HomeMy WebLinkAboutC2019-047 - Sierra Auction Management, Inc. Contract No. 2019-047
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
SIERRA AUCTION MANAGEMENT,INC.
THIS COOPERATIVE PURCHASING AGREEMENT(this"Agreement")is entered into
as of November 16, 2018,between the Town of Fountain Hills, an Arizona municipal corporation
(the"Town"),and Sierra Auction Management, Inc., an Arizona corporation(the"Contractor").
RECITALS '
A. After a competitive procurement process,the State of Arizona(the"State")entered
into Contract No. ADSPO17-174072, dated June 23, 2017 (the "State Contract"), for the
Contractor to provide auctioneering services. A copy of the State Contract is attached hereto as
Exhibit A and incorporated herein by reference,to the extent not inconsistent with this Agreement.
B. The Town is permitted, pursuant to Section 3-3-27 of the Town Code, to make
purchases under the State Contract, at its discretion and with the agreement of the awarded
Contractor, and the State Contract permits its cooperative use by other public entities, including
the Town.
C. The Town and the Contractor desire to enter into this Agreement for the purpose of
(i) acknowledging their cooperative contractual relationship under the State Contract and this
Agreement, and (ii) establishing the terms and conditions by which the Contractor may provide
the Town with auctioneering services, as more particularly set forth in Section 2 below on an"as-
required"basis (the "Services").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Contractor hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and shall remain in full force and effect until June 22, 2019 (the "Initial Term"), unless
terminated as otherwise provided in this Agreement or the State Contract. After the expiration of
the Initial Term,this Agreement may be renewed for up to four successive one-year terms (each,
a"Renewal Term") if: (i) it is deemed in the best interests of the Town, subject to availability and
appropriation of funds for renewal in each subsequent year, (ii)the term of the State Contract has
not expired or has been extended, (iii) at least 30 days prior to the end of the then-current term of
this Agreement, the Contractor requests, in writing, to extend this Agreement for an additional
one-year term and(iv)the Town approves the additional one-year term in writing(including any
price adjustments approved as part of the State Contract), as evidenced by the Town Manager's
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signature thereon,which approval may be withheld by the Town for any reason. The Contractor's
failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of
the then-current term of this Agreement; provided, however, that the Town may, at its discretion
and with the agreement of the Contractor, elect to waive this requirement and renew this
Agreement. The Initial Term and any Renewal Term(s) are collectively referred to herein as the
"Term."Upon renewal,the terms and conditions of this Agreement shall remain in full force and
effect.
2. Scope of Work. Contractor shall provide to the Town the Services under the terms
and conditions of the State Contract and as may be agreed upon by the parties.
3. Compensation. The Town shall pay Contractor a commission based on the
percentage of gross sales,less any commissions and fees, as set forth in the Pricing Sheet included
as part of the State Contract and that appears in Exhibit A.
4. Payments.The Contractor shall submit a copy of the reconciliation and payment to
the Town, less any commissions and fees, within 30 calendar days following the sale of Town
property. All payments shall reference this Agreement and State Contract
5. Records and Audit Rights.To ensure that the Contractor and its subcontractors are
complying with the warranty under Section 6 below, Contractor's and its subcontractors' books,
records, correspondence, accounting procedures and practices, and any other supporting evidence
relating to this Agreement, including the papers of any Contractor and its subcontractors'
employees who perform any work or services pursuant to this Agreement (all of the foregoing
hereinafter referred to as "Records"), shall be open to inspection and subject to audit and/or
reproduction during normal working hours by the Town, to the extent necessary to adequately
permit evaluation of the Contractor's and its subcontractors' compliance with the Arizona
employer sanctions laws referenced in Section 6 below. To the extent necessary for the Town to
audit Records as set forth in this Section,Contractor and its subcontractors hereby waive any rights
to keep such Records confidential. For the purpose of evaluating or verifying such actual or
claimed costs or units expended,the Town shall have access to said Records,even if located at its
subcontractors' facilities, from the effective date of this Agreement for the duration of the work
and until three years after the date of final payment by the Town to Contractor pursuant to this
Agreement. Contractor and its subcontractors shall provide the Town with adequate and
appropriate workspace so that the Town can conduct audits in compliance with the provisions of
this Section. The Town shall give Contractor or its subcontractors reasonable advance notice of
intended audits. Contractor shall require its subcontractors to comply with the provisions of this
Section by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
6. E-verify Requirements. To the extent applicable under ARIz. REV. STAT. § 41-
4401,the Contractor and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIz. REV. STAT. § 23-214(A). Contractor's or its subcontractors' failure to comply with
such warranty shall be deemed a material breach of this Agreement and may result in the
termination of this Agreement by the Town.
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7. Israel. Contractor certifies that it is not currently engaged in and agrees for the
duration of this Agreement that it will not engage in a"boycott," as that term is defined in ARIz.
REV. STAT. § 35-393, of Israel.
8. Conflict of Interest. This Agreement may be canceled by the Town pursuant to
ARtz.REV.STAT. § 38-511.
9. Applicable Law;Venue.This Agreement shall be governed by the laws of the State
of Arizona and a suit pertaining to this Agreement may be brought only in courts in Maricopa
County,Arizona.
10. Agreement Subject to Appropriation. The Town is obligated only to pay its
obligations set forth in this Agreement as may lawfully be made from funds appropriated and
budgeted for that purpose during the Town's then current fiscal year. The Town's obligations
under this Agreement are current expenses subject to the "budget law" and the unfettered
legislative discretion of the Town concerning budgeted purposes and appropriation of funds.
Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this
Agreement shall be deemed terminated at the end of the then-current fiscal year term for which
such funds were appropriated and budgeted for such purpose and the Town shall be relieved of
any subsequent obligation under this Agreement.The parties agree that the Town has no obligation
or duty of good faith to budget or appropriate the payment of the Town's obligations set forth in
this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement
is executed and delivered. The Town shall be the sole judge and authority in determining the
availability of funds for its obligations under this Agreement. The Town shall keep Contractor
informed as to the availability of funds for this Agreement. The obligation of the Town to make
any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town.
Contractor hereby waives any and all rights to bring any claim against the Town from or relating
in any way to the Town's termination of this Agreement pursuant to this section.
11. Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among
the terms of this Agreement, the State Contract, and invoices, the documents shall govern in the
order listed herein. Notwithstanding the foregoing, and in conformity with Section 2 above,
unauthorized exceptions, conditions, limitations or provisions in conflict with the terms of this
Agreement or the State Contract (collectively, the "Unauthorized Conditions"), other than the
Town's project-specific requirements, are expressly declared void and shall be of no force and
effect. Acceptance by the Town of any work order or invoice containing any such Unauthorized
Conditions or failure to demand full compliance with the terms and conditions set forth in this
Agreement or under the State Contract shall not alter such terms and conditions or relieve
Contractor from, nor be construed or deemed a waiver of, its requirements and obligations in the
performance of this Agreement.
12. Rights and Privileges. To the extent provided under the State Contract, the Town
shall be afforded all of the rights and privileges afforded to the State and shall be the "State" (as
defined in the State Contract) for the purposes of the portions of the State Contract that are
incorporated herein by reference.
13. Indemnification; Insurance. In addition to and in no way limiting the provisions set
forth in Section 12 above, the Town shall be afforded all of the insurance coverage and
3
indemnifications afforded to the State to the extent provided under the State Contract, and such
insurance coverage and indemnifications shall inure and apply with equal effect to the Town under
this Agreement including, but not limited to, the Contractor's obligation to provide the
indemnification and insurance. In any event, the Contractor shall indemnify, defend and hold
harmless the Town and each council member, officer, employee or agent thereof(the Town and
any such person being herein called an "Indemnified Party"), for, from and against any and all
losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable
attorneys' fees, court costs and the costs of appellate proceedings)to which any such Indemnified
Party may become subject, under any theory of liability whatsoever ("Claims"), insofar as such
Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the
negligent acts, intentional misconduct, errors,mistakes or omissions, in connection with the work
or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the
performance of this Agreement.
14. Notices and Requests.Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have been duly given if
(i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail,registered
or certified, return receipt requested, to the address set forth below or(iii) given to a recognized
and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 E. Avenue of the Fountains
Fountain Hills,Arizona 85268
Attn: Grady E. Miller,Town Manager
With copy to: Pierce Coleman PLLC
4711 E. Falcon Dr., Ste. 111
Mesa,Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Contractor: Sierra Auction Management, Inc.
3570 W. Grand Ave.
Phoenix,AZ 85019
Attn: Mark Feuerer
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received: (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona Municipal Corporation
Grady E. Mill , T n Manager
ATTEST:
izabe Burke, Town erk
APPROVED AS TO FORM:
. . Arnson, Towatorney
(ACKNOWLEDGEMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On :if) —, 2018, before me personally appeared Grady E. Miller, the
Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, whose
identity was proven to me on the basis of satisfactory evidence to be the person who he claims to be,
and acknowledged that he signed the above document, on behalf of the Town of Fountain Hills.
ii 1t„, 4 HONDA M. BRENNEMAN
) Notary Public-State of Arizona
MARICOPA COUNTY Notary Public
,o„ My Commission Expires June 30,2019 R_,IA-&•44,Th • 15 Ar2AA/VV2AKCAA&__
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
5
"Contractor"
SIERRA AUCTION MANAGEMENT, INC.,
an Arizona corporation
By:
Name:
Its:
(ACKNOWLEDGEMENT)
STATE OF )
) ss.
COUNTY OF )
On , 2018, before me personally appeared
the of SIERRA AUCTION MANAGEMENT, INC., an Arizona corporation,
whose identity was proven to me on the basis of satisfactory evidence to be the person who he or she
claims to be,and acknowledged that he or she signed the above document,on behalf of Sierra Auction
Management, Inc.
Notary Public
(Affix notary seal here)
4830-8139-4043,v. 1
6
"Contractor"
SIERRA AUCTION MANAGEMENT,INC.,
4na .o . corporation
R 1
Name: Mfitt k C-Uikesc-r"
Its: lire(dam'
(ACKNOWLEDGEMENT)
STATE OF1a_" )
)ss.
COUNTY OF 1 Vt G!u{1�)OA
,,,n
On , 2018, before me personally appeared° +c Fcu vc4(
the rt ____ of SIERRA AUCTION MANAGEMENT, INC., an Arizona corporation,
whose identity was proven to me on the basis of satisfactory evidence to be the person who he or she
claims to be,and acknowledged that he or she signed the above document,on behalf of Sierra Auction
Management,Inc_
+''`''', ANNETTE MICHELLE OE LA HUEHTA,
U1 Notary Public-Arizona
Marlcopa County
r,,,� ` My Comm.Expires Jan 17.2020 ' otary Public
.
(Affix notary seal here)
4830-8139-4043.v.1
6
EXHIBIT A
TO
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
SIERRA AUCTION MANAGEMENT, INC.
[State Contract]
See following pages.
tr,r Request for Proposals Arizona Department of Administration
4•
r.... Solicitation No. State Procurement Office
w j -' w ADSP017-00007213
7 F 100 N 1 Seth Ave.,Suite 201
#4111: ' fir Description: Phoenix,AZ 65D07
rrt Auctioneering Services
_ E
Attachment 1
Offer and Acceptance Form
SUBMISSION OF OFFER:Undersigned hereby offers and agrees to provide Auctioneering Services to in compliance with the Solicitation
indicated above and our Offer indicated by pi -ttest dated version below:
-i - :, ,.
. _.....
I Initial ( ,!o4/18,2o17
Offer: date Inn rat
date initial date at initial date#1 initial
Revised T — —
Offers: _ . 6� 7.I
date#4 A initial date#5 initial date#6 i Initial
Best and 73.-i,"2.-3-r1 1
Final Offer: date Ina I �• �' _...._ _
an
Sierra Auction Management,Inc. ji /L.—._..._.----__ _�
Offeror company name Si ncture of person authorized to sign Offer I ais
3570 NW Grand Avenue Mark Feuerer,President _ —
Address Printed name and title
Phoenix,Arizona 85o19 Mark Potterer,President
City i State I ZIP Contact name and title
86-0561187 DM &1010._er R Skitraat(,lip_11 S°)fn 602-242-7121 x109
Federal tax identifier(EIN or SSN) Contact Email Address Contact phone number
CERTIFICATION:By signature in the above,Offeror certifies that it:
1. will not discriminate against any employee or applicant for employment in violation of Federal Executive Order 11246,[Arizona]State
Executive Order 2000-9 or A.R.S.§§41-1461 through 1465;
2. has not given,offered to give,nor intends to give at any time hereafter any economic opportunity,future employment,gift,loan,gratuity,
special discount.trip,favor,or service to a public servant in connection with the submitted offer.Failure to provide a valid signature
affirming the stipulations required by this clause will result In rejection of the Offer Signing the Offer with a false statement will void the
Offer,any resulting contract,and may be subject to legal penalties under law;
3. complies with A.R.S.§41-3532 when offering electronics or information technology products,services,or maintenance;and
4. Is not debarred from,or otherwise prohibited from participating in any contract awarded by federal,state,or local government.
ACCEPTANCE OF OFFER:State hereby accepts the initial Offer,Revised Offer,or Bost and Final Offer identified by number*at the top of
this form,and which was dated date(the Accepted Offer).Offeror Is now bound(as Contractor)to carry out the Work under the attached
Contract,of which the Accepted Offer forms a part Contractor is cautioned not to commence any billable work or to provide any material or
perform any service under the Contract until Contractor receives the applicable Order or written notice to proceed from Procurement Officer.
State's Contract No.is:ADSP017-wars 3 The effective date of the Contract Is:dip* Contract awarded date C!fi,,bi 1.0 fj
(.9119412, C(z3)2.Oc7
name K f Kwo t� --
Procurement signature Procurement Officer printed name
PART 4 of the Solicitation Documents: A
Offer Forms(Attachments) Date:4/17/2017 4
Page 2 of 32
A v „ I , <i ': I c. E'' r o r, u .• c h, 7 . o o ,' ,
3E 7,,� Contract Amendment AZ DEPT. OF ADMINISTRATION
PoS;)y STATE PROCUREMENT OFFICE
CONTRACT NO.: ADSPO17-174072 PAGE 100 N. 15TH AVE., STE. 402
Phoenix, AZ 85007
AMENDMENT NO.: 002
OF
CONTRACTOR: STATE AGENCY:
SIERRA AUCTION MANAGEMENT INC AZ Department of Administration(ADOA)
3570 W Grand Avenue State Procurement Office
Phoenix, AZ 85019 100 N. 15th Ave. Suite 402
Phoenix,AZ 85007
CONTACT: Mark Feuerer CONTACT: Stephen Nettles
PHONE: (602)242-7121 PHONE: 602-542-9145
EMAIL: mark.feuerer@sierraauction.com EMAIL: steve.nettles@azdoa.gov
Statewide Auctioneering Services
1. In accordance with the Uniform Terms and Conditions, 3.2 Contract Extension, the above
referenced contract shall be extended from 06/24/2018 to 06/22/2019.
All other terms, conditions and provisions remain unchanged.
ALL OTHER REQUIREMENTS, SPECIFICATIONS,TERMS AND CONDITIONS REMAIN UNCHANGED
ACKNOWLEDGEMENT AND AUTHORIZATION
This change order shall be fully executed upon the approval electronically in ProcureAZ by an authorized representative
of the Contractor and applied to the contract in ProcureAZ by the Procurement Officer or delegate.
Available online at Page 11
Procure.AZ.qov
82.
w� `�. Request for Proposals
Arizona Department of Administration
ADSP017-000
Solicitation 07213 State Procurement Office
�� =°
.;z n 100 N 15th Ave.,Suite 201
Description: Phoenix,AZ 85007
Auctioneering Services
Section 1-A:
Solicitation Summary
Date:4/4/2017
1.0 What State Is Soliciting:
The Arizona Department of Administration, State Procurement Office division(the State), as authorized
under A.R.S.§41-2501 is seeking to establish one or more"statewide"contracts to satisfy the needs for
all state agencies, boards,and commissions,as well as participating purchasing cooperative members
(collectively,the Eligible Agencies)to provide Auctioneering Services,which in general terms includes
providing live auctioneering services for the disposition of excess property.
The Special Terms and Conditions provide a more detailed definition of Eligible Agencies,and a list of all
state agencies and purchasing cooperative members is available on the State Procurement Office website at:
https://spo.az.gov/procu rement-services/cooperative-procu rement/state-purchasing-cooperative.
2.0 How State Anticipates Contracting:
The State anticipates awarding multiple contracts. Whether or not it actually enters into any contracts, how
many contracts it enters into,and how work is awarded among those contracts are all at the State's discretion.
Further,the State will use any assigned contracts on an as-needed basis;it makes no guarantee as to its actual
spending under them.
PART 1 of the Solicitation Documents: SECTION 1-A:Solicitation Summary
Summary and Instructions Date 4/4/2017 1
Page 1 of 5
Available online at
P r o c u r e . A Z . g a v
40: i3t[ Request for Proposals Arizona Department of
Solicitation No. Administration
ADSPOI7-00007213 State Procurement Office
r � ItPs Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
3.0 What's in the Solicitation:
ProcureAZ file #1: ADSPO17-00007213 RFP Solicitation Documents
Auctioneering Services
Part 1: Summary and Section 1-A: Solicitation Summary
Instructions Section 1-B: Standard Instructions to Offerors
2 ProcureAZ file #1: ADSPO17-00007213 RFP Solicitation Documents
Auctioneering Services)
Part 2: Scope and Pricing Section 2-A: Scope Document(Scope of Work)
Documents Section 2-B: Pricing Document
3 ProcureAZ file #1: ADSPO17-00007213 RFP Solicitation Documents
Auctioneering Services
Section 3-A: Special Terms and Conditions
Exhibit 3-A.1: Contractor Insurance Requirements
Part 3: Contract Terms Exhibit 3-A.4: Supplemental Provisions for Privacy Protection
and Conditions �--_--
Exhibit 3-A.5: Supplemental Provisions for Services
Disentanglement
Section 3-B: Uniform Terms and Conditions
4 ProcureAZ file #1: ADSPO17-00007213 RFP Solicitation Documents
Auctioneering Services
Part 4: Offer Forms(Attachments)
4.0 How and When Proposals Are Due:
Proposals will only be accepted online in the "ProcureAZ"system at https://procure.az.gov until the
"Bid Opening Date" indicated in ProcureAZ for the Solicitation No.shown at the top of this page.
Proposals must be in the State Procurement Office's possession online no later than that deadline.
LATE PROPOSALS WILL NOT BE CONSIDERED. No extension or grace period will be given for delays or
incomplete proposals caused by internet connectivity problems,file uploading difficulties,or
misunderstanding of the requirements or procedures for online submission in ProcureAZ.
OFFERORS SHOULD READ THE ENTIRE SOLICITATION CAREFULLY.
5.0 Pre-Offer Conference
State will not conduct an optional Pre-Offer Conference for this Solicitation. Refer to paragraph 2.8 of the
Instructions to Offerors for more information.
