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Home My WebLink AboutExhibit-Consulting ServicesAriba Sourcing Page 1 of 4 Message Center Toggle Tips nformation Technology Consulting Services RFP# 15-973-561-Rstatt RFX Info Items My Response ;Suppliers ;Rules,= 1.0 introductory Materials 1.1 1.2 2.0 Introductory Materials RFP Section 1.0 1- Introductory Materials Final,.,Draft.pdf Map to Proposer's Conference CCOC 20Q1map.pdf Solicitation Rules Q&A Board] 2.1 Solicitation Rules RFP Section 2.0 2 Solicitation Rules Final Draft.pdf 3.0 Proposer's Response - Instructions The Department of Management Services is inviting you to respond to this RFP. The Department of M< Services is embarking on a project to consider suppliers for the category of Information Technology CI Services. The Department of Management Services annual spend in this category is approximately $1 this represents a significant opportunity for business. You are welcome to post any questions on the Q tool and we will respond to the entire group with an answer. Thank you for your time and diligence. 3.1 Proposers Response - Instructions RFP Section 3.0 3- Proposers Response.- Instructions Final Draft.ddf 3.2 Job Titles RFP Section 3a 3a - Appendix -Job Titles FinalDraft.pdf 3.3 PUR FORM 7033. This form must be signed, scanned and reloaded into MFMP for submission pu r7033. pdf 3.4 Response Forms RFP Section 3b. Please download document attached and insert responses in the app and re -attach for submission. 3b - Forms Final Draft.doc 3.5 Price Sheet RFP Section 3c. Download the attached file and enter pricing information in the appropriat attach for submission. 3c Price Sheet Final Draft.xls 3.6.0 State Objectives https://sourcing.myfloridamarketplace.com/jsp/en/trader/market/MarketDetail.jsp?uitk sb=... 4/5/2004 Ariba Sourcing Page 2 of 4 Bidders shall electronically submit written plans to support each of the State's five (5) objectives lister 3.6.1 through 3.6.5, to the extent applicable to the services requested by this solicitation. A plan for e MANDATORY and must be provided for the bidder to be considered responsive to this solicitation. Fair plan will result in vendor being deemed non -responsive and shall be cause for rejection of the bid. In , state reserves the right to negotiate mutually acceptable changes to the submitted plans with the bide award, prior to execution of the contract. 3.6.1.0 One Florida One Florida: Please refer to the links provided in Section 3.08 (1) for specific information and requirer State's One Florida Initiative. The State supports and encourages supplier diversity and the participati minority business enterprises in state contracting, both as prime contractors and sub -contractors. Bidi their plan to support the Governor's One Florida Initiative as it relates to Equity in Contracting, and th Section 287.09451, Florida Statutes. Please refer to Equity in Contracting and the referenced statute your plan. In order to assure diversity and equity in contracting, no contract shall be awarded without between the contracting firm and the procuring agency on a satisfactory plan for addressing diversity contract. Such plans may encompass participation by diverse contractors and suppliers as prime contr contractors, vendors, reselers, distributors, or such other participation as the parties may agree. No c awarded without agreement on a satisfactory One Florida Equity in Contracting Plan, which shall inclui reporting of spending with certified and other minority business enterprises, as applicable. All such rel submitted quarterly within thirty (30) days after the end of each calendar quarter. (The quarters will e June 30, September 30, and December 31, of each year during the term of the contract.) A sample fo report is included as Exhibit A located at section 3.6.1.3 in this solicitation. Reports shall include the p the name, minority code and Federal Employer Identification Number of each minority vendor utilized period, commodities and services provided by the minority business enterprise, and the amount paid i vendor on behalf of each purchasing agency ordering under the terms of this contract. 3.6.1.1 One Florida plan. It is mandatory that you provide your plan in the long text provided below. Failure ti render your bid non responsive (Please note that your response is limited to 4,000 Characters. If you response space, please upload in the space provided in section 3.6.1.2) 3.6.1.2 Additional File Space 3.6.1.3 Exhibit A Exhibit ASample gtrly MBE Repnrt.xls 3.6.2.0 Environmental Concerns Environmental Considerations: The State supports and encourages initiatives to protect and preserve environment. Proposer shall provide their plan to support the procurement of products and materials content, and the intent of Section 287.045, Florida Statutes. Proposer shall also provide a plan for red handling of any hazardous waste generated by Bidder's company. Reference Rule 62-730.160, Florida Code. It is a requirement of the Florida Department of Environmental Protection that a generator of hi materials that exceeds a certain threshold must have a valid and current Hazardous Waste Generator Number. When applicable, this identification number shall be included as part of Proposer's explanatio company's hazardous waste plan and shall explain in detail its handling and disposal of this waste. 3.6.2.1 Environmental Concerns: It is mandatory that you provide your plan in the long text box provided bel, so will render your bid non responsive. (Please note that your response is limited to 4,000 Characters. additional response space, please upload in the space provided in section 3.6.2.2) 3.6.2.2 Additional File Space 3.6.3.0 PRIDE Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE): The State supports and encc of Florida correctional work programs. It is expressly understood and agreed that any articles which a or required to carry out, this contract shall be purchased from the corporation identified under Chapte https:/Isourcing.rnyfloridarnarketplace.com/jsp/enftraderlmarket/MarketDetail.jsp?uitk sb=... 4/5/2004 Ariba Sourcing Page 3 of 4 the same manner and under the same procedures set forth in Section 946.515(2), and (4), F.S.; and this contract the person, firm, or other business entity carrying out the provisions of this contract shal be substituted for this agency insofar as dealings with such corporation are concerned. Additional infoi PRIDE and the products it offers is available at http://www.pridefl.com. Proposer shall describe how it use of PRIDE in offering the items of bid. The awarded Bidders proposing the use of PRIDE as a sub -cc required to provide proof of agreement with PRIDE prior to contract award. 3.63.1 Pride: It is mandatory that you provide your plan in the long text boxprovided below. Failure to do so bid non responsive (Please note that your response is limited to 4,000 Characters. If you need additio space, please upload in the space provided in section 3.6.3.2) 3.6,3.2 Additional File Space 3.6.4.0 RESPECT Products Available from the Blind or Other Handicapped (RESPECT): The State supports and encourag employment of citizens with disabilities. It is expressly understood and agreed that any articles that a or required to carry out, this contract shall be purchased from a nonprofit agency for the blind or for t handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and undf procedures set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this contract firm, or other business entity carrying out the provisions of this contract shall be deemed to be substil state agency insofar as dealings with such qualified nonprofit agency are concerned." Additional inforr designated nonprofit agency and the products it offers is available at http://www.respectofflorida.org. describe how it will support the use of RESPECT in offering the items of bid. The awarded Bidder prop( RESPECT as a sub -contractor will be required to provide proof of agreement with RESPECT prior to col 3.6.4.1 RESPECT:It is mandatory that you provide your plan in the long text box provided below. Failure to do your bid non responsive (Please note that your response is limited to 4,000 Characters. If you need a( response space, please upload in the space provided in section 3.6.4.2) 3.6.4.2 Additional File Space 3.6.5,0 Drug Free Work Place PUR 7009 - CERTIFICATION OF DRUG FREE WORKPLACE Section 287.087 of the Florida Statutes prov identical tie proposals are received, preference shall be given to a bid received from a Proposer that c implemented a drug -free workforce program. Proposals must: Publish a statement notifying employee unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibits workplace and specifying the actions that will be taken against employees for violations of such prohit employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a d workplace, any available drug counseling, rehabilitation and employee assistance programs and the pi be imposed upon employees for drug abuse violations. 3) Give each employee engaged in providing tt or contractual services that are under Proposal a copy of the statement specified in subsection (1). 4) statement specified in subsection (1), notify the employees, as a condition of working on the commod contractual services that are under Proposal, the employee will abide by the terms of the statement al employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 or substance law of the United States or any State, for a violation occurring in the workplace no later the after such conviction. 5) Impose a sanction on, or require the satisfactory participation in a drug abus rehabilitation program if such is available in the employee's community by any employee who is so co a good faith effort to continue to maintain a drug -free workplace through implementation of this sects( "Yes" in section 3.6.5.1 to indicate that the Proposer complies fully with the above requirements. Foist punishable at law. 3.6.5.1 Drug Free Work Place Available Values: Yes or No 4.0 Evaluation Criteria https://sourcing. myfloridamarketplace. com/j sp/en/trader/market/MarketDetai 1. j sp?uitk_sb=... 4/5/2004 Ariba Sourcing Page 4 of 4 4.1 Evaluation Criteria REP Section 4.0 4 Evaluation Criteria.pdf 5.0 General Conditions 5,1 General Conditions REP Section 5.0 5 General Conditions Final Draft.pdf 6.0 Special Conditions 6.1 Special Conditions RFP Section 6.0 6 Special Conditions FinalDraft.pdf 7,0 Ongoing Performance Measures 8 7.1 Ongoing Performance Measures RFP Section 7.0 7 Ongoing Performance Measures Final Draft.pdf Addendum#1 includes revisions to the original RFP and the answers to the Q&A. Please reference MFM the REVISED Price Sheet and MFMP section 10.0 for the Bidders Conference List. ADD1,pdf 9 The section includes RFP Section 3c, REVISED Price Sheet to be used in the submission of the Propose 3c REVISED Price Sheet.xls 10 The section includes a copy of the sign in sheet from the Pre -Bid conference. Pre BidAttenda n ce.pdf publicuser, Welcome to Ariba Enterprise Sourcing, updated at 5:30 PM © ].996 hops://sourcing.myfloridamarketplace.corn/jsp/era/trader/market/MarketDetail jsp?uitk_sb=... 4/5/2004 Brief Outline Please Note: Each Section contains a more detailed Table of Contents • 1.0 Introductory Materials • 2.0 Solicitation Rules • 3.0 Proposer's Response - Instructions 3a. Job Titles 3b. Response Forms Complete and sign attached documents and return with your response. Tab A Tab B Tab C Tab D Tab E Acknowledgement Form (PUR 7033) Attached, please find form PUR 7033. Pursuant to section 60A-1.002(7)(b) F.A.C., this form must be signed and returned with every RFP. However, the General Conditions contained on PUR 7033 are entirely superceded by the terms and conditions of this solicitation. See section 2.03 for more information. Please sign and reattach form PUR 7033 to this subsection. Project Area 1 Description and Response Form Project Area 2 Description and Response Form Project Area 3 Description and Response Form Project Area 4 Description and Response Form Tab F Teaming Partners Form and List Teaming Partner Agreement of Representation Tab G Contract RFP IT 15-973-561-R 1. introductory Materials January 5, 2004 Page 1 of 6 3c. Price Sheet Tab H Price Sheet Tab K - Other Attachments if Necessary • 4.0 Evaluation Criteria • 5.0 General Conditions • 6.0 Special Conditions • 7.0 Ongoing Performance Measures RFP IT 15-973-561-R 1. Introductory Materials January 5, 2004 Page 2 of 6 Introductory Materials Table of Contents 1.01 Contact 1.02 Timeline 1.03 About this Solicitation 1.04 Statement of Purpose 1.05 Use of the Contract 1.06 Non -Exclusivity 1,07 Other Information 1.01 Contact The primary contact for this solicitation is: Stu Potlock, Purchasing Analyst Department of Management Services Division of State Purchasing 4050 Esplanade Way Tallahassee FL 32399 potlocs c�7dms.state.fl.us 1.02 Timeline The following anticipated timeline applies to this solicitation: Event Time Date RFP Release January 5, 2003 Proposer's Conference Calls of Optional Proposer's Training Session on MFMP Sourcing Tool (No RFP content questions will be entertained) See Subsection 3.01 See Subsection 3.01 for each times January 9, 2004 January 13, 2004 January 14, 2004 Written Inquiries Due, Subsection 2.05 5:OOPM EST January 16, 2004 Pre -Bid Conference* 2:OOPM EST January 23, 2004 Addendum Release including Responses to Written Inquiries (Subsections 2.04 and 2.05) January 30, 2004 RFP Submission Deadline 2:OOPM EST February 5, 2004 Evaluation of Submissions February 2004 Notice of Awards Posted March 1, 2004 Contract Start Date April 1, 2004 *The Pre -Bid Conference will take place at the date and time above in the Shared Resource Center (SRC) located at 2585 Shumard Oak Boulevard in the Capital Circle Office Center in Tallahassee, Florida. Travel instructions and a map are included with RFP IT 15-973-561-R 1. Introductory Materials January 5, 2004 Page 3 of 6 this solicitation in the MyFloridaMarketPlacc (MFMP Section 1.2) solicitation tool as an Adobe Acrobat, PDF file entitled CCOC 2001map.pdf. Attendance at this conference is NOT mandatory. Answers to questions provided at this Conference are not binding, but will provide DMS with better information in which to provide answers on the Written Inquiries (Subsection 2.05) provided on the Q & A board of MFMP for this solicitation. 