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Special Terms and Conditions A Recipe for a Good Contract Chris Nichols, CPPB, VCO Pete Stamps, CPPO, VCO PowerPoint Presentation
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Special Terms and Conditions A Recipe for a Good Contract Chris Nichols, CPPB, VCO Pete Stamps, CPPO, VCO. What are Special Terms and Conditions?. As defined by the APSPM:

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Special Terms and Conditions

A Recipe for a

Good Contract

Chris Nichols, CPPB, VCO

Pete Stamps, CPPO, VCO

slide3
As defined by the APSPM:
  • Special clauses pertaining to a specific procurement which may supplement or in some cases supersede one or more general terms and conditions.
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DPS currently has 60 special terms and conditions listed in Section II of the APSPM.
  • Used as necessary based upon the type of solicitation (IFB, RFP, Term Contract, etc).
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Unlike the General Terms and Conditions which are not to be changed, deleted or revised unless by your legal advisor, the specials are a recipe for creating your solicitation.
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Important Reminders
  • Do make changes for the type of solicitation you are doing (i.e. IFB, RFP)
  • Do read the “When Used” section
  • Do not include the “When Used” section in your solicitation.
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We are going to overview the special terms and conditions as they would relate to various types of contracts and commodities.

Any changes as a result of recent PIM’s will be discussed as we review those specials.

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45 A. Overruns/Under runs:

Required to be included in all printing solicitations.

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B. Acceptable Mill Brands

Used when a specific paper is specified along with the phrase “or equal”.

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C. Ownership of Printing Materials

Must be included in all printing solicitations.

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D. Printing Pick-up/Deliveries

Used in all printing solicitations when the contractor will be required to pick up artwork, negatives, etc. for the job and deliver the finished product to the agency.

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E. Quality Color Printing

Include in all printing solicitations involving four-color process of more than one picture.

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46. Printing Definitions

A. Class 1 - Critical Quality Printing

B. Class 2 - Excellent Quality Printing

C. Class 3 - Good Quality Printing

D. Class 4 - Medium Quality Printing

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Award of Contract

All solicitations must specify

Method of Award.

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A. Award to the Lowest Responsive and Responsible Bidder. Evaluation will be based on net prices…

Used in IFB’s for goods or services.

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B. Award on ________________ basis.

Used for goods or nonprofessional services by filling in the blank, i.e. line item, total sum, lot, etc.

Shall not be used in a RFP.

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C. Award: The right is reserved to make a separate award of each item, a group of items, …..

Used when multiple line items are involved, provided that multiple awards may result in a savings to the Commonwealth.

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D. 1.Award to Multiple Bidders: The Commonwealth will make awards on a _____ basis provided the next lowest bidders are within __%...

Used for goods term contracts only when multiple awards will be made based on different brands. Shall not be used for RFP’s.

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D. 2. Award to Multiple Bidders: The Commonwealth reserves the right to make multiple awards…

Used for goods or nonprofessional services when multiple awards may be made to meet the requirements of the purchasing agency.

Shall not be used for construction or professional services.

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E. Award: Selection shall be made of two or more offerors…..

Used for goods and nonprofessional services when competitive negotiation will be uses. Not for IFB or a professional services RFP.

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Award to Multiple Offerors: Selection shall be made of two or more offerors….

Used for goods or nonprofessional services when competitive negotiation will be used for multiple awards. Not to be used for IFB’s or professional services RFP.

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Award: The Commonwealth shall engage in individual discussions with two or more offerors…..

Used for Professional Services only.

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Unsealed Best Value Award(s): Selection shall be made of…..

Used for goods and nonprofessional services for Unsealed Best Value Acquisition and a single or multiple awards are desired. A single award shall not exceed $50,000 and the total of multiple awards shall not exceed $50,000.

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Best Value Award(s):

Used for goods and nonprofessional services where competitive neg. will be used in a sealed Best Value Acquisition. This clause may be used for over $50,000 unless the requirement is set-aside exclusively for small business participation. If set-aside, delete the third sentence.

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J. Award to other than the lowest priced bidder(s):

Used in IFB for goods or nonprofessional services where the award is expected to exceed $50,000 to allow for award to a reasonably price DMBE certified small business, other than the lowest priced responsive and responsible bidder. May be used for procurements over $50,000 unless the requirement is set-aside exclusively for small business participation.

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K. Award to other than the highest ranking offeror(s):

Used for good and nonprofessional services when competitive negotiation will be used. Shall not be used in an IFB or professional services RFP. May be used over $50,000 unless the requirement is set-aside for small business.

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2. Asbestos

For use in service contracts or furnish and install goods contracts when it is possible that the contractor may encounter asbestos during performance for the contract.

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As Built Drawings

For furnish and install and construction and renovation projects; i.e. fire alarm system, heating and air conditioning systems, refrigeration rooms, building modifications, major equipment installations, etc.

