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CTR054848
4/21/2021
May
21
1st
Exhibit A
Rev. 04/2020
Procurement
STATE OF ARIZONA
ARIZONA DEPARTMENT OF TRANSPORTATION
1739 W. Jackson St., Ste. A
Phoenix, AZ 85007
INVITATION FOR BID
SOLICITATION NUMBER: BPM003324
DESCRIPTION: Mobility Vehicles and Vehicle Conversion Services
QUESTIONS: Inquiries regarding the solicitation are to be submitted online through the State’s e-Procurement
system, Arizona Procurement Portal (APP) (https://app.az.gov/) using the Discussion Forum tab.
OFFERORS ARE STRONGLY ENCOURAGED TO READ THE ENTIRE SOLICITATION.
Pamela Veal
Procurement Officer
Phone: 602-712-7564
Email: PVeal@azdot.gov
This solicitation is issued in accordance with A.R.S. §41-2533 and A.A.C. R2-7-B301 et seq., Competitive Sealed
Bidding.
“An Equal Opportunity Agency”
The Arizona Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252.42 U.S.C. §§
2000d-4) and the Americans with Disabilities Act (ADA), hereby notifies all bidders that it will affirmatively ensure that any contract entered into
pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race, color, national origin in consideration for an award.
Persons that require a reasonable accommodation based on language or disability should contact ADOT’s Procurement Office by phone (602)
712-2089. Requests should be made as early as possible to ensure the State has an opportunity to address the accommodation.
Las personas que requieran asistencia (dentro de lo razonable) ya sea por el idioma o discapacidad deben ponerse en contacto con ADOT (602)
712-2089.
TABLE OF CONTENTS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 2 of 34
Procurement
SECTION
PAGE
Notice
1
Table of Contents
2
Scope of Work
3
Special Terms and Conditions
13
EXHIBITS
1 - Title VI/Non-Discrimination Assurances Appendix A
25
2 - Title VI/Non-Discrimination Assurances Appendix E
26
3 - ADOT Quarterly Usage Report
27
4 - On-Site Manufacture Inspection Compliance Certification
28
5 - Pre-Award Audit and Certification
29
6 - Purchaser’s Pre-Award Requirements Certification
30
7 – Post Award Certification and Requirements
31-32
8 – Purchaser’s Post Award Requirements Certification
33
9 – Vehicle Modification Inspection and Acceptance for Category 4
34
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 3 of 34
Procurement
1. Statement of Need
1.1. Pursuant to the Arizona Procurement Code, A.R.S. §41-2501 et seq., the State of Arizona
Department of Transportation (Department), has a requirement for Statewide Mobility Vehicles
and Vehicle Conversion Services.
2. Introduction and Background
2.1. The State intends to establish a statewide term contract (s) with reliable and capable contractors
who can; provide vehicles with wheelchair lifts, mobility accessible vehicles, services to convert
existing vehicles as needed, (DUI van conversions, Crime Scene vehicle conversions, etc.), vehicle
wraps; registration and licensing of new vehicle purchases, manage multiple agency accounts and
delivery points located throughout the state, provide an effective ordering method for contract
specific items, has sufficient statewide delivery capabilities when applicable and offers various
discounts as stated in this solicitation. This contract(s) will be used on an as needed basis; the
State makes no guarantee as to actual spend under any resultant contract.
2.2. The Department awards funds to grant subrecipients to purchase vehicles and vehicle services for
programs performed on behalf of the FTA and the Department. Eligible subrecipients of these
funds include: Federally Recognized Tribal Agencies, Councils of Governments, Metropolitan
Planning Organizations, non-profits, local governments, and transit authorities. The grant
contracts require them to procure services following FTA requirements. In order to ensure
compliance, the Department’s subrecipients will be eligible to use the awarded contracts for
relevant purchases.
3. General Requirements
3.1. Contractors shall have the sufficient means to meet the requirements of a statewide contract.
Including the ability to create and manage numerous individual accounts for order placement,
billing and reporting purposes and the ability to provide a full range of products, offered in
order to meet the demands of all eligible agencies. This shall include the ability to resolve
customer disputes, handle multiple communications from accounts, deliver vehicles to multiple
locations around the state and provide excellent customer service.
3.2. Contractors may provide the goods/services described in any or all of the following categories
below:
3.2.1.1.
Category One: FTA funded vehicles and components
3.2.1.2.
Category Two: State funded vehicles and components
3.2.1.3.
Category Three: Optional Services (including conversions, modifications and
vehicle wraps)
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 4 of 34
Procurement
3.2.1.4.
Category Four: Vehicle Modification services for Client owned equipment
3.2.1.5.
Timely reporting of known warranty issues by contracted vehicle type and
timely response to warranty issues that arise.
4. Specific Requirements
4.1. The intent of the specifications is to provide the Contractor with sufficient information concerning
the products/services to be contracted. The specifications may be detailed or general in nature
with regard to any particular product/service. Where not otherwise specified, details of materials
or the way in which services will be provided, are left to the discretion of the Contractor, provided
only that any offering shall conform, as a minimum, to best industry standards’ and practices and
to what is currently being sold in the marketplace. Responses shall be considered only from
Contractors that have established good reputations in their markets, and who furnish satisfactory
evidence of ability to supply the products/service specified herein. Contractors shall show proof of
ability to provide all eligible agencies prompt and competent service, including parts and /or
repairs if applicable, for all products/services covered by this solicitation.
4.2. Standards and Functions
4.2.1. All equipment and vehicles shall conform to all applicable (OSHA) Occupational Safety and
Health Administration, (EPA) Environmental Protection Agency, (ADA) Americans with
Disabilities Act 49 C.F.R. § 38), Federal Transit Administration Bus Testing Program
(Altoona Research and Testing Center), (FMVSS) Federal Motor Vehicle Safety Standards,
(NHTSA) National Highway Traffic Administration, National Mobility Equipment Dealers
Association (NMEDA) standards and Buy America regulations and to all industry standards
in effect at the time of delivery.
4.2.2. An equipment certification label or data plate conformation to requirements established
in 48 C.F.R. §567.4 shall be installed when applicable.
4.2.3. The equipment supplied shall be standard model of a manufacturer with experience in the
production of wheelchair accessible vehicles. Each unit shall include all specified
accessories, parts, equipment and options that are listed in the manufacturer’s
specifications as standard equipment for the specific model, unless otherwise required by
an eligible agency. All workmanship and materials shall be of good quality and design.
4.2.3.1. In the event that the manufacturer issues a new model before completion of this
contract, all item changes that do not appreciably affect function and performance
of the chassis, including cosmetic changes will be accepted.
4.2.3.2. The successful Contractor shall be responsible for delivery of all vehicles in a
complete, ready-for-use condition with all components functioning; cleaned,
tested, lubricated, serviced and full of fuel.
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 5 of 34
Procurement
4.2.4. Each component of the equipment response shall be adequate for and compatible with all
structural and performance demands placed upon it as part of the complete unit.
4.2.4.1. All equipment and parts furnished shall be of the manufacturer’s latest design and
shall be listed in all current manuals relating to the equipment.
4.2.5. All dimensions weights, wire or metal gauges, or other factors expressed numerically in
this specification are to be considered as nominal requirements (+ or – 10%) unless
indicated otherwise by the words “Minimum”, or “Exactly”. Where brand names, with or
without arrangement numbers, are mentioned, bidders are to understand that brand
name or equal is intended.
4.2.6. Equipment shall be new, unused and not refurbished.
4.2.7. Equipment shall not be a prototype insofar as the general design operation and
performance. This requirement is NOT meant to preclude Contractors from offering new
models or configurations which incorporate improvements in a current design or add
functionality but which in such a new model or configuration may be new to the
marketplace.
4.2.8. Equipment shall include any and all accessories which may or may not be specifically
mentioned herein, but which are normally furnished or which are necessary to make a
delivered product ready for its intended use. Such accessories shall be assembled,
installed and adjusted such that the product is ready for continuous operation at time of
delivery.
4.2.9. Equipment shall have assemblies, sub-assemblies and component parts that are standard
and interchangeable throughout the entire quantity of a particular product as may be
purchased simultaneously by any using agency.
4.2.10. Equipment shall be designed and constructed using current industry accepted engineering
and safety practices and materials.
4.2.11. The Department does not limit competition to entities that has not acquired state license.
This procurement is not limited to in-state dealers.
4.3. Contract Categories minimum requirements
4.3.1. Category One: FTA Funded Vehicle and Component requirements
Category One specifications are intended to describe and to set a minimum requirement
for (not to design) vehicles that will be used at a minimum by grantees of Federal Transit
Administration (FTA) funding. The Contractor shall comply with all FTA rules and
regulations related to FTA funded vehicles.
4.3.1.1. The vehicles supplied shall be based on a commercially produced platform. The
Contractor shall certify that the platform supplied complies with provisions of the
Buy America (49 U.S.C. § 5323(j)(1)) and 49 CFR §661.11 and Appendices A to D.
4.3.1.2. Vehicle shall be at a minimum OEM standard and be compatible with GVWR of the
completed vehicle after all conversions.
4.3.1.3. Vehicles are to be delivered as a complete unit, certified and ready for immediate
operation throughout the State of Arizona as designated by the Department.
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 6 of 34
Procurement
4.3.1.4. All Parts, equipment and accessories shall conform in strength, quality of material
and workmanship to recognized industry standards.
4.3.1.5. The complete equipment/material supplied shall not include a major component
that is of a prototype nature or has not been in production for a sufficient length of
time to demonstrate reliability.
4.3.1.6. Accessibility: Vehicles must comply with the accessibility requirements of US DOT
regulations “Transportation Services for Individuals with Disabilities (ADA), 49 CFR
Part 37, and Joint Access Board / DOT Regulations “Americans with Disabilities
(ADA) Accessibility Specifications for Transportation Vehicles” 36 CFR Part I192 and
49 CFR Part 38.
4.3.1.7. Transit Vehicle Manufacturer Compliance with DBE Requirements: Before a transit
vehicle manufacturer (TVM) may submit a bid or proposal to provide vehicles to be
financed with FTA assistance, 49 CFR 26.49 requires the TVM to submit a
certification that it has complied with FTAs DBE requirements.
4.3.1.8. Air Pollution and Fuel Economy: Ensure compliance with applicable Federal air
pollution control and fuel economy regulations, such as EPA regulations, “Control
of Air Pollution from Mobile Sources,” 40 CFR Part 85; EPA regulations, “Control of
Air Pollution from New and In-Use Motor Vehicles and New and In-Use Motor
Vehicle Engines,” 40 CFR Part 86; and EPA regulations, “Fuel Economy of Motor
Vehicles,” 40 CFR Part 600.
4.3.1.9. Bus Testing: New bus models or a bus with significant alterations to an existing
model must comply with applicable requirements of 49 U.S.C. Section 5318, as
amended, and FTA regulations, “Bus Testing,” 49 CFR Part 665. The contractor shall
perform the following:
4.3.1.9.1.
A manufacturer of a new bus model or a bus produced with a major
change in components or configuration shall provide a copy of the final
test report to the recipient prior to the recipient's final acceptance of
the first vehicle.
4.3.1.9.2.
A manufacturer who releases a report under para. 1 above shall provide
notice to the operator of the testing facility that the report is available
to the public.
4.3.1.9.3.
If the manufacturer represents that the vehicle was previously tested,
the vehicle being sold should have the identical configuration and major
components as the vehicle in the test report, which must be provided to
the recipient prior to the recipient's final acceptance of the first vehicle.
If configuration or components are not identical, the manufacturer shall
provide a description of the change and the manufacturer's basis for
concluding that it is not a major change requiring additional testing.
4.3.1.9.4.
If the manufacturer represents that the vehicle is "grandfathered" (has
been used in mass transit service in the US before Oct. 1, 1988, and is
currently being produced without a major change in configuration or
components), the manufacturer shall provide the name and address of
the recipient of such a vehicle and the details of that vehicle's
configuration and major components.
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 7 of 34
Procurement
4.3.1.10. PRE-AWARD AND POST- DELIVERY AUDIT REQUIREMENTS: The Contractor agrees
to comply with 49 U.S.C. § 5323(l) and FTA's implementing regulation at 49 C.F.R. §
663 and to submit the following certifications:
4.3.1.10.1.
Buy America Requirements: The Contractor shall complete and submit a
declaration certifying either compliance or noncompliance with Buy
America. If the Bidder/Offeror certifies compliance with Buy America, it
shall submit documentation which lists
4.3.1.10.1.1.
Component and subcomponent parts of the rolling stock to be
purchased identified by manufacturer of the parts, their country of origin
and costs; and
4.3.1.10.1.2.
The location of the final assembly point for the rolling stock,
including a description of the activities that will take place at the final
assembly point and the cost of final assembly.
4.3.1.10.2.
Specification Requirements: The Contractor shall submit evidence that it
will be capable of meeting the designated specifications.
4.3.1.10.3.
Federal Motor Vehicle Safety Standards (FMVSS): The Contractor shall
submit 1) manufacturer's FMVSS self-certification sticker information
that the vehicle complies with relevant FMVSS or 2) manufacturer's
certified statement that the contracted buses will not be subject to
FMVSS regulations.
4.3.1.10.4.
Exhibit 5, 6, 7, and 8 includes the certification information which
includes all documents that must be provided at the time of quote and
delivery.
4.3.2. Category Two: State Funded Vehicle and Component requirements
4.3.2.1. Vehicle shall be at a minimum OEM standard and be compatible with GVWR of the
completed vehicle after all conversions.
4.3.2.2. Vehicles are to be delivered as a complete unit, certified and ready for immediate
operation within the State of Arizona.
4.3.2.3. The complete equipment/material supplied shall not include a major component
that is of a prototype nature or has not been in production for a sufficient length of
time to demonstrate reliability.
4.3.3. Category Three: Optional Services (conversions, modifications, vehicle wraps, etc.)
4.3.3.1. Vehicle conversions/modifications/vehicle wraps services: The using eligible agency
may request the awarded Contractor to modify any vehicle (existing or new) for
specific organizational needs. Vehicles may require interior and/or exterior
modifications per eligible agency requirements. The eligible agency will supply all
optional service requests to the Contractor. The Contractor shall identify and
conditions that apply to the optional services on a quotation to the using eligible
agency for review before any work commences.
4.3.3.2. Eligible agencies may make requests for additions or inclusion of additional
specifications, qualifications, conditions, etc. Any requests shall be made in writing
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 8 of 34
Procurement
and agreed upon by Contractor and the eligible agency prior to issuance of any
purchase order for services.
4.3.3.3. An eligible agency may provide an existing vehicle (cab, box, chais, etc) to the
Contractor for conversion services. It is the sole responsibility of the Eligible Agency
to ensure that the vehicle provided is sufficient for conversion (as per vehicle
GCWR/GVWR/ etc). The Eligible Agency shall submit detailed layout plans to the
Contractor upon issuing an order for conversion services. The layout plans shall
account for all items as may be ordered.
4.3.3.4. The Contractor shall maintain all manufactures catalog/price lists for all items in
accordance with the contract special terms and conditions. Before beginning work
on any order, the contractor shall submit a quote in response to the order detailing
all pricing. The eligible agency shall approve all quotes in writing. The contractor
may begin work upon eligible agency approval.
4.3.4. Category Four (4) Vehicle Modification services for Client owned equipment
4.3.4.1. Category Four specifications are intended to describe a set of minimum
requirements for vehicle modification services for Rehabilitation Services
Administration (RSA) Clients and ADA compliant State vehicles. A service that
provides modifications of a vehicle to assist an individual to drive or be transported
in his/her own vehicle or vehicle authorized by RSA Policy.
4.3.4.2. Vehicle modification services include any prescribed by a Certified Driving
Rehabilitation Specialist (CDRS) changes to a passenger car, van, SUV or other
motor vehicle that permits an individual with a disability to safely drive or ride as a
passenger. In accordance with the national Mobility Equipment Dealers Association
(NMEDA) and its Quality Assurance Program (QAP) the following types of vehicle
modifications are included:
4.3.4.2.1.
Mobility Equipment Installation
4.3.4.2.2.
Structural Vehicle Modification
4.3.4.2.3.
High Tech Driving Systems Installation.
4.3.4.3. Structural Vehicle Modification typically referred to as “conversion” which allows
the client to enter/exit the vehicle with or in their wheelchair. Structural
modifications are done only to vehicles with odometer reading of less than 50,000
miles unless the vehicle can pass an inspection by certified auto mechanic of the
brakes, electrical system, body, power train, engine, and safety features which
documents that the vehicle is in good working order and requires no major repairs.
Structural modifications will not normally be performed on vehicles with odometer
readings of over 75,000 miles or manufacturer criteria.
4.3.4.4. Structural modifications may include, but are not limited to:
4.3.4.4.1.
Lowered floor (10”, 11”, 12”, 14”)
4.3.4.4.2.
Power door
4.3.4.4.3.
Ramp or lift
4.3.4.4.4.
Hydraulic “kneel” features
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 9 of 34
Procurement
4.3.4.4.5.
Manual securement system for wheelchair
4.3.4.4.6.
Raised roof
4.3.4.4.7.
Some door modifications
4.3.4.5. Non-Structural Modifications may include, but are not limited to:
4.3.4.5.1.
Hand controls;
4.3.4.5.2.
Additional mirrors;
4.3.4.5.3.
Left foot accelerator;
4.3.4.5.4.
Steering device such as a spinner knob or cuff;
4.3.4.5.5.
Car-top or rear wheelchair or scooter carrier;
4.3.4.5.6.
Ignition key or parking brake extensions;
4.3.4.5.7.
Accelerator and brake extensions;
4.3.4.5.8.
Power seat base;
4.3.4.5.9.
Seat belt modifications;
4.3.4.5.10.
Power door opener;
4.3.4.5.11.
Remote ignition;
4.3.4.5.12.
Under-vehicle wheelchair lifts;
4.3.4.5.13.
Swing arm lifts;
4.3.4.5.14.
Wheelchair restraint device;
4.3.4.5.15.
Ramps and/or wheelchair lifts not requiring structural modifications;
4.3.4.5.16.
Transfer seats and/or transfer devices.
4.3.4.6. High Tech Modifications may include, but are not limited to:
4.3.4.6.1.
Modification of the electrical system;
4.3.4.6.2.
Modification of steering column;
4.3.4.6.3.
Low effort or zero effort steering;
4.3.4.6.4.
Digital “high tech” driving system.
4.3.4.7. The Contractor shall modify the vehicle and perform all work in accordance with
the Certified Driving Rehabilitation Specialist, (CDRS) prescription, in compliance
with National Mobility Equipment Dealers Association (NMEDA)/ Quality Assurance
Program (QAP) standards.
4.3.4.8. A Request for a Project Cost Proposal or Quote will be provided to the Contractor
from the requesting Vocational Rehabilitation Counselor (VRC) via email in the
form of a Vehicle Modification Prescription. An itemized Project Cost Proposal
(PCP) or Quote must be provided for each job and approved by the requesting
agency. The PCP or Quote must include anticipated timeframes and defined
Payment Points based on deliverables. All Project Cost Proposals shall be
accompanied by a Vehicle Modification Prescription prepared by a Certified Driving
Rehabilitation Specialist (CDRS). No work shall be initiated by the Contractor until
requested in writing via an RSA Purchase Authorization.
4.3.4.9. The Contractor must certify that all equipment meets or exceeds the requirements
established by SAE International, the National Mobility Equipment Dealers
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 10 of 34
Procurement
Association (NMEDA), and the National Highway Traffic Safety Administration
(NHTSA) of the Department of Transportation.
4.3.4.10. The Contractor must coordinate vehicle fittings/s, trainings and final inspection as
it relates to operation and maintenance of the installed equipment.
4.3.4.11. The Contractor must maintain the copyrighted manuals for the structural
modifications from National Mobility Equipment Dealers Association (NMEDA).
4.3.4.12. The Contractor must develop and maintain a Quality Management Plan in order to
continuously monitor the delivery of services and to ensure that the service
provision meets the client’s objectives. The quality management plan shall include
the following:
4.3.4.12.1.
Incident management, corrective action and preventions;
4.3.4.12.2.
Complaints and grievances;
4.3.4.12.3.
Routine monitoring of Contractor personnel and subcontractors to
ensure quality service delivery to RSA clients.
4.3.4.13. Training for category Four (4) shall be conducted at the Contractor's place of
business prior to the release of the vehicle. The scope of the training shall include
the following:
4.3.4.13.1.
How to operate and maintain the installed equipment;
4.3.4.13.2.
Hands-on practice in maintenance tasks for the installed equipment;
4.3.4.13.3.
Hands-on practice with all back-up safety systems, including manual
deployment of the lift or ramp, and identification, location and use of
specialty tools and implements;
4.3.4.13.4.
Hands-on practice using all tie-down systems;
4.3.4.13.5.
A review of user options and/or use of other installed safety or adaptive
features, including custom labels; and
4.3.4.13.6.
Correct any immediately evident installation deficiencies or make minor
adjustments per recommendation of the CDRS to meet client
accessibility needs prior to acceptance of the vehicle.
4.3.4.14. Warranty requirements for Category Four (4) is as follows:
4.3.4.14.1.
The Contractor must warrant for a minimum of one (1) year after final
acceptance of vehicle modification that work performed under this
contract conforms to the requirements of the prescription and is free of
any defects of equipment, material, or workmanship performed by the
Contractor or any of its subcontractors or suppliers at any tier.
4.3.4.14.2.
The Contractor must Provide and coordinate any warranty service
including all parts and labor for the stated manufacturer and the
Contractor warranty period(s) to the client.
4.3.4.14.3.