1.03 About this Solicitation Potential respondents should thoroughly review and understand the entire solicitation before bidding. The discrete sections of the solicitation are summarized here: 1. Introductory Materials — This section. 2. Solicitation Rules — The terms and conditions governing the solicitation process. 3. Proposer's Response and Forms — This section contains the Department's solicitation requirements. Respondents must provide the appropriate information in this section in order to submit a responsive proposal. 4. Evaluation Criteria — This section details the Department's criteria for evaluating proposals after they are received. 5. General Conditions -- This section contains the General Conditions that will apply to any potential contract. 6. Special Conditions — This section contains terms and conditions in addition to those found in the General Conditions. Both sections will be incorporated into any contract that results from this solicitation. 7. Ongoing Performance Measures (Contract Forms) — This section contains forms that will be used during the course of contract performance, if any contract results from this solicitation. 1.04 Statement of Purpose The State of Florida, Department of Management Services (Department) has issued this Request for Proposals (RFP) to identify entities that can provide a broad range of information technology consulting resources, for projects below $10,000,000 in cost, to State agencies and other Customers. Projects valued over $10,000,000 may not be procured against any Contract resulting from this solicitation (see contract thresholds, Subsection 6.01 (e)). The Department intends to issue a multiple -award contract to those responsive and responsible proposers supplying the greatest overall value to the State in discrete Project Areas. With multiple awards including opportunities for small businesses in each of the Project Areas, the Department hopes to receive competitive pricing while maintaining a diverse contractor base. The Department expects to gain the following benefits from establishing this contract: • Achieve significant savings through the pooling of the aggregate buying power of the State's significant annual spending on IT services; • Maintain or improve current levels of service; • Improve reporting/tracking capabilities; • Gain personnel for niche skills; and • Develop relationships with new IT professional service companies. RFP IT 15-973-561-R 1. Introductory Materials January 5, 2004 Page 4 of 6 The Department expects to reach these objectives by receiving more favorable and consistent pricing structures and associated expenses enterprise -wide. 1.05 Use of the Contract Customers will create a scope of work each time they desire to purchase from the Contract. The scope of work will be incorporated into a Task Order which will be issued to the selected Contractor. The Task Order shall, in some cases, require an RFQ process. (See Subsection 6.01(e), Task Orders) There is a specific section of the solicitation which addresses these processes in detail. Proposers should carefully review these Special Conditions as they, along with the other materials in this solicitation, will be incorporated into the Contract without modification. 1.06 Non -Exclusivity The Contract will not be the exclusive contractual vehicle for firms interested in doing business with Customers. To the contrary, the Contract will be just one means available to Customers seeking IT consulting services. Other means include: • Independent solicitations under chapter 287, .F.S., or other applicable law; • Exceptions to competitive procurement processes (e.g., "single sources"); and • Other governmental contracts approved for use under section 287.042(16)(a), F.S. (e.g., GSA Schedule 70 contracts, Florida State Technology Office contracts, etc.). 1.07 Other Information Along with all other information contained in this solicitation, Proposers should consider the following issues in developing proposals: Current contracts. Customers may retain existing purchase documents issued pursuant to previous procurement methods and staffing currently provided under existing purchase documents through their current term, including renewals and extensions as determined to be in the best interests of the State. New requirements and replacement of staff due to attrition shall be provided under this Contract or other appropriate alternatives. The Contract resulting from this solicitation is intended to replace the current contracting model for IT Consulting Services. 2. Hardware and Software purchases. This contract is NOT intended to enable purchases of IT hardware or commercial off -the -shelf (COTS) software outside of a larger IT solution. In the event that a Customer has developed a scope of work which requires hardware or COTS software as part of a delivered solution, the Customer should, in accordance with chapter 287, F.S. or other controlling law(s), seek the most cost-effective legal method of procuring such products. Notwithstanding this general prohibition, terms and conditions addressing such items are included in this contract, in the event that the Contractor provides hardware or COTS software to the Customer in the performance of a Task Order. These provisions should RFP IT 15-973-561-R 1. Introductory Materials January 5, 2004 Page 5 of 6 not be construed by any party as authority to purchase hardware or COTS software from this Contract, independent of a larger IT solution. See Subsection 5.10, Intellectual Property. RFP IT 15-973-561-R 1. Introductory Materials January 5, 2004 Page 6 of 6 General Conditions Table of Contents 5.01 Definitions 5.02 Addition of Contractors during the Contract Period 5.03 Task Orders 5.04 Packaging, Transportation and Delivery 5.05 Inspection at Contractor's Site 5.06 Installation 5.07 Safety Standards 5.08 Literature 5.09 Inspection and Acceptance 5.10 Intellectual Property 5.11 Transaction Fee 5.12 Invoicing and Payment 5.13 Taxes 5.14 Annual Appropriations 5.15 Governmental Restrictions 5.16 Compliance with Laws 5.17 Lobbying and Integrity 5,18 Indemnification 5.19 Suspension of Work 5.20 Termination for Cause 5.21 Force Majeure, Notice of Delay, and No Damages for Delay 5.22 Equitable Adjustment 5.23 Renewal 5.24 Advertising 5.25 Assignment 5.26 Dispute Resolution 5.27 Employees, Subcontractors, and Agents 5.28 Security and Confidentiality 5.29 Independent Contractor Status of Contractor 5.30 Key Personnel 5.31 Insurance Requirements 5.32 Warranty 5.33 Warranty of Authority 5.34 Warranty of Ability to Perform 5.35 Year 2000 Compliance Warranty 5.36 Warranty of No Hardstop/Passive License Monitoring 5.37 Notice 5.38 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE) 5.39 Products Available from the Blind or Other Handicapped 5.40 Modification of Terms 5.41 Waiver 5.42 Execution in Counterparts 5.43 Severability RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 1 of 21 5.01. Definitions: "Contract" means the legally enforceable agreement, if any that results from this solicitation. The parties to the Contract will be the Depai lucent and the Contractor. The Contract shall be reduced to writing substantially in the form included in section 3 of the sol icitation documents. "Purchasing Analyst" means the Department employee who is primarily responsible for the management of the contract. The Purchasing Analyst shall be identified in the contract, and the Department may appoint a different Purchasing Analyst, which shall not constitute an amendment to the Contract, by sending notice to the Contractor. "Contractor" means a successful vendor, which, along with the Department, will enter into the Contract. "Customer" means the State agencies and other eligible users that will order services from the Contractor under the Contract. By ordering products under the Contract, the Customer agrees to its tei iris. Customers are not, however, parties to the Contract. "Deliverable" is a discrete service provided to Customer, as detailed in a Task Order. "Department" means the State of Florida, Depaitiiient of Management Services. "Proposer" means the person submitting a reply to the solicitation. "State" means the State of Florida and its agencies. "Services" means any deliverable or work performed under the Contract, which may include contractual services, technology, commodities or software. "Task Order" means the form or format used to make a purchase under the Contract (e.g., a formal written task order, electronic purchase order, procurement card, or other authorized means). 5.02 Addition of Contractors during the Contract Period: The State anticipates no need to add vendors during the life of any Contract resulting from this solicitation, but reserves the right to do so if service levels fall below acceptable standards based upon feedback from eligible users or if a significant number of vendors are removed due to breach of contract, in which case, new Contractors will be added only as replacements for deleted vendors. 5.03 Task Orders: A Contractor shall not deliver or furnish Services until the Customer transmits a Task Order. All Task Orders shall confoiin to the requirements of the Special Conditions and shall be deemed to incorporate by reference the Contract terms and RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 2 of 21. conditions. Any discrepancy between the Contract terms and the teens stated on a Contractor's order form, confiuination, or acknowledgement shall be resolved in favor of terms most favorable to the State or Customer. A Task Order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. The Depai t,iient reserves the right to revise this section in conjunction with its ongoing implementation of MyFloridaM arketP l ace. 5.04 Packaging, Transportation and Delivery: Any tangible product delivered under this Contract shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer's property. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty (30) days after the Customer places an Order; provided, however, that the Contractor and Customer may agree to FOB Origin if each of the following conditions is satisfied: (1) the Contractor maintains insurance, procured for the benefit of Customers, sufficient to cover damage andlor loss to Products during transit, (2) the Contractor provides to the Customer appropriate claim procedures to use in the event of a loss, and (3) the Contractor provides the Customer the right to assign payments from any insurance settlement to the Contractor, so as to permit the repair of damaged products or the replacement of products that are lost or damaged beyond repair. A Contractor, within five (5) days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability to deliver or intentional delays shall be cause for Contract cancellation and Contractor suspension. 5.05 Inspection at Contractor's Site: The Department reserves the right to inspect, at any reasonable time with prior notice, the Services, equipment, product, plant or other facilities of a Contractor or prospective Contractor (vendor) to assess conformity with Contract requirements and to deter wine whether they are adequate and suitable for proper and effective Contract perfoi chance. 5.06 Installation: Where installation is required, Contractor shall be responsible for placing and installing products in the required locations at no additional charge, unless otherwise designated on the Task Order. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product aor render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. Contractor shall protect the site from damage and shall repair damages or injury caused during installation by Contractor or its employees or agents. If any alteration, dismantling, excavation, etc., is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. Contractor shall perform installation work so as to cause the least inconvenience and interference with the Customer and with proper consideration of others on site. Upon RFP No, 15-973-561-R 5. General Conditions January 5, 2004 Page 3 of 21 completion of the installation, the location and surrounding area of work shall be left. clean and in a neat and unobstructed condition, with everything in satisfactory repair and order. 5.07 Safety Standards: All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers' Association for electrically operated assemblies; and the American Gas Association for gas -operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution. 5.08 Literature: Upon request, the Contractor shall furnish literature reasonably related to the Services offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc. Customer may include additional requirements related to literature in a Task Order. 5.09 Inspection and Acceptance: The Customer will accept each Deliverable when it meets the requirements of this Contract and the relevant Task Order. The Customer shall have a maximum period of twenty (20) business days after delivery of a Deliverable to verify that the Deliverable meets the Contract and Task Order, unless another time period is specifically detailed by the Customer and Contractor in the Task Order. The Customer will conduct its acceptance review in a manner so as to identify how the Deliverable materially fails to confoi in to the Contract or Task Order (each such respect, a "Nonconformity"). If the Customer notifies Contractor in writing of any Nonconformity, specifying as to each Nonconformity how the Deliverable materially fails to meet the Contract or Task Order. Contractor shall correct such Nonconformity within five (5) business days, or proceed on another mutually acceptable basis as set forth in writing. The Customer shall then have an additional five (5) business days commencing upon Contractor's redelivery of the Deliverable to verify that the previously reported Nonconformity has been corrected and report any Nonconformity caused by the correction of the previous Nonconfoiuiity. Inspection may include validation of information or software through the use of automated tools and/or testing of the Deliverables, as further specified in the Task Order. The scope and nature of this testing should be negotiated prior to Task Order award and should be sufficiently comprehensive to ensure the completeness, quality and adequacy of all Deliverables. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 4 of 21 The Contractor shall not be responsible for the correction of any defects in Customer physical property unless the Contractor performs, or is obligated to perform, any modifications or other work on such physical property. In that event, the Contractor shall be responsible for correction of defects that result from the work. The Contractor shall be responsible for filing, processing, and collecting all damage claims, unless the parties have otherwise agreed to ship FOB Origin per general condition 5.04. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier's Bill of Lading; report damage to the carrier and the Contractor; and provide the Contractor with a copy of the carrier's Bill of Lading and damage inspection report. When the Customer rejects a product, Contractor shall remove it from the premises within ten days after notification of rejection. Upon rejection notification, the risk of loss of rejected or non -conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product. Additional inspection and acceptance requirements may be specified in each Task Order. 5.10 Intellectual Property. The terms and conditions contained in this section shall apply to all Task Orders issued under this Contract unless the Customer specifically details other terms in a Task Order. The Customer and the Contractor should take care to ensure that Task Order -level changes to these terms are as explicit as possible. All inconsistencies will be resolved in the best interests of the State and/or the Customer. NOTE TO CUSTOMERS: Notwithstanding certain language contained below, this Contract is not intended as a vehicle for buying hardware or commercial off -the -shelf (COTS) software. The terms and conditions contained in this section address such items in order to fully protect Customers under any situation that may arise during the use of this Contract; such teiiiis should not be used to justify purchases of hardware or COTS software via a Task Order issued under this Contract. See Subsection 1.07 (2). (a) Title to Deliverables For purposes of this section, a "product" is any deliverable furnished under the Contract, including but not limited to (1) components of the hardware environment, (2) printed materials, (3) third -party software, (4) programs and programming modifications, customizations, tools, data, modules, and components, and (5) any tangible or intangible properties embedded therein. A product is "existing" if it is a tangible or intangible licensed product that exists before Contract work begins (the Contractor shall bear the burden of proving that a product existed before work began). A product is "custom" if it is any product, preliminary or final that is created under a Task Order for the Customer by the Contractor or its personnel. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 5 of 21 For existing hardware products, title to a hardware product shall pass to the Customer upon written acceptance. For existing software products that are no malty commercially distributed on a license basis by the Contractor or other independent software proprietary owner (ISPO), whether or not embedded in, delivered, or operating in conjunction with hardware or a custom product, title shall remain with the Contractor or ISPO. Effective upon acceptance, such product shall be licensed to the Customer in accordance with the Contractor or ISPO's standard licensed agreement, provided, however, that the license agreement shall, at a minimum, (1) grant the Customer a non-exclusive perpetual license to use, execute, reproduce, display, perform, adapt (unless the Contractor demonstrates to the Customer before execution of a Task Order that adaptation will violate existing agreements or law) and distribute the product to authorized users up to the license capacity identified in the Task Order with all license rights necessary to effect the Customer's stated purpose, and (2) recognize the Customer as the licensee. Where these rights are not otherwise covered by the ISPO's standard license agreement, the Contractor shall obtain these rights at its sole expense. The Customer shall reproduce all copyright notices and any other legend of ownership on any copies authorized under this paragraph. For custom products, effective upon creation the Contractor hereby conveys to the Customer the sole and exclusive rights, title and interest in the product, including all trademark and copyrights, and the Contractor shall take all necessary and appropriate steps to ensure that the products are protected against unauthorized copying, reproduction, or marketing through the Contractor or its employees, subcontractors, or agents; provided, that the Contractor may otherwise use any related or underlying general knowledge, skills, ideas, concepts, techniques and experience developed under the Contract. In the alternative to taking exclusive ownership and title to such products, the Customer may elect to take a non- exclusive license to use, execute, reproduce, display, perform, and distribute the product as described in the preceding paragraph. Additional terms of such a license are contained in the following paragraph. (b) Software License Grant If a Deliverable (other than pre-existing software) is acquired on a licensed basis, the following teuris shall constitute the license grant. (1) Scope: Customer (the "Licensee") is granted a non-exclusive perpetual license to use, execute, reproduce, display, perform, or merge the product within its business enterprise in the United States up to the maximum licensed capacity identified on the Task Order. The product may be accessed, used, executed, reproduced, displayed, or perfotuied up to the capacity measured by the applicable licensing unit identified on the Task RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 6 of 21 Order (e.g., payroll size, number of employees, CPU, MIPS, MSU, concurrent user, workstation, etc.). Licensee shall have the right to use and distribute modifications and customizations of the product to and for use by anyone otherwise licensed to use the product, provided that any modifications, however extensive, shall not diminish Licensor's proprietary title or interest. This paragraph grants no license, right, or interest in any trademark, trade name, or service mark. (2) Tei in: The license term shall begin the date the product is accepted. Where a license involves Licensee's right to copy a previously licensed and accepted master copy, the tei fli shall begin the date the Task Order is executed. (3) Documentation: Upon request, the Contractor shall deliver to the Licensee at the Contractor's expense (1) one master electronic copy and one hard copy of product documentation or (2) one master electronic copy and hard copies of the product documentation by type of license in the following amounts, unless otherwise agreed: for individual/named user, one copy per Licensee; for concurrent users, ten copies per site; for processing capacity, ten copies per site. The master electronic copy shall be in either CD-ROM or diskette format and usable without conversion (for example, if a unit has only a 3 /a" disk drive, software shall be provided on 3'A" diskettes). The Contractor hereby grants the Customer a perpetual license right to make, reproduce (including downloading electronic copies), and distribute, either electronically or otherwise, copies of product documentation as necessary to enjoy full use of the product in accordance with the terms of the license. (4) Technical Support and Maintenance: Licensee may elect to purchase technical support and maintenance ("Maintenance"). Maintenance shall include, at a minimum, (1) providing error corrections, patches, updates, revisions, fixes, upgrades, and new releases to Licensee, and (2) Help Desk assistance accessible via toll -free or local telephone call or on-line. The Contractor shall maintain the products so as to provide Licensee with the ability to use the products in accordance with the product documentation, without significant functional downtime to ongoing operations during the Maintenance term. The Customer shall not be required to purchase Maintenance for use of the product, and the Customer's license shall not be invalidated for refusal to purchase Maintenance. The Maintenance term(s) and any renewals are independent of the Contract tem! or the term of the Task Order. The Customer may discontinue Maintenance at the end of any current Maintenance tetiri upon notice to the Contractor; provided, the term shall not automatically renew. If the Customer does not initially acquire, or discontinues, Maintenance, the Customer may at any later time reinstate Maintenance without any RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 7 of 21 penalties or other charges, by paying the Contractor the amount, if any, that would have been due under the Contract for the period that Maintenance had lapsed, or for twelve months, whichever is less. (5) Transfers: Licensee's operations may be altered, expanded, or diminished. Licenses may be transferred or combined for use at an alternative or consolidated site not originally specified in the license, including transfers between agencies. Contractor approval is not required for such transfers, but Licensee shall give prior written notice to the Contractor. There shall be no additional license or other transfer fees due, provided that (I) the maximum capacity of the consolidated machine is equal to the combined individual license capacity of all licenses running at the consolidated or transferred site (e.g., named users, seats, or MIPS) or (2) if the maximum capacity of the consolidated machine is greater than the individual license capacity being transferred, a logical or physical partition or other means of restricting access will be maintained within the computer system to restrict use and access to the product to that unit of licensed capacity solely dedicated to beneficial use for Licensee. If the maximum capacity of the consolidated machine is greater than the combined individual license capacity of all licenses running at the consolidated or transferred site, and a logical or physical partition or other means of restricting use is not available, the fees due the Contractor shall not exceed the fees otherwise payable for a single license for the upgrade capacity. (6) .Restricted Use by Third Parties: Outsourcers, facilities management, service bureaus, or other services retained by Licensee shall have the right. to use the product to maintain Licensee's operations, including data processing, provided that (1) Licensee gives notice to the Contractor of such third party, site of intended use of the product, and means of access, (2) the third party has executed, or agrees to execute, the product manufacturer's standard nondisclosure or restricted use agreement, which agreement shall be accepted by the Contractor, and (3) the third party shall maintain a logical or physical partition within its computer system to restrict access to the program to that portion solely dedicated to beneficial use for Licensee. Licensee shall not be liable for any third party's compliance or noncompliance with the tennis of the nondisclosure agreement, nor shall the nondisclosure agreement create or impose any liabilities on the State or the Licensee. Any third party with whom a Licensee has a relationship for a State function or business activity shall have the temporary right to use product (e.g., Java applets), provided that such use shall be limited to the period during which the third party is using the product for the function or activity. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 8 of 21 (7) Archival Backup: Licensee may use and copy the product and related documentation in connection with reproducing a reasonable number of copies for archival backup and disaster recovery procedures. (8) Source Code Escrow: If either the product manufacturer/developer or the Contractor offers source code or source code escrow to any other commercial customer, or if either entity seeks bankruptcy protection, then the Contractor shall either (1) provide Licensee with source code for the product, (2) place the source code in a third -party escrow arrangement with a designated escrow agent, which shall be identified to the Department, and which shall be directed to release the deposited source code in accordance with a standard escrow agreement acceptable to the Depaitnrent, or (3) certify to the Department that the product manufacturer/developer has named the State, acting by and through the Department, and the Licensee, as named beneficiaries of an established escrow arrangement with its designated escrow agent, which shall be identified to the Depai intent and Licensee, and which shall be directed to release the deposited source code in accordance with the teiuis of escrow. Source code, as well as any corrections or enhancements, shall be updated for each new release of the product in the same manner as provided above and such updated shall be certified in writing to the Depai talent. The 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 the Contract which have licensed product or obtained services, and which may use the copy of the source code to maintain the product. (9) Confidentiality The product is a trade secret, copyrighted and propriety product. Licensee and its employees shall not disclose or otherwise distribute or reproduce any product to anyone other than as authorized under the Task Order. Licensee shall not remove or destroy any of the Contractor's proprietary markings. (10) Restricted Use: Except as expressly authorized by the terms of license, Licensee shall not: copy the product; cause or permit reverse compilation or reverse assembly of the product or any portion; or export the product in violation of any U.S. Department of Commerce export administration regulations. (11) Proof of License: The Contractor shall provide to each Licensee that issues a Task Order either (1) the product developer's certified license confirmation certificates in the name of the Licensee or (2) a written confirmation from the proprietary owner accepting the product invoice as a proof of license. The Contractor shall submit a sample certificate, or RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 9 of 21 alternative confirmation, which shall be in a form acceptable to the Licensee. (12) Audit of Licensed Usage: The Contractor may periodically audit, no more than annually and at its expense, use of licensed product at any site where a copy resides provided that (1) the Contractor gives Licensee at least thirty days written advance notice, (2) the audit is conducted during the Licensee's normal business hours, (3) the audit is conducted by a State Inspector General's office or by an independent auditor chosen by mutual agreement of the Licensee and Contractor as follows: the Contractor shall recommend a minimum of three auditing/accounting firms, from which the Licensee shall select one; in no case shall the Business Software Alliance, Software Publishers Association, or Federation Against Software Theft be recommended by the Contractor or used, directly or indirectly, to conduct audits, (4) the Contractor and Licensee shall designate a representative who shall be entitled to participate, who shall mutually agree on audit format, and who shall be entitled to copies of all reports, data, or information obtained from the audit, and (5) if the audit shows that the Licensee was not in compliance, the Licensee shall purchase additional licenses or capacities necessary to bring it into compliance and shall pay for the unlicensed capacity at the Contract price then in effect or, if none, then at the Contractor's U.S. commercial list price. Once such additional licenses and capacities are purchased, Licensee shall be deemed to have been in compliance retroactively, and Licensee shall have no further liability of any kind for the unauthorized use of the product. (13) Bankruptcy: The Contract is subject to the terms of section 365(n) of the United States Bankruptcy Code ("Code") if the Licensor files a bankruptcy petition. Licensor's failure to perform its continuing obligations shall constitute a material breach of the Contract excusing performance by the Licensee. Royalty payments for use of intellectual property shall be separate from and independent of payments for performance of all other obligations under the Contract (e.g., continuing development obligations, maintenance and support obligations, obligations to provide updates, indemnity obligations, etc.). Upon request, the Licensor shall furnish Licensee any intellectual property, as defined in the Code, and any embodiment of that intellectual property held by the Licensor. If Licensee must hire third -parties to perfoini support, maintenance, or development tasks previously perfoi ed by Licensor, the Licensee may provide intellectual property to such third -parties without violating nondisclosure or exclusivity provisions. (c) Source Code Copies of all program source code developed or maintained for the Customer shall be delivered to the Customer upon acceptance following Customer's existing RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 10 of 21 operating procedures. Any program changes made to correct errors, to enhance the Customer's systems, or to change the output as a result of changed requirements, shall be furnished to the Customer upon their completion. Simultaneously with delivery of the program source code the Contractor must deliver copies of all documentation and amended documentation produced by the Contractor. All documentation and amended documentation furnished to the Customer will reflect the current, amended program source code. (d) Pre -Existing Data All Customer data which may be included in the Deliverables shall remain the exclusive property of the Customer and may not be copied or removed by any personnel of the Contractor without express written peifnission of the Customer. 5.11 Transaction Fee: The State has instituted MyFloridaMarketPlace, a statewide eProcurement System ("System"). Pursuant to section 287.057(23), Florida Statutes (2003), all payments shall be assessed a transaction fee of one percent (1.0%) ("Transaction Fee"), which the Contractor shall pay to the State. For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-1.031(2), Florida Administrative Code. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee. Contractor shall receive a pro rata credit for any Transaction Fee paid by the Contractor for the purchase of any product(s) if such product(s) are returned to the Contractor or rejected by Department through no fault, act, or omission of the Contractor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is rejected, returned, or declined due to the Contractor's failure to perform or comply with specifications or requirements of this Contract, the relevant Task Orders, or any other applicable document. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES SHALL BE EXCLUDED FROM CONDUCTING FUTURE BUSINESS WITH THE STATE. 5.12 Invoicing and Payment: Invoices shall contain the Contract number, Task Order number, and the Contractor's SPURS vendor number. Invoices for per diem and travel expenses shall comply with section 112.061 of the Florida Statutes. The Department may require any other inforrrtation from the Contractor that the Depaiti lent deems necessary to verify any Task Order placed under the Contract. Contractors will be required to invoice electronically pursuant to Depaitiiient guidelines. Current guidelines require that Contractor supply electronic invoices in lieu of paper -based invoices for those RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 11 of 21 transactions processed through the System. Electronic invoices shall be submitted to the Depattuient through the Ariba Supplier Network (ASN) in one of the following mechanisms — EDI 810, cXML, or web -based invoice entry within the ASN. Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Time limits do not begin until the Contractor submits a properly completed invoice. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment. Contractors may call (850) 413-7269 Monday through Friday to inquire about the status of payments by State agencies. 5.1.3 Taxes: The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees' wages. Purchases by non -State Customers may be subject to taxes, which shall be computed based on the purchase price and added to the invoice submitted to such entity for payment. 5.14 Annual Appropriations: The State's perfotuiance and obligation to pay under the Contract are contingent upon an annual appropriation by the Legislature. 5.15 Governmental Restrictions: If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or perfoir.tuance of the products offered under the Contract, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Department. 5.16 Compliance with Laws: The Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, State, and local agencies having jurisdiction and authority. By way of non -exhaustive example, Chapter 287 of the Florida Statutes and Chapter 60A-1 of the Florida Administrative Code govern the Contract. By way of further nonexhaustive example, the Contractor shall comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of such laws shall be grounds for Contract tetinination. 5.17 Lobbying and Integrity: Pursuantto section 216.347 of the Florida Statutes, the Contractor may not expend any State funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency. In addition, the Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 12 of 21 purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in the fon,' of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of the Department. of Management Services' Inspector General, or other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but shall not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for the longer of (1) three years after the expiration of the Contract or (2) the period required by the General Records Schedules maintained by the Florida Department of State (available at: http:lidlis.dos.state.fl.uslbannlgenscheduleslgensched.htm). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor's suspension or debarment. 5.18 Indemnification: The Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and Customers, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors; provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or a Customer. Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from any suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right; provided, however, that the foregoing obligation shall not apply to a Customer's misuse or modification of Contractor's products or a Customer's operation or use of Contractor's products in a manner not contemplated by the Contract or the purchase order. If any product is the subject of an infringement suit, or in the Contractor's opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to continue using the product or to modify it to become non -infringing. If the Contractor is not reasonably able to modify or otherwise secure the Customer the right to continue using the product, the Contractor shall remove the product and RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 13 of 21 refund the Customer the amounts paid in excess of a reasonable rental for past use. The Customer shall not be liable for any royalties. The Contractor's obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or Customer giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor's sole expense, and (3) assistance in defending the action at Contractor's sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in any legal action without the Contractor's prior written consent, which shall not be unreasonably withheld. Except as specified in the foregoing portions of this section, for all other claims against the Contractor under any individual purchase order, and regardless of the basis on which the claim is made, the Contractor's liability under a purchase order for direct damages shall be limited to the greater of S100,000, the dollar amount of the purchase order, or two times the charges rendered by the Contractor under the purchase order. Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Customer may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State. 5.19 Suspension of Work: The Department may in its sole discretion suspend any or all activities under the Contract, at any time, when in the best interests of the State to do so. The Department shall provide the Contractor written notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor shall comply with the notice and shall not accept any Task Orders. Within ninety days, or any longer period agreed to by the Contractor, the Department shall either (1) issue a notice authorizing resumption of work, at which time activity shall resume, or (2) terminate the Contract. Suspension of work shall not entitle the Contractor to any additional compensation. 5.20 Termination for Cause: The Department may terminate the Contract if the Contractor fails to (1) deliver the supplies or perform the services within the time specified in the Contract or any extension, (2) maintain adequate progress, thus endangering performance of the Contract, (3) honor any tei an of the Contract, or (4) abide RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 14 of 21 by any statutory, regulatory, or licensing requirement.. Rule 60A-1.006(3), Florida Administrative Code, governs the procedure and consequences of default. The Contractor shall continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from events completely beyond the control, and without the fault or negligence, of the Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted services or supplies were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Department. The rights and remedies of the Department in this clause are in addition to any other rights and remedies provided by law or under the Contract. 5.21 Force Majeure, Notice of Delay, and No Damages for Delay: The Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the Contractor or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Contractor's control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Department and the Customer in writing of the delay or potential delay and describe the cause of the delay either (1) within ten days after the cause that creates or will create the delay first arose, if the Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five days after the date the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE CONTRACTOR'S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No claim for damages, other than for an extension of time, shall be asserted against the Depai anent or a Customer. The Contractor shall not be entitled to an increase in the Contract price or payment of any kind from the Department or a Customer for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Department determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State, in which case the Department may (1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to the Customer with respect to products subjected to allocation, and/or (2) purchase from other sources (without recourse to and by the Contractor for the related RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 15 of 21 costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or in part. 5.22 Equitable Adjustment: The Department may, in its sole discretion, make an equitable adjustment in the Contract terms and/or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. 5.23 Renewal: Subject to Chapter 287 of the Florida Statutes, and upon mutual agreement, the Department and the Contractor may renew the Contract, in whole or in part. Any renewal shall be in writing and signed by both parties. 5.24 Advertising: The Contractor shall not publicly disseminate any information concerning the Contract without prior written approval from the Department, including, but not limited to mentioning the Contract in a press release or other promotional material, identifying the Department, the Customer, or the State as a reference, or otherwise linking the Contractor's name and either a description of the Contract or the name of the State, a Customer, or the Depattinent in any material published, either in printor electronically, to any entity that is not a party to Contract, except potential or actual authorized subcontractors, distributors, dealers, resellers, or service representatives. 5.25 Assignment: The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the Contract, or under any Task Order issued pursuant to the Contract, without the prior written consent of the Department; provided, the Contractor assigns to the State any and all claims it has with respect to the Contract under the antitrust laws of the United States and the State. The Depaitinent may assign the Contract with prior written notice to Contractor of its intent to do so. 5.26 Dispute Resolution: Any dispute concerning perfoiniance of the Contract shall be decided by the Purchasing Director, who shall reduce the decision to writing and serve a copy on the Contractor. The decision of the Purchasing Director shall be final and conclusive unless within ten (10) days from the date of receipt, the Contractor files with the Depaitt ent a petition for administrative hearing. The Department's decision on the petition shall be final, subject to the Contractor's right to review pursuant to Chapter 120 of the Florida Statutes. Without limiting the foregoing, the exclusive venue of any legal or equitable action that arises out of or relates to the Contract shall be the appropriate state court in Leon County, Florida; in any such action, Florida law shall apply, the Contractor waives any right to jury trial that it may have, and the prevailing party shall be awarded reasonable costs incurred, including attorneys' fees and costs on appeal. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 16 of 21 5.27 Employees, Subcontractors, and Agents: All Contractor employees, subcontractors, or agents performing work under the Contract or any Task Order shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Contract must comply with all security and administrative requirements of the Department and the Customer. The State or a Customer may conduct, and the Contractor shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by the Contractor. The State or a Customer may refuse access to, or require replacement of, any personnel for cause, including, but not Iimited to, technical or training qualifications, quality of work, change in security status, or noncompliance with an agency's security or other requirements. Such approval shall not relieve the Contractor of its obligation to perform all work in compliance with the Contract. The State or a Customer may reject and bar from any facility for cause any of the Contractor's employees, subcontractors, or agents. 5.28 Security and Confidentiality: The Contractor shall comply fully with all security procedures of the State and Customer in performance of the Contract. The Contractor shall not divulge to third parties any confidential information obtained by the Contractor or its agents, distributors, resellers, subcontractors, officers or employees in the course of performing Contract work, including, but not limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or Customer. The Contractor shall not be required to keep confidential information or material that is publicly available through no fault of the Contractor, material that the Contractor developed independently without relying on the State's or Customer's confidential information or material that is otherwise obtainable under State law as a public record. To insure confidentiality, the Contractor shall take appropriate steps as to its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Contract. 5.29 Independent Contractor Status of Contractor: The Contractor, together with its agents, distributors, resellers, subcontractors, officers and employees, shall have and always retain under the Contract the legal status of an independent contractor, and in no manner shall they be deemed employees of the State or deemed to be entitled to any benefits associated with such employment. During the terra of the Contract, Contractor shall maintain at its sole expense those benefits to which its employees would otherwise be entitled t.o by law, including health benefits, and all necessary insurance for its employees, including workers' compensation, disability, and unemployment insurance, and provide the Department with certification of such insurance upon request. The Contractor remains responsible for all applicable federal, state, and local taxes, and all FICA contributions. 5.30 Key Personnel: Contractor's Key Personnel (if any) shall be identified in the Customer's Task Order, and may include employees, agents, subcontractors, or other RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 17 of 21 personnel of the Contractor or the Contractor's Teaming Pac.tr.iers. The Contractor agrees that in the event it becomes necessary for the Contractor to change Key Personnel while performing Services under such Task Order, substitution of Key Personnel shall take place only upon Customer's prior written consent. Failure to notify Customer prior to the change of Key Personnel, or a substantial change in Key Personnel as determined by the Customer, may be sufficient cause for Termination. 5.31 insurance Requirements: During the Contract term, the Contractor at its sole expense shall provide commercial insurance of such a type and with such terms and limits as may be reasonably associated with the Contract, which, as a minimum, shall be: workers' compensation and employer's liability insurance per Florida statutory limits (currently $100,000 per accident, $100,000 per person, and $500,000 policy aggregate) covering all employees engaged in any Contract work; commercial general liability coverage on an occurrence basis in the minimum amount of S500,000 (defense cost shall be in excess of the limit of liability), naming the State as an additional insured; Errors and Omissions Insurance (Professional Liability) of at least S1,000,000; and automobile liability insurance covering all vehicles, owned or otherwise, used in the Contract work, with minimum combined limits of S500,000, including hired and non -owned liability, and S5,000 medical payment. Providing and maintaining adequate insurance coverage is a material obligation of the Contractor and is of the essence of the Contract. Upon request, the Contractor shall provide certificate of insurance. The Contract shall not limit the types of insurance Contractor may desire to obtain or be required to obtain by law. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor's liability and obligations under the Contract. All insurance policies shall be through insurers authorized to write policies in Florida. 5.32 Warranty: Contractor warrants the Services furnished under the Contract shall be free of defective material and workmanship, and shall otherwise perform in accordance with required performance criteria, for a period of not less than one (1) year from date of acceptance. Warranty repairs shall be completed within the time specified in any support level requirements. If it is likely that the time for repairs will exceed the specified time, the Contractor shall provide equivalent loaner equipment upon request. Loaner equipment shall be provided at no cost, including shipment to the Department's location and return of loaner equipment to the Contractor. Computer software delivered under a Task Order must perform satisfactorily from the Acceptance Date for twelve (12) months. If defects are discovered and identified within this period by the Customer, the Contractor shall correct them within 14 calendar days of written notification at the Contractor's expense, or such longer period as specified in a Task Order or related support level requirements. If the defects continue to exist after this 14-day period, corrective actions and remedies shall be taken as authorized under the Contract and/or the Task Order. 