Document

Effective Date
Solicitation Terms & Conditions
04/01/2004
Purchase Order Terms and Conditions
05//1999
Special Provisions
04/01/2004

STATE OF COLORADO SOLICITATION INSTRUCTIONS/

TERMS AND CONDITIONS

Requests for Documented Quotes, Invitations for Bids, Requests for Proposals

Effective April 1, 2004



1. General

1.1 Applicability. Except to the extent modified, supplemented, or replaced in any solicitation by the Procuring Agency, these provisions and terms and conditions apply to a request for documented quotes, invitation for bids, or request for proposals issued by State agencies and State institutions of higher education on the Bid Information and Distribution System (BIDS) for supplies and services. These instructions are intended to summarize the State's procurement process and provide instructions to offerors, but they are not intended to modify procurement statutes and implementing rules.

1.2. Applicability of Current Version; Significant Changes. This version of these provisions applies to any solicitation published on or after the effective date above. This version adds a software piracy provision at section 4.4 and deletes provisions applicable to the piloting of the solicitation module of the Colorado/Utah e-procurement system. There are no other significant changes.

1.3 Definitions.

”BIDS” is the Bid Information and Distribution System used by State Agencies for publication of their solicitations.

"Contract" includes a State contract executed pursuant to State Fiscal Rules, any purchase order by a State Agency, and any other informal agreement permitted by State Fiscal Rules, unless the context clearly requires another meaning.

"Procuring Agency" is the State Agency that issues the solicitation on BIDS or, in the case of the executed contract or purchase order, the State Agency executing or issuing the purchase order or contract.

"Solicitation" refers to a request for documented quotes, invitation for bids, or request for proposals unless the context requires another meaning.

“State” refers to the State of Colorado.

“State Agency” refers to agencies, departments, and institutions of higher education of the State of Colorado.

"Unless otherwise specified" and "unless otherwise agreed" refers to the Procuring Agency's terms in the solicitation or other instructions to offerors that are inconsistent with these terms and conditions and, when the context requires, the resulting purchase order or contract that are inconsistent with or otherwise modify these terms and conditions.

"Vendor" refers to any person or entity responding to a solicitation, and has the same meaning as "contractor" or "offeror."

1.4 Telephone, E-mail, Facsimile and Electronic Quotes. If permitted by the Procuring Agency, telephone, e-mail, facsimile or other electronic quotations may be submitted in response to requests for documented quotes.

1.5 Late Quotes, Bids, and Proposals.

1.5.1. Vendors submitting quotes, bids, and proposals bear the risk that quotes, bids, and proposals may not arrive within the time required in the solicitation.

1.5.2. Quotes by registered vendors received prior to the time of award may be considered, at the discretion of the Procuring Agency. Vendors are cautioned, however, that State Procurement Rules restrict the authority of the Procuring Agency to consider bids and proposals received after the time specified in the solicitation.

1.6 Present/Former Employee Standards of Conduct -- Disclosures. Pursuant to sections 24-18-101 and 201, et. seq., C.R.S., and section 24-50-507, C.R.S., former and present public employees and officials may not "be interested" in some State Agency contracts and are prohibited from engaging in certain activities in relation to State contracts. The State reserves the right to void or terminate contracts entered into in contravention of those provisions, or contracts in which a current State employee performs any contract administration function involving the use of State time or resources or that is otherwise contrary to State law. Notwithstanding the disclosure provisions in section 24-18-201, C.R.S., the State reserves the right to disqualify any quote, bid, or proposal, or void or terminate any contract involving the participation or use of a present or former employee within the meaning of that section where such disqualification or termination is deemed to be in the best interest of the State. At the time of the submission of any quote, bid, or proposal, the contractor shall disclose to the Procuring Agency the identity, organization, and nature of participation of any present or former employee (who terminated State employment within six months prior to the date of receipt of quotes, bids, or proposals) participating in development of the quote, bid, or proposal. Further, the contractor shall disclose during contract performance the identity, organization, and nature of participation of any present or former employee (who terminated State employment within six months prior to the date of any resulting contract or purchase order).

