NOTICES
DEPARTMENT OF CONSERVATION AND NATRUAL RESOURCES
Retention of Environmental Engineering Firms; Project Reference No. FDC-500-810
[48 Pa.B. 1943]
[Saturday, April 7, 2018]The Department of Conservation and Natural Resources (Department) is seeking proposals from interested and qualified professional engineering firms for open-end contracts for various environmental, civil and site engineering services as well as geological services for various projects located on State Park and State Forest land in this Commonwealth. Each contract will be for a 12-month period with four 12-month extensions possible. Projects will be assigned on an as needed basis to ensure proper and safe operation of Department infrastructure and facilities.
The number of open-end contracts and the dollar amount of each contract shall be at the discretion of the Department for the first year. The extent of the work for the subsequent 4 years of the contract will be dependent on the availability of additional funds and additional projects for those years, also at the discretion of the Department.
Letters of Interest for this project will only be accepted from individuals, firms or corporations duly authorized to engage in the practice of engineering. If an individual, firm or corporation not authorized to engage in the practice of engineering wishes to submit a Letter of Interest, the individual, firm or corporation may do so as part of a joint venture with an individual, firm or corporation which is permitted under State law to engage in the practice of engineering in this Commonwealth.
Background
Established on July 1, 1995, the Department is charged with: maintaining and preserving 121 State Parks; managing 2.1 million acres of State Forest land; providing information on the ecological and geologic resources in this Commonwealth; and establishing community conservation partnerships with grants and technical assistance to benefit rivers, trails, greenways, local parks and recreation, regional heritage parks, open space and natural areas.
The Bureau of Facility Design and Construction (Bureau) provides multidisciplined facility and infrastructure technical support to the other bureaus in the Department in the areas of project design, project inspections, construction management, contract administration, surveying, and other technical advice and consultation. This Bureau is comprised of three divisions: Dams, Bridges and Roadways Engineering; Environmental Engineering and Architecture; and Field Engineering and Contracts Management.
The Bureau's Central Office (located in Harrisburg) is responsible for the development of architectural, landscape architectural, water and sanitary, bridge and roadway and civil and environmental projects required to support the Department's facility construction and maintenance program. The Central Office is comprised of five sections: Architectural Design; Landscape Design; Sanitary and Water Management; Bridges and Road Management; and Civil Design. In addition to project design, staff also provides technical architectural and engineering support and advice to assist field operation in State Parks and State Forests.
The Bureau also has four field offices: Northcentral Office in Emporium; Western Office in Moraine State Park; Southcentral Office in Shawnee State Park; and Eastern Office in Nockamixon State Park. Each office is responsible for providing direct engineering and technical support to the State Parks and State Forests field operation staff in their area. Staff is responsible for project inspection and construction management to ensure contractor compliance with the construction contract documents as well as some project design.
PART I
GENERAL REQUIREMENTSI-1. Specific Requirements. The open-end design services work will primarily be environmental engineering in nature but may also include associated architectural, site, civil, landscape, structural, mechanical, plumbing and electrical disciplines. It may occasionally include other related engineering work such as bridges, roadway, geotechnical and alternative energy. Project types may include water and sewage conveyance and treatment systems, stormwater management, site design, public bathing places (for example, swimming pools and water playgrounds), environmental and wetland assessments, environmental studies, environmental permitting and other civil/environmental engineering related work as assigned by the Department.
The services anticipated under the contract may include project planning, scoping and programming; budget estimating; site visits; existing facility review, assessment and documenting; perform necessary field surveys; plot topography and cross sections; procure core borings; provide soil, infiltration and foundation engineering reports; investigate utility involvement; evaluate alternatives using benefit/cost analysis; inspect simple, major and unusual structures; develop rehabilitation strategies; conceptual design; design development; construction documentation including preparation of drawings and specifications; cost estimating; permit preparation and submission; and construction administration including construction submission review and construction inspection. Permitting services may include 25 Pa. Code Chapters 102 and 105 (relating to erosion and sediment control; and dam safety and waterway management) permits, sanitary permits, National Pollutant Discharge Elimination System permits, erosion and sediment control plans, water encroachment plans, storm water management plans and land development plans, and Pennsylvania Uniform Construction Code building permits.
Areas of related environmental studies associated with these design projects may include wetlands, soil, geology, 25 Pa. Code Chapters 102 and 105, Army Corps of Engineers 404 permits, Act 537 planning and the Department of Environmental Protection's water quality management requirements. The environmental studies shall be conducted in accordance with accepted analysis techniques and methodologies and may include any or all of the following to ensure a complete environmental investigation has been performed; provide all necessary environmental services, material and equipment necessary to collect, analyze and organize data, assess impacts, prepare reports and design mitigation plans. The reports and other graphic material to be prepared may include, but are not limited to, plans of study, meeting minutes, preparation of permit application documents, mitigation plans and reports, and wetland and floodplain findings.
