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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:
2.
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.
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.
Uniform Terms and Conditions
Updated: July 1, 2013
Page 1 of 9
3.
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.
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.
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.
Uniform Terms and Conditions
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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 noncompliance 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 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.
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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.
4.4.
4.5.
5.
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 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.
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.
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.
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.
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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.
6.
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.
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.
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; injunctionsintervention-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.
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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
maintain any required insurance, bonds, licenses or permits.
6.5.
7.
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.
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.
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
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paragraph are not affected by inspection or testing of or payment for the materials by the
State.
8.
7.5.
Compliance With Applicable Laws. The materials and services supplied under this
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.
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 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
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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.
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
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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.
10.
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.
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
th
Administrator, State Procurement Office, 100 North 15 Avenue, Suite 201, Phoenix, Arizona,
85007.
Uniform Terms and Conditions
Updated: July 1, 2013
Page 9 of 9
UNIFORM INSTRUCTIONS TO OFFERORS
A.
Definition of Terms
As used in these Instructions, the terms listed below are defined as follows:
1.
“Attachment” means any item the Solicitation requires an Offeror to submit as part of the
Offer.
2.
‘Best and Final Offer” means a revision to an Offer submitted after negotiations are
completed that contains the Offeror’s most favorable terms for price, service, and products
to be delivered. Sometimes referred to as a Final Proposal Revision.
3.
“Contract” means the combination of the Solicitation, including the Uniform and Special
Terms and Conditions, and the Specifications and Statement or Scope of Work; the Offer,
any Clarifications, and any Best and Final Offers; and any Solicitation Amendments or
Contract Amendments.
4.
"Contract Amendment" means a written document signed by the Procurement Officer issued
for the purpose of making changes in the Contract.
5.
“Contractor” means any person who has a Contract with a state governmental unit.
6.
“Day” means calendar days unless otherwise specified.
7.
“eProcurement (Electronic Procurement)” means conducting all or some of the procurement
function over the Internet. Point, click, buy and ship Internet technology is replacing paperbased procurement and supply management business processes.
Elements of
eProcurement also include Invitation for Bids, Request for Proposals, and Request for
Quotations.
8.
“Exhibit” means any document or object labeled as an Exhibit in the Solicitation or placed in
the Exhibits section of the Solicitation.
9.
“Offer” means a response to a solicitation.
10.
“Offeror” means a person who responds to a Solicitation.
11.
“Person” means any corporation, business, individual, union, committee, club, or other
organization or group of individuals.
12.
“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.
13.
”Solicitation” means an Invitation for Bids (“IFB”), a Request for Technical Offers, a Request
for Proposals (“RFP”), a Request for Quotations (“RFQ”), or any other invitation or request
issued by the purchasing agency to invite a person to submit an offer.
14.
"Solicitation Amendment" means a change to the Solicitation issued by the Procurement
Officer.
15.
“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.
Uniform Instructions to Offerors
Updated: July 2013
Page 1 of 6
16.
B.
C.
“State” means the State of Arizona and Department or Agency of the State that executes
the Contract.
Inquiries
1.
Duty to Examine. It is the responsibility of each Offeror to examine the entire Solicitation,
seek clarification in writing (inquiries), and examine its Offer for accuracy before submitting
an Offer. Lack of care in preparing an Offer shall not be grounds for modifying or
withdrawing the Offer after the Offer due date and time.
2.
Solicitation Contact Person. Any inquiry related to a Solicitation, including any requests for
or inquiries regarding standards referenced in the Solicitation shall be directed solely to the
Procurement Officer.
3.
Submission of Inquiries. All inquiries related to the Solicitation are required to be submitted
in the State’s eProcurement system. All responses to inquiries will be answered in the
State’s eProcurement system. Any inquiry related to the Solicitation should reference the
appropriate solicitation page and paragraph number.
Offerors are prohibited from
contacting any State employee other than the Procurement Officer concerning the
procurement while the solicitation and evaluation are in process.
4.
