KCTCS General Terms and Conditions

These GENERAL CONDITIONS are applicable to all bids and contracts with the Kentucky Community & Technical College System (KCTCS), Department of Purchasing.

We encourage you/your firm to study these conditions and retain copies for reference, as they are an integral part of all contracts awarded by the KCTCS Purchasing Department.

The following GENERAL CONDITIONS are applicable to each Invitation to Bid issued by KCTCS and to each purchase made by any authorized method of acquisition. Each firm submitting a bid or selling to KCTCS shall be deemed to have assented to these conditions by the act of bidding and/or acceptance of a purchase request.

These GENERAL CONDITIONS will not be repeated in each Invitation to Bid although they shall be an integral part of each invitation and resulting contract. These General Conditions will be sent to any vendor upon request.

Additional conditions may be incorporated in specific Invitations to Bid, Request for Proposals, and contracts, and are generally termed "Special Conditions." Such special conditions will in no way operate to alter or nullify the general conditions and each bidder shall be responsible for compliance with both the general and special conditions. However, in cases of irreconcilable conflict, the special conditions will govern.

I. BID SUBMISSION COMPLIANCE AND PROVISIONS:

1.  In submitting bids to KCTCS the bidder agrees to:
    
1. Submit only one bid response for each solicitation.
2. Submit each bid, quotation, or proposal in legible form on the Invitation to Bid, Request for Quote, or Request for Proposal form, respectively.
3. Have the bid signed, before the bid opening, by a proper agent of the firm. No bid will be considered valid unless signed in the space provided on the KCTCS bid form.
4. Specify brand name or trademark and model and catalog number for each item bid.
5. Extend prices for items where applicable and provide an extended total and a grand total where appropriate, it being understood that in cases of an error in an extension of prices, the unit price will govern.
6. Unless instructed otherwise to do so, quote only one price for each item stated on the bid document.
7. Quote prices on a delivered, prepaid basis, F.O.B. DESTINATION, shown in shipping instructions of the Invitation unless otherwise stated in the Invitation. Do not quote "F.O.B. FACTORY FREIGHT ALLOWED" or other such terms.
8. Provide technical specifications with the bid response together with any other data necessary to properly evaluate products offered as equal to those specified in the Invitation, when alternate products are allowable.
9. Refrain from including Kentucky Sales and/or Use Tax in the bid, unless otherwise stated. KCTCS is exempt from such tax. However, bidders are informed that construction contracts for KCTCS are not exempt from the provisions of the Kentucky Sales and/or Use Tax. All adjustments and allowances for the current sales and/or use tax shall be provided for in the bid amount as no adjustments will be permitted and/or made after the fact.
10. Provide new, unused, and current commodities (latest model) unless otherwise specified in the Invitation.
11. Provide firm prices unless otherwise stated in the Invitation.
12. Submit bids in such a way as to ensure that they arrive in the Department of Purchasing before the opening time set for the bid, quotation or Request for Proposal, the time shown on a recording clock at KCTCS being agreed upon as the official time. Bids received after the time set for opening shall be considered "late bids" and will not be eligible for award of contract unless no valid bid is received. To be considered for an award of contract, a late bid must be postmarked before the opening date and must be the only responsive bid received.
13. Maintain as a firm offer any and all bids with respect to price, terms and conditions after they are opened, it being understood that bids may be withdrawn after they are opened, and prior to an award only where evidence is presented to the Director of Purchasing which clearly demonstrates that the bidder has made a bona fide error in the preparation of the bid and that the error will result in a substantial loss to the bidder if he or she is forced to perform under the contract.
14. Accept any contracts awarded on the price, terms and conditions stated in the bid.