Projects will be located throughout this Commonwealth. Travel to the project sites will be required. Project assignment will be through individual project Work Orders. The scope of the Work Order may range from full responsibility for all aspects of the design to a collaborative design effort with Department in-house staff when only one or more specific design discipline is required. Work Orders may be for a single phase or portion of a project such as conceptual design, or for all phases of the entire project. The work shall be identified in the Work Order by a series of tasks that encompass the full scope of the project. The number and description of the tasks will vary based on a project's scope and complexity. A typical Work Order will require formal submissions at the end of the sketch (10%), preliminary (50%), prefinal (95%) and final (100%) design stages. Complexity may require more or less submissions for certain projects. The Consultant will be required to develop and maintain a detailed project schedule showing all related project tasks including design phases, submissions, review periods and timelines for required permits. The project schedule shall identify the critical path for completion for the project. A Bureau Project Coordinator will be assigned to each Work Order. The Project Coordinator may change from project to project. A Performance Review may be performed by the Project Coordinator at the completion of the Work Order and used in assigning additional projects to the Consultant.
The Department's standard contract method is multiple prime, design-bid-build, although other nonbid construction methods, including construction by Department staff and volunteer organizations, may be used. The Consultant will be required to prepare construction documents appropriate to the construction method selected by the Department.
The Consultant will be required to submit project data and documents in written and electronic form. Drawings will be required to comply with the Department's computer aided drafting (CAD) standard. Three dimensional drawings will be expected throughout the design process; presentation renderings may be required at the completion of design.
I-2. Qualifications. The Consultant shall have staff available to provide rapid services associated with assigned projects. The Consultant may be called upon to provide services on multiple projects at the same time. The Consultant shall have demonstrated knowledge of the building design and construction method.
The following minimum qualification will be expected of all Consultants:
• Possess current professional registrations required to perform required services.
• Be licensed to conduct business in this Commonwealth.
• Have sufficient staff or subconsultants experienced in the various required services.
• Have an established quality control and assurance program for checking documents for accuracy, consistency, coordination, quality and compliance with all necessary codes and regulations.
• Have experience in the field of sustainable design and a demonstrated ability to comprehensively integrate the concept of sustainability into the project.
• Have design capabilities in digital format (AutoCAD).
• Have the ability to produce three-dimensional drawings to further illustrate design intent.
I-3. Addenda to the Request for Proposal (RFP). If the Department deems it necessary to revise any part of this RFP before the proposal response date, the Issuing Office will post an addendum to the Department's web site at http://www.dcnr.state.pa.us. It is the Offeror's responsibility to periodically check the web site for any new infor- mation or addenda to the RFP. Answers to the questions asked during the Questions and Answers period also will be posted, as necessary, to the web site as an addendum to the RFP.
PART II
PROPOSAL REQUIREMENTSOfferors must submit their proposals in the format, including heading descriptions, outlined as follows. To be considered, the proposal must respond to all requirements in this part of the RFP. Offerors should provide any other information thought to be relevant, but not applicable to the enumerated categories, as an appendix to the Proposal.
II-1. Requirements. Proposals shall include the following items and information:
• Letter of Interest including the Consultant's Federal identification number and the project reference number.
• A description of the Consultant's understanding of the Department's needs and the services required. This description shall include why and how the Consultant is qualified to provide these services.
• A description of the Consultant's project approach and methodology, including the approach to the managerial, technical and administrative aspects of the project. Describe how the scope, schedule, budget, and quality of a project are managed and controlled. Address communication and coordination strategies internal to the design team, with the client and with other outside agencies. Describe how an integrated design process is approached and has been used on past projects.
• A description of the Consultant's sustainable design experience, including specialized knowledge and expertise in as many of the following areas of sustainable design as possible: environmentally sound site design and planning, sustainability performance standards for energy efficiency, water efficiency, environmentally sound materials, construction waste management and prevention, low maintenance design and materials. Include a description of how sustainable design is made an integral part of the Consultant's design process.
• A detailed description of the Consultant's quality control and assurance program, including how subconsultants are included in this program. Describe what steps are taken to assure accurate, fully-coordinated construction documents. Provide the name of the person responsible for quality control and describe their qualifications to perform this task.
• A description of the Consultant's qualifications to complete the required services. Include firm history and experience on similar projects. Describe the resources of the firm, including number/discipline of personnel, ability to respond to schedule acceleration, and the like. Describe roles and experience of proposed subconsultants.
• Resumes of personnel who will be involved in providing the services described herein to the Department. Describe their relevant experience, years of experience, what roles they will fill in providing the required services and percent of time they will be committing to Department-assigned projects. The resumes must include their professional education and professional registrations and licenses. Provide resumes of subconsultant's personnel.
• A description of the Consultant's ability to work on multiple projects of various sizes at the same time.
• A list of at least three of the Consultant's most recent completed projects similar to the projects anticipated under the contract. In addition to photographs and a descriptive narrative, the list shall include the client, contact person and contact information, the completion date, the estimated or actual total construction cost, the estimated or actual construction cost of the portion of the work which the firm designed, the firm's project manager and the names of all of the firm's personnel who made contributions to the project.
• A standard Department of General Services (DGS) Form 150-ASP indicating the individual in charge. The Form 150-ASP is available to download from the DGS web site at www.dgs.state.pa.us. Form 150-ASP shall be submitted in hard copy format per Part II, II-2 of the RFP. The electronic submission instructions on the DGS web site are for the DGS projects only. Additional information pertinent to this firm's qualifications to do the work of this contract may be included.
