Terms That Apply During the Bid Solicitation Process

 

By submitting a bid, the respondent agrees to the following terms and conditions that govern the bid solicitation process:

 

  1. SUBMITTING BIDS: All respondents must submit their responses electronically, unless the university specifies otherwise.  It is the respondent’s responsibility to ensure that its bid is submitted in the university’s electronic software purchasing system before the applicable deadline. Assistance for submitting bids can be obtained through our third party provider ESM Solutions’ Customer Support at 1-877-969-7246 or at support@mercurycommercesolutions.com during normal business hours.  It is the respondent’s responsibility to learn how to use the system. Respondents must submit all applicable and required documents with their bid. A respondent may not submit additional or supplemental documents or amend its bid after the bid deadline. Also, bids not received by the university in the manner specified and by the time specified will not be considered.
  2. QUESTIONS/INTERPRETATIONS:If any respondent find discrepancies in, or omissions from, the University’s solicitation documents, or be in doubt as to their meaning, the respondent must notify Procurement Services in writing (email is acceptable) no later than 5 business days prior to the bid response deadline.  Procurement Services will reply to respondent inquiries via written addendum and will publish this addendum with the bid documents to all prospective bidders, unless Procurement Services exercises its discretion to reply only to the respondent. It is the respondent’s responsibility to ensure that Procurement Services has received respondent’s questions, and to check the electronic bidding system to see if Procurement Services has issued any amendments or addenda.
  3. TIME OF ACCEPTANCE: If a respondent fails to state a time within which a bid must be accepted, respondent acknowledges that its proposal shall remain valid for 120 calendar-days beyond the bid opening date, or until 30 days after the date that any protest is resolved, whichever is longer, and the university may accept the proposal at any time within that time period.
  4. PRICE ERRORS: In the event that respondent’s bid contains discrepancies in unit price and total price, the lower price will govern.
  5. AUTHORITY TO BIND:Procurement Services may request that respondent provide proof that the respondent’s representative has authority to respond to the university’s bid.
  6. CONFIDENTIALITY: The university will not sign non-disclosure or confidentiality agreements related to respondent’s response to any bid. Tennessee law limits the university’s ability to withhold records from public disclosure.  Respondents should assume that all documentation, including pricing, submitted to the university will be subject to public disclosure.  The university hereby notifies all respondents that placing confidentiality notices on documents submitted to the university does not make the documents confidential under Tennessee law.  The university will not be bound by such notices.  Moreover, the university will not agree to provide advanced notice of any public disclosure or agree to assist the respondent to limit disclosure.
  7. DISCOUNTS: Please quote any applicable discounts afforded to a state university (including government-agency discounts or educational-agency discounts). Discounts offered for prompt payment will be taken if earned. Time will be computed either from the date of delivery at destination or from the date a correct invoice is received, whichever is later. Discounts will apply to the total amount unless freight charges are itemized separately.
  8. BRAND NAMES/ALTERNATIVE PRODUCTS: Unless specified “No Substitutes”, any catalog brand name or manufacturer’s reference used in the bid is descriptive only, not restrictive, and used to indicate the type and quality desired. Bids on brands of like nature and quality will be considered. If bidding on other than the referenced specifications the bid must show the manufacturer, brand or trade name, and other descriptions, and should include the manufacturer’s illustration and complete description of the product(s) offered. If the respondent fails to submit the required documentation, the bid may be rejected. The university may determine whether a substitute offered is equivalent to and meets the standards of the item specified. The university may require the respondent to supply additional descriptive material. The respondent guarantees that the product offered will meet or exceed specifications identified in the bid invitation. If the respondent takes no exception to the specifications or referenced data in the bid, respondent will be required to furnish the product according to the brand, names, numbers, etc., as specified in the invitation for bid document.
  9. SAMPLES: Samples of items, when requested, must be furnished free of charge and if not destroyed will, upon request, be returned at the respondent’s expense. Request for the return of samples must be made in writing  within 10 days following opening of bids. Each individual sample must be labeled with respondent’s name, manufacturer’s brand name and number, bid number and item reference. The university may keep the sample of the winning proposer. DO NOT submit samples unless you are specifically requested to do so.
  10. DEMONSTRATION(S) OF PRODUCTS: The university may require either an “in-house” or ”on-site” demonstration of the product or service offered or a demonstration at a site mutually acceptable.
  11. INFORMATION AND DESCRIPTIVE LITERATURE: Respondents must furnish all information requested in the solicitation. Further, as may be applicable, each respondent must submit for bid evaluation cuts, sketches, and descriptive literature and technical specifications covering the product offered. Reference to literature submitted with a previous bid or on file with the university will not satisfy this provision.
  12. TAX EXEMPTION: The university is exempt from federal excise taxes and from state sales taxes on purchases of tangible personal property. Copies of the appropriate exemption documentation will be provided upon request and these taxes should not be included in the respondent’s bid prices.
