PROCUREMENT SERVICES BIDDING TERMS & CONDITIONS
WYDOT BIDDING TERMS & CONDITIONS
BIDS SUBMITTED WITH OTHER THAN THESE TERMS AND CONDITIONS WILL BE DEEMED TO BE IRREGULAR AND BID WILL NOT BE CONSIDERED.
1. SUBMISSION OF BIDS
A. All bids must be submitted on forms furnished by the Wyoming Department of Transportation (Department), unless otherwise specified, and signed in ink by a proper official of the supplier. Telephone, Facsimile, E-Mail, or other electronic bids WILL NOT BE ACCEPTED.
B. No bids will be considered in which the Proposal, Specifications or any provisions have been modified.
C. Bids must be received in the office of the Procurement Services Manager on or before the time and date specified. Bids received after the time and date specified will not be considered and will be returned unopened to the bidder.
2. GENERAL PROVISIONS
Any changes, modifications, revisions, or amendments to this Contract which are mutually agreed upon by the parties to this Contract shall be incorporated by written instrument, executed and signed by all parties to this Contract.
B. APPLICABLE LAW/VENUE
The construction, interpretation, and enforcement of this Contract shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Contract and the parties, and the venue shall be the First Judicial District, Laramie County, Wyoming.
C. ASSIGNMENT/CONTRACT NOT USED AS COLLATERAL
Neither party shall assign or otherwise transfer any of the rights or delegate any of the duties set out in this Contract without the prior written consent of the other party. The Contractor shall not use this Contract, or any portion thereof for collateral for any financial obligation without the prior written permission of the Department.
D. AUDIT/ACCESS TO RECORDS
The Department and its representatives shall have access to any books, documents, papers, electronic data and records of the Contractor which are pertinent to this Contract.
E. AVAILABILITY OF FUNDS
Each payment obligation of the Department is conditioned upon the availability of government funds which are appropriated or allocated for the payment of this obligation. If funds are not allocated and available for continued performance of the Contract, the Contract may be terminated by the Department at the end of the period for which the funds are available. The Department shall notify the Contractor at the earliest possible time of the services which will or may be affected by a shortage of funds. No penalty shall accrue to the Department in the event this provision is exercised, and the Department shall not be obligated or liable for any future payments due or for any damages as a result of termination under this section. This provision shall not be construed to permit the Department to terminate this Contract to acquire similar services from another party.
F. AWARD AND PURCHASE
The Department reserves the right to reject any or all bids, to waive any informalities or technical defects in bids, and unless otherwise specified by the Department or by the Contractor, to accept any item or group of items in the bid, as may be in the best interest of the Department.
No verbal explanations, clarifications, additions or instructions will be binding to either the Department or the Bidders, except those confirmed in writing.
A signed purchase order/contract, furnished to the successful bidder, results in a binding contract without further action by either party.
G. AWARD OF RELATED CONTRACTS
The Department may award supplemental or successor contracts for work related to this Contract. The Contractor shall cooperate fully with other contractors and the Department in all such cases.
H. COMPLIANCE WITH LAWS
The Contractor shall keep informed of and comply with all applicable federal, state, and local laws and regulations in the performance of this Contract.
I. CONFIDENTIALITY OF INFORMATION
All documents, data compilations, reports, computer programs, photographs, data and other work provided to or produced by the Contractor in the performance of this Contract shall be kept confidential by the Contractor unless written permission is granted by the Department for its release. If and when Contractor receives a request for information subject to this Contract, Contractor shall notify Department within ten (10) days of such request and not release such information to a third party unless directed to do so by Department.
J. ENTIRETY OF CONTRACT
This Contract represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral.
Contractor shall keep informed of and comply with the Wyoming Ethics and Disclosure Act (Wyo. Stat. § 9-13-101, et seq.) and any and all ethical standards governing Contractor’s profession.
L. FORCE MAJEURE
Neither party shall be liable for failure to perform under this Contract if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays. This provision shall not be effective unless the failure to perform is beyond the control and without the fault or negligence of the nonperforming party.
The Contractor shall indemnify, defend, and hold harmless the State, the Department, and their officers, agents, employees, successors, and assignees from any and all claims, lawsuits, losses, and liability arising out of Contractor’s failure to perform any of Contractor’s duties and obligations hereunder or in connection with the negligent performance of Contractor’s duties or obligations, including but not limited to any claims, lawsuits, losses, or liability arising out of Contractor’s malpractice or malfeasance.
