RFSB TC0249-102324 Electron Microscope.pdf

Washington State University

Request for Sealed Bid (RFSB) # TC0249-102324

Transmission Electron Microscope (TEM)

Due by: November 22, 2024 4PM Local PST

RFSB Coordinator: Tim Champoux Phone: (509) 335-4585

Email: tchampoux@wsu.edu mailto:tchampoux@wsu.edu

Scope of Work

The Franceschi Microscopy & Imaging Center (FMIC) at Washington State University (WSU) is a centralized research and educational facility housed in the College of Arts and Sciences (CAS) and is available for the observation, imaging, and ultrastructural study of biological and non-biological specimens. We are planning to purchase a new Transmission Electron Microscope (TEM) system that will be utilized by users from various colleges and departments including life scientists, material scientists and engineers at WSU as well as neighboring industry and institutions.

Please see the below required specifications for a 200 kV Scanning Transmission Electron Microscope with cold field emitter. The instrument must be intuitive and easy to use and must be as flexible as possible. This includes automated alignment changes from 200 kV to 120 kV or 80 kV.

Minimum Specifications:

• EDS

• 16 MP Complementary Metal Oxide Semiconductor (CMOS) Camera

• Direct Electron Detector

• Electron Tomography

• 4DSTEM and in-situ capabilities

• Diffraction

• Brightfield STEM

• High angle annular darkfield

• Low dose capabilities

• One extra year of warranty (2 years total)

Physical Inspection:

For the optional physical inspection walkthrough, all appointments are on a first come, first serve basis. Appointments may be scheduled with Landon Kirk landon.kirk@wsu.edu for a 1-hr physical inspection of the site or can provide a virtual review of the space via zoom or similar.

No additional allowances will be granted because of lack of knowledge of site. Questions from this visit must be submitted in writing to the RFP Coordinator after the visit by November 7th and answers will be posted as an addendum to the RFSB.

The proposal must include:

• All required computers and software packages. This should include an outline of how long images can be taken at maximum camera output.

• An outline of what computer operation system is used.

• Specimen holders for all proposed capabilities

• All required ancillary equipment to safely run the microscope such as chillers, Uninterruptible Power Supply (UPS), etc.

• The resolution in standard mode and STEM mode. This must be verified after installation.

mailto:landon.kirk@wsu.edu

• An outline of operational costs, include what items covered in the standard warranty/service for the first two years and the service contract costs for years 3-7 if paid annually. Specification of what is included in a service contract e.g. chillers, UPS, parts, labor, shipping to/from offsite locations, etc. REQUIRED: A current copy of a service agreement that covers the years beyond warranty starting year 3 and going through year 7. The proposed service agreement should cover everything that is included in the respondent’s proposal defaulting to the highest level of service agreement available covering parts, labor, and any required shipping if needed for offsite repairs. WSU will evaluate service levels based on the best service agreement coverage possible as offered by the respondents, but it will also reserve the right to negotiate the coverage of that agreement after announcing the highest scoring responsive award and if needed to meet any budget constraints.

• An estimate of expected downtimes and lines of action if the instrument downtime exceeds the expectations.

• Lead time estimate

• Location and response time of closest engineer

• Costs for an engineer to travel to WSU

• Hourly charges for a service engineer

• Training (please include details on how many days and what techniques will be covered

• An outline of software packages needed. Are software packages integrated into a single platform?

• Are there software follow-up costs such as annual subscriptions to receive updates?

• Is there Internet connectivity required for the equipment and software for updates, remote service, or other similar servicing needs?

• Are the packages company owned or freeware and how are they updated and maintained?

Bid Requirements:

• Bids must include estimated shipping costs and Labor for Installation. Installation includes: uncrating, setting in place, leveling, final assembly, supervision of final utility connections and start-up and user training.

• For optional physical inspection suppliers may visit site in person or we can provide virtual review of the space via zoom or similar.

• Include references.

• Bids must have a completed Certifications and Assurances Form (Exhibit B).

Evaluation Criteria:

• Meeting minimum specs

• Price

• Operational costs-Defined in the “Proposal Must Include” section.

• Ease of use

• Quality of service

• Lead time

• Inclusion of improved capabilities, equipment, accessories and/or consumables over and above minimum requirements

SUBMISSION OF PROPOSALS

This is a Request for Sealed Bid. Do not fax or mail your response. Proposals must be submitted electronically as an attachment to an email to purchasing.sealed@wsu.edu

Attachments to emails must be in Microsoft Word format, Excel or PDF. Zipped files cannot be received by WSU and cannot be used for submission of proposals. WSU does not assume responsibility for problems with respondent's email. If WSU's email is not working appropriately, allowances will be made.

Late proposals will not be accepted and will be automatically disqualified from further consideration. All proposals and any accompanying documentation become the property of Washington State University and will not be returned.

