RS1506-J_BoosterPump_RFP.docx

OBDD RFP No. RS1506-J OregonBuys Open Market Bid S-12300-00002332

Request for Proposals:

Booster Pump for Dredge Support

Proposal due date: April 6, 2022 at 3:00 p.m. Pacific Time

Single Point of Contact (“SPC”):

Devon Thorson, Contracts Officer Oregon Business Development Department 775 Summer St., NE, Suite 200 Salem, OR 97301- 1280 Telephone: (971) 600 – 4484 Email: Devon.T.Thorson@oregon.gov

The State of Oregon, acting by and through the Oregon Business Development Department (“Agency” or “Department”), is issuing this Request for Proposals. The Department seeks the services of an individual(s) or firm to provide a booster pump to enhance the capacity of the State's Dredge Program (“Program”). The Program contracts with one Oregon public port to maintain the state's existing dredge and conduct maintenance operations at other Oregon public ports. The state's Ellicott hydraulic cutterhead dredge is custom conventional and swinging ladder dredge reaching with a maximum digging depth of -20 MLLW. The procurement of a booster pump would enable the Program to pump sedimentation removed from different and diverse marina locations to permitted disposal sites.Training for the operational port’s crew will be required.

1.2 DESCRIPTION OF PRODUCT NEEDED / MINIMUM SPECIFICATIONS

The booster pump must have the following specifications or substantial equivalent:

General Specifications:

· 10-inch booster pump with centrifugal single suction volute having a 12-inch diameter suction arranged for 10-inch inside diameter suction pipe.

· The 10-inch pump mounted on a structural steel skid base powered by a John Deere 6090 or similar industrial diesel engine via belt drive.

· The centrifugal slurry pump made of hard metal material with horizontal end-suction, suitable for high-discharge head, abrasive slurries and a wide range of particle sizes.

· The wet end consisting of a single-wall shell, a three-vane impeller (that screws onto the shaft) and a suction plate/liner.

· The pump and bearings, the belt drive and the diesel engine installed on a structural steel skid base. The radial bearings a self-aligning, double-row, spherical roller-type design and adapter mounted.

· A machined saddle on the pedestal and a machined fit on the split-cartridge bearing housing for automatic alignment.

Booster Dredge Pump Specifications:

· The dredge pump must be a GIW Industries model LCC-M250-660 or another high efficiency dredge pump designed for long life in normal dredging service.

· The dredge pump is driven by the diesel engine via belt drive.

Booster Pump Engine Specifications:

· The engine is preferably a John Deere 6090 or similar industrial diesel engine rated at approximately 325 BHP (242 bkW) intermittent at 2200 RPM.

· The engine unit must include all necessary auxiliaries including, but not limited to, the following:

· Radiator and fan cooling system with engine driven jacket water pump.

· Instrument panel with fuel oil pressure gauge, lubricating oil pressure gauge, water temperature gauge, tachometer and ammeter.

· Alarm system for high water temperature and/or low oil pressure, with manual shutdown.

· 24 V.D.C. electric starting system with alternator, batteries, battery box and cables.

· Exhaust silencer.

· Fuel tank capacity of at least 190 gallons (719 liters).

Auxiliary Equipment The booster pump must also be equipped with the following:

· One (1) booster pump inlet pressure - vacuum gauge, with tubing.

· One (1) booster pump discharge pressure gauge, with tubing.

· Belt guard for pump drive.

· One (1) suction cleanout – 12-inch I.D.

· One (1) welded steel skid base with lifting lugs for lifting or moving the booster pump assembly as a single unit.

· One (1) service water pump, for supply of gland sealing water.

Painting External Surfaces

· The machinery described in this solicitation must, where applicable, be painted and surfaces that are not painted must be protected in a suitable manner to prevent corrosion while being shipped or stored.

Instruction Manuals

· The machinery must come with an instruction manual in the English language and include:

· Instructions giving the frequency and specifications for lubrication of the equipment.

· Illustrated assembly drawings with part numbers for Ellicott manufactured equipment.

· Parts list and available literature for principal equipment purchased by Ellicott.

Shop Tests

· The pump unit shall be shop assembled to check alignment and proper installation.

Compatibility Compatability with the Department’s existing Ellicott hydraulic cutterhead dredge. The dredge is custom conventional and swinging ladder dredge reaching with a maximum digging depth of -20 MLLW.

Additional information about the Department’s dredge can be found at these resources:

· Manufacturer’s website: https://www.dredge.com/.

· Spec sheet: https://www.dredge.com/wp-content/uploads/2020/10/360SL-Dragon-Series-Dredge-Web-Form-100620.pdf

· Video description: https://www.dredge.com/equipment/swinging-ladder-dredges/

Additional Required Attributes

· Compatibility with the Department’s dredge for wireless communication and operation.

· An automated control system or automation package for automatic adjustment of the engine rpm speed based on actual suction and discharge pressures when the pump is operational.

