HomeMy WebLinkAboutExhibit 4State Tera Contract for Energy Savings
No. 973-320-08-1
Contract Term: Five Years with Five Year Renewal Option
TABLE OF CONTENT:
1.0 INTRODUCTION
2.0 GENERAL INSTRUCTIONS TO RESPONDENTS (PUR 1001)
3.0 SPECIAL INSTRUCTIONS TO RESPONDENTS
4.0 GENERAL CONTRACT CONDITIONS (PUR 1000)
5.0 SPECIAL CONTRACT CONDITIONS
6.0 TECHNICAL SPECIFICATIONS
SECTION 1.0
INTRODUCTION
CONTENT:
1.1 INTRODUCTION AND OVERVIEW
1.2 TIMELINE
1.1 Introduction and Overview:
The State of Florida ("State") is issuing this Invitation to Negotiate ("ITN") to obtain
Responses from potential Contractors for the provisioning of Energy Savings
Contracting, as more fully described in Section 6.0 of this ITN. Any resulting contract
from this ITN will supersede and replace the current Comprehensive Energy Strategy
Contract (No. 973-320-03-1).
1.2 Timeline:
Event
Event Date
Issue ITN
3/26/2007
Questions from Respondents Due (No later than 2:00 pm ET)
4/04/2007
Post Responses to Respondent's Questions
4/11/2007
ITN Responses Due No later than 2:00 prn ET
4/24/2007
Responses Will be Opened @ 2:00 pm ET in Building 4050 Rm. 360K
Evaluators Review ITN Responses / Evaluators Scoring Session
4/25/2007 to 5/08/2007
Evaluation Committee Meeting
5/08/2007
Post Intent to Negotiate
5/08/2007
Commence Negotiations
5/15/2007 to 6/18/2007
Evaluation Committee Meeting
6/18/2007
Post Notice of Intent to Award
6/18/2007
Contract Award '
6/25/2007
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SECTION 2.0
State of Florida
PUR 1001
General Instructions to Respondents
Contents
1. DEFINITIONS.
2. GENERAL INSTRUCTIONS.
3. ELECTRONIC SUBMISSION OF RESPONSES.
4. TERMS AND CONDITIONS.
5. QUESTIONS.
6. CONFLICT OF INTEREST.
7. CONVICTED VENDORS.
8. DISCRIMINATORY VENDORS.
9. RESPONDENT'S REPRESENTATION AND AUTHORIZATION.
10. MANUFACTURER'S NAME AND APPROVED EQUIVALENTS.
11. PERFORMANCE QUALIFICATIONS.
12. PUBLIC OPENING.
13. ELECTRONIC POSTING OF NOTICE OF INTENDED AWARD.
14. FIRM RESPONSE.
15. CLARIFICATIONS/REVISIONS.
16. MINOR IRREGULARITIES/RIGHT TO REJECT.
17. CONTRACT FORMATION.
18. CONTRACT OVERLAP.
19. PUBLIC RECORDS.
20. PROTESTS.
21. LIMITATION ON VENDOR CONTACT WITH AGENCY DURING SOLICITATION PERIOD
1. Definitions. The definitions found in s. 60A-1.001, F.A.C. shall apply to this agreement. The
following additional terms are also defined:
(a) "Buyer" means the entity that has released the solicitation. The "Buyer" may also be the
"Customer" as defined in the PUR 1000 if that entity meets the definition of both terms:
(b) "Procurement Officer" means the Buyer's contracting personnel, as identified in the
Introductory Materials.
(c) "Respondent" means the entity that submits materials to the Buyer in accordance with these
Instructions.
(d) "Response" means the material submitted by the respondent in answering the solicitation.
(e) "Timeline" means the list of critical dates and actions included in the Introductory Materials.
2. General Instructions. Potential respondents to the solicitation are encouraged to carefully
review all the materials contained herein and prepare responses accordingly.
it,
3. Electronic Submission of Responses. Respondents are required to submit responses
electronically. For this purpose, all references herein to signatures, signing requirements, or
other required acknowledgments hereby include electronic signature by means of clicking the
"Submit Response" button (or other similar symbol or process) attached to or logically
associated with the response created by the respondent within MyFloridaMarketPlace. The
respondent agrees that the action of electronically submitting its response constitutes:
• an electronic signature,on the response, generally,
• an electronic signature on any form or section specifically calling for a signature, and
• an affirmative agreement to any statement contained in the solicitation that requires a
definite confirmation or acknowledgement.
4. Terms and Conditions. All responses are subject to the terms of the following sections of
this solicitation, which, in case of conflict, shall have the order of precedence listed:
• Technical Specifications,
• Special Conditions and Instructions,
• Instructions to Respondents (PUR 1001),
• General Conditions (PUR 1000), and
• Introductory Materials.
The Buyer objects to and shall not consider any additional terms or conditions submitted by a
respondent, including any appearing in documents attached as part of a respondent's response.
In submitting its response, a respondent agrees that any additional terms or conditions, whether
submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with
terms and conditions, including those specifying information that must be submitted with a
response, shall be grounds for rejecting a response.
5. Questions. Respondents shall address all questions regarding this solicitation to the
Procurement Officer. Questions must be submitted via the Q&A Board within
MyFloridaMarketPlace and must be RECEIVED NO LATER THAN the time and date reflected
on the Timeline. Questions shall be answered in accordance with the Timeline. All questions
submitted shall be published and answered in a manner that all respondents will be able to view.
Respondents shall not contact any other employee of the Buyer or the State for information with
respect to this solicitation. Each respondent is responsible for monitoring the
MyFloridaMarketPlace site for new or changing information. The Buyer shall not be bound by
any verbal information or by any written information that is not contained within the solicitation
documents or formally noticed and issued by the Buyer's contracting personnel. Questions to
the Procurement Officer or to any Buyer personnel shall not constitute formal protest of the
specifications or of the solicitation, a process addressed in paragraph 19 of these Instructions.
6. Conflict of Interest. This solicitation is subject to chapter 112 of the Florida Statutes.
Respondents shall disclose with their response the name of any officer, director, employee or
other agent who is also an employee of the State. Respondents shall also disclose the name of
any State employee who owns, directly or indirectly, an interest of five percent (5%) or more in
the respondent or its affiliates.
7. Convicted Vendors. A person or affiliate placed on the convicted vendor list following a
conviction for a public entity crime is prohibited from doing any of the following for a period of 36
months from the date of being placed on the convicted vendor list:
• submitting a bid on a contract to provide any goods or services to a public entity;
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• submitting a bid on a contract with a public entity for the construction or repair of a public
building or public work;
• submitting bids on leases of real property to a public entity;
• being awarded or performing work as a contractor, supplier, subcontractor, or consultant
under a contract with any public entity; and
• transacting business with any public entity in excess of the Category Two threshold
amount ($25,000) provided in section 287.017 of the Florida Statutes.
8. Discriminatory Vendors. An entity or affiliate placed on the discriminatory vendor list
pursuant to section 287.134 of the Florida Statutes may not:
• submit a bid on a contract to provide any goods or services to a public entity;
• submit a bid on a contract with a public entity for the construction or repair of a public
building or public work;
• submit bids on leases of real property to a public entity;
• be awarded or perform work as a contractor, supplier, sub -contractor, or consultant
under a contract with any public entity; or
• transact business with any public entity.
9. Respondent's Representation and Authorization. In submitting a response, each
respondent understands, represents, and acknowledges the following (if the respondent cannot
so certify to any of following, the respondent shall submit with its response a written explanation
of why it cannot do so).
• The respondent is not currently under suspension or debarment by the State or any other
governmental authority.
• To the best of the knowledge of the person signing the response, the respondent, its
affiliates, subsidiaries, directors, officers, and employees are not currently under
investigation by any governmental authority and have not in the last ten (10) years been
convicted or found liable for any act prohibited by law in any jurisdiction, involving
conspiracy or collusion with respect to bidding on any public contract.
• Respondent currently has no delinquent obligations to the State, including a claim by the
State for liquidated damages under any other contract.
• The submission is made in good faith and not pursuant to any agreement or discussion
with, or inducement from, any firm or person to submit a complementary or other
noncompetitive response.
• The prices and amounts have been arrived at independently and without consultation,
communication, or agreement with any other respondent or potential respondent; neither
the prices nor amounts, actual or approximate, have been disclosed to any respondent
or potential respondent, and they will not be disclosed before the solicitation opening.