1.7 Alternative Bids or Offers/Affiliated Vendors. Unless otherwise permitted by the Procuring Agency, alternative bids or proposals by any vendor are not permitted. Unless otherwise permitted by the Procuring Agency, quotes, proposals or bids by affiliated vendors are not permitted except in accordance with this paragraph. An affiliated vendor is one who is controlled or owned by another vendor responding to this solicitation, or owned or controlled by a third person or other entity who controls or owns two vendors responding to this solicitation. "Affiliation" includes one person's having a substantial role in the preparation of offers by two vendors responding to this solicitation. A submission of a quote, bid or proposal in connection with any solicitation represents a certification that the quoter, bidder, or offeror is not affiliated with any known vendor also submitting a quote, bid, or proposal in response to the solicitation, except to the extent the nature of such affiliation is described with particularity. The State reserves the right to disqualify any quote, bid, or proposal by, or void any resulting purchase order or contract with, any vendor responding to a solicitation in violation of this provision or the following certificate of independent price determination.

1.8 Certificate of Independent Price Determination. Except as otherwise disclosed with particularity, through its submission of a quote, bid, or offer, the vendor certifies that the prices and other terms in the quote, bid, or offer have been arrived at independently without any consultation, communication, agreement with, or knowledge of the contents of the quote, bid, or offer by, any other competing vendor. For purposes of this paragraph, "consultation, communication, agreement with, or knowledge" does not include knowledge of prices or terms gained through availability of established price lists or catalogues made available to the public by the competing vendor.

1.9. Submission of Quotes, Bids and Proposals. Unless otherwise specified in the solicitation, any written bid or proposal must be signed by an individual authorized to bind the vendor. Vendors are requested to use any signature/cover sheet included as an attachment to the solicitation by the Procuring Agency. Otherwise, include with the signature page at least the name of vendor, federal employer identification number (FEIN/tax ID), address, point-of-contact, and telephone number. In IFBs and RFPs, comply also with the requirements in section 3.3, Bid Return Format. The vendor's signature represents vendor's acknowledgment that it has received all attachments referred to on the BIDS solicitation pages, and all solicitation modifications posted on BIDS through the date established for receipt of quotes, bids, or proposals.

1.10. Specifications; Samples; Brand Name or Equal. Specifications are provided to identify the product/service required and to establish an acceptable quality level. Bids on products of equal quality and usability will normally be considered unless otherwise stated. The State will be the sole judge in determining "equals" in regard to quality and performance.

1.10.1. Failure to furnish brochures, specifications, and/or samples as requested may be sufficient cause to consider a quote unacceptable or a bid non-responsive.

1.10.2. Samples of product(s), when required, must be furnished free of expense to the State Agency, and if not destroyed by tests may, upon request made at the time the sample is furnished, be returned at the bidder's expense.

1.10.3. A brand name or equal specification means that the brand name is for the purpose of describing the standard of quality, performance, and characteristics desired. Unless otherwise specified, information to address equivalent substitutes in brand name or equal descriptions must include published information -- such as brochures, descriptions, or other information made available in the general course of the vendor's business -- that demonstrates: equivalent functionality in terms of significant (or other specified, e.g. form, fit, or function) performance characteristics; similar duration and scope of warranty protections; comparable experience with the same, similar, or predecessor product line; and an adequate period (or minimum period specified in the solicitation) of customer support experience to demonstrate a comparable acceptable level and availability of customer support. The determination of whether a proposed substitute is acceptable is totally within the discretion of the Procuring Agency

1.11. Number of Awards. Unless otherwise specified in the solicitation, the Procuring Agency may award individual line items to different vendors or otherwise make multiple awards to vendors who, in the Procuring Agency's judgment, best satisfy the requirements consistent with the award criteria in the solicitation.

