REQUEST FOR PROPOSALS (RFP)
SOLICITATION NO. XX1655182
Issue Date: June 9, 2017
FULL DELIVERY STREAM RESTORATION SERVICES Anne Arundel, Baltimore, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, Prince George’s & Washington Counties
Disadvantaged Business Enterprises Are Encouraged to Respond to this Solicitation. STATE OF MARYLAND NOTICE TO VENDORS
To help us improve the quality of State solicitations, and to make our procurement process more responsive and business friendly, take a few minutes and provide comments and suggestions regarding this solicitation. Please return your comments with your response. If you have chosen not to respond to this solicitation, please email or fax this completed form to the attention of the Procurement Officer (see Key Information Sheet below for contact information).
Title: Full Delivery Stream Restoration Services Solicitation No: XX1655182
1. If you have chosen not to respond to this solicitation, please indicate the reason(s) below:
( ) Other commitments preclude our participation at this time. ( ) The subject of the solicitation is not something we ordinarily provide. ( ) We are inexperienced in the work/commodities required. ( ) Specifications are unclear, too restrictive, etc. (Explain in REMARKS) ( ) The scope of work is beyond our present capacity. ( ) Doing business with the State of Maryland is simply too complicated. (Explain in REMARKS) ( ) We cannot be competitive. (Explain in REMARKS) ( ) Time allotted for completion of the Proposal is insufficient. ( ) Start-up time is insufficient. ( ) Bonding/Insurance requirements are restrictive. (Explain in REMARKS) ( ) Proposal requirements (other than specifications) are unreasonable or too risky. (Explain in REMARKS) ( ) DBE or VSBE requirements. (Explain in REMARKS) ( ) Prior State of Maryland contract experience was unprofitable or otherwise unsatisfactory. (Explain in REMARKS) ( ) Payment schedule too slow. ( ) Other: ______
2. If you have submitted a response to this solicitation, but wish to offer suggestions or express concerns, please use the REMARKS section below. (Attach additional pages as needed.)
REMARKS: ______
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Vendor Name: ______Date: ______
Contact Person: ______Phone (______) ______- ______
Address: ______
E-mail Address: ______
ii RFP Template Version: 01/20/2017 STATE OF MARYLAND
RFP KEY INFORMATION SUMMARY SHEET
Request for Proposals: FULL DELIVERY STREAM RESTORATION SERVICES
Solicitation Number: XX1655182
RFP Issue Date: June 9, 2017
RFP Issuing Office: MDOT SHA
Procurement Officer: Ms. Sonal Ram, PE Director, Office of Environmental Design 707 N. Calvert Street, Mailstop C-303 Baltimore, MD 21202 Phone: 800.446.5962 Fax: 410.209.5003 E-mail: [email protected]
Contract Monitor: Mr. Robert Shreeve 707 N. Calvert Street, Mailstop C-303 Baltimore, MD 21202 Phone: 800.446.5962 Fax: 410.209.5003 E-mail: [email protected]
Proposals are to be sent to: MDOT SHA 707 N. Calvert Street, C-303 Baltimore, MD 21202 Attention: Ms. Sonal Ram, PE
Pre-Proposal Conference: June 23, 2017 at 10:00 am MDOT SHA 7491 Connelly Drive Hanover, MD 21202 Office of Maintenance Training Room
Proposal Due (Closing) Date/Time: August 15, 2017 at Noon Local Time
DBE Subcontracting Goal: 5% VSBE Subcontracting Goal: N/A Contract Type: Fixed Price Contract Duration: Contract Completion by June 30, 2025. SBR Designation: No Federal Highway Administration Funding: Yes
iii RFP Template Version: 01/20/2017 TABLE OF CONTENTS SECTION 1 – MINIMUM QUALIFICATIONS ...... 7 1.0 Offeror Minimum Qualifications ...... 7 SECTION 2 – CONTRACTOR REQUIREMENTS: SCOPE OF WORK ...... 8 2.1 Summary Statement ...... 8 2.2 Background and Purpose ...... 9 2.3 Scope of Work - Requirements ...... 9 SECTION 3 – CONTRACTOR REQUIREMENTS: GENERAL REQUIREMENTS ...... 12 3.1 Insurance Requirements ...... 12 3.2 Security Requirements ...... 13 3.3 Problem Escalation Procedure ...... 13 3.4 Invoicing ...... 13 3.5 SOC 2 Type 2 Audit Report...... 17 3.6 DBE Reports ...... 17 3.7 VSBE Reports ...... 17 3.8 Liquidated Damages ...... 18 3.9 End of Contract Transition...... 18 3.10 Substitution of Personnel ...... 18 SECTION 4 – PROCUREMENT INSTRUCTIONS ...... 19 4.1 Rules of Contact ...... 19 4.2 Pre-Proposal Conference ...... 19 4.3 eMaryland Marketplace ...... 20 4.4 Questions...... 20 4.5 Procurement Method ...... 20 4.6 Proposal Due (Closing) Date and Time ...... 20 4.7 Multiple or Alternate Proposals ...... 21 4.8 Economy of Preparation ...... 21 4.9 Public Information Act Notice ...... 21 4.10 Award Basis ...... 21 4.11 Oral Presentation ...... 22 4.12 Duration of Proposal ...... 22 4.13 Revisions to the RFP ...... 22 4.14 Cancellations ...... 22 4.15 Incurred Expenses ...... 22 4.16 Protest/Disputes ...... 23 4.17 Offeror Responsibilities ...... 23 4.18 Mandatory Contractual Terms ...... 23 4.19 Proposal Affidavit ...... 23 4.20 Contract Affidavit ...... 23 4.21 Compliance with Laws/Arrearages ...... 24 4.22 Verification of Registration and Tax Payment ...... 24 4.23 False Statements...... 24 4.24 Payments by Electronic Funds Transfer ...... 24 4.25 Prompt Payment Policy...... 25 4.26 Electronic Procurements Authorized ...... 25 4.27 Disadvantaged Business Enterprise (DBE) Goals ...... 26
iv RFP Template Version: 01/20/2017 4.28 Veteran-Owned Small Business Enterprise Goal ...... 26 4.29 Living Wage Requirements ...... 26 4.30 Federal Funding Acknowledgement ...... 27 4.31 Conflict of Interest Affidavit and Disclosure...... 27 4.32 Non-Disclosure Agreement ...... 28 4.33 HIPAA - Business Associate Agreement ...... 28 4.34 Nonvisual Access ...... 28 4.35 Mercury and Products That Contain Mercury ...... 28 4.36 Location of the Performance of Services Disclosure ...... 28 4.37 Department of Human Resources (DHR) Hiring Agreement ...... 28 4.38 Small Business Reserve (SBR) Procurement ...... 28 SECTION 5 – PROPOSAL FORMAT ...... 29 5.1 Three Part Submission ...... 29 5.2 Proposals ...... 29 5.3 Delivery...... 30 5.4 Volume I – Statement of Qualifications ...... 31 5.5 Volume II – Technical Proposal ...... 35 5.6 Volume III – Financial Proposal ...... 40 SECTION 6 – EVALUATION AND SELECTION PROCESS ...... 43 6.1 Evaluation Committee ...... 43 6.2 Statement of Qualifications and Technical Proposal Evaluation Criteria ...... 43 6.3 Financial Proposal Evaluation Criteria ...... 44 6.4 Reciprocal Preference ...... 44 6.5 Selection Procedures ...... 44 6.6 Documents Required upon Notice of Recommendation for Contract Award ...... 46 RFP ATTACHMENTS ...... 47 ATTACHMENT A – PRE-PROPOSAL CONFERENCE RESPONSE FORM ...... 49 ATTACHMENT B – FINANCIAL PROPOSAL INSTRUCTIONS & FORM ...... 50 ATTACHMENT C – PROPOSAL AFFIDAVIT ...... 53 ATTACHMENT D – DISADVANTAGED BUSINESS ENTERPRISE FORMS ...... 59 ATTACHMENT E – VETERAN-OWNED SMALL BUSINESS ENTERPRISE ...... 84 ATTACHMENT F – LIVING WAGE REQUIREMENTS FOR SERVICE CONTRACTS .. 85 ATTACHMENT G – FEDERAL FUNDS ATTACHMENT ...... 89 ATTACHMENT H – CONFLICT OF INTEREST AFFIDAVIT AND DISCLOSURE ...... 90 ATTACHMENT I – NON-DISCLOSURE AGREEMENT ...... 91 ATTACHMENT J – HIPAA BUSINESS ASSOCIATE AGREEMENT ...... 92 ATTACHMENT K – MERCURY AFFIDAVIT ...... 93 ATTACHMENT L – LOCATION OF PERFORMANCE OF SERVICES DISCLOSURE ... 94 ATTACHMENT M – CONTRACT (FOR REFERENCE ONLY) ...... 95 ATTACHMENT N – CONTRACT AFFIDAVIT ...... 123 ATTACHMENT O – DHR HIRING AGREEMENT ...... 127 ATTACHMENT P – PERPETUAL EASEMENT TEMPLATE (REFERENCE ONLY) .... 128 ATTACHMENT Q – SITE ACCESS LANDOWNER AUTHORIZATION FORM ...... 134 ATTACHMENT R – CURRENT MDOT SHA STREAM RESTORATION PROJECTS ... 135 ATTACHMENT S – NEPA PROGRAMMATIC CATEGORICAL EXCLUSION ...... 136 APPENDIX 1 ...... 145
v RFP Template Version: 01/20/2017 Abbreviations and Definitions ...... 145
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vi RFP Template Version: 01/20/2017 SECTION 1 – MINIMUM QUALIFICATIONS
1.0 Offeror Minimum Qualifications
The Offeror must provide proof with its Proposal that the following Minimum Qualifications have been met:
1.1.1 The Offeror shall demonstrate that they possess the financial, technical and administrative qualifications necessary to complete any projects offered to the Administration as part of this RFP.
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7 RFP Template Version: 01/20/2017 SECTION 2 – CONTRACTOR REQUIREMENTS: SCOPE OF WORK
2.1 Summary Statement
2.1.1 The State Highway Administration (the Administration) is issuing this Request for Proposals (RFP) to provide stream restoration credits applicable to Impervious Restoration as defined in the “Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated (MDE 2014) and as defined in the “Recommendations of the Expert Panel to Define Removal Rates for Individual Stream Restoration Projects” (Schueler and Stack, 2014). The contractor will accomplish the credits through stream restoration services provided on private land. Contractors will be responsible for site selection, land acquisition, survey, design, permitting, construction, monitoring and adaptive management, as well as any other services required to deliver completed credits to the Administration to support their Chesapeake Bay restoration goals as described below. The projects may be either new construction or previously constructed projects in accordance with the detailed instructions provided in this RFP.
2.1.2 It is the Administration’s intention to obtain services, as specified in this RFP, from a Contract between the selected Offeror and the Administration. Contractors are advised that any project included in their proposal must be deemed substantially complete by the Administration prior to June 30, 2020. For the purposes of this RFP, projects will be considered “substantially complete” when all applicable regulatory requirements, including any construction phase requirements, have been met. As part of this determination, Offerors must provide copies of close out paperwork from any required NPDES General or Individual Permit for Stormwater Associated with Construction Activity. Any permittee-responsible post-construction monitoring may extend beyond the aforementioned date of substantial completion.
2.1.3 The Administration intends to make multiple awards up to approximately 100,000 linear feet (LF) of stream restoration credit within the Administration’s Municipal Separate Storm Sewer System (MS4) area, currently defined as Anne Arundel, Baltimore, Carroll, Cecil, Charles, Frederick, Harford, Howard, Montgomery, Prince George’s & Washington Counties. See RFP Section 4.9 for additional information.
2.1.4 An Offeror, either directly or through its subcontractor(s), must be able to provide all services and meet all of the requirements requested in this solicitation and the successful Offeror (the Contractor) shall remain responsible for Contract performance regardless of subcontractor participation in the work.
2.1.5 An individual or entity that has received monetary compensation as the lead or prime design consultant under a contract with the Administration to develop this Request for Proposal and/or has been retained to perform construction phase services on behalf of the state, or a person or entity that employs such an individual or entity, or regardless of design phase responsibilities has received in excess of $500,000.00 for services performed, may not submit a technical proposal or a price proposal for this procurement and is not a responsible bidder under COMAR 21.06.01.01. The technical proposal or price proposal from such an individual or entity will be rejected pursuant to COMAR 21.06.01.01 and COMAR 21.06.02.03.
The following is a list of consultants and/or subconsultants that have received monetary compensation under a contract with the Administration as the prime consultant to develop this RFP, and/or have been retained by the Administration to perform construction phase services on the behalf of the state for this procurement, or regardless of design phase responsibilities have received payment in excess of $500,000.00. SHA makes no representations regarding the completeness of the list:
a. KCI Technologies, Inc. 8 RFP Template Version: 01/20/2017 2.2 Background and Purpose
On October 9, 2015, the Administration received a final permit determination from Maryland Department of the Environment (MDE) covering stormwater discharges from their MS4. This permit (11-DP-3313), issued by MDE under authority granted within the National Pollutant Discharge Elimination System (NPDES) Program, requires that the Administration commence and complete the implementation of restoration efforts for 20% of the Administration’s impervious surface area, a reduction equivalent to approximately 4,719 acres.
2.3 Scope of Work - Requirements
The Contractor shall provide stream restoration credits applicable to Impervious Restoration as defined in the “Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated (MDE 2014) and as defined in the “Recommendations of the Expert Panel to Define Removal Rates for Individual Stream Restoration Projects” (Schueler and Stack, 2013). The contractor will accomplish the credits through the delivery of turnkey stream restoration projects on private land. The projects may be either new construction or previously constructed projects in accordance with the detailed instructions provided in this RFP.
2.3.1 General Requirements
2.3.1.1 The Administration will accept projects that are being planned, designed, constructed or have been completed. The Administration is not requiring projects submitted as part of this RFP to be developed in accordance with the latest version of the Standard Specifications for Construction Materials. All applicable federal, state and local permits must be secured for projects offered under this RFP.
2.3.1.2 Contractors must obtain permanent, perpetual easements over any project(s) proposed under this RFP in order to assign all natural resource function, values and credit to the Administration. Further, any easement must be sufficiently flexible to provide project site access and control, to allow the Administration to perform future inspections and maintenance responsibilities once the warranty period and any mandated post-construction monitoring period has expired. The final format and content of any executed easement for these projects between the Contractor and landowners must be approved by the Administration prior to execution. The Administration has provided a template for the required perpetual easement and proposed conditions. This is attached as Attachment P.
2.3.1.3 The Administration intends to enter into multiple contracts, as defined below, with Contractors in order to achieve the desired restoration credit requested in this RFP. The Administration has developed this RFP to allow for the concise review of multiple projects from a single offeror as well as single projects from multiple offerors. For example, if a contractor proposes two “single and complete projects” and the Administration accepts both projects the Offeror will enter into two stand-alone contracts with the Administration.
2.3.1.4 There is no fixed number of contracts or total contract value defined for this RFP. SHA reserves the right to enter into contracts with any Offeror deemed qualified and whose proposal offers a best value to the Administration.
2.3.1.5 The total individual project cost must be calculated by the total individual project linear feet, measured along the thalweg of the existing channel that the proposed restoration addresses. This cost per linear foot will form the basis of the individual Volume III – Financial Proposal submitted for each site.
9 RFP Template Version: 01/20/2017 2.3.1.6 The Administration is currently evaluating several potential stream restoration sites as part of ongoing Chesapeake Bay restoration obligations. A list of projects is included as Attachment R to this RFP. Projects currently under any stage of evaluation by the Administration are excluded from consideration as part of any Offeror’s response.
2.3.1.7 Payment by the Administration will be based on the number of credits the Offeror is able to provide at the credit price first established by the Financial Proposal, pursuant to the proposal review process and credits identified in the Technical Proposal. Credits will be based on a project’s length of restored stream, measured in linear feet (LF). Additional information on determining project length is included in Section 5.6, Volume III – Financial Proposal.
2.3.1.8 The Administration may make adjustments to the milestone payments so that the final total payment is aligned with the final number of linear feet of restored stream multiplied by the proposed credit price, as determined by the Administration and delivered by the Offeror.
2.3.1.9 Payment adjustments may be made after the initial contract is executed based on the number of water quality restoration credits the project is anticipated to provide as documented after contract execution, including but not limited to: completion of the preliminary project tasks and the restoration plan but before construction (through Task 3), site restoration construction through substantial completion and final easement transfer (Task 4), completion of the as-built survey and baseline monitoring report (Task 5) and through the post construction monitoring period, and/or after the final regulatory closeout if the project does not meet the full restoration credit proposed in the initial RFP. These are referred to as Downward Payment Adjustments in this RFP.
2.3.1.10 The Administration will accept task milestone payment requests up to 65% of the total project cost prior to the final acceptance of the site as described in Section 3.4 below. The remaining 35% of the total project cost will be distributed as task milestone payments reserved for post-construction milestones. Regardless of the project milestone, the Offeror is only eligible for payment after the Administration has accepted the documentation, as described below.
2.3.1.11 Any property acquisition must be completed in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (“Uniform Act”).. Additional information is available within the Code of Federal Regulations at the following location:
https://www.ecfr.gov/cgi-bin/text- idx?c=ecfr&sid=3bdda26e1102fe42dd21611091c4a569&rgn=div5&view=text&node=49 :1.0.1.1.18&idno=49
2.3.1.12 The Administration may require additional data on project sites in order to complete state and federally mandated reporting for NPDES MS4 permit compliance. It is assumed that any Offeror who enters in to a contact with the Administration as a result of this RFP will work in good faith to expeditiously collect and provide information requested by the Administration within reason.
2.3.2 Requirements for Completed Projects
2.3.2.1 Completed projects, for the purpose of this contract, are defined as projects that have experienced final grading and structure placement and have been permanently stabilized with landscaping after October 21, 2010.
10 RFP Template Version: 01/20/2017 2.3.2.2 Completed projects must not have had any type of mitigation or water quality credits assigned previously to another entity for any other purposes. Offerors may not submit projects under this RFP that were implemented and accepted under any other regulatory program or development- driven mitigation purpose including but not limited to:
. NPDES MS4 Impervious Area Credit for any other Jurisdiction . Stormwater Management Credit (Quality/Quantity) . Wetland and/or Stream Compensatory Mitigation Credit . Forest Conservation Act Mitigation (Afforestation/Reforestation Credits) . Chesapeake Bay Critical Area Buffer Credit . Other programs and/or requirements not specifically defined here.
2.3.2.3 For completed projects, the Offeror must clearly demonstrate that the completed project was implemented in accordance with all applicable local, state and Federal regulatory requirements. Additional guidance on submittal requirements is included in Section 5 – Proposal Format.
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SECTION 3 – CONTRACTOR REQUIREMENTS: GENERAL REQUIREMENTS
3.1 Insurance Requirements
3.1.1 The Contractor shall maintain Commercial General Liability Insurance to cover losses resulting from, or arising out of, Contractor action or inaction in the performance of the Contract by the Contractor, its agents, servants, employees, or subcontractors, with a minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate.
3.1.2 The Contractor shall maintain Errors and Omissions/Professional Liability insurance with minimum limits of $5,000,000 per claim and annual aggregate.
3.1.3 The Contractor shall maintain Automobile and/or Commercial Truck Insurance as appropriate with Liability, Collision, and PIP limits no less than those required by the State where the vehicle(s) is registered, but in no case less than those required by the State of Maryland.
3.1.4 The Contractor shall maintain Crime Insurance to cover employee theft with a minimum single loss limit of $1,000,000 per loss, and minimum a single loss retention not to exceed $10,000.
3.1.5 Within five (5) Business Days of recommendation for Contract award, and before any work begins, the Contractor shall provide the Procurement Officer with current certificates of insurance, and update such certificates periodically, but no less than annually in multi-year contracts, as directed by the Contract Monitor. Such copy of the Contractor’s current certificate of insurance shall contain at minimum the following:
a. Workers’ Compensation: The Contractor shall maintain such insurance as necessary and/or required under Workers’ Compensation Acts, the Longshore and Harbor Workers’ Compensation Act, and the Federal Employers’ Liability Act. b. Commercial General Liability as required in Section 3.1.1. c. Errors and Omissions/Professional Liability as required in Section 3.1.2. d. Automobile and/or Commercial Truck Insurance as required in Section 3.1.3. e. Crime Insurance as required in Section 3.1.4.
3.1.6 The State of Maryland shall be listed as an additional insured on any Commercial General Liability, Auto Liability, Professional/Cyber Liability, and excess liability or umbrella policies with the exception of Workers’ Compensation Insurance, which is currently handled by the Chesapeake Employer’s Insurance Company (formerly Injured Workers’ Insurance Fund). This means the faces of the certificates of insurance for these policies must state, “The State of Maryland is an Additional Insured.” All insurance policies shall be endorsed to include a clause that requires that the insurance carrier provide the Contract Monitor, by certified mail, not less than 30 days’ advance notice of any non-renewal, cancellation, or expiration. In the event the Contract Monitor receives a notice of non-renewal, the Contractor shall provide the Contract Monitor with an insurance policy from another carrier at least 15 days prior to the expiration of the insurance policy then in effect. All insurance policies shall be with a company licensed by the State to do business and provide such policies.
3.1.7 The Contractor shall require that any subcontractors providing primary services (as opposed to non-critical, ancillary services) under this Contract obtain and maintain the same levels of insurance and shall provide the Contract Monitor with the same documentation as is required of the Contractor.
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3.2 Security Requirements
3.2.1 Employee Identification
3.2.1.1 Each person who is an employee or agent of the Contractor or subcontractor shall display his or her company ID badge at all times while on State premises. Upon request of authorized State personnel, each such employee or agent shall provide additional photo identification.
3.2.1.2 At all times at any facility, the Contractor’s personnel shall cooperate with State site requirements that include but are not limited to being prepared to be escorted at all times, providing information for badge issuance, and wearing the badge in a visible location at all times.
3.3 Problem Escalation Procedure
3.3.1 The Contractor must provide and maintain a Problem Escalation Procedure (PEP) for both routine and emergency situations. The PEP must state how the Contractor will address problem situations as they occur during the performance of the Contract, especially problems that are not resolved to the satisfaction of the State within appropriate timeframes.
The Contractor shall provide contact information to the Contract Monitor, as well as to other State personnel as directed should the Contract Monitor not be available.
3.3.2 The Contractor must provide the PEP no later than ten (10) Business Days after Contract Commencement. The PEP, including any revisions thereto, must also be provided within ten (10) Business Days after the start of each Contract year and within ten (10) Business Days after any change in circumstance which changes the PEP. The PEP shall detail how problems with work under the Contract will be escalated in order to resolve any issues in a timely manner. The PEP shall include:
a. The process for establishing the existence of a problem; b. Names, titles, and contact information for progressively higher levels of personnel in the Contractor’s organization who would become involved in resolving a problem; c. For each individual listed in the Contractor’s PEP, the maximum amount of time a problem will remain unresolved with that individual before the problem escalates to the next contact person listed in the Contractor’s PEP; d. Expedited escalation procedures and any circumstances that would trigger expedited them; e. The method of providing feedback on resolution progress, including the frequency of feedback to be provided to the State; f. Contact information for persons responsible for resolving issues after normal business hours (e.g., evenings, weekends, holidays, etc.) and on an emergency basis; and g. A process for updating and notifying the Contract Monitor of any changes to the PEP.
Nothing in this section shall be construed to limit any rights of the Contract Monitor or the State which may be allowed by the Contract or applicable law.
3.4 Invoicing
3.4.1 General
3.4.1.1 All invoices for services shall be signed by the Contractor and submitted to the Contract Monitor. All invoices shall include the following information:
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(1) Contractor name and address; (2) Remittance address; (3) Federal taxpayer identification number (or if sole proprietorship, the individual’s social security number); (4) Invoice period (i.e. time period during which services covered by invoice were performed); (5) Invoice date; (6) Invoice number; (7) State assigned Contract number; (8) State assigned (Blanket) Purchase Order number(s); (9) Goods or services provided; (10) Living Wage documentation, if applicable, and; (11) Amount due.
Invoices submitted without the required information cannot be processed for payment until the Contractor provides the required information.
3.4.1.2 The Administration reserves the right to reduce or withhold Contract payment in the event the Contractor does not provide the Administration with all required deliverables within the time frame specified in the Contract or otherwise materially breaches the terms and conditions of the Contract until such time as the Contractor brings itself into full compliance with the Contract. Also see the “Living Wage” provision of the Contract, if applicable, which allows for withholding of payment under certain circumstances. Any action on the part of the Administration, or dispute of action by the Contractor, shall be in accordance with the provisions of Md. Code Ann., State Finance and Procurement Article §§ 15-215 through 15-223 and with COMAR 21.10.04.
3.4.2 Payments
3.4.2.1 The Administration will accept task milestone payment requests up to 65% of the total project cost as represented in the table below under Task 1-5. The remaining 35% of the total project cost will be distributed as task milestone payments related to monitoring and regulatory closeout as represented in the table below. Regardless of the project milestone, the Offeror is only eligible for payment after the Administration has accepted the documentation, as described below.
Payment Task Project Milestone (% of Contract) 1 Pre-Application Meeting 5% 2 Final Signed Perpetual Easement 5% 3 Documentation of Regulatory Approvals and Permits 15% 4 Construction Completion and Transfer of Final Perpetual 30% Easement to the Administration 5 As-Built Plan Submittal / Baseline Monitoring Completed 10% Total Payments through Development 65% 6 Year 1 Monitoring Report Submittal 5% 7 Year 2 Monitoring Report Submittal 5% 8 Year 3 Monitoring Report Submittal 5% 9 Year 4 Monitoring Report Submittal 5% 10 Year 5 Monitoring Report and Regulatory Close Out 15% Total Payments for Monitoring 35% TOTAL 100%
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3.4.2.2 Project milestones and associated payment applications by the Offeror related to post-construction monitoring have been developed based on a five year monitoring standard. If MDE and USACE permits received for an Offeror’s projects have different monitoring requirements, the Administration will negotiate a payment schedule with the Offeror. This negotiation of payment terms will only be applied to the 35% of the total project cost held for Monitoring payments, with the final year being 15%.
3.4.2.3 All projects will require documentation of receipt of all applicable permits and approvals prior to any construction related milestone payments (Tasks 4 through 10).
3.4.2.4 Invoice Submission Schedule and Requirements
3.4.2.4.1 The Administration will approve progress payments for the Offeror in accordance with the Proposed Payment Schedule section of this RFP. While the administration will not mandate conformance to current SHA material and construction specifications, it is expected that the Offeror will provide consistent and proactive feedback and project updates throughout the duration of the contract period. The Administration will make the final determination on acceptance of the milestones and approval for payment to the Offeror based on the completion of the work at the following milestones:
Task 1: Pre-Application Meeting: The Administration will attend the pre- application meeting between the Offeror and the regulatory agencies. The Offeror will run the meeting and distribute a milestone report, documenting issues and resolution, within five (5) days of the meeting. The report will outline key points from the meeting, including deviations from schedule and also potential reductions in credit. With these activities completed to the satisfaction of the Administration, the Offeror can submit an invoice for 5% of the total project fee.
Task 2: Final Signed Perpetual Easement: The Offeror should present proof of final real estate closing and the full execution of the perpetual easement to be held in the name of the Offeror until transfer to the Administration. The Administration has provided a template for the required easement and proposed conditions (Attachment P). By submitting a proposal under this RFP, the Offeror acknowledges that these conditions have been included in any contract for land purchase.
As part of this deliverable, the Offeror must present a draft plat for review and approval by the Administration. This plat will be included as an attachment to the final perpetual easement. All surveys shall be performed under the supervision of a Maryland Licensed Professional Land Surveyor, or Property Line Surveyor. As such, they shall also meet the Minimum Standards of Practice for Professional Land Surveyors in Maryland as described in Title 09, Subtitle 13, Chapter 6 (09.13.06) of the Code of Maryland Regulations (COMAR). All new survey markers set to establish property corners or to delineate the final easement areas shall conform to the minimum standards for survey markers set forth in Title 09, Subtitle 13, Chapter 3 (09.13.03) of COMAR.
Easement areas created that intersect, or are adjoining to any existing State Highway Administration right of way or easements must be tied to the existing baseline of right of way for that road and the ties to the baseline shown on an SHA/SRC right of way plat. All surveys and digital files shall be tied to the Maryland State Plane Coordinate System on the North American Datum (NAD) 15 RFP Template Version: 01/20/2017
of 1983, 1991 Adjustment, unless otherwise directed by the SHA Plats and Surveys Division.
Plats shall be prepared as set forth in SHA’s “Specifications for Consulting Engineer’s Volume II, dated April, 1986, Section VII – Part II – Meets and Bounds Right-of-Way Plats” or later versions as applicable, and in accordance with SHA Plats and Surveys text and line weight standards. They shall be made to the scale required for a particular project assignment. The Offeror shall provide the Administration with the electronic copy in Micro Station “.dgn” format, ArcGIS “.mxd” format and a hardcopy on Mylar. The hardcopy shall contain the seal and signature of a registered Property Line Surveyor or Professional Land Surveyor. The Surveyor signing the plat will be responsible for defending the accuracy of the play in a court of law.
With these tasks completed, the Administration will accept an invoice for 5% of the total project fee once this has been provided and reviewed for legal sufficiency by the Administration’s Counsel.
Task 3: Documentation of Regulatory Approvals and Permits: The Offeror must present proof (via final approval letters, permit authorizations, etc.) that all relevant local, state and federal permits have been secured for the project. Early in the project, a complete list of applicable permits and other approvals should be presented to the Administration and this list will be used to determine the completion of this task.
Further, the Offeror will perform investigations and provide documentation to support the Administration’s coordination of any National Environmental Policy Act (NEPA) clearance. It is anticipated that this will include support services sufficient to complete the Administration’s Programmatic Categorical Exclusion (PCE) Form. Additional information on required analysis, including the PCE Form, is included as Attachment S to this RFP.
The Offeror assumes all responsibility for completion of permit applications, permit fees and other regulatory coordination. The Administration will accept an invoice for 15% of the total project fee once the required documentation has been provided.
Task 4: Construction Completion / Final Easement Transfer: While the Administration will not have any construction or environmental compliance responsibilities for this project, the Offeror will need to demonstrate that the project has been completed in accordance with all local, state and federal requirements and permit conditions. The Offeror must provide proof that the project has been deemed complete by any regulatory agency with jurisdiction over the construction activities. At this time, the Administration will accept the transfer of easement from the Offeror and the Offeror can submit an invoice for 30% of the total project fee. The progress payment for this task is contingent on the final site acceptance by the Administration and review for legal sufficiency of the easement document by the Administration’s Counsel.
Task 5: Compliance Certification / As-Built Plan Submittal / Baseline Monitoring Report: The Offeror must submit an as-built plan and baseline monitoring report, subject to review and approval by the regulatory agencies, in order to apply for this
16 RFP Template Version: 01/20/2017 progress payment. Once this has been approved, the Offeror can submit an invoice for 10% of the total project fee.
Tasks 6-10: Post-Construction Monitoring and Closeout: With the completion and formal documentation of each successive monitoring report Year 1 through Year 4, and subsequent approval of these reports by the regulatory agencies and the Administration, the Offeror can submit an invoice for an additional 5% of the total project fee per year, for a total payment of 20% by the end of Year 4. With the completion of the year 5 report and formal notification of regulatory closeout, the Offeror can invoice for the remaining 15% of the project fee. If the regulatory agencies require a longer duration for monitoring of the proposed project, the distribution of the first 20% will be spread evenly across all years except the final year. The final year will remain 15%. During the agency mandated post- construction monitoring period, the Offeror is responsible for any corrective action or other adaptive management related to site compliance.
3.4.3 Payments for Completed Projects
3.4.3.1 Completed or previously developed projects will be paid in accordance with the schedule included in Section 3.4.2.1. For example, if a project has been developed in accordance with the Administration’s requirements described herein and has attained full regulatory closeout (through post-construction monitoring), the Administration will consider payment in full at the time of the final easement transfer. It is the Offeror’s responsibility to include any payment considerations associated with previously developed projects in their Volume III – Financial Proposal. This information will be considered as supplemental to the cost per linear foot that is the basis for project comparison. No payments will occur prior to an acceptable easement held by the Contractor, or others, has been transferred to the Administration.
3.4.4 Downward Payment Adjustments
3.4.4.1 The process for Downward Payment Adjustments based on credit delivery are defined in Sections 2.3.1.7, 2.3.1.8 and 2.3.1.9.
3.5 SOC 2 Type 2 Audit Report
A SOC 2 Type 2 Report is not a Contractor requirement for this Contract.
3.6 DBE Reports
If this solicitation includes a DBE Goal (see Section 4.27), the Contractor and its DBE subcontractors shall provide DBE Monthly Reports as required by the Administration. These forms will be provided to successful Offerors.
3.7 VSBE Reports
If this solicitation includes a VSBE Goal (see Section 4.28), the Contractor and its VSBE subcontractors shall provide VSBE Monthly Reports as required by the Administration. These forms will be provided to successful Offerors.
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3.8 Liquidated Damages
Liquidated Damages are not applicable to the design and construction components of this solicitation. Please refer to RFP Sections 2.3.1.7, 2.3.1.8 and 2.3.1.9 for information on Downward Payment Adjustments.
Liquidated Damages are applicable as referenced in Section 36 – Liquidated Damages of the Sample Contract (Attachment M), specifically related to the Contractor’s good faith efforts to comply with the Disadvantaged Business Enterprise (DBE) Program and Contract provisions.
3.9 End of Contract Transition
If applicable, the Contractor shall cooperate in the orderly transition of services from the Contract awarded under this solicitation to any subsequent contract for similar services. The transition period shall begin ninety (90) days before the Contract end date, or the end date of any final exercised option or contract extension. The Contractor shall work toward a prompt and timely transition, proceeding in accordance with the directions of the Contract Monitor. The Contract Monitor may provide the Contractor with additional instructions to meet specific transition requirements prior to the end of Contract.
3.10 Substitution of Personnel
The Offeror must at all times maintain appropriate staffing and resources to complete the proposed work. The Administration must be immediately notified of any staffing substitutions or other circumstances that would impact the availability of key personnel or the completion of the key functions requested in this RFP.
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SECTION 4 – PROCUREMENT INSTRUCTIONS
4.1 Rules of Contact
The Procurement Officer’s Designee in this RFP, or a representative hereafter designated in writing by the Procurement Officer, is the Administration’s single contact and source of information for this procurement.
The following rules of contact shall apply during the Contract procurement process, which begins upon the submittal of the RFP and will be completed with the execution of the Contract. These rules are designed to promote a fair, unbiased, and legally defensible procurement process. Contact includes face-to-face, telephone, facsimile, electronic-mail (e-mail), or formal written communication. The specific rules of contact are as follows:
Section 11-205 of the State Finance and Procurement Article, Annotated Code of Maryland, prohibits and penalizes collusion in the State procurement process.
4.1.1 After submission of Proposals, neither an Offeror nor any of its team members may communicate with another Offeror or members of another Offeror’s team with regard to the Project or the Proposals. However, an Offeror may communicate with a Subcontractor that is on both its team and another Offeror’s team, provided that each Offeror has obtained a written certification from the Subcontractor that it will not act as a conduit of information between the teams.
4.1.2 Unless otherwise specifically authorized by the Procurement Officer, an Offeror may contact the Administration only through the Procurement Officer and only in writing by e-mail and not orally. The Offeror’s contacts with the Administration shall be only through a single representative authorized to bind the Offeror.
4.1.3 The Procurement Officer normally will contact an Offeror in writing through the Offeror’s designated representative.
4.1.4 Neither an Offeror nor its agents may contact Administration employees, including Administration heads, members of the evaluation committee(s) and any other person who will evaluate any section of this Proposal, regarding the Project, except through the process identified above.
4.1.5 Any contact by a Proposer determined to be improper may result in disqualification of the Offeror.
4.1.6 The Administration will not be responsible for or bound by: (1) any oral communication, or (2) any other information or contact that occurs outside the official communication process specified herein, unless confirmed in writing by the Procurement Officer.
4.2 Pre-Proposal Conference
A Pre-Proposal Conference (the Conference) will be held at the date, time, and location indicated on the RFP Key Information Summary Sheet (near the beginning of the solicitation, after the Title Page and Notice to Vendors). All prospective Offerors are encouraged to attend in order to facilitate better preparation of their Proposals.
The Conference will be summarized. As promptly as is feasible after the Conference, a summary of the Conference and all questions and answers known at that time will be distributed to all prospective Offerors known to have received a copy of this RFP. This summary, as well as the questions and answers, will also be posted on eMaryland Marketplace. See RFP Section 4.3.
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In order to assure adequate seating and other accommodations at the Conference, please e-mail or fax the Pre- Proposal Conference Response Form (Attachment A) to the attention of the Procurement Officer at least five (5) Business Days prior to the Pre-Proposal Conference date. In addition, if there is a need for sign language interpretation and/or other special accommodations due to a disability, please notify the Procurement Officer at least five (5) Business Days prior to the Pre-Proposal Conference date. The Administration will make a reasonable effort to provide such special accommodation.