• The respondent has fully informed the Buyer in writing of all convictions of the firm, its
affiliates (as defined in section 287.133(1)(a) of the Florida Statutes), and all directors,
officers, and employees of the firm and its affiliates for violation of state or federal
antitrust laws with respect to a public contract for violation of any state or federal law
involving fraud, bribery, collusion, conspiracy or material misrepresentation with respect
to a public contract. This includes disclosure of the names of current employees who
were convicted of contract crimes while in the employ of another company.
• Neither the respondent nor any person associated with it in the capacity of owner,
partner, director, officer, principal, investigator, project director, manager, auditor, or
position involving the administration of federal funds:
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o Has within the preceding three years been convicted of or had a civil judgment
rendered against them or is presently indicted for or otherwise criminally or civilly
charged for: commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a federal, state, or local government transaction
or public contract; violation of federal or state antitrust statutes; or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making
false statements, or receiving stolen property; or
o Has within a three-year period preceding this certification had one or more federal,
state, or local government contracts terminated for cause or default.
• The product offered by the respondent will conform to the specifications without
exception.
• The respondent has read and understands the Contract terms and conditions, and the
submission is made in conformance with those terms and conditions.
• If an award is made to the respondent, the respondent agrees that it intends to be legally
bound to the Contract that is formed with the State.
• The respondent has made a diligent inquiry of its employees and agents responsible for
preparing, approving, or submitting the response, and has been advised by each of them
that he or she has not participated in any communication, consultation, discussion,
agreement, collusion, act or other conduct inconsistent with any of the statements and
representations made in the response.
• The respondent shall indemnify, defend, and hold harmless the Buyer and its employees
against any cost, damage, or expense which may be incurred or be caused by any error
in the respondent's preparation of its bid.
• All information provided by, and representations made by, the respondent are material
and important and will be relied upon by the Buyer in awarding the Contract. Any
misstatement shall be treated as fraudulent concealment from the Buyer of the true facts
relating to submission of the bid. A misrepresentation shall be punishable under law,
including, but not limited to, Chapter 817 of the Florida Statutes.
10. Manufacturer's Name and Approved Equivalents. Unless otherwise specified, any
manufacturers' names, trade names, brand names, information or catalog numbers listed in a
specification are descriptive, not restrictive. With the Buyer's prior approval, the Contractor may
provide any product that meets or exceeds the applicable specifications. The Contractor shall
demonstrate comparability, including appropriate catalog materials, literature, specifications,
test data, etc. The Buyer shall determine in its sole discretion whether a product is acceptable
as an equivalent.
11. Performance Qualifications. The Buyer reserves the right to investigate or inspect at any
time whether the product, qualifications, or facilities offered by Respondent meet the Contract
requirements. Respondent shall at all times during the Contract term remain responsive and
responsible. In determining Respondent's responsibility as a vendor, the agency shall consider
all information or evidence which is gathered or comes to the attention of the agency which
demonstrates the Respondent's capability to fully satisfy the requirements of the solicitation and
the contract.
Respondent must be prepared, if requested by the Buyer, to present evidence of experience,
ability, and financial standing, as well as a statement as to plant, machinery, and capacity of the
respondent for the production, distribution, and servicing of the product bid. if the Buyer
determines that the conditions of the solicitation documents are not complied with, or that the
product proposed to be furnished does not meet the specified requirements, or that the
qualifications, financial standing, or facilities are not satisfactory, or that performance is
untimely, the Buyer may reject the response or terminate the Contract. Respondent may be
disqualified from receiving awards if respondent, or anyone in respondent's employment, has
previously failed to perform satisfactorily in connection with public bidding or contracts. This
paragraph shall not mean or imply that it is obligatory upon the Buyer to make an investigation
either before or after award of the Contract, but should the Buyer elect to do so, respondent is
not relieved from fulfilling all Contract requirements.
12. Public Opening. Responses shall be opened on the date and at the location indicated on
the Timeline. Respondents may, but are not required to, attend. The Buyer may choose not to
announce prices or release other materials pursuant to s. 119.071(1)(b), Florida Statutes. Any
person requiring a special accommodation because of a disability should contact the
Procurement Officer at least five (5) workdays prior to the solicitation opening. If you are hearing
or speech impaired, please contact the Buyer by using the Florida Relay Service at (800) 955-
8771 (TDD).
13. Electronic Posting of Notice of Intended Award. Based on the evaluation, on the date
indicated on the Timeline the Buyer shall electronically post a notice of intended award at
http://fcn.state.fl.us/owa vbs/owa/vbs www.main menu. If the notice of award is delayed, in lieu
of posting the notice of intended award the Buyer shall post a notice of the delay and a revised
date for posting the notice of intended award. Any person who is adversely affected by the
decision shall file with the Buyer a notice of protest within 72 hours after the electronic posting.
The Buyer shall not provide tabulations or notices of award by telephone.
14. Firm Response. The Buyer may make an award within sixty (60) days after the date of the
opening, during which period responses shall remain firm and shall not be withdrawn. If award
is not made within sixty (60) days, the response shall remain firm until either the Buyer awards
the Contract or the Buyer receives from the respondent written notice that the response is
withdrawn. Any response that expresses a shorter duration may, in the Buyer's sole discretion,
be accepted or rejected.
15. Clarifications/Revisions. Before award, the Buyer reserves the right to seek clarifications or
request any information deemed necessary for proper evaluation of submissions from all
respondents deemed eligible for Contract award. Failure to provide requested information may
result in rejection of the response.
16. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any
and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or
omission if the Buyer determines that doing so will serve the State's best interests. The Buyer
may reject any response not submitted in the manner specified by the solicitation documents.
17. Contract Formation. The Buyer shall issue a notice of award, if any, to successful
respondent(s), however, no contract shall be formed between respondent and the Buyer until
the Buyer signs the Contract. The Buyer shall not be liable for any costs incurred by a
respondent in preparing or producing its response or for any work performed before the Contract
is effective.
18. Contract Overlap. Respondents shall identify any products covered by this solicitation that
they are currently authorized to furnish under any state term contract. By entering into the
Contract, a Contractor authorizes the Buyer to eliminate duplication between agreements in the
manner the Buyer deems to be in its best interest.
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19. Public Records. Article 1, section 24, Florida Constitution, guarantees every person access
to all public records, and Section 119.011, Florida Statutes, provides a broad definition of public
record. As such, all responses to a competitive solicitation are public records unless exempt by
law. Any respondent claiming that its response contains information that is exempt from the
public records law shall clearly segregate and mark that information and provide the specific
statutory citation for such exemption.
20. Protests. Any protest concerning this solicitation shall be made in accordance with sections
120.57(3) and 287.042(2) of the Florida Statutes and chapter 28-110 of the Florida
Administrative Code. Questions to the Procurement Officer shall not constitute formal notice of a
protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value
for the State and that specifications are written to ensure competitiveness, fairness, necessity
and reasonableness in the solicitation process.
Section 120.57(3)(b), F.S. and Section 28-110.003, Fla. Admin. Code require that a notice of
protest of the solicitation documents shall be made within seventy-two hours after the posting of
the solicitation.
Section 120.57(3)(a), F.S. requires the following statement to be included in the solicitation:
"Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall
constitute a waiver of proceedings under Chapter 120, Florida Statutes."
Section 28-110.005, Fla. Admin. Code requires the following statement to be included in the
solicitation: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida
Statutes, or failure to post the bond or other security required by law within the time allowed for
filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."
21. Limitation on Vendor Contact with Agency During Solicitation Period. Respondents to this
solicitation or persons acting on their behalf may not contact, between the release of the
solicitation and the end of the 72 -hour period following the agency posting the notice of intended
award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the
executive or legislative branch concerning any aspect of this solicitation, except in writing to the
procurement officer or as provided in the solicitation documents. Violation of this provision may
be grounds for rejecting a response.
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SECTION 3.0
SPECIAL INSTRUCTIONS TO RESPONDENTS
SPECIAL INSTRUCTIONS TO RESPONDENTS CONTAINED IN THIS SECTION 3.0 MAY SUPERCEDE OR
SUPPLEMENT GENERAL INSTRUCTIONS TO RESPONDENTS CONTAINED IN SECTION 2.0.
