City of Janesville, Janesville Transit System Passenger Shelter Procurement

JTS-RFP-2022-02

September 26, 2022

101 Black Bridge Road

Janesville, Wisconsin 53545 www.janesvillewi.gov

Introduction

1. The City of Janesville (“CoJ”) is issuing this Request for Proposal (“RFP”) to select a firm to provide non-advertising transit passenger shelters for the CoJ and the Janesville Transit System (“JTS”).

2. JTS intends to initially purchase up to seven (7) shelters and will obtain pricing for future purchasing of passenger shelter(s), optional shelter amenities, and/or passenger shelter replacement parts.

3. Proposer (a/k/a vendor or contractor) is the person (firm or other business entity) that submits to the CoJ

JTS a response (a/k/a/ proposal) to the RFP.

General RFP Conditions

1. Notwithstanding any other provisions set forth in this RFP, all proposers are hereby specifically advised that this RFP is a solicitation only. Proposals (a/k/a responses) must set forth full, accurate, and complete information as required by the RFP.

2. Responses to this RFP shall be made according to the specifications and instructions contained herein.

Failure to adhere to these instructions may be cause for rejection of any proposal.

3. Proposers shall understand and agree that submission of a proposal will constitute acknowledgment and acceptance of, and a willingness to comply with, all the terms, conditions, obligations, and criteria contained within this RFP. This RFP, as well as any and all parts of the submitted proposal, may become part of any subsequent contract between the successful proposer and the CoJ.

4. False, incomplete, or unresponsive statements in connection with this procurement may be sufficient cause for rejection of the proposal. The evaluation and determination of the fulfillment of the above requirements vests solely with the CoJ.

5. Proposers understand that any proposal documentation submitted to the CoJ shall become the property of the CoJ and shall become subject to the CoJ’s and Wisconsin’s Public Records laws and policies.

Timeline

• RFP Issuance – Mon, Sept 26, 2022

• Question Submittal Deadline – Wed, Oct 5, 2022 - On this date, any and all questions, requests for an interpretation or clarification of, or addenda to this RFP must be submitted in writing.

• Addenda Posted – Wed, Oct 12, 2022 - On this date, the CoJ will post responses to pertinent requests for interpretation or clarification of, or addenda to, this RFP.

• Proposal Submittal Period Begins – Thurs, Oct 13, 2022 - On this date, the CoJ will begin accepting proposals. Any proposal submitted prior to this date shall not be considered by the CoJ.

• Proposal Submittal Deadline – Thurs, Oct 20, 2022 12PM Noon - Prior to this time & date, all proposals must be submitted. Any proposal submitted after this deadline shall be considered late and shall be rejected.

• Proposal Opening – Thurs, Oct 20 at 12:01PM - The proposal opening shall take place in the public lobby at the Transit Services Center (“TSC”) located at 101 Black Bridge Road, Janesville, WI 53545.

• Execute Contract – week of Nov 7, 2022

Proposal Submission Proposals shall be submitted in two (2) separate Volumes. Each Volume shall be marked as specified below:

A. Volume 1: "JTS RFP 2022-02– PRICING PROPOSAL”

a. Hard Copy: One (1) original of Form J: Price Form (an Electronic version shall not be sent)

b. The price proposal should include completion of Form J: Price Form

B. Volume 2: "JTS RFP 2022-02– TECHNICAL PROPOSAL”

a. Hard Copies: One (1) original; one-sided, no staples or permanent binding.

b. Electronic Copy: One (1) electronic copy of the Technical Proposal on flash drive.

1. Proposals in response to this RFP shall be considered received when both Volumes have been received by the

Transit Director by the submission deadline date and time.

2. Submission of a proposal shall constitute a firm offer by the proposer to JTS for one hundred twenty (120) days from the proposal opening. A submitted proposal does not commit JTS to award a contract, to pay any cost incurred in preparation of a proposal, or to procure or contract for goods or services.