6.0 Offer Validity Period
You must hold the Offer open for 120(one hundred twenty)days after the"Bid Opening Date"indicated in
the ProcureAZ. Refer to paragraph 6.1 of the Instructions to Offerors for more information.
PART 1 of the Solicitation Documents: SECTION 1-A: Solicitation Summary
Summary and Instructions Date 4/4/2017
Page 2 of 5
r F r o c u r e . A 4 . 44 o v
Request for Proposals Arizona Department of
_ Solicitation No. Administration
' ., ; ADSPOI7-00007213 State Procurement Office
Description: 100 N 15th Ave.,Suite 201
� . Auctioneering Services Phoenix,AZ 85007
7.0 Required Attachments (Part 4 of the Solicitation Documents: Offer
Forms)
To be Responsive,your Initial Offer must contain all of the following Attachments:
Refer to paragraph 4.2 of the Instructions to Offerors for more information.
m
'a
E >
No. Title Offeror Action Required io a
Attachment 1 Offer and Refer to paragraph 3.4 Evidence of Intent and 4.9 ✓
Acceptance Form Offeror Certification of the Instructions to Offerors.
Attachment 2-A Experience and Provide all required information and answer all ✓
with Appendices Capacity questions with respect to your company's ability to
and Supplements Questionnaire do the work of this Solicitation:experience with
similar scope and clients,staff having the relevant
experience, manufacturing/distribution capacity, etc.
Attachment 2-B Organization Profile Provide the required information and answer the ✓
with Appendices questions with respect to your company in general:
and Supplements organization and structure;financial health; licenses,
certifications,etc.
Attachment 3-A Method Proposal Provide your proposal specific to this Solicitation ✓
with Appendices (Method of Approach) as to the means and methods you will apply to
and Supplements carrying out the Work.
Attachment 3-B Key Personnel List the proposed key personnel and assignments; ✓
Proposal provide resumes as Attachment Supplements.
Attachment 3-C Proposed List the proposed Subcontractors and scope to be ✓
with Supplements Subcontractors delegated to each.
Attachment 3-D Performance Provide industry and company standard ✓
with Appendices Guarantee performance guarantees,standards,and remedies
Attachment 3-E Israel Boycott Form Provide the required information and answer the ✓
with Appendices question.
Attachment 4 with State Pricing Enter prices, rates, mark-ups, discounts,and other ✓
Appendices Document pricing data on every item for which Offer is being
made. Refer to Article 4 below.
NOTE: The completed Attachment 4 from the
Accepted Offer will become Exhibit 1 to the
Commercial Document(Section 2-B of the
Solicitation)in the Contract.
Supplements to Contractor Price Not Used/Reserved X
Attachment 4 Lists/Catalogs
Attachment 5-A Designation of Indicate what,if any, information in Offer is ✓
with Supplements Confidential confidential,trade secret or proprietary(see
Information paragraph 4.7 of the Instructions to Offerors).
PART 1 of the Solicitation Documents SECTION 1-A: Solicitation Summary
Summary and Instructions Date 4/4/2017 1
Page 3 of 5
online at : P r o c ,E r e . A 2: . q v°
__`` Request for Proposals Arizona Department of
4 Administration
Solicitation No.
ADSPOI7-00007213 State Procurement Office
z
Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
m
V
E >
o
No. Title Offeror Action Required �o a`
Attachment 5-B Conformance Attest that Offer conforms to the Solicitation(see
Statements paragraph 3.5 of the Instructions to Offerors)
Attachment 5-C Insurance and Provide the following as indicated by the"•"mark; X
with Supplements Bonding Evidence if neither one is marked,then no Attachment 5-C is
required:
. I Satisfactory evidence that the required
insurance called for in Exhibit 1 to the
Special Terms and Conditions is already in
place by current certificate of insurance or
that Contractor can obtain it by broker's
letter.
0 Satisfactory surety letters as evidence that
Contractor can obtain the required bonds
or other security called for in Exhibit 1 to
the Special Terms and Conditions.
Attachment 5-D Offer Checklist Attest that each item on the checklist has been ✓
provided with or as part of Offer.
Attachment 6 Additional Any other documentation required by the Solicitation X
Attachments to be submitted with or as part of Offer.
8.0 Required Pricing
8.1 Pricing for Service
8.1.1
Please reference Section 2-B: Pricing Document and Part 4-Offer Forms Attachment 4.
Offeror to enter proposed Pricing in the Items Tab in Procure AZ for the following item: Firm,fixed price for
all services and deliverables,as stated in the Scope of Work.
Note that the availability of State funds is tight and limited, and Offerors are expected to provide their
very Best Offers from the onset. Arizona State Contractors are expected to maintain a strong
fiduciary duty for saving tax dollars and will be evaluated on the lowest total cost to the State while
maintaining the highest standards in Quality, Availability, and Service.
8.1.2
Offeror to agree that the rates charged for Services, Products, and Deliverables shall be the same or lower
than rates charged to other similarly situated customers of similar condition and size,with similar dollar
PART 1 of the Solicitation Documents: SECTION 1-A: Solicitation Summary
Summary and Instructions Date 4/4/2017
Page 4 of 5
t, t; at : P r o c u r t . t t. . c;t .v
11110406, Request for Proposals Arizona Department of
Ao,...^oE�, Solicitation No.
Administration
ADSPOI7-00007213 State Procurement Office
Description: 100 N 15th Ave.,Suite 201
1/41t."-4'
Auctioneering Services Phoenix,AZ 85007
volume of business,and substantially similar services and staffing levels mix who purchase comparable
services in the same configuration and quantities.
8.1.3
In the event the State exercises its option to renew the contract for additional periods as stated under sub
heading EXTENSIONS of this document,the offeror should provide the maximum percentages of increase or
minimum percentage of decrease for each renewal period in the spaces below.The offeror is cautioned that
the percentages shall be computed against the ORIGINAL contract price for each renewal period. Be
advised that the State of Arizona does not automatically grant increases at the time of renewing the contract
and that if an increase is requested proper documentation must be provided at the time of renewal.
9.0 Evaluation Criteria
In accordance with A.A.C. R2-7-C316,each Offer will be evaluated on the following criteria, listed in their
relative order of importance from most important to least:
1. OFFEROR'S COST PROPOSAL,as provided in Offeror's response to Attachment 4.
2. OFFEROR'S PROPOSED APPROACH,as set out in Offeror's response to Attachment 3-A,taken together
with Offeror's responses to Attachments 3-B,3-C,3-D,5-B,and 5-C,and any other aspect of the Offer that
Procurement Officer determines is appropriate.
3. OFFEROR'S EXPERIENCE AND CAPACITY, as demonstrated in Offeror's response to Attachment 2-A,
taken together with Offeror's responses to Attachment 2-B and any other aspect of the Offer that
Procurement Officer determines is appropriate.
Please Note: OFFEROR'S ADHERENCE TO THE STANDARD AND UNIFORM TERMS AND CONDITIONS
will also be evaluated.
10.0 Special Instructions
Please note that Offeror may be required to complete the Arizona Baseline Infrastructure Security Controls
Questionnaire as part of the evaluation for further negotiations. Failure to pass the Arizona Baseline
Infrastructure Security Controls will result in insusceptibility and Offeror will not be awarded contract per
A.P.C. R2-7-C311 (Determination of Not Susceptible for Award). Information regarding this is provided under
the Special Terms&Conditions.
End of Section 1-A
PART 1 of the Solicitation Documents: SECTION 1-A: Solicitation Summary
Summary and Instructions Date 4/4/2017 1
Page 5 of 5
. v i, i , a r' i e c r, i . n at : P r o c u r e . A Z . q o v
1 O 7-.
Request for Proposals
iy_ � q p Arizona Department of Administration
@ ,a, Solicitation No. State Procurement
-- 4 ADSP017-00007213 Office
„a ,n Description: 100 N 15th Ave.,Suite 201
* Auctioneering Services Phoenix,AZ 85007
Section 2-A:
Scope Document
(Scope of Work)
Date: 4/12/2017
1 . Purpose
This document constitutes a Request for Proposal("RFP")via competitive proposals from qualified organizations to
provide the requirements of the Scope of Work herein.
1.1. The State of Arizona, its agencies, boards and commissions(State)as well as participating members of the
Arizona State Purchasing Cooperative(Cooperative), have an ongoing requirement for various
Auctioneering Services as described herein.The purpose of the Solicitation is to conduct a competitive
process, in accordance with Arizona Revised Statutes(ARS)41-2501 et seq.,to create a contract or
contracts from which the State and its Cooperative members may acquire these services.
2. Objective and Background
2.1. The State of Arizona desires to establish a contract set for Auctioneering Services to include disposal of
excess/surplus property no longer required by the State.The primary method of the disposal of
excess/surplus property is identified through public sales or auctions.There shall be two parts of the
auctioneering services required:Auctioneering at the State or Political Subdivision Facility and
Auctioneering Services Provided at Contractor's Sale Site.
2.2. Any resulting contract(s)resulting from this solicitation are intended to provide The State of Arizona; its
agencies, boards and commissions(State),as well as participating members of the Arizona State
Purchasing Cooperative with regularly scheduled live auctioneering services for the disposition of excess
property.
2.3. Estimated Number of Auctions(in a 12 month period):
Auctioneerinq Services
Using Agency(each) Number of Auctions(per year) Estimated Amount
ADOA Surplus 3-5 or as needed $400,000.00
Please Note:There is no expressed guarantee of minimum number of auctions or predetermined
amount of property to be auctioned. Auctions are to be held Saturdays only and date to be
determined at the discretion of the Surplus Administrator.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
Scope and Pricing Documents Work) ,�^�
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I
=�� Request for Proposals Arizona Department of Administration
^'_.=.,nF— Solicitation No. State Procurement
��w ADS P017-00007213 Office
Description: 100 N 15th Ave.,Suite 201
IW Auctioneering Services Phoenix,AZ 85007
Full Service Auctioneering Services at Contractors Location
Using agency shall have the digression to sell the items on-site or at the contractors site.
2.5 Estimated Types of Property:
Day of Sale Auctioneering Services Only
Using Agency:
ADOA Surplus 70% Motor Vehicles,30%Miscellaneous
Please Note:There is no expressed guarantee of ratios or percentages.
3. Contractor Qualifications
3.1. Contractor shall have a minimum of three(3)years of experience in conducting large scale auctions.The
auction experience shall be appropriate with the type of property auctioned by the State and Cooperative
members and equivalent in gross proceeds. References,credit history, Better Business Bureau, and
Attorney General's Consumer Fraud Division records may be used to supplement and validate Contractor's
status.
4. General Contractor Requirements
4.1. Presale Setup(At the discretion and approval by the Using Agency)
4.1.1.Contractor shall arrange/setup/lot the property to be sold.
4.1.2.Contractor shall assign lot numbers and prepare a lot list for the sale,The lot list shall include at
minimum:a lot number for each lot being sold; basic description of the items in the lot;any known
defects in the lot;sold; mileage and odometer"box"information if known for vehicles;a disclaimer that
all items are being sold"as is—where is"with no warranty or guarantee provided;a list of terms and
conditions which the Using Agency has approved including terms for payment and removal.The
contractor may include photographs of the property being sold within a printed lot list or on the
Contractors web presence.
4.1.3. Contractor shall provide the Using Agency with a lot list showing the Using Agencies lots a minimum
of five days prior to sale.
4.1.4. Contractor shall ensure titles to any titled equipment are correct and have been properly annotated/
signed.
4.1.5. Contractor shall hold a public presale inspection for a minimum of three(3)days in the five(5)days
prior to the sale.Contractor shall staff the presale inspection.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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Page 2 of 10
Available online at :
P r o c u r e . A Z . g o v
tyf Request for Proposals Arizona Department of Administration
Solicitation No. State Procurement
ADSPOI7-00007213 Office
Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ85007
4.2. Advertising
4.2.1.Contractor shall advertise the sale in accordance with the Arizona Administrative Code R2-15-303 as
well as in any promotional advertising the contractor may employ in the normal course of its business.
4.2.2.Contractor shall advertise the sale on the Contractor's web presence at least three(3)weeks prior to
the sale date.
4.2.3.Contractor shall post the lot list on the Contractor's web presence at least five(5)days prior to the
sale.
4.2.4.Contractor shall devote the time and effort necessary with using agencies to generate maximum
profits from the lots consigned including featuring the consigners property in advertising for the sale.
4.3. Date and Time of Auctions
4.3.1. Using Agency shall notify the Contractor in a timely manner the date and time when an auction is to
be held.Thirty(30)days minimum notice shall be provided prior to each auction unless mutually
agreed upon.A cancellation shall result in a$500.00 fee reciprocal to either party.
4.4. Day of Sale Activities
4.4.1.Contractor shall provide all services including but not limited to: auctioneering,clerking,cashiering,
load out of property to ensure a successful sale of the consigners property.
4.4.2. Contractor shall open the sale site for presale inspection at least one(1)hour prior to the scheduled
auction start time.
4.4.3. Contractor shall have some method of tracking individual buyers via a registration system.
4.4.4.At the beginning of each auction,the Contractor shall announce the terms and conditions of the
auction and other information specifically provided by the Using Agency.
4.4.5.All items or lots shall be sold to the highest bidder.The Using Agency reserves the right to set a
minimum bid on items consigned to the auction.The Using Agency shall notify the Contractor of any
minimum bids at the time the property is consigned to the Contractor for sale.
4.4.6. Contractor shall collect the monies generated by the sale including any taxes(if applicable)and issue
a numbered receipt to the successful buyer.The receipt shall contain at minimum: receipt number,
Buyers name and address, lots purchased, purchase price,sales tax collected or resale number if no
tax collected(if applicable)as well as a statement which stipulates all property is purchased,"As is—
where is with no warranty or guarantee stated or implied."
4.5. Post-Sale Reconciliation Activities
4.5.1. Contractor shall provide a complete list of all successful sales for the Using Agency including the
winning bidder information, lot selling price,proceeds collected,amount charged to sell each lot,and
tax collected(if applicable)no later than ten(10)business days after the completion of sale.
4.5.2.Auctioneering Services Provided at the Contractor Sale Site Only-Contractor shall remit the gross
proceeds of the property sold for the Using Agency(auction)less the Contractor's percentage to the
Using Agency in the form of a bank cashier's check made payable to the Using Agency no later than
ten(10)business days after completion of the sale.
4.5.3. In the event a bidder defaults on a purchase, it is the Contractor's responsibility to collect the money
or property with no assistance from or cost to the Using Agency. Further,the Contactor shall notify the
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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P r o c u r e . A Z . q o v
/ v��._ Request for Proposals Arizona Department of Administration
/'; ` Solicitation No. State Procurement
ADS PO17-00007213 Office
D(r•V.,
escription: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
Using Agency of any defaulted or otherwise unsold lots within ten(10)business days after completion
of the sale.The Contractor will at the Using Agency sole option either consign the property to the
Contractor's sale or deliver the property back to the Using Agency's location.The Contractor shall in
no event charge the Using Agency any fees, percentages or other charges relating to any defaulted/
unsold lot.
4.5.4.Auctioneering at State or Political Subdivision Facility Only-Payment to the Using Agency shall be
made no later than five(5)business days after auction close. The funds returned to the Using Agency
shall be the gross proceeds less sales tax amount of the auction. The Contractor shall invoice the
Agency thirty(30)days after auction close.
5. Auctioneering at State or Political Subdivision Facility
5.1. Contractor's Responsibilities:
5.1.1.The Contractor shall furnish all necessary qualified personnel,services,supplies, equipment and
transportation to conduct auctions in a professional manner with the following minimum requirements
as listed below:
5.1.1.1.Contractor shall provide a minimum of two(2)Premium Auctioneers,two(2)Pit Men
(one auctioneer rotating may substitute as a Pit Man),one(1)clerk and at least one(1)
person to register prospective bidders.
5.1.1.2.Contractor shall set up and maintain a presence at the location of auction as necessary
to comply with the terms of this scope and at the discretion of the Surplus Property
Administrator.
5.1.1.3.Contractor shall issue a registration number to all interested buyers at each auction.
Contractor shall supply sufficient infrastructure to register interested buyers electronically
and timely before start of auction. Contractors shall supply electronic bidder registration
information to the agency after auction.
5.1.1.4.Bidder registration shall begin no later than 24 hours prior to auction. Contractor shall
supply necessary staff for bidder registration and auction viewing at least one(1)day
prior to the start of the auction.
5.1.1.5.Contractor shall furnish the mobile units, public address systems, recording mechanisms
and all other necessary equipment and supplies.
5.1.1.6.At the beginning of each auction,the Contractor shall announce the terms and conditions
of the auction and other information as may be provided by the Using Agency.
5.1.1.7.Contractor shall devote the time and effort necessary to generate maximum profits from
the auction including promotions of the auction at other auctioneeringactivities.
5.1.1.8.Contractor is responsible for paper and electronic advertising and auction dates shall be
published no less than thirty(30)days prior to the auction.
5.1.1.9.All items or lots shall be sold to the highest bidder.The Using Agency reserves the right
to reject any and all bids at the auction.Any bid item that is rejected shall not be included
in the gross sales calculation.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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Date: 4/12/2017
Page 4 of 10
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P r o c u r e . A Z . g o v
*Iwo, Request for Proposals Arizona Department of Administration
Solicitation No. State Procurement
ADSPOI7-00007213 Office
itziz Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
5.1.1.10. Contractor shall furnish the Using Agency with an accurate written sales record
including the lot number,sale price, and the number of the successful bidder.
5.1.1.11. Contractor shall at the request of the Using Agency furnish the Using Agency
with a recording of the entire auction proceedings on a medium requested by the Using
Agency(i.e.:Cassette tapes,Compact Disc, Digital Files).
5.1.1.12. Contractor shall remove all auctioneering equipment on the day of the auction or
at the discretion of the Using Agency.
5.1.1.13. At the discretion and approval of the Using Agency, Contractor shall make all
items available through online bidding regardless of the location of the auction. Bidding
must open five(5)days prior to any live auction event.
5.1.1.14. The contractor shall inventory and catalog items to be listed in the auction and
provide the list to the Using Agency. And, provide all information related to gavel
amount,fees,or other pertinent auction data as requested by the Using Agency.
5.2. Pricing—Auctioneerinq Services at a State or Political Subdivision Facility
5.2.1.The Contractor shall be compensated for all sales in the auction paid at the rate of compensation(%)
upon signed agreement on Exhibit 1 of Section 2-B: Pricing.
5.2.2. Charging a"Buyer's Premium"shall not be allowed under any resulting contract for this service. The
lotting and pricing strategies are at the discretion of the Using Agency.
5.2.3.The contractor shall provide lotting services or other price related services to the Using Agency at the
request of the Using Agency.
5.3. Location of Sales
5.3.1.Auctions generally will be held within a 35-mile radius of Metropolitan Phoenix on State of Arizona
property.Auctions may be held at other locations as required by the Using Agency.