4.3 eMaryland Marketplace
Each Offeror is requested to indicate its eMaryland Marketplace (eMM) vendor number in the Transmittal Letter (cover letter) submitted at the time of its Proposal submission to this RFP.
eMM is an electronic commerce system administered by the Maryland Department of General Services. In addition to using the Administration’s website (http://www.roads.maryland.gov) and possibly other means for transmitting the RFP and associated materials, solicitation and summary of the Pre-Proposal Conference, Offeror questions, and Procurement Officer’s responses, addenda, and other solicitation-related information will be provided via eMM.
In order to receive a contract award, a vendor must be registered on eMM. Registration is free. Go to https://emaryland.buyspeed.com/bso/login.jsp, click on “Register” to begin the process, and then follow the prompts.
4.4 Questions
Written questions from prospective Offerors will be accepted by the Procurement Officer prior to the Conference. If possible and appropriate, such questions will be answered at the Conference. (No substantive question will be answered prior to the Conference.) Questions to the Procurement Officer shall be submitted via e-mail to the Procurement Officer’s e-mail address indicated on the RFP Key Information Summary Sheet (near the beginning of the solicitation, after the Title Page and Notice to Vendors). Please identify in the subject line the Solicitation Number and Title. Questions, both oral and written, will also be accepted from prospective Offerors attending the Conference. If possible and appropriate, these questions will be answered at the Conference.
Questions will also be accepted subsequent to the Conference and should be submitted to the Procurement Officer via email in a timely manner prior to the Proposal due date. Questions are requested to be submitted at least ten (10) working days prior to the Proposal due date. The Procurement Officer, based on the availability of time to research and communicate an answer, shall decide whether an answer can be given before the Proposal due date. Time permitting, answers to all substantive questions that have not previously been answered, and are not clearly specific only to the requestor, will be distributed to all vendors that are known to have received a copy of the RFP in sufficient time for the answer to be taken into consideration in the Proposal.
4.5 Procurement Method
This Contract will be awarded in accordance with the Competitive Sealed Proposals method under COMAR 21.05.03.
4.6 Proposal Due (Closing) Date and Time
Proposals, in the number and form set forth in RFP Section 5.2 “Proposals” must be received by the Procurement Officer at the Procurement Officer’s address no later than the Proposal Due date and time indicated on the RFP Key
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Information Summary Sheet (near the beginning of the solicitation, after the Title Page and Notice to Vendors) in order to be considered.
Requests for extension of this time or date will not be granted. Offerors mailing Proposals should allow sufficient mail delivery time to ensure timely receipt by the Procurement Officer. Except as provided in COMAR 21.05.03.02.F and 21.05.02.10, Proposals received after the due date and time listed in the RFP Key Information Summary Sheet will not be considered.
Proposals may be modified or withdrawn by written notice received by the Procurement Officer before the time and date set forth in the RFP Key Information Summary Sheet for receipt of Proposals.
Proposals may not be submitted by e-mail or facsimile. Proposals will not be opened publicly.
Vendors not responding to this solicitation are requested to submit the “Notice to Vendors” form, which includes company information and the reason for not responding (e.g., too busy, cannot meet mandatory requirements, etc.). This form is located in the RFP immediately following the Title Page (page ii).
4.7 Multiple or Alternate Proposals
The Administration’s process for accepting multiple proposals under this RFP is defined in Section 2.3.1- General Requirements and also in Section 5 – Proposal Format.
4.8 Economy of Preparation
Proposals should be prepared simply and economically and provide a straightforward and concise description of the Offeror’s Proposal to meet the requirements of this RFP.
4.9 Public Information Act Notice
An Offeror should give specific attention to the clear identification of those portions of its Proposal that it considers confidential and/or proprietary commercial information or trade secrets, and provide justification why such materials, upon request, should not be disclosed by the State under the Public Information Act, Md. Code Ann., General Provisions Article, Title 4. (Also, see RFP Section 5.4.2.2 “Claim of Confidentiality”). This confidential and/or proprietary information should be identified by page and section number and placed after the Title Page and before the Table of Contents in the Technical Proposal and if applicable, separately in the Financial Proposal.
Offerors are advised that, upon request for this information from a third party, the Procurement Officer is required to make an independent determination whether the information must be disclosed.
4.10 Award Basis
The Contract shall be awarded to the responsible Offeror(s) submitting the Proposal that has been determined to be the most advantageous to the State, considering price and evaluation factors set forth in this RFP (see COMAR 21.05.03.03F), for providing the goods and services as specified in this RFP. See RFP Section 6 for further award information.
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4.11 Oral Presentation
Offerors may be required to make oral presentations to State representatives. Offerors must confirm in writing any substantive oral clarification of or change in their Proposals made in the course of discussions. Any such written clarifications or changes then become part of the Offeror’s Proposal and are binding if the Contract is awarded. The Procurement Officer will notify Offerors of the time and place of oral presentations.
4.12 Duration of Proposal
Proposals submitted in response to this RFP are irrevocable for 120 days following the closing date for submission of Proposals or best and final offers (see Section 6.5.2.5) if requested. This period may be extended at the Procurement Officer’s request only with the Offeror’s written agreement.
4.13 Revisions to the RFP
If it becomes necessary to revise this RFP before the due date for Proposals, any revisions will be posted exclusively on EMM. It remains the responsibility of all prospective Offerors to check eMM for any addenda issued prior to the submission of Proposals. Addenda made after the due date for Proposals will be sent only to those Offerors that submitted timely Proposals and that remain under award consideration as of the issuance date of the addenda.
Acknowledgment of the receipt of all addenda to this RFP issued before the Proposal due date shall be included in the Transmittal Letter accompanying the Offeror’s Technical Proposal. Acknowledgement of the receipt of addenda to the RFP issued after the Proposal due date shall be in the manner specified in the addendum notice. Failure to acknowledge receipt of an addendum does not relieve the Offeror from complying with the terms, additions, deletions, or corrections set forth in the addendum.
4.14 Cancellations
The State reserves the right to cancel this RFP, accept or reject any and all Proposals, in whole or in part, received in response to this RFP, waive or permit the cure of minor irregularities, and conduct discussions with all qualified or potentially qualified Offerors in any manner necessary to serve the best interests of the State. The State also reserves the right, in its sole discretion, to award a Contract based upon the written Proposals received without discussions or negotiations.
In the event, a government entity proposes and receives the recommendation for award for the Contract resulting from this RFP, the procurement may be cancelled and the award processed as a Memorandum of Understanding in accordance with COMAR 21.01.03.01.A(4).
4.15 Incurred Expenses
The State will not be responsible for any costs incurred by any Offeror in preparing and submitting a Proposal, in making an oral presentation, providing a demonstration, or performing any other activities related to submitting a Proposal in response to this solicitation.
22 RFP Template Version: 01/20/2017 4.16 Protest/Disputes
Any protest or dispute related, respectively, to this solicitation or the resulting Contract shall be subject to the provisions of COMAR 21.10 (Administrative and Civil Remedies).
4.17 Offeror Responsibilities
The selected Offeror shall be responsible for all products and services required by this RFP. All subcontractors must be identified and a complete description of their role relative to the Proposal must be included in the Offeror’s Proposal. If applicable, subcontractors utilized in meeting the established DBE or VSBE participation goal(s) for this solicitation shall be identified as provided in the appropriate Attachment(s) to this RFP (see Section 4.27 “Disadvantaged Business Enterprise Goals” and Section 4.28 “Veteran-Owned Small Business Enterprise Goal”).
If an Offeror that seeks to perform or provide the services required by this RFP is the subsidiary of another entity, all information submitted by the Offeror, including but not limited to references, financial reports, or experience and documentation (e.g. insurance policies, bonds, letters of credit) used to meet minimum qualifications, if any, shall pertain exclusively to the Offeror, unless the parent organization will guarantee the performance of the subsidiary. If applicable, the Offeror shall submit with its Proposal an explicit statement, signed by an authorized representative of the parent organization, stating that the parent organization will guarantee the performance of the subsidiary.
A parental guarantee of the performance of the Offeror under this Section will not automatically result in crediting the Offeror with the experience and/or qualifications of the parent under any evaluation criteria pertaining to the Offeror’s experience and qualifications. Instead, the Offeror will be evaluated on the extent to which the State determines that the experience and qualification of the parent are transferred to and shared with the Offeror, the parent is directly involved in the performance of the Contract, and the value of the parent’s participation as determined by the State.
4.18 Mandatory Contractual Terms
By submitting a Proposal in response to this RFP, an Offeror, if selected for award, shall be deemed to have accepted the terms and conditions of this RFP and the Contract, attached herein as Attachment M. Any exceptions to this RFP or the Contract shall be clearly identified in the Executive Summary of the Technical Proposal. A Proposal that takes exception to these terms may be rejected (see RFP Section 5.4.2.4).
4.19 Proposal Affidavit
A Proposal submitted by an Offeror must be accompanied by a completed Proposal Affidavit. A copy of this Affidavit is included as Attachment C of this RFP.
4.20 Contract Affidavit
All Offerors are advised that if a Contract is awarded as a result of this solicitation, the successful Offeror will be required to complete a Contract Affidavit, a copy which is included as Attachment N of this RFP. This Affidavit must be provided within five (5) Business Days of notification of proposed Contract award. The Contractor must also submit a Contract Affidavit with any Contract renewal, including the exercise of any options or modifications that may extend the Contract term.
23 RFP Template Version: 01/20/2017 For purposes of completing Section “B” of this Affidavit (Certification of Registration or Qualification with the State Department of Assessments and Taxation), a business entity that is organized outside of the State of Maryland is considered a “foreign” business.
4.21 Compliance with Laws/Arrearages
By submitting a Proposal in response to this RFP, the Offeror, if selected for award, agrees that it will comply with all federal, State, and local laws applicable to its activities and obligations under the Contract.
By submitting a response to this solicitation, each Offeror represents that it is not in arrears in the payment of any obligations due and owing the State, including the payment of taxes and employee benefits, and shall not become so in arrears during the term of the Contract if selected for Contract award.
4.22 Verification of Registration and Tax Payment
Before a business entity can do business in the State, it must be registered with the State Department of Assessments and Taxation (SDAT). SDAT is located at State Office Building, Room 803, 301 West Preston Street, Baltimore, Maryland 21201. For registration information, visit:
https://www.egov.maryland.gov/businessexpress
It is strongly recommended that any potential Offeror complete registration prior to the due date for receipt of Proposals. An Offeror’s failure to complete registration with SDAT may disqualify an otherwise successful Offeror from final consideration and recommendation for Contract award.
4.23 False Statements
Offerors are advised that Md. Code Ann., State Finance and Procurement Article, § 11-205.1 provides as follows:
(a) In connection with a procurement contract a person may not willfully:
(1) Falsify, conceal, or suppress a material fact by any scheme or device; (2) Make a false or fraudulent statement or representation of a material fact; or (3) Use a false writing or document that contains a false or fraudulent statement or entry of a material fact.
(b) A person may not aid or conspire with another person to commit an act under subsection (a) of this section.
(c) A person who violates any provision of this section is guilty of a felony and on conviction is subject to a fine not exceeding $20,000 or imprisonment not exceeding 5 years or both.
4.24 Payments by Electronic Funds Transfer
By submitting a response to this solicitation, the Offeror agrees to accept payments by electronic funds transfer (EFT) unless the State Comptroller’s Office grants an exemption. Payment by EFT is mandatory for contracts exceeding $200,000. The selected Offeror shall register using the COT/GAD X-10 Vendor Electronic Funds (EFT) Registration Request Form. Any request for exemption must be submitted to the State Comptroller’s Office for approval at the address specified on the COT/GAD X-10 form, must include the business identification information as stated on the form, and must include the reason for the exemption. 24 RFP Template Version: 01/20/2017
The COT/GAD X-10 form may be downloaded from the Comptroller’s website at:
http://comptroller.marylandtaxes.com/Government_Services/State_Accounting_Information/Static_Files/ APM/X-1020130407.pdf
4.25 Prompt Payment Policy
This procurement and the Contract(s) to be awarded pursuant to this solicitation are subject to the Prompt Payment Policy Directive issued by the Governor’s Office of Minority Affairs (GOMA) and dated August 1, 2008. Promulgated pursuant to Md. Code Ann., State Finance and Procurement Article, §§ 11-201, 13-205(a), and Title 14, Subtitle 3, and COMAR 21.01.01.03 and 21.11.03.01, the Directive seeks to ensure the prompt payment of all subcontractors on non-construction procurement contracts. The Contractor shall comply with the prompt payment requirements outlined in the Contract “Prompt Payment” clause (see Attachment M). Additional information is available on GOMA’s website at:
http://goma.maryland.gov/Documents/Legislation/PromptPaymentFAQs.pdf
4.26 Electronic Procurements Authorized
4.26.1 Under COMAR 21.03.05, unless otherwise prohibited by law, the Administration may conduct procurement transactions by electronic means, including the solicitation, proposing, award, execution, and administration of a contract, as provided in Md. Code Ann., Maryland Uniform Electronic Transactions Act, Commercial Law Article, Title 21.
4.26.2 Participation in the solicitation process on a procurement contract for which electronic means has been authorized shall constitute consent by the Offeror to conduct by electronic means all elements of the procurement of that Contract which are specifically authorized under the solicitation or Contract.
4.26.3 “Electronic means” refers to exchanges or communications using electronic, digital, magnetic, wireless, optical, electromagnetic, or other means of electronically conducting transactions. Electronic means includes facsimile, e-mail, internet-based communications, electronic funds transfer, specific electronic bidding platforms (e.g., https://emaryland.buyspeed.com/bso/), and electronic data interchange.
4.26.4 In addition to specific electronic transactions specifically authorized in other sections of this solicitation (e.g., RFP § 4.23 “Payments by Electronic Funds Transfer”) and subject to the exclusions noted in section 4.25.5 of this subsection, the following transactions are authorized to be conducted by electronic means on the terms described:
4.26.4.1 The Procurement Officer may conduct the procurement using eMM, e-mail, or facsimile to issue:
(a) The solicitation (e.g., the RFP); (b) Any amendments; (c) Pre-Proposal conference documents; (d) Questions and responses; (e) Communications regarding the solicitation or Proposal to any Offeror or potential Offeror; (f) Notices of award selection or non-selection; and (g) The Procurement Officer’s decision on any Proposal protest or Contract claim.
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4.26.4.2 An Offeror or potential Offeror may use e-mail or facsimile to:
(a) Ask questions regarding the solicitation; (b) Reply to any material received from the Procurement Officer by electronic means that includes a Procurement Officer’s request or direction to reply by e-mail or facsimile, but only on the terms specifically approved and directed by the Procurement Officer; and (c) Submit a "No Proposal Response" to the solicitation.
4.26.4.3 The Procurement Officer, the Contract Monitor, and the Contractor may conduct day-to-day Contract administration, except as outlined in Section E of this subsection utilizing e-mail, facsimile, or other electronic means if authorized by the Procurement Officer or Contract Monitor.
4.26.5 The following transactions related to this procurement and any Contract awarded pursuant to it are not authorized to be conducted by electronic means:
(a) Submission of initial Proposals; (b) Filing of Proposal Protests; (c) Filing of Contract Claims; (d) Submission of documents determined by the Administration to require original signatures (e.g., Contract execution, Contract modifications, etc.); or (e) Any transaction, submission, or communication where the Procurement Officer has specifically directed that a response from the Contractor or Offeror be provided in writing or hard copy.
4.26.6 Any facsimile or e-mail transmission is only authorized to the facsimile numbers or e-mail addresses for the identified person as provided in the solicitation, Contract, or direction from the Procurement Officer or Contract Monitor.
4.27 Disadvantaged Business Enterprise (DBE) Goals
4.27.1 Establishment of Goal and Subgoals. An overall DBE subcontractor participation goal of 5% of the total contract dollar value, including all option years, if any, has been established for this procurement.
There are no DBE subcontractor participation subgoals for this procurement.
Please refer to Attachment D for required forms to be submitted with the Offeror’s response.
4.28 Veteran-Owned Small Business Enterprise Goal
This solicitation does not include a VSBE Goal.
4.29 Living Wage Requirements
4.29.1 Maryland law requires that Contractors meeting certain conditions pay a living wage to covered employees on State service contracts over $100,000. Maryland Code, State Finance and Procurement, § 18-101 et al. The Commissioner of Labor and Industry at the Department of Labor, Licensing and Regulation requires that a Contractor subject to the Living Wage law submit payroll records for covered employees and a signed statement indicating that it paid a living wage to covered employees; or receive a waiver from Living Wage reporting requirements. See COMAR 21.11.10.05.
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4.29.2 If subject to the Living Wage law, Contractor agrees that it will abide by all Living Wage law requirements, including but not limited to reporting requirements in COMAR 21.11.10.05. Contractor understands that failure of Contractor to provide such documents is a material breach of the terms and conditions and may result in Contract termination, disqualification by the State from participating in State contracts, and other sanctions. See the “Living Wage” clause in the Contract (Attachment M).
4.29.3 Additional information regarding the State’s living wage requirement is contained in Attachment F. Offerors must complete and submit the Maryland Living Wage Requirements Affidavit of Agreement (Attachment F-1) with their Proposals. If an Offeror fails to complete and submit the required documentation, the State may determine the Offeror to be not responsible under State law.
4.29.4 Contractors and subcontractors subject to the Living Wage Law shall pay each covered employee at least the minimum amount set by law for the applicable Tier area. The specific living wage rate is determined by whether a majority of services take place in a Tier 1 Area or Tier 2 Area of the State. The Tier 1 Area includes Montgomery, Prince George’s, Howard, Anne Arundel and Baltimore Counties, and Baltimore City. The Tier 2 Area includes any county in the State not included in the Tier 1 Area. In the event that the employees who perform the services are not located in the State, the head of the unit responsible for a State Contract pursuant to §18-102(d) of the State Finance and Procurement Article shall assign the tier based upon where the recipients of the services are located.
4.29.5 The Contract resulting from this solicitation will be determined to be a Tier 1 Contract or a Tier 2 Contract depending on the location(s) from which the Contractor provides 50% or more of the services. The Offeror must identify in its Proposal the location(s) from which services will be provided, including the location(s) from which 50% or more of the Contract services will be provided.
(1) If the Contractor provides 50% or more of the services from a location(s) in a Tier 1 jurisdiction(s) the Contract will be a Tier 1 Contract. (2) If the Contractor provides 50% or more of the services from a location(s) in a Tier 2 jurisdiction(s), the Contract will be a Tier 2 Contract. (3) If the Contractor provides more than 50% of the services from an out-of-State location, the State agency determines the wage tier based on where the majority of the service recipients are located. In this circumstance, this Contract will be determined to be a Tier (enter “1” or “2,” depending on where the majority of the service recipients are located) Contract.
4.29.6 Information pertaining to reporting obligations may be found by going to the Maryland Department of Labor, Licensing and Regulation (DLLR) website:
http://www.dllr.state.md.us/labor/prev/livingwage.shtml
NOTE: Whereas the Living Wage may change annually, the Contract price may not be changed because of a Living Wage change.
4.30 Federal Funding Acknowledgement This solicitation does not contain federal funds as contemplated in the catalog of Federal Domestic Assistance.
4.31 Conflict of Interest Affidavit and Disclosure
Offerors shall complete and sign the Conflict of Interest Affidavit and Disclosure (Attachment H) and submit it with their Proposals. All Offerors are advised that if a Contract is awarded as a result of this solicitation, the Contractor’s personnel who perform or control work under this Contract and each of the participating subcontractor personnel who perform or control work under this Contract shall be required to complete agreements substantially 27 RFP Template Version: 01/20/2017
similar to Attachment H, Conflict of Interest Affidavit and Disclosure. For policies and procedures applying specifically to Conflict of Interests, the Contract is governed by COMAR 21.05.08.08.
4.32 Non-Disclosure Agreement
This solicitation does not require a Non-Disclosure Agreement.
4.33 HIPAA - Business Associate Agreement
A HIPAA Business Associate Agreement is not required for this procurement.
4.34 Nonvisual Access
This solicitation does not contain Information Technology (IT) provisions requiring Nonvisual Access.
4.35 Mercury and Products That Contain Mercury
This solicitation does not include the procurement of products known to likely include mercury as a component.
4.36 Location of the Performance of Services Disclosure
The Offeror is required to complete the Location of the Performance of Services Disclosure. A copy of this Disclosure is included as Attachment L. The Disclosure must be provided with the Proposal.
4.37 Department of Human Resources (DHR) Hiring Agreement
This solicitation does not require a DHR Hiring Agreement.
4.38 Small Business Reserve (SBR) Procurement
This solicitation is not designated as a Small Business Reserve (SBR) Procurement.
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SECTION 5 – PROPOSAL FORMAT
5.1 Three Part Submission
The Administration seeks to enter into one or more contracts with Offerors for the full delivery of restoration credits as described elsewhere in this RFP. Prior to any award or contract negotiation, the Administration will complete a thorough evaluation of an Offerors qualifications to determine if they possess the technical, financial and administrative ability to complete the proposed work within the schedule provided. Once an Offeror has been deemed qualified, the Administration will review any project-specific technical information and associated price proposals to determine if the projects offer an acceptable value to the Administration in fulfilling its current restoration requirements.
Offerors shall submit Proposals in three distinct volumes, as shown below:
. Volume I – STATEMENT OF QUALIFICATIONS (One Per Offeror) o Each Offeror must submit a comprehensive Statement of Qualifications as described in Section 5.4. o No Technical Proposal (Volume II) information or Financial Proposal (Volume III) information related to projects will be reviewed in this section.
. Volume II – TECHNICAL PROPOSAL (One Per Project) o Offerors must submit a separate and complete Volume II (Technical Proposal) for each project proposed as part of this RFP. o It is the proposer’s responsibility to submit separate packages that can be reviewed independent of one another. All materials pertaining to a project must be contained within a separate Volume II. o No Qualifications (Volume I) or Financial Proposal (Volume III) information is to be presented in this section.
. Volume III – FINANCIAL PROPOSAL (One Per Project) o Offerors may submit multiple projects for consideration, but each project must be presented in a separate and complete Volume III (Financial Proposal) for each project proposed as part of this RFP. o It is the proposer’s responsibility to submit separate price packages that can be reviewed independent of one another. o All technical materials pertaining to a project must be contained within a separate Volume II, as described above. No Qualifications (Volume I) or Technical Proposal (Volume II) information related to projects will be reviewed in this section.
Additional information pertaining to the submittal requirements are described below.
5.2 Proposals
5.2.1 Volume I – Statement of Qualifications, Volume II – Technical Proposal and Volume III – Financial Proposal shall be sealed separately from one another. It is required that the name, email address, and telephone number of a contact person for the Offeror be included on the outside of the packaging for each volume. Each Volume shall contain an unbound original, so identified, and four (4) bound copies. Unless the resulting package will be too unwieldy, the Administration’s preference is for the three (3) sealed Volumes to be submitted together in a single package including a label bearing:
29 RFP Template Version: 01/20/2017 (1) RFP title and number, (2) Name and address of the Offeror, and (3) Closing date and time for receipt of Proposals
to the Procurement Officer (see RFP Key Information Summary Sheet) prior to the date and time for receipt of Proposals (see RFP Section 4.4 “Proposals Due (Closing) Date and Time”).
5.2.2 An electronic version (on Compact Disk/CD, Digital Versatile Disc/DVD, or Universal Serial Bus/USB Flash/Thumb Drive) of Volume I – Statement of Qualifications in Microsoft Word format must be enclosed with the original Volume I – Statement of Qualifications submission.
5.2.3 An electronic version (on CD, DVD, or USB Flash Drive) of Volume II – Technical Proposal in Microsoft Word format must be enclosed with the original Volume I – Technical Proposal. A separate Technical Proposal is required per site.
5.2.4 An electronic version of Volume III - Financial Proposal in Microsoft Word or Microsoft Excel format must be enclosed with the original Volume III - Financial Proposal submission. A separate Financial Proposal is required per site.
5.2.5 Each CD/DVD/USB Flash Drive must be labeled on the outside with the RFP title and number, name of the Offeror, and volume number. Each CD/DVD/USB Flash Drive must be packaged with the original copy of the appropriate Proposal (Statement of Qualifications, Technical or Financial). In the event of any discrepancy between the hard copy and electronic versions of an Offeror’s Proposal, the State shall determine the controlling version in accordance with the State’s interests.
5.2.6 A second electronic version of Volume I, Volume II and Volume III in searchable Adobe .pdf format shall be submitted on CD, DVD, or USB Flash Drive for Public Information Act (PIA) requests. This copy shall be redacted so that confidential and/or proprietary information has been removed (see RFP Section 4.8 “Public Information Act Notice”).
5.2.7 Beginning with Tab B (see RFP Section 5.4.2.3), all pages of all Proposal volumes shall be consecutively- numbered from beginning (Page 1) to end (Page “x”). The Title Page, Table of Contents, and any Claim of Confidentiality (Tabs A and A-1; see RFP Sections 5.4.2.1 and 5.4.2.2), should be numbered using romanettes (ex. i, ii, iii, iv, v, etc.).
5.2.8 Proposals and any modifications to Proposals will be shown only to State employees, members of the Evaluation Committee, and other persons deemed by the Administration to have a legitimate interest in them.
5.3 Delivery
Offerors may either mail or hand-deliver Proposals.
5.3.1 For U.S. Postal Service deliveries, any Proposal that has been received at the appropriate mailroom, or typical place of mail receipt, for the respective procuring unit by the time and date listed in the RFP will be deemed to be timely. If an Offeror chooses to use the U.S. Postal Service for delivery, the Administration recommends that it use Express Mail, Priority Mail, or Certified Mail only as these are the only forms for which both the date and time of receipt can be verified by the Administration. It could take several days for an item sent by first class mail to make its way by normal internal mail to the procuring unit and an Offeror using first class mail will not be able to prove a timely delivery at the mailroom.
30 RFP Template Version: 01/20/2017 5.3.2 Hand-delivery includes delivery by commercial carrier acting as agent for the Offeror. For any type of direct (non-mail) delivery, an Offeror is advised to secure a dated, signed, and time-stamped (or otherwise indicated) receipt of delivery.
5.3.3 After receipt, a Register of Proposals will be prepared that identifies each Offeror. The Register of Proposals will be open to inspection only after the Procurement Officer makes a determination recommending the award of the Contract.
5.4 Volume I – Statement of Qualifications
Note: No Technical Proposal (Volume II) information or Financial Proposal (Volume III) information related to projects will be reviewed in this section.
5.4.1 Format of the Statement of Qualifications. Inside a sealed package described in Section 5.2 “Proposals,” the unbound original, four (4) copies, and the electronic version shall be provided. The RFP sections are numbered for ease of reference. Section 5.4.2 sets forth the order of information to be provided in the Statement of Qualifications, e.g., Section 5.4.2.1 “Title and Table of Contents,” Section 5.4.2.2 “Claim of Confidentiality,” etc. In addition to the instructions below, responses in the Offeror’s Technical Proposal should reference the organization and numbering of Sections in the RFP (ex. “Section 2.2.1 Response…, “Section 2.2.2 Response…,” etc.). This Proposal organization will allow State officials and the Evaluation Committee (see RFP Section 6.1) to “map” Offeror responses directly to RFP requirements by Section number and will aid in the evaluation process.
5.4.2 The Statement of Qualifications shall include the following documents and information in the order specified as follows. Each section of the Technical Proposal shall be separated by a TAB as detailed below:
5.4.2.1 Title Page and Table of Contents (Submit under TAB I.a). The Statement of Qualifications should begin with a Title Page bearing the name and address of the Offeror and the name and number of this RFP. A Table of Contents shall follow the Title Page for the Statement of Qualifications, organized by section, subsection, and page number.
5.4.2.2 Claim of Confidentiality (If applicable, submit under TAB I.b). Any information which is claimed to be confidential is to be noted by reference and included after the Title Page and before the Table of Contents, and if applicable, also in the Offeror’s Technical Proposals (Volume II) and Financial Proposal (Volume III). An explanation for each claim of confidentiality shall be included (see Section 4.8 “Public Information Act Notice”). The entire Proposal should not be given a blanket confidentiality designation. Any confidentiality designation must apply to specific sections, pages, or portions of pages of the Proposal.
5.4.2.3 Transmittal Letter (Submit under TAB I.c). A Transmittal Letter shall accompany the Statement of Qualifications. The purpose of this letter is to transmit the Proposal and acknowledge the receipt of any addenda. The Transmittal Letter should be brief and signed by an individual who is authorized to commit the Offeror to the services and requirements as stated in this RFP. The Transmittal Letter should include the following:
(1) Name and address of the Offeror; (2) Name, title, e-mail address, and telephone number of primary contact for the Offeror; (3) Solicitation Title and Solicitation Number that the Proposal is in response to; (4) Signature, typed name, and title of an individual authorized to commit the Offeror to its Proposal; (5) Federal Employer Identification Number (FEIN) of the Offeror, or if a single individual, that individual’s Social Security Number (SSN); 31 RFP Template Version: 01/20/2017
(6) Offeror’s eMM number; (7) Offeror’s DBE certification number (if applicable); (8) Acceptance of all State RFP and Contract terms and conditions (see Section 4.17); if any exceptions are taken, it is to be noted here and details provided in the individual project submittals under Volume II – Technical Proposal (see Section 5.5.1.1- Executive Summary); (9) An affirmative declaration that indicates to the best knowledge and belief of the Offeror that the information supplied in the proposal is true and accurate. (10) A declaration that the Offeror is prepared to provide the necessary financial, material, equipment, labor and staff resources to perform the project. (11) A certification that the Offeror is in compliance with State Ethics Laws prohibiting work on a matter in which a former State employee participated significantly as a State Employee for the duration of this contract. (12) A general authorization for the Administration to confirm all information contained in their proposal with third parties and indicated limitations, if any, to such authorization. (13) Acknowledgement of all addenda to this RFP.
5.4.2.4 Capability of the Offeror (Submit under TAB I.d). The Offeror should demonstrate their ability to successfully deliver the projects that offered as part of this RFP. Discussion shall include the following Key Functions:
(1) Project Management: The Offeror should explain relevant experience and qualifications related to the complete lifecycle of projects under this RFP, including but not limited to assessment, design, permitting, land acquisition and real estate transactions, construction and monitoring.
(2) Stream Design: The Offeror should clearly describe their qualifications, through team and individual experience in any assessment, design and implementation necessary to deliver the proposed project(s). The Offeror should present their Team’s experience with designing and implementing stream restoration projects with an emphasis on natural channel design and those methodologies favored for maximum credit opportunities under the Expert Panel recommendations.
(3) Hydrology & Hydraulics: The Offeror should describe their experience with developing hydrology studies and hydraulic modeling that is required to implement the restoration project in accordance with industry practices and regulatory agency standards in Maryland. Further, The Offeror must demonstrate an understanding of erosion and sediment control and maintenance of stream flow practices.
(4) Permitting and Regulatory Coordination: The Offeror should present their Team’s experience in the development and coordination of any applicable local, state and Federal approvals needed for the development of the full delivery site(s) proposed. It is likely that projects may require a variety of natural resource assessments, including wetland delineations, forest stand delineations, threatened/endangered species assessments, hazardous materials investigations and cultural resources surveys, among other services. Regulatory coordination and specifically permitting for TMDL projects will be critical to the completion of projects in a timely fashion under this RFP.
(5) Construction Management: The Offeror should present their Team’s qualifications and experience with the management of day-to-day construction activities for environmental restoration projects. This section should also clarify the Offerors approach to conflict resolution during all stages of the project from design through construction and final closeout.
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(6) Environmental Compliance and Monitoring: The Offeror will describe their staffing plan for any field environmental compliance during construction and also post-construction monitoring in accordance with any applicable permits and special conditions imposed by the Administration.
It is understood that some Key Functions may not be as important as others depending on the stage of the projects offered. All sections must be addressed. The Offeror can address these sections in whatever manner is appropriate for their Team and projects. Resumes can be provided for any personnel deemed critical to the implementation of these projects. Further, information on staffing and team organization, including support personnel and utilization of any subconsultants, if appropriate to an Offeror’s proposal, should be included in this section in accordance with the page limits described herein.
5.4.2.5 Financial Capability (Submit under TAB I.g). An Offeror must include in its Proposal a commonly- accepted method to prove its fiscal integrity. If available, the Offeror shall include Financial Statements, preferably a Profit and Loss (P&L) statement and a Balance Sheet, for the last two (2) years (independently audited preferred).
In addition, the Offeror may supplement its response to this Section by including one or more of the following with its response:
(1) Dun & Bradstreet Rating; (2) Standard and Poor’s Rating; (3) Lines of credit; (4) Evidence of a successful financial track record; and (5) Evidence of adequate working capital.
5.4.2.6 Certificate of Insurance (Submit under TAB I.i). The Offeror shall provide a copy of its current certificate of insurance showing the types and limits of insurance in effect as of the Proposal submission date. The current insurance types and limits do not have to be the same as described in Section 3.1. See Section 3.1 for the required insurance certificate submission for the recommended Offeror.
5.4.2.7 Legal Action Summary (Submit under TAB I.k). This summary shall include:
(1) A statement as to whether there are any outstanding legal actions or potential claims against the Offeror and a brief description of any action; (2) A brief description of any settled or closed legal actions or claims against the Offeror over the past five (5) years; (3) A description of any judgments against the Offeror within the past five (5) years, including the case name, court case docket number, and what the final ruling or determination was from the court; and (4) In instances where litigation is on-going and the Offeror has been directed not to disclose information by the court, the name of the judge and location of the court.
5.4.2.8 History of Environmental Violations (Submit under Tab I.l): The Offeror should fully describe the circumstances surrounding any environmental violations received in the last five (5) years for which any Team member received a fine or a stop work order imposed by either the Owner or a Regulatory agency. This can be summarized in tabular format, with narrative below to describe any listed violations, if applicable. Offerors should describe the circumstances of and the actions taken in past performance of work to correct any deficiencies related to measures to protect environmental resources or to address any environmental finances, stop work orders, or low ratings,
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if applicable. The Offeror should describe if and how these issues were addressed on the project and future projects.
5.4.2.9 Economic Benefit Factors (Submit under TAB I.m). The Offeror shall submit with its Proposal a narrative describing benefits that will accrue to the Maryland economy as a direct or indirect result of its performance of this contract. Proposals will be evaluated to assess the benefit to Maryland’s economy specifically offered. The economic benefit offered should be consistent with the Offeror’s Total Proposal Price from Attachment B, the Financial Proposal Form. See COMAR 21.05.03.03A(3).
Proposals that identify specific benefits as being contractually enforceable commitments will be rated more favorably than Proposals that do not identify specific benefits as contractual commitments, all other factors being equal.
Offerors shall identify any performance guarantees that will be enforceable by the State if the full level of promised benefit is not achieved during the Contract term.
As applicable, for the full duration of the Contract, including any renewal period, or until the commitment is satisfied, the Contractor shall provide to the Procurement Officer or other designated agency personnel reports of the actual attainment of each benefit listed in response to this section. These benefit attainment reports shall be provided quarterly, unless elsewhere in these specifications a different reporting frequency is stated.
In responding to this section, the following do not generally constitute economic benefits to be derived from this Contract: (1) Generic statements that the State will benefit from the Offeror’s superior performance under the Contract; (2) Descriptions of the number of Offeror employees located in Maryland other than those that will be performing work under this Contract; and (3) Tax revenues from Maryland-based employees or locations, other than those that will be performing, or used to perform, work under this Contract.
Discussion of Maryland-based employees or locations may be appropriate if the Offeror makes some projection or guarantee of increased or retained presence based upon being awarded this Contract.
Examples of economic benefits to be derived from a contract may include any of the following. For each factor identified below, identify the specific benefit and contractual commitments and provide a breakdown of expenditures in that category:
(1) The Contract dollars to be recycled into Maryland’s economy in support of the Contract, through the use of Maryland subcontractors, suppliers and joint venture partners. Do not include actual fees or rates paid to subcontractors or information from your Financial Proposal;
(2) The number and types of jobs for Maryland residents resulting from the Contract. Indicate job classifications, number of employees in each classification and aggregate payroll to which the Offeror has committed, including contractual commitments at both prime and, if applicable, subcontract levels. If no new positions or subcontracts are anticipated as a result of this Contract, so state explicitly;
(3) Tax revenues to be generated for Maryland and its political subdivisions as a result of the Contract. Indicate tax category (sales taxes, payroll taxes, inventory taxes and estimated
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personal income taxes for new employees). Provide a forecast of the total tax revenues resulting from the Contract;
(4) Subcontract dollars committed to Maryland small businesses and DBEs; and
(5) Other benefits to the Maryland economy which the Offeror promises will result from awarding the Contract to the Offeror, including contractual commitments. Describe the benefit, its value to the Maryland economy, and how it will result from, or because of the Contract award. Offerors may commit to benefits that are not directly attributable to the Contract, but for which the Contract award may serve as a catalyst or impetus.
5.4.3 Additional Required Technical Submissions (Submit under TAB I.n)
5.4.3.1 The following documents shall be completed, signed, and included in the Technical Proposal, under TAB I.n that follows the material submitted in response to Section 5.4.2.
(1) Completed Proposal Affidavit (Attachment C). (2) Completed Maryland Living Wage Requirements Affidavit of Agreement (Attachment F- 1).