The warranty for all equipment and services shall start upon final
acceptance of the full modification.
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 11 of 34
Procurement
4.3.4.14.4.
Under the warranty, the Contractor shall remedy at its own expense any
damage to the client's vehicle when that damage is the result of the
Contractor's failure to conform to prescription requirements or any such
defects of equipment, material, or workmanship.
4.3.4.15. Licensure/Qualification requirements for Category Four (4) is as follows:
4.3.4.15.1.
The Contractor shall maintain Membership Certificate from the National
Mobility
Equipment
Dealers
Association
(NMEDA)
and
have
accreditation for Quality Assurance Program (QAP) and hold current,
valid manufacturer certifications verifying completion of training on
adaptive equipment installations, services performed, and selling of
product lines represented by the Contractor.
4.3.4.15.2.
The Contractor shall employ on-site Installers who participate in a
minimum of two (2) courses per year from the NMEDA Professional
Trainings for Technicians curriculum.
4.3.4.15.3.
The warranty for all equipment and services shall start upon final
acceptance of the full modification.
4.3.4.15.4.
The Contractor shall only employ or subcontract with certified welders
who meets or exceeds the applicable requirements of the American
Welding Society (AWS).
4.3.4.16. The Contractor shall meet the following performance standards for Category Four
(4) is as follows:
4.3.4.16.1.
Adhere to established schedules and timelines for service provision;
4.3.4.16.2.
Use industry standard equipment to ensure quality installation;
4.3.4.16.3.
Adhere to the NMEDA and Federal Motor Vehicle Safety Standards
(FMVSS) standards.
4.3.4.16.4.
Maintain valid and up to date business and professional licenses and
documentation.
4.3.4.16.5.
Upon completion of the vehicle modification and prior to drive off, meet
with the client, CDRS and VRC to complete the Vehicle Modification
Inspection and Acceptance form (Exhibit 9).
4.4. Preventative Maintenance (PM) & Safety Program Requirements for new vehicles
4.4.1. Contractor shall provide for each eligible agency vehicle recipient a comprehensive
preventative maintenance (PM) program manual in hardcopy along with an electronic
copy or website link. The PM program shall have detailed procedures and stipulate
required and recommended intervals (miles and/or months, as applicable) for the supplied
vehicle including all components.
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 12 of 34
Procurement
4.4.2. Maintenance components and procedures shall be discussed within the context of
4.4.2.1. Required minimum factory maintenance items and intervals,
4.4.2.2. Factory, secondary manufacturer or vendor suggested additional maintenance
items and the anticipated operating environment found in Arizona, i.e. heavy
service conditions due to terrain/topography and climate.
4.4.3. Contractor shall place a special emphasis on “safety systems” and the importance for
maintenance of related components, including but not limited to regular tire and
suspension system inspection and replacement intervals and brake system maintenance.
This section should include a specific discussion on high center of gravity vehicle dynamics
and the impact of poor maintenance on the operation of these critical systems and overall
vehicle safety.
4.4.4. The PM program will explain the value of pre-trip inspection, the importance of recurrent
training, warranties, how to select local maintenance contractors and the relationship
between the contractor and eligible agency.
4.4.5. The supplied PM program shall provide the vehicle recipient basic “performance targets”
and a self-evaluation system to design their individual programs around.
4.4.6. The minimum outlines and details for the required PM program are stated as follows:
4.4.6.1. External and structural body and chassis components:
4.4.6.1.1.
Exterior, interior and structural (frame, body panel, doors, windows,
suspension components, inspection and maintenance).
4.4.6.1.2.
Tire replacement, repair or rotation
4.4.6.1.3.
External accessory systems (windshield wiper assembly, mirrors, etc.)
4.4.6.1.4.
Brake systems
4.4.6.1.5.
Steering systems
4.4.6.1.6.
Lights-exterior and interior
4.4.6.1.7.
Cleaning, shampoo, detail
4.4.6.1.8.
Minor body touch up and paint
4.4.6.2. Engine & drive train components to include but not be limited to:
4.4.6.2.1.
Oil & filter change intervals
4.4.6.2.2.
Drive and accessory belt and hose inspection and change intervals
4.4.6.2.3.
Valve and timing adjustments
4.4.6.2.4.
Electrical/electronic components including but not limited to:
4.4.6.2.4.1 Ignition system, alternator and battery(s)
4.4.6.2.4.2 On-board diagnostic computer
4.4.6.2.5.
Coolant system maintenance, including flush & replace
4.4.6.2.6.
Fuel systems
4.4.6.2.7.
Transmission oil and filter changes and other transmission checks.
4.4.6.2.8.
Driveshaft components & operation
SCOPE OF WORK
Solicitation No: BPM003324
Available online at
https://app.az.gov/
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Procurement
4.4.6.2.9.
Rear differential maintenance, noting limited slip-specific maintenance
where applicable
4.4.6.3. Wheelchair related components:
4.4.6.3.1.
Lift cycling (observation, inspection)
4.4.6.3.2.
Lift electrical (including lights), hydraulic and mechanical systems
4.4.6.3.3.
Transmission interlock system
4.5. Wheelchair and other mobility device securement and equipment stowage and maintenance
5. Contractor’s Responsibilities
5.1. The Contractor shall maintain and provide when requested, contact information of authorized
service and repair locations. Contractor shall be responsible for the cost to transport and return
vehicles requiring service if service and repair facilities are not available within two hundred
(200) mile radius of the eligible agency.
5.2. Contractor shall provide appropriate documentation, such as supplying letters, certifications or
other documentation that affirm their status as one of the following:
5.2.1. Current authorized dealers:
5.2.2. Current authorized distributors; or
5.2.3. Product manufacturers
5.3. Contractor shall be responsible for processing the registration, licensing, title and plating of all
new vehicles ordered. Any fees associated with fulfilling these services shall be included in the
base vehicle price.
6. Department’s Responsibilities
6.1. The Eligible Agencies will provide final acceptance and approval of any equipment and services
delivered
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 14 of 34
Procurement
1. CONTRACT TERM
The term of any resultant contract shall commence on the effective day of award and shall continue for
a period of twelve months (12) thereafter, unless terminated, cancelled or extended as otherwise
provided herein.
2. CONTRACT EXTENSION
By mutual written contract amendment, any resultant contract may be extended for supplemental
periods of up to a maximum of forty-eight (48) months.
3. ELIGIBLE AGENCIES
The Contract is a “statewide” contract for multiple purchases, projects, or assignments, and can be
purchased against by some or all Eligible Agencies and any Co-Op Buyers that elect to participate. Even if
only one Eligible Agency needs or elects to purchase against the Contract, it is to be construed as being a
“statewide” contract hereunder.
The Contract is an indefinite delivery, indefinite quantity (ID/IQ) type of contract; it is to be construed as
a “delivery order” sub-type of ID/IQ contract to the extent the Work is Materials, and a “task order” sub-
type to the extent the Work is Services.
4. NON-EXCLUSIVE CONTRACT
This contract shall be for the sole convenience of the Department. The Eligible Agencies reserves the
right to obtain like goods or services from another source when necessary. The Off-Contract Purchase
Authorization and subsequent procurement shall be consistent with the Arizona Procurement Code.
5. ORDERING PROCESS
The Department shall issue a purchase order to the Contractor. Each purchase order must cite the
contract number. This purchase order shall be the only document required for the Department to order
and the Contractor to deliver the material and/or service.
Any attempts to represent any material and/or service not specifically awarded as being under contract is a breach of the
contract and a violation of the Arizona Procurement Code. Any such action is subject to the legal and contractual remedies
available to the State inclusive of but not limited to contract cancellation, suspension and/or debarment of the Contractor..
6. SHIPPING TERMS
Delivery shall be F.O.B. Destination to the location designated herein. Contractor shall retain title and
control of all goods until they are delivered. All risk of transportation and related charges shall be the
responsibility of the Contractor. All claims for visible or concealed damage shall be filed by the
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 15 of 34
Procurement
Contractor. The Department will notify the Contractor promptly of any damaged goods and shall assist
the Contractor in arranging for inspection.
7. DELIVERY
Deliveries shall be completed In accordance with the requirements of the contract.
Delivery of the product does not constitute acceptance.
8. INSPECTION AND ACCEPTANCE
Each item delivered shall be subject to a complete inspection by the Department within 10 days after
delivery. Inspection criteria shall include, but not be limited to, conformity to the specifications,
workmanship, quality and materials.
If the delivered product is not accepted and returned for corrective action, an additional fifteen (15)
calendar days shall be allowed for inspection of the corrected or replacement product.
The Contractor shall be responsible for the transport of the material to and from the Department for the
correction of items or workmanship not in compliance with the specifications.
Product returned for corrective action may delay payment. Invoices will be processed for payment only
after the product is accepted.
9. INVOICING and PAYMENT
Separate invoices are required for each shipment of product or delivery of service and shall include at a
minimum:
Department Location’s Name and Address
Vendor Name, Remit to Address and Contact Information
Contract Number
Purchase Order Number
Invoice Number and Date
Date the items were shipped to the Department
Contract Line Item Number
Line Item Description or Item or Service
Quantity Purchased
Line Item Unit of Measure
Price per Unit and Total per Unit (Labor hours, rate)
Catalog or Other Discount (if applicable)
Net Unit Price and Total per Unit (if applicable)
Applicable taxes
Applicable Shipping/Freight Charges
Total Invoice Amount Due
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 16 of 34
Procurement
Invoices not sent to the proper address, late submittals or not containing the necessary and required
information may delay payment. A Contractor whose payments are delayed due to improper invoicing shall
make no claim against the Department or the State for late or finance charges.
The Department will make every effort to process payment for the purchase of product within thirty (30)
calendar days after the Department has conducted the necessary reviews, inspections and acceptance as
described herein.
The department acceptance date will be the valid date for starting the thirty (30) calendar day payment
period.
Payment due dates, including discount periods, will be computed from the date of acceptance or date of
correct invoice (whichever is later) to the date the Department’s warrant is mailed.
Category One – Multimodal Planning Division (MPD)- The following additional invoicing requirements apply:
The Contractor shall email the invoice to MPDInvoice@azdot.gov using a Billing Summary and
Reimbursement Form (BSR) as the cover, which will be provided at time of order.
Category Four- Department of Economic Security (DES)- The following invoicing requirements apply:
The Contractor shall email the invoice to the RSA Payment and Billing Unit
AIBInvoiceScanning@azdes.gov and include a complete and accurate Contractor Invoice Form which
includes:
The Contractor's name, address and FEI Number;
The contract number;
RSA Purchase Authorization number;
The date of the vehicle acceptance, and
A copy of the signed Vehicle Modification Inspection and Acceptance form
(Exhibit 9)
10. ESTIMATED USAGE
The Department anticipates considerable usage under this contract. The Department reserves the right
to increase or decrease actual quantities ordered as circumstances may require. No guarantees are
made concerning actual purchases under this contract.
11. PRICE REDUCTION
A price reduction adjustment may be offered at any time during the term of a contract and shall become
effective upon notice through a written contract amendment.
12. PRICE INCREASE
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 17 of 34
Procurement
The Department will review fully documented requests for price increases for any contract which will or
has been in effect for twelve (12) months. The request shall be submitted no less than 60 days prior to
the contract renewal date. The Contractor shall provide fully documented information which supports
the price increase request. Fully documented means that the request shall present detailed information
and calculations that make it clear how the claimed increase has an impact on the contract unit prices.
All assumptions regarding cost factors that have an impact on the requested increase shall also be
clearly identified and justified. The requested price increase must be based upon a cost increase that
was clearly unpredictable at the time of the offer and can be shown to directly affect the price of the
item concerned. Any price increase adjustment request prior to the time of contract extension will be a
factor in the extension review process. The Department will determine whether the requested price
increase or an alternate option, is in the best interest of the State.
13. SAFETY STANDARDS
Items supplied under this contract shall comply with all current applicable safety standards and
regulations including the Occupational Safety and Health Standards of the State of Arizona Industrial
Commission, the National Electric Code and the National Fire Protection Association Standards.
14. WARRANTY
The Contractor warrants:
1. That all services performed hereunder shall conform to the requirements of this contract and shall be
performed by qualified personnel in accordance with the highest professional standards.
2. That all items furnished hereunder shall conform to the requirements of this contract and shall be free
from defects in design materials and workmanship. Any defects of design, workmanship or materials shall
be fully corrected by the Contractor (including parts and labor) without cost to the Department.
3. The warranty period on workmanship and materials shall be based on a minimum of twelve (12)
months from the time of acceptance by the Department.
15. CURRENT PRODUCTS
All products supplied under this contract shall be in current and ongoing production; shall have been
formally announced for general marketing purposes; shall be a model or type currently functioning in a user
(paying customer) environment and capable of meeting or exceeding all specifications and requirements set
forth in the contract.
16. PRODUCT DISCONTINUANCE
In the event that a product or model is discontinued by the manufacturer, the Department at its sole
discretion may allow the Contractor to provide a substitute for the discontinued item. The Contractor
shall request authorization to substitute a new product or model and provide the following:
1.
A formal announcement from the manufacturer that the product or model has been
discontinued.
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
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2.
Documentation from the manufacturer that names the replacement product or model.
3.
Documentation that provides clear and convincing evidence that the replacement meets or
exceeds all specifications required by the original solicitation.
4.
Documentation that provides clear and convincing evidence that the replacement will be
compatible with all the functions or uses of the discontinued product or model.
5.
Documentation confirming that the price for the replacement is the same as or less than the
discontinued product or model.
17. CONTRACT ADMINISTRATION
The Contractor shall contact the assigned Procurement Officer for guidance or direction in matters of
contract interpretation or questions regarding the terms, conditions or scope of the contract.
18. NOTICES
All notices, requests, demands, consents, approvals, and other communications which may or are
required to be served or given hereunder (for the purposes of this provisions collectively called
“Notices”), shall be in writing and shall be sent by certified United States mail, return receipt requested,
or by any other method that provides evidence of receipt, addressed to the party or parties to receive
such notice as follows:
a. If intended for the State, to:
Arizona Department of Transportation, Procurement Group
1739 W. Jackson Street, MD 100P
Phoenix, Arizona 85007-3276
b. If intended for the Contractor, to the address as identified in the Contractor’s electronic vendor
profile.
Or to such other address as either party may from time to time furnish in writing to the other by notice
hereunder. Any notice so mailed shall be deemed to have been given as of the date such notice is
received as shown on the return receipt. Furthermore, such notice may be given by delivering personally
such notice, if intended for the State, to the Arizona Department of Transportation, Procurement Officer
and, if intended for the Contractor, to the person named on the Offer & Contract Award of this contract,
or to such other person as either party may from time to time furnish in writing to the other by notice
hereunder. Any notice so delivered shall be deemed to have been given as of the date such notice is
personally delivered to the other party.
19. CANCELLATION FOR POSSESSION OF WEAPONS ON ADOT PROPERTY
This contract may be cancelled if Contractor or any subcontractors or others in the employ or under the
supervision of the Contractor or subcontractors is found to be in possession of weapons.
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
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Procurement
Possession of weapons (firearms, explosive device, knife or blade of more than three inches, or any
other instrument designed for lethal or disabling use) is prohibited on ADOT property.
Further, if the Contractor or any subcontractors or others in the employ or under the supervision of the
Contractors or subcontractors are asked by an ADOT official to leave the ADOT property, they are
advised that failure to comply with such a request shall result in cancellation of the contract and anyone
who refuses, whether armed or not, is subject to prosecution under A.R.S. § 13-1502, "Criminal trespass
in the third degree; classification."
20. INDEMNIFICATION CLAUSE
To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State
of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents,
and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions,
liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim
processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal
injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be
caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of its
owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or
amount arising out of, or recovered under, the Workers’ Compensation Law or arising out of the failure
of such Contractor to conform to any federal, state, or local law, statute, ordinance, rule, regulation, or
court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except
for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified
by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for
primary loss investigation, defense, and judgment costs where this indemnification is applicable. In
consideration of the award of this contract, the Contractor agrees to waive all rights of subrogation
against the State of Arizona, its officers, officials, agents, and employees for losses arising from the work
performed by the Contractor for the State of Arizona. This indemnity shall not apply if the contractor or
sub-contractor(s) is/are an agency, board, commission or university of the State of Arizona.
21. INSURANCE
The Contractor shall furnish Certificate(s) of Insurance inclusive of the following requirements to the
Department. Certificate(s) shall be received within ten (10) calendar days of notification of contract
award by the Procurement Officer.
21.1. Contractor and subcontractors shall procure and maintain, until all of their obligations have
been discharged, including any warranty periods under this Contract, insurance against claims
for injury to persons or damage to property arising from, or in connection with, the
performance of the work hereunder by the Contractor, its agents, representatives, employees
or subcontractors.
21.2. The Insurance Requirements herein are minimum requirements for this Contract and in no
way limit the indemnity covenants contained in this Contract. The State of Arizona in no way
warrants that the minimum limits contained herein are sufficient to protect the Contractor
from liabilities that arise out of the performance of the work under this Contract by the
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 20 of 34
Procurement
Contractor, its agents, representatives, employees or subcontractors, and the Contractor is
free to purchase additional insurance.
21.3. Minimum Scope and Limits of Insurance: Contractor shall provide coverage with limits of
liability not less than those stated below.
21.3.1. Commercial General Liability (CGL) – Occurrence Form
Policy shall include bodily injury, property damage, and broad form contractual liability
coverage.
General Aggregate
$2,000,000
Products – Completed Operations Aggregate
$1,000,000
Personal and Advertising Injury
$1,000,000
Damage to Rented Premises
$50,000
Each Occurrence
$1,000,000
Garagekeepers Legal Liability - Direct Primary Coverage:
o Per Auto
$ 500,000
o Comprehensive - aggregate
$1,000,000
o Collision
$ 500,000
a. The policy shall be endorsed to include direct primary Garagekeepers Legal Liability
coverage.
b. Policy shall be endorsed, per this written agreement, to include Products Liability.
c. The policy shall be endorsed, as required by this written agreement, to include the State
of Arizona, and its departments, agencies, boards, commissions, universities, officers,
officials, agents, and employees as additional insureds with respect to liability arising
out of the activities performed by or on behalf of the Contractor.
d. Policy shall contain a waiver of subrogation endorsement, as required by this written
agreement, in favor of the State of Arizona, and its departments, agencies, boards,
commissions, universities, officers, officials, agents, and employees for losses arising
from work performed by or on behalf of the Contractor.
21.3.2. Business Automobile Liability: Bodily Injury and Property Damage for any owned, hired,
and/or non-owned automobiles used in the performance of this Contract.
Combined Single Limit (CSL)
$1,000,000
a. Policy shall be endorsed, as required by this written agreement, to include the State of
Arizona, and its departments, agencies, boards, commissions, universities, officers,
officials, agents, and employees as additional insureds with respect to liability arising
out of the activities performed by, or on behalf of, the Contractor involving automobiles
owned, hired and/or non-owned by the Contractor.
b. Policy shall contain a waiver of subrogation endorsement as required by this written
agreement in favor of the State of Arizona, and its departments, agencies, boards,
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 21 of 34
Procurement
commissions, universities, officers, officials, agents, and employees for losses arising
from work performed by or on behalf of the Contractor.
21.3.3. Workers’ Compensation and Employers' Liability
Workers' Compensation
Statutory
Employers' Liability
o Each Accident
$1,000,000
o Disease – Each Employee
$1,000,000
o Disease – Policy Limit
$1,000,000
a. Policy shall contain a waiver of subrogation endorsement, as required by this
written agreement, in favor of the State of Arizona, and its departments,
agencies, boards, commissions, universities, officers, officials, agents, and
employees for losses arising from work performed by or on behalf of the
Contractor.
b. This requirement shall not apply to each Contractor or subcontractor that is
exempt under A.R.S. § 23-901, and when such Contractor or subcontractor
executes the appropriate waiver form (Sole Proprietor or Independent
Contractor).
21.4. Additional Insurance Requirements: The policies shall include, or be endorsed to include, as
required by this written agreement, the following provisions:
21.4.1. The Contractor's policies, as applicable, shall stipulate that the insurance afforded the
Contractor shall be primary and that any insurance carried by the Department, its agents,
officials, employees or the State of Arizona shall be excess and not contributory insurance,
as provided by A.R.S. § 41-621 (E).
21.4.2. Insurance provided by the Contractor shall not limit the Contractor’s liability assumed under
the indemnification provisions of this Contract.
21.5. Notice of Cancellation
Applicable to all insurance policies required within the Insurance Requirements of this
Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled,
or be materially changed for any reason without thirty (30) days prior written notice to the
State of Arizona. Within two (2) business days of receipt, Contractor must provide notice to
the State of Arizona if they receive notice of a policy that has been or will be suspended,
canceled, materially changed for any reason, has expired, or will be expiring. Such notice shall
be sent directly to the Department and shall be mailed, emailed, hand delivered or sent by
facsimile transmission to (ADOT Procurement Office, 1739 W. Jackson Street, Phoenix, AZ).
21.6. Acceptability of Insurers
Contractor’s insurance shall be placed with companies licensed in the State of Arizona or hold
approved non-admitted status on the Arizona Department of Insurance List of Qualified
Unauthorized Insurers. Insurers shall have an “A.M. Best” rating of not less than A- VII. The
State of Arizona in no way warrants that the above-required minimum insurer rating is
sufficient to protect the Contractor from potential insurer insolvency.
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 22 of 34
Procurement
21.7. Verification of Coverage
Contractor shall furnish the State of Arizona with certificates of insurance (valid ACORD form
or equivalent approved by the State of Arizona) evidencing that Contractor has the insurance
as required by this Contract. An authorized representative of the insurer shall sign the
certificates.