3. No person or entity submitting a proposal in response to this RFP, nor any officer, employee, agent, representative, relative or consultant representing such a person (or entity) may contact through any means or engage in any discussion concerning the award of this contract with any member of JTS staff or any employee of JTS during the period beginning on the date of proposal issue and ending on the date of the selection of the contractor. Any such contact would be grounds for disqualification of the proposer. Contact with JTS staff during such time period must be limited to technical questions. The exception to this rule would be when the proposer being a current service provider is making contact concerning the current services being provided under a separate and current contract.

4. Proposals shall be delivered to:

Janesville Transit System Transit Services Center (TSC)

Attention: Rebecca Smith 101 Black Bridge Road Janesville, WI 53545

5. All proposals must be received by the CoJ JTS at the TSC office listed above no later than Thurs, Oct 20, 2022 at

12PM Noon. Proposals received after the specified date and time shall be considered late and will not be considered for evaluation or award.

6. Each proposal submitted must contain all required pertinent information, documents, and forms; Reference Appendix B to ensure all materials are included.

Clarification and Amendment Process

1. A proposer may submit to the CoJ a written request for an interpretation or clarification of, or addenda to, this

RFP. Such requests shall be sent via email to Rebecca Smith at smithr@ci.janesville.wi.us.

2. The CoJ will review and prepare a written response to each request made by a proposer, pursuant to this section.

Responses may be shared with other proposers if addenda are necessary. The CoJ’s written determination will be posted on the CoJ and Vendor Net websites.

3. If a proposer requests JTS consider material as an approved equal, the proposer must make the request using the process outlined above in Item 1, along with pertinent details, prior to the question submittal deadline.

4. The CoJ reserves the right to make modifications or addenda to this RFP at any time and from time to time. If the CoJ determines it is appropriate to revise any portion of this RFP, either at the request of a proposer or upon the CoJ's own initiative, the CoJ will issue, and make available to all prospective proposers, a written addendum setting forth the revision. Proposers shall acknowledge receipt of addenda by written notice thereof returned to the CoJ as a component of their proposal. The addenda acknowledgement form can be found in Form H. Without the acknowledgement of any addenda by completion of Form H, proposals will not be considered. Where addenda mailto:smithr@ci.janesville.wi.us require changes in the service to be performed, the date set for receipt of proposals may be postponed by such number of days as the CoJ determines appropriate in order to enable prospective proposers to revise proposals.

5. The CoJ is not bound by any oral interpretations, clarifications, or changes made to this RFP by any city employee.

Any clarification or change to the RFP will only be provided in writing, pursuant to this section.

Terms of Contract

1. The term of the contract shall be for a three (3) year period commencing with the contract execution (expected in November 2022) and expiring on October 31, 2025.

2. The CoJ shall have the option to extend the contract for two (2) additional one (1) year periods commencing on the day after the initial term expires or the day after the preceding one year option expires.

3. The contract shall automatically extend into each one (1) year option unless the CoJ notifies the successful proposer, in writing, thirty (30) calendar days prior to the expiration of the initial and/or succeeding contract option period.

4. Modifications—Any additional terms and conditions incorporated into the Contract will be mutually agreed upon by both parties. Any modifications to the Contract must be in writing and duly signed by both parties.

5. Assignment—Neither party shall assign, transfer, convey, sublet, or otherwise dispose of the Contract or his right, title, or interest in or to the same or any part thereof without the prior consent, in writing, of the other party.

6. Indemnity—The City will notify the Contractor in writing immediately of the institution of any suit or proceeding, will permit the Contractor to defend same, will provide needed information arising out of the performance of the Contract, and will provide the necessary authority to enable Contractor to do so. The Contractor similarly must provide the City immediate notice of all suits and/or actions filed and all claims arising out of the performance of the Contract.

Incurring Costs and Right to Cancel

1. The CoJ shall not be responsible for any expenses incurred by any vendor in the development of a response or proposal to this RFP, including, but not limited, to any supplemental information provided, submitted, or given to the CoJ and/or any of its representatives.

2. The CoJ reserves the right to cancel the work described herein prior to issuance and acceptance of any contractual agreement.