1.12. Vendor Inquiries. Vendors may make written or, if permitted by the Procuring Agency, e-mail or fax inquiries concerning this solicitation before the date and time indicated for receipt of quotes, bids, or offers. Send all inquiries to the point-of-contact indicated on the BIDS solicitation. Responses to vendor's inquiries amending or clarifying invitations for bids or requests for proposals will be made in writing by the Procuring Agency and posted on BIDS. Vendors may not rely on any other statements, written or oral, that alter any specification or other term or condition of the solicitation. It is incumbent upon offerors to carefully and regularly monitor BIDS notifications for any such postings.

1.13 BIDS Registration. Unless a limited competition procedure is used by the State Agency in accordance with the Procurement Rules, a vendor must be currently registered on BIDS at the time specified by a Procuring Agency for receipt of quotes, bids or proposals for its bid or proposal to be considered responsive. BIDS registration is not required for responding to requests for information or solicitations not required by the Procurement Rules to be placed on BIDS, e.g. discretionary use of documented quotes for acquisition of services less than $25,000 and commodities less than $5,000.

1.14. Protest. A protest of any portion of a State Agency solicitation must be submitted in writing to the Procuring Agency, in accordance with Title 24, Article 109, C.R.S., as amended. Vendors must protest within seven (7) working days after becoming aware of the facts giving rise to the protest. The requirement for timely (seven working days) submission of any protest relating to award will begin on the first working day following posting of the award notice on BIDS, or on receipt of any other award notice issued by the Procuring Agency, whichever is earlier.

1.15. Cancellation of Solicitation. Pursuant to Procurement Rule R-24-103-301, State Agency solicitations may be canceled or any or all quotes, bids or proposals rejected when it is in the best interests of the State.

2. Documented Quotes

2.1 Applicability. Except as replaced, modified or supplemented by the Procuring Agency in the solicitation, these procedures apply to any solicitation identified on the solicitation as a “request for documented quotes” or a "documented quote" issued by a State Agency.

2.2 Description. The documented quote process is a State small purchase procedure that is informal but results in awards that are most advantageous to the State.

2.3 Responsiveness of Quotations.

2.3.1. Vendors must furnish the samples (if required) and other information necessary to provide the Procuring Agency with information sufficient to evaluate the price, acceptability of the supply or service, equivalency of substitutes in brand name or equal descriptions, or other factors being considered in the evaluation of quotations.

2.3.2. Unless otherwise specified, information to address delivery terms must describe the time for delivery, terms for transportation (e.g. F.O.B. terms), any unusual or unique packing and handling provisions, or any other delivery and shipping terms.

2.3.3. The Procuring Agency may, but is not required to, contact quoting vendors to obtain additional or missing information and to clarify aspects of the quote as deemed necessary to determine the acceptability of the quote. The Procuring Agency may reject as unacceptable quotes from vendors not registered on BIDS at the time set for receipt of quotes, quotes that do not provide sufficient information to permit their evaluation, or quotes that do not meet the minimum requirements in the solicitation.

2.4. Award

2.4.1. In the case of goods or services, the award will be made to the quote determined by the Procuring Agency to be the most advantageous to the State, price/cost being the primary consideration. The determination of whether the quote is acceptable and meets the minimum requirements of the solicitation is solely within the discretion of the Procuring Agency. No formal evaluation system or methodology is required for any documented quote process.

2.4.2. Small purchases of services (less than or equal to $25,000) and goods (less or equal to $5,000) are not subject to the Procurement Rule procedures for documented quotes. If BIDS is used by State Agencies in obtaining quotes for goods or services below those thresholds, the selection of the vendor is within the absolute discretion of the Procuring Agency.

2.4.3. The award notice will be posted on BIDS for any solicitation posted on BIDS.

3. Invitation for Bids and Requests for Proposals

Except as replaced, modified or supplemented in the solicitation, the following provisions apply to invitations for bids and requests for proposals issued by State Agencies. For simplicity, unless the context requires another meaning, the term "bid" or "bidder" in this section 3 refers to a bid submitted in response to an invitation for bids (IFB) and a proposal submitted in response to a request for proposals (RFP), both of which are considered "offers."