5.4.3.2 *If Required, the following documents shall be completed, signed, and included in the Technical Proposal, under TAB O that follows the material submitted in response to Section 5.4.2. *See appropriate RFP Section to determine whether the particular document is required for this procurement:
(1) A Signed Statement from the Offeror’s Parent Organization Guaranteeing Performance of the Offeror. See Section 4.16; (2) Completed DBE Participation Forms (See Section 4.27 and Attachment D); (3) Completed Conflict of Interest Affidavit and Disclosure (Attachment H). See Section 4.30; (4) Completed Mercury Affidavit (Attachment K). See Section 4.34; (5) Completed Location of the Performance of Services Disclosure (Attachment L). See Section 4.35.
5.5 Volume II – Technical Proposal
Note: No Qualifications (Volume I) or Financial Proposal (Volume III) information is to be presented in this section.
Offerors must present a separate and complete Volume II (Technical Proposal) for each project proposed as part of this RFP. It is the proposer’s responsibility to submit separate packages that can be reviewed independent of one another. All materials pertaining to a project must be contained within a separate Volume II. Similar submittal instructions follow for Volume III – Financial Proposal.
The Technical Proposal submittal shall contain concise narrative descriptions and graphic illustrations, drawings, charts, plans and specifications that will enable the Administration to clearly understand and evaluate the capabilities of the Offer and the characteristics and benefits of the proposed technical solutions, including the ultimate credit potential for each site.
The Administration reserves the right to award contracts for individual projects from multiple Offerors and is not bound to accept all of the projects proposed by any one Offeror.
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5.5.1 Technical Proposals submitted for each PROJECT shall include the following documents and information in the order specified as follows. Each section of the Technical Proposal shall be separated by a TAB as detailed below. The Offerors proposal should clearly state that the project is proposed or constructed.
5.5.1.1 Executive Summary (Submit under TAB II.a). The Offeror shall condense and highlight the contents of the Technical Proposal in a separate section titled “Executive Summary.” The Summary shall identify the project location; the proposed length of restoration; major techniques or structures proposed in the restoration, size and orientation of the proposed easement, and special concessions in the easement and current ownership of parcels impacted by the project.
The Summary shall also identify any exceptions the Offeror has taken to the requirements of this RFP, the Contract (Attachment M) or any other attachments. Exceptions to terms and conditions may result in having the Proposal deemed unacceptable or classified as not reasonably susceptible of being selected for award. If the Offeror has taken no exceptions to the requirements of this RFP, the Contract (Attachment M), or any other attachments, the Executive Summary shall so state.
5.5.1.2 Site Access Landowner Authorization Form (Submit under TAB II.b). In order to allow for sufficient review of project sites during the proposal review stage, Offerors must submit a completed Site Access Landowner Authorization Form with each project. This form has been included as Attachment Q to this RFP. The Administration will make appropriate notifications to the Offeror in advance of site visits.
5.5.1.3 Pre-Development Site Conditions (Submit under TAB II.c). In this section, the Offeror must adequately describe the pre-development condition of the site, the level of degradation, and evaluate its potential for restoration and credit in accordance with all applicable local, state and federal guidelines. For restoration sites that have been completed, or sites that are in development at the time of the proposal, the Offeror must provide sufficient detail so the Administration can determine the original state of degradation and evaluate the completed restoration for acceptance under this RFP.
5.5.1.3.1 Project Site Description (4 Pages, Including Graphics): In this section, the offeror should describe the pre-development site conditions and nature/extent of resources on the project site. Specifically, the following items should be described in narrative and graphic form:
. Site Size (Acres), Current Ownership and Parcel Boundaries; . Historic/Current/Proposed Land Use and Zoning within ½ Mile of the Site; . Watershed / HUC; . Soil Survey Summary, including K-factor; . Current Riparian Buffer Widths; . On-Site Regulated Resources (Wetlands, Streams, Floodplains, Forests, etc.); . Information on presence or potential for rare, threatened and endangered species and cultural resources, and; . Summary description of preliminary screening for hazardous materials.
For completed projects or other in development at the time of the RFP, the Offeror must adequately describe the pre-restoration condition to justify the restoration. Copies of previously submitted permit applications, existing conditions analyses performed prior to restoration or other supplemental materials that the Offeror deems appropriate to document pre-restoration conditions are acceptable but must be contained with the page limits described herein.
36 RFP Template Version: 01/20/2017 5.5.1.3.2 Copies of Readily Available Land Records, Plats/Deeds (No Page Limit): In this section the Offeror must present information on the current ownership of the proposed project site, including any known encumbrances, such as easements, liens, or other restrictions that could impact the restoration and/or long term maintenance and protection of the site. The Offeror must clearly demonstrate that the proposed project site is free from other encumbrances or the area proposed for restoration and perpetual easement is not under any agricultural preservation or benefits programs managed by another local, state or Federal entity.
Completed projects must not have had any type of mitigation or water quality credits assigned to another entity. Specifically, Offerors may not submit projects under this RFP that were implemented under any other regulatory program or development-driven mitigation purpose, as described previously in this RFP.
5.5.1.3.3 Description of Site Impairments and Functional Stream Assessment (6 Pages): The Offeror should thoroughly describe existing impairments on the project site and include a detailed discussion of how they intend to provide (or have previously provided) the necessary functional lift to be considered restoration. The format for this section is at the Offerors’ discretion. “A Function-Based Framework for Stream Assessment and Restoration Projects” (Harman et al., 2012: Publication No. 843-K-12-006) may be used to organize this assessment. It is recommended that Offerors organize this section consistent with the description of the proposed restoration in Section II.B, below.
5.5.1.3.4 Existing Conditions Maps (No Page Limit): Existing conditions maps should be color, 11”x17” 100-Scale and at a minimum provide a graphical representation of the information described above and throughout this section. Site access, for use during the review of any technical proposals, should be clearly labeled and property owner information (including phone number) should be clearly visible on the maps. For previously completed projects, it is critical that the Offeror can demonstrate the pre-restoration condition, through mapping, site photographs.
Site access, for use during the review of any technical proposals, should be clearly labeled and property owner information (including phone number) should be clearly visible on the maps.
5.5.1.3.5 Site Photos (2 Per Page, 10 Pages Total): The Offeror should provide color site photographs that document major projects reaches and/or impairments that will have been described throughout this section. Project stationing or other geographic references that support the narrative are highly encouraged. For completed projects, site photographs should focus on the pre-restoration condition so the Administration can clearly see the purpose of the restoration project.
5.5.1.4 Proposed Site Conditions (Submit under TAB II.d). The Offeror should clearly describe the proposed project and the means and methods that will be employed to develop construction drawings sufficient to secure all applicable approvals and to ultimately generate the specified restoration credit. For completed projects, the Offeror should clearly describe the completed project and the means and methods that were employed to develop construction drawings sufficient to secure all applicable approvals and to ultimately generate the specified restoration credit.
The Administration is not requiring projects submitted as part of this RFP to be developed in accordance with its Standard Specifications for Construction and Materials (July 2008 or later). This RFP is for the delivery of final restoration credits only. It is the Offeror’s responsibility to 37 RFP Template Version: 01/20/2017 secure all necessary federal, state and local permits and approvals prior to the start of construction. Further, the Administration will not issue any construction phase project payments until the satisfactory completion of all relevant permits.
5.5.1.4.1 Narrative Description of the Proposed Restoration (6 Pages): This section should include a discussion of the proposed improvements that will be made in order to restore the site. For completed projects, this section should include a discussion of the completed improvements that were made to restore the site. The organization of this section is at the Offerors discretion, but it must include a description of the planned design approaches and anticipated ultimate conditions across the project. The offeror must clearly describe the proposed credit generated for the project, describe the project’s sustainability and/or resiliency, as well as thoroughly describing any planned modifications to floodplains, site buffers and access. “A Function-Based Framework for Stream Assessment and Restoration Projects” (Harman et al., 2012: Publication No. 843-K-12-006) may be used to organize this section.
5.5.1.4.2 Work Plan and Schedule (4 Pages): The Offer should describe the way in which the following major work components will be accomplished for the project and the approximate schedule for the completion of each. For completed projects or projects in development at the time of the RFP, the Offeror should describe they major steps undertaken to develop the restoration work and the approximate date for the original completion of these activities the way that the major work The narrative should make reference to the conceptual plans included as part of the Technical Proposal and include site-specific information such that it is clear what work is proposed and where that work will occur at the project site.
. Final Easement Transfers . Site Controls (e.g. fencing) / Permanent Access . Proposed Floodplain Modifications and Riparian Buffers . Required Permits and Approach To Regulatory Coordination . Grading/Earthwork . In-Stream Structures (Grade Control, Habitat Features, etc.) and Proposed Materials . Site Stabilization and Landscaping . As-Built Surveys . Post-Construction Monitoring
Offerors are advised that any project included in their proposals must have design, permitting, final grading, structure placement and permanent stabilization completed before June 30, 2020. Offerors should be aware of the long lead time associated with wetlands/waterways permitting in Maryland and must make accommodations to have all work completed within the Administration’s time constraints for this RFP. Offerors who do not complete projects by this date will be subject to punitive and financial penalties, including Downward Payment Adjustments to the fullest extent of the Administration’s authority.
The Offeror has the sole responsibility to document that any completed or ongoing restoration project was (or will be) completed in accordance with all applicable laws and regulations and clearly show that the project was finished after October 21, 2010. The following is a brief listing of potential sources of information to confirm the projects have been completed in accordance with all applicable laws
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and regulations. Other material may be accepted at the Administration’s discretion.
. Nontidal Wetland & Waterways Permits . US Army corps of Engineers Permits (Nationwide, MDSPGP, Individual) . US Army Corps of Engineers Self-Certification Forms . Local Soil Conservation District Approvals . MDE Permit for Stormwater Discharge During Construction . Certified As-Built Surveys . Post-Construction Monitoring Reports, as applicable.
5.5.1.4.3 Plans (No Page Limit): For newly proposed projects, conceptual plans shall be color, 11”x17” and 100-scale, with a similar extent and layout as the Existing Conditions Maps provided under Section II.a. Concept plans shall show all proposed areas of grading, structures and other permanent improvements planned for the site, including any modifications to 100-year water surface elevations.
The Offeror shall include a graphical representation of the proposed easement over the site, inclusive of riparian buffers and permanent access for monitoring and adaptive management. Typical details, planting plans and any notes or other drawings that allow the Administration to draw conclusions on the susceptibility towards project success are highly encouraged. Any planned landowner concessions (fencing, cattle crossings, watering units, etc.) must be shown on the concept plans.
Copies of final approved plans for any completed project should be included in this section.
5.5.1.5 Property and Legal Notices (No Page Limit) (Submit under TAB II.e). The Offeror will be responsible for providing a legally binding perpetual easement and all applicable and other required documentation, including but not limited to site surveys and other due diligence as required by the Administration.
As part of the Technical Proposal, all Offers must submit a signed and fully executed “Memorandum of Contract to Purchase Easement Restrictions” with each project site. This document, the format of which can be at the Offerors discretion, must clearly demonstrate that the property owner will readily sell to the Offeror a perpetual easement for the site. This memorandum must make specific reference to the following contract elements:
. Seller Name/Address . Purchaser Name/Address . Parcel Description . Easement Size (Acres) . Permanent Access Points . Landowner Concessions . Anticipated Date of Closing . Acknowledgment of the Administration’s Easement Language
This Memorandum must be signed by all required parties, notarized and included with the Technical Proposal to document the Offerors intent to complete the purchase and establish easements over the project site.
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At this time the Administration is not requesting to inspect the formal contract to purchase easement restrictions, but may request redacted copies of this material at any time during the proposal review process or during project implementation.
The Administration is not a party to the sale or purchase of any real property, but it is the intention of the Administration to assume control of the perpetual easement once the project is closed out. The Administration will not be responsible for the long term maintenance of any landowner concessions (e.g. fencing, water units, and stream crossings). The cost of the transfer of the easement shall be included in the price proposal and is to be considered incidental to the delivery of credits under this RFP.
5.5.1.6. Project Schedule (1 Page) (Submit under TAB II.f): In this section, the Offeror should describe the major project milestones and provide a brief description of their plan to meet SHA’s schedule for this project. This schedule should be based on the Work Plan developed under RFP Section 5.5.1.4.2 and should show anticipated milestone payment requests. Graphics and charts are allowed but all material must be within the specified page limit for this section.
5.5.1.7 Project Risks and Contingency Plan (1 Page) (Submit under TAB II.g): In this section, the Offeror should describe the major elements of risk associated with the subject project.
The Offers should provide a brief explanation of the risks associated with the proposed project, including risk to the Offeror, the Seller and the Administration and describe how these risks will be minimized and, if necessary, mitigated in order to deliver the proposed project on schedule.
The Offeror should provide a thorough description of their approach for adaptive management of the project site once construction is complete, including any planned assessments, potential recommendations on corrective actions or other steps that would be implemented if the project site is not functioning as planned. This discussion should include a brief description of the process for notifications and permit modifications, if necessary. Sites that do not meet the intent of an Offerors proposal, or do not meet the success criteria defined by the regulatory agencies and the Administration will be subject to Downward Payment Adjustments.
For completed projects or those still in development at the time of the RFP, the Administration must have a clear understanding of any funding used to implement the projects. If local, state or federal grant money was used to fund the design or construction of any proposed project, it is important to clearly identify the funding source and provide copies of those agreements. The Offeror must document any restriction, due to the source of funding, put on the property or the use of the property for the Administration’s stated purpose.
5.6 Volume III – Financial Proposal
Note: No Qualifications (Volume I) or Technical Proposal (Volume II) information related to projects will be reviewed in this section.
5.6.1 Submittal Requirements: Under separate sealed cover from the Statement of Qualifications and the Technical Proposal and clearly identified in the format identified in Section 5.2 “Proposals,” the Offeror shall submit an original unbound copy, four (4) copies, and an electronic version in Microsoft Word or Microsoft Excel of the Financial Proposal for each project site described in the separate Technical Proposals provided. The Financial Proposal shall contain all price information in the format specified in Attachment B. The Offeror shall complete the Financial Proposal Form only as provided in the Financial Proposal Instructions and the Financial Proposal Form itself.
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The Administration intends to enter in contract(s) with Offeror on an individual project basis. The total individual project cost must be calculated by the total individual project linear feet, measured along the thalweg of existing channel that the proposed restoration addresses. This cost per linear foot will form the basis of the Volume III – Financial Proposal.
All costs related to the project offered must be included in the sealed cost proposal. No additional charges for travel, per diem, or cost of any services will be allowed. All sealed cost proposals will be compared to project cost data maintained by the Administration.
The Offeror assumes all risk with performance of the work, including purchase of the property, management of its Subcontractors, suppliers, and any associated cost impacts over and above the cost submitted in response to this RFP.
5.6.2 Proposal Guaranty: A bid security is not required on Contract Proposals under $100,000. A bid security totaling at least five percent (5%) of the bid amount will be required on contracts of $100,000 or over.
Acceptable forms of security for bid guaranty shall be:
(1) A bond in a form satisfactory to the State underwritten by a company licensed to issue bonds in this State;
(2) A bank certified check, bank cashier's check, bank treasurer's check, or cash;
(3) Pledge of security backed by the full faith and credit of the United States government or bonds issued by the State of Maryland.
Enclosed herewith, find bid security based on at least five percent (5%) of the aggregate amount of the bid submitted, and made payable to the "State of Maryland". This bid security is a Proposal Guaranty (which is understood will be forfeited in the event the contract is not executed, if awarded to the signer of this affidavit).
5.6.3 Bonding: When the Contractor's bid is $100,000 or more, the Contractor shall furnish a Payment Bond and a Performance Bond in the full amount of the Contract Award as security for the construction and completion of the contract in conformance with the Plans, Standard Specifications, revisions thereto, General Provisions and Special Provisions.
To guarantee all of the work performed under this contract to be done in conformance with the Standard Specifications, revisions thereto, General Provisions and Special Provisions in a good workmanlike manner and to renew or repair any work which may be rejected due to defective materials or workmanship, prior to final completion and acceptance of the work, also we have the equipment, labor, supervision and financial capacity to perform this contract either with our organization or with Subcontractors.
The Offeror may have the option to provide two performance bonds. The first bond will be for 100% of the total contract value and must be in effect at the time of completion of Task 3 (Regulatory Approvals and Permits). The Administration will not issue payment for Task 3 until the Offeror has provided proof of the total contract performance bond. The bond must remain in effect until the Offeror has received written notification from the Administration of the acceptance of the Task 5 deliverable (Baseline Monitoring Report).
After the Administration’s acceptance of the Task 5 deliverable, the Offeror may submit a request to the Administration to retire the first bond and apply for a second bond, herein referred to as the Monitoring Phase Performance Bond (MPPB). The MPPB amount, defined in terms of % of total contract value, will be determined by the Administration as deemed in their best interest given the final (as-built) site conditions 41 RFP Template Version: 01/20/2017
and the perceived stability of the site. It is anticipated that the MPPB will cover all outstanding monitoring and maintenance components, up to 35% of the total contract value.
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SECTION 6 – EVALUATION AND SELECTION PROCESS
6.1 Evaluation Committee
Evaluation of Proposals will be performed in accordance with COMAR 21.05.03 by a committee established for that purpose and based on the evaluation criteria set forth below. The Evaluation Committee will review Proposals, participate in Offeror oral presentations and discussions, and provide input to the Procurement Officer. The Administration reserves the right to utilize the services of individuals outside of the established Evaluation Committee for advice and assistance, as deemed appropriate.
6.2 Statement of Qualifications and Technical Proposal Evaluation Criteria
The ratings assigned to the technical evaluation factors will be compiled to determine an individual quality rating for Volume I - Statement of Qualifications (SOQ) and Volume II - Technical Proposal. The ratings of each of the technical evaluation factors and the overall technical rating for the SOQ and Technical Proposal will be arrived at through a consensus process using qualitative, adjectival ratings. Numerical scores will not be assigned.
The quality ratings for Volume I and II will be evaluated in conjunction with Volume III – Financial Proposal. The rating for Volume I and Volume II, along with the Administration’s analysis of Volume III, will be combined to form the basis for selection of projects that represent the best value to the Administration.
All of the Administration’s goals are necessary for project success. Offerors are cautioned not to overemphasize an approach of certain goals at the expense of other goals. Additional information is provided in Section 6.5.3 – Award Determination.
Quality ratings for each technical evaluation factor and the overall technical rating for the RFP will be based on the following quality rating criteria:
• EXCEPTIONAL: The Proposer has demonstrated a complete understanding of the subject matter and the Proposal advances the Project goals to an exceptional level. The Proposal communicates an outstanding commitment to quality by a highly skilled team in all aspects of the Work. The Proposal outlines a strong approach to mitigating project specific risks and inspires confidence that all contract requirements will be met or exceeded. The Proposal contains significant strengths and minor weaknesses, if any.
• GOOD: The Proposer has demonstrated a strong understanding of the subject matter and the Proposal advances the Project goals to a high level. The Proposal communicates a commitment to quality by an experienced team in all aspects of the Work. The Proposal defines an approach to mitigating project specific risks with little risk that the Proposer would fail to meet the requirements of the contract. The Proposal contains strengths that outweigh weaknesses.
• ACCEPTABLE: The Proposer has demonstrated an adequate understanding of the subject matter and the Proposal meets the Project goals. The Proposal communicates a commitment to quality Work by a qualified team. Project specific risks have been identified and the Proposer has a reasonable probability of successfully completing the Work. The Proposal contains strengths that are offset by weaknesses.
• UNACCEPTABLE: The Proposer has not demonstrated an understanding of the subject matter and the Proposal presents an approach which does not address the goals of the Project. The Proposal fails to meet stated requirements and/or lacks essential information. The commitment to quality is not adequate, with Work performed by unqualified or unproven teams. Project specific risks are not addressed, and the Proposal generates little confidence that the Project requirements can be met. The Proposal contains deficiencies, significant weaknesses and minor strengths, if any. 43 RFP Template Version: 01/20/2017 The evaluators may also use a plus (+) or minus (-) suffix to further differentiate the strengths or limitations within a technical ratings of EXCEPTIONAL, GOOD, and ACCEPTABLE.
The term “Weakness,” as used herein, means any flaw in the proposal that increases the risk of unsuccessful contract performance. A significant Weakness in the Proposal is a flaw that appreciably increases the risk of unsuccessful contract performance. Any proposal that receives an overall rating of UNACCEPTABLE in one or more technical evaluation factors will receive an overall rating of UNACCEPTABLE and the Proposer will not be eligible for award.
6.3 Financial Proposal Evaluation Criteria
The Administration reserves the right to reject any Proposal if it determines that the Financial Proposal is unacceptable. A Price Proposal shall be deemed unacceptable if the Administration determines, in its sole discretion that it fails to conform to the conditions of the RFP in any manner. Financial Proposal submittal requirements are including in RFP Section 5.6.
The Administration reserves the right to reject all original offers and require one or more the Offerors to submit Best and Final Offers (BAFOs), prepared in collaboration with the Administration after the initial responses to the RFP have been evaluated.
6.4 Reciprocal Preference
Although Maryland law does not generally authorize procuring units to favor resident Offerors in awarding procurement contracts, many other states do grant their resident businesses preferences over Maryland contractors. Therefore, COMAR 21.05.01.04 permits procuring units to apply a reciprocal preference in favor of a Maryland resident business under the following conditions:
(1) The Maryland resident business is a responsible Offeror; (2) The most advantageous offer is from a responsible Offeror whose principal office or principal operations through which it would provide the services required under this RFP is in another state; (3) The other state gives a preference to its resident businesses through law, policy, or practice; and (4) The Maryland resident preference does not conflict with a federal law or grant affecting the procurement Contract.
The preference given shall be identical to the preference that the other state, through law, policy, or practice gives to its resident businesses.
6.5 Selection Procedures
6.5.1 General. The Contract will be awarded in accordance with the Competitive Sealed Proposals (CSP) method found at COMAR 21.05.03. The Competitive Sealed Proposals method allows for the conducting of discussions and the revision of Proposals during these discussions. Therefore, the State may conduct discussions with all Offerors that have submitted Proposals that are determined to be reasonably susceptible of being selected for contract award or potentially so. However, the State reserves the right to make an award without holding discussions.
In either case (i.e., with or without discussions), the State may determine an Offeror to be not responsible and/or an Offeror’s Proposal to be not reasonably susceptible of being selected for award at any time after the initial closing date for receipt of Proposals and prior to Contract award. If the State finds an Offeror to
44 RFP Template Version: 01/20/2017 be not responsible and/or an Offeror’s Technical Proposal to be not reasonably susceptible of being selected for award, that Offeror’s Financial Proposal will subsequently be returned if the Financial Proposal is unopened at the time of the determination.
6.5.2 Selection Process Sequence
6.5.2.1 A determination is made that disadvantaged Business Enterprise Forms (Attachment D) are included and properly completed. Next, a determination is made that all Minimum Qualifications, if any (See RFP Section 1), have been satisfied.
6.5.2.2 Volume I - Statement of Qualifications from each Offeror will be evaluated for technical merit and given a quality rating. If the SOQ is deemed to be acceptable or better the Administration will proceed to the review of any individual project Technical Proposals.
6.5.2.3 If an Offeror’s SOQ is assigned a rating of Acceptable or Better, each Volume II - Technical Proposal submitted will be evaluated for technical merit. During this review, oral presentations and discussions may be held. The purpose of such discussions will be to assure a full understanding of the State’s requirements and Offeror’s ability to perform the services, as well as facilitate arrival at a Contract that is most advantageous to the State. Offerors will be contacted by the State as soon as any discussions are scheduled, if applicable.
6.5.2.4 Offerors must confirm in writing any substantive oral clarifications of, or changes in, their Technical Proposals made in the course of discussions. Any such written clarifications or changes then become part of the Offeror’s Technical Proposal. Technical Proposals are given a final review and rating.
6.5.2.5 The Financial Proposal of each submitted project will then be evaluated. A separate Volume III – Financial Proposal is required per site. After a review of the Financial Proposals, the Evaluation Committee or Procurement Officer may again conduct discussions to further evaluate the Offeror’s entire Proposal.
6.5.2.6 When in the best interest of the State, the Procurement Officer may permit Qualified Offerors to revise their initial Proposals and submit, in writing, Best and Final Offers (BAFOs). The State may make an award without issuing a request for a BAFO.
6.5.3 Award Determination. Upon completion of the Administration’s review of the Statement of Qualifications and individual Technical Proposals, each Offeror‘s submittal will receive an overall rating for the technical factors in both volumes. The relative importance of Volume I (Statement of Qualifications) and Volume II (Technical Proposal) will be equal.
Once the overall technical factors rating has been determined for each Offeror’s submittal, a fully integrated trade off analysis will be performed to differentiate which Offeror’s submittals are the most advantageous to the State. When determining which Offeror’s submittals are most advantageous to the State, the overall technical factors will have a higher relative importance than the Financial Proposal.
A tradeoff analysis can be as simple or complex as needed to differentiate which Offerors are the most advantageous to the State and provide the “Best Value”. In performing the tradeoff analysis, the Evaluation Committee, chaired by the Procurement Officer, will consider the facts and circumstances of the procurement and utilize its technical judgment and discretion in considering the strengths, weaknesses, and deficiencies of each Offerors submittal to determine the most advantageous to the State.
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6.6 Documents Required upon Notice of Recommendation for Contract Award
Upon receipt of a Notification of Recommendation for Contract Award, the following documents shall be completed, signed if applicable with original signatures, and submitted by the recommended awardee within five (5) Business Days, unless noted otherwise. Submit three (3) copies of each of the following documents:
(1) Contract (Attachment M), (2) Contract Affidavit (Attachment N), (3) Any required DBE Forms and Waivers, within ten (10) Business Days, if applicable; *see Section 4.27, (4) VSBE Attachment E-2, if applicable *see Section 4.28, (5) Non-Disclosure Agreement (Attachment I), if applicable; *see Section 4.32, (6) HIPAA Business Associate Agreement (Attachment J), if applicable; *see Section 4.33, (7) DHR Hiring Agreement, Attachment O, if applicable *see Section 4.37, and (8) Copy of a current Certificate of Insurance with the prescribed limits set forth in Section 3.1 “Insurance Requirements,” listing the State as an additional insured, if applicable; *see Section 3.1
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RFP ATTACHMENTS
ATTACHMENT A – Pre-Proposal Conference Response Form It is requested that this form be completed and submitted as described in RFP Section 4.1 by those potential Offerors that plan on attending the Pre-Proposal Conference.
ATTACHMENT B – Financial Proposal Instructions and Form The Financial Proposal Form must be completed and submitted in the Financial Proposal package.
ATTACHMENT C –Proposal Affidavit This Attachment must be completed and submitted with the Technical Proposal.
ATTACHMENT D – Disadvantaged Business Enterprise Forms If required (see RFP Section 4.27), these Attachments include the DBE subcontracting goal statement and instructions, and DBE Forms that must be properly completed and submitted with the Offeror’s Technical Proposal or the Proposal will be deemed not reasonably susceptible of being selected for award and rejected.
ATTACHMENT E – Veteran-Owned Small Business Enterprise Forms If required (see RFP Section 4.28), these Attachments include the VSBE Attachments E-1 through E-4. Attachment E-1 must be completed and submitted with the Technical Proposal. Attachment M-2 is required to be submitted within ten (10) Business Days of receiving notification of recommendation for award.
ATTACHMENT F – Maryland Living Wage Requirements for Service Contracts and Affidavit of Agreement Attachment F-1 Living Wage Affidavit of Agreement must be completed and submitted with the Technical Proposal.
ATTACHMENT G – Federal Funds Attachment If required (see RFP Section 4.29), these Attachments must be completed and submitted with the Technical Proposal as instructed in the Attachments.
ATTACHMENT H – Conflict of Interest Affidavit and Disclosure If required (see RFP Section 4.30), this Attachment must be completed and submitted with the Technical Proposal.
ATTACHMENT I – Non-Disclosure Agreement If required (see RFP Section 4.31), this Attachment must be completed and submitted within five (5) Business Days of receiving notification of recommendation for award. However, to expedite processing, it is suggested that this document be completed and submitted with the Technical Proposal.
ATTACHMENT J – HIPAA Business Associate Agreement If required (see RFP Section 4.32), this Attachment is to be completed and submitted within five (5) Business Days of receiving notification of recommendation for award. However, to expedite processing, it is suggested that this document be completed and submitted with the Technical Proposal.
ATTACHMENT K – Mercury Affidavit If required (see RFP Section 4.34), this Attachment must be completed and submitted with the Technical Proposal.
ATTACHMENT L – Location of the Performance of Services Disclosure If required (see RFP Section 4.35), this Attachment must be completed and submitted with the Technical Proposal.
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ATTACHMENT M – Contract This is the sample contract used by the Administration. It is provided with the RFP for informational purposes and is not required to be submitted at Proposal submission time. Upon notification of recommendation for award, a completed contract will be sent to the recommended awardee for signature. The recommended awardee must return to the Procurement Officer three (3) executed copies of the Contract within five (5) Business Days after receipt. Upon Contract award, a fully-executed copy will be sent to the Contractor.
ATTACHMENT N – Contract Affidavit This Attachment must be completed and submitted by the recommended awardee to the Procurement Officer within five (5) Business Days of receiving notification of recommendation for award.
ATTACHMENT O – Department of Human Resources (DHR) Hiring Agreement If required (see RFP Section 4.36), this Attachment is to be completed and submitted within five (5) Business Days of receiving notification of recommendation for award.
ATTACHMENT P – Perpetual Easement Template (For Reference Only) Contractors must obtain permanent, perpetual easements over any project(s) proposed under this RFP in order to assign all natural resource function, values and credit to the Administration. The Administration has provided a template for the required perpetual easement and proposed conditions.
ATTACHMENT Q – Site Access Landowner Authorization Form Offerors must submit a completed Site Access Landowner Authorization Form with each Volume II – Technical Proposal prepared as part of this RFP.
ATTACHMENT R – Current MDOT SHA Stream Restoration Projects The Administration is currently evaluating several potential stream restoration sites as part of ongoing Chesapeake Bay restoration obligations. Projects currently under any stage of evaluation by the Administration are excluded from consideration as part of any Offeror’s response.
ATTACHMENT S – NEPA Programmatic Categorical Exclusion It is anticipated that the Offeror will provide support to the Administration in the preparation of the Programmatic Categorical Exclusion (PCE) Form. Additional information on required analysis, including the PCE Form, is included as part of this RFP for consideration.
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ATTACHMENT A – PRE-PROPOSAL CONFERENCE RESPONSE FORM
Solicitation Number XX1655182 FULL DELIVERY STREAM RESTORATION SERVICES
A Pre-Proposal Conference will be held at the date, time, and location indicated in the RFP Key Information Summary Sheet (near the beginning of the solicitation, after the Title Page and Notice to Vendors).
Please return this form at least five (5) Business Days prior to the Pre-Proposal Conference date, advising whether or not you plan to attend. The completed form should be returned via e-mail or fax to the Procurement Officer. The Procurement Officer’s contact information is provided in the RFP Key Information Summary Sheet.
Please indicate:
______Yes, the following representatives will be in attendance:
1.
2.
3.
______No, we will not be in attendance.
Please specify whether any reasonable accommodations are requested (see RFP § 4.1 “Pre-Proposal Conference”):
______Signature Title
______Name of Firm (please print)
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ATTACHMENT B – FINANCIAL PROPOSAL INSTRUCTIONS & FORM
B-1: FINANCIAL PROPOSAL INSTRUCTIONS
In order to assist Offerors in the preparation of their Financial Proposal and to comply with the requirements of this solicitation, Financial Proposal Instructions and a Financial Proposal Form have been prepared. Offerors shall submit their Financial Proposal on the Financial Proposal Form in accordance with the instructions on the Financial Proposal Form and as specified herein. Do not alter the Financial Proposal Form or the Proposal may be determined to be not reasonably susceptible of being selected for award. The Financial Proposal Form is to be signed and dated, where requested, by an individual who is authorized to bind the Offeror to the prices entered on the Financial Proposal Form.
The Financial Proposal Form is used to calculate the Offeror’s TOTAL PROPOSAL PRICE. Follow these instructions carefully when completing your Financial Proposal Form:
A) All Unit and Extended Prices must be clearly entered in dollars and cents, e.g., $24.15. Make your decimal points clear and distinct.
B) All Unit Prices must be the actual price per unit the State will pay for the specific item or service identified in this RFP and may not be contingent on any other factor or condition in any manner.
C) All calculations shall be rounded to the nearest cent, i.e., .344 shall be .34 and .345 shall be .35.
D) Any goods or services required through this RFP and proposed by the vendor at No Cost to the State must be clearly entered in the Unit Price, if appropriate, and Extended Price with $0.00.
E) Every blank in every Financial Proposal Form shall be filled in. Any changes or corrections made to the Financial Proposal Form by the Offeror prior to submission shall be initialed and dated.
F) Except as instructed on the Financial Proposal Form, nothing shall be entered on or attached to the Financial Proposal Form that alters or proposes conditions or contingencies on the prices. Alterations and/or conditions may render the Proposal not reasonably susceptible of being selected for award.
G) It is imperative that the prices included on the Financial Proposal Form have been entered correctly and calculated accurately by the Offeror and that the respective total prices agree with the entries on the Financial Proposal Form. Any incorrect entries or inaccurate calculations by the Offeror will be treated as provided in COMAR 21.05.03.03, and may cause the Proposal to be rejected.
H) If option years are included, Offerors must submit pricing for each option year. Any option to renew will be exercised at the sole discretion of the State and comply with all terms and conditions in force at the time the option is exercised. If exercised, the option period shall be for a period identified in the RFP at the prices entered in the Financial Proposal Form.
I) All Financial Proposal prices entered below are to be fully loaded prices that include all costs/expenses associated with the provision of services as required by the RFP. The Financial Proposal price shall include, but is not limited to, all: labor, profit/overhead, general operating, administrative, and all other expenses and costs necessary to perform the work set forth in the solicitation. No other amounts will be paid to the Contractor. If labor rates are requested, those amounts shall be fully-loaded rates; no overtime amounts will be paid. 50 RFP Template Version: 01/20/2017 J) Unless indicated elsewhere in the RFP, sample amounts used for calculations on the Financial Proposal Form are typically estimates for evaluation purposes only. Unless stated otherwise in the RFP, the Administration does not guarantee a minimum or maximum number of units or usage in the performance of this Contract.
K) Failure to adhere to any of these instructions may result in the Proposal being determined not reasonably susceptible of being selected for award.
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B-2: FINANCIAL PROPOSAL FORM
The Financial Proposal Form shall contain all price information in the format specified on these pages. Complete the Financial Proposal Form only as provided in the Financial Proposal Instructions. Do not amend, alter or leave blank any items on the Financial Proposal Form. If option years are included, Offerors must submit pricing for each option year. Failure to adhere to any of these instructions may result in the Proposal being determined not reasonably susceptible of being selected for award.
Total Restoration Credits (LF) Credit Cost Per LF $ Total Cost $
Submitted By:
Authorized Signature: ______
Date: ______
Printed Name and Title: ______
Offeror Name: ______
Offeror Address: ______
Location(s) from which services will be performed (City/State): ______
FEIN: ______eMM #: ______
Contact Information of Above Authorized Signatory:
Telephone: (_____) ______- ______Fax: (_____) ______- ______
E-mail: ______
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ATTACHMENT C – PROPOSAL AFFIDAVIT
A. AUTHORITY I hereby affirm that I, ______(name of affiant) am the ______(title) and duly authorized representative of ______(name of business entity) and that I possess the legal authority to make this affidavit on behalf of the business for which I am acting.
B. CERTIFICATION REGARDING COMMERCIAL NONDISCRIMINATION The undersigned Offeror hereby certifies and agrees that the following information is correct: In preparing its Proposal on this project, the Offeror has considered all Proposals submitted from qualified, potential subcontractors and suppliers, and has not engaged in “discrimination” as defined in § 19-103 of the State Finance and Procurement Article of the Annotated Code of Maryland. “Discrimination” means any disadvantage, difference, distinction, or preference in the solicitation, selection, hiring, or commercial treatment of a vendor, subcontractor, or commercial customer on the basis of race, color, religion, ancestry, or national origin, sex, age, marital status, sexual orientation, sexual identity, or on the basis of disability or any otherwise unlawful use of characteristics regarding the vendor’s, supplier’s, or commercial customer’s employees or owners. “Discrimination” also includes retaliating against any person or other entity for reporting any incident of “discrimination”. Without limiting any other provision of the solicitation on this project, it is understood that, if the certification is false, such false certification constitutes grounds for the State to reject the Proposal submitted by the Offeror on this project, and terminate any contract awarded based on the Proposal. As part of its Proposal, the Offeror herewith submits a list of all instances within the past four (4) years where there has been a final adjudicated determination in a legal or administrative proceeding in the State of Maryland that the Offeror discriminated against subcontractors, vendors, suppliers, or commercial customers, and a description of the status or resolution of that determination, including any remedial action taken. Offeror agrees to comply in all respects with the State’s Commercial Nondiscrimination Policy as described under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland.