5.4. Using Agency Responsibilities
5.4.1. Using Agency shall advertise the auction in accordance with the Arizona Administrative Code
including media advertisement and mailing brochures.
5.4.2. Using Agency shall include the following statement in all brochures:
"Equipment irrespective of its location shall be sold on an"as is"basis. Neither the State of
Arizona nor any of its departments or institutions,nor the auctioneer make any guarantee or
warranty of any kind, express or implied, as to the condition of the article offered for sale."
5.4.3. Using Agency shall provide the Contractor with a listing of all items to be auctioned.
5.4.4. Using Agency shall have the items to be auctioned set up in appropriate configured and numbered
lots. The lot composition is at the discretion of the using agency. The Using Agency may
consider all proposals from the Contractor relating to safety, pricing, efficiency,or other factor that
may influence the outcome of the auction
5.4.5. Using Agency may provide the appropriate personnel to assist in loading property.
5.4.6. Using Agency may provide adequate security.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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Available o n I i i-i e a t
P r o c u r e . A Z .q ov
1-:114 Request for Proposals Arizona Department of Administration
a ••,,E Ain
Solicitation No. State Procurement
h . ADSPOI7-00007213 Office
Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
5.4.7. Using Agency may furnish clerical personnel to prepare the appropriate transfer forms and handle
the process.
5.4.8. Using Agency may provide the necessary staff to manage the auction process to ensure the
integrity of the auction process.
6. Auctioneering Services Provided at Contractor's Sale Site
6.1. Contractor's Responsibilities
6.1.1.The Contractor shall have and maintain a Public Consignment Auction Dealer license as defined by
ARS 28-4301.
6.1.2.The Contractor shall furnish all necessary qualified personnel,services,supplies,and equipment to
conduct auctions in a professional manner with the following minimum requirements:
6.1.3.Contractor shall be responsible for all work necessary to sell consigned property a live auction sale at
the Contractors location. For the purposes of this contract an auction broadcast online satisfies the
requirement of live auction sale if it occurs at the contractors site.
6.1.4.Contractors shall secure all property consigned to it for sale by the Using Agency in a manner which
prevents damage or theft.
6.1.5.Contractor shall store and display all property consigned to it for sale by the Using Agency in such a
way as to maximize the selling price of the property.
6.1.6.Contractor shall use a system of marking or coding to uniquely identify the property(owner code)for
all property consigned to it by the Using Agency for sale.The Using Agency may request the use of
more than one owner code to identify property consigned to the Contractor for sale and the contractor
shall comply. Note:some Using Agencies may request multiple owner codes.
6.1.7. Contractor shall not mix or comingle property consigned to it for sale by the Using Agency with other
property consigned to it by others within the same lot.
6.1.8.Contractor shall not mix or comingle property consigned by the Using Agency for sale with different
owner codes within the same lot.
6.1.9.Contractor shall provide restroom facilities for use by auction attendees.
6.1.10. Contractor shall provide all necessary information relating to sale of the items within thirty(30)days
of the auction.
6.1.11. Contractor shall provide food concessions on a fee for service basis and/or water stations for use
by auction attendees.
6.1.12. Contractor shall provide vehicle parking for auction attendees at no cost to the attendee.
6.1.13. Contractor shall provide auction lot lists at no cost to the attendee.
6.1.14. Contractor shall provide loading services to the successful bidders at no cost to the bidder except
where the Using Agency has agreed in advance of the sale the buyer must load specific lots.
6.1.15. Contractor shall not charge pre-sale or post sale storage fees to the Using Agency.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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(jolly"; Request for Proposals Arizona Department of Administration
�41 Solicitation No. State Procurement
i(.,
ADSPOI7-00007213 Office
i-/ Description: 100 N 15th Ave.,Suite 201
klii-'� Auctioneering Services Phoenix,AZ85007
6.1.16. Contractor shall not accept consignments for sale from the Using Agency for the following items:
live animals,firearms,vehicles with altered or illegal VIN numbers,explosive devices for the purposes
of this contract.
6.2. Pricing-Auctioneerinq Services Provided at Contractors Sale Site
6.2.1.The Contractor shall be compensated for all sales in the auction paid at the rate(s)of compensation
upon signed agreement on Exhibit 1 of Section 2-B: Pricing.
6.2.2.Any bid item that is rejected or not paid for shall not be subject to the gross sales amount for
calculating Contractor's fee for services.
6.2.3.The Contractor may offer two pricing proposals for this service:
6.2.3.1. Pricing proposal that does not include a"Buyer's Premium."
6.2.3.2. Pricing proposal that does include a"Buyer's Premium."If the Contractor elects to
provide a pricing proposal that includes a"Buyer's premium",the Contractor shall include
the amount(percentage or flat)on the ProcureAZ line item.
Note: Including a"Buyers premium"pricing proposal,the amount of the"Buyers premium"will be
included in the price calculation as part of the evaluation.
6.2.4.Contractor shall fully disclose the expected rate of compensation for the general categories of
items as listed below on ProcureAZ:
• Heavy Equipment including equipment typically associated with road construction,
building construction or road maintenance included but not limited to road graders,
front end loaders, bull dozers,road rollers, rock crushing and processing equipment,
cranes(all types),forklifts(all types),scrapers,backhoes,grade tractors, man lifts,
and excavators(tracked or wheeled), generators over 20KW rating.
• Class 6-8 Trucks and trailers with a GVWR of over 10,000 pounds
• Class 1-5 Trucks and passenger motor vehicles(including but not limited to:Trucks,
Sedans,Vans, SUV's, Crossovers,and Hybrids)
• Miscellaneous Property: IT hardware,office furniture,commercial kitchen equipment,
fabrication equipment, automotive repair equipment,vehicle parts,and other items
not called out in specific categories.
• Aircraft
• Jewelry, Coins, Precious and Semiprecious Stones and Metals.
PART 2 of the Solicitation Documents: SECTION 2-A: Scope Document(Scope of
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P r o c u r e . A Z . g o v
40-414 Request for Proposals Arizona Department of Administration
c411-41
Solicitation No. State Procurement
ADSPOI7-00007213 Office
4 Description: too N 15th Ave.,Suite 201
� Auctioneering Services Phoenix,AZ85007
6.3. Location of Sales
6.3.1.Contractor shall sell all property from Sales Sites physically located within the State of Arizona.
6.4. Using Agency Responsibilities
6.4.1. Using Agency shall deliver the property to be included in the Contractor's sale to the Contractor's Sale
Site in accordance with the Contractor's schedule for sale.
6.4.2. Using Agency shall ensure titles to Motor Vehicles and other titled equipment are appropriately
annotated accompanied by a lien release if applicable and delivered timely to the Contractor.
6.4.3. Using Agency shall notify the Contractor of any known deficiencies in the equipment or materials to be
sold.
6.4.4. Using Agency shall notify at the time of delivery to the Contractor or within five(5)working days after
delivery of any reserve or minimum bid price.
7. Compensation
7.1. The only compensation permitted under this section of the solicitation is stipulated on the ProcureAZ line
items. No other fees, percentage charges,charges for ancillary or preparatory work; including but not
limited to:detailing, repair or refurbishment,or other charges shall be permitted.
8. Contract Administration and Deliverables
8.1. Standards for the Contractor
8.1.1.The Contractor shall maintain in current status all federal,state and local licenses and permits
required for the operation of the business conducted by the Contractor as applicable to this Contract.
8.1.2. Contractor shall only assign personnel who, regardless of position, role,or duties,are appropriately
alert,fit,qualified,trained,and equipped for their assignments.Contractor shall:
8.1.2.1. Provide adequate numbers of appropriately qualified and authorized personnel as
necessary to successfully fulfill contract requirements;
8.1.2.2.Assign, at minimum,the key personnel identified in the Accepted Offer/Contract to the
positions, roles, and/or duties indicated therein;and,
8.1.2.3.Not remove or reassign any key person without the State's prior consent,which the State
may deny at its discretion.
8.2. Data Protection
8.2.1.The Contractor must comply with the Arizona Baseline Infrastructure Security Controls. The
Contractor shall complete a Baseline Security Controls Questionnaire as required by the State. Failure
to pass the Arizona Baseline Infrastructure Security Controls will result in insusceptibility and Offeror
will not be awarded contract per A.P.C. R2-7-C311 (Determination of Not Susceptible for Award).
Information regarding this is provided under the Special Terms&Conditions of this Solicitation.
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P r o c u r e . A Z . q o v
= Request for Proposals Arizona Department of Administration
iii
-,..�E�= Solicitation No. State Procurement
ADSP017-00007213 Office
c Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
8.3. Confidentiality
8.3.1.The Contractor shall limit property and information access to only those individuals who need access
in order to render services pursuant to the Contract.
8.3.2.The Contractor shall maintain all records and confidential materials in a secure manner during the
term of the Contract and for a minimum period of three(3)years following the expiration or termination
of the Contract.
8.3.3.The Contractor shall immediately notify the State Agency in writing in the event the Contractor
determines,or has reason to suspect,a breach of confidentiality.
8.4. Reporting Requirements
8.4.1.At the request of the Arizona Department of Administration State Procurement Office("SPO"),
Contractor shall submit to ADOA SPO an annual spends report by the State and any state agencies
and/or Co-Ops at no additional costs.
8.4.2.At the request of the Arizona Department of Administration State Procurement Office("SPO"),
Contractor shall provide monthly billing for the previous month within thirty(30)days of the end of
each month in the required format,which includes the dollar amount charged to the Agency,date
serviced,service rendered,quantity, unit of measure, price per unit,and total monthly amount due,
with Line Item.
8.4.3.At the request of the Arizona Department of Administration State Procurement Office("SPO"),
Contractor shall submit to the SPO copies of Contractor's balance sheet, income statement and cash
flow statement, prepared in accordance with Generally Accepted Accounting Principles(GAAP)within
three(3)months of the period closing date specified by the SPO. If GAAP is applicable to the
Contractor,these financial statements must include either an independent auditors'opinion or a
signed management letter that states that the financial statements provided to the State conform to
GAAP.
8.4.4. Contractor shall provide ad-hoc reports requested by the Arizona Department of Administration State
Procurement Office("SPO"),and/or to the State at no additional charge.
8.4.5.The Contractor shall submit corrected reports to replace reports containing errors or inaccurate
information within five(5)business days from the date of notification.
8.5. Performance Standards
8.5.1. Contractor shall provide quality services, meeting or exceeding the State-approved industry
standards. Should the State identify any deficiency in the Contractor's performance of the Contract,
Contractor shall take immediate corrective action and provide a written corrective action plan within
fourteen(14)days,as requested by the State,with any such corrective action plan including at least
the following:
8.5.1.1. Reference to specific error or finding;
8.5.1.2. Root cause analysis;
8.5.1.3. Name and title of the person accountable for implementing and overseeing the action
plan;
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rt Request for Proposals Arizona Department of Administration
' Solicitation No. State Procurement
�< . ADS POI 7-00007213 Office
= Description: 100 N 15th Ave.,Suite 201
Auctioneering Services Phoenix,AZ 85007
8.5.1.4.Corrective action items, including specific deliverables and anticipated completion
date(s),or the reason corrective action is not necessary;
8.5.1.5. Disclosure of the metrics used to measure the success of each deliverable;
8.5.1.6.Member notification process if applicable;and
8.5.1.7.Notification upon completion of issue resolution.
9. Exhibits to the Scope of Work
IN Exhibit 1 -Reserved
Section 2-A
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.04444. Solicitation Amendment
Arizona Department of
It.9iikr.,.., Administration
ADSPOI7-00007213 Auctioneering Services State Procurement Office
100 N.15 Avenue,Suite 201
Phoenix,AZ 85007
Amendment 1
Auctioneering Services
In accordance with A.P.C. R2-7-C303, Solicitation Amendment, the following corrections have been made to
the Section 2-A: Scope Document (Scope of Work) dated 4/4/2017:
1) Section 4 General Contractor Requirements
4.1 Presale Setup (At the discretion and approval by the Using Agency)—language in red was added.
4.5 Post-Sale Reconciliation Activities- language in red was added for 4.5.2 and 4.5.4:
4.5.2 Auctioneering Services Provided at the Contractor Sale Site Only- Contractor shall remit
the gross proceeds of the property sold for the Using Agency(auction) less the Contractor's
percentage to the Using Agency in the form of a bank cashier's check made payable to the
Using Agency no later than ten (10) business days after completion of the sale.
4.5.4 Auctioneering at State or Political Subdivision Facility Only- Payment to the Using Agency
shall be made no later than five (5) business days after auction close. The funds returned to the
Using Agency shall be the gross proceeds less sales tax amount of the auction. The Contractor
shall invoice the Agency thirty(30) days after auction close.
2) Section 5 Auctioneering at State or Political Subdivision Facility
5.1 Contractor's Responsibilities—language in red was added for 5.1.1.13
5.1.1.13 At the discretion and approval of the Using Agency, Contractor shall make all items
available through online bidding regardless of the location of the auction. Bidding must open
five (5) days prior to any live auction event.
5.4 Using Agency Responsibilities—Numbering Sequence was corrected after 5.4.2 to Section 6
5.4.3-5.4.8 replaced 3.5.3 -3.5.8 (see Amended Scope)
i
I
Pricing Sheet
INSTRUCTIONS:
As part of your ProcureAZ proposal response,the attachment shall be completed and saved as a singular file;in
Adobe Acrobat(PDF)format,titled:"Pricing Sheet—Offeror Name"
There are three pricing methods acceptable for the two auctioneering services categories:
• Rate of Compensation(%)for Day of Sale Auctioneering Services at a State or Political Subdivision
Facility(No Buyers Premium allowed).
• Rate of Compensation(%)for Auctioneering Services at a Contractors Location(Excluding a Buyer's
Premium).
• Rate of Compensation(%)for Auctioneering Services at a Contractors Location(Including include a
Buyer's Premium).
For consistency in proposal responses, potential Offerors shall use the following numerical representations
of percentages proposed. For example: Six percent shall be denoted as 6%; Six-tenths of one percent shall
be denoted as 0.6%;Six-one-hundredth of one percent shall be denoted as 0.06%;Six-one-thousandth of one
percent shall be denoted as 0.006%.
Day of Sale Auctioneerinq Services at a State or Political Subdivision Facility
1. Rate of compensation(R.O.C.)for providing Day of Sale Auctioneering Services at a State or Political
Subdivision Facility(No Buyers Premium allowed).
Total R.O.0 10
Auctioneering Services at a Contractors Location
2. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyer's Premium"(B.P.)
for specific items: Heavy Equipment-Equipment typically associated with road construction, building
construction or road maintenance included but not limited to road graders,front end loaders, bull dozers,
road rollers, rock crushing and processing equipment,cranes(all types),forklifts(all types),scrapers,
backhoes,grade tractors, man lifts,and excavators(tracked or wheeled),generators over 20KW rating.
Total R.O.0 13.9 %
3. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyers Premium"(B.P.)
for specific items:Class 6-8 Trucks and trailers with a GVWR over 10,000 pounds.
Total R.O.0 13.9 %
PART 2 of the Solicitation Documents: SECTION 2-B: Pricing Document
Date:4/4/2017 2
Scope and Pricing Documents
Page 4 of 6
Available online at . P r o c u r e . A Z . q o v
4. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyers Premium"(B.P.)
for specific items: Class 1-5 Trucks and passenger motor vehicles(including but not limited to:Trucks,
Sedans,Vans,SUV's,Crossovers, and Hybrids).
Total R.O.0 13.9
5. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyers Premium"(B.P.)
for Miscellaneous Property: IT hardware,office furniture,commercial kitchen equipment,fabrication
equipment,automotive repair equipment,vehicle parts,and other items not called out in specific categories.
Total R.O.0 18.9
6. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyers Premium"(B.P.)
for Aircraft.
Total R.O.0 13.9
7. Rate of compensation(R.O.C.)in providing auctioneering services EXCLUDING a"Buyers Premium"(B.P.)
for specific items:gold and silver bearing jewelry and watches, coins, precious and semi precious stones;
gold,silver and/or other precious metals in bullion or other form.
Total R.O.0 18.9
8. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyer's Premium"(B.P.)
for specific items: Heavy Equipment-Equipment typically associated with road construction, building
construction or road maintenance included but not limited to road graders,front end loaders,bull dozers,
road rollers, rock crushing and processing equipment,cranes(all types),forklifts(all types),scrapers,
backhoes,grade tractors,man lifts,and excavators(tracked or wheeled),generators over 20KW rating.
R.O.C. 1.9 %+B.P. 12 % =Total R.O.C. 13.9
9. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyers Premium"(B.P.)
for specific items: Class 6-8 Trucks and trailers with a GVWR over 10,000 pounds.
R.O.C. 1.9 %+B.P. 12 %=Total R.O.C. 13.9
10. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyers Premium"(B.P.)
for specific items: Class 1-5 Trucks and passenger motor vehicles(including but not limited to:Trucks,
Sedans,Vans, SUV's, Crossovers,and Hybrids).
R.O.C. 1.9 %+B.P. 12 %=Total R.O.C. 13.9
PART 2 of the Solicitation Documents: SECTION 2-B: Pricing Document
Scope and Pricing Documents Date:4/4/2017 t"'�
Page 5 of 6 G
Available online at . P r o c u r e . A Z . g o v
11. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyers Premium"(B.P.)
for Miscellaneous Property: IT hardware,office furniture, commercial kitchen equipment,fabrication
equipment,automotive repair equipment,vehicle parts,and other items not called out in specific categories.
R.O.C. 6.9 % + B.P. 12 %=Total R.O.C. 18.9
12. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyers Premium"(B.P.)
for Aircraft.
R.O.C. 1.9 %+ B.P. 12 %=Total R.O.C. 13.9 %
13. Rate of compensation(R.O.C.)in providing auctioneering services INCLUDING a"Buyers Premium"(B.P.)
for specific items:gold and silver bearing jewelry and watches, coins, precious and semi precious stones;
gold,silver and/or other precious metals in bullion or other form.
R.O.C. 6.9 %+ B.P. 12 %=Total R.O.C. 18.9
(note: Sierra has a vehicle dealer buying program that allows dealers to pay 10% BP on vehicles over$3000 and 8%
on vehicles over$10,000. This means the BP is a variable rate and this should be considered for the evaluation.)