Proposal Rejection and Withdrawal

1. The CoJ reserves the right, within its sole discretion, and with or without cause, to accept or reject any and all proposals submitted in response to the RFP, or refuse to enter into any contract resulting from any proposal submittal , and without cost, fee, penalty, or expense to the CoJ.

2. The proposer, or an authorized representative, prior to the date and time set as the deadline for receipt of proposals, may modify or withdraw a proposal in person or by written, telegraphic, or electronic notice.

3. After the proposal receipt deadline, proposals may not be withdrawn without written approval of the CoJ.

Proposal Acceptance

1. Each proposal shall be submitted with the understanding that the CoJ intends to enter into an agreement with the lowest cost responsive and responsible proposer.

2. The CoJ intends to evaluate each proposal based upon the product proposed; completed forms listed in Appendix

B; the information received in the price form; lead time; and references.

3. The CoJ will use a predetermined formula based upon the annual anticipated usage of each line item in the proposal price form to calculate the lowest proposal.

4. The proposal price form must include all pricing elements.

5. Upon acceptance of the proposal, the CoJ and the successful proposer shall promptly execute the final contract documents. The written contract shall bind the successful proposer to the price stated in the proposal and in accordance with all other terms, conditions, obligations, and requirements stated in this RFP.

6. Any contract resulting from this solicitation shall contain the terms and conditions included in this RFP, any addenda to this RFP, and the successful proposal.

Single Proposal Response If only one proposal is received in response to this RFP, the CoJ may request information from the proposer to enable the CoJ to perform a cost/price analysis, evaluation, and/or audit in order to determine if the proposal price is fair and reasonable. This may include, but not is limited to, labor rates, costs of services, and a reasonable profit.

Performance Requirement The successful proposer, at all times during the term of the contract, must perform all work timely, diligently, carefully, and in a professional manner; and shall furnish all labor, supervision, materials, goods, and supplies necessary.

Notwithstanding the provision of drawings, technical specifications, or other data by the CoJ, the successful proposer shall have the responsibility of supplying all items and details required to perform the services specified in this RFP. Time is of the essence for each obligation and promised performance of the proposer and contractor.

The successful proposer shall conduct all work and provide all goods and services as an independent contractor or vendor, solely in the successful proposer's own name, and not in the name of, or as an agent for, the CoJ.

Vendor Qualifications The following vendor qualifications apply to this procurement:

1. Vendor shall have been successfully and continuously engaged in shelter manufacturing with a minimum of ten

(10) years.

2. Shall be able to demonstrate successful performance on comparable projects which are environmentally similar to the City of Janesville, WI.

3. Shall provide three (3) Midwestern municipalities or customers to be used as references. These references shall be current customers utilizing product similar to those requested. The City may make such investigation as is necessary to determine the ability of the vendor to fulfill service and goods requirements.

4. Shall be responsible for all components, including structural design.

Subcontracting

1. The successful proposer will not enter into any subcontract, except with the prior review and written approval of the CoJ. The CoJ, and without cause, need not approve any proposed subcontract or subcontractor.

2. In any case in which the successful proposer desires to subcontract, it shall provide the CoJ with all proposed subcontracting agreements and documents, including scope of work and terms of compensation.

3. The successful proposer shall be fully responsible for all work performed by any subcontractor.

4. Any approval of a subcontract shall not be construed as making the CoJ a party to such subcontract, giving the subcontractor privity of contract with the CoJ, or subjecting the CoJ to liability of any kind to any subcontractor or to any third person.

5. All subcontracts will incorporate in full all appropriate conditions , terms, obligations, requirements, and terms as set forth herein and those set forth in the RFP response proposal.

6. By entering into a subcontract, the successful proposer shall not, under any circumstances, be relieved from any of its responsibilities, p[promises, liabilities, or obligations under the contract or the RFP response proposal. All transactions, contacts, communications, and notices with the CoJ must be through the successful proposer.

Waiver of Terms and Conditions The failure of the CoJ or the successful proposer to enforce one or more of the terms or conditions of the contract, or to exercise any of its rights or privileges, or the waiver by the CoJ of any breach of such terms or conditions, shall not be construed as thereafter waiving its rights to enforce remedies at law or in equity for any such similar or other breaches or defaults of any terms, conditions, rights, responsibilities, obligations, or privileges set forth in the contract or herein, and the same shall continue and remain in force and effect as if no failure to enforce or waiver had occurred. All rights, remedies, and privileges at law and equity, herein, and in the contract are cumulative and not exclusive.

