STATE OF NEW YORK

EXECUTIVE DEPARTMENT
OFFICE OF GENERAL SERVICES

CENTRALIZED CONTRACT FOR THE ACQUISITION OF PROPRIETARY SOFTWARE & RELATED

SERVICES

New York State Contract #

Contractor Reference #

[INSERT: CONTRACTOR NAME]

DESIGNATED CONTACTS: Team #12

James Jasiewicz - Purchasing Officer Kathy McAuley - Team Leader

Telephone No. (518) 486-5238 Telephone No. (518) 486-6812
E-mail james.jasiewicz@ogs.ny.gov Email: kathy.mcauley@ogs.ny.gov

The bid must be fully and properly executed by an authorized person. By signing you certify your express authority to sign on
behalf of yourself, your company, or other entity and full knowledge and acceptance of this INVITATION FOR BIDS,
Appendix A (Standard Clauses For New York State Contracts), Appendix B (OGS General Specifications), and State Finance
Law §139-j and §139-k (Procurement Lobbying), and that all information provided is complete, true and accurate. By
signing, bidder affirms that it understands and agrees to comply with the OGS procedures relative to permissible contacts as
required by State Finance Law §139-j (3) and §139-j (6) (b). Information may be accessed at:
Procurement Lobbying: http://www.ogs.ny.gov/aboutOgs/regulations/defaultAdvisoryCouncil.html

THIS CONTRACT for the acquisition of proprietary software and related incidental services is made between the
People of the State of New York, acting by and through the Commissioner of the Office of General Services
(hereinafter “State” or “OGS”) whose principal place of business is the 41st Floor, Corning Tower, The Governor Nelson A.
Rockefeller Empire State Plaza, Albany, New York 12242, pursuant to authority granted under New York State Finance Law,
§ 163, and _____________________ (hereinafter ”Contractor”), with its principal place of business at
___________________________________________________________________________________________
____________________________________________________________________________________________.

PROCUREMENT LOBBYING TERMINATION:

OGS reserves the right to terminate this contract in the event it is found that the certification filed by the
Offerer/bidder in accordance with New York State Finance Law §139-k was intentionally false or intentionally incomplete.
Upon such finding, OGS may exercise its termination right by providing written notification to the Offerer/bidder in
accordance with the written notification terms of this contract.

SUMMARY OF POLICY AND PROHIBITIONS ON PROCUREMENT LOBBYING:

Pursuant to State Finance Law §§139-j and 139-k, this solicitation includes and imposes certain restrictions on
communications between OGS and an Offerer/bidder during the procurement process. An Offerer/bidder is restricted from
making contacts from the earliest notice of intent to solicit offers/bids through final award and approval of the Procurement
Contract by OGS and, if applicable, the Office of the State Comptroller (“restricted period”) to other than designated staff
unless it is a contact that is included among certain statutory exceptions set forth in State Finance Law §139-j (3) (a).
Designated staff, as of the date hereof, is identified on the first page of this solicitation. OGS employees are also required to
obtain certain information when contacted during the restricted period and make a determination of the responsibility of the
Offerer/bidder pursuant to these two statutes. Certain findings of non-responsibility can result in rejection for contract award
and in the event of two findings within a four-year period, the Offerer/bidder is debarred from obtaining governmental
Procurement Contracts. Further information about these requirements can be found on the OGS website:
http://www.ogs.ny.gov/aboutOgs/regulations/defaultAdvisoryCouncil.html

NYS STANDARD VENDOR RESPONSIBILITY QUESTIONNAIRE (Appendix 1):

Bidder agrees to fully and accurately complete the NYS Standard Vendor Responsibility Questionnaire, which is
attached as Appendix 1 (hereinafter the “Questionnaire”). The Bidder acknowledges that the State’s execution of the Contract
will be contingent upon the State’s determination that the Bidder is responsible, and that the State will be relying upon the
Bidder’s responses to the Questionnaire in making that determination. The Bidder agrees that if it is found by the State that
the Bidder’s responses to the Questionnaire were intentionally false or intentionally incomplete, on such finding, OGS may
terminate the Contract by providing ten (10) days written notification to the Contractor. In no case shall such termination of
the Contract by the State be deemed a breach thereof, nor shall the State be liable for any damages for lost profits or
otherwise, which may be sustained by the Contractor as a result of such termination.

TAX LAW 5-A AMENDED APRIL 26, 2006 (APPENDIX 2):

Section 5-a of the Tax Law, as amended, effective April 26, 2006, requires certain contractors awarded state contracts
for commodities, services and technology valued at more than $100,000 to certify to the Department of Taxation and Finance
(DTF) that they are registered to collect New York State and local sales and compensating use taxes. The law applies to
contracts where the total amount of such contractors’ sales delivered into New York State are in excess of $300,000 for the
four quarterly periods immediately preceding the quarterly period in which the certification is made, and with respect to any
affiliates and subcontractors whose sales delivered into New York State exceeded $300,000 for the four quarterly periods
immediately preceding the quarterly period in which the certification is made.
This law imposes upon certain contractors the obligation to certify whether or not the contractor, its affiliates, and its
subcontractors are required to register to collect state sales and compensating use tax and contractors must certify to DTF that
each affiliate and subcontractor exceeding such sales threshold is registered with DTF to collect New York State and local
sales and compensating use taxes. The law prohibits the State Comptroller, or other approving agency, from approving a
contract awarded to a contractor meeting the registration requirements but who is not so registered in accordance with the
law.
Contractor certification forms and instructions for completing the forms are attached to this bid. Form No. ST-220-TD must
be filed with and returned directly to DTF. Unless the information upon which the ST-220-TD is based changes, this form
only needs to be filed once with DTF. If the information changes for the contractor, its affiliate(s), or its subcontractor(s), a
new Form No. ST-220-TD must be filed with DTF.

Form ST-220-CA must be filed with the bid and submitted to the procuring covered agency certifying that the
contractor filed the ST-220-TD with DTF. Proposed contractors should complete and return the certification forms within
two business days of request (if the forms are not completed and returned with bid submission). Failure to make either of
these filings may render a bidder non-responsive and non-responsible. Bidders shall take the necessary steps to provide
properly certified forms within a timely manner to ensure compliance with the law.
Vendors may call DTF at 1-800-698--2909 for any and all questions relating to Section 5-a of the Tax Law and relating to a
company's registration status with the DTF. For additional information and frequently asked questions, please refer to the
DTF web site: http://www.nystax.gov

INFORMATION SECURITY BREACH AND NOTIFICATION ACT

Section 208 of the State Technology Law (STL) and Section 899-aa of the General Business Law (GBL) require that
State entities and persons or businesses conducting business in New York who own or license computerized data which
includes private information including an individual's unencrypted personal information plus one or more of the following:
social security number, driver's license number or non-driver ID, account number, credit or debit card number plus security
code, access code or password which permits access to an individual's financial account, must disclose to a New York resident
when their private information was, or is reasonably believed to have been, acquired by a person without valid authorization.
Disclosure of breach of that private information to all individuals affected or potentially affected must occur in the most
expedient time possible without unreasonable delay, after necessary measures to determine the scope of the breach and to
restore integrity, but with delay if law enforcement determines it impedes a criminal investigation. When notification is
necessary, the State entity or person or business conducting business in New York must also notify the following New York
State agencies: the Attorney General, the Office of Cyber Security & Critical Infrastructure Coordination (CSCIC) and the
Consumer Protection Board (CPB). Information relative to the law and the notification process is available at:
http://www.cscic.state.ny.us/security/securitybreach/

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1. CONTRACT SCOPE / TERM
This document (hereinafter “Contract”) sets forth the terms and conditions governing the acquisition of software,
maintenance and other incidental services (including, but not limited to, consulting and training). Terms used in this
document shall have the meanings set forth in Appendix B. Amendments or modifications to the terms and conditions set
forth herein may only be made with mutual written agreement of the parties and with the approval of the New York State
Attorney General and Comptroller.

The term of this Contract shall be five (5) years commencing on the date of approval by the New York State Comptroller
effective upon mailing by OGS (see Appendix B, Clause 38). The parties may renew the contract, upon approval of the NYS
Comptroller, upon expiration of the original term for an additional five (5) year term. Upon termination of the Contract, all
rights and obligations set forth herein shall survive in accordance with their terms as to procurements made or individual
licenses granted to Authorized Users prior to such termination.

This Contract is available for use by all Authorized Users (See Appendix B, Definitions, and Participation in Centralized
Contracts) and may be extended with the joint approval of the Contractor and the Commissioner for joint purchasing by any
department, agency or instrumentality of the United States government and/or any state including political subdivisions
thereof (“other authorized entities”). In the event that this Contract is so extended, such other authorized entities shall be
solely responsible for liability and performance under the Contract, and Contractor agrees to hold them solely responsible for
such liability and performance.

2. MERGER OF APPENDICES/CONFLICT OF CLAUSES

This Contract shall incorporate the following appendices as if set forth herein at length. Only documents expressly
enumerated below shall be deemed a part of this Contract, and references contained in those documents to additional
Contractor documents not enumerated below shall be of no force and effect. Conflicts between these documents shall be
resolved in the following descending order of precedence, which supercedes the order of precedence stated in Appendix B:

Appendix A Standard Clauses for NYS Contracts

Contract (This Document)
Appendix B OGS General Specifications for Proprietary Software
Appendix C Mandatory: Contractor's Executive Law, Article 15-A (M/WBE) Requirements
Appendix D Contract Update Form (For Product and Pricing Updates)
Appendix E Required Contractor Submissions:
# 1 Mandatory Contractor Questionnaire
# 2 Contractor, Reseller & Distributor Information
# 3 NYS Net Prices (Prices for Software, Maintenance, Consulting and Training Services)
# 4 Maintenance & Support (Description of Services)
# 5 Consulting and Training (Description of Services & Course Offerings)

3. PRODUCT OFFERINGS
Products available under this Contract are set forth in Appendix E (Submission #3, 4 and 5). These offerings may be updated
during the Contract term to incorporate new Product offerings, and price revisions and to delete items. Offering updates must
be submitted under the Contract as soon as possible after they are announced by Contractor.

A. Developer’s Software Product Line: Proprietary Product(s) developed by Contractor and offered either under
Contractor’s U.S. Commercial Price List or under a GSA Supply Schedule, may be included under this Contract.

B. Third Party Products: To the extent that the Contractor’s U.S. Commercial Price List includes third party
Products other than Developer’s proprietary line, which third party products overlap with offerings under other State
Contracts, the State reserves the right, in its sole judgment, to exclude or delete overlapping items from this Contract, or to
include such items under this Contract only if the Contractor offers it at or below the alternative Contract price. Only third
party Products which are included in the Contractor’s U.S. Commercial Price List may be sold under this Contract.

C. Services: Authorized Users may acquire services, including maintenance, consulting, and training, under this
Contract. Consulting and training services as set forth in Appendix E (Submission #5) may be acquired from Contractor on a
limited basis. Consulting and training services may not exceed twenty (20%) percent of the total order price for software
licenses and maintenance. “Total order price” shall be defined as the aggregate purchase order amount for software licenses
and maintenance placed by the Authorized User under this Contract in a twelve month period. Consulting and training which
exceed twenty (20%) may be procured competitively using the OGS IT Services mini-bid process or another procurement
process selected by the Authorized User.

Contractors are cautioned that when installing equipment, the installation must be consistent with the Information Security
policies of the agency (or other authorized contract user). Questions about specific Information Security policies should be
directed to the agency who is requesting the work.

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4. CONTRACT ADMINISTRATION
A. Contract Administrator: Contractor must provide a dedicated Contract administrator to support the
updating and management of the Contract on a timely basis. Information regarding the administrator shall be set forth in
Appendix E (Submission #2).

B. “Toll Free” Number: Contractor must provide a toll free telephone number for order tracking/delivery schedule
information, Contract administration issues, as well as other questions by Authorized Users related to the day to day operation
and use of the Contract other than Product support. The toll free number must be available Monday through Friday on State
business days between the hours of 8 a.m. to 5 p.m., Eastern Time. The number shall be set forth in Appendix E (Submission
#2).
Contractor may additionally offer an online e-mail or Internet site for order tracking/delivery schedule information
for those customers who have electronic access.

C. Procedures for Updating Contract Price & Product Listings NOTE: THE FOLLOWING PROCEDURES
ARE NOT APPLICABLE TO CONTRACTOR PROPOSED CHANGES TO CONTRACT TERMS AND
CONDITIONS. Any implied or express request for changes in or additions to existing Contract terms and conditions,
including new terms and conditions associated with a specific Product line being added to the Contract for the first time,
requires a formal Contract amendment and requires the approval of OGS, the NYS Attorney General and the NYS
Comptroller. New or revised Contract terms and conditions are subject to the restrictions set forth in Appendix B, Section
40.

The following guidelines and Appendix D, Contract Update Form attached to this Contract are subject to change at the
discretion of OGS.

(1) TYPES OF CONTRACT UPDATES: In order to expedite processing of a change request, where proposed
changes involve more than one category below, they should be submitted to OGS as totally separate requests.

a) AUTO ADDS / DELETIONS – “Auto Adds/Deletions” are Contract changes and updates made in
accordance with the previously approved Contract pricing formula; e.g., a “discount from list” or pricing based on an
approved GSA-based price Schedule. “Auto Adds” do not include any price increases. “Auto Adds/Deletions”
include: i) adding new products within the established, previously approved pricing structure, ii) lowering pricing
for Products previously incorporated under the Contract, and iii) deleting Products previously incorporated under the
Contract. For categories (i) and (ii) Auto Adds: Contractor shall automatically update the Contract price list and
may proceed with selling Products without prior approval of either OGS or the Comptroller. Contractor should note,
however, that all “Auto Adds” approved by OGS are subject to a post audit by the Office of the State Comptroller.
For category (iii) Auto Deletions, at the end of and subject to the period specified in Appendix B, Clause 84
(“Changes in Product or Service Offerings”), Contractor may automatically update the Contract price list by deleting
the Product(s), without prior approval of either OGS or the Comptroller.
All “auto adds” must be immediately posted electronically by the Contractor at the Contract web site.

b) REGULAR ADD - “Regular Adds” are requests for i) price increases for Products which are already
incorporated under the Contract, and ii) addition of new products to the Contract which do not fall under the
previously established price structure or discounts for Product types previously approved under the Contract.
Regular Adds include rebundled Products or Services. Regular Adds must be submitted to OGS for prior approval,
and must be accompanied by a justification of reasonableness of price. Regular Adds are subject to pre-audit by the
Comptroller. If approved, OGS staff will notify Contractor in writing. Price increases or new product offerings may
not be electronically posted by Contractor until after receipt of OGS approval of the “Regular Add”.
When the Contract pricing is based on GSA prices, the revised prices or prices of new Products must reflect
current GSA prices adjusted as necessary for any additional discounts.

c) SPECIAL ADD – Contract changes and updates that do not fall within either of the above categories,
will be processed as “Special Adds”. Special Adds are changes that are not specifically covered by the terms of the
Contract but inclusion is found to be in the best interest of the State. Contractor must provide a justification of
reasonableness of the prices offered and a statement explaining why it is in the best interest of the State to approve
the new Products. Special Adds are subject to pre-audit by the Office of the State Comptroller. If approved, OGS
staff will notify Contractor in writing. New offerings may not be electronically posted by Contractor until after
receipt of OGS approval of the “Special Add”.

d) CHANGES IN RESELLER LIST - If the Contractor allows resellers to participate in the contract in
accordance with the Use of Resellers/Distributors clause of this Contract, requests to add or delete resellers or to
modify reseller information must be submitted for prior approval of the State. Contractor may request changes to the
designated Reseller List by submission of a completed, revised Appendix E, Submission # 2.

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 (2) CONTRACTOR’S SUBMISSION OF CONTRACT UPDATES: In connection with any Contract update,
OGS reserves the right to:
 request additional information
 reject Contract updates
 remove Products from Contracts
 remove Products from Contract updates
 request additional discounts for new or existing Products

(3) PRICE JUSTIFICATION – FORMAT: Contractor is required to submit the Product and price information for
the update in an Excel spreadsheet format in hard copy in triplicate and on a floppy disk or electronically via e-mail
to the OGS Purchasing Officer. The list must be dated and the format should be consistent with the format of the
price list(s) included in the NYS Net Price appendix of this Contract. The price list should separately include and
identify (e.g., by use of separate worksheets or by using italics, bold and/or color fonts):
 Price increases
 Products being added
The State reserves the right to require a revised NYS Net Price List at any time during the Contract period, and it
will be requested if there have been numerous updates since the last complete update. Each updated price list must
include the date the price list was prepared.

(4) SUPPORTING DOCUMENTATION: Each update request must include the current U.S. commercial price list
relevant to the Products included in the update. If the NYS Net Prices are based on a GSA Schedule, the current
GSA Schedule must also be included with the update request. Requested price increases not based on an approved
GSA schedule must also include a copy of the current National Consumer Price Index as described in the
“Payments/Pricing” section of the Contract.

(5) COVER LETTERS: A Contract update must be accompanied by three (3) copies of the Contract Update Form
set forth in Appendix E. Contractor should briefly describe the nature and purpose of the update (e.g., update
requested in order to reflect a recently approved GSA schedule, to restructure the pricing to its Licensees generally,
and/or for new Products or services which fall into a new group or category that did not exist at the time of approval
of the Contract by the New York State Comptroller, etc.). Each of the three copies of the Contract Update Form must
contain original signatures by an individual authorized to sign on behalf of Contractor, and an original corporate
acknowledgment (see below).

5. USE OF RE-SELLERS/DISTRIBUTORS
Contractor must provide service, sales and support staff to service Authorized Users geographically located at multiple
purchasing locations throughout New York State. Contractor shall insure that sufficient resources are available directly, or
through Resellers/Distributors to insure maximum service capability throughout the State. The State agrees to permit
Contractor to utilize approved, designated value added resellers (VARs), distributors and dealers (“Resellers”) to participate
as alternate distribution sources for Contractor. Such participation is subject to the following conditions:

A. Designation of Reseller(s): Contractor shall specify whether orders must be placed directly with Contractor, or
may be placed directly with designated Reseller(s). When Reseller(s) are submitted for approval, Contractor must provide the
State, in advance, with all necessary ordering, billing addresses and Federal Identification numbers in the format provided in
Appendix E (Submission #2).

B. Conditions of Participation: Reseller(s) must be approved in advance by the State as a condition of eligibility
under this section. The State also reserves the right to rescind any such participation or request that Contractor name
additional Resellers, in the best interests of the State, at the State’s sole discretion, at any time.
Contractor shall have the right to qualify Reseller(s) and their participation as fulfillment agents under this Contract
by product line, contracting program (i.e., government/educational sales), geographic region, size/sales volume, technical
training or other criteria (“qualifying criteria”), provided that: i) such qualifying criteria are uniformly applied to all potential
Resellers based upon Contractor’s established, neutrally applied commercial/governmental program criteria, and not to a
particular procurement; ii) all general categories of qualifying criteria must be disclosed by the Contractor to the State, in
advance, at the beginning of the Contract term, and iii) those qualifying criteria met by the Reseller must be identified on the
form provided in Appendix E (Submission #2) at the time that Reseller approval is requested under this paragraph; and iv)
immediate advance notice is provided to OGS in the event that a change in Reseller’s status occurs during the Contract term.
All Resellers who have been approved in accordance with the foregoing paragraph shall be eligible to quote lower
pricing for procurements under this Contract which meet their qualifying criteria. Except as otherwise set forth in Appendix
E (Submission #2), Contractor warrants and represents that it shall not, directly or indirectly, by agreement, communication
or any other means, restrict any Reseller’s participation or ability to quote a particular order.

C. Responsibility for Reporting/Performance: Contractor shall be fully liable for Reseller(s)’ performance and
compliance with all Contract terms and conditions. Product purchased through Reseller(s) must be reported by Contractor in
the required Semi-Annual Reports to the State as a condition of payment, and where applicable, to Third Party Developer(s)

05/08 5
in accordance with the reporting requirements of this Contract. In addition to inclusion of Reseller(s) volume in the
Contractor’s semi-annual reporting obligation to the State, at the request of Authorized User, Reseller(s) shall provide
Authorized User with semi-annual reports of the individual Authorized User’s Contract activity with Reseller.

D. Applicability of Contract Terms: Product ordered directly through Reseller(s) shall be limited to Products
previously approved for inclusion under this Contract and shall be subject to all terms and conditions of this Contract as a
condition of Reseller participation.

6. PAYMENTS/PRICING
Prices shall be calculated and paid in accordance with this section and Appendix E (Submission # 3) in effect at the time of
order placement. Pricing set forth in Appendix E (Submission # 3) includes all applicable documentation, media, shipping,
delivery and handling charges. (Hereinafter “NYS Net Price”) Contractor may, however, upon mutual agreement of the
Authorized User, negotiate more advantageous pricing for particular orders.

A. Travel, Meals & Lodging Unless expressly set forth to the contrary in Appendix E (Submission # 3), NYS net
prices set forth in the Contract shall be deemed inclusive of travel, meals and lodging, wherever applicable. Where travel,
meals and lodging are allowed over and above the NYS Net Prices, reimbursement to Contractor for such costs for employees
who do not reside in the local commuting area for the work site, shall be made in accordance with the State’s Travel
Reimbursement Manual published by the New York State Office of the State Comptroller. It will be the responsibility of the
Authorized User to provide Contractor the most recently published reimbursement guidelines and rates.

B. Subsequent Changes to Product Offerings All changes must be in accordance with the procedures set forth
below and require the advance approval of OGS.
(1) Adding New Products: Where future Products become commercially available during the Contract term and
are offered to New York State, the Contract may be updated to include such offerings.
(2) Deletion of Products: OGS reserves the right to delete any Product from the Contract at its discretion at any
time.
(3) Price Decreases: Shall be calculated in accordance with Appendix B, Clause 24.
(4) Price Increases: (Pricing not Benchmarked to GSA Supply Schedule) Additionally, where pricing
submitted for Products or services is not benchmarked to an approved GSA Supply Schedule:
a) First Twelve Months Fixed Pricing offered shall be fixed for the first twelve (12) months of the Contract term
from the date of Comptroller approval.
b) Price Increase Requests Contractor may thereafter request an increase in the pricing contained in Appendix
E a maximum of once in any twelve month period provided that Contractor certifies in writing that the price
change for Product applies to its U.S. Commercial Price List, and that Contractor documents the request to the
satisfaction of the State.
c) Escalation Cap Contractor has the sole responsibility to submit to OGS a rate adjustment request which must
include a copy of the index or other supporting documentation necessary to support the request. Such adjustment
shall in no event exceed the lesser of five (5%) percent or the percent increase in the latest copy of the “National
Consumer Price Index for All Urban Consumers (CPI-U)”, as published by the U.S. Department of Labor, Bureau
of Labor Statistics, Washington, D.C. 20212. In no event can prices exceed the Contractor’s published U.S.
Commercial List price.
d) Effective Date of Increase Price increases shall be effective upon final approval by the State, and may not be
posted on the Internet prior to receipt of final approval.

C. GSA Benchmarked Pricing Additionally, where the NYS Net Price is based upon an approved GSA Supply
Schedule:
(1) Associated Discounts The State is entitled to all associated discounts enumerated in the GSA Supply Schedule
(including, but not limited to, discounts for additional sites and volume discounts), as well as any other pricing or discount
terms as are expressly enumerated in this NYS Contract or GSA schedule, when calculating the NYS Net Price; and
(2) Industrial Funding Fee GSA pricing incorporates a sum referred to as the “GSA Industrial Funding Fee”. OGS
reserves the right to require either that: the IFF is remitted directly to OGS, or the state contract prices be reduced, by an
amount equivalent to the IFF. If the latter, the NYS Net Price shall be calculated by reducing the published GSA price, after
the discounts, if any, set forth in paragraph (1), above, downward by the amount of the Industrial Funding Fee, currently set
at .75%. Therefore, the “NYS Net Price” shall be calculated by multiplying 0.9925 times the GSA price, and
(3) Pricing Increases Price increases shall be effective upon final approval by the State, and may not be
electronically posted by Contractor prior to receipt of final approval.

D. Pricing for Machine or Platform Migrations Calculations of software pricing shall be based on the size of the
logical partition or, in the absence of partitions, machine size, on which the Software is installed and running, rather than the
size of the entire machine on which the partition is resident.
In the event of a machine migration, Licensee will not incur an increase in maintenance or additional license fees
provided that the total aggregate machine utilization by Licensee (i.e., MIPS, CPUs, or CPU partition(s), if the CPUs are
partitioned) on which the Licensed Product is newly installed and running does not exceed the previously licensed capacity, in
the aggregate.

05/08 6
 In the event of software migration involving aggregate utilization of a larger logical partition or, in the absence of
partition, larger machine capacity, or a different operating platform, a fee shall be paid to Licensor for the difference between
the then-current NYS Net Price for the original partition, machine capacity or operating system, and the then-current NYS
Net Price for the software on the new larger partition, machine group or operating system.

7. DISTRIBUTION OF CONTRACTOR PRICE LIST AND CONTRACT APPENDICES

Contractor shall bear the cost of and shall effect distribution of copies of the Contract, including price lists and appendices,
upon request. Contractor shall not, however, distribute Contract information unless OGS has approved it in advance.
Contractor shall also be required to furnish OGS with additional copies of the approved price lists (paper copy or diskette, at
the State’s discretion) upon request as may be necessary in the normal course of business.

7.1 CURRENT AGREEMENTS BETWEEN CONTRACTOR AND ELIGIBLE AUTHORIZED USERS

Eligible Authorized Users, including educational institutions of the State of New York, with independent contracts for
Contractor products and services may, at any time, convert any existing contract(s) with Contractor to participate under this
Contract and upon doing so shall have all rights of an “Authorized User", provided that notice of such migration shall be
forwarded to the Contractor.

Contractor has an affirmative responsibility to inform eligible Authorized Users, via e-mail or other formal communications,
of the terms, conditions and pricing of this Contract at the earliest opportunity after approval of this Contract by all parties.

8. INTERNET ACCESS TO CONTRACT & PRICING INFORMATION

Access by Authorized Users to Contract terms and pricing information may be made available and posted on the Internet. To
that end, the Contractor may be required to host the complete Contract pricing and Product offerings at Contractor’s Internet
site, at Contractor’s sole expense, including all subsequent changes in the Contract offerings (adds, deletes, price revisions)
during the Contract term, in accordance with the following requirements:

A. Warranty Contractor warrants and represents that Contract and related information will be accurately and
completely posted, maintained and displayed in an objective and timely manner which renders it clearly distinguishable from
other, non-Contract offerings at Contractor’s web site. Contractor shall indemnify the State and Contract users for damages
resulting from errors or inaccuracies in such information, or from any failure to maintain or timely post Contract information
in accordance with this paragraph.

