Provisions for Competitive Bidding
Contractor agrees to these general provisions and special conditions, as well as the other provisions contained in the contract. Herein, the Trustees of the California State University are referred to as “CSU” or “university.” The terms “bid” and “proposal” are synonymous, as are the terms “contract,” “agreement” and “purchase order.” The terms “Bidder,” “Proposer,” “Supplier” and “Contractor” are also used interchangeably, and each shall apply to the business entity which submits a bid / proposal or is awarded a contract.
SUPPLIER DATA RECORD: Suppliers / Contractors doing business with the state of California are required by law to complete and return the Supplier Information (Payee Data Record) Form 204. Payment is contingent upon receipt of this form by the university Accounts Payable Department.
CONTRACTOR BUSINESS LICENSE: A bid will not be accepted from a person, firm or corporation that has not been licensed in accordance with the provisions of the Business and Professional Code.
1. Preparation of bids and proposals:
- It shall be bidder’s responsibility to examine any drawings, specifications, and instructions.
- All prices and notations must be word-processed, printed in ink or typewritten.
- Time of delivery (whether a commodity or a service) is a part of the bid and must be strictly observed. Time, if stated as a number of days, shall mean calendar days.
- It is the bidder’s responsibility to examine the proposed installation site to fully understand the work and any difficulties that may arise in performing the work. No variation from the contract terms shall be made because of bidder’s lack of examination or knowledge.
- The acceptance of bids, bid bonds or price requests by facsimile or any other electronic means shall be determined at the discretion of the university on a case-by-case basis. When originals are required, failure to submit original, signed documents shall be cause for rejection.
- Costs for developing bids are entirely the responsibility of bidder and shall not be charged to the university.
2. Submission of bids:
- Whenever the university so designates, bids must be signed and sealed, with the bid number, bidder’s name and address and closing date on the outside of the envelope. Only bids submitted on bid forms furnished by the university will be considered.
- Bids or partial bids, and modifications or corrections thereof received after the closing time specified may not be considered. The university assumes no responsibility for delay in delivery of bids by the United States Post Office or delivery to any location on campus other than the Procurement Services office. The university encourages hand delivery or Federal Express delivery of the bid package directly to Contract & Procurement Management, Administration Bldg., Room 116.
3. Additional information — The university reserves the right to request additional information necessary to assure the proposer’s competence, business organization and financial resources are adequate to perform according to the agreement. The university may make such investigations as deemed necessary, and the proposer shall furnish to the university all such information and data for this purpose. The university reserves the right to reject any proposal if the evidence, or investigation, fails to satisfy the university. The decision of the university is final.
4. Proposals property of San Diego State University — Proposals become the property of the university and information contained therein shall become public property subject to disclosure laws. The university reserves the right to make use of any information or ideas contained in the proposal.
5. Confidentiality — Any information considered to be proprietary by the proposer shall be marked “CONFIDENTIAL.” To the extent the manager of Contract & Procurement Management concurs, this information will not be considered public information. The manager of Contract & Procurement Management is the final authority as to the extent of material which can be considered confidential. Except as required by law or university policy, the university shall not disclose confidential information. Pricing information cannot be considered confidential.
6. Revisions in bid solicitation — In the event a bidder believes that the university’s bid solicitation is unfairly restrictive or contains substantive errors or omissions, the matter must be promptly brought to the attention of the university’s Contract & Procurement Management office, either by telephone, telegraph, letter or visit; immediately upon receipt of the bid solicitation, in order that the matter may be fully considered and appropriate action taken by the university prior to the closing time set for bids.
7. Award of contracts or purchase orders:
- Contracts will be made or entered into with (a) the lowest responsible bidder meeting specifications, (b) the bidder with the highest score attained at the end of a competitive evaluation process, or (c) as otherwise specified in the bid solicitation. The university reserves the right to determine the results of the prescribed evaluation process and the award.
- Purchase orders will be made or entered into with the lowest responsible bidder meeting specifications, except as otherwise specified in the bid solicitation. Where more than one item is specified in the bid solicitation, the university reserves the right to determine the low bidder either on the basis of individual items, systems, or on the basis of all items included in the bid solicitation.