CONTENT
3.1 CONTACT PERSON
3.2 ORDER OF PRECEDENCE
3.3 DEFINITIONS
3.4 WHO MAY RESPOND
3.5 MYFLORIDAMARKETPLACE (MFMP) ITN OVERVIEW
16 AMENDMENTS TO THE ITN DOCUMENTS
3.7 SUBMITTAL OF RESPONSE
3.8 EVALUATION AND SELECTION PROCESS
3.9 RESERVATIONS
3.10 ORAL PRESENTATIONS
3.11 DISCLOSURE OF RESPONSE CONTENTS
3.12 RESPONDENT'S BUSINESS INFORMATION, EXPERIENCE AND EVALUATION CRITERIA
3.13 STATE OBJECTIVES
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3.1 Contact Person
Refer ALL Inquiries to:
David A. Bennett
Lead Purchasing Analyst, State Purchasing
Department of Management Services
4050 Esplanade Way, Suite 360
Tallahassee, FL 32399-0950
(850) 921-4072
(850) 488-5498 (facsimile)
David. Ben nettadms.MYflorida.com
3.2 Order of Precedence
Potential Respondents to the solicitation are encouraged to carefully review all the
materials contained herein and prepare responses accordingly. In the event any conflict
exists between the Special and General Instructions, those instructions specified in the
Special Instructions shall prevail. After successful negotiations, Contractor(s) shall sign a
Contract form incorporating the solicitation materials and any additional terms and
conditions resulting from the negotiation process.
All responses are subject to the terms of the following sections of this ITN, which, in case
of conflict, shall have the order of precedence listed:
• Technical Specifications
• Special Instructions to Respondents
• Special Conditions
• Forms; Attachments and Worksheets
• General Instruction to Respondents (PUR 1001)
• General Conditions ,(PUR 1000)
The Department will consider additional terms and conditions submitted by a
Respondent that may be submitted as part of a Respondent's response. This
willingness to consider additional terms and conditions takes precedence over the
language contained in the General Instructions to Respondents (PUR 1001), Section 2.4.
The Department's willingness to consider additional terms and conditions does not
extend to the requirements listed in Section 3.9 which shall be considered non-
negotiable.
Respondents shall submit any proposed additional terms and conditions in accordance
with Section 3.7.
3.3 Definitions
3.3.1 The definitions found in s. 60A-1.001, F.A.C. shall apply to this agreement. The
following additional terms are also defined:
3.3.2 "The Department" means the Department of Management Services.
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3.3.3 "Procurement Officer" means the Buyer's contracting personnel, as identified in
Section 3.1.
3.3.4 "Eligible Users" is defined in 60A-1.005, F.A.C. The following entities are eligible
users:
1. All governmental agencies, as defined in Section 163.3164, F.S., which have a
physical presence within the State of Florida;
2. Any independent, non-profit college or university that is located within the State of
Florida and is accredited by the Southern Association of Colleges and Schools.
3.3.5 "Contractor" means any person who contracts to sell commodities or contractual
services to an agency.
3.4 Who May Respond
Fully capable providers, who are in good standing with the State of Florida, meet the
Technical Specifications (Section 6.0), and which possess the financial capability,
experience and personnel resources to provide service of the scope and breadth
described in this ITN.
The Department and Eligible Users retain the right to request additional information
pertaining to the Respondent's ability and qualifications to accomplish all services
described in this ITN as deemed necessary during the ITN or after contract award.
Companies, their subsidiaries, affiliates, or related entities shall be limited to one (1)
response as a prime contractor. A company/firm may serve as a prime contractor on
ONLY one response. A company may serve as a subcontractor on multiple
responses.
3.5 MyFloridaMarketPlace ITN Overview
3.5.1 MyFloridaMarketPlace Sourcing Tool Tips
Vendors must have a current and complete Vendor Registration Application identified
on the MyFloridaMarketPlace Vendor Registration System at:
https://vendor.mylloridamarketplace.com/. If you have not registered, please be
advised that a minimum of 48 hours will be required for access to the Sourcing Tool.
Completion of this registration is mandatory for those Vendors who wish to submit a
response.
3.5.2 Questions & Answers.
Respondents shall examine this solicitation to determine if the Department's
requirements are clearly stated. If there are any requirements which are unclear or
may restrict competition, Respondents should submit notice to the Department
during Stage 1 using the Sourcing Tool's Q&A Board by due date for Respondents to
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3.5.3
submit questions listed in the Event Calendar. Do not contact the Purchasing
Analyst or Customers directly. Within the submitted question, Respondents must do
the following:
Identify and describe in detail their difficulty in meeting the Department's
specifications
2. Provide detailed justification for a change
3. Provide recommended changes to the specifications
A Respondent's failure to request changes by the date described in the Introduction
(Section 1) of this solicitation shall be considered to constitute Respondent's
acceptance of the Department's specifications. The Department shall determine
what changes to the solicitation shall be acceptable to the Department, if any. If
required, the Department shall issue an addendum reflecting the acceptable changes
to this solicitation, which shall be posted as an addendum to the solicitation in the
Sourcing tool and on the State's Vendor Bid System in order that all Respondents
shall be given the opportunity of submitting responses to the same specifications.
Please note that questions will NOT be answered via telephone or fax. The
Department shall post the answers to the questions via the System by the date
stated on the Event Calendar. Each Respondent is responsible for monitoring the
System for new or changing information. New communications will be posted within
the Message Center on the System. The Department shall not be bound. by any
verbal information or by any written information that is not either contained within the
solicitation documents or formally noticed and issued by the Purchasing Analyst.
Questions shall not constitute formal protest of the specifications or of the solicitation.
The formal protest process is described in PUR Form 1001 (Section 19) of this
solicitation.
MyFloridaMarketPlace Sourcing Will NOT be used to Submit Respondent's Reply
Five hard copies and one CD of the Respondent's reply to this ITN shall be submitted
to and received by the Official Contact Person specified in Section 3.1 (or his
designee) by the deadline specified in Section 1.2. DO °NOT submit your response
electronically throudh MFMP:
This :Section; 3.5.3, supersedes and replaces'Section 2,:3, of this Solicitation.
3.5.4 MyFloridaMarketPlace Email Notification
Respondents are reminded that the Sourcing Tool's Email Notifications are an option
provided as a courtesy. The State of Florida is not under any obligation and does not
guarantee that Vendors will receive Email Notifications concerning the posting,
amendment or close of solicitations. Vendors are responsible for checking the
MyFloridaMarketPlace Sourcing Tool and / or the Vendor Bid System for information
and updates concerning solicitations.
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3.5.5 MyFloridaMarketPlace Sourcing Tool Training
This solicitation will be conducted using the MyFloridaMarketPlace Sourcing Tool.
Optional training is offered at:
http://marketolace.myflorida.com/vendor/vendor solicitation help.htm.
Download and review the document titled "ITB Event User Guide."
• For all technical questions about the Sourcing Tool, Vendors should contact the
MyFloridaMarketPlace Customer Service Desk at 866-FLA-EPRO (866-352-
3776) or: vendorhelp(o)myfloridamarketplace.com.
• For additional information or assistance on using the Sourcing Tool, please visit
the MyFloridaMarketPlace website at the following link:
http://marketr)lace.mAlorida.com/vendor/vendor solicitation help.htm.
This site includes:
a. Solicitation User Guides
b. On Demand web -based Sourcing training link
c. WinZip FAQs
d. Vendor FAQs
3.6 Amendments to the ITN Documents
The Department reserves the right to issue amendments to the ITN. Notice of any
amendment will be posted within MyFloridaMarketPlace and/or the Vendor Bid System.
Such notice, if required, will contain the appropriate details for identifying and/or
reviewing the formal changes to the ITN. Each Respondent is responsible for
monitoring the sites for new or changing information concerning this ITN.
3.7 Submittal of Response
Five Hard copies and one CD of the Respondent's reply to this ITN shall be received by
the Official Contact Person specified in Section 3.1 (or his designee) by the deadline
specified in Section 1.2. DO`NOTsubmit yourresponse electronically tthrouah`MFMP
The outer packaging of mailed documents shall clearly state: Solicitation Title and
Number (STATE TERM CONTRACT FOR ENERGY SAVINGS, ITN No. 24-973-320-x)
and the ITN Responses Due Date and Time from the Timeline in Section 1.2 of this
solicitation. Failure to provide all required information within the solicitation response
may result in rejection of the response.
Each Respondent is responsible for ensuring that the offer is received before the
deadline noted on the Timeline in Section 1.2 of this solicitation. The Department shall
not consider offers received after the due date and time specified in the Timeline
(Section 1.2) or as amended by the Department.
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3.8 Evaluation and Selection Process
In determining whether to select or reject a response, the Department will consider and
balance all information submitted in response to this ITN. Responses that do not contain all
the required information may be considered non-responsive and may be rejected. In its
assessment of submitted responses, the Department will analyze the information submitted in
relation to the information requirements and evaluation criteria of this ITN, the applicable
provisions of Florida Statutes, and Florida Administrative Code. Respondents must meet or
exceed the requirements outlined in Section 3.12.