3.1. Information Required. Bidders shall furnish all the information required to be submitted at the time of bid submission. Bidders are expected to examine the drawings, specifications, schedule of delivery and all instructions. Should the bidder find any part of the listed specifications or terms and conditions to be discrepant, incomplete or otherwise questionable in any respect, it shall be the responsibility of the bidder to call such matters to the attention of the purchasing agent immediately. Failure to do so will be at the bidder's risk. Amendments to this solicitation will be official only furnished, in writing, by the state Procuring Agency. Bidders shall not rely on verbal statements that alter any specification or other term or condition of the solicitation.

3.2. Products/Services Provided. The bidder shall furnish the products and/or services in strict accordance with the specifications, and at the price set forth for each item. All products quoted shall be newly manufactured and of the manufacturer's current model, unless otherwise specified.

3.3. Bid Return Format for Written Responses. Written IFB and RFP responses shall be submitted in a sealed envelope and in accordance with the instructions by the Procuring Agency in the solicitation. The IFB or RFP number and the opening date and time should be written in the lower left corner of the envelope. If the bid package is too large to be submitted in a bid envelope, a bid envelope should be affixed to the outside of the sealed bid package.

3.4. Valid Bid Period. Bids shall be firm for a period of no less than thirty (30) calendar days after the opening of the bids, unless otherwise specified in the solicitation. Proposals submitted in response to a request for proposal shall be firm for a period of not less than ninety (90) calendar days, unless otherwise specified in the solicitation.

3.5. Discounts. Discounts offered for payment within less than thirty (30) calendar days will not be considered in evaluating offers for award, unless otherwise specified. Discounts of less than thirty (30) calendar days will be taken if payment is made within the discount period, even though not considered in evaluation of the bid.

3.6. Bid Acceptance/Obligation. The State of Colorado reserves the right to reject any or all bids and to waive informalities and minor irregularities in bids received and to accept all or any portion of the bid, deemed in the best interest of the State and not contrary to law. This solicitation implies no obligation on the part of the State Agency to pay any costs incurred in the preparation or the submission of bids or proposals, or to purchase or contract for products or services offered, nor does the State Agency's silence imply any acceptance or rejection of any offer.

3.7. Modification or Withdrawal of Proposals. Bids or proposals may be modified or withdrawn by the vendor prior to the established due date and time for receipt of offers.

3.8. Evaluation and Award.

3.8.1. In the case of competitive sealed proposals (RFP), the State reserves the right to make an award on receipt of initial proposals, so offerors are encouraged to submit their most favorable proposal at the time established for receipt of proposals. Proposals requiring major revision in order to be susceptible of award, or otherwise not meeting the mandatory or other requirements required for further consideration as specified in the RFP, may be classified as unacceptable and shall be ineligible for further consideration. The State may conduct discussions with offerors in the competitive range for the purpose of promoting understanding of the state's requirements and the offeror's proposal, to clarify requirements, and to make adjustments in services to be performed and in prices. Revisions to proposals, if permitted, will be requested in writing or electronically from offerors.

3.8.2. Award of a contract as a result of an IFB will be made to the low responsive and responsible bidder. For a competitive sealed proposal award (RFP), award will be made to the responsible offeror whose proposal is determined to be most advantageous to the State, price and other factors considered, in accordance with the criteria described in the RFP.

3.8.3. In the case of IFBs, if low tie bids are received, in accordance with section 24-103-202.5, C.R.S., resident bidders shall be given a preference over nonresident bidders. If low tie bids are among resident bidders or nonresident bidders, the procurement officer will use the procedure in Procurement Rule R-24-103-202.5-01 to determine the award, after notice to the interested vendors. Any bidder who wishes to be considered a "resident" bidder for purposes of section 24-103-202.5 shall include with its bid proof that the vendor meets the definition of "resident bidder" set forth in section 24-103-101(6), Colorado Revised Statutes.

3.9. Requirement for Valid Contract. The State Agency will not be responsible for any products delivered or services performed prior to issuance of a purchase order signed by an authorized representative of the State Agency's purchasing department, or a contract signed by a duly authorized representative of the State Agency and approved by the State Controller or designee.