II-2. Number of Copies. Two copies of the small diverse business participation section bound and sealed separately from the remainder of the proposal and six copies of the complete set consisting of the Letter of Interest and the required forms must be received no later than May 9, 2018, at 4 p.m. The six copies shall be submitted in six complete sets that shall be spiral bound, or in folders or secured by binder clips. The assignment and services will be made to one or more of the firms responding to this notice. However, the Department reserves the right to reject all Letters of Interest submitted, cancel the solicitation requested under this notice or readvertise solicitation for this service.
II-3. Small Diverse Business (SDB) Participation Submittal General Information. The Issuing Office encourages participation by SDBs and small businesses (SB) as prime contractors, and encourages all prime contractors to make significant commitments to use SDBs and SBs as subcontractors and suppliers.
An SB must meet each of the following requirements:
• The business must be a for-profit, United States business.
• The business must be independently owned.
• The business may not be dominant in its field of operation.
• The business may not employ more than 100 full-time or full-time equivalent employees.
• The business, by type, may not exceed the following 3-year average gross sales:
o Procurement goods and services: $20 million.
o Construction: $20 million.
o Building design services: $7 million.
o Information technology goods and services: $25 million.
For credit in the RFP scoring process, an SB must complete the DGS/Bureau of Diversity, Inclusion and Small Business Opportunities (BDISBO) self-certification process. Additional information on this process can be found at http://www.dgs.pa.gov/Businesses/Small%20Business%20Contracting%20Program/Pages/default.aspx.
An SDB is a DGS-verified minority-owned SB, woman-owned SB, veteran-owned SB, service-disabled veteran-owned SB, lesbian, gay bisexual and transgender-owned SB, disability-owned SB or other SBs as approved by DGS, that is owned and controlled by a majority of persons, not limited to members of minority groups, who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social disadvantages.
For credit in the RFP scoring process, an SDB must complete the DGS verification process. Additional information on this process can be found at http://www.dgs.pa.gov/Businesses/Small%20Diverse%20Business%20Program/Small-Diverse-Business-Verification/Pages/default.aspx.
An Offeror that qualifies as an SDB or an SB and submits a proposal as a prime contractor is not prohibited from being included as a subcontractor in separate proposals submitted by other Offerors.
An SDB or SB may be included as a subcontractor with as many prime contractors as it chooses in separate proposals.
The Department's directory of self-certified SBs and BDISBO-verified SDBs can be accessed from http://www.dgs.pa.gov/Businesses/Small%20Diverse%20Business%20Program/Small-Diverse-Business-Verification/Pages/Finding-Small-Diverse-Businesses.aspx.
Questions regarding the SDB and SB programs, including questions about the self-certification and verification processes, should be directed to the Department of General Services, Bureau of Diversity, Inclusion and Small Business Opportunities, Room 601, North Office Building, Harrisburg, PA 17125, (717) 783-3119, fax (717) 787-7052, RA-BDISBOVerification@pa.gov, www.dgs.pa.gov.
II-4. SDB and SB Participation Submittal. All Offerors are required to submit two copies of the SDB and SB Participation Submittal Form (Appendix A) and related Letters of Intent (Appendix B). The submittal must be sealed in its own envelope, separate from the remainder of the proposal, and must be provided on the SDB and SB Participation Submittal Form, with information as follows:
A. Offerors must indicate their status as an SDB and as an SB through selection of the appropriate checkboxes.
B. Offerors must include a numerical percentage which represents the total percentage of the total cost in the Cost Submittal that the Offeror commits to paying to SDBs and SBs as subcontractors.
C. Offerors must include a listing of and required information for each of the SDBs or SBs with whom they will subcontract to achieve the participation percentages outlined on the SDB and SB Participation Submittal.
D. Offerors must include a Letter of Intent (Appendix B is a Letter of Intent template which may be used to satisfy these requirements) signed by both the Offeror and the SDB or SB for each of the SDBs and SBs identified in the SDB and SB Participation Submittal Form. At minimum, the Letter of Intent must include the following:
1. The fixed numerical percentage commitment and associated estimated dollar value of the commitment made to the SDB or SB.
2. A description of the services or supplies the SDB or SB will provide.
3. The time frame during the initial contract term and any extensions, options and renewals when the SDB or SB will perform or provide the services or supplies, or both.
4. The name and telephone number of the Offeror's point of contact for SDB and SB participation.
5. The name, address and telephone number of the primary contact person for the SDB or SB.
E. Each SDB and SB commitment which is credited by BDISBO along with the overall percentage of SDB and SB commitments will become contractual obligations of the selected Offeror.
Note: Offerors will not receive credit for any commitments for which previously listed information is not included in the SDB and SB Participation Submittal. Offerors will not receive credit for stating that after the contract is awarded they will find a Small Diverse or SB.
Note: Equal employment opportunity and contract compliance statements referring to company equal employment opportunity policies or past contract compliance practices do not constitute proof of SDB or SB status or entitle an Offeror to receive credit for SDB or SB participation.
II-5. Contract Requirements—SDB and SB Participation. All contracts containing SDB and SB participation must contain the following contract provisions to be maintained through the initial contract term and any subsequent options or renewals:
A. Each SDB and SB commitment which was credited by BDISBO and the total percentage of the SDB and SB commitments made at the time of proposal submittal, best and final offer or contract negotiations, as applicable, become contractual obligations of the selected Offeror upon execution of its contract with the Commonwealth.