CERTIFICATION OF ASSURANCES:

As part of its bid requirements and in order to be in compliance with RCW 28B.10.019 and RCW 39.26.160, Washington State University must receive a signed Certifications & Assurances form from the apparent successful vendor prior to placing a contract or purchase order. Please find and complete the attached WSU Certifications & Assurances form and submit it with your response. Any failure to provide the Certifications & Assurances form prior to award will result in University's determination that the bidder is not a responsible bidder as set forth in RCW39.26.160 and WSU will negotiate with the next highest scoring or lowest responsive bidder.

Attached WSU General Terms and Conditions apply to this solicitation. (Exhibit B)

RFSB COORDINATOR

The RFSB Coordinator is the sole point of contact at Washington State University for this procurement. All communication between the Consultant and Washington State University upon release of this RFSB shall be with the RFSB Coordinator, as follows:

Name: TimChampoux Title: Procurement & Supply Specialist 3 E-Mail: tchampoux@wsu.edu

Any other communication will be considered unofficial and non-binding on the University. Contractors are to rely on written statements issued by the RFSB Coordinator. Communication directed to parties other than the RFSB Coordinator may result in disqualification of the Contractors.

mailto:purchasing.sealed@wsu.edu mailto:tchampoux@wsu.edu

ESTIMATED SCHEDULE OF PROCUREMENT ACTIVITIES

Optional Walkthrough’s Completed: November 5, 2024, 4:00 pm PST Questions due: November 7, 2024, 4:00 pm PST Addendum Posted by: November 12, 2024, 4:00 pm PST Proposals due no later than: November 22, 2024, 4:00 pm PST

Washington State University reserves the right to revise the above schedule.

REVISIONS TO THE RFSB

In the event it becomes necessary to revise any part of this RFSB, addenda will be published on the Washington Electronic Business Solutions (WEBS) website at:

https://fortress.wa.gov/ga/webscust/ . For this purpose, the published questions and answers and any other pertinent information shall be provided as an addendum to the RFSB and will be placed on this website.

For further information on registering with the WEBS go to:

https://fortress.wa.gov/ga/webscust/

The following attachments are included and part of this RFSB:

1. The RFSB Terms and Conditions (Exhibit A)

2. WSU General Terms and Conditions (Exhibit B)

3. Certification and Assurances form (Exhibit C)

RFP GENERAL TERMS AND CONDITIONS

In submitting a bid in response to this RFP, the bidder agrees to accept the terms set forth in this RFP.

1. Purchase Order with Terms and Conditions: The apparent successful contractor will be subject to the resulting Purchase Order and its general terms and conditions in the attached labeled as Exhibit B. In no event is a Supplier to submit its own standard contract terms and conditions in response to this solicitation. The Supplier may submit exceptions as allowed in the Certifications and Assurances form, Exhibit C to this solicitation. All exceptions to the general terms and conditions must be submitted as an attachment to Exhibit C, Certifications and Assurances form. Washington State University will review requested exceptions and accept or reject the same at its sole discretion.

2. Most Favorable Terms: Washington State University reserves the right to make an award without further discussion of the proposal submitted. Therefore, the proposal should be submitted initially on the most favorable terms which the Consultant can propose. There will be no best and final offer procedure. Washington State University does reserve the right to contact a Consultant for clarification of its proposal. The Apparent Successful Contractor should be prepared to accept this RFP for incorporation into a contract resulting from this RFP. Contract negotiations may incorporate some or all of the Consultant’s proposal. It is understood that the proposal will become a part of the official procurement file on this matter without obligation to Washington State University.

3. Responsiveness: All proposals will be reviewed by the RFP Coordinator to determine compliance with administrative requirements and instructions specified in this RFP. The Consultant is specifically notified that failure to comply with any part of the RFP may result in rejection of the proposal as non-responsive. WSU also reserves the right at its sole discretion to waive minor administrative irregularities.

4. Costs to Propose: Washington State University will not be liable for any costs incurred by the Consultant in preparation of a proposal submitted in response to this RFP, in conduct of a presentation, or any other activities related to responding to this RFP.

5. Contracting with Current or Former State Employees: Specific restrictions apply to contracting with current or former state employees pursuant to chapter 42.52 of the Revised Code of Washington. Proposers should familiarize themselves with the requirements prior to submitting a proposal that includes current or former state employees.

6. Minority & Women-Owned Business Participation: In accordance with chapter 39.19 RCW, the state of Washington encourages participation in all of its contracts by firms certified by the Office of Minority and Women’s Business Enterprises (OMWBE). Participation may be either on a direct basis in response to this solicitation or on a subcontractor basis. However, no preference will be included in the evaluation of proposals, no minimum level of MWBE participation shall be required as a condition for receiving an award and proposals will not be rejected or considered non-responsive on that basis.