3.10. Vendor Forms. In the event bidder's form(s) or part(s) of forms are included as an attachment(s) bidder agrees that, in the event of inconsistencies or contradictions, the terms and conditions of the solicitation document shall supersede and control over those contained in the bidder's form(s) regardless of any statement to the contrary in a bidder form(s). Unless the State specifically agrees in writing through overt reference or other express written indication of assent, terms and conditions on vendor forms regarding choice of law, venue, warranty disclaimer or exclusion, indemnification or limitation of liability shall be of no effect.

3.11. Waste Reduction. The State desires and encourages that bids be submitted on recycled paper, printed on both sides. While the appearance of bids and professional presentation is important, unnecessarily elaborate proposals and the use of non-recyclable or non-recycled glossy paper is discouraged.


4. Purchase/Contract Terms and Conditions.

4.1. Except as replaced, modified, or supplemented by the terms of the solicitation, a purchase order or a State contract executed between the procuring agency and vendor, an award will be governed by provisions in the Purchase Order Terms and Conditions that follow.

4.2. The State reserves the right to negotiate and clarify the terms and conditions where there is no appreciable affect on price/cost, quality, delivery, or other performance.

4.3. Except as replaced, modified, or supplemented by the procuring agency, the following insurance provision is specified in accordance with paragraph 19 of the Purchase Order Terms and Conditions for all IFBs and RFPs involving services on State property (unless incidental to the delivery of a supply or good), or having services separately priced in excess of $50,000:

4.4 Software Piracy Prohibition. No State or other public funds payable under any contract or purchase order executed as a result of a solicitation shall be used for the acquisition, operation or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Vendor certifies that, for the term of any purchase order or contract, and any extensions, the Vendor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Vendor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under the contract or purchase order, including, without limitation, immediate termination of the contract or purchase order and any remedy consistent with United States copyright laws or applicable licensing restrictions.

4.5. State law limits the use of purchase orders and requires contracts that include services priced at more than $50,000, or supply/commodity contracts exceeding $50,000 in value and including unpriced services not incidental to the transaction, to be bilaterally executed, reviewed by the Attorney General, and approved by the State Controller or his designee. Fiscal Rule 3-1, 1 Code of Colorado Regulations Section 101-1. The Special Provisions following the Purchase Order Terms and Conditions are required by State law to be included in State contracts, and the Special Provisions govern over any other terms and conditions in the solicitation, including the provisions in the Purchase Order Terms and Conditions to the extent they are inconsistent.

PURCHASE ORDER TERMS AND CONDITIONS
395-30-55-0159 / 395-30-55-0233 (R 5/99)

1. Offer/Acceptance. If this purchase order refers to your bid or proposal, then this purchase order is an ACCEPTANCE of your OFFER TO SELL in accordance with the terms and conditions of the IFB/RFP, as stated in your bid. If no bid or proposal is referenced, the purchase order is an OFFER TO BUY, subject to your acceptance, which must be demonstrated by either your performance of the purchase order or by a formal acknowledgment in writing. Any COUNTER-OFFER TO SELL is automatically construed as a CANCELLATION of this purchase order unless a change order is issued accepting a counter-offer. In the event vendor form(s) or part(s) of forms are included in, or as an attachment to, any bid, proposal, offer, acknowledgment, or otherwise, vendor agrees that, in the event of inconsistencies or contradictions, the terms and conditions of the solicitation document and this purchase order shall supersede and control over those contained in the vendor's form(s) regardless of any statement to the contrary in a vendor form(s). Unless the purchasing agent specifically agrees in writing through overt reference or other express written indication of assent, terms and conditions on vendor forms regarding choice of law, venue, warranty disclaimer or exclusion, indemnification or limitation of liability shall be of no effect.

2. Safety Information. All chemicals, equipment and materials proposed and/or used in the performance of this purchase order must conform to the standards required by the William-Steiger Occupational Safety and Health Act of 1970. Bidders must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery.