5.33 Warranty of Authority: Each person signing the Contract warrants that he or she is duly authorized to do so and to bind the respective party to the Contract. RFP No. 15-973-561-R. 5. General Conditions January 5, 2004 Page 18 of 21 5.34 Warranty of Ability to Perform: The Contractor shall provide the Depaitnient, no later than the time the Contractor returns a signed copy of the Contract, with proof of a Certificate of Status from the Secretary of State, Division of Corporations, demonstrating that the Contractor is in good standing and legally authorized to transact business in Florida. Failure to submit this documentation shall be sufficient grounds for withholding payment under the Contract and cause for termination. The Contractor warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. The Contractor shall immediately notify the Department in writing if its ability to perfo+rrr is compromised in any manner during the term of the Contract. 5.35 Year 2000 Compliance Warranty: All Services furnished under the Contract shall be Year 2000 compliant, that is, able to accurately process date data from, into, and between the twentieth and twenty-first centuries, including leap year calculations. Resellers may provide a "pass through warranty" from the manufacturer/software developer, which meets all the warranty requirements specified by the State, and which shall include all other warranties provided by the manufacturer or software developer. Reselier shall be responsible for warranty assurance, assistance, enforcement and any other actions or remediation, required to satisfy warranty requirements. 5.36 Warranty of No Hardstop/Passive License Monitoring: Unless the Department and Customer are specifically and conspicuously advised to the contrary in writing at the time of order and before product acceptance, the Contractor hereby warrants and represents that Services do not and will notcontain any computer code that would disable the product or upgrades or impair in any way operation based on the elapsing of time, exceeding an authorized number of copies, advancement to a particular date or other numeral, or other similar self-destruct mechanisms (sometimes called "time bombs," "time locks," or "drop dead" devices) or that would permit the Contractor to access the product to cause such disablement or impairment (sometimes called a "trap door" device). The Contractor agrees that upon an alleged breach of this provision, the Depai tntent shall not have an adequate remedy at law, including monetary damages, and that the Depaitment shall be entitled to seek a temporary restraining order, injunction, or other forni of equitable relief against the continuance of such breach, in addition to any other remedies to which the Department shall be entitled. 5.37 Notice: All notices required under the Contract shall be delivered by certified mail, return receipt requested, by reputable air courier service, or by personal delivery. Notices to the Department shall be delivered to the Purchasing Analyst. Notices to the Contractor shall be delivered to the person who signs the Contract. Either designated recipient may notify the other, in writing, if someone else is designated to receive notice. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 19 of 21 5.38 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE): To the extent that a product is certified by or is available from PRIDE, and has been approved in accordance with section 946.515(2) of the Florida Statutes, it is expressly understood and agreed that any articles which are the subject of, or required to carry out, the Contract shall be purchased from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned. This provision is required by section 946.515(6) of the Florida Statutes; additional information about PRIDE and the products it offers is available at http:i!www.pridefl.co.m. 5.39 Products Available from the Blind or Other Handicapped: To the extent that a product is included on the procurement list created and distributed pursuant to section 413.035(2), Florida Statutes, it is expressly understood and agreed that any articles that are the subject of, or required to carry out, this contract shall be purchased from a nonprofit agency for the Blind or for the Severely Handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the person, firm, or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the State agency insofar as dealings with such qualified nonprofit agency are concerned. This provision is required by section 413.036(3) of the Florida Statutes; additional information about the designated nonprofit agency and the products it offers is available at http://www.respectofflorida.org. 5.40 Modification of Terms: The Contract contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions under the Contract. The Contract may only be modified or amended upon mutual written agreement of the Department and the Contractor. No oral agreements or representations shall be valid or binding upon the Department or the Contractor. The Contractor may not unilaterally modify the tei nis of the Contract by affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product literature, "shrink wrap" terrrrs accompanying or affixed to a product, whether written or electronic) or by incorporating such terms onto the Contractor's order or fiscal forms or other documents forwarded by the Contractor for payment. The Depaitnient's acceptance of product or processing of documentation on forms furnished by the Contractor for approval or payment shall not constitute acceptance of the proposed modification to terms and conditions. 5.41 Waiver: The delay or failure by the Department to exercise or enforce any of its rights under this Contract shall not constitute or be deemed a waiver of the Department's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 20 of 21 5.42 Execution in Counterparts: The Contract may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 5.43 Severability: If a court deems any provision of the Contract void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable and all other provisions shall remain in full force and effect. RFP No. 15-973-561-R 5. General Conditions January 5, 2004 Page 21 of 21 Special Conditions Table of Contents 6.01 Task Orders 6.02 Ordering from Project Areas 6.03 Location 6.04 Conflicts of Interest 6.05 Personnel Matters 6.06 Software Documentation Requirements 6.07 Contractor Responsibilities 6.08 Other Contractors 6.09 Treatment of Customer Assets 6.10 Contractor Warranties 6.11 Ongoing Perfottnance Measures 6.12 Task Order Termination 6.13 Liquidated Damages 6.01 Task Orders (a) Task Order Overview A Customer shall order services by issuing a Task Order. Task Orders should establish the specific deliverables, costs, payment schedules, start/completion dates, etc. for specific projects. Task Orders may vary from a simple staff augmentation request to a significant project with complex deliverables. It is the responsibility of the Customer to determine the appropriate scope of work for a Task Order. In creating Task Orders, Customers are permitted to negotiate terms and conditions which supplement those contained in this Contract. Such additional terms shall not conflict with the terms and conditions established by this Contract (and any such conflicting twits shall be resolved in favor of tetttts most favorable to the Customer, as determined by the Department). Task Order -specific terms and conditions are only applicable to that specific Task Order and shall not be construed as an amendmentto this agreement. Three (3) types of Task Orders may be issued hereunder: (i) Time & Materials (T&M) Task Orders, which may include standard staff augmentation services. A T&M Task Order should be used by a Customer to acquire services on the basis of (1) direct labor hours, at specified fixed hour rates not to exceed those in the Contract. and (2) materials at cost (permitted only when specifically detailed by the Customer in the Task Order). A typical staff augmentation Task Order is presumed not to include any additional materials costs, unless explicitly stated otherwise in the Task Order. These types of Task Orders place maximum risk on the Customer, therefore T&M Task Orders should be used RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 1 of 11 only when it is not possible at the time of placing the order to accurately estimate the extent or duration of the work or to anticipate costs with any reasonable degree of confidence. (ii) Fixed Price Project (FPP) Task Orders, which provide for a fun' price that is not subject to any adjustment on the basis of the Contractor's cost experience in performing the Services. This type of Task Order provides maximum incentive on the Contractor to contain costs and perfoiJJJ effectively. (iii) Cost -Savings Task Orders, in which the Contractor receives no direct fee. In this type of Task Order, the Contractor is reimbursed solely for an agreed -upon portion of the savings realized by its performance of the Services. This type of Task Order requires careful "benchmarking" by the parties, in order to properly calculate such savings. (b) Task Order Requirements. The following items are REQUIRED to be included in every Task Order issued by a Customer. All parties to a transaction are responsible for ensuring compliance with this section. • Contracting Officer: Every Task Order must name a Customer Contracting Officer, who shall be the main Customer point of contact for all issues related to the Services performed under that Task Order. The Customer's Contracting Officer is the only person authorized to make or approve any changes in the requirements of a Task Order. In the event the Contractor(s) makes any changes at the direction of any person other than the Contracting Officer, the change will be considered to have been without authority and no adjustment will be made in the Task Order price to cover any increase in costs occurred as a result thereof. The Customer's Contracting Officer is a single point of contact for the Contractor, and has the authority to obtain decisions on behalf of the Customer. The Contracting Officer will be responsible for the performance of the following functions, some of which may be delegated to other Customer staff: 1. Provide a liaison between the Customer and the Contractor, 2. Review, verify, and approve invoices from the Contractor, 3. Resolve any contractual problems, 4. Ensure the timely review by the Customer of all planning documents, 5. Report on project progress to Customer management, 6. Meet with the Contractor to convey infouiiation about schedule, timing and content of upcoming Deliverables, as well as raising problems and frustrations, 7. Meet with the Contractor and inform Customer management on the Contractor's difficulties and frustrations, 8. Facilitate resolution of problems, 9. Functions as the source of all material sent to the Contractor, 10. Receive all Deliverables from the Contractor, 11. Archive all Deliverables received from the Contractor, and 12. Review all Change Requests looking for communications issues during the problem's lifecycle and follow-up on unresolved issues regarding reproducibility, significance, etc. RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 2 of 11 • Completion Dates: For Fixed Price Projects, costs to the Customer for each Deliverable and the completion date must be agreed upon in the Task Order. The completion date shall be based on the Contractor's project plan and the Customer's needs. The Contractor shall complete each project within the agreed cost and by the estimated completion date, unless the completion date is properly modified. (c) Task Order Recommendations Customers should consider the following items when creating a scope of work and its resulting Task Order. The items here are not mandatory, but the Depai lucent strongly suggests that Customers (and Contractors) consider addressing these issues when relevant. This list is not intended to be an exhaustive list; other sections of this Contract contain Task Order -level peitnissions. Americans with Disabilities Act (ADA) Civil Rights Compliance: Accessible Electronic Information Technology (A-eIT) Vendors submitting proposals for this project need to provide complete compliance with all Equal Accessibility laws, regulations