Interpretation, Jurisdiction, and Venue All contractual agreements shall be subject to, governed by, construed, and interpreted solely according to the laws of the State of Wisconsin. The successful proposer hereby consents and submits to the jurisdiction and venue of the circuit courts in Rock County, Wisconsin, for adjudication and disposition of any and all disputes, suits, and causes of action arising under or in connection with the interpretation or the performance of such contract.

Scope of Services The Janesville Transit System is seeking proposals for non-advertising Passenger Shelters per specifications outlined in Form K. JTS intends to purchase up to seven (7) shelters and will obtain pricing for future purchasing of passenger shelter(s); optional amenities; and/or passenger shelter replacement parts.

Required Materials for Submission The following information shall be clearly labeled and provided as part of the proposer’s submission:

1. PRODUCT DATA: Manufacturer’s product data, including model number, materials, components, finish and all accessories and equipment furnished along with catalog shall be submitted with proposal.

2. SHOP DRAWINGS: Shall submit manufacturer’s shop drawings, including technical specifications of plans, elevations, sections and details, dimensions, anchorage, fasteners and locations, flashing, and seal details, if applicable, finish, and options.

3. Color renderings and/or photos of shelter and bench proposed

4. ERECTION DRAWINGS: Shall submit manufacturer’s instructions and drawings and erection procedures to enable field installation and repair, including:

a. which tools may be needed for assembly and installation of the shelter

b. minimum specifications for the concrete base that the shelter will be housed on

Product Samples The proposed successful proposer shall submit material and color samples prior to award, upon request.

Delivery Orders shall be delivered to Janesville Transit System, 101 Black Bridge Road, Janesville, WI 53545. Please be advised, JTS does not have a loading dock and the deliverer must provide an adequate forklift and forklift operator for safe unloading.

Installation Shelters will be installed by City Staff on concrete pads provided by the City.

Licensing, Permits, and Taxes The successful proposer must be in compliance with all applicable federal, state, and local codes, regulations, and licensing requirements, as well as with all applicable state motor vehicle codes and licensing requirements. The cost for any required licenses or permits shall be the sole responsibility of the successful proposer. The successful proposer is liable for any and all taxes due as a result of the contract, sales, and compensation.

Hold Harmless The successful proposer and the CoJ shall indemnify, defend, and hold each other harmless from any and all claims, actions, costs, expenses, judgments, awards, damages, and liabilities, including reasonable attorney’s fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the negligence or misconduct of the indemnifying party, and/or its respective employees or agents. If the parties are both at fault, the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify will survive and continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any and all claims based on facts or conditions that occurred prior to expiration or termination.

Notwithstanding any other provision set forth in the Contract to the contrary, in no event shall either party be liable for any loss of actual or anticipated profits, loss of anticipated business, downtime costs, or delay claims (whether direct or indirect), nor for any other special, indirect, incidental, or consequential damages arising out of, relating to, or in any way connected with this Contract or the provision of passenger shelters, whether based in warranty, contract, tort, negligence, strict liability, or otherwise.

Insurance

1. The successful proposer shall provide the CoJ certified copies of proof of insurance, as identified in this section, within three (3) days of request by the CoJ.

2. The successful proposer shall carry (maintain) and pay premiums for all insurances of the types and with the limits of liability not less than stated below. The successful proposer shall acquire and maintain, during the term of this proposal, such general liability, vehicle liability, and property damage insurance as shall protect the CoJ and the JTS from all claims for liability, damages, personal injury, including accidental death, as well as from claims for property damages to the extent caused by operations under the proposal and contract whether such operations be by the successful proposer or by another directly or indirectly engaged by the successful proposer. Such insurance shall be maintained in effect during the term of the contract and shall cover all events occurring during the term of the contract (commonly known as tail coverage). It is hereby agreed and understood that the insurance required by the CoJ is primary coverage. The minimum amount of insurance shall be as follows:

A. Workers' Compensation Insurance covering all of successful proposer's employees engaged in work under the contract as required under the Workers' Compensation Act of the State of Wisconsin and/or any applicable law or laws of any other state or states. Employer's Liability Insurance with limits of liability of not less than $100,000 per accident, $100,000 per employee for disease, and $500,000 policy total for disease.