- Unless the bidder specifies otherwise in the submitted bid, the university may accept any portion or group of items or services offered in the bid, or accept none.
- The university reserves the right to reject any or all bids and to waive informalities and minor irregularities in bids received.
- A university purchase order mailed or otherwise furnished to the successful bidder within the time for acceptance specified in the bid solicitation results in a binding agreement without further action by either party. The binding agreement shall be interpreted, construed and given effect in all respects according to the laws of the State of California.
8. Non-endorsement — If a proposal is accepted, the contractor shall not issue any news release or other statements pertaining to the award or servicing of the agreement which state or imply university endorsement of contractor’s services, unless mutually agreed upon by the contractor and the university.
9. Assignments — Without written consent of the CSU, the contract is not assignable by contractor either in whole or in part.
10. Independent status — The contractor, and the agents and employees of contractor, in the performance of the contract, shall act in an independent capacity and not as officers or employees or agents of the State of California. While contractor may (or may not) be required under the terms of this contract to carry worker’s compensation insurance, contractor is not entitled to unemployment or workers compensation benefits from the CSU.
11. Use of subcontractors — The contractor shall identify any proposed subcontractors and identify services to be performed by the subcontractors. Contractor must submit evidence that subcontractor is qualified and legally able to provide service. Contractor shall be responsible for all work performed under this contract and no subcontractor will be recognized as such. For purposes of assessing responsibility to the contractor, all persons engaged in the work shall be considered employees of the contractor.
12. Time — Adherence to time-line deliverables will be a critical factor in awarding a supplier’s bid proposal.
13. Contract alterations and integration — No alteration or variation of the terms of the contract shall be valid unless made in writing and if required, signed by the parties hereto, and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto. Any purchase order resulting from a bid may be amended, modified, or terminated at any time by mutual agreement of the parties in writing. The university Contract & Procurement Management department issues change orders amending, modifying or terminating the purchase order, including any modifications of the compensation payable. All such change orders shall be in writing and issued only upon written concurrence of the supplier. Termination, as that term is used in this section, does not include termination for default of the supplier.
14. Commencement of work — Work shall not commence under the Contract until the Contractor has received a fully executed agreement and the Contractor has been given approval to proceed. Any work performed by the Contractor prior to the date of approval shall be considered as having been performed at the Contractor’s own risk and as a volunteer.
15. Contractor evaluation — Contractor’s performance under this agreement will be evaluated.
16. Approval/acceptance of services — Contractor agrees and understands that all services provided under the terms of this contract are subject to the approval of the university. The Project Manager or designee shall make decision as to the adequacy of the services performed. Decisions of the university shall be final.
17. Bonds — The university reserves the right to require a faithful performance or other bond from the Contractor / Supplier in an amount not to exceed the amount of the contract. In the event a surety bond is required by the university which has not been expressly required by the specification, the university will reimburse the supplier as an addition to the purchase price in an amount not exceeding the standard premium on such bond.
18. Non-performance by contractor — The CSU may terminate the Contract and be relieved of the payment of any consideration to Contractor should Contractor fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, the CSU may proceed with the work in any manner deemed proper by the CSU. The cost to the CSU shall be deducted from any sum due the Contractor under the Contract, and the balance, if any, shall be paid the Contractor upon demand.
19. Force majeure — Neither party shall be held responsible for any losses resulting if the fulfillment of any terms or provisions of this agreement are delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence, said party is unable to prevent.
20. General indemnity — The Contractor agrees to indemnify, defend and save harmless the university, its officers, agents and employees from any and all claims and losses accruing or resulting to any other person, firm or corporation furnishing or supplying work, services, materials or supplies in connection with the performance of this Contract, and from any and all claims and losses accruing or resulting to any person, firm or corporation which may be injured or damaged by the Contractor in the performance of this Contract.
21. Unfair practices act, fair employment practices act and other laws — Bids shall be in accordance with the Unfair Practices Act (Business and Professions Code Section 17000 et seq.).