End of Section 2-B
End of Part 2
PART 2 of the Solicitation Documents: SECTION 2-B: Pricing Document
Scope and Pricing Documents Date:4/4/2017 n
Page 6 of 6 G
Available online at . P r o c u r e . A Z . g o v
Requests for Proposals Arizona Department of Administration
..';;"` Solicitation No. State Procurement Office
ADSP017-00007213
y 100 N 15th Ave.,Suite 201
4440 Description: Phoenix,AZ 85007
Auctioneering Services
SECTION 3-B:
Uniform Terms and Conditions
Version: 11.3(7/21/2016)
TABLE OF CONTENTS:
1.0....Definition of Terms 1
1.1 Acceptance 1
1.2 Accepted Offer 1
1.3 Arizona Procurement Code; A.R.S.;A.A.C. 1
1.4 Arizona TPT 1
1.5 Attachment 1
1.6 Building Work 1
1.7 Commercial Document 1
1.8 Contract 1
1.9 Contract Amendment 1
1.10...Contract Terms and Conditions 1
1.11 ...Contractor 2
1.12...Contractor Indemnitor 2
1.13...Co-Op Buyer 2
1.14...Day 2
1.15...Eligible Agency 2
1.16...Gratuity 2
1.17...Indemnified Basic Claims 2
1.18...Instructions to Offerors 2
1.19...Materials 2
1.20...Offer;Initial Offer; Revised Offer;Best and Final Offer(BAFO) 2
1.21 ...Order 2
1.22...Part,Section;Exhibit 3
1.23...Person 3
1.24...Procurement Officer 3
1.25...ProcureAZ 3
1.26...Scope of Work 3
1.27...Services 3
1.28...Solicitation;Solicitation Documents 3
1.29...Special Terms and Conditions 3
1.30...Specification 3
1.31 ...State 3
1.32...State Indemnitees 3
1.33...State Fiscal Year 3
1.34...Subcontract 3
1.35...Subcontractor 4
1.36...Uniform Terms and Conditions 4
1.37...Work 4
2.0....Contract Interpretation 4
2.1 Arizona Law 4
2.2 Implied Terms 4
2.3 Usage 4
2.4 Contract Order of Precedence 5
2.5 Independent Contractor 5
2.6 Severability 5
2.7 Complete Integration 5
2.8 No Waiver of Rights 6
3.0....Contract Administration and Operation 6
3.1 Term of Contract 6
3.2 Contract Extensions 6
3.3 Notices and Correspondence 6
3.4 Signing of Contract Amendments 6
3.5 Click-Through Terms and Conditions 6
3.6 Books and Records 7
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016) 3
Table of Contents Page 1 of 3
A ,. a ? s a b I e u - e o f P r o c u r e . A Z . a o v
/�t �,j�
/� Requests for Proposals Arizona Department of Administration
Solicitation No. State Procurement Office
L § ADSP017-00007213 100 N 15th Ave.,Suite 201
�, Description: Phoenix,AZ 85007
�` Auctioneering Services
-i
3.7 Contractor Licenses 7
3.8 Inspection and Testing 7
3.9 Ownership of Intellectual Property 7
3.10...Subcontracts 8
3.11 ...Non-Discrimination 9
3.12...E-Verify Requirements 9
3.13...Offshore Performance of Certain Work Prohibited 9
3.14...Orders 9
3.15...Statewide Contract Provisions 10
3.16...Multiple-Use Provisions 11
3.17...Other Contractors 11
3.18...Work on State Premises 11
3.19...Advertising,Publishing and Promotion of Contract 12
4.0....Costs and Payments 12
4.1 Payments 12
4.2 Applicable Taxes 12
4.3 Availability of Funds 12
5.0....Contract Changes 12
5.1 Contract Amendments 12
5.2 Assignment and Delegation 13
6.0....Risk and Liability 13
6.1 Risk of Loss 13
6.2 Contractor Insurance 13
6.3 Basic Indemnification 13
6.4 Patent and Copyright Indemnification 14
6.5 Force Majeure 14
6.6 Third Party Antitrust Violations 15
7.0....Warranties 15
7.1 Liens 15
7.2 Conformity to Requirements 15
7.3 Contractor Personnel 15
7.4 Intellectual Property 15
7.5 Compliance with Laws 15
7.6 Licenses and Permits 15
7.7 Operational Continuity 15
7.8 Performance in Public Health Emergency 15
7.9 Lobbying 16
7.10...Survival of Warranties 16
8.0....State's Contractual Remedies 16
8.1 Right to Assurance 16
8.2 Stop Work Order 16
8.3 Non-exclusive Remedies 16
8.4 Nonconforming Tender 16
8.5 Right of Offset 16
9.0....Contract Termination 17
9.1 Termination for Conflict of Interest 17
9.2 Gratuities 17
9.3 Suspension or Debarment 17
9.4 Termination for Convenience 17
9.5 Termination for Default 17
9.6 Continued Performance Required 17
10.0..Contract Claims 18
10.1 ...Claim Resolution 18
10.2...Mandatory Arbitration 18
11.0..General Provisions for Materials 18
11.1 ...Applicability 18
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Table of Contents Page 2 of 3
i a hie online a t : Procure . A Z
Requests for Proposals Arizona Department of Administration
.0(41,7-.
."r ° Solicitation No. State Procurement Office
ADSPO17 00007213
f h100 N 15th Ave.,Suite 201
' Description: Phoenix,AZ 85007
Auctioneering Services
i
11.2...Off-Contract Materials 18
11.3...Compensation for Late Deliveries 18
11.4...Indicate Shipping Costs on Order 18
11.5...Current Products 18
11.6...Maintain Comprehensive Selection 18
11.7...Additional Products 18
11.8...Discontinued Products 19
11.9...Forced Substitutions 19
11.10..Recalls 19
11.11..Delivery 19
11.12..Delivery Time 19
11.13..Delivery Locations 20
11.14..Conditions at Delivery Location 20
11.15..Materials Acceptance 20
11.16..Correcting Defects 20
11.17..Returns 21
11.18..Order Cancellation 21
11.19..Product Safety 21
11.20..Hazardous Materials 21
12.0..General Provisions for Services 22
12.1 ...Applicability 22
12.2...Comprehensive Services Offering 22
12.3...Additional Services 22
12.4...Off-Contract Services 22
12.5...Removal of Personnel 22
12.6...Transitions 22
12.7...Accuracy of Work 23
12.8...Requirements at Services Location 23
12.9...Services Acceptance 23
12.10..Corrective Action Required 23
13.0..Data and Information Handling 23
13.1 ...Applicability 23
13.2...Data Protection and Confidentiality of Information 23
13.3...Personally identifiable Information. 24
13.4...Protected Health Information 24
14.0..Information Technology Work 25
14.1 ...Applicability 25
14.2...Background Checks 25
14.3...Information Access 25
14.4...Pass-Through Indemnity 25
14.5...Systems and Controls 26
14.6...Redress of Infringement 26
14.7...First Party Liability Limitation 26
14.8...Information Technology Warranty 27
14.9...Specific Remedies 27
15.0..Comments Welcome 28
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Table of Contents Page 3 of 3
Available online a t : Procure . A Z . g ov
ie)
�► .y. Requests for Proposals Arizona Department of Administration
r -
�zxa Solicitation No. State Procurement Office
-- 4 ADSP017-00007213 100 N 15th Ave.,Suite 201
'= "�" Description: Phoenix,AZ 85007
'a Auctioneering Services
Uniform Terms and Conditions
1 .0 Definition of Terms
As used in the Contract,the terms listed below are defined as follows:
1.1 Acceptance "Acceptance"means the document headed"Offer and Acceptance Form"bearing the
State contract number once Procurement Officer has signed it to signify(1)State's
formal acceptance of the Accepted Offer and(2)the formation of the Contract. For clarity
of intent,the foregoing is not to be confused with the term"acceptance"used throughout
the Contract in the context of delivery,inspection,etc.,with respect to Materials or
Services.
1.2 Accepted Offer If State did not request a Revised Offer,then"Accepted Offer"means the Initial Offer.
If State did request a Revised Offer but not a Best and Final Offer,then"Accepted Offer"
means the latest Revised Offer.
If State requested a Best and Final Offer,then"Accepted Offer"means the Best and
Final Offer.
1.3 Arizona "Arizona Procurement Code,"A.R.S.,"and"A.A.C."are each defined in the Instructions
Procurement Code; to Offerors.
A.R.S.;A.A.C.
1.4 Arizona TPT "Arizona TPT"means Arizona Transaction Privilege Tax. For information,refer to the
Arizona Department of Revenue(DOR)website at:
https://www.azdortiov/business/transactionprivileqetax.aspx.
1.5 Attachment "Attachment"means any item that:
1. the Solicitation required Offeror to submit as part of the relevant Offer
(e.g., Initial Offer,Revised Offer,or BAFO);
2. was attached to an Offer when submitted;and
3. was included in the Accepted Offer.
1.6 Building Work "Building Work"means everything covered by the definitions in A.R.S.§41-2503
[Definitions]of the terms"construction"(para.4),"maintenance services"(para.26),
and"operations services"(para.28).
1.7 Commercial "Commercial Document"means Section 2-B of Part 2 of the Solicitation Documents,
Document provided that,if there is no such Section in the Contract,then"Commercial Document"
is to be construed as referring to whatever item in the Contract contains the contracted
pricing and payment provisions.
1.8 Contract "Contract"means,collectively,the Acceptance,the Solicitation Documents,the
Accepted Offer,all acknowledged Orders,and any Contract Amendments.See
paragraph 1.22.The Contract is identified as a"Purchase Order"in ProcureAZ,since
that is the terminology used in the software;use of that term in ProcureAZ is not to be
confused with the contractual term"Order"defined in paragraph 1.21.
1.9 Contract "Contract Amendment"means a document signed by Procurement Officer that has been
Amendment issued for the purpose of making changes to the Contract after execution.The term
"Change Order"in ProcureAZ is to be construed as being synonymous with"Contract
Amendment".
1.10 Contract Terms "Contract Terms and Conditions"means the Special Terms and Conditions and these
and Conditions Uniform Terms and Conditions taken collectively.
PART 3 of the Solicitation Documents SECTION 3-B:Uniform Terms and Conditions
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Page 1 of 28
i, , 3 . 0 r. , _ o n ; n t. a t Procure . A Z . g o v
•
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lirw;." Requests for Proposals Arizona Department of Administration
L•t..x I ' Solicitation No. State Procurement Office
Ao ti !� ADSP017-00007213
4 100 N 15th Ave.,Suite 201
t'�`~ ' Description: Phoenix,AZ 85007
iF111, Auctioneering Services
1.11 Contractor "Contractor"means the Person identified on the Accepted Offer who has entered into the
Contract with State.
1.12 Contractor "Contractor Indemnitor"means Contractor or any of its owners,officers,directors,
Indemnitor agents,employees,or Subcontractors.
1.13 Co-Op Buyer "Co-Op Buyer"means a member of the State Purchasing Cooperative that has entered
into a"Cooperative Purchasing Agreement"with the Arizona Department of
Administration State Procurement Office under A.R.S.§41-2632. Unless there is an
applicable Cooperative Purchasing Agreement in effect at the time,a State Purchasing
Cooperative member cannot be a Co-Op Buyer. For reference,"Co-Op Buyer"is to be
construed as encompassing"eligible procurement unit"under A.A.C.R2-7-101(23).
NOTE: Membership in the State Purchasing Cooperative is open to all Arizona political
subdivisions,including cities,counties,school districts,and special districts.Membership
is also available to non-profit organizations,other state governments,the federal
government and tribal nations. For reference,"non-profit organizations"are defined in
A.R.S.§41-2631(4)as any nonprofit corporation as designated by the IRS under
section 501(c)(3)through 501(c)(6)of the tax code.
1.14 Day "Day"means a calendar day unless otherwise specified in a particular context.
1.15 Eligible Agency If the Special Terms and Conditions indicates that the Contract is a"single-agency"
contract,then"Eligible Agency"means the particular State of Arizona agency,university,
commission,or board identified therein.If the Special Terms and Conditions indicates
that the Contract is a"statewide"contract,then"Eligible Agency"means any State of
Arizona department,agency,university,commission,or board.
1.16 Gratuity "Gratuity"means a payment,loan,subscription,advance,deposit of money,services,or
anything of more than nominal value, present or promised,unless consideration of
substantially equal or greater value is received.
1.17 Indemnified Basic "Indemnified Basic Claims"means any and all claims,actions,liabilities,damages,
Claims losses,or expenses, including court costs,attorneys'fees,and costs of claim
processing, investigation and litigation,for bodily injury or personal injury, including
death,or loss or damage to any real or tangible or intangible personal property,
collectively.See paragraph 6.3.
1.18 Instructions "Instructions to Offerors"is Section 1-B of Part 1 of the Solicitation Documents.
to Offerors
1.19 Materials "Materials"has the meaning given in A.R.S.§41-2503(7)to the extent those things are
included in the Work,which,for convenience of reference only, is"...all property,
including equipment,supplies,printing, insurance,and leases of property[but]does not
include land,a permanent interest in land or real property or leasing space."Materials
includes software,except that If software is sold or provided as a service,then to the
extent it consists of encoded information or computer instructions it is included in
"Materials"and to the extent it is a service it is in"Services".
1.20 Offer; Initial Offer; "Offer,""Initial Offer,""Revised Offer,"and"Best and Final Offer"("BAFO")are each
Revised Offer; defined in the Instructions to Offerors.
Best and Final
Offer(BAFO)
1.21 Order "Order"means the instrument by which State authorizes Contractor to perform some or
all of the Work.Whether the Contract will have one Order or many Orders depends the
scope of the Contract and how State will use it.The Special Terms and Conditions
provide that information.Any of the following is to be construed as being an"Order":
1. "Release"or"Release Purchase Order"in ProcureAZ;
2. "task order","service order,"or"job order"when a Release Purchase Order for
Services has already been committed in ProcureAZ;or
3. "purchase order"for buying by Co-Op Buyers, if co-op buying applies.
PART 3 of the Solicitation Documents SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Page 2 of 28
a t P r o c u r e . A Z . p o v.,_
fiy Requests for Proposals Arizona Department of Administration
`(4., II Solicitation No. State Procurement Office
y ADSPOI7-00007213 100 N 15th Ave.,Suite 201
'- Description: Phoenix,AZ 85007
+Ak'iViOC* Auctioneering Services
1.22 Part,Section; "Part,""Section,"and"Exhibit"are each defined in the Instructions to Offerors.
Exhibit
1.23 Person "Person"means any corporation,business,individual, union,committee,club,or other
organization or group of individuals.
1.24 Procurement "Procurement Officer"means the person,or his or her designee,who has been duly
Officer authorized by State to enter into and administer the Contract and to make written
determinations with respect to the Contract.Procurement Officer is as identified on the
Acceptance unless subsequently changed by Contract Amendment.
1.25 ProcureAZ "ProcureAZ"means State's official electronic procurement system,established pursuant
to A.A.C. R2-7-201 as set forth in the Arizona Department of Administration State
Procurement Office policy document Technical Bulletin No. 020, ProcureAZ—The
Official State eProcurement System.
NOTE(1):Technical Bulletin No.020 is available online at:
https://spo.az.gov/administration-pol icvlstate-procurement-resource/procurement-req ulations
NOTE(2):The URL for ProcureAZ itself is:
https://procu re.az.g ovl
1.26 Scope of Work "Scope of Work"means Section 2-A of Part 2 of the Solicitation Documents.
1.27 Services "Services"has the meaning given in A.R.S.§41-2503(35),which,for convenience of
reference only, is"...the furnishing of labor,time,or effort by[the][C]ontractor or
[S}ubcontractor which does not involve the delivery of a specific end product other than
required reports and performance[but]does not include employment agreements or
collective bargaining agreements."Services includes Building Work and the service
aspects of software described in paragraph 1.19.
1.28 Solicitation; "Solicitation"and"Solicitation Documents"are defined in the Instructions to Offerors.
Solicitation
Documents
1.29 Special Terms "Special Terms and Conditions"are Section 3-A of Part 3 of the Solicitation Documents.
and Conditions
1.30 Specification "Specification"has the meaning given in A.R.S.§41-2561,which,for convenience of
reference only, is"...any description of the physical or functional characteristics,or of
the nature of a material,service or construction item.Specification may include a
description of any requirement for inspecting,testing or preparing a material,service or
construction item for delivery."Specifications(if any are included in the Contract),are
indexed in the Scope of Work and could be bound separately from the other documents
forming the Contract.
1.31 State With respect to the Contract generally,"State"means the State of Arizona and its
department,agency,university,commission,or board that has executed the Contract.
With respect to administration or rights,remedies,obligations and duties under the
Contract for a given Order,"State"means each of Eligible Agency or Co-Op Buyer who
has issued the Order.
1.32 State Indemnitees "State Indemnitees"means,collectively,the State of Arizona, its departments,agencies,
universities,commissions,and boards and,and their respective officers,agents,and
employees.
1.33 State Fiscal Year "State Fiscal Year"means the period beginning each July 1 and ending each June 30.
1.34 Subcontract "Subcontract"means any contract,express or implied, between Contractor and another
party or between a Subcontractor and another party delegating or assigning, in whole or
in part,the making or furnishing of any Materials,the performing of any Services,or the
carrying out of any other aspect of the Work.
PART 3 of the Solicitation Documents. SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Page 3 of 28
. a a , _ r : a t _ Procure . A Z . Ss o v
l►r'y Requests for Proposals Arizona Department of Administration
+! Solicitation No. State Procurement Office
r ADSPO17-00007213
L
"t^ ` 100 N 15th Ave.,Suite 201
Description: Phoenix,AZ 85007
+Atrir>� Auctioneering Services
1.35 Subcontractor "Subcontractor"has the meaning given in A.R.S.§41-2503(38),which,for convenience
of reference only,is"...a person who contracts to perform work or render service to...
[C]ontractor or to another[S]ubcontractor as a part of a contract with a state
governmental unit. . ."The Contract is to be construed as"a contract with a state
governmental unit"for purposes of the definition. For clarity of intent,a Person carrying
out any element of the Work is a Subcontractor from the moment they first carry out that
element of the Work regardless of whether or not a Subcontract exists then or
subsequently.
1.36 Uniform Terms The"Uniform Terms and Conditions"are made up of this document and whichever of the
and Conditions Appendices are indicated in the Special Terms and Conditions as being applicable.
1.37 Work "Work"means the totality of the Materials and the Services and all the acts of
administration,creation, production,and performance necessary to fulfill and incidental
to fulfilling all of Contractor's obligations and duties under the Contract in conformance
with the Contract and applicable laws.
2.0 Contract Interpretation
2.1 Arizona Law The Contract is governed by and is to be interpreted in accordance with the laws of the
State of Arizona,including the Arizona Procurement Code,without consideration of
conflict of laws principles.
2.2 Implied Terms Each provision of law and any terms required by law to be in the Contract are a part of
the Contract as if fully stated in it.
2.3 Usage Where the Contract:
1. assigns obligations to Contractor,any reference to"Contractor"is to be
construed to be a reference to"Contractor and all Subcontractors,whether they
are first-tier subcontractors,sub-subcontractors,suppliers,sub-suppliers,
consultants,or sub-consultants,as well as all of Contractor's and the
Subcontractors'respective agents,representatives,and employees"in every
instance unless the context plainly requires that it is be a reference only to
Contractor as apart from Subcontractors;
2. uses the permissive"may"with respect to a party's actions,determinations,etc.,
the term is to be interpreted as in A.A.C. R2-7-101(31)[Definitions]. For clarity of
intent,any right given to State using"State may"or a like construction denotes
discretion and freedom to act so far as any regulatory or operative constraints
permit in the relevant circumstances, provided that:(a)where written"may,at
its discretion,"the discretion extends to whatever is most advantageous to State;
and(b)where written only as"may,"the discretion is constrained by what is fair,
reasonable,and as accommodating of the respective best interests of both
parties as practicable under the circumstances;
3. uses the imperative"shall"with respect to a party's actions,duties,etc.,the term
is to be interpreted as in A.A.C.R2-7-101(43)[Definitions].Conversely,the
phrase"shall not"is to be interpreted as an imperative prohibition.