· Training and curriculum of port or Department staff

1.3 QUESTIONS AND CLARIFICATIONS

The Single Point of Contact (“SPC”) for this RFP is identified on the Cover Page, along with the SPC’s contact information. All inquiries, whether relating to the RFP process, administration, deadline or award, or to the intent or technical aspects of the services must be submitted in writing (email preferred; mail or fax are acceptable) to the SPC. All inquiries must reference the RFP number; identify Proposer’s name and contact information; and refer to the specific area of the RFP being questioned (i.e. page, section and paragraph number if applicable).

All questions must be received not later than (7) calendar days prior to the Proposal due date specified on the title page of this RFP.

Substantive questions and answers will be issued as official addenda to this RFP. Changes or modifications to this RFP shall be binding on Department only if in the form of written addenda issued by Department.

The Department will provide addenda by posting them to Oregon Buys, and on the Department’s website at https://www.oregon.gov/biz/programs/homeareas/contracts/ . Anyone who has received a copy of this RFP from a source other than Department is responsible for checking with designated procurement staff, Oregon Buys or the Department’s internet address for the existence of any addenda. Proposers are responsible for checking these sources to determine whether or not an addendum has been issued, and then must either download or request an electronic copy. Aside from requested copies, Department is not responsible for sending addenda to any potential Proposers.

Department may require any clarification it needs to understand a Proposal.

Proposers who believe RFP specifications are unnecessarily restrictive or limit competition may submit a protest to the SPC. Protests concerning the RFP, including requests for change of particular provisions, specifications, or the Contract for the Purchase of Goods terms and conditions, must be submitted in writing to the SPC not later than (7) calendar days prior to the Proposal due date specified on the cover page of this RFP. A protest must clearly, specifically and in detail explain the reason(s) for the protest and specify any proposed changes to the RFP specifications. Department will respond to protests in writing. Department will not consider any solicitation protest submitted after the deadline established in this subsection.

1.4.2 PROTESTS TO ADDENDA

Prospective Proposers may submit a Written protest of anything contained in the respective Addendum. Protests to Addenda, if issued, must be submitted by the date/time specified in the respective Addendum, or they will not be considered. Protests of matters not added or modified by the respective Addendum will not be considered.

1.4.2 AWARD PROTESTS

An affected offeror will have 7 calendar days from the date of the intent to award notice to file a written protest. A Proposer is an affected offeror only if the Proposer would be eligible for an award in the event the protest was successful and is protesting for one or more of the following reasons:

· All higher ranked proposals are non-responsive.

· Agency has failed to conduct an evaluation of proposals in accordance with the criteria or process described in the RFP.

· Agency abused its discretion in rejecting the protestor’s proposal as non-responsive.

1.5 DUE DATE

Proposals must be received by April 6, 2022 on or before 1:00 p.m. Pacific Time. Absolutely no Proposals will be accepted after this date and time. Department relies on the State of Oregon email system clock to determine the correct time and is not responsible for any delays or difficulties experienced in the transmission of any Proposal. Please do not wait until the last minute to email a Proposal; it will be too late to correct any problems.

1.6 ELECTRONIC RESPONSES BY EMAIL ONLY

Only electronic proposals sent by email are acceptable. Proposals sent by fax, regular mail, and physical deliveries are not acceptable. The email subject or reference line for all submittals must include the RFP title and RFP number.

Proposals will be received only at the SPC’s email address.

1.7 NO LATE OR MISDIRECTED SUBMISSION OF PROPOSALS

Submittals that are late or misdirected shall be considered non-responsive, without exception. The Department is not responsible for errors of any kind involved with electronic submission, nor for notifying Proposers of complete or incomplete receipt of a Proposal.

1.8 FORMAT FOR PROPOSALS

The Department will accept Proposals in electronic files compatible with Microsoft Office applications. The signed cover sheet required by section 1.9 must be submitted as a .PDF file. Files in excess of 15 megabytes must be submitted incrementally. Proposals must not be submitted as .zip, .exe or .com files.

1.9 COVER SHEET

A Proposal must include a completed Cover Sheet (substantially in the form of RFP Attachment A), signed by a duly authorized representative of the Proposer empowered to bind the Proposer.

1.10 PUBLIC RECORDS

This RFP, and one copy of every proposal accepted in response to it, will be kept by Department and made a part of its records. All accepted Proposals will become part of the public file without obligation to Department. If a Proposal contains any information that may be exempt from disclosure under the Oregon Public Records Law, ORS 192.311 through 192.478, the Proposer must clearly designate that portion of its Proposal it considers to be exempt, along with a justification and citation to the authority relied upon. Application of the Uniform Trade Secrets Act (UTSA), ORS 646.461 and 646.475, and the Oregon Public Records Law will determine whether any information is actually exempt from disclosure. Identifying an entire Proposal as exempt from disclosure is not acceptable and will not be effective to exempt the Proposal or any part of it from disclosure. Failure to identify the portion of the Proposal claimed as exempt from disclosure, and to specify a justification and the authority relied upon, will be deemed a waiver of any future claim based on disclosure of that information.