B. All SDB and SB subcontractors credited by BDISBO must perform at least 50% of the work subcontracted to them.
C. The individual percentage commitments made to SDBs and SBs cannot be altered without written approval from BDISBO.
D. SDB and SB commitments must be maintained in the event the contract is assigned to another prime contractor.
E. The selected Offeror and each SDB and SB for which a commitment was credited by BDISBO must submit a final, definitive subcontract agreement signed by the selected Offeror and the SDB or SB to BDISBO within 30 days of the final execution date of the Commonwealth contract. A Model Subcontract Agreement which may be used to satisfy this requirement is provided in the Model Form of Small Diverse and Small Business Subcontract Agreement (Appendix C). The subcontract must contain:
1. The specific work, supplies or services the SDB or SB will perform; location for work performed; how the work, supplies or services relate to the project; and the specific timeframe during the initial term and any extensions, options and renewals of the prime contract when the work, supplies or services will be provided or performed.
2. The fixed percentage commitment and associated estimated dollar value that each SDB or SB will receive based on the final negotiated cost for the initial term of the prime contract.
3. Payment terms indicating that the SDB or SB will be paid for work satisfactorily completed within 14 days of the selected Offeror's receipt of payment from the Commonwealth for the work.
4. Commercially reasonable terms for the applicable business/industry that are no less favorable than the terms of the selected Offeror's contract with the Commonwealth and that do not place disproportionate risk on the SDB or SB relative to the nature and level of the SDBs' or SBs' participation in the project.
F. If the selected Offeror and an SDB or SB credited by BDISBO cannot agree upon a definitive subcontract within 30 days of the final execution date of the Commonwealth contract, the selected Offeror must notify BDISBO.
G. The selected Offeror shall complete the Prime Contractor's Quarterly Utilization Report and submit it to the contracting officer of the Issuing Office and BDISBO within 10 business days at the end of each quarter of the contract term and any subsequent options or renewals. This information will be used to track and confirm the actual dollar amount paid to SDB and SB subcontractors and suppliers and will serve as a record of fulfillment of the contractual commitment. If there was no activity during the quarter, the form must be completed by stating ''No activity in this quarter.'' A late fee of $100 per day may be assessed against the selected Offeror if the Utilization Report is not submitted in accordance with the previously listed schedule.
H. The selected Offeror shall notify the Contracting Officer of the Issuing Office and BDISBO when circumstances arise that may negatively impact the selected Offeror's ability to comply with SDB or SB commitments and to provide a corrective action plan. Disputes will be decided by the Issuing Office and DGS.
I. If the selected Offeror fails to satisfy its SDB or SB commitments, it may be subject to a range of sanctions BDISBO deems appropriate. The sanctions include one or more of the following: a determination that the selected Offeror is not responsible under the Contractor Responsibility Program; withholding of payments; suspension or termination of the contract together with consequential damages; revocation of the selected Offeror's SDB status or SB status; or suspension or debarment from future contracting opportunities with the Commonwealth.
II-6. Debriefing. The Department will not offer a debriefing session to the unsuccessful firms. The Department disclaims any liability whatsoever to its review of the proposal submitted and in formulating a recommendation for selections. Recommendations made by the Department shall be final.
PART III
CRITERIA FOR SELECTIONIII-1. Selection Criteria. The engineering consulting firm will be evaluated upon the following criteria:
A. Consultant's experience on past projects of similar scope, type and size.
B. Consultant's staff qualifications, experience and ability to perform the required services, including available manpower to perform the required services. This includes the qualifications, experience and abilities of subconsultant's staff.
C. Consultant's understanding of the problem and the services required.
D. Consultant's project approach and methodology.
E. Knowledge and experience with environmentally sustainable design.
F. Quality control and assurance program and procedures.
G. Equitable distribution of contracts.
H. SDB and SB Participation: BDISBO has established the minimum evaluation weight for the SDB and SB participation criterion for this RFP as 20% of the total points.
1. The Small Diverse and SB point allocation is based entirely on the percentage of the contract cost committed to SDBs and SBs.
2. A total combined SDB/SB commitment less than 1% of the total contract cost is considered de minimis and will not receive SDB or SB points.
3. Two thirds of the total points are allocated to SDB participation (SDB %).
4. One third of the total points is allocated to SB participation (SB %).
5. Based on a maximum total of 200 available points for the SDB and SB Participation Submittal, the scoring mechanism is as follows:
Small Diverse Business and Small Business Raw Score =
200 (SDB % + (1/3 × SB %))6. Each Offeror's raw score will be pro-rated against the Highest Offeror's raw score by applying the formula set forth at http://www.dgs.pa.gov/Businesses/Materials%20and%20Services%20Procurement/Procurement-Resources/Pages/RFP_SCORING_FORMULA.aspx.
7. The Offeror's prior performance in meeting its contractual obligations to SDBs and SBs will be considered by BDISBO during the scoring process. To the extent the Offeror has failed to meet prior contractual commitments, BDISBO may recommend to the Issuing Office that the Offeror be determined nonresponsible for the limited purpose of eligibility to receive SDB and SB points.
III-2. Number of Contracts. The Department may select more than one firm.