- During the performance of this Contract, Contractor and its subcontractors shall not deny the Contract’s benefits to any person on the basis of religion, color, ethnic group identification, sex, age, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, medical condition, marital status, age (over 40) or sex. Contractor shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.
- Contractor shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12900 et seq.), the regulations promulgated there under (California Code of Regulations, Title 2, Sections 7285.0 et seq.), and the provisions of Article 9.5 Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Government Code Sections 11135-11139.5).
- Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the Trustees upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information, and its facilities as said Department or Trustees shall require to ascertain compliance with this clause.
- Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
- Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the agreement.
23. Americans with Disabilities Act (ADA) — Contractor assures the university that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U>S>C.12101 et seq.).
24. Compliance with NRLB orders — In submitting a bid or signing a contract, the Contractor swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the Contractor’s failure to comply with an order of a federal court which orders the Contractor to comply with an order of the National Labor Relations Board. This provision is required by, and shall be construed in accordance with, Public Contract Code Section 10296.
25. Drug-free workplace certification — By accepting a contract or purchase order, the Contractor certifies under penalty of perjury under the laws of the State of California that the Contractor will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code, Section 8355 et seq.) and will provide a drug-free workplace by doing all of that which Section 8355 et seq. requires.
26. Forced, convict and indentured labor — Contractor agrees that no foreign-made equipment, materials, or supplies furnished to the State pursuant to this contract have produced in whole or in part by forced labor, convict labor, or indentured label under penal sanction. (Public Contract Code Section 6108.)
27. Contractor compensation — The consideration to be paid Contractor, as described within the contract, shall be in full compensation for all of Contractor’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
28. Child Support Compliance Act — For any contract in excess of $100,000, the contractor acknowledges in accordance with Public Contract Code, Section 7110, that:
- The Contractor recognizes the importance of child and family support obligations an shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 Division 9 of the Family Code; and
- The Contractor to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
29. Citizenship and public benefits — If Contractor is a natural person, Contractor certifies in accepting this Contract that he / she is a citizen or national for the United States or otherwise qualified to receive public benefits under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193; 110 STAT.2105, 2268-69).
30. Rights and remedies of university for default:
- In the event any item furnished by the Contractor in the performance of this Contract should fail to conform to the specifications therefore, or to the sample submitted by the Contractor with the bid, the university may reject the same, and it shall thereupon become the duty of the Contractor to reclaim and remove the same forthwith, without expense to the university, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Contractor fail, neglect, or refuse to do so, the university shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items and to deduct from any monies due or that may thereafter become due to the Contractor the difference between the price named in the contract and the actual cost thereof to the university.
- In the event the Contractor shall fail to make prompt delivery as specified of any item, the same conditions as to the right of the university to purchase in the open market and to reimbursement set forth above shall apply, except for force majeure. Except for defaults of subcontractors, neither party shall be responsible for delays or failures in performance resulting from acts beyond the control of the offending party. Such acts (known as “force majeure”) shall include but shall not be limited to fire, strike, freight embargo or acts of god and of the government. If a delay or failure in performance by the Contractor arises out of a default of its subcontractor, and without the fault or negligence of either of them, the Contractor shall not be liable for damages of such delay or failure, unless the supplies or serves to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Contractor to meet the required performance schedule.
- In the event of the cancellation of the Contract, either in whole or in part, by reason of the default or breach thereof by the Contractor, any loss or damage sustained by the university in procuring any items which the Contractor therein agreed to supply shall be borne and paid for by the Contractor.
- The rights and remedies of the university provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
31. Assignment of antitrust actions — The bidder’s attention is directed to the following provisions of Government Code Sections 4552, 4553, and 4554, which shall be applicable to the bidder:
- In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the procurement body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act 915 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, [commencing with Section 16700] of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the procurement body pursuant to the bid. Such assignment shall be made and become effective at the time the procurement body tenders final payment to the bidder (Government Code Section 4552).
- If an awarding body or public procurement body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery (Government Code Section 4553).
- Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (1) the assignee has not been injured thereby, or (2) the assignee declines to file a court action for the cause of action (Government Code Section 4554).