1.11 TERMS AND CONDITIONS

By submitting its Proposal, the selected Proposer agrees to be bound by the terms and conditions of the State of Oregon Contract for the Purchase of Goods that is attached to this RFP as Attachment B, including requirements for insurance as determined by Department. Any Proposal that is conditioned on Department’s acceptance of any other terms and conditions or rights to negotiate will be rejected as non-responsive.

PROPOSAL SUBMISSION CHECKLIST FOR USE BY PROPOSERS - INFORMATION ONLY

The proposer shall:

· Provide a clear and concise description of the product and specifications.

· Provide minimum conformance to the specifications published within this solicitation, and provide an explanation when substitions were provided.

· Describe any specifications that were not requested in Section 1.2 and what value they add to the Department’s goals.

2.2 Price and Value 60 Points

· Provide your cost proposal for meeting the minimum specifications and costs for additional features, if applicable.

2.3 Compatibility and Training 10 Points

The proposer shall provide documentation or explanation of:

· How the machinery is able to communicate with the Department’s current dredge for wireless communication and operation.

· The training and curriculum proposer provides.

In addition to the scored criteria in this section 2.0, each Proposer must also submit contact information for two references who can address the Proposer’s skill in relation to this RFP and in what capacity they can speak to the skills.

3.0 EVALUATION PROCESS

The selection process will be administered in accordance with the authority and procedures in OAR Chapter 123, Division 6 and OAR 137-047-0260. Proposals received on time will be reviewed against any Pass/Fail criteria. Proposals meeting those criteria will be forwarded to an evaluation committee that will independently score each Proposal according to the scored criteria set forth in Section 2.

Without limiting the possibilities allowed under OAR 137-047-0261, the Department may, at any time in its sole discretion, (a) provide notice to a Proposer of selection for Contract negotiation and possible award; (b) gather more information for evaluation, (c) provide notice to a Proposer(s) of non-selection; or (d) provide notification to Proposer(s) that the RFP is cancelled (and either that the RFP may be resolicited or that Department intends to take no further action with respect to the RFP).

The Department reserves the right to employ any of the procedures allowed by Oregon Administrative Rule 137-047-0261, such as additional competitive steps or Proposals, modified or additional selection criteria, interviews, competitive simultaneous discussions or negotiations, etc. Information or issues revealed by a Proposer’s questions or Proposal, may, in the Department’s sole discretion, trigger such modifications or further steps. If there are further steps beyond the initial Proposal and scoring, the scoring results from the first step and any subsequent step will be added together.

Department reserves the right to reject any or all Proposals for good cause if it is in the public interest, and is not liable for any costs a Proposer incurs while preparing or presenting its Proposal or during further evaluation stages.

The Department, in its sole discretion, reserves the right to negotiate all terms and conditions in the attached Sample Contract to the extent allowed by law.

If negotiations with the top ranked Proposer are not successful, Department may terminate negotiations and begin negotiating with the next highest ranked Proposer.

4.2 CERTIFICATES OF INSURANCE

The Contractor will be required to provide certificates of insurance for the insurance coverages required by the Contract for the Purchase of Goods (Attachment B, Section 5).

4.3 CONTRACTOR RESPONSIBILITIES

The Contractor shall assume responsibility for any and all contractual matters, including performance of work and the stated deliverables finalized in the Contract, whether the Contractor, an agent or an allowed subcontractor produces them.

Booster Pump RFP draft 1.docx Page 5

RFP ATTACHMENT A - COVER SHEET & CERTIFICATIONS

STATEMENT OF PROPOSAL to Oregon Business Development Department __________________________________________ (Legal Name of Proposer) accepts all the terms and conditions contained in the Booster Pump for Dredge Support RFP, and the attached sample Contract (as they may have been modified or reserved for negotiation).

|_| Corporation |_| Professional Corporation |_| Partnership |_| Limited Partnership |_| Ltd. Liability Company |_| Ltd. Liability Partnership |_| Sole Proprietorship |_| Other __________ Mailing Address

Type name of contact/authorized representative Email address Telephone Other Type name of person(s) authorized to sign Contract Affirmative Action, Nondiscrimination: Department is an equal-employment-opportunity employer and values diversity in its work force. It also requires Proposers to have an operating policy as an equal employment opportunity employer, and to follow good faith diversity efforts when subcontracting.

We certify that we have a formal statement of nondiscrimination in employment policy and have an affirmative action program if over 50 employees. (Firms of 50 people or less do not need a formal program, but must have a policy). Does your firm have 50 or more employees? |_| Yes |_| No We also certify that we have not and will not discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women or emerging small business enterprise certified under ORS 200.055, and will follow good faith efforts in ORS 200.045 during any subcontracting.

Responsibility Certifications Has your company ever been declared in breach of any contract to provide services for unperformed or defective work?

|_| Yes |_| No If “yes,” explain.