B-1. CERTIFICATION REGARDING DISADVANTAGED BUSINESS ENTERPRISES The undersigned Offeror hereby certifies and agrees that it has fully complied with the State Minority Business Enterprise Law, State Finance and Procurement Article, § 14-308(a)(2), Annotated Code of Maryland, which provides that, except as otherwise provided by law, a contractor may not identify a certified disadvantaged business enterprise in a Proposal and:
(1) Fail to request, receive, or otherwise obtain authorization from the certified disadvantaged business enterprise to identify the certified disadvantaged Proposal; (2) Fail to notify the certified disadvantaged business enterprise before execution of the contract of its inclusion in the Proposal; (3) Fail to use the certified disadvantaged business enterprise in the performance of the contract; or (4) Pay the certified disadvantaged business enterprise solely for the use of its name in the Proposal.
Without limiting any other provision of the solicitation on this project, it is understood that if the certification is false, such false certification constitutes grounds for the State to reject the Proposal submitted by the Offeror on this project, and terminate any contract awarded based on the Proposal.
B-2. CERTIFICATION REGARDING VETERAN-OWNED SMALL BUSINESS ENTERPRISES The undersigned Offeror hereby certifies and agrees that it has fully complied with the State veteran-owned small business enterprise law, State Finance and Procurement Article, § 14-605, Annotated Code of Maryland, which provides that a person may not:
(1) Knowingly and with intent to defraud, fraudulently obtain, attempt to obtain, or aid another person in fraudulently obtaining or attempting to obtain public money, procurement contracts, or funds expended under a procurement contract to which the person is not entitled under this title;
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(2) Knowingly and with intent to defraud, fraudulently represent participation of a veteran–owned small business enterprise in order to obtain or retain a Proposal preference or a procurement contract; (3) Willfully and knowingly make or subscribe to any statement, declaration, or other document that is fraudulent or false as to any material matter, whether or not that falsity or fraud is committed with the knowledge or consent of the person authorized or required to present the declaration, statement, or document; (4) Willfully and knowingly aid, assist in, procure, counsel, or advise the preparation or presentation of a declaration, statement, or other document that is fraudulent or false as to any material matter, regardless of whether that falsity or fraud is committed with the knowledge or consent of the person authorized or required to present the declaration, statement, or document; (5) Willfully and knowingly fail to file any declaration or notice with the unit that is required by COMAR 21.11.13; or (6) Establish, knowingly aid in the establishment of, or exercise control over a business found to have violated a provision of § B-2(1)-(5) of this regulation.
C. AFFIRMATION REGARDING BRIBERY CONVICTIONS I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business (as is defined in Section 16- 101(b) of the State Finance and Procurement Article of the Annotated Code of Maryland), or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business's contracting activities including obtaining or performing contracts with public bodies has been convicted of, or has had probation before judgment imposed pursuant to Criminal Procedure Article, § 6-220, Annotated Code of Maryland, or has pleaded nolo contendere to a charge of, bribery, attempted bribery, or conspiracy to bribe in violation of Maryland law, or of the law of any other state or federal law, except as follows (indicate the reasons why the affirmation cannot be given and list any conviction, plea, or imposition of probation before judgment with the date, court, official or administrative body, the sentence or disposition, the name(s) of person(s) involved, and their current positions and responsibilities with the business):
______
______
______
D. AFFIRMATION REGARDING OTHER CONVICTIONS I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business, or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business's contracting activities including obtaining or performing contracts with public bodies, has:
(1) Been convicted under state or federal statute of: (a) A criminal offense incident to obtaining, attempting to obtain, or performing a public or private contract; or (b) Fraud, embezzlement, theft, forgery, falsification or destruction of records or receiving stolen property;
(2) Been convicted of any criminal violation of a state or federal antitrust statute;
(3) Been convicted under the provisions of Title 18 of the United States Code for violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961 et seq., or the Mail Fraud Act, 18 U.S.C. § 1341 et seq., for acts in connection with the submission of Proposals for a public or private contract;
(4) Been convicted of a violation of the State Minority Business Enterprise Law, § 14-308 of the State Finance and Procurement Article of the Annotated Code of Maryland; 54 RFP Template Version: 01/20/2017
(5) Been convicted of a violation of § 11-205.1 of the State Finance and Procurement Article of the Annotated Code of Maryland;
(6) Been convicted of conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any law or statute described in subsections (1)—(5) above;
(7) Been found civilly liable under a state or federal antitrust statute for acts or omissions in connection with the submission of Proposals for a public or private contract;
(8) Been found in a final adjudicated decision to have violated the Commercial Nondiscrimination Policy under Title 19 of the State Finance and Procurement Article of the Annotated Code of Maryland with regard to a public or private contract;
(9) Been convicted of a violation of one or more of the following provisions of the Internal Revenue Code:
(a) §7201, Attempt to Evade or Defeat Tax; (b) §7203, Willful Failure to File Return, Supply Information, or Pay Tax, (c) §7205, Fraudulent Withholding Exemption Certificate or Failure to Supply Information, (d) §7206, Fraud and False Statements, or (e) §7207, Fraudulent Returns, Statements, or Other Documents;
(10) Been convicted of a violation of 18 U.S.C. §286, Conspiracy to Defraud the Government with Respect to Claims, 18 U.S.C. §287, False, Fictitious, or Fraudulent Claims, or 18 U.S.C. §371, Conspiracy to Defraud the United States;
(11) Been convicted of a violation of the Tax-General Article, Title 13, Subtitle 7 or Subtitle 10, Annotated Code of Maryland;
(12) Been found to have willfully or knowingly violated State Prevailing Wage Laws as provided in the State Finance and Procurement Article, Title 17, Subtitle 2, Annotated Code of Maryland, if: (a) A court: (i) Made the finding; and (ii) Decision became final; or (b) The finding was: (i) Made in a contested case under the Maryland Administrative Procedure Act; and (ii) Not overturned on judicial review;
(13) Been found to have willfully or knowingly violated State Living Wage Laws as provided in the State Finance and Procurement Article, Title 18, Annotated Code of Maryland, if: (a) A court: (i) Made the finding; and (ii) Decision became final; or (b) The finding was: (i) Made in a contested case under the Maryland Administrative Procedure Act; and (ii) Not overturned on judicial review;
(14) Been found to have willfully or knowingly violated the Labor and Employment Article, Title 3, Subtitles 3, 4, or 5, or Title 5, Annotated Code of Maryland, if: (a) A court: (i) Made the finding; and (ii) Decision became final; or (b) The finding was: 55 RFP Template Version: 01/20/2017
(i) Made in a contested case under the Maryland Administrative Procedure Act; and (ii) Not overturned on judicial review; or
(15) Admitted in writing or under oath, during the course of an official investigation or other proceedings, acts or omissions that would constitute grounds for conviction or liability under any law or statute described in §§ B and C and subsections D(1)—(14) above, except as follows (indicate reasons why the affirmations cannot be given, and list any conviction, plea, or imposition of probation before judgment with the date, court, official or administrative body, the sentence or disposition, the name(s) of the person(s) involved and their current positions and responsibilities with the business, and the status of any debarment):
______
______
______
E. AFFIRMATION REGARDING DEBARMENT I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business, or any of its officers, directors, partners, controlling stockholders, or any of its employees directly involved in the business’s contracting activities, including obtaining or performing contracts with public bodies, has ever been suspended or debarred (including being issued a limited denial of participation) by any public entity, except as follows (list each debarment or suspension providing the dates of the suspension or debarment, the name of the public entity and the status of the proceedings, the name(s) of the person(s) involved and their current positions and responsibilities with the business, the grounds of the debarment or suspension, and the details of each person’s involvement in any activity that formed the grounds of the debarment or suspension).
______
______
______
F. AFFIRMATION REGARDING DEBARMENT OF RELATED ENTITIES I FURTHER AFFIRM THAT: (1) The business was not established and does not operate in a manner designed to evade the application of or defeat the purpose of debarment pursuant to Sections 16-101, et seq., of the State Finance and Procurement Article of the Annotated Code of Maryland; and
(2) The business is not a successor, assignee, subsidiary, or affiliate of a suspended or debarred business, except as follows (you must indicate the reasons why the affirmations cannot be given without qualification):
______
______
______
56 RFP Template Version: 01/20/2017 G. SUBCONTRACT AFFIRMATION I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business, has knowingly entered into a contract with a public body under which a person debarred or suspended under Title 16 of the State Finance and Procurement Article of the Annotated Code of Maryland will provide, directly or indirectly, supplies, services, architectural services, construction related services, leases of real property, or construction.
H. AFFIRMATION REGARDING COLLUSION I FURTHER AFFIRM THAT: Neither I, nor to the best of my knowledge, information, and belief, the above business has:
(1) Agreed, conspired, connived, or colluded to produce a deceptive show of competition in the compilation of the accompanying Proposal that is being submitted; or
(2) In any manner, directly or indirectly, entered into any agreement of any kind to fix the Proposal price of the Offeror or of any competitor, or otherwise taken any action in restraint of free competitive bidding in connection with the contract for which the accompanying Proposal is submitted.
I. CERTIFICATION OF TAX PAYMENT I FURTHER AFFIRM THAT: Except as validly contested, the business has paid, or has arranged for payment of, all taxes due the State of Maryland and has filed all required returns and reports with the Comptroller of the Treasury, State Department of Assessments and Taxation, and Department of Labor, Licensing, and Regulation, as applicable, and will have paid all withholding taxes due the State of Maryland prior to final settlement.
J. CONTINGENT FEES I FURTHER AFFIRM THAT: The business has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency working for the business, to solicit or secure the Contract, and that the business has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency, any fee or any other consideration contingent on the making of the Contract.
K. CERTIFICATION REGARDING INVESTMENTS IN IRAN (1) The undersigned certifies that, in accordance with State Finance and Procurement Article, §17-705, Annotated Code of Maryland:
(a) It is not identified on the list created by the Board of Public Works as a person engaging in investment activities in Iran as described in State Finance and Procurement Article, §17-702, Annotated Code of Maryland; and (b) It is not engaging in investment activities in Iran as described in State Finance and Procurement Article, §17-702, Annotated Code of Maryland.
2. The undersigned is unable to make the above certification regarding its investment activities in Iran due to the following activities: ______.
L. CONFLICT MINERALS ORIGINATED IN THE DEMOCRATIC REPUBLIC OF CONGO (FOR SUPPLIES AND SERVICES CONTRACTS) I FURTHER AFFIRM THAT: The business has complied with the provisions of State Finance and Procurement Article, §14-413, Annotated Code of Maryland governing proper disclosure of certain information regarding conflict minerals originating in the Democratic Republic of Congo or its neighboring countries as required by federal law. 57 RFP Template Version: 01/20/2017 M. I FURTHER AFFIRM THAT: Any claims of environmental attributes made relating to a product or service included in the Proposal are consistent with the Federal Trade Commission’s Guides for the Use of Environmental Marketing Claims as provided in 16 C.F.R. §260, that apply to claims about the environmental attributes of a product, package, or service in connection with the marketing, offering for sale, or sale of such item or service.
N. ACKNOWLEDGEMENT I ACKNOWLEDGE THAT this Affidavit is to be furnished to the Procurement Officer and may be distributed to units of: (1) the State of Maryland; (2) counties or other subdivisions of the State of Maryland; (3) other states; and (4) the federal government. I further acknowledge that this Affidavit is subject to applicable laws of the United States and the State of Maryland, both criminal and civil, and that nothing in this Affidavit or any contract resulting from the submission of this Proposal shall be construed to supersede, amend, modify or waive, on behalf of the State of Maryland, or any unit of the State of Maryland having jurisdiction, the exercise of any statutory right or remedy conferred by the Constitution and the laws of Maryland with respect to any misrepresentation made or any violation of the obligations, terms and covenants undertaken by the above business with respect to (1) this Affidavit, (2) the contract, and (3) other Affidavits comprising part of the contract.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: ______
By: ______(print name of Authorized Representative and Affiant)
______(signature of Authorized Representative and Affiant)
SUBMIT THIS AFFIDAVIT WITH PROPOSAL
58 RFP Template Version: 01/20/2017 ATTACHMENT D – DISADVANTAGED BUSINESS ENTERPRISE FORMS
Attachment D Forms start on the next page.
59 RFP Template Version: 01/20/2017
MDOT DBE FORM A FEDERALLY-FUNDED CONTRACTS CERTIFIED DBE UTILIZATION AND FAIR SOLICITATION AFFIDAVIT PAGE 1 OF 2
This affidavit must be included with the bid/ proposal. If the bidder/offeror fails to accurately complete and submit this affidavit as required, the bid shall be deemed not responsive or the proposal shall be deemed not susceptible of being selected for award.
In connection with the bid/proposal submitted in response to Solicitation No. XX1655182, I affirm the following:
1. DBE Participation (PLEASE CHECK ONLY ONE)
I have met the overall certified Disadvantaged Business Enterprise (DBE) participation goal of Five percent (5%). I agree that this percentage of the total dollar amount of the Contract for the DBE goal will be performed by certified DBE firms as set forth in the DBE Participation Schedule - Part 2 of the MDOT DBE Form B (Federally-Funded Contracts).
OR
I conclude that I am unable to achieve the DBE participation goal. I hereby request a waiver, in whole or in part, of the goal. Within 10 business days of receiving notice that our firm is the apparent awardee or as requested by the Procurement Officer, I will submit a written waiver request and all required documentation in accordance with COMAR 21.11.03.11. For a partial waiver request, I agree that certified DBE firms will be used to accomplish the percentages of the total dollar amount of the Contract as set forth in the DBE Participation Schedule - Part 2 of the MDOT DBE Form B (Federally-Funded Contracts).
2. Additional DBE Documentation
I understand that if I am notified that I am the apparent awardee or as requested by the Procurement Officer, I must submit the following documentation within 10 business days of receiving such notice: (a) Outreach Efforts Compliance Statement (MDOT DBE Form C - Federally-Funded Contracts ); (b) Subcontractor Project Participation Statement (MDOT DBE Form D - Federally-Funded Contracts); (c) DBE Waiver Request documentation per COMAR 21.11.03.11 (if waiver was requested); and (d) Any other documentation required by the Procurement Officer to ascertain bidder’s responsibility/ offeror’s susceptibility of being selected for award in connection with the certified DBE participation goal.
04-14-17
MDOT DBE FORM A FEDERALLY-FUNDED CONTRACTS CERTIFIED DBE UTILIZATION AND FAIR SOLICITATION AFFIDAVIT PAGE 2 OF 2
I acknowledge that if I fail to return each completed document (in 2 (a) through (d)) within the required time, the Procurement Officer may determine that I am not responsible and therefore not eligible for contract award or not susceptible of being selected for award.
3. Information Provided to DBE firms
In the solicitation of subcontract quotations or offers, DBE firms were provided not less than the same information and amount of time to respond as were non-DBE firms.
4. Products and Services Provided by DBE firms
I hereby affirm that the DBEs are only providing those products and services for which they are MDOT certified.
I solemnly affirm under the penalties of perjury that the information in this affidavit is true to the best of my knowledge, information and belief.
______Company Name Signature of Representative
______Address Printed Name and Title
______City, State and Zip Code Date
04-14-17
MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE
PART 1 – INSTRUCTIONS FOR DBE PARTICIPATION SCHEDULE
PARTS 2 AND 3 MUST BE INCLUDED WITH THE BID/PROPOSAL. IF THE BIDDER/OFFEROR FAILS TO ACCURATELY COMPLETE AND SUBMIT PART 2 WITH THE BID/PROPOSAL AS REQUIRED, THE BID SHALL BE DEEMED NOT RESPONSIVE OR THE PROPOSAL SHALL BE DEEMED NOT SUSCEPTIBLE OF BEING SELECTED FOR AWARD. PAGE 1 OF 4
*** STOP *** FORM INSTRUCTIONS PLEASE READ BEFORE COMPLETING THIS FORM
1. Please refer to the Maryland Department of Transportation (MDOT) DBE Directory at www.mdot.state.md.us to determine if a firm is certified for the appropriate North American Industry Classification System (“NAICS”) Code and the product/services description (specific product that a firm is certified to provide or specific areas of work that a firm is certified to perform). For more general information about NAICS, please visit www.naics.com. Only those specific products and/or services for which a firm is certified in the MDOT Directory can be used for purposes of achieving the DBE participation goal.
2. In order to be counted for purposes of achieving the DBE participation goal, the firm `must be certified for that specific NAICS (“DBE” for Federally-funded projects designation after NAICS Code). WARNING: If the firm’s NAICS Code is in graduated status, such services/products will not be counted for purposes of achieving the DBE participation goals. Graduated status is clearly identified in the MDOT Directory (such graduated codes are designated with the word graduated after the appropriate NAICS Code).
3. Examining the NAICS Code is the first step in determining whether a DBE firm is certified and eligible to receive DBE participation credit for the specific products/services to be supplied or performed under the contract. The second step is to determine whether a firm’s Products/Services Description in the DBE Directory includes the products to be supplied and/or services to be performed that are being used to achieve the DBE participation goal.
4. If you have any questions as to whether a firm is MDOT DBE certified, or if it is certified to perform specific services or provide specific products, please call MDOT’s Office of Minority Business Enterprise at 1-800-544-6056 or send an email to [email protected].
04-14-17 MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE PART 1 – INSTRUCTIONS FOR DBE PARTICIPATION SCHEDULE PAGE 2 OF 4
5. The Contractor’s subcontractors are considered second-tier subcontractors. Third-tier contracting used to meet a DBE goal is to be considered the exception and not the rule. The following two conditions must be met before MDOT, its Modal Administrations and the Maryland Transportation Authority may approve a third-tier contracting agreement: (a) the bidder/offeror must request in writing approval of each third-tier contract arrangement, and (b) the request must contain specifics as to why a third-tier contracting arrangement should be approved. These documents must be submitted with the bid/proposal in Part 2 of this DBE Participation Schedule.
6. For each DBE firm that is being used as supplier/wholesaler/regular dealer/broker/manufacturer, please follow these instructions for calculating the amount of the subcontract for purposes of achieving the DBE participation goal:
A. Is the firm certified as a broker of the products/supplies? If the answer is YES, please continue to Item C. If the answer is NO, please continue to Item B.
B. Is the firm certified as a supplier, wholesaler, regular dealer, or manufacturer of such products/supplies? If the answer is YES, continue to Item D. If the answer is NO, continue to Item C only if the DBE firm is certified to perform trucking/hauling services under NAICS Codes 484110, 484121, 484122, 484210, 484220 and 484230. If the answer is NO and the firm is not certified under these NAICS Codes, then no DBE participation credit will be given for the supply of these products.
C. For purposes of achieving the DBE participation goal, you may count only the amount of any reasonable fee that the DBE firm will receive for the provision of such products/supplies - not the total subcontract amount or the value (or a percentage thereof) of such products and/or supplies. For Column 3 of the DBE Participation Schedule, please divide the amount of any reasonable fee that the DBE firm will receive for the provision of such products/services by the total Contract value and insert the percentage in Line 3.1.
D. Is the firm certified as a manufacturer (refer to the firm’s NAICS Code and specific descrition of products/services) of the products/supplies to be provided? If the answer is NO please continue to Item E If the answer is YES, for purposes of achieving the DBE participation goal, you may count the total amount of the subcontract. For Column 3 of the DBE Participation Schedule, please divide the total amount of the subcontract by the total Contract value and insert the percentage in Line 3.1.
04-14-17 MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE PART 1 – INSTRUCTIONS FOR DBE PARTICIPATION SCHEDULE PAGE 3 OF 4
E. Is the firm certified as a supplier, wholesaler and/or regular dealer? If the answer is YES and the DBE firm is furnishing and installing the materials and is certified to perform these services, please divide the total subcontract amount (including full value of supplies) by the total Contract value and insert the percentage in Line 3.1. If the answer is YES and the DBE firm is only being used as a supplier, wholesaler and/or regular dealer or is not certified to install the supplies/materials, for purposes of achieving the DBE participation goal, you may only count sixty percent (60%) of the value of the subcontract for these supplies/products (60% Rule). To apply the 60% Rule, first divide the amount of the subcontract for these supplies/products only (not installation) by the total Contract value. Then, multiply the result by sixty percent (60%) and insert the percentage in Line 3.2.
7. For each DBE firm that is not being used as a supplier/wholesaler/regular dealer/broker/manufacturer, to calculate the amount of the subcontract for purposes of achieving the DBE participation goal, divide the total amount of the subcontract by the total Contract value and insert the percentage in Line 3.1.
Example: $ 2,500 (Total Subcontract Amount) $10,000 (Total Contract Value) x 100 25%.
8. Please note that for USDOT-funded projects, a DBE prime may count towards its DBE participation goal work performed by its own forces. Include information about the DBE prime in Part 2.
9. WARNING: The percentage of DBE participation, computed using the dollar amounts in Column 3 for all of the DBE firms listed in Part 2, MUST at least equal the DBE participation goal as set forth in MDOT DBE Form A – Federally-Funded Contracts for this solicitation. If the bidder/offeror is unable to achieve the DBE participation goals, then the bidder/offeror must request a waiver in Form A or the bid will be deemed not responsive, or the proposal not susceptible of being selected for award. You may wish to use the Goal Worksheet shown below to assist you in calculating the percentage and confirming that you have met the applicable DBE participation goal.
04-14-17 MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE PART 1 – INSTRUCTIONS FOR DBE PARTICIPATION SCHEDULE PAGE 4 OF 4
GOAL WORKSHEET Total DBE Firm Participation (Add percentages in Column 3 for all DBE firms listed in DBE Participation Schedule) (A) ______%
The percentage amount in Box A above should be equal to the percentage amount in Box E below.
Add Countable Subcontract Amounts (see 6 through 8 of Instructions) for all DBE firms listed in DBE (B) $______Participation Schedule, and insert in Box B
Insert the Total Contract Amount in Box C (C) $______
Divide Box B by Box C and Insert in Box D (D) =______
Multiply Box D by 100 and insert in Box E (E) =______%
04-14-17
MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE PART 2 – DBE PARTICIPATION SCHEDULE
PARTS 2 AND 3 MUST BE INCLUDED WITH THE BID/PROPOSAL. IF THE BIDDER/OFFEROR FAILS TO ACCURATELY COMPLETE AND SUBMIT PART 2 WITH THE BID/PROPOSAL AS REQUIRED, THE BID SHALL BE DEEMED NOT RESPONSIVE OR THE PROPOSAL SHALL BE DEEMED NOT SUSCEPTIBLE OF BEING SELECTED FOR AWARD. PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
LIST INFORMATION FOR EACH CERTIFIED DBE SUBCONTRACTOR YOU AGREE TO USE TO ACHIEVE THE DBE PARTICIPATION GOAL.
COLUMN 1 COLUMN 2 COLUMN 3 Unless the bidder/offeror requested a waiver in MDOT DBE Form A – Federally Funded Contracts for this solicitation, the cumulative DBE participation for all DBE firms listed herein must equal at least the DBE participation goal set forth in Form A.
NAME OF DBE CERTIFICATION NO. FOR PURPOSES OF ACHIEVING THE DBE PARTICIPATION GOAL, refer to SUBCONTRACTOR sections 6, 7 and 8 in Part 1 - Instructions. State the percentage amount of the AND TIER products/services in Line 3.1, except for those products or services where the DBE firm is being used as a wholesaler, supplier, or regular dealer. For items of work where the DBE firm is being used as a supplier, wholesaler and/or regular dealer, complete Line 3.2 using the 60% Rule.
Certification Number: 3.1. TOTAL PERCENTAGE TO BE PAID TO THE SUBCONTRACTOR (STATE THIS PERCENTAGE AS A PERCENTAGE OF THE TOTAL CONTRACT VALUE- EXCLUDING PRODUCTS/SERVICES FROM SUPPLIERS, WHOLESALERS OR REGULAR DEALERS).
Please check if DBE firm is ______% (Percentage for purposes of calculating achievement of DBE a third-tier contractor (if Participation goal) applicable). Please submit written 3.2 TOTAL PERCENTAGE TO BE PAID TO THE documents in accordance with SUBCONTRACTOR FOR ITEMS OF WORK WHERE THE DBE Section 5 of Part 1 - FIRM IS BEING USED AS A SUPPLIER, WHOLESALER AND/OR Instructions REGULAR DEALER) (STATE THE PERCENTAGE AS A PERCENTAGE OF THE TOTAL CONTRACT VALUE AND THEN APPLY THE 60% RULE PER SECTION 6(E) IN PART 1 - INSTRUCTIONS).
______% Total percentage of Supplies/Products
x ______60% (60% Rule)
______% (Percentage for purposes of calculating achievement of DBE Participation goal) Please check if Continuation Sheets are attached.
04-14-17
MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE CONTINUATION SHEET
PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
LIST INFORMATION FOR EACH CERTIFIED DBE SUBCONTRACTOR YOU AGREE TO USE TO ACHIEVE THE DBE PARTICIPATION GOAL.
COLUMN 1 COLUMN 2 COLUMN 3 Unless the bidder/offeror requested a waiver in MDOT DBE Form A – Federally Funded Contracts for this solicitation, the cumulative DBE participation for all DBE firms listed herein must equal at least the DBE participation goal set forth in Form A.
NAME OF DBE CERTIFICATION NO. FOR PURPOSES OF ACHIEVING THE DBE PARTICIPATION GOAL, SUBCONTRACTOR refer to sections 6, 7 and 8 in Part 1 - Instructions. State the percentage amount AND TIER of the products/services in Line 3.1, except for those products or services where the DBE firm is being used as a wholesaler, supplier, or regular dealer. For items of work where the DBE firm is being used as a supplier, wholesaler and/or regular dealer, complete Line 3.2 using the 60% Rule.
Certification Number: 3.1. TOTAL PERCENTAGE TO BE PAID TO THE SUBCONTRACTOR (STATE THIS PERCENTAGE AS A PERCENTAGE OF THE TOTAL CONTRACT VALUE- EXCLUDING PRODUCTS/SERVICES FROM SUPPLIERS, WHOLESALERS OR REGULAR DEALERS).
______% (Percentage for purposes of calculating achievement of DBE Participation goal) Please check if DBE firm is a third-tier 3.2 TOTAL PERCENTAGE TO BE PAID TO THE SUBCONTRACTOR FOR ITEMS OF WORK WHERE THE DBE contractor (if applicable). FIRM IS BEING USED AS A SUPPLIER, WHOLESALER AND/OR REGULAR DEALER) (STATE THE PERCENTAGE AS A Please submit written PERCENTAGE OF THE TOTAL CONTRACT VALUE AND THEN documents in accordance APPLY THE 60% RULE PER SECTION 6(E) IN PART 1 - INSTRUCTIONS). with Section 5 of Part 1 - Instructions ______% Total percentage of Supplies/Products
x ______60% (60% Rule)
______% (Percentage for purposes of calculating achievement of DBE Participation goal)
Please check if Continuation Sheets are attached.
04-14-17
MDOT DBE FORM B FEDERALLY-FUNDED CONTRACTS DBE PARTICIPATION SCHEDULE
PART 3 – CERTIFICATION FOR DBE PARTICIPATION SCHEDULE
PARTS 2 AND 3 MUST BE INCLUDED WITH THE BID/PROPOSAL AS DIRECTED IN THE SOLICITATION.
I hereby affirm that I have reviewed the Products and Services Description (specific product that a firm is certified to provide or areas of work that a firm is certified to perform) set forth in the MDOT DBE Directory for each of the DBE firms listed in Part 2 of this DBE Form B for purposes of achieving the DBE participation goal that was identified in the DBE Form A that I submitted with this solicitation, and that the DBE firms listed are only performing those products/services/areas of work for which they are certified. I also hereby affirm that I have read and understand the form instructions set forth in Part 1 of this DBE Form B.
The undersigned Prime Contractor hereby certifies and agrees that it has fully complied with the State Minority Business Enterprise law, State Finance and Procurement Article §14-308(a)(2), Annotated Code of Maryland which provides that, except as otherwise provided by law, a contractor may not identify a certified minority business enterprise in a bid or proposal and:
(1) fail to request, receive, or otherwise obtain authorization from the certified minority business enterprise to identify the certified minority business enterprise in its bid or proposal;
(2) fail to notify the certified minority business enterprise before execution of the contract of its inclusion of the bid or proposal;
(3) fail to use the certified minority business enterprise in the performance of the contract; or
(4) pay the certified minority business enterprise solely for the use of its name in the bid or proposal.
I solemnly affirm under the penalties of perjury that the contents of Parts 2 and 3 of MDOT DBE Form B are true to the best of my knowledge, information and belief.
______Company Name Signature of Representative
______Address Printed Name and Title
______City, State and Zip Code Date
04-14-17
MDOT MBE/DBE FORM E GOOD FAITH EFFORTS GUIDANCE AND DOCUMENTATION
PART 1 – GUIDANCE FOR DEMONSTRATING GOOD FAITH EFFORTS TO MEET MBE/DBE PARTICIPATION GOALS
In order to show that it has made good faith efforts to meet the Minority Business Enterprise (MBE)/Disadvantaged Business Enterprise (DBE) participation goal (including any MBE subgoals) on a contract, the bidder/offeror must either (1) meet the MBE/DBE Goal(s) and document its commitments for participation of MBE/DBE Firms, or (2) when it does not meet the MBE/DBE Goal(s), document its Good Faith Efforts to meet the goal(s).
I. Definitions
MBE/DBE Goal(s) – “MBE/DBE Goal(s)” refers to the MBE participation goal and MBE participation subgoal(s) on a State-funded procurement and the DBE participation goal on a federally-funded procurement.
Good Faith Efforts – The “Good Faith Efforts” requirement means that when requesting a waiver, the bidder/offeror must demonstrate that it took all necessary and reasonable steps to achieve the MBE/DBE Goal(s), which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient MBE/DBE participation, even if those steps were not fully successful. Whether a bidder/offeror that requests a waiver made adequate good faith efforts will be determined by considering the quality, quantity, and intensity of the different kinds of efforts that the bidder/offeror has made. The efforts employed by the bidder/offeror should be those that one could reasonably expect a bidder/offeror to take if the bidder/offeror were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. The determination concerning the sufficiency of the bidder's/offeror’s good faith efforts is a judgment call; meeting quantitative formulas is not required.
Identified Firms – “Identified Firms” means a list of the DBEs identified by the procuring agency during the goal setting process and listed in the federally-funded procurement as available to perform the Identified Items of Work. It also may include additional DBEs identified by the bidder/offeror as available to perform the Identified Items of Work, such as DBEs certified or granted an expansion of services after the procurement was issued. If the procurement does not include a list of Identified Firms or is a State-funded procurement, this term refers to all of the MBE Firms (if State-funded) or DBE Firms (if federally-funded) the bidder/offeror identified as available to perform the Identified Items of Work and should include all appropriately certified firms that are reasonably identifiable.
Identified Items of Work – “Identified Items of Work” means the bid items identified by the procuring agency during the goal setting process and listed in the procurement as possible items of work for performance by MBE/DBE Firms. It also may include additional portions of items of 04-14-17 work the bidder/offeror identified for performance by MBE/DBE Firms to increase the likelihood that the MBE/DBE Goal(s) will be achieved. If the procurement does not include a list of Identified Items of Work, this term refers to all of the items of work the bidder/offeror identified as possible items of work for performance by MBE/DBE Firms and should include all reasonably identifiable work opportunities.
MBE/DBE Firms – For State-funded contracts, “MBE/DBE Firms” refers to certified MBE Firms. Certified MBE Firms can participate in the State’s MBE Program. For federally-funded contracts, “MBE/DBE Firms” refers to certified DBE Firms. Certified DBE Firms can participate in the federal DBE Program.
04-14-17 II. Types of Actions MDOT will Consider
The bidder/offeror is responsible for making relevant portions of the work available to MBE/DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available MBE/DBE subcontractors and suppliers, so as to facilitate MBE/DBE participation. The following is a list of types of actions MDOT will consider as part of the bidder's/offeror’s Good Faith Efforts when the bidder/offeror fails to meet the MBE/DBE Goal(s). This list is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases.
A. Identify Bid Items as Work for MBE/DBE Firms
1. Identified Items of Work in Procurements
(a) Certain procurements will include a list of bid items identified during the goal setting process as possible work for performance by MBE/DBE Firms. If the procurement provides a list of Identified Items of Work, the bidder/offeror shall make all reasonable efforts to solicit quotes from MBE Firms or DBE Firms, whichever is appropriate, to perform that work.
(b) Bidders/Offerors may, and are encouraged to, select additional items of work to be performed by MBE/DBE Firms to increase the likelihood that the MBEDBE Goal(s) will be achieved.
2. Identified Items of Work by Bidders/Offerors
(a) When the procurement does not include a list of Identified Items of Work, bidders/offerors should reasonably identify sufficient items of work to be performed by MBE/DBE Firms.
(b) Where appropriate, bidders/offerors should break out contract work items into economically feasible units to facilitate MBE/DBE participation, rather than perform these work items with their own forces. The ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder/offeror of the responsibility to make Good Faith Efforts.
B. Identify MBE Firms or DBE Firms to Solicit
1. DBE Firms Identified in Procurements
(a) Certain procurements will include a list of the DBE Firms identified during the goal setting process as available to perform the items of work. If the procurement provides a list of Identified DBE Firms, the bidder/offeror shall make all reasonable efforts to solicit those DBE firms.
04-14-17 (b) Bidders/offerors may, and are encouraged to, search the MBE/DBE Directory to identify additional DBEs who may be available to perform the items of work, such as DBEs certified or granted an expansion of services after the solicitation was issued.
2. MBE/DBE Firms Identified by Bidders/Offerors
(a) When the procurement does not include a list of Identified MBE/DBE Firms, bidders/offerors should reasonably identify the MBE Firms or DBE Firms, whichever is appropriate, that are available to perform the Identified Items of Work.
(b) Any MBE/DBE Firms identified as available by the bidder/offeror should be certified in the appropriate program (MBE for State-funded procurements or DBE for federally-funded procurements)
(c) Any MBE/DBE Firms identified as available by the bidder/offeror should be certified to perform the Identified Items of Work.
C. Solicit MBE/DBEs
1. Solicit all Identified Firms for all Identified Items of Work by providing written notice. The bidder/offeror should:
(a) provide the written solicitation at least 10 days prior to bid opening to allow sufficient time for the MBE/DBE Firms to respond;
(b) send the written solicitation by first-class mail, facsimile, or email using contact information in the MBE/DBE Directory, unless the bidder/offeror has a valid basis for using different contact information; and
(c) provide adequate information about the plans, specifications, anticipated time schedule for portions of the work to be performed by the MBE/DBE, and other requirements of the contract to assist MBE/DBE Firms in responding. (This information may be provided by including hard copies in the written solicitation or by electronic means as described in C.3 below.)
2. “All” Identified Firms includes the DBEs listed in the procurement and any MBE/DBE Firms you identify as potentially available to perform the Identified Items of Work, but it does not include MBE/DBE Firms who are no longer certified to perform the work as of the date the bidder/offeror provides written solicitations. 3. “Electronic Means” includes, for example, information provided via a website or file transfer protocol (FTP) site containing the plans, specifications, and other requirements of the contract. If an interested MBE/DBE cannot access the information provided by electronic means, the bidder/offeror must make the information available in a manner that is accessible by the interested MBE/DBE.
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4. Follow up on initial written solicitations by contacting DBEs to determine if they are interested. The follow up contact may be made:
(a) by telephone using the contact information in the MBE/DBE Directory, unless the bidder/offeror has a valid basis for using different contact information; or
(b) in writing via a method that differs from the method used for the initial written solicitation.
5. In addition to the written solicitation set forth in C.1 and the follow up required in C.4, use all other reasonable and available means to solicit the interest of MBE/DBE Firms certified to perform the work of the contract. Examples of other means include:
(a) attending any pre-bid meetings at which MBE/DBE Firms could be informed of contracting and subcontracting opportunities;
(b) if recommended by the procurement, advertising with or effectively using the services of at least two minority focused entities or media, including trade associations, minority/women community organizations, minority/women contractors' groups, and local, state, and federal minority/women business assistance offices listed on the MDOT Office of Minority Business Enterprise website; and
(c) effectively using the services of other organizations, as allowed on a case-by-case basis and authorized in the procurement, to provide assistance in the recruitment and placement of MBE/DBE Firms.
D. Negotiate With Interested MBE/DBE Firms
Bidders/Offerors must negotiate in good faith with interested MBE/DBE Firms.
1. Evidence of negotiation includes, without limitation, the following:
(a) the names, addresses, and telephone numbers of MBE/DBE Firms that were considered;
(b) a description of the information provided regarding the plans and specifications for the work selected for subcontracting and the means used to provide that information; and (c) evidence as to why additional agreements could not be reached for MBE/DBE Firms to perform the work.
2. A bidder/offeror using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration.
3. The fact that there may be some additional costs involved in finding and using MBE/DBE Firms is not in itself sufficient reason for a bidder's/offeror’s failure to meet the contract DBE 04-14-17
goal, as long as such costs are reasonable. Factors to take into consideration when determining whether a MBE/DBE Firm’s quote is excessive or unreasonable include, without limitation, the following:
(a) the dollar difference between the MBE/DBE subcontractor’s quote and the average of the other subcontractors’ quotes received by the bidder/offeror;
(b) the percentage difference between the MBE/DBE subcontractor’s quote and the average of the other subcontractors’ quotes received by the bidder/offeror;
(c) the percentage that the DBE subcontractor’s quote represents of the overall contract amount;
(d) the number of MBE/DBE firms that the bidder/offeror solicited for that portion of the work;
(e) whether the work described in the MBE/DBE and Non-MBE/DBE subcontractor quotes (or portions thereof) submitted for review is the same or comparable; and
(f) the number of quotes received by the bidder/offeror for that portion of the work.
