Contract Analysis Shields/Transblue re: Lowe’s
In February of 2023 one of our WSA members provided us with the current contract being used by Shields FM for its Lowes account. The entire contract is located at this link. To see the current information WSA has about Shields please go to the company’s page in our third party vendor area.
Another WSA member sent us a very similar contract they said is being used by a third party vendor named Transblue. However, we couldn’t confirm that independently since there is no identifying information on that contract. Right after that we were told that Transblue had taken over the Lowe’s account from Shields. You will find the Transblue contract we were sent located here.
Below we have analyzed a number of the contract provisions with the intent of alerting potential signers of the clauses so they can be better informed in their decision making.
Note: This posting is not to be construed as legal advice; rather, the post is designed to make you aware of contract clauses that may not be in your company’s best interest to sign. If you have legal questions, contact a qualified business attorney licensed to practice in your state(s) of operation.
In the following, the clauses are in italics and commentary is not.
Page 2: Parking Lot Sweeping PM Service(s):
• Contractors shall perform mechanical sweeping, collection and disposal of trash and debris. Note that this implies that the contractor will be required to dispose (and pay for disposal) of all debris. Be sure to include disposal fees in your bid.
• Contractor shall ensure Stores with pervious concrete/asphalt are identified and serviced with equipment that meets or exceeds local, state, and federal codes and regulations for these surface types. Pervious (porous) concrete pavement requires a particular set of sweeping criteria, typically including no use of water and, ideally, a vacuum-type sweeper of some sort. If a particular Lowe’s location where you’re bidding has a pervious concrete surface be sure to understand the best practices for doing so.
• Contractor shall perform additional collection and disposal of trash and debris. This clause is pretty all-encompassing. Does it mean you are ‘on the hook’ for anything dropped off on the site? If so, that can end up being an open-ended expense. However, the next set of clauses seem to negate that issue, in that it spells out using Work Orders for large material drop-off removal.
Page 3: Product Specifications:
OEM Equipment for the purpose of this SOW is a truck mounted, vacuum type sweeper or self-propelled mechanical sweeper (“Sweeper”), complete with brushes and sprinkling system in full working order. Sweepers in addition to above shall at a minimum have:
• Side or Gutter Brooms: Located on each side, center of sweeper; hydraulically driven and hydraulic or pneumatic raised, lowered, suspended, adjusted, and tilted with variable speed control with inside cab controls. Very few parking area sweepers are outfitted with gutter brooms on both sides. If your sweepers are outfitted with only one gutter broom — or with a side blower and no gutter broom — you are not in contract compliance with this clause. If that’s the case you should consider crossing out this clause and initialing it.
• Power tilt gutter brooms on both sides controlled from inside cab. Again, is your sweeper outfitted this way? If not, you need to indicate that fact by crossing out this clause.
• For safety nozzles must automatically raise when truck is placed in reverse. Pick-Up Sweeping Head/ (Regenerative Air Sweepers Only)
and
• For safety head must automatically raise when truck is placed in reverse. Some brands of sweepers, notably some Schwarze-made sweepers, are designed to sweep in reverse. If you will be using such a sweeper then you will not be in compliance with this clause.
• For performance, regenerative pick-up head must include a broom inside of the head. Many, if not most, regenerative air sweepers do not have a broom-in-head. If your regenerative air sweeper does not then that should be noted in the contract.
• Lowe’s reserves the right to accept and reject any Contractor recommended changes in specifications. Lowe’s also reserves the right to modify specifications at any time for any reason. Changes shall be documented in writing by SFM. This clause indicates two things: The first is that you can recommend changes in specifications. The second is not a plus for you since the contract allows Lowe’s to modify the specs at any time, although this is probably not something that will occur it could, of course, include a change in sweeping frequency.
Page 4/5: Materials and Workmanship
• As applicable, Contractor must maintain at a minimum of one (1) Contractor’s employee within each municipality in which Stores are assigned during the duration of this SOW. The applicable, Contractor’s Personnel shall: Be available twenty-four (24) hours a day, seven (7) days a week and three hundred sixty-five (365) days a year. Are you ready to commit to this clause? Which of your employees will agree to this assignment, or does this mean that YOU will agree to be available 24/7/365?
• Visually audit each awarded Store for SOW compliance no less than one (1) time per month. Contractor’s employee shall review audit findings along with corrective action to be deployed to correct deficiencies with Authorized Store Personnel prior to leaving Store. This means a member of your management team must check the job being done under the SOW at least once per month. So, be sure you document when this happens. The rest of the clause seems to say you have to get together with someone who qualifies as Authorized Store Personnel on the outcome of your audit. That time all needs to be included in your pricing.
Understand that if your sweeper(s) is/are not in compliance with the above — and given the contract clauses that you will read about below — the possibility exists that you might have to purchase a different sweeper(s) to be in compliance. Or, perhaps another contractor would recognize that you are out of compliance by only having one gutter broom and take the account. Or…
Disposal of Waste:
In accordance with the MPSA, for all parts and/or components up to and including the entire system being removed that Lowe’s chooses not to recycle through Lowe’s recycling program, it is the sole responsibility of Contractor to dispose of all Materials, parts, trash, debris and/or other matter properly and in compliance with all local, state and federal laws, ordinances, rules, regulations and codes. In addition, chemical wastes of any kind shall be managed and removed from the property by Contractor, and all chemical wastes shall be removed from Lowe’s property and properly disposed of by Contractor in in compliance with all local, state and federal laws, ordinances, rules, regulations and codes. Any deviation whatsoever from the foregoing must be pre-approved by Lowe’s Corporate Loss Prevention in writing.