7. Proprietary Information / Public Disclosure: Proposals submitted in response to this competitive procurement shall become the property of Washington State University. All proposals received shall remain confidential until the contract, if any, resulting from this RFP is signed by the Director of Purchasing Services, or his Designee, and the apparent successful Contractor; thereafter, the proposals shall be deemed public records as defined in Chapter 42.56 of the Revised Code of Washington (RCW). Any information in the proposal that the Consultant desires to claim as proprietary and exempt from disclosure under the provisions of Chapter 42.56 RCW, or other state or federal law that provides for the nondisclosure of your document, must be clearly designated. The information must be clearly identified and the particular exemption from disclosure upon which the

Exhibit A

Consultant is making the claim must be cited. Each page containing the information claimed to be exempt from disclosure must be clearly identified by the words “Proprietary Information” printed on the lower right hand corner of the page. Marking the entire proposal exempt from disclosure or as Proprietary Information will not be honored. If a public records request is made for the information that the Consultant has marked as "Proprietary Information," the Washington State University will notify the Consultant of the request and of the date that the records will be released to the requester unless the Consultant obtains a court order enjoining that disclosure. If the Consultant fails to obtain the court order enjoining disclosure, Washington State University will release the requested information on the date specified. If a Consultant obtains a court order from a court of competent jurisdiction enjoining disclosure pursuant to Chapter 42.56 RCW, or other state or federal law that provides for nondisclosure, Washington State University shall maintain the confidentiality of the Consultant's information per the court order.

8. No Obligation to Contract: This RFP does not obligate the state of Washington or Washington State University to contract for services specified herein.

9. Rejection of Proposals: Washington State University reserves the right at its sole discretion to reject any and all proposals received without penalty and not to issue a contract as a result of this RFP.

10. Commitment of Funds: The President of Washington State University or his delegates are the only individuals who may legally commit Washington State University to the expenditures of funds for a contract resulting from this RFP. No cost chargeable to the proposed contract may be incurred before receipt of a fully executed contract.

11. Evaluation Procedure: Responsive proposals will be evaluated strictly in accordance with the requirements stated in this solicitation and any addenda issued. The evaluation of proposals shall be accomplished by an evaluation team(s), to be designated by Washington State University. Washington State University, at its sole discretion, may elect to select the top-scoring firms as finalists for an oral presentation. The RFP Coordinator may contact the Supplier for clarification of any portion of the Supplier’s proposal. Washington State University reserves the right to award the Purchase Order to the Supplier(s) whose proposal(s) is (are) deemed to be in the best interest of Washington State University and the state of Washington.

12. Notification to Proposers: Washington State University will notify the Apparently Successful Supplier of their selection in writing via email upon completion of the evaluation process.

Individuals or firms whose proposals were not selected for further negotiation or award will be notified separately by e-mail or facsimile.

13. Complaint Process: In compliance with RCW 39.26.170 Washington State University (WSU) has established the following Complaint Process; which shall apply to University solicitations posted to WEBS (Washington Electronic Business Solutions). The complaint process allows bidders to focus on the solicitation requirements and evaluation process and raise issues with these processes early enough to allow WSU to correct a problem before bids are submitted and time expended on evaluations. The procurement complaint process will meet the following minimum requirements:

13.1 Bidders will be given an opportunity to submit a complaint to WSU based on any of the following:

a. The solicitation unnecessarily restricts competition;

b. The solicitation evaluation or scoring process is unfair or flawed; or

c. The solicitation requirements are inadequate or insufficient to prepare a response.

13.2 Bidders will be allowed to submit complaints until the deadline for questions within the solicitation has expired or five (5) business days before the solicitation is due; whichever is earlier. Complaints must meet the following requirements:

a. Must be in writing.

b. Must be sent to the procurement coordinator, or designee.

c. Should clearly articulate the basis for the complaint.

d. Should include a proposed remedy.

13.3 The procurement coordinator will respond to complaints in writing.

13.4 The response to complaints including any changes to the solicitation will be posted as an amendment on WEBS.

13.5 The Director of Purchasing Services will be notified of all complaints and will be provided a copy of the response.

13.6 The complaint may not be raised again during the protest period.

13.7 The complaint process does not include an appeal process.

14. Protest Process: In compliance with RCW 39.26.170 Washington State University (WSU) has established the following Protest Process; which shall apply to University solicitations posted to WEBS (Washington Electronic Business Solutions)

14.1 Protests may be made only by bidders who submitted a response to the solicitation document and who have participated in a debriefing conference. Bidders will be given three (3) business days after the apparent successful bidder is announced to provide a written request for a debriefing. Upon completing the debriefing conference, the bidder is allowed three (3) business days to file a protest of the acquisition with the RFP Coordinator. Protests must be received by the RFP Coordinator no later than 4:30 PM, local time, in Pullman Washington on the third business day following the debriefing. Protests may be submitted by e-mail or facsimile, but must then be followed by the document with an original signature.