4. The above factors are not intended to be mandatory, exclusive, or exhaustive, and other evidence of an excessive or unreasonable price may be relevant.
5. The bidder/offeror may not use its price for self-performing work as a basis for rejecting a MBE/DBE Firm’s quote as excessive or unreasonable.
6. The “average of the other subcontractors’ quotes received by the” bidder/offeror refers to the average of the quotes received from all subcontractors, except that there should be quotes from at least three subcontractors, and there must be at least one quote from a MBE/DBE and one quote from a Non-MBE/DBE.
7. A bidder/offeror shall not reject a MBE/DBE Firm as unqualified without sound reasons based on a thorough investigation of the firm’s capabilities. For each certified MBE/DBE that is rejected as unqualified or that placed a subcontract quotation or offer that the bidder/offeror concludes is not acceptable, the bidder/offeror must provide a written detailed statement listing the reasons for this conclusion. The bidder/offeror also must document the steps taken to verify the capabilities of the MBE/DBE and Non-MBE/DBE Firms quoting similar work.
(a) The factors to take into consideration when assessing the capabilities of a MBE/DBE Firm, include, but are not limited to the following: financial capability, physical capacity to perform, available personnel and equipment, existing workload, experience performing the type of work, conduct and performance in previous contracts, and ability to meet reasonable contract requirements. 04-14-17
(b) The MBE/DBE Firm’s standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the efforts to meet the project goal.
E. Assisting Interested MBE/DBE Firms
When appropriate under the circumstances, the decision-maker will consider whether the bidder/offeror:
1. made reasonable efforts to assist interested MBE/DBE Firms in obtaining the bonding, lines of credit, or insurance required by MDOT or the bidder/offeror; and
2. made reasonable efforts to assist interested MBE/DBE Firms in obtaining necessary equipment, supplies, materials, or related assistance or services.
III. Other Considerations
In making a determination of Good Faith Efforts the decision-maker may consider engineering estimates, catalogue prices, general market availability and availability of certified MBE/DBE Firms in the area in which the work is to be performed, other bids or offers and subcontract bids or offers substantiating significant variances between certified MBE/DBE and Non-MBE/DBE costs of participation, and their impact on the overall cost of the contract to the State and any other relevant factors.
The decision-maker may take into account whether a bidder/offeror decided to self-perform subcontract work with its own forces, especially where the self-performed work is Identified Items of Work in the procurement. The decision-maker also may take into account the performance of other bidders/offerors in meeting the contract. For example, when the apparent successful bidder/offeror fails to meet the contract goal, but others meet it, this reasonably raises the question of whether, with additional reasonable efforts, the apparent successful bidder/offeror could have met the goal. If the apparent successful bidder/offeror fails to meet the goal, but meets or exceeds the average MBE/DBE participation obtained by other bidders/offerors, this, when viewed in conjunction with other factors, could be evidence of the apparent successful bidder/offeror having made Good Faith Efforts.
IV. Documenting Good Faith Efforts
At a minimum, a bidder/offeror seeking a waiver of the MBE/DBE Goal(s) or a portion thereof must provide written documentation of its Good Faith Efforts, in accordance with COMAR 21.11.03.11, within 10 business days after receiving notice that it is the apparent awardee. The written documentation shall include the following:
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A. Items of Work (Complete Good Faith Efforts Documentation Form E, Part 2)
A detailed statement of the efforts made to select portions of the work proposed to be performed by certified MBE/DBE Firms in order to increase the likelihood of achieving the stated MBE/DBE Goal(s).
B. Outreach/Solicitation/Negotiation
1. The record of the bidder’s/offeror’s compliance with the outreach efforts prescribed by COMAR 21.11.03.09C(2)(a) through (e) and 49 C.F.R. Part 26, Appendix A. (Complete Outreach Efforts Compliance Statement)
2. A detailed statement of the efforts made to contact and negotiate with MBE/DBE Firms including:
(a) the names, addresses, and telephone numbers of the MBE/DBE Firms who were contacted, with the dates and manner of contacts (letter, fax, email, telephone, etc.) (Complete Good Faith Efforts Form E, Part 3, and submit letters, fax cover sheets, emails, etc. documenting solicitations); and
(b) a description of the information provided to MBE/DBE Firms regarding the plans, specifications, and anticipated time schedule for portions of the work to be performed and the means used to provide that information.
C. Rejected MBE/DBE Firms (Complete Good Faith Efforts Form E, Part 4)
1. For each MBE/DBE Firm that the bidder/offeror concludes is not acceptable or qualified, a detailed statement of the reasons for the bidder's/offeror’s conclusion, including the steps taken to verify the capabilities of the MBE/DBE and Non-MBE/DBE Firms quoting similar work.
2. For each certified MBE/DBE Firm that the bidder/offeror concludes has provided an excessive or unreasonable price, a detailed statement of the reasons for the bidder's/offeror’s conclusion, including the quotes received from all MBE/DBE and Non-MBE/DBE firms bidding on the same or comparable work. (Include copies of all quotes received.)
3. A list of MBE/DBE Firms contacted but found to be unavailable. This list should be accompanied by a Minority Contractor Unavailability Certificate signed by the MBE/DBE contractor or a statement from the bidder/offeror that the MBE/DBE contractor refused to sign the Minority Contractor Unavailability Certificate.
D. Other Documentation
1. Submit any other documentation requested by the Procurement Officer to ascertain the bidder’s/offeror’s Good Faith Efforts. 04-14-17 2. Submit any other documentation the bidder/offeror believes will help the Procurement Officer ascertain its Good Faith Efforts.
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MDOT MBE/DBE FORM E GOOD FAITH EFFORTS GUIDANCE AND DOCUMENTATION
PART 2 – CERTIFICATION REGARDING GOOD FAITH EFFORTS DOCUMENTATION
PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
PARTS 3, 4, AND 5 MUST BE INCLUDED WITH THIS CERTIFICATE ALONG WITH ALL DOCUMENTS SUPPORTING YOUR WAIVER REQUEST.
I hereby request a waiver of (1) the Minority Business Enterprise (MBE) participation goal and/or subgoal(s), (2) the Disadvantaged Business Enterprise (DBE) participation goal, or (3) a portion of the pertinent MBE/DBE participation goal and/or MBE subgoal(s) for this procurement.1 I affirm that I have reviewed the Good Faith Efforts Guidance MBE/DBE Form E. I further affirm under penalties of perjury that the contents of Parts 3, 4, and 5 of MDOT MBE/DBE Form E are true to the best of my knowledge, information and belief.
______Company Name Signature of Representative
______Address Printed Name and Title
______City, State and Zip Code Date
1 MBE participation goals and subgoals apply to State-funded procurements. DBE participation goals apply to federally-funded procurements. Federally-funded contracts do not have subgoals.
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MDOT MBE/DBE FORM E GOOD FAITH EFFORTS GUIDANCE AND DOCUMENTATION PART 3 – IDENTIFIED ITEMS OF WORK BIDDER/OFFEROR MADE AVAILABLE TO MBE/DBE FIRMS
PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
Identify those items of work that the bidder/offeror made available to MBE/DBE Firms. This includes, where appropriate, those items the bidder/offeror identified and determined to subdivide into economically feasible units to facilitate the MBE/DBE participation. For each item listed, show the anticipated percentage of the total contract amount. It is the bidder’s/offeror’s responsibility to demonstrate that sufficient work to meet the goal was made available to MBE/DBE Firms, and the total percentage of the items of work identified for MBE/DBE participation equals or exceeds the percentage MBE/DBE goal set for the procurement. Note: If the procurement includes a list of bid items identified during the goal setting process as possible items of work for performance by MBE/DBE Firms, the bidder/offeror should make all of those items of work available to MBE/DBE Firms or explain why that item was not made available. If the bidder/offeror selects additional items of work to make available to MBE/DBE Firms, those additional items should also be included below.
Does bidder/offeror Was this work made available Identified Items Was this work listed in the normally to MBE/DBE Firms? of Work procurement? self-perform this If no, explain why? work?
□ Yes □ No □ Yes □ No □ Yes □ No
□ Yes □ No □ Yes □ No □ Yes □ No
□ Yes □ No □ Yes □ No □ Yes □ No
□ Yes □ No □ Yes □ No □ Yes □ No
□ Yes □ No □ Yes □ No □ Yes □ No
□ Yes □ No □ Yes □ No □ Yes □ No
Please check if Additional Sheets are attached.
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MDOT MBE/DBE FORM E GOOD FAITH EFFORTS GUIDANCE AND DOCUMENTATION
PART 4 – IDENTIFIED MBE/DBE FIRMS AND RECORD OF SOLICITATIONS
PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
Identify the MBE/DBE Firms solicited to provide quotes for the Identified Items of Work made available for MBE/DBE participation. Include the name of the MBE/DBE Firm solicited, items of work for which bids/quotes were solicited, date and manner of initial and follow-up solicitations, whether the MBE/DBE provided a quote, and whether the MBE/DBE is being used to meet the MBE/DBE participation goal. MBE/DBE Firms used to meet the participation goal must be included on the MBE/DBE Participation Schedule, Form B. Note: If the procurement includes a list of the MBE/DBE Firms identified during the goal setting process as potentially available to perform the items of work, the bidder/offeror should solicit all of those MBE/DBE Firms or explain why a specific MBE/DBE was not solicited. If the bidder/offeror identifies additional MBE/DBE Firms who may be available to perform Identified Items of Work, those additional MBE/DBE Firms should also be included below. Copies of all written solicitations and documentation of follow-up calls to MBE/DBE Firms must be attached to this form. If the bidder/offeror used a Non-MBE/DBE or is self-performing the identified items of work, Part 4 must be completed.
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Name of Describe Item Initial Follow-up Details for Quote Quote Reason Identified of Work Solicitation Solicitation Follow-up Rec’d Used Quote MBE/DBE Firm & Solicited Date & Date & Calls Rejected MBE Classification Method Method Firm Name: Date: Date: Time of □ Yes □ Yes □ Used Other Call: □ □ MBE/DBE □ Mail □ Phone No No □ Used Non- MBE Classification □ Facsimile □ Mail Spoke With: MBE/DBE (Check only if □ Email □ Facsimile requesting waiver of □ Email □ Left □ Self- MBE subgoal.) Message performing
African American- Owned Hispanic American- Owned Asian American- Owned Women-Owned Other MBE Classification ______
Firm Name: Date: Date: Time of □ Yes □ Yes □ Used Other Call: □ □ MBE/DBE □ Mail □ Phone No No □ Used Non- MBE Classification □ Facsimile □ Mail Spoke With: MBE/DBE (Check only if □ Email □ Facsimile requesting waiver of □ Email □ Left □ Self- MBE subgoal.) Message performing
African American- Owned Hispanic American- Owned Asian American- Owned Women-Owned Other MBE Classification ______
Please check if Additional Sheets are attached.
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MDOT MBE/DBE FORM E GOOD FAITH EFFORTS GUIDANCE AND DOCUMENTATION
PART 5 – ADDITIONAL INFORMATION REGARDING REJECTED MBE/DBE QUOTES
PAGE __ OF ___
Prime Contractor Project Description Solicitation Number
This form must be completed if Part 3 indicates that a MBE/DBE quote was rejected because the bidder/offeror is using a Non-MBE/DBE or is self-performing the Identified Items of Work. Provide the Identified Items Work, indicate whether the work will be self-performed or performed by a Non-MBE/DBE, and if applicable, state the name of the Non-MBE/DBE. Also include the names of all MBE/DBE and Non-MBE/DBE Firms that provided a quote and the amount of each quote.
Describe Self-performing or Amount Name of Other Amount Indicate Reason Why Identified Items of Using Non- of Firms who Quoted MBE/DBE Quote Rejected Work Not Being MBE/DBE Non- Provided Quotes & & Briefly Explain Performed by (Provide name) MBE/DB Whether MBE/DBE E Quote MBE/DBE or Non- (Include MBE/DBE spec/section number from bid) □ Self-performing □ Price $______$______□ Capabilities □ Using Non- ______□ Other MBE/DBE __ □ MBE/DBE □ Non-MBE/DBE ______□ Self-performing □ Price $______$______□ Capabilities □ Using Non- ______□ Other MBE/DBE __ □ MBE/DBE □ Non- MBE/DBE ______□ Self-performing □ Price $______$______□ Capabilities □ Using Non- ______□ Other MBE/DBE __ □ MBE/DBE □ Non- MBE/DBE ______
Please check if Additional Sheets are attached.
04-14-17 INFORMATION REQUIRED TO BE SUBMITTED FOR FEDERALLY ASSISTED CONTRACTS: (a) Each bidder shall provide the following information:
NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 >$10,000,000
(b) Each bidder shall provide the following information for each firm quoting or considered as subcontractors and/or suppliers:
NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 > $10,000,000
NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 > $10,000,000
04-14-17 NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 > $10,000,000
NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 > $10,000,000
NAME OF FIRM:
Street and/or P.O. Box
City State Zip Code
DBE Non-DBE Age of the firm years Annual gross receipts per last calendar year <$500,000 $500,000-1,000,000 $1,000,000-3,000,000 $3,000,000-5,000,000 $5,000,000-10,000,000 > $10,000,000
Submit additional copies of this page as page 43A of 45, 43B of 45, etc. as necessary, and place them as the last pages in the Invitation for Bids. Place an “X” for “NO” on the last copy. Any additional Copies: NO YES
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ATTACHMENT E – VETERAN-OWNED SMALL BUSINESS ENTERPRISE
This solicitation does not include a Veteran-Owned Small Business Enterprise goal.
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ATTACHMENT F – LIVING WAGE REQUIREMENTS FOR SERVICE CONTRACTS
Living Wage Requirements for Service Contracts
A. This contract is subject to the Living Wage requirements under Md. Code Ann., State Finance and Procurement Article, Title 18, and the regulations proposed by the Commissioner of Labor and Industry (Commissioner). The Living Wage generally applies to a Contractor or Subcontractor who performs work on a State contract for services that is valued at $100,000 or more. An employee is subject to the Living Wage if he/she is at least 18 years old or will turn 18 during the duration of the contract; works at least 13 consecutive weeks on the State Contract and spends at least one-half of the employee’s time during any work week on the State Contract.
B. The Living Wage Law does not apply to:
(1) A Contractor who: (a) Has a State contract for services valued at less than $100,000, or (b) Employs 10 or fewer employees and has a State contract for services valued at less than $500,000.
(2) A Subcontractor who: (a) Performs work on a State contract for services valued at less than $100,000, (b) Employs 10 or fewer employees and performs work on a State contract for services valued at less than $500,000, or (c) Performs work for a Contractor not covered by the Living Wage Law as defined in B(1)(b) above, or B(3) or C below.
(3) Service contracts for the following: (a) Services with a Public Service Company; (b) Services with a nonprofit organization; (c) Services with an officer or other entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement (“Unit”); or (d) Services between a Unit and a County or Baltimore City.
C. If the Unit responsible for the State contract for services determines that application of the Living Wage would conflict with any applicable federal program, the Living Wage does not apply to the contract or program.
D. A Contractor must not split or subdivide a State contract for services, pay an employee through a third party, or treat an employee as an independent Contractor or assign work to employees to avoid the imposition of any of the requirements of Md. Code Ann., State Finance and Procurement Article, Title 18.
E. Each Contractor/Subcontractor, subject to the Living Wage Law, shall post in a prominent and easily accessible place at the work site(s) of covered employees a notice of the Living Wage Rates, employee rights under the law, and the name, address, and telephone number of the Commissioner.
F. The Commissioner shall adjust the wage rates by the annual average increase or decrease, if any, in the Consumer Price Index for all urban consumers for the Washington/Baltimore metropolitan area, 85 RFP Template Version: 01/20/2017
or any successor index, for the previous calendar year, not later than 90 days after the start of each fiscal year. The Commissioner shall publish any adjustments to the wage rates on the Division of Labor and Industry’s website. An employer subject to the Living Wage Law must comply with the rate requirements during the initial term of the contract and all subsequent renewal periods, including any increases in the wage rate, required by the Commissioner, automatically upon the effective date of the revised wage rate.
G. A Contractor/Subcontractor who reduces the wages paid to an employee based on the employer’s share of the health insurance premium, as provided in Md. Code Ann., State Finance and Procurement Article, §18-103(c), shall not lower an employee’s wage rate below the minimum wage as set in Md. Code Ann., Labor and Employment Article, §3-413. A Contractor/Subcontractor who reduces the wages paid to an employee based on the employer’s share of health insurance premium shall comply with any record reporting requirements established by the Commissioner.
H. A Contractor/Subcontractor may reduce the wage rates paid under Md. Code Ann., State Finance and Procurement Article, §18-103(a), by no more than 50 cents of the hourly cost of the employer’s contribution to an employee’s deferred compensation plan. A Contractor/Subcontractor who reduces the wages paid to an employee based on the employer’s contribution to an employee’s deferred compensation plan shall not lower the employee’s wage rate below the minimum wage as set in Md. Code Ann., Labor and Employment Article, §3-413.
I. Under Md. Code Ann., State Finance and Procurement Article, Title 18, if the Commissioner determines that the Contractor/Subcontractor violated a provision of this title or regulations of the Commissioner, the Contractor/Subcontractor shall pay restitution to each affected employee, and the State may assess liquidated damages of $20 per day for each employee paid less than the Living Wage.
J. Information pertaining to reporting obligations may be found by going to the Division of Labor and Industry website http://www.dllr.state.md.us/labor/prev/livingwage.shmtl.
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ATTACHMENT F-1
Maryland Living Wage Requirements Affidavit of Agreement
(Submit with Proposal)
Contract No. ______
Name of Contractor ______
Address______
City______State______Zip Code______
If the Contract Is Exempt from the Living Wage Law
The Undersigned, being an authorized representative of the above named Contractor, hereby affirms that the Contract is exempt from Maryland’s Living Wage Law for the following reasons (check all that apply):
Offeror is a nonprofit organization Offeror is a public service company Offeror employs 10 or fewer employees and the proposed contract value is less than $500,000 Offeror employs more than 10 employees and the proposed contract value is less than $100,000
If the Contract Is a Living Wage Contract
A. The Undersigned, being an authorized representative of the above-named Contractor, hereby affirms its commitment to comply with Title 18, State Finance and Procurement Article, Annotated Code of Maryland and, if required, submit all payroll reports to the Commissioner of Labor and Industry with regard to the above stated contract. The Offeror agrees to pay covered employees who are subject to living wage at least the living wage rate in effect at the time service is provided for hours spent on State contract activities, and ensure that its Subcontractors who are not exempt also pay the required living wage rate to their covered employees who are subject to the living wage for hours spent on a State contract for services. The Contractor agrees to comply with, and ensure its Subcontractors comply with, the rate requirements during the initial term of the contract and all subsequent renewal periods, including any increases in the wage rate established by the Commissioner of Labor and Industry, automatically upon the effective date of the revised wage rate.
B. ______(initial here if applicable) The Offeror affirms it has no covered employees for the following reasons: (check all that apply):
The employee(s) proposed to work on the contract will spend less than one-half of the employee’s time during any work week on the contract
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The employee(s) proposed to work on the contract is 17 years of age or younger during the duration of the contract; or The employee(s) proposed to work on the contract will work less than 13 consecutive weeks on the State contract.
The Commissioner of Labor and Industry reserves the right to request payroll records and other data that the Commissioner deems sufficient to confirm these affirmations at any time.
Name of Authorized Representative: ______
______Signature of Authorized Representative Date
______Title
______Witness Name (Typed or Printed)
______Witness Signature Date
SUBMIT THIS AFFIDAVIT WITH PROPOSAL
88 RFP Template Version: 01/20/2017 ATTACHMENT G – FEDERAL FUNDS ATTACHMENT
This solicitation does not include a Federal Funds Attachment.
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ATTACHMENT H – CONFLICT OF INTEREST AFFIDAVIT AND DISCLOSURE
Reference COMAR 21.05.08.08
A. “Conflict of interest” means that because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the State, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.
B. “Person” has the meaning stated in COMAR 21.01.02.01B(64) and includes a Offeror, Contractor, consultant, or subcontractor or sub-consultant at any tier, and also includes an employee or agent of any of them if the employee or agent has or will have the authority to control or supervise all or a portion of the work for which a Proposal is made.
C. The Offeror warrants that, except as disclosed in §D, below, there are no relevant facts or circumstances now giving rise or which could, in the future, give rise to a conflict of interest.
D. The following facts or circumstances give rise or could in the future give rise to a conflict of interest (explain in detail — attach additional sheets if necessary):
E. The Offeror agrees that if an actual or potential conflict of interest arises after the date of this affidavit, the Offeror shall immediately make a full disclosure in writing to the Procurement Officer of all relevant facts and circumstances. This disclosure shall include a description of actions which the Offeror has taken and proposes to take to avoid, mitigate, or neutralize the actual or potential conflict of interest. If the contract has been awarded and performance of the contract has begun, the Contractor shall continue performance until notified by the Procurement Officer of any contrary action to be taken.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: ______By: ______(Authorized Representative and Affiant)
SUBMIT THIS AFFIDAVIT WITH PROPOSAL
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ATTACHMENT I – NON-DISCLOSURE AGREEMENT
This solicitation does not require a Non-Disclosure Agreement.
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ATTACHMENT J – HIPAA BUSINESS ASSOCIATE AGREEMENT
This solicitation does not require a HIPAA Business Associate Agreement.
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ATTACHMENT K – MERCURY AFFIDAVIT
This solicitation does not include the procurement of products known to likely include mercury as a component.
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ATTACHMENT L – LOCATION OF PERFORMANCE OF SERVICES DISCLOSURE
(Submit with Proposal)
Pursuant to Md. Ann. Code, State Finance and Procurement Article, § 12-111, and in conjunction with the Proposal submitted in response to Solicitation No. ______, the following disclosures are hereby made:
1. At the time of Proposal submission, the Offeror and/or its proposed subcontractors:
_____ have plans
_____ have no plans
To perform any services required under the resulting Contract outside of the United States.
2. If services required under the contract are anticipated to be performed outside the United States by either the Offeror or its proposed subcontractors, the Offeror shall answer the following (attach additional pages if necessary):
a. Location(s) services will be performed: ______
b. Reasons why it is necessary or advantageous to perform services outside the United States: ______
The undersigned, being an authorized representative of the Offeror, hereby affirms that the contents of this disclosure are true to the best of my knowledge, information, and belief.
Date: ______
Offeror Name: ______
By: ______
Name: ______
Title: ______
Please be advised that the Administration may contract for services provided outside of the United States if: the services are not available in the United States; the price of services in the United States exceeds by an unreasonable amount the price of services provided outside the United States; or the quality of services in the United States is substantially less than the quality of comparably priced services provided outside the United States.
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ATTACHMENT M – CONTRACT (FOR REFERENCE ONLY)
(CONTRACT TITLE)
THIS CONTRACT (the “Contract”) is made this (“Xth”) day of (month), (year) by and between (Contractor’s name) and the STATE OF MARYLAND, acting through the (ADMINISTRATION).
In consideration of the promises and the covenants herein contained, the adequacy and sufficiency of which is duly acknowledged by the parties, the parties agree as follows:
1. Definitions
In this Contract, the following words have the meanings indicated:
1.1 “COMAR” means Code of Maryland Regulations.
1.2 “Contract” means this agreement between (Contractor’s name) and the State of Maryland, acting through the (ADMINISTRATION).
1.3 “Contract Monitor” means the following Administration employee identified as the Contract Monitor: (Contract Monitor’s name and contact information)
1.4 “Contractor” means (Contractor’s name) whose principal business address is (Contractor’s primary address) and whose principal office in Maryland is (Contractor’s local address).
1.5 “Administration” means the (Administration).
1.6 “Financial Proposal” means the Contractor’s Financial Proposal dated (Financial Proposal date).
1.7 “Procurement Officer” means the following Administration employee identified as the Procurement Officer: (Procurement Officer’s name and contact information)
1.8 “RFP” means the Request for Proposals for (solicitation title) Solicitation # (solicitation number), and any addenda thereto issued in writing by the State.
1.9 “State” means the State of Maryland.
1.10 “Technical Proposal” means the Contractor’s Technical Proposal dated (Technical Proposal date).
2. Scope of Contract
2.1 The Contractor shall provide deliverables, programs, goods, and services specific to the Contract for (enter title/description of what the Contract is for) awarded in accordance with Exhibits A-C listed in this section and incorporated as part of this Contract. If there is any conflict between this Contract and the Exhibits, the terms of the Contract shall govern. If there is any conflict among the Exhibits, the following order of precedence shall determine the prevailing provision:
Exhibit A – The RFP Exhibit B – State Contract Affidavit, executed by the Contractor and dated (date of Attachment C) Exhibit C – The Proposal (Technical and Financial)
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2.2 The Procurement Officer may, at any time, by written order, make changes in the work within the general scope of the Contract or the RFP. No other order, statement, or conduct of the Procurement Officer or any other person shall be treated as a change or entitle the Contractor to an equitable adjustment under this section. Except as otherwise provided in this Contract, if any change under this section causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work, whether or not changed by the order, an equitable adjustment in the Contract price shall be made and the Contract modified in writing accordingly. The Contractor must assert in writing its right to an adjustment under this section within thirty (30) days of receipt of written change order and shall include a written statement setting forth the nature and cost of such claim. No claim by the Contractor shall be allowed if asserted after final payment under this Contract. Failure to agree to an adjustment under this section shall be a dispute under the Disputes clause. Nothing in this section shall excuse the Contractor from proceeding with the Contract as changed.
2.3 While the Procurement Officer may, at any time, by written change order, make unilateral changes in the work within the general scope of the Contract as provided in Section 2.2 above, the Contract may be modified by mutual agreement of the parties, provided: (a) the modification is made in writing; (b) all parties sign the modification; and (c) all approvals by the required agencies as described in COMAR Title 21, are obtained.
3. Period of Performance.
3.1 The term of this Contract begins on the date the Contract is signed by the Administration following any required approvals of the Contract, including approval by the Board of Public Works, if such approval is required. The Contractor shall provide services under this Contract as of the Go-Live date contained in the written Notice to Proceed. From this Go-Live date, the Contract shall be for a period of approximately (number of years of base term of Contract) years (change to months if necessary) beginning (anticipated Contract start date) and ending on (anticipated end date of base term of Contract).
3.2 The State, at its sole option, has the unilateral right to extend the term of the Contract for (number of Option Years) additional successive one-year terms at the prices quoted in the Financial Proposal for Option Years. (Delete this section if there are no Option Years, and change the numbering of the next section to 3.2).
3.3 Audit, confidentiality, document retention, and indemnification obligations under this Contract shall survive expiration or termination of the Contract.
4. Consideration and Payment
4.1 In consideration of the satisfactory performance of the work set forth in this Contract, the Administration shall pay the Contractor in accordance with the terms of this Contract and at the prices quoted in the Financial Proposal. (enter the following sentence for contracts with a Not-to-Exceed/NTE amount) Unless properly modified (see above Section 2.3), payment to the Contractor pursuant to this Contract, including the base term and any option exercised by the State, shall not exceed $ (enter NTE amount).
(The following paragraph may be added to indefinite quantity, labor hour and time and materials contracts with Not-to-Exceed amounts at the discretion of the Contract Monitor; otherwise delete it.)
Contractor shall notify the Contract Monitor, in writing, at least sixty (60) days before payments reach the above specified amount. After notification by the Contractor, if the State fails to increase the Contract amount, the Contractor shall have no obligation to perform under this Contract after payments reach the stated amount; provided, however, that, prior to the stated amount being reached, the Contractor shall: (a) promptly consult with the State and work in good faith to establish a plan of action to assure that every reasonable effort has been undertaken by the Contractor to complete State-defined critical work in progress prior to the date the stated amount will be reached; and (b) when applicable secure databases, systems, 96 RFP Template Version: 01/20/2017
platforms, and/or applications on which the Contractor is working so that no damage or vulnerabilities to any of the same will exist due to the existence of any such unfinished work.
4.2 Payments to the Contractor shall be made no later than thirty (30) days after the Administration’s receipt of a proper invoice for services provided by the Contractor, acceptance by the Administration of services provided by the Contractor, and pursuant to the conditions outlined in Section 4 of this Contract. Each invoice for services rendered must include the Contractor’s Federal Tax Identification or Social Security Number for a Contractor who is an individual which is (Contractor’s FEIN or SSN). Charges for late payment of invoices other than as prescribed at Md. Code Ann., State Finance and Procurement Article, §15-104 are prohibited. Invoices shall be submitted to the Contract Monitor. Electronic funds transfer shall be used by the State to pay Contractor pursuant to this Contract and any other State payments due Contractor unless the State Comptroller’s Office grants Contractor an exemption.
4.3 In addition to any other available remedies, if, in the opinion of the Procurement Officer, the Contractor fails to perform in a satisfactory and timely manner, the Procurement Officer may refuse or limit approval of any invoice for payment, and may cause payments to the Contractor to be reduced or withheld until such time as the Contractor meets performance standards as established by the Procurement Officer.
4.4 Payment of an invoice by the Administration is not evidence that services were rendered as required under this Contract.
4.5 Contractor’s eMaryland Marketplace vendor ID number is (Contractor’s eMM number).
5. Rights to Records
5.1 The Contractor agrees that all documents and materials including, but not limited to, software, reports, drawings, studies, specifications, estimates, tests, maps, photographs, designs, graphics, mechanical, artwork, computations, and data prepared by the Contractor for purposes of this Contract shall be the sole property of the State and shall be available to the State at any time. The State shall have the right to use the same without restriction and without compensation to the Contractor other than that specifically provided by this Contract.
5.2 The Contractor agrees that at all times during the term of this Contract and thereafter, works created as a deliverable under this Contract, and services performed under this Contract shall be “works made for hire” as that term is interpreted under U.S. copyright law. To the extent that any products created as a deliverable under this Contract are not works made for hire for the State, the Contractor hereby relinquishes, transfers, and assigns to the State all of its rights, title, and interest (including all intellectual property rights) to all such products created under this Contract, and will cooperate reasonably with the State in effectuating and registering any necessary assignments.
5.3 The Contractor shall report to the Contract Monitor, promptly and in written detail, each notice or claim of copyright infringement received by the Contractor with respect to all data delivered under this Contract.
5.4 The Contractor shall not affix any restrictive markings upon any data, documentation, or other materials provided to the State hereunder and if such markings are affixed, the State shall have the right at any time to modify, remove, obliterate, or ignore such warnings.
5.5 Upon termination of the Contract, the Contractor, at its own expense, shall deliver any equipment, software or other property provided by the State to the place designated by the Procurement Officer.
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6. Exclusive Use
6.1 The State shall have the exclusive right to use, duplicate, and disclose any data, information, documents, records, or results, in whole or in part, in any manner for any purpose whatsoever, that may be created or generated by the Contractor in connection with this Contract. If any material, including software, is capable of being copyrighted, the State shall be the copyright owner and Contractor may copyright material connected with this project only with the express written approval of the State.
6.2 Except as may otherwise be set forth in this Contract, Contractor shall not use, sell, sub-lease, assign, give, or otherwise transfer to any third party any other information or material provided to Contractor by the Administration or developed by Contractor relating to the Contract, except that Contractor may provide said information to any of its officers, employees and subcontractors who Contractor requires to have said information for fulfillment of Contractor's obligations hereunder. Each officer, employee and/or subcontractor to whom any of the Administration’s confidential information is to be disclosed shall be advised by Contractor of and bound by confidentiality and intellectual property terms substantively equivalent to those of this Contract.
7. Patents, Copyrights, and Intellectual Property
7.1 If the Contractor furnishes any design, device, material, process, or other item, which is covered by a patent, trademark or service mark, or copyright or which is proprietary to, or a trade secret of, another, the Contractor shall obtain the necessary permission or license to permit the State to use such item or items.
7.2 The Contractor will defend or settle, at its own expense, any claim or suit against the State alleging that any such item furnished by the Contractor infringes any patent, trademark, service mark, copyright, or trade secret. If a third party claims that a product infringes that party’s patent, trademark, service mark, trade secret, or copyright, the Contractor will defend the State against that claim at Contractor’s expense and will pay all damages, costs, and attorneys’ fees that a court finally awards, provided the State: (a) promptly notifies the Contractor in writing of the claim; and (b) allows Contractor to control and cooperates with Contractor in, the defense and any related settlement negotiations. The obligations of this paragraph are in addition to those stated in Section 7.3 below.
7.3 If any products furnished by the Contractor become, or in the Contractor’s opinion are likely to become, the subject of a claim of infringement, the Contractor will, at its option and expense: (a) procure for the State the right to continue using the applicable item; (b) replace the product with a non-infringing product substantially complying with the item’s specifications; or (c) modify the item so that it becomes non- infringing and performs in a substantially similar manner to the original item.
8. Confidential or Proprietary Information and Documentation
8.1 Subject to the Maryland Public Information Act and any other applicable laws including, without limitation, HIPAA, the HI-TECH Act, and the Maryland Medical Records Act and the implementation of regulations promulgated pursuant thereto, all confidential or proprietary information and documentation relating to either party (including without limitation, any information or data stored within the Contractor’s computer systems) shall be held in absolute confidence by the other party. Each party shall, however, be permitted to disclose relevant confidential information to its officers, agents, and employees to the extent that such disclosure is necessary for the performance of their duties under this Contract, provided that the data may be collected, used, disclosed, stored, and disseminated only as provided by and consistent with the law. The provisions of this section shall not apply to information that: (a) is lawfully in the public domain; (b) has been independently developed by the other party without violation of this Contract; (c) was already in the possession of such party; (d) was supplied to such party by a third party lawfully in possession thereof and legally permitted to further disclose the information; or (e) which such party is required to disclose by law. 98 RFP Template Version: 01/20/2017
8.2 This Section 8 shall survive expiration or termination of this Contract.
9. Loss of Data
In the event of loss of any State data or records where such loss is due to the intentional act or omission or negligence of the Contractor or any of its subcontractors or agents, the Contractor shall be responsible for recreating such lost data in the manner and on the schedule set by the Contract Monitor. The Contractor shall ensure that all data is backed up and recoverable by the Contractor. Contractor shall use its best efforts to assure that at no time shall any actions undertaken by the Contractor under this Contract (or any failures to act when Contractor has a duty to act) damage or create any vulnerabilities in data bases, systems, platforms, and/or applications with which the Contractor is working hereunder.
10. Indemnification
10.1 The Contractor shall hold harmless and indemnify the State from and against any and all losses, damages, claims, suits, actions, liabilities, and/or expenses, including, without limitation, attorneys’ fees and disbursements of any character that arise from, are in connection with or are attributable to the performance or nonperformance of the Contractor or its subcontractors under this Contract.
10.2 This indemnification clause shall not be construed to mean that the Contractor shall indemnify the State against liability for any losses, damages, claims, suits, actions, liabilities, and/or expenses that are attributable to the sole negligence of the State or the State’s employees.
10.3 The State of Maryland has no obligation to provide legal counsel or defense to the Contractor or its subcontractors in the event that a suit, claim, or action of any character is brought by any person not party to this Contract against the Contractor or its subcontractors as a result of or relating to the Contractor’s performance under this Contract.
10.4 The State has no obligation for the payment of any judgments or the settlement of any claims against the Contractor or its subcontractors as a result of or relating to the Contractor’s performance under this Contract.
10.5 The Contractor shall immediately notify the Procurement Officer of any claim or lawsuit made or filed against the Contractor or its subcontractors regarding any matter resulting from, or relating to, the Contractor’s obligations under the Contract, and will cooperate, assist, and consult with the State in the defense or investigation of any claim, lawsuit, or action made or filed against the State as a result of, or relating to, the Contractor’s performance under this Contract.
10.6 This Section 10 shall survive termination of this Contract.
11. Non-Hiring of Employees
No official or employee of the State, as defined under Md. Code Ann., General Provisions Article, § 5-101, whose duties as such official or employee include matters relating to or affecting the subject matter of this Contract, shall, during the pendency and term of this Contract and while serving as an official or employee of the State, become or be an employee of the Contractor or any entity that is a subcontractor on this Contract.
12. Disputes
This Contract shall be subject to the provisions of Md. Code Ann., State Finance and Procurement Article, Title 15, Subtitle 2, and COMAR 21.10 (Administrative and Civil Remedies). Pending resolution of a 99 RFP Template Version: 01/20/2017 claim, the Contractor shall proceed diligently with the performance of the Contract in accordance with the Procurement Officer’s decision. Unless a lesser period is provided by applicable statute, regulation, or the Contract, the Contractor must file a written notice of claim with the Procurement Officer within thirty (30) days after the basis for the claim is known or should have been known, whichever is earlier. Contemporaneously with or within thirty (30) days of the filing of a notice of claim, but no later than the date of final payment under the Contract, the Contractor must submit to the Procurement Officer its written claim containing the information specified in COMAR 21.10.04.02.
13. Maryland Law
13.1 This Contract shall be construed, interpreted, and enforced according to the laws of the State of Maryland.
13.2 The Maryland Uniform Computer Information Transactions Act (Commercial Law Article, Title 22 of the Annotated Code of Maryland), does not apply to this Contract or any purchase order or Notice to Proceed issued under this Contract, or any software, or any software license required hereunder.