21.7.1. All such certificates of insurance and policy endorsements must be received by the State
before work commences. The State’s receipt of any certificates of insurance or policy
endorsements that do not comply with this written agreement shall not waive or otherwise
affect the requirements of this agreement.
21.7.2. Each insurance policy required by this Contract must be in effect at, or prior to,
commencement of work under this Contract. Failure to maintain the insurance policies as
required by this Contract, or to provide evidence of renewal, is a material breach of
contract.
21.7.3. All certificates required by this Contract shall be sent directly to the Department. The State
of Arizona project/contract number and project description shall be noted on the certificate
of insurance. The State of Arizona reserves the right to require complete copies of all
insurance policies required by this Contract at any time.
21.8. Subcontractors
Contractor’s certificate(s) shall include all subcontractors as insureds under its policies or
Contractor shall be responsible for ensuring and/or verifying that all subcontractors have valid
and collectable insurance as evidenced by the certificates of insurance and endorsements for
each subcontractor. All coverages for subcontractors shall be subject to the minimum
Insurance Requirements identified above. The Department reserves the right to require, at
any time throughout the life of the Contract, proof from the Contractor that its subcontractors
have the required coverage.
21.9. Approval and Modifications
The Contracting Agency, in consultation with State Risk, reserves the right to review or make
modifications to the insurance limits, required coverages, or endorsements throughout the
life of this contract, as deemed necessary. Such action will not require a formal Contract
amendment but may be made by administrative action.
21.10.
Exceptions
In the event the Contractor or subcontractor(s) is/are a public entity, then the Insurance
Requirements shall not apply. Such public entity shall provide a certificate of self-insurance. If
the Contractor or subcontractor(s) is/are a State of Arizona agency, board, commission, or
university, none of the above shall apply.
22. USAGE REPORT
The Contractor shall furnish the Department a quarterly report showing purchasing activity under
this contract. This usage report shall be provided in a form substantially equivalent to Exhibit 3.
Usage reports shall be submitted to the Procurement Officer no later than 30 days after the end of
each quarter.
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 23 of 34
Procurement
Usage report quarters shall be defined as follows:
January through March – Report due April 30
April through June – Report due July 30
July through September – Report due October 30
October through December – Report due January 30
Contractor shall submit to State a Quarterly Usage Report documenting all Contract sales to both Eligible
Agencies and Co-Op Buyers, itemized separately. A Quarterly Usage Report shall still be submitted, even
if there have been no sales to either Eligible Agencies and/or Co-Op Buyers. 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
23. CO-OP USAGE
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://spo.az.gov/procurement-services/cooperative-procurement/state-purchasing-cooperative
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).
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 one (1%) percent. 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://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
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 they were with an Eligible Agency, and
Contractor’s refusal to do so would be a material breach of the Contract.
24. CONTRACT ORDER OF PRECEDENCE
In the event of a conflict in the provisions of the Contract, as accepted by the Department and
as they may be amended, the following shall prevail in the order set forth below:
SPECIAL TERMS AND CONDITIONS
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 24 of 34
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Federal Terms and Conditions;
Special Terms and Conditions;
Uniform Terms and Conditions;
Statement or Scope of Work;
Specifications;
Attachments;
Exhibits
25. KEY PERSONNEL
It is essential that the Contractor provides adequate experienced personnel, capable of and devoted to
the successful accomplishment of work to be performed under this contract. The Contractor must agree
to assign specific individuals to the key positions.
The Contractor agrees that, once assigned to work under this contract, key personnel shall not be
removed or replaced without written notice to the Procurement Officer. The Contractor shall
immediately notify the Procurement Officer of key personnel changes. Replacement personnel shall be
of substantially equal ability and qualifications. All key personnel changes are subject to the written
concurrence of the Procurement Officer prior to any billable work being performed.
26. LICENSES, PERMITS, CERTIFICATIONS
Contractor, at their expense, shall maintain in current status without any violations, complaints, or
suspensions during the term of this contract all Federal, State and Local licenses, permits and
certifications required for the operation of a business conducted by the Contractor.
27. SERIAL NUMBERS
Equipment supplied under this contract must contain an original manufacturer’s serial number. Serial
number may not be altered in any way. Throughout the contract term, the Department reserves the
right to reject any altered equipment.
28. POST AWARD MEETING
At the discretion of the Department, the Contractor, at their expense, shall attend and
participate in post award meetings as scheduled by the Procurement Officer.
Uniform Terms and Conditions
Page 1 of 10
Updated: July 1, 2013
UNIFORM TERMS AND CONDITIONS
Version 9
1.
Definition of Terms
As used in this Solicitation and any resulting Contract, the terms listed below are defined as
follows:
1.1.
“Attachment” means any item the Solicitation requires the Offeror to submit as part of
the Offer.
1.2.
“Contract” means the combination of the Solicitation, including the Uniform and Special
Instructions to Offerors, the Uniform and Special Terms and Conditions, and the
Specifications and Statement or Scope of Work; the Offer and any Best and Final Offers;
and any Solicitation Amendments or Contract Amendments.
1.3.
"Contract Amendment" means a written document signed by the Procurement Officer
that is issued for the purpose of making changes in the Contract.
1.4.
“Contractor” means any person who has a Contract with the State.
1.5.
“Days” means calendar days unless otherwise specified.
1.6.
“Exhibit” means any item labeled as an Exhibit in the Solicitation or placed in the Exhibits
section of the Solicitation.
1.7.
“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.
1.8.
“Materials” means 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.
1.9.
“Procurement Officer” means the person, or his or her designee, duly authorized by the
State to enter into and administer Contracts and make written determinations with
respect to the Contract.
1.10.
“Services” means the furnishing of labor, time or effort by a contractor or subcontractor
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.
1.11.
“Subcontract” means any Contract, express or implied, between the 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 material or any service required for the
performance of the Contract.
1.12.
“State” means the State of Arizona and Department or Agency of the State that executes
the Contract.
1.13.
“State Fiscal Year” means the period beginning with July 1 and ending June 30.
Uniform Terms and Conditions
Page 2 of 10
Updated: July 1, 2013
2.
Contract Interpretation
2.1.
Arizona Law. The Arizona law applies to this Contract including, where applicable, the
Uniform Commercial Code as adopted by the State of Arizona and the Arizona
Procurement Code, Arizona Revised Statutes (A.R.S.) Title 41, Chapter 23, and its
implementing rules, Arizona Administrative Code (A.A.C.) Title 2, Chapter 7.
2.2.
Implied Contract Terms. Each provision of law and any terms required by law to be in
this Contract are a part of this Contract as if fully stated in it.
2.3.
Contract Order of Precedence. In the event of a conflict in the provisions of the
Contract, as accepted by the State and as they may be amended, the following shall
prevail in the order set forth below:
2.3.1. Special Terms and Conditions;
2.3.2. Uniform Terms and Conditions;
2.3.3. Statement or Scope of Work;
2.3.4. Specifications;
2.3.5. Attachments;
2.3.6. Exhibits;
2.3.7. Documents referenced or included in the Solicitation.
2.4.
Relationship of Parties. The Contractor under this Contract is an independent
Contractor. Neither party to this Contract shall be deemed to be the employee or agent
of the other party to the Contract.
2.5.
Severability. The provisions of this Contract are severable. Any term or condition
deemed illegal or invalid shall not affect any other term or condition of the Contract.
2.6.
No Parole Evidence. This Contract is intended by the parties as a final and complete
expression of their agreement. No course of prior dealings between the parties and no
usage of the trade shall supplement or explain any terms used in this document and no
other understanding either oral or in writing shall be binding.
2.7.
No Waiver. Either party’s failure to insist on strict performance of any term or condition
of the Contract shall not be deemed a waiver of that term or condition even if the party
accepting or acquiescing in the nonconforming performance knows of the nature of the
performance and fails to object to it.
3.
Contract Administration and Operation
3.1.
Records. Under A.R.S. § 35-214 and § 35-215, the Contractor shall retain and shall
contractually require each subcontractor to retain all data and other “records” relating
to the acquisition and performance of the Contract for a period of five years after the
completion of the Contract. All records shall be subject to inspection and audit by the
State at reasonable times. Upon request, the Contractor shall produce a legible copy of
any or all such records.
Uniform Terms and Conditions
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3.2.
Non-Discrimination. The Contractor shall comply with State Executive Order No. 2009-
09 and all other applicable Federal and State laws, rules and regulations, including the
Americans with Disabilities Act.
3.3.
Audit. Pursuant to ARS § 35-214, at any time during the term of this Contract and five
(5) years thereafter, the Contractor’s or any subcontractor’s books and records shall be
subject to audit by the State and, where applicable, the Federal Government, to the
extent that the books and records relate to the performance of the Contract or
Subcontract.
3.4.
Facilities Inspection and Materials Testing. The Contractor agrees to permit access to its
facilities, subcontractor facilities and the Contractor’s processes or services, at
reasonable times for inspection of the facilities or materials covered under this Contract.
The State shall also have the right to test, at its own cost, the materials to be supplied
under this Contract. Neither inspection of the Contractor’s facilities nor materials
testing shall constitute final acceptance of the materials or services. If the State
determines non-compliance of the materials, the Contractor shall be responsible for the
payment of all costs incurred by the State for testing and inspection.
3.5.
Notices. Notices to the Contractor required by this Contract shall be made by the State
to the person indicated on the Offer and Acceptance form submitted by the Contractor
unless otherwise stated in the Contract. Notices to the State required by the Contract
shall be made by the Contractor to the Solicitation Contact Person indicated on the
Solicitation cover sheet, unless otherwise stated in the Contract. An authorized
Procurement Officer and an authorized Contractor representative may change their
respective person to whom notice shall be given by written notice to the other and an
amendment to the Contract shall not be necessary.
3.6.
Advertising, Publishing and Promotion of Contract. The Contractor shall not use,
advertise or promote information for commercial benefit concerning this Contract
without the prior written approval of the Procurement Officer.
3.7.
Property of the State. Any materials, including reports, computer programs and other
deliverables, created under this Contract are the sole property of the State. The
Contractor is not entitled to a patent or copyright on those materials and may not
transfer the patent or copyright to anyone else. The Contractor shall not use or release
these materials without the prior written consent of the State.
3.8.
Ownership of Intellectual Property. Any and all intellectual property, including but not
limited to copyright, invention, trademark, trade name, service mark, and/or trade
secrets created or conceived pursuant to or as a result of this contract and any related
subcontract (“Intellectual Property”), shall be work made for hire and the State shall be
considered the creator of such Intellectual Property. The agency, department, division,
board or commission of the State of Arizona requesting the issuance of this contract
shall own (for and on behalf of the State) the entire right, title and interest to the
Intellectual Property throughout the world. Contractor shall notify the State, within
thirty (30) days, of the creation of any Intellectual Property by it or its subcontractor(s).
Contractor, on behalf of itself and any subcontractor(s), agrees to execute any and all
document(s) necessary to assure ownership of the Intellectual Property vests in the
State and shall take no affirmative actions that might have the effect of vesting all or
part of the Intellectual Property in any entity other than the State. The Intellectual
Property shall not be disclosed by contractor or its subcontractor(s) to any entity not the
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State without the express written authorization of the agency, department, division,
board or commission of the State of Arizona requesting the issuance of this contract.
3.9.
Federal Immigration and Nationality Act. The contractor shall comply with all federal,
state and local immigration laws and regulations relating to the immigration status of
their employees during the term of the contract. Further, the contractor shall flow down
this requirement to all subcontractors utilized during the term of the contract. The State
shall retain the right to perform random audits of contractor and subcontractor records
or to inspect papers of any employee thereof to ensure compliance. Should the State
determine that the contractor and/or any subcontractors be found noncompliant, the
State may pursue all remedies allowed by law, including, but not limited to; suspension
of work, termination of the contract for default and suspension and/or debarment of the
contractor.
3.10
E-Verify Requirements. In accordance with A.R.S. § 41-4401, Contractor warrants
compliance with all Federal immigration laws and regulations relating to employees and
warrants its compliance with Section A.R.S. § 23-214, Subsection A.
3.11
Offshore Performance of Work Prohibited.
Any services that are described in the specifications or scope of work that directly serve
the State of Arizona or its clients and involve access to secure or sensitive data or
personal client data shall be performed within the defined territories of the United
States. Unless specifically stated otherwise in the specifications, this paragraph does not
apply to indirect or 'overhead' services, redundant back-up services or services that are
incidental to the performance of the contract. This provision applies to work performed
by subcontractors at all tiers.
4.
Costs and Payments
4.1.
Payments. Payments shall comply with the requirements of A.R.S. Titles 35 and 41, Net
30 days. Upon receipt and acceptance of goods or services, the Contractor shall submit
a complete and accurate invoice for payment from the State within thirty (30) days.
4.2.
Delivery. Unless stated otherwise in the Contract, all prices shall be F.O.B. Destination
and shall include all freight delivery and unloading at the destination.
4.3.
Applicable Taxes.
4.3.1. Payment of Taxes. The Contractor shall be responsible for paying all applicable
taxes.
4.3.2. State and Local Transaction Privilege Taxes. The State of Arizona is subject to all
applicable state and local transaction privilege taxes. Transaction privilege taxes
apply to the sale and are the responsibility of the seller to remit. Failure to
collect such taxes from the buyer does not relieve the seller from its obligation
to remit taxes.
4.3.3. Tax Indemnification. Contractor and all subcontractors shall pay all Federal,
state and local taxes applicable to its operation and any persons employed by
the Contractor. Contractor shall, and require all subcontractors to hold the State
harmless from any responsibility for taxes, damages and interest, if applicable,
contributions required under Federal, and/or state and local laws and
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regulations and any other costs including transaction privilege taxes,
unemployment compensation insurance, Social Security and Worker’s
Compensation.
4.3.4. IRS W9 Form. In order to receive payment the Contractor shall have a current
I.R.S. W9 Form on file with the State of Arizona, unless not required by law.
4.4.
Availability of Funds for the Next State fiscal year. Funds may not presently be available
for performance under this Contract beyond the current state fiscal year. No legal
liability on the part of the State for any payment may arise under this Contract beyond
the current state fiscal year until funds are made available for performance of this
Contract.
4.5.
Availability of Funds for the current State fiscal year. Should the State Legislature enter
back into session and reduce the appropriations or for any reason and these goods or
services are not funded, the State may take any of the following actions:
4.5.1.
Accept a decrease in price offered by the contractor;
4.5.2.
Cancel the Contract; or
4.5.3.
Cancel the contract and re-solicit the requirements.
5.
Contract Changes
5.1.
Amendments. This Contract is issued under the authority of the Procurement Officer
who signed this Contract. The Contract may be modified only through a Contract
Amendment within the scope of the Contract. Changes to the Contract, including the
addition of work or materials, the revision of payment terms, or the substitution of work
or materials, directed by a person who is not specifically authorized by the procurement
officer in writing or made unilaterally by the Contractor are violations of the Contract and
of applicable law. Such changes, including unauthorized written Contract Amendments
shall be void and without effect, and the Contractor shall not be entitled to any claim
under this Contract based on those changes.
5.2.
Subcontracts. The Contractor shall not enter into any Subcontract under this Contract for
the performance of this contract without the advance written approval of the
Procurement Officer. The Contractor shall clearly list any proposed subcontractors and
the subcontractor’s proposed responsibilities. The Subcontract shall incorporate by
reference the terms and conditions of this Contract.
5.3.
Assignment and Delegation. The Contractor shall not assign any right nor delegate any
duty under this Contract without the prior written approval of the Procurement Officer.
The State shall not unreasonably withhold approval.
6.
Risk and Liability
6.1.
Risk of Loss: The Contractor shall bear all loss of conforming material covered under this
Contract until received by authorized personnel at the location designated in the
purchase order or Contract. Mere receipt does not constitute final acceptance. The risk
of loss for nonconforming materials shall remain with the Contractor regardless of
receipt.
Uniform Terms and Conditions
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6.2.
Indemnification
6.2.1.
Contractor/Vendor Indemnification (Not Public Agency) The parties to this
contract agree that the State of Arizona, its departments, agencies, boards and
commissions shall be indemnified and held harmless by the contractor for the
vicarious liability of the State as a result of entering into this contract. However,
the parties further agree that the State of Arizona, its departments, agencies,
boards and commissions shall be responsible for its own negligence. Each party
to this contract is responsible for its own negligence.
6.2.2.
Public Agency Language Only 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."
6.3.
Indemnification - Patent and Copyright. The Contractor shall indemnify and hold
harmless the State against any liability, including costs and expenses, for infringement of
any patent, trademark or copyright arising out of Contract performance or use by the
State of materials furnished or work performed under this Contract. The State shall
reasonably notify the Contractor of any claim for which it may be liable under this
paragraph. If the contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this
section shall not apply.
6.4.
Force Majeure.
6.4.1
Except for payment of sums due, neither party shall be liable to the other nor
deemed in default under this Contract if and to the extent that such party’s
performance of this Contract is prevented by reason of force majeure. The term
“force majeure” means an occurrence that is beyond the control of the party
affected and occurs without its fault or negligence. Without limiting the
foregoing, force majeure includes acts of God; acts of the public enemy; war;
riots; strikes; mobilization; labor disputes; civil disorders; fire; flood; lockouts;
injunctions-intervention-acts; or failures or refusals to act by government
authority; and other similar occurrences beyond the control of the party
declaring force majeure which such party is unable to prevent by exercising
reasonable diligence.
6.4.2. Force Majeure shall not include the following occurrences:
6.4.2.1. Late delivery of equipment or materials caused by congestion at a
manufacturer’s plant or elsewhere, or an oversold condition of the
market;
6.4.2.2. Late performance by a subcontractor unless the delay arises out of a
force majeure occurrence in accordance with this force majeure term
and condition; or
6.4.2.3. Inability of either the Contractor or any subcontractor to acquire or
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maintain any required insurance, bonds, licenses or permits.
6.4.3. If either party is delayed at any time in the progress of the work by force
majeure, the delayed party shall notify the other party in writing of such delay,
as soon as is practicable and no later than the following working day, of the
commencement thereof and shall specify the causes of such delay in such
notice. Such notice shall be delivered or mailed certified-return receipt and shall
make a specific reference to this article, thereby invoking its provisions. The
delayed party shall cause such delay to cease as soon as practicable and shall
notify the other party in writing when it has done so. The time of completion
shall be extended by Contract Amendment for a period of time equal to the time
that results or effects of such delay prevent the delayed party from performing
in accordance with this Contract.
6.4.4. Any delay or failure in performance by either party hereto shall not constitute
default hereunder or give rise to any claim for damages or loss of anticipated
profits if, and to the extent that such delay or failure is caused by force majeure.
6.5.
Third Party Antitrust Violations. The Contractor assigns to the State any claim for
overcharges resulting from antitrust violations to the extent that those violations
concern materials or services supplied by third parties to the Contractor, toward
fulfillment of this Contract.
7.
Warranties
7.1.
Liens. The Contractor warrants that the materials supplied under this Contract are free
of liens and shall remain free of liens.
7.2.
Quality. Unless otherwise modified elsewhere in these terms and conditions, the
Contractor warrants that, for one year after acceptance by the State of the materials,
they shall be:
7.2.1. Of a quality to pass without objection in the trade under the Contract
description;
7.2.2. Fit for the intended purposes for which the materials are used;
7.2.3. Within the variations permitted by the Contract and are of even kind, quantity,
and quality within each unit and among all units;
7.2.4. Adequately contained, packaged and marked as the Contract may require; and
7.2.5. Conform to the written promises or affirmations of fact made by the Contractor.
7.3.
Fitness. The Contractor warrants that any material supplied to the State shall fully
conform to all requirements of the Contract and all representations of the Contractor,
and shall be fit for all purposes and uses required by the Contract.
7.4.
Inspection/Testing. The warranties set forth in subparagraphs 7.1 through 7.3 of this
paragraph are not affected by inspection or testing of or payment for the materials by
the State.
7.5.
Compliance With Applicable Laws. The materials and services supplied under this
Uniform Terms and Conditions
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Contract shall comply with all applicable Federal, state and local laws, and the
Contractor shall maintain all applicable license and permit requirements.
7.6.
Survival of Rights and Obligations after Contract Expiration or Termination.
7.6.1. Contractor's Representations and Warranties. All representations and
warranties made by the Contractor under this Contract shall survive the
expiration or termination hereof. In addition, the parties hereto acknowledge
that pursuant to A.R.S. § 12-510, except as provided in A.R.S. § 12-529, the
State is not subject to or barred by any limitations of actions prescribed in A.R.S.,
Title 12, Chapter 5.
7.6.2. Purchase Orders. The Contractor shall, in accordance with all terms and
conditions of the Contract, fully perform and shall be obligated to comply with
all purchase orders received by the Contractor prior to the expiration or
termination hereof, unless otherwise directed in writing by the Procurement
Officer, including, without limitation, all purchase orders received prior to but
not fully performed and satisfied at the expiration or termination of this
Contract.
8.
State's Contractual Remedies
8.1.
Right to Assurance. If the State in good faith has reason to believe that the Contractor
does not intend to, or is unable to perform or continue performing under this Contract,
the Procurement Officer may demand in writing that the Contractor give a written
assurance of intent to perform. Failure by the Contractor to provide written assurance
within the number of Days specified in the demand may, at the State’s option, be the
basis for terminating the Contract under the Uniform Terms and Conditions or other
rights and remedies available by law or provided by the contract.
8.2.
Stop Work Order.