  13. SERVICE AND WARRANTY: Respondent shall explain in its response to what extent warranty and service facilities are provided. Any attempt to change, add, modify, or delete any warranty provision after the bid has been accepted, including by use of package labeling, click through agreements, or inserts, will not be binding on the university unless it has so agreed in writing.
  14. COMPLIANCE WITH LAWS: Respondent shall comply with all applicable laws, regulations, and university policies.
  15. INDEMNIFICATION: Respondent shall hold and save the university, its trustees, officers, agents, and employees harmless from any claims, damages and actions of any nature arising from respondent’s bid or arising from the use of any materials, goods or services furnished by the respondent, provided that such liability is not attributable to negligence on the part of the user or failure of the user to use the item in the manner outlined by the respondent in descriptive literature or specification submitted with the respondent’s bid.  Respondent’s indemnification obligation shall include, but not be limited to, any claim of patent, copyright, or other intellectual property infringement asserted against the university based upon respondent’s bid or any materials, goods or services furnished by the respondent.
  16. UNIVERSITY’S LIABILITY: The university’s liability shall be governed under the terms and limits of the Tennessee Claims Commission Act. The university will not enter into any agreement which contains a clause requiring the university to indemnify, hold harmless, or defend any party. Also, the university will not enter into any agreement which contains a clause limiting its remedies against any party.
  17. DISCRETION: All decisions regarding a bid, including the award, are within the university’s sole discretion. The university may award to respondent other than the highest scoring or lowest costs. For clarity, as used in these General Bid Conditions the word “may” means “sole discretion.”
  18. ADVERTISING: In submitting a bid, proposer agrees not to use the results therefrom as a part of any commercial advertising.
  19. INDICIA LICENSING: All products bearing The University of Tennessee’s indicia must be fully licensed by The University Of Tennessee Office Of Trademark Licensing.
  20. AUTHORIZED DEALER: Respondent must be an authorized dealer of any goods or services sold to the university. If requested, the respondent must provide an authorization letter from the original equipment manufacturer. Failure to do so may result in the bid being disqualified or the award being canceled.
  21. SUBCONTRACTS: The respondent may not assign any of this award or enter into a subcontract for any of the services/products described in the award without the prior written approval of the university. Subcontractors specifically identified in a respondent’s bid are permitted. After the award, the supplier may only substitute a subcontractor approved by the university. A respondent may not submit a bid as the prime contractor while also permitting other respondents to offer them as a subcontractor. This may result in disqualification of respondents knowingly involved.
  22. SALES DATA:Upon request, the respondent agrees to furnish the university a summary of sales made under the agreement. This data may include: delivery date, department name, invoice date, invoice number, item description, list price, method of payment, net price, order date, order method, quote number and manufacturer part number. The university may terminate the award if this information is not provided in a reasonable time period.
  23. NON-EXCLUSIVITY:The university will promote the use of any established contract; however, the university does not guarantee that all purchases for the products and/or services available under any award will be made exclusively from the supplier. Also, an award does not obligate the university to make any purchases from the awarded respondent and the university may elect to award contracts or purchase orders for like products or services to multiple suppliers.
  24. TRANSPORTATION COST: Unless instructed otherwise, the respondent must include all transportation costs in its prices. The respondent is responsible for all goods in transit and the university will only accept ownership upon delivery to the address listed in the order.
  25. INSURANCE: The respondent, being an independent contractor, agrees to carry adequate public liability and other appropriate forms of insurance, and to pay all taxes incident to any agreements with the university. The university may require a certificate of insurance at any time. A failure by the respondent to provide a certificate will be considered a material breach and grounds for termination of the award. The cost of all insurance must be included in the prices submitted in the respondent’s bid.
  26. IRREVOCABLE WAIVER: By responding to the solicitation, respondent hereby irrevocably waives any claims against the university’s trustees, officers, employees and former employees. Respondent also agrees not to sue university employees in their individual capacity. This waiver applies to respondent and their successors, heirs and assigns. The university and the respondent state that this clause is material to this bid.
  27. COLLUSION, CONFLICT OF INTEREST AND DEBARMENT: When submitting a bid, the respondent certifies the following:
    1. The respondent prepared and arrived at its bid independently and there was not any collusion between respondents. The respondent agrees not to discuss or reveal its bid to anyone until after the award is made.
    2. No funds resulting from this award will be paid either directly or indirectly to any university employees, their spouses or dependent children. This prohibition applies for up to six months after they terminate their employment with the university.
    3. All potential conflicts of interests will be disclosed in the bid response including if any owners of respondent are related to any university employee, their spouse, or dependent children.
    4. The respondent is not presently debarred, proposed to be debarred, suspended, or declared ineligible for covered transactions by any federal agency or department.