3.9 Reservations.
The Department reserves the right to reject any and all Responses received pursuant to this
Invitation to Negotiate, if the Department determines such action is in the best interest of the
State of Florida or the Department. The Department reserves the right to negotiate
concurrently or separately with competing Respondents. The Department reserves the right
to accept portions of a competing Respondent's Responses and merge such portions into
one project, including the inclusion of the entity offering such portions. The Department
reserves the right to waive minor irregularities in submitted Responses.
3.10 Oral Presentation.
The Department reserves the right to require any Respondent to perform, prior to the selection of
Respondent(s), an operational demonstration and, an oral presentation on any hardware, software
or professional services included in its Response. If the Department determines that an operational
demonstration and oral presentation are necessary, the Department shall schedule the
presentation.
A written summary of the operational demonstration and oral presentation prepared by the
Respondent shall be regarded as confirmation of this requirement and shall become part of the
Respondent's response. A list of attendees and copies of the agenda and all visuals should
accompany the written summary. The inability of the Respondent to conduct the operational
demonstration and oral presentation within ten (10) days of written notification by the Department will
result in disqualification. The Respondent(s) project manager(s) assigned to this Response must be
present at the operational demonstration and oral presentation.
3.11 Disclosure of Response Contents.
All documentation produced as part of the Invitation to Negotiate will become the exclusive property
of the Department and may not be removed by an employee or agent of the Respondent. All
Responses received from Respondents in response to this Invitation to Negotiate will become the
property of the Department and will not be returned to the Respondent. The Department shall have
the right to use any or all ideas or adaptations of the ideas presented in any Response received in
response to this Invitation to Negotiate. Selection or rejection of a Response will not affect this right.
For additional information regarding public records, please refer to Section 2.19 of this solicitation.
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3.12 Respondent's Business Information and Experience
3.12.1 Please, provide the following information regarding the Respondent's business:
A. Full, legal name of prime Respondent;
B. Federal Identification Number;
C. Unemployment Compensation Number;
D. State in which incorporated, and if not incorporated, indicate type of business
(e.g., partnership, sole proprietorship, etc.);
E. Date incorporated;
F. Description of the Respondent's organization, including subsidiaries, parent
corporations, officers; include organization charts and details concerning the
number of facilities by geographic location;
G. Brief description of the Respondent's principal type of business;
H. Percentage of minority employees;
I. State whether the Respondent has had a contract terminated for default within
the past five years, and if so, describe in detail;
J. State whether the Respondent has filed for bankruptcy protection in the past
five (5) years, or is currently in the process of filing or planning to file for
bankruptcy protection or financial restructuring or refinancing. If so provide
Court and case number;
K. Describe in detail a plan to provide continued service and support to the
Department in the event the Respondent's company goes out of business,
merges with another company, is acquired by another company, etc.;
L. Certify that the Respondent is not currently under suspension or debarment by
the Federal government, the State of Florida, or any other state government;
M. Certify that the Respondent does not owe the Federal government, the State
of Florida, or another state any outstanding taxes or fees;
N. State whether any contract with the State, or negotiation with any other clients,
would represent a possible conflict of interest;
0. Indicate whether the Respondent has any pending or threatened litigation
against the State or any agency of the State;
P. If the Respondent is proposing to use any sub -contractors for the project,
describe in detail the experience as a prime Respondent in dealing with sub-
contractors, and how the plan to manage and coordinate any proposed sub-
contractors;
Q. Provide the names and addresses of all affiliated or related companies,
partnerships or associations (including sub -contractor, if any) and a brief
description of their relationship to the Respondent;
R. Document the Respondent's insurability and ability to obtain bonding as
required by the State;
17
S, Provide a statement on the Respondent's letterhead that the Respondent
agrees to comply with all Federal and state laws regarding fair employment
practices and non-discrimination.
3.12.2 Evaluation Criteria for Stage 1 (Pre -Negotiation).
Respondent's will be awarded a Pass or Fail grade for each of the 3 criterion
below and will only be considered for an award of the subsequent contract if a
Passing grade is received for each criterion.
Please provide the following information regarding the Respondent's history and
experience:
Please provide a summary of all projects as defined within F.S. 489.145 that your
business has contracted for with any government entity during the last five years.
The summary should be brief (approximately 2 pages) and include but not be
limited to a description of the project, outcome, referral/contact information, and
dollar amount. In order to receive a Passing grade, the Respondent must have five
or more projects under contract with government entities with an aggregate amount
of $10 million or more over the last THREE years.
2. Respondent's License:
The Respondent must provide a copy of a license under F.S. 471, F.S. 481, or F.S.
489, and demonstrate that they are experienced in the analysis, design,
implementation, or installation of energy conservation measures through energy
performance contracts.
Respondent's Financial Capability—
The Respondent must provide information demonstrating its Financial Capability and
resources available to satisfy the requirements proposed within this ITN.
3.12.3 Evaluation Criteria for Stage 2 (Negotiation and Award).
Evaluation Criteria for Stage 2 will be provided prior to Stage 2.
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3.13 State Objectives (rev. 07/28/04)
Within thirty (30) calendar days following award of the Contract, the successful
Respondent shall submit plans addressing each of the State's five (5) objectives listed
below, to the extent applicable to the items / services covered by this solicitation.
3.13.1 Environmental Considerations
The State supports and encourages initiatives to protect and preserve our
environment. The Contractor shall submit as part of any response the Contractor's
plan to support the procurement of products and materials with recycled content, and
the intent of Section 287.045, Florida Statutes. The Contractor shall also provide a
plan for reducing and or handling of any hazardous waste generated by Contractor's
company. Reference Rule 62-730.160, Florida Administrative Code. It is a
requirement of the Florida Department of Environmental Protection that a generator
of hazardous waste materials that exceeds a certain threshold must have a valid and
current Hazardous Waste Generator Identification Number. This identification
number shall be submitted as part of Contractor's explanation of its company's
hazardous waste plan and shall explain in detail its handling and disposal of this
waste.
3.13.2 Certification of Drug -Free Workplace Program
The State supports and encourages initiatives to keep the workplaces of Florida's
Suppliers and Contractors drug free. Section 287.087 of the Florida Statutes
provides that, where identical tie responses are received, preference shall be given
to a response received from a Respondent that certifies it has implemented a drug-
free workforce program. The Contractor shall describe how it will address the
implementation of a drug free workplace in offering the items of the solicitation.
3.13.3 Products Available from the Blind or Other Handicapped (RESPECT)
The State supports and encourages the gainful employment of citizens with
disabilities. It is expressly understood and agreed that any articles that are the
subject of, or required to carry out, this Contract shall be purchased from a nonprofit
agency for the blind or for the severely handicapped that is qualified pursuant to
Chapter 413, Florida Statutes, in the same manner and under the same procedures
set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this
Contract the person, firm, or other business entity carrying out the provisions of this
Contract shall be deemed to be substituted for the state agency insofar as dealings
with such qualified nonprofit agency are concerned. Additional information about the
designated nonprofit agency and the products it offers is available at
http://www.respectofflorida.org.
The Contractor shall describe how it will address the use of RESPECT in offering the
items of the solicitation.
3.13.4 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE)
The State supports and encourages the use of Florida correctional work programs. It
is expressly understood and agreed that any articles which are the subject of, or
required to carry out, this Contract shall be purchased from the corporation identified
19
under Chapter 946, F.S., in the same manner and under the same procedures set
forth in Section 946.515(2), and (4), F.S.; and for purposes of this contract the
person, firm, or other business entity carrying out the provisions of this Contract shall
be deemed to be substituted for this agency insofar as dealings with such corporation
are concerned. Additional information about PRIDE and the products it offers is
available at http://www.prridefl.com.
The Contractor shall describe how it will address the use of PRIDE in offering the
items of the solicitation.
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SECTION 4.0
State of Florida
PUR 1000
General Contract Conditions
Contents
1. Definitions.
2. Purchase Orders.
3. Product Version.
4. Price Changes Applicable only to Term Contracts.
5. Additional Quantities.
6. Packaging.
7. Inspection at Contractor's Site.
8. Safety Standards.
9. Americans with Disabilities Act.
10. Literature.
11. Transportation and Delivery.
12. Installation.
13. Risk of Loss.
14. Transaction Fee.
15. Invoicing and Payment.
16. Taxes.
17. Governmental Restrictions.
18. Lobbying and Integrity.
19. Indemnification.
20. Limitation of Liability.
21. Suspension of Work.
22. Termination for Convenience.
23. Termination for Cause.
24. Force Majeure, Notice of Delay, and No Damages for Delay.
25. Changes.
26. Renewal.
27. Purchase Order Duration.
28. Advertising.
29. Assignment,
30. Antitrust Assignment
31. Dispute Resolution.
32. Employees, Subcontractors, and Agents.
33. Security and Confidentiality.
34. Contractor Employees, Subcontractors, and Other Agents.
35. Insurance Requirements.
36. Warranty of Authority.
37. Warranty of Ability to Perform.
38. Notices.
39. Leases and Installment Purchases.
40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE).