3. Changes. The vendor agrees to furnish the products and/or services in strict accordance with the specifications, and at the price set forth for each item. Nothing in the purchase order may be added to, modified, superseded or otherwise altered except in writing signed by an authorized representative of the state agency purchasing office and acknowledged by the vendor. Each shipment received or service performed shall be only upon the terms contained in the purchase order, notwithstanding any terms that may be contained in any invoice or other act of vendor other than acknowledgment of a written change order to the purchase order.

4. Delivery. Unless otherwise specified, in the solicitation or in this order, delivery shall be F.O.B. destination. In its acceptance of any quotation offer, the state agency is relying on the promised delivery date, installation, or service performance as material and basic to its acceptance. In the event of vendor's failure to deliver or perform as and when promised, the state agency reserves the right to cancel its order, or any part thereof, without prejudice to its other rights, and vendor agrees that the state agency may return all or part of any shipment so made, and may charge vendor with any loss or expense sustained as a result of such failure to deliver or perform as promised. Time is of the essence.

5. Rights In Data, Documents, and Computer Software or Other Intellectual Property (State Ownership). Unless otherwise agreed in writing, any software, research, reports, studies, data, photographs, negatives or other documents, drawings or materials delivered by vendor in the performance of its obligations under this purchase order shall be the exclusive property of the State. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.

6. Quality. The State will be the sole judge in determining "equals" with regard to quality, price and performance. All products delivered shall be newly manufactured and of the manufacturer's current model, unless otherwise specified.

7. Warranties. All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of these Terms and Conditions and are in addition to any warranties stipulated in the specifications.

8. Inspection and Acceptance. Final acceptance is dependent upon completion of all applicable inspection procedures. Should the products or services fail to meet any inspection requirements the State may exercise all of its rights, including those provided in the Uniform Commercial Code. In the case of services, the State reserves the right to inspect services provided under this contract at all reasonable times and places. "Services" as used in this clause includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform with purchase order requirements, the State may require the vendor to perform the services again in conformity with purchase order requirements, with no additional payment. When defects in the quality or quantity of service cannot be corrected by re-performance, the State may (1) require the vendor to take necessary action to ensure that the future performance conforms to purchase order requirements and (2) equitably reduce the payment due the vendor to reflect the reduced value of the services performed. These remedies in no way limit the remedies available to the State in the termination provisions of this purchase order, or remedies otherwise available at law.

9. Cash Discount. The cash discount period will start from date of receipt of acceptable invoice, or from date of receipt of acceptable products/services at the specified destination by an authorized agency representative, whichever is later.

10. Taxes. The state agency, as purchaser, is exempt from all federal excise taxes under Chapter 32 of the Internal Revenue Code [No. 84-730123K] and from all state and local government use taxes [C.R.S. 39- 26-114(a) and 203, as amended]. Tax exempt numbers for the specific state agency may be found elsewhere in this document. Vendor is hereby notified that when materials are purchased for the benefit of the State, such exemptions apply except that in certain political subdivisions (for example - City of Denver) the vendor may be required to pay sales or use taxes even though the ultimate product or service is provided to the State. These sales or use taxes will not be reimbursed by the State.

11. Prompt Payment. State law and regulations provide that vendors will be paid within forty-five days after receipt of products or services and a correct notice of amount due, unless otherwise agreed to by contract or special conditions of the purchase order. A State liability not paid within forty-five days is considered delinquent and, unless otherwise agreed to, interest on the unpaid balance shall be paid beginning with the forty-sixth day at the rate of one percent per month on the unpaid balance until paid in full. A liability shall not arise if a good faith dispute exists as to the agency's obligation to pay all or a portion of the liability. Vendors shall invoice the State separately for interest on delinquent amounts due. The billing shall reference the delinquent payment, the number of days interest to be paid and the applicable interest rate. [Ref. Sec 24-30-202(24), C.R.S., as amended.]