B. General Liability Insurance or self-insurance with limits of liability of not less than $1,000,000 each occurrence combined single limit and $2,000,000 general policy aggregate if applicable.

C. Automobile Liability Insurance covering “any auto” used in connection with the work performed under the contract with limits of not less than $5,000,000 each occurrence combined single limit for bodily injury and property damage.

3. All such policies as required above shall be endorsed to provide a ten (10) day written notice of cancellation, renewal, or material change to the CoJ in accordance with policy provisions, but in no event less than ten (10) days prior written notice.

4. The limits of liability as required under this section may be provided by a single policy of insurance or a combination of policies including the so-called umbrella liability policy. Self-insurance or the use of deductibles or self-insured retentions shall not be considered as complying with these requirements unless approved in writing by the CoJ.

5. The types of insurance and limits of liability stated in this section are the minimum acceptable to the CoJ and shall in no way be construed as a limitation of the successful proposer's liabilities and obligations arising out of the performance of the contract.

6. Subcontracting does not relieve the successful proposer from obtaining and maintaining the required insurances and minimums at all times necessary.

7. The successful proposer shall require any and all subcontractors performing work under the contract to carry insurance to the types and with limits of liability as the successful proposer shall deem appropriate and adequate.

8. The successful proposer shall obtain and make available for inspection by the CoJ upon request certificates of Insurance evidencing insurance coverage carried by such subcontractors.

9. Proof that such insurance coverage exists as required above shall be furnished to the CoJ in the form of certificates of insurance and submitted with proposal documents. Renewal or replacement proofs of insurance shall be furnished prior to the expiration date or termination date of any policy in compliance with the requirements of the contract.

10. If the successful proposer fails to provide required insurance during the term of the contract, the CoJ reserves the right, but not the obligation, to purchase other insurance to protect the CoJ’s interests and to withhold from the successful proposer's payments the cost of such insurances.

Claims If a claim is made against the successful proposer as a result of any service performed under this contract, the successful proposer must verbally notify the CoJ with a complete and accurate description of the claim within forty-eight (48) hours of the submission of the claim to the successful proposer. A written description of the claim must be submitted within seventy-two (72) hours of the submission of the claim to the successful proposer.

The CoJ will notify the successful proposer of any claims reported directly to the CoJ.

Lack of Funds

1. Entering into the contract by the CoJ is subject to its receipt of Federal, State, and Local funds adequate to carry out the provisions of the contract in full, and all extensions and renewals thereof

2. The CoJ, at any time and from time to time, and without cause, may cancel or reduce the quantity to be purchased if the CoJ determines that such action is in its best interests, or that there will be a lack of funding available, and will notify successful proposer as promptly as possible.

Compliance with Laws and Permits The successful proposer shall give all notices and comply with all existing and future Federal, State, and Local laws, ordinances, rules, regulations, and orders of any public authority bearing on the performance of the contract, including, but not limited to, the laws referred to in the provisions of the contract and in the other contract documents. If the contract documents are at variance therewith in any respect, any necessary changes shall be incorporated by appropriate modifications. Upon request, the successful proposer shall furnish to the CoJ certificates of compliance with all such laws, orders, and regulations as it pertains to this contract.

Protest Procedures A protest which is submitted by a person who is not an interested party or which is not in accordance with the procedures outlined in this section will not be considered by the CoJ and will be returned to the submitting person without any further action by the CoJ.

Protests by an interested party regarding the procurement actions of the CoJ must be considered and determined in accordance with the following procedures.

Any interested party may file a protest with the CoJ upon one or more of the following grounds:

a. The CoJ has failed to comply with applicable Federal or State law;

b. The CoJ has failed to comply with its procurement procedures;

c. The CoJ has failed to comply with the terms of this solicitation.

d. The CoJ has issued improperly restrictive or discriminatory specifications.