4. uses the term"must"with respect to a requirement,criterion,etc.,the term is to
be interpreted as conveying compulsion or strict necessity,and is to be read as
though written"must,if[the subject]is to be entitled to have[the object]
considered or credited as being compliant with, conforming to, or satisfying[the
requirement, criterion,constraint, etc.],otherwise,[the object]will be considered
or debited as being non-compliant,non-conforming, or unsatisfactory for its
Contract-related purposes"in every instance;
5. uses the term"might"with respect to an event,outcome,action,etc.,the term is
to be interpreted as conveying contingency or non-discretionary conditionality;
and
PART 3 of the Solicitation Documents SECTION 3-B:Uniform Terms and Conditions
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6. uses the term"will"or the phrases"is to be"or"are to be"with respect to an
event,outcome,action,etc.,the term or phrase is to be interpreted as conveying
such certainty or imperativeness that"shall"is either unnecessary or irrelevant in
that instance.
2.4 Contract Order 2.4.1 COMPLEMENTARY DOCUMENTS.All of the documents forming the Contract
of Precedence are complementary. If certain work,requirements,obligations,or duties are set out only
in one but not in another,Contractor shall carry out the Work as though the relevant
work, requirements,obligations,or duties had been fully described in all,consistent with
the other documents forming the Contract and as is reasonably inferable from them as
being necessary to produce complete results.
2.4.2 CONFLICTS. In case of any inconsistency,conflict,or ambiguity among the
documents forming the Contract and their provisions,they are to prevail in the following
order,descending from most dominate to most subordinate, provided that,among
categories of documents or provisions having the same rank,the document or provision
with the latest date prevails. Information being identified in one document but not in
another is not to be considered a conflict or inconsistency.
(a) Contract Amendments;
(b) the Solicitation Documents,in the order:
(1) Special Terms and Conditions;
(2) Exhibits to the Special Terms and Conditions;
(3) Uniform Terms and Conditions;
(4) Scope of Work;
(5) Exhibits to the Scope of Work;
(6) Commercial Document;
(7) Exhibits to the Commercial Document;
(8) Specifications;and
(9) any other documents referenced or included in the Solicitation;
(c) Orders,in reverse chronological order;and
(d) Accepted Offer.
2.4.3 ATTACHMENTS AND EXHIBITS. For clarity of intent,if an item was an
Attachment in the Solicitation Documents or an Offer(either Initial, Revised,Best and
Final,or Accepted)and was subsequently made into an Exhibit,or its content was
incorporated into one of the other Contract documents,then that Attachment no longer
exists contractually as an"Attachment"since it has at that point been made into some
other Contract document. In every other case,an Attachment and the Offeror data
therein remain part of the Accepted Offer for purposes of precedence and contractual
effect.
2.5 Independent Contractor is an independent contractor and shall act in an independent capacity in
Contractor performance under the Contract. Neither party is or is to be construed as being to be the
employee or agent of the other party,and no action, inaction,event,or circumstance will
be grounds for deeming it to be so.
2.6 Severability Any term or condition deemed or adjudged illegal or invalid is thereby stricken from the
Contract and will not affect any other term or condition of the Contract.
2.7 Complete The Contract, including any documents incorporated into the Contract by reference,is
Integration intended by the parties as a final and complete expression of their agreement.There are
no prior,contemporaneous,or additional agreements,either oral or in writing,pertaining
to the Contract.
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2.8 No Waiver Either party's failure to insist on strict performance of any term or condition of the
of Rights Contract is not and is not to be construed as being, nor will it be deemed to be,a waiver
of that term or condition or a bar to,or diminishment of the right of,subsequent
enforcement of any term or condition.
3.0 'Contract Administration and Operation
3.1 Term of Contract The term of the Contract will commence on the date indicated on the Acceptance and
continue for the period specified in the Special Terms and Conditions unless canceled,
terminated,or permissibly extended. If the Special Terms and Conditions do not specify
a period,then the initial term is 1 (one)year.State has no obligation to extend or renew
the Contract past the initial term.
3.2 Contract State may at its discretion extend the initial Contract term in increments of one or more
Extensions months and do so one or more times, provided that,the maximum aggregate term of the
Contract including extensions cannot exceed the period specified in the Special Terms
and Conditions. If the Special Terms and Conditions do not specify a period,then the
maximum aggregate term is 5(five)years.
3.3 Notices and 3.3.1 TO CONTRACTOR. Unless stated otherwise in the Special Terms and
Correspondence Conditions,State shall:
(a) address all Contract correspondence other than formal notices to the email
address indicated as"Default for Type"for"General Mailing Address"in Contractor's
corresponding ProcureAZ Vendor Profile;and
(b) address any required notices to Contractor to the"Contact Name and Title"
at the"Mailing Address"indicated on the Accepted Offer,as that address might have
been amended during the term of the Contract.
3.3.2 TO STATE. Unless stated otherwise in the Special Terms and Conditions,
Contractor shall:
(a) address all Contract correspondence other than format notices to the email
address indicated in"Contact Instructions"in the ProcureAZ Summary for State;and
(b) address any required notices to State to Procurement Officer identified as
"Purchaser"in the ProcureAZ Summary at the following mailing address:
Arizona Department of Administration
State Procurement Office
100 N 15th Ave.,Suite 201
Phoenix,AZ 85007
3.3.3 CHANGES.State may change the designated Procurement Officer,update
contact information,or change the applicable mailing address by Contract Amendment.
3.4 Signing of Contract Contractor's counter-signature—or"approval"in ProcureAZ, in the case of a Change
Amendments Order—is not required to give effect if the Contract Amendment only covers either:
1. extension of the term of the Contract within the maximum aggregate term;
2. revision to Procurement Officer appointment or contact information;or
3. modifications of a clerical nature that have no effect on terms,conditions, price,
scope,or other material aspect of the Contract.
In every case other than those listed in(1), (2),and(3)above,both parties'signature—
or"approval"in ProcureAZ, in the case of a Change Order—are required to give it effect.
3.5 Click-Through Unless expressly stated otherwise in the Special Terms and Conditions,if either party
Terms and uses a web based ordering system,an electronic purchase order system,an electronic
Conditions order acknowledgement,a form of an electronic acceptance,or any software based
ordering system with respect to the Contract(each an"Electronic Ordering System"),the
parties acknowledge and agree that an Electronic Ordering System is for ease of
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administration only,and Contractor is hereby given notice that the persons using
Electronic Ordering Systems on behalf of State do not have any actual or apparent
authority to create legally binding obligations that vary from the terms and conditions of
the Contract.Accordingly,where an authorized State user is required to"click through"
or otherwise accept or be made subject to any terms and conditions in using an
Electronic Ordering Systems,any such terms and conditions are deemed void upon
presentation.Additionally,where an authorized State user is required to accept or be
made subject to any terms and conditions in accessing or employing any Materials or
Services,those terms and conditions will also be void.
3.6 Books and 3.6.1 RETAIN RECORDS. By A.R.S.§41-2548(B),Contractor shall retain and shall
Records contractually require each Subcontractor to retain books and records relating for any
cost and pricing data submitted in satisfaction of§41-2543 for the period specified in the
statute.
3.6.2 RIGHT TO AUDIT.The retained books and records are subject to audit by State
during that period.By A.R.S.§41-2548(B),Contractor shall retain and shall contractually
require each Subcontractor to retain books and records relating to performance under
the Contract for the period specified in the statute and those retained books and records
are subject to audit by State during that period.
3.6.3 AUDITING.Contractor or Subcontractor shall either make all such books and
records under subparagraphs 3.6.1 and 3.6.2 available to State at all reasonable times
or produce the records at a designated State office on State's demand,the choice of
which being at State's discretion. For the purpose of this paragraph,"reasonable times"
are during normal business hours and in such a manner so as to not unreasonably
interfere with normal business activities.
3.7 Contractor Contractor shall maintain current all federal,state and local licenses and permits
Licenses required for the operation of its business in general,for its operations under the
Contract,and,unless expressly stated otherwise in the Special Terms and Conditions,
for the Work itself.
3.8 Inspection By A.R.S.§41-2547,State may at reasonable times inspect the part of Contractor's or
and Testing Subcontractors' plant or places of business related to performance under the Contract.
Accordingly,Contractor agrees to permit(for itself)and ensure(for Subcontractors)
access for inspection at any reasonable time to its facilities, processes,and services.
State may inspect or test,at its own cost,any finished goods,work-in-progress,
components,or unfinished materials that are be supplied under the Contract or that will
be incorporated into something to be supplied under the Contract. If the inspection or
testing shows non-conformance or defects,then Contractor will owe State
reimbursement or payment of all costs it incurred in carrying out or contracting for the
inspection and testing,as well as for any re-inspection or re-testing that might be
necessary.Neither inspection of facilities nor testing of goods,work,components,or
unfinished materials will of itself constitute acceptance by State of those things.
3.9 Ownership of 3.9.1 RIGHTS IN WORK PRODUCT.Unless otherwise provided for in the Special
Intellectual Terms and Conditions,all intellectual property originated or prepared by Contractor
Property pursuant to the Contract, including but not limited to, inventions,discoveries,intellectual
copyrights,trademarks,trade names,trade secrets,technical communications,records
reports,computer programs and other documentation or improvements thereto,including
Contractor's administrative communications and records relating to the Contract,are
considered work product and Contractor's property,provided that,State has
Government Purpose Rights to that work product as and when it was delivered to State.
(a) "Government Purpose Rights"are:
i. the unlimited,perpetual, irrevocable,royalty free,non-exclusive,
worldwide right to use, modify,reproduce,release,perform,display,
sublicense,disclose and create derivatives from that work product
without restriction for any activity in which State is a party;
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ii. the right to release or disclose that work product to third parties for any
State government purpose;and
iii. the right to authorize those to whom it rightfully releases or discloses
that work product to use,modify,release,create derivative works from
the work product for any State government purpose;such recipients
being understood to include the federal government,the governments
of other states,and various local governments.
(b) "Government Purpose Rights"do not include any right to use, modify,
reproduce, perform,release,display,create derivative works from,or
disclose that work product for any commercial purpose or to authorize
others to do so.
3.9.2 JOINT DEVELOPMENTS.The parties may each use equally any ideas,
concepts,know-how,or techniques developed jointly during the course of the Contract,
and may do so at their respective discretion,without obligation of notice or accounting to
the other party.
3.9.3 PRE-EXISTING MATERIAL.All pre-existing software and other materials
developed or otherwise obtained by or for Contractor or its affiliates independently of the
Contract or applicable Purchase Orders are not part of the work product to which rights
are granted State under subparagraph 3.9.1 above,and will remain the exclusive
property of Contractor,provided that:
(a) any derivative works of such pre-existing material or elements thereof that
are created pursuant to the Contract are part of that work product;
(b) any elements of derivative work of such pre-existing material that was not
created pursuant to the Contract are not part of that work product;and
(c) except as expressly stated otherwise,nothing in the Contract is to be
construed to interfere or diminish Contractor's or its affiliates'ownership of
such pre-existing materials.
3.9.4 DEVELOPMENTS OUTSIDE OF CONTRACT.Unless expressly stated
otherwise in the Special Terms and Conditions,the Contract does not preclude
Contractor from developing competing materials outside the Contract,irrespective of any
similarity to materials delivered or to be delivered to State hereunder.
3.10 Subcontracts 3.10.1 INITIAL LIST.At the time of Contract execution,Contractor's candidate
Subcontractors were identified in Attachment 3-C to the Accepted Offer[Proposed
Subcontractors].Agreeing to them being included in the Accepted Offer signified
Procurement Officer's advance consent for Contractor to enter into a Subcontract with
each candidate,which Contractor shall do as promptly as necessary to ensure its ability
to carry out the Work in a timely manner.
3.10.2 ADDITIONAL NAMES.Contractor shall not enter into a Subcontract without first
obtaining Procurement Officer's written consent with any prospective Subcontractor that
(a)was not listed on Attachment 3-C at time of Contract execution or(b)is for any
Materials or Services categories other than the ones for which they were previously
consented.For either case(a)or(b),Contractor shall submit a written request
sufficiently in advance of the need date for those materials or services so that
performance under the Contract is not impaired.Procurement Officer may request any
additional information he or she determines is necessary to assess the submittal,and
may withhold consent pending it.
3.10.3 FLOW-DOWN.Contractor shall incorporate the provisions,terms,and
conditions of the Contract into every Subcontract by inclusion or by reference,as
appropriate.When making any post-execution consent requests,Contractor shall include
its warrant that it will do the same for the pending Subcontracts covered by the request.
Entering into Subcontracts will not relieve Contractor of any of its obligations or duties
under the Contract,including,among other things,the duty to supervise and coordinate
the work of Subcontractors. Nothing contained in any Subcontract will create or is to be
construed as creating any contractual relationship between State and the Subcontractor.
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3.11 Non- Contractor shall comply with[Arizona]State Executive Order No.2009-09 and all other
Discrimination applicable federal and state laws,rules,and regulations regarding non-discrimination
and equal opportunity,including the Americans with Disabilities Act.
3.12 E-Verify As required by A.R.S.§41-4401,Contractor and each Subcontractor warrants
Requirements compliance with A.R.S.§23-214(A)and all federal immigration laws and any regulations
relating to the immigration status of their employees.Contractor and each Subcontractor
acknowledge that under A.R.S.§41-4401,State retains the legal right to inspect the
papers of any Contractor or Subcontractor employee who works under the Contract to
ensure that Contractor or Subcontractor is in compliance with the foregoing warranty and
understands that a breach of the foregoing warranty under shall be deemed a material
breach of the Contract that is subject to penalties up to and including termination of the
Contract.
3.13 Offshore Contractor shall only perform those portions of the Services that directly serve State or
Performance its clients and involve access to secure or sensitive data or personal client data within •
of Certain Work the defined territories of the United States.Unless specifically stated otherwise in the
Prohibited Specifications or the Scope of Work,this paragraph does not apply to indirect or '
overhead services, redundant back-up services,or services that are incidental to
performance under the Contract.This provision applies to work performed by
Subcontractors at all tiers.
3.14 Orders 3.14.1 ORDER SUFFICIENCY.The Contract was awarded in accordance with the
Arizona Procurement Code;the transactions and procedures required by the code for
competitive source selection have been met.An Order issued as set forth in the Special
Terms and Conditions that cites the correct State contract number will suffice to
authorize Contractor to provide the Materials and perform the Services covered by that
Order.
3.14.2 ORDER TERMS.All Orders are subject to the Contract Terms and Conditions;
an Order cannot modify the Contract Terms and Conditions.
3.14.3 ORDERS ARE OBLIGATORY. Until the expiration or earlier termination of the
Contract,State may issue and Contractor shall accept Orders that make proper
reference to the Contract and are permissible hereunder, provided that,Contractor is not
obliged to accept any Order that is not consistent with the then-current pricing,lead
times,specifications,or payment provisions of the Contract.Contractor shall fulfill and
complete any Orders that are begun but not yet completed as of expiration or earlier
termination of the Contract unless State instructs otherwise at the time.
3.14.4 SPECIAL CASE. In the special case where both the following conditions are
true,Procurement Officer's signature on the Acceptance is Contractor's authorization to
perform and therefore no Order is required:(a)the Contract is identified as being a
"single-agency/single-project"contract in the Special Terms and Conditions and(b)the
Contract was created in ProcureAZ as something other than a"Master/Blanket"type.
3.14.5 NO MINIMUMS OR COMMITMENTS.Unless expressly stated otherwise in the
Special Terms and Conditions:(a)Contractor shall not impose any minimum dollar
amount, item count,services volume,or services duration on Orders;(b)State makes no
commitment of any kind concerning the quantity or monetary value of activity actually
initiated or completed during the term of the Contract;(c)Contractor shall only deliver or
perform as authorized by Orders;and(d)State is not limited as to the number of Orders
it may issue for the Contract.For clarity of intent,the foregoing applies equally whether
an Eligible Agency issues the Order or, if applicable,a Co-Op Buyer issues it.
3.14.6 NON-CONTRACTED MATERIALS OR SERVICES.Any attempt to knowingly
represent for sales,marketing,or related purposes that goods or services not specifically
awarded are under a State contract is a violation of the Contract and law.
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3.15 Statewide Contract If the Special Terms and Conditions indicate that the Contract is for statewide use,then
Provisions the following provisions apply:
1. Contractor shall verify if an ordering entity is a bona fide Co-Op Buyer before
selling Materials to or providing Services for them under the Contract.The
current list of Co-Op Buyers is available on the State Procurement Office
website:
https:llspo.az.gov/procurement-serviceslcooperative-procurement/state-purchasing-cooperative
2. Contractor shall sell to Co-Op Buyers at the same price and on the same lead
times and other terms and conditions under which it sells to Eligible Agencies,
with the sole exception of any legitimately additional costs for extraordinary
shipping or delivery requirements if the Co-Op Buyer is having Materials
delivered or installed or Services performed at locations not contemplated in the
contracted pricing(e.g.delivery to a location outside Arizona).
3. Contractor shall pay State an administrative fee against all Contract sales to
Co-Op Buyers,as provided for under A.R.S.§41-2633.The fee rate is specified
in the Special Terms and Conditions. Failure to remit the administrative fees is a
material breach of contract,and will entitle State to its remedies under Article 8
and its right to terminate for default under Article 9.Method of calculation,
payment procedures,and other details are provided on the State Procurement
Office website:
https:/Ispo.az.gov/contractor-resources/statewide-contracts-administrative-fee
4. Contractor shall submit to State a quarterly usage report documenting all
Contract sales to both Eligible Agencies and Co-Op Buyers,itemized separately.
Contractor shall further itemize divisions,groups or areas within a given Eligible
Agency if they place Orders independently of each other. Failure to submit the
report is a material breach of contract,and will entitle State to its remedies under
Article 8 and its right to terminate for default under Article 9.Contractor shall
submit the report using the forms and following the instructions on the State
Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
5. Contractor shall acknowledge each Order from Eligible Agencies within 1 (one)
business day after receipt by either:(a)"approving"the Order electronically in
ProcureAZ,which will indicate Contractor's unqualified acceptance of the Order
as-issued;or(b)"rejecting"the Order electronically in ProcureAZ,with a
concurrent explanation by email to relevant originator as to the reason for
rejecting it. By way of reminder,the only grounds on which Contractor may reject
or refuse an Order are those set out in subparagraph 3.14.3[Orders are
Obligatory]. Unless and until Contractor has approved the Order in ProcureAZ,
it will have no effect under the Contract and will not oblige either State or
Contractor. If the relevant Eligible Agency explicitly instructs at the time that a
verbal acceptance is sufficient because of urgency or other unusual
circumstances and Contractor duly gives its verbal acceptance,then Contractor
will be deemed to have accepted the Order immediately upon commencing
performance, provided that,Contractor must follow-up its verbal acceptance by
accepting the Purchase Order electronically in ProcureAZ within 3(three)
business days.Contractor shall thereafter be barred from subsequently rejecting
the Order in ProcureAZ and if it does so the rejection will be void.