B. Price Data Retention & Audit Information at web site should reflect the pricing information for the preceding
twelve month period. At the end of each twelve month period, the Contractor shall either electronically archive the
information at the web site in a manner which allows the State to access the information or electronically transmit the
information to the State. This does not relieve the Contractor from any audit requirements imposed by Appendix A, Clause
10, nor does it shorten the retention periods for information stated therein. In addition, annual audits of the information
posted at Contractor's web site may be conducted by OSC, or by an independent auditor at Contractor's expense.

C. Site Changes Contractor hereby consents to a link from the OGS web site to the Contractor’s web site in order
to facilitate access to Contract information. The establishment of the link is provided solely for convenience in carrying out
the business operations of the State, and OGS reserves the right to terminate or remove a link at any time, in its sole
discretion, without advance notice, or to deny a future request for a link. OGS will provide Contractor with subsequent notice
of link termination or removal. Contractor shall provide OGS with timely written notice of any change in URL or other
information needed to access the site and/or maintain the link.

D. Use of Access Data Prohibited If Contractor stores, collects or maintains data electronically as a condition of
accessing State Contract information, such data shall only be used internally by Contractor for the purpose of implementing
or marketing the State Contract, and shall not be disseminated to third parties or used for other marketing purposes. This
Contract constitutes a public document under the laws of the State of New York and Contractor cannot restrict access to the
Contract terms and conditions including pricing, i.e., through use of restrictive technology or passwords.

E. Responsibility for Content Contractor is solely responsible for administration, content, intellectual property
rights and all materials at Contractor’s web site. Contractor is solely responsible for its actions and those of its agents,
employees, resellers, subcontractors or assigns, and agrees that neither Contractor nor any of the foregoing has any authority
to act or speak on behalf of the State. Contractor agrees to comply with Office for Technology
(http://www.oft.state.ny.us/policy/p04-002/index.htm), Accessibility of State Agency Web-based Intranet and Internet
Information and Applications dated June 21, 2004, which requires that all New York State agencies’ web sites provide
universal accessibility to persons with disabilities. The State of New York has adopted the W3C Web Content Accessibility
Guidelines <http://www.w3.org/TR/WAI-WEBCONTENT/> as a means to provide optimal access to State agency web sites
and the content therein. The Contractor agrees to apply the most current version of these guidelines in the design, creation
and maintenance of its linked website. Contractor agrees that its Web content shall conform with level “A”, satisfying all
priority one checkpoints. In addition, Contractor agrees that its site will have a contact mechanism so individuals who might
have trouble accessing any portion of the site can report the problem. The Contractor agrees that the Web Accessibility

05/08 7
Guidelines and the checkpoints and guidelines referenced therein will be used in the development of all new pages and will
be the basis for bringing existing pages into compliance as required by the Office for Technology Policy 04-002.

F. On-line Price Configurator Contractor may be required to make available an on-line configurator at its
Contract web site. Directions and assistance in using the configurator and web site in general must be available at entry.
This configurator must enable Authorized Users to:
(1) view the options available for the type Product requested;
(2) search and find Products under the approved Contract list;
(3) calculate complete acquisition costs
Information about payment, shipping, delivery terms and special pricing should be available. Authorized Users should have
the option of printing their "shopping cart" choices; and for those users, who are positioned to use it, an option for on-line
secure ordering should also be available.

9. REPORTING/MONITORING CONTRACT PERFORMANCE

Contractor shall electronically provide the State with verified semi-annual reports in the format required by the State showing
the dollar volume of any and all sales under this Contract for the prior six-month period. Said report shall include a break
out of participation by individual Authorized Users, including State and non-State governmental entities and others
authorized by law. The Industrial Funding Fee payable to the New York State Office of General Services Finance Office will
also be due on the same schedule. Reports and Industrial Funding Fee payments shall be delivered within thirty (30) days of
the close of the semi-annual period. Semi-annual periods will end on December 31 st and June 30th. If the contract period
begins or ends in a fractional portion of a reporting period only the actual contract sales for this fractional period should be
reported in that semi-annual report. Similarly the Industrial Funding Fee payable to the New York State Office of General
Services Finance Office will only be due for the actual contract sales reported in that reporting period. The amount of the
Industrial Funding Fee Payment shall match the contract sales contained in the semi-annual report based on the percentage
established by the GSA. This percentage is currently set at .75%. In the event that a Contractor utilizes resellers, it is the
responsibility of Contractor to include all Contract revenues from these participants in the semi-annual report. Where third
party Product is offered and delivered under this Contract, Contractor shall be required to separately report such sales volume
on a semi-annual basis to the State.
The State shall have the right to verify said report and Industrial Funding Fee payments and to take any action(s)
necessary to enforce its rights under this paragraph, including but not limited to the right to stop payments until such reports
or Industrial Funding Fee payments are received, audit Contractor’s applicable Contract books, to substitute, in its sole
judgment, a good faith estimate of Contract usage upon failure of Contractor to deliver said report as required where pricing
is based upon aggregate volume, or to terminate the Contract for cause or seek other judicial relief. In the event the
contractor fails to submit reports the Industrial Funding Fee will become due based on the state's good faith estimate of sales.

10. TRAINING AND IMPLEMENTATION

Contractor is required at no extra charge to assist the Office of General Services and Authorized Users with training and
implementation in use of the Contract. Training shall be limited to that information necessary for Authorized Users to
properly understand contract terms and conditions, and pricing of products, etc. Any informational materials developed will
be subject to approval by OGS. Contractor and OGS will jointly implement use of materials.

05/08 8
11. ENTIRE AGREEMENT
This Contract and the referenced appendices constitute the entire agreement between the parties thereto and no statement,
promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not
contained herein shall be binding or valid and the Contract shall not be changed, modified or altered in any manner except by
an instrument in writing executed by both parties hereto, with the approval of the Attorney General and the Comptroller for
the State of New York. Licensees shall not have the authority to modify the terms of the Contract, except as to better terms
and pricing for a particular procurement than those set forth herein.

12. NOTICES
All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to
this Contract shall be in writing and shall be validly given when mailed by registered or certified mail, or hand delivered, (i)
if to the State, addressed to the State at its address set forth below, and (ii) if to Contractor, addressed to Contract
Administrator at the address set forth in Appendix G. The parties may from time to time, specify any address in the United
States as its address for purpose of notices under this Contract by giving fifteen (15) days written notice to the other party.
The parties agree to mutually designate individuals as their respective representatives for purposes of this Contract. The New
York State Contract Administrator for this Contract is:

_________________________
Procurement Services Group
38th Floor, Corning Tower
Empire State Plaza
Albany, New York 12242
Phone: (518) ______________
Fax: _________________
Email: __________________________

13. CAPTIONS
The captions contained in this Contract are intended for convenience and reference purposes only and shall in no way be
deemed to define or limit any provision thereof.

14. SEVERABILITY
If any provision of this Contract is deemed invalid or unenforceable, such determination shall have no effect on the balance of
the Contract, which shall be enforced and interpreted as if such provision was never included in the Contract.

15. DISPUTE RESOLUTION POLICY

It is the policy of the Office of General Services Procurement Services Group (PSG) to provide vendors with an opportunity to
administratively resolve disputes, complaints or inquiries related to PSG bid solicitations or contract awards. PSG encourages
vendors to seek resolution of disputes through consultation with PSG staff. All such matters will be accorded impartial and
timely consideration. Interested parties may also file formal written disputes. A copy of PSG's Dispute Resolution Procedures
for Vendors may be obtained by contacting the person shown above under "Notices" or through the OGS website
(www.ogs.ny.gov).

05/08 9
IN WITNESS WHEREOF, the parties therefore hereby execute their mutual agreement to the terms of this Contract . This
agreement shall be executed and shall be a binding Contract between the parties as set forth in Appendix B, Clause 38. The
State further warrants that, where Contractor is asked to execute multiple original copies of this signature page along with a
complete original copy of the Contract, the approved signature page(s) will be affixed by the State, upon final approval by the
NYS Comptroller, to additional copies of this Contract which conform exactly to the complete original copy as submitted by
Contractor and executed simultaneously therewith.

The acknowledgment must be fully and properly executed by an authorized person. By signing you certify your
express authority to sign on behalf of yourself, your company, or other entity and full knowledge and acceptance of this
agreement, Appendix A (Standard Clauses For New York State Contracts), Appendix B (OGS General Specifications),
and State Finance Law §139-j and §139-k (Procurement Lobbying), and that all information provided is complete, true
and accurate. By signing, bidder affirms that it understands and agrees to comply with the OGS procedures relative to
permissible contacts as required by State Finance Law §139-j (3) and §139-j (6) (b).

CONTRACTOR THE PEOPLE OF THE STATE OF NEW YORK

By:____________________________________ By:_______________________________________
Name: Name:
Title: Title:
Contractor Firm Name: Office of General Services
Federal Tax Identification #:

APPROVED AS TO FORM APPROVED

ERIC T. SCHNEIDERMAN THOMAS P. DINAPOLI
New York State Attorney General New York State Comptroller

CORPORATE ACKNOWLEDGMENT

STATE OF 
: ss.:
COUNTY OF 

On the _____________ day of ______________________in the year _____ , before me personally

came: _______________________________________________________________, to me known, who, being by me
duly sworn, did depose and say that he/she/they reside(s) in _________________________; that he/she/they is (are)
_____________________________________________ (the President or other officer or director or attorney in fact duly
appointed) of ___________________________________________, the corporation described in and which executed the
above instrument; and that he/she/they signed his/her/their name(s) thereto by authority of the board of directors of said
corporation.

________________________________________________
Notary Public

05/08 10
 Appendix 1
{Revised: December 2006}

New York State

Standard Vendor Responsibility Questionnaire
(Use the Uniform Contracting Questionnaire CCA-1, for all construction contracts)

Each Contracting Agency conducts a review of prospective contractors (“vendors”) to provide reasonable
assurances that the vendor is responsible. This questionnaire is used for all non-construction contracts with a contract
value of $100,000.00 or more and is designed to provide information to assess a vendor’s authorization to do
business in New York State, as well as your business integrity, financial and organizational capacity, and
performance history. (Review of construction contractors will be based upon the Uniform Contracting Questionnaire
developed by the Council of Contracting Agencies.)

Each vendor must answer every question contained in this questionnaire. Where a response requires additional
information, the vendor must attach a written response that adequately details the requested information. Please
number each response to match the question number. The completed questionnaire and attached responses will
become part of the procurement record.

In order to expedite the required review, when providing additional information for a “YES” answer to
Questions 14 a-s, or any other response which requires additional explanation, your information and responses
should address the relationship of the issue to the proposed contract. Be brief, concise and to the point. Discuss as
appropriate the following:

 Provide a description of the issue and identify the actions taken or currently being implemented to ensure that
the issue will not occur again.
 State whether the staff and/or organizational component involved in the identified issue(s) will work on the
proposed contract. If so, provide information to assure the agency that the issue will not be repeated.
 Identify the relationship (or lack thereof) between the product/services involved in the issue and the type of
product/services proposed for this contract.
 State whether the issue will affect your financial or organizational ability to perform under the proposed
contract.
 Provide copies of relevant documents or any other information that would assist the agency in its vendor
responsibility evaluation.

It is imperative that the person completing the vendor responsibility questionnaire be knowledgeable about the
proposing vendor’s business and operations, as an owner or officer of the vendor must attest to the questionnaire
information. Please be advised that at the end of this questionnaire, you must certify, under oath, all responses given.

05/08 11
 New York State
Standard Vendor Responsibility Questionnaire
1. LEGAL BUSINESS NAME:

2. FEDERAL EMPLOYER ID NO. (FEIN):

3. D/B/A — Doing Business As (if applicable):

COUNTY FILED:

4. WEBSITE ADDRESS (if applicable):

5. PRINCIPAL PLACE OF BUSINESS ADDRESS:

6. TELEPHONE NUMBER: _________________________ 7. FAX NUMBER:

8. AUTHORIZED CONTACT FOR THIS QUESTIONNAIRE:

Name:
Title:
Telephone Number: Fax Number:
E-mail:
9. TYPE OF BUSINESS: (please check appropriate box and provide additional information)
a) Corporation State of Incorporation:
b) Sole Proprietor State/County filed in:
c) General Partnership State/County filed in:
d) Not-for-Profit Corporation Charities Registration Number:
e) Limited Liability Company (LLC) Jurisdiction filed:
f) Limited Partnership State/County filed in
g) Other — Specify: Jurisdiction Filed (if applicable)

10. IF NOT INCORPORATED OR FORMED IN NEW YORK STATE, PLEASE PROVIDE A CURRENT CERTIFICATE
OF GOOD STANDING FROM YOUR STATE OR APPLICABLE LOCAL JURISDICTION.

11. LIST NAME AND TITLE OF EACH PRINCIPAL, OWNER, OFFICER, MAJOR STOCKHOLDER (10% OR MORE
OF THE VOTING SHARES FOR PUBLICLY TRADED COMPANIES, 25% OR MORE OF THE SHARES FOR ALL
OTHER COMPANIES), DIRECTOR AND MEMBER, as applicable:
a)
b)
c)
d)
e)
f)
g)
h)

12. AUTHORIZED CONTACT FOR THE PROPOSED CONTRACT:

Name:
Title:
Telephone Number: Fax Number:
E-mail:

05/08 12
 New York State
Standard Vendor Responsibility Questionnaire

VENDOR FEIN:

13. DOES THE VENDOR USE, OR HAS IT USED IN THE PAST FIVE (5) YEARS, ANY
OTHER BUSINESS NAME, FEIN, OR D/B/A OTHER THAN WHAT IS LISTED IN
QUESTIONS 1-3 ABOVE? Yes No
If yes, provide the name(s), FEIN(s) and d/b/a(s) and the address for each such
company and d/b/a on a separate piece of paper and attach to this response.

14. WITHIN THE PAST FIVE (5) YEARS, HAS THE VENDOR, ANY PRINCIPAL, OWNER, OFFICER, MAJOR
STOCKHOLDER (10% OR MORE OF THE VOTING SHARES FOR PUBLICLY TRADED COMPANIES, 25% OR
MORE OF THE SHARES FOR ALL OTHER COMPANIES), AFFILIATE 1 OR ANY PERSON INVOLVED IN THE
BIDDING, CONTRACTING OR LEASING PROCESS BEEN THE SUBJECT OF ANY OF THE FOLLOWING:
(a) a judgment or conviction for any business related conduct constituting a crime
under federal, state or local government law including, but not limited to, fraud,
extortion, bribery, racketeering, price-fixing or bid collusion or any crime related to
truthfulness and/or business conduct? Yes No
(b) a criminal investigation or indictment for any business related conduct constituting
a crime under federal, state or local government law including, but not limited to,
fraud, extortion, bribery, racketeering, price-fixing or bid collusion or any crime
related to truthfulness and/or business conduct? Yes No
(c) an unsatisfied judgment, injunction or lien for any business related conduct
obtained by any federal, state or local government agency including, but not limited
to, judgments based on taxes owed and fines and penalties assessed by any federal,
state or local government agency? Yes No
(d) an investigation for a civil or criminal violation for any business related conduct by
any federal, state or local agency? Yes No
(e) a grant of immunity for any business-related conduct constituting a crime under
federal, state or local governmental law including, but not limited to, fraud,
extortion, bribery, racketeering, price-fixing, bid collusion or any crime related to
truthfulness and/or business conduct? Yes No
(f) a federal, state or local government suspension or debarment from the contracting
process? Yes No
(g) a federal, state or local government contract suspension or termination for cause
prior to the completion of the term of a contract? Yes No
(h) a federal, state or local government denial of a lease or contract award for non-
responsibility? Yes No
(i) an administrative proceeding or civil action seeking specific performance or
restitution in connection with any federal, state or local contract or lease? Yes No
1
"Affiliate"meaning: (a) any entity in which the vendor owns more than 50% of the voting stock; (b) any individual, entity or
group of principal owners or officers who own more than 50% of the voting stock of the vendor; or (c) any entity whose
voting stock is more than 50% owned by the same individual, entity or group described in clause (b). In addition, if a vendor
owns less than 50% of the voting stock of another entity, but directs or has the right to direct such entity’s daily operations,
that entity will be an “affiliate” for purposes of this questionnaire.

05/08 13
 New York State
Standard Vendor Responsibility Questionnaire

VENDOR FEIN:

(j) a federal, state or local determination of a willful violation of any public works or
labor law or regulation? Yes No
(k) a sanction imposed as a result of judicial or administrative proceedings relative to
any business or professional license? Yes No
(l) a consent order with the New York State Department of Environmental
Conservation, or a federal, state or local government enforcement determination
involving a violation of federal, state or local laws? Yes No
(m) an Occupational Safety and Health Act citation and Notification of Penalty
containing a violation classified as serious or willful? Yes No
(n) a rejection of a bid on a New York State contract or a lease with the State for
failure to comply with the MacBride Fair Employment Principles? Yes No
(o) a citation, violation order, pending administrative hearing or proceeding or
determination issued by a federal, state or local government for violations of: Yes No
- health laws, rules or regulations Yes No
- unemployment insurance or workers’ compensation coverage or claim
requirements Yes No
- ERISA (Employee Retirement Income Security Act) Yes No
- human rights laws Yes No
- federal U.S. Citizenship and Immigration Services laws Yes No
- Sherman Act or other federal anti-trust laws Yes No
(p) entered into an agreement to a voluntary exclusion from contracting with a federal,
state or local governmental entity? Yes No
(q) a denial, decertification, revocation or forfeiture of Women’s Business Enterprise,
Minority Business Enterprise or Disadvantaged Business Enterprise status? Yes No
(r) a rejection of a low bid on a federal, state or local contract for failure to meet
statutory affirmative action or Minority or Women's Business Enterprise or
Disadvantaged Business Enterprise status requirements on a previously held
contract? Yes No
(s) a finding of non-responsibility by an agency or authority due to a violation of State
Finance Law §139-j? Yes No

FOR EACH YES ANSWER TO QUESTIONS 14 a-s, PROVIDE DETAILS ON ADDITIONAL SHEETS REGARDING
THE FINDING, INCLUDING BUT NOT LIMITED TO CAUSE, CURRENT STATUS, RESOLUTION, ETC.

15. DURING THE PAST THREE YEARS, HAS THE VENDOR FAILED TO:
(a) FILE RETURNS OR PAY ANY APPLICABLE FEDERAL, STATE OR LOCAL
GOVERNMENT TAXES? Yes No
If yes, identify the taxing jurisdiction, type of tax, liability year(s) and tax liability amount the company failed to file/pay
and the current status of the liability:

(b) FILE RETURNS OR PAY NEW YORK STATE UNEMPLOYMENT

INSURANCE? Yes No
If yes, indicate the years the company failed to file/pay the insurance and the current status of the liability:

05/08 14
 New York State
Standard Vendor Responsibility Questionnaire

VENDOR FEIN:

16. HAVE ANY BANKRUPTCY PROCEEDINGS BEEN INITIATED BY OR AGAINST

THE VENDOR OR ITS AFFILIATES WITHIN THE PAST SEVEN YEARS
(WHETHER OR NOT CLOSED) OR IS ANY BANKRUPTCY PROCEEDING
PENDING BY OR AGAINST THE VENDOR OR ITS AFFILIATES, REGARDLESS
OF THE DATE OF FILING? Yes No

If yes, indicate if this is applicable to the submitting vendor or one of its affiliates:
If it is an affiliate, include the affiliate’s name and
FEIN:
Provide the court name, address and docket number:
Indicate if the proceedings have been initiated, remain pending or have been closed:
If closed, provide the date closed:

17. DOES VENDOR HAVE THE FINANCIAL RESOURCES NECESSARY TO FULFILL

THE REQUIREMENTS OF THE PROPOSED CONTRACT? Yes No

05/08 15
 New York State
Standard Vendor Responsibility Questionnaire

VENDOR FEIN:

State of )
) ss:
County of )

CERTIFICATION:

The undersigned, personally and on behalf of the vendor identified in questions 1-3
above, does hereby state and certify to the New York State Office of General Services that
the information given above is true, accurate and complete. It is further acknowledged that
the State of New York and the Office of General Services will rely upon the information
contained herein and in any attached pages for purposes of evaluating our company for
vendor's responsibility for contract award and the State may, in its discretion, by means
which it may choose, verify the truth and accuracy of all statements made herein. It is
further acknowledged that intentional submission of false or misleading information may
constitute a felony under Penal Law Section 175.35 or may constitute a misdemeanor under
Penal Law Sections 175.30, 210.35 or 210.45, and may also be punishable by a fine and/or
imprisonment of up to five years under 18 USC Section 1001 and may result in contract
termination.

Name of Business Signature of Officer

Address Typed Copy of Signature

City, State, Zip Title

Sworn to before me this

day of ____________ 20 .

Notary Public:
Registration No:
State:

05/08 16
 Appendix 2
New York State Department of Taxation and Finance

Contractor Certification (ST-220-TD) {Updated 01/08}

Contractor Certification to Covered Agency (ST-220-CA)
 New York State Department of Taxation and Finance ST-220-TD
(5/07)
Contractor Certification
(Pursuant to Section 5-a of the Tax Law, as amended, effective April 26, 2006)

For information, consult Publication 223, Question and Answers Concerning Tax Law Section 5-a (see Need help? below).
Contractor name

Contractor’s principal place of business City State ZIP code

Contractor’s mailing address (if different than above)

Contractor's federal employer identification number (EIN) Contractor's sales tax ID number (if different from contractor's EIN) Contractor's telephone number

( )
Covered agency name Contract number or description Estimated contract value over the full term of the
OGS PSG contract
(but not including renewals) $ N/A
Covered agency address Covered agency telephone number
Corning Tower, The Governor Nelson A. Rockefeller Plaza, Albany, NY 12242

General information Privacy notification

Section 5-a of the Tax Law, as amended, effective April 26, 2006, The Commissioner of Taxation and Finance may collect and maintain personal
requires certain contractors awarded certain state contracts valued at information pursuant to the New York State Tax Law, including but not limited to,
more than $100,000 to certify to the Tax Department that they are sections 5-a, 171, 171-a, 287, 308, 429, 475, 505, 697, 1096, 1142, and 1415 of
registered to collect New York State and local sales and compensating that Law; and may require disclosure of social security numbers pursuant to 42
use taxes, if they made sales delivered by any means to locations within USC 405(c)(2)(C)(i).
New York State of tangible personal property or taxable services having
a cumulative value in excess of $300,000, measured over a specified This information will be used to determine and administer tax liabilities and, when
period. In addition, contractors must certify to the Tax Department that authorized by law, for certain tax offset and exchange of tax information programs
each affiliate and subcontractor exceeding such sales threshold during a as well as for any other lawful purpose.
specified period is registered to collect New York State and local sales
and compensating use taxes. Contractors must also file a Form ST-220- Information concerning quarterly wages paid to employees is provided to certain
CA, certifying to the procuring state entity that they filed Form ST-220- state agencies for purposes of fraud prevention, support enforcement, evaluation of
TD with the Tax Department and that the information contained on Form the effectiveness of certain employment and training programs and other purposes
ST-220-TD is correct and complete as of the date they file Form ST-220- authorized by law.
CA.
Failure to provide the required information may subject you to civil or criminal
All sections must be completed including all fields on the top of this penalties, or both, under the Tax Law.
page, all sections on page 2, Schedule A on page 3, if applicable, and
Individual, Corporation, Partnership, or LLC Acknowledgement on page This information is maintained by the Director of Records Management and Data
4. If you do not complete these areas, the form will be returned to you Entry, NYS Tax Department, W A Harriman Campus, Albany NY 12227.
for completion.
For more detailed information regarding this form and section 5-a of the Need Help?
Tax Law, see Publication 223, Questions and Answers Concerning Tax Internet access: www.nystax.gov
Law Section 5-a, (as amended, effective April 26, 2006), available at (for information, forms, and publications)
www.nystax.gov. Information is also available by calling the Tax Fax-on-demand forms: 1 800 748-3676
Department’s Contractor Information Center at 1 800 698-2931.

Note: Form ST-220-TD must be signed by a person authorized to make Telephone assistance is available from
the certification on behalf of the contractor, and the acknowledgement on 8:00 A.M. to 5:00 P.M. (eastern time),
page 4 of this form must be completed before a notary public. Monday through Friday.
To order forms and publications: 1 800 462-8100
Mail completed form to:
Sales Tax Information Center: 1 800 698-2909
NYS TAX DEPARTMENT
DATA ENTRY SECTION From areas outside the U.S. and outside Canada: (518) 485-6800
W A HARRIMAN CAMPUS Hearing and speech impaired (telecommunications device for the
ALBANY NY 12227 deaf (TDD) callers only): 1 800 634-2110

Persons with disabilities: In compliance with the Americans with

Disabilities Act, we will ensure that our lobbies, offices, meeting rooms,
and other facilities are accessible to persons with disabilities. If you have
questions about special accommodations for persons with disabilities,
please call 1 800 972-1233.
Page 2 of 4 ST-220-TD (5/07)

I, ____________________________ , hereby affirm, under penalty of perjury, that I am ______________________

(name) ( title)
of the above-named contractor, and that I am authorized to make this certification on behalf of such contractor.

Complete Sections 1, 2, 3 below. Make only one entry in each section below.

Section 1 - Contractor registration status

The contractor has made sales delivered by any means to locations within New York State of
tangible personal property or taxable services having a cumulative value in excess of $300,000
during the four sales tax quarters which immediately precede the sales tax quarter in which this
certification is made. The contractor is registered to collect New York State and local sales and
compensating use taxes with the Commissioner of Taxation and Finance pursuant to sections
1134 and 1253 of the Tax Law, and is listed on Schedule A of this certification.

The contractor has not made sales delivered by any means to locations within New York State of
tangible personal property or taxable services having a cumulative value in excess of $300,000
during the four sales tax quarters which immediately precede the sales tax quarter in which this
certification is made.

Section 2 - Affiliate registration status

The contractor does not have any affiliates.

To the best of the contractor’s knowledge, the contractor has one or more affiliates having made
sales delivered by any means to locations within New York State of tangible personal property or
taxable services having a cumulative value in excess of $300,000 during the four sales tax
quarters which immediately precede the sales tax quarter in which this certification is made, and
each affiliate exceeding the $300,000 cumulative sales threshold during such quarters is
registered to collect New York State and local sales and compensating use taxes with the
Commissioner of Taxation and Finance pursuant to sections 1134 and 1253 of the Tax Law. The
contractor has listed each affiliate exceeding the $300,000 cumulative sales threshold during
such quarters on Schedule A of this certification.

To the best of the contractor’s knowledge, the contractor has one or more affiliates, and each
affiliate has not made sales delivered by any means to locations within New York State of
tangible personal property or taxable services having a cumulative value in excess of $300,000
during the four sales tax quarters which immediately precede the sales tax quarter in which this
certification is made.

Section 3 - Subcontractor registration status

The contractor does not have any subcontractors.