14.2 Bidders protesting this procurement shall follow the procedures described below. Protests that do not follow these procedures shall not be considered. This protest procedure constitutes the sole administrative remedy available to bidders under this procurement.

a. All protests must be in writing, addressed to the RFP Coordinator, and signed by the protesting party or an authorized Agent. The protest must state the RFP number, the grounds for the protest with specific facts and complete statements of the action(s) being protested. A description of the relief or corrective action being requested should also be included.

b. Only protests stipulating an issue of fact concerning the following subjects shall be considered:

i. A matter of bias, discrimination or conflict of interest on the part of an evaluator;

ii. Errors in computing the score;

iii. Non-compliance with procedures described in the procurement document or WSU policy.

14.3 Protests not based on procedural matters will not be considered. Protests will be rejected as without merit if they address issues such as: 1) an evaluator’s professional judgment on the quality of a proposal, or 2) WSU’s assessment of its own and/or other agencies needs or requirements.

14.4 Upon receipt of a protest, a protest review will be held by the WSU Purchasing Office. The Purchasing Director or an employee delegated by the Director who was not involved in the procurement will consider the record and all available facts and issue a decision within five business days of receipt of the protest. If additional time is required, the protesting party will be notified of the delay.

14.5 In the event a protest may affect the interest of another bidder that also submitted a proposal, such bidder will be given an opportunity to submit its views and any relevant information on the protest to the RFP Coordinator.

14.6 The final determination of the protest shall:

a. Find the protest lacking in merit and uphold WSU’s action; or

b. Find only technical or harmless errors in WSU’s acquisition process and determine WSU to be in substantial compliance and reject the protest; or

c. Find merit in the protest and provide the WSU options which may include:

i. Correct the errors and re-evaluate all proposals, and/or

ii. Reissue the solicitation document and begin a new process, or

iii. Make other findings and determine other courses of action as appropriate.

14.7 If WSU determines that the protest is without merit, WSU will enter into a contract with the apparent successful bidder. If the protest is determined to have merit, one of the alternatives noted in the preceding paragraph will be taken. The outcome and decision of this protest procedure are final.

v. January 8, 2024

GENERAL TERMS AND CONDITIONS

DEFINITIONS

As used throughout this Contract, including these General Terms and Conditions, the following terms shall have the meaning set forth below:

“Contract” means the purchase order and/or the entire written agreement between WSU and Contractor, including any Exhibits, documents, and materials incorporated by reference.

“Contractor” means that firm, provider, organization, individual or other entity providing goods and/or performing service(s) under this Contract, and shall include all employees, assigns, successors in interest and authorized agents of Contractor.

“Debarment” means an action taken by a federal official to exclude a person or business entity from participating in transaction involving certain federal funds.

“Improper influence” means any influence that induces or tends to induce a WSU employee or officer to give consideration or to act regarding a Government contract on any basis other than the merits of the matter.

“Materials” means all information in any format and includes, but is not limited to, data, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, software, digital file, computer programs, films, tapes, and sound reproductions.

“Ownership” includes the right to copyright, patent, and register, and the ability to transfer, these rights.

“Party” or “Parties” Party, when capitalized, shall mean an individual generic reference to Contractor or WSU. Parties, when capitalized, shall mean both Contractor and WSU.

“Personal Information” means information identifiable to any person, including, but not limited to, information that relates to a person’s name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, Social Security Numbers, driver license numbers, other identifying numbers, and any financial identifiers.

“RCW” means the Revised Code of Washington. All reference in this Contract to RCW chapters or sections shall include any successor, or replacement statute.

“Law” means any federal, state, local or WSU regulation, law, rule, or ordinance.

“Terms and Conditions” means terms and conditions other than these General Terms and Conditions.

“Subcontract” means any separate agreement or contract between Contractor and an individual or entity (“Subcontractor”) to perform all or portion of the duties and obligations that Contractor is obligated to perform pursuant to this Contract.

“Subcontractor” means one not in the employment of Contractor, and/or entity that owns or controls, is owned or controlled by, or is under common ownership or control of Contractor, who is performing all or part of those services under this Contract under a separate contract with Contractor, and/or any person or entity appointed by or on behalf of Contractor to carry out any portion of the Work.. The terms "Subcontractor" and "Subcontractors" means Subcontractor(s) in any tier. Control for the context of this

Exhibit B paragraph shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting security, by contract, or otherwise.

“Work” refers to all services, work, and activities involved in providing the materials, work product deliverables, or other obligations that are the subject of the Contract.

“WSU” means WASHINGTON STATE UNIVERSITY, any division, section, office, unit, campus or other entity of WASHINGTON STATE UNIVERSITY, or any of the officers or other officials lawfully representing

WASHINGTON STATE UNIVERSITY.