and standards under Sections 251 & 255 of the Telecommunications Act of 1996, Titles I, II, III & IV of the Americans with Disabilities Act (ADA) [42 USC 12101 et seq.], and Sections 504 and 508 of the federal Rehabilitation Act amendments [29 USC 794 et seq.], and the Assistive Technology Act of 1998. These standards establish a minimum level of accessibility. Vendors submitting proposals should review the above laws, regulations, and standards in detail to verify that the technologies they are proposing provide complete compliance. Vendors should provide written and signed certification to the Customer documenting compliance. Demonstration of these capabilities on the "working" system will be required by the Vendor before the Customer will accept the "system" and make related payments. Technologies that are not accessible should be avoided unless there is significant and demonstratable need to use them. Since the courts have ruled against post -hoc accommodation (developing an alternative method of providing access to accommodate persons with disabilities), the agency needs to be careful approving technologies that cannot be certified by the vendor. If the manufacturer of the technology cannot demonstrate a compliant solution, they will be required to indemnify the customer against any litigation stemming from their lack of compliancy with the above laws, regulations and standards. • Inspection and Acceptance: Customers may add specific infoii cation related to inspection and acceptance of services, if they so desire (see section 5.09 of the General Conditions for more information regarding inspection and acceptance generally). • IVR System Indemnification: If the Task Order involves an Interactive Voice Response (IVR) system in any way, the Customer may choose to insert an additional RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 3 of 11 indemnification clause. This clause should be discussed in detail with the Contractor and Customer's attorneys. The Department suggests the following paragraph or one similar, when appropriate: Under this Task Order, Contractor and its subsidiaries shall not be liable to the Customer or indemnify Customer for any claims of patent infringement, including contributory infringement or inducement to infringe, of any patents owned or licensable now or hereafter by Ronald A. Katz or Ronald A Katz Technology Licensing, L.P. or by his or its successors or assigns ("Katz Patents"). Customer releases Contractor and its subsidiaries and its and their employees, officers, and directors from any and all liability for all claims, losses and damages (whether stated in contract or tort, including but not limited to all claims for patent and copyright infringement) arising from, in connection with, related to, or as a result of any claim of infringement, including contributory infringement or inducement to infringe, of any Katz Patents related to Products, Services and/or Materials provided by Contractor to the Customer under this Task Order, alone or in combination with other devices, products, software, services and/or materials whether provided by the Customer, Contractor or others. Contractor shall not be responsible for determining whether the Customer requires a license to any Katz Patents, obtaining any such license on their behalf or paying any fees relating to any such licenses. • Liability Insurance: If, in the sole discretion of the Customer, liability insurance greater than that required by this Contract is necessary to insure the project, scope of work, or other Deliverables, the additional required insurance amounts should be detailed in the Task Order. • Minority Participation: Certain State of Florida subdivisions, as well as other Customers, may choose to include participation measures at the time that they conduct Task Order RFQs. Therefore, Task Orders awarded hereunder may include provisions for participation by certified minority and women -owned Contractors or Teaming Partners, pursuant to processes established by such Customers with respect to such measures. • Performance Bond: The Customer, in its sole discretion, may require the Contractor to furnish without additional cost a perfocii►ance bond or negotiable irrevocable letter of credit or other form of security for the faithful performance of work under a particular Task Order. The appropriateness of this bond requirement and the amount of such bond, if deemed necessary, is the sole responsibility of the Customer. • Performance Management System: For FPP Task Orders, the Department recommends that the Customer require Contractor to have a performance management system to track project cost, schedule, deviations, and status. Such systems should be similar to the earned value project management system that complies with the ANSI Standard on "Earned Value Management Systems Guidelines, ANSI/EIA-748-1998" at the following web sites: http://www.acq.osd.miI/pm/currentpoiicv!curren.tpolicv.htrl; RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 4 of 11 http://www.acd.osd.rnil!piu/currentpolicv/critcomp.htrn; htt.:flz -ww.ac .osd.mii/ min ew o]ic announce.htrl http://www.acci.osd.milipmlcut-rentooticyliilz/evmiE21.htm. and also described in Appendix four of OMB's Capital Programming Guide dated July 1997 at http://www.whitehouse.gov/OMB/circulars/all/cpgtoc.html; or have the capability to apply earned value analysis methods or the like to monitor and manage the project. The use of earned value would include the capability to assign budgets to scheduled work elements (using a work breakdown structure); credit budget values to the project as work elements are fully and partially completed (i.e., earned value); and track actual costs incurred for the scheduled work elements. • Task Order Termination for Cause: In addition to those reasons given in the Contract, the Customer may outline any additional actions or non -actions that may result in a "for - cause" teiwination of the relevant Task Order. (d) FPP Task Order Changes Customer is responsible for ensuring that Task Orders specify the process for change order requests. (e) RFQ Requirements The Customer shall issue Requests for Quote (RFQs) to multiple Contractors before issuing any Task Order under this Contract per the following thresholds for Project Areas 1, 2, and 3. For Staff Augmentation, Customers may make a discretionary vendor selection at any threshold except above S10,000,000 in total cost. The specific foituat of the RFQ is left to the discretion of the Customer's Contracting Officer. SO - S24,999 Discretionary vendor selection among Contract Vendors $25,000 - $2,000,000 Agency solicits at least THREE quotes among Contract Vendors of its choice $2,000,001 - $5,000,000 Agency selects BEST RESPONSE to Statement of Work issued to at least TEN Contract vendors of its choice $5,000,001 - SIO,000,000 Agency selects BEST PROPOSAL submitted upon notification of ALL Contract Vendors within the appropriate Project Area(s) Over S 10,000,000 RFP or ITN to Open Market not via this State Tenn Contract RFQs performed within the scope of this Contract are not independent competitive solicitations and are not subject to the notice or challenge provisions of Section 120.57(3), F.S. 6.02 Ordering from Project Areas In order to deteiuiine an appropriate Contractor for any given Task Order, Customers should evaluate the type of services required in a scope of work and identify the snatching Project Area. The Customer is required to issue the Task Order to a Contractor who has received an award in that Project Area. If a scope of work crosses multiple Project Areas, the Customer may issue a RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 5of11 Task Order to a Contractor within any relevant Project Area. In such situations, the Customer is encouraged to identify the Project Area that is most critical to the overall success of the Customer's project. For staff augmentation efforts, the Customer may issue the Task Order to a Contractor in any Project Area. 6.03 Location A Task Order may direct that Services be performed at the Customer's location, or at a facility to be furnished by the Contractor. The Task Order may also indicate restrictions on the location of the Contractor's facility such as, within 60 minutes of the Customer's facility, or within 30 miles of the Customer's facility, etc. Contractor facilities must able to support necessary Task Order requirements, including all equipment, supplies, and services needed by personnel to complete the services for the Customer. Customer -furnished items will be identified in individual Task Orders, as appropriate. The Contractor shall be responsible for transporting all Customer -furnished items between the Customer site and the Contractor's place of performance. Pickup and delivery of all materials shall be in accordance with the schedule defined for each specific Task Order. 6.04 Conflicts of Interest Task Orders issued under this Contract (especially work under Project Area 1) may provide the Contractor with access to advance information about future procurements, which infociiiation is not generally available to other persons or films. In addition, the work may involve the definition of requirements for, or the preparation of specifications for, various systems, equipment, hardware, and/or software. In order to prevent any bias, unfair competitive advantage, conflict of interest, or the appearance of any type of impropriety, a Contractor who does any of the following under a Task Order issued under this Contract: • Perfoiuis a feasibility study of the potential implementation of a subsequent contract or Task Order; • Participates in the drafting of a solicitation or other subsequent Scope of Work, Task Order, or related document; or • Develops a program for future implementation, is not eligible to bid, respond, or otherwise contract for any other agreements, contracts, Task Orders, or other purchase documents dealing with that subject matter. The Contractor shall also be prohibited from serving as a subcontractor on such agreements, Task Orders, etc. In addition, Customers and Contractors are encouraged to review s. 287.057(18), F.S. The term "Contractor," as used in this exclusion section includes any person, firm or corporation which has a majority or controlling interest in the Contractor or in any parent corporation RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 6 of 11 thereof, and any person, f uii or corporation in or as to which the Contractor (or any parent or subsidiary corporation thereof) has a majority or controlling interest. The term also includes the corporate officers of the Contractor, those of any corporation that has a majority or controlling interest in the Contractor (or any parent or subsidiary corporation thereof) has a majority or controlling interest. Customers shall use their best efforts to notify Contractors of such potential exclusion situations. This notice should be included in a Task Order, scope of work, RFQ, or whenever the Customer recognizes the potential existence of a conflict. 