To the best of the contractor’s knowledge, the contractor has one or more subcontractors having
made sales delivered by any means to locations within New York State of tangible personal
property or taxable services having a cumulative value in excess of $300,000 during the four sales
tax quarters which immediately precede the sales tax quarter in which this certification is made,
and each subcontractor exceeding the $300,000 cumulative sales threshold during such quarters
is registered to collect New York State and local sales and compensating use taxes with the
Commissioner of Taxation and Finance pursuant to sections 1134 and 1253 of the Tax Law. The
contractor has listed each subcontractor exceeding the $300,000 cumulative sales threshold
during such quarters on Schedule A of this certification.

To the best of the contractor’s knowledge, the contractor has one or more subcontractors, and
each subcontractor has not made sales delivered by any means to locations within New York
State of tangible personal property or taxable services having a cumulative value in excess of
$300,000 during the four sales tax quarters which immediately precede the sales tax quarter in
which this certification is made.

Sworn to this______ day of _________, 20 ____

(sign before a notary public) (title)
 ST-220-TD (5/07) Page 3 of 4

Schedule A - Listing of each entity (contractor, affiliate, or subcontractor) exceeding $300,000 cumulative sales
threshold

List the contractor, or affiliate, or subcontractor in Schedule A only if such entity exceeded the
$300,000 cumulative sales threshold during the specified sales tax quarters. See directions below. For
more information, see Publication 223.

A B C D E F
Relationship to Name Address Federal ID Sales Tax ID Number Registration
Contractor Number In Progress

Column A - Enter C in column A if the contractor; A if an affiliate of the contractor; or S if a subcontractor.

Column B - Name - If the entity is a corporation or limited liability company, enter the exact legal name as registered
with the NY Department of State, if applicable. If the entity is a partnership or sole proprietor, enter the
name of the partnership and each partner’s given name, or the given name(s) of the owner(s), as applicable.
If the entity has a different DBA (doing business as) name, enter that name as well.

Column C - Address - Enter the street address of the entity’s principal place of business. Do not enter a PO box.

Column D - ID number - Enter the federal employer identification number (EIN) assigned to the entity. If the entity is an
individual, enter the social security number of that person.

Column E - Sales tax ID number - Enter only if different from federal EIN in column D.

Column F - If applicable, enter an X if the entity has submitted Form DTF-17 to the Tax Department but has not received
its certificate of authority as of the date of this certification.
Page 4 of 4 ST-220-TD (5/07)

Individual, Corporation, Partnership, or LLC Acknowledgment

STATE OF }
: SS.:
COUNTY OF }

On the ______ day of _________ in the year 20___, before me personally appeared
known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that

_he resides at ,
Town of ,
County of ,
State of ; and further that:

[Mark an X in the appropriate box and complete the accompanying statement.]

(If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.

(If a corporation): _he is the

of , the corporation described in said instrument; that, by authority of the Board of
Directors of said corporation, _he is authorized to execute the foregoing instrument on behalf of the corporation for
purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name of and
on behalf of said corporation as the act and deed of said corporation.

(If a partnership): _he is a

of , the partnership described in said instrument; that, by the terms of said
partnership, _he is authorized to execute the foregoing instrument on behalf of the partnership for purposes set forth
therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said
partnership as the act and deed of said partnership.

(If a limited liability company): _he is a duly authorized member of LLC,

the limited liability company described in said instrument; that _he is authorized to execute the foregoing instrument on
behalf of the limited liability company for purposes set forth therein; and that, pursuant to that authority, _he executed
the foregoing instrument in the name of and on behalf of said limited liability company as the act and deed of said
limited liability company.

Notary Public

Registration No.
 ST-220-CA
(6/06)
New York State Department of Taxation and Finance

Contractor Certification to Covered Agency

(Pursuant to Section 5-a of the Tax Law, as amended, effective April 26, 2006)

For information, consult Publication 223, Question and Answers Concerning Tax Law Section 5-a (see Need Help? on back) .
Contractor name For covered agency use only Contract
number or description

Contractor’s principal place of business City State ZIP code

Contractor’s mailing address (if different than above) Estimated contract value over the full term
of contract (but not including renewals)
Contractor's federal employer identification number (EIN) Contractor's sales tax ID number (if different from contractor's EIN)

$
Contractor's telephone number Covered agency name

( )
Covered agency address Covered agency telephone number

I, ________________________________ , hereby affirm, under penalty of perjury, that I am ______________________________

(name) (title)
of the above-named contractor, that I am authorized to make this certification on behalf of such contractor, and I further certify that:
(Mark an X in only one box)

The contractor has filed Form ST-220-TD with the Department of Taxation and Finance in connection with this contract and, to the
best of contractor’s knowledge, the information provided on the Form ST-220-TD, is correct and complete.
The contractor has previously filed Form ST-220-TD with the Tax Department in connection with
(insert contract number or description)
and, to the best of the contractor’s knowledge, the information provided on that previously filed Form T-220-TD, is correct and
complete as of the current date, and thus the contractor is not required to file a new Form ST-220-TD at this time.
Sworn to this______ day of _________, 20 ____

(sign before a notary public) (title)

Instructions
General Information Note: Form ST-220-CA must be signed by a person authorized to
Tax Law section 5-a was amended, effective April 26, 2006. On or make the certification on behalf of the contractor, and the
after that date, in all cases where a contract is subject to Tax acknowledgement on page 2 of this form must be completed
Law section 5-a, a contractor must file (1) Form ST-220-CA, before a notary public.
Contractor Certification to Covered Agency, with a covered agency,
and (2) Form ST-220-TD with the Tax Department before a When to complete this form
contract may take effect. The circumstances when a contract is As set forth in Publication 223, a contract is subject to section
subject to section 5-a are listed in Publication 223, Q&A 3. This 5-a, and you must make the required certification(s), if:
publication is available on our Web site, by fax, or by mail. (See
Need help? for more information on how to obtain this i. The procuring entity is a covered agency within the meaning
publication.) In addition, a contractor must file a new Form ST- of the statute (see Publication 223, Q&A 5);
220-CA with a covered agency before an existing contract with
such agency may be renewed. ii. The contractor is a contractor within the meaning of the
statute (see Publication 223, Q&A 6); and
If you have questions, please call our information center at 1
800 698-2931. iii. The contract is a contract within the meaning of the statute.
This is the case when it (a) has a value in excess of
$100,000 and (b) is a contract for commodities or services, as
such terms are defined for purposes of the statute (see
Publication 223, Q&A 8 and 9).

Furthermore, the procuring entity must have begun the

solicitation to purchase on or after January 1, 2005, and the
resulting contract must have been awarded, amended, extended,
renewed, or assigned on or after April 26, 2006 (the effective date
of the section 5-a amendments).
Page 2 of 2 ST-220-CA (6/06)

Individual, Corporation, Partnership, or LLC Acknowledgment

STATE OF }
: SS.:
COUNTY OF }

On the day ______ of _________ in the year 20___, before me personally appeared
known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that

_he resides at ,

Town of ,

County of ,

State of ; and further that:

[Mark an X in the appropriate box and complete the accompanying statement.]

(If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.

(If a corporation): _he is the

of , the corporation described in said instrument; that, by authority of the Board of Directors of
said corporation, _he is authorized to execute the foregoing instrument on behalf of the corporation for purposes set forth therein; and
that, pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said corporation as the act and
deed of said corporation.

(If a partnership): _he is the

of , the partnership described in said instrument; that, by the terms of said partnership, _he is
authorized to execute the foregoing instrument on behalf of the partnership for purposes set forth therein; and that, pursuant to that
authority, _he executed the foregoing instrument in the name of and on behalf of said partnership as the act and deed of said
partnership.

(If a limited liability company): _he is a duly authorized member of LLC, the limited
liability company described in said instrument; that _he is authorized to execute the foregoing instrument on behalf of the limited
liability company for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name
of and on behalf of said limited liability company as the act and deed of said limited liability company.

Notary Public

Registration No.

Privacy notification Need Help?

The Commissioner of Taxation and Finance may collect and maintain personal information Internet access: www.nystax.gov
pursuant to the New York State Tax Law, including but not limited to, sections 5-a, 171, 171- (for information, forms, and publications)
a, 287, 308, 429, 475, 505, 697, 1096, 1142, and 1415 of that Law; and may require
disclosure of social security numbers pursuant to 42 USC 405(c)(2)(C)(i). Fax-on-demand forms: 1 800 748-3676
This information will be used to determine and administer tax liabilities and, when
authorized by law, for certain tax offset and exchange of tax information programs as well
as for any other lawful purpose. Telephone assistance is available from
8:00 A.M. to 5:00 P.M. (eastern time),
Information concerning quarterly wages paid to employees is provided to certain state Monday through Friday. 1 800 698-2931
agencies for purposes of fraud prevention, support enforcement, evaluation of the
effectiveness of certain employment and training programs and other purposes authorized To order forms and publications: 1 800 462-8100
by law.
From areas outside the U.S. and outside Canada: (518) 485-6800
Failure to provide the required information may subject you to civil or criminal penalties, or
both, under the Tax Law. Hearing and speech impaired (telecommunications device for the
deaf (TDD) callers only): 1 800 634-2110
This information is maintained by the Director of Records
Management and Data Entry, NYS Tax Department, W A Harriman Persons with disabilities: In compliance with the Americans with
Campus, Albany NY 12227; telephone 1 800 225-5829. From areas Disabilities Act, we will ensure that our lobbies, offices, meeting rooms,
outside the United States and outside Canada, call (518) 485-6800. and other facilities are accessible to persons with disabilities. If you have
questions about special accommodations for persons with disabilities,
please call 1 800 972-1233.
 APPENDIX A

STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS

PLEASE RETAIN THIS DOCUMENT

FOR FUTURE REFERENCE.

June, 2011
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

TABLE OF CONTENTS

Page

1. Executory Clause 3
2. Non-Assignment Clause 3
3. Comptroller’s Approval 3
4. Workers’ Compensation Benefits 3
5. Non-Discrimination Requirements 3
6. Wage and Hours Provisions 3
7. Non-Collusive Bidding Certification 4
8. International Boycott Prohibition 4
9. Set-Off Rights 4
10. Records 4
11. Identifying Information and Privacy Notification 4
12. Equal Employment Opportunities For Minorities and Women 4-5
13. Conflicting Terms 5
14. Governing Law 5
15. Late Payment 5
16. No Arbitration 5
17. Service of Process 5
18. Prohibition on Purchase of Tropical Hardwoods 5-6
19. MacBride Fair Employment Principles 6
20. Omnibus Procurement Act of 1992 6
21. Reciprocity and Sanctions Provisions 6
22. Compliance with New York State Information Security Breach and Notification Act 6
23. Compliance with Consultant Disclosure Law 6
24. Procurement Lobbying 7
25. Certification of Registration to Collect Sales and Compensating Use Tax by Certain 7
State Contractors, Affiliates and Subcontractors

Page 27
June, 2011
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

Page 28
June, 2011
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

STANDARD CLAUSES FOR NYS CONTRACTS Contractor will not discriminate against any employee or
applicant for employment because of race, creed, color, sex,
The parties to the attached contract, license, lease, amendment national origin, sexual orientation, age, disability, genetic
or other agreement of any kind (hereinafter, "the contract" or predisposition or carrier status, or marital status. Furthermore,
"this contract") agree to be bound by the following clauses in accordance with Section 220-e of the Labor Law, if this is a
which are hereby made a part of the contract (the word contract for the construction, alteration or repair of any public
"Contractor" herein refers to any party other than the State, building or public work or for the manufacture, sale or
whether a contractor, licenser, licensee, lessor, lessee or any distribution of materials, equipment or supplies, and to the
other party): extent that this contract shall be performed within the State of
New York, Contractor agrees that neither it nor its
1. EXECUTORY CLAUSE. In accordance with Section 41 of subcontractors shall, by reason of race, creed, color, disability,
the State Finance Law, the State shall have no liability under sex, or national origin: (a) discriminate in hiring against any
this contract to the Contractor or to anyone else beyond funds New York State citizen who is qualified and available to perform
appropriated and available for this contract. the work; or (b) discriminate against or intimidate any employee
hired for the performance of work under this contract. If this is
2. NON-ASSIGNMENT CLAUSE. In accordance with a building service contract as defined in Section 230 of the
Section 138 of the State Finance Law, this contract may not be Labor Law, then, in accordance with Section 239 thereof,
assigned by the Contractor or its right, title or interest therein Contractor agrees that neither it nor its subcontractors shall by
assigned, transferred, conveyed, sublet or otherwise disposed of reason of race, creed, color, national origin, age, sex or
without the State’s previous written consent, and attempts to do disability: (a) discriminate in hiring against any New York State
so are null and void. Notwithstanding the foregoing, such prior citizen who is qualified and available to perform the work; or (b)
written consent of an assignment of a contract let pursuant to discriminate against or intimidate any employee hired for the
Article XI of the State Finance Law may be waived at the performance of work under this contract. Contractor is subject
discretion of the contracting agency and with the concurrence of to fines of $50.00 per person per day for any violation of Section
the State Comptroller where the original contract was subject to 220-e or Section 239 as well as possible termination of this
the State Comptroller’s approval, where the assignment is due to contract and forfeiture of all moneys due hereunder for a second
a reorganization, merger or consolidation of the Contractor’s or subsequent violation.
business entity or enterprise. The State retains its right to
approve an assignment and to require that any Contractor 6. WAGE AND HOURS PROVISIONS. If this is a public
demonstrate its responsibility to do business with the State. The work contract covered by Article 8 of the Labor Law or a
Contractor may, however, assign its right to receive payments building service contract covered by Article 9 thereof, neither
without the State’s prior written consent unless this contract Contractor's employees nor the employees of its subcontractors
concerns Certificates of Participation pursuant to Article 5-A of may be required or permitted to work more than the number of
the State Finance Law. hours or days stated in said statutes, except as otherwise
provided in the Labor Law and as set forth in prevailing wage
3. COMPTROLLER'S APPROVAL. In accordance with and supplement schedules issued by the State Labor Department.
Section 112 of the State Finance Law (or, if this contract is with Furthermore, Contractor and its subcontractors must pay at least
the State University or City University of New York, Section 355 the prevailing wage rate and pay or provide the prevailing
or Section 6218 of the Education Law), if this contract exceeds supplements, including the premium rates for overtime pay, as
$50,000 (or the minimum thresholds agreed to by the Office of determined by the State Labor Department in accordance with
the State Comptroller for certain S.U.N.Y. and C.U.N.Y. the Labor Law. Additionally, effective April 28, 2008, if this is a
contracts), or if this is an amendment for any amount to a public work contract covered by Article 8 of the Labor Law, the
contract which, as so amended, exceeds said statutory amount, Contractor understands and agrees that the filing of payrolls in a
or if, by this contract, the State agrees to give something other manner consistent with Subdivision 3-a of Section 220 of the
than money when the value or reasonably estimated value of Labor Law shall be a condition precedent to payment by the
such consideration exceeds $10,000, it shall not be valid, State of any State approved sums due and owing for work done
effective or binding upon the State until it has been approved by upon the project.
the State Comptroller and filed in his office. Comptroller's
approval of contracts let by the Office of General Services is 7. NON-COLLUSIVE BIDDING CERTIFICATION. In
required when such contracts exceed $85,000 (State Finance accordance with Section 139-d of the State Finance Law, if this
Law Section 163.6.a). contract was awarded based upon the submission of bids,
Contractor affirms, under penalty of perjury, that its bid was
4. WORKERS' COMPENSATION BENEFITS. In arrived at independently and without collusion aimed at
accordance with Section 142 of the State Finance Law, this restricting competition. Contractor further affirms that, at the
contract shall be void and of no force and effect unless the time Contractor submitted its bid, an authorized and responsible
Contractor shall provide and maintain coverage during the life person executed and delivered to the State a non-collusive
of this contract for the benefit of such employees as are required bidding certification on Contractor's behalf.
to be covered by the provisions of the Workers' Compensation
Law. 8. INTERNATIONAL BOYCOTT PROHIBITION. In
accordance with Section 220-f of the Labor Law and Section
5. NON-DISCRIMINATION REQUIREMENTS. To the 139-h of the State Finance Law, if this contract exceeds $5,000,
extent required by Article 15 of the Executive Law (also known the Contractor agrees, as a material condition of the contract,
as the Human Rights Law) and all other State and Federal that neither the Contractor nor any substantially owned or
statutory and constitutional non-discrimination provisions, the affiliated person, firm, partnership or corporation has
Page 1 November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

participated, is participating, or shall participate in an payee has both such numbers. Failure to include this number or
international boycott in violation of the federal Export numbers may delay payment. Where the payee does not have
Administration Act of 1979 (50 USC App. Sections 2401 et seq.) such number or numbers, the payee, on its invoice or New York
or regulations thereunder. If such Contractor, or any of the State standard voucher, must give the reason or reasons why the
aforesaid affiliates of Contractor, is convicted or is otherwise payee does not have such number or numbers.
found to have violated said laws or regulations upon the final
determination of the United States Commerce Department or (b) PRIVACY NOTIFICATION. (1) The authority to request
any other appropriate agency of the United States subsequent to the above personal information from a seller of goods or services
the contract's execution, such contract, amendment or or a lessor of real or personal property, and the authority to
modification thereto shall be rendered forfeit and void. The maintain such information, is found in Section 5 of the State
Contractor shall so notify the State Comptroller within five (5) Tax Law. Disclosure of this information by the seller or lessor to
business days of such conviction, determination or disposition of the State is mandatory. The principal purpose for which the
appeal (2NYCRR 105.4). information is collected is to enable the State to identify
individuals, businesses and others who have been delinquent in
9. SET-OFF RIGHTS. The State shall have all of its common filing tax returns or may have understated their tax liabilities
law, equitable and statutory rights of set-off. These rights shall and to generally identify persons affected by the taxes
include, but not be limited to, the State's option to withhold for administered by the Commissioner of Taxation and Finance.
the purposes of set-off any moneys due to the Contractor under The information will be used for tax administration purposes
this contract up to any amounts due and owing to the State with and for any other purpose authorized by law. (2) The personal
regard to this contract, any other contract with any State information is requested by the purchasing unit of the agency
department or agency, including any contract for a term contracting to purchase the goods or services or lease the real or
commencing prior to the term of this contract, plus any amounts personal property covered by this contract or lease. The
due and owing to the State for any other reason including, information is maintained in New York State's Central
without limitation, tax delinquencies, fee delinquencies or Accounting System by the Director of Accounting Operations,
monetary penalties relative thereto. The State shall exercise its Office of the State Comptroller, 110 State Street, Albany, New
set-off rights in accordance with normal State practices York 12236.
including, in cases of set-off pursuant to an audit, the
finalization of such audit by the State agency, its representatives, 12. EQUAL EMPLOYMENT OPPORTUNITIES FOR
or the State Comptroller. MINORITIES AND WOMEN. In accordance with Section
312 of the Executive Law and 5 NYCRR 143, if this contract is:
10. RECORDS. The Contractor shall establish and maintain (i) a written agreement or purchase order instrument, providing
complete and accurate books, records, documents, accounts and for a total expenditure in excess of $25,000.00, whereby a
other evidence directly pertinent to performance under this contracting agency is committed to expend or does expend funds
contract (hereinafter, collectively, "the Records"). The Records in return for labor, services, supplies, equipment, materials or
must be kept for the balance of the calendar year in which they any combination of the foregoing, to be performed for, or
were made and for six (6) additional years thereafter. The State rendered or furnished to the contracting agency; or (ii) a written
Comptroller, the Attorney General and any other person or agreement in excess of $100,000.00 whereby a contracting
entity authorized to conduct an examination, as well as the agency is committed to expend or does expend funds for the
agency or agencies involved in this contract, shall have access to acquisition, construction, demolition, replacement, major repair
the Records during normal business hours at an office of the or renovation of real property and improvements thereon; or (iii)
Contractor within the State of New York or, if no such office is a written agreement in excess of $100,000.00 whereby the
available, at a mutually agreeable and reasonable venue within owner of a State assisted housing project is committed to expend
the State, for the term specified above for the purposes of inspec- or does expend funds for the acquisition, construction,
tion, auditing and copying. The State shall take reasonable steps demolition, replacement, major repair or renovation of real
to protect from public disclosure any of the Records which are property and improvements thereon for such project, then the
exempt from disclosure under Section 87 of the Public Officers following shall apply and by signing this agreement the
Law (the "Statute") provided that: (i) the Contractor shall Contractor certifies and affirms that it is Contractor’s equal
timely inform an appropriate State official, in writing, that said employment opportunity policy that:
records should not be disclosed; and (ii) said records shall be
sufficiently identified; and (iii) designation of said records as (a) The Contractor will not discriminate against employees or
exempt under the Statute is reasonable. Nothing contained applicants for employment because of race, creed, color, national
herein shall diminish, or in any way adversely affect, the State's origin, sex, age, disability or marital status, shall make and
right to discovery in any pending or future litigation. document its conscientious and active efforts to employ and
utilize minority group members and women in its work force on
11. IDENTIFYING INFORMATION AND PRIVACY State contracts and will undertake or continue existing programs
NOTIFICATION. (a) FEDERAL EMPLOYER of affirmative action to ensure that minority group members and
IDENTIFICATION NUMBER and/or FEDERAL SOCIAL women are afforded equal employment opportunities without
SECURITY NUMBER. All invoices or New York State discrimination. Affirmative action shall mean recruitment,
standard vouchers submitted for payment for the sale of goods or employment, job assignment, promotion, upgradings, demotion,
services or the lease of real or personal property to a New York transfer, layoff, or termination and rates of pay or other forms of
State agency must include the payee's identification number, i.e., compensation;
the seller's or lessor's identification number. The number is
either the payee's Federal employer identification number or (b) at the request of the contracting agency, the Contractor shall
Federal social security number, or both such numbers when the request each employment agency, labor union, or authorized
Page 2 November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

representative of workers with which it has a collective made. Service by the State to the last known address shall be
bargaining or other agreement or understanding, to furnish a sufficient. Contractor will have thirty (30) calendar days after
written statement that such employment agency, labor union or service hereunder is complete in which to respond.
representative will not discriminate on the basis of race, creed,
color, national origin, sex, age, disability or marital status and 18. PROHIBITION ON PURCHASE OF TROPICAL
that such union or representative will affirmatively cooperate in HARDWOODS. The Contractor certifies and warrants that all
the implementation of the Contractor's obligations herein; and wood products to be used under this contract award will be in
accordance with, but not limited to, the specifications and
(c) the Contractor shall state, in all solicitations or provisions of Section 165 of the State Finance Law, (Use of
advertisements for employees, that, in the performance of the Tropical Hardwoods) which prohibits purchase and use of
State contract, all qualified applicants will be afforded equal tropical hardwoods, unless specifically exempted, by the State or
employment opportunities without discrimination because of any governmental agency or political subdivision or public
race, creed, color, national origin, sex, age, disability or marital benefit corporation. Qualification for an exemption under this
status. law will be the responsibility of the contractor to establish to
meet with the approval of the State.
Contractor will include the provisions of "a", "b", and "c" above,
in every subcontract over $25,000.00 for the construction, In addition, when any portion of this contract involving the use
demolition, replacement, major repair, renovation, planning or of woods, whether supply or installation, is to be performed by
design of real property and improvements thereon (the "Work") any subcontractor, the prime Contractor will indicate and certify
except where the Work is for the beneficial use of the Contractor. in the submitted bid proposal that the subcontractor has been
Section 312 does not apply to: (i) work, goods or services informed and is in compliance with specifications and
unrelated to this contract; or (ii) employment outside New York provisions regarding use of tropical hardwoods as detailed in
State. The State shall consider compliance by a contractor or §165 State Finance Law. Any such use must meet with the
subcontractor with the requirements of any federal law approval of the State; otherwise, the bid may not be considered
concerning equal employment opportunity which effectuates the responsive. Under bidder certifications, proof of qualification for
purpose of this section. The contracting agency shall determine exemption will be the responsibility of the Contractor to meet
whether the imposition of the requirements of the provisions with the approval of the State.
hereof duplicate or conflict with any such federal law and if such
duplication or conflict exists, the contracting agency shall waive 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In
the applicability of Section 312 to the extent of such duplication accordance with the MacBride Fair Employment Principles
or conflict. Contractor will comply with all duly promulgated (Chapter 807 of the Laws of 1992), the Contractor hereby
and lawful rules and regulations of the Department of Economic stipulates that the Contractor either (a) has no business
Development’s Division of Minority and Women's Business operations in Northern Ireland, or (b) shall take lawful steps in
Development pertaining hereto. good faith to conduct any business operations in Northern
Ireland in accordance with the MacBride Fair Employment
13. CONFLICTING TERMS. In the event of a conflict Principles (as described in Section 165 of the New York State
between the terms of the contract (including any and all Finance Law), and shall permit independent monitoring of
attachments thereto and amendments thereof) and the terms of compliance with such principles.
this Appendix A, the terms of this Appendix A shall control.
20. OMNIBUS PROCUREMENT ACT OF 1992. It is the
14. GOVERNING LAW. This contract shall be governed by policy of New York State to maximize opportunities for the
the laws of the State of New York except where the Federal participation of New York State business enterprises, including
supremacy clause requires otherwise. minority and women-owned business enterprises as bidders,
subcontractors and suppliers on its procurement contracts.
15. LATE PAYMENT. Timeliness of payment and any interest
to be paid to Contractor for late payment shall be governed by Information on the availability of New York State subcontractors
Article 11-A of the State Finance Law to the extent required by and suppliers is available from:
law.
NYS Department of Economic Development
16. NO ARBITRATION. Disputes involving this contract, Division for Small Business
including the breach or alleged breach thereof, may not be 30 South Pearl St -- 7th Floor
submitted to binding arbitration (except where statutorily Albany, New York 12245
authorized), but must, instead, be heard in a court of competent Telephone: 518-292-5220
jurisdiction of the State of New York. Fax: 518-292-5884
http://www.empire.state.ny.us
17. SERVICE OF PROCESS. In addition to the methods of
service allowed by the State Civil Practice Law & Rules A directory of certified minority and women-owned business
("CPLR"), Contractor hereby consents to service of process upon enterprises is available from:
it by registered or certified mail, return receipt requested.
Service hereunder shall be complete upon Contractor's actual NYS Department of Economic Development
receipt of process or upon the State's receipt of the return thereof Division of Minority and Women's Business Development
by the United States Postal Service as refused or undeliverable. 30 South Pearl St -- 2nd Floor
Contractor must promptly notify the State, in writing, of each Albany, New York 12245
and every change of address to which service of process can be Telephone: 518-292-5250
Page 3 November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

Fax: 518-292-5803 contract to the agency that awarded the contract, the Department
http://www.empire.state.ny.us of Civil Service and the State Comptroller.