32. Noncollusion affidavit — By signing the bid, Bidder hereby certifies that the bid is not made in the interest of, or on behalf of, any undisclosed party; that the bid is genuine and not collusive, false, or sham; that the Bidder has not directly or indirectly induced or solicited any other Bidder to put in a false or sham bid; and has not directly or indirectly agreed with any Bidder or anyone else to put in a false or sham bid, or to refrain from bidding; that the Bidder has not in any manner, directly or indirectly, south to fix any overhead, profit or cost element of the bid, of that of any other Bidder, or to secure any advantage against the public body awarding the contract or anyone interested in the proposed contract.
33. Conflict with existing law — The Contractor with the university agree that if any provision of the contract is found to be illegal or unenforceable, such term for provision shall be deemed stricken and the remainder of the Contract shall remain in full force and effect. Either party having knowledge of such term or provision shall promptly inform the other of the presumed non-applicability of such provision. Should the offending provision go to the heart of the Contract, the Contract shall be terminated in a manner commensurate with the interests of both parties, to the maximum extent reasonable.
34. Arbitration — Any dispute arising under the terms of this Agreement which is not resolved within a reasonable period of time by authorized representatives of Contractor and the California State University (CSU) shall be brought to the attention of the chief executive officer (or designee) of Contractor and the chief business officer (or designee) of the campus for joint resolution. At the request of either party, the CSU shall provide a forum for discussion of the disputed item(s), at which time the Contract Services and Procurement Department in the Office of the Chancellor (or designee) shall be available to assist in the resolution by providing service to both parties regarding CSU contracting policies and procedures. If resolution of the dispute through these means is pursued without success, either party may seek resolution employing whatever remedies exist in law or equity beyond this Agreement. Despite an unresolved dispute, Contractor shall continue without delay to perform the responsibilities under this Agreement. Contractor shall keep accurate records of its services in order to document adequately the extent of its services under this Agreement.
35. General safety orders — All equipment/material and installation shall comply with CAL/OSHA requirements and with all applicable codes, rules and regulations. All equipment, supplies and services sold to the university shall conform to the Health and Safety Code of the State of California including requirements mandated by the State Fire Marshall.
36. Waste hauling permit — Waste shall be hauled by a licensed hazardous waste contractor and disposed of at an approved landfill. Prior to commencement of work Contractor shall furnish to the university evidence of current hazardous waste hauling permit plus appropriate levels of liability insurance as determined by the university. These documents must be available at any time throughout the duration of the project. Contractor shall be responsible for providing the same documentation for any subcontractor involved in the project. All work shall be conducted in strict compliance with federal, state, and local regulations.
37. Furniture flammability requirements — All furniture shall meet the California State flammability requirements for upholstered furniture as specified in the State of California Business and Professions Code, Bureau of Home Furnishing Acts, Section 19161, Bulletins 116 and 117. Supplier shall deliver and set in place if specified in bid.
38. Work hours — All scheduled work shall be performed on campus by the Contractor between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, with the exception of emergency services as requested by the university. Contractor shall not perform any work on campus on Saturdays, Sundays or legal holidays unless requested by the university. Contractor shall provide the Project Manager with work schedule(s) at least forty-eight (48) hours before arriving on campus.
39. Violation of air or water pollution laws — Unless the Contract is less than $10,000.00 or with a sole-source provider, Government Code Section 4477 prohibits the state from contracting with a person, including a corporation or other business association, who has been determined to be in violation of any state or federal air or water pollution control law. If such determination is final, Government Code Section 4481 requires the State Water Resource Control Board and the Air Resources Board to notify State agencies of such persons. Prior to an award, the university shall determine whether the intended awardee is a person included in notices from the Boards by reference to notices. No award will be made to a person who is identified either by the published notices or by Board notification as a person in violation of state or federal air or water pollution control laws.
40. Target area contract preference act (TACPA) — not applicable to public works — In accordance with Government Code, Section 4530 et seq., preference must be granted to California-based companies submitting bids or proposals to the university for goods to be produced or services performed at work sites in distressed (as defined) areas by persons with a high risk of unemployment when the contract is for goods or services in excess of $100,000. The 5 percent preference is applicable to contracts awarded on the basis of lowest responsible bidder meeting specifications.