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18. Contractor’s Title to Material

For use in solicitations for construction and for furnish and install equipment.

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20. Delivery and Storage

For furnish and install solicitations, if applicable.

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23. Extra Charges Not Allowed

For furnish and install solicitations.

Also may be used for inside

delivery by changing the wording.

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24. Final Inspection

For furnish and install solicitations.

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28. Inspection of Job Site

Should be used in furnish and install, services and non-capital outlay construction projects.

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29. Installation

For inside delivery of goods which require unpacking and assembly.

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34. Maintenance Manuals

For solicitations to purchase or furnish and install major equipment or systems.

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42. Preventive Maintenance

For equipment purchases only in conjunction with a warranty clause which requires preventive maintenance during the warranty period.

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44. Prime Contractor Responsibilities

For use in solicitations to furnish and install goods or provide services when subcontracting will be permitted.

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47. Product Information

For solicitations to furnish and install or deliver goods when detailed specifications are required to properly evaluate items offered.

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53. Subcontracts

For use in solicitations to furnish and install or specialty services when subcontracting will be permitted only upon prior approval of the purchasing agency. Use also when a contractor’s or a subcontractor’s license is required to perform the specialty service.

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55. Warranty

Include in solicitations to furnish and install or deliver goods when the procuring agency wants to specify the length of time the warranty is to run; i.e. equipment 1 year, compressor 5 years, piano 10 years, etc.

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56. Warranty

Include in solicitations for goods, furnish and install or services when commercial warranty provisions for a particular item or service are acceptable.

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57. Work Site Damages

Include in solicitations to furnish and install equipment. May also be used in solicitations for services such as moving, maintenance, removal of equipment, non-capital outlay construction projects, etc.

slide45
Term Contracts

(and other Specials of Interest)

slide46
Audit

Must be included in all term contracts for goods and services and all prime vendor contracts requiring a Small Business Subcontracting Plan for contracts over $100,000.

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11. Bid Prices

Used in annual goods contracts without a price escalation/de-escalation clause. A different version of this clause, specifically worded to fit the situation, should be used in solicitations for various types of services, and in solicitations for the lease or rental of equipment.

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13. Cancellation of Contract

Include in all term contracts for goods or services. This clause is not appropriate for use in spot purchases.

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19. Delivery

When delivery time is critical for either goods or services.

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27. Indemnification

For all contracts involving substantial risk of third party injury/claims. Authorization to use must be granted by the Dept. of Treasury, Div. of Risk Mgmt. or be directed by your Asst. AG.

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38. Negotiation with the Lowest Bidder

For use only in IFB’s for goods or services in those circumstances where, due to unknown cost factors, there may be a need to negotiate to remain within available fund limitation. NOT to be used as a matter of routine.

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43. Price Escalation/De-Escalation

For annual goods contracts where a firm fixed price cannot be secured for one (1) year or more. Enter the appropriate number of days in the blank space, such as 30,60,90 etc. depending on how frequently the cost change. Examples of indices to be used are PPI and CPI.

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51. Renewal of Contract

A. Include in solicitations for term contracts for goods and services to permit renewal of the contract for a specific period of time at the same price(s), terms and conditions as in the original contract. Renegotiation of the price(s), terms and conditions is not permitted.

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51. Renewal of Contract

B. For service contracts, use of this clause permits renewal of a contract with an increase/decrease in the labor rate portion only of the original contract. This clause should only be used when renewal of the contract may be desirable and price adjustments may be necessary. If only a one-year renewal is desirable, delete paragraph 2. of the clause.

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58. Work Estimates (Time and Material Contracts)

May be used for all time and material contracts where the contractor furnishes estimates prior to starting work. Agencies should take the necessary steps to ensure that it is protected from those cases where a contractor submits a low estimate and the invoice is much higher. Use of this clause will provide that protection as long as the contractor is held to the terms of this clause.

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59. eVA Business-to-Government Contracts and Orders

Include in all solicitations, contracts, and contract renewals. If the quantity of orders that will be issued is known, insert the number in the blank (e.g. one, twelve, monthly, etc). If the exact quantity is unknown, change the first sentence to read, “It is anticipated that the contract will result in multiple purchase orders (i.e., one for each delivery requirement) with the eVA transaction fee specified below assessed for each order.”

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Nonprofit Sheltered Workshops

And

Nonprofit Organizations

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60. Nonprofit Sheltered Workshops and Nonprofit Organizations

Use paragraph A. if the solicitation involves the packaging or assemblage of goods where the items weighs less than 50lbs and can be performed by the organizations noted above that serve the handicapped. Use paragraph B. if the same applies as in A, but is a condition of the award.

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Questions?

Enjoy the rest of the Forum!