1. ACCESS TO DATA – In compliance with RCW 39.26.180, Contractor shall provide access to data generated under this Contract to WSU, the Joint Legislative Audit and Review Committee, and the State Auditor at no additional cost. This includes all to all information that supports the findings, conclusions, and recommendations of Contractor’s reports, including computer models and methodology for those models.

2. ACCESSIBILITY – Contractor represents that it is committed to promoting and improving the accessibility of all its products as specified in the WSU Accessibility Statement (https://access.wsu.edu/), and will remain committed throughout the term of this Contract. If the Work is not in conformance with all applicable federal and state disability laws, policies, and regulations, Contractor shall use reasonable efforts to update the Work so as to be in conformance therewith. In the event any issues arise regarding Contractor’s compliance with applicable federal or state disability laws, policies and regulations, WSU may send communications to Contractor as specified who will assign a person with accessibility expertise to reply to WSU within two (2) business days.

3. ADVANCE PAYMENTS PROHIBITED – No payments in advance of or in anticipation of goods or services to be provided under this Contract shall be made by WSU, except as authorized by Law.

4. AMENDMENTS – This Contract may only be amended by the mutual written agreement of the Parties. No material alterations in any of the terms, conditions, delivery, price, quality, quantity, or specifications shall be effective unless the alteration is expressly acknowledged and accepted in writing by an authorized person at WSU.

Automatic extensions and renewals are not authorized unless stated in writing and included in this Contract.

5. ANTITRUST ASSIGNMENTS – Contractor hereby assigns to WSU any and all claims for price fixing or overcharges relating to goods, products, services and/or materials purchased under this Contract, except as to overcharges that result from antitrust violations commencing after the price is established under this Contract and that are not passed on to WSU under an escalation clause.

6. ASSIGNMENT – The work to be provided under this Contract, and any claim arising there under, is not assignable or delegable by Contractor without prior written consent by WSU. Provision of monies due under this Contract shall only be assignable with prior written permission of WSU.

7. ATTORNEYS’ FEES – In the event of litigation or other action brought to enforce the Contract terms; each party shall bear its own attorneys’ fees and costs.

8. BREACH, DEFAULT, TERMINATION

A. Breach: A breach of a term or condition of this Contract shall mean any one or more of the following events:

(1) Contractor fails to perform the services by the date required or by a later date as may be agreed to in a written amendment to this Contract signed by WSU;

(2) Contractor breaches any warranty or fails to perform or comply with any term or provision in this

Contract;

(3) Contractor makes any general assignment for the benefit of creditors;

(4) In WSU’s sole opinion, Contractor becomes insolvent or in an unsound financial condition so as to endanger performance hereunder;

(5) Contractor becomes the subject of any proceeding under any law relating to bankruptcy, insolvency or reorganization, or relief from creditors and/or debtors;

(6) Any receiver, trustee, or similar official is appointed for Contractor or any of Contractor’s property;

(7) Contractor is determined to be in violation of any rules or Laws and that such determination, in

WSU’s sole opinion, renders Contractor unable to perform any aspect of this Contract.

B. Default: Contractor may be declared in default for a material breach of any term or condition.

C. Termination for Convenience: WSU may terminate this Contract, in whole or in part, at any time and for any reason by giving thirty (30) calendar days written termination notice to Contractor.

Termination charges shall not apply unless they are subsequently agreed upon by both Parties. Where termination charges are applicable, both Parties agree to negotiate in good faith and to limit the extent of negotiations to valid documented expenses incurred by Contractor prior to date of termination. Should the Parties not agree to a satisfactory settlement, the matter may be subjected to mediation and/or legal proceedings.

D. Termination for Breach and/or Default: Except in the case of delay or failure to perform resulting from circumstances beyond the control and without the fault or negligence of Contractor or of Contractor’s suppliers or subcontractors, WSU shall be entitled, by written or oral notice, to cancel and/or terminate this Contract in its entirety or in part for breach and/or for default of any of the terms herein and to have all other rights against Contractor by reason of Contractor’s breach as provided by Law.

E. Funding Contingency: In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement and prior to normal completion, WSU may terminate this Agreement under the “Termination for Convenience” clause without advance notice, subject to renegotiation under those new funding limitations and conditions.

F. Termination by Mutual Agreement: WSU or Contractor may terminate this Contract in whole or in part, at any time, by mutual written agreement signed by authorized persons.

9. COMPLIANCE WITH APPLICABLE LAW – At all times during the term of this Contract, Contractor shall comply with all Laws, including but not limited to, nondiscrimination laws, anti-kickback laws, fraudulent claims law and export controls. Any violations of this section shall be considered a material breach of this Contract. Contractor agrees to indemnify and hold WSU harmless from any and all damages or claims caused by Contractor’s failure to comply with Law.