The Omnibus Procurement Act of 1992 requires that by signing 24. PROCUREMENT LOBBYING. To the extent this
this bid proposal or contract, as applicable, Contractors certify agreement is a "procurement contract" as defined by
that whenever the total bid amount is greater than $1 million: State Finance Law Sections 139-j and 139-k, by signing this
agreement the contractor certifies and affirms that all
(a) The Contractor has made reasonable efforts to encourage the disclosures made in accordance with State Finance Law Sections
participation of New York State Business Enterprises as 139-j and 139-k are complete, true and accurate. In the event
suppliers and subcontractors, including certified minority and such certification is found to be intentionally false or
women-owned business enterprises, on this project, and has intentionally incomplete, the State may terminate the agreement
retained the documentation of these efforts to be provided upon by providing written notification to the Contractor in accordance
request to the State; with the terms of the agreement.

(b) The Contractor has complied with the Federal Equal 25. CERTIFICATION OF REGISTRATION TO COLLECT
Opportunity Act of 1972 (P.L. 92-261), as amended; SALES AND COMPENSATING USE TAX BY CERTAIN
STATE CONTRACTORS, AFFILIATES AND
(c) The Contractor agrees to make reasonable efforts to provide SUBCONTRACTORS.
notification to New York State residents of employment To the extent this agreement is a contract as defined by Tax Law
opportunities on this project through listing any such positions Section 5-a, if the contractor fails to make the certification
with the Job Service Division of the New York State Department required by Tax Law Section 5-a or if during the term of the
of Labor, or providing such notification in such manner as is contract, the Department of Taxation and Finance or the covered
consistent with existing collective bargaining contracts or agency, as defined by Tax Law 5-a, discovers that the
agreements. The Contractor agrees to document these efforts certification, made under penalty of perjury, is false, then such
and to provide said documentation to the State upon request; failure to file or false certification shall be a material breach of
and this contract and this contract may be terminated, by providing
written notification to the Contractor in accordance with the
(d) The Contractor acknowledges notice that the State may seek terms of the agreement, if the covered agency determines that
to obtain offset credits from foreign countries as a result of this such action is in the best interest of the State.
contract and agrees to cooperate with the State in these efforts.

21. RECIPROCITY AND SANCTIONS PROVISIONS.

Bidders are hereby notified that if their principal place of
business is located in a country, nation, province, state or
political subdivision that penalizes New York State vendors, and
if the goods or services they offer will be substantially produced
or performed outside New York State, the Omnibus Procurement
Act 1994 and 2000 amendments (Chapter 684 and Chapter 383,
respectively) require that they be denied contracts which they
would otherwise obtain. NOTE: As of May 15, 2002, the list of
discriminatory jurisdictions subject to this provision includes the
states of South Carolina, Alaska, West Virginia, Wyoming,
Louisiana and Hawaii. Contact NYS Department of Economic
Development for a current list of jurisdictions subject to this
provision.

22. COMPLIANCE WITH NEW YORK STATE

INFORMATION SECURITY BREACH AND
NOTIFICATION ACT. Contractor shall comply with the
provisions of the New York State Information Security Breach
and Notification Act (General Business Law Section 899-aa;
State Technology Law Section 208).

23. COMPLIANCE WITH CONSULTANT DISCLOSURE

LAW. If this is a contract for consulting services, defined for
purposes of this requirement to include analysis, evaluation,
research, training, data processing, computer programming,
engineering, environmental, health, and mental health services,
accounting, auditing, paralegal, legal or similar services, then,
in accordance with Section 163 (4-g) of the State Finance Law
(as amended by Chapter 10 of the Laws of 2006), the Contractor
shall timely, accurately and properly comply with the
requirement to submit an annual employment report for the

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STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

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STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

THIS PAGE IS INTENTIONALLY LEFT BLANK

March 2002
NEW YORK STATE OFFICE OF GENERAL SERVICES
PROCUREMENT SERVICES GROUP

APPENDIX B

GENERAL SPECIFICATIONS

PLEASE RETAIN THIS DOCUMENT FOR FUTURE REFERENCE

July 2006
GENERAL SPECIFICATIONS APPENDIX B

TABLE OF CONTENTS
GENERAL PAGE TERMS & CONDITIONS PAGE
1. Applicability 1 43. Emergency Contracts 10
2. Governing Law 1 44. Purchase Orders 10
3. Ethics Compliance 1 45. Product Delivery 10
4. Conflict of Terms 1 46. Weekend and Holiday Deliveries 10
5. Definitions 1-3 47. Shipping/Receipt of Product 10
48. Title and Risk of Loss 10
BID SUBMISSION 49. Re-Weighing Product 11
50. Product Substitution 11
6. International Bidding 3 51. Rejected Product 11
7. Bid Opening 3 52. Installation 11
8. Bid Submission 3 53. Repaired or Replaced Product/
9. Facsimile Submissions 4 Components 11
10. Authentication of Facsimile Bids 4 54. On-Site Storage 11
11. Late Bids 4 55. Employees/Subcontractors/Agents 11
12. Bid Contents 4 56. Assignment 11
13. Extraneous Terms 4 57. Subcontractors and Suppliers 11
14. Confidential/Trade Secret Materials 4 58. Performance/Bid Bond 11
15. Release of Bid Evaluation Materials 5 59. Suspension of Work 12
16. Freedom of Information Law 5 60. Termination 12
17. Prevailing Wage Rates - Public Works 61. Savings/Force Majeure 12
and Building Services Contracts 5 62. Contract Billings 12
18. Taxes 6 63. Default - Authorized User 13
19. Expenses Prior to Contract Execution 6 64. Interest on Late Payments 13
20. Advertising Results 6 65. Remedies for Breach 13
21. Product References 6 66. Assignment of Claim 13
22. Remanufactured, Recycled, Recyclable 67. Toxic Substances 14
Or Recovered Materials 6 68. Independent Contractor 14
23. Products Manufactured in Public 69. Security 14
Institutions 6 70. Cooperation with Third Parties 14
24. Pricing 6 71. Contract Term - Renewal 14
25. Drawings 7 72. Additional Warranties 14
26. Site Inspection 7 73. Legal Compliance 15
27. Procurement Card 7 74. Indemnification 15
28. Samples 7 75. Indemnification Relating to Third
BID EVALUATION Party Rights 15
76. Limitation of Liability 16
29. Bid Evaluation 8 77. Insurance 16
30. Conditional Bid 8
31. Clarification/Revisions 8 THE FOLLOWING CLAUSES PERTAIN TO
32. Prompt Payment Discounts 8 TECHNOLOGY & NEGOTIATED CONTRACTS
33. Equivalent or Identical Bids 8 78. Software License Grant 16
34. Performance and Responsibility 79. Product Acceptance 17
Qualifications 8 80. Audit of Licensed Product Usage 18
35. Disqualification for Past Performance 8 81. Ownership/Title to Project
36. Quantity Changes Prior To Award 8 Deliverables 18
37. Timeframe for Offers 9 82. Proof of License 19
TERMS & CONDITIONS 83. Product Version 19
84. Changes to Product or
38. Contract Creation/Execution 9 Service Offerings 19
39. Participation in Centralized Contracts 9 85. No Hardstop/Passive
40. Modification of Contract Terms 9 License Monitoring 19
41. Scope Changes 9 86. Source Code Escrow for
42. Estimated/Specific Quantity Contracts 9 Licensed Product 19

July 2006
GENERAL SPECIFICATIONS APPENDIX B

GENERAL ATTORNEY GENERAL Attorney General of the State of New

York.
1. APPLICABILITY The terms and conditions set forth in this
Appendix B are expressly incorporated in and applicable to the AUTHORIZED USER(S) Agencies, or any other entity authorized
resulting procurement contracts let by the Office of General Services by the laws of the State of New York to participate in NYS
Procurement Services Group, or let by any other Authorized User centralized contracts (including but not limited to political
where incorporated by reference in its Bid Documents. Captions are subdivisions, public authorities, public benefit corporations and
intended as descriptive and are not intended to limit or otherwise certain other entities set forth in law), or the State of New York acting
restrict the terms and conditions set forth herein. on behalf of one or more such Agencies or other entities, provided
that each such Agency or other entity shall be held solely responsible
2. GOVERNING LAW This procurement, the resulting contract for liabilities or payments due as a result of its participation.
and any purchase orders issued hereunder shall be governed by the
laws of the State of New York except where the Federal supremacy BID OR BID PROPOSAL An offer or proposal submitted by a
clause requires otherwise, and actions or proceedings arising from the Bidder to furnish a described product or a solution, perform services
contract shall be heard in a court of competent jurisdiction in the or means of achieving a practical end, at a stated price for the stated
State of New York. Contract term. As required by the Bid Documents, the Bid or
proposal may be subject to modification through the solicitation by
3. ETHICS COMPLIANCE All Bidders/Contractors and their the Agency of best and final offers during the evaluation process prior
employees must comply with the requirements of Sections 73 and 74 to recommendation for award of the Contract.
of the Public Officers Law, other State codes, rules, regulations and
executive orders establishing ethical standards for the conduct of BIDDER/OFFERER Any individual or other legal entity (including
business with New York State. In signing the Bid, Bidder certifies but not limited to sole proprietor, partnership, limited liability
full compliance with those provisions for any present or future company, firm or corporation) which submits a Bid in response to a
dealings, transactions, sales, contracts, services, offers, relationships, Bid Solicitation. The term Bidder shall also include the term
etc., involving New York State and/or its employees. Failure to “offeror.” In the case of negotiated Contracts, “Bidder” shall refer to
comply with those provisions may result in disqualification from the the “Contractor.”
Bidding process, termination of contract, and/or other civil or
criminal proceedings as required by law. BID DOCUMENTS Writings by the State setting forth the scope,
terms, conditions and technical specifications for a procurement of
4. CONFLICT OF TERMS Unless otherwise set forth in the Product. Such writings typically include, but are not limited to:
procurement or contract documents, conflicts among documents Invitation for Bids (IFB), Request for Quotation (RFQ), Request for
shall be resolved in the following order of precedence: Proposals (RFP), addenda or amendments thereto, and terms and
a. Appendix A (Standard Clauses for NYS Contracts) conditions which are incorporated by reference, including but not
b. Mini-Bid Project Definition if applicable and in accordance limited to, Appendix A (Standard Clauses for NYS Contracts),
with the terms and conditions of the Back-Drop Contract. Appendix B, (General Specifications). Where these General
c. Contract and other writing(s) setting forth the final Specifications are incorporated in negotiated Contracts that have not
agreements, clarifications and terms between the Bid Documents been competitively Bid, the term “Bid Documents” shall be deemed
and Contractor’s Bid. In the latter circumstance, clarifications must to refer to the terms and conditions set forth in the negotiated
specifically note in writing what was offered by the Contractor and Contract and associated documentation.
what was accepted by the State. If not, such clarifications shall be
considered last in the order of precedence under this paragraph. BID SPECIFICATION A written description drafted by the
d. Bid Documents (Other than Appendix A). Authorized User setting forth the specific terms of the intended
i. Bid Specifications prepared by the Authorized User. procurement, which may include: physical or functional
ii. Appendix B (General Specifications). characteristics, the nature of a commodity or construction item, any
iii. Incorporated Contract Appendices, if any, following the description of the work to be performed, Products to be provided, the
order of precedence as stated for Contract above. necessary qualifications of the Bidder, the capacity and capability of
e. Contractor’s Bid or Mini-Bid Proposal. the Bidder to successfully carry out the proposed Contract, or the
f. Unincorporated Appendices (if any). process for achieving specific results and/or anticipated outcomes or
any other requirement necessary to perform work. Where these
5. DEFINITIONS Terms used in this Appendix B shall have the General Specifications are incorporated in negotiated Contracts that
following meanings: have not been competitively Bid, the term “Bid Specifications” shall
be deemed to refer to the terms and conditions set forth in the
AFFILIATE Any individual or other legal entity, (including but negotiated Contract and associated documentation.
not limited to sole proprietor, partnership, limited liability
company, firm or corporation) that effectively controls another COMMISSIONER Commissioner of OGS, or in the case of Bid
company in which (a) the Bidder owns more than 50% of the Specifications issued by an Authorized User, the head of such
ownership; or (b) any individual or other legal entity which owns Authorized User or their authorized representative.
more than 50% of the ownership of the Bidder. In addition, if a
Bidder owns less than 50% of the ownership of another legal COMPTROLLER Comptroller of the State of New York.
entity, but directs or has the right to direct such entity’s daily
operations, that entity will be an Affiliate. CONTRACT The writing(s) which contain the agreement of the
Commissioner and the Bidder/Contractor setting forth the total legal
AGENCY OR AGENCIES The State of New York, acting by obligation between the parties as determined by applicable rules of
or through one or more departments, boards, commissions, law, and which most typically include the following classifications of
offices or institutions of the State of New York. public procurements:

July 2006 1
GENERAL SPECIFICATIONS APPENDIX B

a. Agency Specific Contracts Contracts where the specifications to the applicable warranties, performance standards and/or
for a Product or a particular scope of work are described and defined obligations of the Contractor.
to meet the needs of one or more Authorized User(s).
GROUP A classification of Product, services or technology which is
b. Centralized Contracts Single or multiple award Contracts designated by OGS.
where the specifications for a Product or general scope of work are
described and defined by the Office of General Services to meet the INVITATION FOR BIDS (IFB) A type of Bid Document which is
needs of Authorized Users. Centralized Contracts may be awarded most typically used where requirements can be stated and award will
through multiple awards or through adoption of another jurisdiction’s be made based on lowest price to the responsive and responsible
contract or on a sole source, single source, emergency or competitive Bidder(s).
basis. Once established, procurements may be made from the
selected Contractor(s) without further competition or Mini-Bid unless LICENSED SOFTWARE Software transferred upon the terms and
otherwise required by the Bid Specifications or Contract Award conditions set forth in the Contract. “Licensed Software” includes
Notification. error corrections, upgrades, enhancements or new releases, and any
deliverables due under a maintenance or service contract (e.g.,
c. Back-Drop Contracts Multiple award Centralized Contracts patches, fixes, PTFs, programs, code or data conversion, or custom
where the Office of General Services defines the specifications for a programming).
Product or general scope of work to meet the needs of Authorized
Users. Bids may be submitted either at a date and time certain or LICENSEE One or more Authorized Users who acquire Product
may be accepted on a continuous or periodic recruitment basis, as set from Contractor by issuing a Purchase Order in accordance with the
forth in the Bid Specifications. Selection of a Contractor(s) from terms and conditions of the Contract; provided that, for purposes of
among Back-Drop contract holders for an actual Product, project or compliance with an individual license, the term “Licensee” shall be
particular scope of work may subsequently be made on a single or deemed to refer separately to the individual Authorized User(s) who
sole source basis, or on the basis of a Mini-Bid among qualified took receipt of and who is executing the Product, and who shall be
Back-Drop contract holders, or such other method as set forth in the solely responsible for performance and liabilities incurred. In the
Bid Document. case of acquisitions by State Agencies, the Licensee shall be the State
of New York.
d. Piggyback Contract A Contract let by any department, agency
or instrumentality of the United States government, or any LICENSE EFFECTIVE DATE The date Product is delivered to an
department, agency, office, political subdivision or instrumentality of Authorized User. Where a License involves Licensee’s right to copy a
any state or state(s) which is adopted and extended for use by the previously licensed and delivered Master Copy of a Program, the
OGS Commissioner in accordance with the requirements of the State license effective date for additional copies shall be deemed to be the
Finance Law. date on which the Purchase Order is executed.

e. Contract Letter A letter to the successful Bidder(s) indicating LICENSOR A Contractor who transfers rights in proprietary Product
acceptance of its Bid in response to a solicitation. Unless otherwise to Authorized Users in accordance with the rights and obligations
specified, the issuance of a Letter of Acceptance forms a Contract but specified in the Contract.
is not an order for Product, and Contractor should not take any action
with respect to actual Contract deliveries except on the basis of MINI-BID PROJECT DEFINITION A Bid Document containing
Purchase Orders sent from Authorized User(s). project specific Bid Specifications developed by or for an Authorized
User which solicits Bids from Contractors previously qualified under
CONTRACT AWARD NOTIFICATION An announcement to a Back-Drop Contract.
Authorized Users that a Contract has been established.
MULTIPLE AWARD A determination and award of a Contract in
CONTRACTOR Any successful Bidder(s) to whom a Contract has the discretion of the Commissioner to more than one responsive and
been awarded by the Commissioner. responsible Bidder who meets the requirements of a specification,
where the multiple award is made on the grounds set forth in the Bid
DOCUMENTATION The complete set of manuals (e.g., user, Document in order to satisfy multiple factors and needs of Authorized
installation, instruction or diagnostic manuals) in either hard or Users (e.g., complexity of items, various manufacturers, differences
electronic copy, which are necessary to enable an Authorized User to in performance required to accomplish or produce required end
properly test, install, operate and enjoy full use of the Product. results, production and distribution facilities, price, compliance with
delivery requirements, geographic location or other pertinent factors).
EMERGENCY An urgent and unexpected requirement where health
and public safety or the conservation of public resources is at risk. NEW PRODUCT RELEASES (Product Revisions) Any
commercially released revisions to the licensed version of a Product
ENTERPRISE The total business operations in the United States of as may be generally offered and available to Authorized Users. New
Authorized User (s) without regard to geographic location where such releases involve a substantial revision of functionality from a
operations are performed or the entity actually performing such previously released version of the Product.
operations on behalf of Authorized User.
OGS The New York State Office of General Services.
ENTERPRISE LICENSE A license grant of unlimited rights to
deploy, access, use and execute Product anywhere within the PROCUREMENT RECORD Documentation by the Authorized
Enterprise up to the maximum capacity stated on the Purchase Order User of the decisions made and approach taken during the
or in the Contract. procurement process and during the contract term.

ERROR CORRECTIONS Machine executable software code

furnished by Contractor which corrects the Product so as to conform

July 2006 2
GENERAL SPECIFICATIONS APPENDIX B

PRODUCT A deliverable under any Bid or Contract which may but does not include security keys or other such devices installed by
include commodities, services and/or technology. The term “Product” Product manufacturer.
includes Licensed Software.
BID SUBMISSION
PROPRIETARY Protected by secrecy, patent, copyright or
trademark against commercial competition. 6. INTERNATIONAL BIDDING All offers (tenders), and all
information and Product required by the solicitation or provided as
PURCHASE ORDER The Authorized User’s fiscal form or format explanation thereof, shall be submitted in English. All prices shall be
that is used when making a purchase (e.g., formal written Purchase expressed, and all payments shall be made, in United States Dollars
Order, Procurement Card, electronic Purchase Order, or other ($US). Any offers (tenders) submitted which do not meet the above
authorized instrument). criteria will be rejected.

REQUEST FOR PROPOSALS (RFP) A type of Bid Document 7. BID OPENING Bids may, as applicable, be opened publicly.
that is used for procurements where factors in addition to cost are The Commissioner reserves the right at any time to postpone or
considered and weighted in awarding the contract and where the cancel a scheduled Bid opening.
method of award is “best value,” as defined by the State Finance Law.
8. BID SUBMISSION All Bids are to be packaged, sealed and
REQUEST FOR QUOTATION (RFQ) A type of Bid Document submitted to the location stated in the Bid Specifications. Bidders
that can be used when a formal Bid opening is not required (e.g., are solely responsible for timely delivery of their Bids to the location
discretionary, sole source, single source or emergency purchases). set forth in the Bid Specifications prior to the stated Bid opening
date/time.
RESPONSIBLE BIDDER A Bidder that is determined to have
financial and organizational capacity, legal authority, satisfactory A Bid return envelope, if provided with the Bid Specifications, should
previous performance, skill, judgment and integrity, and that is found be used with the Bid sealed inside. If the Bid response does not fit
to be competent, reliable and experienced, as determined by the into the envelope, the Bid envelope should be attached to the outside
Commissioner. For purposes of being deemed responsible, a Bidder of the sealed box or package with the Bid inside. If using a
must also be determined to be in compliance with Sections 139-j and commercial delivery company that requires use of their shipping
139-k of the State Finance Law relative to restrictions on contacts package or envelope, Bidder’s sealed Bid, labeled as detailed below,
during the procurement process and disclosure of contacts and prior should be placed within the shipper’s sealed envelope to ensure that
findings of non-responsibility under these statutes. the Bid is not prematurely opened.

RESPONSIVE BIDDER A Bidder meeting the specifications or All Bids must have a label on the outside of the package or shipping
requirements prescribed in the Bid Document or solicitation, as container outlining the following information:
determined by the OGS Commissioner.
“BID ENCLOSED (bold print, all capitals)
SINGLE SOURCE A procurement where two or more Bidders can
supply the required Product, and the Commissioner may award the • Group Number
contract to one Bidder over the other. • IFB or RFP Number
• Bid Submission date and time”
SITE The location (street address) where Product will be executed
or services delivered. In the event that a Bidder fails to provide such information on the
return Bid envelope or shipping material, the receiving entity reserves
SOLE SOURCE A procurement where only one Bidder is capable of the right to open the shipping package or envelope to determine the
supplying the required Product. proper Bid number or Product group, and the date and time of Bid
opening. Bidder shall have no claim against the receiving entity
SOURCE CODE The programming statements or instructions arising from such opening and such opening shall not affect the
written and expressed in any language understandable by a human validity of the Bid or the procurement.
being skilled in the art which are translated by a language compiler to
produce executable machine Object Code. Notwithstanding the receiving agency’s right to open a Bid to
ascertain the foregoing information, Bidder assumes all risk of late
STATE State of New York. delivery associated with the Bid not being identified, packaged or
labeled in accordance with the foregoing requirements.
SUBCONTRACTOR Any individual or other legal entity,
(including but not limited to sole proprietor, partnership, limited All Bids must be signed by a person authorized to commit the Bidder
liability company, firm or corporation) who has entered into a to the terms of the Bid Documents and the content of the Bid (offer).
contract, express or implied, for the performance of a portion of a
Contract with a Contractor. 9. FACSIMILE SUBMISSIONS Unless specifically prohibited
by the terms of the Bid Specifications, facsimile Bids may be
TERMS OF LICENSE The terms and conditions set forth in the SUBMITTED AT THE SOLE OPTION AND RISK OF THE
Contract that are in effect and applicable to a Purchase Order at the BIDDER. Only the FAX number(s) indicated in the Bid
time of order placement. Specifications may be used. Access to the facsimile machine(s) is on
a “first come, first serve” basis, and the Commissioner bears no
VIRUS Any computer code, whether or not written or conceived by liability or responsibility and makes no guarantee whatsoever with
Contractor, that disrupts, disables, harms, or otherwise impedes in respect to the Bidder’s access to such equipment at any specific time.
any manner the operation of the Product, or any other associated Bidders are solely responsible for submission and receipt of the entire
software, firmware, hardware, or computer system (such as local area facsimile Bid by the Authorized User prior to Bid opening and must
or wide-area networks), including aesthetic disruptions or distortions, include on the first page of the transmission the total number of pages

July 2006 3
GENERAL SPECIFICATIONS APPENDIX B

transmitted in the facsimile, including the cover page. Incomplete, Only those extraneous terms that meet all the following requirements
ambiguous or unreadable transmissions in whole or in part may be may be considered as having been submitted as part of the Bid:
rejected at the sole discretion of the Commissioner. Facsimile Bids
are fully governed by all conditions outlined in the Bid Documents a. Each proposed extraneous term (addition, deletion, counter-offer,
and must be submitted on forms or in the format required in the Bid deviation, or modification) must be specifically enumerated in a
Specifications, including the executed signature page and writing which is not part of a pre-printed form; and
acknowledgment.
b. The writing must identify the particular specification
10. AUTHENTICATION OF FACSIMILE BIDS The act of requirement (if any) that Bidder rejects or proposes to modify by
submitting a Bid by facsimile transmission, including an executed inclusion of the extraneous term; and
signature page or as otherwise specified in the Bid Documents, shall
be deemed a confirming act by Bidder which authenticates the c. The Bidder shall enumerate the proposed addition, counter offer,
signing of the Bid. modification or deviation from the Bid Document, and the reasons
therefore.
11. LATE BIDS For purposes of Bid openings held and conducted
by OGS, a Bid must be received in such place as may be designated No extraneous term(s), whether or not deemed “material,” shall be
in the Bid Documents or if no place is specified in the OGS incorporated into a Contract or Purchase Order unless submitted in
Mailroom located in the Empire State Plaza, Albany, New York accordance with the above and the Commissioner or Authorized User
12242, at or before the date and time established in the Bid expressly accepts each such term(s) in writing. Acceptance and/or
Specifications for the Bid opening. For purposes of Bid openings processing of the Bid shall not constitute such written acceptance of
held and conducted by Authorized Users other than OGS, the term Extraneous Term(s).
late Bid is defined as a Bid not received in the location established in
the Bid Specifications at or before the date and time specified for the 14. CONFIDENTIAL/TRADE SECRET MATERIALS
Bid opening. a. Contractor Confidential, trade secret or proprietary materials
as defined by the laws of the State of New York must be clearly
Any Bid received at the specified location after the time specified marked and identified as such upon submission by the Bidder.
will be considered a late Bid. A late Bid shall not be considered for Marking the Bid as “confidential” or “proprietary” on its face or in
award unless: (i) no timely Bids meeting the requirements of the Bid the document header or footer shall not be considered by the
Documents are received or, (ii) in the case of a multiple award, an Commissioner or Authorized User to be sufficient without specific
insufficient number of timely Bids were received to satisfy the justification as to why disclosure of particular information in the Bid
multiple award; and acceptance of the late Bid is in the best interests would cause substantial injury to the competitive position of the
of the Authorized Users. Bids submitted for continuous or periodic Bidder. Bidders/Contractors intending to seek an exemption from
recruitment contract awards must meet the submission requirements disclosure of these materials under the Freedom of Information Law
associated with their specifications. Delays in United States mail must request the exemption in writing, setting forth the reasons for
deliveries or any other means of transmittal, including couriers or the claimed exemption. Acceptance of the claimed materials does not
agents of the Authorized User shall not excuse late Bid submissions. constitute a determination on the exemption request, which
Similar types of delays, including but not limited to, bad weather, or determination will be made in accordance with statutory procedures.
security procedures for parking and building admittance shall not Properly identified information that has been designated confidential,
excuse late Bid submissions. Determinations relative to Bid trade secret, or proprietary by the Bidder will not be disclosed except
timeliness shall be at the sole discretion of the Commissioner. as may be required by the Freedom of Information Law or other
applicable State and federal laws.
12. BID CONTENTS Bids must be complete and legible. All Bids
must be signed. All information required by the Bid Specifications b. Commissioner or Authorized User Contractor further
must be supplied by the Bidder on the forms or in the format warrants, covenants and represents that any confidential information
specified. No alteration, erasure or addition is to be made to the Bid obtained by Contractor, its agents, Subcontractors, officers,
Documents. Changes may be ignored by the Commissioner or may be distributors, resellers or employees in the course of performing its
grounds for rejection of the Bid. Changes, corrections and/or use of obligations, including without limitation, security procedures,
white-out in the Bid or Bidder’s response portion of the Bid business operations information, or commercial proprietary
Document must be initialed by an authorized representative of the information in the possession of the State or any Authorized User
Bidder. Bidders are cautioned to verify their Bids before submission, hereunder or received from another third party, will not be divulged
as amendments to Bids or requests for withdrawal of Bids received by to any third parties. Contractor shall not be required to keep
the Commissioner after the time specified for the Bid opening, may confidential any such material that is publicly available through no
not be considered. fault of Contractor, independently developed by Contractor without
reliance on confidential information of the Authorized User, or
13. EXTRANEOUS TERMS Bids must conform to the terms set otherwise obtained under the Freedom of Information Act or other
forth in the Bid Documents, as extraneous terms or material applicable New York State laws and regulations. This warranty shall
deviations (including additional, inconsistent, conflicting or survive termination of this Contract. Contractor further agrees to take
alternative terms) may render the Bid non-responsive and may result appropriate steps as to its agents, Subcontractors, officers,
in rejection of the Bid. distributors, resellers or employees regarding the obligations arising
under this clause to insure such confidentiality.
Extraneous term(s) submitted on standard, pre-printed forms
(including but not limited to: product literature, order forms, license 15. RELEASE OF BID EVALUATION MATERIALS Requests
agreements, contracts or other documents) that are attached or concerning the evaluation of Bids may be submitted under the
referenced with submissions shall not be considered part of the Bid or Freedom of Information Law. Information, other than statistical or
resulting Contract, but shall be deemed included for informational or factual tabulations or data such as the Bid Tabulation, shall only be
promotional purposes only. released as required by law after Contract award. Bid Tabulations are
not maintained for all procurements. Names of Bidders may be