41. Enterprise Zone Act (EZA) — not applicable to public works — Businesses may be granted preferences when bidding on state contracts of $100,000 or more for goods and services if the business site is located within one of 34 enterprise zones located throughout California, as designated by the California State Trade and Commerce Agency. Enterprise zones are designated to encourage job-producing business development in designated section of cities or counties. A 5 percent preference is applicable to contracts awarded on the basis of lowest responsible bidder meeting specifications.
42. Post-delivery requirements — The Contractor shall remove all cartons, packaging materials, debris, and trash from the job site.
43. Removal of names from bidders’ list — The university may remove the name of any supplier or contractor from its lists of potential bidders whenever the university has not received recent responses to its bid solicitations from that supplier or contractor.
44. Bid Evaluation Preferences — In evaluating bids, the university will give preferences in accordance with the law for suppliers who are a California certified Small Business. If the bidder claims preferences under the Enterprise Zone Act (EZA), Target Area Contract Preference Act (TACPA) and Local Agency Military Base Recovery Area Act (LAMBRA), the bidder must complete and return the appropriate forms incorporated in the solicitation. Preferences may also be given for bidders using recycle products in accordance with Public Contract Code Sections 10408 and 12150 et seq. Where multiple preferences are claimed, the university will verify eligibility for the preference(s) and evaluate and apply preference(s) in accordance with law and established procedures.
45. Year 2000 compliance — Hardware, software, and firmware products, individually and in combination, shall successfully transition into the year 2000 with the correct system date, without human intervention, including leap year calculations. Hardware, software and firmware products, individually and in combination, shall also provide correct results when moving forward or backward in time through and beyond January 1, 2000.
46. Taxes, fees, expenses, and extras:
- Articles sold to the university are exempt from certain Federal Excise Taxes.
- Unless specified otherwise, prices quoted shall not include all required taxes.
- San Diego State University is a State of California taxable entity. As such, suppliers / contractors shall include applicable tax on all orders and base invoice tax rates upon point of delivery. SDSU tax rates are as follows: 7.75 percent for the main campus in San Diego, California; 8.25 percent for the Imperial Valley campus in Calexico, California.
- No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by the university unless expressly included and itemized in the bid.
- Unless otherwise indicated on the Purchase Order or Contract, on “FOB Shipping Point” transactions supplier shall arrange for lowest cost transportation, prepay, and add freight to invoice.
- Shipments that are California intrastate in nature and where freight is to be borne by the university shall be tendered to carriers with written instructions that rates and charges may not exceed the lowest lawful rates on file with the California Public Utilities Commission.
- On “FOB Shipping Point” transactions, should any shipments under this Purchase Order or Contract be received by the university in a damaged condition and any related freight loss and damage claims filed against the carrier or carriers by wholly or partially declined by the carrier or carriers with the inference that damage was the result of the act of the shipper, such as inadequate packing or loading or some inherent defect in the equipment and / or material, supplier on request of the university shall at supplier’s own expense assist the university in establishing carrier liability by supplying evidence that the equipment and / or material was properly constructed, manufactured, packaged, and secured to withstand normal transportation conditions.
47. Open orders:
- Total of items purchased shall not exceed $1,000 per day.
- No back orders, partial shipments, nor partial payments are permitted.
- Open orders are intended for emergency and will call purchases. However, shipping to the campus is permissible when items are confirmed to be in stock. Delivery shall be made directly to the user / requesting department.
- The supplier is responsible for monitoring the purchases and/or services made against this open order. The supplier must assure materials delivered and / or services provided do not exceed the funding established on this open order as payment will not be authorized.
- Supplier must provide a packing list, delivery receipt and / or invoice with the material.
The invoice / delivery receipt must be legible and itemized. The following information
must be included on the document in order for payment to be made:
- SDSU open PO number and date of request for material;
- Complete description, including part / stock number, clearly identifying the item(s) purchased;
- Quantity, unit price, discount, tax and total price;
- Name of the person who placed the order.