10. COMPLIANCE WITH FEDERAL CIVIL RIGHTS LAW - The Contractor and Subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

11. CONFIDENTIALITY – Contractor may use Personal Information and any other information gained by reason of this Contract only for the purpose of this Contract. Contractor shall not disclose, transfer, or sell any such information to any third party, except as provided by Law or, in the case of Personal Information, without the prior written consent of the person to whom the Personal Information pertains. Contractor shall maintain the confidentiality of all confidential information gained by reason of this Contract, and shall return or certify the destruction of such information if requested in writing by WSU.

12. CONFLICT OF INTEREST – Notwithstanding any determination by the Executive Ethics Board or other tribunal, WSU may, in its sole discretion, by written notice to Contractor, terminate this Contract if it is found after due notice and examination by WSU that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW, or any similar statute involving Contractor in the procurement of this Contract, or the provision of goods or services under this Contract.

If this Contract is terminated as provided above, WSU shall be entitled to pursue the same remedies against Contractor as it could pursue in the event of a breach of this Contract by Contractor. The rights and remedies of WSU provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law.

13. CONTRACTING WITH CURRENT OR FORMER WASHINGTON STATE EMPLOYEES – Contractor certifies, to the best of Contractor’s knowledge, that no current or former Washington State employee or officer has a beneficial interest or other involvement in this Contract in violation of Chapter 42.52 RCW (Ethics in Public Service). Contractor will immediately disclose any violation of Chapter 42.52 RCW under this Contract to

WSU.

14. COPYRIGHT AND INTELLECTUAL PROPERTY PROVISIONS – Unless otherwise provided, all Materials produced under this Contract shall be considered "works for hire" as defined by the U.S. Copyright Act and shall be owned by WSU. WSU shall be considered the author of such Materials. If the Materials are not considered “works for hire” under the U.S. Copyright laws, Contractor hereby irrevocably assigns all right, title, and interest in Materials, including all intellectual property rights, to WSU effective from the moment of creation of such Materials.

For Materials that are delivered under this Contract, but that incorporate pre-existing materials not produced under this Contract, Contractor grants to WSU a nonexclusive, royalty-free, irrevocable license (with rights to sublicense others) in such Materials to translate, reproduce, distribute, prepare derivative works, publicly perform, and publicly display. Contractor warrants and represents that Contractor has all rights and permissions, including intellectual property rights, moral rights, and rights of publicity, necessary to grant such a license to WSU.

WSU shall receive prompt written notice of each notice or claim of copyright infringement received by Contractor with respect to any Materials delivered under this Contract. WSU shall have the right to modify or remove any restrictive markings placed upon the Materials by Contractor.

15. COVENANT AGAINST CONTINGENT FEES – Contractor warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents, as defined in the FAR Subpart 3.4, maintained by Contractor for the purpose of securing business. WSU shall have the right, in the event of breach of this clause by Contractor, to annul this Contract without liability or, in its discretion, to deduct from the contract price or consideration or recover by other means the full amount of such commission, percentage, brokerage, or contingent fee.

16. DEBARMENT CERTIFICATION – Contractor, by accepting the terms of this Contract, certifies that Contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency from participating in transactions. Contractor shall include the above mentioned requirement in any and all subcontracts into which it enters. In the event that Contractor becomes debarred, suspended or ineligible from participating in transactions, Contractor shall notify WSU in writing within three working days of such an event.

17. DELIVERY AND ACCEPTANCE – Delivery shall be accomplished by the date and time in the order, and noncompliance may be construed as grounds for termination for cause for failure to deliver on time.

Partial delivery will not be construed as acceptance of goods, including failure to deliver related software, materials or documentation. Unless otherwise provided in writing, WSU shall have ninety (90) days after delivery to accept software and equipment.

18. DELIVERY RESTRICTIONS – Parking on campus sidewalks, grounds, or roadways is strictly prohibited.

19. DISALLOWED COSTS – Contractor is responsible for any audit exceptions or costs disallowed by WSU that are incurred by Contractor or its subcontractors.

20. FORCE MAJEURE – Neither Contractor nor WSU shall be liable for damages arising from causes beyond the reasonable control and without the fault or negligence of either Contractor or WSU. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of a governmental body other than WSU acting in either its sovereign or contractual capacity, war, acts of terrorism, explosions, fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or other force majeure; but in every case the delays must be beyond the reasonable control and without fault or negligence of Contractor, WSU, or their respective Subcontractors.

21. GOVERNING LAW – This Contract shall be interpreted in accordance with the laws of the state of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Whitman County.