A protest must be submitted in writing by certified mail or other delivery method by which receipt can be verified.

Electronic submission of protests will not be accepted. Protests must include all of the following elements:

1. The name and address of the protesting party, and its relationship to the procurement sufficient to establish that the protest is being filed by an interested party;

2. Identity of the contact person for the protestor, including name, title, address, telephone number, fax number, and email addresses. If the contact point is a third party representing the protester, the same information must be provided, plus a statement defining the relationship between the protester and the third party.

3. Identification of the procurement;

4. A description of the nature of the protest, referencing the portion(s) of the solicitation involved;

5. Identification of the provision(s) of any law, regulation, or other governance upon which the protest is based;

6. A compete discussion of the basis for the protest, including all supporting facts, documents, and data;

7. A statement of the specific relief requested; and

8. Any relevant supporting documentation the protesting party desires the CoJ to consider in making its decision.

All protests must be received between the hours of 8:00 AM and 4:30 PM, Monday through Friday. Protests shall be submitted to:

City of Janesville City Hall 1st Floor

Director of Neighborhood and Community Services 18 N. Jackson Street, Janesville, WI 53546 (street) PO Box 5005, Janesville WI 53547-5005 (mailing)

The protestor is solely responsible for the completeness and validity of the information provided. Any documents relevant to the protest should be attached to the written submission. Documents which are readily available on the internet may be referenced by an appropriate link. If the protest is incomplete or the protestor omits required information, the CoJ shall not consider the protest.

Timing Requirements and Categories of Protests The CoJ shall consider the following categories of protests within the time period set forth in each category:

Protests regarding solicitation process:

Any protest alleging improprieties in the solicitation process or in solicitation documents must be filed no later than ten

(10) days after the publication of the RFP in order to be considered by the CoJ. Any protest based on such grounds filed after that date shall not be considered by the CoJ.

Protests regarding proposal evaluation or contract award:

Any protest regarding the evaluation of proposals by the CoJ, or improprieties involving the approval or award or proposed approval or award of the contract, must be filed with the CoJ no later than ten (10) days after the grounds for protest should have reasonably been known to the protestor, but in no event later than five (5) days after the contract has been awarded by the CoJ. Any protest filed after such date which raises issues regarding the proposal evaluation or the contract approval or award will not be considered by the CoJ.

Protest Review

The CoJ shall notify the protestor of timely receipt of a protest whether the protest is being considered.

Upon receipt of the protest the protest reviewer shall notify all parties involved in the procurement.

In the notification, the CoJ will inform the protestor of any additional information required for evaluation of the protest and set a time deadline for submittal of such information. If the CoJ requests additional information and it is not submitted by the stated deadline, the CoJ may either review the protest on the information before it or decline to take further action on the protest.

At its discretion, the CoJ may permit any party involved in the protest to submit information to the CoJ regarding the merits of the protest. The CoJ shall set a time deadline for the submittal of such comments, which shall be no less than five (5) days after notification of the protest.

The CoJ may, in its sole discretion, hold an informal conference to review the merits of the issues raised by the protest.

All interested parties will be invited to participate in the conference. Any information provided at the conference shall only be considered by the CoJ in deciding the protest if it is submitted to the CoJ in writing within three (3) days after the conference.

Effects of Protest on Procurement Action Protests regarding solicitation documents or process:

Upon receipt of a timely protest regarding the solicitation process or the solicitation documents, the CoJ may postpone the opening of the proposals until resolution of the protest. The filing of the protest will not, however, change the date on which proposals are due, unless the CoJ determines, and so notifies all proposers that such a date change is necessary and appropriate to carry out the goals of the procurement.

Protests regarding proposal evaluation or contract award:

Upon receipt of a timely protest regarding evaluation of proposals or the award of the contract, the CoJ may suspend contract approval or other pending action, or issue a stop work order if appropriate, until the resolution of the protest. In such event, the successful proposer may not recover costs resulting from any delay through a change order or through any other means, manner, or basis.