6.05 Personnel Matters (a) Professional Qualification Requirements The Contractor shall supply personnel meeting the educational qualifications specified in the Job Title contained in section 3 or a specific Task Order. The Customer may consider, on a case -by - case basis, acceptance of personnel whose degree does not fall within the fields specified. In addition, work experience may be substituted for education, at the Customer's discretion. (b) Professionalism Contractor's personnel shall adhere to the same professional and ethical standards of conduct. required of State personnel. Contractor personnel shall not: 1. Discuss with unauthorized persons any information obtained in the performance of work under any Task Order not considered a public record pursuant to Chapter 119, Florida Statutes; 2. Conduct business not directly related to the Task Order on Customer premises; 3. Use computer systems and/or other Customer facilities for company or personal business other than work related to the Task Order; or 4. Recruit on Customer premises or otherwise act to disrupt official Customer business. (c) Training The Contractor shall provide fully trained and experienced personnel (including replacement personnel) required for performance of any work under Task Orders awarded. This includes training necessary for keeping personnel abreast of industry advances and for maintaining proficiency on equipment, computer languages, and computer operating systems that are available on the commercial market. Training of personnel shall be performed by the Contractor at its own expense except for the following: (1) When the Customer has given prior approval for training to meet special requirements that are peculiar to a particular Task Order. (2) Limited training of Contractor employee(s) may be authorized when the Customer changes the information technology hardware and/or software during performance of an on -going Task Order and it is determined to be in the best interest of the Customer. (3) Training for Contractor employees to attend seminars, symposia, or user group conferences when certified by the Contractor and the Customer's Contracting RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 7 of 11 Officer that attendance is mandatory for the performance of Task Order requirements. When training is authorized by the Customer under the conditions set forth above, the Customer will reimburse the Contractor for labor, tuition, and travel (if required) in accordance with the Task Order and s. 112.061, F.S. (d) Recruiting and Retention For the purposes of this section only, the phrase "Task Order Personnel" is defined as any employee, subcontractor, consultant or other agent of an entity, whom the other entity becomes aware of due to the existence or performance of a particular Task Order. Unless written authorization is received in advance, neither the Contractor nor the Customer shall attempt to recruit, hire, or otherwise contract with the Task Order Personnel of the other for the duration of the relevant Task Order and 6 months after such Task Order's termination. The term "attempt to recruit" excludes (i) any broad -based effort to attract applicants if not specifically designed to attract the other's Task Order Personnel and (ii) any unsolicited inquiries made or applications submitted by one party's Task Order Personnel not at the instigation of the other party. Notwithstanding this prohibition, the State reserves the right to recruit, hire, or otherwise contract directly with any Task Order Personnel who have performed Services under this Contract for at least 6 months. (e) Authority Contractor personnel shall not hold themselves out to be representatives, in any capacity, of the Customer. In all communications with third parties, Contractor personnel shall identify themselves as such and specify the name of the Contractor. In all communications with other Contractors in connection with a Task Order, the Contractor personnel shall state that he or she has no authority to in any way change the contract and that if the other Contractor believes a particular communication to be a direction to change the requirements of the Task Order, they should notify the Customer's Contracting Officer for that Task Order and not carry out the direction until a clarification has been issued by the Customer's Contracting Officer. The Contractor shall insure that all of its personnel are informed of the substance of this section, and the substance of this section shall be included in all subcontracts at any tier. 6.06 Software Documentation Requirements To the extent that any software is developed, modified, or otherwise procured under a Task Order, the Contractor is responsible for providing appropriate documentation, based on commercially -accepted software documentation standards. The Customer may address specific software documentation needs or standards in the appropriate Task Order. 6.07 Contractor Responsibilities In accepting a Task Order, the Contractor recognizes its responsibility for all tasks and Deliverables contained therein, warrants that it has fully informed itself of all relevant factors RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 8 of 11 affecting accomplishment of the tasks and Deliverables and agrees to be fully accountable for the performance thereof. In addition, the Contractor assumes full responsibility for the acts of all subcontractors. The Contractor shall provide all management, administrative, clerical, and supervisory functions required for the effective and efficient perfoiivance of all Task Orders it accepts, and shall have sole responsibility for the supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), worker's compensation, disability benefits and the like for its personnel. The Contractor is accountable to the Customer for the actions of its personnel. Each Task Order will name a Customer Contracting Officer; however, these Contracting Officers may be working members of teams and should not be expected to perform supervisory functions. Contractor's management responsibilities include, but are not limited to, the following: 1. Ensure personnel understand the work to be performed on Task Orders to which they are assigned. 2. Ensure personnel know their management chain and adhere to Contractor policies and exhibit professional conduct to perform in the best interest of the Customer. 3. Ensure personnel adhere to applicable laws, regulations, and Contract conditions governing Contractor perfoimmance and relationships with the Customer. 4. Regularly assess personnel performance and provide feedback to improve overall task performance. 5. Ensure high quality results are achieved through task performance. The Contractor shall not perform any inherently governmental actions under this Contract. 6.08 Other Contractors (a) Other Work The Customer may undertake or award other contracts, Task Orders, or other arrangements for additional or related work, and the Contractor shall reasonably cooperate with such other Contractors and pertinent Customer personnel. The Contractor shall not commit or permit any act that shall interfere with the performance of work by any other Contractors or by Customer personnel. (b) Transition of Work The Contractor agrees to exercise its best efforts and cooperation to effect an orderly and efficient transition of any Task Order or other contract, project, or other agreement, if necessary. When appropriate, Task Order management personnel shall meet with a successor Contractor to coordinate Task Order transition. Discussions may include personnel transition to the successor Contractor or the transition of Task Order -specific items such as Customer or Contractor furnished supplies, materials, equipment, and services. 6.09 Treatment of Customer Assets Title to all property furnished by the Customer under this Contract or any Task Order shall remain in the Customer, and Contractor shall surrender to the Customer all property of the Customer prior to settlement upon completion, teirnination, or cancellation of any Task Order. RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 9 of 11 Any property of the Customer furnished to the Contractor shall, unless otherwise provided herein or approved by the Customer, be used only for the performance of the Services. 6.10 Contractor Warranties. The Contractor agrees to the following representations and warranties: • Repair of Damaged Data Warranty. The Contractor represents that, should any defect or deficiency in any Deliverable, or the remedy of such defect or deficiency, cause incorrect data to be introduced into any Customer's database or cause data to be lost, the Contractor shall be required to correct and reconstruct, within the timeframe established by the Customer's Contracting Officer, all production, test, acceptance and training files or databases affected which are used in the provision of services, at no additional cost to the Customer. • Quality Assurance Warranty. The Contractor represents that it will at all times use a formal Software development process when the Services or Deliverables involve software modification or development. • Limitation of Warranty for Customer -Furnished Software In lieu of any other warranty expressed or implied herein, the Customer warrants that any programming aids and software packages supplied for Contractor use as Customer -furnished property shall be suitable for their intended use on the system(s) for which designed. In the case of programming aids and software packages acquired by the Customer from a commercial source, such warranty is limited to that set forth in the contractual document covering the product(s). Should Customer -furnished programming aids or software packages not be suitable for their intended use on the system(s) for which designed, except where such property is furnished "as is," the Contractor shall notify the Customer's Contracting Officer and supply documentation regarding any defects and their effect on progress on the Task Order. The Customer's Contracting Officer will consider equitably adjusting the delivery performance dates or Task Order price, or both, and any other contractual provision affected by the Customer -furnished property in accordance with the procedures provided for in the clause of this contract entitled "Changes". 6.11 Ongoing Performance Measures. The State intends to use performance -reporting tools in order to measure the performance of Contractors. These tools will include the fowls contained in section 7, Ongoing Performance Measures. Such measures assist the Department in ensuring that Contractors provide the best possible value to the State and Customers. The State reserves the right to modify the forms and introduce additional performance -reporting tools as they are developed, including online tools (e.g. tools within MyFloridaMarketPlace or on the Department's website). 6.12 Task Order Termination Upon the teiiiiination of any Task Order or a portion thereof, the Customer may require the Contractor to deliver to the Customer any Deliverables specifically produced or acquired for the performance of such part of any Task Order. Customer shall pay the Contractor for Deliverables received and accepted by the Customer, however, in no event shall the Customer pay to the Contractor an amount greater than the Contractor would have been entitled to if the Task Order were not terminated. RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 10 of 11 After receipt of a notice of termination, and except as otherwise directed by the Customer, the Contractor shall stop perfoi wing services on the date, and to the extent specified, in the notice. The Contractor shall accept no further Task Orders for additional or other services related to the affected Task Order, and shall, as soon as practicable, but in no event longer than thirty (30) calendar days after termination, terminate any orders and/or subcontracts related to the terminated Task Order and settle all outstanding liabilities and all claims arising out of such termination of orders andlor subcontracts, with the approval or ratification of the Customer to the extent required, which approval or ratification shall be final for the purpose of this section. The parties shall also settle any transfers of property which may have been required to be furnished to Customer or which otherwise belongs to the Customer; and Contractor shall provide written certification to the Customer that the Contractor has surrendered to the Customer all said property. The teiniination of a Task Order shall not affect the performance or quality of any other unrelated Task Order being performed by the Contractor for the same Customer or any other Customer. 6.13 Liquidated Damages The Contractor acknowledges that the State retains the sole discretion of whether to pursue the remedy of liquidated damages for material non-performance of services as stated in the Eligible User's Purchase Document, in addition to other legal remedies available. In the event of default of specific obligations, the Parties acknowledge and agree that the Party not at fault may be entitled to damages and that by their nature such damages will be difficult to ascertain at this time. The issues involved in determining the amount of damages to which the non -defaulting Party would be entitled will be multiple and complex, and will be dependent on many and variant factors, proof of which could be burdensome. One of those variant factors is the nature and amount of work that will be set forth in the scope of Consulting Services in the Eligible User's Purchase Document. Further, the Parties wish to avoid lengthy and expensive litigation upon occurrence of an event of default. Therefore, the Parties agree, in view of the circumstances and uncertainties that may be present at the time of default, that it is in the best interest of both Parties and the State of Florida that the Eligible User and the Contractor agree upon a reasonable amount of liquidated damages, if appropriate, according to the scope of services and Contractor's deliverables, and that the amount be set forth in writing in the Purchase Document. If the Eligible User and the Contractor agree that liquidated damages are not appropriate according to the scope of services and Contractor's deliverables, a statement so stating shall be included in the Purchase Document. The Parties further stipulate that the amount of liquidated damages provided for in the Purchase Document is not intended to be a penalty and is purely intended to reasonably compensate for unknown and unascertainable damages. RFP No. 15-973-561-R 6. Special Conditions January 5, 2004 Page 11 of 11