If the university determines that the respondent failed to disclose or incorrectly disclosed information related to any of the four statements listed above, the university may consider any such actions to be grounds for response rejection or award termination, regardless of the time of detection.

 

 

TERMS THAT GOVERN THE BID EVALUATION PROCESS

 

By submitting a bid, the respondent agrees to the following terms and conditions that govern the University’s evaluation of respondents’ bids:

 

  • ACCEPTANCE AND REJECTION OF BIDS: The university may accept or reject any bids when, in its opinion, such action is in the best interests of the university. In such circumstances, the university may re-solicit bids or to continue with the current supplier for these services.
  • UNIVERSITY’S DISCRETION TO WAIVE IMMATERIAL DEFECTS IN A BID: The university may also waive minor variances or immaterial defects in a bid. The university may also accept any item in the bid, unless otherwise specified by the respondent.
  • MULTIPLE AWARDS:The university may award this solicitation to multiple respondents.
  • INSPECTION OF THE BID FILE: During the protest period, the bid file is open to inspection to all respondents. The file becomes public record after the solicitation has been awarded. The file may be reviewed at Procurement Services, which may charge a nominal fee for copies and retrieval and may require proof of Tennessee residency prior to inspection of the file to comply with Tennessee law.  Respondents may request a digital copy of the file, and Procurement Services may provide a copy by PDF, DropBox, or other means of digital transmission.
  • PROTEST PROCEDURE:Any respondent wishing to protest a decision must do so in accordance with the university’s procurement policy (http://policy.tennessee.edu/fiscal_policy/fi0405/). The parties shall make reasonable efforts to resolve any dispute before filing any formal legal action.

 

TERMS THAT WILL GOVERN THE AWARD

 

By submitting a bid, the respondent agrees that the following terms and conditions will govern any award issued by the university:

 