41. Products Available from the Blind or Other Handicapped.
42. Modification of Terms.
43. Cooperative Purchasing.
44. Waiver.
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45. Annual Appropriations. "
46. Execution in Counterparts.
47. Severability.
1. Definitions. The definitions contained in s. 60A-1.001, F.A.C. shall apply to this agreement.
The following additional terms are also defined:
(a) "Contract" means the legally enforceable agreement that results from a successful
solicitation. The parties to the Contract will be the Customer and Contractor.
(b) "Customer" means the State agency or other entity identified in a contract as the party to
receive commodities or contractual services pursuant to a contract or that orders commodities or
contractual services via purchase order or other contractual instrument from the Contractor
under the Contract. The "Customer" may also be the "Buyer" as defined in the PUR 1001 if it
meets the definition of both terms.
(c) "Product" means any deliverable under the Contract, which may include commodities,
services, technology or software.
(d) "Purchase order" means the form or format a Customer uses to make a purchase under the
Contract (e.g., a formal written purchase order, electronic purchase order, procurement card,
contract or other authorized means).
2. Purchase Orders. In contracts where commodities or services are ordered by the Customer
via purchase order, Contractor shall not deliver or furnish products until a Customer transmits a
purchase order. All purchase orders shall bear the Contract or solicitation number, shall be
placed by the Customer directly with the Contractor, and shall be deemed to incorporate by
reference the Contract and solicitation terms and conditions. Any discrepancy between the
Contract terms and the terms stated on the Contractor's order form, confirmation, or
acknowledgement shall be resolved in favor of terms most favorable to the Customer. A
purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall
be deemed to incorporate by reference the requirements of subparagraphs (a) through (f)
thereof. Customers shall designate a contract manager and a contract administrator as required
by subsections 287.057(15) and (16) of the Florida Statutes.
3. Product Version. Purchase orders shall be deemed to reference a manufacturer's most
recently release model or version of the product at the time of the order, unless the Customer
specifically requests in writing an earlier model or version and the contractor is willing to provide
such model or version.
4. Price Changes Applicable only to Term Contracts. If this is a term contract for commodities
or services, the following provisions apply.
(a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery
of large single orders. Customers should seek to negotiate additional price concessions on
quantity purchases of any products offered under the Contract. State Customers shall
document their files accordingly.
(b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing
offered by the Contractor for substantially the same or a smaller quantity of a product outside the
22
Contract, but upon the same or similar terms of the Contract, then at the discretion of the
Customer the price under the Contract shall be immediately reduced to the lower price.
(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due
to a change in market conditions, a Contractor may conduct sales promotions involving price
reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist
documentation identifying the proposed (1) starting and ending dates of the promotion, (2)
products involved, and (3) promotional prices compared to then -authorized prices. Promotional
prices shall be available to all Customers. Upon approval, the Contractor shall provide
conspicuous notice of the promotion.
(d) Trade -In. Customers may trade-in equipment when making purchases from the Contract. A
trade-in shall be negotiated between the Customer and the Contractor. Customers are
obligated to actively seek current fair market value when trading equipment, and to keep
accurate records of the process. For State agencies, it may be necessary to provide
documentation to the Department of Financial Services and to the agency property custodian
pursuant to Chapter 273, F. S.
(e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable
adjustment in the Contract terms or pricing if pricing or availability of supply is affected by
extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the
following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the
volatility affects the marketplace or industry, not just the particular Contract source of supply, (3)
the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the
Contractor that continued performance of the Contract would result in a substantial loss.
5. Additional Quantities. For a period not exceeding ninety (90) days from the date of
solicitation award, the Customer reserves the right to acquire additional quantities up to the
amount shown on the solicitation but not to exceed the threshold for Category Two at the prices
submitted in the response to the solicitation.
6. Packaging. Tangible product shall be securely and properly packed for shipment, storage,
and stocking in appropriate, clearly labeled, shipping containers and according to accepted
commercial practice, without extra charge for packing materials, cases, or other types of
containers. All containers and packaging shall become and remain Customer's property.
7. Inspection at Contractor's Site. The Customer reserves the right to inspect, at any
reasonable time with prior notice, the equipment or product or plant or other facilities of a
Contractor to assess conformity with Contract requirements and to determine whether they are
adequate and suitable for proper and effective Contract performance.
8. Safety Standards. All manufactured items and fabricated assemblies subject to operation
under pressure, operation by connection to an electric source, or operation involving connection
to a manufactured, natural, or LP gas source shall be constructed and approved in a manner
acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum,
identification marking of the appropriate safety standard organization, where such approvals of
listings have been established for the type of device offered and furnished, for example: the
American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories
and/or National Electrical Manufacturers' Association for electrically operated assemblies; and
23
the American Gas Association for gas -operated assemblies. In addition, all items furnished
shall meet all applicable requirements of the Occupational Safety and Health Act and state and
federal requirements relating to clean air and water pollution.
9. Americans with Disabilities Act. Contractors should identify any products that may be used
or adapted for use by visually, hearing, or other physically impaired individuals.
10. Literature. Upon request, the Contractor shall furnish literature reasonably related to the
product offered, for example, user manuals, price schedules, catalogs, descriptive brochures,
etc.
11. Transportation and Delivery. Prices shall include all charges for packing, handling,
freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to
any point within thirty (30) days after the Customer places an Order. A Contractor, within five (5)
days after receiving a purchase order, shall notify the Customer of any potential delivery delays.
Evidence of inability or intentional delays shall be cause for Contract cancellation and
Contractor suspension.
12. Installation. Where installation is required, Contractor shall be responsible for placing and
installing the product in the required locations at no additional charge, unless otherwise
designated on the Contract or purchase order. Contractor's authorized product and price list
shall clearly and separately identify any additional installation charges. All materials used in the
installation shall be of good quality and shall be free of defects that would diminish the
appearance of the product or render it structurally or operationally unsound. Installation
includes the furnishing of any equipment, rigging, and materials required to install or replace the
product in the proper location. Contractor shall protect the site from damage and shall repair
damages or injury caused during installation by Contractor or its employees or agents. If any
alteration, dismantling, excavation, etc., is required to achieve installation, the Contractor shall
promptly restore the structure or site to its original condition. Contractor shall perform
installation work so as to cause the least inconvenience and interference with Customers and
with proper consideration of others on site. Upon completion of the installation, the location and
surrounding area of work shall be left clean and in a neat and unobstructed condition, with
everything in satisfactory repair and order.
13. Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S. Until
acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be
responsible for filing, processing, and collecting all damage claims. To assist the Contractor
with damage claims, the Customer shall: record any evidence of visible damage on all copies of
the delivering carrier's Bill of Lading; report damages to the carrier and the Contractor; and
provide the Contractor with a copy of the carrier's Bill of Lading and damage inspection report.
When a Customer rejects a product, Contractor shall remove it from the premises within ten
days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non-
conforming product shall remain with the Contractor. Rejected product not removed by the
Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer
shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer
for costs and expenses incurred in storing or effecting removal or disposition of rejected product.
14. Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide
eProcurement System ("System"). Pursuant to section 287.057(23), Florida Statutes (2002), all
payments shall be assessed a Transaction Fee of one percent (1.0%), which the Contractor
shall pay to the State, unless exempt pursuant to 60A-1.032, F.A.C.
24
For payments within the State accounting system (FLAIR or its successor), the Transaction Fee
shall, when possible, be automatically deducted from payments to the Contractor. If automatic
deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-
1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies
their correctness. All such reports and payments.shall be subject to audit by the State or its
designee.
Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of
any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the
Contractor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is
rejected or returned, or declined, due to the Contractor's failure to perform or comply with
specifications or requirements of the agreement.
Failure to comply with these requirements shall constitute grounds for declaring the Contractor
in default and recovering reprocurement costs from the Contractor in addition to all outstanding
fees. CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES MAY BE SUBJECT
TO BEING REMOVED FROM THE DEPARTMENT OF MANAGEMENT SERVICES' VENDOR
LIST AS PROVIDED IN RULE 60A-1.006, F.A.C.