13.3 Any and all references to the Maryland Code, Annotated contained in this Contract shall be construed to refer to such Code sections as are from time to time amended.
14. Nondiscrimination in Employment
The Contractor agrees: (a) not to discriminate in any manner against an employee or applicant for employment because of race, color, religion, creed, age, sex, sexual orientation, gender identification, marital status, national origin, ancestry, genetic information, or any otherwise unlawful use of characteristics, or disability of a qualified individual with a disability unrelated in nature and extent so as to reasonably preclude the performance of the employment, or the individual’s refusal to submit to a genetic test or make available the results of a genetic test; (b) to include a provision similar to that contained in subsection (a), above, in any underlying subcontract except a subcontract for standard commercial supplies or raw materials; and (c) to post and to cause subcontractors to post in conspicuous places available to employees and applicants for employment, notices setting forth the substance of this clause.
15. Contingent Fee Prohibition
The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency working for the business, to solicit or secure the Contract, and that the business has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee, bona fide agent, bona fide salesperson, or commercial selling agency, any fee or any other consideration contingent on the making of this Contract.
16. Non-Availability of Funding
If the General Assembly fails to appropriate funds or if funds are not otherwise made available for continued performance for any fiscal period of this Contract succeeding the first fiscal period, this Contract shall be canceled automatically as of the beginning of the fiscal year for which funds were not appropriated or otherwise made available; provided, however, that this will not affect either the State’s or the Contractor’s rights under any termination clause in this Contract. The effect of termination of the Contract hereunder will be to discharge both the Contractor and the State from future performance of the Contract, but not from their rights and obligations existing at the time of termination. The Contractor shall be reimbursed for the reasonable value of any nonrecurring costs incurred but not amortized in the price of the Contract. The State shall notify the Contractor as soon as it has knowledge that funds may not be available for the continuation of this Contract for each succeeding fiscal period beyond the first.
100 RFP Template Version: 01/20/2017 17. Termination for Default
If the Contractor fails to fulfill its obligations under this Contract properly and on time, or otherwise violates any provision of the Contract, the State may terminate the Contract by written notice to the Contractor. The notice shall specify the acts or omissions relied upon as cause for termination. All finished or unfinished work provided by the Contractor shall, at the State’s option, become the State’s property. The State shall pay the Contractor fair and equitable compensation for satisfactory performance prior to receipt of notice of termination, less the amount of damages caused by the Contractor’s breach. If the damages are more than the compensation payable to the Contractor, the Contractor will remain liable after termination and the State can affirmatively collect damages. Termination hereunder, including the termination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.11B.
18. Termination for Convenience
The performance of work under this Contract may be terminated by the State in accordance with this clause in whole, or from time to time in part, whenever the State shall determine that such termination is in the best interest of the State. The State will pay all reasonable costs associated with this Contract that the Contractor has incurred up to the date of termination, and all reasonable costs associated with termination of the Contract; provided, however, the Contractor shall not be reimbursed for any anticipatory profits that have not been earned up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).
19. Delays and Extensions of Time
19.1 The Contractor agrees to prosecute the work continuously and diligently and no charges or claims for damages shall be made by it for any delays, interruptions, interferences, or hindrances from any cause whatsoever during the progress of any portion of the work specified in this Contract.
19.2 Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another Contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.
20. Suspension of Work
The State unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of its performance for such period of time as the Procurement Officer may determine to be appropriate for the convenience of the State.
21. Pre-Existing Regulations
In accordance with the provisions of Md. Code Ann., State Finance and Procurement Article, § 11-206, the regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR 21) in effect on the date of execution of this Contract are applicable to this Contract.
22. Financial Disclosure
The Contractor shall comply with the provisions of Md. Code Ann., State Finance and Procurement Article, § 13-221, which requires that every person that enters into contracts, leases, or other agreements with the State or its agencies during a calendar year under which the business is to receive in the aggregate, $100,000 101 RFP Template Version: 01/20/2017
or more, shall within thirty (30) days of the time when the aggregate value of these contracts, leases or other agreements reaches $100,000, file with the Secretary of the State certain specified information to include disclosure of beneficial ownership of the business.
23. Political Contribution Disclosure
The Contractor shall comply with Md. Code Ann., Election Law Article, Title 14, which requires that every person that enters into a contract for a procurement with the State, a county, or a municipal corporation, or other political subdivision of the State, during a calendar year in which the person receives a contract with a governmental entity in the amount of $200,000 or more, shall, file with the State Board of Elections statements disclosing: (a) any contributions made during the reporting period to a candidate for elective office in any primary or general election; and (b) the name of each candidate to whom one or more contributions in a cumulative amount of $500 or more were made during the reporting period. The statement shall be filed with the State Board of Elections: (a) before execution of a contract by the State, a county, a municipal corporation, or other political subdivision of the State, and shall cover the 24 months prior to when a contract was awarded; and (b) if the contribution is made after the execution of a contract, then twice a year, throughout the contract term, on or before: (i) May 31, to cover the six (6) month period ending April 30; and (ii) November 30, to cover the six (6) month period ending October 31. Additional information is available on the State Board of Elections website: http://www.elections.state.md.us/campaign_finance/index.html.
24. Documents Retention and Inspection Clause
The Contractor and subcontractors shall retain and maintain all records and documents relating to this Contract for a period of five (5) years after final payment by the State hereunder or any applicable statute of limitations or federal retention requirements (such as HIPAA), whichever is longer, and shall make them available for inspection and audit by authorized representatives of the State, including the Procurement Officer or designee, at all reasonable times. All records related in any way to the Contract are to be retained for the entire time provided under this section. In the event of any audit, the Contractor shall provide assistance to the State, without additional compensation, to identify, investigate, and reconcile any audit discrepancies and/or variances. This Section 24 shall survive expiration or termination of the Contract.
25. Right to Audit
25.1 The State reserves the right, at its sole discretion and at any time, to perform an audit of the Contractor’s and/or subcontractor’s performance under this Contract. An audit is defined as a planned and documented independent activity performed by qualified personnel including but not limited to State and federal auditors, to determine by investigation, examination, or evaluation of objective evidence from data, statements, records, operations and performance practices (financial or otherwise) the Contractor’s compliance with the Contract, including but not limited to adequacy and compliance with established procedures and internal controls over the Contract services being performed for the State.
25.2 Upon three (3) Business Days’ notice, the Contractor and/or any subcontractors shall provide the State reasonable access to their respective records to verify conformance to the terms of the Contract. The Administration may conduct these audits with any or all of its own internal resources or by securing the services of a third party accounting or audit firm, solely at the Administration’s election. The Administration may copy, at its own expense, any record related to the services performed and provided under this Contract.
25.3 The right to audit shall include any of the Contractor’s subcontractors including but not limited to any lower tier subcontractor(s) that provide essential support to the Contract services. The Contractor and/or subcontractor(s) shall ensure the Administration has the right to audit such subcontractor(s).
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25.4 The Contractor and/or subcontractors shall cooperate with Administration and Administration’s designated accountant or auditor and shall provide the necessary assistance for the Administration or Administration’s designated accountant or auditor to conduct the audit.
25.5 This Section shall survive expiration or termination of the Contract.
26. Compliance with Laws
The Contractor hereby represents and warrants that:
26.1 It is qualified to do business in the State and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;
26.2 It is not in arrears with respect to the payment of any monies due and owing the State, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;
26.3 It shall comply with all federal, State and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract; and
26.4 It shall obtain, at its expense, all licenses, permits, insurance, and governmental approvals, if any, necessary to the performance of its obligations under this Contract.
27. Cost and Price Certification
27.1 By submitting cost or price information, the Contractor certifies to the best of its knowledge that the information submitted is accurate, complete, and current as of the date of its Proposal.
27.2 The price under this Contract and any change order or modification hereunder, including profit or fee, shall be adjusted to exclude any significant price increases occurring because the Contractor furnished cost or price information which, as of the date of its Proposal, was inaccurate, incomplete, or not current.
28. Subcontracting; Assignment
The Contractor may not subcontract any portion of the services provided under this Contract without obtaining the prior written approval of the Procurement Officer, nor may the Contractor assign this Contract or any of its rights or obligations hereunder, without the prior written approval of the Procurement Officer; provided, however, that a Contractor may assign monies receivable under a contract after due notice to the State. Any subcontracts shall include such language as may be required in various clauses contained within this Contract, exhibits, and attachments. The Contract shall not be assigned until all approvals, documents, and affidavits are completed and properly registered. The State shall not be responsible for fulfillment of the Contractor’s obligations to its subcontractors.
29. Liability
For breach of this Contract, negligence, misrepresentation, or any other contract or tort claim, the Contractor shall be liable as follows:
29.1 For infringement of patents, copyrights, trademarks, service marks, and/or trade secrets, as provided in Section 7 of this Contract;
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29.2 Without limitation for damages for bodily injury (including death) and damage to real property and tangible personal property; and
29.3 For all other claims, damages, losses, costs, expenses, suits, or actions in any way related to this Contract, regardless of the form the Contractor’s liability for third party claims arising under Section 10 of this Contract shall be unlimited if the State is not immune from liability for claims arising under Section 10.
30. Commercial Nondiscrimination
30.1 As a condition of entering into this Contract, the Contractor represents and warrants that it will comply with the State’s Commercial Nondiscrimination Policy, as described at Md. Code Ann., State Finance and Procurement Article, Title 19. As part of such compliance, the Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, sexual identity, genetic information or an individual’s refusal to submit to a genetic test or make available the results of a genetic test or on the basis of disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall the Contractor retaliate against any person for reporting instances of such discrimination. The Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this clause does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. The Contractor understands that a material violation of this clause shall be considered a material breach of this Contract and may result in termination of this Contract, disqualification of the Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.
30.2 The Contractor shall include the above Commercial Nondiscrimination clause, or similar clause approved by the Administration, in all subcontracts.
30.3 As a condition of entering into this Contract, upon the request of the Commission on Civil Rights, and only after the filing of a complaint against the Contractor under Md. Code Ann., State Finance and Procurement Article, Title 19, as amended from time to time, the Contractor agrees to provide within sixty (60) days after the request a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past four (4) years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State’s Commercial Nondiscrimination Policy as set forth at Md. Code Ann., State Finance and Procurement Article, Title 19, and provide any documents relevant to any investigation that are requested by the State. Contractor understands that violation of this clause is a material breach of this Contract and may result in contract termination, disqualification by the State from participating in State contracts, and other sanctions.
31. Prompt Pay Requirements
31.1 If the Contractor withholds payment of an undisputed amount to its subcontractor, the Administration, at its option and in its sole discretion, may take one or more of the following actions:
a. Not process further payments to the contractor until payment to the subcontractor is verified; b. Suspend all or some of the contract work without affecting the completion date(s) for the contract work; c. Pay or cause payment of the undisputed amount to the subcontractor from monies otherwise due or that may become due; d. Place a payment for an undisputed amount in an interest-bearing escrow account; or e. Take other or further actions as appropriate to resolve the withheld payment.
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31.2 An “undisputed amount” means an amount owed by the Contractor to a subcontractor for which there is no good faith dispute. Such “undisputed amounts” include, without limitation:
a. Retainage which had been withheld and is, by the terms of the agreement between the Contractor and subcontractor, due to be distributed to the subcontractor; and b. An amount withheld because of issues arising out of an agreement or occurrence unrelated to the agreement under which the amount is withheld.
31.3 An act, failure to act, or decision of a Procurement Officer or a representative of the Administration, concerning a withheld payment between the Contractor and a subcontractor under this provision, may not:
a. Affect the rights of the contracting parties under any other provision of law; b. Be used as evidence on the merits of a dispute between the Administration and the contractor in any other proceeding; or c. Result in liability against or prejudice the rights of the Administration.
31.4 The remedies enumerated above are in addition to those provided under COMAR 21.11.03.13 with respect to subcontractors that have contracted pursuant to the Disadvantaged Business Enterprise (DBE) program.
31.5 To ensure compliance with certified DBE subcontract participation goals, the Administration may, consistent with COMAR 21.11.03.13, take the following measures:
a. Verify that the certified DBEs listed in the DBE participation schedule actually are performing work and receiving compensation as set forth in the DBE participation schedule. This verification may include, as appropriate: i. Inspecting any relevant records of the Contractor; ii. Inspecting the jobsite; and iii. Interviewing subcontractors and workers.
Verification shall include a review of the: i. The Contractor’s monthly report listing unpaid invoices over thirty (30) days old from certified DBE subcontractors and the reason for nonpayment; and ii. The monthly report of each certified DBE subcontractor, which lists payments received from the Contractor in the preceding thirty (30) days and invoices for which the subcontractor has not been paid. b. If the Administration determines that the Contractor is not in compliance with certified DBE participation goals, then the Administration will notify the Contractor in writing of its findings, and will require the Contractor to take appropriate corrective action. Corrective action may include, but is not limited to, requiring the Contractor to compensate the DBE for work performed as set forth in the DBE participation schedule.
c. If the Administration determines that the Contractor is in material noncompliance with DBE contract provisions and refuses or fails to take the corrective action that the Administration requires, then the Administration may: i. Terminate the contract; ii. Refer the matter to the Office of the Attorney General for appropriate action; or iii. Initiate any other specific remedy identified by the contract, including the contractual remedies required by any applicable laws, regulations, and directives regarding the payment of undisputed amounts.
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d. Upon completion of the Contract, but before final payment or release of retainage or both, the Contractor shall submit a final report, in affidavit form under the penalty of perjury, of all payments made to, or withheld from, DBE subcontractors.
32. Living Wage
If a Contractor subject to the Living Wage law fails to submit all records required under COMAR 21.11.10.05 to the Commissioner of Labor and Industry at the Department of Labor, Licensing and Regulation, the agency may withhold payment of any invoice or retainage. The agency may require certification from the Commissioner on a quarterly basis that such records were properly submitted.
33. Use of Estimated Quantities
Unless specifically indicated otherwise in the State’s solicitation or other controlling documents related to the Scope of Work, any sample amounts provided are estimates only and the Administration does not guarantee a minimum or maximum number of units or usage in the performance of this Contract.
34. Contract Monitor and Procurement Officer
The work to be accomplished under this Contract shall be performed under the direction of the Contract Monitor. All matters relating to the interpretation of this Contract shall be referred to the Procurement Officer for determination.
35. Notices
All notices hereunder shall be in writing and either delivered personally or sent by certified or registered mail, postage prepaid, as follows:
If to the State: (Name of Procurement Officer) Procurement Officer (Address and contact information for Procurement Officer)
If to the Contractor: ______
(OPTIONAL CONTRACT CLAUSES: The following optional clauses may be required under certain conditions. Use these clauses only when appropriate. Delete any clauses not used and renumber the remaining Contract clauses as necessary.)
(If there is an DBE goal for the Contract, enter and complete the following clause pursuant to GOMA’s Guidelines for Liquidated Damages Provisions for Contracts Containing Disadvantaged Business Enterprise Participation Goals.)
36. Liquidated Damages
36.1 The Contract requires the Contractor to make good faith efforts to comply with the Disadvantaged Business Enterprise (“DBE”) Program and Contract provisions. The State and the Contractor acknowledge and agree that the State will incur economic damages and losses, including, but not limited to, loss of goodwill, detrimental impact on economic development, and diversion of internal staff resources, if the Contractor does not make good faith efforts to comply with the requirements of the DBE Program and pertinent DBE Contract provisions. The parties further acknowledge and agree that the damages the State might 106 RFP Template Version: 01/20/2017 reasonably be anticipated to accrue as a result of such lack of compliance are difficult or impossible to ascertain with precision and liquidated damages represent a fair, reasonable, and appropriate estimation of damages.
Upon a determination by the State that the Contractor failed to make good faith efforts to comply with one or more of the specified DBE Program requirements or pertinent DBE Contract provisions and without the State being required to present any evidence of the amount or character of actual damages sustained, the Contractor agrees to pay liquidated damages to the State at the rates set forth below. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. The Contractor expressly agrees that the State may withhold payment on any invoices as an offset against liquidated damages owed. The Contractor further agrees that for each specified violation, the agreed-upon liquidated damages are reasonably proximate to the loss the State is anticipated to incur as a result of each violation.
36.1.1 Failure to submit each monthly payment report in full compliance with COMAR 21.11.03.13B(3): $ (dollar amount) per day until the monthly report is submitted as required.
36.1.2 Failure to include in its agreements with DBE subcontractors a provision requiring submission of payment reports in full compliance with COMAR 21.11.03.13B(4): $(dollar amount) per DBE subcontractor.
36.1.3 Failure to comply with COMAR 21.11.03.12 in terminating, canceling, or changing the scope of work/value of a contract with an DBE subcontractor and/or amendment of the DBE participation schedule: the difference between the dollar value of the DBE participation commitment on the DBE participation schedule for that specific DBE firm and the dollar value of the work performed by that DBE firm for the Contract.
36.1.4 Failure to meet the Contractor’s total DBE participation goal and subgoal commitments: the difference between the dollar value of the total DBE participation commitment on the DBE participation schedule and the DBE participation actually achieved.
36.1.5 Failure to promptly pay all undisputed amounts to a subcontractor in full compliance with the prompt payment provisions of the Contract: $(dollar amount) per day until the undisputed amount due to the subcontractor is paid.
36.2 Notwithstanding the assessment or availability of liquidated damages, the State reserves the right to terminate the Contract and exercise any and all other rights or remedies which may be available under the Contract or otherwise may be available at law or in equity.
(If a Contractor intends to rely on its Parent Company in some manner while performing on the State Contract, the following clause should be included and completed for the Contractor’s Parent Company to guarantee performance of the Contractor. The guarantor/Contractor’s Parent Company should be named as a party and signatory to the Contract and should be in good standing with SDAT.)
37. Parent Company Guarantee
(Corporate name of Contractor’s Parent Company) hereby guarantees absolutely the full, prompt, and complete performance by (Contractor) of all the terms, conditions and obligations contained in this Contract, as it may be amended from time to time, including any and all exhibits that are now or may become incorporated hereunto, and other obligations of every nature and kind that now or may in the future arise out of or in connection with this Contract, including any and all financial commitments, obligations, and liabilities. (Corporate name of Contractor’s Parent Company) may not transfer this absolute guaranty to any other person or entity without the prior express written approval of the State, which approval the 107 RFP Template Version: 01/20/2017 State may grant, withhold, or qualify in its sole and absolute subjective discretion. (Corporate name of Contractor’s Parent Company) further agrees that if the State brings any claim, action, lawsuit or proceeding against (Contractor), (Corporate name of Contractor’s Parent Company) may be named as a party, in its capacity as Absolute Guarantor.
(The following clause is mandatory for federally-funded contracts involving healthcare entities or individuals, the employment of healthcare entities or individuals, or subcontracting with healthcare entities or individuals that may be named on the DHHS List of Excluded Individuals/Entities.)
38. Federal Department of Health and Human Services (DHHS) Exclusion Requirements
The Contractor agrees that it will comply with federal provisions (pursuant to §§ 1128 and 1156 of the Social Security Act and 42 C.F.R. 1001) that prohibit payments under certain federal health care programs to any individual or entity that is on the List of Excluded Individuals/Entities maintained by DHHS. By executing this contract, the Contractor affirmatively declares that neither it nor any employee is, to the best of its knowledge, subject to exclusion. The Contractor agrees, further, during the term of this contract, to check the List of Excluded Individuals/Entities prior to hiring or assigning individuals to work on this Contract, and to notify the Administration immediately of any identification of the Contractor or an individual employee as excluded, and of any DHHS action or proposed action to exclude the Contractor or any Contractor employee.
(HIPAA Clauses. One of the following three clauses should be used whenever the contract deals with medical information/records, third party clients or medical billing/payments. Delete any/all clauses if not applicable.)
(Option 1 of 3 – Use this clause when the Administration unit is not a covered entity. The blank at the beginning would reference any statutory requirement unique to the Administration unit/program, or, if there is none, the first two sentences are combined to reference “any applicable law or regulation “ as follows: “The Contractor agrees to keep information obtained in the course of this contract confidential in compliance with any applicable State and federal regulation.”)
39. Confidentiality of Health and Financial Information
The Contractor agrees to keep information obtained in the course of this contract confidential in compliance with ______. The Contractor agrees further to comply with any applicable State and federal confidentially requirements regarding collection, maintenance, and use of health and financial information. This includes, where appropriate, the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d et seq., and implementing regulations at 45 C.F.R. Parts 160 and 164, and the Maryland Confidentiality of Medical Records Act (MCMRA), Md. Code Ann. Health-General §§ 4-301 et seq. This obligation includes providing training and information to employees regarding confidentiality obligations as to health and financial information and securing acknowledgement of these obligations from employees to be involved in the Contract. This obligation further includes restricting use and disclosure of the records, generally providing safeguards against misuse of information, keeping a record of any disclosures of information, providing all necessary procedural and legal protection for any disclosures of information, promptly responding to any requests by the Administration for information about its privacy practices in general or with respect to a particular individual, modifying such information as may be required by good professional practice as authorized by law, and otherwise providing good information management practices regarding all health and financial information.
(OR – Option 2 of 3 – Use this confidentiality clause when the Administration unit is a covered entity and the vendor is not a business associate.)
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39. Compliance with HIPAA and State Confidentiality Law
39.1 The Contractor acknowledges its duty to become familiar and comply, to the extent applicable, with all requirements of the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d et seq., and implementing regulations including 45 C.F.R. Parts 160 and 164. The Contractor also agrees to comply with the Maryland Confidentiality of Medical Records Act (MCMRA), Md. Code Ann. Health-General §§ 4-301 et seq. This obligation includes:
(a) As necessary, adhering to the privacy and security requirements for protected health information and medical records under HIPAA and MCMRA and making the transmission of all electronic information compatible with the HIPAA requirements;
(b) Providing training and information to employees regarding confidentiality obligations as to health and financial information and securing acknowledgement of these obligations from employees to be involved in the contract; and
(c) Otherwise providing good information management practices regarding all health information and medical records.
39.2 If in connection with the procurement or at any time during the term of the Contract, the Administration determines that functions to be performed in accordance with the scope of work set forth in the solicitation constitute business associate functions as defined in HIPAA, the Contractor acknowledges its obligation to execute a business associate agreement as required by HIPAA regulations at 45 C.F.R. 164.501 and in the form required by the Administration.
39.3 “Protected Health Information” as defined in the HIPAA regulations at 45 C.F.R. 160.103 and 164.501, means information transmitted as defined in the regulations, that is: individually identifiable; created or received by a healthcare provider, health plan, public health authority, employer, life insurer, school or university, or healthcare clearinghouse; and related to the past, present, or future physical or mental health or condition of an individual, provision of healthcare to an individual, or past, present, or future payment for the provision of healthcare to an individual. The definition excludes certain education records as well as employment records held by a covered entity in its role as employer.
(OR – Option 3 of 3 – Use this confidentiality clause when the Administration unit is a covered entity and the vendor is a business associate.)
39. Compliance with Federal HIPAA and State Confidentiality Law
39.1 The Contractor acknowledges its duty to become familiar with and comply, to the extent applicable, with all requirements of the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., and implementing regulations including 45 C.F.R. Parts 160 and 164. The Contractor also agrees to comply with the Maryland Confidentiality of Medical Records Act (MCMRA), Md. Code Ann. Health-General §§ 4-301 et seq. This obligation includes:
(a) As necessary, adhering to the privacy and security requirements for protected health information and medical records under HIPAA and MCMRA and making the transmission of all electronic information compatible with the HIPAA requirements;
(b) Providing training and information to employees regarding confidentiality obligations as to health and financial information and securing acknowledgement of these obligations from employees to be involved in the contract; and
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(c) Otherwise providing good information management practices regarding all health information and medical records.
39.2 Based on the determination by the Administration that the functions to be performed in accordance with the scope of work set forth in the solicitation constitute business associate functions as defined in HIPAA, the Contractor shall execute a business associate agreement as required by HIPAA regulations at 45 C.F.R. 164.501 and in the form as required by the Administration.
39.3 “Protected Health Information” as defined in the HIPAA regulations at 45 C.F.R. 160.103 and 164.501, means information transmitted as defined in the regulations, that is individually identifiable; that is created or received by a healthcare provider, health plan, public health authority, employer, life insurer, school or university, or healthcare clearinghouse; and that is related to the past, present, or future physical or mental health or condition of an individual, to the provision of healthcare to an individual, or to the past, present, or future payment for the provision of healthcare to an individual. The definition excludes certain education records as well as employment records held by a covered entity in its role as employer.
(The following clause should be added to contracts for which there is a strong possibility of employment by current and former Family Investment Program (“FIP”) recipients, their children, foster youth, and child support obligors (“Candidates”). The actual DHR Agreement must be included in the solicitation as Attachment O (see Section 1.43) Delete this clause if not applicable, and revise the numbering of the clauses in this Contract accordingly.)
40. Hiring Agreement
40.1 The Contractor agrees to execute and comply with the enclosed Maryland Department of Human Resources (DHR) Hiring Agreement (Attachment O). The Hiring Agreement is to be executed by the Offeror and delivered to the Procurement Officer within ten (10) Business Days following receipt of notice by the Offeror that it is being recommended for contract award. The Hiring Agreement will become effective concurrently with the award of the contract.
40.2 The Hiring Agreement provides that the Contractor and DHR will work cooperatively to promote hiring by the Contractor of qualified individuals for job openings resulting from this procurement, in accordance with Md. Code Ann., State Finance and Procurement Article §13-224.
(The following clause should be added to contracts when there is the probability of customers with limited ability in speaking English. Delete this clause if not applicable, and revise the numbering of the clauses in this Contract accordingly.)
41. Limited English Proficiency
The Contractor shall provide equal access to public services to individuals with limited English proficiency in compliance with Md. Code Ann., State Government Article, §§ 10-1101 et seq., and Policy Guidance issued by the Office of Civil Rights, Department of Health and Human Services, and DHMH Policy 02.06.07.
(Include the following clause after any or all “optional” clauses above have been entered, and revise Contract clause numbering as necessary.)
42. Miscellaneous
42.1 Any provision of this Contract which contemplates performance or observance subsequent to any termination or expiration of this Contract shall survive termination or expiration of this Contract and continue in full force and effect.
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42.2 If any term contained in this Contract is held or finally determined to be invalid, illegal, or unenforceable in any respect, in whole or in part, such term shall be severed from this Contract, and the remaining terms contained herein shall continue in full force and effect, and shall in no way be affected, prejudiced, or disturbed thereby.
IN WITNESS THEREOF, the parties have executed this Contract as of the date hereinabove set forth.
CONTRACTOR STATE OF MARYLAND (ADMINISTRATION)
______By: By: (name and title of Administration Head) ______Or designee: Date ______PARENT COMPANY (GUARANTOR) (if By: applicable) ______By: Date ______Date Approved for form and legal sufficiency this ____ day of ______, 20___.
______Assistant Attorney General
APPROVED BY BPW: ______(Date) (BPW Item #)
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FHWA-1273 -- Revised May 1, 2012
REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS
immediate superintendence and to all work performed on the I. General contract by piecework, station work, or by subcontract. II. Nondiscrimination III. Nonsegregated Facilities 3. A breach of any of the stipulations contained in these IV. Davis-Bacon and Related Act Provisions Required Contract Provisions may be sufficient grounds for V. Contract Work Hours and Safety Standards Act withholding of progress payments, withholding of final Provisions payment, termination of the contract, suspension / debarment VI. Subletting or Assigning the Contract or any other action determined to be appropriate by the VII. Safety: Accident Prevention contracting agency and FHWA. VIII. False Statements Concerning Highway Projects IX. Implementation of Clean Air Act and Federal Water 4. Selection of Labor: During the performance of this contract, Pollution Control Act the contractor shall not use convict labor for any purpose X. Compliance with Governmentwide Suspension and within the limits of a construction project on a Federal-aid Debarment Requirements highway unless it is labor performed by convicts who are on XI. Certification Regarding Use of Contract Funds for parole, supervised release, or probation. The term Federal-aid Lobbying highway does not include roadways functionally classified as local roads or rural minor collectors. ATTACHMENTS
A. Employment and Materials Preference for Appalachian II. NONDISCRIMINATION Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only) The provisions of this section related to 23 CFR Part 230 are applicable to all Federal-aid construction contracts and to all related construction subcontracts of $10,000 or more. The I. GENERAL provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts. 1. Form FHWA-1273 must be physically incorporated in each construction contract funded under Title 23 (excluding In addition, the contractor and all subcontractors must comply emergency contracts solely intended for debris removal). The with the following policies: Executive Order 11246, 41 CFR 60, contractor (or subcontractor) must insert this form in each 29 CFR 1625-1627, Title 23 USC Section 140, the subcontract and further require its inclusion in all lower tier Rehabilitation Act of 1973, as amended (29 USC 794), Title VI subcontracts (excluding purchase orders, rental agreements of the Civil Rights Act of 1964, as amended, and related and other agreements for supplies or services). regulations including 49 CFR Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase The contractor and all subcontractors must comply with: the order, rental agreement or agreement for other services. The requirements of the Equal Opportunity Clause in 41 CFR 60- prime contractor shall be responsible for compliance by any 1.4(b) and, for all construction contracts exceeding $10,000, subcontractor, lower-tier subcontractor or service provider. the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3. Form FHWA-1273 must be included in all Federal-aid design- build contracts, in all subcontracts and in lower tier Note: The U.S. Department of Labor has exclusive authority to subcontracts (excluding subcontracts for design services, determine compliance with Executive Order 11246 and the purchase orders, rental agreements and other agreements for policies of the Secretary of Labor including 41 CFR 60, and 29 supplies or services). The design-builder shall be responsible CFR 1625-1627. The contracting agency and the FHWA have for compliance by any subcontractor, lower-tier subcontractor the authority and the responsibility to ensure compliance with or service provider. Title 23 USC Section 140, the Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of Contracting agencies may reference Form FHWA-1273 in bid 1964, as amended, and related regulations including 49 CFR proposal or request for proposal documents, however, the Parts 21, 26 and 27; and 23 CFR Parts 200, 230, and 633. Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier The following provision is adopted from 23 CFR 230, Appendix subcontracts (excluding purchase orders, rental agreements A, with appropriate revisions to conform to the U.S. and other agreements for supplies or services related to a Department of Labor (US DOL) and FHWA requirements. construction contract). 1. Equal Employment Opportunity: Equal employment 2. Subject to the applicability criteria noted in the following opportunity (EEO) requirements not to discriminate and to take sections, these contract provisions shall apply to all work affirmative action to assure equal opportunity as set forth performed on the contract by the contractor's own organization under laws, executive orders, rules, regulations (28 CFR 35, and with the assistance of workers under the contractor's 29 CFR 1630, 29 CFR 1625-1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as modified by the
112 SHA 10-03-12 provisions prescribed herein, and imposed pursuant to 23 employees by means of meetings, employee handbooks, or U.S.C. 140 shall constitute the EEO and specific affirmative other appropriate means. action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities 4. Recruitment: When advertising for employees, the Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR contractor will include in all advertisements for employees the 35 and 29 CFR 1630 are incorporated by reference in this notation: "An Equal Opportunity Employer." All such contract. In the execution of this contract, the contractor advertisements will be placed in publications having a large agrees to comply with the following minimum specific circulation among minorities and women in the area from requirement activities of EEO: which the project work force would normally be derived.
a. The contractor will work with the contracting agency and a. The contractor will, unless precluded by a valid the Federal Government to ensure that it has made every bargaining agreement, conduct systematic and direct good faith effort to provide equal opportunity with respect to all recruitment through public and private employee referral of its terms and conditions of employment and in their review sources likely to yield qualified minorities and women. To of activities under the contract. meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such b. The contractor will accept as its operating policy the identified sources procedures whereby minority and women following statement: applicants may be referred to the contractor for employment consideration. "It is the policy of this Company to assure that applicants are employed, and that employees are treated during b. In the event the contractor has a valid bargaining employment, without regard to their race, religion, sex, color, agreement providing for exclusive hiring hall referrals, the national origin, age or disability. Such action shall include: contractor is expected to observe the provisions of that employment, upgrading, demotion, or transfer; recruitment or agreement to the extent that the system meets the contractor's recruitment advertising; layoff or termination; rates of pay or compliance with EEO contract provisions. Where other forms of compensation; and selection for training, implementation of such an agreement has the effect of including apprenticeship, pre-apprenticeship, and/or on-the- discriminating against minorities or women, or obligates the job training." contractor to do the same, such implementation violates Federal nondiscrimination provisions. 2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have c. The contractor will encourage its present employees to the responsibility for and must be capable of effectively refer minorities and women as applicants for employment. administering and promoting an active EEO program and who Information and procedures with regard to referring such must be assigned adequate authority and responsibility to do applicants will be discussed with employees. so. 5. Personnel Actions: Wages, working conditions, and 3. Dissemination of Policy: All members of the contractor's employee benefits shall be established and administered, and staff who are authorized to hire, supervise, promote, and personnel actions of every type, including hiring, upgrading, discharge employees, or who recommend such action, or who promotion, transfer, demotion, layoff, and termination, shall be are substantially involved in such action, will be made fully taken without regard to race, color, religion, sex, national cognizant of, and will implement, the contractor's EEO policy origin, age or disability. The following procedures shall be and contractual responsibilities to provide EEO in each grade followed: and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a a. The contractor will conduct periodic inspections of project minimum: sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site a. Periodic meetings of supervisory and personnel office personnel. employees will be conducted before the start of work and then not less often than once every six months, at which time the b. The contractor will periodically evaluate the spread of contractor's EEO policy and its implementation will be wages paid within each classification to determine any reviewed and explained. The meetings will be conducted by evidence of discriminatory wage practices. the EEO Officer. c. The contractor will periodically review selected personnel b. All new supervisory or personnel office employees will be actions in depth to determine whether there is evidence of given a thorough indoctrination by the EEO Officer, covering discrimination. Where evidence is found, the contractor will all major aspects of the contractor's EEO obligations within promptly take corrective action. If the review indicates that the thirty days following their reporting for duty with the contractor. discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the d. The contractor will promptly investigate all complaints of contractor's procedures for locating and hiring minorities and alleged discrimination made to the contractor in connection women. with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action d. Notices and posters setting forth the contractor's EEO within a reasonable time. If the investigation indicates that the policy will be placed in areas readily accessible to employees, discrimination may affect persons other than the complainant, applicants for employment and potential employees. such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform e. The contractor's EEO policy and the procedures to every complainant of all of their avenues of appeal. implement such policy will be brought to the attention of
113 SHA 10-03-12 6. Training and Promotion: special provisions, such contractor shall immediately notify the contracting agency. a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are 8. Reasonable Accommodation for Applicants / applicants for employment or current employees. Such efforts Employees with Disabilities: The contractor must be familiar should be aimed at developing full journey level status with the requirements for and comply with the Americans with employees in the type of trade or job classification involved. Disabilities Act and all rules and regulations established there under. Employers must provide reasonable accommodation in b. Consistent with the contractor's work force requirements all employment activities unless to do so would cause an and as permissible under Federal and State regulations, the undue hardship. contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the 9. Selection of Subcontractors, Procurement of Materials geographical area of contract performance. In the event a and Leasing of Equipment: The contractor shall not special provision for training is provided under this contract, discriminate on the grounds of race, color, religion, sex, this subparagraph will be superseded as indicated in the national origin, age or disability in the selection and retention special provision. The contracting agency may reserve of subcontractors, including procurement of materials and training positions for persons who receive welfare assistance leases of equipment. The contractor shall take all necessary in accordance with 23 U.S.C. 140(a). and reasonable steps to ensure nondiscrimination in the administration of this contract. c. The contractor will advise employees and applicants for employment of available training programs and entrance a. The contractor shall notify all potential subcontractors and requirements for each. suppliers and lessors of their EEO obligations under this contract. d. The contractor will periodically review the training and promotion potential of employees who are minorities and b. The contractor will use good faith efforts to ensure women and will encourage eligible employees to apply for subcontractor compliance with their EEO obligations. such training and promotion.