8.2.1. The State may, at any time, by written order to the Contractor, require the
Contractor to stop all or any part, of the work called for by this Contract for
period(s) of days indicated by the State after the order is delivered to the
Contractor. The order shall be specifically identified as a stop work order issued
under this clause. Upon receipt of the order, the Contractor shall immediately
comply with its terms and take all reasonable steps to minimize the incurrence
of costs allocable to the work covered by the order during the period of work
stoppage.
8.2.2. If a stop work order issued under this clause is canceled or the period of the
order or any extension expires, the Contractor shall resume work. The
Procurement Officer shall make an equitable adjustment in the delivery
schedule or Contract price, or both, and the Contract shall be amended in
writing accordingly.
8.3.
Non-exclusive Remedies. The rights and the remedies of the State under this Contract
are not exclusive.
8.4.
Nonconforming Tender. Materials or services supplied under this Contract shall fully
comply with the Contract. The delivery of materials or services or a portion of the
materials or services that do not fully comply constitutes a breach of contract. On
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delivery of nonconforming materials or services, the State may terminate the Contract
for default under applicable termination clauses in the Contract, exercise any of its rights
and remedies under the Uniform Commercial Code, or pursue any other right or remedy
available to it.
8.5.
Right of Offset. The State shall be entitled to offset against any sums due the
Contractor, any expenses or costs incurred by the State, or damages assessed by the
State concerning the Contractor’s non-conforming performance or failure to perform the
Contract, including expenses, costs and damages described in the Uniform Terms and
Conditions.
9.
Contract Termination
9.1.
Cancellation for Conflict of Interest. Pursuant to A.R.S. § 38-511, the State may cancel
this Contract within three (3) years after Contract execution without penalty or further
obligation if any person significantly involved in initiating, negotiating, securing, drafting
or creating the Contract on behalf of the State is or becomes at any time while the
Contract or an extension of the Contract is in effect an employee of or a consultant to
any other party to this Contract with respect to the subject matter of the Contract. The
cancellation shall be effective when the Contractor receives written notice of the
cancellation unless the notice specifies a later time. If the Contractor is a political
subdivision of the State, it may also cancel this Contract as provided in A.R.S. § 38-511.
9.2.
Gratuities. The State may, by written notice, terminate this Contract, in whole or in part,
if the State determines that employment or a Gratuity was offered or made by the
Contractor or a representative of the Contractor to any officer or employee of the State
for the purpose of influencing the outcome of the procurement or securing the Contract,
an amendment to the Contract, or favorable treatment concerning the Contract,
including the making of any determination or decision about contract performance. The
State, in addition to any other rights or remedies, shall be entitled to recover exemplary
damages in the amount of three times the value of the Gratuity offered by the
Contractor.
9.3.
Suspension or Debarment. The State may, by written notice to the Contractor,
immediately terminate this Contract if the State determines that the 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. Submittal of
an offer or execution of a contract shall attest that the contractor is not currently
suspended or debarred. If the contractor becomes suspended or debarred, the
contractor shall immediately notify the State.
9.4.
Termination for Convenience. The State reserves the right to terminate the Contract, in
whole or in part at any time when in the best interest of the State, without penalty or
recourse. Upon receipt of the written notice, the Contractor shall stop all work, as
directed in the notice, notify all subcontractors of the effective date of the termination
and minimize all further costs to the State. In the event of termination under this
paragraph, all documents, data and reports prepared by the Contractor under the
Contract shall become the property of and be delivered to the State upon demand. The
Contractor shall be entitled to receive just and equitable compensation for work in
progress, work completed and materials accepted before the effective date of the
termination. The cost principles and procedures provided in A.A.C. R2-7-701 shall apply.
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9.5.
Termination for Default.
9.5.1. In addition to the rights reserved in the contract, the State may terminate the
Contract in whole or in part due to the failure of the Contractor to comply with
any term or condition of the Contract, to acquire and maintain all required
insurance policies, bonds, licenses and permits, or to make satisfactory progress
in performing the Contract. The Procurement Officer shall provide written
notice of the termination and the reasons for it to the Contractor.
9.5.2. Upon termination under this paragraph, all goods, materials, documents, data
and reports prepared by the Contractor under the Contract shall become the
property of and be delivered to the State on demand.
9.5.3. The State may, upon termination of this Contract, procure, on terms and in the
manner that it deems appropriate, materials or services to replace those under
this Contract. The Contractor shall be liable to the State for any excess costs
incurred by the State in procuring materials or services in substitution for those
due from the Contractor.
9.6.
Continuation of Performance Through Termination. The Contractor shall continue to
perform, in accordance with the requirements of the Contract, up to the date of
termination, as directed in the termination notice.
10.
Contract Claims
All contract claims or controversies under this Contract shall be resolved according to A.R.S. Title
41, Chapter 23, Article 9, and rules adopted thereunder.
11.
Arbitration
The parties to this Contract agree to resolve all disputes arising out of or relating to this contract
through arbitration, after exhausting applicable administrative review, to the extent required by
A.R.S. § 12-1518, except as may be required by other applicable statutes (Title 41).
12.
Comments Welcome
The State Procurement Office periodically reviews the Uniform Terms and Conditions and
welcomes any comments you may have. Please submit your comments to: State Procurement
Administrator, State Procurement Office, 100 North 15th Avenue, Suite 201, Phoenix, Arizona,
85007.
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 1 of 40
Procurement
1. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
The following provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required
by
DOT,
as
set
forth
in
FTA
Circular
4220
available
at:
https://www.transit.dot.gov/regulations-and-guidance/fta-circulars/third-party-contracting-
guidance are hereby incorporated by reference. Anything to the contrary herein notwithstanding,
all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions
contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or
refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be
in violation of the FTA terms and conditions.
The Federal Terms and Conditions under this Contract shall be incorporated in any sub-contractor,
or lower-tier agreement for any federally-funded task assignment / project awarded under this
Contract.
2. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD PARTIES
The Department and Contractor acknowledge and agree that, notwithstanding any concurrence by
the Federal Government in or approval of the solicitation or award of the underlying contract,
absent the express written consent by the Federal Government, the Federal Government is not a
party to this contract and shall not be subject to any obligations or liabilities to the Department,
Contractor, or any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying contract.
The Contractor agrees to include the above clause in each subcontract financed in whole or in part
with Federal assistance provided by Federal Funding Agency. It is further agreed that the clause
shall not be modified, except to identify the subcontractor who will be subject to its provisions.
3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS
Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as
amended, 31 USC 3801 et seq. and USDOT regulations, "Program Fraud Civil Remedies," 49 CFR 31,
apply to its actions pertaining to this project.
Upon execution of the underlying contract, contractor certifies or affirms the truthfulness and
accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to
the underlying contract or FTA assisted project for which this contract work is being performed. In
addition to other penalties that may be applicable, contractor further acknowledges that if it
makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submittal, or
certification, the US Government reserves the right to impose the penalties of the Program Fraud
Civil Remedies Act (1986) on contractor to the extent the US Government deems appropriate.
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 2 of 40
Procurement
The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the
right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) (5323(I)) on the
Contractor, to the extent the Federal Government deems appropriate.
Contractor shall include the above two clauses in each subcontract financed in whole or in part
with FTA assistance. The clauses shall not be modified, except to identify the subcontractor who
will be subject to the provisions.
4. ACCESS TO RECORDS AND REPORTS
The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor shall -
provide the Purchaser, the FTA, the US Comptroller General or their authorized representatives
access to any books, documents, papers and contractor records which are pertinent to this
contract for the purposes of making audits, examinations, excerpts and transcriptions.
Contractor shall also , pursuant to 49 C. F. R. 633.15, provide authorized FTA representative
including any PMO Contractor access to Contractor's records and construction sites pertaining
to a capital project, defined at 49
U.S.C. 5302(a)1, which is receiving assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 C.F.R. 633.15, Contractor shall provide the Purchaser, authorized FTA
representatives, including any PMO Contractor, access to the Contractor's records and
construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which
receives FTA assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By
definition, a major capital project excludes contracts of less than the simplified acquisition
threshold currently set at
$250,000.00.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or
under the simplified acquisition threshold and is an institution of higher education, a hospital
or other non- profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 C.F.R. 19.48, Contractor shall provide the Purchaser, FTA, the US
Comptroller General or their authorized representatives with access to any books, documents,
papers and record of the Contractor which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions.
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4. Where a Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or
improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the
Contractor shall make available records related to the contract to the Purchaser, the Secretary
of USDOT and the US Comptroller General or any authorized officer or employee of any of
them for the purposes of conducting an audit and inspection.
5. Contractor shall permit any of the foregoing parties to reproduce by any means whatsoever or
to copy excerpts and transcriptions as reasonably needed.
6. The Contractor shall retain, and shall require its subcontractors at all tiers, all books, records,
accounts and reports required under this contract for a period of not less than five years after
the date of termination or expiration of this contract, except in the event of litigation or
settlement of claims arising from the performance of this contract, in which case Contractor
agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General,
or any of their duly authorized representatives, have disposed of all such litigation, appeals,
claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).
5. TERMS OF THE MASTER AGREEMENT AND COMPLIANCE
Contractor shall at all times comply with all applicable Federal Funding Agency laws, regulations,
policies, procedures and directives, including without limitation those listed directly or by reference
in
the
Master
Agreement,
available
at
https://www.transit.dot.gov/funding/grantee-
resources/sample-fta-agreements/fta-grant-agreements, between the Department and FTA, as
they may be amended or promulgated from time to time during the term of this contract. This
Master Agreement does not have an Expiration Date. This Master Agreement continues to apply to
the Recipient and its Underlying Agreement, until modified or superseded by a more recently
enacted or issued applicable federal law, regulation, requirement, or guidance, or amendment to
this Master Agreement or the Underlying Agreement. To assure compliance the Recipient must
take measures to assure that other participants in its Underlying Agreements (e.g., Third Party
Participants) comply. Contractor's failure to so comply shall constitute a material breach of this
contract.
All contractual provisions required by the U.S. Department of Transportation are hereby
incorporated by reference. In the event of additional funding provided by FHWA, the applicable
requirements
of
the
Stewardship
Agreement,
available
at
https://www.fhwa.dot.gov/federalaid/stewardship, between the Department and FHWA are
incorporated by reference.
6. CIVIL RIGHTS REQUIREMENTS
The AGENCY is an Equal Opportunity Employer. As such, the AGENCY agrees to comply with all
applicable Federal civil rights laws and implementing regulations. Apart from inconsistent
requirements imposed by Federal laws or regulations, the AGENCY agrees to comply with the
requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to
FEDERAL PROVISIONS
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support procurements using exclusionary or discriminatory specifications.
Under this Agreement, the Contractor shall at all times comply with the following requirements and
shall include these requirements in each subcontract entered into as part thereof.
Equal Employment Opportunity
1. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102,
section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal
transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any
employee or applicant for employment because of race, color, religion, national origin,
sex(including sexual orientation and gender identity), age, or disability. In addition, the
Contractor agrees to comply with applicable Federal implementing regulations and other
implementing requirements Federal Funding Agency may issue.
2. Race, Color, religion, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as
amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees
to comply with all applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order
No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42
U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations,
and Federal policies that may in the future affect construction activities undertaken in the
course of the Project. The Contractor agrees to take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without regard to their
race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to,
the following: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination; rates of pay or other forms of compensation; and selection
for training, including apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements Federal Funding Agency may issue.
3. Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to
refrain from discrimination against present and prospective employees for reason of age. In
addition, the Contractor agrees to comply with any implementing requirements Federal
Funding Agency may issue.
4. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42
U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal
Employment Opportunity Commission, "Regulations to Implement the Equal Employment
Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to
employment of persons with disabilities. In addition, the Contractor agrees to comply with any
implementing requirements Federal Funding Agency may issue.
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The Contractor also agrees to include these requirements in each subcontract financed in whole or
in part with Federal assistance provided, modified only if necessary to identify the affected parties.
7. TERMINATION
Termination of the contract shall be in accordance with the Uniform Terms and Conditions, Section
9., paragraph 9.1 through 9.6.
8. DEBARMENT OR SUSPENSION
This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is
required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or
affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940and
29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the
requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters
into.
As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to
participate in this federally funded contract and are not presently declared by any Federal
department or agency to be:
a) Debarred from participation in any federally assisted Award;
b) Suspended from participation in any federally assisted Award;
c) Proposed for debarment from participation in any federally assisted Award;
d) Declared ineligible to participate in any federally assisted Award;
e) Voluntarily excluded from participation in any federally assisted Award; or
f) Disqualified from participation in ay federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the Department. If
it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in
addition to remedies available to the Department, the Federal Government may pursue available
remedies, including but not limited to suspension and/or debarment. The bidder or proposer
agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and
throughout the period of any contract that may arise from this offer. The bidder or proposer
further agrees to include a provision requiring such compliance in its lower tier covered
transactions.
8.1 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
The Contractor agrees to the following:
(1)
It will comply with the requirements of 2 C.F.R. part 180, subpart C, as adopted and
supplemented by U.S. DOT regulations at 2 C.F.R. part 1200, which include the following:
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(a) It will not enter into any arrangement to participate in the development or
implementation of the Project with any Third Party Participant that is debarred or
suspended except as authorized by: 1 U.S. DOT regulations, “Nonprocurement
Suspension and Debarment,” 2 C.F.R. part 1200, 2 U.S. OMB, “Guidelines to Agencies
on Government wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part
180, including any amendments thereto, and 3 Executive Orders Nos. 12549 and
12689, “Debarment and Suspension,” 31 U.S.C. § 6101 note,
(b) It will review the U.S. GSA “System for Award Management,” https://www.sam.gov, if
required by U.S. DOT regulations, 2 C.F.R. part 1200, and
(c) It will include, and require each of its Third Party Participants to include, a similar
provision in each lower tier covered transaction, ensuring that each lower tier Third
Party Participant:
(1) Will comply with Federal debarment and suspension requirements, and
2
Reviews
the
“System
for
Award
Management”
at
https://www.sam.gov, if necessary to comply with U.S. DOT
regulations, 2 C.F.R. part 1200, and
If the Department suspends, debars, or takes any similar action
against a Third Party Participant or individual, the Department will
provide immediate written notice to the:
(a)
FTA Regional Counsel for the Region in which the Recipient
is located or implements the Project,
(b)
FTA Project Manager if the Project is administered by an
FTA Headquarters Office, or
(c)
FTA Chief Counsel.
9. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION
CONTROL ACT Clean Water
Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the
Federal Water Pollution Control Act, as amended, 33 USC 1251 et seq. Contractor shall report each
violation to the recipient and understands and agrees that the recipient shall, in turn, report each
violation as required to FTA and the appropriate EPA Regional Office. Contractor shall include these
requirements in each subcontract exceeding $250,000 financed in whole or in part with FTA
assistance.
Clean Air
1) Contractor shall comply with all applicable standards, orders or regulations pursuant to the
Clean Air Act, 42 USC 7401 et seq. Contractor shall report each violation to the recipient
and understands and agrees that the recipient will, in turn, report each violation as
required to FTA and the appropriate EPA Regional Office.
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2) Contractor shall include these requirements in each subcontract exceeding $250,000
financed in whole or in part with FTA assistance.
10. BUY AMERICA
In any task assignment / project for construction, acquisition of goods, or rolling stock valued at
more than $150,000, the contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. part 661,
which provide that Federal funds may not be obligated unless all steel, iron, and manufactured
products used in FTA funded projects are produced in the United States, unless a waiver has been
granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R.
§ 661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. §
661.11.
Contractor shall comply with 49 USC 5323(j) and 49 CFR 661, stating that Federal funds may not be
obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced
in the United States, unless a waiver has been granted by FTA or the product is subject to a general
waiver. General waivers are listed in 49 CFR 661.7, and include software, microcomputer
equipment and small purchases (currently less than $150,000) made with capital, operating, or
planning funds. Separate requirements for rolling stock are stated at 5323(j)(2)(C) and 49 CFR
661.11. Rolling stock must be manufactured in the US and have a minimum 65% domestic
content for FY2019 and a minimum 70% domestic content for FY2020 and beyond. A bidder or
offeror shall submit appropriate Buy America certification to the recipient with all bids on FTA-
funded contracts, except those subject to a general waiver. Proposals not accompanied by a
completed Buy America certification shall be rejected as nonresponsive. This requirement does not
apply to lower tier subcontractors.
11. BREACHES AND DISPUTE RESOLUTION
The duties and obligations imposed by the Contract Documents and the rights and remedies
available thereunder shall be in addition to and not a limitation of any duties, obligations, rights
and remedies otherwise imposed or available by law. No action or failure to act by the
(Recipient), (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of
them under the Contract, nor shall any such action or failure to act constitute an approval of or
acquiescence in any breach thereunder, except as may be specifically agreed in writing.
Disputes arising in the performance of this contract which are not resolved by agreement of the
parties shall be decided in writing by the Department. This decision shall be final and conclusive
unless within ten days from the date of receipt of its copy, contractor mails or otherwise furnishes
a written appeal to the Department. In connection with such appeal, contractor shall be afforded
an opportunity to be heard and to offer evidence in support of its position. The decision of the
Department shall be binding upon contractor and contractor shall abide by the decision. FTA has a
vested interest in the settlement of any violation of Federal law including the False Claims Act, 31
U.S.C. § 3729.
Performance During Dispute - Unless otherwise directed by the recipient, contractor shall continue
performance under this contract while matters in dispute are being resolved. Claims for Damages -
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Should either party to the contract suffer injury or damage to person or property because of any
act or omission of the party or of any of its employees, agents or others for whose acts it is legally
liable, a claim for damages therefore shall be made in writing to such other party within ten days
after the first observance of such injury or damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other
matters in question between the Department and contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of
competent jurisdiction within the residing State.
Rights and Remedies - Duties and obligations imposed by the contract documents and the rights
and remedies available thereunder shall be in addition to and not a limitation of any duties,
obligations, rights and remedies otherwise imposed or available by law. No action or failure to act
by the Department or contractor shall constitute a waiver of any right or duty afforded any of them
under the contract, nor shall any such action or failure to act constitute an approval of or
acquiescence in any breach thereunder, except as may be specifically agreed in writing.
12. LOBBYING
The Contractor agrees to comply with the provisions of Title 31, U.S. C 1352 as amended by the
Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. 1601, et seq.] and (Public
Law 101.121) as codified in Title 48, Federal Acquisition Regulations Subpart 3.8 and Subpart
52.203-11. The legislation prohibits Federal funds from being expended by a recipient or any
lower tier sub- recipients of a Federal contract, grant, loan, or cooperative agreement to pay any
person for influencing or attempting to influence a Federal agency or Congress in connection with
the award of any Federal contract, the making of any Federal grant or loan, or entering into any
cooperative agreement, including the extension, continuation, renewal, amendment or
modification of any Federal contract, grant, loan or cooperative agreement. All disclosure
statements are to be furnished to the Department.
Contractors who apply or propose/bid for an award of $100,000 or more in value shall file the
attached Lobbying Certification {01Lobbying Certification document} required by 49 CFR part 20,
"New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or employee of
Congress, or an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name
of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its
behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31
U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
13. FLY AMERICA
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with
the General Services Administration's regulations at 41 CFR Part 301-10, which provide that
recipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S
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Government- financed international air travel and transportation of their personal effects or
property, to the extent such service is available, unless travel by foreign air carrier is a matter of
necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier
was used, an appropriate certification or memorandum adequately explaining why service by a
U.S. flag air carrier was not
available or why it was necessary to use a foreign air carrier and shall, in any event, provide a
certificate of compliance with the Fly America requirements. The Contractor agrees to include the
requirements of this section in all subcontracts that may involve international air transportation.
14. ENERGY CONSERVATION
The contractor agrees to comply with mandatory standards and policies relating to energy
efficiency, stated in the state energy conservation plan issued in compliance with the Energy
Policy and Conservation Act.
15. CONFLICTS OF INTEREST / EMPLOYMENT OF FEDERAL PERSONNEL
Contractors will maintain a written code of standards of conduct governing the performance of
their employees engaged in the award and administration of contracts. No employee, officer or
agent of the Department or the Federal funding agency shall participate in selection, or in the
award or administration of a contract supported by Federal funds if a conflict of interest, real or
apparent, would be involved. Such a conflict would arise when: The employee, officer or agent,
any member of his immediate family, His or her partner, or an organization which employs, or is
about to employ, any of the above, has a financial or other interest in the firm selected for award.
Department officers, employees or agents will neither solicit nor accept gratuities, favors or
anything of monetary value from contractors, potential contractors, or parties to subagreements.
16. COPYRIGHT AND PATENT
To the extent permitted by A.R.S. § 41-621 and § 35-154, the Contractor shall indemnify and hold
harmless ADOT against any liability, including costs and expenses, for infringement of any patent,
trademark or copyright arising out of this contract performance or use by ADOT of materials
furnished or work performed under this contract. ADOT shall reasonably notify the Contractor of
any claim for which it may be liable under this paragraph.
Copyrights pursuant to 23 CFR 420.121 (b): The Department, as a State DOT may copyright any
books, publications, or other copyrightable materials developed in the course of the project, and
does herein exercise that right. The federal funding agency reserves a royalty-free, nonexclusive
and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the
work for Government purposes.
Patents pursuant to 23 CFR 420.121 (i): The Department, as a State DOT is subject to the provisions
of 37 CFR part 401 governing patents and inventions and must include or cite the standard patent
rights clause at 37 CFR 401.14, except for §401.14(g), in all subgrants or contracts. In addition, State
DOTs must include the following clause, suitably modified to identify the parties, in all subgrants or
contracts, regardless of tier, for experimental, developmental or research work: “The subgrantee or
FEDERAL PROVISIONS
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contractor will retain all rights provided for the State in this clause, and the State will not, as part of
the consideration for awarding the subgrant or contract, obtain rights in the subgrantee's or
contractor's subject inventions.”