15. Invoicing and Payment. Invoices shall contain the Contract number, purchase order
number if applicable, and the appropriate vendor identification number. The State may require
any other information from the Contractor that the State deems necessary to verify any purchase
order placed under the Contract.
At the State's option, Contractors may be required to invoice electronically pursuant to
guidelines of the Department of Management Services. Current guidelines require that
Contractor supply electronic invoices in lieu of paper-based invoices for those transactions
processed through the system. Electronic invoices shall be submitted to the Customer through
the Ariba Supplier Network (ASN) in one of the following mechanisms - EDI 810, cXML, or web -
based invoice entry within the ASN.
Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida
Statutes, which govern time limits for payment of invoices. Invoices that must be returned to a
Contractor due to preparation errors will result in a delay in payment. Contractors may call (850)
413-7269 Monday through Friday to inquire about the status of payments by State Agencies.
The Customer is responsible for all payments under the Contract. A Customer's failure to pay,
or delay in payment, shall not constitute a breach of the Contract and shall not relieve the
Contractor of its obligations to the Department or to other Customers.
16. Taxes. The State does not pay Federal excise or sales taxes on direct purchases of tangible
personal property. The State will not pay for any personal property taxes levied on the
Contractor or for any taxes levied on employees' wages. Any exceptions to this paragraph shall
be explicitly noted by the Customer in the special contract conditions section of the solicitation or
in the Contract or purchase order.
17. Governmental Restrictions. If the Contractor believes that any governmental restrictions
have been imposed that require alteration of the material, quality, workmanship or performance
of the products offered under the Contract, the Contractor shall immediately notify the Customer
in writing, indicating the specific restriction. The Customer reserves the right and the complete
discretion to accept any such alteration or to cancel the. Contract at no further expense to the
Customer.
18. Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and
Section 216.347, FS.The Contractor shall not, in connection with this or any other agreement with
25
the State 'directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone
as consideration for any State officer or employee's decision, opinion, recommendation, vote, other
exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to
anyone any gratuity for the benefit of, or at the direction or request of, any State officer or
employee. For purposes of clause (2), "gratuity" means any payment of more than nominal
monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions,
advances, deposits of money, services, employment, or contracts of any kind. Upon request of the
Customer's Inspector General, or other authorized State official, the Contractor shall provide any
type of information the Inspector General deems relevant to the Contractor's integrity or
responsibility. Such information may include, but shall not be limited to, the Contractor's business
or financial records, documents, or files of any type or form that refer to or relate to the Contract.
The Contractor shall retain such records for the longer of (1) three years after the expiration of the
Contract or (2) the period required by the General Records Schedules maintained by the Florida
Department of State (available at: http://diis.dos.state.fl.us/barm/genschedules/gensched.htm).
The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by
the Inspector General or other authorized State official for investigations of the Contractor's
compliance with the terms of this or any other agreement between the Contractor and the State
which results in the suspension or debarment of the Contractor. Such costs shall include, but shall
not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and
expert witness and documentary fees. The Contractor shall not be responsible for any costs of
investigations that do not result in the Contractor's suspension or debarment.
19. Indemnification. The Contractor shall be fully liable for the actions of its agents,
employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the
State and Customers, and their officers, agents, and employees, from suits, actions, damages,
and costs of every name and description, including attorneys' fees, arising from or relating to
personal injury and damage to real or personal tangible property alleged to be caused in whole
or in part by Contractor, its agents, employees, partners, or subcontractors, provided, however,
that the Contractor shall not indemnify for that portion of any loss or damages proximately
caused by the negligent act or omission of the State or a Customer.
Further, the Contractor shall fully indemnify, defend, and hold harmless the State and
Customers from any suits, actions, damages, and costs of every name and description,
including attorneys' fees, arising from or relating to violation or infringement of a trademark,
copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing
obligation shall not apply to a Customer's misuse or modification of Contractor's products or a
Customer's operation or use of Contractor's products in a manner not contemplated by the
Contract or the purchase order. If any product is the subject of an infringement suit, or in the
Contractor's opinion is likely to become the subject of such a suit, the Contractor may at its sole
expense procure for the Customer the right to continue using the product or to modify it to
become non -infringing. If the Contractor is not reasonably able to modify or otherwise secure
the Customer the right to continue using the product, the Contractor shall remove the product
and refund the Customer the amounts paid in excess of a reasonable rental for past use. The
customer shall not be liable for any royalties.
The Contractor's obligations under the preceding two paragraphs with respect to any legal
action are contingent upon the State or Customer giving the Contractor (1) written notice of any
action or threatened action, (2) the opportunity to take over and settle or defend any such action
at Contractor's sole expense, and (3) assistance in defending the action at Contractor's sole
expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or
made by the State or Customer in any legal action without the Contractor's prior written consent,
which shall not be unreasonably withheld.
13•
20. Limitation of Liability. For all claims against the Contractor under any contract or
purchase order, and regardless of the basis on which the claim is made, the Contractor's liability
under a contract or purchase order for direct damages shall be limited to the greater of
$100,000, the dollar amount of the contract or purchase order, or two times the charges
rendered by the Contractor under the purchase order. This limitation shall not apply to claims
arising under the Indemnity paragraph contain in this agreement.
Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall
be liable to another for special, indirect, punitive, or consequential damages, including lost data
or records (unless the contract or purchase order requires the Contractor to back-up data or
records), even if the party has been advised that such damages are possible. No party shall be
liable for lost profits, lost revenue, or lost institutional operating savings. The State and
Customer may, in addition to other remedies available to them at law or equity and upon notice
to the Contractor, retain such monies from amounts due Contractor as may be necessary to
satisfy any claim for damages, penalties, costs and the like asserted by or against them. The
State may set off any liability or other obligation of the Contractor or its affiliates to the State
against any payments due the Contractor under any contract with the State.
21. Suspension of Work. The Customer may in its sole discretion suspend any or all activities
under the Contract or purchase order, at any time, when in the best interests of the State to do
so. The Customer shall provide the Contractor written notice outlining the particulars of
suspension. Examples of the reason for suspension include, but are not limited to, budgetary
constraints, declaration of emergency, or other such circumstances. After receiving a
suspension notice, the Contractor shall comply with the notice and shall not accept any
purchase orders. Within ninety days, or any longer period agreed to by the Contractor, the
Customer shall either (1) issue a notice authorizing resumption of work, at which time activity
shall resume, or (2) terminate the Contract or purchase order. Suspension of work shall not
entitle the Contractor to any additional compensation.
22. Termination for Convenience. The Customer, by written notice to the Contractor, may
terminate the Contract in whole or in part when the Customer determines in its sole discretion
that it is in the State's interest to do so. The Contractor shall not furnish any product after it
receives the notice of termination, except as necessary to complete the continued portion of the
Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost
profits.
23. Termination for Cause. The Customer may terminate the Contract if the Contractor fails to
(1) deliver the product within the time specified in the Contract or any extension, (2) maintain
adequate progress, thus endangering performance of the Contract, (3) honor any term of the
Contract, or (4) abide by any statutory, regulatory, or licensing requirement. Rule 60A-1.006(3),
F.A.C., governs the procedure and consequences of default. The Contractor shall continue
work on any work not terminated. Except for defaults of subcontractors at any tier, the
Contractor shall not be liable for any excess costs if the failure to perform the Contract arises
from events completely beyond the control, and without the fault or negligence, of the
Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if
the cause of the default is completely beyond the control of both the Contractor and the
subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for
any excess costs for failure to perform, unless the subcontracted products were obtainable from
other sources in sufficient time for the Contractor to meet the required delivery schedule. If,
after termination, it is determined that the Contractor was not in default, or that the default was
27
excusable, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Customer. The rights and remedies of the Customer in
this clause are in addition to any other rights and remedies provided by law or under the
Contract.
