Terms Conditions and Instructions to Bidders rev 1-25-12[1].doc

STATE OF MAINE DIVISION OF PURCHASES

TERMS, CONDITIONS, AND INSTRUCTIONS TO BIDDERS

1. SUBMISSION OF QUOTATIONS: Unless otherwise specified, all bidders must submit their quotations electronically through the State of Maine’s “Vendor Self Service” (VSS) electronic quotation submission platform. The State of Maine is not responsible for delays due to congestion of the online network used by the VSS system. Unless otherwise specified, all Requests for Quotations (RFQ) close at 2:00 p.m., local time, on the day announced within the RFQ. Additional and/or alternate quotations may also be submitted after the initial quotation submission, but additional and/or alternate quotations must also be submitted prior to the closure of the RFQ. Bidders must also upload attachments to quotations (if applicable) within the VSS system. If a bidder is unable to attach its supporting documents, then the bidder must contact the State of Maine Buyer who is listed on the RFQ in order to receive additional instructions. Following any State of Maine RFQ, award of the subsequent Master Agreement, Contract, Purchase Order, or Delivery Order (hereinafter referred to as “contract” or “contract document”) shall only be made to a bidder which has followed quotation submission requirements, as defined by the State of Maine Division of Purchases.

2. EQUIVALENT ITEMS: Whenever an article or a material is defined in quotations and/or specifications by using a trade name and/or catalog number of a manufacturer or vendor, then the term “or approved equal”, if not inserted therewith, shall be implied. Any reference to a particular manufacturer's product, either by trade name or by limited description, has been made solely for the purpose of clarity, in order to indicate the minimum standard of quality desired. The term “or approved equal” is defined as follows: any other make or model which, in the opinion of the Director of the Division of Purchases, is of such a character, quality, and performance standard that it serves the purpose equally well as the make or model originally specified in the RFQ. Consideration will be given to bids submitted with approved equal items to the extent that such action is deemed to serve the best interests of the State. Bidders that provide quotations on commodities other than those specified shall furnish complete identification information, descriptive literature, and/or data with respect to the alternate commodity offered. Lack of such information, literature, and/or data on a bidder’s quotation will be construed to mean that the bidder proposes to furnish the commodity as originally described in the State of Maine’s specifications.

3. UNIT PRICING: All bidders shall submit a separate unit price for each item requested by the State of Maine, unless otherwise specified in the quotation request. Any discrepancy between unit and total prices will be governed by unit price on the original quotation.

4. QUESTIONS AND ANSWERS: Bidders shall post their questions relating to the RFQ on the online VSS system through the “Question and Answer” link on the “Solicitation Details View” page. Answers to these questions will be provided by the State and will also appear on the VSS system. It is the bidder’s responsibility to log in and view all questions and answers posted. If the length of the answer is more than what can be fit into the VSS system’s available space for answers, then the Buyer will issue an amendment to the RFQ. The bidder can then find the questions and answers on an attachment, provided with the aforementioned amendment. No questions will be answered via any other process, and all answers will be committed to writing. The State of Maine shall not be bound by any oral representations by any person(s), including the Buyer associated with the RFQ.

5. WITHDRAWAL OF QUOTATIONS: Bidders may withdraw their quotations by submitting a written notice to the Buyer listed in the RFQ, provided such notice is received prior to the bid receipt closure and deadline.

6. EVALUATIONS AND PUBLIC INFORMATION: Evaluation tabulations will be available for public inspection after the award of the subsequent contract document.

7. PAYMENT METHOD: The State of Maine reserves the right to pay for any goods or services purchased through this RFQ by any of several available means, which include but may not be limited to check, Electronic Funds Transfer (EFT), and/or State Procurement Card (a form of credit card). If any form of prior payment is made and the goods or services are not ultimately accepted by the State of Maine, then any prior payments shall be returned upon request by the Division of Purchases. Bidders are advised that State statute precludes sellers from imposing a surcharge on credit or debit card purchases (text follows).

9-A MRSA §8-303 (2): A seller in a sales transaction may not impose a surcharge on a cardholder who elects to use a credit card or debit card in lieu of payment by cash, check or similar means.

8. QUOTATION REJECTION AND PARTIAL ACCEPTANCE: The Division of Purchases reserves the right to reject any or all quotations received, to waive any irregularity found in any quotation, and to partially accept any quotation, such as accepting any individual item or group of items in the quotation deemed to be in the best interest of the State of Maine.