N. INDEPENDENT CONTRACTOR
The Contractor shall function as an independent contractor for the purposes of this Contract and shall not be considered an employee of the State of Wyoming or the Department for any purpose. Consistent with the express terms of this Contract, the Contractor shall be free from control or direction over the details of the performance of services under this Contract. The Contractor shall assume sole responsibility for any debts or liabilities that may be incurred by the Contractor in fulfilling the terms of this Contract and shall be solely responsible for the payment of all federal, state, and local taxes which may accrue because of this Contract. Nothing in this Contract shall be interpreted as authorizing the Contractor or its agents and/or employees to act as an agent or representative for or on behalf of the State of Wyoming or the Department or to incur any obligation of any kind on the behalf of the State of Wyoming or the Department. The Contractor agrees that no health/hospitalization benefits, workers’ compensation, unemployment insurance, and/or similar benefits available to State of Wyoming employees will inure to the benefit of the Contractor or the Contractor’s agents and/or employees as a result of this Contract.
Contractor certifies and warrants that no gratuities, kickbacks, or contingency fees were paid in connection with this agreement, nor were any fees, commissions, gifts, or other considerations made contingent upon the award of this Contract. If Contractor breaches or violates this warranty, Department may, at its discretion, terminate this agreement without liability to Department, or deduct from the agreed upon price or consideration, or otherwise recover, the full amount of any commission, percentage, brokerage, or contingency fee.
P. MATERIAL AVAILABILITY
Contractors must accept responsibility for verification of material availability, production schedules and other pertinent data prior to submission of bid and delivery time. It is the responsibility of the Contractor to notify the Department immediately if materials specified are discontinued, replaced or not available for an extended period of time.
Q. MODIFICATIONS OR WITHDRAWAL OF BIDS
A bid that is in the possession of the Procurement Services Manager may be altered in writing bearing the signature or name of the person authorized for bidding, provided it is received prior to the time and date of opening. Alterations should not reveal the price but should indicate the addition, subtraction or other change in the bid. A bid that is in possession of the Procurement Services Manager may be withdrawn by the bidder up to the time of the bid opening. Bids may not be withdrawn after the bid opening. Failure of the bidder to furnish the materials, supplies, equipment, printing, services, and construction from a bid on which an award is made shall eliminate the bidder from the active bidders’ list for a period of one year.
Neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees or parties in interest, has in any way colluded, conspired, connived or agreed, directly or indirectly with any other Bidder, firm or person to submit a collusive or sham Bid in connection with the Contract for which the attached Bid has been submitted or to refrain from bidding in connection with such Contract, or has in any manner, directly or indirectly, sought by agreement or collusion or communication or conference with any other Bidder, firm or person to fix the price or prices in the attached Bid or of any other Bidder, or to fix any overhead, profit or cost element of the Bid price or the Bid price of any other Bidder, or to secure through any collusion, conspiracy, connivance or unlawful agreement any advantage against the State of Wyoming or the Department, or any person interested in the proposed Contract; and
The price or prices quoted in this Bid are fair and proper and are not tainted by a collusion, conspiracy, connivance, or unlawful agreement on the part of the Bidder or any of its agents, representatives, owners, employees, or parties in interest.
The Contractor shall comply with the Civil Rights Act of 1964, the Wyoming Fair Employment Practices Act (Wyo. Stat. §27-9-105 et seq.), the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, et seq., and the Age Discrimination Act of 1975 and/or any properly promulgated rules and regulations thereto and shall not discriminate against any individual on the grounds of age, sex, color, race, religion, national origin, or disability in connection with the performance under this agreement.
All notices arising out of, or from, the provisions of this Contract shall be in writing either by Regular Mail, Facsimile, E-Mail or delivery in person at the address(es) provided under this Contract.
U. OWNERSHIP AND DESTRUCTION OF DOCUMENTS/INFORMATION
Department owns all documents, data compilations, reports, computer programs, photographs, data and other work provided to or produced by the Contractor in the performance of this Contract. Upon termination of services, for any reason, Contractor agrees to return all such original and derivative information/documents to the Department in a useable format. In the case of electronic transmission, such transmission shall be secured. The return of information by any other means shall be by a parcel service that utilizes tracking numbers. Upon Department’s verified receipt of such information, Contractor agrees to physically and electronically destroy any residual Department-owned data, regardless of format, and any other storage media or areas containing such information. Contractor agrees to provide written notice to Department confirming the destruction of any such residual Department-owned data.
V. PATENT OR COPYRIGHT PROTECTION
The Contractor recognizes that certain proprietary matters or techniques may be subject to patent, trademark, copyright, license, or other similar restrictions, and warrants that no work performed by the Contractor or its subcontractors will violate any such restriction. The Contractor shall defend and indemnify the Department for any violation or alleged violation of such patent, trademark, copyright, license, or other restrictions.
All contractors and suppliers wishing to be certified as a resident for purposes of receiving preference on public works construction projects shall complete and submit the documents and affidavit(s) required by Labor Standards, a program within the Department of Workforce Services. No residency preference shall be granted to any contractor or supplier who has not been certified as a resident by Labor Standards. No residency preference shall be granted to any contractor who has not participated in the prevailing wage survey as required by W.S. 27-4-405(a). Prevailing wage survey participation is not required to qualify as a resident supplier.