July 2006 4
GENERAL SPECIFICATIONS APPENDIX B

disclosed after Bid opening upon request. Written requests should be Prevailing Wage Rates during the Contract term that apply to the
directed to the Commissioner. classes of individuals supplied by the Contractor on any projects
resulting from this Contract, subject to the provisions of the Labor
16. FREEDOM OF INFORMATION LAW During the evaluation Law. Contractor is solely liable for and must pay such required
process, the content of each Bid will be held in confidence and details prevailing wage adjustments during the Contract term as required by
of any Bid will not be revealed (except as may be required under the law.
Freedom of Information Law or other State law). The Freedom of
Information Law provides for an exemption from disclosure for trade d. Public Posting & Certified Payroll Records In compliance
secrets or information the disclosure of which would cause injury to with Article 8, Section 220 of the New York State Labor Law:
the competitive position of commercial enterprises. This exception
would be effective both during and after the evaluation process. If the i. Posting The Contractor must publicly post on the work site,
Bid contains any such trade secret or other confidential or proprietary in a prominent and accessible place, a legible schedule of the
information, it must be accompanied in the Bid with a written request prevailing wage rates and supplements.
to the Commissioner to not disclose such information. Such request
must state with particularity the reasons why the information should ii. Payroll Records Contractors and Subcontractors must keep
not be available for disclosure and must be provided at the time of original payrolls or transcripts subscribed and affirmed as true under
submission of the Bid. Notations in the header, footer or watermark the penalties of perjury as required by law. For public works
of the Bid Document will not be considered sufficient to constitute a contracts over $25,000 where the Contractor maintains no regular
request for non-disclosure of trade secret or other confidential or place of business in New York State, such records must be kept at the
proprietary information. Where a Freedom of Information request is work site. For building services contracts, such records must be kept
made for trademark or other confidential or proprietary information, at the work site while work is being performed.
the Commissioner reserves the right to determine upon written notice
to the Bidder whether such information qualifies for the exemption iii. Submission of Certified Payroll Transcripts for Public
for disclosure under the law. Notwithstanding the above, where a Bid Works Contracts Only Contractors and Subcontractors on public
tabulation is prepared and Bids publicly opened, such Bid tabulation works projects must submit monthly payroll transcripts to the
shall be available upon request. Authorized User that has prepared or directs the preparation of the
plans and specifications for a public works project, as set forth in the
17. PREVAILING WAGE RATES - PUBLIC WORKS AND Bid Specifications. For Mini-Bid solicitations, the payroll records
BUILDING SERVICES CONTRACTS If any portion of work must be submitted to the entity preparing the agency Mini-Bid project
being Bid is subject to the prevailing wage rate provisions of the specification. For “agency specific” Bids, the payroll records should
Labor Law, the following shall apply: be submitted to the entity issuing the purchase order. For all other
OGS Centralized Contracts, such records should be submitted to the
a. “Public Works” and “Building Services” - Definitions individual agency issuing the purchase order(s) for the work. Upon
i. Public Works Labor Law Article 8 applies to contracts for mutual agreement of the Contractor and the Authorized User, the form
public improvement in which laborers, workers or mechanics are of submission may be submitted in a specified disk format acceptable
employed on a “public works” project (distinguished from public to the Department of Labor provided: 1) the Contractor/Subcontractor
“procurement” or “service” contracts). The State, a public benefit retains the original records; and, (2) an original signed letter by a
corporation, a municipal corporation (including a school district), or a duly authorized individual of the Contractor or Subcontractor
commission appointed by law must be a party to the Contract. The attesting to the truth and accuracy of the records accompanies the
wage and hours provision applies to any work performed by disk. This provision does not apply to Article 9 of the Labor Law
Contractor or Subcontractors. building services contracts.

ii. Building Services Labor Law Article 9 applies to Contracts iv. Records Retention Contractors and Subcontractors must
for building service work over $1,500 with a public agency, that: (i) preserve such certified transcripts for a period of three years from the
involve the care or maintenance of an existing building, or (ii) date of completion of work on the awarded contract.
involve the transportation of office furniture or equipment to or from
such building, or (iii) involve the transportation and delivery of fossil Day’s Labor Eight hours shall constitute a legal day's work for all
fuel to such building, and (iv) the principal purpose of which is to classes of employees in this state except those engaged in farm and
furnish services through use of building service employees. domestic service unless otherwise provided by law.

b. Prevailing Wage Rate Applicable to Bid Submissions A copy No laborers, workmen or mechanics in the employ of the Contractor,
of the applicable prevailing wage rates to be paid or provided are Subcontractor or other person doing or contracting to do all or part of
annexed to the Bid Documents. Bidders must submit Bids which are the work contemplated by the Contract shall be permitted or required
based upon the prevailing hourly wages, and supplements in cash or to work more than eight hours in any one calendar day or more than
equivalent benefits (i.e., fringe benefits and any cash or non-cash five calendar days in any one week except in cases of extraordinary
compensation which are not wages, as defined by law) that equal or emergency including fire, flood or danger to life or property.
exceed the applicable prevailing wage rate(s) for the location where “Extraordinary emergency” shall be deemed to include situations in
the work is to be performed. Bidders may not submit Bids based which sufficient laborers, workers and mechanics cannot be employed
upon hourly wage rates and supplements below the applicable to carry on public work expeditiously as a result of such restrictions
prevailing wage rates as established by the New York State upon the number of hours and days of labor and the immediate
Department of Labor. Bids that fail to comply with this requirement commencement or prosecution or completion without undue delay of
will be disqualified. the public work is necessary in the judgment of the NYS
Commissioner of Labor for the preservation of the Contract site or for
c. Wage Rate Payments / Changes During Contract Term The the protection of the life and limb of the persons using the Contract
wages to be paid under any resulting Contract shall not be less than site.
the prevailing rate of wages and supplements as set forth by law. It is
required that the Contractor keep informed of all changes in the 18. TAXES

July 2006 5
GENERAL SPECIFICATIONS APPENDIX B

a. Unless otherwise specified in the Bid Specifications or Contract, jeopardizing the performance or intended end use of the Product and
the quoted Bid price includes all taxes applicable to the transaction. unless such use is precluded due to health, welfare, safety
requirements or by the Bid Specifications. Where such use is not
b. Purchases made by the State of New York and certain non-State practical, suitable, or permitted by the Bid Specifications, Contractor
Authorized Users are exempt from New York State and local sales shall deliver new materials in accordance with the “Warranties" set
taxes and, with certain exceptions, federal excise taxes. To satisfy forth below.
the requirements of the New York State Sales tax exemption, either
the Purchase Order issued by a State Agency or the invoice forwarded Items with recycled, recyclable, recovered, refurbished or
to authorize payment for such purchases will be sufficient evidence remanufactured content must be identified in the Bid or Bidder will
that the sale by the Contractor was made to the State, an exempt be deemed to be offering new Product.
organization under Section 1116 (a) (1) of the Tax Law. Non-State
Authorized Users must offer their own proof of exemption upon 23. PRODUCTS MANUFACTURED IN PUBLIC
request. No person, firm or corporation is, however, exempt from INSTITUTIONS Bids offering Products that are manufactured or
paying the State Truck Mileage and Unemployment Insurance or produced in public institutions will be rejected.
Federal Social Security taxes, which remain the sole responsibility of
the Bidder/Contractor. 24. PRICING
a. Unit Pricing If required by the Bid Specifications, the Bidder
c. Pursuant to Revised Tax Law 5-a, Contractor will be required to should insert the price per unit specified and the price extensions in
furnish sales tax certification on its behalf and for its affiliates, and decimals, not to exceed four places for each item unless otherwise
subcontractors for Contracts with a value greater than $100,000 in specified, in the Bid. In the event of a discrepancy between the unit
accordance with provisions of the law. price and the extension, the unit price shall govern unless, in the sole
judgment of the Commissioner, such unit pricing is obviously
d. Purchases by Authorized Users other than the State of New York erroneous.
may be subject to certain taxes which were not included in the Bid
price, and in those instances the tax should be computed based on the b. Net Pricing Unless otherwise required by the Bid
Contract price and added to the invoice submitted to such entity for Specifications, prices shall be net, including transportation, customs,
payment. tariff, delivery and other charges fully prepaid by the Contractor to
the destination(s) indicated in the Bid Specifications, subject to the
19. EXPENSES PRIOR TO CONTRACT EXECUTION The cash discount.
Commissioner and any Authorized User(s) are not liable for any costs
incurred by a Vendor, Bidder or Contractor in the preparation and c. “No Charge” Bid When Bids are requested on a number of
production of a Bid, Mini-Bid or best and final offers or for any work Products as a Group or Lot, a Bidder desiring to Bid “no charge” on a
performed prior to Contract execution. Product in the Group or Lot must clearly indicate such. Otherwise,
such Bid may be considered incomplete and be rejected, in whole or
20. ADVERTISING RESULTS The prior written approval of the in part, at the discretion of the Commissioner.
Commissioner is required in order for results of the Bid to be used by
the Contractor as part of any commercial advertising. The Contractor d. Educational Pricing All Products to be supplied for
shall also obtain the prior written approval of the Commissioner educational purposes that are subject to educational discounts shall be
relative to the Bid or Contract for press or other media releases. identified in the Bid and such discounts shall be made available to
qualifying institutions.
21. PRODUCT REFERENCES
a. “Or Equal” In all Bid Specifications the words “or equal” are e. Third Party Financing If Product acquisitions are financed
understood to apply where a copyrighted, brand name, trade name, through any third party financing, Contractor may be required as a
catalog reference, or patented Product is referenced. References to condition of Contract Award to agree to the terms and conditions of a
such specific Product are intended as descriptive, not restrictive, “Consent & Acknowledgment Agreement” in a form acceptable to the
unless otherwise stated. Comparable Product will be considered if Commissioner.
proof of compatibility is provided, including appropriate catalog
excerpts, descriptive literature, specifications and test data, etc. The f. Best Pricing Offer During the Contract term, if substantially
Commissioner’s decision as to acceptance of the Product as equal the same or a smaller quantity of a Product is sold by the Contractor
shall be final. outside of this Contract upon the same or similar terms and
conditions as that of this Contract at a lower price to a federal, state
b. Discrepancies in References In the event of a discrepancy or local governmental entity, the price under this Contract, at the
between the model number referenced in the Bid Specifications and discretion of the Commissioner, shall be immediately reduced to the
the written description of the Products which cannot be reconciled, lower price.
with respect to such discrepancy, then the written description shall
prevail. Price decreases shall take effect automatically during the Contract
term and apply to Purchase Orders submitted on or after:
22. REMANUFACTURED, RECYCLED, RECYCLABLE OR (i) GSA Changes: Where NYS Net Prices are based on an
RECOVERED MATERIALS Upon the conditions specified in the approved GSA Schedule, the date the approved GSA Schedule pricing
Bid Specifications and in accordance with the laws of the State of decreases during the Contract term; or
New York, Contractors are encouraged to use recycled, recyclable or (ii) Commercial Price List Reductions: Where NYS Net Prices
recovered materials in the manufacture of Products and packaging to are based on a discount from Contractor’s list prices, the date
the maximum extent practicable without jeopardizing the Contractor lowers its pricing to its customers generally or to similarly
performance or intended end use of the Product or packaging unless situated government customers during the Contract term; or
such use is precluded due to health, welfare, safety requirements or in (iii) Special Offers/Promotions Generally: Where Contractor
the Bid Specifications. Contractors are further encouraged to offer generally offers more advantageous special price promotions or
remanufactured Products to the maximum extent practicable without special discount pricing to other customers during the Contract term

July 2006 6
GENERAL SPECIFICATIONS APPENDIX B

for a similar quantity, and the maximum price or discount associated Authorized Users to make authorized purchases directly from a
with such offer or promotion is better than the discount or Net Price Contractor without processing a Purchase Orders or Purchase
otherwise available under this Contract, such better price or discount Authorizations. Purchasing Cards are issued to selected employees
shall apply for similar quantity transactions under this Contract for authorized to purchase for the Authorized User and having direct
the life of such general offer or promotion; and contact with Contractors. Cardholders can make purchases directly
(iv) Special Offers /Promotions to Authorized Users: Contractor from any Contractor that accepts the Purchasing Card.
may offer Authorized Users, under either this Contract or any other
Contracting vehicle, competitive pricing which is lower than the NYS The Contractor shall not process a transaction for payment
Net Price set forth herein at any time during the Contract term and through the credit card clearinghouse until the purchased products
such lower pricing shall not be applied as a global price reduction have been shipped or services performed. Unless the cardholder
under the Contract pursuant to the foregoing paragraph (iii). requests correction or replacement of a defective or faulty Product in
accordance with other Contract requirements, the Contractor shall
Unless otherwise specified in the Bid Specifications, Contractor may immediately credit a cardholder’s account for products returned as
offer lower prices or better terms (see Modification of Contract defective or faulty.
Terms) on any specific Purchase Order(s) from any Authorized User
without being in conflict with, or obligation to comply on a global
basis, with the terms of this clause. 28. SAMPLES
a. Standard Samples Bid Specifications may indicate that the
g. Best and Final Prices As specified in the Bid Documents and Product to be purchased must be equal to a standard sample on
Contract, a Contractor may be solicited at the time of issuance of a display in a place designated by the Commissioner and such sample
Purchase Order or Mini-Bid award for best and final pricing for the will be made available to the Bidder for examination prior to the
Product or service to be delivered to the Authorized User. Contractors opening date. Failure by the Bidder to examine such sample shall not
are encouraged to reduce their pricing upon receipt of such request. entitle the Bidder to any relief from the conditions imposed by the
Bid Specifications.
25. DRAWINGS
a. Drawings Submitted With Bid When the Bid Specifications b. Bidder Supplied Samples The Commissioner reserves the right
require the Bidder to furnish drawings and/or plans, such drawings to request from the Bidder/Contractor a representative sample(s) of
and/or plans shall conform to the mandates of the Bid Documents and the Product offered at any time prior to or after award of a contract.
shall, when approved by the Commissioner, be considered a part of Unless otherwise instructed, samples shall be furnished within the
the Bid and of any resulting Contract. All symbols and other time specified in the request. Untimely submission of a sample may
representations appearing on the drawings shall be considered a part constitute grounds for rejection of Bid or cancellation of the Contract.
of the drawing. Samples must be submitted free of charge and be accompanied by the
Bidder’s name and address, any descriptive literature relating to the
b. Drawings Submitted During the Contract Term Where Product and a statement indicating how and where the sample is to be
required to develop, maintain and deliver diagrams or other technical returned. Where applicable, samples must be properly labeled with
schematics regarding the scope of work, Contractor shall do so on an the appropriate Bid or Contract reference.
ongoing basis at no additional charge, and must, as a condition of
payment, update drawings and plans during the Contract term to A sample may be held by the Commissioner during the entire term of
reflect additions, alterations, and deletions. Such drawings and the Contract and for a reasonable period thereafter for comparison
diagrams shall be delivered to the Authorized User’s representative. with deliveries. At the conclusion of the holding period the sample,
where feasible, will be returned as instructed by the Bidder, at the
c. Accuracy of Drawings Submitted All drawings shall be neat Bidder’s expense and risk. Where the Bidder has failed to fully
and professional in manner and shall be clearly labeled as to locations instruct the Commissioner as to the return of the sample (i.e., mode
and type of product, connections and components. Drawings and and place of return, etc.) or refuses to bear the cost of its return, the
diagrams are to be in compliance with accepted drafting standards. sample shall become the sole property of the receiving entity at the
Acceptance or approval of such plans shall not relieve the Contractor conclusion of the holding period.
from responsibility for design or other errors of any sort in the
drawings or plans, or from its responsibility for performing as c. Enhanced Samples When an approved sample exceeds the
required, furnishing product, services or installation, or carrying out minimum specifications, all Product delivered must be of the same
any other requirements of the intended scope of work. enhanced quality and identity as the sample. Thereafter, in the event
of a Contractor’s default, the Commissioner may procure a Product
26. SITE INSPECTION Where a site inspection is required by the substantially equal to the enhanced sample from other sources,
Bid Specifications or Project Definition, Bidder shall be required to charging the Contractor for any additional costs incurred.
inspect the site, including environmental or other conditions for pre-
existing deficiencies that may affect the installed Product, equipment, d. Conformance with Sample(s) Submission of a sample
or environment or services to be provided and, which may affect (whether or not such sample is tested by, or for, the Commissioner)
Bidder’s ability to properly deliver, install or otherwise provide the and approval thereof shall not relieve the Contractor from full
required Product. All inquiries regarding such conditions shall be compliance with all terms and conditions, performance related and
made in writing. Bidder shall be deemed to have knowledge of any otherwise, specified in the Bid Specifications. If in the judgment of
deficiencies or conditions which such inspection or inquiry might the Commissioner the sample or product submitted is not in
have disclosed. Bidder must provide a detailed explanation with its accordance with the specifications or testing requirements prescribed
Bid if additional work is required under this clause in order to in the Bid Specifications, the Commissioner may reject the Bid. If an
properly complete the delivery and installation of the required award has been made, the Commissioner may cancel the Contract at
Product or provide the requested service. the expense of the Contractor.

27. PROCUREMENT CARD The State has entered into an e. Testing All samples are subject to tests in the manner and place
agreement for purchasing card services. The Purchasing Card enables designated by the Commissioner, either prior to or after Contract
award. Unless otherwise stated in the Bid Specifications, Bidder

July 2006 7
GENERAL SPECIFICATIONS APPENDIX B

samples consumed or rendered useless by testing will not be returned manufacturer or source for the production, distribution and servicing
to the Bidder. Testing costs for samples that fails to meet Contract of the Product offered/Bid. If the Commissioner determines that the
requirements may be at the expense of the Contractor. conditions and terms of the Bid Documents, Bid Specifications or
Contract are not complied with, or that items, services or Product
f. Requests For Samples By Authorized Users Requests for proposed to be furnished do not meet the specified requirements, or
samples by Authorized Users require the consent of the Contractor. that the legal authority, integrity experience, ability, prior
Where Contractor refuses to furnish a sample, Authorized User may, performance, organization and financial capacity or facilities are not
in its sole discretion, make a determination on the performance satisfactory, the Commissioner may reject such Bid or terminate the
capability of the Product or on the issue in question. Contract.

BID EVALUATION 35. DISQUALIFICATION FOR PAST PERFORMANCE AND

FINDINGS OF NON-RESPONSIBILITY Bidder may be
29. BID EVALUATION The Commissioner reserves the right to disqualified from receiving awards if Bidder, or anyone in Bidder’s
accept or reject any and all Bids, or separable portions of offers, and employment, has previously failed to perform satisfactorily in
waive technicalities, irregularities, and omissions if the connection with public Bidding or contracts or is deemed non-
Commissioner determines the best interests of the State will be responsible.
served. The Commissioner, in his/her sole discretion, may accept or
reject illegible, incomplete or vague Bids and his/her decision shall 36. QUANTITY CHANGES PRIOR TO AWARD The
be final. A conditional or revocable Bid which clearly communicates Commissioner reserves the right, at any time prior to the award of a
the terms or limitations of acceptance may be considered, and specific quantity Contract, to alter in good faith the quantities listed
Contract award may be made in compliance with the Bidder’s in the Bid Specifications. In the event such right is exercised, the
conditional or revocable terms in the offer. lowest responsible Bidder meeting Bid Specifications will be advised
of the revised quantities and afforded an opportunity to extend or
30. CONDITIONAL BID Unless the Bid Specifications provides reduce its Bid price in relation to the changed quantities. Refusal by
otherwise, a Bid is not rendered non-responsive if the Bidder the low Bidder to so extend or reduce its Bid price may result in the
specifies that the award will be accepted only on all or a specified rejection of its Bid and the award of such Contract to the lowest
group of items or Product included in the specification. It is responsible Bidder who accepts the revised qualifications.
understood that nothing herein shall be deemed to change or alter the
method of award contained in the Bid Documents. 37. TIMEFRAME FOR OFFERS The Commissioner reserves the
right to make awards within sixty (60) days after the date of the Bid
31. CLARIFICATIONS / REVISIONS Prior to award, the opening or such other period of time as set forth in the Bid
Commissioner reserves the right to seek clarifications, request Bid Documents, during which period, Bids must remain firm and cannot e
revisions, or to request any information deemed necessary for proper withdrawn. Pursuant to Section 163(9)(e) of the State Finance Law
evaluation of Bids from all Bidders deemed to be eligible for Contract and Section 2-205 of the Uniform Commercial Code when applicable,
award. Failure to provide requested information may result in where an award is not made within the sixty (60) day period or other
rejection of the Bid. time specified as set forth in the Bid Documents, the Bids shall
remain firm until such later time as either a Contract is awarded or
32. PROMPT PAYMENT DISCOUNTS While prompt payment the Bidder delivers to the Commissioner written notice of the
discounts will not be considered in determining the low Bid, the withdrawal of its Bid. Any Bid which expressly states therein that
Commissioner may consider any prompt payment discount in acceptance must be made within a shorter specified time, may at the
resolving Bids which are otherwise tied. However, any notation sole discretion of the Commissioner, be accepted or rejected.
indicating that the price is net, (e.g., net 30 days), shall be understood
to mean only that no prompt payment discount is offered by the TERMS & CONDITIONS
Bidder. The imposition of service, interest, or other charges, except
pursuant to the provisions of Article 11-A of the State Finance Law, 38. CONTRACT CREATION / EXECUTION Except for
which are applicable in any case, may render the Bid non-responsive contracts governed by Article 11-B of the State Finance Law, subject
and may be cause for its rejection. to and upon receipt of all required approvals as set forth in the Bid
Specifications a Contract shall be deemed executed and created with
33. EQUIVALENT OR IDENTICAL BIDS In the event two the successful Bidder(s), upon the Commissioner’s mailing or
offers are found to be substantially equivalent, price shall be the basis electronic communication to the address on the Bid/Contract of: (i)
for determining the award recipient. If two or more Bidders submit the final Contract Award Notice; (ii) a fully executed Contract; or (iii)
substantially equivalent Bids as to pricing or other factors, the a Purchase Order authorized by the Commissioner.
decision of the Commissioner to award a Contract to one or more of
such Bidders shall be final. 39. PARTICIPATION IN CENTRALIZED CONTRACTS The
following shall not limit or inhibit the OGS Commissioner’s authority
34. PERFORMANCE AND RESPONSIBILITY under State Finance Law, Section 163 (10) (e) (Piggybacking):
QUALIFICATIONS The Commissioner reserves the right to
investigate or inspect at any time whether or not the Product, a. Agencies All State Agencies may utilize and purchase under any
services, qualifications or facilities offered by the Bidder/Contractor state Centralized Contract let by the Commissioner, unless the Bid
meet the requirements set forth in the Bid Specifications/Contract or Documents limit purchases to specific State Agencies.
as set forth during Contract negotiations. Contractor shall at all times
during the Contract term remain responsible and responsive. A b. Non-State Agency Authorized Users Authorized Users other
Bidder/Contractor must be prepared, if requested by the than State Agencies are permitted to make purchases through state
Commissioner, to present evidence of legal authority to do business in Centralized Contracts where permitted by law, the Contract or the
New York State, integrity, experience, ability, prior performance, Commissioner.
organizational and financial capacity as well as where applicable, a
statement as to supply, plant, machinery and capacity of the