Standard Patent Rights required pursuant to 37 CFR 401.14:
(a) Definitions
(1) Invention means any invention or discovery which is or may be patentable or otherwise
protectable under Title 35 of the United States Code, or any novel variety of plant which is or may
be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
(2) Subject invention means any invention of the contractor conceived or first actually reduced to
practice in the performance of work under this contract, provided that in the case of a variety of
plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7
U.S.C. 2401(d)) must also occur during the period of contract performance.
(3) Practical Application means to manufacture in the case of a composition or product, to practice
in the case of a process or method, or to operate in the case of a machine or system; and, in each
case, under such conditions as to establish that the invention is being utilized and that its benefits
are, to the extent permitted by law or government regulations, available to the public on
reasonable terms.
(4) Made when used in relation to any invention means the conception or first actual reduction to
practice of such invention.
(5) Small Business Firm means a small business concern as defined at section 2 of Pub. L. 85-536 (15
U.S.C. 632) and implementing regulations of the Administrator of the Small Business
Administration. For the purpose of this clause, the size standards for small business concerns
involved in government procurement and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12,
respectively, will be used.
(6) Nonprofit Organization means a university or other institution of higher education or an
organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26
U.S.C. 501(c) and exempt from taxation under section 501(a) of the Internal Revenue Code (25
U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state
nonprofit organization statute.
(7) The term statutory period means the one-year period before the effective filing date of a
claimed invention during which exceptions to prior art exist per 35 U.S.C. 102(b) as amended by the
Leahy-Smith America Invents Act, Public Law 112-29.
(8) The term contractor means any person, small business firm or nonprofit organization, or, as set
forth in section 1, paragraph (b)(4) of Executive Order 12591, as amended, any business firm
regardless of size, which is a party to a funding agreement.
(b) Allocation of Principal Rights
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The Contractor may retain the entire right, title, and interest throughout the world to each subject
invention subject to the provisions of this clause and 35 U.S.C. 203. With respect to any subject
invention in which the Contractor retains title, the Federal government shall have a nonexclusive,
nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the
United States the subject invention throughout the world.
(c) Invention Disclosure, Election of Title and Filing of Patent Application by Contractor
(1) The contractor will disclose each subject invention to the Federal Agency within two months
after the inventor discloses it in writing to contractor personnel responsible for patent matters.
The disclosure to the agency shall be in the form of a written report and shall identify the contract
under which the invention was made and the inventor(s). It shall be sufficiently complete in
technical detail to convey a clear understanding to the extent known at the time of the disclosure,
of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics
of the invention. The disclosure shall also identify any publication, on sale or public use of the
invention and whether a manuscript describing the invention has been submitted for publication
and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after
disclosure to the agency, the Contractor will promptly notify the agency of the acceptance of any
manuscript describing the invention for publication or of any on sale or public use planned by the
contractor.
(2) The contractor will elect in writing whether or not to retain title to any such invention by
notifying the Federal agency within two years of disclosure to the Federal agency. However, in any
case where a patent, a printed publication, public use, sale, or other availability to the public has
initiated the one year statutory period wherein valid patent protection can still be obtained in the
United States, the period for election of title may be shortened by the agency to a date that is no
more than 60 days prior to the end of the statutory period.
(3) The contractor will file its initial patent application on a subject invention to which it elects to
retain title within one year after election of title or, if earlier, prior to the end of any statutory
period wherein valid patent protection can be obtained in the United States after a publication, on
sale, or public use. If the contractor files a provisional application as its initial patent application, it
shall file a non-provisional application within 10 months of the filing of the provisional application.
The contractor will file patent applications in additional countries or international patent offices
within either ten months of the first filed patent application or six months from the date
permission is granted by the Commissioner of Patents to file foreign patent applications where
such filing has been prohibited by a Secrecy Order.
(4) For any subject invention with Federal agency and contractor co-inventors, where the Federal
agency employing such co-inventor determines that it would be in the interest of the government,
pursuant to 35 U.S.C. 207(a)(3), to file an initial patent application on the subject invention, the
Federal agency employing such co-inventor, at its discretion and in consultation with the
contractor, may file such application at its own expense, provided that the contractor retains the
ability to elect title pursuant to 35 U.S.C. 202(a).
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(5) Requests for extension of the time for disclosure, election, and filing under paragraphs (1),
(2), and (3) of this clause may, at the discretion of the Federal agency, be granted. When a
contractor has requested an extension for filing a non-provisional application after filing a
provisional application, a one-year extension will be granted unless the Federal agency notifies the
contractor within 60 days of receiving the request.
(d) Conditions When the Government May Obtain Title
The contractor will convey to the Federal agency, upon written request, title to any subject invention—
(1) If the contractor fails to disclose or elect title to the subject invention within the times specified
in paragraph (c) of this clause, or elects not to retain title.
(2) In those countries in which the contractor fails to file patent applications within the times
specified in paragraph (c) of this clause; provided, however, that if the contractor has filed a patent
application in a country after the times specified in paragraph (c) of this clause, but prior to its
receipt of the written request of the Federal agency, the contractor shall continue to retain title in
that country.
(3) In any country in which the contractor decides not to continue the prosecution of any non-
provisional patent application for, to pay a maintenance, annuity or renewal fee on, or to defend in
a reexamination or opposition proceeding on, a patent on a subject invention.
(e) Minimum Rights to Contractor and Protection of the Contractor Right to File
(1) The contractor will retain a nonexclusive royalty-free license throughout the world in each
subject invention to which the Government obtains title, except if the contractor fails to disclose
the invention within the times specified in (c), above. The contractor's license extends to its
domestic subsidiary and affiliates, if any, within the corporate structure of which the contractor is a
party and includes the right to grant sublicenses of the same scope to the extent the contractor
was legally obligated to do so at the time the contract was awarded. The license is transferable only
with the approval of the Federal agency except when transferred to the sucessor of that party of
the contractor's business to which the invention pertains.
(2) The contractor's domestic license may be revoked or modified by the funding Federal agency to
the extent necessary to achieve expeditious practical application of the subject invention pursuant
to an application for an exclusive license submitted in accordance with applicable provisions at 37
CFR part 404 and agency licensing regulations (if any). This license will not be revoked in that field
of use or the geographical areas in which the contractor has achieved practical application and
continues to make the benefits of the invention reasonably accessible to the public. The license in
any foreign country may be revoked or modified at the discretion of the funding Federal agency to
the extent the contractor, its licensees, or the domestic subsidiaries or affiliates have failed to
achieve practical application in that foreign country.
(3) Before revocation or modification of the license, the funding Federal agency will furnish the
contractor a written notice of its intention to revoke or modify the license, and the contractor will
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be allowed thirty days (or such other time as may be authorized by the funding Federal agency for
good cause shown by the contractor) after the notice to show cause why the license should not be
revoked or modified. The contractor has the right to appeal, in accordance with applicable
regulations in 37 CFR part 404 and agency regulations (if any) concerning the licensing of
Government-owned inventions, any decision concerning the revocation or modification of the
license.
(f) Contractor Action to Protect the Government's Interest
(1) The contractor agrees to execute or to have executed and promptly deliver to the Federal
agency all instruments necessary to (i) establish or confirm the rights the Government has
throughout the world in those subject inventions to which the contractor elects to retain title, and
(ii) convey title to the Federal agency when requested under paragraph (d) above and to enable the
government to obtain patent protection throughout the world in that subject invention.
(2) The contractor agrees to require, by written agreement, its employees, other than clerical and
nontechnical employees, to disclose promptly in writing to personnel identified as responsible for
the administration of patent matters and in a format suggested by the contractor each subject
invention made under contract in order that the contractor can comply with the disclosure
provisions of paragraph (c) of this clause, to assign to the contractor the entire right, title and
interest in and to each subject invention made under contract, and to execute all papers necessary
to file patent applications on subject inventions and to establish the government's rights in the
subject inventions. This disclosure format should require, as a minimum, the information required
by paragraph (c)(1) of this clause. The contractor shall instruct such employees through employee
agreements or other suitable educational programs on the importance of reporting inventions in
sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.
(3) For each subject invention, the contractor will, no less than 60 days prior to the expiration of
the statutory deadline, notify the Federal agency of any decision: Not to continue the prosecution
of a non- provisional patent application; not to pay a maintenance, annuity or renewal fee; not to
defend in a reexamination or opposition proceeding on a patent, in any country; to request, be a
party to, or take action in a trial proceeding before the Patent Trial and Appeals Board of the U.S.
Patent and Trademark Office, including but not limited to post-grant review, review of a business
method patent, inter partes review, and derivation proceeding; or to request, be a party to, or take
action in a non-trial submission of art or information at the U.S. Patent and Trademark Office,
including but not limited to a pre-issuance submission, a post-issuance submission, and
supplemental examination.
(4) The contractor agrees to include, within the specification of any United States patent
applications and any patent issuing thereon covering a subject invention, the following statement,
“This invention was made with government support under (identify the contract) awarded by
(identify the Federal agency). The government has certain rights in the invention.”
(g) Subcontracts
(1) The contractor will include this clause, suitably modified to identify the parties, in all
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subcontracts, regardless of tier, for experimental, developmental or research work to be performed
by a subcontractor.. The subcontractor will retain all rights provided for the contractor in this
clause, and the contractor will not, as part of the consideration for awarding the subcontract,
obtain rights in the subcontractor's subject inventions.
(2) The contractor will include in all other subcontracts, regardless of tier, for experimental
developmental or research work the patent rights clause required by (cite section of agency
implementing regulations or FAR).
(3) In the case of subcontracts, at any tier, when the prime award with the Federal agency was a
contract (but not a grant or cooperative agreement), the agency, subcontractor, and the contractor
agree that the mutual obligations of the parties created by this clause constitute a contract
between the subcontractor and the Federal agency with respect to the matters covered by the
clause; provided, however, that nothing in this paragraph is intended to confer any jurisdiction
under the Contract Disputes Act in connection with proceedings under paragraph (j) of this clause.
(h) Reporting on Utilization of Subject Inventions
The Contractor agrees to submit on request periodic reports no more frequently than annually on
the utilization of a subject invention or on efforts at obtaining such utilization that are being made
by the contractor or its licensees or assignees. Such reports shall include information regarding the
status of development, date of first commercial sale or use, gross royalties received by the
contractor, and such other data and information as the agency may reasonably specify. The
contractor also agrees to provide additional reports as may be requested by the agency in
connection with any march-in proceeding undertaken by the agency in accordance with paragraph
(j) of this clause. As required by 35 U.S.C. 202(c)(5), the agency agrees it will not disclose such
information to persons outside the government without permission of the contractor.
(i) Preference for United States Industry
Notwithstanding any other provision of this clause, the contractor agrees that neither it nor any
assignee will grant to any person the exclusive right to use or sell any subject inventions in the
United States unless such person agrees that any products embodying the subject invention or
produced through the use of the subject invention will be manufactured substantially in the United
States. However, in individual cases, the requirement for such an agreement may be waived by the
Federal agency upon a showing by the contractor or its assignee that reasonable but unsuccessful
efforts have been made to grant licenses on similar terms to potential licensees that would be likely
to manufacture substantially in the United States or that under the circumstances domestic
manufacture is not commercially feasible.
(j) March-in Rights
The contractor agrees that with respect to any subject invention in which it has acquired title, the
Federal agency has the right in accordance with the procedures in 37 CFR 401.6 and any
supplemental regulations of the agency to require the contractor, an assignee or exclusive licensee
of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of
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use to a responsible applicant or applicants, upon terms that are reasonable under the
circumstances, and if the contractor, assignee, or exclusive licensee refuses such a request the
Federal agency has the right to grant such a license itself if the Federal agency determines that:
(1) Such action is necessary because the contractor or assignee has not taken, or is not expected to
take within a reasonable time, effective steps to achieve practical application of the subject
invention in such field of use.
(2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by
the contractor, assignee or their licensees;
(3) Such action is necessary to meet requirements for public use specified by Federal regulations
and such requirements are not reasonably satisfied by the contractor, assignee or licensees; or
(4) Such action is necessary because the agreement required by paragraph (i) of this clause has not
been obtained or waived or because a licensee of the exclusive right to use or sell any subject
invention in the United States is in breach of such agreement.
(k) Special Provisions for Contracts with Nonprofit Organizations
If the contractor is a nonprofit organization, it agrees that:
(1) Rights to a subject invention in the United States may not be assigned without the approval of
the Federal agency, except where such assignment is made to an organization which has as one of
its primary functions the management of inventions, provided that such assignee will be subject to
the same provisions as the contractor;
(2) The contractor will share royalties collected on a subject invention with the inventor, including
Federal employee co-inventors (when the agency deems it appropriate) when the subject invention
is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
(3) The balance of any royalties or income earned by the contractor with respect to subject
inventions, after payment of expenses (including payments to inventors) incidental to the
administration of subject inventions, will be utilized for the support of scientific research or
education; and
(4) It will make efforts that are reasonable under the circumstances to attract licensees of subject
inventions that are small business firms and that it will give a preference to a small business firm
when licensing a subject invention if the contractor determines that the small business firm has a
plan or proposal for marketing the invention which, if executed, is equally as likely to bring the
invention to practical application as any plans or proposals from applicants that are not small
business firms; provided, that the contractor is also satisfied that the small business firm has the
capability and resources to carry out its plan or proposal. The decision whether to give a preference
in any specific case will be at the discretion of the contractor. However, the contractor agrees that
the Federal agency may review the contractor's licensing program and decisions regarding small
business applicants, and the contractor will negotiate changes to its licensing policies, procedures,
FEDERAL PROVISIONS
Solicitation No: BPM003324
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or practices with the Federal agency when the Federal agency's review discloses that the contractor
could take reasonable steps to implement more effectively the requirements of this paragraph
(k)(4). In accordance with 37 CFR 401.7, the Federal agency or the contractor may request that the
Secretary review the contractor's licensing program and decisions regarding small business
applicants.
17. RECOVERED MATERIALS
The Contractor agrees to provide a preference for those products and services that conserve
natural resources, protect the environment, and are energy efficient by complying with and
facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. § 6962, and U.S. Environmental Protection Agency (U.S. EPA), “Comprehensive
Procurement Guideline for Products Containing Recovered Materials,” 40 C.F.R. part 247.
18. SAFE OPERATION OF MOTOR VEHICLES
a. Seat Belt Use. The Recipient agrees to implement Executive Order No. 13043, “Increasing Seat
Belt Use in the United States,” April 16, 1997, 23 U.S.C. § 402 note, (62 Fed. Reg. 19217), by:
(1) Adopting and promoting on-the-job seat belt use policies and programs for its
employees and other personnel that operate company-owned vehicles, company-rented
vehicles, or personally operated vehicles, and
(2) Including a “Seat Belt Use” provision in each third party agreement related to the Award.
b. Distracted Driving, Including Text Messaging While Driving. The Recipient agrees to comply with:
(1) Executive Order No. 13513, “Federal Leadership on Reducing Text Messaging While
Driving,” October 1, 2009, 23 U.S.C. § 402 note, (74 Fed. Reg. 51225),
(2) U.S. DOT Order 3902.10, “Text Messaging While Driving,” December 30, 2009, and
(3) The following U.S. DOT Special Provision pertaining to Distracted Driving:
(a) Safety. The Recipient agrees to adopt and enforce workplace safety policies to
decrease crashes caused by distracted drivers, including policies to ban text
messaging while using an electronic device supplied by an employer, and driving a
vehicle the driver owns or rents, a vehicle Recipient owns, leases, or rents, or a
privately-owned vehicle when on official business in connection with the Award, or
when performing any work for or on behalf of the Award,
(b) Recipient Size. The Recipient agrees to conduct workplace safety initiatives in a
manner commensurate with its size, such as establishing new rules and programs
to prohibit text messaging while driving, re-evaluating the existing programs to
prohibit text messaging while driving, and providing education, awareness, and
other outreach to employees about the safety risks associated with texting while
driving, and
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(c) Extension of Provision. The Recipient agrees to include the preceding Special
Provision of section 34.b(3)(a) – (b) of this Master Agreement in its third party
agreements, and encourage its Third Party Participants to comply with this Special
Provision, and include this Special Provision in each third party subagreement at
each tier supported with federal assistance.
19. CERTIFICATION AND ASSURANCES
The FTA Certifications and Assurances are incorporated herein by reference. Upon award or
contract renewal, the Contractor must agree to comply with the most current FTA Certifications
and Assurances by signing and submitting the signature page provided by the Department. In the
event FTA issues new Certifications and Assurances, the Department reserves the right to require
submission of a new signature page agreeing to comply; to be added to the terms and conditions
by Amendment. All such requests are a condition of continued award. FTA Certification and
Assurances
Link:
https://www.transit.dot.gov/funding/grantee-resources/certifications-and-
assurances/certifications-assurances
20. DISADVANTAGED BUSINESS ENTERPRISES
1.0 Policy:
The Arizona Department of Transportation (hereinafter the Department) has established a
Disadvantaged Business Enterprise (DBE) program in accordance with the regulations of the U.S.
Department of Transportation (USDOT), 49 CFR Part 26. The Department has received Federal
financial assistance from the U.S. Department of Transportation and as a condition of receiving this
assistance, the Department has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of the Department to ensure that DBEs, as defined in Part 26, have an equal
opportunity to receive and participate in USDOT-assisted contracts. It is also the policy of the
Department:
1. To ensure nondiscrimination in the award and administration of USDOT-assisted contracts;
2. To create a level playing field on which DBEs can compete fairly for USDOT-assisted contracts;
3. To ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are counted as
DBEs;
5. To help remove barriers to the participation of DBEs in USDOT-assisted contracts;
6. To assist in the development of firms that can compete successfully in the market place
outside the DBE program; and
7. To promote the use of DBEs in all types of federally-assisted contracts and procurement
activities.
It is also the policy of the Department to facilitate and encourage participation of Small Business
Concerns (SBCs), as defined herein, in USDOT-assisted contracts. The Department encourages
contractors to take reasonable steps to eliminate obstacles to SBCs’ participation and to utilize
SBCs in performing contracts.
FEDERAL PROVISIONS
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2.0 Assurances of Non-Discrimination:
The contractor, subrecipient, or subcontractor shall not discriminate on the basis of race, color, sex
or national origin in the performance of this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure
by the contractor to carry out these requirements is a material breach of this contract, which may
result in the termination of this contract or such other remedy as the Department deems
appropriate, which may include, but are not limited to:
1. Withholding monthly progress payments;
2. Assessing sanctions;
3. Liquidated damages;
4. Suspension or Debarment per Uniform Terms and Conditions Paragraph 9.3 of the
contractor from future bidding; and/or
5. Cancellation, termination, or suspension of the Contract, in whole or in part.
The contractor, subrecipient, or subcontractor shall ensure that all subcontract agreements contain
this non-discrimination assurance.
3.0 Definitions:
(A) Commercially Useful Function (CUF): Commercially Useful Function is defined fully in
49 CFR 26.55, which definition is incorporated herein by reference.
(B) Disadvantaged Business Enterprise (DBE): a for-profit small business concern which
meets both of the following requirements:
(1) Is at least 51 percent owned by one or more socially and economically
disadvantaged individuals or, in the case of any publicly owned business, at least 51
percent of the stock is owned by one or more such individuals; and,
(2) Whose management and daily business operations are controlled by one or more
of the socially and economically disadvantaged individuals who own it.
(C) NAICS Code: The North American Industry Classification System (NAICS) is the standard
used by Federal statistical agencies in classifying business establishments for the
purpose of collecting, analyzing, and publishing statistical data related to the U.S.
business economy.
(D) Non-DBE: any firm that is not a DBE.
(E) Race-Conscious (RC): a measure or program focused specifically on assisting only DBEs,
including women-owned DBEs.
(F) Race-Neutral (RN): a measure or program used to assist all small businesses. For the
purposes of this part, race-neutral includes gender-neutrality.
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(G) Small Business Concern (SBC): a business that meets all of the following conditions:
(1) Operates as a for-profit business registered to do business in Arizona;
(2) Operates a place of business primarily within the U.S., or makes a significant
contribution to the U.S. economy through payment of taxes or use of American
products, materials, or labor;
(3) Is independently owned and operated;
(4) Is not dominant in its field on a national basis; and
(5) Does not have annual gross receipts that exceed the Small Business Administration
size standards average annual income criteria for its primary North American
Industry Classification System (NAICS) code.
(H) Socially and Economically Disadvantaged Individuals: any individual who is a citizen
(or lawfully admitted permanent resident) of the United States and who is:
(1) Any individual who is found to be a socially and economically disadvantaged
individual on a case-by-case basis.
(2) Any individual in the following groups, members of which are rebuttably presumed
to be socially and economically disadvantaged:
(i) "Black Americans," which includes persons having origins in any of the Black
racial groups of Africa;
(ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban,
Dominican, Central or South American, or other Spanish or Portuguese culture
or origin, regardless of race;
(iii) "Native Americans," which includes persons who are enrolled members of
federally or State recognized Indian tribe, Alaskan Natives or Native Hawaiians;
(iv) “Asian-Pacific Americans,” which includes persons whose origins are from
Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia
(Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa,
Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the
Republic of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu,
Nauru, Federated States of Micronesia, or Hong Kong;
(v) “Subcontinent Asian Americans,” which includes persons whose origins are
from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri
Lanka;
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(vi) "Women;"
(vii) Any additional groups whose members are designated as socially and
economically disadvantaged by the Small Business Administration (SBA), at
such time as the SBA designation becomes effective.