6. Contractor shall acknowledge each Order from Co-Op Buyers in conformance
with each buyer's instructions given at the time of ordering or in any
supplemental participating agreement Contractor might have with them.Orders
from Co-Op Buyers create no obligation on State's part,since they are entirely
between the Co-Op Buyer and Contractor.That notwithstanding,Contractor's
obligation under the Contract is to service Co-Op Buyers commercially as though
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they were with an Eligible Agency,and Contractor's refusal to do so would be a
material breach of the Contract.
3.16 Multiple-Use If the Special Terms and Conditions indicate that the Contract is for statewide use,then
Provisions Eligible Agencies may issue Orders for Services in several forms,all of which become
final and effective by a"Release Purchase Order"in ProcureAZ.Orders issued by
Co-Op Buyers will be in whatever form the Co-Op Buyer normally uses. Regardless of
origin,Orders must cite the State contract number to be valid.State may,at its discretion
in each instance,determine the scope,schedule,and price for each Order in any of the
following ways:
1. By choosing some or all of the Materials or Services items covered by the
Contract for which a price is established in the Commercial Document,then
preparing an Order using those prices(e.g.,filling out an order form),and
sending it to Contractor.
2. By instructing Contractor to provide a comprehensive proposal of item quantities,
combinations,etc.,or services hours, personnel,etc.,for a defined scope using
those established prices as a basis,then validating and negotiating the proposal
with Contractor and issuing an Order if and when reaching agreement.
3. As described in(2)above but requesting the proposal from both Contractor and
other vendors who are contracted within the applicable scope categories and
locations,either sequentially or concurrently,then selecting the proposal or
proposals combination that is most advantageous to State.
4. As described in(3)above but introducing ad-hoc commercial competition by
making the selection and ordering conditional on obtaining more favorable prices
than the contractually-established ones.
When evaluating the proposals under(3)and(4)above,State may select based on
price(for example,a quoted number of hours times the contracted or improved rate plus
a fixed amount for incidentals),by experience and qualifications(for example,having an
office nearer the required work location),or whatever combination thereof it determines
is most appropriate to the work in question.
3.17 Other State may undertake with its own forces or award other contracts to the same or other
Contractors vendors for additional or related work. In such cases,Contractor shall cooperate fully
with State's employees and such other vendors and carefully coordinate,fit,connect,
accommodate,adjust,or sequence its work to the related work by others.Where the
Contract requires handing-off Contractor's work to others,Contractor shall cooperate as
State instructs regarding the necessary transfer of its work product,services,or records
to State or the other vendors.Contractor shall not commit or permit any act that
interferes with the State's or other vendors'performance of their work,provided that,
State shall enforce the foregoing section equitably among all its vendors so as not
impose an unreasonable burden on any one of them.
3.18 Work on State 3.20.1 COMPLIANCE WITH RULES.Contractor is responsible for ensuring that its
Premises personnel comply with State's rules,regulations, policies,documented practices,and
documented operating procedures while delivering or installing Materials or performing
Services on State's grounds or in its facilities. For clarity of intent,the foregoing means
that if Contractor is required to comply with certain security requirements in order to
deliver, install,or perform at that particular location,then it shall do so nonetheless and
without entitlement to any additional compensation or additional time for performance if
those particular requirements are not expressly stated in the Contract.Contractor is
reminded that violation of the prohibition under A.R.S.§13-1502 against possession of
weapons on State's property by anyone for whom Contractor is responsible is a material
breach of contract and grounds for termination for default.
3.20.3 PROTECTION OF GROUNDS AND FACILITIES.Contractor shall deliver or
install the Materials and perform the Services without damaging any State grounds or
facilities.Contractor shall repair or replace any damage it does cause promptly and at its
own expense,subject to whatever instructions and restrictions State needs to make to
prevent inconvenience or disruption of operations. If Contractor fails to make the
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ADSPO17-00007213 100 N 15th Ave.,Suite 201
Description: Phoenix,AZ 85007
Auctioneering Services
necessary repairs or replacements and do so in a timely manner,State will be entitled to
exercise its remedies under paragraph 8.5[Right of Offset].
3.19 Advertising, Contractor shall not advertise, promote,or otherwise use information concerning the
Publishing and Contract for commercial benefit without the prior written approval of Procurement Officer,
Promotion of which approval Procurement Officer may withhold at his or her discretion.
Contract
4.0 Costs and Payments
4.1 Payments 4.1.1 PAYMENT DEADLINE.State shall make payments in compliance with Arizona
Revised Statues Titles 35 and 41.Unless and then only to the extent expressly stated
otherwise in the Commercial Document,State shall make payment in full for Materials
that have been delivered and accepted and Services that have been performed and
accepted within the time specified in A.R.S.§35-342 after both of the following become
true:(a)all of the Materials being invoiced have been delivered or installed(as
applicable)and accepted and all of the Services being invoiced have been performed
and accepted;and(b)Contractor has provided a complete and accurate invoice in the
form and manner called for in the Commercial Document, provided that,State will not
make or be liable for any payments to Contractor until Contractor has registered properly
in ProcureAZ and provided a current IRS Form W-9 to State unless excused by law from
providing one.
4.1.2 PAYMENTS ONLY TO CONTRACTOR. Unless compelled otherwise by
operation of law or order of a court of competent jurisdiction,State will only make
payment to Contractor under the federal tax identifier indicated on the Accepted Offer.
4.2 Applicable 4.3.1 CONTRACTOR TO PAY ALL TAXES.State is subject to Arizona TPT.
Taxes Therefore,Arizona TPT applies to all sales under the Contract and Arizona TPT is
Contractor's responsibility(as seller)to remit.Contractor's failure to collect Arizona TPT
or any other applicable sales or use taxes from an Eligible Agency or Co-Op Buyer(as
buyer)will not relieve Contractor of any obligation to remit sales or use taxes that are
due under the Contract or laws.Unless stated otherwise in the Commercial Document,
all prices therein include Arizona TPT as well as every other manner of transaction
privilege or sales/use tax that is due to a municipality or another state or its political
subdivisions. Contractor shall pay all federal,state,and local taxes applicable to its
operations and personnel.
4.3.2 TAX INDEMNITY.Contractor shall hold State harmless from any responsibility
for taxes or contributions,including any applicable damages and interest,that are due to
federal,state,and local authorities with respect to the Work and the Contract,as well
any related costs;the foregoing expressly includes Arizona TPT, unemployment
compensation insurance,social security,and workers'compensation insurance.
4.3 Availability By A.R.S.§35-154,every State payment obligation under the Contract is conditioned on
of Funds the availability of funds appropriated for payment of that obligation. If funds are not
appropriated and available for continuance of the Contract,State may terminate the
Contract at the end of the period for which funds are available,or,at State's discretion,
allow appropriate amendment to the Contract.No liability will accrue to State if it
exercises the foregoing right or discretion,and State will have no obligation or liability for
any future payments or for any damages as a result of having exercised it.
5.0 Contract Changes
5.1 Contract The Contract is issued for State under the authority of Procurement Officer.Only a
Amendments Contract Amendment can modify the Contract,and then only if it does not change the
Contract's general scope. Purported changes to the Contract by a person not expressly
authorized by Procurement Officer or made unilaterally by Contractor will be void and
without effect;Contractor will not be entitled to any claim made under the Contract based
on any such purported changes.
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Page 12 of 28
a b i ti o .n a t Procure , A Z . d o v
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5.2 Assignment and 5.2.1 IN WHOLE.Contractor shall not assign in whole its rights or delegate in whole
Delegation its duties under the Contract without Procurement Officer's prior written consent,which
consent Procurement Officer may withhold at his or her discretion. If Contractor's
proposed assignment or delegation stems from a split,sale,acquisition,or other non-
merger change in control,then no such consent will be given in any event without the
assignee or delegate giving State satisfactory and equivalent evidence or assurance of
its financial soundness,competency,capacity,and qualification to perform as that which
Contractor possessed when State first awarded it the Contract.
5.2.2 IN PART.Subject to paragraph 3.10[Subcontracts]with respect to
subcontracting,Contractor may assign particular rights or delegate particular duties
under the Contract, but shall obtain Procurement Officer's written consent before doing
so. Procurement Officer shall not unreasonably withhold consent so long as the
proposed assignment or delegation does not attempt to modify the Contract in any way
or to alter or impair State's rights or remedies under the Contract or laws.
,
6.0 Risk and Liability
6.1 Risk of Loss Contractor shall bear all risk of loss to Materials while in pre-production, production,
storage,transit,staging,assembly, installation,testing,and commissioning,if and as
those duties are within the scope of the Work,until they have been accepted as
conforming by State in the particular location and situation specified in the Order,or as
specified generally elsewhere in the Contract if the Order does not provide particulars,
provided that,risk of loss for nonconforming Materials will remain with Contractor
notwithstanding acceptance to the extent the loss stems from the nonconformance.
6.2 Contractor Contractor shall provide the insurance called for in the Special Terms and Conditions.
Insurance
6.3 Basic 6.3.1 CONTRACTOR/VENDOR(NOT PUBLIC AGENCY).To the fullest extent
Indemnification permitted by law,Contractor shall defend, indemnify,and hold harmless State
Indemnitees from Indemnified Basic Claims that:(a)are caused or alleged to be caused
in whole or in part by the negligent or willful acts or omissions of a Contractor Indemnitor;
(b)arise out of or are recovered under worker compensation laws;and/or(c)arise out of
a Contractor Indemnitor's failure to conform to any federal,state,or local law,statute,
ordinance,rule,regulation,or court decree.The parties specifically intend that the
Contractor Indemnitors shall indemnify the relevant State Indemnitees from and against
Indemnified Basic Claims in all instances except where the Indemnified Basic Claim
arises solely from those State Indemnitees'own negligent or willful acts or omissions.
Wherever the indemnification under this subparagraph applies,Contractor is responsible
for primary loss investigation,defense,and judgment costs for an on behalf of the other
Contractor Indemnitors with respect to State Indemnitees,and accordingly Contractor is
also responsible for any cooperation,contribution,or subordination between or amongst
the Contractor Indemnitors. In consideration of the award of the Contract by a State
Indemnitee,Contractor hereby waives all rights of subrogation against State Indemnities
for losses arising from the Work.
If Contractor is a public agency,this paragraph does not apply and subparagraph 6.3.2
below applies instead.
6.3.2 PUBLIC AGENCY.Each party(as'indemnitor')agrees to indemnify,defend,
and hold harmless the other party(as'indemnitee')from and against any and all claims,
losses, liability,costs,or expenses(including reasonable attorney's fees)(hereinafter
collectively referred to as'claims')arising out of bodily injury of any person(including
death)or property damage but only to the extent that such claims which result in
vicarious/derivative liability to the indemnitee,are caused by the act,omission,
negligence, misconduct,or other fault of the indemnitor, its officers,officials,agents,
employees,or volunteers.
If Contractor is not a public agency,this paragraph does not apply and subparagraph
6.3.1 above applies instead.
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
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; i 1 a b l e o n I i ❑ e a t P r o c u r e . A Z . _ci o v_.,.
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6.4 Patent and CONTRACTOR/VENDOR(NOT PUBLIC AGENCY).With respect to Materials or
Copyright Services provided or proposed by a Contractor Indemnitor for performance under the
Indemnification Contract,Contractor shall indemnify,defend and hold harmless State Indemnitees
against any third-party claims for liability,costs,and expenses,including,but not limited
to reasonable attorneys'fees,for infringement or violation of any patent,trademark,
copyright,or trade secret by the Materials and the Services.With respect to the defense
and payment of claims under this subparagraph:
1. State shall provide reasonable and timely notification to Contractor of any claim
for which Contractor may be liable under this paragraph;
2. Contractor,with reasonable consultation from State,shall have control of the
defense of any action on an indemnified claim including all negotiations for its
settlement or compromise;
3. State may elect to participate in such action at its own expense;and
4. State may approve or disapprove any settlement or compromise,provided that,
(i)State shall not unreasonably withhold or delay such approval or disapproval
and(ii)State shall cooperate in the defense and in any related settlement
negotiations.
If Contractor is a public agency,this paragraph 6.4 does not apply.
6.5 Force Majeure 6.5.1 DEFINITION. For this paragraph,"force majeure"means an occurrence that is
(a)beyond the control of the affected party,(b)occurred without the party's fault or
negligence,and(c)something the party was unable to prevent by exercising reasonable
diligence.Without limiting the generality of the foregoing,force majeure expressly
includes acts of God,acts of the public enemy,war,riots,strikes, mobilization,labor
disputes,civil disorders,fire,flood,lockouts,injunctions-intervention-acts,failures or
refusals to act by government authorities,and,subject to paragraph 7.8[Performance in
Public Health Emergency],declared public health emergencies.Force majeure expressly
does not include late delivery caused by congestion at a manufacturer's plant or
elsewhere,an oversold condition of the market,late performance by a Subcontractor
unless the delay arises out of an occurrence of force majeure,or inability of either
Contractor or any Subcontractor to acquire or maintain any required insurance, bonds,
licenses,or permits.
6.5.2 RELIEF FROM PERFORMANCE. Except for payment of sums due,the parties
are not liable to each other if an occurrence of force majeure prevents its performance
under the Contract. If either party is delayed at any time in the progress of their
respective performance under the Contract by an occurrence of force majeure,the
delayed party shall notify the other no later than the following working day after the
occurrence,or as soon as it could reasonably have been expected to recognize that the
occurrence had effect in cases where the effects were not readily apparent. In any
event,the notice must make specific reference to this paragraph specifying the causes
of the delay in the notice and, if the effects of the occurrence are on-going, provide an
initial notification and thereafter the delayed party shall provide regular updates until
such time as the effects are fully known.To the extent it is able,the delayed party shall
cause the delay to cease promptly and notify the other party when it has done so.The
parties shall extend the time of completion by Contract Amendment for a period equal to
the time that the results or effects of the delay prevented the delayed party from
performing.
6.5.3 EXCUSABLE DELAY IS NOT DEFAULT. Failure in performance by either party
will not constitute default hereunder or give rise to any claim for damages or loss of
anticipated profits if and to the extent that such failure was or is being caused by an
occurrence of force majeure.
6.5.4 DEFAULT DIMINISHES RELIEF.Entitlement to relief from the effects of an
occurrence of force majeure is diminished to the extent that the delay did or will result
from the affected party's default unrelated to the occurrence, in which case and to that
extent the other party's normal remedies and the affected party's obligations would apply
undiminished.
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Page 14 of 28
a a t P r o c u r e . A 2 . g o v .
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6.6 Third Party Contractor assigns to State any claim for overcharges resulting from antitrust violations
Antitrust to the extent that those violations concern materials or services supplied by third parties
Violations to Contractor toward fulfillment of the Contract.
7.0 Warranties
7.1 Liens Contractor warrants that the Materials and Services when accepted will be and will
remain free of liens or other encumbrances.
7.2 Conformity to Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract,
Requirements the Materials and Services will for 1 (one)year after acceptance and in each instance:
(1)conform to the requirements of the Contract,which by way of reminder include
without limitation all descriptions,specifications,and drawings identified in the Scope of
Work and any Contractor affirmations included as part of the Contract;(2)be free from
defects of material and workmanship;(3)conform to or perform in a manner consistent
with current industry standards;and(4)be fit for the intended purpose or use described
in the Contract.Mere delivery or performance does not substitute for express
acceptance by State.Where inspection,testing,or other acceptance assessment of
Materials or Services cannot be done until after installation,the forgoing warranty will not
begin until State's acceptance.
7.3 Contractor Contractor warrants that its personnel will perform their duties under the Contract in a
Personnel professional manner,applying the requisite skills and knowledge,consistent with
industry standards,and in accordance with the requirements of the Contract.Contractor
further warrants that its key personnel will maintain any certifications relevant to their
work,and Contractor shall provide individual evidence of certification to State's
authorized representatives upon request.
7.4 Intellectual Contractor warrants that the Materials and Services do not and will not infringe or violate
Property any patent,trademark,copyright,trade secret,or other intellectual property rights or
laws,except only to the extent the Specifications do not permit use of any other product
and Contractor is not and cannot reasonably be expected to be aware of the
infringement or violation.
7.5 Compliance Contractor warrants that the Materials and Services do and will continue to comply with
with Laws all applicable federal,state,and local laws,except only to the extent the Specifications
do not permit use of any other product and Contractor is not and cannot reasonably be
expected to be aware of the non-compliance.
7.6 Licenses and Contractor warrants that it will maintain all licenses required under paragraph 3.7
Permits [Contractor Licenses]and all required permits valid and in force.
7.7 Operational Contractor warrants that it will perform without relief notwithstanding being sold or
Continuity acquired;no such event will operate to mitigate or alter any of Contractor's duties
hereunder absent a consented delegation under paragraph 5.2[Assignment and
Delegation]that expressly recognizes the event.
7.8 Performance in Contractor warrants that it will:
Public Health 1. have in effect promptly after commencement a plan for continuing performance
Emergency in the event of a declared public health emergency that addresses,at a
minimum:(a)identification of response personnel by name;(b)key succession
and performance responses in the event of sudden and significant decrease in
workforce;and(c)alternative avenues to keep sufficient product on hand or in
the supply chain;and
2. provide a copy of its current plan to State within 3(three)business days after
State's written request. If Contractor claims relief under paragraph 6.5[Force
Majeure]for an occurrence of forge majeure that is a declared public health
emergency,then that relief will be conditioned on Contractor having first
implemented its plan and exhausted all reasonable opportunity for that plan
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions
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Page 15 of 28
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implementation to overcome the effects of that occurrence,or mitigate those
effects to the extent that overcoming entirely is not practicable.
For clarification of intent, being obliged to implement the plan is not of itself an
occurrence of force majeure,and Contractor will not be entitled to any additional
compensation or extension of time by virtue of having to implement it. Furthermore,
failure to have or implement an appropriate plan will be a material breach of contract.
7.9 Lobbying 7.11.1 PROHIBITION.
(a) Contractor warrants that:
i. it will not engage in lobbying activities,as defined in 40 CFR part 34
and A.R.S.§41-1231,et seq., using monies awarded under the
Contract, provided that,the foregoing does not intend to constrain
Contractor's use of its own monies or property, including without
limitation any net proceeds duly realized under the Contract or any
value thereafter derived from those proceeds;and
ii. upon award of the Contract, it will disclose all lobbying activities to
State to the extent they are an actual or potential conflict of interest or
where such activities could create an appearance of impropriety.