12. Vendor Offset. Pursuant to CRS 24-30-202.4, as amended, the State Controller may withhold payment for debts owed to state agencies under the vendor offset intercept system for: (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued interest, or other charges specified in Article 21, Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) owed amounts required to be paid to the unemployment compensation fund; and (e) other unpaid debts owing to the state or any agency thereof, the amount of which is found to be owing as a result of final agency determination or reduced to judgment as certified by the State Controller.

13. Assignment and Successors; Antitrust Claims. The vendor shall not assign rights or delegate duties under this purchase order, or subcontract any part of the performance required under the purchase order, without the express, written consent of the State, which shall not be unreasonably withheld. This purchase order shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Assignment of accounts receivable may be made only with written notice furnished to the purchasing agency or institution.

14. Indemnification. In the event any article sold or delivered under this purchase order is covered by any patent, copyright, trademark, or application therefor, the vendor will indemnify and hold harmless the State of Colorado from any and all loss, liability, cost, expenses and legal fees incurred on account of any claims, legal actions, or judgments arising out of manufacture, sale or use of such article in violation, infringement or the like of rights under such patent, copyright, trademark or application. If this purchase order is for services, to the extent authorized by law, the vendor shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the vendor, or its employees, agents, subcontractors or assignees arising out of or in connection with performance of services ordered by this purchase order.

15. INDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE VENDOR NOR ANY AGENT OR EMPLOYEE OF THE VENDOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. VENDOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING INCLUDING ALL FEDERAL AND STATE INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID PURSUANT TO THIS CONTRACT. VENDOR ACKNOWLEDGES THAT THE VENDOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE VENDOR OR A THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. VENDOR SHALL HAVE NO AUTHORIZATION EXPRESS OR IMPLIED TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. VENDOR SHALL PROVIDE AND KEEP IN FORCE, WORKERS' COMPENSATION (AND SHOW PROOF OF SUCH INSURANCE UPON REQUEST) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF VENDOR, ITS EMPLOYEES, AND AGENTS.

16. Communication. All communications, including reports, notices, and advice of any nature, concerning administration of this purchase order, prepared by vendor for the state agency's use, must be furnished solely to the Purchasing Agent within the agency purchasing office.

17. Compliance with Laws. Vendor agrees to comply with all applicable federal and state laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-kick-back and collusion.

18. Americans with Disabilities Act (ADA) Requirements. If this solicitation contemplates the provision of state services to the public, the vendor shall, in addition to any other requirements under Title 11 of the Americans with Disabilities Act, comply with the Title 11 requirements of the Americans with Disabilities Act regarding the accessibility of the State's services and programs, as an explicit requirement. The vendor assures that, at all times during the performance of any resulting contract, no qualified individual with a disability shall, by reason of that disability, be excluded from participation in, or be denied benefits of, services, programs, or activities performed by the vendor for the benefit of the State.

19. Insurance. The vendor shall obtain, and maintain at all times during the term of this purchase order, insurance as specified in the solicitation or order, and shall provide proof of such coverage.

20. Termination For Default/Cause.
a. Except as otherwise agreed, the Uniform Commercial Code shall govern in the case of transactions in goods. In the case of services, if the vendor refuses or fails to timely perform any of the provisions of this purchase order, with such diligence as will ensure its completion within the time specified in this purchase order, the Purchasing Agent may notify the vendor in writing of the non-performance, and if not promptly corrected within the time specified, such officer may terminate the vendor's right to proceed with the purchase order or such part of the purchase order as to which there has been delay or a failure to properly perform. The vendor shall continue performance of the purchase order to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services elsewhere. Payment for completed services performed and accepted shall be at the purchase order price.
b. In the case of remedies exercised under this paragraph for services, or analogous remedies exercised under the Uniform Commercial Code for transactions in goods, the purchasing agency may withhold amounts due to the vendor as the Purchasing Agent deems to be necessary to reimburse the purchasing agency for the excess costs incurred in curing, completing or procuring similar goods and services.
c. In the case of either transactions in goods or services, the vendor shall not be in default by reason of any failure in performance of this purchase order in accordance with its terms if such failure arises out of acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather.
d. If after rejection, revocation, or other termination of the vendor's right to proceed under the provisions of the Uniform Commercial Code (in the case of transactions in goods) or this clause (in the case of services), it is determined for any reason that the vendor was not in default under the provisions of this clause, or that the delay was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the termination for convenience clause.