Preference is hereby given to materials, supplies, agricultural products, equipment, machinery and provisions produced, manufactured or grown in Wyoming, or supplied by a resident of the state, quality being equal to articles offered by the competitors outside of the state. When applicable, a percentile preferential will be accomplished or allowed in the following manner.
i. Preferential not to exceed five percent (5%) will be applied for materials, supplies, agricultural products, equipment, machinery and provisions manufactured or grown in Wyoming, or supplied by a resident of the state, quality being equal to articles offered by competitors outside the State of Wyoming. The preferential, when applied, will be accomplished by adding the determined percentage to the total bid price of the non-resident bidder.
ii. A preferential of ten percent (10%) will be applied for any public printing done within the State of Wyoming provided the printer either owns, operates and/or maintains an establishment that does at least seventy-five percent (75%) of the contract on the premises.
iii. Preference will be given Wyoming contractors for any contractual services. The contract shall be let to the responsible resident making the lowest bid, if such resident’s bid is not more than five percent (5%) higher than that of the lowest responsible non-resident bidder.
iv. Expenditures or contracts involving Federal Funds are subject to Federal Rules and Regulations. Under these conditions, a percentage differential will not be allowed.
X. PREPARATION OF BIDS
Bidders are expected to examine any drawings, specifications, schedules and instructions included in the bid package. Failure to do so will be at the bidder's risk. In case of error in the extension of prices in the bid Proposal, the UNIT PRICE will govern. UNIT PRICE shown must be NET.
Should any portion of this Contract be judicially determined to be illegal or unenforceable, the remainder of the Contract shall continue in full force and effect, and the parties may renegotiate the terms affected by the severance.
Z. SOVEREIGN IMMUNITY
The State of Wyoming or the Department do not waive sovereign immunity by entering into this Contract and specifically retain all immunities and defenses available to them as sovereigns pursuant to Wyo. Stat. § 1‑39‑104(a) and all other applicable law. Designations of venue, choice of law, enforcement actions, and similar provisions should not be construed as a waiver of sovereign immunity. The parties agree that any ambiguity in this Contract shall not be strictly construed, either against or for either party, except that any ambiguity as to sovereign immunity shall be construed in favor of sovereign immunity.
Direct purchases of materials by the State of Wyoming are exempt from Wyoming Sales or Use Tax. The bidder certifies that no Federal, State, County or Municipal tax will be added to the price shown on the Proposal. The Contractor shall pay all taxes and other such amounts required by federal, state, and local law, including but not limited to, federal and social security taxes, workers’ compensation, unemployment insurance, and sales taxes.
BB. TERMINATION OF CONTRACT
This Contract may be terminated, without cause, by the Department upon thirty (30) days written notice. This Contract may be terminated by the Department immediately for cause if the Contractor fails to perform in accordance with the terms of this Contract. If at any time during the performance of this Contract, in the opinion of the Department, the work is not progressing satisfactorily or within the terms of this Contract, then at the discretion of the Department and after written notice to the Contractor, the Department may terminate this Contract or any part of it. As of the termination date, the Contractor will be entitled to a pro rata payment for all work accomplished and accepted by the Department; however, the Contractor shall be liable to the Department for the entire cost of replacement services for the duration of the contract term.
CC. THIRD PARTY BENEFICIARY RIGHTS
The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Contract shall not be construed so as to create such status. The rights, duties, and obligations contained in this Contract shall operate only between the parties to this Contract and shall inure solely to the benefit of the parties to this Contract. The provisions of this Contract are intended only to assist the parties in determining and performing their obligations under this Contract.
DD. TIME IS OF THE ESSENCE
Time is of the essence in all provisions of this Contract.
EE. TITLES NOT CONTROLLING
Titles of sections and subsections are for reference only and shall not be used to construe the language in this Contract.
FF. TRADE NAME PROVISIONS
When items within the bid are identified by a manufacturer’s name, trade name, brand name, catalog number or reference, it is understood that the bidder proposes to furnish the item so identified and does not propose to furnish an “equal” unless indicated hereon. Unless otherwise indicated, the use of trade names by the Department is intended to be descriptive but not restrictive, and only to establish a standard for articles that will be satisfactory. Bids on all brands and models will be considered, provided the bidder clearly states on the Proposal exactly what they propose to furnish.
Specifications or descriptive literature must be forwarded with the bid on proposed “equals”.
The Procurement Services Manager reserves the right to approve or reject any proposed “equals” that are a variation from Department specifications or requirements.
The waiver of any breach of any term or condition in this Contract shall not be deemed a waiver of any prior or subsequent breach. Failure to object to a breach shall not constitute a waiver.
Warranties shall be Standard Manufacturer’s Warranty unless otherwise specified in the bid documents.