(b) Contractor shall implement and maintain adequate controls to assure
compliance with(a)above.
(c) Contractor shall obtain an equivalent warranty from all Subcontractors and
shall include an equivalent no-lobbying provision in all Subcontracts.
7.11.2 EXCEPTION.This paragraph does not apply to the extent that the Services are
defined in the Contract as being lobbying for State's benefit or on State's behalf.
7.10 Survival of All representations and warrants made by Contractor under the Contract will survive the
Warranties expiration or earlier termination of the Contract.
8.0 State's Contractual Remedies
8.1 Right to If State in good faith has reason to believe that Contractor does not intend to,or is
Assurance unable to,perform or continue performing under the Contract,Procurement Officer may
demand that Contractor promptly provide written assurance of intent to perform. Failure
by Contractor to provide the assurance within the time specified may be the basis for
terminating the Contract or for State to exercise any other remedy available to it under
the Contract or laws.
8.2 Stop Work The State may at any time require Contractor to stop all or any part of the Work by
Order written order.Upon receipt of a stop order,Contractor shall immediately comply with its
terms and take all reasonable steps to minimize incurring of further costs during the
period of stoppage that might be chargeable to State associated with the portions of the
Work covered by the order. If Contractor incurs losses,it may make a claim under
Article 10.
8.3 Non-exclusive State's rights and remedies under the Contract are not exclusive.
Remedies
8.4 Nonconforming The Materials provided and Services performed must comply fully with the Contract,and
Tender providing Materials or performing Services or any portion thereof that do not comply fully
constitutes a breach of contract,in which event State will be entitled to exercise any
remedy available to it under the Contract or laws.
8.5 Right of Offset State is entitled to offset against any sums due Contractor any expenses or costs State
incurs or damages it has assessed against it concerning Contractor's non-conforming
performance or failure to carry out the Work,including any expenses,costs,and
damages to which it is entitled by the Contract or laws.
PART 3 of the Solicitation Documents. SECTION 3-B:Uniform Terms and Conditions
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Page 16 of 28
A v a i l a b l e online a t P r o c u r e , A Z . 54 o v
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9.0 Contract Termination
9.1 Termination By A.R.S.§38-511,State may terminate the Contract within 3(three)years after the
for Conflict of effective date without penalty or further obligation if any Person significantly involved in
Interest initiating, negotiating,securing,drafting,or creating the Contract on behalf of State is or
becomes an employee or agent of any other party to the Contract in any capacity or a
consultant to any other party to the Contract with respect to the subject matter of the
Contract.Any such termination will be effective when Contractor receives State's written
notice of the termination unless the notice specifies a later date.
9.2 Gratuities State may, by written notice,terminate the Contract, in whole or in part,if State
determines that employment or a Gratuity was offered or made by Contractor or a
representative of Contractor to any officer or employee of State for the purpose of
influencing the outcome of the procurement or the administration of the Contract or any
favorable treatment concerning the Contract or performance of the Contract.State,in
addition to any other rights or remedies available to it,will be entitled to recover
exemplary damages in the amount of 3(three)times the value of the Gratuity offered by
Contractor.
9.3 Suspension or State may,by written notice to Contractor,terminate the Contract immediately if State
Debarment discovers that Contractor has been debarred,suspended or otherwise lawfully prohibited
from participating in any public procurement activity, including but not limited to,being
disapproved as a subcontractor of any public procurement unit or other governmental
body.State has taken Contractor's submittal of the Accepted Offer and will take its
performance under the Contract as Contractor's attestation that it is not currently
suspended or debarred. If Contractor subsequently becomes suspended or debarred, it
shall notify Procurement Officer immediately.
9.4 Termination for State may terminate the Contract when in the best interest of State, in whole or in part,
Convenience at any time,and without penalty or recourse on Contractor's part other than as expressly
stated in the Contract. Upon receipt of State's written termination notice,Contractor shall
stop work as directed in the notice, notify all Subcontractors of the termination and its
effective date,and minimize any further costs that might be chargeable to State. In the
event of termination under this paragraph,all documents,data,and reports prepared by
Contractor under the Contract will become State's property and Contractor shall deliver it
all promptly on demand.Contractor will be entitled to receive just and equitable
compensation for necessary and attributable unfinished materials on hand,work in
progress,work completed,and work accepted before the effective date of the
termination,provided that,the cost principles and procedures in A.A.C. R2-7-701 are to
be applied.
9.5 Termination for In addition to the rights reserved to it under the Contract,State may terminate the
Default Contract in whole or in part due to Contractor's failure to:(a)comply with any term or
condition of the Contract;(b)obtain and maintain all required insurance policies,bonds,
licenses,and permits;or(c)make satisfactory progress in carrying out the Work.
Procurement Officer shall give written notice of the termination and the reasons for it.
Upon termination under this paragraph,all documents,data and reports prepared by
Contractor under the Contract and all necessary and attributable unfinished materials on
hand,work in progress,work completed,and work accepted will become State's
property,and Contractor shall deliver all of it immediately on demand.State may,
following termination of the Contract under this paragraph,procure on terms and in the
manner it determines to be appropriate materials or services to replace those that were
to have been provided or performed by Contractor,and Contractor will be liable to State
for any excess cost State incurs in procuring such substitutes.
9.6 Continued Contractor shall continue to perform in accordance with the requirements of the Contract
Performance up to the effective date of any termination,as directed by State in the notice.
Required
PART 3 of the Solicitation Documents SECTION 3-B:Uniform Terms and Conditions
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10.0 Contract Claims
10.1 Claim Notwithstanding any law to the contrary,all contract claims or controversies under
Resolution the Contract are to be resolved according to Arizona Revised Statutes Title 41,
Chapter 23,Article 9,and rules adopted thereunder,including judicial review under
A.R.S.§12-1518.
10.2 Mandatory In compliance with A.R.S.§12-1518,the parties agree to comply in a judicial review
Arbitration proceeding with any applicable, mandatory arbitration requirements.
11.0 General Provisions for Materials
11.1 Applicability Article 11 applies to the extent the Work is or includes Materials.
11.2 Off-Contract Contractor shall ensure that the design and/or procedures for the Materials ordering
Materials method prevents Orders for off-contract items or excluded items.Notwithstanding that
State might have its own internal administrative rules regarding off-contract or excluded
item ordering,and endeavors to prevent such orders from occurring,Contractor is
responsible for not accepting any such Orders;State may,at its discretion, return any
such items under subparagraph 11.17 or cancel any such Order under subparagraph
11.18, in either case being without obligation and at Contractor's expense.As used
above,"off-contract item"refers to any product not included in the scope of the Contract
and for which no price or compensation has been established contractually,and
"excluded item"refers to any product expressly stated in the Contract as being excluded
from the Contract.
11.3 Compensation for Contractor shall have clear, published policies in place regarding late delivery,order
Late Deliveries cancelation,discounts,or rebates given to compensate for late deliveries,etc.,and make
them readily available to those Eligible Agencies,and Co-Op Buyers if applicable,that
are likely to need them.
11.4 Indicate Shipping Contractor shall identify and provide the required substantiating documentation for the
Costs on Order amount it intends to add for shipping in the Order acknowledgment if shipping is
additional to the contracted price or rate for an item;otherwise,Contractor shall indicate
that shipping is included in the Order price(in other words,every Order must indicate
clearly whether or not shipping is included in the Order price,and if not included,how
much is to be added and why that amount is the correct or appropriate one).
11.5 Current Products Contractor shall keep all products being offered under the Contract:(a)in current and
ongoing production;(b)in its advertised product lines;(c)as models or types that are
actively functioning in other paying customer environments;and(d)in conformance to
the requirements of the Contract.
11.6 Maintain Contractor shall provide at all times the comprehensive selection of products for which a
Comprehensive price is established in the Commercial Document for ordering by Eligible Agencies,and
Selection Co-Op Buyers if applicable.
11.7 Additional State,at its discretion, may modify the scope of the Contract by Contract Amendment to
Products include additional products or product categories so long as they are within the general
scope of the ones originally covered by the Contract.Once the Contract Amendment has
been fully executed,Contractor shall then update all applicable catalogs and price lists
and make them available to all affected entities at no additional cost.Either party may
make the request to add products to the Contract;regardless of who makes the request,
the parties shall negotiate in good faith a fair price for any additional products, but State
may elect not to add some or all of the products in question if no agreement is reached
on pricing in a timely manner.Contractor's request or proposal in response to State's
request must include:(a)documentation demonstrating that the additional products meet
or exceed the specifications for the original products while remaining in the same product
groups as the original ones;and(b)documentation demonstrating that the proposed
price for the additional products is both fair and reasonable and at the same level of
PART 3 of the Solicitation Documents SECTION 3-B:Uniform Terms and Conditions
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Avail a b l e o n l i r, e a t P r o c u r e . A Z . ca o v
Oirotsr)
Requests for Proposals Arizona Department of Administration Solicitation No. State Procurement Office
c. ADSP017-00007213 10o N 15th Ave.,suite 201
Description: Phoenix,AZ 85007
Auctioneering Services
discount relative to market price as were the original ones. Demonstration of(b)typically
requires showing how prices at which sales are currently or were last made to a
significant number of buyers compare to the prices or discounts(as applicable)being
proposed for the additional products.
11.8 Discontinued If a product or groups of products covered by the Contract are discontinued by the
Products manufacturer,Contractor shall notify State within 5(five)business days after receiving
the manufacturer's notification.State,at its discretion,will either allow Contractor to
provide substitutes for the discontinued products or delete the products from the scope of
the Contract, both of which will be accomplished by Contract Amendment. Contractor
shall then update all applicable catalogs and price lists and make them available to all
affected entities at no additional cost.The parties shall negotiate in good faith a fair price
for any substitute product,but State may elect to delete the products from the scope of
the Contract if no agreement is reached on substitute pricing in a timely manner.When
notifying State of the discontinuance,Contractor shall provide:(a)manufacturer's
announcement or documentation stating that the products have been discontinued,with
identification by model/part number;(b)documentation demonstrating that the substitute
products meet or exceed the specifications for the discontinued products while remaining
in the same product groups as were the discontinued ones;and(c)documentation
demonstrating that the proposed price for the substitute products is both fair and
reasonable and at the same level of discount relative to market price as were the
discontinued ones(with demonstration being as described in subparagraph 11.7).
11.9 Forced Forced substitutions will not be permitted;Contractor shall obtain State's prior written
Substitutions consent before making any discretionary substitution for any product covered by the
Contract.
11.10 Recalls In the event of a recall notice,technical service bulletin,or other important notification
affecting a product offered under the Contract(collectively,"recalls"hereinafter),
Contractor shall send timely notice to State for each applicable Order referencing the
affected Order and product.Notwithstanding whatever protection Contractor might have
under A.R.S.§12-684 with respect to a manufacturer,Contractor shall handle recalls
entirely and without obligation on State's part,other than to permit removal of installed
products,retrieval of stored products,etc.,as necessary to implement the recall.
11.11 Delivery 11.11.1 PRICING. Unless stated otherwise in the Commercial Document,all Materials
prices set forth therein are FCA(seller's dock)Incoterms®2010,with"seller's dock"
meaning the last place of manufacturing,assembly,integration,final packing,or
warehousing before departure to designated point of delivery to State. For reference,the
foregoing is to be construed as equivalent to"F.o.b.Origin,Contractor's Facility"under
FAR 52.247-30.
11.11.2 LIABILITY.Unless stated otherwise in the Commercial Document or an Order,
Contractor's liability for all Materials is DDP(State-designated receiving point per Order)
Incoterms®2010, but with unloading at destination included. For reference,the foregoing
is to be construed as equivalent to"F.o.b.Destination,Within Consignee's Premises"
under FAR 52.247-35.
11.11.3 PAYMENT. Unless stated otherwise in the Commercial Document or an Order,
State shall reimburse Contractor the costs of the difference between DDP(State-
designated receiving point per Order)and FCA(seller's dock)with no mark-up,which
Contractor shall itemize and invoice separately.
11.12 Delivery Time Unless stated otherwise in the Commercial Document generally or in the applicable
Order particularly,Contractor shall make delivery within 2(two)business days after
receiving each Order.
PART 3 of the Solicitation Documents: SECTION 3-B:Uniform Terms and Conditions A
Contract Terms and Conditions Version 11.3(7/21/2016) 3
Page 19 of 28
Available o n l i n e at Procure . A Z , g o v
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Solicitation No. State Procurement Office
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11.13 Delivery Locations Contractor shall offer deliveries to every location served under the scope of the Contract,
specifically:
1. if the Contract is for a single State agency in a single area,then Contractor shall
deliver to any agency location in that area;
2. if the Contract is for a single State agency in all its locations,then Contractor
shall deliver to any of that agency's location in Arizona;
3. if the Contract is for statewide use but excludes certain areas,then Contractor
shall deliver to any Eligible Agency or Co-Op Buyer location that is not in the
excluded areas;and
4. if the Contract is for unrestricted statewide use,then:
(a) Contractor shall deliver to any Eligible Agency or Co-Op Buyer anywhere in
Arizona;
(b) if a prospective Co-Op Buyer outside Arizona wishes to order against the
Contract,Contractor agrees to negotiate in good faith any fair and
reasonable price or lead time adjustments necessary to serve that location
if practicable to do so within the scope of its normal business;and
(c) if the Commercial Document indicates defined delivery areas and prices,
those always apply unless the Order expressly states otherwise and
Contractor accepts it.
11.14 Conditions at Contractor shall verify receiving hours and conditions(i.e. height/weight restrictions,
Delivery Location access control,etc.)with the relevant purchaser for the receiving site before scheduling
or making a delivery.State will neither allow extra charges for wait time,comebacks,or
the like nor excuse late delivery if Contractor has failed to make the verification or comply
with the applicable conditions.Contractor shall make each delivery to the specific
location indicated in the Order,which Contractor acknowledges might be inside an
industrial building, institutional building, low-rise office building,or high-rise office building
instead of a normal receiving dock.Contractor might be required to make deliveries to
locations inside a secured perimeter at certain institutional facilities such as prisons
where prior clearances are required for each delivery and driver individually.Contractor
shall contact each such facility directly to confirm its most-current security clearance
procedures,allowable hours for deliveries,visitor dress code,and other applicable rules.
State will neither allow extra charges for wait time,comebacks,or the like nor excuse late
delivery if Contractor has failed to make the confirmation or comply with the applicable
conditions.
11.15 Materials State has the right to make acceptance of Materials subject to a complete inspection on
Acceptance delivery and installation,if installation is Contractor's responsibility.State may apply as
acceptance criteria conformity to the Contract,workmanship and quality,correctness of
constituent materials,and any other matter for which the Contract or applicable laws
state a requirement,whether stated directly or by reference to another document,
standard,reference specification, etc.Contractor shall remove any rejected Materials
from the delivery location,or from any immediate environs to which it might have been
reasonably necessary to move it,carry it off the delivery premises,and subsequently
deliver an equal number or quantity of conforming items.State will not owe Contractor
any payment for rejected Materials,and State may,at its discretion,withhold or make
partial payment for any rejected Materials that have been returned to Contractor in those
instances where State has agreed to permit repair instead of demanding replacement.
11.16 Correcting Defects Contractor shall,at no additional cost and without entitlement to extension of any delivery
deadline or specified time for performance,remove or exchange and replace any
defective or non-conforming delivered or installed Materials.
1. Contractor shall be solely responsible for the cost of any associated cutting and
patching,temporary protection measures, packing and crating, hoisting and
loading,transportation, unpacking,inspection,repacking,reshipping,and
reinstallation if installation is within the scope of the Contract.
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2. If Contractor fails to do so in a timely manner,State will be entitled to exercise its
remedies under paragraph 8.5[Right of Offset]of the Uniform Terms and
Conditions.
3. Whether State will permit Contractor to repair in place or demands that
Contractor remove and replace is at State's discretion in each instance, provided
that,State shall not apply that discretion punitively if repair in place is practicable
and doing so would not create safety hazards, put property at risk,unreasonably
interfere with operations,create public nuisance,or give rise to any other
reasonable concern on State's part.
11.17 Returns State may,at its discretion,return for full credit and with no restocking charges any
delivered Materials unused in the original packaging, including any instruction manuals or
other incidental item that accompanied the original shipment,within 30(thirty)days after
receipt. If State elects to return delivered Materials,then State shall pay all freight,
delivery,and transit insurance costs to return the products to the place from which
Contractor shipped them,provided that, if State returns delivered Materials because they
are defective or non-conforming or for any other reason having to do with Contractor fault
or error,then State will not be responsible for paying freight,delivery,or transit insurance
costs to return the products and may,at its discretion,either have those billed directly to
Contractor or offset them under paragraph 8.5[Right of Offset]of the Uniform Terms and
Conditions.
11.18 Order Cancellation State may cancel Orders within a reasonable period after issuance and at its discretion.
The same method as that used for ordering will be used for cancellation. If State cancels
an Order,then State shall:
1. pay Contractor for any portion of the Materials and Services from that Order that
have been properly delivered or performed as of the cancellation effective date
plus 1 (one)additional business day;
2. reimburse Contractor for:
(a) its actual,documented costs incurred in fulfilling the Order up to the
cancellation effective date plus 1 (one)additional business day;and
(b) the cost of any obligations it incurred as of the cancellation effective date
plus 1 (one)additional business day that demonstrably cannot be canceled,
or that have pre-established cancelation penalties specified in the relevant
Subcontracts,to the extent the penalties are reasonable and customary for
the work in question;and
3. Contractor shall not charge or be entitled to charge State for any new costs it
incurs after receiving the cancelation notice plus 1 (one)business day or for any
lost profits or opportunity.
By way of reminder,State is not liable for any products that were produced,shipped,or
delivered or any services that were performed before Contractor had acknowledged the
corresponding Order.
11.19 Product Safety Materials as-shipped must comply with applicable safety regulations and standards.
Unless expressly stated otherwise in the Scope of Work,State is not responsible for
making any Materials safe or compliant following acceptance and is relying exclusively
on Contractor to deliver only products that are already safe and compliant.
11.20 Hazardous Contractor shall timely provide State with any"Safety Data Sheets"(SDS)and any other
Materials hazard communication documentation required under the US Department of Labor's
Occupational Safety and Health Administration(OSHA)"Hazard Communication
Standard"(often referred to as the"HazCom 2012 Final Rule")that is reasonably
necessary for State to comply with regulations when it or its other contractors install,
handle,operate,repair, maintain or remove any Materials. Note that,in the past,those
documents might have been referred to as"Material Safety Data Sheets"or"Product
Safety Data Sheets", but State(and this Contract)use only the more up-to-date"SDS"
reference.Contractor shall ensure that all its relevant personnel understand the nature of
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1►�`'0. Requests for Proposals Arizona Department of Administration
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and hazards associated with,to the extent it they are Contractor's responsibility under
the Contract,the design,shipping, handling,delivery, installation,repair and
maintenance of any portion of the Work that is,contains or will become upon use a
hazardous material,with"hazardous material"being any material or substance that is:
(1)identified now or in the future as being hazardous,toxic or dangerous under
applicable laws;or(2)subject to statutory or regulatory requirement governing special
handling,disposal or cleanup.