48. Governing law — All contracts and purchase orders shall be construed in accordance with, and their performance governed by, the law of the State of California. Further, Contractor shall comply with any State or Federal law applicable to Contractor’s performance under this Contract. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract.
49. Conflict of interest — The Contractor shall not utilize any information, not a matter of public record, which is received by reason of this Contract, for pecuniary gain not contemplated by the terms of this Contract, regardless of whether the Contractor is or is not under Contract with the CSU at the time such gain is realized. Any report, survey, or product developed by the Contractor pursuant to this Contract is the property of the CSU, and shall not be used in any manner by the Contractor unless authorized by the CSU. Breach of this provision will make the Contract voidable at the Trustees’ option, and the Contractor shall be liable for any damages incurred by the CSU as the result of such breach (Education Code, Section 89006).
50. DVBE and small business participation — The State of California supports statewide participation goals of 3 percent for disabled business enterprises (DVBE Program) for contracts over $10,000 and requires agencies to provide a 5 percent preference when awarding contracts to small businesses. DVBE and small businesses certified by the Office of Small Business Certification and Resources (OSBCR) are eligible to receive the preference. To qualify for the preference, attach the certification letter. If the application is pending with OSBCR, indicate that status on the form provided by the university and return the document with the bid. The university encourages all contractors to use the services of DVBE and OSBCR-certified small business enterprises whenever possible, and to report their use to the university.
51. Recycled content certification — Bidders are required to complete the Recycled Content Certification incorporated and made a part of the bid. State law requires any / all recycled content of a product to be disclosed to the State by the manufacturer or supplier of the product, Public Contract Code Sections 12161 and 12205. If a product contains no recycled content, either postconsumer or secondary material, the bidder shall state “Not Applicable,” sign and date the certification and submit with the bid. The university is required to report on the following recycled categories regardless of the type of contract used to procure them: paper, paint, plastic, solvents, compost, tires, glass, steel, and oil.
52. Financing of acquisition — Bidder shall include within the contents of its bid proposal, the best financing alternatives it has to offer the university whenever the bid solicitation expresses the university’s desire to consider financing (including third-party possibilities) as an option.
53. Patent, copyright, and trade secret indemnity — A contractor may be required to furnish a bond to the university against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret infringement. In addition, the Contractor, at its own expense, shall defend any action brought against the university to the extent that such action is based upon a claim that the product supplied by the contractor or the operation of such product infringes a United States patent or copyright or violates a trade secret. The Contractor shall pay those costs and damages finally awarded against the university in any such action. Such defense and payment shall be conditioned on the following:
- That the Contractor shall be notified within a reasonable length of time in writing by the university of any notice of such claim; and,
- That the contractor shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, provided, however, that when principles of government or public law are involved, the university have the option to participate in such action at its own expense.
- Should the product, or the operation thereof, become, or in the contractor’s opinion is likely to become, the subject of a claim of infringement of a United States patent or copyright or a trade secret, the university shall permit the Contractor at its option and expense either to procure for the university the right to continue using the product, or to replace or modify the same so that they become non-infringing.
If none of these options can reasonably be taken, or if the use of such product by the university shall be prevented by injunction, the contractor agrees to take back such product and make every reasonable effort to assist the university in procuring a substitute product. If, in the sole opinion of the university, the return of such infringing product makes the retention of other products acquired from the Contractor under this contract is impractical, the university shall then have the option of terminating the contract, or applicable portions thereof, without penalty or termination charge. The Contractor agrees to take back such product and refund any sums the university has paid Contractor less any reasonable amount for use or damage.
The Contractor shall have no liability to the university under any provision of this paragraph with respect to any claim of patent, copyright or trade secret infringement which is based upon the combination or utilization of the product furnished hereunder with commodities or devices not made nor furnished by the Contractor.
54. Covenant against gratuities — The Contractor shall warrant that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the university with a view toward securing the Contract or securing favorable treatment with respect to any determinations concerning the performance of the Contract. For breach or violation of this warranty, the university shall have the right to terminate the Contract, either in whole or in part, and any loss or damage sustained by the university in procuring in the open market any items which the Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the university provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
55. Contractor’s warranty — The Contractor warrants that it has full power and authority to grant the rights herein granted and will hold the university hereunder harmless from and against any loss, cost, liability and expense (including reasonable attorney fees) arising out of any breach of this warranty. Further, Contractor avers that it will not enter into any arrangement with any third party which might abridge any rights of the university under this Contract.