15. Submit a bid bond or check as specified in the Special Instructions of the Invitation, it being understood that any bid may be rejected for failure to comply with instructions or specifications regarding both bonds and/or checks.
16. Comply with the General Instructions and with all requests regarding the submission of samples and to pay all shipping costs for samples either sent to or returned from the Department of Purchasing. The bidder agrees that title to any sample vests in the Department of Purchasing if return is not requested within thirty (30) days.
17. Make available records, papers, books or other documents whether during performance or in connection with a preliminary investigation of bidder's financial status. Such information shall be limited to the information generally available to the public, provided it satisfactorily indicated the bidder's ability to perform as specified under the contract. If the initial investigation does not reasonably satisfy the Department of Purchasing that the contract can be performed, the Purchasing Department may request additional information before a contract is awarded. The bidder further agrees, if so requested, to furnish Purchasing a list of names of several users of the bidder's product or services.
18. File a performance bond pursuant to a request from the Department of Purchasing whether or not such a bond was required by the Invitation to Bid. The bidder will sign the bond as principal and in addition will have the bond signed by a surety company authorized to do business in the Commonwealth of Kentucky, it being understood that if the surety has its authority to do business in Kentucky revoked or withdrawn from doing business in the Commonwealth, the bidder who meets the requirements of this condition will promptly obtain another surety on the bond. All bonds furnished under this condition shall be conditioned upon the full performance of all obligations imposed on the bidder by their contract with KCTCS and shall provide for recovery by KCTCS of any and all damages suffered by it by reason of the bidder's failure to perform any of his contract obligations, said recovery being permissible from the bidder and the surety or either of them.
19. Obtain a bond meeting the requirements stated above from the bidder's source of supply when requested to do so by the Department of Purchasing. If such a bond is required, it shall be made in favor of KCTCS and shall be conditioned on the source of supply making available to the bidder such equipment or products as will enable him to fulfill his or her obligations under contract with KCTCS.
20. Submit the required bonds on any form approved by the Department of Purchasing.
21. Provide bonds, insurance and any other documents or meet requirements stipulated in general or specific conditions of Invitations to Bid for Construction Contracts.
22. Refrain from assigning any interest, right or duty in any contract with KCTCS to any other person without the prior written consent of the Department of Purchases, except that claims for sums due or to become due under a contract may be assigned to a bank, trust company or other person and may then be reassigned. Notice of any assignment shall be given by the vendor or his assignee to the using agency, the Director of Purchasing and the Department of Accounts Payable, 300 North Main Street, Versailles KY 40383, immediately after the assignment is made, and the invoice or voucher submitted by the vendor shall clearly show both the vendor name and address and the assignee's name and address. The warrant issued by Accounts Payable shall be payable in such case jointly to the vendor and the assignee and shall be forwarded to the assignee. Any assignee shall be subject to the set-off rights of the Commonwealth provided in Kentucky Revised Statutes. See KRS 371.040 and KRS 44.030.
23. If state offices are closed on days other than scheduled holidays, bid openings scheduled for that day shall be held on the next normal working day at the scheduled hour.
    If opening hours of state offices are delayed, morning bid openings shall be delayed by the same amount of time. (i.e. If offices open two hours late, morning bids shall be opened two hours late.) Afternoon bids shall be opened as scheduled.
24. When responding to an Invitation to Bid, refrain from imposing conditions that would modify the terms and conditions of the solicitation or limit the bidder's liability to KCTCS on the contract awarded on the basis of such Invitation.
    