The above is pretty open-ended. Lowe’s theoretically can hold you responsible for anything they want to get rid of, including “chemical wastes of any kind.” Some chemicals in many states require removal by employees who have been certified as trained to do so.
• Under no circumstances shall any Materials or parts be left on Lowe’s property or disposed of in any Lowe’s HAZMAT areas, waste receptacles and/or trash compactors. This means you must remove the material you pick up, not dispose of it on-site in Lowe’s dumpsters, etc. You may want to consider an addendum that spells out that any and all material removed from Lowe’s locations remains the property of Lowe’s and that your company is only a transport agency for it.
Customer Service:
• Contractor shall maintain a dedicated toll-free customer service phone number and have access to LOWE’S CMMS to access the WO system and program management. Does your company have a toll-free phone number?
• Contractors’ Personnel are required to be appropriately dressed and display identification badges at all times. Do your employees all have identification badges?
- Tobacco Usage:
The use of tobacco or tobacco related products (e.g., chewing tobacco, snuff, cigars, pipes, e-cigarettes) is prohibited anywhere on the Store’s Premises (including, but not limited to, the sales floor, warehouse, yard, parking lot, the fenced-in Bullpen area behind the Store, rooftop, etc.). This may be a problem for some of your employees; be sure to point out the contract clause to your operators.
Page 5: Pre-Season Walk Thru / Site Plan:
Contractor is required to complete a Preseason Walk & Inspection Form – Exhibit E no later than March 31st, 2023. During the walk, a Lowe’s approved representative (Store Manager), and a representative from Vendor’s management team must be present. There are a variety of requirements under this clause, all of which will take time to do. Be sure to include the time this will take in your bid.
SFM Mobile App/Service Channel/Service Validation:
Vendors will utilize Lowe’s CMMS, ServiceChannel Provider Mobile App to check-in and check-out for Services as directed by Lowe’s and as set forth below. Be sure you understand all of the requirements in the contract pertaining to using Lowe’s CMMS App. If they are not followed each and every time the contract allows you not to be paid for that sweep.
Service Level Agreement:
Failure to Meet Performance of Services: Notwithstanding any provision to the contrary and in addition to any and all other remedies available to it, if Vendor fails to provide Services/Work Order that meet SLA and scope requirements and SFM chooses to remove and replace Vendor from Locations or Work Order, Vendor agrees to fully reimburse SFM for the costs and expenses at the greater amount of either the cost of using another vendor or as set forth below. SFM may offset such costs and expenses in accordance with the Agreement.
Note that following this clause allows Shields to charge you $5,000 (1-10 locations) or $10,000 (10 or more locations) if you are removed from working for them at any of the Lowe’s locations. Although there is a “14-day cure-period” shown after that, this is an expense that could occur if you have issues that can’t be fixed. Part of that also includes: “Reimbursement to include any additional cost of seasonal service or Work Order completion for the remaining contract term and any remediation cost incurred to bring site up to Lowe’s standard.” And remember that Shields can remove you at its ‘sole discretion.’
Page 6: Performance Reviews (KPI’S) Bonus and Penalties:
In this section is spelled out how Lowe’s/Shields can penalize your company for what either considers ‘non-compliance’ with doing good work. Be sure you review and consider those penalties prior to signing the contract.
Page 7: Self-Help:
Be sure to review and consider the various penalties you may be assessed under this section of the contract.
Invoicing:
All in scope routine services for the season will be paid at a monthly flat rate. You must invoice Shields on the LAST DAY of each month but no later than the 10th day of the following service month. Be sure you understand and can comply with this and the other invoicing clauses.
Termination:
If you abandon the Work or fail to perform in a safe and satisfactory manner: (1) SFM has the right to terminate this Contract; (2) you will be liable to us for all damages allowed by law, including any costs incurred to complete the Work; and (3) you will not be entitled to any compensation for the Work completed prior to the termination until we have had the opportunity to complete the Work and determine the exact amount of damages.
This means if Shields/Lowe’s has an issue with your performance they can keep what you are owed for prior work until they decide the amount they want to pay you given the circumstance. Be sure you understand that fact.
Cancellation:
We have the right to cancel this Contract at any time, for any reason, upon written notice to you. In the event we cancel this Contract, you will be paid for work actually performed by you. In no event shall our payment include prospective profits for Work unperformed. Understand this means you can lose this contract at any time for any reason. Period.
Liens:
You waive any lien or claim of lien which you may have in connection with the Work. You shall keep the premises and work free and clear of all liens and claims, and you shall promptly settle all claims with your employees and suppliers. We have the right to request lien waivers and releases and to withhold any payment to you until we receive the requested waivers or releases.
Has Shields for some reason not paid you for your work, even though you complied with the reporting, quality and other requirements? This clause means you cannot lien directly against Lowe’s for the money you’re owed. When some third party vendors have not paid in the past this is the only way the contractors have been able to finally get their money.
End of Analysis:
In conclusion, be sure you understand all of the contract clauses in their entirety before signing the contract. The best way to do so for anything you do not fully understand is to discuss it with a qualified business attorney. Be sure to include all of the time and manpower requirements besides just the periodic sweeping when you decide on your bid amount per sweep! If you have questions about any of the above please feel free to contact the WSA office.
Have a comment? Send it to WSA’s office via the contact form:
One Response to “Contract Analysis Shields/Transblue re: Lowe’s”
Leave a Reply
You must be logged in to post a comment.
 |
 |
GOOD MORNING
To all the sweeper owners that sign this or others like this and then 8 months later try to get paid, in my opinion, you have been warned. 20 years ago you shook the hand of the mgr. you did your work and got paid, now you must have your attorney on retainer to read thru all of these 28 page contracts.