PART IV
MAILING AND CONTACT INFORMATIONFirms interested in performing the required services for this project are invited to submit Letters of Interest to Alfred Uzokwe, Sr., PE, Director, Bureau of Facility Design and Construction, Rachel Carson State Office Building, 8th Floor, 400 Market Street, P.O. Box 8451, Harrisburg, PA 17105-8451. Contact Shawn Beeler at (717) 772-0299 for general information concerning this RFP.
CINDY ADAMS DUNN,
Secretary
APPENDIX A
SMALL DIVERSE BUSINESS (SDB) AND SMALL BUSINESS (SB)
PARTICIPATION SUBMITTALProject: __________
Offeror Firm: __________
Offeror Contact Name: _________________ Email: _________________
OFFEROR INFORMATION:
Is your firm a DGS-Verified Small Diverse Business? [ ] Yes [ ] No (MUST check one)
Is your firm a DGS-Self-Certified Small Business? [ ] Yes [ ] No (MUST check one)
SUBCONTRACTING INFORMATION:
Percentage Commitment for SDB and SB Subcontracting Participation
After examination of the contract documents, which are made a part hereof as if fully set forth herein, the
Offeror commits to the following percentages of the total contract cost for Small Diverse Business and Small
Business subcontracting participation.Small Diverse Business Subcontracting percentage commitment:
______% _________________ Percent
(Figure) (Written)Small Business Subcontracting percentage commitment:
______% _________________ Percent
(Figure) (Written)Listing SDB and SB Subcontractors
The Offeror must list in the chart below the SDBs and SBs that will be used to meet the percentage commitments provided above. Include the SDB/SB firm name, SDB or SB designation, SDB/SB Primary Contact Information, a description of the service or supplies the SDB/SB will provide, fixed percent of total contract cost committed, estimated dollar value of each commitment, and an indication as to the Offeror's intent to utilize the SDB/SB subcontractor for contract options or renewals. Include as many pages as necessary. Offerors must also include a Letter of Intent as indicated in RFP Part II, Section II-5 for each SDB/SB listed.
SDB/SB Name SDB or SB Primary Contact
Name &Description of Services or Supplies to be provided % of total Contract Cost Committed Estimated $ value of Commitment Will SDB/SB be used for options/
renewals (yes/no)
APPENDIX B
SMALL DIVERSE AND SMALL BUSINESS
LETTER OF INTENT[DATE]
[SDB/SB Contact Name
Title
SDB/SB Company Name
Address
City, State, ZipDear [SDB/SB Contact Name]:
This letter serves as confirmation of the intent of [Offeror] to utilize [Small Diverse Business (SDB) or Small Business (SB)] on RFP [RFP number and Title] issued by the [Commonwealth agency name].
If [Offeror] is the successful vendor, [SDB or SB] shall provide [identify the specific work, goods or services the SDB/SB will perform] during the initial term of the prime contract and during any extensions, options or renewal periods of the prime contract exercised by the Commonwealth, as more specifically set forth below: [identify the specific time periods during the initial contract term and any extensions, options and renewals when the component work, goods or services will be provided or performed.]
These services represent [identify fixed numerical percentage commitment] of the total cost in the [Offeror's] cost submittal for the initial term of the contract. Dependent on final negotiated contract pricing and actual contract usage or volume, it is expected that [SDB or SB] will receive an estimated [identify associated estimated dollar value that the fixed percentage commitment represents] during the initial contract term.
[SDB/SB] represents that it meets the small or small diverse business requirements set forth in the RFP and all required documentation has been provided to [Offeror] for its SDB/SB submission.
We look forward to the opportunity to serve the [Commonwealth agency name] on this project. If you have any questions concerning our small business or small diverse business commitment, please feel free to contact me at the number below.
Sincerely, Acknowledged,
Offeror Name SDB or SB Name
Title Title
Company Company
Phone number Phone number
APPENDIX C
MODEL FORM OF SMALL DIVERSE AND SMALL BUSINESS
SUBCONTRACTOR AGREEMENTThis Subcontractor Agreement (''Subcontract'') is made effective as of ______ ______ , 20______ , by and between _________________ , (''Contractor'') and _________________ , a Small Diverse Business or Small Business (''Subcontractor'') (collectively referred to as the ''Parties'').
RECITALS Contractor has entered into a contract dated ______ (the ''Prime Contract'') with the Department of ______ of the Commonwealth of Pennsylvania (''Commonwealth''). Under the Prime Contract, Contractor has agreed to provide certain supplies, services or construction (''Services'') to the Commonwealth.
In connection with the Procurement leading to the Prime Contract, Contractor and Subcontractor entered into a letter agreement dated ______ (''Letter of Intent'') whereby the Contractor committed a certain percentage of work (''Small Diverse Business or Small Business Commitment'') under the Prime Contract to the Subcontractor.
As contemplated by the Letter of Intent and in accordance with the provisions of the Procurement and Prime Contract, the Parties have agreed to enter into this Subcontract to fulfill the Small Diverse Business or Small Business Commitment expressed in the Letter of Intent and as required by the Prime Contract.
DEFINITIONS The following words and terms when used in this Subcontract shall have the following meanings:
Bureau—The Department's Bureau of Diversity, Inclusion and Small Business Opportunities.
Contracting Officer—The person authorized to administer and make written determinations for the Commonwealth with respect to the Prime Contract.