2. Through the Commonwealth of Kentucky, KCTCS is entitled to exemption from Federal Excise Tax. All bidders or contractors shall take this into consideration in their bids.
   
3. Withdrawal or modification of bids prior to the closing time and date designated for receipt of bids may be accomplished under circumstances as follows:
1. A properly identified representative of the bidding firm may request that a bid be withdrawn prior to the bid opening. This request may be made in writing if signed by a duly authorized representative of the firm whose name appears on the face of the envelope. If a bidder decides to withdraw the bid but is unable to appear or have an authorized representative appear in person prior to official closing and opening date for bids, the bid will be opened, read and tabulated along with any other bids. Any written request for bid withdrawal will be reviewed and evaluated in accordance with policies as stated herein.
2. Withdrawn bids may be resubmitted up to the closing time designated for receipt of bids. A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for receipt of bids without approval of the appropriate PURCHASING OFFICIAL and subject to the forfeit of bid guarantee and suspension of future bidding privileges.
   
4. Unless otherwise specified, telephone or facsimile responses shall not be accepted.

II. CONTRACT CANCELLATION FOR CAUSE:

The seller agrees that KCTCS may, in addition to any other remedies to which it may be entitled under a contract or which may otherwise be available to it under law or equity, cancel any contract or other purchase for the following causes:

1. Failure of the seller to furnish a satisfactory performance bond or insurance certificates within the time specified by the Department of Purchasing.
2. Failure to make delivery within the time specified in the contract.
3. Failure to provide commodities, supplies or equipment that conform to the specifications in the contract or fails to conform to samples submitted by the seller.
4. Repeated instances of the delivery of goods that do not conform with the contract terms and specifications even though said goods are promptly replaced with conforming goods. 
5. Misrepresentations of such a serious nature (for example, misbranding of food or drugs) in connection with any contract that the vendor cannot reasonable be expected to fulfill his obligations as a responsible vendor to KCTCS.
6. Failure to abide by any instruction issued by the Department of Purchasing in connection with either Invitations to Bid or performance under the contract.

Contracts or purchases may be canceled pursuant to this Section II if the acts or omissions, which would otherwise provide grounds for cancellation, are proximately caused by war, acts of public enemies, flood or acts of God.

III. COMPLIANCE WITH STATE AND FEDERAL LAW:

The seller further agrees that in addition to any other remedies at law or equity, the Department of Purchasing may cancel any contract where there is sufficient evidence to show that:

1. The contract was obtained by fraud, collusion, conspiracy or other unlawful means.
2. The contract conflicts with any statutory or Constitution provision of the Commonwealth of Kentucky or of the United States.

IV. GOVERNING LAW

1. It is mutually agreed by and between KCTCS and the seller that the laws of the Commonwealth of Kentucky shall govern any contract agreement entered into with KCTCS.

V.  COMPENSABLE DAMAGES FOR BREACH:

The seller agrees that the following items shall be included as compensable damages for any breach of a contract with KCTCS.

1. Replacement costs.
2. The cost of repeating the competitive bidding procedure.
3. Expenses incurred as the result of delay in obtaining replacements.
   The enumeration of compensable damages contained in this section is not intended to be exclusive and will not operate to bar recovery by KCTCS for any other damages occasioned by the vendor's breach of a contract. However, in cases where the contract provides for liquidated damages, said liquidated damages shall be in lieu of all other damages, including those enumerated.

VI. DELIVERY, TRANSPORTATION AND PACKAGING:

The seller covenants that, if awarded a contract, they will:

1. Make deliveries as stated in the contract, it being understood that all deliveries and invoices must be made by the end of KCTCS’s fiscal year in which the contract is awarded, unless otherwise specified in a specific contract.
2. Make deliveries during normal working day hours to the point or points specified in the Invitation to Bid.
3. Pay all transportation charges to the delivery point utilized by the using department unless otherwise specified in the contract.
4. Adequately pack all commodities and equipment, according to accepted commercial practice and the packaging and marking instructions in the contract document. No charges will be made for packing cases, baling, crating, barrels, drums, bags or other containers, except that if the bid so specifies, the vendor may make a memorandum charge and require KCTCS either to return the containers for credit, with transportation costs paid by the vendor, or pay for said containers if not returned in a reasonable length of time.

VII. CONTRACT PROVISIONS BY REFERENCE:

It is mutually agreed by and between KCTCS and the seller that KCTCS’s acceptance of the seller's offer by the issuance of an order shall create a contract between the parties thereto containing the following:

1. All specifications, terms and conditions in the Invitation to Bid and the Bid Form; except as amended in the contract.
2. The provisions of the awarded contract to include all terms, special conditions and specifications.
3. Kentucky Community And Technical College System General Conditions.

VIII. CONTRACT CHANGES:

KCTCS may at any time by a written order make changes, within the general scope of the contract. If any change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under the contract, whether changed or not changed by any such order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. Any claim by the contractor for adjustment under this clause must be asserted within 30 days from the date or receipt by the contractor of the notification of changes; provided, however, that KCTCS decides that the facts justify such action, may receive and act upon any such claim asserted at any time prior to final payment under this contract. Where the cost of property may be obsolete or excessive as a result of a change included in the contractor's claim for adjustment, KCTCS shall have the right to prescribe the manner of disposition of such property. Failure to agree to any adjustment shall be disputed concerning a question of fact within the meaning of the clause of the contract entitled "Disputes". However, nothing in the clause shall excuse the contractor from proceeding with the contract as changed.