7. Unions: If the contractor relies in whole or in part upon 10. Assurance Required by 49 CFR 26.13(b): unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to a. The requirements of 49 CFR Part 26 and the State increase opportunities for minorities and women. Actions by DOT’s U.S. DOT-approved DBE program are incorporated by the contractor, either directly or through a contractor's reference. association acting as agent, will include the procedures set forth below: b. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the a. The contractor will use good faith efforts to develop, in performance of this contract. The contractor shall carry out cooperation with the unions, joint training programs aimed applicable requirements of 49 CFR Part 26 in the award and toward qualifying more minorities and women for membership administration of DOT-assisted contracts. Failure by the in the unions and increasing the skills of minorities and women contractor to carry out these requirements is a material breach so that they may qualify for higher paying employment. of this contract, which may result in the termination of this contract or such other remedy as the contracting agency b. The contractor will use good faith efforts to incorporate an deems appropriate. EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without 11. Records and Reports: The contractor shall keep such regard to their race, color, religion, sex, national origin, age or records as necessary to document compliance with the EEO disability. requirements. Such records shall be retained for a period of three years following the date of the final payment to the c. The contractor is to obtain information as to the referral contractor for all contract work and shall be available at practices and policies of the labor union except that to the reasonable times and places for inspection by authorized extent such information is within the exclusive possession of representatives of the contracting agency and the FHWA. the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to a. The records kept by the contractor shall document the the contracting agency and shall set forth what efforts have following: been made to obtain such information. (1) The number and work hours of minority and non- d. In the event the union is unable to provide the contractor minority group members and women employed in each work with a reasonable flow of referrals within the time limit set forth classification on the project; in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment (2) The progress and efforts being made in cooperation vacancies without regard to race, color, religion, sex, national with unions, when applicable, to increase employment origin, age or disability; making full efforts to obtain qualified opportunities for minorities and women; and and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to (3) The progress and efforts being made in locating, hiring, provide exclusive referrals under the terms of a collective training, qualifying, and upgrading minorities and women; bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral b. The contractors and subcontractors will submit an annual practice prevents the contractor from meeting the obligations report to the contracting agency each July for the duration of pursuant to Executive Order 11246, as amended, and these the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work
114 SHA 10-03-12 classification required by the contract work. This information is Contributions made or costs reasonably anticipated for bona to be reported on Form FHWA-1391. The staffing data should fide fringe benefits under section 1(b)(2) of the Davis-Bacon represent the project work force on board in all or any part of Act on behalf of laborers or mechanics are considered wages the last payroll period preceding the end of July. If on-the-job paid to such laborers or mechanics, subject to the provisions training is being required by special provision, the contractor of paragraph 1.d. of this section; also, regular contributions will be required to collect and report training data. The made or costs incurred for more than a weekly period (but not employment data should reflect the work force on board during less often than quarterly) under plans, funds, or programs all or any part of the last payroll period preceding the end of which cover the particular weekly period, are deemed to be July. constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for III. NONSEGREGATED FACILITIES the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or This provision is applicable to all Federal-aid construction mechanics performing work in more than one classification contracts and to all related construction subcontracts of may be compensated at the rate specified for each $10,000 or more. classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the The contractor must ensure that facilities provided for time spent in each classification in which work is performed. employees are provided in such a manner that segregation on The wage determination (including any additional classification the basis of race, color, religion, sex, or national origin cannot and wage rates conformed under paragraph 1.b. of this result. The contractor may neither require such segregated section) and the Davis-Bacon poster (WH–1321) shall be use by written or oral policies nor tolerate such use by posted at all times by the contractor and its subcontractors at employee custom. The contractor's obligation extends further the site of the work in a prominent and accessible place where to ensure that its employees are not assigned to perform their it can be easily seen by the workers. services at any location, under the contractor's control, where the facilities are segregated. The term "facilities" includes b. (1) The contracting officer shall require that any class of waiting rooms, work areas, restaurants and other eating areas, laborers or mechanics, including helpers, which is not listed in time clocks, restrooms, washrooms, locker rooms, and other the wage determination and which is to be employed under the storage or dressing areas, parking lots, drinking fountains, contract shall be classified in conformance with the wage recreation or entertainment areas, transportation, and housing determination. The contracting officer shall approve an provided for employees. The contractor shall provide separate additional classification and wage rate and fringe benefits or single-user restrooms and necessary dressing or sleeping therefore only when the following criteria have been met: areas to assure privacy between sexes.
(i) The work to be performed by the classification IV. DAVIS-BACON AND RELATED ACT PROVISIONS requested is not performed by a classification in the wage determination; and This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and (ii) The classification is utilized in the area by the lower-tier subcontracts (regardless of subcontract size). The construction industry; and requirements apply to all projects located within the right-of- way of a roadway that is functionally classified as Federal-aid (iii) The proposed wage rate, including any bona fide highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. fringe benefits, bears a reasonable relationship to the Contracting agencies may elect to apply these requirements to wage rates contained in the wage determination. other projects. (2) If the contractor and the laborers and mechanics to be The following provisions are from the U.S. Department of employed in the classification (if known), or their Labor regulations in 29 CFR 5.5 “Contract provisions and representatives, and the contracting officer agree on the related matters” with minor revisions to conform to the FHWA- classification and wage rate (including the amount 1273 format and FHWA program requirements. designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment 1. Minimum wages Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every a. All laborers and mechanics employed or working upon additional classification action within 30 days of receipt and the site of the work, will be paid unconditionally and not less so advise the contracting officer or will notify the contracting often than once a week, and without subsequent deduction or officer within the 30-day period that additional time is rebate on any account (except such payroll deductions as are necessary. permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents (3) In the event the contractor, the laborers or mechanics thereof) due at time of payment computed at rates not less to be employed in the classification or their representatives, than those contained in the wage determination of the and the contracting officer do not agree on the proposed Secretary of Labor which is attached hereto and made a part classification and wage rate (including the amount hereof, regardless of any contractual relationship which may designated for fringe benefits, where appropriate), the be alleged to exist between the contractor and such laborers contracting officer shall refer the questions, including the and mechanics. views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for
115 SHA 10-03-12 determination. The Wage and Hour Administrator, or an the wages of any laborer or mechanic include the amount of authorized representative, will issue a determination within any costs reasonably anticipated in providing benefits under a 30 days of receipt and so advise the contracting officer or plan or program described in section 1(b)(2)(B) of the Davis- will notify the contracting officer within the 30-day period that Bacon Act, the contractor shall maintain records which show additional time is necessary. that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the (4) The wage rate (including fringe benefits where laborers or mechanics affected, and records which show the appropriate) determined pursuant to paragraphs 1.b.(2) or costs anticipated or the actual cost incurred in providing such 1.b.(3) of this section, shall be paid to all workers performing benefits. Contractors employing apprentices or trainees under work in the classification under this contract from the first approved programs shall maintain written evidence of the day on which work is performed in the classification. registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and c. Whenever the minimum wage rate prescribed in the trainees, and the ratios and wage rates prescribed in the contract for a class of laborers or mechanics includes a fringe applicable programs. benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination b. (1) The contractor shall submit weekly for each week in or shall pay another bona fide fringe benefit or an hourly cash which any contract work is performed a copy of all payrolls to equivalent thereof. the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be d. If the contractor does not make payments to a trustee or maintained under 29 CFR 5.5(a)(3)(i), except that full social other third person, the contractor may consider as part of the security numbers and home addresses shall not be included wages of any laborer or mechanic the amount of any costs on weekly transmittals. Instead the payrolls shall only need to reasonably anticipated in providing bona fide fringe benefits include an individually identifying number for each employee ( under a plan or program, Provided, That the Secretary of e.g. , the last four digits of the employee's social security Labor has found, upon the written request of the contractor, number). The required weekly payroll information may be that the applicable standards of the Davis-Bacon Act have submitted in any form desired. Optional Form WH–347 is been met. The Secretary of Labor may require the contractor available for this purpose from the Wage and Hour Division to set aside in a separate account assets for the meeting of Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm obligations under the plan or program. or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social 2. Withholding security number and current address of each covered worker, and shall provide them upon request to the contracting agency The contracting agency shall upon its own action or upon for transmission to the State DOT, the FHWA or the Wage and written request of an authorized representative of the Hour Division of the Department of Labor for purposes of an Department of Labor, withhold or cause to be withheld from investigation or audit of compliance with prevailing wage the contractor under this contract, or any other Federal requirements. It is not a violation of this section for a prime contract with the same prime contractor, or any other federally- contractor to require a subcontractor to provide addresses and assisted contract subject to Davis-Bacon prevailing wage social security numbers to the prime contractor for its own requirements, which is held by the same prime contractor, so records, without weekly submission to the contracting agency.. much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, (2) Each payroll submitted shall be accompanied by a including apprentices, trainees, and helpers, employed by the “Statement of Compliance,” signed by the contractor or contractor or any subcontractor the full amount of wages subcontractor or his or her agent who pays or supervises the required by the contract. In the event of failure to pay any payment of the persons employed under the contract and shall laborer or mechanic, including any apprentice, trainee, or certify the following: helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as (i) That the payroll for the payroll period contains the may be necessary to cause the suspension of any further information required to be provided under §5.5 (a)(3)(ii) of payment, advance, or guarantee of funds until such violations Regulations, 29 CFR part 5, the appropriate information is have ceased. being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; 3. Payrolls and basic records
(ii) That each laborer or mechanic (including each a. Payrolls and basic records relating thereto shall be helper, apprentice, and trainee) employed on the contract maintained by the contractor during the course of the work and during the payroll period has been paid the full weekly preserved for a period of three years thereafter for all laborers wages earned, without rebate, either directly or indirectly, and mechanics working at the site of the work. Such records and that no deductions have been made either directly or shall contain the name, address, and social security number of indirectly from the full wages earned, other than each such worker, his or her correct classification, hourly rates permissible deductions as set forth in Regulations, 29 CFR of wages paid (including rates of contributions or costs part 3; anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, (iii) That each laborer or mechanic has been paid not deductions made and actual wages paid. Whenever the less than the applicable wage rates and fringe benefits or Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that cash equivalents for the classification of work performed,
116 SHA 10-03-12 as specified in the applicable wage determination Every apprentice must be paid at not less than the rate incorporated into the contract. specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. (3) The weekly submission of a properly executed Apprentices shall be paid fringe benefits in accordance with certification set forth on the reverse side of Optional Form the provisions of the apprenticeship program. If the WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits this section. listed on the wage determination for the applicable classification. If the Administrator determines that a different (4) The falsification of any of the above certifications may practice prevails for the applicable apprentice classification, subject the contractor or subcontractor to civil or criminal fringes shall be paid in accordance with that determination. prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency c. The contractor or subcontractor shall make the records recognized by the Office, withdraws approval of an required under paragraph 3.a. of this section available for apprenticeship program, the contractor will no longer be inspection, copying, or transcription by authorized permitted to utilize apprentices at less than the applicable representatives of the contracting agency, the State DOT, the predetermined rate for the work performed until an acceptable FHWA, or the Department of Labor, and shall permit such program is approved. representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the b. Trainees (programs of the USDOL). required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to Except as provided in 29 CFR 5.16, trainees will not be cause the suspension of any further payment, advance, or permitted to work at less than the predetermined rate for the guarantee of funds. Furthermore, failure to submit the required work performed unless they are employed pursuant to and records upon request or to make such records available may individually registered in a program which has received prior be grounds for debarment action pursuant to 29 CFR 5.12. approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. 4. Apprentices and trainees
The ratio of trainees to journeymen on the job site shall not be a. Apprentices (programs of the USDOL). greater than permitted under the plan approved by the Employment and Training Administration. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are Every trainee must be paid at not less than the rate specified employed pursuant to and individually registered in a bona fide in the approved program for the trainee's level of progress, apprenticeship program registered with the U.S. Department of expressed as a percentage of the journeyman hourly rate Labor, Employment and Training Administration, Office of specified in the applicable wage determination. Trainees shall Apprenticeship Training, Employer and Labor Services, or with be paid fringe benefits in accordance with the provisions of the a State Apprenticeship Agency recognized by the Office, or if a trainee program. If the trainee program does not mention person is employed in his or her first 90 days of probationary fringe benefits, trainees shall be paid the full amount of fringe employment as an apprentice in such an apprenticeship benefits listed on the wage determination unless the program, who is not individually registered in the program, but Administrator of the Wage and Hour Division determines that who has been certified by the Office of Apprenticeship there is an apprenticeship program associated with the Training, Employer and Labor Services or a State corresponding journeyman wage rate on the wage Apprenticeship Agency (where appropriate) to be eligible for determination which provides for less than full fringe benefits probationary employment as an apprentice. for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan The allowable ratio of apprentices to journeymen on the job approved by the Employment and Training Administration shall site in any craft classification shall not be greater than the ratio be paid not less than the applicable wage rate on the wage permitted to the contractor as to the entire work force under determination for the classification of work actually performed. the registered program. Any worker listed on a payroll at an In addition, any trainee performing work on the job site in apprentice wage rate, who is not registered or otherwise excess of the ratio permitted under the registered program employed as stated above, shall be paid not less than the shall be paid not less than the applicable wage rate on the applicable wage rate on the wage determination for the wage determination for the work actually performed. classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the In the event the Employment and Training Administration ratio permitted under the registered program shall be paid not withdraws approval of a training program, the contractor will no less than the applicable wage rate on the wage determination longer be permitted to utilize trainees at less than the for the work actually performed. Where a contractor is applicable predetermined rate for the work performed until an performing construction on a project in a locality other than acceptable program is approved. that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered c. Equal employment opportunity. The utilization of program shall be observed. apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity
117 SHA 10-03-12 requirements of Executive Order 11246, as amended, and 29 CFR part 30. V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT d. Apprentices and Trainees (programs of the U.S. DOT).
The following clauses apply to any Federal-aid construction Apprentices and trainees working under apprenticeship and contract in an amount in excess of $100,000 and subject to the skill training programs which have been certified by the overtime provisions of the Contract Work Hours and Safety Secretary of Transportation as promoting EEO in connection Standards Act. These clauses shall be inserted in addition to with Federal-aid highway construction programs are not the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As subject to the requirements of paragraph 4 of this Section IV. used in this paragraph, the terms laborers and mechanics The straight time hourly wage rates for apprentices and include watchmen and guards. trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of 1. Overtime requirements. No contractor or subcontractor the particular program. 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 5. Compliance with Copeland Act requirements. The workweek in which he or she is employed on such work to contractor shall comply with the requirements of 29 CFR part work in excess of forty hours in such workweek unless such 3, which are incorporated by reference in this contract. laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours 6. Subcontracts. The contractor or subcontractor shall insert worked in excess of forty hours in such workweek. Form FHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier 2. Violation; liability for unpaid wages; liquidated subcontracts. The prime contractor shall be responsible for the damages. In the event of any violation of the clause set forth compliance by any subcontractor or lower tier subcontractor in paragraph (1.) of this section, the contractor and any with all the contract clauses in 29 CFR 5.5. subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor 7. Contract termination: debarment. A breach of the shall be liable to the United States (in the case of work done contract clauses in 29 CFR 5.5 may be grounds for termination under contract for the District of Columbia or a territory, to such of the contract, and for debarment as a contractor and a District or to such territory), for liquidated damages. Such subcontractor as provided in 29 CFR 5.12. 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 8. Compliance with Davis-Bacon and Related Act paragraph (1.) of this section, in the sum of $10 for each All rulings and interpretations of the Davis- requirements. calendar day on which such individual was required or Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 permitted to work in excess of the standard workweek of forty are herein incorporated by reference in this contract. hours without payment of the overtime wages required by the clause set forth in paragraph (1.) of this section. 9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not 3. Withholding for unpaid wages and liquidated damages. be subject to the general disputes clause of this contract. Such The FHWA or the contacting agency shall upon its own action disputes shall be resolved in accordance with the procedures or upon written request of an authorized representative of the of the Department of Labor set forth in 29 CFR parts 5, 6, and Department of Labor withhold or cause to be withheld, from 7. Disputes within the meaning of this clause include disputes any moneys payable on account of work performed by the between the contractor (or any of its subcontractors) and the contractor or subcontractor under any such contract or any contracting agency, the U.S. Department of Labor, or the other Federal contract with the same prime contractor, or any employees or their representatives. other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same 10. Certification of eligibility. 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 a. By entering into this contract, the contractor certifies that provided in the clause set forth in paragraph (2.) of this neither it (nor he or she) nor any person or firm who has an section. interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). 4. 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 b. No part of this contract shall be subcontracted to any person subcontractors to include these clauses in any lower tier or firm ineligible for award of a Government contract by virtue subcontracts. The prime contractor shall be responsible for of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this c. The penalty for making false statements is prescribed in the section. U.S. Criminal Code, 18 U.S.C. 1001.
118 SHA 10-03-12 evidenced in writing and that it contains all pertinent provisions VI. SUBLETTING OR ASSIGNING THE CONTRACT and requirements of the prime contract.
This provision is applicable to all Federal-aid construction 5. The 30% self-performance requirement of paragraph (1) is contracts on the National Highway System. not applicable to design-build contracts; however, contracting agencies may establish their own self-performance 1. The contractor shall perform with its own organization requirements. contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items VII. SAFETY: ACCIDENT PREVENTION designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such This provision is applicable to all Federal-aid construction specialty items performed may be deducted from the total contracts and to all related subcontracts. original contract price before computing the amount of work required to be performed by the contractor's own organization 1. In the performance of this contract the contractor shall (23 CFR 635.116). comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The a. The term “perform work with its own organization” refers contractor shall provide all safeguards, safety devices and to workers employed or leased by the prime contractor, and protective equipment and take any other needed actions as it equipment owned or rented by the prime contractor, with or determines, or as the contracting officer may determine, to be without operators. Such term does not include employees or reasonably necessary to protect the life and health of equipment of a subcontractor or lower tier subcontractor, employees on the job and the safety of the public and to agents of the prime contractor, or any other assignees. The protect property in connection with the performance of the term may include payments for the costs of hiring leased work covered by the contract. employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased 2. It is a condition of this contract, and shall be made a employees may only be included in this term if the prime condition of each subcontract, which the contractor enters into contractor meets all of the following conditions: pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance (1) the prime contractor maintains control over the of the contract, to work in surroundings or under conditions supervision of the day-to-day activities of the leased which are unsanitary, hazardous or dangerous to his/her employees; health or safety, as determined under construction safety and (2) the prime contractor remains responsible for the quality health standards (29 CFR 1926) promulgated by the Secretary of the work of the leased employees; of Labor, in accordance with Section 107 of the Contract Work (3) the prime contractor retains all power to accept or Hours and Safety Standards Act (40 U.S.C. 3704). exclude individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract the payment of predetermined minimum wages, the that the Secretary of Labor or authorized representative submission of payrolls, statements of compliance and all thereof, shall have right of entry to any site of contract other Federal regulatory requirements. performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry b. "Specialty Items" shall be construed to be limited to work out the duties of the Secretary under Section 107 of the that requires highly specialized knowledge, abilities, or Contract Work Hours and Safety Standards Act (40 equipment not ordinarily available in the type of contracting U.S.C.3704). organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS 2. The contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of This provision is applicable to all Federal-aid construction material and manufactured products which are to be contracts and to all related subcontracts. purchased or produced by the contractor under the contract provisions. In order to assure high quality and durable construction in conformity with approved plans and specifications and a high 3. The contractor shall furnish (a) a competent superintendent degree of reliability on statements and representations made or supervisor who is employed by the firm, has full authority to by engineers, contractors, suppliers, and workers on Federal- direct performance of the work in accordance with the contract aid highway projects, it is essential that all persons concerned requirements, and is in charge of all construction operations with the project perform their functions as carefully, thoroughly, (regardless of who performs the work) and (b) such other of its and honestly as possible. Willful falsification, distortion, or own organizational resources (supervision, management, and misrepresentation with respect to any facts related to the engineering services) as the contracting officer determines is project is a violation of Federal law. To prevent any necessary to assure the performance of the contract. misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each 4. No portion of the contract shall be sublet, assigned or Federal-aid highway project (23 CFR 635) in one or more otherwise disposed of except with the written consent of the places where it is readily available to all persons concerned contracting officer, or authorized representative, and such with the project: consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the 18 U.S.C. 1020 reads as follows: contracting agency has assured that each subcontract is
119 SHA 10-03-12 "Whoever, being an officer, agent, or employee of the United covered transaction. The prospective first tier participant shall States, or of any State or Territory, or whoever, whether a submit an explanation of why it cannot provide the certification person, association, firm, or corporation, knowingly makes any set out below. The certification or explanation will be false statement, false representation, or false report as to the considered in connection with the department or agency's character, quality, quantity, or cost of the material used or to determination whether to enter into this transaction. However, be used, or the quantity or quality of the work performed or to failure of the prospective first tier participant to furnish a be performed, or the cost thereof in connection with the certification or an explanation shall disqualify such a person submission of plans, maps, specifications, contracts, or costs from participation in this transaction. of construction on any highway or related project submitted for approval to the Secretary of Transportation; or c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting Whoever knowingly makes any false statement, false agency determined to enter into this transaction. If it is later representation, false report or false claim with respect to the determined that the prospective participant knowingly rendered character, quality, quantity, or cost of any work performed or to an erroneous certification, in addition to other remedies be performed, or materials furnished or to be furnished, in available to the Federal Government, the contracting agency connection with the construction of any highway or related may terminate this transaction for cause of default. project approved by the Secretary of Transportation; or d. The prospective first tier participant shall provide Whoever knowingly makes any false statement or false immediate written notice to the contracting agency to whom representation as to material fact in any statement, certificate, this proposal is submitted if any time the prospective first tier or report submitted pursuant to provisions of the Federal-aid participant learns that its certification was erroneous when Roads Act approved July 1, 1916, (39 Stat. 355), as amended submitted or has become erroneous by reason of changed and supplemented; circumstances.
Shall be fined under this title or imprisoned not more than 5 e. The terms "covered transaction," "debarred," years or both." "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180 and 1200. “First Tier Covered IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL Transactions” refers to any covered transaction between a WATER POLLUTION CONTROL ACT grantee or subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered This provision is applicable to all Federal-aid construction Transactions” refers to any covered transaction under a First contracts and to all related subcontracts. Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a By submission of this bid/proposal or the execution of this covered transaction with a grantee or subgrantee of Federal contract, or subcontract, as appropriate, the bidder, proposer, funds (such as the prime or general contractor). “Lower Tier Federal-aid construction contractor, or subcontractor, as Participant” refers any participant who has entered into a appropriate, will be deemed to have stipulated as follows: covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). 1. That any person who is or will be utilized in the performance of this contract is not prohibited from receiving an f. The prospective first tier participant agrees by submitting award due to a violation of Section 508 of the Clean Water Act this proposal that, should the proposed covered transaction be or Section 306 of the Clean Air Act. entered into, it shall not knowingly enter into any lower tier 2. That the contractor agrees to include or cause to be covered transaction with a person who is debarred, included the requirements of paragraph (1) of this Section X in suspended, declared ineligible, or voluntarily excluded from every subcontract, and further agrees to take such action as participation in this covered transaction, unless authorized by the contracting agency may direct as a means of enforcing the department or agency entering into this transaction. such requirements. g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled X. CERTIFICATION REGARDING DEBARMENT, "Certification Regarding Debarment, Suspension, Ineligibility SUSPENSION, INELIGIBILITY AND VOLUNTARY and Voluntary Exclusion-Lower Tier Covered Transactions," EXCLUSION provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower This provision is applicable to all Federal-aid construction tier covered transactions and in all solicitations for lower tier contracts, design-build contracts, subcontracts, lower-tier covered transactions exceeding the $25,000 threshold. subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA h. A participant in a covered transaction may rely upon a approval or that is estimated to cost $25,000 or more – as certification of a prospective participant in a lower tier covered defined in 2 CFR Parts 180 and 1200. transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, 1. Instructions for Certification – First Tier Participants: debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as a. By signing and submitting this proposal, the prospective the eligibility of any lower tier prospective participants, each first tier participant is providing the certification set out below. participant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which is b. The inability of a person to provide the certification set out compiled by the General Services Administration. below will not necessarily result in denial of participation in this
120 SHA 10-03-12 i. Nothing contained in the foregoing shall be construed to this transaction originated may pursue available remedies, require the establishment of a system of records in order to including suspension and/or debarment. render in good faith the certification required by this clause. The knowledge and information of the prospective participant c. The prospective lower tier participant shall provide is not required to exceed that which is normally possessed by immediate written notice to the person to which this proposal is a prudent person in the ordinary course of business dealings. submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of j. Except for transactions authorized under paragraph (f) of changed circumstances. these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a d. The terms "covered transaction," "debarred," person who is suspended, debarred, ineligible, or voluntarily "suspended," "ineligible," "participant," "person," "principal," excluded from participation in this transaction, in addition to and "voluntarily excluded," as used in this clause, are defined other remedies available to the Federal Government, the in 2 CFR Parts 180 and 1200. You may contact the person to department or agency may terminate this transaction for cause which this proposal is submitted for assistance in obtaining a or default. copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a grantee or * * * * * subgrantee of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” 2. Certification Regarding Debarment, Suspension, refers to any covered transaction under a First Tier Covered Ineligibility and Voluntary Exclusion – First Tier Transaction (such as subcontracts). “First Tier Participant” Participants: refers to the participant who has entered into a covered transaction with a grantee or subgrantee of Federal funds a. The prospective first tier participant certifies to the best of (such as the prime or general contractor). “Lower Tier its knowledge and belief, that it and its principals: Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower (1) Are not presently debarred, suspended, proposed for Tier Participants (such as subcontractors and suppliers). debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal e. The prospective lower tier participant agrees by department or agency; submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into (2) Have not within a three-year period preceding this any lower tier covered transaction with a person who is proposal been convicted of or had a civil judgment rendered debarred, suspended, declared ineligible, or voluntarily against them for commission of fraud or a criminal offense in excluded from participation in this covered transaction, unless connection with obtaining, attempting to obtain, or performing authorized by the department or agency with which this a public (Federal, State or local) transaction or contract under transaction originated. a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, f. The prospective lower tier participant further agrees by bribery, falsification or destruction of records, making false submitting this proposal that it will include this clause titled statements, or receiving stolen property; "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," (3) Are not presently indicted for or otherwise criminally or without modification, in all lower tier covered transactions and civilly charged by a governmental entity (Federal, State or in all solicitations for lower tier covered transactions exceeding local) with commission of any of the offenses enumerated in the $25,000 threshold. paragraph (a)(2) of this certification; and g. A participant in a covered transaction may rely upon a (4) Have not within a three-year period preceding this certification of a prospective participant in a lower tier covered application/proposal had one or more public transactions transaction that is not debarred, suspended, ineligible, or (Federal, State or local) terminated for cause or default. voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is b. Where the prospective participant is unable to certify to responsible for ensuring that its principals are not suspended, any of the statements in this certification, such prospective debarred, or otherwise ineligible to participate in covered participant shall attach an explanation to this proposal. transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each 2. Instructions for Certification - Lower Tier Participants: participant may, but is not required to, check the Excluded Parties List System website (https://www.epls.gov/), which is (Applicable to all subcontracts, purchase orders and other compiled by the General Services Administration. lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and h. Nothing contained in the foregoing shall be construed to 1200) require establishment of a system of records in order to render in good faith the certification required by this clause. The a. By signing and submitting this proposal, the prospective knowledge and information of participant is not required to lower tier is providing the certification set out below. exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction i. Except for transactions authorized under paragraph e of was entered into. If it is later determined that the prospective these instructions, if a participant in a covered transaction lower tier participant knowingly rendered an erroneous knowingly enters into a lower tier covered transaction with a certification, in addition to other remedies available to the person who is suspended, debarred, ineligible, or voluntarily Federal Government, the department, or agency with which excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the
121 SHA 10-03-12 department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
* * * * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
* * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 (49 CFR 20).
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
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ATTACHMENT N – CONTRACT AFFIDAVIT
A. AUTHORITY
I hereby affirm that I, ______(name of affiant) am the ______(title) and duly authorized representative of ______(name of business entity) and that I possess the legal authority to make this affidavit on behalf of the business for which I am acting.
B. CERTIFICATION OF REGISTRATION OR QUALIFICATION WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION
I FURTHER AFFIRM THAT:
The business named above is a (check applicable box):
(1) Corporation domestic or foreign; (2) Limited Liability Company domestic or foreign; (3) Partnership domestic or foreign; (4) Statutory Trust domestic or foreign; (5) Sole Proprietorship. and is registered or qualified as required under Maryland Law. I further affirm that the above business is in good standing both in Maryland and (IF APPLICABLE) in the jurisdiction where it is presently organized, and has filed all of its annual reports, together with filing fees, with the Maryland State Department of Assessments and Taxation. The name and address of its resident agent (IF APPLICABLE) filed with the State Department of Assessments and Taxation is:
Name and Department ID Number: ______Address:______and that if it does business under a trade name, it has filed a certificate with the State Department of Assessments and Taxation that correctly identifies that true name and address of the principal or owner as:
Name and Department ID Number: ______Address:______
C. FINANCIAL DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with, the provisions of State Finance and Procurement Article, §13-221, Annotated Code of Maryland, which require that every business that enters into contracts, leases, or other agreements with the State of Maryland or its agencies during a calendar year under which the business is to receive in the aggregate $100,000 or more shall, within 30 days of the time when the aggregate value of the contracts, leases, or other agreements reaches $100,000, file with the Secretary of State of Maryland certain specified information to include disclosure of beneficial ownership of the business.
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D. POLITICAL CONTRIBUTION DISCLOSURE AFFIRMATION
I FURTHER AFFIRM THAT:
I am aware of, and the above business will comply with, Election Law Article, Title 14, Annotated Code of Maryland, which requires that every person that enters into a contract for a procurement with the State, a county, or a municipal corporation, or other political subdivision of the State, during a calendar year in which the person receives a contract with a governmental entity in the amount of $200,000 or more, shall file with the State Board of Elections statements disclosing: (a) any contributions made during the reporting period to a candidate for elective office in any primary or general election; and (b) the name of each candidate to whom one or more contributions in a cumulative amount of $500 or more were made during the reporting period. The statement shall be filed with the State Board of Elections: (a) before execution of a contract by the State, a county, a municipal corporation, or other political subdivision of the State, and shall cover the 24 months prior to when a contract was awarded; and (b) if the contribution is made after the execution of a contract, then twice a year, throughout the contract term, on or before: (i) May 31, to cover the six (6) month period ending April 30; and (ii) November 30, to cover the six (6) month period ending October 31.
E. DRUG AND ALCOHOL FREE WORKPLACE
(Applicable to all contracts unless the contract is for a law enforcement agency and the agency head or the agency head’s designee has determined that application of COMAR 21.11.08 and this certification would be inappropriate in connection with the law enforcement agency’s undercover operations.)
I CERTIFY THAT:
(1) Terms defined in COMAR 21.11.08 shall have the same meanings when used in this certification.
(2) By submission of its Proposal, the business, if other than an individual, certifies and agrees that, with respect to its employees to be employed under a contract resulting from this solicitation, the business shall:
(a) Maintain a workplace free of drug and alcohol abuse during the term of the contract;
(b) Publish a statement notifying its employees that the unlawful manufacture, distribution, dispensing, possession, or use of drugs, and the abuse of drugs or alcohol is prohibited in the business' workplace and specifying the actions that will be taken against employees for violation of these prohibitions;
(c) Prohibit its employees from working under the influence of drugs or alcohol;
(d) Not hire or assign to work on the contract anyone who the business knows, or in the exercise of due diligence should know, currently abuses drugs or alcohol and is not actively engaged in a bona fide drug or alcohol abuse assistance or rehabilitation program;
(e) Promptly inform the appropriate law enforcement agency of every drug-related crime that occurs in its workplace if the business has observed the violation or otherwise has reliable information that a violation has occurred;
(f) Establish drug and alcohol abuse awareness programs to inform its employees about:
(i) The dangers of drug and alcohol abuse in the workplace; (ii) The business's policy of maintaining a drug and alcohol free workplace; (iii) Any available drug and alcohol counseling, rehabilitation, and employee assistance programs; and
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(iv) The penalties that may be imposed upon employees who abuse drugs and alcohol in the workplace;
(g) Provide all employees engaged in the performance of the contract with a copy of the statement required by §E(2)(b), above;
(h) Notify its employees in the statement required by §E(2)(b), above, that as a condition of continued employment on the contract, the employee shall:
(i) Abide by the terms of the statement; and (ii) Notify the employer of any criminal drug or alcohol abuse conviction for an offense occurring in the workplace not later than 5 days after a conviction;
(i) Notify the procurement officer within 10 days after receiving notice under §E(2)(h)(ii), above, or otherwise receiving actual notice of a conviction;
(j) Within 30 days after receiving notice under §E(2)(h)(ii), above, or otherwise receiving actual notice of a conviction, impose either of the following sanctions or remedial measures on any employee who is convicted of a drug or alcohol abuse offense occurring in the workplace:
(i) Take appropriate personnel action against an employee, up to and including termination; or (ii) Require an employee to satisfactorily participate in a bona fide drug or alcohol abuse assistance or rehabilitation program; and
(k) Make a good faith effort to maintain a drug and alcohol free workplace through implementation of §E(2)(a)—(j), above.
(3) If the business is an individual, the individual shall certify and agree as set forth in §E(4), below, that the individual shall not engage in the unlawful manufacture, distribution, dispensing, possession, or use of drugs or the abuse of drugs or alcohol in the performance of the contract.
(4) I acknowledge and agree that:
(a) The award of the contract is conditional upon compliance with COMAR 21.11.08 and this certification;
(b) The violation of the provisions of COMAR 21.11.08 or this certification shall be cause to suspend payments under, or terminate the contract for default under COMAR 21.07.01.11 or 21.07.03.15, as applicable; and
(c) The violation of the provisions of COMAR 21.11.08 or this certification in connection with the contract may, in the exercise of the discretion of the Board of Public Works, result in suspension and debarment of the business under COMAR 21.08.03.
F. CERTAIN AFFIRMATIONS VALID
I FURTHER AFFIRM THAT:
To the best of my knowledge, information, and belief, each of the affirmations, certifications, or acknowledgements contained in that certain Proposal Affidavit dated ______, 201_____, and executed by me for the purpose of obtaining the contract to which this Exhibit is attached remains true and correct in all respects as if made as of the date of this Contract Affidavit and as if fully set forth herein.
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I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: ______
By: ______(printed name of Authorized Representative and Affiant)
______(signature of Authorized Representative and Affiant)
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ATTACHMENT O – DHR HIRING AGREEMENT
This solicitation does not require a DHR Hiring Agreement.
127 RFP Template Version: 01/20/2017 ATTACHMENT P – PERPETUAL EASEMENT TEMPLATE (REFERENCE ONLY)
Attachment begins on next page.
128 RFP Template Version: 01/20/2017 ══════════════════════════════════════════════════════ GRANT OF Mailing Address: EASEMENT Right of Way Item No. Records and Research Section TO 707 North Calvert Street THE STATE OF MARYLAND SHA Contract No. Baltimore, Maryland 21202 TO THE USE OF THE STATE HIGHWAY ADMINISTRATION OF THE MARYLAND DEPARTMENT OF TRANSPORTATION ══════════════════════════════════════════════════════
THIS GRANT OF EASEMENT made this day of in the year _____.
From ______, Grantor(s), unto the State of Maryland to the use of the State Highway Administration of the Maryland Department of Transportation, Grantee.
WHEREAS, the State Highway Administration of the Maryland Department of Transportation, acting for and on behalf of the State of Maryland, finds it necessary to acquire certain easements, rights and/or controls, located in ______County and shown and/or indicated on State Highway Administration Plat numbered ______which plat has been or is intended to be duly filed for record with and electronically recorded by the Maryland State Archives, in order to provide access and long term protection for Stream Restoration work including design, construction, adaptive management and monitoring/verification. , under its Contract Number ______and known as ______and to thereafter use, maintain and/or further improve said Stream Restoration, as a part of the Maryland State Roads System; and
WHEREAS, the total payment per §10-912(b) of the Tax-General Article of the Annotated Code of Maryland is ______and 00/100 Dollars ($______.00); and
WHEREAS, the undersigned certify(ies) under the penalties of perjury that the following is true to the best of his/her/their knowledge, information and belief, that in accordance with §10- 912(d)(1)(i) of the Tax-General Article of the Annotated Code of Maryland, he/she/they is/are a resident(s) of the State of Maryland.
AND GRANTOR DOES/GRANTORS DO FURTHER GRANT unto the State of Maryland, to the use of the State Highway Administration of the Maryland Department of Transportation, its successors and assigns, the perpetual right to create, use and maintain on the area of the land, containing _____square feet or ______of an acre, more or less, shown cross-hatched thus on State Highway Administration Plat numbered ______, such Stream Restoration as necessary in the opinion of the State Highway Administration to obtain credit pursuant to their Restoration goals.
AND GRANTOR DOES/GRANTORS DO FURTHER GRANT unto the State of Maryland, to the use of the State Highway Administration of the Maryland Department of Transportation, its successors
- 129 - and assigns, the perpetual right to discharge the flow of water from such Stream Restoration as necessary in the opinion of the State Highway Administration to obtain credit pursuant to their restoration goals (within the areas shown cross hatched thus ) into existing waterways or natural drainage courses, as indicated by the symbol , at the outlet end of the Stream Restoration, all of which are shown graphically and indicated by appropriate symbols and explanatory notations on the Plat numbered ___.
IT IS FURTHER AGREEED that the following restrictions will be put in place for the protection of the project site and the benefit of the State Highway Administration in their management and maintenance of the site: A. No commercial or recreational activities and no removal of vegetation shall occur on the Easement Area, except for: i. passive recreational activities (including hunting and fishing) that do not result in the destruction of, or harm the viability of vegetation in the Easement Area; ii. wildlife management with the approval of the State Highway Administration; and iii. forest management, and tree maintenance practices pursuant to a forest stewardship plan prepared by a licensed, registered forester, with the approval of the State Highway Administration. B. No materials may be dumped, placed or stored in the Easement Area, including, but not limited to, ashes, sawdust, bark, trash, garbage, rubbish, dredge spoil, chemicals, pesticides, fertilizers, abandoned vehicles, appliances, or machinery. C. No excavation of materials is permitted in the Easement Area, including, but not limited to, dredging, mining and removal of loam, gravel, soil, rock, sand, coal and petroleum. D. No building, facility, means of access or other structure shall be constructed in the Easement Area after the date of this Easement. E. The additional activities are prohibited within the Easement Area: i. Use of motorized vehicles, ii. agricultural use including use for cropland, waste lagoons, or pastureland, iii. placing structures or foundations, iv. placing of impervious surfaces, v. placing of signs without approval vi. grading, vii. and disposing of liquids other than clean water runoff.