24. Force Majeure, Notice of Delay, and No Damages for Delay. The Contractor shall not be
responsible for delay resulting from its failure to perform if neither the fault nor the negligence of
the Contractor or its employees or agents contributed to the delay and the delay is due directly
to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly
beyond the Contractor's control, or for any of the foregoing that affect subcontractors or
suppliers if no alternate source of supply is available to the Contractor. In case of any delay the
Contractor believes is excusable, the Contractor shall notify the Customer in writing of the delay
or potential delay and describe the cause of the delay either (1) within ten (10) days after the
cause that creates or will create the delay first arose, if the Contractor could reasonably foresee
that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5)
days after the date the Contractor first had reason to believe that a delay could result. THE
FOREGOING SHALL CONSTITUTE THE CONTRACTOR'S SOLE REMEDY OR EXCUSE
WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a
condition precedent to such remedy. No claim for damages, other than for an extension of time,
shall be asserted against the Customer. The Contractor shall not be entitled to an increase in
the Contract price or payment of any kind. from the Customer for direct, indirect, consequential,
impact or other costs, expenses or damages, including but not limited to costs of acceleration or
inefficiency, arising because of delay, disruption, interference, or hindrance from any cause
whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the
causes described in this paragraph, after the causes have ceased to exist the Contractor shall
perform at no increased cost, unless the Customer determines, in its sole discretion, that the
delay will significantly impair the value of the Contract to the State or to Customers, in which
case the Customer may (1) accept allocated performance or deliveries from the Contractor,
provided that the Contractor grants preferential treatment to Customers with respect to products
subjected to allocation, or (2) purchase from other sources (without recourse to and by the
Contractor for the related costs and expenses) to replace all or part of the products that are the
subject of the delay, which purchases may be deducted from the Contract quantity, or (3)
terminate the Contract in whole or in part.
25. Changes. The Customer may unilaterally require, by written order, changes altering, adding
to, or deducting from the Contract specifications, provided that such changes are within the
general scope of the Contract. The Customer may make an equitable adjustment in the
Contract price or delivery date if the change affects the cost or time of performance. Such
equitable adjustments require the written consent of the Contractor, which shall not be
unreasonably withheld. If unusual quantity requirements arise, the Customer may solicit
separate bids to satisfy them.
26. Renewal. Upon mutual agreement, the Customer and the Contractor may renew the
Contract, in whole or in part, for a period that may not exceed 3 years or the term of the contract,
whichever period is longer. Any renewal shall specify the renewal price, as set forth in the
solicitation response. The renewal must be in writing and signed by both parties, and is
contingent upon satisfactory performance evaluations and subject to availability of funds.
27. Purchase Order Duration. Purchase orders issued pursuant to a state term or agency
contract must be received by the Contractor no later than close of business on the last day of
the contract's term to be considered timely. The Contractor is obliged to fill those orders in
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accordance with the contract's terms and conditions. Purchase orders received by the
contractor after close of business on the last day of the state term or agency contract's term
shall be considered void.
Purchase orders for a one-time delivery of commodities or performance of contractual services
shall be valid through the performance by the Contractor, and all terms and conditions of the
state term or agency contract shall apply to the single delivery/performance, and shall survive
the termination of the Contract.
Contractors are required to accept purchase orders specifying delivery schedules exceeding the
contracted schedule even when such extended delivery will occur after expiration of the state
term or agency contract. For example, if a state term contract calls for delivery 30 days after
receipt of order (ARO), and an order specifies delivery will occur both in excess of 30 days ARO
and after expiration of the state term contract, the Contractor will accept the order. However, if
the Contractor expressly and in writing notifies the ordering office within ten (10) calendar days
of receipt of the purchase order that Contractor will not accept the extended delivery terms
beyond the expiration of the state term contract, then the purchase order will either be amended
in writing by the ordering entity within ten (10) calendar days of receipt of the contractor's notice
to reflect the state term contract delivery schedule, or it shall be considered withdrawn.
The duration of purchase orders for recurring deliveries of commodities or performance of
services shall not exceed the expiration of the state term or agency contract by more than twelve
months. However, if an extended pricing plan offered in the state term or agency contract is
selected by the ordering entity, the contract terms on pricing plans and renewals shall govern
the maximum duration of purchase orders reflecting such pricing plans and renewals.
Timely purchase orders shall be valid through their specified term and performance by the
Contractor, and all terms and conditions of the state term or agency contract shall apply to the
recurring delivery/performance as provided herein, and shall survive the termination of the
Contract.
Ordering offices shall not renew a purchase order issued pursuant to a state term or agency
contract if the underlying contract expires prior to the effective date of the renewal.
28. Advertising. Subject to Chapter 119, Florida Statutes, the Contractor shall not publicly
disseminate any information concerning the Contract without prior .written approval from the
Customer, including, but not limited to mentioning the Contract in a press release or other
promotional material, identifying the Customer or the State as a reference, or otherwise linking
the Contractor's name and either a description of the Contract or the name of the State or the
Customer in any material published, either in print or electronically, to any entity that is not a
party to Contract, except potential or actual authorized distributors, dealers, resellers, or service
representative.
29. Assignment. The Contractor shall not sell, assign or transfer any of its rights, duties or
obligations under the Contract, or under any purchase order issued pursuant to the Contract,
without the prior written consent of the Customer. In the event of any assignment, the Contractor
remains secondarily liable for performance of the contract, unless the Customer expressly
waives such secondary liability. The Customer may assign the Contract with prior written notice
to Contractor of its intent to do so.
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30. Antitrust Assignment. The Contractor and the State of Florida recognize that in actual
economic practice, overcharges resulting from antitrust violations are in fact usually borne by the
State of Florida. Therefore, the contractor hereby assigns to the State of Florida any and all
claims for such overcharges as to goods, materials or services purchased in connection with the
Contract.
31. Dispute Resolution. Any dispute concerning performance of the Contract shall be decided
by the Customer's designated contract manager, who shall reduce the decision to writing and
serve a copy on the Contractor. The decision shall be final and conclusive unless within twenty
one (21) days from the date of receipt, the Contractor files with the Customer a petition for
administrative hearing. The Customer's decision on the petition shall be final, subject to the
Contractor's right to review pursuant to Chapter 120 of the Florida Statutes. Exhaustion of
administrative remedies is an absolute condition precedent to the Contractor's ability to pursue
any other form of dispute resolution; provided, however, that the parties may employ the
alternative dispute resolution procedures outlined in Chapter 120.
Without limiting the foregoing, the exclusive venue of any legal or equitable action that arises out
of or relates to the Contract shall be the appropriate state court in Leon County, Florida; in any
such action, Florida law shall apply and the parties waive any right to jury trial.
32. Employees, Subcontractors, and Agents. All Contractor employees, subcontractors, or
agents performing work under the Contract shall be properly trained technicians who meet or
exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of
technical certification or other proof of qualification. All employees, subcontractors, or agents
performing work under the Contract must comply with all security and administrative
requirements of the Customer and shall comply with all controlling laws and regulations relevant
to the services they are providing under the Contract. The State may conduct, and the
Contractor shall cooperate in, a security background check or otherwise assess any employee,
subcontractor, or agent furnished by the Contractor. The State may refuse access to, or require
replacement of, any personnel for cause, including, but not limited to, technical or training
qualifications, quality of work, change in security status, or non-compliance with a Customer's
security or other requirements. Such approval shall not relieve the Contractor of its obligation to
perform all work in compliance with the Contract. The State may reject and bar from any facility
for cause any of the Contractor's employees, subcontractors, or agents.
33. Security and Confidentiality. The Contractor shall comply fully with all security procedures
of the United States, State of Florida and Customer in performance of the Contract. The
Contractor shall not divulge to third parties any confidential information obtained by the
Contractor or its agents,distributors, resellers, subcontractors, officers or employees in the
course of performing Contract work, including, but not limited to, security procedures, business
operations information, or commercial proprietary information in the possession of the State or
Customer. The Contractor shall not be required to keep confidential information or material that
is publicly available through no fault of the Contractor, material that the Contractor developed
independently without relying on the State's or Customer's confidential information, or material
that is otherwise obtainable under State law as a public record. To insure confidentiality, the
Contractor shall take appropriate steps as to its personnel, agents, and subcontractors. The
warranties of this paragraph shall survive the Contract.
34.Contractor Employees, Subcontractors, and Other Agents. The Customer and the State
shall take all actions necessary to ensure that Contractor's employees, subcontractors and other
agents are not employees of the State of Florida. Such actions include, but are not limited to,
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ensuring that Contractor's employees, subcontractors, and other agents receive benefits and
necessary insurance (health, workers' compensations, and unemployment) from an employer
other than the State of Florida.
35. Insurance Requirements. During the Contract term, the Contractor at its sole expense shall
provide conunercial insurance of such a type and with such terms and limits as may be reasonably
associated with the Contract. Providing and maintaining adequate insurance coverage is a material
obligation of the Contractor. Upon request, the Contractor shall provide certificate of insurance. The
limits of coverage under each policy maintained by the Contractor shall not be interpreted as
limiting the Contractor's liability and obligations under the Contract. All insurance policies shall be
through insurers authorized or eligible to write policies in Florida.
36. Warranty of Authority. Each person signing the Contract warrants that he or she is duly
authorized to do so and to bind the respective party to the Contract.