9. BASIS OF AWARD: The basis of award and/or any award scoring criteria to be used will be stated in the RFQ. At the sole discretion of the State of Maine Division of Purchases, awards for an RFQ will be made based on one of two possible options: (1) based strictly on the lowest priced quotation received among the bids that conform to the State’s specifications; or (2) based on a combination of factors including, but not limited to, the quality of the services, supplies, materials, or equipment to be supplied and its/their conformity with the specifications, the required purpose, the delivery time and destination, and the ultimate cost thereof to the State. If neither basis is specified by the Buyer or in the RFQ, then the first option shall be assumed. The second option represents the best value components that will secure the greatest possible economy, while remaining consistent with the grade or quality of services, supplies, materials, and/or equipment that is best adapted for the purpose needed. Prices should be stated in the units and the quantity specified, delivered to the destination specified, and include all possible trade or quantity discounts. Cash discounts that are offered for payments made in 20 days or more may be considered when determining the low bidder. Price must receive a minimum of 25% of the total weight of all criteria used. A quotation is considered final upon submission into the electronic system, unless otherwise withdrawn in accordance with the “Withdrawal of Quotations” provision above.

10. TIES BETWEEN QUOTATIONS: Ties determined during quotation evaluation shall be resolved by the Director of the Division of Purchases in a manner that best serves the interests of the State of Maine. Alternatively, the drawing of lots may occur at the discretion of the Director, provided that price, quality, availability, and other factors are equal. In the case of a tie, award may be made to the in-state bidder, or to the bidder offering commodities produced or manufactured in the State of Maine or services that are rendered by Maine-based organizations.

11. SUPPLEMENTAL DOCUMENTS: When applicable to the requested items, bidders should provide supplemental documents and information certifying the origin, grade, handling precautions (for example, Materials Safety Data Sheets) with their quotations, using forms that are generally accepted within the related industry.

12. SAMPLES: Samples of items, when required, must be furnished free of charge. Once received and used/reviewed, the samples will be destroyed (if practicable), or can be returned upon request. If a return is requested, the provider of the sample is responsible to cover the cost of postage and insurance, and the funds for this cost must be forwarded with the sample.

13. CONFORMANCE: The successful bidder must furnish the item or items as specified in the contract document, and any deviation therefrom will be grounds for termination or cancellation of award.

14. UNILATERAL QUANTITY CHANGES: The Division of Purchases reserves the right to increase or decrease by 10% the quantity of any item or items ordered, at the agreed upon pricing stated in the contract.

15. DELIVERY TERMS AND TRANSPORTATION: All State of Maine purchases shall be considered to have “FOB Destination” delivery terms, unless otherwise stated by the Division of Purchases. The term “FOB” shall be understood to mean “Freight on Board”, and all transportation charges to the required destination, including expenses for freight, transfer, express, mail, etc., shall be prepaid and be at the expense of the successful bidder, unless otherwise specified by the State of Maine in the RFQ. The “FOB Destination” delivery term can also be understood to mean “DDU Destination”, where the term “DDU” shall be understood to mean “Delivery Duty Paid” to the required destination.

16. GOVERNMENTAL REQUIREMENTS: The contractor warrants and represents that it will comply with all governmental ordinances, laws and regulations.

17. GOVERNING LAW: The RFQ or contract shall be governed in all respects by the laws, statutes, and regulations of the United States of America and of the State of Maine. Any legal proceeding against the State regarding the contract shall be brought in State of Maine administrative or judicial forums. The contractor consents to personal jurisdiction in the State of Maine.

18. PAYMENT TERMS AND DISCOUNTS: The State of Maine’s standard payment terms are “net 30”, defined herein as payment within 30 days from receipt of correct invoice. A “correct invoice” is hereby defined as an invoice that accurately confirms to all details of the purchase (including, but not limited to, price, quantity, and contract number reference), as determined by the Division of Purchases Buyer handling the purchase. These terms shall be assumed unless otherwise stated by the Division of Purchases. Please specify any terms relating to price discounts. Time, in connection with any discount offered, will be computed from the date of delivery at the requested destination after final inspection and acceptance, or from the date of receipt of a correct invoice, whichever is later. Any discount that is offered for payment in less than 20 days will not be considered in the evaluation of quotations, due to the time necessary for normal accounting procedures and the issuance of payment.

19. TIME IS OF THE ESSENCE: Time is of the essence for all State of Maine purchases, unless otherwise stated in writing by the Division of Purchases. The time of delivery for each quotation must be stated in definite terms by the bidder. If time varies for different items, the bidder shall state this clearly, otherwise, it shall be assumed that all items will be delivered on the same date at the same time. When time is of the essence, the earliest delivery date offered by a bidder may be a factor in the award decision.