Has any employee or agent of your company been convicted under state or federal law of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty?

|_| Yes |_| No If “yes,” explain.

Has your company or any employee or agent of your company been indicted under state or federal false claims or antitrust laws, or charged with any other criminal offense arising out of obtaining, attempting to obtain, or performing a public or private contract or subcontract? |_| Yes |_| No If “yes,” explain.

During the last ten years, has your firm changed majority ownership or been the debtor in a bankruptcy case? |_| Yes |_| No If “yes,” explain.

Does your firm have any outstanding judgments pending against it? |_| Yes |_| No If “yes,” explain.

During the last ten years, has your firm been a party to litigation, arbitration or mediation where the amount in dispute exceeded $10,000? |_| Yes |_| No If “yes,” explain. (Include court, and party names.)

Conflicts of Interest: Please select (only) one of the following three options:

What does “financial interest” mean?

If your firm, or employee of your firm working on the project (or a member of the employee’s household), will/may or may be perceived to receive or lose private income depending on government business choices based on your firm’s services, findings or recommendations, this must be listed as a financial interest. An example would be ownership in physical assets affected by government business choices related to these services. The possibility of contracting for further consulting services is not included in this definition and is not prohibited.

What does “other interest” mean?

If your firm, or employee of your firm working on the project (or a member of the employee’s household), will/may or may be perceived to have political, legal or any other interests that will affect what goes into your firm’s services, findings or recommendations, or will be/may be, or may be perceived to be, affected by government business choices related to these services, this must be listed as an other interest.

Tax Information and Tax Compliance: Any individual signing on behalf of Contractor hereby certifies under penalty of perjury: (a) Contractor’s correct taxpayer identification number is ___________; (b) Contractor is not subject to backup withholding because (i) Contractor is exempt from backup withholding, (ii) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified Contractor that Contractor is no longer subject to backup withholding; (c) the individual is authorized to act on behalf of Contractor, the individual has authority and knowledge regarding Contractor’s payment of taxes, and to the best of the individual’s knowledge, for a period of no fewer than six calendar years preceding the date of this Proposal, Contractor has faithfully has complied with and is not in violation of: (i) all tax laws of this state, including but not limited to those included in: ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and local taxes administered by the Department of Revenue; (ii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, to Contractor’s property, operations, receipts, or income, or to Contractor’s performance of or compensation for any work performed by Contractor; (iii) any tax provisions imposed by a political subdivision of this state that applied to Contractor, or to goods, services, or property, whether tangible or intangible, provided by Contractor; and (iv) any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions; (d) Contractor is an independent contractor as defined in ORS 670.600; (e) if required by 40 CFR 1506.5(c), Contractor has no financial or other interest in the outcome of the project; and (f) in the event that Contractor is a general partnership or joint venture, that these certifications pertain to the partnership or joint venture as well as to any general partner or joint venturer.

Signature of Authorized Representative certifying the truth of all statements:

[signature]

RFP Attachment B

STATE OF OREGON

CONTRACT FOR THE

PURCHASE OF GOODS

(“Contract”)

This Contract is between the State of Oregon (“State”), acting by and through its Oregon Business Development Department ("Agency"), and ______ ("Contractor"). This Contract is effective on the date it has been signed by all parties and all required State of Oregon approvals have been obtained. This Contract expires on the later of 30 June 2023, the date all warranties have expired, or the date Contractor has completed delivery of all Goods and Services in accordance with the requirements of this Contract, as determined by Agency. The parties may extend the term of this Contract by mutual written agreement.

Contractor agrees to sell, and Agency agrees to purchase, Goods and Services for the benefit of Agency subject to the following terms and conditions:

RECITAL

This Contract is for the purchase and sale of a booster pump for dredge support.

1. DEFINITIONS.

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

B. “Goods” means the goods specified in section 2.

C. “IRS” means the Internal Revenue Service.

D. “Open Source Elements” means any Work Product subject to any open source initiative certified license, including Work Product based upon any open source initiative certified licensed work.

E. "Services" means the services, if any, that are incidental to the purchase of Goods and that Contractor is required to perform under section 2.

F. "Specifications" means the specific attributes of Goods and Services described in section 3.

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

I. “Work Product” means all Goods and Services Contractor delivers or is required to deliver to Agency pursuant to this Contract.

2. REQUIRED GOODS, SERVICES, PRICING AND DELIVERY SCHEDULE.

Contractor shall deliver to Agency the following Goods and Services for the prices specified in this section 2.

A. GOODS.

A 10-inch booster pump designed with centrifugal single suction volute having a 12 inch diameter suction and arranged for 10 inch inside diameter suction pipe. The booster pump must have the specifications according to section 3.

B. SERVICES.

Contractor shall train to Agency’s satisfaction the individuals identified by Agency in the operation, adjustment, repair and maintenance of Goods delivered under this Contract.