Timeliness. Any inquiry or exception to the Solicitation shall be submitted as soon as
possible and should be submitted at least seven days before the Offer due date and time for
review and determination by the State. Failure to do so may result in the inquiry not being
considered for a Solicitation Amendment.
5.
No Right to Rely on Verbal or Electronic Mail Responses. An Offeror shall not rely on verbal
or electronic mail responses to inquiries. A verbal or electronic mail reply to an inquiry does
not constitute a modification of the solicitation.
6.
Solicitation Amendments. The Solicitation shall only be modified by a Solicitation
Amendment.
7.
Pre-Offer Conference. If a pre-Offer conference has been scheduled under the Solicitation,
the date, time and location shall appear in the State’s eProcurement system . Offerors
should raise any questions about the Solicitation at that time. An Offeror may not rely on any
verbal responses to questions at the conference. Material issues raised at the conference
that result in changes to the Solicitation shall be answered solely through a Solicitation
Amendment.
8.
Persons With Disabilities. Persons with a disability may request a reasonable
accommodation, such as a sign language interpreter, by contacting the Procurement
Officer. Requests shall be made as early as possible to allow time to arrange the
accommodation.
Offer Preparation
1.
Electronic Documents. The Solicitation is provided in an electronic format. Offerors are
responsible for clearly identifying any and all changes or modifications to any Solicitation
documents upon submission to the State’s eProcurement system. Any unidentified
alteration or modification to any Solicitation, attachments, exhibits, forms, charts or
illustrations contained herein shall be null and void. Offeror’s electronic files shall be
submitted in a format acceptable to the State. Acceptable formats include .doc and .docx
(Microsoft Word), .xls and .xlsx (Microsoft Excel), .ppt and .pptx (Microsoft PowerPoint) and
.pdf (Adobe Acrobat). Offerors wishing to submit files in any other format shall submit an
inquiry to the Procurement Officer.
2.
Evidence of Intent to be Bound. The Offer and Acceptance form within the Solicitation shall
be submitted with the Offer in the State’s eProcurement system and shall include a
Uniform Instructions to Offerors
Updated: July 2013
Page 2 of 6
signature by a person authorized to sign the Offer. The signature shall signify the Offeror’s
intent to be bound by the Offer and the terms of the Solicitation and that the information
provided is true, accurate and complete. Failure to submit verifiable evidence of an intent to
be bound, such as a signature, shall result in rejection of the Offer.
3.
Exceptions to Terms and Conditions. All exceptions included with the Offer shall be
submitted in the State’s eProcurement system in a clearly identified separate section of the
Offer in which the Offeror clearly identifies the specific paragraphs of the Solicitation where
the exceptions occur. Any exceptions not included in such a section shall be without force
and effect in any resulting Contract unless such exception is specifically accepted by the
Procurement Officer in a written statement. The Offeror’s preprinted or standard terms will
not be considered by the State as a part of any resulting Contract.
3.1.
Invitation for Bids. An Offer that takes exception to a material requirement of any
part of the Solicitation, including terms and conditions, shall be rejected.
3.2.
Request for Proposals. All exceptions that are contained in the Offer may negatively
impact an Offeror’s susceptibility for award. An Offer that takes exception to any
material requirement of the solicitation may be rejected.
4.
Subcontracts. Offeror shall clearly list any proposed subcontractors and the subcontractor’s
proposed responsibilities in the Offer.
5.
Cost of Offer Preparation. The State will not reimburse any Offeror the cost of responding to
a Solicitation.
6.
Federal Excise Tax. The State is exempt from certain Federal Excise Tax on manufactured
goods. Exemption Certificates will be provided by the State.
7.
Provision of Tax Identification Numbers. Offerors are required to provide their Arizona
Transaction Privilege Tax Number and/or Federal Tax Identification number in the space
provided on the Offer and Acceptance form.