Ability to proceed Notwithstanding the pendency of a protest, the CoJ reserves the right to proceed with the appropriate step or action in the procurement process or in the implementation of the contract in the following cases:

• Where the service to be procured is urgently required;

• Where the CoJ determines, in writing, the protest is unfounded, vexatious, or frivolous;

• Where delivery or performance will be unduly delayed or other undue harm to the CoJ will occur by failure to make the contract award promptly; or

• Where the CoJ determines that proceeding with the procurement is otherwise in the best interest of the public.

Summary Dismissal The CoJ also reserves the right to summarily dismiss all or any portion of a protest that raises legal or factual arguments or allegations that have been considered and adjudicated by the CoJ in a previous protest in the same solicitation or procurement action.

Protest Decision After review of a protest is submitted, including information provided by the protestor and other parties, the results of any conferences with the protestor and the CoJ’s own investigation and analysis, the protest reviewer shall issue a written decision on the protest.

Within ten (10) working days of receipt of protest the protest reviewer will render and publish a decision or extend the response period if additional time is required to gather and evaluate information necessary for the decision or for other good cause.

If the protest is upheld, the CoJ will take appropriate action to correct the procurement process and protect the rights of the protestor, including re-solicitation of proposals, revised evaluation of proposals, the CoJ’s determinations, or termination of the Contract.

If the protest is denied, the CoJ will lift any suspension imposed and proceed with the appropriate stage of the procurement process or the contract.

Appeals A protestor adversely affected by the decision of the CoJ may submit a protest to the FTA for review in accordance with FTA Circular 4220.1F, paragraph 7.l. As stated in that Circular, FTA will only review protests regarding the alleged failure of the CoJ to have written protest procedures, alleged failure to follow such procedures, or alleged failure to review a complaint or protest.

The CoJ may proceed with the procurement in spite of a pending protest at the FTA if any of the following conditions are met:

• The service or item to be procured is urgently required.

• The delivery or performance will be unduly delayed by failure to make the award promptly.

• The failure to make prompt award will otherwise cause undue harm to the CoJ or the Federal Government.

Federal Assurances & Certifications

NO GOVERNMENT OBLIGATION TO THIRD PARTIES

FTA Circular 4220.1F

No Obligation by the Federal Government.

The COJ and the successful proposer (“Contractor”) acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the COJ, the Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.

(2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS

31 U.S.C. 3801 et seq.

49 CFR Part 31 18 U.S.C. 1001 49 U.S.C. 5307

Program Fraud and False or Fraudulent Statements or Related Acts.

(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § § 3801 et seq., and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.

(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate.

(3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.

ACCESS TO RECORDS AND REPORTS

49 U.S.C. 5325

18 CFR 18.36 (i)

49 CFR 633.17

Applicability to Contracts: Reference Chart "Requirements for Access to Records and Reports by Type of Contracts" Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $10,000. These requirements do not apply to micro-purchases; except for construction contracts over $2,000.

Flow Down Requirement: FTA does not require the inclusion of these requirements in subcontracts.

Model Clause/Language: The specified language is not mandated by the statutes or regulations referenced, but the language provided paraphrases the statutory or regulatory language.

Access to Records - The following access to records requirements apply to this Contract:

1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 18 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.

2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $250,000.

3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions.

4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C.

5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 18 CFR 18.39(i)(11).

7. FTA does not require the inclusion of these requirements in subcontracts.

REQUIREMENTS FOR ACCESS TO RECORDS AND REPORTS BY TYPES OF CONTRACT

Operational Service Contract

Turnkey Contract

Construction Contract

Arch. or Engineering Contract

Rolling Stock Contract

Professional Service Contract

State Grantees

Contracts below Simplified

Acquisition Threshold (Small

Purchase) ($250,000)

None

Those imposed on state pass thru to Contractor

None None None None

Contracts above $100,000/Capital

Projects

None unless1 non-competitive award

Those imposed on state pass thru to contractor

Yes, if non-competitive award or if funded thru2 5307, 5309, None unless non-competitive award

None unless non-competitive award

None unless non-competitive award

Non-State Grantees

Contracts below Simplified

Acquisition Threshold (Small

Purchase) ($250,000)

Yes

Those imposed on non-state Grantee pass thru to Contractor

Yes Yes Yes Yes

Contracts above $100,000/Capital

Projects Yes

Those imposed on non-state Grantee pass thru to Contractor

Yes Yes Yes Yes

Sources of Authority:49 USC 5325 (a), 49 CFR 633.17, 18 CFR 18.36 (i)

FEDERAL CHANGES

49 CFR Part 18

Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between CoJ and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract.