TRAINING DELIVERY SCHEDULE:

Agency will issue a delivery schedule to Contractor for training that will specify the training date, time, and location.

C. PRICING

[Reserved.]

D. DELIVERY.

i. Contractor shall deliver Goods to Agency and shall perform Services, if any, at the address specified by Agency in writing.

ii. Contractor shall deliver Goods F.O.B. place of destination.

Contractor shall retain the risk of loss of Goods until Agency accepts Goods in accordance with section 4.D.

iii. Contractor shall deliver Goods in accordance with the delivery schedule specified by Agency in writing.

3. SPECIFICATIONS.

Contractor shall deliver all Goods and Services specified in section 2 in accordance with this section 3. Contractor’s failure to deliver Goods and Services in accordance with the provisions of this Contract is a material breach of this Contract.

A. GENERAL PROVISIONS.

i. NON-COMPLIANCE. If any Goods or component parts are recalled by a regulatory body or the manufacturer, or discovered by Contractor not to comply with applicable regulatory standards or the Specifications, Contractor shall immediately notify Agency of the recall or non-compliance, and shall provide copies of the recall notice or notice of non-compliance, as applicable, and all other supporting documentation for the recall or non-compliance determination. Agency may elect to (a) reject Goods in whole or in part, or (b) revoke its acceptance of Goods in whole or in part. If Agency rejects Goods or revokes its acceptance of Goods, Contractor shall remove the particular Goods from Agency’s possession as provided in section 4.D.iv at no cost to Agency and shall reimburse Agency for all payments made for those Goods.

ii. STANDARD COMPONENTS. Unless specified otherwise in this section 3, Specifications, Contractor shall provide Goods with all components and accessories that the manufacturer lists as “standard” for Goods.

iii. NECESSARY COMPONENTS. Unless specified otherwise in this section 3, Specifications, Contractor shall include all components, hardware and parts necessary for complete and proper assembly, installation and operation of Goods.

iv. NEW AND UNUSED GOODS. Unless specified otherwise in this section 3, Specifications, Contractor shall deliver Goods that are new, unused and produced from current production inventory. Contractor shall provide Goods manufactured from only those components that the manufacturer offers in the manufacturer’s current parts catalogue for Goods.

v. WARRANTY. [Reserved.]

B. DETAILED SPECIFICATIONS.

General Specifications:

· 10-inch booster pump with centrifugal single suction volute having a 12 inch diameter suction arranged for 10 inch inside diameter suction pipe.

· The 10-inch pump mounted on a structural steel skid base powered by a John Deere 6090 or similar diesel engine via belt drive.

· The centrifugal slurry pump made of hard metal material with horizontal end-suction, suitable for high-discharge head, abrasive slurries and a wide range of particle sizes.

· The wet end consisting of a single-wall shell, a three-vane impeller (that screws onto the shaft) and a suction plate/liner.

· The pump and bearings, the belt drive and the diesel engine installed on a structural steel skid base. The radial bearings a self-aligning, double-row, spherical roller-type design and adapter mounted.

· A machined saddle on the pedestal and a machined fit on the split-cartridge bearing housing for automatic alignment.

Booster Dredge Pump Specifications:

· a GIW Industries model LCC-M250-660 dredge pump or another high efficiency dredge pump designed for long life in normal dredging service.

· The dredge pump is driven by the diesel engine via belt drive.

Booster Pump Engine Specifications:

· The engine is a John Deere 6090 or similar industrial diesel engine rated at approximately 325 BHP (242 bkW) intermittent at 2200 RPM.

· The engine unit includes all necessary auxiliaries including, but not limited to, the following:

· Radiator and fan cooling system with engine driven jacket water pump.

· Instrument panel with fuel oil pressure gauge, lubricating oil pressure gauge, water temperature gauge, tachometer and ammeter.

· Alarm system for high water temperature and/or low oil pressure, with manual shutdown.

· 24 V.D.C. electric starting system with alternator, batteries, battery box and cables.

· Exhaust silencer.

· Fuel tank capacity of at least 190 gallons (719 liters).

Auxiliary Equipment The booster pump shall be equipped with the following:

· One (1) booster pump inlet pressure - vacuum gauge, with tubing.

· One (1) booster pump discharge pressure gauge, with tubing.

· Belt guard for pump drive.

· One (1) suction cleanout – 12-inch I.D.

· One (1) welded steel skid base with lifting lugs for lifting or moving the booster pump assembly as a single unit.

· One (1) service water pump, for supply of gland sealing water.

Painting External Surfaces

· The machinery described in this solicitation will be painted and surfaces that are not painted must be protected in a suitable manner to prevent corrosion while being shipped or stored.

Instruction Manuals

· The machinery comes with an instruction manual in the English language and includes:

· Instructions giving the frequency and specifications for lubrication of the equipment.

· Illustrated assembly drawings with part numbers for Ellicott manufactured equipment.

· Parts list and available literature for principal equipment purchased by Ellicott.