22. INDEMNIFICATION – To the fullest extent permitted by Law, Contractor shall indemnify, defend, and hold WSU and its officers, employees, students and agents, harmless from and against all claims for damages, costs (including attorney’s fees), or liability, relating to the death or injury to any persons or the damage of any property resulting from or arising out of the acts or omissions of Contractor or its employees, agents, or subcontractors in connection with this Contract. Contractor expressly agrees to indemnify, defend, and hold harmless WSU for any claim arising out of or incident to Contractor’s or any subcontractor’s performance or failure to perform this Contract. Contractor’s obligation to indemnify, defend, and hold harmless WSU shall not be eliminated or reduced by any actual or alleged concurrent negligence of WSU or its officers, employees, students, and agents. Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify WSU, the Board of Regents of WSU, and their officers, employees, students, and agents as provided herein.

23. INDEPENDENT CONTRACTOR – The Parties intend that an independent contractor relationship is created by this Contract. Contractor and his or her employees or agents performing under this Contract are not employees or agents of WSU. Contractor, his or her employees, or agents performing under this Contract will not hold himself/herself out as, nor claim to be, an officer or employee of WSU or of the State of Washington during the term of this Contract, or act as attorney in fact, nor will Contractor make any claim of right, privilege or benefit that would accrue to such employee. Conduct and control of the work will be solely with Contractor.

24. INDUSTRIAL INSURANCE COVERAGE – As applicable, Contractor shall comply with the provisions of Title 51 RCW, Industrial Insurance. If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees, as may be required by law, WSU may collect from Contractor the full amount payable to the Industrial Insurance accident fund. WSU may deduct the amount owed by Contractor to the accident fund from the amount payable to Contractor by WSU under this Contract, and transmit the deducted amount to the Department of Labor and Industries, Division of Insurance Services. This provision does not waive any of the Department of Labor and Industries’ right to collect from Contractor.

25. INFRINGEMENTS – Contractor agrees to defend, indemnify and hold harmless WSU against all claims for patent, copyright, or franchising infringements arising from the purchase, installation, or use of software, documentation, material or product ordered on this Contract, and to assume all expense and damage arising from such claims.

26. INSPECTION – In addition to any rights of access or inspection that may be included in any Terms and Conditions, Contractor shall provide reasonable access to Contractor’s place of business, Contractor records, and client records, to WSU and to any authorized agent of the state of Washington or the federal government in order to monitor, audit, and evaluate Contractor’s performance and compliance with applicable Laws, and these Contract terms during the term of this Contract and for one (1) year following termination or expiration of this Contract, six (6) years in relation to all records maintained per Records Maintenance clause of this Contract.

27. INSURANCE - If the Contractor’s performance under this Contract will involve Work falling into any of the categories enumerated within this section, and insurance requirements have not otherwise been specified in the Contract, Contractor shall maintain, during the performance of this Contract, all relevant types of insurance in amounts equal to or exceeding those listed below. Contractor shall, prior to the commencement of Work under this Contract, provide WSU Purchasing, at PO Box 641020, Pullman, WA 99164-1020, or other University unit identified in Contract, with a certificate of insurance evidencing proof of insurance coverage, and shall name WSU as an additional insured. All insurance policies shall contain an appropriate severability of interests clause. WSU reserves the right to require additional types of insurance, and/or higher insurance limits, as circumstances require. Contractor shall provide appropriate proof of insurance under this section upon request, regardless of type or amount. Upon request, Contractor shall submit to WSU within fifteen (15) days of the Contract effective date, a certificate of insurance that outlines the coverage and limits defined in this section. Contractor shall submit renewal certificates as appropriate during the term of the Contract. Contractor shall maintain insurance of at least the following types and amounts:

A. Commercial General Liability Insurance. For service contracts in which Contractor will perform a significant portion of the Work under this Contract on WSU premises, within WSU facilities, in contact with WSU employees or students, or upon request, Contractor shall maintain Commercial General Liability Insurance, and provide proof of such upon request, in the following amounts:

i) $1,000,000 per occurrence

ii) $3,000,000 aggregate

iii) $100,000 damage to premises

B. Automobile Liability Insurance. For Contracts including services delivered pursuant to this Contract involving the use of vehicles, either owned, unowned, or hired by the Contractor, Contractor shall maintain Automobile Liability Insurance, and provide proof of such, in the following amount:

i) $1,000,000 per occurrence; owned, unowned, and hired vehicles shall be covered;

ii) Contractor may provide Combined Single Limit for bodily injury and property damage.

C. Professional Liability/Errors and Omissions Insurance. For services delivered pursuant to this

Contract, either directly or indirectly that involve or require professional services, skill, and/or judgment, or upon request, Contractor shall maintain Professional Liability/Errors and Omissions Insurance, and provide proof of such upon request, in the following amounts:

i) $2,000,000 per claim

ii) $3,000,000 aggregate For Contracts under this subsection, the provision of Professional Liability/Errors and Omissions Insurance shall replace the Contractor’s obligation to maintain and provide proof of Commercial General Liability Insurance.