July 2006 8
GENERAL SPECIFICATIONS APPENDIX B

c. Voluntary Extension Purchase Orders issued against a State make an equitable adjustment in the Contract price or delivery date if
Centralized Contract by any Authorized User not provided for in the the change affects the cost or time of performance. Such equitable
Bid Specifications shall be honored by the Contractor at its discretion adjustments require the consent of the Contractor, which consent
and only with the approval of the OGS Commissioner and any other shall not be unreasonably withheld.
approvals required by law. Contractors are encouraged to voluntarily
extend service Contracts to those additional entities authorized to 42. ESTIMATED / SPECIFIC QUANTITY CONTRACTS
utilize commodity Contracts under Section 163 (3) (iv) of the State Estimated quantity contracts are expressly agreed and understood to
Finance Law. be made for only the quantities, if any, actually ordered during the
Contract term. No guarantee of any quantity(s) is implied or given.
d. Responsibility for Performance Participation in state Purchases by Authorized Users from Contracts for services and
Centralized Contracts by Authorized Users is permitted upon the technology are voluntary.
following conditions: (i) the responsibility with regard to performance
of any contractual obligation, covenant, condition or term thereunder With respect to any specific quantity stated in the contract, the
by any Authorized User other than State Agencies shall be borne and Commissioner reserves the right after award to order up to 20% more
is expressly assumed by such Authorized User and not by the State; or less (rounded to the next highest whole number) than the specific
(ii) a breach of the Contract by any particular Authorized User shall quantities called for in the Contract. Notwithstanding the foregoing,
neither constitute nor be deemed a breach of the Contract as a whole the Commissioner may purchase greater or lesser percentages of
which shall remain in full force and effect, and shall not affect the Contract quantities should the Commissioner and Contractor so agree.
validity of the Contract nor the obligations of the Contractor Such agreement may include an equitable price adjustment.
thereunder respecting non-breaching Authorized Users, whether State
or otherwise; (iii) for a breach by an Authorized User other than a 43. EMERGENCY CONTRACTS In the event that a disaster
State Agency, the State specifically and expressly disclaims any and emergency is declared by Executive Order under Section 28 of Article
all liability for such breach; and (iv) each non-state agency Authorized 2-B of the Executive Law, or the Commissioner determines pursuant
User and Contractor guarantees to save the State, its officers, agents to his/her authority under Section 163 (10) (b) of the State Finance
and employees harmless from any liability that may be or is imposed Law that an emergency exists requiring the prompt and immediate
by their failure to perform in accordance with its obligations under delivery of Product, the Commissioner reserves the right to obtain
the Contract. such Product from any source, including but not limited to this
Contract(s), as the Commissioner in his/her sole discretion
e. Contract Migration Authorized Users holding individual determines will meet the needs of such emergency. Contractor shall
Contracts with a Contractor at the time that Contractor is awarded a not be entitled to any claim or lost profits for Product procured from
Centralized Contract for the same Products or services shall be other sources pursuant to this paragraph. The reasons underlying the
permitted to migrate to that Centralized Contract effective with its finding that an emergency exists shall be included in the procurement
commencement date. Such migration shall not operate to diminish, record.
alter or eliminate any right that the Authorized User otherwise had
under the terms and conditions of their individual Contract. 44. PURCHASE ORDERS Unless otherwise authorized in writing
by the Commissioner, no Product is to be delivered or furnished by
40. MODIFICATION OF CONTRACT TERMS The terms and Contractor until transmittal of an official Purchase Order from the
conditions set forth in the Contract shall govern all transactions by Authorized User. Unless terminated or cancelled pursuant to the
Authorized User(s) under this Contract. The Contract may only be authority vested in the Commissioner, Purchase Orders shall be
modified or amended upon mutual written agreement of the effective and binding upon the Contractor when placed in the mail or
Commissioner and Contractor. electronically transmitted prior to the termination of the contract
period, addressed to the Contractor at the address for receipt of orders
The Contractor may, however, offer Authorized User(s) more set forth in the Contract or in the Contract Award Notification.
advantageous pricing, payment, or other terms and conditions than
those set forth in the Contract. In such event, a copy of such terms All Purchase Orders issued pursuant to Contracts let by the
shall be furnished to the Authorized User(s) and Commissioner by the Commissioner must bear the appropriate Contract number and, if
Contractor at the time of such offer. necessary, required State approvals. As deemed necessary, the
Authorized User may confirm pricing and other Product information
Other than where such terms are more advantageous for the with the Contractor prior to placement of the Purchase Order. The
Authorized User(s) than those set forth in the Contract, no alteration State reserves the right to require any other information from the
or modification of the terms of the Contract, including substitution of Contractor which the State deems necessary in order to complete any
Product, shall be valid or binding against Authorized User(s) unless Purchase Order placed under the Contract. Unless otherwise
authorized by the Commissioner or specified in the Contract Award specified, all Purchase Orders against Centralized Contracts will be
Notification. No such alteration or modification shall be made by placed by Authorized Users directly with the Contractor and any
unilaterally affixing such terms to Product upon delivery (including, discrepancy between the terms stated on the vendor’s order form,
but not limited to, attachment or inclusion of standard pre-printed confirmation or acknowledgment, and the Contract terms shall be
order forms, product literature, “shrink wrap” terms accompanying resolved in favor of the terms most favorable to the Authorized User.
software upon delivery, or other documents) or by incorporating such Should an Authorized User add written terms and conditions to the
terms onto order forms, purchase orders or other documents Purchase Order that conflict with the terms and conditions of the
forwarded by the Contractor for payment, notwithstanding Authorized Contract, the Contractor has the option of rejecting the Purchase
User’s subsequent acceptance of Product, or that Authorized User has Order within five business days of its receipt but shall first attempt to
subsequently processed such document for approval or payment. negotiate the additional written terms and conditions in good faith
with the Authorized User, or fulfill the Purchase Order.
41. SCOPE CHANGES The Commissioner reserves the right, Notwithstanding the above, the Authorized User reserves the right to
unilaterally, to require, by written order, changes by altering, adding dispute any discrepancies arising from the presentation of additional
to or deducting from the Bid Specifications, such changes to be terms and conditions with the Contractor.
within the general scope of the Contract. The Commissioner may

July 2006 9
GENERAL SPECIFICATIONS APPENDIX B

If, with respect to an Agency Specific Contract let by the OGS 48. TITLE AND RISK OF LOSS Notwithstanding the form of
Commissioner, a Purchase Order is not received by the Contractor shipment, title or other property interest, risk of loss shall not pass
within two weeks after the issuance of a Contract Award Notification, from the Contractor to the Authorized User until the Products have
it is the responsibility of the Contractor to request in writing that the been received, inspected and accepted by the receiving entity.
appropriate Authorized User forward a Purchase Order. If, thereafter, Acceptance shall occur within a reasonable time or in accordance
a Purchase Order is not received within a reasonable period of time, with such other defined acceptance period as may be specified in the
the Contractor shall promptly notify in writing the appropriate Bid Specifications or Purchase Order. Mere acknowledgment by
purchasing officer in OGS. Failure to timely notify such officer may, Authorized User personnel of the delivery or receipt of goods (e.g.,
in the discretion of the OGS Commissioner and without cost to the signed bill of lading) shall not be deemed or construed as acceptance
State, result in the cancellation of such requirement by the OGS of the Products received. Any delivery of Product that is substandard
Commissioner with a corresponding reduction in the Contract or does not comply with the Bid Specifications or Contract terms and
quantity and price. conditions, may be rejected or accepted on an adjusted price basis, as
determined by the Commissioner.
45. PRODUCT DELIVERY Delivery must be made as ordered to
the address specified on the Purchase Order and in accordance with 49. RE-WEIGHING PRODUCT Deliveries are subject to re-
the terms of the Contract or Contract Award Notice. Unless otherwise weighing at the point of destination by the Authorized User. If
specified in the Bid Documents, delivery shall be made within thirty shrinkage occurs which exceeds that normally allowable in the trade,
calendar days after receipt of a Purchase Order by the Contractor. the Authorized User shall have the option to require delivery of the
The decision of the Commissioner as to compliance with delivery difference in quantity or to reduce the payment accordingly. Such
terms shall be final. The burden of proof for delay in receipt of option shall be exercised in writing by the Authorized User.
Purchase Order shall rest with the Contractor. In all instances of a
potential or actual delay in delivery, the Contractor shall immediately 50. PRODUCT SUBSTITUTION In the event a specified
notify the Commissioner and the Authorized User, and confirm in manufacturer’s Product listed in the Contract becomes unavailable or
writing the explanation of the delay, and take appropriate action to cannot be supplied by the Contractor for any reason (except as
avoid any subsequent late deliveries. Any extension of time for provided for in the Savings/Force Majeure Clause) a Product deemed
delivery must be requested in writing by the Contractor and approved in writing by the Commissioner to be equal to or better than the
in writing by the Authorized User. Failure to meet such delivery time specified Product must be substituted by the Contractor at no
schedule may be grounds for cancellation of the order or, in the additional cost or expense to the Authorized User. Unless otherwise
Commissioner’s discretion, the Contract. specified, any substitution of Product prior to the Commissioner’s
written approval may be cause for cancellation of Contract.
46. WEEKEND AND HOLIDAY DELIVERIES Unless
otherwise specified in the Bid Specifications or by an Authorized 51. REJECTED PRODUCT When Product is rejected, it must be
User, deliveries will be scheduled for ordinary business hours, removed by the Contractor from the premises of the Authorized User
Monday through Friday (excluding legal holidays observed by the within ten calendar days of notification of rejection by the Authorized
State of New York). Deliveries may be scheduled by mutual User. Upon notification of rejection, risk of loss of rejected or non-
agreement for Saturdays, Sundays or legal holidays observed by the conforming Product shall remain with Contractor. Rejected items not
State of New York where the Product is for daily consumption, an removed by the Contractor within ten calendar days of notification
emergency exists, the delivery is a replacement, delivery is late, or shall be regarded as abandoned by the Contractor, and the Authorized
other reasonable circumstance in which event the convenience of the User shall have the right to dispose of Product as its own property.
Authorized User shall govern. The Contractor shall promptly reimburse the Authorized User for any
and all costs and expenses incurred in storage or effecting removal or
47. SHIPPING/RECEIPT OF PRODUCT disposition after the ten-calendar day period.
a. Packaging Tangible Product shall be securely and properly
packed for shipment, storage and stocking in appropriate, clearly 52. INSTALLATION Where installation is required, Contractor
labeled shipping containers and according to accepted commercial shall be responsible for placing and installing the Product in the
practice, without any extra charges for packing materials, cases or required locations. All materials used in the installation shall be of
other types of containers. The container shall become and remain the good quality and shall be free from any and all defects that would mar
property of the Authorized User unless otherwise specified in the the appearance of the Product or render it structurally unsound.
Contract documents. Installation includes the furnishing of any equipment, rigging and
materials required to install or place the Product in the proper
b. Shipping Charges Unless otherwise stated in the Bid location. The Contractor shall protect the site from damage for all its
Specifications, all deliveries shall be deemed to be freight on board work and shall repair damages or injury of any kind caused by the
(F.O.B.) destination tailgate delivery at the dock of the Authorized Contractor, its employees, officers or agents. If any alteration,
User. Unless otherwise agreed, items purchased at a price F.O.B. dismantling or excavation, etc. is required to effect installation, the
Shipping point plus transportation charges shall not relieve the Contractor shall thereafter promptly restore the structure or site.
Contractor from responsibility for safe and proper delivery Work shall be performed to cause the least inconvenience to the
notwithstanding the Authorized User’s payment of transportation Authorized User(s) and with proper consideration for the rights of
charges. Contractor shall be responsible for ensuring that the Bill of other Contractors or workers. The Contractor shall promptly perform
Lading states “charges prepaid” for all shipments. its work and shall coordinate its activities with those of other
Contractors. The Contractor shall clean up and remove all debris and
c. Receipt of Product The Contractor shall be solely responsible rubbish from its work as required or directed. Upon completion of
for assuring that deliveries are made to personnel authorized to accept the work, the building and surrounding area of work shall be left
delivery on behalf of the Authorized User. Any losses resulting from clean and in a neat, unobstructed condition, and everything in
the Contractor’s failure to deliver Product to authorized personnel satisfactory repair and order.
shall be borne exclusively by the Contractor.
53. REPAIRED OR REPLACED PARTS / COMPONENTS
Where the Contractor is required to repair, replace or substitute

July 2006 10
GENERAL SPECIFICATIONS APPENDIX B

Product or parts or components of the Product under the Contract, the the company is not responsible; the company has previously provided
repaired, replaced or substituted Products shall be subject to all terms unsatisfactory work or services; the company failed to solicit minority
and conditions for new parts and components set forth in the Contract and women’s business enterprises (M/WBE) Bidders as required by
including Warranties, as set forth in the Additional Warranties Clause prior Contracts.
herein. Replaced or repaired Product or parts and components of such
Product shall be new and shall, if available, be replaced by the original 58. PERFORMANCE / BID BOND The Commissioner reserves
manufacturer’s component or part. Remanufactured parts or the right to require a Bidder or Contractor to furnish without
components meeting new Product standards may be permitted by the additional cost, a performance, payment or Bid bond or negotiable
Commissioner or Authorized User. Before installation, all proposed irrevocable letter of credit or other form of security for the faithful
substitutes for the original manufacturer’s installed parts or components performance of the Contract. Where required, such bond or other
must be approved by the Authorized User. The part or component shall security shall be in the form prescribed by the Commissioner.
be equal to or of better quality than the original part or component being
replaced. 59. SUSPENSION OF WORK The Commissioner, in his/her sole
discretion, reserves the right to suspend any or all activities under
54. ON-SITE STORAGE With the written approval of the this Contract, at any time, in the best interests of the Authorized User.
Authorized User, materials, equipment or supplies may be stored at In the event of such suspension, the Contractor will be given a formal
the Authorized User’s site at the Contractor’s sole risk. written notice outlining the particulars of such suspension. Examples
of the reason for such suspension include, but are not limited to, a
55. EMPLOYEES, SUBCONTRACTORS & AGENTS All budget freeze or reduction on State spending, declaration of
employees, Subcontractors or agents performing work under the emergency, contract compliance issues or other such circumstances.
Contract must be trained staff or technicians who meet or exceed the Upon issuance of such notice, the Contractor is not to accept any
professional, technical and training qualifications set forth in the Bid Purchase Orders, and shall comply with the suspension order.
Specifications or the Bid Documents, whichever is more restrictive, and Activity may resume at such time as the Commissioner issues a
must comply with all security and administrative requirements of the formal written notice authorizing a resumption of performance under
Authorized User. The Commissioner reserves the right to conduct a the Contract.
security background check or otherwise approve any employee,
Subcontractor or agent furnished by Contractor and to refuse access to or An Authorized User may issue a formal written notice for the
require replacement of any personnel for cause based on, including but suspension of work for which it has engaged the Contractor for
not limited to, professional, technical or training qualifications, quality reasons specified in the above paragraph. The written notice shall set
of work or change in security status or non-compliance with Authorized forth the reason for such suspension and a copy of the written notice
User’s security or other requirements. Such approval shall not relieve shall be provided to the Commissioner.
the Contractor of the obligation to perform all work in compliance with
the Contract terms. The Commissioner reserves the right to reject 60. TERMINATION
and/or bar from the facility for cause any employee, Subcontractor, or a. For Cause: For a material breach that remains uncured for more
agents of the Contractor. than thirty (30) days or other specified period after written notice to the
Contractor, the Contract or Purchase Order may be terminated by the
56. ASSIGNMENT The Contractor shall not assign, transfer, Commissioner or Authorized User at the Contractor’s expense where
convey, sublet, or otherwise dispose of the contract or its right, title or Contractor becomes unable or incapable of performing, or meeting any
interest therein, or its power to execute such contract to any other requirements or qualifications set forth in the Contract, or for non-
person, company, firm or corporation in performance of the contract performance, or upon a determination that Contractor is non-
without the prior written consent of the Commissioner or Authorized responsible. Such termination shall be upon written notice to the
User (as applicable). Failure to obtain consent to assignment from the Contractor. In such event, the Commissioner or Authorized User may
Authorized User shall revoke and annul such Contract. complete the contractual requirements in any manner it may deem
Notwithstanding the foregoing, the State shall not hinder, prevent or advisable and pursue available legal or equitable remedies for breach.
affect assignment of money by a Contractor for the benefit of its
creditors. Prior to a consent to assignment of monies becoming b. For Convenience: By written notice, this Contract may be
effective, the Contractor shall file a written notice of such monies terminated at any time by the State for convenience upon sixty (60) days
assignment(s) with the Comptroller. Prior to a consent to assignment written notice or other specified period without penalty or other early
of a Contract, or portion thereof, becoming effective, the Contractor termination charges due. Such termination of the Contract shall not
shall submit the request to assignment to the Commissioner and seek affect any project or Purchase Order that has been issued under the
written agreement from the Commissioner which will be filed with Contract prior to the date of such termination. If the Contract is
the Comptroller. The Commissioner reserves the right to reject any terminated pursuant to this subdivision, the Authorized User shall
proposed assignee in his/her discretion. remain liable for all accrued but unpaid charges incurred through the
date of the termination. Contractor shall use due diligence and
Upon notice to the Contractor, the Contract may be assigned without provide any outstanding deliverables.
the consent of the Contractor to another State Agency or subdivision
of the State pursuant to a governmental reorganization or assignment c. For Violation of the Sections 139-j and 139-k of the State
of functions under which the functions are transferred to a successor Finance Law: The Commissioner reserves the right to terminate the
Agency or to another Agency that assumes OGS responsibilities for Contract in the event it is found that the certification filed by the
the Contract. Bidder in accordance with Section 139-k of the State Finance Law
was intentionally false or intentionally incomplete. Upon such
57. SUBCONTRACTORS AND SUPPLIERS The Commissioner finding, the Commissioner may exercise its termination right by
reserves the right to reject any proposed Subcontractor or supplier for providing written notification to the Contractor in accordance with the
bona fide business reasons, which may include, but are not limited to: written notification terms of the Contract.
they are on the Department of Labor’s list of companies with which
New York State cannot do business; the Commissioner determines d. For Violation of Revised Tax Law 5a: The Commissioner
that the company is not qualified; the Commissioner determines that reserves the right to terminate the contract in the event it is found that

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GENERAL SPECIFICATIONS APPENDIX B

the certification filed by the Contractor in accordance with §5-a of the Contract purchases made by Authorized Users, other than Agencies,
Tax Law is not timely filed during the term of the Contract or the shall be billed directly by Contractor on invoices/vouchers, together
certification furnished was intentionally false or intentionally with complete and accurate supporting documentation as required by
incomplete. Upon such finding, the Commissioner may exercise its the Authorized User.
termination right by providing written notification to the Contractor.
Submission of an invoice and payment thereof shall not preclude the
61. SAVINGS/FORCE MAJEURE A force majeure occurrence is Commissioner from reimbursement or demanding a price adjustment
an event or effect that cannot be reasonably anticipated or controlled. in any case where the Product delivered is found to deviate from the
Force majeure includes, but is not limited to, acts of God, acts of war, terms and conditions of the Contract or where the billing was
acts of public enemies, strikes, fires, explosions, actions of the inaccurate.
elements, floods, or other similar causes beyond the control of the
Contractor or the Commissioner in the performance of the Contract Contractor shall provide, upon request of the Commissioner, any and
which non- performance, by exercise of reasonable diligence, cannot all information necessary to verify the accuracy of the billings. Such
be prevented. Contractor shall provide the Commissioner with information shall be provided in the format requested by the
written notice of any force majeure occurrence as soon as the delay is Commissioner and in a media commercially available from the
known. Contractor. The Commissioner may direct the Contractor to provide
the information to the State Comptroller or to any Authorized User of
Neither the Contractor nor the Commissioner shall be liable to the the Contract.
other for any delay in or failure of performance under the Contract
due to a force majeure occurrence. Any such delay in or failure of 63. DEFAULT – AUTHORIZED USER
performance shall not constitute default or give rise to any liability a. Breach of Authorized User Not Breach of Centralized Contract.
for damages. The existence of such causes of such delay or failure An Authorized User’s breach shall not be deemed a breach of the
shall extend the period for performance to such extent as determined Centralized Contract, rather it shall be deemed a breach of the
by the Contractor and the Commissioner to be necessary to enable Authorized User’s performance under the terms and conditions of the
complete performance by the Contractor if reasonable diligence is Centralized Contract.
exercised after the cause of delay or failure has been removed.
b. Failure to Make Payment. In the event a participating
Notwithstanding the above, at the discretion of the Commissioner Authorized User fails to make payment to the Contractor for Products
where the delay or failure will significantly impair the value of the delivered, accepted and properly invoiced, within 60 days of such
Contract to the State or to Authorized Users, the Commissioner may: delivery and acceptance, the Contractor may, upon 10 days advance
written notice to both the Commissioner and the Authorized User’s
a. Accept allocated performance or deliveries from the Contractor. purchasing official, suspend additional shipments of Product or
The Contractor, however, hereby agrees to grant preferential provision of services to such entity until such time as reasonable
treatment to Authorized Users with respect to Product subjected to arrangements have been made and assurances given by such entity for
allocation; and/or current and future Contract payments.

b. Purchase from other sources (without recourse to and by the c. Notice of Breach. Notwithstanding the foregoing, the Contractor
Contractor for the costs and expenses thereof) to replace all or part of shall, at least 10 days prior to declaring a breach of Contract by any
the Products which are the subject of the delay, which purchases may Authorized User, by certified or registered mail, notify both the
be deducted from the Contract quantities without penalty or liability Commissioner and the purchasing official of the breaching Authorized
to the State; or User of the specific facts, circumstances and grounds upon which a
breach will be declared.
c. Terminate the Contract or the portion thereof which is subject to
delays, and thereby discharge any unexecuted portion of the Contract d. It is understood, however, that if the Contractor’s basis for
or the relative part thereof. declaring a breach is insufficient, the Contractor’s declaration of
breach and failure to service an Authorized User shall constitute a
In addition, the Commissioner reserves the right, in his/her sole breach of its Contract and the Authorized User may thereafter seek
discretion, to make an equitable adjustment in the Contract terms any remedy available at law or equity.
and/or pricing should extreme and unforeseen volatility in the
marketplace affect pricing or the availability of supply. "Extreme and 64. INTEREST ON LATE PAYMENTS
unforeseen volatility in the marketplace" is defined as market a. State Agencies The payment of interest on certain payments
circumstances which meet the following criteria: (i) the volatility is due and owed by Agency may be made in accordance with Article 11-
due to causes outside the control of Contractor; (ii) the volatility A of the State Finance Law (SFL §179-d et. Seq.) and Title 2 of the
affects the marketplace or industry, not just the particular Contract New York Code of Rules and Regulations, Part 18 (Implementation of
source of supply; (iii) the effect on pricing or availability of supply is Prompt Payment Legislation -2 NYCRR §18.1 et seq.).
substantial; and (iv) the volatility so affects Contractor's performance
that continued performance of the Contract would result in a b. By Non-State Agencies The terms of Article 11-A apply only to
substantial loss. procurements by and the consequent payment obligations of Agencies.
Neither expressly nor by any implication is the statute applicable to
62. CONTRACT BILLINGS Contractor and the Non-State Authorized Users. Neither OGS nor the State Comptroller
distributors/resellers designated by the Contractor, if any, shall is responsible for payments on any purchases made by a Non-State
provide complete and accurate billing invoices to each Authorized Agency Authorized User.
User in order to receive payment. Billings for Authorized Users must
contain all information required by the Contract and the State c. By Contractor Should the Contractor be liable for any
Comptroller. The State Comptroller shall render payment for payments to the State hereunder, interest, late payment charges and
Authorized User purchases, and such payment shall be made in collection fee charges will be determined and assessed pursuant to
accordance with ordinary State procedures and practices. Payment of Section 18 of the State Finance Law.

July 2006 12
GENERAL SPECIFICATIONS APPENDIX B

such Authorized User with not less than two copies of a material
65. REMEDIES FOR BREACH It is understood and agreed that safety data sheet, which sheet shall include for each such substance
all rights and remedies afforded below shall be in addition to all the information outlined in Section 876 of the Labor Law.
remedies or actions otherwise authorized or permitted by law:
Before any chemical product is used or applied on or in any building, a
a. Cover/Substitute Performance In the event of Contractor's copy of the product label and Material Safety Data Sheet must be
material breach, the Commissioner may, with or without formally provided to and approved by the Authorized User agency representative.
Bidding: (i) Purchase from other sources; or (ii) If the Commissioner
is unsuccessful after making reasonable attempts, under the 68. INDEPENDENT CONTRACTOR It is understood and agreed
circumstances then existing, to timely obtain acceptable service or that the legal status of the Contractor, its agents, officers and employees
acquire replacement Product of equal or comparable quality, the under this Contract is that of an independent Contractor, and in no
Commissioner may acquire acceptable replacement Product of lesser manner shall they be deemed employees of the Authorized User, and
or greater quality. therefore are not entitled to any of the benefits associated with such
employment. The Contractor agrees, during the term of this Contract, to
Such purchases may, in the discretion of the Commissioner, be maintain at Contractor’s expense those benefits to which its employees
deducted from the Contract quantity and payments due Contractor. would otherwise be entitled by law, including health benefits, and all
necessary insurance for its employees, including worker’s compensation,
b. Withhold Payment In any case where a question of non- disability and unemployment insurance, and to provide the Authorized
performance by Contractor arises, payment may be withheld in whole User with certification of such insurance upon request. The Contractor
or in part at the discretion of the Commissioner. Should the amount remains responsible for all applicable federal, state and local taxes, and
withheld be finally paid, a cash discount originally offered may be all FICA contributions.
taken as if no delay in payment had occurred.
69. SECURITY Contractor warrants, covenants and represents that
c. Bankruptcy In the event that the Contractor files a petition it will comply fully with all security procedures of the Authorized
under the U.S. Bankruptcy Code during the term of this Centralized User(s) in performance of the Contract including but not limited to
Contract, Authorized Users may, at their discretion, make application physical, facility, documentary and cyber security rules, procedures
to exercise its right to set-off against monies due the Debtor or, under and protocols.
the Doctrine of Recoupment, credit the Authorized User the amounts
owed by the Contractor arising out of the same transactions. 70. COOPERATION WITH THIRD PARTIES The Contractor
shall be responsible for fully cooperating with any third party,
d. Reimbursement of Costs Incurred The Contractor agrees to including but not limited to other Contractors or Subcontractors of the
reimburse the Authorized User promptly for any and all additional Authorized User, as necessary to ensure delivery of Product or
costs and expenses incurred for acquiring acceptable services, and/or coordination of performance of services.
replacement Product. Should the cost of cover be less than the
Contract price, the Contractor shall have no claim to the difference. 71. CONTRACT TERM - RENEWAL In addition to any stated
The Contractor covenants and agrees that in the event suit is renewal periods in the Contract, any Contract or unit portion thereof
successfully prosecuted for any default on the part of the Contractor, let by the Commissioner may be extended by the Commissioner for
all costs and expenses expended or incurred by the Authorized User an additional period(s) of up to one year with the written concurrence
in connection therewith, including reasonable attorney’s fees, shall be of the Contractor and Comptroller. Such extension may be exercised
paid by the Contractor. on a month to month basis or in other stated periods of time during
the one year extension.
Where the Contractor fails to timely deliver pursuant to the
guaranteed delivery terms of the Contract, the ordering Authorized 72. ADDITIONAL WARRANTIES Where Contractor, product
User may rent substitute equipment temporarily. Any sums expended manufacturer or service provider generally offers additional or more
for such rental shall, upon demand, be reimbursed to the Authorized advantageous warranties than set forth below, Contractor shall offer
User promptly by the Contractor or deducted by the Authorized User or pass through any such warranties to Authorized Users. Contractor
from payments due or to become due the Contractor on the same or hereby warrants and represents:
another transaction.
a. Product Performance Contractor warrants and represents that
e. Deduction/Credit Sums due as a result of these remedies may Products delivered pursuant to this Contract conform to the
be deducted or offset by the Authorized User from payments due, or manufacturer's specifications, performance standards and
to become due, the Contractor on the same or another transaction. If documentation, and the documentation fully describes the proper
no deduction or only a partial deduction is made in such fashion the procedure for using the Products.
Contractor shall pay to the Authorized User the amount of such claim
or portion of the claim still outstanding, on demand. The b. Title and Ownership Warranty Contractor warrants,
Commissioner reserves the right to determine the disposition of any represents and conveys (i) full ownership, clear title free of all liens,
rebates, settlements, restitution, liquidated damages, etc., which arise or (ii) the right to transfer or deliver perpetual license rights to any
from the administration of the Contract. Products transferred to Authorized User under this Contract.
Contractor shall be solely liable for any costs of acquisition associated
66. ASSIGNMENT OF CLAIM Contractor hereby assigns to the therewith. Contractor fully indemnifies the Authorized User for any
State any and all its claims for overcharges associated with this loss, damages or actions arising from a breach of said warranty
Contract which may arise under the antitrust laws of the United without limitation.
States, 15 USC Section 1, et. seq. and the antitrust laws of the State
of New York, General Business Law Section 340, et. seq. c. Contractor Compliance Contractor represents and warrants to
pay, at its sole expense, for all applicable permits, licenses, tariffs,
67. TOXIC SUBSTANCES Each Contractor furnishing a toxic tolls and fees to give all notices and comply with all laws, ordinances,
substance as defined by Section 875 of the Labor Law, shall provide rules and regulations of any governmental entity in conjunction with