CIVIL RIGHTS REQUIREMENTS

29 U.S.C. § 623, 42 U.S.C. § 2000 42 U.S.C. § 6102, 42 U.S.C. § 12112 42 U.S.C. § 12132, 49 U.S.C. § 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq.

Civil Rights - The following requirements apply to the underlying contract:

(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.

(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract:

(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only, if necessary, to identify the affected parties.

http://www.fta.dot.gov/funding/apply/grants_financing_3162.html

EQUAL EMPLOYMENT OPPORTUNITY

41 CFR §60-1.4

Applicability to Contracts: Applicable to all contracts except micro-purchases (except for construction contracts over $2,000.

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $10,000. These requirements do not apply to micro-purchases.

Flow Down Requirement: Not required by statute or regulation for either primary contractors or subcontractors, this concept should flow down to all levels to clarify, to all parties to the contract, that the Federal Government does not have contractual liability to third parties, absent specific written consent.

Model Clause/Language: Federal Requirements and Guidance. The Recipient agrees to prohibit, and assures that each Third Party Participant will prohibit, discrimination on the basis of race, color, religion, sex, or national origin, and:

(a) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,

(b) Facilitate compliance with Executive Order 11246, “Equal Employment Opportunity,” as amended by

Executive Order 11375, “Amending Executive Order 11246, Relating to Equal Employment Opportunity,” 42 U.S.C. § 2000e note, and as further amended by Executive Order 13672, “Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity,” July 21, 2014,

(c) Comply with Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 13.a of this Master Agreement, and

(d) Follow Federal guidance pertaining to Equal Employment Opportunity laws and regulations, and prohibitions against discrimination on the basis of disability, Specifics. The Recipient agrees:

(a) Prohibited Discrimination. As provided by Executive Order 11246, as amended, and as specified by U.S.

Department of Labor regulations, to ensure that applicants for employment are employed and employees are treated during employment without discrimination on the basis of their:

1. Race,

2. Color,

3. Religion,

4. National origin,

5. Disability, 6 . Age, 7 . Sexual origin,

8. Gender identity, or

9. Status as a parent, and

(b) Affirmative Action. Take affirmative action that includes, but is not limited to:

1. Recruitment advertising, recruitment, and employment,

2. Rates of pay and other forms of compensation,

3. Selection for training, including apprenticeship, and upgrading, and

4. Transfers, demotions, layoffs, and terminations, but

(c) Indian Tribe. Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer,” and Equal Employment Opportunity Requirements for Construction Activities. In addition to the foregoing, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), the Recipient agrees to comply, and assures that each Third Party Participant will comply, with:

(a) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and

(b) Executive Order 11246, “Equal Employment Opportunity,” as amended by Executive Order 11375, “Amending Executive Order 11246, Relating to Equal Employment Opportunity,” 42 U.S.C. § 2000e note.

DISADVANTAGED BUSINESS ENTERPRISE (DBE)

49 CFR Part 26

Background and Applicability

The newest version on the Department of Transportation’s Disadvantaged Business Enterprise (DBE) program became effective July 16, 2003. The rule provides guidance to grantees on the use of overall and contract goals, requirement to include DBE provisions in subcontracts, evaluating DBE participation where specific contract goals have been set, reporting requirements, and replacement of DBE subcontractors. Additionally, the DBE program dictates payment terms and conditions (including limitations on retainage) applicable to all subcontractors regardless of whether they are DBE firms or not.

The DBE program applies to all DOT-assisted contracting activities. A formal clause such as that below must be included in all contracts…