  1. GOVERNING LAW:The internal laws of the State of Tennessee (without regard to its conflict of law principles) govern all matters arising under or relating to this agreement.
  2. DELIVERY: The title and risk of loss for the goods will only pass to the university when the university actually receives the goods. The supplier must assume all responsibility for damage in transit. Any claim for loss of damage incurred during delivery will be between the respondent and the carrier. It is the supplier’s responsibility to prevent shipments from being late and any additional charges for expedited delivery, shipments being routed to a point other than the one specified on the purchase order, special handling, or back orders will be incurred by the supplier. It is also understood and agreed that any item offered or shipped as a result of this bid shall be new (current production model), unless specified otherwise.
  3. INSPECTION:In the event of a dispute between the supplier and the university about the items supplier provides to the university, the university has sole and absolute discretion to determine whether the supplier’s shipment conforms to the university’s order.  Supplier shall pay all costs for the university to return the rejected goods or replace missing goods. The respondent shall make immediate replacement of the damaged merchandise or be subject to damages for breach of contract. When university staff sign for a shipment, the signature does not constitute “acceptance.” Rather, the signature is only acknowledgement of receipt.
  4. INVOICING AND PAYMENT:Unless stated otherwise, the university initiates payment for materials or services upon receipt of all goods and services and receipt of an original, itemized invoice that reflects accurate contract prices.  Invoices failing to itemize the order, reference the purchase order, or undated may cause a delay in payment or rejection of the invoice.
  5. PAYMENT TERMS: Unless both parties agree in writing to other payment terms, the payment terms governing this award shall be a 2% discount, if payment is made within 10 days from the delivery of the goods or services or receipt of an itemized invoice, whichever is later.
  6. COOPERATIVE PROCUREMENT: Any university, college, school, or government agency (third-party entity) may purchase under this agreement. The third-party entity may negotiate its own terms with the supplier.
  7. EXTENSION OF TERMS TO OTHER INSTITUTIONS. The successful proposer will provide the requested services for the University of Tennessee entity described in the bid.   Additionally, if the successful proposer is agreeable, these services/products may also be provided to the other University of Tennessee departments and/or campuses. Similarly, The State of Tennessee and entities from The Tennessee Board of Regents may also purchase goods and/or services from this agreement, if the winning proposal is agreeable. It should be noted that these institutions, departments and campuses are not required to use this agreement. If any these institutions elect to participate under the terms and conditions of this resulting agreement, the University of Tennessee reserves the right to re-negotiate favorable incentive, and cost terms with the successful proposer that are reflective of the additional volume added as a result of participation by these institutions.  Note: The offer to extend contract terms and conditions to these other institutions is at the discretion of the winning proposal and they should not be extended if it would affect your ability to offer the most favorable prices and terms to The University of Tennessee.
  8. ASSIGNMENT:Neither party may assign this agreement, or any right or duty hereunder, or enter into a subcontract for any of the services performed under this agreement, without the prior written approval of an authorized official of both parties.
  9. CHANGES:The university may make changes to the purchase order(s) resulting from this award. These changes must be agreed to in writing by both parties.
  10. DEFAULT:In case of default of the supplier, the university may procure the articles or services from other sources and hold the supplier responsible for any excess costs incurred in remedying such default, including reasonable attorneys’ fees, in addition to any other remedies to which the university may be entitled at law or in equity.
  11. GOVERNMENTAL RESTRICTIONS:In the event any governmental restrictions are imposed which would necessitate alteration of the material, quality workmanship or performance of the items offered on this bid prior to their delivery, it shall be the responsibility of the supplier to notify the university promptly regarding the potential impact. The university may accept any such alteration, including any price adjustments occasioned thereby, or to cancel the order at no expense to the university.
  12. UNENFORCEABLE PROVISIONS:  If any provision of this award is determined by a court or other tribunal having appropriate jurisdiction over the university to be unenforceable, the provision will be modified to make it enforceable. If this is not possible, that provision will be disregarded and all remaining provisions of the agreement will remain in effect as written.
  13. AUDITSThe supplier shall maintain documentation for all charges against the university under this procurement.  The books, records and documents of the supplier, insofar as they relate to work performed or money received under the procurement, shall be maintained for a period of three (3) full years from the date of the final payment, and shall be subject to audit, at any reasonable time and upon reasonable notice, by the university or the Comptroller of the Treasury for the State of Tennessee, or their duly appointed representatives. These records shall be maintained in accordance with generally accepted accounting principles. If pricing is based on cost plus or discounts, the respondent shall maintain records supporting and detailing that the prices being charge to the university comply with the award.
  14. CANCELLATION:Notwithstanding any other cancellation provision, the university may cancel its purchase order, in whole or in part, by giving 10 days’ prior written notice. If the respondent fails to perform properly its obligations under this award or violates any term of this award, the university may terminate this agreement immediately and withhold payments in excess of fair compensation for completed services. If the university terminates an award, the university may seek all available remedies against the respondent.
  15. EXTENSION:The university may extend the period of this agreement. Extension of the agreement period will be by mutual agreement in writing.
  16. BETTER PRICING: If, during the term of this award, supplier enters into a contract with the state of Tennessee which has lower prices, or the university identifies consortium/cooperative pricing that is lower, the supplier must offer the lower pricing to the university without the university demanding the lower pricing.  If respondent fails to offer the university the lower pricing, the university may terminate this award immediately and without advanced notice.
  17. VENDOR ADHERENCE TO AGREEMENT:Supplier may only sell goods or services listed in the university’s purchase order. If respondent sells items not listed in the university’s purchase order, the university may terminate the purchase order immediately and without advanced notice.
  18. CLICK-THROUGH AGREEMENTS: In the event the supplier enters into terms of use, end users agreements, or other agreements or understandings, whether electronic, click-though, or shrink-wrap and whether verbal or written, with university employees, such agreements shall be null, void, and without effect and the terms of this award apply.
  19. NO THIRD-PARTY BENEFICIARIES: There are no third-party beneficiaries to this agreement.
  20. IRAN DIVESTMENT ACT. The Supplier certifies, under penalty of perjury, that to the best of its knowledge and belief the Supplier is not on the list created pursuant to Tenn. Code Ann. § 12-12-106. The Supplier further certifies that it shall not utilize any subcontractor that is on the list created pursuant to Tenn. Code Ann. § 12-12-106.
  21. ILLEGAL IMMIGRANTS: In compliance with the requirements of Tenn. Code Ann. § 12-3-309, Supplier hereby attests that it shall not knowingly utilize the services of an illegal immigrant in the United States in the performance of this agreement and shall not knowingly utilize the services of any subcontractor who will utilize the services of an illegal immigrant in the United States in the performance of this agreement.
  22. REGISTRATION WITH THE TENNESSEE DEPARTMENT OF REVENUE: The Supplier must register with, or receive an exemption from, the Tennessee Department of Revenue for the collection of Tennessee sales and use tax. This registration requirement is a material requirement of this agreement.  The Supplier shall comply, and shall require any sub-contractor to comply, with all laws and regulations governing the remittance of sales and use taxes on the sale of goods and services made by the Supplier, or the Supplier’s sub-contractor.