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GENERAL SPECIFICATIONS APPENDIX B

the performance of obligations under the Contract. Prior to award

and during the Contract term and any renewals thereof, Contractor Any part of component replaced by the Contractor under the Contract
must establish to the satisfaction of the Commissioner that it meets or warranty shall be replaced at no cost to the Authorized User and
exceeds all requirements of the Bid/Contract and any applicable laws, guaranteed for the greater of: a) the warranty period under paragraph (d)
including but not limited to, permits, insurance coverage, licensing, above; or b) if a separate warranty for that part or component is
proof of coverage for worker’s compensation, and shall provide such generally offered by the manufacturer, the standard commercial warranty
proof as required by the Commissioner. Failure to do so may period offered by the manufacturer for the individual part or component.
constitute grounds for the Commissioner to cancel or suspend this
Contract, in whole or in part, or to take any other action deemed f. Virus Warranty The Contractor represents and warrants that
necessary by the Commissioner. Licensed Software contains no known viruses. Contractor is not
responsible for viruses introduced at Licensee’s site.
d. Product Warranty Unless recycled or recovered materials are
available in accordance with the “Recycled or Recovered Materials” g. Date/Time Warranty Contractor warrants that Product(s)
clause, Product offered shall be standard new equipment, current furnished pursuant to this Contract shall, when used in accordance with
model or most recent release of regular stock product with all parts the Product documentation, be able to accurately process date/time data
regularly used with the type of equipment offered; and no attachment (including, but not limited to, calculating, comparing, and sequencing)
or part has been substituted or applied contrary to the manufacturer’s transitions, including leap year calculations. Where a Contractor
recommendations and standard practice. proposes or an acquisition requires that specific Products must perform
as a package or system, this warranty shall apply to the Products as a
Contractor further warrants and represents that components or system.
deliverables specified and furnished by or through Contractor shall
individually, and where specified and furnished as a system, be Where Contractor is providing ongoing services, including but not
substantially uninterrupted or error-free in operation and guaranteed limited to: i) consulting, integration, code or data conversion, ii)
against faulty material and workmanship for the warranty period, or maintenance or support services, iii) data entry or processing, or iv)
for a minimum of one (1) year from the date of acceptance, contract administration services (e.g., billing, invoicing, claim
whichever is longer (“Project warranty period”). During the Project processing), Contractor warrants that services shall be provided in an
warranty period, defects in the materials or workmanship of accurate and timely manner without interruption, failure or error due to
components or deliverables specified and furnished by or through the inaccuracy of Contractor’s business operations in processing
Contractor shall be repaired or replaced by Contractor at no cost or date/time data (including, but not limited to, calculating, comparing, and
expense to the Authorized User. Contractor shall extend the Project sequencing) various date/time transitions, including leap year
warranty period for individual component(s), or for the System as a calculations. Contractor shall be responsible for damages resulting from
whole, as applicable, by the cumulative period(s) of time, after any delays, errors or untimely performance resulting therefrom,
notification, during which an individual component or the System including but not limited to the failure or untimely performance of such
requires servicing or replacement (down time) or is in the possession services.
of the Contractor, its agents, officers, Subcontractors, distributors,
resellers or employees (“extended warranty”). This Date/Time Warranty shall survive beyond termination or expiration
of this contract through: a) ninety (90) days or b) the Contractor’s or
Where Contractor, the Independent Software Vendor “ISV,” or other Product manufacturer/developer’s stated date/time warranty term,
third party manufacturer markets any Project Deliverable delivered whichever is longer. Nothing in this warranty statement shall be
by or through Contractor with a standard commercial warranty, such construed to limit any rights or remedies otherwise available under this
standard warranty shall be in addition to, and not relieve the Contract for breach of warranty.
Contractor from, Contractor’s warranty obligations during the project
warranty and extended warranty period(s). Where such standard h. Workmanship Warranty Contract warrants that all
commercial warranty covers all or some of the Project warranty or components or deliverables specified and furnished by or through
extended warranty period(s), Contractor shall be responsible for the Contractor under the Project Definition/Work Order meet the
coordination during the Project warranty or extended warranty completion criteria set forth in the Project Definition/Work Order and
period(s) with ISV or other third party manufacturer(s) for warranty any subsequent statement(s) of work, and that services will be
repair or replacement of ISV or other third party manufacturer’s provided in a workmanlike manner in accordance with industry
Product. standards.

Where Contractor, ISV or other third party manufacturer markets any i. Survival of Warranties All warranties contained in this
Project Deliverable with a standard commercial warranty which goes Contract shall survive the termination of this Contract.
beyond the Project warranty or extended warranty period(s),
Contractor shall notify the Authorized User and pass through the 73. LEGAL COMPLIANCE Contractor represents and warrants
manufacturer’s standard commercial warranty to Authorized User at that it shall secure all notices and comply with all laws, ordinances,
no additional charge; provided, however, that Contractor shall not be rules and regulations of any governmental entity in conjunction with
responsible for coordinating services under the third party extended the performance of obligations under the Contract. Prior to award
warranty after expiration of the Project warranty and extended and during the Contract term and any renewals thereof, Contractor
warranty period(s). must establish to the satisfaction of the Commissioner that it meets or
exceeds all requirements of the Bid and Contract and any applicable
e. Replacement Parts Warranty If during the regular or extended laws, including but not limited to, permits, licensing, and shall
warranty period’s faults develop, the Contractor shall promptly repair provide such proof as required by the Commissioner. Failure to
or, upon demand, replace the defective unit or component part comply or failure to provide proof may constitute grounds for the
affected. All costs for labor and material and transportation incurred Commissioner to cancel or suspend the Contract, in whole or in part,
to repair or replace defective Product during the warranty period shall or to take any other action deemed necessary by the Commissioner.
be borne solely by the Contractor, and the State or Authorized User Contractor also agrees to disclose information and provide
shall in no event be liable or responsible therefor.

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GENERAL SPECIFICATIONS APPENDIX B

affirmations and certifications to comply with Sections 139-j and 139- 76. LIMITATION OF LIABILITY Except as otherwise set forth
k of the State Finance Law. in the Indemnification Paragraphs above, the limit of liability shall be
as follows:
74. INDEMNIFICATION Contractor shall be fully liable for the
actions of its agents, employees, partners or Subcontractors and shall a. Contractor’s liability for any claim, loss or liability arising out
fully indemnify and save harmless the Authorized Users from suits, of, or connected with the Products and services provided, and whether
actions, damages and costs of every name and description relating to based upon default, or other liability such as breach of contract,
personal injury and damage to real or personal tangible property warranty, negligence, misrepresentation or otherwise, shall in no case
caused by any intentional act or negligence of Contractor, its agents, exceed direct damages in: (i) an amount equal to two (2) times the
employees, partners or Subcontractors, without limitation; provided, charges specified in the Purchase Order for the Products and services,
however, that the Contractor shall not indemnify for that portion of or parts thereof forming the basis of the Authorized User’s claim,
any claim, loss or damage arising hereunder due to the negligent act (said amount not to exceed a total of twelve (12) months charges
or failure to act of the Authorized Users. payable under the applicable Purchase Order) or (ii) one million
dollars ($1,000,000), whichever is greater.
75. INDEMNIFICATION RELATING TO THIRD PARTY
RIGHTS The Contractor will also indemnify and hold the b. The Authorized User may retain such monies from any amount
Authorized Users harmless from and against any and all damages, due Contractor as may be necessary to satisfy any claim for damages,
expenses (including reasonable attorneys' fees), claims, judgments, costs and the like asserted against the Authorized User unless
liabilities and costs that may be finally assessed against the Contractor at the time of the presentation of claim shall demonstrate
Authorized Users in any action for infringement of a United States to the Authorized User’s satisfaction that sufficient monies are set
Letter Patent, or of any copyright, trademark, trade secret or other aside by the Contractor in the form of a bond or through insurance
third party proprietary right except to the extent such claims arise coverage to cover associated damages and other costs.
from the Authorized Users gross negligence or willful misconduct,
provided that the State shall give Contractor: (i) prompt written c. Notwithstanding the above, neither the Contractor nor the
notice of any action, claim or threat of infringement suit, or other suit, Authorized User shall be liable for any consequential, indirect or
(ii) the opportunity to take over, settle or defend such action, claim or special damages of any kind which may result directly or indirectly
suit at Contractor's sole expense, and (iii) assistance in the defense of from such performance, including, without limitation, damages
any such action at the expense of Contractor. resulting from loss of use or loss of profit by the Authorized User, the
Contractor, or by others.
If usage shall be enjoined for any reason or if Contractor believes that
it may be enjoined, Contractor shall have the right, at its own expense 77. INSURANCE Contractor shall secure and maintain insurance
and sole discretion to take action in the following order of coverage as specified in the Bid Documents and shall promptly
precedence: (i) to procure for the Authorized User the right to provide documentation of specified coverages to the Authorized User.
continue Usage (ii) to modify the service or Product so that Usage If specified, the Contractor may be required to add the Authorized
becomes non-infringing, and is of at least equal quality and User as an additional insured.
performance; or (iii) to replace said service or Product or part(s)
thereof, as applicable, with non-infringing service or Product of at THE FOLLOWING CLAUSES PERTAIN TO
least equal quality and performance. If the above remedies are not TECHNOLOGY & NEGOTIATED CONTRACTS
available, the parties shall terminate the Contract, in whole or in part
as necessary and applicable, provided the Authorized User is given a 78. SOFTWARE LICENSE GRANT Where Product is acquired
refund for any amounts paid for the period during which Usage was on a licensed basis the following shall constitute the license grant:
not feasible.
a. License Scope Licensee is granted a non-exclusive, perpetual
The foregoing provisions as to protection from third party rights shall license to use, execute, reproduce, display, perform, or merge the
not apply to any infringement occasioned by modification by the Product within its business enterprise in the United States up to the
Authorized User of any Product without Contractor’s approval. maximum licensed capacity stated on the Purchase Order. Product
may be accessed, used, executed, reproduced, displayed or performed
In the event that an action at law or in equity is commenced against up to the capacity measured by the applicable licensing unit stated on
the Authorized User arising out of a claim that the Authorized User's the Purchase Order (i.e., payroll size, number of employees, CPU,
use of the service or Product under the Contract infringes any patent, MIPS, MSU, concurrent user, workstation). Licensee shall have the
copyright or proprietary right, and Contractor is of the opinion that right to use and distribute modifications or customizations of the
the allegations in such action in whole or in part are not covered by Product to and for use by any Authorized Users otherwise licensed to
the indemnification and defense provisions set forth in the Contract, use the Product, provided that any modifications, however extensive,
Contractor shall immediately notify the Authorized User and the shall not diminish Licensor’s proprietary title or interest. No license,
Office of the Attorney General in writing and shall specify to what right or interest in any trademark, trade name, or service mark is
extent Contractor believes it is obligated to defend and indemnify granted hereunder.
under the terms and conditions of the Contract. Contractor shall in
such event protect the interests of the Authorized User and secure a b. License Term The license term shall commence upon the
continuance to permit the Authorized User to appear and defend its License Effective Date, provided, however, that where an acceptance
interests in cooperation with Contractor, as is appropriate, including or trial period applies to the Product, the License Term shall be
any jurisdictional defenses the Authorized User may have. This extended by the time period for testing, acceptance or trial.
constitutes the Authorized User’s sole and exclusive remedy for
patent infringement, or for infringement of any other third party c. Licensed Documentation If commercially available, Licensee
proprietary right. shall have the option to require the Contractor to deliver, at
Contractor’s expense: (i) one (1) hard copy and one (1) master
electronic copy of the Documentation in a mutually agreeable format;
(ii) based on hard copy instructions for access by downloading from

July 2006 15
GENERAL SPECIFICATIONS APPENDIX B

the Internet (iii) hard copies of the Product Documentation by type of exceed the fees otherwise payable for a single license for the upgrade
license in the following amounts, unless otherwise mutually agreed: capacity.

• Individual/Named User License - one (1) copy per License f. Restricted Use By Outsourcers / Facilities Management,
• Concurrent Users - 10 copies per site Service Bureaus / or Other Third Parties Outsourcers, facilities
• Processing Capacity - 10 copies per site management or service bureaus retained by Licensee shall have the
right to use the Product to maintain Licensee’s business operations,
Software media must be in a format specified by the Authorized User, including data processing, for the time period that they are engaged in
without requiring any type of conversion. such activities, provided that: 1) Licensee gives notice to Contractor
of such party, site of intended use of the Product, and means of
Contractor hereby grants to Licensee a perpetual license right to access; and 2) such party has executed, or agrees to execute, the
make, reproduce (including downloading electronic copies of the Product manufacturer’s standard nondisclosure or restricted use
Product) and distribute, either electronically or otherwise, copies of agreement which executed agreement shall be accepted by the
Product Documentation as necessary to enjoy full use of the Product Contractor (“Non-Disclosure Agreement”); and 3) if such party is
in accordance with the terms of license. engaged in the business of facility management, outsourcing, service
bureau or other services, such third party will maintain a logical or
d. Product Technical Support & Maintenance Licensee shall physical partition within its computer system so as to restrict use and
have the option of electing the Product technical support and access to the program to that portion solely dedicated to beneficial
maintenance (“maintenance”) set forth in the Contract by giving use for Licensee. In no event shall Licensee assume any liability for
written notice to Contractor any time during the Centralized Contract third party’s compliance with the terms of the Non-Disclosure
term. Maintenance term(s) and any renewal(s) thereof are Agreement, nor shall the Non-Disclosure Agreement create or impose
independent of the expiration of the Centralized Contract term and any liabilities on the State or Licensee.
will not automatically renew.
Any third party with whom a Licensee has a relationship for a state
Maintenance shall include, at a minimum, (i) the provision of error function or business operation, shall have the temporary right to use
corrections, updates, revisions, fixes, upgrade and new releases to Product (e.g., JAVA Applets), provided that such use shall be limited
Licensee, and (ii) Help Desk assistance with locally accessible “800” to the time period during which the third party is using the Product
or toll free, local telephone service, or alternatively on-line Help Desk for the function or business activity.
accessibility. Contractor shall maintain the Products so as to provide
Licensee with the ability to utilize the Products in accordance with g. Archival Back-Up and Disaster Recovery Licensee may use
the Product documentation without significant functional downtime to and copy the Product and related Documentation in connection with:
its ongoing business operations during the maintenance term. i) reproducing a reasonable number of copies of the Product for
archival backup and disaster recovery procedures in the event of
Authorized User shall not be required to purchase maintenance for destruction or corruption of the Product or disasters or emergencies
use of Product, and may discontinue maintenance at the end of any which require Licensee to restore backup(s) or to initiate disaster
current maintenance term upon notice to Contractor. In the event that recovery procedures for its platform or operating systems; ii)
Authorized User does not initially acquire or discontinues reproducing a reasonable number of copies of the Product and related
maintenance of licensed Product, it may, at any time thereafter, Documentation for cold site storage. “Cold Site” storage shall be
reinstate maintenance for Product without any additional penalties or defined as a restorable back-up copy of the Product not to be installed
other charges, by paying Contractor the amount which would have until and after the declaration by the Licensee of a disaster; iii)
been due under the Contract for the period of time that such reproducing a back-up copy of the Product to run for a reasonable
maintenance had lapsed, at then current NYS net maintenance rates. period of time in conjunction with a documented consolidation or
transfer otherwise allowed herein. “Disaster Recovery” shall be
e. Permitted License Transfers As Licensee’s business defined as the installation and storage of Product in ready-to-execute,
operations may be altered, expanded or diminished, licenses granted back-up computer systems prior to disaster or breakdown which is not
hereunder may be transferred or combined for use at an alternative or used for active production or development.
consolidated site not originally specified in the license, including
transfers between Agencies (“permitted license transfers”). h. Confidentiality Restrictions The Product is a trade secret,
Licensee(s) do not have to obtain the approval of Contractor for copyrighted and proprietary product. Licensee and its employees will
permitted license transfers, but must give thirty (30) days prior keep the Product strictly confidential, and Licensee will not disclose
written notice to Contractor of such move(s) and certify in writing or otherwise distribute or reproduce any Product to anyone other than
that the Product is not in use at the prior site. There shall be no as authorized under the terms of Contract. Licensee will not remove
additional license or other transfer fees due Contractor, provided that: or destroy any proprietary markings of Contractor.
i) the maximum capacity of the consolidated machine is equal to the
combined individual license capacity of all licenses running at the i. Restricted Use by Licensee Except as expressly authorized by
consolidated or transferred site (e.g., named users, seats, or MIPS); or the terms of license, Licensee shall not:
ii) if the maximum capacity of the consolidated machine is greater (i) Copy the Product;
than the individual license capacity being transferred, a logical or (ii) Cause or permit reverse compilation or reverse assembly of
physical partition or other means of restricting access will be all or any portion of the Product;
maintained within the computer system so as to restrict use and (iii) Export the Licensed Software in violation of any U.S.
access to the Product to that unit of licensed capacity solely dedicated Department of Commerce export administration regulations.
to beneficial use for Licensee. In the event that the maximum
capacity of the consolidated machine is greater than the combined 79. PRODUCT ACCEPTANCE Unless otherwise provided by
individual license capacity of all licenses running at the consolidated mutual agreement of the Authorized User and the Contractor,
or transferred site, and a logical or physical partition or other means Authorized User(s) shall have thirty (30) days from the date of
of restricting use is not available, the fees due Contractor shall not delivery to accept hardware products and sixty (60) days from the
date of delivery to accept all other Product. Where the Contractor is

July 2006 16
GENERAL SPECIFICATIONS APPENDIX B

responsible for installation, acceptance shall be from completion of be entitled to copies of all reports, data or information obtained from
installation. Failure to provide notice of acceptance or rejection or a the audit; and (v) if the audit shows that such party is not in
deficiency statement to the Contractor by the end of the period compliance, Licensee shall be required to purchase additional
provided for under this clause constitutes acceptance by the licenses or capacities necessary to bring it into compliance and shall
Authorized User(s) as of the expiration of that period. The License pay for the unlicensed capacity at the NYS Net Price in effect at time
Term shall be extended by the time periods allowed for trial use, of audit, or if none, then at the Contractor’s U.S. Commercial list
testing and acceptance unless the Commissioner or Authorized User price. Once such additional licenses or capacities are purchased,
agrees to accept the Product at completion of trial use. Licensee shall be deemed to have been in compliance retroactively,
and Licensee shall have no further liability of any kind for the
Unless otherwise provided by mutual agreement of the Authorized User unauthorized use of the software.
and the Contractor, Authorized User shall have the option to run
testing on the Product prior to acceptance, such tests and data sets to 81. OWNERSHIP/TITLE TO PROJECT DELIVERABLES
be specified by User. Where using its own data or tests, Authorized a. Definitions
User must have the tests or representative set of data available upon (i) For purposes of this paragraph, “Products.” A deliverable
delivery. This demonstration will take the form of a documented furnished under this Contract by or through Contractor, including
installation test, capable of observation by the Authorized User, and existing and custom Products, including, but not limited to: a)
shall be made part of the Contractor’s standard documentation. The components of the hardware environment, b) printed materials
test data shall remain accessible to the Authorized User after (including but not limited to training manuals, system and user
completion of the test. documentation, reports, drawings), whether printed in hard copy or
maintained on diskette, CD, DVD or other electronic media c) third
In the event that the documented installation test cannot be completed party software, d) modifications, customizations, custom programs,
successfully within the specified acceptance period, and the program listings, programming tools, data, modules, components, and
Contractor or Product is responsible for the delay, Authorized User e) any properties embodied therein, whether in tangible or intangible
shall have the option to cancel the order in whole or in part, or to form (including but not limited to utilities, interfaces, templates,
extend the testing period for an additional thirty (30) day increment. subroutines, algorithms, formulas, source code, object code).
Authorized User shall notify Contractor of acceptance upon successful
completion of the documented installation test. Such cancellation (ii) For purposes of this paragraph, “Existing Products.”
shall not give rise to any cause of action against the Authorized User Tangible Products and intangible licensed Products that exist prior to
for damages, loss of profits, expenses, or other remuneration of any the commencement of work under the Contract. Contractor bears the
kind. burden of proving that a particular product was in existence prior to
the commencement of the Project.
If the Authorized User elects to provide a deficiency statement
specifying how the Product fails to meet the specifications within the (iii) For purposes of this paragraph, “Custom Products.”
testing period, Contractor shall have thirty (30) days to correct the Products, preliminary, final or otherwise, which are created or
deficiency, and the Authorized User shall have an additional sixty developed by Contractor, its Subcontractors, partners, employees or
(60) days to evaluate the Product as provided herein. If the Product agents for Authorized User under the Contract.
does not meet the specifications at the end of the extended testing
period, Authorized User, upon prior written notice to Contractor, may b. Title to Project Deliverables Contractor acknowledges that it
then reject the Product and return all defective Product to Contractor, is commissioned by the Authorized User to perform the services
and Contractor shall refund any monies paid by the Authorized User detailed in the Purchase Order. Unless otherwise specified in writing
to Contractor therefor. Costs and liabilities associated with a failure in the Bid or Purchase Order, the Authorized User shall have
of the Product to perform in accordance with the functionality tests or ownership and license rights as follows:
product specifications during the acceptance period shall be borne (i) Existing Products:
fully by Contractor to the extent that said costs or liabilities shall not 1. Hardware - Title and ownership of Existing Hardware
have been caused by negligent or willful acts or omissions of the Product shall pass to Authorized User upon Acceptance.
Authorized User’s agents or employees. Said costs shall be limited to 2. Software - Title and ownership to Existing Software
the amounts set forth in the Limitation of Liability Clause for any Product(s) delivered by Contractor under the Contract that is
liability for costs incurred at the direction or recommendation of normally commercially distributed on a license basis by the
Contractor. Contractor or other independent software vendor proprietary owner
(“Existing Licensed Product”), whether or not embedded in,
80. AUDIT OF LICENSED PRODUCT USAGE Contractor delivered or operating in conjunction with hardware or Custom
shall have the right to periodically audit, no more than annually, at Products, shall remain with Contractor or the proprietary owner of
Contractor’s expense, use of licensed Product at any site where a copy other independent software vendor(s) (ISV). Effective upon
of the Product resides provided that: (i) Contractor gives Licensee(s) acceptance, such Product shall be licensed to Authorized User in
at least thirty (30) days advance written notice, (ii) such audit is accordance with the Contractor or ISV owner’s standard license
conducted during such party’s normal business hours, (iii) the audit is agreement, provided, however, that such standard license, must, at a
conducted by an independent auditor chosen on mutual agreement of minimum: (a) grant Authorized User a non-exclusive, perpetual
the parties. Contractor shall recommend a minimum of three (3) license to use, execute, reproduce, display, perform, adapt (unless
auditing/accounting firms from which the Licensee will select one Contractor advises Authorized User as part of Contractor’s proposal
(1). In no case shall the Business Software Alliance (BSA), Software that adaptation will violate existing agreements or statutes and
Publishers Association (SPA), Software and Industry Information Contractor demonstrates such to the Authorized User’s satisfaction)
Association (SIIA) or Federation Against Software Theft (FAST) be and distribute Existing Licensed Product to the Authorized User up to
used directly or indirectly to conduct audits, or be recommended by the license capacity stated in the Purchase Order or work order with
Contractor; (iv) Contractor and Licensee are each entitled to all license rights necessary to fully effect the general business
designate a representative who shall be entitled to participate, and purpose(s) stated in the Bid or Authorized User’s Purchase Order or
who shall mutually agree on audit format, and simultaneously review work order, including the financing assignment rights set forth in
all information obtained by the audit. Such representatives also shall paragraph (c) below; and (b) recognize the State of New York as the

July 2006 17
GENERAL SPECIFICATIONS APPENDIX B

licensee where the Authorized User is a state agency, department, herein to the benefit of the Authorized User at Contractor’s sole cost and
board, commission, office or institution. Where these rights are not expense.
otherwise covered by the ISV’s owner’s standard license agreement,
the Contractor shall be responsible for obtaining these rights at its 82. PROOF OF LICENSE The Contractor must provide to each
sole cost and expense. The Authorized User shall reproduce all Licensee who places a Purchase Order either: (i) the Product
copyright notices and any other legend of ownership on any copies developer’s certified License Confirmation Certificates in the name of
authorized under this paragraph. such Licensee; or (ii) a written confirmation from the Proprietary
owner accepting Product invoice as proof of license. Contractor shall
(ii.) Custom Products: Effective upon creation of Custom submit a sample certificate, or alternatively such written confirmation
Products, Contractor hereby conveys, assigns and transfers to from the proprietary developer. Such certificates must be in a form
Authorized User the sole and exclusive rights, title and interest in acceptable to the Licensee.
Custom Product(s), whether preliminary, final or otherwise, including
all trademark and copyrights. Contractor hereby agrees to take all 83. PRODUCT VERSION Purchase Orders shall be deemed to
necessary and appropriate steps to ensure that the Custom Products reference Manufacturer’s most recently released model or version of
are protected against unauthorized copying, reproduction and the Product at time of order, unless an earlier model or version is
marketing by or through Contractor, its agents, employees, or specifically requested in writing by Authorized User and Contractor is
Subcontractors. Nothing herein shall preclude the Contractor from willing to provide such version.
otherwise using the related or underlying general knowledge, skills,
ideas, concepts, techniques and experience developed under a 84. CHANGES TO PRODUCT OR SERVICE OFFERINGS
Purchase Order, project definition or work order in the course of a. Product or Service Discontinuance Where Contractor is the
Contractor’s business. Authorized User may, by providing written Product Manufacturer/Developer, and Contractor publicly announces
notice thereof to the Contractor, elect in the alternative to take a non- to all U.S. customers (“date of notice”) that a Product is being
exclusive perpetual license to Custom Products in lieu of Authorized withdrawn from the U.S. market or that maintenance service or
User taking exclusive ownership and title to such Products. In such technical support provided by Contractor (“withdrawn support”) is no
case, Licensee on behalf of all Authorized Users shall be granted a longer going to be offered, Contractor shall be required to: (i) notify
non-exclusive perpetual license to use, execute, reproduce, display, the Commissioner, each Licensee and each Authorized User then
perform, adapt and distribute Custom Product as necessary to fully under contract for maintenance or technical support in writing of the
effect the general business purpose(s) as stated in paragraph (b)(i)(2), intended discontinuance; and (ii) continue to offer Product or
above. withdrawn support upon the Contract terms previously offered for the
greater of: a) the best terms offered by Contractor to any other
c. Transfers or Assignments to a Third Party Financing Agent It customer, or b) not less than twelve (12) months from the date of
is understood and agreed by the parties that a condition precedent to notice; and (iii) at Authorized User’s option, provided that the
the consummation of the purchase (s) under the Contract may be the Authorized User is under contract for maintenance on the date of
obtaining of acceptable third party financing by the Authorized User. notice, either: provide the Authorized User with a Product
The Authorized User shall make the sole determination of the replacement or migration path with at least equivalent functionality at
acceptability of any financing proposal. The Authorized User will no additional charge to enable Authorized User to continue use and
make all reasonable efforts to obtain such financing, but makes no maintenance of the Product.
representation that such financing has been obtained as of the date of
Bid receipt. Where financing is used, Authorized User may assign or In the event that the Contractor is not the Product Manufacturer,
transfer its rights in Licensed Products (existing or custom) to a third Contractor shall be required to: (i) provide the notice required under
party financing entity or trustee (“Trustee”) as collateral where required the paragraph above, to the entities described within five (5) business
by the terms of the financing agreement. Trustee’s sole rights with days of Contractor receiving notice from the Product Manufacturer,
respect to transferability or use of Licensed Products shall be to and (ii) include in such notice the period of time from the date of
exclusively sublicense to Authorized User all of its Licensee’s rights notice that the Product Manufacturer will continue to provide Product
under the terms and conditions of the License Agreement; provided, or withdraw support.
further, however, in the event of any termination or expiration of such
sublicense by reason of payment in full, all of Trustee’s rights in such The provisions of this subdivision (a) shall not apply or eliminate
Licensed Product shall terminate immediately and Authorized User’s Contractor’s obligations where withdrawn support is being provided
prior rights to such Existing Licensed Product shall be revived. by an independent Subcontractor. In the event that such
Subcontractor ceases to provide service, Contractor shall be
d. Sale or License of Custom Products Involving Tax-Exempt responsible for subcontracting such service, subject to state approval,
Financing (i.e., Certificates of Participation - COPS) The to an alternate Subcontractor.
Authorized User’s sale or other transfer of Custom Products which were
acquired by the Authorized User using third party, tax-exempt financing b. Product or Service Re-Bundling In the event that Contractor is
may not occur until such Custom Products are, or become, useable. In the Product manufacturer and publicly announces to all U.S.
the event that the Contractor wishes to obtain ownership rights to customers (“date of notice”) that a Product or maintenance or
Custom Product(s), the sale or other transfer shall be at fair market technical support offering is being re-bundled in a different manner
value determined at the time of such sale or other transfer, and must be from the structure or licensing model of the prior U.S. commercial
pursuant to a separate written agreement in a form acceptable to the offering, Contractor shall be required to: (i) notify the State and each
Authorized User which complies with the terms of this paragraph. Authorized User in writing of the intended change; (ii) continue to
provide Product or withdrawn support upon the same terms and
e. Contractor’s Obligation with Regard to ISV (Third Party) conditions as previously offered on the then-current NYS Contract for
Product Where Contractor furnishes Existing Licensed Product(s) as a the greater of: a) the best terms offered by Contractor to any other
Project Deliverable, and sufficient rights necessary to effect the purposes customer, or b) not less than twelve (12) months from the date of
of this section are not otherwise provided in the Contractor or ISV’s notice; and (iii) shall submit the proposed rebundling change to the
standard license agreement, Contractor shall be responsible for obtaining Commissioner for approval prior to its becoming effective for the
from the ISV third party proprietary owner/developer the rights set forth

July 2006 18
GENERAL SPECIFICATIONS APPENDIX B

remainder of the Contract term. The provisions of this section do not

apply if the Contractor is not the Product manufacturer.