A reduced copy of State Highway Administration Plat numbered _____ is attached hereto and incorporated herein as Exhibit No. 1.
BEING a part of the same property conveyed by a deed dated ______and recorded among the Land Records of ______County in Liber No. ____, folio ____, from ______unto
AND GRANTOR DOES/GRANTORS DO hereby covenant and agree, on behalf of itself, its successors and assigns, his/her/their heirs, personal representatives and assigns, themselves, their
130 assigns or the survivor of them, and the heirs, personal representatives and assigns of the survivor, to abide by and respect each and every control or restriction set forth in this instrument of writing, it being the intention of this granting of property rights to perpetuate all the rights and privileges granted to the State of Maryland, to the use of the State Highway Administration, by this Grant of Easement. It is expressly understood and agreed that these covenants shall run with and bind upon Grantor/Grantors, its successors and assigns, his/her/their heirs, personal representatives and assigns, their assigns or the survivor of them, and the heirs, personal representatives and assigns of the survivor, forever.
IT IS UNDERSTOOD AND AGREED that the actual consideration paid by Grantee to Grantor/Grantors shall constitute full and final payment for Grantee's acquisition of the easements, rights and/or and controls, as well as Grantee's use thereof, all as described herein including, if applicable, any damages available under Section 12-104 of the Real Property Article of the Annotated Code of Maryland.
TO HAVE AND TO HOLD the easements, rights and/or controls above described and mentioned and hereby intended to be granted unto the proper use and benefit of the State of Maryland, to the use of the State Highway Administration of the Maryland Department of Transportation, its successors and assigns, together with the privileges and controls hereinbefore mentioned.
AND Grantor covenants that it/he/they has/have neither done, nor suffered to be done, anything to encumber the easements, rights and/or controls hereby granted and that he/she/they will execute such other and further assurance of same as may be requisite and will specially warrant the herein granted easements, rights and/or controls.
AND ______join in this conveyance for the purpose of subordinating, and in fact do subordinate, their respective right, title and interest under the aforementioned Deeds of Trust in and to those portions of the property of Grantor which shall be subject to the operation and effect of those certain easements described herein; retaining their rights as mortgagees and/or lienors in and to the remainder of the land of Grantor not affected by this conveyance.
The actual consideration paid by Grantee to Grantor(s) is ______and 00/100 Dollars ($______.00).
IN WITNESS WHEREOF Grantor has/Grantors have hereunto set his/her/hands and seal/their hands and seals. or
IN WITNESS WHEREOF Grantor has caused this instrument to be executed and delivered by its proper and duly authorized officer/partner as the act and deed of said entity.
ATTEST:
131 ______By: ______(Seal) Name: ______Title: ______
WITNESS ______(Seal)
WITNESS ______(Seal)
══════════════════════════════════════════════════════
STATE OF MARYLAND - COUNTY OF ______
I hereby certify that, before me, the subscriber, a NOTARY PUBLIC of the STATE OF MARYLAND, in and for ______County, personally appeared ______, who acknowledged him/herself to be the ______of ______(“Corporation/Partnership/LLC”) and that he/she, as such officer/partner, being authorized so to do executed the foregoing grant of easement on behalf of the Corporation/Partnership/LLC.
AS WITNESS MY HAND AND NOTARIAL SEAL this ______day of ______in the year _____.
______(Seal) Notary Public My Commission Expires:
══════════════════════════════════════════════════════
STATE OF MARYLAND - COUNTY OF ______
I hereby certify that, before me, the subscriber, a NOTARY PUBLIC of the STATE OF MARYLAND, in and for ______County, personally appeared ______and ______, known to me (or satisfactorily proven) to be the person whose name appears/persons whose names appear herein and acknowledged the foregoing grant of easement to be his/her/their act.
AS WITNESS MY HAND AND NOTARIAL SEAL this ______day of ______in the year _____.
132 ______(Seal) Notary Public My Commission Expires: ______Return Recorded Deed to: I HEREBY CERTIFY that this instrument was prepared Chief under my supervision, an attorney admitted to Records and Research Section practice by the Court of Appeals of Maryland. State Highway Administration 707 North Calvert Street Baltimore, MD 21202 ______Felicia Jackson Taylor Assistant Attorney General
As a transfer of property to an agency of the State of Maryland, this instrument is not subject to recordation tax (Pursuant to Section 12-108(a) of the Tax-Property Article of the Annotated Code of Maryland) and transfer tax (Pursuant to Section 13-207(a)(1) of the Tax-Property Article of the Annotated Code of Maryland.
This instrument is being presented for recording by, or on behalf of, an agency of the State of Maryland, which is a party to this instrument. Therefore, for the reasons described in a letter from the Office of the Attorney General dated December 21, 2001, this instrument is to be recorded without charge for the recording fee and Real Property Records Improvement Fund surcharge which would otherwise be due pursuant to Section 3-601 of the Real Property Article and Section 13-604 of the Courts and Judicial Proceedings Article, respectively, of the Annotated Code of Maryland.
133
ATTACHMENT Q – SITE ACCESS LANDOWNER AUTHORIZATION FORM
PROPERTY LEGAL DESCRIPTION:
Deed Book: Liber: Folio: Parcel ID Number: County: Tax Map: Parcel: Lot:
Legal Address:
Property Owner Name: Property Owner Name:
The undersigned, registered property owner(s) of the above property, do hereby authorize
as well as the State Highway Administration, their employees, agents or assigns to have reasonable access to the above referenced property for the evaluation of the property as a potential stream restoration project, including conducting preliminary investigations, surveys and other required coordination, as well as issuance and acceptance of any required permit(s) or certification(s).
Property Owners(s) Address: ______(If different from above) ______Property Owner Telephone Number: ______Property Owner Telephone Number: ______
I/We hereby certify the above information to be true and accurate to the best of my/our knowledge.
______(Property Owner Authorized Signature) (Date)
______(Property Owner Authorized Signature) (Date)
______Witness / Attest
134 RFP Template Version: 01/20/2017
ATTACHMENT R – CURRENT MDOT SHA STREAM RESTORATION PROJECTS
Segment STREAM NAME SEGMENT LENGTH FEET 8 DIGIT WATERSHED 12 DIGIT WATERSHED COUNTY Northing Start Easting Start North End Easting End Latitude Start Longitude Start Latitude End Longitude End 1 BA_00084 West Herbert Branch 706 Patapsco River LN Branch 21309061012 Baltimore 581458.9413 1395792.637 582005.394 1395400.174 39.26286651 -76.705241 39.26437 -76.706621 2 MD 2 Tributary to Warehouse Creek 646 South River 21310030988 Anne Arundel 465345.982 1437601.784 464844.4269 1437924.942 38.94360325 -76.559561 38.942222 -76.558433 3 Broad Creek 2417 South River 21310030993 Anne Arundel 478664.9209 1438342.629 478664.9209 1438342.629 38.98016307 -76.556729 38.980163 -76.556729 4 I-97 at E-W-Blvd Outfall 389 Severn River 21310021001 Anne Arundel 523270.8641 1417072.152 523285.3087 1417236.398 39.10289512 -76.630918 39.102933 -76.630339 5 Piny Run at Arundel Mills 5059 Patapsco River LN Branch 21309061013 Anne Arundel 538275.2862 1384832.303 540547.9999 1384860.29 39.14439424 -76.744377 39.150634 -76.744256 6 Little Gunpowder Falls Tributary - at MD 145 6825 Little Gunpowder Falls 21308040298 Baltimore 670138.9861 1447696.235 672599.5547 1450353.289 39.50572347 -76.520286 39.51244 -76.510823 7 Tributary to Patapsco 5297 Patapsco River L N Br 21309061012 Anne Arundel 563354.2282 1401284.325 564958.1367 1402858.905 39.21310932 -76.686065 39.217498 -76.680488 8 Unnamed Tributary to West Branch Herbert Run 424 Patapsco River L N Br 21309061012 Baltimore 580569.7581 1396207.866 580221.3329 1396424.71 39.26042156 -76.703784 39.259463 -76.703023 9 Unnamed Tributary to Roland Run 391 Jones Falls 21309041037 Baltimore 637216.4086 1416835.734 637268.979 1416811.869 39.41573483 -76.630124 39.415879 -76.630208 10 Unnamed Tributary to Towson Run 1509 Jones Falls 21309041034 Baltimore 627902.2828 1417457.53 627092.7395 1418649.813 39.39015711 -76.628058 39.387921 -76.623851 11 Tributary to Gunpowder 275 Loch Raven Reservoir 21308050306 Baltimore 714906.3322 1404737.726 714857.2677 1404488.948 39.62914106 -76.671955 39.629009 -76.672839 12 Piney Creek 343 Loch Raven Reservoir 21308050305 Baltimore 694154.8383 1404780.314 693877.6059 1404801.968 39.57217395 -76.672069 39.571413 -76.671996 13 Whitemarsh Run 100 Bird River 21308030295 Baltimore 621124.906 1468916.795 621059.3546 1468992.314 39.37083421 -76.446138 39.370653 -76.445872 14 Jones Falls 4176 Jones Falls 21309041036 Baltimore 634048.7413 1388864.939 635047.364 1391636.008 39.40730788 -76.729157 39.410027 -76.719339 15 Little Gunpowder Falls Tributary - at MD 165 1529 Little Gunpowder Falls 21308040298 Baltimore 674054.1544 1458337.731 673682.8576 1459480.674 39.51631204 -76.482496 39.515275 -76.478452 16 Jones Falls 1095 Jones Falls 21309041036 Baltimore 636673.4864 1406258.284 635958.9764 1406827.629 39.41435602 -76.667569 39.412389 -76.665563 17 I-695 at Double Rock Lane Stream Restoration 770 Back River 21309011039 Baltimore 622180.8494 1448466.321 621509.3648 1448774.489 39.37405159 -76.518453 39.372204 -76.517376 18 Patapsco Valley State Park - McKeldin Area 202 S Branch Patapsco 21309081020 Carroll 615037.9847 1344184.392 615189.2062 1344069.314 39.35537313 -76.887363 39.355789 -76.887769 19 Copps Branch at New Windsor Road 2397 Double Pipe Creek 21403040276 Carroll 697691.8522 1309520.486 695643.9758 1308874.527 39.58233928 -77.009979 39.576717 -77.01227 20 Beaver Run at Poole Road 4837 Liberty Reservoir 21309071057 Carroll 681950.5228 1323481.725 683922.4152 1321667.577 39.53911927 -76.960473 39.544535 -76.966902 21 Big Pipe Creek at Bachmans Valley Road 3161 Double Pipe Creek 21403040286 Carroll 724722.771 1329454.015 726059.8103 1327489.783 39.65652884 -76.939196 39.660203 -76.94617 22 Gramies Run 5254 Big Elk Creek 21306060387 Cecil 732939.0662 1640651.853 738568.569 1637162.592 39.67334176 -75.833678 39.688916 -75.845819 23 Tuscarora Creek 283 Potomac River FR Cnty 21403010211 Frederick 619094.661 1169250.023 619242.3129 1169036.011 39.36547558 -77.506071 39.365878 -77.506831 24 Middle Creek 382 Catoctin Creek 21403050219 Frederick 685121.4778 1164066.971 684741.3857 1164034.222 39.54665892 -77.525748 39.545615 -77.525856 25 Catoctin Creek 498 Catoctin Creek 21403050219 Frederick 674645.7514 1157635.071 674422.4916 1158054.703 39.51779679 -77.548331 39.517191 -77.546839 26 Tuscarora Creek 312 Potomac River FR Cnty 21403010211 Frederick 583865.2994 1173423.657 583757.6605 1173135.462 39.26881825 -77.49064 39.268518 -77.491656 27 srael Creek at MD 550 2386 Lower Monocacy River 21403020237 Frederick 678939.0361 1225557.165 677531.6183 1225056.284 39.53045715 -77.307634 39.526589 -77.309393 28 Little Catoctin Creek at US 340 3145 Potomac River FR Cnty 21403010208 Frederick 610703.8267 1132362.316 609763.3319 1134344.412 39.34180579 -77.636329 39.339261 -77.629298 29 Little Catoctin Creek at Harmony Road 2009 Catoctin Creek 21403050217 Frederick 661659.1008 1161374.777 662924.8686 1161839.821 39.48220598 -77.534806 39.485688 -77.533185 30 North Fork Linganore Creek at Woodville Road 3157 Lower Monocacy River 21403020238 Frederick 654395.488 1257577.93 656246.2954 1258820.669 39.46331923 -77.193931 39.468407 -77.189543 31 Israel Creek at Stauffers Rd 5455 Lower Monocacy River 21403020237 Frederick 653439.2386 1212507.857 657355.3555 1214816.205 39.46032298 -77.353545 39.471098 -77.345422 32 Plumtree Run 2273 Atkisson Reservoir 21307031132 Harford 672342.5667 1498253.404 671046.6309 1498804.333 39.51090725 -76.341065 39.507339 -76.339146 33 Magness Run - Tributary of Deer Creek 1097 Deer Creek 21202020330 Harford 726027.7431 1446547.52 726961.8285 1447084.961 39.65916489 -76.523323 39.661721 -76.521396 34 Swan Creek 351 Swan Creek 21307061135 Harford 681423.4153 1546858.766 681158.0274 1547015.09 39.53474669 -76.168514 39.534014 -76.167968 35 Unnamed Tributary to West Branch Winters Run 785 Atkisson Reservoir 21307031133 Harford 688351.2768 1462854.8 688615.4403 1463491.194 39.55548946 -76.466189 39.556204 -76.463927 36 Winters Run 619 Lower Winters Run 21307021130 Harford 647885.3931 1505495.89 647657.7696 1506060.613 39.44361983 -76.316046 39.442983 -76.314053 37 Carr Run 191 Broad Creek 21202050339 Harford 731043.3951 1504358.618 731013.4985 1504543.268 39.671926 -76.317873 39.67184 -76.317218 38 Hollands Branch 8830 Deer Creek 21202020322 Harford 713391.351 1532023.867 717357.6085 1531665.01 39.62286189 -76.220139 39.633758 -76.221292 39 Bynum Run 3753 Bynum Run 21307041131 Harford 682909.1059 1500035.611 683847.2126 1500720.541 39.53987912 -76.334476 39.542441 -76.332023 40 Upper Little Patuxent River Stream Restoration 4907 Little Patuxent River 21311050957 Howard 583634.9524 1354414.129 583634.9524 1354414.129 39.26911666 -76.851367 39.269117 -76.851367 41 Dorsey Run 2048 Little Patuxent River 21311050952 Howard 538230.5186 1373794.454 538041.6788 1373804.806 39.14434972 -76.783295 39.143831 -76.78326 42 Unnamed Tributary to Patapsco River 375 Patapsco River L N Br 21309061017 Howard 580998.7703 1363559.242 581369.4822 1363611.012 39.26183367 -76.819085 39.262851 -76.818899 43 Unnamed Tributary to Red Hill Branch 2060 Little Patuxent River 21311050956 Howard 572557.9332 1365061.893 570721.9841 1365596.798 39.23865085 -76.813838 39.233607 -76.811963 44 Patapsco Valley State Park - Avalon Area 210 Patapsco River L N Br 21309061016 Howard 568987.4702 1388423.324 569134.6605 1388533.052 39.22868826 -76.731397 39.229091 -76.731008 45 Furnace Ave 300 Patapsco River L N Br 21309061016 Howard 563586.0486 1395930.071 563836.2682 1396095.571 39.21379482 -76.704959 39.21448 -76.704372 46 Unnamed Tributary to Patuxent River 850 Rocky Gorge Dam 21311070941 Montgomery 532404.1264 1334469.859 531695.1255 1334014.714 39.12852702 -76.921967 39.126581 -76.923573 47 Muddy Branch 210 Potomac River MO Cnty 21402020848 Montgomery 524738.6342 1245564.286 524903.3491 1245685.419 39.10727016 -77.235297 39.107723 -77.234872 48 MO_00033 Old Farm Creek at Tilden Woods Park 6928 Cabin John Creek 21402070841 Montgomery 498759.51 1273227.502 501123.5659 1272773.619 39.03609571 -77.137673 39.042585 -77.139283 49 Unnamed Tributary to Patuxent River 866 Patuxent River upper 21311040936 Prince Georges 477122.7616 1383974.688 477765.2481 1384452.624 38.97649724 -76.747996 38.978258 -76.746309 50 Oxon Run 407 Oxon Creek 21402040805 Prince Georges 433640.0342 1326209.52 433330.5368 1326001.157 38.85736613 -76.951271 38.856517 -76.952003 51 Charles Branch Tributary / Rosaryville SP 11722 Western Branch 21311030912 Prince Georges 401591.1584 1367082.838 407312.6807 1367695.266 38.76921863 -76.807973 38.784925 -76.805782 52 Tributary to Patuxent at Bowie State 4244 Patuxent River upper 21311040937 Prince Georges 490379.3279 1379803.247 491476.9599 1382123.86 39.0129264 -76.762548 39.015923 -76.754371 53 Sue Rudy Run 2500 Antietam Creek 21405020193 Washington 697307.6414 1134954.315 695275.8705 1136406.71 39.57960663 -77.629275 39.574056 -77.624073 54 Little Tonoloway Creek 2579 Little Tonoloway Creek 21405090154 Washington 745677.1188 974781.2224 744588.3733 975954.658 39.70797761 -78.199715 39.705031 -78.195494
135
ATTACHMENT S – NEPA PROGRAMMATIC CATEGORICAL EXCLUSION
Environmental Screening, Agency Coordination & Environmental Documentation Process and PCE Form
a) Conduct Environmental Screening to identify potential natural, community and cultural resources in the project area, using readily available GIS and internet data such as MD iMap, Watershed Resources Registry, Maryland Historical Trust's (MHT) online Medusa Database, supplemented by field verification of readily identifiable resources within the project area. Resources to be inventoried include, but are not limited to: protected lands; cultural resources (archeological resources/historic standing structures); scenic byways; floodplain areas; streams; Tier II and Stronghold watersheds; wetlands; forests; Chesapeake and Atlantic Coastal Bays Critical Area; Sensitive Species Project Review Areas; Green Infrastructure hubs, gaps and corridors; Forest Interior Dwelling Species habitat; potential hazardous materials sites, and Sea Level Rise (2050 and 2100). Provide GIS mapping showing resources in the project area.
b) Coordinate with the US Fish & Wildlife Service (USFWS) using their online IPaC application, and the Maryland Department of Natural Resources (DNR) Wildlife and Heritage Service to identify presence of rare, threatened and/or endangered species, and their habitat. Provide the Administration with copies of all agency submittals and responses.
c) Submit documentation, including concurrence from the MHT, that no cultural or historic resources (archaeological sites, buildings, or other structures) will be adversely affected by the proposed project. If an eligible site is identified within the project area and the Offeror is unable to avoid the site, the Administration shall initiate consultation with MHT. The Offeror shall bear responsibility for all costs and schedule related to additional evaluation, consultation, and mitigation of effects to cultural and historic resources.
d) Coordinate with the Maryland Department of Natural Resources (DNR) Environmental Review Program to identify Stream Use Class Designation, in-stream work restrictions and information on sensitive fish species/habitat. Provide the Administration with copies of all DNR submittals and responses.
e) Submit a completed Programmatic Categorical Exclusion (PCE) Form, which involves a complete environmental impact summary, public involvement activities, documentation of all agency coordination, and types of permits required (e.g., Sediment & Erosion Control, MDSPGP, SLOA) for review and approval by the Administration.
f) Address any comments/questions that the Administration may have on the environmental documentation or other information submitted by the Offeror and make revisions to said documents/information as appropriate.
Should an unanticipated archaeological resource be discovered during construction, the offeror shall stop work in that area of the project, protect the discovery, and contact the Administration immediately.
136 RFP Template Version: 01/20/2017
PROGRAMMATIC CATEGORICAL EXCLUSION
The listed below as Programmatic Categorical Exclusion (PCE) as approved by the Federal Highway Administration. Please use the date at the end of this memo as the date of environmental approval for this project/project(s). Approval of this document does not constitute a permit of any kind (wetland/waterway, etc.).
Date:
Project:
FMIS No.:
SPD ID:
Scope of Work:
County: FOR REFERENCE Originating Office:
Prepared By:
This project has been funded for future phase.
TIP/STIP No.: Include MPO, FY and ID
This project is currently state funded.
137 Project: Page 2
Scope of Impacts
Section 4(f) Resources Does the project require a de minimis finding for parkland/wildlife and waterfowl refuge?
Does the project require a de minimis finding for historic resources?
Does the project require temporary occupancy criteria concurrence?
Has the project been approved as a Section 4(f) exception per 23 CFR 774.13(g)? Is this a Recreational Trails Program Project legislatively exempt from Section 4(f)? Has the project been approved as a Programmatic Section 4(f) Evaluation?
Notes:
Other Parkland Resources
Does the project contain parcels funded with LWCF assistance?
Does the project contain parcels funded with POS assistance?
Does the project contain parcels funded with Capper Cramton assistance?
Notes:
Cultural Resources Impacts Historic District/Site?FOR REFERENCE Effect Determination:
Appendix:
Letter
Notes:
138 Project: Page 3
Right-of-Way & Community Will the action require an amount of new right-of-way (including fee simple, temporary, perpetual or revertible easement or right-of-entry) that, in context of the project area, has a substantial impact on land use and property values throughout the study area? List total amount and type of ROW needed:
Will the action require residential and/or business displacements where, in context of the project area will have a substantial impact on the community?
List total number of residential and/or business displacements and relocation assistance plan:
Will the action induce substantial foreseeable land use changes or affect planned growth? Will the action cause any disproportionately high or adverse impacts to minority or low-income populations? Will the action require changes in access restrictions that would require FHWA approval, i.e. short / partial or full IAPA?
Scenic Byway?
Consistent with County/Local Master Plan?
Public Involvement
Public Involvement Type
*Detours: EPLD will confirm that the Lead Division/District will make every attempt to notify and receive comments on the proposed detour route from the impacted public, emergency response, transit and bus See attached detour notification agencies prior toFOR construction. REFERENCEand comments, if applicable.
Notes:
139 Project: Page 4
Smart Growth
The scope of this project is consistent with the Programmatic Agreement Regarding the Processing of Certain Categorical Exclusion Actions and is therefore exempt from the requirements of the PFA law because it is not considered to be a "major capital project" as defined in §2-103.1(A)(4) of the Transportation Article.
Noise
A noise analysis is not required.
A noise analysis is required because this action includes one or more of the following:
Is noise abatement feasible and reasonable?
Is this a Type II Noise Project?
Notes:
Air Quality Transportation Conformity: If this project is located in an ozone nonattainment area, it conforms to the Clean Air Act if the current project design concept and scope is reflected in the current conforming TIP or TIP amendment and long range plan. Please see page 1 for the TIP/STIP ID. If the description in the TIP/STIP or long range plan is not consistent, the PCE cannot be approved and the TIP and/or long range plan must be amended.
Mobile Source Air Toxics (MSATs):The FHWA October 2016 Updated Interim Guidance Update on Mobile Source Air Toxic AnalysisFOR in NEPA Documents REFERENCE provides guidance on when and how to analyze MSAT within the National Environmental Policy Act (NEPA) review process for proposed highway projects. As this project is classified as a Categorical Exclusion for NEPA purposes per 23 CFR 771.117, this project is considered a Project with No Meaningful Potential MSAT Effects according to the guidance and no analysis of MSAT is required.
140 Project: Page 5
Natural Resources Permits Required? S/EC SWM Tidal License ATP MDSPGP NTWWP SLOA LOA
Impacts Floodplain?
Impacts Wetland?
Amount:
Impacts Trees?
Occurs in Critical Area for CACB?
General Approval Presentation MOU General Approval Section
Critical Area Commission Approval Date: Mitigation Required? Amount of Mitigation:
Impacts Streams?
Requires Time of Year Stream Restrictions?
If Yes, Stream Classification:
DNR-ERP/WHS Response Date: USFWS Response Date:
Will the action adversely affect or See attached DNR & USFWS response letters. jeopardize rare, threatened or See attached DNR statewide trilogy concurrence letters, if applicable. endangered species and/or critical habitat as per written correspondence with USFWS and/or DNR?
Affects FIDS Habitat? Is this project located within the Green Infrastructure Network?
Notes: Include DNR PIF Review/Coordination in notes. Should it appear that the PIF response will not be received in time for the NEPA/MEPA target date, coordinate with team leader and Don to make a determination on whether the PCE can be approved without the PIF response. FOR REFERENCE Climate Change Impact Areas
Is this Project within an area potentially affected by Sea Level Change?
Mean Sea Level 2050 Mean Sea Level 2100
Mean High High Water 2050 Mean High High Water 2100 Does this project involve construction of a new building/facility or reconstructing an existing building/facility due to a storm event?
141 Project: Page 6
Programmatic Categorical Exclusion Classification (No.) - Federal Regulation Reference
2 - Approval of utility installations along or across a transportation facility. -23 CFR 771.117 (c)(2) 3 - Construction of bicycle and pedestrian lanes, paths, and facilities. -23 CFR 771.117 (c)(3) [including but not limited to construction of trails, trailhead, and recreational facilities.] 5 - Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 23 U.S.C. 317 when the land transfer is in support of an action that is not otherwise subject to FHWA review under NEPA. -23 CRF 771.117(c)(5) 6 - The installation of noise barriers or alternations to existing publicly owned buildings to provide noise reduction. -23 CFR 771.117 (c)(6) [including but not limited to rehabilitation of existing noise walls and in-kind replacement of noise walls.]
7- Landscaping. -23 CFR 771.117 (c)(7) 8 - Installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devices where no substantial land acquisition or traffic disruption will occur. -23 CFR 771.117(c)(8) 9 - The following actions for transportation facilities damaged by an incident resulting in an emergency declaration by the Governor of the State and concurred by the Secretary, or a disaster or emergency declared by the President pursuant to the Robert T. Stafford Act (42 U.S.C. 5121): (i) Emergency repairs under 23 U.S.C. 125; and (ii) The repair, reconstruction, restoration, retrofitting, or replacement of any road, highway, bridge, tunnel, or transit facility (such as a ferry dock or bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes), that is in operation or under construction when damaged and the action: (A) Occurs within existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original (which may include upgrades to meet existing code and standards as well as upgrades warranted to address conditions that have changed since the original construction); and (B) Is commenced within a 2-year period beginning on the date of the declaration. -23 CFR 771.117(c)(9) 10 - Acquisition of scenic easements. -23 CFR 771.117 (c)(10) [including but not limited to scenic easements and fee simple right-of-way for scenic or historic preservation purposes including those for the Transportation Alternatives Program, National Recreational Trails Program, or Scenic Byways Program.] 12 - Improvements to existing rest areas and truck weigh stations. -23 CFR 771.117 (c)(12) [including but not limited to improvements or repairs to existing facilities such as offices and trailers.] 13 - Ridesharing activities. -23 CFR 771.117 (c)(13) [including but not limited to improvements or repairs to existing facilities such as offices and trailers.] 15 - Alterations to facilities or vehicles in order to make them accessible for elderly and handicapped persons. -23 CFR 771.117 (c)(15) 19 - Purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the sites. -23 CFR 771.117 (c)(19)
22 - Projects, as defined in 23 U.S.C. 101, that would take place entirely within the existing operational right-of-way. Existing operational right-of-way refers to right-of-way that has been disturbed for an existing transportation facility or is maintained for a transportation purpose. This area includes the features associated with the physical footprint of the transportation facility (including the roadway, bridges, interchanges, culverts, drainage, fixed guideways, mitigation areas, etc.) and other areas maintained for transportation purposes such as clear zone, traffic control signage, landscaping, any rest areas with direct access to a controlled accessFOR highway, areas maintained REFERENCE for safety and security of a transportation facility, parking facilities with direct access to an existing transportation facility, transit power substations, transit venting structures, and transit maintenance facilities. Portions of the right-of-way that have not been disturbed or that are not maintained for transportation purposes are not in the existing operational right-of-way. -23 CFR 771.117 (c)(22) [including but not limited to widening and improving existing transportation facilities by adding through lanes that add capacity within existing operational right-of-way.]
23 - Federally funded projects: (i) That receive less than $5,000,000 of Federal funds; or (ii) With a total estimated cost of not more than $30,000,000 and Federal funds comprising less than 15 percent of the total estimated project cost. -23 CFR 771.117 (c)(23) (note: total adjusted annually to consider increases in the Consumer Price Index).
142 Project: Page 7
25 - Environmental restoration and pollution abatement actions to minimize or mitigate the impacts of any existing transportation facility (including retrofitting and construction of stormwater treatment systems to meet Federal and State requirements under Sections 401 and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1341; 1342) carried out to address water pollution or environmental degradation. -23 CFR 771.117 (c)(25) [including but not limited to modifying, upgrading, repairing, or retrofitting existing SWM facilities or installing new SWM facilities including ESD; other water quality activities such as stream stabilization, stream restoration, and fish passage remediation.] 26 - Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g. parking, weaving, turning, climbing). -23 CFR 771.117 (c)(26) [excluding thru travel lanes and including but not limited to adding and widening auxiliary lanes, shoulders, curbs, gutters, and sidewalks, installing traffic calming measures.] 27 - Highway safety or traffic operations improvement projects including the installation of ramp metering control devices and lighting. -23 CFR 771.117 (c)(27) [including but not limited to installation of guardrails; correcting substandard roadway and intersection geometrics; constructing new roundabouts; minor safety related drainage improvements including removal, repair, extension, or installation of culverts, headwalls, or pipes; repair or installation of erosion control and slope protection measures such as slope stabilization, slide repairs, rip rap, and retaining walls.]
28 - Bridge rehabilitation, reconstruction or replacement or the construction of grade separation to replace existing at-grade railroad crossings. -23 CFR 771.117 (c)(28) [including but not limited to bridge rehabilitation, reconstruction or replacement as consistent with Sections III and IV of the PA.]
29 - Purchase, construction, replacement, or rehabilitation of ferry vessels (including improvements to ferry vessel safety, navigation, and security systems) that would not require a change in the function of the ferry terminals and can be accommodated by existing facilities or new facilities which themselves are within a CE. -23 CFR 771.117 (c)(29)
30 - Rehabilitation or reconstruction of existing ferry facilities that occupy substantially the same geographic footprint, do not result in a change in their functional use, and do not result in a substantial increase in the existing facility's capacity. Example actions include work on pedestrian and vehicle transfer structures and associated utilities, buildings, and terminals. -23 CFR 771.117(c)(30)
31 - Transportation corridor fringe parking facilities. -23 CFR 771.117(d)(4)
32 - Construction of new truck weigh stations or rest areas. -23 CFR 771.117(d)(5)
33 - Approvals for disposal of excess right-of-way or for joint or limited use of right-of-way, where the proposed use does not have significant adverse impacts. -23 CFR 771.117(d)(6) [including but not limited to disposal of excess right-of-way under 23 CFR 713, Subpart C, where the proposed use does not have significant adverse impacts; approval for the lease/use of federally acquired right-of-way for non-highway purposes.] 34- Approvals for changes in access controls. -23 CFR 771.117(d)(7) [excluding actions that require FHWA approval such as Interstate Access Point Approval that necessitates Full or Short/Partial IAPA documentation.] 35 - Construction of new bus storage and maintenance facilities in areas used predominately for industrial or transportation purposes where such construction is not inconsistent with existing zoning and located on or near a street with adequate capacity to handle anticipated bus and support vehicle traffic. -23 CFR 771.117 (d)(8)
36 - Rehabilitation or reconstruction of existing rail and bus buildings and ancillary facilities where only minor amounts of additional land areFOR required and there is not a substantialREFERENCE increase in the number of users. -23 CFR 771.117(d)(9) 37- Construction of bus transfer facilities (an open area consisting of passenger shelters, boarding areas, kiosks and related street improvements) when located in a commercial area or high activity center in which there is adequate street capacity for projected bus traffic. -23 CFR 771.117(d)(10)
38 - Construction of rail storage and maintenance facilities in areas used predominately for industrial or transportation purposes where such construction is not inconsistent with existing zoning and where there is no significant noise impact on the surrounding community. -23 CFR 771.117(d)(11)
143 Project: Page 8
39 - Acquisition of land for hardship or protective purposes. Hardship and protective buying will be permitted only for a particular parcel or limited number of parcels. These types of land acquisition quality for a CE only where the acquisition will not limit the evaluation of alternatives, including shifts in alignment for planned construction projects, which may be required in the NEPA process. No project development on such land may proceed until the NEPA process has been completed. -23 CFR 771.117 (d) (12)(i) and (ii)(Refer to 23 CFR 771.117 (d)(12)(i) and (ii) for a detailed description of 'hardship acquisition' and 'protective acquisition').
This project is consistent with the 2017 Programmatic Agreement Regarding the Processing of Certain Categorical Exclusion Actions. No significant environmental impacts are expected to occur as a result of this project. This documentation fulfills the requirements of both the National Environmental Policy Act and Maryland Environmental Policy Act; as such, no further environmental documentation is required.
Concur:
Donna Buscemi Division Chief Environmental Planning Division
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Revised May 2017 FOR REFERENCE
144 APPENDIX 1
Abbreviations and Definitions
For purposes of this RFP, the following abbreviations or terms have the meanings indicated below:
1. Business Day(s) – The official working days of the week to include Monday through Friday. Official working days exclude State Holidays (see definition of “Normal State Business Hours” below).
2. COMAR – Code of Maryland Regulations available on-line at www.dsd.state.md.us.
3. Contract – The Contract awarded to the successful Offeror pursuant to this RFP. The Contract will be in the form of Attachment A.
4. Contract Commencement - The date the Contract is signed by the Administration following any required approvals of the Contract, including approval by the Board of Public Works, if such approval is required. See Section 1.4.
5. Contract Monitor – The State representative for this Contract who is primarily responsible for Contract administration functions, including issuing written direction, invoice approval, monitoring this Contract to ensure compliance with the terms and conditions of the Contract, monitoring DBE and VSBE compliance, and achieving completion of the Contract on budget, on time, and within scope. The Contract Monitor may authorize in writing one or more State representatives to act on behalf of the Contract Monitor in the performance of the Contract Monitor’s responsibilities.
6. Contractor – The selected Offeror that is awarded a Contract by the State.
7. Administration or (SHA) – State Highway Administration.
8. eMM – eMaryland Marketplace (see RFP Section 1.8).
9. Go-Live Date – The date, as specified in the Notice to Proceed, when the Contractor must begin providing all services required by this solicitation. See Section 1.4.
10. Key Personnel – All personnel identified in the solicitation as such, or personnel identified by the Offeror in its Proposal that are essential to the work being performed under the Contract. See RFP Sections 3.10and 5.4.2.7.
11. Local Time – Time in the Eastern Time Zone as observed by the State of Maryland. Unless otherwise specified, all stated times shall be Local Time, even if not expressly designated as such.
12. Minority Business Enterprise (MBE) – Any legal entity certified as defined at COMAR 21.01.02.01B(54) which is certified by the Maryland Department of Transportation under COMAR 21.11.03.
13. Normal State Business Hours - Normal State business hours are 8:00 a.m. – 5:00 p.m. Monday through Friday except State Holidays, which can be found at: www.dbm.maryland.gov – keyword: State Holidays.
14. Notice to Proceed (NTP) – A written notice from the Procurement Officer that, subject to the conditions of the Contract, work under the Contract is to begin as of a specified date. The start date listed in the NTP is the Go-Live Date, and is the official start date of the Contract for the actual delivery of services as described in this solicitation. After Contract Commencement, additional NTPs may be issued by either the
145 RFP Template Version: 01/20/2017 Procurement Officer or the Department Contract Monitor regarding the start date for any service included within this solicitation with a delayed or non-specified implementation date.
15. Offeror – An entity that submits a Proposal in response to this RFP.
16. Procurement Officer – Prior to the award of any Contract, the sole point of contact in the State for purposes of this solicitation. After Contract award, the Procurement Officer has responsibilities as detailed in the Contract (Attachment M), and is the only State representative who can authorize changes to the Contract. The Administration may change the Procurement Officer at any time by written notice to the Contractor.
17. Proposal – As appropriate, either or both of an Offeror’s Technical or Financial Proposal.
18. Request for Proposals (RFP) – This Request for Proposals issued by the State Highway Administration, with the Solicitation Number and date of issuance indicated in the RFP Key Information Summary Sheet (near the beginning of the solicitation, after the Title Page and Notice to Vendors), including any addenda.
19. State – The State of Maryland.
20. Total Proposal Price - The Offeror’s total proposed price for services in response to this solicitation, included in the Financial Proposal with Attachment B – Financial Proposal Form, and used in the financial evaluation of Proposals (see RFP Section 5.3).
21. Veteran-owned Small Business Enterprise (VSBE) – A business that is verified by the Center for Verification and Evaluation (CVE) of the United States Administration of Veterans Affairs as a veteran- owned small business. See Code of Maryland Regulations (COMAR) 21.11.13.
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