37. Warranty of Ability to Perform. The Contractor warrants that, to the best of its
knowledge, there is no pending or threatened action, proceeding, or investigation, or any other
legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor's
ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is
currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida
Statutes, or on any similar list maintained by any other state or the federal government. The
Contractor shall immediately notify the Customer in writing if its ability to perform is
compromised in any manner during the term of the Contract.
38. Notices. All notices required under the Contract shall be delivered by certified mail, return
receipt requested, by reputable air courier service, or by personal delivery to the agency
designee identified in the original solicitation, or as otherwise identified by the Customer.
Notices to the Contractor shall be delivered to the person who signs the Contract. Either
designated recipient may notify the other, in writing, if someone else is designated to receive
notice.
39. Leases and Installment Purchases. Prior approval of the Chief Financial Officer (as defined
in Section 17.001, F.S.) is required for State agencies to enter into or to extend any lease or
installment -purchase agreement in excess of the Category Two amount established by section
287.017 of the Florida Statutes.
40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). Section
946.515(2), F.S. requires the following statement to be included in the solicitation: "It is
expressly understood and agreed that any articles which are the subject of, or required to carry
out, the Contract shall be purchased from the corporation identified under Chapter 946 of the
Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in
section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person,
firm, or other business entity carrying out the provisions of the Contract shall be deemed to be
substituted for the agency insofar as dealings with such corporation are concerned." Additional
information about PRIDE and the products it offers is available at http://www.pridefl.com.
41. Products Available from the Blind or Other Handicapped. Section 413.036(3), F.S.
requires the following statement to be included in the solicitation: "Itis expressly understood and
agreed that any articles that are the subject of, or required to carry out, this contract shall be
purchased from a nonprofit agency for the Blind or for the Severely Handicapped that is qualified
pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures
set forth in section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the
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person, firm, or other business entity carrying out the provisions of this contract shall be deemed
to be substituted for the State agency insofar as dealings with such qualified nonprofit agency
are concerned." Additional information about the designated nonprofit agency and the products
it offers is available at http://www.respectofflorida.org.
42. Modification of Terms. The Contract contains all the terms and conditions agreed upon by
the parties, which terms and conditions shall govern all transactions between the Customer and
the Contractor. The Contract may only be modified or amended upon mutual written agreement
of the Customer and the Contractor. No oral agreements or representations shall be valid or
binding upon the Customer or the Contractor. No alteration or modification of the Contract
terms, including substitution of product, shall be valid or binding against the Customer. The
Contractor may not unilaterally modify the terms of the Contract by affixing additional terms to
product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product
literature, "shrink wrap" terms accompanying or affixed to a product, whether- written or
electronic) or by incorporating such terms onto the Contractor's order or fiscal forms or other
documents forwarded by the Contractor for payment. The Customer's acceptance of product or
processing of documentation on forms furnished by the Contractor for approval or payment shall
not constitute acceptance of the proposed modification to terms and conditions.
43. Cooperative Purchasing. Pursuant to their own governing laws, and subject to the
agreement of the Contractor, other entities may be permitted to make purchases at the terms
and conditions contained herein. Non -Customer purchases are independent of the agreement
between Customer and Contractor, and Customer shall not be a party to any transaction
between the Contractor and any other purchaser.
State agencies wishing to make purchases from this agreement are required to follow the
provisions of s. 287.042(16)(x), F.S. This statute requires the Department of Management
Services to determine that the requestor's use of the contract is cost-effective and in the best
interest of the State.
44. Waiver. The delay or failure by the Customer to exercise or enforce any of its rights under
this Contract shall not constitute or be deemed a waiver of the Customer's right thereafter to
enforce those rights, nor shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
45. Annual Appropriations. The State's performance and obligation to pay under this contract
are contingent upon an annual appropriation by the Legislature.
46. Execution in Counterparts. The Contract may be executed in counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
47. Severability. If a court deems any provision of the Contract void or unenforceable, that
provision shall be enforced only to the extent that it is not in violation of law or is not otherwise
unenforceable and all other provisions shall remain in full force and effect.
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SECTION 5.0
SPECIAL CONTRACT CONDITIONS
CONTENT
5.1 Definitions
5.2 Period of Agreement
5.3 Vendor Additions and Deletions
5.4 Contract Sales Summary
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5.1 Definitions
In case of conflict with Section 4.0 General Contract Conditions, the definitions in section
489.145 Florida Statutes and rules and definitions contained in s. 60A-1.001, F.A.0 shall
apply to this agreement.
5.2 Period of Agreement
This agreement shall be in effect from the start date of the Contract for an initial period of
Sixty (60) months, with an option to renew for an additional 60 month period. Renewal is
contingent upon satisfactory performance by the Contractor.
5.3 Vendor Additions and Deletions
On an annual basis and at the discretion of the Department, vendors may be removed or
added the contract resulting from this ITN. All decisions to add a vendor will be made using
the same criteria in Section 3.9 of this ITN.
5.4 Contract Sales Summary
Contract Sales Summary: The Contractor is required to provide annual fiscal year Contract
Sales Summaries to the Purchasing Analyst within fifteen (15) days after the end of each
fiscal year during the term of the Contract. The fiscal year is a twelve (12) month period
beginning July 1 and ending on June 30 of each year. Contract Sales Summaries shall
document all orders completed, for which payment was received, during the specified fiscal
year. The Report shall specifically document the quantity and total price by both Commodity
and product sold differentiating between State Agencies & Political Subdivisions.
The Contractor is also required to provide partial year Contract Sales Summaries under the
same terms as the annual summaries for portions of the Contract term that occur outside a
complete fiscal year. These partial summaries will be due July 15, 2007 for the period
beginning on the Contract start date and ending June 30, 2007, and within fifteen (15) days
after the end of the Contract for the period beginning July 1 of the Contract's final year and
ending on the Contract termination date. The Department may require additional Contract
Sales Summaries for various periods of time; these specific summaries shall be submitted
by the Contractor within twenty (20) days of notification.
Initiation and submission of the Contract Sales Summaries are to be the responsibility of the
Contractor without prompting or notification by the Purchasing Analyst. The Contractor will
submit the completed Contract Sales Summary forms by email to the Purchasing Analyst.
The Department shall distribute, in electronic format, the Contract Sales Summary forms to
be used by the awarded Contractor upon Contract signature.
SECTION 6.0
TECHNICAL SPECIFICATIONS
CONTENT
6.1 DEFINITIONS
6.2 PURPOSE
6.3 GENERAL TECHNICAL REQUIREMENTS
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6.1 Definitions
The definitions found in section 489.145 Florida Statutes and section 60A-1.001, F.A.C.
shall apply to this ITN.
6.2 Purpose
The primary purpose of this ITN is to create a list of qualified Contractors to perform work
for agencies of the State of Florida, and for other eligible users of state term contracts
(collectively, "Eligible Users"), under the Guaranteed Energy Performance Savings
Contract Act, codified in section 489.145 of the Florida Statutes. Users of the contract
derived from this ITN must comply with the requirements in section 489.145 of the
Florida Statutes which includes that a Guaranteed Energy Performance Savings
Contractor must be selected in compliance with section 287.055 of the Florida Statutes.
6.3 General Technical Requirements
Pursuant to section 489.145(6) of the Florida Statutes, the Chief Financial Officer has
developed model agreements and related forms that affected State agencies shall use,
and others may use, to execute a purchase under this Contract (electronic copies of the
model agreements are available at the Chief Financial Officer's web page devoted to this
project, which is currently www.fldfs.com/aadir/cefp. An Agency Contract executed
under this State Term Contract shall survive expiration of the State Term Contract in
accordance with the agreement's terms.
At the Chief Financial Officer's web page devoted to this project, Eligible Users and
Respondent's will find an Energy Savings Model Contract that addresses design and
installation of energy conservation measures and an Energy Savings Financing
Agreement. Also, at Model Audit Agreement Website Eligible Users and Contractor will
find a Model Audit Agreement they may use to procure the report required by subsection
489.145(4)(b) of the Florida Statutes. Any questions regarding the Model Audit
Agreement should be addressed to the attention of Dan Hedrick
Daniel. Hedrick(a)dms.Myflorida.com, phone (850) 413-9515.
Prior to entering into any agreement to effect a purchase under this Contract, including
any financing agreement, state agencies shall submit the proposed agreement to the
Chief Financial Officer for review and approval. Currently, all such agreements should
be addressed to the attention of Roy Jeter Rom@fldfs.com, phone (850) 413-5363.
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