4.0
Working with DBEs:
The Department works with DBEs and assists them in their efforts to participate in the highway
construction. All proposers should contact the Department’s Business Engagement and Compliance
Office (BECO) by phone, through email, or at the address shown below, for assistance in their
efforts to use DBEs in the highway construction industry. BECO contact information is as follows:
Arizona Department of Transportation
Business Engagement and Compliance
Office 1801 W. Jefferson St., Ste. 101,
Mail Drop 154A Phoenix, AZ 85007
Phone (602) 712-7761
FAX
(602) 712-8429
Email: contractorcompliance@azdot.gov Website: www.azdot.gov/bec
4.01
Mentor-Protégé Program:
The Department has established a Mentor- Protégé program as an initiative to encourage and
develop disadvantaged businesses in the highway construction industry. The program encourages
prime contractors to provide certain types of assistance to certified DBE subcontractors. ADOT
encourages contractors and certified DBE subcontractors to engage in a Mentor-Protégé
agreement under certain conditions. Such an agreement must be mutually beneficial to both
parties and to ADOT in fulfilling requirements of 49 CFR Part 23. For guidance regarding this
program refer to the Mentor-Protégé Program Guidelines available on the BECO website.
The Mentor-Protégé program is intended to increase legitimate DBE activities. The program does
not diminish the DBE rules or regulations, and participants may not circumvent these rules.
5.0
Applicability:
The Department has established an overall annual goal for DBE participation on Federal aid
contracts. The Department intends for the goal to be met with a combination of race conscious
efforts and race neutral efforts. Race conscious participation occurs when the contractor uses a
percentage of DBEs, as defined herein, to meet the contract specified goal. Race neutral efforts are
those that are, or can be, used to assist all small businesses or increase opportunities for all small
businesses. The regulation, 49 CFR 26, defines race neutral as when a DBE wins a prime contract
through customary competitive procurement procedures or is awarded a subcontract on a prime
contract that does not carry a DBE contract goal.
Prime contractors are encouraged to obtain DBE participation even if a DBE goal was not
established on a contract.
FEDERAL PROVISIONS
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The DBE provisions are applicable to all contractors including DBE contractors.
6.0
Certification and Registration:
6.1
DBE Certification:
Certification as a DBE shall be predicated on:
(1) The completion and execution of an application for certification as a "Disadvantaged Business
Enterprise".
(2) The submission of documents pertaining to the firm(s) as stated in the application(s), including
but not limited to a statement of social disadvantage and a personal financial statement.
(3) The submission of any additional information which the Department or the applicable Arizona
Unified Certification (UCP) agency may require to determine the firm's eligibility to participate in
the DBE program.
(4) The information obtained during the on-site visits to the offices of the firm and to active job-sites.
Applications for certification may be filed online with the Department or the applicable UCP agency
at any time through the Arizona Unified Transportation Registration and Certification System (AZ
UTRACS) website at http://www.azutracs.com.
DBE firms and firms seeking DBE certification shall cooperate fully with requests for information
relevant to the certification process. Failure or refusal to provide such information is a ground for
denial or removal of certification.
ADOT is a member of the AZ Unified Certification Program (AZUCP). Only DBE firms that are
certified by the AZUCP are eligible for credit on ADOT projects. A list of DBE firms certified by
AZUCP is available on the internet at http://www.azutracs.com/. The list will indicate contact
information and specialty for each DBE firm, and may be sorted in a variety of ways. However,
ADOT does not guarantee the accuracy and/or completeness of this information, nor does ADOT
represent that any licenses or registrations are appropriate for the work to be done.
The Department’s certification of a DBE is not a representation of qualifications and/or abilities nor
does it mean that a DBE firm is guaranteed or entitled to receive or be awarded a contract. Being
certified simply means that a firm has met the criteria for DBE certification as outlined in 49 CFR
Part 26. The contractor bears all risks of ensuring that DBE firms selected by the contractor are able
to perform the work.
6.2
SBC Registration:
To comply with 49 CFR Part 26.39, ADOT’s DBE Program incorporates contracting requirements to
facilitate participation by Small Business Concerns (SBCs) in federally assisted contracts. SBCs are
for- profit businesses authorized to do businesses in Arizona that meet the Small Business
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Administration (SBA) size standards for average annual revenue criteria for its primary North
American Industry Classification System (NAICS) code.
While the SBC component of the DBE program does not require utilization of goals on projects,
ADOT strongly encourages contractors to utilize small businesses that are registered in AZ UTRACS
on their contracts, in addition to DBEs meeting the certification requirement. The contractor may
use the AZ UTRACS website to search for certified DBEs and registered SBCs that can be used on
the contract. However, SBCs that are not DBEs will not be counted toward DBE participation.
SBCs can register online at the AZ UTRACS website.
The Department’s registration of SBCs is not a representation of qualifications and/or abilities nor
does it mean that an SBC firm is guaranteed or entitled to receive or be awarded a contract. Being
SBC registered simply means that a firm has met the criteria for SBC registration as outlined in 49
CFR Part
26. The contractor bears all risks of ensuring that SBC firms selected by the contractor are able to
perform the work.
7.0
DBE Financial Institutions:
The Department thoroughly investigates the full extent of services offered by financial institutions
owned and controlled by socially and economically disadvantaged individuals in its service area and
makes reasonable efforts to use these institutions. The Department encourages prime contractors
to use such institutions on USDOT assisted contracts. However, use of DBE financial institutions will
not be counted toward DBE participation.
The Department encourages prime contractors to research the Federal Reserve Board website at
www.federalreserve.gov to identify minority-owned banks in Arizona derived from the
Consolidated Reports of Condition and Income filed quarterly by banks (FFIEC 031 and 041) and
from other information on the Board’s National Information Center database.
8.0
Time is of the Essence:
TIME IS OF THE ESSENCE IN RESPECT TO THE DBE PROVISIONS.
9.0
Computation of Time:
In computing any period of time described in this DBE special provision, such as calendar days, the
day from which the period begins to run is not counted, and when the last day of the period is a
Saturday, Sunday, or Federal or State holiday, the period extends to the next day that is not a
Saturday, Sunday, or Federal or State holiday. In circumstances where the Department’s offices are
closed for all or part of the last day, the period extends to the next day on which the Department’s
offices are open.
10.0
Contractor and Subcontractor Requirements:
FEDERAL PROVISIONS
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10.1
General:
Each contractor shall establish a program that will ensure nondiscrimination in the award and
administration of contracts and subcontracts.
Agreements between the bidder and a DBE in which the DBE promises not to provide
subcontracting quotations to other bidders are prohibited.
10.2
DBE Liaison:
The contractor shall designate a DBE Liaison responsible for the administration of the contractor’s
DBE program. The name of the designated DBE Liaison shall be included in the DBE Intended
Participation Affidavit Summary.
11.0
DBE Goals
The Department has not established contract goals for DBE participation in this contract.
Contractors are still encouraged to employ reasonable means to obtain DBE participation.
Contractors must retain records in accordance with these DBE specifications. The contractor is
notified that this record keeping is important to the Department so that it can track DBE
participation where only race neutral efforts are employed.
11.1
Race Neutral Contract (With No DBE Goal)
The Department has established a Disadvantaged Business Enterprise (DBE) program in accordance
with the regulations of the U.S. Department of Transportation (USDOT), 49 CFR Part 26. ADOT has
received federal financial assistance from the USDOT and as a condition of receiving this assistance,
ADOT has signed an assurance that it shall comply with 49 CFR Part 26.
It is ADOT’s policy to ensure that DBEs, as defined in 49 CFR Part 26, have an equal opportunity to
receive and participate in federally-funded contracts.
NO CONTRACT DBE GOAL HAS BEEN ESTABLISHED FOR DBE PARTICIPATION ON THIS CONTRACT.
Contractors are still encouraged to employ reasonable means to obtain DBE participation.
Contractors must retain records in accordance with these DBE specifications. The consultant is
notified that this record keeping is important to the Department so that it can track DBE
participation where only race neutral efforts are employed.
12.0
Bidders/Proposers List and AZ UTRACS Registration Requirement:
Under Title 49 CFR of the Code of Federal Regulations, Part 26.11, DOTs are required to collect
certain information from all contractors and subcontractors who seek to work on federally-assisted
contracts in order to set overall and contract DBE goals. ADOT collects this information when firms
register their companies on the Arizona Unified Transportation Registration and Certification
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System (AZ UTRACS) web portal at http://www.azutracs.com/ a centralized database for companies
that seek to do business with ADOT. This information will be maintained as confidential to the
extent allowed by federal and state law.
Prime contractors and all subcontractors, including DBEs listed in the offer must be registered in
AZUTRACS. Proposers may verify that their firm and each subcontractor is registered using the
AZUTRACS website.
Proposers may obtain additional information at the AZ UTRACS website or by contacting BECO.
All proposers shall create a Bidders/Proposers list in the AZ UTRACS by selecting all firms, service
providers, and vendors that expressed interest or submitted proposals or quotes for this contract.
The Bidders/Proposers List form must be complete and must include the names for all
subcontractors, service providers, and vendors that submitted proposals or quotes on this project
regardless of the proposer’s intentions to use the those firms on the project.
All proposers must complete and submit the Bidders/Proposers List online at AZ UTRACS prior to
Offer submittal. A confirmation email will be generated by the system. This email confirmation shall
be submitted with the Offer.
FAILURE TO SUBMIT THE REQUIRED BIDDERS/PROPOSERS LIST CONFIRMATION EMAIL WITH THE
OFFER BY THE STATED TIME AND IN THE MANNER HEREIN SPECIFIED AND AS OUTLINED IN THE RFQ
SHALL BE CAUSE FOR THE PROPOSER’S OFFER TO BE REJECTED.
13.0
Payment Reporting:
The contractor shall report on a monthly basis indicating the amounts paid to all subcontractors, of
all tiers, working on the project. Reporting shall be in accordance with below.
Subcontracts:
a. Sub-Contract Terms:
1. The Contractor agrees to execute a written Contract with all Subcontractors for work to
be completed under this Contract. The executed Contract shall include Subcontractor’s
Scope of Work and all the Uniform Terms and Conditions set forth in this Contract.
2. The Contractor shall provide electronic copies of signed subcontract agreements with all
Subcontractors to ADOT Business Engagement and Compliance Office (BECO) by
uploading them to the BECO’s online DBE Contract & Labor Compliance Management
System (DBE System) at https://adot.dbesystem.com. Subcontract agreements shall
include all required assurances and required clauses as outlined in this Contract. Each
agreement and required attachment shall be dated and signed by the Subcontractor in
order for the subcontract to be considered valid.
3. The Contractor may be in breach of this Contract if the Contractor materially modifies the
federal regulations and State statutes in its subcontract agreements terms and conditions
with its Subcontractors. Deviations from the terms of this Contract may result in
termination of the Contract, or any other such remedy as deemed appropriate by the
FEDERAL PROVISIONS
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Department.
b. Sub-Contract Payments
1. Retention: If the prime contract does not provide for retention, the contractor and each
subcontractor of any tier shall not withhold retention on any subcontract. If the prime
contract provides for retention, the prime contractor and each subcontractor of any tier
shall not retain a higher percentage than the Department may retain under the prime
contract. Retainage shall be paid to the subcontractor within 7 days of satisfactory
completion of the work performed by the subcontractor.
2. No Set-offs Arising from Other Contracts: If a subcontractor is performing work on
multiple contracts for the same contractor or subcontractor of any tier, the contractor or
subcontractor of any tier shall not withhold or reduce payment from its subcontractors
on the contract because of disputes or claims on another contract.
3. Partial Payment: The contractor and each subcontractor of any tier shall make prompt
partial payments to its subcontractors within seven days of receipt of payment from the
Department. Notwithstanding any provision of Arizona Revised Statutes Section 28-411,
the parties may not agree otherwise.
4. Final Payment: The contractor and each subcontractor of any tier shall make prompt final
payment to each of its subcontractors. The contractor and each subcontractor of any tier
shall pay all monies, including retention, due to its subcontractor within seven days of
receipt of payment. Notwithstanding any provision of Arizona Revised Statutes Section
28-411, the parties may not agree otherwise.
5. Payment Reporting: For the purposes of this subsection “Reportable Contracts” means
any subcontract, of any tier, DBE or non-DBE, by which work shall be performed on
behalf of the contractor and any contract of any tier with a DBE material or service
supplier.
The requirements of this subsection apply to all Reportable Contracts.
Payment Reporting for all Reportable Contracts shall be done through the Department’s
web- based DBE System. The DBE System can be accessed from the Department’s BECO
website. No later than fifteen calendar days after the Notice to Proceed is issued, the
contractor shall log into the Department’s web based DBE System and enter or verify the
name, contact information, and subcontract amounts for Reportable Contracts on the
project. As Reportable Contracts are approved over the course of the contract, the
contractor shall enter them in the system. Reportable contracts shall be entered into the
system no later than five calendar days after approval by the Department.
The contractor shall report on a monthly basis indicating the amounts actually paid and
the dates of each payment under any Reportable Contract on the project. In addition, the
contractor shall require that all participants in any Reportable Contract electronically
verify receipt of payment on the contract by the last day of the month and the contractor
shall actively monitor the Department’s DBE System to ensure that the verifications are
input. The contractor shall proactively work to resolve any payment discrepancies in the
DBE System between payment amounts it reports and payment confirmation amounts
reported by others.
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The contractor shall ensure that all Reportable Contract activity is reported to the
Department. This includes all lower-tier Reportable Contracts, regardless of whether a
DBE is involved or not.
The contractor shall maintain records for each payment explaining the amount requested
by the subcontractor, and the amount actually paid pursuant to the request, which may
include but are not limited to, estimates, invoices, pay requests, copies of checks or wire
transfers, and lien waivers in support of the monthly payments in the DBE System.
The contractor shall provide information for payments made on all Reportable Contracts
during the previous month by the 15th day of the current month. In the event that no
payments were made during a given month, the contractor shall identify that by entering
a dollar value of zero. If the contractor does not pay the full amount of any invoice from a
subcontractor, the contractor shall note that and provide the reasons in the comment
section of the Monthly Payment Audit of the DBE System.
For each Reportable Contract on which the contractor fails to submit timely payment
information the Department will retain $1,000.00 as liquidated damages, from the
monies due to the contractor. Liquidated damages will be deducted each month for each
Reportable Contract on which the contractor fails to submit payment information until
the contractor provides the required information as described herein. After 90
consecutive days of non- reporting, the liquidated damages will increase to $2,000.00 for
each subsequent month, for each Reportable Contract on which the contractor fails to
report until the information is provided. These liquidated damages shall be in addition to
all other retention or liquidated damages provided for elsewhere in the contract.
Payment reporting requirements apply to all contracts, federal and non-federal funded.
The contractor shall ensure that a copy of this Subsection is included in every Reportable
Contract of every tier.
(a)
Sanctions for Inadequate Reporting:
For each Reportable Contract on which the contractor fails to submit timely and
complete payment information the Department will retain $1,000.00 as liquidated
damages, from the monies due to the contractor. Liquidated damages will be deducted
each month for each Reportable Contract on which the contractor fails to submit
payment information until the contractor provides the required information as described
herein. After 90 consecutive days of non-reporting, the liquidated damages will increase
to $2,000.00 for each subsequent month, for each Reportable Contract on which the
contractor fails to report until the information is provided. These liquidated damages
shall be in addition to all other retention or liquidated damages provided for elsewhere
in the contract.
6. Completion of Work: A subcontractor’s work is satisfactorily completed when all the
tasks called for in the subcontract have been accomplished, documented, and accepted
by the Department.
7. Disputes: If disputes arise regarding payment of subcontractors, the contractor shall
immediately provide the ADOT Project Manager with a written, verifiable explanation if:
The contractor does not pay the full amount of any invoice from a subcontractor
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within seven days of receipt of a progress payment from the Department, or
The monthly estimate does not include all work claimed by a subcontractor to have
been performed.
The Department will determine whether the contractor has acted in good faith
concerning any such explanations. The Department reserves the right to request and
receive documents from the contractor and all subcontractors of any tier, in order to
determine whether termination requirements were met. The contractor shall implement
and use the dispute resolution process outlined in the subcontract, as described in
Uniform Terms and Conditions Paragraph, to resolve payment disputes.
8. Non-Compliance: Failure to make prompt partial payment or prompt final payment
including any retention, within the time frames established in this contract, will result in
remedies, as the Department deems appropriate, which may include, but are not limited
to:
Liquidated Damages: These liquidated damages shall be in addition to all other
retention or liquidated damages provided for elsewhere in the contract.
(i)
The Department will withhold two times the disputed dollar amount not paid
to each subcontractor.
(ii)
If full payment is made within 30 days of the Department’s payment to the
contractor, the amount withheld by the Department will be released.
(iii)
If full payment is made after 30 days of the Department’s payment to the
contractor, the Department will release 75 percent of the funds withheld.
The Department will retain 25 percent of the monies withheld as liquidated
damages.
Additional Remedies: If the contractor fails to make prompt payment for three
consecutive months, or any four months over the course of one project, or if the
contractor fails to make prompt payment on two or more contracts within 24
months, the Department may, in addition, invoke the following remedies:
(i)
Withhold monthly progress payments until the issue is resolved and full
payment has been made to all subcontractors and vendors subject to the
requirements outlined under “Liquidated Damages” above,
(ii)
Terminate the contract for default in accordance with this Contract, and/or
(iii)
Suspension or Debarment per Uniform Terms and Conditions Paragraph 9.3
of the contractor from future bidding temporarily or permanently, depending
on the number and severity of violation.
(iv)
Reflect the contractor’s performance in submitting payment reports and
making subcontractor payments utilizing the Department’s Vendor
Performance Report.
14.0 Crediting DBE Participation:
14.01 General Requirements:
To count toward DBE participation, the DBE firms must be certified at the time of Offer submission
in each NAICS code applicable to the kind of work the firm will perform on the contract. NAICS for
each DBE can be found on the AZ UTRACS website. General descriptions of all NAICS codes can be
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found at http://www.naics.com/search/.
Credit is given only after the DBE has been paid for the work performed.
The entire amount of a contract that is performed by the DBE’s own forces, including the cost of
supplies and materials purchased by the DBE for the work on the contract and equipment leased by
the DBE will be credited toward DBE participation. Supplies and equipment the DBE subcontractor
purchases or leases from the prime contractor or its affiliate will not be credited toward DBE
participation.
The contractor bears the responsibility to determine whether the DBE possesses the proper
contractor’s license(s) to perform the work and, if DBE credit is requested, that the DBE
subcontractor is certified for the requested type of work.
The Department’s certification is not a representation of a DBE’s qualifications and/or abilities. The
contractor bears all risks that the DBE may not be able to perform its work for any reason.
A DBE may participate as a prime contractor, subcontractor, or as a vendor of materials or supplies.
The dollar amount of work to be accomplished by DBEs, including partial amount of a lump sum or
other similar item, shall be on the basis of subcontract, purchase order, hourly rate, rate per ton,
etc., as agreed to between parties.
DBE credit may be obtained only for specific work done for the project, supply of equipment
specifically for physical work on the project, or supply of materials to be incorporated in the work.
DBE credit will not be allowed for costs such as overhead items, capital expenditures (for example,
purchase of equipment), and office items.
The contractor may credit second-tier subcontracts issued to DBEs by non-DBE subcontractors. Any
second-tier subcontract to a DBE must meet the requirements of a first-tier DBE subcontract.
A prime contractor may credit the entire amount of that portion of a contract that is performed by
the DBE’s own forces. The cost of supplies and materials obtained by the DBE for the work of the
contract can be included so long as that cost is reasonable. Leased equipment may also be
included. No credit is permitted for supplies purchased or equipment leased from the prime
contractor or its affiliate(s).
When a DBE subcontracts a part of the work of its contract to another firm, the value of the
subcontract may be credited towards DBE participation only if the DBE’s subcontractor is itself a
DBE and performs the work with its own forces. Work that a DBE subcontracts to a non-DBE firm
does not count toward DBE participation.
A prime contractor may credit the entire amount of fees or commissions charged by a DBE firm for
providing a bona fide service, such as professional, technical, consulting, or managerial services, or
for providing bonds or insurance specifically required for the performance of a USDOT-assisted
contract, provided the fees are reasonable and not excessive as compared with fees customarily
allowed for similar services.
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14.02 DBE Prime Contractor:
When a certified DBE firm proposes on a contract/Task Assignment all the work that is performed
by the DBE contractor or any other DBE subcontractors and DBE suppliers will count toward DBE
participation.
14.03 Effect of Loss of DBE Eligibility:
For On-Call Task Assignment contracts, if a DBE is deemed ineligible (decertified) or suspended by
ADOT or one of its UCP Partner Agencies in accordance with 49 CFR 26.87 and 26.88, the DBE may
not be count toward DBE participation on a new Task Assignment, but may be considered for the
contract/Task Assignment DBE participation if a subcontract or contract modification for the work
to be completed on the Task Assignment was executed before the DBE suspension or
decertification is effective.
A subcontract or contract modification for work on the task assignment means, any subcontract or
agreement for the task assignment, which includes a specific ADOT TRACS/Project Number, defined
scope, duration and budget for the work to be completed under the Task Assignment that is duly
signed by the contractor/contractor and subcontractor/subcontractor.