IX. CONTRACT DISPUTES:

1. Except as otherwise provided in the contract, any dispute concerning a question of fact arising under any contract which is not resolved by agreement shall be decided by the Director of Purchasing. A written determination shall be made and provided to the vendor. The decision of the Director of Purchasing shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the contractor mails or otherwise furnishes a written appeal addressed to the Vice President of Finance. The decision of the Vice President or his duly authorized representative for the determination of such appeal, shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal preceding under this clause, the contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the contractor shall proceed diligently with the performance of the contract and in accordance with KCTCS’s decision.
2. This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (1) above: Provided, that nothing in the contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

X. EQUAL EMPLOYMENT COMPLIANCE:

During the performance of each contract the vendor agrees:

1. That he will not discriminate against any employee or applicant for employment because of race, religion, color, national origin, sex, or handicap. He will take affirmative action to ensure the applicants are employed and that employees are treated during employment without regard to their race, religion, color, national origin, sex or handicap. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. He agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of the nondiscrimination clause.
2. That he will, in all solicitations or advertisement for employees placed by or on behalf of him, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin, sex, or handicap.
3. That he will send to each labor union or representative of workers, with which he has a collective bargaining agreement or other contract or understanding, a notice advising the said labor union or workers' representative of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. He will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance.

XI. ADDITIONAL EQUAL EMPLOYMENT PROVISIONS UNDER CONTRACT UTILIZING FEDERAL
FUNDS:

In case the work to be performed is paid for in whole or in part with funds obtained from the Federal Government pursuant to a grant, contract, loan, insurance or guarantee, or undertaken pursuant to any Federal programs involving such grant, contract, loan, insurance or guarantee, during the performance of this contract, the contractor agrees that the aforestated conditions (1, 2 & 3) will be followed and in addition, the contractor agrees to the following:

1. The contractor will comply with all provisions of Rehabilitation Act of 1973, Order No. 11246 of September 24, 1965, as amended, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders.
2. In the event of the contractor's nondiscrimination clauses of the contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 23, 1965, as amended, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
3. The contractor will include the provisions of Paragraphs (1) and (7) of Section 202 of Executive Order 11246 in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, as amended, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interest of the United States.

XII. DEFAULT TERMINATION:

1. KCTCS may, subject to the provisions of this clause, by written notice of default to the vendor, terminate the whole or any part of a contract in any one of the following circumstances:
1. If the vendor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension
2. If the vendor fails to perform any of the other provisions of the contract, or so fails to make progress as to endanger performance of the contract in accordance with its terms, and in either of the two circumstances does not cure such failure within a period of ten (10) days after receipt of notice specifying such failure.
2. In the event KCTCS terminates the contract in whole or in part, KCTCS may procure supplies or services similar to those so terminated and the vendor shall be liable for any excess costs. The vendor shall not be liable for any excess costs if the failure to perform arises out of causes beyond the control and without the fault or negligence of the vendor. Such causes may include, but are not restricted to acts of God or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of the vendor. If the failure to perform is caused by the default of a subcontractor or supplier, and such default arises out of causes beyond the control of both and without fault or negligence by either party, the vendor shall not be liable for any excess costs unless the supplies or services are obtainable from other sources in sufficient time to permit the vendor to meet the required delivery schedule.
3. If after notice of termination of the contract under the provisions of this clause, it is determined for any reason that the vendor was not in fault or that default was excusable, the right and obligations of the parties shall be the same as if the notice of termination has not been issued.

XIII. AFFIRMATIVE ACTION COMPLIANCE

KCTCS requires all contractors to agree that he/she is in compliance with the Code of Federal Regulation No. 41 CFR 60-1.8(b) that prohibits the maintaining of segregated facilities.

XIV. TERMS FOR PROMPT PAYMENT

KRS 45.451 to 45.458 require that all bills shall be paid within 30 working days of either the receipt of correct invoice, or receipt of goods or services in satisfactory condition. A penalty payment of 1% per month shall be added to the amount due the vendor for each full or partial month that the payment exceeds 30 working days. As an incentive for earlier payment, bidders for state contracts are encouraged to offer discounts for payments made in less than the prescribed 30 days.

For questions contact Brenda Nolan at brenda.nolan@kctcs.edu or via phone 859-256-3325.