

2.3 PRICES SHALL BE FIXED AND FIRM FOR TERM OF CONTRACT

If the successful Bidder is awarded a contract under this Bid Solicitation, the prices quoted by the successful Bidder on the Bid forms shall remain fixed and firm during the term of the contract unless determined by the Contract

Administrator that a change in the price is in the best interest of the HEPP. If the contracted price is increased during a contract year, the price cannot be changed again during the same contract year unless otherwise approved by the Contract

Administrator.

For a price increase request, the contractor must provide reasonable documentation for the price increase request. The contractor must also submit a listing of the current price of the equipment and the proposed increased price, as a percentage, of the same piece of equipment. The price increase request template provided by the NCSA must be completed and submitted by all contractors requesting a price increase. Additionally, the contractor must also provide letter(s) from suppliers announcing the price increase. Only after these documents have been sufficiently received by the Contract Administrator will the request for a price increase be considered. All price increase requests will be handled on a per request basis and any approved price increases will be made known to the requesting contractor by electronic mail.

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Section III

Post Award Performance

3.0 DISPUTES

In case of any doubt or difference of opinion as to the items to be furnished hereunder, the matter will be referred to the Contract Administrator and his/her decision shall be final and binding on both parties.

In the event of a conflict between the Bid documents, the order of priority of the

Bid documents shall be as follows: Any agreement resulting from the award of this Bid (if applicable); then Addenda released for this Bid with the latest

Addendum taking precedence; then the Bid; then the Awardee’s Bid.

3.1 CANCELLATION

In the event any of the provisions of a contract are violated by the Contractor, the

Contract Administrator shall give written notice of the deficiencies to the

Contractor giving the Contractor ten (10) business days after receipt of written notice to correct the deficiencies. If the deficiencies are not corrected, the

Contract Administrator will immediately cancel the contract.

3.2 SEVERABILITY

In the event any provision of this contract is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of the contract which shall remain in full force and effect and enforceable in accordance with its terms.

3.3 ASSIGNMENT

The Contractor shall not assign, transfer, convey, sublet, or otherwise dispose of this contract, including any or all of its right, title, or interest therein, or his or its power to execute such contract to any person, company or corporation without prior written consent of the NCSA.

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3.4 TERMINATION FOR CONVENIENCE OF THE NCSA

The NCSA, for its convenience, can terminate a contract, in whole or part, without cause by giving written notice to the Contractor of such termination, which shall become effective 180 days following receipt by the Contractor of such notice.

If a contract is cancelled, all documents related in any way to the Bid and/or any

Price Sheet entry will be provided to the NCSA. All Heavy Equipment and materials shall be disposed of by agreement between Contractor and Customer.

The Contractor shall not furnish any product after it receives the notice of termination, except as necessary to complete the continued portion of the contract, if any. The Contractor shall not be entitled to recover any lost profits that the Contractor expected to earn on the balance of the agreement or cancellation charges.

Any payments to the Contractor shall be only to the total extent of the Customer’s liability for goods or services delivered prior to the date of notice to terminate the

3.5 INSURANCE AND INDEMNIFICATION

Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the NCSA, the participating agencies, and their officers, agents, and employees from suits, actions, damages, and costs of every name and description, including legal counsels’ fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Bidder, its agents, employees, partners, or subcontractors; provided, however, that the

Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the NCSA, and participating agencies.

The NCSA and any participating agencies will give the Contractor written notice of any legal action or threatened legal action and the opportunity to take over and settle or defend any such action at the Contractor’s sole expense. Contractor shall not be liable for any cost, expense or compromise incurred by the NCSA, or participating agencies in any legal action without Contractor’s prior written consent, which shall not be unreasonably withheld.

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The Contractor shall be responsible for his or her work and every part thereof, and for all materials, tools, appliances and property of every description, used in connection with this particular project. He or she shall specifically and distinctly assume, and does so assume, all risks of damage or injury to property or persons used or employed on or in connection with the work and of all damage or injury to any person or property wherever located, resulting from any action or operation under the contract or in connection with the work.

The Contractor, at all times during the full duration of work under this contract, including extra work in connection with this project, shall meet the following requirements:

• Maintain automobile liability insurance including property damage covering all owned, non-owned, or hired automobiles and equipment used in…