When the contractor/contractor intents to use an ineligible DBE firm or ADOT made a commitment
to use an ineligible DBE prime contractor/contractor, but a subcontract or Contract Modification
for the work to be completed on the Task Assignment has not been executed before a
decertification notice is issued to the DBE firm by its certifying agency, the ineligible firm does not
count toward DBE participation. When a subcontract or contract modification is executed with the
DBE firm for the work to be completed on the Task Assignment before ADOT notified the firm of its
ineligibility, the DBE’s work on the Task Assignment may continue to be credited toward DBE
participation for the firm’s work.
14.04 Notifying the Contractor of DBE Certification Status:
Each DBE contract at any tier shall require any DBE subcontractor or supplier that is either
decertified or certified during the term of the contract to immediately notify the contractor and all
parties to the DBE contract in writing, with the date of decertification or certification. The
contractor shall require that this provision be incorporated in any contract of any tier in which a
DBE is a participant.
14.05 Commercially Useful Function:
A prime contractor can credit expenditures to a DBE subcontractor only if the DBE performs a
Commercially Useful Function (CUF).
A DBE performs a CUF when it is responsible for execution of the work of a contract and carries out
its responsibilities by actually performing, managing, and supervising the work involved. To perform
a commercially useful function, the DBE must also be responsible, with respect to materials and
supplies on the contract, for negotiating price, determining quality and quantity, ordering the
material, and installing (where applicable) and paying for the material itself that it uses on the
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project. To determine whether a DBE is performing a commercially useful function, the Department
will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is
to be paid under the contract is commensurate with the work it is actually performing and the DBE
credit claimed for its performance of the work, and other relevant factors.
A DBE will not be considered to perform a commercially useful function if its role is limited to that
of an extra participant in a transaction, contract, or project through which funds are passed in
order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra
participant, the Department will examine similar transactions, particularly those in which DBEs do
not participate.
If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its
contract with its own work force, or if the DBE subcontracts a greater portion of the work of a
contract than would be expected on the basis of normal industry practice for the type of work
involved, the Department will presume that the DBE is not performing a commercially useful
function.
When a DBE is presumed not to be performing a commercially useful function as provided above,
the DBE may present evidence to rebut this presumption. The Department will determine if the
firm is performing a CUF given the type of work involved and normal industry practices.
The Department will notify the contractor, in writing, if it determines that the contractor’s DBE
subcontractor is not performing a CUF. The contractor will be notified within seven calendar days
of the Department’s decision.
Decisions on CUF may be appealed to the Chief Procurement Officer (CPO). The appeal must be in
writing and personally delivered or sent by certified mail, return receipt requested, to the CPO. The
appeal must be received by the CPO no later than seven calendar days after the decision of BECO.
BECO’s decision remains in place unless and until the CPO reverses or modifies BECO’s decision.
CPO will promptly consider any appeals under this subsection and notify the contractor of CPO’s
findings and decisions. Decisions on CUF matters are not administratively appealable to USDOT.
The BECO may conduct project site visits on the contract to confirm that DBEs are performing a
CUF. The contractor shall cooperate during the site visits and the BECO’s staff will make every
effort not to disrupt work on the project.
15.0
Required Provisions for DBE Subcontracts:
All subcontracts of any tier, all supply contracts, and any other contracts in which a DBE is a
participant shall include as a physical attachment, DBE Subcontractor Compliance Assurances refer
to the Federal Attachments and Exhibits.
Contractors executing agreements with subcontractors, DBE or non-DBE, that materially modify
federal regulation and state statutes such as, prompt payment and retention requirements,
through subcontract terms and conditions will be found in breach of contract which may result in
termination of the contract, or any other such remedy as the deemed appropriate as outlined in
DBE Subsection 2.0 of these DBE provisions.
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The Department reserves the right to conduct random reviews of DBE and non-DBE subcontract
documentation to ensure compliance with federal requirements.
The contractor shall ensure that all subcontracts or agreements with DBEs to supply labor or
materials require that the subcontract and all lower tier subcontracts be performed in accordance
with 49 CFR Part 26 provisions.
The Contractor shall provide electronic copies of subcontract agreements with all Subcontractors
by uploading them within 15 calendar days of an executed contract to the ADOT DBE System.
Subcontract agreements shall include all required assurances and clauses as outlined in DBE
Subcontractor Compliance Assurances refer to the Federal Attachments and Exhibits of the
Contract. Each agreement and required attachment shall be dated and signed by the Subcontractor
in order for the subcontract to be considered valid.
The Contractor shall be in breach of this Contract if the Contractor materially modifies the federal
regulations and State statutes in its subcontract agreements terms and conditions with its
Subcontractors. Deviations from the terms of this Contract may result in termination of the
Contract, or any other such remedy as deemed appropriate by the Department
16.0
Certification of Final DBE Payments:
DBE participation on the contract is measured by actual payments made to the DBEs. The
contractor shall submit the “Certification of Final DBE Payments” form for each DBE firm working
on the contract. This form shall be signed by the contractor and the relevant DBE, and submitted to
the Engineer no later than 30 days after the DBE completes its work.
The contractor will not be released from the obligations of the contract until the ”Certification of
Final DBE Payments” forms are received and deemed acceptable by the Engineer and BECO.
17.0
False, Fraudulent, or Dishonest Conduct:
In addition to any other remedies or actions, the Department will bring to the attention of the US
Department of Transportation any appearance of false, fraudulent, or dishonest conduct in
connection with the DBE program, so that USDOT can take steps such as referral to the Department
of Justice for criminal prosecution, referral to the USDOT Inspector General for possible initiation of
suspension and debarment proceedings against the offending parties or application of “Program
Fraud and Civil Penalties” rules provided in 49 CFR Part 31.
21.
NONDISCRIMINATION
1. During the performance of this Contract, the Consultant, for itself, its Subconsultants, assignees
and successors shall:
a. Not discriminate on the basis of race, color, national origin, or sex and shall carry out
applicable requirements of 49 CFR Part 26 in the performance of this Contract. Failure by
the Consultant to carry out these requirements is a material breach of this Contract, which
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may result in the termination of this Contract, disqualification from proposing on other
Contracts or other remedy as the State deems appropriate.
b. Comply with Executive Order 2009-09, "Prohibition of Discrimination in Employment by
Government Contractors and Subcontractors," which is hereby included in its entirety by
reference and considered a part of this Contract.
c. Comply with the provisions of Executive Order 11246, entitled "Equal Employment
Opportunity," as amended by Executive Order 11375, and as supplemented in Department
of Labor Regulations (41 CFR Part 60). Said provisions are made applicable by reference and
are hereinafter considered a part of this Contract.
d. Post in conspicuous places available to employees and applicants for employment, the
following notice:
“It is the policy of this company not to discriminate against any employee, or applicant
for employment, because of race, color, religion, creed, national origin, sex, age,
handicapped, or disabled veterans and Vietnam era veterans. Such actions shall include,
but are not limited to: employment, upgrading, demotion, transfer, recruitment, or
recruitment advertising; laying- off or termination; rates of pay or other compensation;
and selection for training, and on-the- job training. Also, it is the policy to ensure and
maintain a working environment free of harassment, intimidation and coercion.”
e. Comply with the Regulations relative to nondiscrimination in Federally-assisted programs of the
U.S. Department of Transportation (hereinafter USDOT), 49 CFR Part 21, as they may be
amended from time to time, (hereinafter referred to as the Regulations), which are herein
incorporated by reference and made a part of this Contract.
f.
Not discriminate on the grounds of race, color, sex, or national origin in the selection and
retention of Subconsultants, including procurement of materials and leases of equipment.
The Consultant shall not participate either directly or indirectly in the discrimination
prohibited by Section 21.5 of the Regulations, including employment practices.
g. In all solicitations either by competitive bidding or negotiations made by the Consultant for
work to be performed under a subcontract, including procurement of materials or leases of
equipment, notify each potential Subconsultant or supplier of the Consultant’s obligations
under this Contract and the Regulations relative to nondiscrimination on the ground of
race, color, or national origin.
h. Provide all information and reports required by the Regulations or directives issued
pursuant thereto, and shall permit access to its books, records, accounts, other sources of
information and its facilities as may be determined by the State to be pertinent to ascertain
compliance with such Regulations, orders and instructions. Where any information
required of a Consultant is in the exclusive possession of another who fails or refuses to
furnish this information, the Consultant shall so certify to the State as appropriate, and
shall set forth what efforts it has made to obtain the information.
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2. In the event of the Consultant’s noncompliance with the NONDISCRIMININATION provision
(Section A) of this Contract, the State shall impose such Contract sanctions as the State or
FHWA may determine to be appropriate, including but not limited to:
a. Withholding of payments to the Consultant under the Contract until the Consultant
complies,
and/or;
b. Cancellation, termination, or suspension of the Contract, in whole or in part.
3. The Consultant shall include the provisions of paragraph 1.a. through 1.h. in every subcontract
with Subconsultants, DBEs and non-DBEs, including procurement of materials and equipment
leases, unless exempt by the Regulations or directives issued pursuant thereto.
4. The Consultant shall take such action with respect to any Subconsultants or procurement as the
State or the Federal Aviation Administration (FAA), FHWA and the Federal Transit
Administration (FTA) may direct as a means of enforcing such provisions including sanctions for
noncompliance. Provided, however, that in the event the Consultant becomes involved in or is
threatened with litigation with a Subconsultant or supplier as a result of such direction, the
Consultant may request the State to enter into such litigation to protect the interests of the
State, and in addition, the Consultant may request the United States to enter into such
litigation to protect the interests of the United States.
22. AFFIRMATIVE ACTION
Contractor shall take the following affirmative action steps with respect to securing supplies,
equipment, or services under the terms of this contract:
a. Include qualified firms owned by socially and economically disadvantaged individuals
on solicitation lists.
b. Assure that firms owned by socially and economically disadvantaged individuals are
solicited whenever they are potential sources.
c. When economically feasible, divide total requirements into smaller tasks or quantities
so as to permit maximum participation by firms owned by socially and economically
disadvantaged individuals.
d. Where the requirement permits, establish delivery schedules which will encourage
participation by firms owned by socially and economically disadvantaged individuals.
e. Use the services and assistance of the Small Business Administration, the Office of
Minority Business Enterprise of the Department of Commerce, and the Community
Services Administration, as required.
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23. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The following clauses apply to any Federal-aid contract in an amount in excess of $100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These
clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used
in this paragraph, the terms laborers and mechanics include watchmen and guards.
Overtime requirements. No contractor or subcontractor contracting for any part of the contract
work which may require or involve the employment of laborers or mechanics shall require or
permit any such laborer or mechanic in any workweek in which he or she is employed on such work
to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the
clause set forth in paragraph (1.) of this section, the contractor and any subcontractor responsible
therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall
be liable to the United States (in the case of work done under contract for the District of Columbia
or a territory, to such District or to such territory), for liquidated damages. Such liquidated
damages shall be computed with respect to each individual laborer or mechanic, including
watchmen and guards, employed in violation of the clause set forth in paragraph (1.) of this
section, in the sum of $10 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (1.) of this section.
Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall
upon its own action or upon written request of an authorized representative of the Department of
Labor withhold or cause to be withheld, from any moneys payable on account of work performed
by the contractor or subcontractor under any such contract or any other Federal contract with the
same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours
and Safety Standards Act, which is held by the same prime contractor, such sums as may be
determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid
wages and liquidated damages as provided in the clause set forth in paragraph (2.) of this section.
Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth
in paragraph (1.) through (4.) of this section and also a clause requiring the subcontractors to
include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for
compliance by any subcontractor or lower tier subcontractor with the clauses set forth in
paragraphs (1.) through (4.) of this section.
24. FEDERAL CHANGES
The Contactor and its sub-contractors shall comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in the
Master Agreement between the Department and FTA, as they be amended or promulgated from
time to time during the term of the contract. Contractor’s failure to comply shall constitute a
material breach of the contract.
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25. PROMPT PAY
The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than 30 days from the receipt of each payment the prime
contract receives from the Recipient. The prime contractor agrees further to return retainage
payments to each subcontractor within 30 days after the subcontractors work is satisfactorily
completed. Any delay or postponement of payment from the above referenced time frame may
occur only for good cause following written approval of the Recipient. This clause applies to both
DBE and non-DBE subcontracts.
26. FULL AND OPEN COMPETITION
In accordance with 49 U.S.C. § 5325(h) all procurement transactions shall be conducted in a
manner that provides full and open competition.
27. PROHIBITION AGAINST EXCLUSIONARY OR DISCRIMINATORY SPECIFICATIONS
Apart from inconsistent requirements imposed by Federal statute or regulations, the contractor
shall comply with the requirements of 49 USC 5323(h)(2) by refraining from using any FTA
assistance to support procurements using exclusionary or discriminatory specifications.
28. CONFORMANCE WITH ITS NATIONAL ARCHITECTURE
Contractor shall conform, to the extent applicable, to the National Intelligent Transportation
Standards architecture as required by SAFETEA-LU Section 5307(c), 23 U.S.C. Section 512 note and
follow the provisions of FTA Notice, “FTA National Architecture Policy on Transit Projects,” 66 Fed.
Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later
date, except to the extent FTA determines otherwise in writing.
29. ACCESS REQUIREMENTS FOR PERSONS WITH DISABILITIES
Contractor shall comply with 49 USC 5301(d), stating Federal policy that the elderly and persons
with disabilities have the same rights as other persons to use mass transportation services and
facilities and that special efforts shall be made in planning and designing those services and
facilities to implement that policy.
Contractor shall also comply with all applicable requirements of Sec. 504 of the Rehabilitation Act
(1973), as amended, 29 USC 794, which prohibits discrimination on the basis of handicaps, and the
Americans with Disabilities Act of 1990 (ADA), as amended, 42 USC 12101 et seq., which requires
that accessible facilities and services be made available to persons with disabilities, including any
subsequent amendments thereto.
30. NOTIFICATION OF FEDERAL PARTICIPATION
To the extent required by law, in the announcement of any third party contract award for goods
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and services (including construction services) having an aggregate value of $500,000 or more,
contractor shall specify the amount of Federal assistance to be used in financing that acquisition of
goods and services and to express that amount of Federal assistance as a percentage of the total
cost of the third party contract.
31. INTEREST OF MEMBERS OR DELEGATES TO CONGRESS
No members of, or delegates to, the US Congress shall be admitted to any share or part of this
contract nor to any benefit arising therefrom.
32. INELIGIBLE CONTRACTORS AND SUBCONTRACTORS
Any name appearing upon the Comptroller General’s list of ineligible contractors for federally-
assisted contracts shall be ineligible to act as a subcontractor for contractor pursuant to this
contract. If contractor is on the Comptroller General’s list of ineligible contractors
(https://www.sam.gov/SAM/) for federally financed or assisted construction, the recipient shall
cancel, terminate or suspend this contract.
33. OTHER CONTRACT REQUIREMENTS
To the extent not inconsistent with the foregoing Federal requirements, this contract shall also
include those standard clauses attached hereto, and shall comply with the recipient’s Procurement
Guidelines, available upon request from the Department.
34. COMPLIANCE WITH FEDERAL REGULATIONS
Any contract entered pursuant to this solicitation shall contain the following provisions: All USDOT-
required contractual provisions, as set forth in FTA Circular 4220, are incorporated by reference.
Anything to the contrary herein notwithstanding, FTA mandated terms shall control in the event of
a conflict with other provisions contained in this Agreement. Contractor shall not perform any act,
fail to perform any act, or refuse to comply with any grantee request that would cause the recipient
to be in violation of FTA terms and conditions. Contractor shall comply with all applicable FTA
regulations, policies, procedures and directives, including, without limitation, those listed directly
or incorporated by reference in the Master Agreement between the recipient and FTA, as may be
amended or promulgated from time to time during the term of this contract. Contractor’s failure to
so comply shall constitute a material breach of this contract.
35. REAL PROPERTY
Any contract entered into shall contain the following provisions: Contractor shall at all times
comply with all applicable statutes and USDOT regulations, policies, procedures and directives
governing the acquisition, use and disposal of real property, including, but not limited to, 49 CFR
18.31-18.34, 49 CFR 19.30-19.37, 49 CFR Part 24, 49 CFR 5326 as amended by Map-21, 49 CFR
part 18 or 19, 49 USC 5334, applicable FTA Circular 5010, and FTA Master Agreement, as they may
be amended or promulgated during the term of this contract. Contractor’s failure to so comply
shall constitute a material breach of this contract.
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 37 of 40
Procurement
36. ACCESS TO SERVICES FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY
To the extent applicable and except to the extent that FTA determines otherwise in writing, the
Recipient agrees to comply with the policies of Executive Order No. 13166, "Improving Access to
Services for Persons with Limited English Proficiency," 42 U.S.C. § 2000d 1 note, and with the
provisions of U.S. DOT Notice, “DOT Guidance to Recipients on Special Language Services to Limited
English Proficient (LEP) Beneficiaries,” 70 Fed. Reg. 74087, December 14, 2005.
37. ENVIROMENTAL JUSTICE
Except as the Federal Government determines otherwise in writing, the Recipient agrees to
promote environmental justice by following: (1) Executive Order No. 12898, “Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income Populations,” February 11,
1994, 42
U.S.C. § 4321 note, as well as facilitating compliance with that Executive Order, and (2) DOT Order
5610.2, “Department of Transportation Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations,” 62 Fed. Reg. 18377, April 15, 1997, and (3) The most
recent and applicable edition of FTA Circular 4703.1, “Environmental Justice Policy Guidance for
Federal Transit Administration Recipients,” August 15, 2012, to the extent consistent with
applicable Federal laws, regulations, and guidance,
38. ENVIRONMENTAL PROTECTIONS
Compliance is required with any applicable Federal laws imposing environmental and resource
conservation requirements for the project. Some, but not all, of the major Federal laws that may
affect the project include: the National Environmental Policy Act of 1969; the Clean Air Act; the
Resource Conservation and Recovery Act; the comprehensive Environmental response,
Compensation and Liability Act; as well as environmental provisions with Title 23 U.S.C., and 49
U.C. chapter 53. The U.S. EPA, FHWA and other federal agencies may issue other federal
regulations and directives that may affect the project. Compliance is required with any applicable
Federal laws and regulations in effect now or that become effective in the future.
39. GEORGRAPHIC INFORMATION RELATED TO SPATIAL DATA
Any project activities involving spatial data or geographic information systems activities financed
with Federal assistance are required to be consistent with the National Spatial Data Infrastructure
promulgated by the Federal Geographic Data Committee, except to the extent that FTA determines
otherwise in writing.
40. GEOGRAPHIC PREFERENCE
Pursuant to 2 CFR 200.319(b), all procurements must be conducted in a manner that prohibits the use of
statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation
of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or
encourage geographic preference. Nothing in this section preempts state licensing laws. When
contracting for architectural and engineering (A/E) services, geographic location may be a selection
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 38 of 40
Procurement
criterion provided its application leaves an appropriate number of qualified firms, given the nature and
size of the project, to compete for the contract).
41. ORGANIZATIONAL CONFLICTS OF INTEREST
The Recipient agrees that it will not enter into a procurement that involves a real or apparent
organizational conflict of interest described as follows:
(1) When It Occurs. An organizational conflict of interest occurs when the Project work, without
appropriate restrictions on certain future activities, results in an unfair competitive advantage:
(a) To that Third Party Participant or another Third Party Participant performing the Project
work, and
(b) That impairs that Third Party Participant’s objectivity in performing the Project work, or
(2) Other. An organizational conflict of interest may involve other situations resulting in
fundamentally unfair competitive conditions,
(3) Disclosure Requirements. Consistent with FTA policies, the Recipient must disclose to FTA, and
each of its Subrecipients must disclose to the Recipient:
(a) Any instances of organizational conflict of interest, or
(b) Violations of federal criminal law, involving fraud, bribery, or gratuity violations
potentially affecting the federal award, and
(4) Failure to Disclose. Failure to make required disclosures can result in remedies for
noncompliance, including debarment or suspension.
42. VETRANS PREFERENCE
As provided by 49 U.S.C. § 5325(k), to the extent practicable, the Recipient agrees and assures that
each of its Subrecipients:
(1) Will give a hiring preference to veterans, as defined in 5 U.S.C. § 2108, who have the skills and
abilities required to perform construction work required under a third party contract in connection
with a Capital Project supported with federal assistance appropriated or made available for 49
U.S.C. chapter 53, and
(2) Will not require an employer to give a preference to any veteran over any equally qualified
applicant who is a member of any racial or ethnic minority, female, an individual with a disability,
or a former employee.
43. CATALOG OF FEDERAL DOMESTIC ASSISTANCE (CFDA) IDENTIFICATION NUMBER
The municipal project sponsor is required to identify in its accounts all Federal awards received and
expended, and the Federal programs under which they were received. Federal program and award
identification shall include, as applicable, the CFDA title and number, award number and year,
name of the Federal agency, and name of the pass-through entity.
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 39 of 40
Procurement
44. AMERICANS WITH DISABILITIES ACT (ADA)
The contractor agrees to comply with the requirements of 49 U.S.C. § 5301 (d), which states the
Federal policy that the elderly and persons with disabilities have the same right as other persons to
use mass transportation service and facilities, and that special efforts shall be made in planning and
designing those services and facilities to implement that policy. The contractor also agrees to
comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, with the
Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which
requires that accessible facilities and services be made available to persons with disabilities,
including any subsequent amendments to that Act, and with the Architectural Barriers act of 1968,
as amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be
accessible to persons with disabilities, including any subsequent amendments to that Act. In
addition, the contractor agrees to comply with any and all applicable requirements issued by the
FTA, DOT, DOJ, U.S. GSA, U.S. EEOC, U.S. FCC, any subsequent amendments thereto and any other
nondiscrimination statute(s) that may apply to the Project.