Department—The Department of General Services of the Commonwealth of Pennsylvania.
Issuing Office—The department, board, commission or other agency of the Commonwealth of Pennsylvania that issued the Procurement.
Procurement—The Invitation for Bids, Request for Quotes, Request for Proposals or other solicitation and all associated final procurement documentation issued by the Commonwealth to obtain proposals from firms for award of the Prime Contract.
Small Business—A business in the United States which is independently owned, not dominant in its field of operation, employs no more than 100 full-time or full-time equivalent employees, and earns less than $7 million in gross annual revenues for building design, $20 million in gross annual revenues for sales and services and $25 million in gross annual revenues for those businesses in the information technology sales or service business.
Small Diverse Business—A Department-verified minority-owned small business, woman-owned small business, veteran-owned small business, service-disabled veteran-owned small business, LGBT-owned small business, or disability-owned small business.
AGREEMENT Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
1. Subcontractor Representations. Subcontractor represents and warrants to Contractor as follows:
(a) Subcontractor is self-certified as a Small Business in accordance with the requirements and procedures established by the Bureau of Diversity, Inclusion and Small Business Opportunities; [Subcontractor is also verified as a Small Diverse Business by the Bureau of Diversity, Inclusion and Small Business Opportunities in accordance with the requirements and procedures established by the Bureau;]
(b) Subcontractor possesses the necessary knowledge, experience, expertise, capital, resources and personnel required to perform the Services it will provide under this Subcontract;
(c) Subcontractor (i) is duly organized, validly existing and in good standing under the laws of its state of incorporation or organization, (ii) has the power and authority to own its properties and to carry on business as now being conducted, and (iii) has the power to execute and deliver this Subcontract;
(d) The execution and performance by Subcontractor of the terms and provisions of this Subcontract have been duly authorized by all requisite action, and neither the execution nor the performance of this Subcontract by Subcontractor will violate any provision of law, any order of any court or other agency of government, the organizational documents of Subcontractor or any indenture, agreement or other instrument to which Subcontractor is a party, or by which Subcontractor is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or except as may be provided by this Subcontract, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of Subcontractor pursuant to, any such indenture agreement or instrument;
(e) Subcontractor has obtained all licenses, permits and approvals required to perform the Services it will provide under this Subcontract; and
(f) Subcontractor is not under suspension or debarment by the Commonwealth or any other governmental entity, instrumentality or authority.
2. Contractor Representations. Contractor represents and warrants to Subcontractor as follows:
(a) Contractor (i) is duly organized, validly existing and in good standing under the laws of its state of incorporation or organization, (ii) has the power and authority to own its properties and to carry on business as now being conducted, and (iii) has the power to execute and deliver this Subcontract;
(b) The execution and performance by Contractor of the terms and provisions of this Subcontract by Contractor have been duly authorized by all requisite action, and neither the execution nor the performance of this Subcontract will violate any provision of law, any order of any court or other agency of government, the organizational documents of Contractor or any indenture, agreement or other instrument to which Contractor is a party, or by which Contractor is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or except as may be provided by this Subcontract, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of Contractor pursuant to, any such indenture agreement or instrument;
(c) Contractor has obtained all licenses, permits and approvals required to perform the Services to be provided by Contractor under the Prime Contract; and
(d) Contractor is not under suspension or debarment by the Commonwealth or any other governmental entity, instrumentality or authority.
3. Relationship of the Parties. The provisions of this Subcontract are not intended to create, nor shall be deemed or construed to create, any joint venture, partnership or other relationship between Contractor and Subcontractor, other than that of independent entities contracting with each other solely for the purpose of carrying out the provisions of this Subcontract. Neither of the Parties to this Subcontract, nor any of their respective employees, agents, or other representatives, shall be construed to be the agent, employee or representative of the other party. Neither party shall have the authority to bind the other party, nor shall a party be responsible for the acts or omissions of the other party, unless otherwise stated in this Subcontract. Similarly, the Parties expressly acknowledge that neither the Contractor nor the Subcontractor is an agent, employee or representative of the Commonwealth and each party covenants not to represent itself accordingly.
4. Prime Contract Flow-Down.
(a) General. This agreement is a subcontract under the Prime Contract and all provisions of the Prime Contract and any amendments thereto applicable to the Services being performed by the Subcontractor shall extend to and be binding upon the Parties as part of this Subcontract.
(b) Specific. The Parties agree to comply with the following provisions of the Prime Contract, which are incorporated herein by reference:
(1) The Americans with Disabilities Act Provisions.
(2) Nondiscrimination/Sexual Harassment Clause.
(3) Contractor Integrity Provisions.
(4) Contractor Responsibility Provisions.
(c) Termination. Should the Prime Contract be terminated pursuant to the terms and conditions provided in the Procurement, such termination shall have the same effect on this Subcontract. Payment for Services provided as of the date of termination must be made in accordance with the Section 13 of this Subcontract.
(d) Audit Provisions. The Commonwealth shall have the right, at reasonable times and at a site designated by the Commonwealth, to audit the books, documents, and records of the Parties to the extent that the books, documents, and records relate to the Parties' compliance with the provisions set forth in subsection (b) above or to the Small Diverse Business or Small Business Commitment effectuated through this Subcontract. The Parties shall preserve such books, documents, and records for a period of three years from the date of final payment hereunder. The Parties shall give full and free access to all such records to the Commonwealth and/or its authorized representatives.