D. Foreign Liability Insurance. For services provided under this Contract which will be performed outside of the United States or upon request, Contractor shall maintain the following types and levels of insurance and provide proof of such upon request:

i) International Commercial General Liability coverage with a limit of at least $5,000,000 per occurrence including products/completed operations coverage;

ii) International voluntary workers’ compensation coverage per statutory requirements;

iii) International automobile liability insurance with limits of at least $1,000,000 per occurrence.

28. LICENSING, ACCREDITATION AND REGISTRATION

Contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements necessary for the performance of this Contract.

29. LIENS, CLAIMS AND ENCUMBRANCES – Contractor warrants and represents that all software, documentation, materials, equipment or services delivered under this Contract are free and clear of all liens, claims, or encumbrances of any kind.

30. LIMITATION OF AUTHORITY – Only a WSU employee authorized in writing to bind WSU shall have the express, implied, or apparent authority to alter, amend, modify, or waive any clause or condition of this Contract. Any alterations, amendments, modifications, or waivers may be WSU personnel or employees without such written authority will not be effective or binding unless also made in writing and signed by an authorized WSU representative.

31. LIMITATION OF LIABILITY – WSU shall not be liable to Contractor or to any Subcontractor, regardless of the form of action, for any consequential, incidental, indirect, special or punitive damages, or for any claim or demand based on a Date Compliance issue, release of information, or patent, copyright, or other intellectual property right infringement. This section does not modify any specific agreement regarding liquidated damages or any other conditions as are elsewhere expressly agreed to between the Parties.

32. NO DISCRIMINATION –

A. Nondiscrimination Requirement. During the term of this Contract, Contractor, including any subcontractor, must not discriminate on the basis of age, sex, marital status, sexual orientation, gender identity, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, the use of a trained dog guide or service animal by a person with a disability, genetic information, or any other protected status, in compliance with applicable state and federal law, including RCW 49.60.530.

In addition, Contractor, including any subcontractor, must give written notice of this nondiscrimination requirement to any labor organizations with which Contractor, or subcontractor, has a collective bargaining or other agreement.

B. Obligation to Cooperate. Contractor, including any subcontractor, shall cooperate and comply with any Washington state agency investigation regarding any allegation that Contractor, including any subcontractor, has engaged in discrimination prohibited by this Contract pursuant to RCW 49.60.530(3).

C. Default. Notwithstanding any provision to the contrary, WSU may suspend Contractor, including any subcontractor, upon notice of a failure to participate and cooperate with any state agency investigation into alleged discrimination prohibited by this Contract, pursuant to RCW 49.60.530(3).

Any such suspension will remain in place until WSU receives notification that Contractor, including any subcontractor, is cooperating with the investigating state agency. In the event Contractor, or subcontractor, is determined to have engaged in discrimination identified at RCW 49.60.530(3), WSU may terminate this Contract in whole or in part, and Contractor, subcontractor, or both, may be referred for debarment as provided in RCW 39.26.200. Contractor or subcontractor may be given a reasonable time in which to cure this noncompliance, including implementing conditions consistent with any court-ordered injunctive relief or settlement agreement.

D. Remedies for Breach. Notwithstanding any provision to the contrary, in the event of Contract termination or suspension for engaging in discrimination, Contractor, subcontractor, or both, shall be liable for contract damages as authorized by law including, but not limited to, any cost difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, which damages are distinct from any penalties imposed under Chapter 49.60, RCW. WSU shall have the right to deduct from any monies due to Contractor or subcontractor, or that thereafter become due, an amount for damages Contractor or subcontractor will owe WSU for default under this provision.

33. ORDER IDENTIFICATION – All invoices, packing lists, packages, shipping notices, and other written documentation affecting any goods delivered under this Contract shall contain the applicable order number. Packing lists shall be enclosed in each and every box or package shipped pursuant to this Contract indicating the contents therein. Invoices will not be processed for payment until all items invoiced are received. Shipments received without order numbers may be refused, at Contractor’s expense.

34. ORDER OF PRECEDENCE – In the event of any inconsistencies or conflicting terms and conditions in this Contract, such inconsistency or conflict shall be resolved by giving precedence in the following order: any negotiated Contract between WSU and Contractor; federal flow down terms and conditions (if applicable);

these General Terms and Conditions. Contractor’s terms proposed are rejected, unless otherwise provided in writing by WSU’s Purchasing Department.

35. OTHER APPLICABLE LAWS – Any provision required to be included in a contract of this type by any applicable and valid federal, state or local law, ordinance, rule or regulations will be deemed to be incorporated herein.

36. MISCELLANEOUS FEES/CHARGES – WSU reserves the right to short pay invoices that include unidentified or miscellaneous fees and charges not included in Contractor’s quote, proposal, or contract with WSU.

Miscellaneous fees/charges may include, but are not limited to: tariffs, special handling or packaging, fuel surcharge, compliance charge, paper invoice fee, merchant bank fee, energy surcharge, and additional time fee.

37. PACKING – No charges will be…