Shop Tests

· The pump unit shall be shop assembled to check alignment and proper installation.

4. TERMS AND CONDITIONS.

A. PAYMENT.

i. Agency’s Payment. Agency shall pay Contractor for Goods delivered and Services performed at the prices and rates specified in section 2. Contractor shall look solely to Agency for payment of all amounts Agency owes to Contractor. Contractor shall not be compensated by any agency or department of State other than Agency for Goods delivered or Services performed.

ii. If Contractor is a nonresident alien as defined in 26 USC § 7701(b)(1)(B), then Contractor shall, upon execution of this Contract, deliver to Agency a completed and signed W-8 form, 8233 form, or W-9 form, as applicable, from the IRS, as evidence that Agency is not required by 26 USC 1441 to withhold part of Contractor's payment. Such forms are currently available at http://www.irs.gov. Agency may withhold payments to Contractor pending Agency's receipt from Contractor of the applicable, completed and signed form. If Agency does not receive the applicable, completed and signed form from Contractor, or if the IRS provides notice to Agency that Contractor's information on the form provided is incorrect, Agency will withhold as federal income tax 30% of all amounts Agency owes to Contractor under this Contract.

iii. Funds Available and Authorized; Payments. Contractor understands and agrees that Agency’s payment of amounts under this Contract is contingent on Agency receiving funding, appropriations, limitations, allotments or other expenditure authority at levels sufficient to allow Agency, in the exercise of its reasonable administrative discretion, to make payments under this Contract.

B. INVOICES.

i. Contractor shall send invoices to Agency no more often than monthly after Agency’s acceptance in accordance with section 4.D of Goods delivered under this Contract. Contractor shall send invoices to Agency for completed Services no more often than monthly.

ii. Contractor shall send all invoices to the Agency mailing address specified in section 7 or to any other address that Agency may indicate in writing to Contractor. Contractor shall include in each invoice:

a. The Solicitation number if any, the Contract number if any;

b. The quantity of Goods ordered, the quantity of Goods delivered, the date Goods were delivered, the price per unit, if applicable;

c. A detailed description of Services performed, including the name or names of the individuals who performed Services and prepared the deliverables to which the invoice applies, the dates Services were performed, all deliverables delivered during the period of the invoices, the rate or rates for Services performed, and the total cost of Services

d. Itemization and explanation of all expenses for which Contractor claims reimbursement authorized under this Contract; and

e. The total amount due, and the payment address.

iii. Contractor may assess overdue account charges to Agency on unpaid invoices only in accordance with ORS 293.462.

C. MOST FAVORABLE PRICES AND TERMS.

Contractor represents and warrants that all prices, terms and benefits offered by Contractor under this Contract are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local governmental entity or commercial customer.

i. If during the term of this Contract Contractor enters any contract, agreement or arrangement that provides lower prices, more favorable terms or greater benefits to any other state or local governmental entity or commercial customer, Contractor shall provide the same price or prices, terms and benefits to Agency. The prices, terms and benefits shall be effective as of the date Contractor made the more favorable terms or greater benefits available to any other state or local governmental entity or commercial customer. This provision applies to comparable goods and services and to purchase volumes by Agency that are not less than the purchase volumes of the state or local governmental entity or commercial customer that has received the lower prices, greater benefits or more favorable terms.

ii. Section 4.C.i does not apply to Contractor’s donations of comparable goods and services to charitable, nonprofit or governmental entities if the donations are recognized as donations and are deductible under the federal Internal Revenue Code. These donations are not considered contracts, agreements or arrangements with other state or local governmental entities or commercial customers for purposes of section 4.C.i.

D. ACCEPTANCE, REJECTION AND REVOCATION OF ACCEPTANCE:

i. ACCEPTANCE. Agency shall test if Agency, in its sole discretion deems testing necessary, inspect and either accept or reject Goods delivered within fourteen (14) calendar days from the date Goods are delivered to Agency. If Agency does not provide written notice of acceptance or rejection of Goods to Contractor within fourteen (14) calendar days following the date of delivery of Goods, Agency is deemed to have accepted Goods.

ii. REJECTION. If Agency rejects Goods, then Agency’s written notice of rejection shall, at a minimum, itemize the apparent defects and include:

a. a description of nonconformance between Goods delivered and the required Specifications and warranties (including any variance from demonstrations or sample characteristics of Goods if Contractor provided demonstrations or samples);

b. a description of any other nonconformance of Goods (including late delivery); and

c. a statement indicating whether Contractor may cure the nonconformance and if so, the method by which and time period within which Contractor may cure.

iii. REVOCATION OF ACCEPTANCE. Notwithstanding Agency’s acceptance of Goods under section 4.D.i Agency may revoke its acceptance of Goods for nonconformance with the Specifications. If Agency revokes acceptance of Goods, Agency shall deliver a written notice of revocation of acceptance to Contractor that includes the same information required for a written notice of rejection under section 4.D.ii.

iv. EFFECT OF REJECTION OR REVOCATION OF ACCEPTANCE. If Agency rejects Goods or revokes its acceptance of Goods, Contractor shall refund all payments Agency has made to Contractor for those Goods and shall, at no cost to Agency, remove Goods from Agency’s possession within nine (9) calendar days following the later of the date of Agency’s notice of rejection, the date of Agency’s notice of revocation of acceptance, or the date of Contractor’s failure to cure if cure is permitted. Nothing contained in this section 4.D precludes Agency from pursuing any remedies to which Agency may be entitled upon rejection or revocation of acceptance of Goods or otherwise under this Contract.