7.1
Employee Identification. Offeror agrees to provide an employee identification
number or social security number to the State for the purposes of reporting to
appropriate taxing authorities, monies paid by the State under this Contract. If the
federal identifier of the Offeror is a social security number, this number is being
requested solely for tax reporting purposes and will be shared only with appropriate
state and federal officials. This submission is mandatory under 26 U.S.C. § 6041A.
8.
Identification of Taxes in Offer. The State is subject to all applicable state and local
transaction privilege taxes. All applicable taxes shall be identified as a separate item offered
in the Solicitation. When applicable, the tax rate and amount shall be identified on the price
sheet.
9.
Disclosure. If the person submitting this Offer has been debarred, suspended or otherwise
lawfully precluded from participating in any public procurement activity, including being
disapproved as a subcontractor with any federal, state or local government, or if any such
preclusion from participation from any public procurement activity is currently pending, the
Offeror shall fully explain the circumstances relating to the preclusion or proposed
preclusion in the Offer. The Offeror shall set forth the name and address of the
governmental unit, the effective date of the suspension or debarment, the duration of the
suspension or debarment, and the relevant circumstances relating to the suspension or
debarment. If suspension or debarment is currently pending, a detailed description of all
relevant circumstances including the details enumerated above shall be provided.
10.
Delivery. Unless stated otherwise in the Solicitation, all prices shall be F.O.B. Destination
and shall include all freight, delivery and unloading at the destination(s).
Uniform Instructions to Offerors
Updated: July 2013
Page 3 of 6
D.
11.
Federal Immigration and Nationality Act. By signing of the Offer, the Offeror warrants that
both it and all proposed subcontractors are in compliance with federal immigration laws and
regulations (FINA) relating to the immigration status of their employees. The State may, at
its sole discretion require evidence of compliance during the evaluation process. Should the
State request evidence of compliance, the Offeror shall have five days from receipt of the
request to supply adequate information. Failure to comply with this instruction or failure to
supply requested information within the timeframe specified shall result in the Offer not
being considered for contract award.
12.
Offshore Performance of Work Prohibited. Any services that are described in the
specifications or scope of work that directly serve the State 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. Offerors shall declare all anticipated offshore
services in the Offer.
Submission of Offer
1.
Offer Submission, Due Date and Time. Offerors responding to a Solicitation must submit
the Offer electronically through the State’s eProcurement system. Offers shall be received
before the due date and time stated in the solicitation. Offers submitted outside of the
State’s eProcurement system or those that are received after the due date and time shall be
rejected.
2.
Offer and Acceptance. Offers shall include a signed Offer and Acceptance form. The Offer
and Acceptance form shall be signed with a signature by the person authorized to sign the
Offer, and shall be submitted in the State’s eProcurement system with the Offer no later
than the Solicitation due date and time. Failure to return an Offer and Acceptance form may
result in rejection of the Offer.
3.
Solicitation Amendments. A Solicitation Amendment shall be acknowledged in the State’s
eProcurement system no later than the Offer due date and time. Failure to acknowledge a
Solicitation Amendment may result in rejection of the Offer.
4.
Offer Amendment or Withdrawal. An Offer may not be amended or withdrawn after the Offer
due date and time except as otherwise provided under applicable law.
5.
Confidential Information. If an Offeror believes that any portion of an Offer, protest, or
correspondence contains a trade secret or other proprietary information, the Offeror shall
clearly designate the trade secret and other proprietary information, using the term
“confidential.” An Offeror shall provide a statement detailing the reasons why the
information should not be disclosed including the specific harm or prejudice that may arise
upon disclosure. The Procurement Officer shall review all requests for confidentiality and
provide a written determination. Until a written determination is made, a Procurement
Officer shall not disclose information designated as confidential except to those individuals
deemed to have a legitimate State interest. In the event the Procurement Officer denies the
request for confidentiality, the Offeror may appeal the determination to the State
Procurement Administrator within the time specified in the written determination. Contract
terms and conditions, pricing, and information generally available to the public are not
considered confidential information.
6.