45. BYRD ANTI-LOBBYING AMENDMENT
Contractors who apply or bid for an award of $100,000 or more shall file the required certification.
Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to
pay any person or organization for influencing or attempting to influence an officer or employee of
any agency, a member of Congress, officer or employee of Congress, or an employee of a member
of Congress in connection with obtaining any Federal contract, grant, or any other award covered by
31 U.S.C. § 1352. Each tier shall also disclose any lobbying with nonfederal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to
the Agency.”
46. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
The Agency and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal
Government in or approval of the solicitation or award of the underlying Contract, absent the express written
consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be
subject to any obligations or liabilities to the Agency, Contractor or any other party (whether or not a party to
that contract) pertaining to any matter resulting from the underlying Contract. The Contractor agrees to
include the above clause in each subcontract financed in whole or in part with Federal assistance provided by
the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who
will be subject to its provisions.
44. BUS TESTING
The operator of the bust testing facility is required to provide the resulting test report to the entity
that submits the bus for testing. The manufacturer or dealer of a new bus model or a bus produced
with a major change in component or configuration is required to provide a copy of the
corresponding full bus testing report and any applicable partial testing report(s) to the Agency
during the point in the procurement process specified by the Agency, but in all cases before final
FEDERAL PROVISIONS
Solicitation No: BPM003324
Available online at
https//app.az.gov
Page 40 of 40
Procurement
acceptance of the first bus by the Agency. The complete bus testing report requirements are
provide in 49 C.F.R. § 665.11.
45. CARGO PREFERENCE REQUIREMENTS
The contractor agrees:
a. to use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or commodities pursuant to the
underlying contract to the extent such vessels are available at fair and reasonable rates for
United States-Flag commercial vessels;
b. to furnish within 20 working days following the date of loading for shipments originating
within the United States or within 30 working days following the date of loading for
shipments originating outside the United States, a legible copy of a rated, "onboard"
commercial ocean bill-of-lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo, Office of Market Development,
Maritime Administration, Washington, DC 20590 and to the FTA Recipient (through the
contractor in the case of a subcontractor's bill-of-lading.); and
c. to include these requirements in all subcontracts issued pursuant to this contract when
the subcontract may involve the transport of equipment, material, or commodities by
ocean vessel.
47. PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLING STOCK PURCHASES
The Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA's implementing regulation at 49 C.F.R.
part 663. The Contractor shall comply with the Buy America certification(s) submitted with its proposal/bid.
The Contractor agrees to participate and cooperate in any pre-award and post-delivery audits performed
pursuant to 49 C.F.R. part 663 and related FTA guidance.
EXHIBIT 1
Title VI/Non-Discrimination Assurances
Appendix A
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 25 of 34
Procurement
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts
and the Regulations relative to Non-discrimination in Federally-assisted programs of the U.S. Department of
Transportation, the Federal Highway Administration, as they may be amended from time to time, which are
herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performance by it during the contract, will not
discriminate on the grounds of race, color, or national origin in the selection and retention of
subcontractors, including procurements of materials and leases of equipment. The contractor will not
participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including
employment practices when the contract covers any activity, project, or program set forth in Appendix B of
49 CFR Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations,
either by competitive bidding, or negotiation made by the contractor for work to be performed under a
subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or
supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts
and Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the
Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts,
other sources of information, and its facilities as may be determined by the Recipient or the Federal
Highway Administration to be pertinent to ascertain compliance with such Acts, Regulations, and
instructions. Where any information required of a contractor is in the exclusive possession of another who
fails or refuses to furnish the information, the contractor will so certify to the Recipient or the Federal
Highway Administration, as appropriate, and will set forth what efforts it has made to obtain the
information.
5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the Non-discrimination
provisions of this contract, the Recipient will impose such contract sanctions as it or the Federal Highway
Administration ,may determine to be appropriate, including, but not limited to:
a.
withholding payments to the contractor under the contract until the contractor complies;
and/or
b.
cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in
every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts,
the Regulations and directives issued pursuant thereto. The contractor will take action with request to any
subcontract or procurement as the Recipient or the Federal Highway Administration may direct as a means
of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor
becomes involved in, or is threatened with litigation by a subcontractor or supplier because of such
direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the
Recipient. In addition, the contractor may request the United States to enter into the litigation to protect
the interests of the United States.
EXHIBIT 2
Title VI/Non-Discrimination Assurances
Appendix E
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 26 of 34
Procurement
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest
(hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes
and authorities; including but not limited to:
Pertinent Non-Discrimination Authorities:
•
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on
the basis of race, color, national origin): and 49 CFR Part 21.
•
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601),
(prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or
Federal-aid programs and projects);
•
Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 etseq.), (prohibits discrimination on the basis of sex);
•
Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination
on the basis of disability); and 49 CFR Part 27;
•
The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the
basis of age);
•
Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits
discrimination based on race, creed, color, national origin, or sex);
•
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of
Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of
the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such
programs or activities are Federally funded or not);
•
Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability
in the operation of public entities, public and private transportation systems, places of public
accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of
Transportation regulations at 49 C.F.R. parts 37 and 38;
•
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
•
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-
Income Populations, which ensures discrimination against minority populations by discouraging programs,
policies, and activities with disproportionately high and adverse human health or environmental effects on
minority and low-income populations;
•
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and
resulting agency guidance, national origin discrimination includes discrimination because of limited English
proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP
persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
•
Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating
because of sex in education programs or activities (20 U.S.C. 1687 et. seq).
EXHIBIT 3
ADOT Procurement Quarterly Usage Report
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 27 of 34
Procurement
This exhibit outlines the content required for the quarterly usage report. Usage reports will be submitted to the appropriate Procurement Officer in accordance with the
requirements specified in Special Terms and Conditions. The Department reserves the right to make additions, deletions and changes as deemed necessary.
Reporting Period:
Contract ID/Code:
Contact Name:
Alternate Contact Name:
Contract
Label/Description:
Contact Phone
Number:
Alternate Contact Phone
Number:
Contractor:
Contact Email:
Alternate Contact Email:
Contractor Address:
Agency/Org/Unit Customer
Name
Delivery Address
PO Number
or Identify as
“P-Card”
Order
Date
Contract
Item
Number
Contract Item
Description
Quantity
Unit of
Measure
Contract
Unit
Price
Contract
Extended
Price
Invoice
Number
EXHIBIT 4
ON-SITE MANUFACTURER INSPECTION
COMPLIANCE CERTIFICATION
Solicitation No: BPM003324
Available online at
https://app.az.gov/
Page 28 of 34
Procurement
(Post-Delivery purchaser’s requirement, in compliance with the federal requirements of 49 U.S.C. Section 5323(m))
ON-SITE MANUFACTURER INSPECTION COMPLIANCE CERTIFICATION
(Rolling Stock Procurements for more than 10 vehicles for areas >200,000 in population)
As required by 49 CFR Part 663Subpart C, the
_____________________________________________________________________________________________
(Recipient’s name)
Certifies that a resident inspector,
_____________________________________________________________________________________________
(Name of inspector)
Was at
_____________________________________________________________________________________________
(the manufacturer’s)
manufacturing site during the period of manufacture of the buses,
_____________________________________________________________________________________________
(description of buses).
The inspector visually inspecting the buses, the _________________________________________ (the recipient) has
reviewed the inspection documentation, maintains a copy of this report, and certifies that the buses meet the contract
specifications.
ON-SITE MANUFACTURER INSPECTION COMPLIANCE CERTIFICATION
(Rolling Stock Procurements for more than 20 vehicles for areas < 200,000 in population)
As required by 49 CFR Part 663 Subpart C, the
_____________________________________________________________________________________________
(Recipient’s name)
Certifies that a resident inspector,
_____________________________________________________________________________________________
(Name of inspector)
Was at
_____________________________________________________________________________________________
(the manufacturer’s)
manufacturing site during the period of manufacture of the buses,
_____________________________________________________________________________________________
(description of buses).
The inspector visually inspecting the buses, the _____________________________________________________ (the
recipient) has reviewed the inspection documentation, maintains a copy of this report, and certifies that the buses meet
the contract specifications.
Signature _________________________________________________ Date ______/ ______/ ______
Title ______________________________________________________________________________
EXHIBIT 5
PRE-AWARD AUDIT AND CERTIFICATION
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 29 of 34
Procurement
Subrecipient
Date / Completed
By
Description
Program/Phas
e/Amounts
Master
Agreement;
49 CFR §663.21
49 CFR §663.23
Met? Y/N
(if NO 1b, 1 REQ'D)
(1) A Buy America certification:
a) There is a letter from FTA which grants a waive OR
Met? Y/N
(if NO 1a, 2 REQ'D)
b) ADOT reviewed documentation provided by the manufacturer which lists—
1) Component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the
parts, their country of origin and costs; and
2) The location of the final assembly point for the rolling stock, including a description of the activities that will
take place at the final assembly point and the cost of final assembly.
Met? Y/N
(2 REQ'D)
(2) A purchaser's requirements certification:
a) The rolling stock the recipient is contracting for is the same product described in the purchaser's solicitation
specification; and
b) The proposed manufacturer is a responsible manufacturer with the capability to produce a vehicle that meets the
recipient's
Met? Y/N
(1 REQ'D)
a) If a vehicle purchased under this part is subject to the Federal Motor Vehicle Safety Standards issued by the
National Highway Traffic Safety Administration in part 571 of this title, a recipient shall keep on file its certification
that it received, both at the pre-award and post-delivery stage, a copy of the manufacturer's self-certification
information that the vehicle complies with relevant Federal Motor Vehicle Safety Standards.
49 CFR §663.41
a) Except for rolling stock subject to paragraph (b) of this section, if a vehicle purchased under this part is not subject
to the Federal Motor Vehicle Safety Standards issued by the National Highway Traffic Safety Administration in part
571 of this title, the recipient shall keep on file its certification that it received a statement to that effect from the
manufacturer.
49 CFR §663.43
PRE-AWARD AUDIT (before issuing purchase order)
49 CFR §663.25
49 CFR §663.27
(3) A manufacturer's Federal Motor Vehicle Safety certification or Certification that Federal motor vehicle standards do not apply.
Pre-award audit requirements.
A recipient purchasing revenue service rolling stock with FTA funds must ensure that a pre-award audit under this part is complete before
the recipient enters into a formal contract for the purchase of such rolling stock.
49 CFR 661.13 Grantee Responsibility
(a) The grantee shall adhere to the Buy America clause set forth in its grant contract with FTA
Section 16. Preference for United States Products and Services.
a. Buy America. Domestic preference procurement requirements of:
49 CFR §663.13
(1) 49 U.S.C. § 5323(j), as amended by FAST Act, and
(2) FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with FAST Act,
49 CFR §663.23 Description of pre-award audit. A pre-award audit under this part includes—
(a) A Buy America certification as described in §663.25 of this part;
(b) A purchaser's requirements certification as described in §663.27 of this part; and
(c) Where appropriate, a manufacturer's Federal Motor Vehicle Safety certification information as described in §663.41 or §663.43 of
this part.
EXHIBIT 6
PURCHASER'S PRE-AWARD REQUIREMENTS
CERTIFICATION
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 30 of 34
Procurement
Subrecipient
Description
Program/Phase/Amount
s
Signature
Date Signed
I hereby certify that the proposed manufacturer is a responsible manufacturer with the capability to produce a
vehicle that meets the recipient's
Purchaser's Pre-Award Requirements Certification
49 CFR §663.27
I hereby certify that the rolling stock the recipient is contracting for is the same product described in the
purchaser's solicitation specification; and
EXHIBIT 7
POST-AWARD CERTIFICATION AND REQUIREMENTS
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 31 of 34
Procurement
Subrecipient
Date / Completed
By
Description
Program/Phase/A
mounts
Buy America-Compliant Buses
§663.33 Description of post-delivery audit. A post-delivery audit under this part includes—
(a) A post-delivery Buy America certification as described in §663.35 of this part;
§663.35 Post-delivery Buy America certification. For purposes of this part, a post-delivery Buy America certification is a certification
that the recipient keeps on file that—
(a) There is a letter from FTA which grants a waiver to the rolling stock received from the Buy America requirements under sections 165
(b)(1), or (b)(4) of the Surface Transportation Assistance Act of 1982, as amended; or
(b) The recipient is satisfied that the rolling stock received meets the requirements of section 165 (a) or (b)(3) of the Surface
Transportation Assistance Act of 1982, as amended, after having reviewed itself or by means of an audit prepared by someone other than
the manufacturer or its agent documentation provided by the manufacturer which lists—
(1) Components and subcomponent parts of the rolling stock identified by manufacturer of the parts, their country of origin and costs; and
(2) The actual location of the final assembly point for the rolling stock including a description of the activities which took place at the final
assembly point and the cost of the final assembly.
(b) A post-delivery purchaser's requirements certification as described in §663.37 of this part; and
§663.37 Post-delivery purchaser's requirements certification. For purposes of this part, a post-delivery purchaser's requirements
certification is a certification that the recipient keeps on file that—
(a) Except for procurements covered under paragraph (c) in this section, a resident inspector (other than an agent or employee of the
manufacturer) was at the manufacturing site throughout the period of manufacture of the rolling stock to be purchased and monitored
and completed a report on the manufacture of such rolling stock. Such a report, at a minimum, shall—
(1) Provide accurate records of all vehicle construction activities; and
(2) Address how the construction and operation of the vehicles fulfills the contract specifications.
(b) After reviewing the report required under paragraph (a) of this section, and visually inspecting and road testing the delivered vehicles,
the vehicles meet the contract specifications.
(c) For procurements of:
(1) Ten or fewer buses; or
(2) Procurements of twenty vehicles or fewer serving rural (other than urbanized) areas, or urbanized areas of 200,000 people or fewer;
or
(3) Any number of primary manufacturer standard production and unmodified vans, after visually inspecting and road testing the
vehicles, the vehicles meet the contract specifications.
Met? Y/N
(1 REQ'D)
(c) When appropriate, a manufacturer's Federal Motor Vehicle Safety Standard self-certification information as described in §663.41 or
§663.43 of this part.
§663.41 Certification of compliance with Federal motor vehicle safety standards.
If a vehicle purchased under this part is subject to the Federal Motor Vehicle Safety Standards issued by the National Highway Traffic
Safety Administration in part 571 of this title, a recipient shall keep on file its certification that it received, both at the pre-award and post-
delivery stage, a copy of the manufacturer's self-certification information that the vehicle complies with relevant Federal Motor Vehicle
Safety Standards.
§663.43 Certification that Federal motor vehicle standards do not apply.
(a) Except for rolling stock subject to paragraph (b) of this section, if a vehicle purchased under this part is not subject to the Federal
Motor Vehicle Safety Standards issued by the National Highway Traffic Safety Administration in part 571 of this title, the recipient shall
keep on file its certification that it received a statement to that effect from the manufacturer.
(b) This subpart shall not apply to rolling stock that is not a motor vehicle.
The Post-Delivery Review Requirements (http://www.fta.dot.gov/legislation_law/12921_5430.html)
The Post-Delivery Buy America Certification Requirement
Select basis'
(1 REQ'D)
49 CFR 663(b)
Met? Y/N
(3 REQ'D)
EXHIBIT 7
POST-AWARD CERTIFICATION AND REQUIREMENTS
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 32 of 34
Procurement
Buy America-Exempt Buses
49 CFR 663(a)
The Post-Delivery Purchaser’s Requirements Certification Requirement
More Than Ten Buses or Modified Vans
§663.37 Post-delivery purchaser's requirements certification. For purposes of this part, a post-delivery purchaser's requirements
certification is a certification that the recipient keeps on file that—
(a) Except for procurements covered under paragraph (c) in this section, a resident inspector (other than an agent or employee of the
manufacturer) was at the manufacturing site throughout the period of manufacture of the rolling stock to be purchased and monitored and
completed a report on the manufacture of such rolling stock. Such a report, at a minimum, shall—
(1) Provide accurate records of all vehicle construction activities; and
(2) Address how the construction and operation of the vehicles fulfills the contract specifications.
(b) After reviewing the report required under paragraph (a) of this section, and visually inspecting and road testing the delivered vehicles,
the vehicles meet the contract specifications.
(c) For procurements of:
(1) Ten or fewer buses; or
(2) Procurements of twenty vehicles or fewer serving rural (other than urbanized) areas, or urbanized areas of 200,000 people or fewer; or
(3) Any number of primary manufacturer standard production and unmodified vans, After visually inspecting and road testing the vehicles,
the vehicles meet the contract specifications.
Ten or Fewer Buses or Modified Vans, or any Number of Unmodified Vans
§663.37 Post-delivery purchaser's requirements certification. For purposes of this part, a post-delivery purchaser's requirements certification
is a certification that the recipient keeps on file that—
(a) Except for procurements covered under paragraph (c) in this section, a resident inspector (other than an agent or employee of the
manufacturer) was at the manufacturing site throughout the period of manufacture of the rolling stock to be purchased and monitored and
completed a report on the manufacture of such rolling stock. Such a report, at a minimum, shall—
(1) Provide accurate records of all vehicle construction activities; and
(2) Address how the construction and operation of the vehicles fulfills the contract specifications.
(b) After reviewing the report required under paragraph (a) of this section, and visually inspecting and road testing the delivered vehicles, the
vehicles meet the contract specifications.
(c) For procurements of:
(1) Ten or fewer buses; or
(2) Procurements of twenty vehicles or fewer serving rural (other than urbanized) areas, or urbanized areas of 200,000 people or fewer; or
(3) Any number of primary manufacturer standard production and unmodified vans, after visually inspecting and road testing the vehicles,
the vehicles meet the contract specifications.
Only Mark 1 Option
Below
Met? Y/N
(Required if Not Exempt)
FMVSS-Compliant Buses
§663.41 Certification of compliance with Federal motor vehicle safety standards.
If a vehicle purchased under this part is subject to the Federal Motor Vehicle Safety Standards issued by the National Highway Traffic
Safety Administration in part 571 of this title, a recipient shall keep on file its certification that it received, both at the pre-award and post-
delivery stage, a copy of the manufacturer's self-certification information that the vehicle complies with relevant Federal Motor Vehicle
Safety Standards
Met? Y/N
(Required if Exempt)
FMVSS-Exempt Buses
§663.43 Certification that Federal motor vehicle standards do not apply.
(a) Except for rolling stock subject to paragraph (b) of this section, if a vehicle purchased under this part is not subject to the Federal Motor
Vehicle Safety Standards issued by the National Highway Traffic Safety Administration in part 571 of this title, the recipient shall keep on
file its certification that it received a statement to that effect from the manufacturer.
(b) This subpart shall not apply to rolling stock that is not a motor vehicle.
Only Mark if:
Rejecting Vehicle (a) OR
Conditional Acceptance
(b)
§663.39 Post-delivery audit review.
(a) If a recipient cannot complete a post-delivery audit because the recipient or its agent cannot certify Buy America compliance or that the rolling
stock meets the purchaser's requirements specified in the contract, the rolling stock may be rejected and final acceptance by the recipient will not
be required. The recipient may exercise any legal rights it has under the contract or at law.
(b) This provision does not preclude the recipient and manufacturer from agreeing to a conditional acceptance of rolling stock pending
manufacturer's correction of deviations within a reasonable period of time.
49 CFR 663.41
49 CFR 663.43
49 CFR 663.39
Only 1 section required:
Either > 10 or <= 10
Met? Y/N
(3 REQ'D if applicable)
49 CFR 663.37(a)&(b)
Met? Y/N
(3 REQ'D if applicable)
49 CFR 663.37(c.)
The Post-Delivery FMVSS Certification Requirement
EXHIBIT 8
PURCHASER'S POST-AWARD REQUIREMENTS
CERTIFICATION
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 33 of 34
Procurement
Subrecipient
Description
Program/Phase/Amount
s
Signature
Date Signed
I hereby certify that the proposed manufacturer is a responsible manufacturer with the capability to produce a
vehicle that meets the recipient's
Purchaser's Post-Award Requirements Certification
49 CFR §663.37
I hereby certify that the rolling stock the recipient is contracting for is the same product described in the
purchaser's solicitation specification; and
EXHIBIT 9
VEHICLE MODIFICATION INSPECTION AND
ACCEPTANCE FOR CATEGORY 4
Solicitation No: BPM003324
Available online at
https://app.az.gov
Page 34 of 34
Procurement
VEHICLE MODIFICATION INSPECTION AND ACCEPTANCE FOR CATEGORY 4
RSA Client’s Name: _______________________________
RSA Counselor’s Name: ____________________________
Equipment Installer’s Name: ________________________
CDRS Evaluator’s Name: ___________________________
Client’s Satisfaction with Vehicle Modification Services
1. Was the vehicle modification completed on schedule? ☐YES ☐NO
Complements or Complaints: _______________________
2. Are all authorized services completed? ☐YES ☐NO
Complements or Complaints: _______________________
3. Do all components function properly? ☐YES ☐NO
Complements or Complaints: _______________________
4. Is the workmanship satisfactory? ☐YES ☐NO
Complements or Complaints: _______________________
5. Have all questions been answered? ☐YES ☐NO
Complements or Complaints: _______________________
If the vehicle modification is not satisfactory, describe issue/s:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Has the vehicle mod prescription been filled as specified, ready for payment? ☐Yes ☐No
Is additional work required? describe:
_______________________________________________________________________
_______________________________________________________________________
Sign here if the vehicle modification was satisfactory and accepted by all parties:
RSA Client’s Signature: ______________________________ Date:____________
CDRS Evaluator’s Signature: ______________________________ Date:____________
Equipment Installer Signature: ____________________________ Date:____________
Counselor’s Signature (or designee): _______________________ Date:____________