20. EXEMPTION FROM TAXES: The State of Maine is exempt from the payment of federal taxes on articles not for resale. All quoted prices must be submitted less these taxes. Upon request by the successful bidder, an exemption certificate for the State of Maine can be furnished. The State of Maine is also exempt from sales, use, property (both real and personal) and any other form of State taxes, and such taxes should not be included in any bidder’s quotation.

21. SUB-AGREEEMENTS: Unless provided for in this contract, no arrangement shall be made by the successful contractor with any other party for furnishing any of the goods or services stated in the contract without the consent and approval of the Director of the Division of Purchases. Any sub-agreement hereunder entered into subsequent to the execution of this Agreement must be annotated "approved" by the Director of the Division of Purchases before it is reimbursable hereunder. This provision will not be taken as requiring the approval of contracts of employment between the successful contractor and its employees assigned for services thereunder.

22. TERMINATION: The supply of goods or performance of work under the contract may be terminated by the Division of Purchases in whole, or in part, whenever for any reason the Buyer shall determine that such termination is in the best interest of the State of Maine. Any such termination shall be effected by delivery to the successful contractor of a Notice of Termination specifying the extent to which delivery or performance under the contract is terminated, and the date on which such termination becomes effective. If applicable, the contract shall be equitably adjusted to compensate for such termination, and modified accordingly.

23. NON-APPROPRIATION: Notwithstanding any other provision of the RFQ or contract, if the State does not receive sufficient funds to fund this contract and other obligations of the State, if funds are de-appropriated, or if the State does not receive legal authority to expend funds from the Maine State Legislature or Maine courts, then the State is not obligated to make payment under this contract.

24. DEFAULT AND COST COMPENSATION: In case of contract breach or default by the successful contractor, the Division of Purchases reserves the right to procure the goods, services, materials, and/or supplies from other sources and to seek compensation from and charge any excess cost occasioned thereby to the bidder which was successful under the original award decision for this RFQ.

25. FORCE MAJEURE: The Division of Purchases may, at its discretion, excuse the delivery or performance of an obligation by a party under this contract in the event that delivery or performance of that obligation by that party is prevented by an act of God, act of war, riot, fire, explosion, flood or other catastrophe, sabotage, severe shortage of fuel, power or raw materials, change in law, court order, national defense requirement, or strike or labor dispute, provided that any such event and the delay caused thereby is beyond the control of, and could not reasonably be avoided by, that party. The Division of Purchases may, at its discretion, extend the time period for delivery or performance of the obligation excused under this section by the period of the excused delay together with a reasonable period to reinstate compliance with the terms of this contract.

26. SEVERABILITY: The invalidity or unenforceability of any particular provision or part thereof of the RFQ or contract shall not affect the remainder of said provision or any other provisions, and this contract shall be construed in all respects as if such invalid or unenforceable provision or part thereof had been omitted.

27. LEASE AGREEMENTS: This provision is applicable to lease agreements between the State of Maine (as the lessee) and the lessor, or applicable to the bidding process for such lease agreements. When submitting a bid or proposal for a State of Maine procurement action involving a lease agreement, the bidder must include with its bid submission a copy of the proposed lease agreement document. Bids submitted without a copy of the proposed lease agreement document will be considered incomplete and that bidder will be disqualified from the award decision process.

28. LEASE-PURCHASE AGREEMENTS: This provision is applicable to lease-purchase agreements between the State of Maine (as the lessee / ultimate owner) and the lessor. In addition to the requirements of the preceding provision above, “Lease Agreements”, any lease-purchase agreement entered into by the State of Maine shall be made in accordance with 5 MRSA §1587, “Lease-Purchase Agreements”, and shall require all applicable approvals by the Legislature of the State of Maine before the lease-purchase agreement can be considered finalized and enforceable.

29. ENTIRE AGREEMENT: The RFQ and contract document, including these terms and conditions, contains the entire agreement of the parties, and neither party shall be bound by any statement or representation not contained herein. No waiver shall be deemed to have been made by any of the parties unless expressed in writing and signed by the waiving party. The parties expressly agree that they shall not assert in any action relating to the agreement that any implied waiver occurred between the parties which is not expressed in writing. The failure of any party to insist in any one or more instances upon strict performance of any of the terms or provisions of the agreement, or to exercise an option or election under the agreement, shall not be construed as a waiver or relinquishment for the future of such terms, provisions, option or election, but the same shall continue in full force and effect, and no waiver by any party of any one or more of its rights or remedies under the agreement shall be deemed to be a waiver of any prior or subsequent rights or remedy under the agreement or at law.

30. ACCEPTANCE OF TERMS AND CONDITIONS: Submission of a bid or quotation in response to a State of Maine RFQ shall constitute the bidder’s acceptance of and agreement to the foregoing terms and conditions.

Revised 1/25/2012

Revised 1/25/2012