21. Termination For Convenience.

a. Cancellation Prior to Contract Formation. When this purchase order is not accepted by written acknowledgment, this purchase order may be canceled by written or oral notice to the vendor prior to shipment of goods or beginning of performance of services.
b. Termination After Contract Formation. Unless otherwise agreed in writing, in addition to the rights and remedies governing transactions in goods in the Uniform Commercial Code, the Purchasing Agent may when the interests of the purchasing agency so require terminate this purchase order in whole or in part, for the convenience of the agency or institution. The Purchasing Agent shall give written notice of the termination to the vendor specifying the part of the purchase order terminated and when termination becomes effective. Upon receipt of the notice of termination, the vendor shall incur no further obligations except to the extent necessary to mitigate costs of performance. In the case of services or specially manufactured goods, the State shall pay reasonable settlement expenses, the contract price or rate for supplies and services delivered and accepted, the reasonable costs of performance on unaccepted supplies and services, and a reasonable profit for that unaccepted work, in accordance with the cost principles promulgated in accordance with section 24-107-101, Colorado Revised Statutes, as amended. In the case of existing goods, the State shall pay reasonable settlement expenses, the contract price for goods delivered and accepted, reasonable costs incurred in preparation for delivery of the undelivered goods, and a reasonable profit for that preparatory work. The amount of the termination liability under this paragraph shall not exceed the amount of the purchase order price plus a reasonable cost for settlement expenses. The vendor agrees to submit a termination proposal as well as reasonable supporting documentation, cost and pricing data, and a certification required by section 24-106-101, C.R.S., as amended, upon request of the Purchasing
Agent.

22. Purchase Order Approval. This purchase order shall not be deemed valid unless it is executed by the Purchasing Agent for the purchasing state agency or institution. The State shall have no responsibility or liability for products or services delivered or performed prior to proper execution hereof.

23. Fund Availability; Federal Funds Contingency. Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this purchase order is funded in whole or in part with federal funds, this purchase order is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. If this purchase order contemplates the purchase of goods to be delivered in a single installment, the State represents that it has set aside sufficient funds to make payment under this purchase order in accordance with its terms.

24. Choice of Law. This purchase order is made in the State of Colorado. The laws of the State of Colorado shall govern in connection with the formation, performance and the legal enforcement of this purchase order. Unless otherwise specified in the solicitation or this order, venue for any judicial action arising out of or in connection with this purchase order shall be in Denver, Colorado. Vendor shall exhaust administrative remedies in " 24-109-106, Colorado Revised Statutes, as amended, prior to commencing any judicial action against the State.

25. Uniform Commercial Code. All references in this purchase order to the Uniform Commercial Code shall mean the Uniform Commercial Code as adopted by the State of Colorado at Title 4, Colorado Revised Statutes, as amended.

26. Non-discrimination. The vendor agrees to comply with the letter and spirit of all applicable state and federal laws respecting discrimination and unfair employment practices.

STATE OF COLORADO SPECIAL PROVISIONS

Effective April 1, 2004



State Contracts and Colorado Special Provisions

Under State law, bilateral State Contracts must be used in lieu of a purchase order for transactions including services priced at more than $50,000 or for supply/commodity contracts exceeding $50,000 in value and including unpriced services not incidental to the transaction. In State Contracts, the Colorado Special Provisions attached are required by the Colorado Code of Federal Regulation, Fiscal Rule 3-1, 1 CCR 101-1. The provisions in the Special Provisions govern in the event of conflict or inconsistency with any other term or condition in the solicitation or the vendor's offer.
SPECIAL PROVISIONS

( Not for Use with Inter-Governmental Contracts)