5. Order of Precedence. The Letter of Intent, Procurement and Prime Contract are incorporated herein by reference into this Subcontract. In the event of any conflict or inconsistency among the individual components of this Subcontract, such conflict or inconsistency shall be resolved by observing the following order of precedence:
(a) This Subcontract;
(b) The Letter of Intent;
(c) The Prime Contract; and
(d) The Procurement.
6. Further Action. The Parties shall take such actions and complete, execute and deliver any and all documents or instruments necessary to carry out the terms and provisions of this Subcontract, to effectuate the purpose of this Subcontract, and to fulfill the obligations of each party hereunder.
7. Description of Services. Subcontractor will perform the following Services for the Contractor which Contractor is obligated to provide to the Commonwealth under the Prime Contract:
[DESCRIBE IN DETAIL THE SPECIFIC SUPPLIES, SERVICES OR CONSTRUCTION THE SUBCONTRACTOR WILL PROVIDE OR PERFORM]
_________________
_________________
_________________
_________________
_________________
_________________ .
8. Small Diverse Business or Small Business Commitment. The above-referenced Services represent ______ % of the final negotiated total cost for the initial term of the Prime Contract. Any proposed change to the Small Diverse Business or Small Business Commitment must be submitted in writing to the Bureau which will make a recommendation to the Commonwealth Contracting Officer regarding a course of action.
9. Performance of Services. Subcontractor may not subcontract more than 50% of the work subcontracted to it hereunder without written permission from the Bureau. Subcontractor will perform the Services strictly in accordance with any applicable plans and specifications as contained in the Prime Contract and the reasonable deadlines set by Contractor in view of the requirements of the Prime Contract, and in a good workmanlike manner consistent with industry standards, meeting all applicable local, state and federal laws, regulations and policies.
10. Location of Services. Subcontractor will provide the Services at the following address(es):
_________________
_________________ .
11. Timeframe for Performance of Services. The Services will be provided by Subcontractor during the initial term of the Prime Contract, and during any extensions, options or renewal periods of the Prime Contract exercised by the Commonwealth, as more specifically set forth below:
[IDENTIFY THE SPECIFIC TIME PERIODS DURING THE INITIAL CONTRACT TERM AND EXTENSIONS, OPTIONS AND RENEWALS WHEN THE SUBCONTRACTOR WILL PERFORM COMPONENT SERVICES]
_________________
_________________
_________________
_________________
_________________ .
12. Pricing of Services. Subcontractor shall provide or perform the Services at the pricing specified in Exhibit ______ to this Subcontract. [ATTACH A BILL OF MATERIALS, RATE CARD OR OTHER APPROPRIATE COST SHEET COVERING THE SERVICES TO BE PROVIDED.]
13. Payment for Services. Contractor shall exert reasonable and diligent efforts to collect prompt payment from the Commonwealth. Contractor shall pay Subcontractor in proportion to amounts received from the Commonwealth which are attributable to the Services performed by Subcontractor. Contractor shall pay Subcontractor within fourteen (14) days after the Contractor receives such payment from the Commonwealth, unless the parties expressly agree upon a different payment schedule or structure as set forth below:
_________________
_________________
_________________ .
14. Utilization Reports. Both the Contractor and Subcontractor shall complete Quarterly Utilization Reports (or similar type documents containing the same information) and submit them to the Contracting Officer and to the Bureau within ten (10) business days at the end of each quarter. This information will be used to determine the actual dollar amount paid to Subcontractor and will also serve as a record of fulfillment of Contractor's Small Diverse Business and Small Business Commitments. If there was no activity during the quarter, then the form must be completed by stating ''No activity in this quarter.'' A late fee of $100.00 per day may be assessed against the Contractor if its Utilization Report is not submitted in accordance with the schedule above.
15. Change Orders. If the Commonwealth issues any change order or other formal contract instrument either expanding or limiting the work to be performed under the Prime Contract, the Parties shall accept such Change Orders. Contractor agrees to provide Subcontractor with written notice of any such change orders that affect the Services to be provided by the Subcontractor hereunder as soon as practical after Contractor receives such notice. Any resulting increase or decrease in the Services, Small Diverse Business or Small Business Commitment provided for in Paragraphs 7 or 8 above must be in writing, mutually agreed to, and signed by both Parties and communicated to the Bureau. If the Parties are unable to reach an agreement regarding any adjustment to the Services, Small Diverse Business or Small Business Commitment necessitated by a Commonwealth Change Order, the Parties must submit the matter in writing to the Bureau which will make a recommendation to the Contracting Officer regarding a course of action.
16. Force Majeure. Neither party will incur any liability to the other if its performance of any obligation under this Subcontract is prevented or delayed by causes beyond its control and without the fault or negligence of either party. Causes beyond a party's control may include, but are not limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemic and quarantines, general strikes throughout the trade, and freight embargoes. The existence of such causes beyond a party's control shall extend the period for performance to such extent as may be necessary to enable complete performance in the exercise of reasonable diligence after the causes have been removed.
17. Dispute Resolution.
(a) The Parties will attempt to resolve any dispute arising out of or relating to this Subcontract through friendly negotiations.