E. OTHER REPRESENTATIONS AND WARRANTIES.

All express and implied warranties that are applicable to goods under ORS Chapter 72 apply to Goods delivered under this Contract. Contractor represents and further warrants that:

i. Contractor has the authority to enter into and perform in accordance with this Contract, and that this Contract, when executed and delivered, is a valid and binding obligation of Contractor that is enforceable in accordance with its terms;

iii. All Goods delivered shall comply with all applicable federal health and safety standards;

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

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

vi. As required by ORS 279A.112(3), Contractor certifies that Contractor has a policy and practice that meets the requirements described in ORS 279A.112(2) and will maintain the policy and practice in force during the entire term of this Contract.

The warranties specified in this section 4.E are in addition to, and not in lieu of, any other warranties provided in this Contract. All warranties are cumulative and shall be interpreted broadly to give Agency the greatest warranty protection available.

F. MANUFACTURER WARRANTIES.

At no charge to Agency, Contractor shall transfer or cause the transfer of all manufacturers’ warranties for Goods and component parts, if any, to the Agency for Agency’s benefit when Contractor delivers Goods to Agency. If a conflict or inconsistency exists between a manufacturer’s warranty and Contractor’s warranty, the warranty that provides the greatest benefit and protection to Agency shall prevail.

G. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.

i. Contractor shall comply with all federal, state and local laws, regulations, and ordinances applicable to this Contract or to Contractor’s obligations under this Contract, as they may be adopted or amended from time to time.

ii. Agency’s performance under this Contract is conditioned upon Contractor's compliance with the obligations intended for contractors under ORS 279B.220, 279B.225 (if applicable to this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are incorporated into this Contract by reference. Contractor shall, to the maximum extent economically feasible in the performance of this Contract, use recycled paper (as defined in ORS 279A.010(1)(ee)), recycled PETE products (as defined in ORS 279A.010(1)(ff)), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(gg)).

H. AMENDMENTS.

The parties may amend this Contract to the extent provided in the solicitation document, if any, from which this Contract arose, and to the extent otherwise permitted by applicable law. No amendment to this Contract is effective unless it is in writing signed by the parties, and all approvals required by applicable law have been contained.

I. MATERIAL SAFETY DATA SHEET.

At the time Contractor delivers Goods to Agency, Contractor shall provide to Agency a “Material Safety Data Sheet” as defined by (OSHA) for any Goods delivered which may release or otherwise cause exposure to a hazardous chemical substance under normal conditions of use. Contractor shall properly label, tag or mark those Goods.

J. TIME IS OF THE ESSENCE.

Contractor agrees that time is of the essence in the performance of this Contract.

K. FORCE MAJEURE.

Neither Agency nor Contractor shall be responsible for any failure to perform or for any delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, or any other cause which is beyond the delaying or breaching entity's reasonable control. Contractor shall make all reasonable efforts to eliminate the cause of Contractor’s delay or breach and shall, upon elimination of the cause, continue performing under this Contract. Agency may terminate this Contract upon written notice to Contractor after reasonably determining that this delay or breach could likely prevent successful performance of this Contract.

L. INSURANCE.

Contractor shall obtain the insurance required under section 5 prior to performing under this Contract and shall maintain the required insurance throughout this duration of this Contract and all Warranty Periods.

M. INDEPENDENT CONTRACTOR STATUS; RESPONSIBILITY FOR TAXES AND

WITHHOLDING.

i. Contractor shall perform all Services as an independent contractor. Although Agency may (a) determine and modify the delivery schedule for Goods to be delivered and Services to be performed and (b) evaluate the quality of the completed performance, Agency cannot and will not control the means or manner of Contractor's performance. Contractor is responsible for determining the appropriate means and manner of performing any Services required under this Contract. Contractor is not an "officer", "employee", or "agent" of Agency as those terms are used in ORS 30.265.

ii. If Contractor is currently performing work for the State or the federal government, Contractor by signature to this Contract declares and certifies that Contractor's performance under this Contract creates no potential or actual conflict of interest as defined by ORS 244 and that no rules or regulations of Contractor's employing agency (state or federal) would prohibit Contractor's performance under this Contract.

iii. Contractor is responsible for all federal and state taxes applicable to compensation or payments paid to Contractor under this Contract, and unless required by prevailing federal law or regulations, Agency will not withhold from compensation or payments to Contractor any amount(s) to cover Contractor's federal or state tax obligations unless Contractor is subject to backup withholding. Contractor is not eligible for any social security, unemployment insurance or workers' compensation benefits from compensation or payments paid to Contractor under this Contract.