12.0 General Provisions for Services
12.1 Applicability Article 12 applies to the extent the Work is or includes Services.
12.2 Comprehensive Contractor shall provide the comprehensive range of services for which a price is
Services Offering established in the Commercial Document for ordering by Eligible Agencies,and Co-Op
Buyers if co-op buying applies.
12.3 Additional Services State at its discretion may modify the scope of the Contract by Contract Amendment to
include additional services or service categories that are within the general scope of the
ones originally covered by the Contract if it determines that doing so is in its best interest.
Once the Contract Amendment is fully executed,Contractor shall then update all
applicable price lists and make them available to all affected entities at no additional cost.
Either party may make the request to add services to the Contract;regardless of who
makes the request,the parties shall negotiate in good faith a fair price for any additional
services, but State may elect not to add some or all of the services in question if no
agreement is reached on pricing in a timely manner. Contractor's request or proposal in
response to State's request must include documentation demonstrating that the
proposed price for the additional services is both fair and reasonable and comparable to
the original ones.
12.4 Off-Contract Contractor shall ensure that the design and/or procedures for the Services ordering
Services method prevents Orders for off-contract or excluded services. Notwithstanding that State
might have its own internal administrative rules regarding off contract or excluded service
ordering,and endeavors to prevent such orders from occurring,Contractor is responsible
for not accepting any such Orders.State may,at its discretion,cancel any such Order
without obligation.As used above,"off-contract service"refers to any service not
included in the scope of the Contract and for which no price or compensation has been
established contractually,and"excluded service"refers to any service expressly
excluded from the scope of the Contract.
12.5 Removal of Notwithstanding that Contractor is in every circumstance responsible for hiring,
Personnel assigning,directing, managing,training,disciplining,and rewarding its personnel,State
may at its discretion and without the obligation to demonstrate cause instruct Contractor
to remove any of its personnel from State's facilities or from further assignment under the
Contract. In such cases,Contractor shall promptly replace them with other personnel
having equivalent qualifications,experience,and capabilities.
12.6 Transitions During commencement,Contractor shall attend transition meetings with any outgoing
vendors to coordinate and ease the transition so that the effect on State's operations is
kept to a minimum.State may elect to have outgoing vendors complete some or all of
their work or orders in progress to ease the transition as is safest and most efficient in
each instance,even if that scope is covered under the Contract.Conversely,State
anticipates having a continued need for the same materials and services upon expiration
or earlier termination of the Contract.Accordingly,Contractor shall work closely with any
new(incoming)vendor and State to ensure as smooth and complete a transfer as is
practicable.State's representative shall coordinate all transition activities and facilitate
joint development of a comprehensive transition plan by both Contractor and the
incoming vendor.As with the incoming transition.State may permit Contractor(outgoing)
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Available o n i i ti e a t Procure . A Z . g o v ,
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to complete work or orders in progress to ease the transition as is safest and most
efficient in each instance.
12.7 Accuracy of Work Contractor is responsible for the accuracy of the Services,and shall promptly make all
necessary revisions or corrections resulting from errors and omissions on its part without
additional compensation.Acceptance by State will not relieve Contractor of responsibility
for correction of any errors discovered subsequently or necessary clarification of any
ambiguities.
12.8 Requirements at Contractor personnel shall perform their assigned portions of the Services at the specific
Services Location location indicated in the Order(if applicable).Contractor acknowledges that the location
might be inside an industrial building,institutional building,or one of various office types
and classes.Additionally,if performing the Services requires Contractor personnel to
work inside a secured perimeter at certain institutional facilities such as prisons where
prior clearances are required,Contractor shall contact the facility directly to confirm its
most-current security clearance procedures,allowable hours for work,visitor dress code,
and other applicable rules.State will neither allow extra charges for wait time,
comebacks,or the like nor excuse late performance if Contractor has failed to make the
confirmation or comply with the applicable conditions.
12.9 Services State has the right to make acceptance of Services subject to acceptance criteria.State
Acceptance may apply as acceptance criteria conformity to the Contract,accuracy,completeness,or
other indicators of quality or other matter for which the Contract or law states a
requirement,whether stated directly or by reference to another document,standard,
reference specification,etc.State will not owe Contractor any payment for un-accepted
Services;and State may,at its discretion,withhold or make partial payment for any
rejected Services if Contractor is still in the process of re-performing or otherwise curing
the grounds for State's rejection.
12.10 Corrective Action Notwithstanding any other guarantees,general warranties,or particular warranties
Required Contractor has given under the Contract,if Contractor fails to perform any material
portion of the Services, including failing to complete any contractual deliverable,or if its
performance fails to meet agreed-upon service levels or service standards set out in or
referred to in the Contract,then Contractor shall perform a root-cause analysis to identify
the source of the failure and use all commercially reasonable efforts to correct the failure
and meet the Contract requirements as promptly as is practicable.
1. Contractor shall provide to State a report detailing the identified cause and
setting out its detailed corrective action plan promptly after the date the failure
occurred(or the date when the failure first became apparent, if it was not
apparent immediately after occurrence).
2. State may demand to review and approve Contractor's analysis and plans,and
Contractor shall make any corrections State instructs and adopt State's
recommendations so far as is commercially practicable,provided that,State may
insist on any measures it determines within reason to be necessary for safety or
protecting property and the environment.
3. Contractor shall take the necessary action to avoid any like failure in the future,if
doing so is appropriate and practicable under the circumstances.
13.0 Data and Information Handling
13.1 Applicability Article 13 applies to the extent the Work includes handling of any(1)State's proprietary
and sensitive data or(2)confidential or access-restricted information obtained from State
or from others at State's behest.
13.2 Data Protection and Contractor warrants that it will establish and maintain procedures and controls
Confidentiality acceptable to State for ensuring that State's proprietary and sensitive data is protected
of Information from unauthorized access and information obtained from State or others in performance
of its contractual duties is not mishandled, misused,or inappropriately released or
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t o n : a t Procure . A Z . q a v
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disclosed. For purposes of this paragraph,all data created by Contractor in any way
related to the Contract,provided to Contractor by State,or prepared by others for State
are proprietary to State,and all information by those same avenues is State's
confidential information.To comply with the foregoing warrant:
1. Contractor shall:(a)notify State immediately of any unauthorized access or
inappropriate disclosures,whether stemming from an external security breach,
internal breach,system failure,or procedural lapse;(b)cooperate with State to
identify the source or cause of and respond to each unauthorized access or
inappropriate disclosure;and(c)notify State promptly of any security threat that
could result in unauthorized access or inappropriate disclosures;and
2. Contractor shall not:(a)release any such data or allow it to be released or
divulge any such information to anyone other than its employees or officers as
needed for each person's individual performance of his or her duties under the
Contract,unless State has agreed otherwise in advance and in writing;or(b)
respond to any requests it receives from a third party for such data or
information,and instead route all such requests to State's designated
representative.
13.3 Personally Without limiting the generality of paragraph 13.2,Contractor warrants that it will protect
Identifiable any personally identifiable information("PII")belonging to State's employees'or other
Information. contractors or members of the general public that it receives from State or otherwise
acquires in its performance under the Contract.
For purposes of this paragraph:
1. PII has the meaning given in the[federal]Office of Management and Budget
(OMB)Memorandum M-07-16 Safeguarding Against and Responding to the
Breach of Personally Identifiable Information;and
2. "protect"means taking measures to safeguard personally identifiable information
and prevent its breach that are functionally equivalent to those called for in that
OMB memorandum and elaborated on in the[federal]General Services
Administration(GSA)Directive CIO P 2180.1 GSA Rules of Behavior for
Handling Personally Identifiable Information.
NOTE(1): For convenience of reference only,the OMB memorandum is available at:
https://www.whitehouse.govlsites/default/files/omb/memorandalfv2007/m07-16.pdf
NOTE(2): For convenience of reference only,the GSA directive is available at:
http://www.gsa.qov/portal/directive/d0lcontent/658222
13.4 Protected Health Contractor warrants that,to the extent performance under the Contract involves
Information individually identifiable health information(referred to hereinafter as protected health
information("PHI")and electronic PHI("ePHI")as defined in the Privacy Rule referred to
below), it:
1. is familiar with and will comply with the applicable aspects of the following
collective regulatory requirements regarding patient information privacy
protection:(a)the"Privacy Rule"in CFR 45 Part 160 and Part 164 pursuant to
the Health Insurance Portability and Accountability Act("HIPAA")of 1996;(b)
Arizona laws,rules,and regulations applicable to PHI/ePHI that are not
preempted by CFR 45-160(B)or the Employee Retirement Income Security Act
of 1974("ERISA")as amended;and(c)State's current and published PHI/ePHI
privacy and security policies and procedures;
2. will cooperate with State in the course of performing under the Contract so that
both State and Contractor stay in compliance with the requirements in(1)above;
and
3. will sign any documents that are reasonably necessary to keep both State and
Contractor in compliance with the requirements in(1)above,in particular
"Business Associate Agreements"in accordance with the Privacy Rule.
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a t P r o c u r e . A 2 . ct a v
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NOTE: For convenience of reference only,the Privacy Rule is available at:
http://www.hhs.qov/hipaaffor-professionals/privacv/index.html
114.0 Information Technology Work
14.1 Applicability Article 14 applies to any Invitation for Bids, Request for Proposals,or Request for
Quotations for"Information Technology,"as defined In A.R.S.§41-3501(6)6:".. .
computerized and auxiliary automated information processing,telecommunications and
related technology, including hardware,software,vendor support and related services,
equipment and projects"if and to the extent that the Work is or includes Information
Technology.
14.2 Background Checks Each of Contractor's personnel who is an applicant for an information technology position
must undergo the security clearance and background check procedure,which includes
fingerprinting,as required by A.R.S§41-710.Contractor shall obtain and pay for the
security clearance and background check.Contractor personnel who will have
administrator privileges on a State network must additionally provide identify and address
verification and undergo State-specified training for unescorted access,confidentiality,
privacy,and data security.
14.3 Information Access 14.3.1 SYSTEM MEASURES.Contractor shall employ appropriate system
management and maintenance,fraud prevention and detection,and encryption
application and tools to any systems or networks containing or transmitting
State's proprietary data or confidential information.
14.3.2 INDIVIDUAL MEASURES.Contractor personnel shall comply with applicable
State policies and procedures regarding data access,privacy,and security,
including prohibitions on remote access and obtaining and maintaining access
IDs and passwords.Contractor is responsible to State for ensuring that any State
access IDs and passwords are used only by the person to whom they were
issued.Contractor shall ensure that personnel are only provided the minimum
only such level of access necessary to perform his or duties.Contractor shall on
request provide a current register of the access IDs and passwords and
corresponding access levels currently assigned to its personnel.
14.3.3 ACCESS CONTROL.Contractor is responsible to State for ensuring that
hardware,software,data,information,and that has been provided by State or
belongs to or is in the custody of State and is accessed or accessible by
Contractor personnel is only used in connection with carrying out the Work,and
is never commercially exploited in any manner whatsoever not expressly
permitted under the Contract.State may restrict access by Contractor personnel,
or instruct Contractor to restrict access their access,if in its determination the
requirements of this subparagraph are not being met.
14.4 Pass-Through 14.4.1 INDEMNITY FROM THIRD PARTY. For computer hardware or software included
Indemnity in the Work as discrete units that were manufactured or developed solely by a
third party,Contractor may satisfy its indemnification obligations under the
Contract by,to the extent permissible by law,passing through to State such
indemnity as it receives from the third-party source(each a"Pass-Through
Indemnity")and cooperating with State in enforcing that indemnity. If the third
party fails to honor its Pass-Through Indemnity,or if a Pass-Through Indemnity
is insufficient to indemnify State Indemnitees to the extent and degree Contractor
is required to do by the Uniform Terms and Conditions,then Contractor shall
indemnify,defend and hold harmless State Indemnitees to the extent the Pass-
Through Indemnity does not.
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14.4.2 NOTIFY OF CLAIMS.State shall notify Contractor promptly of any claim to which
a Pass-Through Indemnity might apply.Contractor,with reasonable consultation
from State,shall control of the defense of any action on any claim to which a
Pass-Through Indemnity applies,including negotiations for settlement or
compromise, provided that:
(a) State reserves the right to elect to participate in the action at its own
expense;
(b) State reserves the right to approve or reject any settlement or compromise
on reasonable grounds and if done so timely;and
(c) State shall in any case cooperate in the defense and any related
settlement negotiations.
14.5 Systems and In consideration for State having agreed to permit Pass-Through Indemnities in lieu of
Controls direct indemnity,Contractor agrees to establish and keep in place systems and controls
appropriate to ensure that State funds under this Contract are not knowingly used for the
acquisition,operation,or maintenance of Materials or Services in violation of intellectual
property laws or a third party's intellectual property rights.
14.6 Redress of 14.6.1 REPLACE,LICENSE,OR MODIFY. If Contractor becomes aware that any
Infringement. Materials or Services infringe,or are likely to be infringing on,any third party's
intellectual property rights,then Contractor shall at its sole cost and expense and
in consultation with State either:
(a) replace any infringing items with non-infringing ones;
(b) obtain for State the right to continue using the infringing items;or
(c) modify the infringing item so that they become non-infringing,so long as
they continue to function as specified following the modification.
14.6.2 CANCELLATION OPTION. In every case under 14.6.1, if none of those options
can reasonably be accomplished,or if the continued use of the infringing items is
impracticable,State may cancel the relevant Order or terminate the Contract and
Contractor shall take back the infringing items.If State does cancel the Order or
terminate the Contract,Contractor shall refund to State:
(a) for any software created for State under the Contract,the amount State
paid to Contactor for creating it;
(b) for all other Materials,the net book value of the product provided according
to generally accepted accounting principles;and
(c) for Services,the amount paid by State or an amount equal to 12(twelve)
months of charges,whichever is less.
14.6.3. EXCEPTIONS.Contractor will not be liable for any claim of infringement based
solely on any of the following by a State Indemnitee:
(a) modification or use of Materials other than as contemplated by the
Contract or expressly authorized or proposed by a Contractor Indemnitor;
(b) operation of Materials with any operating software other than that supplied
by Contractor or authorized or proposed by a Contractor Indemnitor;or
(c) combination or use with other products in a manner not contemplated by
the Contract or expressly authorized or proposed by a Contractor
Indemnitor.
14.7 First Party Liability 14.7.1 LIMIT.Subject to the provisos that follow below and unless stated otherwise in
Limitation the Special Terms and Conditions,State's and Contractor's respective first party
liability arising from or related to the Contract is limited to the greater of
$1,000,000(one million dollars)or 3(three)times the purchase price of the
specific Materials or Services giving rise to the claim.
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14.7.2 PROVISOS.This paragraph 14.7 limits liability for first party direct,indirect,
incidental,special,punitive,and consequential damages relating to the Work
regardless of the legal theory under which the liability is asserted.This paragraph
14.7 does not limit liability arising from any:
(a) Indemnified Claim against which Contractor has indemnified State
Indemnitees under paragraph 6.3;
(b) claim against which Contractor has indemnified State Indemnitees under
paragraph 6.4;or
(c) provision of the Contract calling for liquidated damages or specifying
amounts or percentages as being at-risk or subject to deduction for
performance deficiencies.
14.7.2 PURCHASE PRICE DETERMINATION. If the Contract is for a single-agency
and a single Order(or if no Order applies),then"purchase price"in
Subparagraph 14.7.1 above means the aggregate Contract price current at the
time of Contract expiration or earlier termination, including all change orders or
other forms of Contract Amendment having an effect on the aggregate price
through that date. In all other cases,"purchase price"above means the total
price of the Order for the specific equipment,software,or services giving rise to
the claim,and therefore a separate limit will apply to each Order.
14.7.3 NO EFFECT ON INSURANCE.This paragraph does not modify the required
coverage limits,terms,and conditions of,or any insured's ability to claim against,
any insurance that Contractor is required by the Contract to provide,and
Contractor shall obtain express endorsements that it does not.
14.8 Information 14.8.1 SPECIFIED DESIGN.Where the Scope of Work(Section 2-A of the Solicitation)
Technology for information technology Work provides a detailed design specification or sets
Warranty out specific performance requirements,Contractor warrants that the Work will
provide all functionality material to the intended use stated in the Contract,
provided that,the foregoing warranty does not extend to any portions of the
Materials that are:
(a) modified or altered by anyone not authorized by Contractor to do so;
(b) maintained in a way inconsistent to any applicable manufacturer
recommendations;or
(c) operated in a manner not within its intended use or environment.
14.8.2 COTS SOFTWARE.With respect to Materials provided under the Contract that
are commercial-off-the-shelf(COTS)software,Contractor warrants that:
(a) to the extent possible,it will test the software before delivery using
commercially available virus detection software conforming to current
industry standards;
(b) the COTS software will,to the best of its knowledge,at the time of delivery
be free of viruses,backdoors,worms,spyware,malware,and other
malicious code that could hamper performance,collect unlawfully any
personally identifiable information,or prevent products from performing as
required by the Contract;and
(c) it will provide a new or clean install of any COTS software that State has
reason to believes contains harmful code.
14.8.3 PAYMENT HAS NO EFFECT.The warranties in this paragraph are not affected
by State's inspection,testing,or payment.
14.9 Specific Remedies Unless expressly stated otherwise elsewhere in the Contract,State's remedy for breach
of warranty under paragraph 14.8 includes,at State's discretion,re-performance,repair,
replacement,or refund of any amounts paid by State for the nonconforming Work,plus
(in every case)Contractor's payment of State's additional,documented,and reasonable
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a i e on at Procure . A Z , ct o v
„iA -* Requests for Proposals Arizona Department of Administration
Li.-_ +s Solicitation No. State Procurement Office
,►�fit y ADSP017-00007213100 N 15th Ave.,Suite 201
Description: Phoenix,AZ 85007
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costs to procure materials or services equivalent in function,capability,and performance
at that first called for.For clarification of intent,the foregoing obligations are limited by
the limitation of liability in paragraph 14.7. If none of the forgoing options can reasonably
be effected,or if the use of the materials by State is made impractical by the
nonconformance,then State may seek any remedy available to it under law.
15.0 Comments Welcome
Separate and apart from this solicitation,the State Procurement Office periodically reviews the Uniform Terms
and Conditions and welcomes any comments the public may have.
The public may submit comments to:
State Procurement Administrator,
State Procurement Office, 100 North 15th Avenue,Suite 201
Phoenix,Arizona,85007
End of Section 3-B
End of Part 3
End of Solicitation Documents
PART 3 of the Solicitation Documents' SECTION 3-B:Uniform Terms and Conditions
Contract Terms and Conditions Version 11.3(7/21/2016)
Page 28 of 28
Available online a t P r o c u r e . A Z . (i o __,,_