56. Protests and disputes — Potential bidders are afforded the opportunity to take exception to or “protest” the specifications and/or requirements of the bid solicitation. Such protests must be conveyed in writing to the university and also be resolved in writing by the university each within the time frames specified, prior to the scheduled bid submittal deadline. However, any protests of specifications or requirements received after the deadline identified in the bid solicitation shall be considered untimely and shall be rejected. The university’s decision on a protest is final. If, prior to award of a contract, a protest is received in writing within the timeframe specified within the bid solicitation and filed on the grounds that the intended award is not in conformance with the specifications or requirements of the bid solicitation, the contract shall not be awarded until the protest has been withdrawn or a decision has been reached by the university. The university shall review the merits and timeliness of the protest and submit a decision in writing or otherwise furnish to the bidder the decision in such a manner as to ensure receipt. The university’s decision on a protest is final.
57. Campus parking — Contractor shall observe campus parking rules and regulations at all times. No properly issued citation will be waived. It will be the responsibility of the Contractor to purchase parking permits and ensure that contract personnel display the permit appropriately while on university property. Contact the Department of Public Safety, 619-594-6671, for information. The vehicle laws of the State of California, the ordinances of the City of San Diego, and parking and traffic regulations of San Diego State University are in effect on university controlled property twenty four (24) hours a day.
58. Examination and audit — For contracts in excess of $10,000, the Contractor shall be subject to the examination and audit (a) the Office of the University Auditors, and (b) the State Auditor for a period of three (3) years after final payment under the contract in accordance with Government Code Section 8546.7 and with Education Code Sect. 89045 (C&D), respectively. The examination and audit shall be confined to those matters connected with the performance of the contract, including, but not limited to, the cost of administering the Contract.
59. Discounts, invoices, and payments — Payment shall not be due until the later of: (a) the performance completion date of services; or (b) receipt of an accurate invoice. Unless otherwise specified, payment will be made in accordance with Government Code Sections 927 et seq., as applicable. In connection with any discount offered, except when provision is made for a testing period preceding acceptance by the university, time will be computed from date of delivery of the commodities as specified, or from the date correct invoices are received in the office specified by the university if the latter date is later than the date of delivery. When the university makes provision for a testing period preceding acceptance, date of delivery shall mean the date the supplies, equipment or services are accepted by the university following the specified testing period. Payment is deemed to be made, for the purpose of earning the discount, on the date of mailing the university warrant or check. The Contractor shall submit invoices to the university for payment of goods and services rendered. Invoices for purchases of products and associated fees are not due and payable until successful completion of any applicable acceptance testing. Unless invoice payment deadlines are otherwise specified in the bid solicitation, purchase order, or contract, the provisions of Sections 926.15 and 9267.17 of the California Government Code concerning payment deadlines and penalties shall prevail.
60. Document referencing — All correspondence, invoices, bills of lading, shipping memos, packages, etc., must show the Contract number. If factory shipment, the factory must be advised to comply. Invoices shall be prepared and submitted in duplicate unless otherwise specified. Invoices shall contain: purchase order number and date, description of items, sizes, quantities, unit prices, extended totals, place and date of delivery. Invoices or vouchers not on printed bill heads shall be signed by the supplier or person furnishing the supplies or service. Every invoice shall be properly inspected. If a Bill of Lading is applicable to this order, send original to “Ship To” address and duplicate with invoices to “Charge To” address.
61. Required payment date — Payment will be made in accordance with Government Code, Section 926.17, and in accordance with the written Contract. When provision is made for a testing period preceding acceptance by the university, date of acceptance shall mean the date the supplies or equipment are accepted by the university during the specified testing period.