Public Record. All Offers submitted and opened are public records and must be retained by
the State for six years. Offers shall be open and available to public inspection through the
State’s eProcurement system after Contract award, except for such Offers deemed to be
confidential by the State.
Uniform Instructions to Offerors
Updated: July 2013
Page 4 of 6
7.
E.
F.
Non-collusion, Employment, and Services. By signing the Offer and Acceptance form or
other official contract form, the Offeror certifies that:
7.1.
The Offeror did not engage in collusion or other anti-competitive practices in
connection with the preparation or submission of its Offer; and
7.2.
The Offeror does not discriminate against any employee or applicant for
employment or person to whom it provides services because of race, color, religion,
sex, national origin, or disability, and that it complies with an applicable federal,
state and local laws and executive orders regarding employment.
Evaluation
1.
Unit Price Prevails. In the case of discrepancy between the unit price or rate and the
extension of that unit price or rate, the unit price or rate shall govern.
2.
Taxes. If the products and/or services specified require transaction privilege or use taxes,
they shall be described and itemized separately on the Offer. Arizona transaction privilege
and use taxes shall not be considered for evaluation.
3.
Prompt Payment Discount. Prompt payment discounts of thirty (30) days or more set forth
in an Offer shall be deducted from the Offer for the purpose of evaluating that price.
4.
Late Offers. An Offer submitted after the exact Offer due date and time shall be rejected.
5.
Disqualifications. An Offeror (including each of its principals) who is currently debarred,
suspended or otherwise lawfully prohibited from any public procurement activity shall have
its Offer rejected.
6.
Offer Acceptance Period. An Offeror submitting an Offer under the Solicitation shall hold its
Offer open for the number of days from the Offer due date that is stated in the Solicitation. If
the Solicitation does not specifically state a number of days for Offer acceptance, the
number of days shall be one hundred twenty (120). If a Best and Final Offer is requested
pursuant to a Request for Proposals, an Offeror shall hold its Offer open for one hundred
twenty (120) days from the Best and Final Offer due date.
7.
Waiver and Rejection Rights. Notwithstanding any other provision of the Solicitation, the
State reserves the right to:
7.1
Waive any minor informality;
7.2.
Reject any and all Offers or portions thereof; or
7.3
Cancel the Solicitation.
Award
1.
Number of Types of Awards. The State reserves the right to make multiple awards or to
award a Contract by individual line items or alternatives, by group of line items or
alternatives, or to make an aggregate award, or regional awards, whichever is most
advantageous to the State.
2.
Contract Inception. An Offer does not constitute a Contract nor does it confer any rights on
the Offeror to the award of a Contract. A Contract is not created until the Offer is accepted
in writing by the Procurement Officer’s signature on the Offer and Acceptance form. A
notice of award or of the intent to award shall not constitute acceptance of the Offer.
Uniform Instructions to Offerors
Updated: July 2013
Page 5 of 6
3.
G.
Effective Date. The effective date of the Contract shall be the date that the Procurement
Officer signs the Offer and Acceptance form or other official contract form, unless another
date is specifically stated in the Contract.
Protests
A protest shall comply with and be resolved according to Arizona Revised Statutes Title 41, Chapter
23, Article 9 and rules adopted thereunder. Protests shall be in writing and be filed with both the
Procurement Officer of the purchasing agency and with the State Procurement Administrator. A
protest of the Solicitation shall be received by the Procurement Officer before the Offer due date. A
protest of a proposed award or of an award shall be filed within ten (10) days after the Procurement
Officer makes the procurement file available for public inspection. A protest shall include:
H.
1.
The name, address, email address and telephone number of the interested party;
2.
The signature of the interested party or its representative;
3.
Identification of the purchasing agency and the Solicitation or Contract number;
4.
A detailed statement of the legal and factual grounds of the protest including copies of
relevant documents; and
5.
The form of relief requested.
Comments Welcome
The State Procurement Office periodically reviews the Uniform Instructions to Offerors 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.
Uniform Instructions to Offerors
Updated: July 2013
Page 6 of 6