(1) The Parties expressly acknowledge and confer upon the Bureau and Contracting Officer the authority to adjudicate disputes that the Parties cannot resolve amicably concerning the Parties' compliance with their Small Diverse Business and Small Business Commitments as provided in the Prime Contract and this Subcontract.
(2) The Bureau may recommend to the Contracting Officer a range of sanctions it deems appropriate if the Bureau determines a party has failed to satisfy or perform its Small Diverse Business or Small Business commitment. Such sanctions include, but are not limited to, one or more of the following: a determination that the party is not responsible under the Contractor Responsibility Program; withholding of Prime Contract and/or Subcontract payments; suspension or termination of the Prime Contract and/or Subcontract together with consequential damages; revocation of the party's Small Business self-certification status and/or Small Diverse Business verification status; and/or suspension or debarment of one or both parties from future contracting opportunities with the Commonwealth.
(3) The Parties' acknowledge that their prior performance in meeting their Small Diverse Businesses and Small Businesses contractual obligations will be considered by the Bureau during future procurement scoring processes. To the extent a party has failed to meet prior contractual commitments, the Bureau may recommend to the Issuing Office that the party be determined non-responsible for the limited purpose of eligibility to receive SDB/SB points or consideration as a qualified Small Diverse Business or Small Business.
(b) Nothing herein shall be construed to prevent either party from seeking such relief as provided by law in a court or tribunal of competent jurisdiction.
18. Notices. Any written notice to any party under this Subcontract shall be deemed sufficient if delivered personally, or by facsimile, telecopy, electronic or digital transmission (provided such delivery is confirmed), or by a recognized overnight courier service (e.g., DHL, Federal Express, etc.) with confirmed receipt, or by certified or registered United States mail, postage prepaid, return receipt requested, and sent to the following:
If to Contractor:
_________________
_________________
_________________
If to Subcontractor:
_________________
_________________
_________________
19. Waiver. No waiver by either party of any breach of this Subcontract shall be deemed to waive any other breach. No acceptance of payment or performance after any breach shall be deemed a waiver of any breach. No failure or delay to exercise any right by a party upon another's default shall prevent that party from later exercising that right, nor shall such failure or delay operate as a waiver of any default.
20. Severability. If any provision of this Subcontract shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Subcontract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
21. Assignment. Neither party may assign or transfer this Subcontract without the prior written consent of the Commonwealth. If Contractor's Prime Contract with the Commonwealth is assigned to another contractor, the new contractor must maintain the Small Diverse Business and Small Business Commitment set forth in the Prime Contract as implemented through this Subcontract.
22. Applicable Law. This Subcontract shall be governed by the laws of the Commonwealth of Pennsylvania.
23. Entire Agreement. This Subcontract constitutes the entire agreement of the Parties regarding the subject of this Subcontract as of the date of execution. No other agreement or understandings, verbal or written, expressed or implied, are a part of this Subcontract unless specified herein.
24. Amendment. This Subcontract may be modified or amended only if made in writing and signed by both Parties. Any proposed change to the Contractor's Small Diverse Business or Small Business Commitment to Subcontractor must be submitted in writing to the Bureau which will make a recommendation to the Contracting Officer regarding a course of action.
25. Binding Effect. This Subcontract shall be binding upon, and inure to the benefit of, the Parties and their respective heirs, representatives, successors and assigns.
26. Counterparts. This Subcontract may be executed by the Parties in counterparts, each of which together shall be deemed an original but all of which together shall constitute one and the same instrument. A party's delivery of a duly executed signature page of this Subcontract in electronic format shall have the same force and effect as delivery of an original signature page.
ADDITIONAL TERMS AND CONDITIONS [THE PARTIES MAY INCLUDE ADDITIONAL TERMS AND CONDITIONS APPROPRIATE FOR THE SERVICES TO BE PROVIDED SO LONG AS THEY ARE COMMERCIALLY REASONABLE TERMS FOR THE APPLICABLE BUSINESS OR INDUSTRY, ARE NO LESS FAVORABLE THAN THE TERMS OF THE PRIME CONTRACT, AND DO NOT PLACE DISPROPORTIONATE RISK ON THE SMALL DIVERSE BUSINESS OR SMALL BUSINESS RELATIVE TO THE NATURE AND LEVEL OF THE SMALL DIVERSE BUSINESS' OR SMALL BUSINESS' PARTICIPATION IN THE PROJECT. SUCH TERMS MAY INCLUDE:
Background Checks
Confidentiality/Disclosure of Information
Data Security
Insurance
Invoicing Requirements
Environmental Protection
Intellectual Property Rights
Record Retention/Audits
Service Level Agreements (SLAs) (consistent with Prime Contract SLAs)
Public Works Construction Requirements (including Bonding, E-Verify, Prevailing Wage, and Prompt Payment
provisions)IN WITNESS WHEREOF, the Parties hereto have caused this Subcontract to be executed by their duly authorized officers as set forth below.
Contractor Subcontractor
Insert Company Name Insert Company Name
By: _________________ By: _________________
Signature Signature_________________ _________________
Printed Name Printed Name_________________ _________________
Title Title_________________ _________________
Date Date
[Pa.B. Doc. No. 18-530. Filed for public inspection April 6, 2018, 9:00 a.m.]
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