62. Appropriation of funds: — Payment is contingent upon approval of the California State Budget for the current fiscal year. If the term of the Contract extends into fiscal years subsequent to that in which it is approved, such continuation of the Contract is subject to the appropriation of funds for such purpose by the Legislature. If funds to effect such continued payment are not appropriated, Contractor agrees to take back any commodities furnished under the Contract, terminate any services supplied to the university under the Contract, and relieve the university of any further obligation therefore. University agrees that if provision (a) above is involved, commodities shall be returned to the Contractor in substantially the same condition in which they were delivered, subject to normal wear and tear. University further agrees to pay for packing, crating, transportation to Contractor’s nearest facility and for reimbursement to Contractor for expenses incurred for its assistance in such packing and crating.
63. Right of university — The university reserves the right to terminate this Agreement upon a thirty (30) day prior written notice.
SPECIAL CONDITIONS FOR COMMODITY ACQUISITIONS
In addition to the General Provisions, the following Special Conditions shall apply to commodity acquisitions:
1. Preparation of bids and proposals: — All bids submitted must indicate unit prices for each separate line item quoted in addition to showing the totals. In case of discrepancy between the unit price and the extension set forth for the item, the unit price shall prevail; however, if the amount set forth as a unit price is ambiguous, unintelligible, or uncertain for any cause, or is omitted, the amount set forth in the “Extension” column shall be divided by the quantity for the item and the price thus obtained shall be the unit price. In case of discrepancy between the totals shown on the bid form and the actual sum of the item totals, the actual sum of all item totals shall prevail.
- Brand Names: Any reference to brand names and numbers in the bid solicitation is intended to be descriptive, not restrictive, unless otherwise specified. Bids on equivalent items meeting the indicated standards of quality will be considered, unless otherwise specified, providing the bid clearly describes the article offered and how it differs from the referenced brands. Unless the bidder specifies otherwise in the bid, it is understood that the bidder is offering a referenced brand item as specified in the bid solicitation. The university reserves the right to determine whether a substitute offer is equivalent to and meets the standards of quality indicated by the brand name references; the university may require a bidder offering a substitute to supply descriptive material and a sample.
2. Samples — Samples of items, when required, must be furnished free of expense to the university and if not destroyed by tests may upon request made at the time the sample is furnished be returned at the bidder’s expense.
- Descriptive literature: Bidders offering other than the referenced brand(s) must forward complete descriptive literature with the bid and are to note their brand name and catalog or model number in the brand name column. Descriptive literature shall be annotated to specify the applicable page, brand, model and items. Failure to comply with this requirement may cause the bid to be non-responsive and not considered for award.
- References: Bidders offering other than the reference brand must provide a list of three firms / customers where the equipment offered is operational and available for inspection.
- Model, demonstration: The low bidder may be notified to submit the offered model for demonstration and evaluation if other than referenced model is offered prior to award of bid.
4. Joint bids — A joint bid (2 or more bidders quoting jointly on one bid) maybe submitted and each participating bidder must sign the joint bid. If the contract is awarded to joint bidders, it shall be one indivisible contract. Each joint bidder will be jointly and severally responsible for the performance of the entire contract, and the joint bidders must designate, in writing, one individual having authority to represent them in all matters relating to the Contract. The university assumes no responsibility or obligation for the division of orders or purchases among the joint bidders.
5. Equipment orders:
- All equipment shall be new and latest model in current production. Used, shopworn, demonstrator, prototype or discontinued models are not acceptable.
- Documentation Catalogs: Awarded supplier shall provide a copy of necessary functional manuals, adjustment manuals, schematic diagrams and parts catalogs. Parts for equipment are to be available for purchase by the university at no greater cost than published list prices.
- Electrical/Mechanical Equipment: Shall comply with the California Administrative Code: Title B (Industrial Safety Orders), Title 24 (State Building Standards Law), and Title 17 (Public Health). All electrical equipment furnished shall be grounded, with any exceptions only as approved in the referenced application titles.
- Exceptions to Offering: Unless exceptions noted by bidder, the equipment offered will be assumed to be in accordance with bid specifications. All exceptions to specifications must be noted or referenced and submitted with the bid.
6. Factory authorized dealers — All bidders must be factory authorized dealers and able to provide factory authorized services for the material offered.