85. NO HARDSTOP/PASSIVE LICENSE MONITORING

Unless an Authorized User is otherwise specifically advised to the
contrary in writing at the time of order and prior to purchase,
Contractor hereby warrants and represents that the Product and all
Upgrades do not and will not contain any computer code that would
disable the Product or Upgrades or impair in any way its operation
based on the elapsing of a period of time, exceeding an authorized
number of copies, advancement to a particular date or other numeral,
or other similar self-destruct mechanisms (sometimes referred to as
“time bombs,” “time locks,” or “drop dead” devices) or that would
permit Contractor to access the Product to cause such disablement or
impairment (sometimes referred to as a “trap door” device).
Contractor agrees that in the event of a breach or alleged breach of
this provision that Authorized User shall not have an adequate
remedy at law, including monetary damages, and that Authorized User
shall consequently be entitled to seek a temporary restraining order,
injunction, or other form of equitable relief against the continuance of
such breach, in addition to any and all remedies to which Authorized
User shall be entitled.

86. SOURCE CODE ESCROW FOR LICENSED PRODUCT If

Source Code or Source Code escrow is offered by either Contractor or
Product manufacturer or developer to any other commercial
customers, Contractor shall either: (i) provide Licensee with the
Source Code for the Product; or (ii) place the Source Code in a third
party escrow arrangement with a designated escrow agent who shall
be named and identified to the State, and who shall be directed to
release the deposited Source Code in accordance with a standard
escrow agreement acceptable to the State; or (iii) will certify to the
State that the Product manufacturer/developer has named the State,
acting by and through the Authorized User, and the Licensee, as a
named beneficiary of an established escrow arrangement with its
designated escrow agent who shall be named and identified to the
State and Licensee, and who shall be directed to release the deposited
Source Code in accordance with the terms of escrow. Source Code, as
well as any corrections or enhancements to such source code, shall be
updated for each new release of the Product in the same manner as
provided above and such updating of escrow shall be certified to the
State in writing. Contractor shall identify the escrow agent upon
commencement of the Contract term and shall certify annually that
the escrow remains in effect in compliance with the terms of this
paragraph.

The State may release the Source Code to Licensees under this
Contract who have licensed Product or obtained services, who may
use such copy of the Source Code to maintain the Product.

FOR NEGOTIATED CONTRACTS THE FOLLOWING

CLAUSES ARE RESERVED BECAUSE BIDDING DOES NOT
APPLY:

Clauses: 7, 8, 9, 10, 11, 12, 13, 16, 15, 21, 25, 26, 28, 29, 30,
31, 32, 33, 36, 49, 50, 52, 54 and 37

July 2006 19
 INDEX

Paragraph Paragraph
A No. M No.
Additional Warranties 72 Modification of Contract Terms 40
Advertising Results 20
Applicability 1 N
Assignment 56 No Hardstop/Passive License Monitoring 85
Assignment of Claim 66
Audit of Licensed Product Usage 80 O
Authentication of Facsimile Bids 10 On-Site Storage 54
Ownership/Title to Project Deliverables 81
B
Bid Contents 12 P
Bid Evaluation 29 Participation in Centralized Contracts 39
Bid Opening 7 Performance and Responsibility Qualifications 34
Bid Submission 8 Performance/Bid Bond 58
Prevailing Wage Rates Public Works
C & Building Services Contracts 17
Changes to Product or Service Offerings 84 Pricing 24
Clarification/Revisions 31 Procurement Card 27
Confidential/Trade Secret Materials 14 Product Acceptance 79
Conflict of Terms 4 Product Delivery 45
Conditional Bid 30 Product References 21
Contract Billings 62 Product Substitution 50
Contract Creation/Execution 38 Product Version 83
Contract Term - Renewal 71 Products Manufactured in Public Institutions 23
Cooperation with Third Parties 70 Prompt Payment Discounts 32
Proof of License 82
D Purchase Orders 44
Default - Authorized User 63
Definitions 5 Q
Disqualification for Past Performance 35 Quantity Changes Prior to Award 36
Drawings 25
R
E Rejected Product 51
Emergency Contracts 43 Release of Bid Evaluation Materials 15
Employees/Subcontractors/Agents 55 Re-Weighing Product 49
Equivalent or Identical Bids 33 Remanufactured, Recycled, Recyclable or
Estimated/Specific Quantity Contracts 42 Recovered Materials 22
Ethics Compliance 3 Remedies for Breach 65
Expenses Prior to Contract Execution 19 Repaired or Replaced Product/Components 53
Extraneous Terms 13
S
F Samples 28
Facsimile Submissions 9 Savings/Force Majeure 61
Freedom of Information Law 16 Scope Changes 41
Security 69
G Site Inspection 26
Governing Law 2 Shipping/Receipt of Product 47
Software License Grant 78
I Source Code Escrow for Licensed Product 86
Indemnification 74 Subcontractors and Suppliers 57
Indemnification Relating to Third Party Rights 75 Suspension of Work 59
Independent Contractor 68
Installation 52 T
Insurance 77 Taxes 18
Interest on Late Payments 64 Termination 60
International Bidding 6 Timeframe for Offers 37
L Title and Risk of Loss 48
Late Bids 11 Toxic Substances 67
Legal Compliance 73
Limitation of Liability 76 W
Weekend and Holiday Deliveries 46

March 2006
 APPENDIX C

Contractor's Executive Law, Article 15-A

(M/WBE) Requirements

March 2006
 CONTRACTOR’S REQUIREMENT UNDER ARTICLE 15­A

In July of 1988, Article 15­A of the Executive Law was passed by the New York State Legislature.
This legislation provides specific rules, regulations and procedures for minority and women­owned
enterprise participation in certain State Contracts.

The Office of General Services (OGS) is required to implement the provisions of Article 15­A for all
of its Contracts (1) in excess of $25,000 for labor, services, supplies, equipment, materials, or any
combination of the foregoing and (2) for Contracts in excess of $100,000 for real property renovation
and construction.  For purposes of this Contract, OGS hereby establishes a goal of 0% for minority
business   enterprises   (MBE)   participation   and   0%   for   women­owned   business   enterprises   (WBE)
participation.

In order to be awarded an OGS Contract, every bidder must comply with the requirements, rules
and regulations outlined in Article 15­A.

POLICY AND PROVISIONS

It is the policy of the State of New York to promote equality of economic opportunity for minority
and women­owned business enterprises (M/WBEs) in State Contracting.   In order to comply with
the   State’s   objectives,   the   Contractors   shall   use   “good   faith   efforts”   to   provide   meaningful
participation by M/WBE Subcontractors or suppliers in the performance of this Contract.

For the purpose of determining a Contractor’s good faith effort to comply with the requirements of
Article 15­A or to be entitled to a waiver therefrom, the Contracting agency shall consider:

(a) Whether   the   Contractor   has   advertised   in   general   circulation   media,   trade   association
publications, minority­focus and women­focus media.  In such event,

(i) whether or not certified minority or women­owned businesses which have been solicited
by the Contractor exhibited interest in submitting proposals for a particular project by
attending a pre­bid conference; and

(ii) whether certified businesses which have been solicited by the Contractor have responded
in a timely fashion to the Contractor’s solicitations for timely competitive bid quotations
prior to the Contracting agency’s bid date; and

(b) Whether there has been written notification to appropriate certified businesses that appear in
the Directory of Certified M/WBE prepared pursuant to paragraph (f) of subdivision three of
section three hundred eleven of this article; and

(c) Whether the Contractor can reasonably structure the amount of work to be   performed under

subcontracts in order to increase the likelihood of participation by certified businesses.

March 2006
A. GOALS ­ The MBE and WBE participation goals as stated earlier are based on the availability
of   M/WBEs   currently   certified   by   New   York   State   and   geographically   located   to   be   able   to
perform   the   work   in   the   region   where   the   project   is   located.     The   total   dollar   value   of   the
Contract, scope of work, the supplies and equipment necessary to perform the project, are also
considerations used to determine the percentage goals.

B. UTILIZATION ­ The Contractor may count as M/WBE participation: subcontracting part of the
Contract to certified firms or purchasing supplies and equipment used to perform the terms and
conditions of the Contract from certified firms.

Upon a showing by the Contractor of every good faith effort to achieve  the goal for M/WBE
participation in the work, the State will waive a Contractor’s failure to achieve the goal M/WBE
participation.

C. MINORITY AND WOMEN­OWNED BUSINESS OFFICER ­ The Contractor shall designate
an Affirmative Action officer and assign the officer the responsibility and authority to monitor
the   M/WBE   program   for   this   Contract.     The   OGS’   Office   of   Minority   and   Women­owned
Business Enterprises’ staff is available to help in identifying certified M/WBEs.

D. REQUIRED REPORTS ­ The Contractor is required to submit a Utilization Plan (BDC­328) to
the NYS Office of General Services within five (5) days after the opening of bids for construction
Contracts exceeding $100,000 and 14 days after notification of award for commodity and service
Contracts exceeding $25,000.  The Contractor must also submit the MBE/WBE Letter of Intent
to Participate (BDC­49).  The Letter MBE/WBE of Intent to Participate is a commitment by the
Contractor   and   the   subcontractor/supplier   that   the   terms   and   conditions   for   M/WBE
participation   on   this   Contract   are   agreed   to.     Any   modifications   or   changes   to   the   agreed
participation by certified M/WBEs, over the term of the Contract, must be reported on a revised
Utilization Plan.

E. NONDISCRIMINATION  ­   The   Contractor   agrees   not   to   discriminate   on   the   basis   of   race,

creed, color, national origin, gender, age, disability, or marital status, in any respect, against
any potential subcontractor, supplier, other company, firm, or enterprise in any manner relating
to the performance of this Contract.

POST AWARD

The Contractor must submit to the Office of Minority and Women­owned Business Enterprises after
notification of award, the following forms, by the 10 th day of each month:

1. (BDC­58) Cumulative Monthly Payment Statements
2. (BDC­25) Monthly Affirmation of Income Payments

March 2006
All questions regarding compliance to Article 15­A requirements or copies of the forms should be
addressed to:

New York State Office of General Services
Office of Minority and Women­owned Business Enterprises
35th Floor, Room 3580
Corning Tower Building
Empire State Plaza
Albany, NY  12242

The telephone numbers and addresses for New York State Department of Economic Development
are as follows:

New York State Department of Economic Development
633 Third Avenue
New York, NY  10017

Telephone: (212) 803­2414

New York State Department of Economic Development
Division o f Minority and Women’s Business Development
30 South Pearl Street
Albany, New York 12245
Telephone: (518) 292­5250

March 2006
 APPENDIX D

CONTRACT UPDATE FORM

March 2006
 STATE OF NEW YORK
EXECUTIVE DEPARTMENT - OFFICE OF GENERAL SERVICES
PROCUREMENT SERVICES GROUP
Corning Tower – 37th Floor
Empire State Plaza
Albany, New York 12242

CONTRACT UPDATE FORM

OGS CONTRACT NO.:___________________ DATE OF SUBMISSION:______________________
CONTRACT PERIOD: VENDOR CONTACT:
From: ______________To: ________________ NAME:______________________
PHONE NO:__________________
GROUP NO. & DESCRIPTION:_____________ FAX NO.:____________________
_________________________________________ E-MAIL:_____________________

NOTE: Submission of this FORM does not constitute acceptance by the State of New York until approved by
the appropriate New York State representative(s).

INSTRUCTIONS:

1. This form is to be used for all contract updates. The form is to be completed in triplicate and submitted to the OGS
Procurement Services Group for final approval. Vendors shall complete, sign, and notarize where indicated, and attach
this form to a cover letter written on standard company letterhead. Any submission that is not complete or signed in
triplicate will be rejected.

2. Contractor may be required to submit the Product and price information for the update in an Excel spreadsheet format
in hard copy and on a floppy disk and/or electronically via e-mail to the OGS Purchasing Officer.

3. To expedite the processing of updates that qualify as Auto Adds, do not combine Auto Adds with Regular or Special
Adds. If more than one type of update is being submitted, they should be submitted as totally separate requests.

4. The list must be dated and the format should be consistent with the format of the price list(s) included in the Pricing
Appendix of the Contract.

5. The contract update must be accompanied by either the GSA Price List and revised NYS Net Price List incorporating all
changes or the US Commercial Price List and revised NYS Net Price List incorporating all changes, whichever is
applicable.

COMPLETE STATEMENTS 1 THROUGH 8 BELOW:

1. This request is an: 2. The intent of this submittal is to:

_____Auto Add _____Add new products
_____Regular Add _____Delete products
_____Special Add _____Increase pricing
See contract for an explanation of these terms. _____Reduce pricing
_____Amend VAR list

March 2006
3. All terms and conditions of the contract shall apply 4. All discounts as agreed to in the contract shall apply.
to this request.
_____Agree _____Agree
_____Disagree _____Disagree
5. All discounts are: 6. Attached documentation includes:
_____GSA _____Current approved GSA (labeled "For information
_____Most Favored Nation* only")
_____Current commercial price list (labeled "For
*Prices offered are the lowest offered to any similarly information only")
situated entity. _____Revised NYS Net Price List

7. If other than an auto-ad, describe the Nature and Purpose of the update:
_____________________________________________________________________________________________
___________________________________________________________________________________________
8. For a regular add, please explain how pricing has been restructured to customers, and/or identify and describe
new Products or services, which fall into a new group or category that did not exist at the time of approval of
the Contract by the New York State Comptroller. If not applicable, state NA:
_____________________________________________________________________________________________
___________________________________________________________________________________________

The following CORPORATE ACKNOWLEDGEMENT statement is to be included in each of the three original forms.
The request must be signed by an individual given the authority to perform this action by the corporation’s board of
directors and the signature must be notarized.

_____________________________________
Signature of Authorized Vendor Representative:

CORPORATE ACKNOWLEDGMENT

STATE OF 
: ss.:
COUNTY OF 
On the_____day of________________in the year 20__, before me personally came:
_________________________________________, to me known, who, being by me duly sworn, did depose and
say that he/she/they reside(s) in ____________________________________________; that he/she/they is (are)
_____________________________________________ (the President or other officer or director or attorney in fact
duly appointed) of ____________________________________________, the corporation described in and which
executed the above instrument; and that he/she/they signed his/her/their name(s) thereto by authority of the board
of directors of said corporation.

________________________________________________
Notary Public

March 2006
 FOR STATE USE ONLY
OGS APPROVAL: OSC APPROVAL:
Approved______ Approved as amended______ Approved______ Disapproved______
Disapproved______
Name:____________________________________
Name:____________________________________
Title:_______________________________________
Title:_______________________________________
Date_______________
Date________________

March 2006
 APPENDIX E

CONTRACTOR’S REQUIRED SUBMISSIONS

March 2006
APPENDIX E - SUBMISSION #1 Contractor Name: _____________________

SUBMISSION #1
MANDATORY CONTRACTOR QUESTIONNAIRE
[CONTRACTOR MUST ANSWER ALL QUESTIONS]
Page 1 of 3

1. Are you a New York State resident business? Yes_____ No_____

2. Total number of people employed by your firm:
3. Total number of people employed by your firm in New York State:
4. Is your company independently owned and operated? Yes_____ No______
5. Place of manufacture or development of Product(s) offered
(Please indicate “Yes” or “No” for A, B or C):
A. All NYS manufacture/development? Yes_____ No______
OR
B. All manufactured/developed outside NYS? Yes _____ No______
OR
C. Manufactured/developed in NYS and outside NYS? Yes_____ No______
6. Is your firm at least 51% owned and controlled by women, or 51% owned
and controlled by minority group members, i.e., Black Hispanic, Asian,
Pacific Islander, American Indian, Alaskan Native? Yes_____ No______

If yes, _____Minority Owned ______Women Owned

If yes, have you been certified or registered? ____Yes _____No

If yes, List certification or registration authority:

__________________________________________________
__________________________________________________
7. Do any of the Products offered herein incorporate recycled materials? Yes_____ No____
N/A___
8. Do any of the Products offered herein contain remanufactured Yes_____ No____
components? N/A ___

9. Are any of the Products offered herein Energy Star Compliant? Yes_____ No____
N/A ___
If yes, which Products?
__________________________________________

____________________________________________________________

10. BIDDER/OFFERER DISCLOSURE OF PRIOR NON-RESPONSIBILITY

DETERMINATIONS
Pursuant to Procurement Lobbying Law (SFL §139-j)
A. Has any Governmental Entity made a finding of non-responsibility
regarding the individual or entity seeking to enter into the Procurement
Contract in the previous four years?
If yes, please answer the
following:

question:
B. Was the basis for the finding of non-responsibility due to a violation of
State Finance Law §139-j?
C. If yes, was the basis for the finding of non-responsibility due to the
intentional provision of false or incomplete information to a governmental
entity?

March 2006
APPENDIX E - SUBMISSION #1 Contractor Name: _____________________

If yes, please provide details regarding the finding of non-

responsibility:
Governmental Entity: ________________________
Date of Finding of Non-responsibility: ________________________
Basis of Finding of Non-
Responsibility:
(add additional pages if necessary)
D. Has any governmental agency terminated or withheld a procurement
contract with the above-named individual or entity due to the intentional
provision of false or incomplete information? Yes_____ No______

If yes, please provide details:

Governmental Entity: _________________________
Date of Termination or Withholding of Contract: _________________________
Basis of Termination or Withholding: _________________________
(add additional pages if necessary)
Signature: _________________________
Printed Name: _________________________
Date: _________________________

11. "NONDISCRIMINATION IN EMPLOYMENT IN

NORTHERN IRELAND:
MacBRIDE FAIR EMPLOYMENT PRINCIPLES"

In accordance with Section 165 of the State Finance Law, the Developer,
by submission of this contract, certifies that it or any individual or legal
entity in which the Developer holds a 10% or greater ownership interest,
or any individual or legal entity that holds a 10% or greater ownership
interest in the Developer, either:
(answer Yes or No to one or both of the following, as applicable),
A. have business operations in Northern Ireland: a. Yes_____ No______
If yes,
B. shall take lawful steps in good faith to conduct any business
operations in Northern Ireland in accordance with the MacBride Fair
Employment Principles relating to non-discrimination in employment
and freedom of workplace opportunity regarding such operations in
Northern Ireland, and shall permit independent monitoring of b. Yes_____ No______
compliance with such Principles.

March 2006
APPENDIX E - SUBMISSION #1 Contractor Name: _____________________

12. Are prices quoted the same as or lower than those quoted other
corporations, institutions and government agencies (including GSA/VA
contracts) on similar products, quantities, terms and conditions? Yes_____ No______
See "Best Pricing Offer" in Appendix B, OGS General Specifications.
If "NO", please explain on a separate sheet.
A. Do you have a contract with the General Services Administration Yes_____ No______
(GSA) or Veterans Affairs (VA) for products offered? (Check all that GSA____
apply.)
VA ____
B. If yes, will you offer New York State your GSA or VA Yes_____ No______
pricing or better? GSA____
VA ____

C. If yes, a copy of the GSA or VA schedule is required. Yes_____ No______

Have you included a copy? GSA____
VA ____
13. If awarded a contract, will bidder accept the New York State Procurement
Card? Yes_____ No______
A. If yes, state any dollar limit on orders for which you will accept the
NYS Procurement Card. Up to $________________
B. Additional discount for purchases made with the NYS Procurement Yes_____ No______
Card:
_____ %
14. Will you offer a Cash Discount for payment within 15 days of delivery Yes_____ No______
and/or receipt of voucher?
_____ %
15. Will you offer a Cash Discount for payment within 30 days of delivery Yes_____ No______
and/or receipt of voucher?
_____ %

* * * ALL VENDORS PLEASE TAKE NOTICE OF NUMBER 16 BELOW * * *

16. NON-COLLUSION CERTIFICATION

By submission of this contract, each contractor and each person signing on behalf of any contractor certifies,
and in the case of a joint contract each party thereto certifies as to its own organization, under penalty of
perjury, that to the best of its knowledge and belief:

(1) The prices in this contract have been arrived at independently without collusion, consultation,
communication, or agreement, for the purpose of restricting competition, as to any matter relating to
such prices with any other contractor or with any competitor;

(2) Unless otherwise required by law, the prices which have been quoted in this contract have not been
knowingly disclosed by the contractor and will not knowingly be disclosed by the contractor prior to
contract award, directly or indirectly, to any other contractor or to any competitor; and

(3) No attempt has been made or will be made by the contractor to induce any other person, partnership or
corporation to submit or not to submit a contract for the purpose of restricting competition.

_______________________________________ ______________________________________
(Contractor's Signature) (Name of Business)

March 2006
APPENDIX D - SUBMISSION #2 Contractor Name: _____________________

August 2003
APPENDIX E - SUBMISSION #2 Contractor Name: _____________________

Submission # 2
Contractor & Reseller/Distributor Information

Contractor Information (for Ordering and Contract Administration Purposes)

1. CONTRACTOR/COMPANY
INFORMATION
Company Name:
Address:
(From first page of Contract)

FEDERAL ID #:
Source Code Escrow Agent:
Name:
Address:
Phone Number:

2. CENTRALIZED
CONTRACT
Contract Administrator Name:
Title:
Mailing Address:

Telephone Number:
E-mail:
FAX:

3. SALES/BILLING
Contact Name:
Title:
Address:
Telephone Number:
E-mail:
FAX:

4. MAINTENANCE/ SERVICE
Contact Name:
Title:
Address:
E-mail:
WWW Address:
Telephone Number: FAX:
Contract “Toll” Free Support Hours of Availability:
Phone Number:

August 2003
APPENDIX E - SUBMISSION #2 Contractor Name: _____________________

Reseller/Distributor Information
Contractor’s General 1. Attach a description of all reseller criteria following this page; or
Commercial Qualifying Criteria 2. If Contractor does not market or distribute product through
for Resellers/Distributors: resellers/distributors in the normal course of business, Contractor must
attach a statement to that effect following this page.
3. Attach additional sheets, if necessary.
Reseller/Distributor
(#1) Company Name:
Address:

FEDERAL ID #:
Contract Administrator Name:
Title:
Telephone Number:
E-mail:
FAX:
Reseller is Authorized to: Take Orders Ship Direct Receive Payment
Qualifying Criteria Applicable to
this Reseller:

Reseller/Distributor
(#2) Company Name:
Address:

FEDERAL ID #:
Contract Administrator Name:
Title:
Telephone Number:
E-mail:
FAX:
Reseller is Authorized to: Take Orders Ship Direct Receive Payment
Qualifying Criteria Applicable to
this Reseller:

Reseller/Distributor
(#3) Company Name:
Address:

FEDERAL ID #:
Contract Administrator Name:
Title:
Telephone Number:
E-mail:
FAX:
Reseller is Authorized to: Take Orders Ship Direct Receive Payment
Qualifying Criteria Applicable to
this Reseller:

August 2003
APPENDIX E - SUBMISSION #3 Contractor Name: _____________________

Submission # 3

NYS Contract Net Price List

(NYS Net Prices For: Software, Maintenance,
Consulting & Training Services)
(to be attached by Contractor)

Pricing is Based On:

US Commercial List, Dated _________________

GSA Supply Schedule Number ______________.

Dated ____________

Other: __________________________________

August 2003
APPENDIX E - SUBMISSION #4 Contractor Name: _____________________

Submission # 4

Maintenance & Support

(Description of Services,
including response times, severity level,
support phone numbers, hours of availability, etc. )

(to be attached by Contractor)

APPENDIX E - SUBMISSION #5 Contractor Name: _____________________

Submission # 5

Consulting & Training Services

(Description of Services & Course Offerings)
(to be attached by Contractor)