N. INDEMNIFICATION.

i. GENERAL INDEMNITY. CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES, AND EXPENSES OF ANY NATURE WHATSOEVER (“CLAIMS”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE ACTS OR OMISSIONS OF CONTRACTOR OR ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS CONTRACT.

ii. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE GENERALITY OF SECTION 4.N.i, CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS AND INDEMNIFY STATE, ITS AGENCIES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES, AND EXPENSES, INCLUDING ATTORNEYS FEES, ARISING OUT OF OR RELATING TO ANY CLAIMS THAT THE GOODS, SERVICES, THE WORK PRODUCT OR ANY OTHER TANGIBLE OR INTANGIBLE ITEM DELIVERED UNDER THIS CONTRACT BY CONTRACTOR THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY STATE OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE AGENCY’S REASONABLE USE THEREOF, INFRINGES ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK, UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY (“INFRINGEMENT CLAIM”); PROVIDED, THAT STATE SHALL PROVIDE CONTRACTOR WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.

iii. STATE SHALL REASONABLY COOPERATE IN GOOD FAITH, AT CONTRACTOR’S REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND INFRINGEMENT CLAIMS, AND CONTRACTOR SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO THE OREGON ATTORNEY GENERAL TO DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH COUNSEL. COUNSEL MUST ACCEPT APPOINTMENT AS A SPECIAL ASSISTANT ATTORNEY GENERAL UNDER ORS CHAPTER 180 BEFORE COUNSEL MAY ACT IN THE NAME OF, OR REPRESENT THE INTERESTS OF, STATE, ITS AGENCIES, OFFICERS, EMPLOYEES OR AGENTS. STATE MAY ELECT TO ASSUME ITS OWN DEFENSE WITH AN ATTORNEY OF ITS OWN CHOICE AND AT ITS OWN EXPENSE AT ANY TIME STATE DETERMINES IMPORTANT GOVERNMENTAL INTERESTS ARE AT STAKE. SUBJECT TO THE LIMITATIONS NOTED ABOVE, CONTRACTOR MAY DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS WITH COUNSEL OF ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS AND INFRINGEMENT CLAIMS SHALL OCCUR WITHOUT THE CONSENT OF STATE, WHICH CONSENT SHALL NOT BE UNREASOABLY WITHHELD, CONDITIONED OR DELAYED.

O. ASSIGNMENT OF ANTITRUST RIGHTS.

i. CONTRACTOR IRREVOCABLY ASSIGNS TO STATE ANY CLAIM FOR RELIEF OR CAUSE OF ACTION WHICH CONTRACTOR NOW HAS OR WHICH MAY ACCRUE TO CONTRACTOR IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO CONTRACTOR FOR THE PURPOSE OF CARRYING OUT CONTRACTOR’S OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

ii. CONTRACTOR SHALL REQUIRE ANY SUBCONTRACTORS HIRED TO PERFORM ANY OF CONTRACTOR’S DUTIES UNDER THIS CONTRACT TO IRREVOCABLY ASSIGN TO STATE, AS THIRD PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. § 1-15 OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO THE SUBCONTRACTOR FOR THE PURPOSE OF CARRYING OUT THE SUBCONTRACTOR’S OBLIGATIONS TO CONTRACTOR IN PURSUANCE OF THIS CONTRACT, INCLUDING, AT STATE’S OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.

P. EVENTS OF BREACH.

i. Breach by Contractor. Contractor breaches this Contract if:

a. Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

b. Contractor no longer holds a license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained the required license or certificate within fourteen (14) calendar days after delivery of Agency’s notice of breach or a longer period as Agency may specify in its notice;

c. Contractor commits any material breach of any covenant, warranty, obligation or certification under this Contract, and Contractor fails to cure its breach within fourteen (14) calendar days after delivery of Agency’s notice of breach or within a longer period as Agency may specify in its notice; or

d. Contractor fails to comply with ORS 652.220.

ii. Breach by Agency. Agency breaches this Contract if:

a. Agency fails to pay Contractor any amount pursuant to the terms of this Contract, and Agency fails to cure this failure within fourteen (14) business days after delivery of Contractor's notice of breach or within a longer period as Contractor may specify in its notice; or

b. Agency commits any material breach of its obligations under this Contract, fails to perform its obligations hereunder within the time specified or any extension thereof, and fails to cure its failure within fourteen (14) calendar days after delivery of Contractor's notice of breach or a longer period as Contractor may specify in its notice.

Q. REMEDIES.

i. State's Remedies. If Contractor is in breach under section 4.P.i, then in addition to the remedies afforded elsewhere in this Contract, Agency shall be entitled to recover for any and all damages suffered as the result of Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, as provided in ORS Chapter 72.